Al-Megrahi and the Scottish legal system

Simon Jenkins in today's Guardian argues that the decision to release Al-Megrahi was made under political pressure from Westminster.  Well fine: that's the sort of piece he's paid to write, though it seems rather short on substantiation to me.   But Scottish criminal courts are not subject to any sort of control by Westminster.  Mr Jenkins states:

"Too much has been made of Scotland's judicial sovereignty. The formal autonomy of the Scottish courts predated the 1998 Devolution Act but was greatly reinforced by it. Yet that autonomy is buffeted by layers of external pressure."

I don't know what that's supposed to mean.  Too much has been made of Scotland's judicial sovereignty?  Scottish law is different and separate, and that's that.  Let me explain quite how distinct Scottish criminal law is.

The legal systems of Scotland (on the one hand) and England and Wales (on the other hand) are not just formally but actually, entirely and wholly distinct, and they always have been. Article 19 of the Treaty of Union agreed in 1706 provided that Scottish law and the Scottish legal system would continue to be applied in Scotland: i.e. the two legal systems would continue to be quite distinct.

Scottish law remains different from English law in many ways, but in particular in relation to criminal law.  Whilst both English and Scottish civil disputes share their highest appellate courts - now the Supreme Court, formerly the House of Lords - that has never been the case for criminal cases.  The final appeal court for Scottish criminal cases is the High Court of Justiciary.  Now the House of Lords has lost its judicial function, the position remains the same: the Supreme Court will still not have any jurisdiction over Scottish criminal law.


This ancient independence of the Scottish criminal law is nothing to do with devolution. 

The Al-Megrahi case was decided by the High Court of Justiciary sitting in the Netherlands pursuant to a particular treaty agreed between the UK and the Netherlands (see p.97/498 of this pdf).  It was a decision of the High Court of Justiciary. 

The Secretary of State's discretion to release Mr Al-Megrahi on compassionate grounds has nothing to do with devolution.  Its statutory basis predates devolution.

Mr Jenkins' attempt to link this case to the degree of political autonomy enjoyed by Scotland under the Scotland Act 1998 is misplaced.  This case was decided under Scottish criminal law by a Scottish Court of ancient jurisdiction.