The emergence of a devolution jurisprudence?

In late 2012 the UK Supreme Court decided two cases on the law of devolution. On the face of it each was quite separate from the other but the Court clearly saw them as being closely related and took the opportunity to develop some potentially important principles of devolution law. Each case was a challenge to the legislative competence of a devolved legislature. The first case was from Wales. The Attorney General referred to the Supreme Court the question of whether certain provisions of the Local Government Byelaws (Wales) Bill were within the legislative competence of the National Assembly. The second case was an appeal from the Court of Session in Edinburgh. Imperial Tobacco Ltd argued that certain provisions of the Tobacco and Medical Services (Scotland) Act 2012 were outwith the legislative competence of the Scottish Parliament. In each case the Supreme Court unanimously rejected the challenge and upheld the legislation.

Welsh Byelaws

The Attorney General’s reference concerned the first Bill passed by the National Assembly under the powers conferred upon it by the provisions of the Government of Wales Act 2006 (“GOWA”) that came into effect following the referendum in 2011 (see T&T pp 250-2). The Local Government Byelaws (Wales) Bill was intended to simplify procedures for making and enforcing local authority byelaws in Wales. The Attorney General referred sections 6 and 9 of the Bill to the Supreme Court. Section 6 removed the need for certain byelaws to be confirmed by the Welsh Ministers or the Secretary of State; section 9 provided that the range of byelaws in respect of which confirmation would no longer be required could be extended.

The legal challenge to section 6 centred upon Sched 7, Part 2, para 1 to GOWA, which provides that “A provision of an Act of the Assembly cannot remove or modify … any pre-commencement function of a Minister of the Crown”. For the Welsh Ministers, it was contended that section 6 was saved by Sched 7, Part 3, para 6(1)(b), which provides by way of exception that the rule just quoted does not prevent a provision of an Act of the Assembly removing or modifying a pre-commencement function of a Minister of the Crown if that provision is merely “incidental” or “consequential”.

When the equivalent provisions of the Scotland Act 1998 were examined by the Supreme Court in Martin v Most [2010] UKSC 10, the matter divided the Court three-to-two. In the Welsh Byelaws case, by contrast, the Court was unanimously of the view that the Welsh Ministers were correct that section 6 of the Local Government Byelaws (Wales) Bill was saved by Sched 7, Part 3, para 6(1)(b). Lord Neuberger gave six reasons for reaching this conclusion, of which the most important was that the primary purpose of the Bill could not have been achieved without the removal of the Secretary of State’s confirmatory powers. (The Secretary of State’s confirmatory powers were removed as regards byelaws made by local authorities in England by section 129 of the Local Government and Public Involvement in Health Act 2007.)

As for section 9 of the Bill, which was also found to be within the Assembly’s legislative competence, the Supreme Court relied on GOWA section 154(2). This section provides that a provision of an Act of the Assembly is, “if possible”, to be read “as narrowly as is required for it to be within competence”. Using this provision, section 9 was interpreted to mean that in the future the Welsh Ministers could remove the need for confirmation of byelaws only if the confirmation would have been for the Welsh Ministers and not the Secretary of State or – where it would have been for the Secretary of State – if the removal of the power was merely incidental or consequential.

Imperial Tobacco

The Tobacco and Primary Medical Services (Scotland) Act 2010, section 1, prohibited the display of tobacco products at the point of sale. Section 9 of the Act prohibits vending machines for the sale of tobacco products. Imperial Tobacco challenged the lawfulness of these provisions, arguing inter alia that they related to matters “reserved” to the United Kingdom Parliament under Sched 5 to the Scotland Act 1998. Their challenge was unsuccessful in both the Outer House and, on appeal, in the First Division of the Court of Session; it was equally unsuccessful in the Supreme Court.

The core of Imperial Tobacco’s argument was that sections 1 and 9 of the Act related to “the sale and supply of goods to consumers” and to “product safety”, both of which are expressly listed as matters reserved to the United Kingdom Parliament (by Sections C7 and C8 of Head C in Part II of Sched 5 to the Scotland Act 1998). Under section 29(3) of the Scotland Act, whether a provision of an ASP “relates to” a reserved matter is to be determined by reference to its purpose (having regard, among other things, to its effect in all the circumstances). The purpose of sections 1 and 9 was to reduce tobacco sales, on grounds of public health. The Supreme Court ruled that this purpose could not be said to have “anything to do with consumer protection”: the aim was to “discourage … sales of tobacco products, not to regulate how any sales are to be conducted so as to protect the consumer from unfair trade practices” (para 40).

A devolution jurisprudence?

In the course of the last 12-18 months there has been much academic and political argument about the proper interpretation of the UK’s various devolution statutes. The impetus behind much of the controversy was the dispute over whether the Scotland Act 1998 confers on the Scottish Parliament the competence to legislate on any sort of independence referendum. (My view remains that it does not.) That argument is no longer of any immediate practical concern, owing to the fact that the requisite legislative competence has now been conferred on Holyrood by an Order in Council made under section 30 of the Scotland Act. (An earlier post here dealt with the key developments up to March 2012; a forthcoming post will summarise developments since then.)

In both the Welsh Byelaws case and Imperial Tobacco the Supreme Court took the opportunity to set out its view of the proper legal interpretation of the devolution legislation. A starting point is to bear in mind the Court’s view that the three principal pieces of legislation – the Scotland Act 1998, the Northern Ireland Act 1998 and the Government of Wales Act 2006 – have both similarities in common and differences between them. Whilst, in some circumstances, it will be appropriate to read across from case law concerning one of these enactments to arguments about another of them, caution must always be exercised in doing so. Thus, while Lord Hope stated in the Welsh Byelaws case that “the essential nature of the legislatures that the devolution statutes have created in each case is the same” (para 81), Lord Neuberger in the same case warned that these are “different statutes, and one must therefore be wary of assuming that they have precisely the same effect, as context is so crucially important” (para 50).

One difference, it is now clear, is that while in Robinson v Secretary of State for Northern Ireland [2002] UKHL 32 (see T&T pp 88-90) the House of Lords ruled that the Northern Ireland Act, being a “constitutional statute”, should be interpreted “purposively and generously” the Supreme Court is highly reluctant to read this across into the interpretation of GOWA or the Scotland Act. In the Welsh Byelaws case Lord Neuberger stated that it was unnecessary for him to say anything about whether the approach in Robinson could or should inform the judicial interpretation of GOWA (para 69) but Lord Hope stated that describing a devolution statute as a “constitutional statute” was a matter of description only (i.e. that such a statute concerns matters of constitutional law) and could not be taken as a guide to the proper interpretation of the statute (para 80). Indeed, for Lord Hope, a devolution statute “must be interpreted like any other statute”. Lord Hope said the same thing in his judgment in Imperial Tobacco: “the description of the [Scotland] Act as a constitutional statute cannot be taken, in itself, to be a guide to its interpretation” (para 15). The First Division of the Inner House had reached the same conclusion in Imperial Tobacco, Lord Reed (now, of course, a Justice of the Supreme Court) making it plain that even if the political context of the Northern Ireland Act justified a more generous interpretation of its terms, no such argument could be made for the Scotland Act. Robinson v SSNI, it seems, while not being overruled, has been confined to its facts. The Court of Session and the Supreme Court alike have made it plain that Robinson v SSNI does not lay down a general rule as to the interpretation of the UK’s devolution legislation. This, in my view, is very much to be welcomed, not least because it sits much more comfortably with our long-standing precepts of the sovereignty of Parliament than does the rather awkward judgment in Robinson.

In Imperial Tobacco, Lord Hope stated that “it is unsatisfactory that there should continue to be room for doubt” on the matter of the proper interpretation of the Scotland Act 1998 (para 12). In order to clarify the matter, his Lordship set out three basic principles. First, “the question of legislative competence must be determined in each case according to the particular rules that have been set out in section 29 of and Schedules 4 and 5 to the 1998 Act” (para 13). Secondly, “those rules must be interpreted in the same way as any other rules that are found in a UK statute”. Devolution, he added, was designed to be “coherent, stable and workable” but these attributes, while proper to have in mind, do not amount to “a principle of construction” (para 14). That said, “the best way of ensuring that a coherent, stable and workable outcome is achieved is to adopt an approach to the meaning of a statute that is constant and predictable” (ibid). To return for a moment to the debate about Holyrood’s competence to legislate for an independence referendum, some commentators had suggested that cases about tobacco legislation could not be taken as reliable indicators of how the courts would interpret an ASP that, without a section 30 Order, purported to authorise an independence referendum. Lord Hope’s statement just quoted gives the lie to this: the Scotland Act 1998 and the rules contained within it as to the legislative competence of the Scottish Parliament will be interpreted and enforced by the courts with constancy and predictability – their interpretation will not wax and wane according to some fanciful notion of whether the ASP is concerned with important constitutional matters or not.

A final point to note in Lord Hope’s judgment in Imperial Tobacco is his summary of section 29 of the Scotland – this is his third basic principle. While section 29 “does not create a presumption in favour of competence”, it is none the less intended, “within carefully defined limits, to be a generous settlement of legislative authority” (para 15). Perhaps this judicious statement should be borne in mind amid the political clamour for more powers to be devolved to Holyrood?

The Scottish Question — All the Developments, January-March 2012

The dominant constitutional story of the first quarter of 2012 has been the ongoing and unresolved argument over Scotland’s constitutional future.

In this post I summarise all the key developments.

1. Political background

Our story starts back in May 2011 when the Scottish National Party (SNP), led by Alex Salmond, won an unprecedented overall majority of seats in the Scottish parliamentary election. The electoral system devised for the Scottish Parliament was supposed to prevent majorities. In the previous elections (of 1999, 2003 and 2007) this worked: from 1999-2007 the Scottish Government was a coalition of Labour and Liberal Democrat, and from 2007-11 the Scottish Government was an SNP minority administration.

The SNP is in favour of independence for Scotland. It wishes to see an end to the Union of 1707 and for Scotland to leave the United Kingdom, becoming an independent state. The Labour, Liberal Democrat and Conservative parties are all opposed to this policy: in this (loose) sense, they are all Unionist parties (although this label applies comfortably only to the Conservative party: the Liberal Demcrats are really federalists, and the Labour party, while being strongly in favour of maintaining the Union, has come to think of itself as a Unionist party only recently). Nonetheless, I shall refer to all three parties as Unionist: such has now become common practice in Scottish political commentary.

The SNP’s policy of independence was never likely to be realised in the 2007-11 Parliament because there was a Unionist majority in the Scottish Parliament: the SNP administration was a minority government. This was the key change brought about by the results of the May 2011 election: there is now an SNP majority in the Scottish Parliament.

The SNP’s election manifesto for 2011 promised that there would be a referendum on Scottish independence during the lifetime of the present Parliament (which will have a five year term, running until 2016).

2. Legislative competence

Many constitutional and legal questions arise as a result of this. The first is whether the Scottish Parliament has the legislative competence under the Scotland Act 1998 to pass an Act that would authorise such a referendum. On this question, legal opinion is split. The UK Government insists that the Scottish Parliament does not have such legislative competence. The Scottish Government disagrees. The House of Lords Constiution Committee agrees with the UK Government. So do I. So does Lord Pannick QC (the Times, 19 January 2012), Iain Jamieson (the Scotsman, 20 January 2012), Aidan O’Neill QC and Prof Alan Page of Dundee Law School. But some of my colleagues in Scottish law schools prefer a different view. The House of Lords Constution Committee considered this view and explained why it should be rejected.

In this post I will not rehearse these arguments in detail. The previous paragraph is full of links that will take you directly to the relevant documents, where the arguments can be studied at length. All I will do here, on this issue, is to offer an outline.

The argument that the Scottish Parliament does not have the legislative competence to pass an Act triggering a referendum on independence is founded on the Scotland Act 1998. Section 29 of that Act provides that Acts of the Scottish Parliament (ASPs) are “not law” if they relate to reserved matters (or if they are otherwise outside competence). The Union of the Kingdoms of Scotland and England is expressly listed in Schedule 5 to the Act as a reserved matter. Any referendum on independence would relate to the reserved matter of the Union: any ASP that sought to trigger such a referendum would therefore relate to a reserved matter and would, for that reason, be outside competence and “not law”.

The counter-argument relies on two main points to seek to undermine this conclusion. First that under section 29(3) the question of whether a provision “relates to” a reserved matter is to be determined “by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances” (emphasis added). The purpose of an ASP that triggered a referendum on Scottish independence might be simply to test the opinion of the people of Scotland as to whether or not they would prefer independence, and its legal effect might be zero: a positive result in a referendum that was in reality no more than an opinion poll could not, of itself, change the law. The second counter-argument is that the bare words of section 29 and Schedule 5 should be interpreted “generously and purposively”, given that the Scotland Act is a “constitutional statute”, and given the instruction in section 101(2) of that Act that provisions of an ASP are “to be read as narrowly as is required” in order that they fall within competence. This aspect of the counter-argument relies on dicta of the House of Lords in Robinson v Secretary of State for Northern Ireland [2002] UKHL 32, considered in the book at pp 88-91.

Each element of the counter-argument is questionable. As to the first, is it not effectively met by the simple words of the SNP’s own manifesto from 2011, in which it was written (at p 28) that a yes vote in the referendum “will mean that Scotland becomes an independent nation”? Thus, the purpose of the referendum is not to test opinion, but to make a decision as to whether – or not – Scotland should leave the UK and become an independent state; and the effect of any yes vote in the referendum will be to deliver independence, a decision that has ample legal effects. As to the second element of the counter-argument, this cannot survive the judgment (handed down on 2 February 2012) of the First Division of the Inner House of the Court of Session in Imperial Tobacco v Lord Advocate [2012] CSIH 9. The First Division was unanimous that Robinson should be distinguished and that a “generous” or “purposive” approach to the interpretation of section 29 and Schedule 5 would not make it more likely that matters would be read as falling within competence. The reasoning of the court is summarised at paras 15 and 24-29 of the report of the House of Lords Constitution Committee.

3. The section 30 solution

The UK Government has no desire to use the law to prevent the Scottish Government from having its referendum. On the contrary, it wants to do precisely the opposite. That is, it wishes to use the law to enable the Scottish Government to stage the referendum that it clearly has a political mandate now to hold. Under section 30 of the Scotland Act 1998, the Crown may by Order in Council make amendments to the list of reserved powers contained in Schedule 5 to the Act. No such section 30 order can come into force until it has been approved by both Houses of the UK Parliament and by the Scottish Parliament.

On 10 January 2012 the UK Government published a consultation paper entitled Scotland’s Constitutional Future (Cm 8203). It contained a draft section 30 order that would confer on the Scottish Parliament the legislative competence to pass an ASP triggering a referendum.

The Scottish Government gave a mixed reaction to the draft section 30 order. They reacted angrily to that fact that, as they saw it, the UK Government was trying to dictate the terms on which the referendum could be held. In particular, argument broke out between the two Governments over the following matters: the date of the referendum (the UK would prefer 2013; the Scottish Government would prefer the autumn of 2014); the franchise (the Scottish Government wants 16- and 17-year olds to be eligible to vote in the referendum; the UK Government wants an existing franchise to be used, such as the franchise for Scottish parliamentary elections); the extent to which (if at all) the Electoral Commission should oversee the referendum (the Electoral Commission oversaw both the referendums held in 2011, but it is a UK body, not a bespoke Scottish body); and the question(s) to be asked on the referendum: should the referendum be confined to a question about independence, or should a second question also be asked about whether Scottish devolution should be enhanced (or maximised), substantially increasing the powers of the Scottish Parliament whilst keeping Scotland within the Union (see further on this issue below).

The Scottish Government set out its views in a consultation paper of its own, published on 25 January 2012 and entitled Your Scotland, Your Referendum. The Scottish Government’s consultation will not close until May. The UK Government’s consultation closed in March and its results are due to be published in April.

4. Where are we now?

At the same time as all of this has been happening, the Scotland Bill has been making its gradual way through the House of Lords. This is an important but generally overlooked Bill, which will implement many of the recommendations of the Calman Commission (see pp 229-31 of the book). Included within the provisions of the Bill are significant clauses that will enable the fiscal powers of the Scottish Parliament to be extended without the need to resort to further primary legislation at Westminster. This is important not least because enhancing the fiscal powers of the Scottish Parliament is one element of “devo-plus”, which is preferred by some commentators as a superior alternative to independence. Whether “devo-plus” should go beyond the powers contained in the Scotland Bill and, if so, how far beyond the Scotland Bill “devo-plus” should go are open questions around which there is precious little consensus at the moment either in Scotland or in Government.

Between “devo-plus” and independence there lies yet another alternative for Scotland: so-called “devo-max”, also referred to in some quarters as “full fiscal autonomy”. As I write this, “devo-max” is the preferred policy of no political party, albeit that there are some in the SNP who consider that it may be another useful stepping stone on the route to independence. Indeed, it is sometimes referred to as “independence-lite”.

5. And where next?

To date there has been no agreement between the two Governments on any draft section 30 order. Most of the disagreements can be relatively easily dealt with. It may well be, for example, that the UK Government will drop its objections to the timing of the referendum and to the extension of the franchise to 16- and 17-year olds. Likewise, it may well be that the Scottish Government will drop its objections to the Electoral Commission having the power to oversee the referendum. The real sticking point may be over the question: not the precise wording of the question, but this issue of whether there should be just the one question on independence or also a second question on some variant of devo-plus or devo-max.

The House of Lords Constitution Committee considered this question and concluded that this would be inappropriate (see paras 33-45 of its report). I wrote a personal submission to the UK Government’s consultation exercise (which you can read here: AT response to HMG on Scotland), in which I argued at some length that the referendum must be concerned only with independence. Arguments about the future development of devolution need to be dealt with, but they need to be dealt with separately and in a different way from arguments about independence.

Clearly, we have not heard the last of these arguments yet. This is set to be the big constitutional question of 2012.

 

AXA in the Supreme Court: Is the Sovereignty of Parliament Doomed?

The UK Supreme Court has handed down its decision in AXA General Insurance v Lord Advocate [2011] UKSC 46. The case raises critically important questions for the whole of the UK, and also some significant points of concern in Scotland. But please do not read this as a Scottish case only, or as a case which only the Scots need to worry about.

Earlier judgments in the case are summarised at pp 236-7 of the book. What the Supreme Court has ruled now supersedes what the Court of Session had ruled, and the extract on p 237 from the judgment of the Lord Ordinary now needs to be read subject to what the Supreme Court have said.

Introduction

The Damages (Asbestos-related Conditions) (Scotland) Act 2009, an Act of the Scottish Parliament, provided that pleural plaques and certain other asbestos-related conditions were actionable in Scotland for the purposes of damages in the law of personal injury. In 2007 the House of Lords had ruled in a series of English appeals that pleural plaques did not constitute recoverable damage for the purposes of the law of negligence (see Rothwell [2007] UKHL 39). AXA and other insurance companies challenged the Act of 2009 both on common law and on Convention rights grounds.

The challenge was unsuccessful in both the Outer House and the Inner House of the Court of Session (see [2010] CSOH 2, 2010 SLT 179 and [2011] CSIH 31, 2011 SLT 439, respectively). AXA’s appeal to the Supreme Court was likewise unsuccessful, a seven-strong panel of Justices ruling unanimously that the appeal should be dismissed. Substantive judgments were given by both the Scots on the panel: Lord Hope and Lord Reed. Lords Brown and Mance gave short concurring judgments, and Lords Kerr, Clarke and Dyson agreed with both Lords Hope and Reed. (Lord Reed is a Senator of the College of Justice — i.e., a judge of the Court of Session; he is one of two such judges to have sat in the Supreme Court since Lord Rodger (who died in June) was taken ill. Lord Rodger’s chair at the Court is formally vacant, but it has been advertised and it will no doubt be filled soon.)

Three issues of law arose on the appeal to the Supreme Court: (i) was the Act of 2009 violative of AXA’s Convention right to property under Article 1 of Protocol 1 to the ECHR (“A1P1″)? (ii) could an Act of the Scottish Parliament (“ASP”) be judicially reviewed under common law grounds of review and, if so, was the Act of 2009 irrational? (iii) did a number of individuals diagnosed with having pleural plaques have title and interest (i.e., standing) to be joined to the action as respondents?

The case is constitutionally significant for what the courts have said about the second issue. But before we get to that, let’s get the first and third issues out of the way.

A1P1

On the first issue the Supreme Court agreed with the Court of Session that the answer was no: A1P1 was engaged but it was not violated here. There was a legitimate aim for the interference with property, and the interference was proportionate. Property lawyers or other experts in property rights may have more to say about this, but the reasoning of the Supreme Court on this issue struck me as unremarkable.

Standing (of interest mainly to Scots lawyers)

On the issue of standing the Supreme Court changed Scots law. In England and Wales a party has standing to seek to judicial review if that party has “sufficient interest” in the matter. As we report at pp 712-3 of the book the courts in England and Wales have tended to interpret this requirement liberally and flexibly in recent years, such that it has become much rarer than it once was for parties to lose a case solely because they lack standing. In Scots law, by contrast, the test has been whether a party has “title and interest”. This test comes directly out of private law. It has tended to be applied rather strictly by the Scottish courts, so that there have been instances in recent years of claims falling at this hurdle in Scotland which would not have fallen at this hurdle in England and Wales (examples are given by Lord Hope at para 59 and by Lord Reed at para 166).

Both Lords Hope and Reed call time on all this and rule that the old phrase “title and interest” should no longer be applied in judicial review. The implication is that Scots law should more clearly and more closely resemble English law in this regard. Lord Reed goes so far as to suggest that “sufficient interest” should be the test in Scotland (para 171). Lord Hope says that a party should be required to show that he or she is “directly affected” (para 63). Whether this amounts to two ways of saying the same thing, or whether there is a difference of substance between Lord Hope’s formulation and that of Lord Reed is a matter that the Court of Session will no doubt have to address in the years to come.

Before we leave this point, it is worth noting that this is the second time this year that the Supreme Court has overturned an old and long-standing aspect of the Scots law of judicial review (the previous example was the overruling of Watt v Lord Advocate in Eba v Advocate General, on which see my posting of 29 July). In both instances the effect has been to further the harmonisation of the law north and south of the border; in both instances it is Scots law that is brought into line with English law, and not the other way around.

Judicial Review of Legislation (of interest to ALL UK lawyers)

And now to the heart of the case, from a constitutional point of view.

Section 29 of the Scotland Act 1998 provides that an Act of the Scottish Parliament (“ASP”) “is not law” if it is outside legislative competence or if it is incompatible with Convention rights or with EU law. The question posed in AXA was whether section 29 provides an exhaustive list of the grounds on which an ASP may be challenged in legal proceedings, or whether it is additionally possible to argue that an ASP may be unlawful on common law grounds of judicial review (i.e., illegality and irrationality, as defined by Lord Diplock in the GCHQ case). On the one hand the Scottish Parliament is a creature of statute with limited powers, just like many other public bodies whose actions and decisions are subject to judicial review. On the other hand, the Scottish Parliament is a Parliament, not an ordinary public body, it is democratically elected, and it has the power to make law, indeed to make Acts which, like Acts of the UK Parliament, require the Royal Assent before they come into force (see Scotland Act, s 28). Moreover, the legislative power of the Scottish Parliament includes the power to amend or repeal Acts of the UK Parliament, as long as this is within legislative competence. And, of course, Acts of the UK Parliament are not subject to common law judicial review on grounds of illegality or irrationality.

Or are they?

In AXA the Court of Session ruled that ASPs are potentially subject to judicial review on grounds of illegality or irrationality but only in the extreme circumstances that bad faith, improper motive or manifest absurdity could be shown (and no such thing could be shown here). This is the force of the Lord Ordinary’s opinion, as extracted at p 237 of the book; and the First Division of the Inner House agreed with this line.

The Supreme Court has taken a different approach. The key passages are paras 42-52 of Lord Hope’s judgment, and paras 135-54 of Lord Reed’s judgment. These passages repay close and careful attention. It is worth repeating that the other (English) Justices on the panel agreed with what Lords Hope and Reed said in these passages (with one (immaterial) qualification given by Lord Mance at para 97).

For Lord Hope, ASPs are in principle amenable to the supervisory jurisdiction of the Court of Session at common law (that is, they are in principle subject to judicial review) (para 47). Case law on the extent to which delegated legislation that has been approved by Parliament is subject to judicial review is of only limited help in the context of ASPs, according to Lord Hope: rather, he said, “we are in this case in uncharted territory” (para 48) and the issue therefore has to be addressed as one of principle. And while “the dominant characteristic of the Scottish Parliament is its firm rooting in the traditions of a universal democracy” (para 49), the “guiding principle”, for Lord Hope, was (as he had said in Jackson — see p 92 of the book) “the rule of law enforced by the courts”, this being “the ultimate controlling factor on which our constitution is based” (para 51).

Lord Hope states that, in the context of reviewing legislation, the courts should “intervene, if at all, only in the most exceptional circumstances” (para 49) but what is fascinating about his analysis of the circumstances in which the courts should intervene is that he does not seek to rely on the distinction between a sovereign Parliament (such as Westminster) and a non-sovereign Parliament (such as Holyrood). Rather, he emphasises what the UK and the Scottish Parliaments have in common. On the one hand they have in common “the depth and width of the experience of [their] elected members” (para 49), which is why judges should intervene only in extremis. But on the other hand they have in common “a government that enjoys a large majority” and whose party “dominates” (para 51), which is why the judges should reserve the right to intervene to quash legislation that, for example, sought to abolish judicial review or to “diminish the role of the courts in protecting the interests of the individual” (para 51). Lord Hope goes on: “Whether this is likely to happen is not the point. It is enough that it might conceivably do so. The rule of law requires that the judges must retain the power to insist that legislation of that extreme kind is not law which the courts will recognise” (para 51). What is to be noted about this reasoning is that it is not expressed to apply solely to Acts of the Scottish Parliament. It is expressed to apply to legislation generally including, apparently, to Acts of the UK Parliament.

And, as anyone who watched the Home Secretary’s speech earlier this month to the Conservative Party conference well knows, at least some Ministers in the current UK Government are clearly contemplating legislation designed to “diminish the role of the courts in protecting the interests of the individual”. We all know that the Human Rights Act is under review and, indeed, under threat.

Now, having said all this, Lord Hope does make it clear that, as he understands the rule of law, it is in conflict with the sovereignty of the UK Parliament and he also makes it clear that in this case the Court does not have to resolve that conflict, because it is concerned with legislation of the Scottish Parliament, and not with an Act of the UK Parliament. So here “the rule of law does not have to compete with the principle of sovereignty” (para 51). Nonetheless, Lord Hope has offered a clear steer that in the event of any such future conflict, he may well side with the Lord Steyn view in Jackson and not with the Lord Bingham view.

In conclusion, Lord Hope ruled that ASPs are not subject to judicial review at common law on grounds of irrationality, unreasonableness or arbitrariness. But rather than qualifying this conclusion, as the Court of Session had done, by reference to bad faith etc, Lord Hope qualifies it by reference to his general conclusions as to the principle that the rule of law means that judges should not recognise as law any legislation that seeks to abolish judicial review or to diminish the role of the courts in protecting the rights of the individual.

Lord Reed did not roam as freely into the terrain of the sovereignty of (the UK) Parliament as did Lord Hope. He confined himself to the issues arising on the facts of the case more strictly. But on the core issue of the amenability of ASPs to common law judicial review, Lord Reed was in broad agreement with what Lord Hope said. Thus, he agreed that, within the scope of its competences, the Scottish Parliament has plenary law-making power (para 146); he agreed that competent ASPs do not have to be passed for specific purposes or with regard to any specific circumstances (para 147); he agreed that this distinguishes ASPs from the acts and decisions of ordinary public bodies and that the ordinary principles of judicial review (as regards proper purposes, relevant considerations, and the like) “generally have no purchase” as regards ASPs (para 147); but he also agreed that if an ASP “offended against fundamental rights or the rule of law” then such legislation ought to be subject to common law judicial review (para 149). According to Lord Reed, the Scotland Act 1998 was not passed in a vacuum: rather, Parliament “legislated for a liberal democracy founded on particular constitutional principles and traditions. That being so, Parliament cannot be taken to have intended to establish a body which was free to abrogate fundamental rights or to violate the rule of law” (para 153). There was no suggestion of that in this case, so the common law challenge failed.

 

 

 

 

 

 

Cart and Eba: the scope of judicial review clarified

This note updates references in the book to R (Cart) v Upper Tribunal and to Eba v Advocate General for Scotland. The book (p 711) deals with the decisions of the Administrative Court and of the Court of Appeal in Cart, and of the Court of Session in Eba. Both were appealed to the Supreme Court, whose decisions in the two cases neatly solve the problems that these important cases had thrown up.

The issue in the cases is the scope of judicial review as regards the Upper Tribunal (on the scope of judicial review, see pp 710-11 of the book; on the Upper Tribunal see p 711). As reported in the book, the Court of Appeal (in Cart) and the Court of Session (in Eba) had taken diametrically different views on this question, in each case explained (in part) by the different jurisdictional histories of judicial review in English law and in Scots law. The Court of Appeal ruled that unappealable decisions of the Upper Tribunal could be judicially reviewed only in exceptional circumstances; the Court of Session considered that the right to seek judicial review in Scots law could not be so restricted.

The Supreme Court was able to hear argument simultaneously in both the English and the Scottish appeals (unlike the lower courts, which could focus only on one jurisdiction). In its judgments in the cases the Supreme Court has tried to steer a middle path between the excessively restrictive views of the Court of Appeal and Administrative Court, on the one hand, and the more liberal view of the Court of Session, on the other. What is at stake here is the attempt to balance two important principles of public law: first, the rule of law and, secondly, the recognition by generalist courts that particular matters of public administration are better left expert tribunals. As Lady Hale summarised it at para 33 of Cart, two principles need to be reconciled: the relative autonomy which Parliament has invested in tribunals; and the constitutional role of the court as the guardian of legality and due process. The rule of law would suggest that judicial review should not be restricted, but the principle that the expertise of tribunals should not be undermined would suggest that judicial review should be limited. The Supreme Court considered that the Court of Appeal had shown too much regard for tribunals’ autonomy and too little for the rule of law; and that the Court of Session had veered too far in the opposite direction.

The middle path unanimously adopted by the Supreme Court in both Cart and Eba avowedly aligns the availability (or scope) of judicial review in this context with statutory criteria governing the availability of appeals. Thus, judicial review will be available in respect of an otherwise unappealable decision of the Upper Tribunal either where the appeal raises an important point of principle or practice, or where there is some other compelling reason. Lady Hale said this of the path the Supreme Court was adopting:

It would recognise that the new and in many ways enhanced tribunal structure deserves a more restrained approach to judicial review than has previously been the case, while ensuring that important errors can still be corrected. It is a test which the courts are now very used to applying. It is capable of encompassing both the important point of principle affecting large numbers of similar claims and the compelling reasons presented by the extremity of the consequences for the individual.

Agreeing with Lady Hale, Lord Dyson added the following remark:

the scope of judicial review should be no more (as well as no less) than is proportionate and necessary for the maintaining of the rule of law … In my view … unrestricted judicial review of unappealable decisions of the [Upper Tribunal] is neither proportionate nor necessary for maintaining the rule of law.

The judgment of the Supreme Court in Eba was given by Lord Hope, who ruled that the approach set out by Lady Hale and Lord Dyson in Cart should be adopted also in Scotland, reminding the Court of Session that it “should be slow to interfere with decisions that lie within the expertise of specialist tribunals” (para 47).

There are two further points to note about Cart and Eba. The first is that the Supreme Court accepted that there was no attempt to oust the jurisdiction of the court in the Tribunals, Courts and Enforcement Act 2007, the legislation that had created the Upper Tribunal (ouster of judicial review is considered at p 714 of the book).

The second point, important for Scots lawyers, is to note that Watt v Lord Advocate was overturned by the Supreme Court in Eba. Watt v Lord Advocate is cited at p 669 of the book as authority for the proposition that the old distinction between intra vires and ultra vires errors of law continued to be important in Scotland long after it had been abandoned in England (owing to Anisminic). Lord Hope in Eba ruled (at para 34) that “the time has come for it to be declared that … Watt v Lord Advocate is incompatible with what was decided in Anisminic” and that “there is, in principle, no difference between the law of England and Scots law as to the substantive grounds on which a decision by a tribunal acts within its jurisdiction may be open to review”.

The Supreme Court did terrific work in Cart and Eba, proving its great value as a United Kingdom court. It took a hard look at both English and Scots law and made them (1) compatible with one another when they had threatened to grow apart in a way that would have generated significant problems, and (2) better. The result achieved by the Supreme Court is an improvement on what both the Court of Appeal and the Court of Session had ruled.

Take note, Mr Salmond?

Scottish Ministers and the Supreme Court

Alex Salmond, Scotland’s First Minister and Kenny MacAskill, the Justice Secretary in Mr Salmond’s Cabinet, have launched an extraordinary attack on the UK Supreme Court.

We consider political attacks on courts in the section on the independence of the judiciary in our treatment of the separation of powers in chapter 2 of the book. What follows here can be read alongside that section. As will become clear, this is one of the most egregious examples of ministers attacking judges that we have seen in the UK in recent years.

First, the terms of the attack. The First Minister (FM) was reported to have accused the Supreme Court of “intervening aggressively” in matters of Scots law. Two of the Supreme Court’s Justices are Scots lawyers (Lord Hope, the court’s Deputy President, and Lord Rodger). Both are senior members of the Court and they are widely recognised as being the outstanding Scots lawyers of their generation and, indeed, of being among the very best of the Scots lawyers ever to have been appointed to the UK’s highest appeal court. While the FM launched a personal attack on Lord Hope’s record of having overturned a number of decisions of the Edinburgh courts, Mr MacAskill complained — quite outrageously — that the non-Scots on the Court knew no more of Scotland than what they managed to pick up on their annual visits to the Edinburgh Festival.

Why? There are two answers to this: one immediate and the other tactical. First, the immediate reason behind the attack are two recent decisions of the Supreme Court, in the Cadder and Fraser appeals. In Cadder [2010] UKSC 43 a seven-strong bench of the Supreme Court unanimously overturned a seven-strong bench of the High Court of Justiciary about the compatibility of a particular aspect of Scots criminal procedure with Article 6 of the ECHR. The Edinburgh court had ruled that Scots law was compatible with Article 6; the Supreme Court ruled that it was not. In Fraser [2011] UKSC 24 five Supreme Court justices overturned the decision made by three judges of the Criminal Appeal Court in Edinburgh that Fraser’s appeal against conviction should be refused (his ground of appeal concerns the non-disclosure of evidence). Now, the highest court of appeal for Scots criminal law is normally the High Court of Justiciary. Under the Acts of Union civil matters may be appealed from the Court of Session (now to the Supreme Court: formerly to the House of Lords) but criminal appeals stay in Scotland and do not go south. But “devolution matters” (as defined in the Scotland Act 1998) fall within the jurisdiction of the Supreme Court and among devolution matters, of course, are arguments that Acts of the Scottish Parliament or decisions of the Scottish Ministers are incompatible with Convention rights. Cadder and Fraser reached the Supreme Court, despite their criminal context, because they raised a Convention rights (ie, a devolution) matter. Whether this means of “criminal appeals” (if that is what they are) finding their way to London is a constitutional necessity (given the nationwide — ie, UK-wide — nature of Convention rights) or is a constitutional violation (given what the Acts of Union say about Scots criminal law) is a matter of ongoing dispute between the UK and the Scottish Governments. The UK Government has already looked at it and commissioned an independent report. The Scottish Government will now repeat the exercise, with a different group of experts!

[A.T. EDIT, July 2011: the Scottish Government's review group published its findings in late June 2011: see here; the group broadly agreed with the conclusions of the UK Government's independent report, but wanted them to be tweaked; the matter is addressed in what is now clause 17 of the Scotland Bill (which has been passed by the House of Commons and will begin its passage through the House of Lords in the autumn); it may be that clause 17 of the Bill can be fairly easily amended to incorporate the tweaks wanted by the Scottish Government's review group; but it may yet be that the matter becomes fraught -- time will tell; meanwhile, watch this space!]

The tactical reason behind the SNP Ministers’ attack, however, may be unrelated to any of this. We know that the newly elected SNP Government is committed to holding a referendum on the future constitutional status of Scotland. We know further that the SNP would like to see full independence for Scotland as an option on that referendum (my own view is that they would like to see this as one of a number of options on the referendum, with something called “full fiscal autonomy” offered as an alternative — but that’s an issue for a different day…). Now, the SNP Government will be able to hold a referendum only if an Act of the Scottish Parliament (ASP) is passed conferring that power upon them. No-one really thought this likely until, of course, the SNP won its historic majority victory in May’s Scottish parliamentary election. Now, one assumes, it’s a near certainty. If/when such as ASP is passed later in the lifetime of the current Scottish Parliament, then the Advocate General (a law officer in the UK Government) has the power under section 33 of the Scotland Act 1998 to refer the legality (ie, the vires) of the ASP to … well, to the Supreme Court. Why does the FM wish now to begin to raise questions in the minds of Scots voters as to the legitimacy of the Supreme Court (which is what he is undoubtedly doing)? Could it have anything to do with his fear that the question of Scotland’s constitutional future will end up in that Court and, indeed, that the Court will prefer a narrow reading of the competence of the Scottish Parliament to legislate in a manner that bears on the United Kingdom constitution?

The case law on devolution was small scale during the first decade post-1998, but it is getting much more interesting now. And in every case coming out from the Court of Session of the Supreme Court, lawyers in both the UK and the Scottish Governments will be reading judgments with extreme care to see what hints and clues they may contain about what the judges will make of The Big Questions, should they one day come to court: (1) legally, may the Scottish Parliament trigger a move to independence? And (2) legally, what can the UK Government do to stop this happening?

This is for the future. The near future, mind. And, when it comes, it threatens to make all the constitutional change we’ve seen in the UK since 1997 look like child’s play.

For now, I’ll close with the words of the Dean of the Faculty of Advocates and the President of the Law Society of Scotland, who issued a joint statement condemning what the Scottish Ministers had said:

The independence of our judicial system and the need to respect the rule of law are fundamental aspects of Scottish society, as they must be of any democratic society. This is affirmed by the Judiciary and Courts (Scotland) Act, an Act of the Scottish Parliament which obliges the First Minister and the Justice Secretary to uphold the independence of the judiciary, including the Supreme Court of the United Kingdom.

Our judges must be free to decide cases independently, according to law and upon evidence. Any attempt to influence the outcome of litigation by reference to political wishes or a politician’s perception of popular opinion is a challenge not only to the courts but to the rule of law.

The Scottish Government talks about the unintended consequences of establishing the UK Supreme Court. The First Minister and the Justice Secretary need to carefully reflect on the consequences of what are perceived to be repeated and now highly personal attacks on respected members of the legal profession. Such comments contribute nothing to any sensible debate on how best to provide a justice system that properly and effectively meets the needs of our changing society.