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.

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Scottish Ministers and the Supreme Court