The Battle of the Nats - MacAskill's Supreme Misunderstanding

Lord Turnbull on the new
evidence in Nat Fraser's trial:
"if it had come to
light during the trial
it would have had to
have been deserted"

When Cadder saw the UK Supreme Court intervene over breaches of European Convention rights (as a devolution issue) in a Scottish criminal case, Kenny MacAskill was deeply scathing of what he perceived to be a profound attack on the independence of Scots law. He is at it again after the Supreme Court has quashed Nat Fraser's conviction for murder and remitted the decision over any retrial back to the High Court sitting as the Appeal Court. The apparent lack of understanding by MacAskill and others as to the constitutional context of this is rather worrying. There are three core elements which combine to explain not only why the UKSC is an appropriate forum to review cases like these, but also why opposition to its intervention is logically and legally inconsistent. The latter is especially true if, as is the case with Kenny MacAskill, the critics accept and even actively prefer that recourse goes straight to Strasbourg from the High Court.

The Act of Union - A UK Supreme Court is competent

Platitudes like "Scots law is independent" (invoked in a UK context) are lazily and all-too-frequently invoked in legal and political discourse. The context of a complex, multi-tiered international legal system renders it untrue. In practice Scottish legal autonomy was substantial until relatively recently, but I would tentatively argue that legal independence, far from being entrenched by the Acts of Union, has been a theoretical fiction since 1707.

That is not to say elements of the Scottish legal system lack substantial autonomy. Scotland has its own civil and criminal court systems and procedures and its own substantive law (e.g. the libel/defamation divergence). The problem is that many fail to understand the terms which underpin this autonomy. Two important parts of Article XIX of the Act of Union reads as follows:

"The Court of Session, or Colledge of Justice, do after the Union, and notwithstanding thereof, remain in all time coming within Scotland, as it is now constituted by the Laws of that Kingdom, and with the same Authority and Privileges as before the Union, subject nevertheless to such Regulations for the better Administration of Justice, as shall be made by the Parliament of Great Britain
...
That all other Courts now in being within the Kingdom of Scotland do remain, but subject to Alterations by the Parliament of Great Britain; and that all inferior Courts within the said Limits do remain subordinate, as they are now, to the supreme Courts of Justice within the same, in all time coming; and that no Causes in Scotland be cognoscible by the Courts of Chancery, Queens-Bench, Common-Pleas, or any other Court in Westminster-hall; and that the said Courts, or any other of the like Nature, after the Union, shall have no Power to cognosce, review, or alter the Acts or Sentences of the Judicatures within Scotland, or stop the Execution of the same"

The essence of this provision is hardly ambiguous. One of the major stumbling blocks to the passage of the Act of Union in the Scottish Parliament was the legal community's fears about Scottish legal institutions being assimilated into the English system. The provision protects against then existing English courts (and similar successors) from having jurisdiction to review decisions made by Scottish courts (i.e. the Court of Session in civil and the High Court for criminal proceedings). It further entrenches the existence and decision-making powers of said Scottish courts.

Why the criticism, then? It is simply factually inaccurate to characterise the UK Supreme Court as simply an "English" court. It came into existence through the consolidation of the judicial functions of the House of Lords and some of those held by the Privy Council, whose influence is not simply of English authority. It is composed of jurists from three "national jurisdictions" within the UK. It is a UK court arrogating "supranational" jurisdiction over the territory of England, Wales, Northern Ireland and Scotland. There is nothing in the Act of Union which prevents the development of such a court; indeed with respect to the Privy Council, the Queen is specifically empowered to retain and amend its functions as she sees appropriate under Article XIX of the Act of Union:

"after the Union, the Queen's Majesty, and her royal Successors, may continue a Privy Council in Scotland, for preserving of publick Peace and Order, until the Parliament of Great Britain shall think fit to alter it, or establish any other effectual method for that end"

Put simply, the Act of Union does not claim that any "Scottish" court commands absolutely final jurisdiction over any matter whatsoever. Certainly it provides that lower courts should not be elevated above their pre-Union positions. But the truth is that the UK Supreme Court, when dealing with matters in Scotland, is behaving exactly as the Privy Council did before it. It is no such inferior court! Nor too is it an English court under a contemporary guise. The UK Supreme Court falls outside of the scope of the terms of the Act of Union, thus the Act cannot exclude its jurisdiction in Scotland.

Privy Council's powers of review under devolution

Judicial Review of Devolution Issues
Privy Council 1999-2009
UK Supreme Court 2009-Present

There is no bar in principle to the UKSC reviewing matters from Scottish civil and criminal courts. What of the substance of the power of review? Clearly not all decisions are challengeable or else lower courts would be redundant. Certainly the High Court in Scotland (sitting as an Appeal Court) is the last resort of appeal in Scotland with respect to criminal matters, and it would be quite wrong, without specific empowerment by Act of Parliament to the contrary, for the UK Supreme Court to assume that position from it. But review is not appeal. It responds not to the court's decision, but to how it reached such a decision. Indeed in Allison v HMA [2010] UKSC 6 the Supreme Court opined that whilst they would have reached a different conclusion from the lower court, there had been no miscarriage of justice and that they were not in a position to overturn it.

The Scotland Act's construction provides for devolution of powers to subordinate institutions. In order to ensure those powers are not exceeded by devolved office-bearers, the Privy Council was empowered to review their acts and omissions. Acts of Scottish Ministers are covered, but so too are those of the Lord Advocate, at least in so far as he exercises powers bestowed by the Scotland Act rather than directly from Westminster legislation. It should be pointed out that such review powers were exercised by the Privy Council in criminal cases in Scotland (one such example being Flynn v HMA 2004 SC (PC) 1 in relation to sentencing) and there is absolutely nothing "new" about the UKSC responding to these petitions for review of devolution issues in criminal cases. This review is not appeal by the back door; it is of very narrow scope but a necessary consequence of attempts to reconcile Scottish legal autonomy within an accountable judicial framework.

The European Convention - which Court "knows best"?

Kenny MacAskill reckons UK Supreme Court justices'
knowledge of Scots law is "limited to a visit to
the Edinburgh Festival" - Lord Hope is not amused.

A consequence of the ECHR's status in law is that appeal to the European Court of Human Rights can only be initiated if all potential domestic remedies for review have been exhausted. In the UK the domestic effect to the Convention is provided predominantly through the Human Rights Act, but also in Scotland through s52 of the Scotland Act. The provisions are slightly different because they apply to different contexts. There is certainly a legitimate argument that Scottish institutions are held to a higher standard of review. Whilst a breach of the Convention oversteps devolved competence and renders any act a nullity with respect to the Lord Advocate, any act or omission which is initiated under UK Act of Parliament is not amenable to review (owing to the Westminster Parliament's theoretical supremacy).

Bypassing the UKSC and going straight from the High Court to Strasbourg not only fails to exhaust all potential domestic remedies, but it also fails to address the issue about which people seem so agitated. If the problem is that the UK Supreme Court is undermining the "supremacy" of the High Court (sitting as CoA) and by extension the "independence" of Scots law, the same is equally true of subservience to the European Court of Human Rights in Strasbourg, if not more so! Indeed it may have escaped Kenny MacAskill's notice, but the UK Supreme Court has two highly respected Scottish justices in Lords Hope and Rodger, who typically sit in every case relating to Scottish devolution issues. Both are former Lord Presidents and they are among, if not the, most experienced Scottish jurists in active service.

Compare and contrast with the European Court of Human Rights, which has no Scottish judges whatsoever. MacAskill's assertions that the Supreme Court somehow don't "understand" or "have regard to" Scottish legal tradition and structures fails to stand up to scrutiny and are frankly rather offensive. It is thoroughly inconsistent for the SNP to complain that the UK Supreme Court quashes criminal convictions because of ECHR violations whilst simultaneously arguing passionately in favour of that document and the court that was created to uphold it.

And finally...

Ehm... this one's definitely going
in the fiction pile

As a parting shot, I would like to point out the factual inaccuracy in a piece of reporting from Newsnet Scotland. Whilst openly partisan, their coverage is not usually inaccurate, but they incorrectly assert, as the basis for their article, that Lord Kerr is a Scottish justice and would have swung the balance of several Supreme Court decisions the other way on an all-Scottish panel. Lord Kerr is a Northern Irish jurist, has had no substantive involvement in the Scottish legal system and assumes a position in the Supreme Court off the back of his previous roles in Northern Ireland and of several years at the Bar in England.

Even if the assertion were factually accurate, it would accuse English judges of overruling Scottish justices at a Supreme Court level whilst conveniently forgetting that the ECtHR "overrules" the UK and Scottish courts on a whole host of issues routinely and with at most one domestic justice in a panel of up to 7. It all seems a little ironic that after the prisoner voting debacle was used to bash the "ignorant" foreign justices in Strasbourg, some of our politicians have turned on our very own.

If you've read to the end of this, well done, but for goodness sake get a life and go out and enjoy the summer (even if it is raining!)