Those rebellious Scots again: the Supreme Court and the Scottish Government

Whether it’s voting rights for prisoners or so-called ‘super-injunctions’, the Scottish media has over the past few months been full of commentary about the impact of the European Convention on Human Rights (ECHR) and the application of Strasbourg jurisprudence in the Scottish and UK courts. Why, it is argued by some, should the distinct British constitutional arrangement and its legal systems, with their long history and unique nature, be subject to a court staffed by judges from very different legal traditions?

In Scotland the debate has taken a very particular twist involving much fretting over a perceived threat to the independence and distinctiveness of the Scottish legal system; the alleged agent of assimilation being the Supreme Court of the United Kingdom. As in the Westminster/Strasbourg debate, the language has been heated. The First Minister is reported as having described the Supreme Court as ‘an institution which is undermining the integrity of Scots Law’, suggesting that the views of Scottish politicians on controversial issues should take precedence over the views of the Supreme Court on the premise that they ‘at least went to the bother of being elected’. The Scottish Justice Secretary also suggested that the Scottish Government might withhold its share of funding for the Supreme Court where it has overturned cases from Scotland where leave to appeal had been denied by the Scottish courts.

The political debate has engendered a fairly heated discussion in the legal community and among human rights activists in Scotland where alleged personal attacks on Scottish judges appointed to the Supreme Court have been particularly condemned.

Unsurprisingly perhaps, the First Minister has appointed an independent review group (IRG) consisting of three prominent retired members of the judiciary and a leading academic, to look at the role of the Supreme Court and make recommendations for change.

But what is really at the heart of the debate? Is it just a question of the Court making decisions with which politicians are uncomfortable? There is nothing particularly new in that. Or is there indeed a constitutional issue that needs to be addressed? And if there is to be change, what is being recommended?

The starting point in this recent debate is the Scotland Act 1998. This is the Act that established the Scottish parliament and effectively provides a written constitution for Scotland, in that it defines the areas of government that have been devolved to the Scottish parliament and consequently to the Scottish Government. Section 29 of the Act provides that an Act of the Scottish parliament is not law if it is outside the legislative competence of the parliament. It also provides that legislation will be outside, or ‘outwith’, the competence of the Scottish parliament if it is incompatible with any of the rights of the ECHR signed up to by United Kingdom or with Community law. Section 54 of the Act provides that functions that are outwith the legislative competence of the Scottish parliament are also outwith the devolved competence of the parliament. The Scottish ministers are therefore required to act in accordance with ECHR rights and Community law.

So, essentially, any purported Act of the Scottish parliament or executive Act of the Scottish Government that breaches the protected ECHR rights is invalid.

Previously challenges that raised devolution issues could be determined by the judicial committee of the privy council but in 2009, this role was subsumed into the new Supreme Court as part of the reforms instituted by the Constitutional Reform Act 2005.

The Scotland Act also provides that Acts of the Scottish Government’s law officers, the Lord Advocate and the Solicitor General, are reviewable where ECHR rights are infringed. The route is the same as for other devolution issues – to the Supreme Court. This means than any Act of the Lord Advocate, including decisions about prosecuting crimes, may be challenged where issues arise regarding breaches of human rights. While Scottish criminal cases had not previously been appealable to the House of Lords, criminal convictions can now be challenged in the Supreme Court – not as criminal appeals alleging miscarriages of justice, but as constitutional appeals seeking to have the manner in which the cases are prosecuted ruled invalid. This may be something that had not been anticipated when the Scotland Act was drafted but it is nonetheless something that criminal defence and human rights lawyers were quick to identify. This resulting stream of criminal appeals heading south of the border are regarded by some as an affront to the independence of Scotland’s legal system, which had not previously provided for the intervention of the House of Lords in Scottish criminal cases.

In October of last year the significance of the change was highlighted in the high-profile decision of Cadder v HMA [2010] in which the Supreme Court held that the Lord Advocate had breached an accused’s Article 6 rights (protection against self-incrimination). Specifically, the prosecution had relied on evidence obtained in a police interview undertaken without the suspect having had access to legal advice (there being no right in Scotland to speak with a solicitor at that stage in the criminal process). In reaching its decision, the Supreme Court rejected the argument that had been unanimously accepted by the Scottish High Court of Justiciary (sitting as a Court of Criminal Review) that an accused’s Article 6 rights were adequately protected by other features of Scots criminal procedure, such as the distinctive Scottish requirement for corroboration of evidence. The case caused a media furore and the Scottish Government sought to address the fall-out caused by the case by introducing The Criminal Procedure (Detention, Legal Assistance and Appeals) Bill as emergency legislation, with the Justice Secretary advising members of the Scottish parliament that it was vital to act after concern was raised that almost 3,500 cases could be open to appeal under the Cadder ruling.

The case of Fraser v HMA [2011] followed in the wake of Cadder. In Fraser the Supreme Court overturned another decision of the Scottish High Court, holding that the Court had applied the wrong legal test when refusing an appeal on the basis of non-disclosure by the Crown of evidence that might have weakened the prosecution case.

A significant issue in both Cadder and Fraser is that, in each of these cases, the Scottish High Court had refused leave to appeal to the Supreme Court, but nonetheless the Supreme Court exercised its power of intervention under the Scotland Act thereby dispensing with the consent of the Scottish courts. It is the exercise of this discretion by the Supreme Court that has drawn criticism, from some quarters, as reflecting a disregard by the Supreme Court of the distinctive features of the Scottish legal system and its courts.

There is, as always, more than one side to the debate. Others, including members of the legal profession and human rights activists, take a different view. For them, the Supreme Court has been shedding some much needed light onto areas of Scots criminal procedure which require attention – and, in any event, changes to the Scottish legal system are an inevitable part of our commitment to the ECHR. Instead of attempting to cut off the route to London, they suggest politicians and the legal establishment should instead be thinking carefully about the implications of the Cadder and Fraser judgments for reform in Scotland.

After Cadder and Fraser, the Scottish Government initially appeared to argue that the jurisdiction of the Supreme Court in Scottish criminal appeals should be removed altogether, suggesting that the Strasbourg Court was better placed to deal with such matters. A number of senior politicians also expressed concern that the Supreme Court bench in a Scottish case inevitably comprises a minority of Scottish judges and that the power of the Supreme Court to intervene without leave in Scottish criminal appeals cases was in stark contrast to the situation in the English Court of Appeal.

Supporters of the current role of the Supreme Court query whether the Strasbourg Court, with no Scottish judges, would make a better fist of Scots law than the Supreme Court, which includes two highly experienced Scottish judges – many considering some Scottish input to be better than none at all. They also question whether bypassing the Supreme Court to join the six-year backlog of Strasbourg cases represents a diminution of access to justice. Supporters cite the experience and expertise the Supreme Court has developed in human rights cases, maintaining that the decision in Cadder was justified and that the Supreme Court had rightly decided that the High Court of Justiciary was simply wrong in its assessment of what the Strasbourg Court’s view would be.

This is not the first time that the role of the Supreme Court in the Scottish legal system has been questioned. Following the UK general election in May 2010, the Advocate General (the Scottish law officer for the UK government) formed an expert group to review the situation as part of the proposed Scotland Bill, which is intended to reframe the constitutional settlement. The expert group expressed the view that the human rights jurisdiction of the Supreme Court over Scottish criminal trials had arisen in a ‘constitutionally inept’ manner but pointed to the positive benefits of the court’s jurisdiction – in particular, the desirability of having a consistent UK approach to compliance with the ECHR. However, to tidy up the procedure and bring it into line with procedure in England and Wales, the group recommended that Acts of the Lord Advocate in prosecuting crime on behalf of the Crown should no longer be subject to review on devolution issues. Instead, there ought to be a new statutory appeal process provided for the Supreme Court to hear criminal appeals from Scotland, but only where a question arises as to compliance with ECHR rights. The group also recommended that the power of the Supreme Court to hear cases where leave to appeal had been denied by the Scottish Courts ought to be maintained.

The Scottish Government’s IRG recommends a different approach. Although yet to publish more than an interim report, the IRG seems to agree with many of the conclusions of the Advocate General’s group. However, it does not favour the retention of the Supreme Court’s ability to hear appeals without the leave of the Scottish courts. Instead the IRG recommends the introduction of a certification process under which the Scottish High Court would make a declaration on whether the issue being appealed is one of ‘general public importance’ and ‘ought to be considered by the Supreme Court’. Only where the High Court decides that these tests are met will access to the Supreme Court be available. The IRG also recommends that the Supreme Court’s powers to dispose of cases should be limited to remit back to the Scottish courts for reconsideration. The final decision on the matter would therefore be taken in Scotland. The debate continues.

JUSTICE, a human rights group whose intervention in the Cadder case drew praise from the Supreme Court, has produced its own response to the IRG’s interim report. JUSTICE cautions against the proposed certification process, referring to what it calls the High Court’s repeated refusal to grant leave in cases where the Supreme Court has subsequently intervened and has overturned the High Court’s decision, as well as emphasising that such cases would proceed to Strasbourg if the proposals were to be adopted – with additional delay and uncertainty. The JUSTICE response also makes the point that much emphasis is placed by the IRG on the need to have parity between the Scottish and English criminal courts. It notes that the Human Rights Act 1998 creates a route by which decisions of the English courts (as well as the decisions of prosecutors) may be challenged on human rights grounds all the way to the Supreme Court. For this parity to be maintained, a similar route to challenge the decisions of the Scottish criminal courts would be needed. The power to legislate on these issues lies with Westminster, not the Scottish parliament. Nevertheless, in accordance with the Sewel Convention, the UK government will not legislate for Scotland without the consent of the Scottish parliament. It is therefore likely that there will be much discussion and debate before any sort of deal is hammered out.

There is also likely to be further political argument. Supreme Court decisions are awaited on several Cadder-related criminal cases. No doubt, the political machinations towards a change in the Supreme Court’s role in Scottish criminal appeals are likely to resume when the respective parliaments return from recess. Change seems inevitable – both UK and Scottish governments have made that much clear. Exactly what we can expect remains to be seen. However, unless or until there is a more radical change in the constitutional settlement between Scotland and the UK, there seems little likelihood of a wholesale removal of the Supreme Court’s appellate jurisdiction. For at least the foreseeable future, Scottish lawyers will be regularly boarding the sleeper to London to argue Scots Law in front of the UK’s highest court.