17 May 2012

Can Holyrood repudiate the UK Supreme Court's civil jurisdiction?

I've written before about how the creation of the UK Supreme Court in 2009 was an opportunity taken by the new Unionist stylists to promote a novel judicial imagery of an enduring United Kingdom. Evicted from their scarlet seats in the House of Lords, the law lords sitting in the new Court set up in Middlesex Guildhall needed fresh symbols and seals for their new institution. The options before them were manifold. They might have depicted blindfolded Dame Justice, or the book of the law, and swords and scales like the European Court of Justice. They might have eschewed these conventional signs altogether, and taken inspiration instead from the Canadian Supreme Court which employs a simple "CS" style, like the French Cour de Cassation, or like the Americans, emphasise already familiar national imagery, with a modified version of the instantly recognisable arrow and laurel wielding bald eagle, replete with stars and stripes. 

In the event, the Union flag was passed over, as were the more regal and heraldic adornments of the Royal Courts of Justice or the Court of Session.  Instead, the new UK Court crest combined the mingling roots of a rose, a thistle, a leek and a flax flower, united in an everlasting circle under the Crown.  The logo of an important but obscure public institution obviously cannot command popular commitment to continuing union, but it buttresses the wider project.  Interestingly, however, it occurs to me that the Constitutional Reform Act 2005 might now present a political opportunity for Nationalists seriously to loosen the thistle that looks so firmly planted there. 

I have an evil plan. Or at least a devilish cunning one. I doubt that the failure of the Civil Appeals (Scotland) Bill in 2006 was a major or memorable political moment for many of you. A private member's Bill introduced to Holyrood by Adam Ingram of the SNP, it proposed to end civil law appeals from the Court of Session to the Judicial Committee of the House of Lords as was, whose jurisdiction has now been assumed by the UK Supreme Court. Had it been successful, Ingram's law would have ended a centuries old right of appeal from Edinburgh to London.

My argument is simple. If the SNP government wants to, there seems to me to be a very strong argument that it is now within Holyrood's legislative competence unilaterally to cut Scots civil appeals to the new UK Supreme Court. The general aims of Ingram's Bill can be revived, and with the aid of the government's majority in the chamber, should be perfectly realisable, if there is a will to it.  While the main inter-institutional controversies during this parliamentary session have concerned the UK Court's jurisdiction to hear and decide Scottish criminal appeals on human rights grounds - which Holyrood is powerless to prevent - a close read of the Scotland Act suggests reform of the Court's civil jurisdiction would now be perfectly intra vires.

So why did Mr Ingram's Bill fail in 2006, and what has changed in 2012?  Under the provisions of the Scotland Act 1998, before any Bill is introduced in Holyrood, the Presiding Officer must declare that the Bill falls within the legislative competence of the parliament (§ 31(2)). In the case of the Civil Appeals Bill, George Reid found that its provisions were not within the parliament's competence. His view, based on legal advice, is rather densely set out here.  He noted:

"... the reason for this view is that in my opinion these provisions relate to the Constitution. The Parliament of the United Kingdom, including the judicial functions of the House of Lords, is reserved under paragraph 1(c) of Schedule 5 to the Scotland Act 1998. Section 29(2)(b) of the Scotland Act 1998 states that a provision is outside the legislative competence of the Parliament if it relates to reserved matters..."

Frazer McCallum explained this in rather more comprehensible terms his SPICe briefing of the 16th November 2006...

"The primary reason advanced by the Presiding Officer for his view on legislative competence relates to the fact that the Bill seeks to amend the judicial functions of the House of Lords. It does this by seeking to end the power of the House of Lords to deal with Scottish appeals. Thus, it is argued that the Bill is effectively seeking to amend some of the functions of the United Kingdom Parliament. Paragraph 1(c) of Schedule 5 to the Scotland Act 1998 provides that the United Kingdom Parliament is a reserved matter and thus would not be within the legislative competence of the Scottish Parliament. When the relevant provisions of the Constitutional Reform Act 2005 are in force, the jurisdiction of the House of Lords in Scottish civil appeals will transfer to the new Supreme Court. The Supreme Court will not be part of the United Kingdom Parliament. Any future proposal in a bill which sought to remove the possibility of an appeal to the Supreme Court would have to be closely scrutinised as regards legislative competence."

Quite so. And not such an esoteric subject now, is it? Due to George Reid's legal reasoning, the civil appeal to the House of Lords, and subsequently the UK Supreme Court, continued and continues to this day. Yet in our times, with a majority of Nationalists in Holyrood, issues of jurisdiction - usually the dry preserve of the legally curious - have taken on a much more political complexion.  And vitally, the objections which proved fatal for the measure in 2006 no longer obtain. To my eye, the UK court looks to have little legal defence against a Nationalist parliament, minded to repudiate its capacity to make learned disquisitions on Scots civil law. And here's why.

General powers reserved to Westminster are set out in Schedule 5 of the Scotland Act 1998. First to appear under this heading is "the Constitution". However, despite their "generality", the terms of the constitutional reservation are quite specific, reading as follows...

1. The following aspects of the constitution are reserved matters, that is—
  • (a) the Crown, including succession to the Crown and a regency,
  • (b) the Union of the Kingdoms of Scotland and England,
  • (c) the Parliament of the United Kingdom,
  • (d) the continued existence of the High Court of Justiciary as a criminal court of first instance and of appeal,
  • (e) the continued existence of the Court of Session as a civil court of first instance and of appeal.

Thanks to the approach to devolution taken by Donald Dewar, the Scotland Act 1998 grants such powers to Holyrood as are not explicitly reserved to Westminster. Thus, for example, Holyrood found climate change within its legislative competence, and enacted accordingly. The language of this section seems to me to be eminently clear. By stating that "the following aspects of the constitution are reserved" - and naming five reserved subjects - the language of the Scotland Act explicitly recognises a category of constitutional issues that are not reserved and are thus within Holyrood's legislative competence. Adam Ingram's Civil Appeals Bill failed because the Judicial Committee of the House of Lords, as was, sat as part of the Parliament of the United Kingdom. No longer. Under the Constitutional Reform Act of 2005, the UK Supreme Court was founded - and the Law Lords packed up their worldly goods and crossed the road to the Court's new home in Middlesex Guildhall.  And critically, they left their reserved protection behind them.

The key question is this. If the UK Supreme Court is no longer part of Westminster, and thus no longer subject to the specific constitutional reservation under Schedule 5(1)(c) of the Scotland Act, how could Holyrood be prevented from ousting their civil jurisdiction? Is the civil jurisdiction of the UK Supreme Court still a "reserved matter"? I think there is a strong argument that it is not - and it is thus within Alex Salmond's powers, substantially to diminish the Court's jurisdiction. Or at least, to give it a brave and politically pungent go.

What construction of the legislation could prevent Holyrood from doing as it pleased and eliminating Scottish appeals? It would require, I think, an artificial reading of Schedule 5's specific constitutional reservations, and the reading in of a much broader idea that "constitutional issues" not specifically enumerated in the Scotland Act can attract the same "reserved" character and protection from amendment by Holyrood as those explicitly given - Crown, Union, Parliament and so on.  As I've already argued, however, the language of the Scotland Act does little to commend this statutory construction. Talking about "aspects of the constitution being reserved" seems explicitly to accept there are some aspects of the constitution which are devolved to Holyrood.

Alternatively, you might try to argue that the UK Supreme Court inherits not only the House of Lords' judicial jurisdiction, but also some implicit "reserved" protection under the Scotland Act.  If that line of contention looked forlorn, you might delve into the old statutes to try to recover and put to work some ancient claim about "fundamental constitutional rights" to review in London of decisions made by Scottish civil courts. You might get up on his hind legs and lend your lungs to it - but I don't see any evidence in the text of the law which supports the proposition that Holyrood's legislative competence should be curtailed in this manner.  Ironically enough, if it became a point of litigation, it would fall to the UK Court to assess the extent of its own jurisdiction, and the Scottish Parliament's ability to change it.

Equally significantly, the UK government and parliament made no attempt in its new Scotland Act 2012 to amend Schedule 5 in this respect (and I kept schtum during their deliberations, lest they be inspired to do so), while the Constitutional Reform Act made no amendment to the Scotland Act, nor any reference to the UK Supreme Court as "constitutional" inheritor of the parliamentary reservation which stymied Ingram's efforts in Holyrood's second session. To have included such a phrase would be straightforward, amid all of the other changes affected by the 2005 Act, but instead, it only provides that... 

"... an appeal lies to the Court from any order or judgment of a court in Scotland if an appeal lay from that court to the House of Lords at or immediately before the commencement of this section" (Constitutional Reform Act 2005 § 40(3))

Let's not get ahead of ourselves.  There are likely to be complexities. Indeed, I expect that a truly horrifying list of enactments contain some reference to the jurisdiction of the UK Supreme Court - and some of these issues may well "relate to reserved matters" under the Scotland Act for other reasons. It is proper, joyless lawyer's work. Yet given the political background, given the SNP's majority in Holyrood, the party's vexation with the UK Court's jurisdiction and the desire to make such jurisdiction as the Court retains as exceptional as possible, revisiting the Civil Appeals Bill strikes me as an obvious wheeze. It doesn't even call for jiggerypokery. Read Reid's reasoning. On the simplest construction, the underlying legal situation which vetoed the legal competence of the Bill in 2006 no longer obtains, and the Court now looks very vulnerable to Scottish reforms aimed at minimising its judicial sway. This thistle's roots aren't nearly as deeply planted in our constitution as the Supreme Court's artists clearly hoped.

12 comments :

  1. "Equally significantly, the UK government and parliament made no attempt in its new Scotland Act 2012 to amend Schedule 5 in this respect (and I kept schtum during their deliberations, lest they be inspired to do so)"

    You are indeed a cunning chap! Oh, I'd absolutely love this to happen.

    Have you, by any chance, directly put forward this suggestion to someone in the party who might have an interest in taking this on? Christine Grahame perhaps?

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  2. Alternatively, Her Majesty may well consider it necessary or expedient to reserve the question of the UK Supreme Court’s jurisdiction to Westminster (i.e. an Order in Council made pursuant to s.30 of the 1998 Act) :p

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  3. Aileen McHarg17 May 2012 16:52

    Very interesting. The SP wouldn't be able to remove the Sup Ct's devolution jurisdiction, but that would leave it as truly a constitutional court in both civil and criminal matters.

    One possible fly in the ointment: might this be interpreted as an attempt to reduce access to the courts of the sort that Lord Hope had in mind in AXA, and hence ultra vires at common law?

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  4. Take this in the best possible way:- you sneaky bastard i love it!

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  5. Doug - Ms Grahame's a bit of a loose cannon and I'm not sure anyone in the High Command would wish to trust her with this. Besides, she has her hands full with the Justice Committee. And they will have a full-time job with the lunatic Carloway proposals abolishing the requirement for corroboration when the Government gets round to putting them forward. I imagine Mr MacAskill will need so much political capital to push through that crazy nonsense on behalf of his masters at the Crown Office that he will have little to expend on this, more worthwhile project though it is. For what the Supreme Court row of last summer showed up very clearly was how little the Law Society and the Faculty trusted our own judges, and how keen they were and are to preserve as much London jurisdiction as possible. Really, only in Scotland could the representatives of the national legal profession show such eagerness to submit to the jurisdiction of their oldest enemy...

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  6. Doug,

    If you are interested in seeing this acted upon, I can only suggest that you direct the attention of your representatives towards the possibility I've outlined. While pushing legislative competence in others areas, many Nationalists seem to approach the Scotland Act's limitations rather too gingerly. I imagine some folk just assume it isn't permissible.

    Alistair,

    While you are of course correct that Westminster could amend Schedule 5 - or pass legislation under its concurrent powers to pass laws for Scotland - I merely note that s.30 orders are generally passed with consent, in line with the expectations of the Sewell procedures for legislation. The vital question is, why can't the Scottish parliament determine the general structure of civil law for Scotland, including appeals? It is one of Holyrood's core competencies, and it would be outrageous for Westminster to try to countermand that, without consent.

    Aileen,

    An interesting point, that last one, which occurred to me as I was typing this up. I should have thought it would be resolvable by inserting an additional level of appeal in the Court of Session in the legislation curtailing the UKSC's jurisdiction. It would thereby ensure a continuing three-tier access to courts and appellate courts for cases raised at first instance in the Outer House of the Court of Session. On twitter, we were mooting the possibility of sharpening the distinction between the first and second divisions of the Outer House, effectively turning the first division into the apex civil court for Scotland. This would, however, probably require the appointment of additional judges to the Session bench, to ensure adequate levels of review. Say 1 judge in the Outer House, reclaiming to a tribunal of three judges of the Second Division of the Inner House, with five in the final, first division, Lords President and Justice Clerk continuing to preside over their respective divisions.

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  7. Sorry, that should have read "sharpening the distinction between the first and second divisions of the Inner House", obviously.

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  8. You may wish to check out http://www.publications.parliament.uk/pa/ld199798/ldhansrd/vo980721/text/80721-32.htm, being the Lords Hansard for 21 July 1998. It reports a discussion on what is now the Scotland Act 1998. At Col 856, Lord Hardie assures their noble Lordships that "It is our [the then UK Labour Government's that is] intentin that the Scottish Parliament should be able to legislate on whether there should be an appeal to the House of Lords and, if so, in what cases: that is to say that the parliament should have the right to abolish the right of appeal in civil cases or to extend the right of appeal in criminal cases[!], if the parliament considered that to be appropriate. Given that the parliament would be free to legislate generally in respect of the civil and criminal legal system in Scotland, it would be nonsense to put beyond the legislative competence of the parliament decisions of what should be the ultimate court of appeal, either in civil or criminal jurisdictions." At Col 857-8, he goes on to say, "I sought to explain to the Committee that as the whole system of criminal and civil justice in Scotland is to be devolved as part of the responsibility of the Scottish parliament because of the separate system of law which we have in Scotland, it is appropriate that the parliament should decide what is the ultimate court of criminal appeal. As I indicated, it would be open to the parliament to decide that that could be extended to the House of Lords on criminal matters. Equally, as regards civil matters, it would be open to the parliament to decide that there should be no right of appeal from the Court of Session sitting as an appeal court. These matters are devolved to the parliament." The context was an amendment by Lord Mackay of Drumadoon explicitly to reserve "the continued existence of the House of Lords as a civil court of appeal" - an amendment which he dropped. So, we already have the Pepper v Hart stuff...

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  9. Preserving first and second tiers of appeal would be relatively easy if all ordinary civil actions were required to start in the sheriff court. (There could be a limited list of exceptions -- eg judicial review -- where Court of Session first instance jurisdiction was preserved.) The first tier of appeal could be to a bench of three sheriffs principal (the present situation of an appeal to a single sheriff principal is an absurdity). The second tier of appeal would be to a Division of the Inner House. Each Divisions now consists of five judges, so a bench of five would be possible, though I'd be happy with three or four (for an example of a Division of four see Melon v Hector Powe 1980 SC 188 -- in which, incidentally, I appeared in both the First Division and the House of Lords and is one of the few reported cases in which I feature on the winning side).

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  10. Then again, can I point to the obvious? If Scotland decides on independence...!

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  11. Am Firinn,

    Interesting, many thanks for the link, and for having a rummage through Hansard. Curious too that it didn't occur to the Noble Lords that the other provisions of the schedule 5 might prevent the reforms they were envisaging...

    Robert Black,

    All alternative and perfectly respectable approaches. Perfectly feasible.

    Barontorc,

    No harm in a "belt and braces" approach!

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  12. There's a legal problem with Professor Black's suggestion of requiring all actions to begin in the Sheriff Court, namely para 1(e) of Schedule 5 to the Scotland Act 1998, which reserves "the continued existence of the Court of Session as a civil court of first instance and of appeal".

    LPW's contention that Holyrood could abolish appeals to the SCUK is surely correct. It's baffling that Salmond has never publicly mentioned this. I can only conclude, with LPW, that the SNP aren't that good at, or interested in, looking into what the Scottish Parliament's powers are.

    About Alistair's point, an s30 order would require Holyrood's consent (under Schedule 7), so Westminster would have to legislate to remove this competence against Holyrood's will.

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