Salmond's self-defeating legal defence?

This week, Scottish legal magazine The Firm referred to "the escalating" row about the UK Supreme Court's jurisdiction in Scottish criminal cases. I must say, this reads just a touch like wishful thinking to me. Although the controversy hasn't fizzled out, the altercation has lost much of its ad hominem heat, despite the best efforts of scallywag journalists to keep the embers glowing. Judicialisation of controversies is well-kent for its becalming tendencies. You may recall that, setting out their preliminary findings, the Review Group chaired by Lord McCluskey - and including Professor Neil Walker, Sir Gerald Gordon and Sheriff Charles Stoddard - concluded...

52.  In our view it is anomalous that the High Court of Justiciary, which for so long has been recognised as the “apex court” in criminal cases originating in Scotland, should find that, as a result of a devolution statute, it has been placed under a broader and, in the light of developing practice since 1998, a more intrusive jurisdiction than has been created for the rest of the UK in relation to applying the law governing human rights issues in criminal cases.

As you will recall, this Group was set up by Alex Salmond, with the following terms of investigative reference...

"To consider and assess the mechanisms created under the Scotland Act 1998 and the Human Rights Act 1998, and developed since then, for applying Human Rights law to criminal cases in Scotland, including particularly the regulation, subject matter and scope of appeals from the High Court of Justiciary to the Supreme Court of the United Kingdom; To consider the criticisms of and various suggested amendments to those mechanisms in light of current assessments, including criticisms, of their operation; and to advise on the ways in which they might best be altered, if appropriate, by legislation or otherwise, to ensure Scotland's unique system of Criminal Law and Procedure is fully protected, within the context of the accepted need for that system to comply with the Human Rights Act."

The Review Group are now soliciting views from the public common, with a view to producing their final report by the autumn.  They pose the following quandaries...

1. Should the law be amended along the lines of our suggested amendment (4A) (see our report) to the new section 98A (added to the bill on June 22), so as to make it an essential pre-condition of an appeal to the Supreme Court in Scottish criminal cases that the High Court of Justiciary has granted a certificate that the case raises a point of law of general public importance?

2. If YES, to question 1, why? If NO to question 1. why not?

3. On the assumption that such a pre-condition were introduced into the legislation, should the High Court bench that decided the appeal in respect of which leave to appeal is sought be alone responsible for deciding the application(s) for leave and for the necessary certificate, or should there be a statutory requirement for that court to consult other High Court judges (How many?) on the question whether or not the case raises such a point of law?

4. Should leave/permission be automatically granted if the decision of the judges constituting the court that has decided the appeal is not unanimous?

5. Should the current Scotland Bill be amended to alter and re-define the jurisdiction of the Supreme Court in such cases in any of the following ways:

(a) by restricting appeals to the Supreme Court to cases which have been completed, i.e. the trial and appeal processes have been finished;

(b) (as an exception to (a)) by allowing the High Court of Justiciary at any earlier stage in the criminal process to invite the Supreme Court to answer a specific (preliminary) question as to whether or not a defined process or set of circumstances would constitute a violation of a 'Convention' right;

(c) by enabling the Supreme Court to give a binding ruling only on the point of law raised with the case then remitted to the High Court of Justiciary for further procedure;

(d) by empowering the Supreme Court to re-formulate the specific question before ruling on the matter.

6. Would there be value in providing, whether by legislation or by convention that the Supreme Court will sit in Scotland in Scottish cases and/or have a majority of Scots on the bench in such cases?

7. Is there anything that you would wish to add?

If you have any thoughts on any of these points you wish to bring to the Review Group's attention, you should send them to independentsupremecourtreview@scotland.gsi.gov.uk by the 12th of August. Question (6) will particularly catch the eye, since characterisation of the UK Supreme Court as a London-based institution has been a persistent feature of Alex Salmond and Kenny MacAskill's rhetoric in their criticisms of its jurisdiction. Somehow, I can't imagine that the UK Justices will be particularly keen to abandon their seat in Middlesex Guildhall and schlep north to conduct hearings on all Scottish appeals. Although McCluskey's group are primarily examining human rights based appeals from the High Court of Justiciary, we should remember that the UK court enjoys final jurisdiction in Scottish civil cases too, and any such convention that they convene in Edinburgh would affect those cases too. 

Secondly, I know a number of folk are sympathetic to the idea that there should be a majority of Scots judges in Scottish cases before the UK Court.  The fact that, at present, there is a ruling majority of English judges on Scottish cases - even if lead in judgment by an eminent Scottish jurist - was also particularly criticised by Alex Salmond and other Nationalist figures. The Constitutional Reform Act 2005 provides that there shall be 12 Justices of the UK Court [s23(2) 2005 Act], but there is nothing in the Court's founding statute which mandates a decreed number of judges from the different jurisdictions of the United Kingdom. At present, we've seen two judges trained in Scots Law sit permanently on the UK Supreme Court - Lord Hope, and till his recent untimely demise, Lord Rodger.  Since Lord Rodger's illness, other ad hoc Scottish judges from the Court of Session's Inner House have been drafted in to sit in his place [under s38(8) 2005 Act].   

Lord Reed joined them for the AXA General Insurance & Ors v. the Lord Advocate, which will determine whether Holyrood's pleural plaques Act falls within Holyrood's legislative competence.  More recently, Court of Session judge Lord Clarke sat beside the UK justices in further appeals cased on Cadder.  Such "acting judges" [s38] are appointed at the request of the President of the UK Supreme Court. As I understand it, at present, thus far such requests have been of a general character for a suitably qualified Scottish judge of the Inner House. Individuals have been nominated by the Lord President of the Court of Session.  Generally speaking, however, the UK Supreme Court sits in benches of five (for example, in Fraser), meaning that constituting a Scottish majority to hear our cases would require three judges are appointed to the UK Court on a permanent basis. However, in the as-yet undecided case of AXA Insurance, seven judges sat on the case, and to constitute a Scottish majority would require four judges.  Greater numbers of judges congregate around cases of greater controversy - and this is liable to be a recurring difficulty. 

For Scottish permanent representation on the Court to expand to three judges - a full quarter of the body's total composition - might leave some disappointed English jurisprudes rather miffed - and cause the eyes of the more ambitious Scottish judges, with an itch to live in London, to glister in prospect. Moreover, if McCluskey's proposition was fully and consistently taken up, you will still have the problem of how to constitute a Scottish majority in AXA-type cases when the UK bench overfloweth with seven or even nine judges. There seem to be two obvious solutions, though they are both problematic. Firstly, one could regularly draft in judges of the Inner House of the Court of Session as the case-load requires.  Depending on whether Scottish representation on the Court is expanded, however, it is easy to foresee circumstances where controversial and difficult cases on devolution issues (which we must remember, distinctively arise from devolution and thus won't generally concern English law) which would call for as many as two ad hoc Scots judges to be drafted in to constitute a majority.   

At present, the Inner House of the Court of Session (including the Lord Justice Clerk and Lord President) numbers 11 judges. If a case finds its way to the UK Supreme Court, we can expect at least three, if not five or even seven of these judges to have scrutinised and made judgment on the appeal already, and thus excluded from its final examination in the UK Court. If constituting a Scottish majority in the UK Court came to rely to a great extent on ad hoc temporary appointments, you rapidly start running out of Scottish judicial personnel (and remember, the stipulation that any acting judges sit in the Court of Sessions Inner House is not conventional, but is clearly inscribed in the 2005 statute). Moreover, if such came to be the practice, you might expect that the excluded English Justices of the UK Court could well come to regard the number of Session judges skulking about their chambers as an unsatisfactory usurpation of their functions. I'm the chuffing Supreme Court Justice, after all.  The infelicities of this position might encourage you to appoint still more Scots judges on a full time basis - say four rather than three. That too is likely to have its detractors if the total number of UK Justices continued to number only twelve. With four Scots on the bench, Scots lawyers would constitute a full third of the membership of the institution. A Union dividend for a choice band of Scots it might be, but is likely to be resented in other quarters. 

I too have profound concerns about the UK Supreme Court creaming off the particularly talented Scottish judges, demonstrating a particular interest and facility for constitutional interpretation and the testy task of adjudicating on fundamental rights. Surely a significant contributing factor to our difficulties in Scotland, and the problems with the High Court's analysis of human rights norms, has been the loss of just such Scottish judicial talent. As Robert Black QC noted after my piece on the topic...

"And it is tragic that two of the best Scottish judges of their generation (Lords Hope and Rodger) have to be transported to London (where most of their time is spent hearing English appeals) when they are so badly needed in Scotland."

It is for this reason that it'd be a crashing shame if, as some folk are anticipating, Lord Reed is appointed to replace Lord Rodger in the London Court. It is paradoxical but perfectly likely, that Salmond's rhetoric on the illegitimacy of the UK Supreme Court's English majority in Scots cases - which has generated this proposal from his Review Group - will actually strengthen the Scottish cohort in the UK Supreme Court at the signal expense of the High Court of Justiciary, who will lose its most talented members to beef up this UK institution. The irony that this should be the result of an explicitly Nationalist argument needs no further elucidation. I've argued before that one of the problems with the UK Supreme Court solution to the problems of human rights adjudication in Scotland is that it incubates the disorder rather than correcting it, deflecting our attention from the High Court of Justiciary's real limitations in this area. It'd be an exceedingly unhappy result, if Salmond's advocacy of the distinctiveness of Scottish legal institutions actually atrophied the very institutions he sought so hotly to defend.