16 September 2011

In Lord McCluskey's verdict...

... the jurisdiction of the UK Supreme Court ought to be reprieved. Which is hereby pronounced for doom. That the Evaluation Group of legal worthies reached this conclusion is hardly a shock to the system. When McCluskey's group published their interim report and consultation questions earlier this year, their position was made quite clear:

Para: 72 "...we do not suggest that the jurisdiction of the Supreme Court should be ended."

Anyone who anticipated a sharp reversal of opinion on this subject in their final summations was hoping beyond hope, or assuming an attitude of faux naivete for making future political mischief at the expense of Alex Salmond and his Cabinet Secretary for Justice. Indeed Kenny MacAskill submitted a consultation document to the group, posited on the retention of the UK Court's jurisdiction in Scottish cases raising human rights issues. Despite some innuendo to the contrary, when he put the group together, Salmond could hardly have expected a breathless legal endorsement of his political nationalism. Recall that despite his past judicial career in Scotland, McCluskey sits as a Labour peer in the House of Lords, albeit one with a history of jaundiced attitudes towards the domestic incorporation of the human rights norms articulated in the Scotland Act. Speaking in the House of Lords in November 1997, he argued ...

"By incorporating into our domestic law vague, imprecise and high-sounding statements of legal rights, we hand what is truly legislative power away from a democratic and accountable Parliament to an appointed, unelected and unaccountable judiciary."

If it was complaisance the First Minister was after, I'm sure there are Nationalist lawyers out there who could have made a better hatchet job of it for him.  The Group's primary recommendation is that appeals to the UK Supreme Court should be subject to certification by the High Court. No certificate, no appeal to London:

"An appeal to the Supreme Court should be competent only where the High Court has granted a certificate that the case raises a point of law of general public importance. Such a certificate will set out the terms of the question(s) for the Supreme Court to answer . However, in any appeal proceeding before it, the Supreme Court should have power to re-formulate the question(s) of law set out in the certificate and to address the questions as reformulated."

McCluskey's group also posed a number of consultation questions, including the idea that the UK Supreme Court should sit in Scotland for Scottish cases, and that there ought to be a majority of Scottish judges on any panel examining Scots law. Both of these proposals have been speedily dropped. The idea of the Justices of the UK Court jaunting up to Edinburgh a few times every year is dismissed on the basis that it would gobble up the resources of the UK Court, and put out its Justices and their functionaries.  The idea of a Scottish majority is similarly ditched, whether constituted of increased Scots representation on the UK Court, or extending the practice of ad hoc inclusion of Session judges on Supreme benches.

If political opponents had the nous to go digging, MacAskill's submission to the group on the issue of a Scottish judicial majority in UK Supreme Court cases includes this potential howler. During the stooshie which lead to McCluskey et al being formed up into a review group, MacAskill was quoted in the Herald as having said:

“We just want to be treated the same as other legal systems – we’re not, because we’re undermined routinely by a court that sits in another country and is presided over by a majority of judges who have no knowledge of Scots law, never mind Scotland.”

Alex Salmond echoed the sentiments in his interview with Holyrood Magazine. Defending MacAskill's "Edinburgh Festival" barb, the First Minister said...

"The Edinburgh Festival remark was meant to illustrate the fact that the Supreme Court has a majority of judges in it who may or may not have a knowledge of Scots law and it was a colourful way to illustrate it and I don’t think anyone seriously would take exception to that in terms of the debate."

Both of which seem to imply that Salmond and MacAskill would support a UK Court with a Scottish majority, albeit with understandable nationalist political caveats. Not so, apparently. In his submission to McCluskey, MacAskill writes:

"We do not think it would be practicable to provide a majority of judges on a Scottish case qualified in Scots law. It would further entrench the role of the UK Supreme Court in Scots law, which is the opposite of what we seek."

Prima facie, this looks like a rather embarrassing combination of views, at least seeming to imply that the primary interest of SNP ministers here was not preserving Scots Law in substance as an alternative system of legal values, but with Scottish distinctiveness as such. We will slam the UK Supreme Court for lacking a Scottish majority, but simultaneously oppose the creation of any such majority.  Despite the rum look of this, as I've contended before, there are good and less immediately hypocritical reasons to worry about how any Scottish majority on the UK Court would be put together.  I have written before about how the creation of the UK Supreme Court has been seized upon as an opportunity to inscribe a Unionist semiotics on the fabric of the place, and in the symbolism it projects, quite apart from the older, obscurer and unladen imagery of the Judicial Committee of the House of Lords, as was. Politically, as a nationalist, I have no problem with the idea of opposing institutions which would serve to entrench the Union. If Scotland's separate legal system is to be taken seriously as a pillar of its relative independence after 1707, an institution like the UK Court has to be treated seriously as a pillar of Union. The same goes, incidentally, for any "British Bill of Rights" which stumbles into the light. That said, I'd have thought one opposition member of parliament might have noticed MacAskill's discrepancy, and had some malicious fun at his expense.

Although the Group only attracted a few more consultation responses (some fifteen in total), a few deviations in them are of interest. JUSTICE contributed a particularly robust, critical perspective opposing McCluskey's certification proposals, arguing that the group's rhetoric about Scottish parity of treatment in the UK was pretty much bunkum, if you look into the detail of the difference. A few touched on a question many will find themselves asking about McCluskey's reform proposals. The examination of the UK Court's jurisdiction emerged in the context of that Court's decisions on particular appeals, most notably the Cadder v. H.M. Advocate judgment and the case of Nat Fraser v. H.M. Advocate. What difference would these reforms make? Would Cadder or Fraser make it to London under the new dispensation. Interestingly, the final report discloses a rather stark disagreement on this point. On the case of Cadder v. H.M. Advocate, the McCluskey reviewers concluded...

"That case raised a legal issue which we think is generally accepted to have been a question of a point of law of general public importance."

Significantly, that general acceptance didn't extend to the UK Supreme Court (nor for that matter, to JUSTICE, who lay out their concerns around Cadder and Fraser, to my mind, very convincingly based on the actual behaviour of the Justiciary Court in respect of each case). In their submission on the idea of certification along these lines, they explicitly take the opposing view, confident that Justiciary would have blocked any London appeal from Cadder...

"It might be worth bearing in mind that, if this system had been in place when the appellant in Cadder v HM Advocate applied for leave to appeal, the High Court of Justiciary would almost certainly have refused to certify: see the narrative in the judgment in that case, para 9. The question was clearly one of general public importance, but the Appeal Court had already ruled on the issue in HM Advocate v. McLean."


  1. Am I confused or is the conclusion here that the Scottish Justiciary is uniquely flawed and incompetent compared to its English counterparts that it cannot be trusted to act as a referral filter to the Supreme Court in Human Rights cases? If so shouldn't the Scottish government be doing something about the law?
    Surely there is no point in having a separate Scottish legal system if it is truly so inferior?

  2. Fourfolksache,

    If you look at those opposed to the McCluskey proposals, their argument is that the rights of individual applicants - Fraser, Cadder - will diminish by giving Justiciary a say over what cases get referred to the UK Supreme Court. The point is also made that the proposal vis-a-vis Scotland will not, in fact, bring us into a parallel position as England and Wales. Moreover, as I've discussed before, some politically minded lawyers see the London court as being more progressive, more liberal-minded than the High Court of Justiciary when it comes to human rights norms. They are probably quite right about that. Admittedly, much of this is premised on the idea of continuing Union, but as are MacAskill's submission on this point. Take a look at the JUSTICE submission (linked to above), to see what I mean in more detail.