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.