"A quintessential matter of political judgment for Westminster..."

Last Friday, the Lord Advocate published the Scottish Government's intervention in the ongoing Brexit litigation before the UK Supreme Court. James Wolffe QC weighed in behind the Divisional Court's judgment, arguing that the royal prerogative cannot lawfully be used to trigger Article 50. But Scotland's senior law officer also ranged beyond that. He points to the Sewel convention, arguing that if Westminster legislates to withdraw the UK from the European Union, the Scottish Parliament must be consulted. 

The Lord Advocate isn't arguing that Holyrood has a veto -- but that the UK constitution now expects MPs to canvas the view of MSPs before legislating on devolved matters. Modern understandings of the Sewel convention generally recognise that it has two limbs. Firstly, that Westminster ought to seek the consent of Holyrood before changing Scots law on issues falling within the Scottish Parliament's purview, like health, or education, or family law.  And secondly, that any changes to the powers of the Scottish Parliament itself ought to take account of MSPs' views. The same goes for any changes to the power of Scottish Ministers, whether enhancing or curtailing their legal authority.

This afternoon, the UK government have published their counterblast against the Lord Advocate's submissions (and parallel arguments, made by the law officers of the Northern Irish and Welsh administrations). You could only expect Richard Keen and his colleagues to resist James Wolffe's arguments, but as Jonathan Mitchell QC tweets this afternoon, the UK government's legal answers have a "strangely tetchy" tone, "supercilious and ill-tempered". Seasoned barrister Sir Paul Jenkins couldn't "recall a case where the government thought it wise to descend to such rudeness", which he describes as "unnecessary and inappropriate." Jo Maugham QC characterises the submissions as "fantastically" so.

In a nutshell, they are that devolution is irrelevant to the issues before the Court, that foreign affairs is reserved, and that ""the devolution legislation cannot add to the arguments" in the case "in any material way." But perhaps most eye-catching, are the UK government's observations on the need to seek consent from any of the devolved legislatures. "The Court is being invited ... to stray into areas of political judgment rather than legal adjudication." They argue the Supreme Court "should resist that invitation."

So how do they reach this conclusion? While recognising that the statutes establishing Edinburgh, Belfast and Cardiff assemblies are "very significant pieces of legislation", they contend that the Sewel convention is not justiciable - which is to say, unsuitable for judicial decision-making. It is, they say, a "legal irrelevance", just a "political convention", and not part of UK constitutional law. In support of this view, they cite Lord Reed -- one of the justices who will hear this case, In 2012, in the Imperial Tobacco case, Lord Reed described the convention as a “political restriction on Parliament’s ability to amend the Scotland Act unilaterally" -- not a legal restriction.

And as far as this goes, this is a perfectly orthodox account of the status of constitutional conventions in the UK. They have generally been regarded as "rules of constitutional morality", rather than rules of constitutional law, susceptible to enforcement by the court. But where the UK government's case hits a potential wrinkle is that Westminster chose in 2016 to inscribe this convention on the face of the Scotland Act. They simultaneously "recognised" the "permanence" of the Scottish Parliament. 

While Lord Reed was absolutely right in 2012, that the Sewel convention was only a political restriction Westminster had undertaken to abide by, this isn't straightforwardly the case in 2016. The UK government's submission - strikingly - has nothing whatever to say about this change, and the impact it might have on their arguments about the justiciability and enforceability of the convention. Back in 2014, Professor Mark Elliott tacked up this informative article about the different potential legal effects of these innovations. In its legal papers, the UK government body-swerves these implications altogether.

So does the statutory recognition of Sewel change anything? Maybe. Maybe not. As a number of us pointed out at the time, David Mundell formulated this statutory recognition in a consciously sleekit way. The new Scotland Act recognised only that "the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament." "Normally" isn't a word you encounter very often in statutes. "Must" and "may", certainly. But not "normally." 

UK lawyers, unsurprisingly, have hung up their wigs on these words. Referring to the Scotland Act, they suggest the convention "does not purport to prescribe an absolute rule." Its content is only that “Westminster would not normally legislate” And here is the kicker. They argue that:

"... whether circumstances are ‘normal’ is a quintessential matter of political judgment for the Westminster Parliament and not the courts. There are no judicial standards by which to measure such a question in the context of a political convention." 

You didn't hear this kind of reasoning - at least in public - when David Mundell was talking up the virtues of the new Act, invoking the idea of a "new parliament, new powers, and new partnerships."

For the UK government lawyers, we end with the orthodox Diceyan vision of the tyrannical patriarch, and the erratic father figure never needs to keep his word, or follow his own rules. Whatever forms of "legal recognition" or apparent constraints Westminster inscribes on its constitutional legislation, "the Westminster Parliament is sovereign and may legislate at any time on any matter ... any attempt to enforce the convention directly or indirectly would be a straightforward impingement on that sovereignty." 

Theresa May's legal counsellors may be resisting any attempt for parliament to take back control over Brexit, but they take Holyrood's subordination to Westminster for granted. For Richard Keen and his colleagues, power devolved is ultimately power retained, whatever political grace notes ministers write into the latest iteration of devolution, whatever our constitutional statutes anticipate and provide. And if the strident, haughty tone of this reply is anything to go by -- how very dare you argue otherwise. 

You can read the whole UK government submission here.

Abortion: the limits of conscientious objection?

An interesting and tricky Scottish case has come up for decision in the UK Supreme Court this morning. Back in 2012, two midwives employed by Greater Glasgow and Clyde Health Board - Mary Teresa Doogan and Concepta Wood - brought a judicial review petition against the health board, arguing that they were being forced to "participate" in abortions, despite their conscientious objections, as devout Catholics, to the practice.

Section 4 of the Abortion Act 1967 recognises the right to "conscientious objection to participation in treatment," providing that "no person shall be under any duty, whether by contract or by any statutory or other legal requirement, to participate in any treatment authorised by this Act to which he has a conscientious objection."

Neither Doogan nor Wood were obliged to participate in the medical procedures producing abortions in the Southern General, but the pair were responsible for delegating, supervising and supporting other healthcare professionals in the treatment of patients undergoing termination of pregnancy. They argued that the conscientious objection provisions in the Abortion Act extended not only to participating in abortion procedures, but should also exempt them from responsibility for timetabling and supervising the practices they object to.

At first instance in the Court of Session, Lady Smith rejected this argument, holding that the Abortion Act's right of conscientious objection did not extend to the midwives' case-management responsibilities, as they didn't amount to "participating in treatment." Counsel for the health board argued that the logic of the midwives' argument could very well extend to the ward cleaner, whose scrubbing - in some sense - facilitates abortion in the hospital. Could, should they be able to argue that their mopping representing "participating" in abortions, and to decline to participate on religious grounds? Lady Smith thought not, and rejected Doogan and Wood's argument. 

The Inner House of the Court of Session had other ideas. The midwives appealed, successfully. Lady Dorrian held that Lady Smith's approach was too narrow, and the conscientious objection enshrined in the Abortion Act should be taken to extend - not just to direct participation in abortion procedures - but much more widely, to encompass the kinds of activities the midwives were being obliged to undertake in the Southern General. The Inner House held that:

As Lord Diplock observed in the RCN case, it is a matter on which many people have strong moral and religious convictions, and the right of conscientious objection is given out of respect for those convictions and not for any other reason. It is in keeping with the reason for the exemption that the wide interpretation which we favour should be given to it. It is consistent with the reasoning which allowed such an objection in the first place that it should extend to any involvement in the process of treatment, the object of which is to terminate a pregnancy. This is also consistent with our conclusion that the only circumstance of sections 1(1)(a) to (d) to which the exemption does not apply is section 1(1)(b), and that the only circumstance when the objection cannot prevail should be when the termination is necessary to save life or prevent grave permanent injury, because in such a situation the real purpose is not to effect a termination but to save life or prevent serious permanent injury.

Today, the Greater Glasgow and Clyde Health Board ask the UK Supreme Court to reverse this decision, and to endorse a more limited conception of the right to conscientious objection to abortions. So, "does s.4(1) of the Abortion Act 1967, which provides that "no person shall be under any duty to participate in any treatment authorised by this Act to which he has a conscientious objection", entitle a Labour Ward Co-ordinator to refuse to delegate to, supervise and/or support midwives providing care to patients undergoing termination procedures?" 

That's for Lady Hale and Lords Reed, Hodge, Wilson and Hughes to decide.

Scotland's green salad justices & ancient juniors...

Few folk embark on a judicial career in this country out of a raving thirst for publicity, but this is just silly. This week, the UK Supreme Court has turned out its old guard, appointing three new Justices.  In America, the installation of a single judge is now invariably met with a press ruckus, pompous senators sounding off ad nauseum in televised hearings, while the nominee practices judicious evasion and studied non-answers to the politicians' usually none-too-forensic political cross-examination on the hot-button jurisprudential controversies of the day.  

On this side of the Atlantic, the idea of subjecting your Lord President Would-Bes, judges and Justices to such treatment hasn't gained much purchase. Everything is rather stuffier, enveloped in cosy, impenetrable officialdom. As a consequence, I'm sure a vanishingly small percentage of the UK population could distinguish any of the Justices from Adam (or in one instance, from Eve).

Adam Wagner styled the three appointments an "attack of the clones". All three new justices are men of a certain age. Baroness Hale remains the Court's first and only female justice to serve.  The story stirred barely a whisper in the Scottish press, despite the heightened visibility the Court has enjoyed in Scottish politics in the last year or two, adjudicating politically controversial constitutional cases. 

By convention, two seats on the Court are filled by Scots lawyers. Court of Session judge, Lord Hodge (above, right), will fill the seat vacated by Lord Hope, who has achieved sufficient antiquity that he's obliged to retire, aged 75.  All that despite, employment as a judge in this country's apex court seems an excellent way to preserve one's anonymity.

The gendered angle on the story was the subject of commentary elsewhere.  As I argued back in January of last year, of the Lord Presidency snaffled by Lord Gill, it's important to think about our overwhelmingly male-dominated higher courts with our historical periwigs on, and examine how this narrow pool of candidates came to be. 

To my eye, one of the most worrying features of contemporary recruitment to the Scottish bar, which seems likely to dominate high judicial offices in this country for the foreseeable future, is the continuing dominance of men among their intrants and devils. As I noted in the piece, of the 12 advocates called to the Bar in 2011, three were women. Of the 10 in 2010, only four. 

To bring it right up to date, of the 13 called in 2012, three are women. It is also worth emphasising, the age profile of the new-sprung advocate seems to have evolved since the 1970s and 80s. No longer the preserve of bright young men, (MA Oxon, LLB Edinburgh), a quick glance through the newer Faculty roll reveals many grizzled faces with at least a decade or more of work as a solicitor behind them.  You might find the odd cherubic phizog, but many of these juniors aren't so junior, and probably won't be in post long enough to make it to the Supreme Courts.

A comparison with the two Scots lawyers who'll now sit on the UK Supreme Court is an instructive one. On admission to the Faculty, the second Scottish judge on the Court, Lord Reed, was about 27 years old, Hodge was 30.  In judicial terms, both of the Scottish justices are now in the green salad days of their youth, Lord Reed 56, and Hodge 59 years of age.  That's a half-decade younger than their most youthful English or Northern Irish colleague. 

Barring ill-health or disaster, both men potentially have more than a decade and a half of judgin' in London before them. If Reed and Hodge prove as zesty as Lord Hope, the  no vacancies sign will hang outside Middlesex Guildhall for a substantial period of time and they can expect to be colleagues on the Court until the late 2020s. Unless, of course, we win the referendum in 2014, in which case the brace of Justices will have to seek gainful employment elsewhere...

The Edinburgh Agreement: legally, what does it mean?

In Scotland today, one group of people are lachrymose, their disappointment stinging.  This afternoon the Scottish and Westminster governments agreed the terms of a draft section 30 order under the Scotland Act, to be laid before both Houses of Parliament, and Holyrood, to put the legality of the referendum beyond doubt, and materially, beyond legal challenge. 

Quietly, in the dim litigious light, between the leather-bound tomes, you can hear the sobs of thwarted lawyers unsettling the dust, mourning the big bonanza constitutional case that is not, now, to be.  No controversial Supreme Court hearing. No fractious unionist litigant, not to be dissuaded.  No increasingly perilous rhetoric from frustrated nationalists, trapped in the syrupy stuff of law's delays, with time trickling inexorably on.  No high-wire act either for Lords Hope and Reed to walk, invited to choose between upholding one reasonable reading of the Scotland Act over another, and declaring incompetent a democratically-mandated referendum, much intensifying the political acrimony and instability thereby.  Jim Wallace may now repair to his bed unhaunted by night terrors of having to challenge the referendum himself in court, while Alex Salmond can turn in without a looming shadow of the Law engulfing his primary political project.

At last, years on from when this conversation began, my unremitting sweats and fears about the legislative competence of the referendum may finally ease.  I'll need wringing out. That an agreement has been reached - and, Lords permitting - will put the legality of the referendum beyond doubt, should be a huge relief to all involved.  Believe me or not, cherish eccentric legal theories if you prefer, but the legality of the referendum, sans a section 30 order to rearrange the matters reserved by schedule 5 of the Scotland Act, was always, at best, arguable, and what is arguable is subject, inevitably, to legal argumentation in higher and higher courts.

A legal challenge - which would have been inevitable - would have been a calamity for all involved.  It would advance the debate not one iota, and have lobbed vial after vial of wrath and poison into the already-turbulent pool of Scottish political discourse, imperilling what little stream of civility and meaningful discussion we permit ourselves in Scotland.  The negotiation process has not been without their manipulations, and mischief.  The real victims of these manoeuvres have been those who favour a second devo-something question, whose ambitions have been merrily shafted by the mannered intergovernmental exchanges preceding this deal.

But what precisely does it say? The critical document is the draft section 30 order, reproduced in an appendix to the No.10 Agreement document.  Remember, the purpose of the order is to change the list of matters reserved in schedule 5 of the Scotland Act 1998.  As you will remember, the general structure of the Act is that Holyrood enjoys power to legislate over everything that isn't reserved.  It doesn't take terrifically long to enumerate the order's substantive changes.  These are:

Modification of Schedule 5 to the Scotland Act 1998
3. In Part 1 of Schedule 5 to the Scotland Act 1998 (general reservations), after paragraph 5 insert—
“5A.—(1) Paragraph 1 does not reserve a referendum on the independence of Scotland from the rest of the United Kingdom if the following requirements are met.
(2) The date of the poll at the referendum must not be the date of the poll at any other referendum held under provision made by the Parliament.
(3) The date of the poll at the referendum must be no later than 31 December 2014.
(4) There must be only one ballot paper at the referendum, and the ballot paper must give the voter a choice between only two responses.”.

Supplementary provision
4.—(1) The following provisions of Part 7 of the Political Parties, Elections and Referendums Act 2000 (“the 2000 Act”)(a) apply to an independence referendum as if it were a referendum to which that Part applies—
(a) section 127 (referendum campaign broadcasts), and
(b) paragraph 1 of Schedule 12 (right to send referendum address post-free)(b).
(2) In those provisions as applied by this article, references, however expressed, to a person or
body designated under section 108 are to be read as references to a person or body designated under an Act of the Scottish Parliament for the purposes of an independence referendum as representing those campaigning for a particular outcome in relation to the question in the referendum.
(3) The following (which apply to a referendum campaign broadcast within the meaning of section 127 of the 2000 Act) do not apply to such a broadcast within the meaning of that section as applied by this article—
(a) section 112 of the 2000 Act;
(b) paragraph 1 of Schedule 13 to that Act;
(c) paragraph 18 of Schedule 12 to the Communications Act 2003(c).
(4) Where paragraph 1(3) of Schedule 12 to the 2000 Act, as applied by this article, applies section 200A of the Representation of the People Act 1983(d) (remuneration for free postal services), the reference in that section to a sum being charged on and issued out of the Consolidated Fund is to be read as a reference to that sum being paid by the Scottish Ministers.
(5) In this article “independence referendum” means a referendum on the independence of Scotland from the rest of the United Kingdom, held in pursuance of provision made by or under an Act of the Scottish Parliament.

A wee breakdown of what some of this means.  Firstly, Holyrood is being empowered to hold a referendum a limited period of time, until the end of 2014.  If we are defeated in 2014, 2035 rolls around, and no further changes to this part of the Scotland Act are made, another referendum would, arguably, be ultra vires.  This order ensures that a political commitment to a "once in a generation" poll is backed up by the law.  If a pro-nationalist government of the future wanted to hold another referendum, we'd have to go through this entire rigmarole of negotiation again, or hang the referendum on the (now even shooglier) peg that Holyrood can hold referendums about reserved matters anyway, section 30 or no section 30 order.  

Secondly, the referendum may only competently be framed as a single question, with two options, though entertainingly, there is nothing in the draft order that binds Holyrood over to those two answers being "yes" or "no" to independence, though I strongly imagine it'll take that form.

Thirdly, Holyrood is prohibited from holding a second referendum on the same day.  On one level, this is surely to avoid the politics of the occasion becoming cluttered, but also betokens suspicion in Westminster. Will wily Salmond, say, induce us to put the legality of an independence beyond doubt, and then, for villainy, pass a separate bit of legislation to authorise a devo-something referendum on the same day, separated only by the legal fiction that the two polls are distinct? This provision of the order seeks to anticipate, and curb, that possibility by making the competence of the independence vote contingent on the absence of all others that day.  

Looking at the order, and marking a significant absence, you may be thinking, what about the franchise? What about 16 to 17 year olds? The political agreement between the two governments explicitly recognises that it will be for the Scottish Government, within the time afforded, to determine through legislation in Holyrood:

• the date of the referendum;
• the franchise;
• the wording of the question;
• rules on campaign financing; and
• other rules for the conduct of the referendum.

So why not a breath of this in the Order itself? Here, we have to recall again the way the Scotland Act works.  The Order, and the aspect of the Scotland Act it will amend, specifies reservations of power, rather than explicit grants of power.  Holyrood may do anything that is not reserved, and anything which is compatible with EU law an fundamental rights.  Essentially, the Westminster government are proposing not to reserve the question of the franchise for the purpose of an independence referendum. Holyrood may do what it chooses.  

Fifthly, you may be wondering about what happens next, and what procedurally Holyrood and Westminster will have to do to put this piece of subordinate legislation into effect.  Practically, it will have to be laid before both Houses of Parliament, and before Holyrood, all of whom will have to agree to its terms.  As I understand it, however, these orders may only be accepted or rejected.  They cannot, for example, be amended by the likes of Darth Forsyth, or Lord Foulkes, as the paper wends its way through Westminster.  As a consequence, if the ultramontane unionists in the House of Lords wish to make a rumpus, they are limited simply to opposing the whole endeavour, rather than promoting wrecking or mischief-making amendments to the order itself. 

Sixthly, and finally, it is worth briefly traipsing back to January 2012, when Michael Moore took to his pins in Westminster, and outlined the terms and conditions which the UK government initially wished to impose on the referendum.  So what's changed? Compare and contrast today's draft with January's. 

“5A.—(1) Paragraph 1 does not reserve a referendum on the independence of Scotland from the rest of the United Kingdom if the following requirements are met.
(2) The date of the poll at the referendum must not be the date of the poll at any other referendum held under provision made by the Parliament.
(3) The date of the poll at the referendum must be no later than ***.
(4) There must be only one ballot paper at the referendum, and the ballot paper must give the voter a choice between only two responses.
(5) The persons entitled to vote in the referendum must be the persons who would be entitled to vote in an election for membership of the Parliament—
(a) if one were held on the date of the poll at the referendum, or
(b) if one were held on that date but alterations made in a register of electors after a particular date were disregarded.
(6) The referendum and arrangements in connection with it must be in accordance with Part 7 of the Political Parties, Elections and Referendums Act 2000 (referendums) as if the referendum were within section 101(2) of that Act, subject to any modifications specified in subordinate legislation.”

Overall, the text adopted today is strikingly similar.  The power to hold a referendum is time limited, limited to a single question, and cannot be held in conjunction with another referendum on the same day. The only striking change is the extent of the franchise for the poll, which the UK government formerly insisted  “that an established franchise should be used” and that “the debate about extending to vote to 16 and 17 year olds should be conducted separately and that any decision should be taken for all elections and not for one single vote”.

The question, the franchise, framing the precise funding rules for the campaign: Holyrood, and by dint of which, its SNP majority, has got its paws on all of it. I know some folk have today's been celebrating the end of process. Legal quibbles buried, and inter-governmental stramashes allayed, we can embark on a substantive discussion about independence, its promise and its perils. That assessment may be a bit previous. There are plenty of potentially controversial and significant rules and parameters, still to frame.  

At least we may now do so, however, no longer feart of the dread knock on the door from a wigly crow figure, advising us that an action has been raised at the Court of Session, and the whole endeavour as been waylaid. Devomaxers and devoplussers may be weeping into their cock-a-leekie, and they have my sympathies, but if nothing else, today ends the interminable legal shadow-boxing and - michty - that makes it a good day for nationalists and unionists both. 

The mysterious matter of Kinloch v. HM Advocate...

Ick. Lurgi. Plague. The Red Death. Whatever it was, for the second half of last week, I've been knocked horizontal by a foul ailment. Happily, consulting a peg-toothed crone, knotting a poultice about my neck, and skewering an amphibian to my lapel seems to have done the trick, and ousted the malady.  Before this ague claimed me last week, I composed this wee survey piece about the UK Supreme Court's Michaelmas term of sittings planned, and the Scottish cases and issues which Lords Reed, Hope, and the rest of the Justices will be weighing up before Christmas.

About five of the six cases to be heard, I was able to dredge up decent information, and the pertinent judgments of the Court of Session which litigants are seeking to challenge.  Only one case remained mysterious: Kinloch v. HM Advocate, the only criminal case on the Court's docket this term.  Of this action, I could find not a whisper, not a breath of judicial prose on any of the usual sources of information.

Hoping to make a bit of progress via more informal networks, I asked a couple of advocates specialising in criminal work if they had an inking about the case, and what the controversy might concern. The sterling Niall McCluskey went beyond the call of duty to dig out this information on the mysterious Kinloch.  

@peatworrier Kinloch v HMA . Appeal refused at 2nd sift, howeverappellant subsequently sought leave to appeal to the Supreme Court.
— Niall McCluskey (@NiallMccluskey) October 1, 2012

@peatworrier @bmcconnachieqc Leave granted on 2 Nov 2011. As there was no substantive appeal hearing there is no opinion of the court.
— Niall McCluskey (@NiallMccluskey) October 1, 2012

Curiouser and curiouser.  Despite his best endeavours, and these spare procedural discoveries, Niall couldn't find out what the case was about either.  By the by, that reference to the "second sift" concerns the process criminal appeals go through.  In the "first sift", appeal applications are considered by a High Court judge, who makes an assessment about whether there are arguable grounds of appeal.  If he or she decides there are no arguable grounds, and knocks back the application, the convicted person can apply to have this assessment reviewed. The papers are then nosed through by two judges (in appeals against sentence imposed) or three judges (appeals against conviction), again with a mind to assessing whether the paper submissions make an "arguable case". This is what's known as the "second sift".  Whatever Kinloch's lawyers' arguments, and whatever the bench's reasons for rejecting them, since the case was never orally argued, nor subject to a written judgment, it's impossible to say what the case concerned with any confidence.  

That it has ended up before the Supreme Court, however, strongly suggests that we can reasonably expect the appellant to be contending something in the human rights line, though that might concern the fairness of the criminal trial, or a broader case, based, for instance, on protected rights to privacy and a family life.  That said, unlike Cadder, and unlike Imperial Tobacco, the hearing before the Justices is due to last only one day, so we might expect submissions to be less exhausting in scope.  Until the Supreme Court chalks up its traditional wee summary on the web, it remains to be seen what Kinloch concerns, and whether or not it may put the poker in the greying embers of recent controversies about the UK Supreme Court's interventions in Scottish criminal cases.

UPDATE

Well that was quick.  It transpires that Brian McConnachie QC is in on the case of Kinloch v. HM Advocate himself.  He told me that:

@peatworrier @niallmccluskey It is about police surveillance and when it contravenes Article 8. Idea to review Gilchrist on that point.
— Brian McConnachie (@BMcconnachieQC) October 1, 2012

Gilchrist is a reference to the 2004 case of Gilchrist and another v. H.M. Advocate, which concerns a police tip-off, the controlled supply of drugs, covert surveillance, and the argument that for prosecutors to rely on evidence gathered in breach of article 8 rights (privacy) would render them ultra vires under the Scotland Act.  The judgment is short, and I must fly. Do give it a nosey for yourselves.

Baccymongers, bankers & the Supremes...

Last week, I took a critical look at the evidence supporting the claim that the European Court of Human Rights has some sort of "grudge" against the United Kingdom, and is excessively keen on "intervening" in our political affairs. In the event, the proof proved even more threadbare than you might expect. Even if we factor in the 97% of cases against the UK which the Court rejects as inadmissible, of the remaining 3% of cases, the UK Government loses the fifth-lowest percentage of cases, only trailing behind Denmark, Sweden, Andorra and the Netherlands.

Back in Scotland, a similar idea has recently been gaining currency in some nationalist circles, with the First Minister and the Cabinet Secretary for Justice implicated art and part.  The United Kingdom Supreme Court, it is said, is taking an unhealthy interested in Scotland, deciding too many Scottish cases, and in general, are sticking their Lordships' collective nebs where those nebs aren't wanted.

I looked with interest, therefore, at the Supreme Court's planned programme of sittings for their Michaelmas term, running from the first of October until the 21st of December. Running an eye down the roll of hearings, the Supreme Court intends to hear six Scottish cases out of the twenty three to be heard (I've excluded Judicial Committee of the Privy Council cases from this total, of which there are twelve, including appeals from Jamaica, Trinidad and Tobago, the Bahamas, the British Virgin Islands, and Mauritius.) Just over quarter of the cases being examined in the remaining part of 2012 are Scottish.

To take a very crude basis of comparison, the UK Supreme Court spends more time on Scottish controversies than a simple per capita Scottish contribution might suggest. 

But is Michaelmas 2012 representative of the Court's work in general? Is this is a particularly active period of review? Since 2009, Scottish judgments have made up just 17.2% of all judgments handed down.  Even if we assume (probably erroneously) that the Court manages to reach conclusions in all of its Michaelmas term cases by the end of December, we're talking about the number of Scottish decisions being issued increasing by - at most - a smidgeon. 

 

Since it got going in the October of 2009, the Court has entertained just 37 Scottish cases.  Much of the controversy surrounding the institution has concerned appeals from the High Court of Justiciary in criminal cases, albeit primarily on the grounds of fundamental rights, rather than the definition of crime.  Of the total across the Court's four (incomplete) years of operation, criminal appeals has represented a goodly (but minority) proportion of the UK Court's work.

Equally importantly, much of the rhetoric around the UK Court's interventions in Scottish criminal cases has implied meddlesome judicial mischief.  It is pertinent to ask, who invited the UK Court to decide their cases? It would, for instance, be a bit rich to slam an institution for deciding cases which a member of the Scottish Government - its law officers - actually referred to the Justices for a decision. The answer is: it's pretty eksie peeksie between accused or convicted persons, and appeals and references lodged by the Lord Advocate and prosecutors.

To shift from the quantitative to the qualitative, what will Lords Hope, Reed and their English and Northern Irish colleagues be looking at this term, and what, if any particularly incendiary cases can we expect to be argued? First up, on the 3rd of October, an appeal from the Court of Session in Morris v. Rae, an action for damages in breach of warrandice, when buying property. Towards the end of the month, another bench will convene to hear RM (AP) v. the Scottish Ministers, seeking judicially to review of the failure of Scottish Ministers:

"... to draft and lay regulations under sections 268(11) and (12) of the Mental Health (Care and Treatment) (Scotland) Act 2003 before the Scottish Parliament".

Into November, the topic changes from those detained in state hospitals to allegations of assault made against officers from Strathclyde Police in 2004. In Ruddy (AP) v. Chief Constable Strathclyde, the pursuer sought £10,000 in damages, and argued his rights under Article 3 of the European Convention on Human Rights had been infringed. 

It is the hearing of the 12th of November which promises to be the term's most political controversial case. Back in February this year, Lord President Hamilton, and Lords Reed and Brodie rejected Imperial Tobacco's submissions that Holyrood's Tobacco and Primary Medical Services (Scotland) Act 2010 - which banned the sale of tobacco products using automated vending machines and prohibited tobacco displays - was outside the parliament's legislative competence. The tobacco-merchants attacked on a range of legal fronts, including arguments that...

1. the provisions "relate to" the reserved matter of "regulation of the sale and supply of goods to consumers, within the meaning of Schedule 5, Section C7 of the Scotland Act.
2. that they "make modifications of Scots criminal law as it applies to a reserved matter, namely regulation of the sale and supply of goods to consumers, and are therefore to be treated as relating to a reserved matter, by virtue of section 29(4); and even that:
3. the vending machine provisions modify article 6 of the Union with England Act 1707 so far as it relates to freedom of trade, and are therefore outwith Holyrood's powers.

The Inner House rejected Imperial's arguments on all points, but it remains to be seen how the UK Supreme Court will deal with it, in extensive hearings pencilled in to last four days. Significantly, as the Court's newest Scottish justice, Lord Reed, sat on the Court of Session bench appealed against, Lord Hope will be the only justice trained in Scots law sitting on the five judge bench, which will instead include Lords Walker, Kerr, Sumption and the Court's only female Justice, Lady Hale.

I'm a bit perplexed by Kinloch (AP) v. Her Majesty's Advocate, the solitary criminal case on the Court's docket this term.  The High Court of Justiciary's judgment seems to be alluding me. Answers on the proverbial postcard, anyone in the know.  Good news! As I've summarised in a new post, I've been able to get little more information about what is at issue in Kinloch, and an explanation for why a written judgment alluded me. More details, here.


Finally for Michaelmas, the Court will be looking at Lloyds TSB Foundation for Scotland v. Lloyds Banking Group LPC.  Litigation prompted in great part by the banking crash, the Foundation is pressing Lloyds to pay out a whopping £3,500,000, to be disbursed to charitable causes.  The bank, by contrast, is keen to keep its lucre, initially cutting and intending to eliminate its contribution towards the Foundation.  The BBC had this pithy sketch of the issues at stake late last year.  The case has already enjoyed something of a chequered judicial career. At first instance, Lord Glennie favoured the bank's argument. On appeal, the Lord President of the Court of Session preferred the Foundation's claims, and overturned Glennie's judgment.  It remains to be seen what the Supreme Court will make of it all - two days of hearings are pencilled in, for the stub end of November.