28 June 2011

On the UK Supreme Court's "striking anomaly"

After the consuming ballyhoo about the jurisdiction of the UK Supreme Court in Scottish criminal cases, you may recall that Alex Salmond appointed a small body of hoary legal gentlemen to a Review Group. Their given terms of reference are as follows...

"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 panel includes four souls. In the chair, is former Court of Session judge and Labour cross-bench peer in the House of Lords, Lord McCluskey. Alongside him, Salmond selected Sir Gerald Gordon - an eminent writer on criminal law of long experience and Sheriff Charles Stoddart. Finally, the Review also includes the Edinburgh's Professor Neil Walker, who occupies the University's marvellously named Regius Chair of Public Law and the Law of Nature and Nations, formerly held by the SNP's own Professor Neil MacCormick. Walker also completed a report for the Scottish Government in the last session of Holyrood, reviewing the broader issue of Final Appellate Jurisdiction in the Scottish Legal System, including but not limited to the issues presently being discussed by the Review Group.

Although not the final fruits of their deliberations, the Group have published their first report on the issue. Interestingly, this report is written in a very direct style, which deliberately aims to abstain from bamboozling the lay reader with legal obscurity.  This material is relegated to a rather chubbier Appendix and supplementary text. This directness will no doubt be appreciated by such wider audience as this document receives. For my part, I was pleased to see a clear recognition of the respective constitutional politics which are engaged by controversies about the UK Supreme Court's jurisdiction. In a passage headed Realities to be taken into account, the Group note:

34. For those who do not wish to be part of the UK State, arguments about the retention of the Supreme Court as a matter of constitutional integrity will carry no weight.

35. Nevertheless while Scotland remains in the United Kingdom it is clear, in our judgment, that, whatever alterations are proposed in amendments to the current Scotland Bill as we note below, the prevailing constitutional position makes it unrealistic to suggest that the Supreme Court should not have a continued jurisdiction to determine what might conveniently be called demarcation questions. In this context, these are questions concerning whether or not acts, legislative or executive, of statutory bodies or ministers whose functions are defined and limited by the Scotland Act 1988 [sic], including acts in the domain of criminal law and justice, are within the powers conferred on these entities by that legislation.

For those who suspected that Salmond had dragooned a phalanx of Nationalist party men into composing this independent review - to see off the Advocate General's earlier Expert Group which reviewed the same topic - the practical Unionism of this report will disappoint expectations. Reading Professor Walker's earlier report should also have dispelled such lingering impressions, as should McCluskey's partisan allegiances, despite his judicial career. In a leader column, the Scotsman suggests that "McCluskey throws Salmond a legal bone of contention", but argue that...

"While [the Report] leans strongly to the First Minister's critique of the place of the Supreme Court in Scots law, in recognising the role of that court in human rights matters, it denies him outright victory. He will enjoy gnawing at the meat, but may choke on the bone."

Throughout, the Group warmly emphasises points of agreement with Jim Wallace's group, whose findings I have discussed before, in the context of an earlier Supreme Court stooshie, which blew up around its Cadder judgment.  At that time, I was intensely critical of Fiona Hyslop's contribution on Newsnicht, which conflated description and prescription, is and ought. What is realistic, ask the four wise men? Their answer, at para [40]...

"All that we can see as falling within our terms of reference and the constitutional realities of the situation is a reconsideration of the manner in which jurisdiction of the Supreme Court should be exercised. The purpose would be to ensure that, while the Supreme Court would continue to make final and binding rulings on human rights issues, including those arising in criminal cases from Scotland, it would do so in a way that reflected more clearly the long history of separate development of the Scottish criminal justice system and the closely associated tradition of the High Court of Justiciary as the final court for determining criminal justice in Scotland."

However, the second half of their remarks homes in on the issue of leave to appeal - and the relationship between the High Court of Justiciary and the UK Supreme Court. It is on these terms that they propose an amendment to the Scotland Bill. Styling the Supreme Court's jurisdiction at present as a "striking anomaly". They write...

The position elsewhere in the UK

49. In the rest of the UK, leave to appeal to the Supreme Court, including special leave, cannot be granted unless the court from which the appeal lies grants a certificate that a point of law of “general public importance” is involved in the decision, and that court considers that the point is one that ought to be considered by the Supreme Court.

50. If the court from which the appeal lies refuses leave but grants the necessary certificate, then – and then only – can the Supreme Court entertain an application to grant special leave, and grant it if so minded. The clear result of this is that alleged violations of Convention human rights by public prosecutors the UK can be brought to the courts under the process for assessing whether to certify a point of law general public importance of  the Human Rights Act and its ancillary procedures but the cases in which such alleged violations are dealt with cannot go to the Supreme Court unless the court below issues the necessary certificate.

Comparison with the system for Scotland

51. The conclusion referred to in paragraph 46 yields obvious, closely related questions:
• Why should the High Court of Justiciary not be placed under the same regime as elsewhere, whereby, there can be no right of appeal to the Supreme Court except in circumstances where, having considered the case in detail, the High Court of Justiciary grants a certificate that the case raises a point of law of general public importance?
• Why therefore should the Supreme Court have a wider jurisdiction to hear appeals in Scottish criminal cases than it has in respect of criminal cases from the rest of the UK?
• Why, in further consequence, should the actions of Scotland’s public prosecutor that are alleged to threaten a violation of statutory human rights be dealt with differently from those of public prosecutors elsewhere in the UK?

A striking anomaly

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.

On the basis of this reasoning, the Group suggest an amendment to the Scotland Bill, meaning that the UK Supreme Court could only grant extraordinary leave to appeal, where the appellant had already convinced the High Court of Justiciary to issue a certificate that a point of law raised in the case is of “general public importance”, even as they deny the appellant leave to appeal.  It remains to be seen what the Tory-lead Westminster Government might do with these proposals and whether further amendments might be made to the Scotland Bill to accommodate them, before its final reading in Westminster.

For my part, I have not independently investigated the legal issues discussed by McCluskey et al in any depth - but given the authors' collective expertise, I'd be most surprised if they had misconstrued the legal situation.  It should be uncontroversial to suggest that the scope of appeal rights is not, generally speaking, something politically to exercise the public or parliament.  One immediate question suggested by these proposals is - would their operation have made any difference in the cases which provoked particular controversy, Cadder and Fraser? That would depend, of course, on how the High Court of Justiciary interpreted the idea of “general public importance”, and in turn, if they granted such a certificate to Cadder or Fraser, allowing the UK Supreme Court to exercise its jurisdiction over their cases.  At least in the case of Cadder, it is profoundly difficult to image Justiciary refusing to grant such a certificate, which would have prevented the UK Supreme Court from hearing the case.

I also wanted to say a word or two about the "realities" mentioned by the Group, and their explicit recognition that a Nationalist politics - and implicitly, a Unionist politics - is very much implicated in this controversy.  This shouldn't be troubling. An independent Scotland would have no use and no need for the UK Court's jurisdiction. Those aiming at an independent Scotland are being perfectly consistent, in rejecting it, while Scotland continues to be part of the Union. This is a political position. Symmetrically, if one is a committed Unionist, that too is involved in assessing what jurisdiction, if any, the Supreme Court might exercise. Although Unionists find it easier to disavow the political contents of their proposals, neither Nationalists nor Unionists are offering us a "common sense", value-free, a-political analysis, nor could they do so. The politics of the future of the UK is immediately and unavoidably involved in devising any schemes and solutions, which concern ideas of "constitutional integrity", as the Review Group explicitly recognise in paragraph [34]. 

It is a pure nonsense to argue that Salmond is in any respect "wrong", when he argued that the UK Supreme Court should have no jurisdiction over Scots criminal cases.  To think along these lines is to treat jurisdictional questions as if they were questions of fact, and not the domain of politics proper and naked judgments of value. That the Advocate General's expert group supported the continuing jurisdiction of the UK Supreme Court - and that Salmond's own body shared that sentiment - reflects their values, or in the latter case, their judgements about expediency in a given constitutional situation which they anticipate will continue. Their conclusions are no more the necessary conclusions of deductive reason than your views, or mine. I am not a fan of this sort of expertise politics, where knotty normative questions are transformed into dull dog facts, about which socially powerful and select personages then "inform" the credulous public, handing down their decisions. To be crystal clear, I am resolutely not opposed to deliberation and analysis. Over the years, a number of such reports have done vital work of clarification and critique. However, it is all too tempting all too often to shunt political issues within a framework of expertise, transforming mere opinion into the socially more mighty stuff of professional knowledge, based on independent learning and unencumbered by any outward, suspect signs of political affiliation. The Review Group and the Advocate General's parallel body may not have been party political, and their independence of mind is not to be impugned - but the sorts of answers such groups produce are powerfully mediated by often undisclosed political assumptions, which a significant segment of the public may not share.


The Review Group's full (and relatively short) First Report can be read here; the appendix and more technical supplementary materials here.


  1. Massively interesting & informative piece - hadn't realised the current role of UK SC was greater for Scots cases than for the other nations.

    I'm not totally sure about this, though:

    "Those aiming at an independent Scotland are being perfectly consistent, in rejecting it, while Scotland continues to be part of the Union"

    Surely that only applies to people whose *sole* aim is an independent Scotland? If I were a Nat and also a firm believer in constitutional government, then my attitude would surely be that the UK SC should be the final (or final-pre-ECHR) court of appeal up until independence is achieved, at which point it obviously shouldn't be.

  2. Another bravura performance from MacAskill on Newsnicht Scotia last night.

    The message was that we have drawn a line under any previous woopsies and it's time for everyone to move on.

    You wonder why he's still in post and then remember Cunningham's performance and the reason becomes clear.

    As for the interim report MacAskill's inquisitor last night, Isobel Fraser, suggested that if enacted there would be more, not less, involvement of the Supreme court. She also stated that both the Cadder and Fraser cases would have gone to the Supreme Court under the recommendations.

  3. john b,

    Glad the piece proved instructive. On your dubieties - I concede it is more complex than I suggest in this piece. You could have Scottish Nationalists who hold the position you mentioned. You may also get Unionists who would adhere to the view that the UK Supreme Court should have no jurisdiction of Scots criminal cases, including on human rights grounds. Attitudes towards the Union are not necessarily the faultline. I expanded on the complexity of the issue in this post earlier this month, trying to distinguish different views (and combinations of views) on the UK Supreme Court's jurisdiction. My own feelings are troubled by difficulties with the judgments of Scottish Courts on human rights grounds. I dare say a number of Nationalists of a particular stripe may share these ambivalent feelings. I expand on them in the aforementioned blog.

  4. Anonymous,

    I confess, I haven't seen that edition of Newsnicht or MacAskill's interview - so can't comment in detail. I'm interested to hear that Fraser suggests that McCluskey's proposal would expand the jurisdiction of the UK Supreme Court - I cannot immediately understand how this would be the case. I shall have to give it a peek. On the tests proposed, I'm not actually terribly enthusiastic about appeals being heard on the basis that they raise legal issues of “general public importance”. Ho hum.

  5. I am quite certain that, if enacted, the McCluskey group's proposals would result in less interference by the Supreme Court, since that is almost avowedly what the group wishes to achieve. I am sure Ms Fraser is an admirable professional but I don't see her as the expert and final arbiter of what the effects of the recommendations would be. I imagine it is correct that the High Court might have certified Cadder, though given that they had addressed the point with a bench of seven not long before one cannot be certain. On Fraser, while the point is certainly of public importance - the polis should not fit people up - it may have been particular rather than general, since it was only Mr Fraser they were seeking to fit up with their prestidigitation with the rings. I am inclined to doubt, given their almost palpable animus against the man, whether the High Court would have certified the case. I imagine this is what is bothering you, LPW. I tend to share the view that the High Court can barely be trusted with rights issues, and that in these two cases the Supreme Court got it right. I don't regard this as some kind of stare decisis, however, establishing that in all time coming we need the Supreme Court to look after us. One day the Supreme Court may come to be composed of the most loathsome reptiles. It is certainly always mainly composed of persons less well formally qualified in the law of Scotland than I am: I don't think that's any kind of recommendation! In the case of the ECtHR at least, as the McCluskey group observes, it doesn't set itself up as an appeal court in the usual sense.

  6. Isobel Fraser has an LL.M., so she's better qualified to speak on the subject than most hacks.

    She had also spoken to someone at Edinburgh Uni Law Faculty (an expert, aren't they all?) who reckoned Cadder and Fraser would have been granted leave to go to the Supreme Court under the new proposals.

    She also said that the proposals included a right to go to the Supreme Court if there was a dissenting judgement on any appeals. I think that's where the suggestion of greater involvement, at least in the number of cases, arises.

    As a matter of interest, are the English concerned about a Scottish judge like Lord Hope, who takes the lead in a number of English cases, (and retires to Edinburgh to write his judgements) interfering in their ancient and hallowed legal system?

    Did Magna Carta die in vain?

  7. AF

    'It is certainly always mainly composed of persons less well formally qualified in the law of Scotland than I am'

    I think the important word in there is 'formally'.

  8. It's Paras 66 & 68 which prompt the suggestion that the proposals would result in more, rather than less, involvement by the Supreme Court.

  9. Thank you for your usual impeccable elucidation LPW.

  10. Am Firinn,

    On Fraser, you read between the lines. That is precisely my interest and concern - and the language of "general" legal interest made me ponder. Obviously, it would depend how the High Court of Justiciary interpreted any section, along the lines suggested by McCluskey.

    Anonymous 28 June 2011 21:38,

    Interesting. I didn't know that Isobel Fraser had a background in law. On your point about the English, most recently, when I mentioned that Lord Hope was Scottish and Scots trained to an English lawyer, my interlocutor was quite surprised, unaccountably assuming he was an Englishman! However, I wouldn't wish to impute such ignorance to the generality of English lawyers.


    Glad the piece was instructive! It is always encouraging to know, that occasionally my best efforts to write a comprehensible legal blog does the job.

  11. You may also get Unionists who would adhere to the view that the UK Supreme Court should have no jurisdiction of Scots criminal cases, including on human rights grounds

    Interesting! Yes, I suppose you might. I suppose as someone English-raised who's lived in the US and currently lives in Australia, I've acquired quite a federalist mindset - so the ideal union that my (mild but actual) Unionism envisages for the UK is something along the lines of Australia, where the constituent nations' separate legal systems are bound by common federal law. But now you raise it, I can see a small-c-conservative Scot or Englishman making the case that just because there's a UK government, there's no reason to change things so that there's an overarching UK legal system.

  12. John,

    Interesting. I'd argue that it's the lack of just such a federal mindset at the Westminster "centre" of British politics that continues (in my view) to undermine the stability of the Union - and will significantly contribute to its final unravelling. Although the UK Supreme Court's jurisdiction in areas of fundamental rights and devolved powers might suggest such a approach - it is a lopsided affair, that leaves sovereignty-obsessed English constitutionalism intact. You might also think that the political instability of devolution is owed to the same, unprincipled, shifting constitutionalism that produces it. Talking to Australians and many Europeans on my travels, not to mention Americans, almost all of them have told me how bizarre they find our British wrangles over forms of "local" autonomy which they take for granted in their own political structures.

  13. I agree with you wholeheartedly. Accepting grown-up federalism is the only way the UK can survive - and I'd also argue that England as a single unit of 50 million people governed under a monolithic legal system isn't tenable either.

    I wish my fellow Unionist Englishmen understood this: you ultimately need Scotland, Wales, NI, some appropriate unit representing NE England, some appropriate unit representing NW England, some appropriate unit representing the Midlands, some appropriate unit representing the SW, some appropriate unit representing London, and some appropriate unit representing the Shires, to have appropriate state laws for themselves under a federal UK administration. Sadly, not least because Blair (and especially John Prescott) poisoned the well for English regionalism, it's unlikely to happen.

    So while I genuinely believe the cultural ties in the UK are strong enough to justify a federal nation (the Scots and the NE have more in common with each other than they do with the English Midlands, and so on for most English regions and their neighbouring UK-non-English regions), it's more likely that either we'll muddle on in a half-arsed way, or Scotland will opt for independence. As will Wales and NI, if the EU remains strong (it won't if not, because both countries are dependent on fiscal transfers, whereas Scotland isn't).

    I can't see how a federal nation where one state makes up over 80% of the population could possibly work (imagine the US, but everywhere other than the 13 original states being a single entity), so if England can't regionalise, then there's no future to the Union.

  14. john b,

    Interesting point vis-a-vis England. As we see in the Scottish debates - law-making powers may not be the most controversial concern. As usual, it'll be the money bags which end up prompting many of the political problems. For that reason, I suspect a number of my fellow Scottish nationalists might be suspicious about any movement towards English federalist governance structures. It is one thing to give powers to Scots and Welsh and Northern Irish as "exceptional" political units. It is easy to imagine that if by some miraculous conversion, a Westminster government (half) seriously embraced a federalist politics - and power was to be cascaded throughout the kingdom in the way you outline - those powers may be more limited than Scotland might be able to secure for herself, insofar as she stays within the Union. And in a single bound, the problems of uneven devolution reappear.

    I live in Oxford myself - I will have to make a note to bring up the whole issue with some locals, and see what they make of it from an English perspective.