6 June 2013

"... we are against the UK Supreme Court..."

Remember Cadder? Not, perhaps, the First Minister and Justice Secretary's finest hour.  In 2011, in response to the UK Supreme Court's judgment about the right of suspects to legal advice, the two SNP politicians turned their rhetorical dials all the way up to eleven.  Salmond argued that:

"I don't think it's sensible, fair or reasonable in any jurisdiction where we've a situation where one judge is overruling the opinion of many judges in another court.  It boils down to the potential replacement of Scottish law by Lord Hope's law. I don't think that's a satisfactory situation."

Farcically, the Scottish Government went on to oppose the idea of installing a Scottish majority on the Court.  Since, they've been avoiding the topic of the Supreme Court's jurisdiction for grim death, entangling the issue in technical, unpolitical language, having secured amendments to the Scotland Act of 2012, constricting the rights of folk in criminal proceedings, to take their human rights cases to London when they've been disappointed in Edinburgh.  

In the meanwhile, civil justice is being shaken up across the country and the question of civil appeals from Edinburgh to London is now back on the political agendaIn May 2012, I set out the - I think persuasive - legal case that the Scottish Parliament can now unilaterally cut common-or-garden civil appeals from the Court of Session to the UK Supreme Court, if the SNP government had a will to do so. While Holyrood doesn't have the legal power to end appeals to London on the basis of EU law, the European Convention on Human Rights, or devolution more generally, the parliament could bring the treatment of Scottish civil cases into line with Scottish criminal proceedings. 

Save for this sort of "constitutional" litigation turning on fundamental rights or European law, Scottish civil and criminal cases could end in the Court of Session and High Court respectively, if the SNP majority exercised itself.  There are plenty of understandable reasons to justify doing so, not least that a decision of the UK Court on appeal invariably involves the review of a judgment of three judges of the Court of Session by the Supreme Court's two Scottish Justices, who corral the English majority on the bench into mutely endorsing their preferred decision.  

What's more, although both Scottish civil and criminal law are distinct from the English system, the gaps in the UK Court bench's judicial knowledge of civil law are likely to be at least as significant as their ignorance of Scots criminal law.  Property law furnishes the paradigm example, the English system an eccentric mixter-maxter of principles of Common Law and Equity, the Scots a more systematic body of norms, organised along Roman lines. An English judge - or three English law judges - are not likely to be in their element, adjudicating tricky cases taken under great parts of Scots private law.  Better, one might argue, to leave it to specialists.

Curiously, despite the Scottish Ministers' past forays into superheated indictments of the Court's legitimacy, and anxieties about its English-educated majority, last week the SNP government launched a consultation on its proposals not only to retain the UK Court's civil jurisdiction, but to allow the tribunal (and alternatively, the Court of Session) to pick and choose which cases it examines on appeal. 

At the moment, Scottish litigants access the UK Court on more favourable terms than English, Welsh and Nothern Irish litigants, and do not have to demonstrate that their case raises an "arguable point of law of general public importance which ought to be considered by the Supreme Court at that time". Ironically, the SNP are, once again, proposing to bring us into line with English practice in this respect, Ministers' criticism of the jurisdiction of the Court, forgotten. 

In 2010, SNP MSP Stewart Maxwell told the Scottish Parliament that:

"... we are against the UK Supreme Court. We were against it when it was created: we have been against it from the beginning and we are against it now. It is Labour’s folly."

From the same debate, another SNP MSP, Dave Thompson, said:

"The UK Supreme Court was established in October 2009 to deal with civil matters, despite opposition from the SNP. We warned that it was irrational for a court without a majority of Scottish judges to decide on cases involving Scots law. We also pointed out that the practice of hearing Scots civil cases in the House of Lords was a historical anomaly and that that role should be repatriated to Scotland. What other legal jurisdiction allows its appeals to be heard in another jurisdiction?  Unfortunately, the previous Labour-led Administration failed utterly to stand up to Westminster and protect the independence of Scots law."

I wonder if we can expect Maxwell and Thompson to turn the same great guns on their party colleagues, who now seem so keen to retain and entrench the "anomaly" of London's civil jurisdiction, which they once so bitterly opposed.


  1. DICK
    The first thing we do, let's kill all the lawyers.
    Nay, that I mean to do. Is not this a lamentable
    thing, that of the skin of an innocent lamb should
    be made parchment? that parchment, being scribbled
    o'er, should undo a man? Some say the bee stings:
    but I say, 'tis the bee's wax; for I did but seal
    once to a thing, and I was never mine own man

  2. Ha! Very good, Conan.

    For the purpose of the cull, I may have to redesignate myself as a sociologist instead. And conceal my lambskins under the bed...

  3. Surely in modern caring sharing Scotland we should say

    T'he first thing we do, let's retrain all the lawyers.'

    Thanks for this piece LPW - you make pellucid the impenetrable!