"Ane absolute power to Cass, Annull & Dissable -- Contrair to Law..."

Last night, the Lord Advocate James Wolffe QC published the Scottish Government's written intervention in the Article 50 litigation. The case is scheduled to be heard by all eleven of the UK Supreme Court's Justices between the 5th and 8th of December.  

It is, as you'd expect, a weighty legal document which you may not find instantly digestible. A quick scan throws up a range of old constitutional familiars: the Claim of Right Act 1689, the Act of Union, the Sewel convention -- and even our old friend MacCormick v Lord Advocate. But what does all this mean? When you boil it all down, what is the Scottish Government really arguing for in the Brexit hearing? 

In a nutshell, James Wolffe is pursuing two distinct lines of argument. The first focuses on whether ministers can use the royal prerogative to activate Article 50 and the United Kingdom's departure from the European Union. The second concerns the so-called "Sewel" convention. Is Holyrood's consent constitutionally necessary, if Article 50 is to be activated? 

Let's start with the first line of argument. The royal prerogative is the name given to the residual legal powers of the crown. Its exercise entitles Her Majesty's government to enter treaties with foreign powers, or even to declare war, without reference to parliament. Earlier this year, the three judges of the Divisional Court held that Theresa May's government could not use the foreign affairs prerogative to activate Article 50. The Lord Chief held that Westminster must pass legislation, to begin disentangling Britain from the EU, and stripping away the rights in domestic law connected to it. The Scottish Government have weighed in behind this argument, but appeal to different sources.

The Lord Advocate invokes the preamble to the Claim of Right Act, passed by the old Scottish Parliament in 1689 in the aftermath of the eviction of King James VII and II from the country and the throne. Parliamentarians slammed James for having corrupted his rule "from a legall limited monarchy to ane Arbitrary Despotick power and in a publick proclamation asserted ane absolute power to cass annull and dissable all the lawes." Their 1689 Act states any attempt to use crown authority to "cass, annull and dissable" laws was itself "Contrair to Law." 

Here, the 1706 and 1707 Acts of Union warrant a passing mention. As James Wolffe points out, Article XVIII of the Acts provides that  "all other laws in use, within the Kingdom of Scotland, do after the union and notwithstandng thereof, remain in the same Force as before ... but alterable by the Parliament of Great-Britain." Notice the critical point here. "At the foundation of the United Kingdom, it was Parliament ... and not the Crown, which was given power to change the law of Scotland."  Read together, he suggests, these sources confirm the Divisional Court's judgment that it is for parliament -- not the crown in exercise of its royal prerogatives -- to alter the law of the land. 

Here the Scottish Government's argument shifts forwards, towards more contemporary sources. Wolffe argues that if Theresa May was entitled to use the prerogative to activate Article 50, its effect would hollow out a range of laws currently applicable in Scotland, including the Scotland Act, which "assumes the UK, including Scotland, is a member of the EU." The devolution legislation requires Holyrood to respect the rules and regulations of EU law. So too must Scottish ministers. "The effect of withdrawal from the EU", he contends, would be to "cass, annul or disable" these provisions - a step which the Lord Advocate concludes "may not, compatibly with the Claim of Right Act 1689, be effected by an act of the prerogative alone."

If the Supreme Court accepted this line of argument, it would be for the Westminster parliament to legislate for Article 50. But where stands Holyrood then? Here, the Lord Advocate's case shifts onto different terrain, and its second main theme. Is Holyrood's consent required or not to legislate for Article 50? As AV Dicey famously maintained, Westminster is sovereign under the British constitution. Between 1707 and 1998, MPs legislated for Scotland. Devolution didn't deprive the UK parliament of this power. This is recognised in the Scotland Act 1998 itself. Section 28(7) stresses that devolution "does not affect the power of the Parliament of the United Kingdom to make laws for Scotland."  

But since 1998, the interaction between the two parliaments has been governed by a constitutional convention, sometimes called the Sewel convention. The Scotland Act 2016 recognised the long-standing rule of constitutional morality that Westminster "will not normally legislate with regard to devolved matters without consent." This convention is generally regarded as having two limbs. Firstly, if the UK parliament wants to pass legislation in areas lying within Holyrood's powers - on health say, education, or family law - MPs should seek consent from MSPs. But beyond that, if Westminster legislation would expand or contract the powers of Scottish Parliament or its ministers, this too requires consent.  A good example of this was the additional powers devolved by the Scotland Act 2016 itself.

In his brief, the Lord Advocate argues that "withdrawal of the UK form the EU would alter the competence of the Scottish Parliament and Government, and the law applicable in Scotland within devolved competence. A Bill to authorise withdrawal would accordingly engage the legislative consent convention." Holyrood's consent, he says, must be sought. 

For the sake of argument, let's say that the UK Supreme Court agree with him. Then what? Does the convention have any legal teeth? Consider, for example, the eminently plausible scenario, that the majority in Holyrood refuses to give its consent to any Article 50 Bill, unless the UK government commits to pursuing the gentlest Brexit possible. Say also that Theresa May is unwilling to bow to this pressure, and presses on with an Article 50 Bill and the hardest of hard Brexits. Is the Lord Advocate seriously suggesting Holyrood has the legal power to frustrate Westminster? In law, does the Scottish Parliament hold a Brexit veto? The answer may disappoint you, and irate headline writers everywhere. 

If you read the Scottish Government's submissions carefully, they actually conclude Holyrood has no legal power to "block" an Article 50 Bill passed by Westminster.  If the UK parliament were to choose to pass an Act of Parliament without Holyrood's consent, the Lord Advocate concedes, "the courts could not decline to recognise the validity of the resulting Act." He accepts that Holyrood has no legal trump over Brexit. Politically, of course, overriding Holyrood and ignoring its objections would embroil the two governments and parliaments in a potentially poisonous constitutional crisis. 

And it is this opportunity to put Theresa May under political pressure which the Lord Advocate seems to be angling for in this intervention. What he is looking for is a direction from the Supreme Court that constitutionally, Holyrood should be consulted about any Article 50 Bill, whether or not Westminster respects Holyrood's conclusions. This, he suggests, "would not involve an impermissible interference with proceedings in Parliament" and would represent the Court fulfilling "its proper function of identifying the constitutional requirements."

It remains to be seen whether either of these lines of argument prosper. You can read the whole submission for yourself here.

Lord Carloway's right to silence

Earlier this year, the Scottish Parliament's Justice Committee launched an inquiry into "the role and purpose of the Crown Office and Procurator Fiscal Service," to focus on:

"... its core role and examine the effectiveness and efficiency of the COPFS, how well it works with its stakeholders, and the support it provides to witnesses and victims of crime. The Committee will also examine its responsiveness to new challenges and opportunities, such as the evolving nature of crime and advances in technology."

How Scotland's independent prosecutors are functioning seems just the kind of thing which ought to interest our parliament's lead committee in justice matters at the best of times. But these are not the best of times for Scotland's independent prosecution service. The Lord Advocate's department hasn't been immune from the belt-tightening across Scottish budgets. And new priorities are always accumulating.

The stresses and strains of trying to do more with less in our criminal courts are showing. Just a couple of days ago, the government's People Survey yielded some ambivalent evidence about Crown Office staff's experience of their working environment. Early in September, a number of senior lawyers expressed concerns about Crown Office capacity. Seasoned criminal silk, Brian McConnachie QC, feared that Scottish prosecutors: 

"... don’t have the kind of resources they require to properly carry out the prosecution of crime from low level Justice of the Peace courts all the way up to the most serious crimes in the high court. It does seem that there are cases that are not being properly prepared, cases having to be put off on numerous occasions because COPFS has had trouble finding witnesses or providing full disclosure to the defence." 

Mr McConnachie's observations may be well founded or not -- the Justice Committee inquiry is an excellent opportunity for a candid assessment of the challenges facing modern prosecutors in a time of spending constraint. To build a complete picture of how procurators fiscal are doing, Parliamentarians hoped to speak to a wide range of folk who interact with prosecutors -- including judges. But MSPs face a challenge this morning, as the Herald reports that the Lord President - Lord Carloway - has written to his fellow judges, telling them that he wouldn't be giving evidence to MSPs, and that he expected every serving judge in Scotland to follow his example, from High Court judges down to Justices of the Peace. This isn't a wholesale refusal to cooperate. The committee will have the benefit of the judicial perspective in written submission from the Scottish Courts and Tribunal Service.

In response, the new Tory justice spokesman in Holyrood, Douglas Ross makes a fair point: "It seems astounding that judges or sheriffs wouldn't be in a position to give evidence on the Crown Office. They are watching it in action every day and seem like they would be ideally placed to speak to the Justice Committee on what needs to be improved," he said. So what is Lord Carloway's explanation for this prima facie curious refusal to appear before parliament? The Justice Committee have published the full text of the Lord President's letter, which sets out his reasons for this policy. And I must say, I find them extremely unpersuasive.

Lord Carloway expresses a series of objections. In the first place, he suggests it would be "constitutionally" improper for him - or any other judge - to meet MSPs "informally" to discuss the inquiry. "Any such meeting would require to be a public one," he argues, for reasons of transparency and because any comments or criticisms" of prosecutors should be made in a forum which allows them "to respond properly." This seems eminently reasonable. Judges shouldn't conduct whispering campaigns or backroom briefing against the lawyers who appear before them. Natural justice demands a more open process -- a process best served, you might well think, by judicial participation in public hearings, rather than boycotting them.

But here we turn to Carloway's second objection, and here the Lord President loses me. He begins on an admirable note of modesty. He worries he may not be best placed to speak to prosecutors' systematic effectiveness: "it is difficult for the Lord President to comment on the overall efficiency and effectiveness of COPFS as, sitting as a judge, he sees only a part of the work of COPFS; in effect the end product of the Crown's work. Inevitably that is a very limited perspective. It would be inappropriate to draw conclusions based on subjective experience of a small pool of cases and therefore a narrow view of these matters." But he also extends this logic to his brother and sister judges. His legal secretary writes: "He does not consider that individual judges and sheriffs are in a position to comment on the various issues, given that such comments would be based either on anecdote or an incomplete understanding of the facts."

This is a baffling rationale for barring his judicial colleagues from giving evidence. Professor James Chalmers put the central point neatly this morning. "If anyone had a 'complete understanding', the Committee could just interview them and be finished in an afternoon." This is basic social research. You don't have to know everything about an organisation to be able to say something significant about your experience of how well it works. Of course, this perspective will be limited. Of course, we should be cautious about drawing wide-ranging conclusions from witnesses with partial perspectives.

But contrary to the Lord President's assertions -- judicial experience isn't just empty anecdote or irrelevant subjectivity. Judges see the law in action. It seems perverse to argue that just because judges don't know everything about how the Crown Office operates, they shouldn't share any of their many informed impressions about the quality of the "end product" of prosecutors' work.  And after all, aren't its "end products" quite important, in evaluating the effectiveness and efficiency of an organisation? 

Lord Carloway - who deals almost exclusively with appeals work - may be unable to speak to the effectiveness mass of routine prosecutions for lower level offending which takes place, for example, in Glasgow Sheriff Court. But why prohibit those judicial officers do have that insight from sharing their experiences with parliament? 

It is not as if the Appeal Court maintains a self-denying ordinance in these matters. Lord Carloway and his colleagues fairly often pass general comment on how Crown Office lawyers handle their cases, extrapolating from individual facts and circumstances to more general problems and challenges faced by prosecutors. A single case might be an "anecdote" -- it might also neatly encapsulate problems which are more systematic. This is precisely what Margaret Mitchell's Committee is trying to do, according to their own lights. 

Of course individual judges don't have a complete picture of the issues facing COPFS, but they must have a perspective which could usefully add to that picture. Ultimately, it is for MSPs to pull that picture together. It is for parliamentarians to weigh up the credibility and reliability of the evidence they hear. It is for them to make the judgements about how far they ought to extrapolate from witnesses' observations, and how far they should treat the evidence they hear with caution. Lord Carloway invokes constitutional propriety in his letter. Just how constitutionally appropriate is it for the Lord President to take it upon himself effectively to decide these questions for the Committee in advance? Strange times.

Escaping the Mire

Longstanding readers of this blog know what I think about the Offensive Behaviour at Football Act, and the events which led to its introduction. Alex Salmond seized on an Old Firm fracas in 2011, arguing that this so-called "shame game" required special legal measures.

Elected with a majority in the Holyrood election of that year, there was no restraining the former First Minister. He tapped unlucky Roseanna Cunningham to be the ministerial face and voice for a policy which was justified by sweeping populist rhetoric, but which was fundamentally reckless and un-thought-through.

A succession of embarrassing ministerial performances followed, in the chamber, and in the media. Kenny MacAskill sputtered "matters" relentlessly on Newsnicht. Roseanna suggested, depending on the context, that genuflecting or singing the national anthem might get you a jail term under the new rules. Unlucky civil servants were drafted in to give legislative shape to ministers' vague aspiration to use the criminal law still further to intervene in the regulation of fan behaviour in and around football matches.

Folk in parliament rhubarbed. Folk outside parliament rhubarbed.  Folk inside the SNP rhubarbed, including elected members, who nevertheless, cast their votes for the measure under the stern gaze of party whips. I remember taking to the airwaves against - now - Green MSP John Finnie. In those days, he was a Nationalist politician, and vociferously defended the legislation, accompanied by retired coppers and politically-helpful prosecutors from the Crown Office. None of this eliminated the fundamental problem with the law. 

To borrow a phrase from one of Scotland's judges, it was "mince." Certainly, the Act "sent a message" to hooligan elements who hover around football clubs and matches. But that message was as muddled and confused as the legislative provisions themselves.  Polling evidence showed - and has shown since - that the Act is supported by a majority of the public. But popularity doesn't transform a bad, paradoxical law into a good law. Being a lawyer, these problems perhaps excessively preoccupy me. But even if you are broadly supportive of the idea of prohibiting threatening and hateful speech in football grounds and outside them -- you still can't escape the conclusion that in 2011, Scottish ministers had no idea what they were doing, or why they were doing it, or why they were doing so on an "emergency" timetable. It was a picture of recklessness. 

The Act they left behind them is an appropriate testament to their cack-handedness. Getting your head around what the legislation does and does not criminalise can be tricky. That's one of the failings of the law. But it outline: it creates two new criminal offences: (1) offensive behaviour at football, and (2) threatening communications. The first offence applies in a range of locations. If you are in and around the ground of football matches, or on a journey to and from the grounds, it applies to you.

It also applies to you if you are in a public space, with a regulated match playing in the background. If you begin shouting and bawling at folk on their way to matches, the Act catches you too. There are some paradoxes about this. The law treats you as "on a journey" to a match, whether you attend, or even intend to attend a match. This even includes overnight breaks. Philosophically, we are all, potentially, on our way to a regulated football match. At least according to parliament.

But the new crime focuses on offensive behaviour. The law recognises different kinds of bad behaviour. It criminalises "expressing hatred" against groups or individuals, on the basis of their perceived religious affiliations, or on the grounds of sexuality, disability, nationality or race. This might be singing "the Famine Song," or saying "I hate the Orange Order", as you prop up a bar in which the Greenock Morton v Partick Thistle match is playing in the background.

But the law also extends to "threatening" behaviour, and  -- most controversially -- "behaviour the reasonable person would find offensive." The old common law offence of breach of the peace only criminalised behaviour which could "alarm the ordinary person" and "threaten serious disturbance in the community." The OFBA goes far further. The old offence of breach of the peace was certainly vague. Making "offence" the criterion for a criminal offence is even more problematic.

Recognising this, SNP ministers introduced what they characterised as a "safeguard." It wasn't enough for behaviour to be hateful, threatening, or offensive. In order to be punished under the new Act, it had to be "likely to incite public disorder." This sounds like a high hurdle for prosecutors to overcome. The SNP's justice team represented it as such to the Scottish Parliament's Justice Committee. But the detail of the law blew the lid from this "safeguard." 

Why? Because in the absence of any actual members of the public to be scandalised into violent disturbances by offensive behaviour, the Act instructs sheriffs to invent turbulent soccer fans or supporters who might have been provoked into violence by the offensive singing, or banners, or behaviour. The Act provides that courts should discount the fact that "persons likely to be incited to public disorder are not present or are not present in sufficient numbers." Defenders of the OBFA often claim that they are objecting about sectarian singing "in context." But the Act specifically requires prosecutors, police and courts to ignore the real context where songs are being sung, or behaviour is taking place. 

Singing the Sash in die-hard loyalist pub, for example, is unlikely to generate any mischief. But ministers were determined that this kind of - unattractive - behaviour should be prohibited by the legislation. In so doing, they made a mockery of the idea that the "public order" test was any meaningful limitation to the broad new offences created by the Act. 

So what's to be done? Repealing the Act simpliciter? As defenders of the legislation point out, what kind of message would that send to the diehard bigots, mischief-makers and trolls? And for that matter, what alternative is the opposition in the Scottish Parliament proposing? It is all very well to carp from the sidelines, but what constructive solution are James Kelly and his allies offering? Those are the Scottish Government's lines in today's spinwar. But there are a few obvious, practical solutions which the Cabinet Secretary for Justice, Michael Matheson, ought to be considering.  

In passing the Act in 2012, Holyrood gave ministers considerable power to amend the most controversial parts of the legislation.  We don't need new legislation to strip out the "behaviour the reasonable person considers offensive" provision of the Act.  Section 5 of the OFBA gives Michael Matheson the power to strike that provision from the statute book tomorrow. You'd be left, criminalising "expressions of hatred", and "threatening" behaviour.

It would be an altogether tougher spot, for Mr Kelly to defend abolishing those offences. Unless, that is, you approve of threatening behaviour in sports grounds. But the Act goes further. It also empowers ministers to draw a line through the daft provision, which instructs judges to invent potential incitees to public disorder. Again, this wouldn't require new legislation. Michael Matheson need only lay the order before Holyrood, and MSPs need only vote for it.

If the Scottish Government took both of these steps, the law would be considerably tightened. Procurators fiscal would have to establish (a) hateful or (b) threatening behaviour, and beyond that, they'd also have to establish that behaviour was "likely to incite public disorder" in the real context in which it takes place. That is a far higher test for prosecutors to satisfy, and doesn't transport our sheriffs to a fantasy land of invisible, touchy Queen of the South fans, or furious Dons, tired of unsubstantiated allegations of sheep-shagging.

If these reforms were introduced, in a trice, the Scottish Government would have eliminated the Act's most controversial (and badly thought-through) sections. The temperature would be turned up considerable on the opposition -- some of which is principled, but a good part of which is calculating, shallow and partisan. 

There is no shame in admitting you got things wrong. It was a bad Bill, introduced after a bad process, badly defended and badly enforced. To a significant extent, the outgoing FM must bear the burden of having foisted this inconvenient controversy on his successor. But there are obvious opportunities here for Nicola Sturgeon's government to revisit its errors, to make the law better, and to turn up the heat on their opponents.

As things stand -- the Scottish Government seems confident it can win the PR battles against James Kelly and his allies. It seems to have given scanty thought to reform, and to seizing the initiative from the serried ranks of their opponents. They seem primed to stare defeat in the face, but well-prepared to grouse about it. But for this critic of the legislation, they can do much, much better than that. They said they believed in this measure. Let them fix it. If they don't take these opportunities, they have only themselves to blame.