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In the final article of this series Aidan O’Neill QC discusses devolution issues and the Scottish route of appeal to the UKSC. The first article is linked to here.

 

Political opposition to London appeals on the basis of claims to Scottish popular sovereignty

In 1989, on the three hundredth anniversary of the Claim of Right 1689, the self-styled “Scottish Constitutional Convention”, a pressure group of Labour and Liberal politicians and sympathetic academics and other representatives of civil society seeking to further the cause of devolution to Scotland in the latter days of the Thatcher administration, produced a new Claim of Right 1989 which read-

“We, gathered as the Scottish Constitutional Convention, do hereby acknowledge the sovereign right of the Scottish people to determine the form of Government best suited to their needs, and do hereby declare and pledge that in all our actions and deliberations their interests shall be paramount.   We further declare and pledge that our actions and deliberations shall be directed to the following ends: to agree a scheme for an Assembly or Parliament for Scotland; to mobilise Scottish opinion and ensure the approval of the Scottish people for that scheme; and to assert the right of the Scottish people to secure implementation of that scheme.”

The workings of this Scottish Constitutional Convention were boycotted by the Conservative Party (on the basis of their then commitment to unitary unionism within the UK) and by the Scottish National Party (on the basis of their commitment to complete independence from the UK).  Its deliberations did much to inform the form and structure the devolution settlement which eventually came to Scotland when the Labour Party came into power in Westminster in 1998 and decided to complete this “unfinished business” by enacting the Scotland Act 1998 “in accordance with the settled will of the Scottish people”.

On 26 January 2012 to coincide with the publication and launch of its own consultation document Your Scotland, Your Referendum: a consultation  (Edinburgh, 25 January 2012) on the mechanics of the referendum on Scottish independence, the Scottish Government initiated a debate in the Scottish Parliament on the motion

“That the Parliament acknowledges the sovereign right of the Scottish people to determine the form of government best suited to their needs and declares and pledges that in all its actions and deliberations their interests shall be paramount”

 The political message intended to be given by the staging of this debate was clear. Notwithstanding the Scottish Government’s implicit acceptance of the claim of the UK Government (made in Secretary of State for Scotland Scotland’s constitutional future: a consultation on facilitating a legal, fair and decisive referendum on whether Scotland should leave the United Kingdom (London, 15 January 2012))  that the Scotland Act 1998 in its then current form did not give the devolved institutions in Scotland power to hold such a referendum but instead required specific authorization from Westminster, the Scottish Government sought to clothe itself in claims to their being truly the representatives of the Scottish people.  And in its February 2013 discussion paper Scotland’s Future: from the Referendum to Independence and a Written Constitution the Scottish Government says that:

“2.8 For centuries, it has been acknowledged that the people of Scotland have the sovereign right to determine the form of government best suited to their needs.   Independence day will mark the point at which the full exercise of that sovereignty is restored to the Scottish people.

…

The Sewel Convention and the forthcoming Referendum Bill are representations of the modern constitutional reality that constitutional change is no longer designed on Scotland’s behalf by Westminster, but made by the sovereign people of Scotland themselves through their democratically elected Scottish Government and Scottish Parliament. Therefore, just as with the Edinburgh Agreement, the Scottish people will expect the Scottish Government and Parliament to have the leading role in legislating for the creation of a constitutional platform for an independent Scotland.”

 The present Scottish nationalist administration in Scotland – and in particular the First Minister- has made plain their unhappiness with a number of decisions made by the House of Lords (for example Somerville v. Scottish Ministers, 2008 SC (HL) 45 on time bar, just satisfaction damages and the constitutional relationship between the Scotland Act 1998 and the Human Rights Act 1998 which had an impact on the backdating of compensation claims for prisoners detained in Convention incompatible “slopping-out” conditions ) and by its successor UK Supreme Court (notably Cadder v. Her Majesty’s Advocate, 2011 SC (UKSC) 13 on the Convention right to have a solicitor present during a police interview while in police detention).

Indeed in the course of 2011 there appeared to be a specific political campaign mounted by the First Minister and the Minister for Justice to heighten and personalise attacks on the UK Supreme Court, seeking to portray it as a foreign court foisted on Scotland which, contrary to the compact set out in the 1707 Union, its judges careless of the importance of the preservation of the distinctiveness of Scots law (see Aidan O’Neill See “Back to the Future: Judges, Politicians and the Constitution in the new Scotland” (2013) 18 Judicial Review 45-71)  The apparent readiness on the part of these Scottish politicians to personalize attacks on judges in language which may be characterised as less than temperate may perhaps be explained as an example of a more robust style – perhaps harking back to the “flyting” style of the 16th century Scots court poets the “makars” – that has long distinguished Scottish public discourse and critique, even of judges. What is clear, however, is that the Scottish nationalist administration seems to be chafing against the confines imposed by the Scotland Act 1998 and appear to find particular objection to their acts and omissions – and the Acts of the Scottish Parliament – being subject to review by a court based in London.

Does the regulation of appeals from Scotland to the UKSC now fall within the competence of the Scottish Parliament ?

 One immediate contemporary relevance of the foregoing historical analysis to determine the constitutional basis for the UKSC jurisdiction in Scottish matters is as follows.  If the Scottish appellate jurisdiction of the UK Supreme Court inherited from the House of Lords is ultimately derived from the practice of appeals to the pre-Union Scottish Parliament, then there may be thought to be a respectable argument to the effect that the further regulation – or indeed abolition of this appellate jurisdiction – may now fall within the powers which have been devolved under the Scotland Act 1998 to the present Scottish Parliament.   Although certain aspects of the constitution are reserved to the UK Parliament by paragraph 1 of Schedule 5 to the Scotland Act 1998, this particular appellate jurisdiction is not there listed.

Further, given that the UK Parliament has under the Constitutional Reform Act 2005 divested the House of Lords of its appellate jurisdiction from Scotland and transferred this to the UK Supreme Court, it cannot now be said that for the Scottish Parliament to seek to regulate in this area of the court’s jurisdiction would infringe upon “the Union of the Kingdoms of Scotland and England” or “the Parliament of the United Kingdom”, or “the continued existence of the High Court of Justiciary as a criminal court of first instance and of appeal” or  “the continued existence of the Court of Session as a civil court of first instance and of appeal”, all matters reserved specifically reserved to Westminster by Paragraph1 of Schedule 5 to the Scotland Act 1998.

On this analysis there would have to be amendment of the Scotland Act 1998 by the UK Parliament to entrench the current jurisdiction enjoyed by the UKSC against any limitations that might now sought to be imposed on it by the Scottish devolved authorities.

But this argument, which traces aspects of the UKSC’s jurisdiction back to the Claim of Rights 1689, would still not make it possible for the Scottish Parliament wholly to divest the UK Supreme Court of all of its jurisdiction in Scottish matters.  It is of the essence of the devolution settlement that the devolved institutions do not have Kompetenz-kompetenz:  power devolved is power retained.   It is therefore not within the powers of the devolved institutions for themselves to determine the extent of their own legal powers, or to “bootstrap” themselves with new powers as paragraph 4(1) of Schedule 4 to the Scotland Act 1998 provides that “an Act of the Scottish Parliament cannot modify, or confer power by subordinate legislation to modify this Act”. AXA General Insurance Ltd and others v Lord Advocate and others [2012] 1 AC 868, UKSC per Lord Reed at paras 145, 146:

“145 …. As in the case of any other statutory body, the court determines the scope of the powers of the Scottish Parliament by applying the principles of statutory interpretation to the relevant provisions, taking into account the nature and purpose of the statute under consideration.….

146 … The Scottish Parliament is subordinate to the United Kingdom Parliament: its powers can be modified, extended or revoked by an Act of the United Kingdom Parliament. Since its powers are limited, it is also subject to the jurisdiction of the courts.”

 Thus the devolution jurisdiction conferred on the UK Supreme Court under and in terms of the Scotland Act 1998 cannot competently be modified by the Scottish Parliament,  if one follows and accepts a classic to-down UK constitutional analysis to the effect that the Scottish Parliament and Scottish Ministers exercises its devolved power by concession of the sovereign UK Parliament.  It does not, as a matter of law, exercise sovereign powers as of right, or in any exercise of the popular sovereignty of the “Scottish people”.

Conclusion

 One thing seems clear, however: the tension between legal sovereignty and popular sovereignty will continue to inform the law and politics of the Union, particularly if and insofar as and the devolved institutions in Scotland remain under the control of the Scottish Nationalist Party.   The fact is that these kind of appeals to a distinctive Scottish tradition of the sovereignty of the Scottish people do retain a certain resonance.  It may be that such claims are being used within the current political climate to bolster arguments for an expansive reading of at least the legislative powers conferred under the Scotland Act 1998.

It is, perhaps, of some note that thus far every challenge bar one (the recent Salvesen v Riddell [2013] UKSC 22 being the only exception) to the lawfulness of any provision of an Act of the Scottish Parliament which has reached the top court for these matters – whether the Judicial Committee of the Privy Council or now the UK Supreme Court – has been unsuccessful: see Imperial Tobacco Ltd v Lord Advocate [2012] UKSC 61; 2013 SLT 2 per Lord Hope of Craighead at paras 5-7.   This shows a remarkable rate of success on the part of the Scottish authorities in defending before the courts in London the exercise by the Scottish Parliament of its primary legislative powers.   The court seems ready to exercise a high degree of deference to the devolved legislature and, apparently, to accord it a wider margin of appreciation in the definition and exercise of its legislative powers than might have been predicted in a purely devolved – contrasted with a federal – political and constitutional structure.    Perhaps then, our, judges are not deaf to appeals to the idea of the sovereignty of the (Scottish) people.   Even in a devolved non-independent Scotland, appeals to popular sovereignty and to the settled will of the (representatives of the) Scottish people seem to be having some success before the courts.

But the problem with judges of the UKSC speaking of appeals from Scotland as being a “privilege” rather than a fundamental constitutional right is that it may encourage politicians – of a legal nationalist and much as a political nationalist bent – to see if they could exercise their powers, even under the current devolved arrangements, so as to abolish appeals from the Court of Session to the UKSC in all areas, other than those cases which raise devolution issues”.  After all, is that not what the UKSC judges are now asking for ?