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The decision of the UK Supreme Court in HM Advocate v. Martin and Miller  [2010] UKSC 10 is the first case – in the ten years of the devolution settlement to date – in which the top court in the UK has had to determine the validity of Scottish legislation on grounds other than whether or not it is in compliance with Convention rights.     The issue in Martin/Millar is a classic issue of constitutional law properly so called – namely whether or not the Scottish Parliament has remained within its devolved competence in passing section 45 of the Criminal Proceedings etc (Scotland) Act 2007 or whether it has improperly strayed into areas reserved to the UK Parliament and hence acted beyond the powers given to it under the Scotland Act 1998.  The answer – according to three of the five judge bench – is that the Scottish Parliament in this case acted intra vires.   But two of the bench disagree, and say that it acted ultra vires when making this provision. 

That the result should be so finely balanced, and that the tone of the dissent (particularly that of Lord Rodger) is so pointed, indicates that policing the boundary between devolved and reserved competence is not an easy or straightforward issue to determine, at least for our judges.  That the Scottish Parliament has to date so skilfully managed to negotiate the interface between the two is remarkable, assuming that that is the correct conclusion to draw from the dearth of such challenges thus far to Scottish legislation.
 
But it may be that this aspect of “the dog that didn’t to bark” points, instead, to the absence of a dog, rather than the absence of opportunities for it to bark – where, putting this metaphor to bed, by “dog” we mean a lively, active and aware public law culture in Scotland.
 
Returning to the matter in hand, however, the specific issue before the UKSC was whether, in increasing to 12 months the maximum sentence of imprisonment which could be imposed by the sheriff sitting as a court of summary jurisdiction  in respect of both common law and statutory offences (including Road Traffic Offences), the Scottish Parliament was unlawfully trespassing into areas reserved to the UK Parliament since paragraph E1 of Schedule 5 to the Scotland Act specifies as being among reserved matters “Road transport”.   More particularly, at sub-paragraph (e) of E1 the “subject matters” of both the Road Traffic Act 1988 and the Road Traffic Offenders Act 1988 are said to be reserved to Westminster.
 
In order to establish whether or not the devolved/reserved boundary has been impermissibly crossed by a provision in an Act of the Scottish Parliament (“ASP”), the Scotland Act requires the Scottish Parliament (and in the event of legal challenge, the courts) to go through a complex algorithm which might be represented in the following series of questions:
(1) What is the purpose of the provision at issue ? (Section 29(3) SA)
(2) What is the effect of this provision in all the circumstances ? (Section 29(3) SA)
(3) Having regard, inter alia, to its purpose and effect, can it be said that the provision at issue “relate to” matters specified in Schedule 5 to the Act as being “reserved” to the Westminster Parliament (Section 29(2)(b) SA) ?  If yes then the provision is ultra vires.   If no
(4) Does the provision make modifications to Scots private law, or Scots criminal law, as it applies to reserved matters ? (Section 29(4)(b) SA).   If no then the provision is intra vires.   If yes,
(5) Is the purpose of the provision to make the Scots private law, or Scots criminal law, apply consistently to reserved matters and otherwise ?    If no then the provision is ultra vires.   (Section 29(4)(b) SA).    If yes, then 
(6) Are the modifications incidental to, or consequential on, provision made (whether in the ASP in question or another enactment) which does not relate to reserved matters. (Paragraph 3(1)(a) of Schedule 4 SA).  If no then skip to question (8).   If yes then 
(7) In the context of the Scottish Parliament’s power to make laws (Paragraph 3(2) of Schedule 4 SA), do the provisions have no greater effect on reserved matters than is necessary to give effect to the purpose of the provision in question? (Paragraph 3(1)(b) of Schedule 4 SA)  If yes, then the provision is intra vires.  If no then
(8) Does the provision in question modify – or confer power by subordinate legislation to modify – a rule of Scots private law, or Scots criminal law which is “special to a reserved matter” (Paragraph 2(3) of Schedule 4 SA).   If no then the provision is intra vires.  If yes then the provision is ultra vires.(Paragraph 2(1) of Schedule 4 and Section 29(4)(c) SA). 
 
In the present case the court answered these question as follows:
(1) The purpose of Section 45 of the Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (“the provision at issue”) was:
(i) “to contribute to the reform of the summary justice system by reducing pressure on the higher courts” and “to make the law relating to the increased sentencing power of the sheriff sitting summarily apply consistently to reserved matters and otherwise” (per Lord Hope at paragraphs 31, 33)
(ii) to “achiev[e] consistency in the sheriff’s sentencing powers, on summary conviction, as between reserved and non-reserved matters” (per Lord Walker at paragraph 57).
(iii) “by enlarging the sheriff’s summary sentencing powers, to reallocate business within the court system – to have more cases tried summarily instead of by a jury, summary trials generally being simpler, faster and cheaper than jury trials (per Lord Brown at paragraph 63).
(iv) “to introduce a novel, general, provision for determining the maximum term which a sheriff, sitting as a court of summary jurisdiction, could impose by way of imprisonment in respect of either-way statutory offences which had previously attracted a maximum sentence of less than 12 months’ imprisonment” that is to say “to increase the sheriff’s summary sentencing powers” by “adjust[ing] the jurisdiction of the Scottish courts by making 12 months the maximum term of imprisonment to which a person is liable on summary conviction of any either-way statutory offence” (per Lord Rodger at paragraphs 105, 113)
(v) “to effect a re-allocation of business within the court structure” (per Lord Kerr at paragraph 169)
(2) As regards the effect of the provision in all the circumstances, Lord Hope opined that it “enable[d] more statutory offences to be prosecuted summarily”  but was not “to achieve an overall increase in the sentences that sheriffs were imposing” (per Lord Hope at paragraphs 36, 37)
(3) All of the Justice were agreed that having regard, inter alia, to its above identified purpose and effects it could not be said that Section 45 of the 2007 ASP “related to” any Schedule 5 SA reserved matters
(4) All of the Justices were agreed that the provision in question made modifications to Scots criminal law, as it applied to reserved matters
(5) All of the Justices were agreed that the purpose of the provision was to make the Scots criminal law, apply consistently as between reserved and devolved matters 
(6) On the sixth question, Lord Hope, Lord Rodger and Lord Kerr were all agreed that the appeal court had got it wrong in Logan v Harrower, 2008 SLT 1049 in holding that the increase in sentencing power of the sheriff from six to twelve months could be said to be “incidental to, or consequential on” a provision which did not relate to reserved matters on the basis that (per Lord Rodger at paragraph 128) that this exception applied only to “the kinds of minor modifications which are obviously necessary to give effect to a piece of devolved legislation, but which raise no separate issue of principle”.
 (7) By contrast, Lord Brown combined questions six and seven and took the view (at paragraph 65) that the “modification is to be seen merely as incidental to a provision being made (for reallocation of court business and the standardisation of the sheriff’s summary sentencing powers) in relation to unreserved matters and has no greater effect on reserved matters than is necessary to give effect to such purpose”.
 (8) The answer to Question (8) on whether the provision in question modified a rule of Scots criminal law which is “special to a reserved matter” was where the Justices finally parted company.  The majority (Lords Hope, Walker and Brown) were of the view that the Scots criminal law rule which had been modified in this case by Section 45 of the 2007 ASP was not “special” to a reserved matter.   By contrast Lord Rodger (with whom Lord Kerr agreed on this issue) was unequivocally of the opposite view, noting:
 
“139. … In my view, a statutory rule of law is “special to a reserved matter” if it has been specially, specifically, enacted to apply to the reserved matter in question – as opposed to being a general rule of Scots private or criminal law which applies to, inter alia, a reserved matter.  …. If interpreted in this way, para 2(3) means that para 2(1) prevents the Scottish Parliament from modifying any enactment which must be taken to reflect the conscious choice of Parliament to make special provision for the particular circumstances, rather than to rely on some general provision of Scottish private or criminal law. Whether or not to modify such an enactment involves questions of policy which must be left for the consideration of the United Kingdom government and Parliament which are responsible for the matter. On this interpretation, paras 2(1) and (3) place a comprehensible limit on what the Scottish Parliament can do. ….
141.   … I conclude that the rule of Scots criminal law prescribing the maximum term of imprisonment for a summary conviction of a contravention of section 103(1)(b) of the RTA, in Part I of Schedule 2 to the RTOA, is “special” to that reserved matter, in the sense that Parliament has chosen it specifically for that offence. So, by virtue of para 2(1) of Part I of Schedule 4 to the 1998 Act, the Scottish Parliament has no power to modify it.”
 
Aside from one’s feeling of amazement that the Scottish Parliament legislation has to date apparently so successfully sailed between the Scylla and Charybdis that this UKSC decision has revealed Schedules 4 and 5 to the Scotland Act 1998 to be, the other remarkable thing about the judgment is first in which Lord Rodger and Lord Hope have disagreed about the result.
 
This is, perhaps, the first time in their tenure together in the UK top court that these two Scottish Justices have reached opposite conclusions in an appeal from Scotland.    Up until now Lord Hope and Lord Rodger have famously stood together – even in the face of unequivocally expressed dissents from their non-Scottish colleagues (Lords Steyn and Lord Walker) in the Privy Council in the November 2002 in H.M Advocate v. R  [2002] UKPC D3;   [2004] 1 AC 462 – and have fallen together, as the lone two dissenter against seven of their brethren (Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Steyn, Lord Hoffmann, Lord Hobhouse, Lord Millett, Lord Scott of Foscote) in the December 2003 of the House of Lords in Attorney General’s Reference No. 1 of 2001 [2003] UKHL 68, [2004] 2 AC 72 .    
 
But more remarkable yet is the tone of Lord Rodger’s dissent from the position taken by the majority on the issue as to whether or not the provision at issue modified a statutory rule of law “special to a reserved matter”.      He says this of his colleagues’ reasoning on the issue:
[Lord Hope]
“144. I agree with Lord Hope when he says, at paras 35 and 37, that the rule of Scots law as to the maximum term of imprisonment that can be imposed – i e the maximum period of 12 months on indictment, set out in the relevant part of column 4 of the Schedule – falls to be treated as a rule that is special to a reserved matter. I have explained my reasons for taking that view. These cannot, of course, be Lord Hope’s reasons. But he gives no explanation for his view beyond the assertion that it “plainly, is a rule which is special to the Road Traffic Acts and it is a reserved matter.” …
146. In the end, therefore, all we know is that, for some unstated reason, the maximum sentence which can be imposed on conviction of a contravention of section 103(1)(b) of the RTA in a prosecution on indictment is a rule which is “special to the Road Traffic Acts”, but the maximum sentence which can be imposed for the same offence in a summary prosecution is not.
 
 [Lord Walker]
 147. In para 59 of his judgment Lord Walker identifies what the relevant rule of Scots criminal law to be modified is not: it is not that driving while disqualified is a criminal offence (agreed), nor that it is a criminal offence punishable by imprisonment (agreed), nor that the maximum term of imprisonment is 12 months (also agreed, since, again, this must be a reference to the maximum term of imprisonment in a prosecution on indictment). The inference seems to be that these rules might indeed be “special to a reserved matter” and beyond the reach of the Scottish Parliament. As Lord Walker says, however, all these rules have been left untouched. You then eagerly wait to hear about the rule that has not been left untouched: that the maximum term of imprisonment is 6 months in a summary prosecution. But you wait in vain. Instead, the rule to be modified turns out to be “whether (and if so to what degree) the option of summary trial before the sheriff should reduce the maximum sentence that can be passed.”   With great respect, that does not really look much like a rule of Scots criminal law. …. By enacting section 45, the Scottish Parliament purported to modify the rule that the maximum term of imprisonment for this offence in summary proceedings is 6 months.    The unavoidable question is whether that rule is “special to a reserved matter” in terms of para 2(3) of Part I of Schedule 4 to the 1998 Act. But that question is neither posed nor answered.
  
[Lord Brown] 
 148. Having bowed politely in the general direction of the argument, Lord Brown rests his conclusion on simple assertion.
 149. Until now, judges, lawyers and law students have had to try to work out what Parliament meant by a rule of Scots criminal law that is “special to a reserved matter.” That is, on any view, a difficult enough problem. Now, however, they must also try to work out what the Supreme Court means by these words. It is a new and intriguing mystery.”
 
In Part 2 of this post Aidan O’Neill will consider