Share it

On 22 January 2010 Professor Neil Walker, Regius Professor of Public Law and the Law of Nature and Nations at the University of Edinburgh, published his report on Final Appellate Jurisdiction in the Scottish Legal System.   Initially prompted by the imminent setting up of the UK Supreme Court, the Scottish Minister of Justice, Kenny MacAskill MSP of the Scottish National Party commissioned Professor Walker in December 2008 to look into possible option for reform of the constitutional arrangements which currently allow for appeals to be taken to London from decisions of the courts in Scotland.  

The Scottish Parliament is prohibited – by paragraph 1(2)(a) of Schedule 4 to the Scotland Act 1998  – from modifying, or conferring power on the Scottish Ministers to modify, Articles 4 and 6 of the English Union with Scotland Act 1706 and of the Scottish Union with England 1707, at least so far as these provisions relate to freedom of trade between England and Scotland.   On the principle that that which is not specifically reserved to Westminster is devolved to Edinburgh it would appear, then, to be competent for the Scottish Parliament to modify other provisions of these Acts of Union.

Paragraph 1 of Schedule 5 also reserves the following aspects of the constitution to Westminster:
(a)    the Crown, including succession to the Crown and a regency
(b)    the Union of the Kingdom of Scotland and England
(c)    the Parliament of the United Kingdom
(d)    the continued existence of the High Court of Justiciary as a criminal court of first sentence and of appeal
(e)    the continued existence of the Court of Session as a civil court of first instance and of appeal

Nothing expressly is said here about the House of Lords in its Judicial Capacity or the UK Supreme Court.   However paragraph 4(1) of Schedule 4 to the Scotland Act 1998 prevents the Scottish Parliament from modifying the Scotland Act itself.  The Scottish Parliament has, then, no Kompetnz-Kompetenz, no  power to expand the range of its own powers.    And Schedule 6 to the Scotland Act 1998 makes provisions for appeals and preliminary reference on “devolution issues” to, ultimately, the UK Supreme Court.   

So it would seem to be outwith the legislative competence of the Scottish Parliament – and consequently not within the devolved competence of the Scottish Ministers – to alter, or indeed abolish, the current jurisdiction of the UK Supreme Court, at least as regards devolution issues.    It may be competent, however, for the Scottish Parliament to legislate to alter, expand or indeed, abolish, any appeals to that court from Scotland in non-devolution issues.   But were the legality of any such measure to be challenged before the courts it would itself raise a “devolution issue”.    And under our current constitutional, arrangements the ultimate resolution of such a challenge would lie with the UK Supreme Court. itself, albeit acting pre-eminently in such a situation as iudex in causa sua.

Notwithstanding that the current arrangments have been in place for only four months, Professor Walker’s report does indeed advocate reform of the present system for appeals from Scotland to London,    He rejects the status quo and suggests that the appellate jurisdiction of the UK Supreme Court from Scotland be both extended and reduced.    It should he extended so as to cover not only civil appeals from the Court of Session but criminal appeals from the High Court of Justiciary.   It should be reduced so as no longer able to hear any appeal from Scotland unless the case raises “common UK issues”. There would be no right of appeal from Edinburgh in any case which concern issues purely of Scots law.   Professor Walker described this proposed re-arrangement of the appellate jurisdiction to London as transforming the UK Supreme Court, at least from the view point of the Scottish legal system, into a “quasi-federal” Supreme Court.   When asked by Lord Hope of Craighead at the Edinburgh launch event for his report as to who would decide whether or not a case from Scotland raised “common UK issues” and so fell within the UK Supreme Court’s jurisdiction, Professor Walker indicated that he thought that this should be a matter for the UK Supreme Court     His report also suggest that the UK Supreme Court should preferably sit in Scotland when hearing Scottish appeals, although the resource implications of this do not appear to have been addressed.

Critique

The question must first be raised is as to the perceived need for change in the current arrangements for appeals to London.    There have been civil appeals from Scotland to London since the inception of the Union with England.  Scottish appeals formed a significant bulk of the appeals heard by the House of Lords throughout the eighteenth century and yet Scots civil law seems to have survived as a distinct body of law in the three hundred years of sharing the same top court as the English legal system.

But perhaps  the major problem with the Walker Report’s proposed re-organisation of the UK Supreme Court’s jurisdiction is that, if anything. it would leads to greater legal uncertainty – and boundary disputes – than the current arrangements.    For example, it is in any event not clear what might constitute an issue purely of Scots law as opposed to “common UK issues”.   Take for instance the law of negligence in the United Kingdom which was developed, famously, as a result of a decision in a Scottish appeal to the House of Lords in Donoghue v. Stevenson, 1932 SC (HL) 31, [1932] AC 562    in which the leading judgment was given by the Welshman trained in the English legal system Lord Atkin in over-ruling, by a 3:2 Lords majority, the decision of the Inner House of the Court of Session that Mrs. Donghue’s pleadings raised no relevant case in law.    

Section 126(4)(d) of the Scotland Act 1998 includes a definition of “Scots private law” 

“the law of obligations (including obligations arising from contract, unilateral promise, delict, unjustified enrichment and negotiorum gestio)”. 

Assuming that this definition is wide enough to include the unintentional and therefore quasi-delict of negligence, then it would appear that cases based on negligence raise issue of Scots (private) law and should therefore no longer be able to be appealed to London.   And yet there is surely an issue of general UK interest raised by negligence cases, particularly in relation to the extent of duties imposed upon public authorities?  As Lord Brown of Eaton-under-Heywood noted in Mitchell v. Glasgow City Council, 2009 SC (HL) 21, [2009] 1 AC 874, [2009] UKHL 11 at paragraph 80:

“There was some suggestion in argument that the test for liability was different (and more exacting) in England than in Scotland but that cannot be. That would be bizarre indeed, not least given that much of England’s negligence law was forged in Scottish appeals.”

Further, such complaints as have been made about the current scheme for final appeals from Scotland have been raised primarily by senior judges of the High Court of Justiciary.   They have objected to the “anomaly” that since devolution it has been possible for both the Crown and the accused to take appeals to London from their decisions in Scottish criminal cases if and insofar as their decisions raise issues concerning the (non-) compliance by the Scottish prosecution authorities with the accused’s Convention rights.   No complaint about this new avenue of appeal seems to have come from criminal law practitioners in Scotland, nor yet from those arraigned before the Scottish criminal courts.  

Yet Professor Walker’s proposed reform will do little to satisfy those Scottish judges who have voiced complaints  about the impact of the devolution jurisdiction of the Privy Council – and now of the UK Supreme Court – on Scottish criminal law and procedure.   If anything the Walker proposals would allow for an even greater number (indeed arguably all) of Scottish criminal appeals to be taken to London since he would invest the UK Supreme Court with a jurisdiction to determine whether an accused’s Convention rights had been breached not only by the prosecution in Scotland but also by the lower criminal courts in Scotland.

Finally, it was notable at the launch event for Professor Walker’s report that there was no appearance from the Scottish nationalist politicians who commissioned it.    It may be that the report’s recommendation that while Scotland remains part of the Union the role of the United Kingdom Supreme Court should, if anything, be explicitly strengthened into the final arbiter on all common UK issues from Scotland, however and wherever they arise, is not the conclusion that they had hoped for or expected.

Conclusion

The 1707 Parliamentary union between England and Scotland undoubtedly created a State, but it did not create a nation.    Instead, in the 1707 creation of the United Kingdom the new state became heir to at least two distinct national constitutional traditions.  In the 300 years of the Union there is no doubt that that the English constitutional tradition has been the dominant and at times overwhelming influence.   In one nineteenth century Scottish appeal to the House of Lords, in Mackintosh v Lord Advocate, (1876) 3 R(HL) 34, 2 App Cas 41, HL(Sc), a paper written by J. F Macqueen QC and read at the Manchester Congress of Social Science on 8 October 1866 (with Lord Brougham presiding) was quoted by counsel for the appellant as being to the following effect:

“The blessings of the English Constitution … were not extended to Scotland [at the Union of Parliaments in 1707]. The Scotch consequently have no Magna Charta, no Bill of Rights, no habeas corpus.  …  Personal freedom depends on the temper of the existing government, or rather on the discretion – peradventure the caprice – of the Lord Advocate. When that high functionary incarcerated a gentleman supposed to entertain dangerous political opinions, the Lord Advocate justified himself in the House of Commons by the proud boast that he represented the Scottish Privy Council, and that his powers were unlimited. Under the sway of a benignant sovereign Caledonian grievances have practically disappeared. But the grave question remains whether it is consistent with the dignity of an intellectual people that their political rights should depend on the clemency of the government.”

Notwithstanding these sentiments, it does appear that a distinct Scottish constitutional tradition has never entirely been lost.     The Walker report reflects this in part.   Indeed it would be surprising if the (now ten year old) devolutionary settlement under which Scotland was afforded within the continuing Union a significant degree of self-government (both in terms of legislative autonomy and administrative accountability) did not result in a certain stirring up of a dormant Scottish constitutional tradition.

The effects which any resurgent Scottish constitutional tradition might have for and upon the Union as a whole have yet to be determined.    But one thing seems clear.   If the UK Supreme Court seeks to speak of UK (constitutional) law it enters into perilous waters because the contradictory constitutional narratives and traditions to which the United Kingdom is heir – the English tradition emphasizing unbroken continuity since Magna Carta and envisaging the Union as an incorporating one in which Scotland was absorbed into England cannot be reconciled with an alternative Scottish revolutionary and republican tradition which would sees the Union as a contract between two equal nation with the United Kingdom Parliament born in the chains of that compact..   From the Scottish constitutional perspective, the United Kingdom is not a nation state but a state of nations and there are tensions built into such a vision. 

The safer approach, at least for those interested in preserving the Union, might be to let sleeping dogs lie and abandon any grander analysis of what might or might not be UK (constitutional) law leaving that, instead to be the law that dare not speak its name.  Prudence suggest that our current constitutional arrangements – including those for appeals from Scotland to London – be left to bed down for at least some years without too much examination of the (lack of ?) principles on which .they might be based.

Aidan O’Neill, Queen’s Counsel (Scotland), Barrister, Associate Member, Matrix Chambers, London; Member of the Ampersand Stable; Chairman of the Edinburgh Centre for Constitutional Law and Honorary Fellow in the School of Law, University of Edinburgh