Power struggle

This month’s appointment by the Scottish Government of an expert group to review the appealing of Scottish decisions in criminal cases to the UK Supreme Court is only the latest twist in what has become a fast-moving issue in recent months.

Less than nine months ago the Advocate General in the UK Government, Lord Wallace of Tankerness QC, appointed a different group under Sir David Edward QC, to review the operation of devolution vires controls in relation to acts of the Lord Advocate as head of the prosecution system, and assess the extent to which it causes problems in practice for the courts and the operation of the criminal justice system. An “informal consultation” was held on what must then have seemed a technical issue unlikely to generate many headlines.

Since then, the Supreme Court decision in Cadder, the coming to power of a majority SNP Scottish Government, the consequent raising of the stakes over further powers to be devolved via the current Scotland Bill, coinciding with a further reversal of the High Court by the Supreme Court in the Nat Fraser appeal and a highly political reaction by the Scottish ministers, have between them turned the issue into a full-blown constitutional test of strength.

The Fraser decision in particular was the catalyst for an extraordinary sequence. A convicted murderer in a long-running and high-profile case appealed on the basis of the effect on his trial of material but undisclosed evidence in the possession of the Crown. After appearing to have exhausted his avenues of appeal in the High Court, he won special leave from London to take his case there, and then a decision that had the Scots judges applied the correct test in terms of Supreme Court precedent, they would have been bound to allow the appeal.

That reopened with a vengeance the issues initially set alight last October in Cadder, when the Supreme Court again reversed the High Court’s view that procedures had been Convention compliant – in that case in relation to the interview of a suspect in police detention without allowing access to legal advice. The impact on the prosecution system was seized on by the then minority SNP administration as a stick with which to challenge the right of appeal, under the devolution arrangements, to a London court from which the Scottish criminal courts had been exempt pre-1999.

The politicking then was nothing compared with the storm that broke over Fraser. A series of unprecedented attacks on the court and its judicial members ensued from both the First Minister and the Cabinet Secretary for Justice, as they sought to depict the court as English-dominated and ignorant of the checks and balances that ensure the integrity of the Scottish system. The Justice Secretary even announced that he was exploring whether Scottish Government funding for the Supreme Court could be cut, a move immediately attacked from within the legal profession as threatening the independence of the judiciary.

Such is the principal landscape against which the Scottish Cabinet now seeks to keep up the pressure for reform through its expert review group (see panel). But one further point of importance is that Professor Neil Walker, a member of the group, only recently conducted a similar review of possible appeal models, civil and criminal, also at the request of the Justice Secretary (see p13). His then favoured solution, at the conclusion of a thorough examination of the historical development of the present system and the principles that should characterise a court of final appeal, was in some respects more permissive of appeal rights and in some respects less so. It remains to be seen whether the new group will come up with anything radically different on what is likely to be a very similar collection of source material and submissions from interested parties.

The same, but different

The practical political aspect of the matter is that the Scotland Bill has to come back before the Holyrood Parliament on a legislative consent motion relating to amendments approved at Westminster since the bill won the support of the pre-election Parliament. Following a consultation on draft clauses, which closed last month, amendments are to be put forward to implement the recommendations of the Edward expert group.

Pressed by some consultees to accept that no change was necessary, and by others to take criminal prosecutions right out of the devolution issue procedure, Sir David’s group (which also comprised former Lord Advocate Lord Boyd of Duncansby QC, Paul McBride QC, Frances McMenamin QC and Professor Tom Mullen) came up with proposals (see www.oag.gov.uk/oag/225.html) that would technically achieve the second of these positions, but with a practical result closer to the first. Pointing out that it was anomalous to treat as a devolved function something that always had been the role of the Lord Advocate, the group recommended that instead of an alleged Convention breach by the prosecution being challengeable as a devolution issue, it should become a self-contained ground of appeal.

It was after the Holyrood election but before the Fraser decision that Lord Wallace, himself the Justice Minister and Deputy First Minister in the first devolved administrations, spoke to the Journal about the report.

“I had no expectation what they were going to come back with,” Wallace comments, “but I thought they provided a very good, comprehensive report which analysed the issue and made recommendations which were well supported by the analysis they had made.”

He notes the anomaly pointed out by the group and continues: “But they were also of the view, obviously influenced by the representations made, that when we’re talking about Convention rights, and theoretically too EU rights if we have any cases on those, it’s not unreasonable, given that these rights exist by virtue of international obligations of the UK, that the Supreme Court of the UK should be the ultimate body to determine these rights. That’s why they recommended an appeal route to the Supreme Court for Convention rights and indeed for EU issues that arose.”

The draft clauses on which the Advocate General has since consulted would restrict the current vires control and instead insert a new s 98A into the Scotland Act, providing that in determining any question of Convention or Community law compatibility of an act of the Lord Advocate as prosecutor, appeal to the Supreme Court shall lie, with leave as at present, against a determination of two or more High Court judges. The Supreme Court is specifically required to apply the miscarriage of justice test as it applies in the Scottish appeal court – thereby eliminating one cause of complaint voiced by the Scottish judges among others, that the tests the respective courts are bound to apply have differed. (The Faculty of Advocates considered that this issue was resolved by the McInnes decision in the Supreme Court, but the judges believed it had continuing effect in relation to the Fraser appeal.) Further, an alleged miscarriage of justice may only be brought under review for the purpose of determining a question relating to compatibility.

It may be technically different, but – subject to any sifting out through the process of bringing an appeal – will the net result not be as many human rights points being taken as at present, something the group itself appeared to suggest was excessive? “I think we need a sense of perspective on this”, Wallace comments. “The number of cases actually going to the court is not great. There are a lot of cases that depend on the outcome of a Supreme Court decision, but the number of cases going to the court in a year you can probably count on the fingers of one hand.”

Defining devolution issues

If the court has overreached itself at all, it is in the area of defining which cases are properly before it procedurally. As the Scottish judges submitted to the Edward group, the cumulative effect of a series of decisions in the last three years is that “a position has now been reached in which, provided that some aspect of a decision by the criminal appeal court can be characterised as the ‘determination of a devolution issue’, in however artificial a sense, the whole merits of such a decision may be brought for review before the Supreme Court”. Thus the intended procedural controls in the Act of Adjournal are now a “dead letter”.

In the result, the judges argue, “a major constitutional change has already been brought about in relation to the existence of a right of appeal… and that without the public consultation and careful consideration that such a major constitutional change might have been expected to receive. We cannot regard that as a satisfactory situation”.

Wallace suggests that these must be matters for the courts: “There’s a limit to how far you can actually interfere in what is court procedure.” The recent consultation did, however, include a question whether there should be a “gateway” for an appeal to the Supreme Court.

Would the new mechanism preclude points being taken ahead of a trial? “That’s one of the things we’re actually asking in the latest consultation, because the Lord Advocate has done that very recently, the cases we describe as the sons of Cadder.” (These referrals by the Lord Advocate to the Supreme Court of five cases testing the scope of the Cadder decision are due to be heard in the final days of June.)

There have been suggestions that the various public offices concerned are also being somewhat overwhelmed by the number of devolution issues lodged, but Wallace declines to regard this as a factor, at least so far as it affects his office, which currently has to receive intimation of all devolution issues. “According to figures I got this week, the number of Salduz/Cadder devolution minutes that my office has received is 3,991. I expect it’s a bigger administrative burden for the Crown Office. It is a burden, but I’m not making an argument on the basis of the number of devolution minutes coming in; we’ve got a very good and efficient way of dealing with them. And if you’ve got 3,991 that are all the same, the week you get two that are completely different, that brightens up the week!” (The actual number his office has intervened in is 35 out of about 10,000 – including one where the view was taken that legislation he had promoted as Justice Minister was beyond the Parliament’s competence.)

One clear proposal is to extend the courts’ power in s 102 of the Scotland Act to control the retrospective effect of a ruling that powers have been exceeded. At the moment it applies where an Act of the Scottish Parliament is held beyond legislative competence, but “for some reason which no one seems to be able to discover, it doesn’t apply to acts of the Scottish ministers, and we’re proposing that the courts should have the same powers there”.

Wallace adds that the draft clauses clearly define the role of the Supreme Court in any appeal as a constitutional one to adjudicate on any questions of Convention rights or Community law.

“It’s not intended to deal with domestic issues of Scots criminal law. There’s a good passage in the original submission to the consultation from the Law Society of Scotland where it said that we’re talking about constitutional issues or Convention rights issues that operate in the field of criminal law: it’s not primarily about criminal law, it’s about Convention issues that operate in criminal cases.”

London v Strasbourg

Despite the expertise of the current two Scottish members of the UK Supreme Court, the Scottish Government is promoting the view that Scots law will receive better consideration from the European Court of Human Rights in Strasbourg. Launching his own expert group, the First Minister said: “The Scottish Government’s view is that Scotland should be like every other jurisdiction across Europe and use the Strasbourg court as the final option for judgment when needed. Unlike the UK Supreme Court, the Strasbourg court can’t strike down convictions, it doesn’t open cell doors and potentially enable people to walk free, and it certainly doesn’t do so without a proper examination of the degree of protections, checks and balances within the Scottish judicial system.”

Whether it would be an attractive prospect for Scots law to be found in breach of the Convention but for the individual petitioner to the court not to win his or her freedom, might be debated. The court can also award damages and costs against a losing Government.

Wallace comments: “I have never yet found out why appealing to the Supreme Court where there are two Scottish judges is somehow wrong, but appealing to Strasbourg where there are none is OK. Also, and we sometimes lose sight of this, to my mind the most important point of the Human Rights Act, as one who campaigned for it for years and years, was to bring human rights home, to allow human rights issues to be litigated in our own courts and not just for those who could afford the time and money to go to Strasbourg.”

However, when taken along with the other Scotland Bill issues such as taxing and borrowing powers, some hard bargaining lies ahead on many fronts before the bill clears all its parliamentary hurdles. “There is a dialogue that has been established and will continue, and by the time this is published we might have a clearer idea where that is leading”, says Wallace.

The bigger question

Ultimately, the whole issue will be subject to the result of the promised referendum on Scotland’s future within the UK. Wallace confirms his Government’s hands-off approach other than taking a facilitative role, and declines to speculate on what discussions there might be over the question to be posed or other matters. “We’ll clearly have to have discussions between the two administrations. But the Prime Minister has indicated that it’s for the Scottish Parliament to go forward.”

It might be over-egging it to say that legal issues will feature strongly in that debate when it comes; but on recent form, anything that might add fuel to the political fire is likely to be used for that purpose. Will “sons of Cadder” simply spawn further issue(s) to be caught up in that process?

In the meantime, the conclusions of Lord McCluskey’s review group could tip the scales either way as respects the Supreme Court debate.

Review no 3: the team and the remit

The review team appointed by the Scottish Government will be headed by Lord McCluskey, former Court of Session and High Court judge, and Solicitor General for Scotland in the 1970s Labour Government. He will be joined by Sir Gerald Gordon QC, a former sheriff and the leading modern Scottish writer on criminal law and procedure; Charles Stoddart, a former sheriff and also a prominent author on criminal law (including the Journal’s bi-monthly criminal court briefing), and Professor Neil Walker, Professor of Public Law at the University of Edinburgh School of Law.

The group’s full remit is:

• To consider and assess the mechanisms created under the Scotland Act 1998 and the Human Rights Act 1998, and developed since then, for applying human rights law to criminal cases in Scotland, including particularly the regulation, subject matter and scope of appeals from the High Court of Justiciary to the Supreme Court of the United Kingdom.
• To consider the criticisms of, and various suggested amendments to, those mechanisms in the light of current assessments, including criticisms, of their operation.
• To advise on the ways in which they might best be altered, if appropriate, by legislation or otherwise, to ensure that Scotland’s unique system of criminal law and procedure is fully protected, within the context of the accepted need for that system to comply with the Human Rights Act.

An interim report is expected before the summer parliamentary recess, with a full report following later in the year.

Walker: a quasi-federal solution

In December 2008, Kenny MacAskill, the Cabinet Secretary for Justice, asked Professor Neil Walker of Edinburgh University to conduct a review of final appellate jurisdiction in the Scottish legal system, with a remit to provide an overview of its historical development, to identify the established constitutional principles of such jurisdiction and provide appropriate international comparisons, to appraise the features, benefits and disadvantages of the current arrangements, and to assess options for future developments.

Assisted by Sir David Edward, David Johnston QC and Professor Tom Mullen of Glasgow University, Professor Walker completed his report in January 2010. Regarding future options, six models are examined:

(1) a fully autonomous court system serving a fully autonomous Scots law (described as feasible only within an independent Scotland), or with an exception for constitutional questions relevant to the continuing integrity of the United Kingdom state (also described as infeasible);

(2) at the other extreme, Scottish arrangements fully integrated into a UK-wide appellate court system, accompanied by the development of a unitary law for the United Kingdom (equally discounted);

(3) the status quo;

(4) reform of the UK Supreme Court to create a Scottish division or chamber;

(5) restructuring the Supreme Court as a final appeal court along quasi-federal lines;

(6) creating in its place a United Kingdom Court of Justice with a reference jurisdiction rather than a final appellate jurisdiction, along the lines of the European Court of Justice.

Regarding (3), Walker comments that the conservative quality and informality are the major strengths of this approach, but also its main weaknesses, “as it does not address certain standing anomalies of the system (in particular the quite different treatment of civil and criminal appeals), and as it cannot guarantee the long-term stability of its informal advantages”, such as the English judges normally deferring to the Scots in matters of Scots law. Of the other options, (4) is “at best a partial answer to a larger question of proper jurisdictional boundaries”, while (6) would involve “a considerable shift in the apex court’s approach”, and would not guarantee it the effective last word in those matters properly within its jurisdiction (report, pp6 and 76-77).

He therefore proposes model (5) as “the most attractive reform option under the present constitutional settlement”. It would result in those Scottish cases (both civil and criminal) raising common UK issues being heard by the Supreme Court, “preferably at a Scottish location”, and those (again, both civil and criminal) addressing distinct questions of Scots law being dealt with by the indigenous Scottish courts.

The criteria distinguishing purely Scots law cases from common or federal cases would have to be specified, and would have to be interpreted by a judicial authority at the centre, most likely through new leave to appeal rules. It is recognised that difficulties would emerge in deciding where to draw the line; on the other hand, such issues arise and are resolved, for example, in the United States, in deciding which issues are suitable for the Supreme Court there.

Such an approach would mean some criminal matters being appealed to London, if the relevant legislation (e.g. dealing with drugs or terrorism) is reserved to Westminster – but some civil cases would cease to be appealable, and the system as a whole would become “more principled”. The system would be likely to remain asymmetric as between Scots and English cases, but this would not be new and should be manageable.

With reference to the devolution issues argument, Walker comments (p74): “if we accept a quasi-federal frame, there can be no disagreement that some measure of constitutional review of the terms and limits of the jurisdiction of Scots law is proper, whether and to what extent the emphasis is on the competence provisions of the Scotland Act or on other quasi-constitutional sources such as the Human Rights Act”.

In chapter 5, Walker identifies a number of criteria for evaluating the merits of any scheme, including democracy, fair treatment, coherence and integrity, richness of resources, and expertise. Among his comments:

• “...most fundamentally, the role of the judge is never to interpret and apply the law in general, but always to interpret and apply the law of the particular legal system (or systems) that corresponds to the democratic unit (or units) which provides the basis for the judge’s own authority. Accordingly, the structure of final appellate jurisdiction should reflect and respect that link”.
• “To the extent that the relevant democratic constituency in the case of the organisation of the judiciary is the Scottish people… the choice of institutional design should fall to their representatives.”
• “...the existence of overlapping UK and Scottish democratic constituencies means that the democratic principle cannot favour either an exclusively UK-based or an exclusively Scottish-based foundation, allegiance and focus for the political and legal order… as it applies to Scotland”.
• “In all cases where there is a background of transnational law, moreover, the moral case for equal treatment is provided some reinforcement by considerations of legal obligation, since the United Kingdom as a state is required to ensure that the relevant transnational legal standards are applied throughout its territory and across its various internal jurisdictions.”
• “...unevenness of expertise in Scots law [within the Supreme Court] may simply be viewed as a special case of a broader pattern of uneven expertise… From that perspective, indeed, the fact that… the Supreme Court, draws its cases (and, potentially at least, its members) from all branches of the law may be seen to be an advantage for the development of Scots law, with the balance of judges capable of contributing a broader range of subject-area expertise than would be available from a bench drawn entirely from Scottish legal practice”.
• “There is simply no single model of appellate jurisdiction that provides an optimal institutional expression of any of these values considered separately, still less all in combination.”

The report can be accessed at www.scotland.gov.uk/Publications/2010/01/19154813/0