Power lines

So we managed to avoid a constitutional crisis this week when the Supreme Court upheld the Inner House decision in the AXA v Lord Advocate case, and affirmed the validity of the Holyrood Act allowing a damages claim to those who have developed pleural plaques.

In doing so the seven judges, led by Lord Hope, nevertheless made some important statements about the respective roles of the Parliament and the court, providing in a typically measured, coded, judicial way some rebuff to the intemperate comments by Messrs Salmond and MacAskill following the Nat Fraser decision in May.

It is not controversial that the court should have held that as a subordinate legislature whose Acts are only law in so far as they are within the Parliament's competence, the Parliament should in principle be subject to the supervisory jurisdiction of the court at common law. But the judges gave much prominence to the "dominant characteristic" of the Parliament being its firm roots in the democratic tradition: "It draws its strength from the electorate", Lord Hope said. "While the judges, who are not elected, are best placed to protect the rights of the individual, including those who are ignored or despised by the majority, the elected members of a legislature of this kind are best placed to judge what is in the country's best interests as a whole."

Further, whether with a sovereign or a devolved Parliament, "the democratic process is liable to be subverted if, on a question of political or moral judgment, opponents of an Act achieve through the courts what they could not achieve through Parliament".

On what limits might exist to legislative power, Lord Hope then referred to the as yet unresolved question of how to resolve the conflicting views of the relationship between the rule of law and the sovereignty of the UK Parliament. He added that the court's task in relation to the Scottish Parliament was "that much easier" because "In our case the rule of law does not have to compete with the principle of sovereignty. Nor could it be assumed that the situation could not arise in the devolved legislatures of a government with a large majority exercising dominance over the Parliament to the extent of seeking "to abolish judicial review or to diminish the role of the courts in protecting the interests of the individual".

The likelihood or otherwise of such a scenario was not important; the rule of law required "that the judges must retain the power to insist that legislation of that extreme kind is not law which the courts will recognise".

Lord Reed was to the same effect: "The principle of legality means not only that Parliament canot itself override fundamental rights or the rule of law by general or ambiguous words, but also that it cannot confer on another body, by general or ambiguous words, the power to do so... Parliament... legislated for a liberal democracy founded on particluar constitutional principles and traditions. That being so, Parliament cannot be taken to have intended to establish a body which was free to abrogate fundamental rights or to violate the rule of law."

The other judges adopted the reasoning of both Scottish judges on this subject.

In fact the issue does not appear to have been one of controversy in this case, as Lord Reed records an acceptance on behalf of the Lord Advocate that devolved legislation was subject to "constitutional review" related to fundamental rights or the rule of law. And there was no suggestion that the Act in question in the present case was so fundamentally flawed.

It seems to me that the court was more concerned to restate the fundamentals of the rule of law as defining the respective fields of competence of the legislature and judiciary, especially in the devolved field. The message to the Scottish Government and Parliament is, essentially, "You have a great deal of power, and a democratic mandate, but we will be watching to make sure that it is not abused." You could say that the court is showing a considerable degree of respect to the devolved institutions, and it is asking for some respect in return.

In other words, the court is seeking to restore the balance between the three branches of institutional power, by drawing the sting from the political comments about unelected judges, as well as affirming the court's determination to reassert the rule of law. Both aspects are equally important, and it is to be hoped that the message from the judiciary will be taken on board in both the other two seats of authority, the legislature and the executive. That way lies a healthy legal process and a healthy democracy.