The power of unelected judges – Part 2 of 2

30 May 2011 by

Updated x 2 | Two court decisions have upset UK governments this week. One is being appealed in the normal way by the Secretary of State for Education, but the other may lead to a fundamental rethink of the Scottish justice system. As a Bank Holiday special, this post is split into 2 parts. Part 1 is here.

Meanwhile, north of the border in Scotland, a more significant constitutional storm may be brewing following Wednesday’s decision of the UK Supreme Court in Fraser v Her Majesty’s Advocate. Rosalind English has already posted on the ruling, which related to a Scottish murder appeal. As Rosalind said,

this was a Scottish criminal case and the Supreme Court would normally have had no business dealing with it … The Supreme Court’s appellate jurisdiction extends only to a consideration of a “devolution issue” , including whether an exercise of a function by a member of the Scottish Executive is incompatible with any of the Convention rights.

Parliament, through Schedule 6 to the Scotland Act 1998, has given the Supreme Court jurisdiction in relation to devolution issues arising in criminal proceedings. It has been suggested that this was to ensure that a consistent and coherent view upon them could be given across the UK.

So, Scottish courts will almost always be responsible for Scottish criminal matters, but in cases involving human rights issues, the case may be taken to the UK Supreme Court. This is the second time in recent months that the UK Supreme Court has overturned a Scottish criminal appeal. In Cadder, the court ruled that Scottish police must allow criminal suspects the right to a solicitor in the first six hours of detention by police.

The Scottish cabinet is now “taking action”, with the Scottish justice secretary saying “We believe the UK Supreme Court should have no role in matters of Scots criminal law – a view supported by Scotland’s leading legal figures.”

This is contrary to the conclusion of the Advocate General in September 2010 and also of a Justice report from last year. But the issue is complicated. It is easy to argue that human rights should be dealt with centrally in order to ensure common standards across the UK. But any reader of this blog will know that human rights touch of most aspects of government. This means that practically, the UK Supreme Court can pick and choose to interfere with issues which would otherwise be dealt with independently by the Scottish government.

According to the Herald Scotland, the Scottish First Minister is

already considering two main options: pushing the UK Government to amend the Scotland Bill currently at Westminster, or making the Scottish issue a key part of Nick Clegg’s new commission on a British Bill of Human Rights, which is due to examine the role of the Supreme Court.

I expect the latter is more likely, given that the Scotland Bill is already quite far along the legislative process. The Law Society of Scotland’s magazine has published a nuanced article on the topic, arguing:

The question of principle is rather whether London or Strasbourg is the appropriate destination for human rights points arising in Scottish cases. And it is here that the Scottish Government’s arguments look decidedly thin. How can it be said that the European judges have greater knowledge of or expertise in cherished aspects of our system than the UK court with its complement of two of the most experienced Scots lawyers? How is justice more accessible in a foreign court whose cases typically take some years to conclude?

Independent Scottish law journal The Firm has also weighed in, arguing that the government’s reaction amounts to little more than sour grapes:

Rather than take onboard the criticisms and consequences of these well reasoned rulings, the First Minister calls it “meddling” and the Justice Minister will support him in anything that doesn’t involve the name Megrahi. Who knows what the Supreme Court might have said there?

Shooting the messenger

These two cases may ultimately be of constitutional importance. But they may also be cases of shooting the messenger. As I have posted before, few in government enjoy having their decisions challenged by unelected judges. The natural instinct is to attack those giving the decision rather than the logic of the criticism itself. But Parliament is sovereign in our political system, which means that judges’ powers have been given to them, and could be taken away, by elected representatives.

In the Shoesmith case, a supreme court appeal is unlikely to take our unwritten constitution much further.

As to Scottish power to administer its own criminal justice system, this may be a case where the solution is worse than the problem. Will the Scottish government welcome critical decisions from the European Court of Human Rights, which would be the next stop for appellants if the Supreme Court no longer had jurisdiction? On the evidence of the UK government’s reaction to such rulings, probably not.

Update, 31 May 2011 – See this editorial today on, which argues that greater transparency in the appointment of judges may diffuse some politicians’ anger over their rulings.

Update, 1 June 2011 – See Professor Tony Kelly’s case comment on the UK Supreme Court Blog. He says:

Instead of founding upon the recent work in this very area – by the Advocate General’s Expert Group and Scottish Government’s own research by Professor Neil Walker: “A review looking at the potential impact of the UK Supreme Court on the Scottish legal system” – the First Minster has defined the debate in narrow, party political and nationalist terms.  The most recent development was the announcement of yet another Group to look in to this matter – see BBC 31st May 2011

The law reform group Justice have also weighed in. They say in a press release:

Notwithstanding that the House of Lords has long since been the final court of appeal in civil cases from Scotland, the Supreme Court is not a final appeal court in all criminal cases. As a result of devolution, the UK Supreme Court now exercises a vital role in safeguarding the rights of Scottish individuals. The Court can only hear cases where the European Convention on Human Rights (the Convention) is said to have been breached. It hears very few cases from Scotland, and very rarely finds that the Scottish courts have ruled wrongly.

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  1. RolftheGanger says:

    The first interference by the Supreme Court in the Cadder case potentially overturned 3500 Scottish criminal convictions and could have cost millions in compensation, re-trials, etc. Never mind the threat to the public, had the previous SNP Government not taken legislative action.

    Easy to paint it as a piece of SNP troublemaking – and ignore the potential for the Supreme Court to cause serious disruption in Scotland.

    Many of the ‘legal opinions’ being expressed come from people with strong party political affiliations to Unionist parties.

    As Salmond has put it, Strasbourg does not have power to open cell doors, the Supreme Court does. There are issues of principle and practicality in play.

  2. Frank Cranmer says:

    “As to Scottish power to administer its own criminal justice system, this may be a case where the solution is worse than the problem.” Indeed so: but the issue has considerable potential to sour Anglo-Scottish relations.

    Kenny MacAskill reacted with what can only be described as fury to the Supreme Court’s previous decision in Cadder v HMA. The role of the Supreme Court in relation to Scots criminal justice is a relatively technical issue in comparison with, for example, the Scottish Government’s avowed desire for greater control over the Scottish economy; that said, however, it could easily be presented as yet another example of (supposedly) English interference in Scotland’s domestic affairs.

    If I have any view on the merits or demerits of independence I guess that, on balance, I’m slightly in favour though still open-minded about the arguments to the contrary. But whatever one’s view – pro or anti – it would be very unfortunate if the debate were to degenerate into a slanging-match about alleged English slights against the purity and integrity of Scots institutions. The core issue is much more important than that.

    1. Mike says:

      I agree with you Frank, whether we are pro or anti independence (I was born and live in Scotland but have a predominantly English [Londoner] family) and I am anti independence) this seems to me to be a simple case of England bashing from the SNP again. I would prefer to see them argue on the merits of the supreme court decision, i.e. was the supreme court right in its assessment of the case and had the High Court gotten it wrong. However there is no discussion of that, only of English interference in Scots law, which glazes over the issue of whether what has happened was right or not. Quite honestly I have seen some pretty ropey decision making and sentencing in the criminal high court over the years, maybe they need someone to watch over them? Also why on earth would the SNP prefer to have a system where the ECtHR in Strasbourg has the final say, what difference would that make exactly other than to then inflame the Europe question? At least by going to the Supreme Court the issue is kept within the UK. No I think that behind these arguments today as with everything the SNP does lurks the issue of independence, and the continual efforts of that party to whip up animosity between Scotland and England to further that aim. IMO.

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