The power of unelected judges – Part 2 of 2
30 May 2011
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 Guardian.co.uk, 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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