Constitutional Law, Politics

A referendum on Scottish Independence: Would it be legal?

One Scottish issue has had a lot of debate, discussion and broadcast time spent on it this week.  The subject even managed to dominate Thursday’s edition of Question Time which came from London and made an appearance in Prime Minister’s Questions in the House of Commons on Wednesday afternoon.  That’s right; I make reference to the issue of Scottish Independence.

In May 2011 the SNP won a historic victory in the Scottish Parliament.  Of course it would be foolish to suggest that this was down to their lifelong policy of achieving independence for Scotland(though that doesn’t stop some members of the SNP claiming so).  Undoubtedly though this gives the SNP a mandate to hold a referendum on the question of whether Scotland becomes independent or not.

While it is clear that the Scottish Government have a mandate for a referendum, it is less clear whether they are actually able to hold it.  Questions arise over the legislative competence of the Scottish Parliament in passing legislation to hold the referendum.  A referendum on Scottish Independence cannot be held without first having passed primary legislation.  Those outside of the legal world could be forgiven for thinking what the problem is, after all the SNP won a majority and therefore the people of Scotland have confidence in them and in their manifesto and would undoubtedly expect the SNP to do what it promised in its manifesto.  However, the problem is not a simple one.

The Scottish Parliament is not supreme in the same way that the UK Parliament is in Westminster.  Its powers are set out within the Act of Parliament that brought it into being: The Scotland Act 1998. That Act in effect gives Holyrood the permission to pass legislation on any matter that is not reserved to Westminster.  Essentially, any area that’s not specifically mentioned within the Scotland Act 1998 as being reserved is fair game for the Scottish Parliament to legislate.  A political party could make all the promises it wanted in the world during an election campaign, but if the Scottish Parliament doesn’t have the legal power to legislate then quite simply it cannot legislate.

Those who sit within the Scottish Parliament have free will and could quite clearly pass legislation on a reserved matter.  However, that legislation would be unenforceable.  The Scotland Act 1998 states quite clearly that any “Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament.”  (Section 29(1)).  There is a process whereby an Act of the Scottish Parliament can be challenged, first in the Court of Session and laterally before the Supreme Court of the United Kingdom, if it is believed that it is outside of the legislative competence of the Parliament.  If the Courts so find then the legislation is declared to be ultra vires and is struck down; in essence it has no legal effect whatsoever.

What does all of this have to do with a referendum on Scottish Independence?  Schedule 5 of the Scotland Act 1998 provides a list of “reserved matters”.  The second matter on the list of those that are reserved to Westminster is “the Union of the Kingdoms of Scotland and England”.  A referendum on Scottish independence relates to the Union of the Kingdoms of Scotland and England.  The purpose of the referendum is to see if the Scottish people wish to bring an end to that 304 year old union.  The SNP are obviously in favour of bringing an end to that union and would hope that the result of any referendum on Scottish Independence would eventually bring the union to an end.

It would appear that to hold such a referendum is currently out with the legislative competency of the Scottish Parliament.  There are persuasive arguments for the position that it is not out with the legislative competency of the Scottish Parliament.  However, my own personal view is that any legal challenge to the referendum legislation under the current law would more likely than not be held to be ultra vires.

Whatever your view on the legislative competence of the Scottish Parliament on holding this referendum under the current law, it would be foolish to think that there would be no challenge to the legislation.  Any challenge to the legislation could delay the holding of the referendum by a number of years.  It could take as many as two or three years before a determination from the Supreme Court as to whether the legislation is within the legislative competence of the Scottish Parliament or not.

If we assume that the legislation would be challenged and it were then found to be within the legislative competence of the Scottish Parliament and follow the SNPs preferred timetable for passing the legislation it could be as late as 2016 or 2017 before the referendum could be held.  If it were to be held in 2016 it could get mixed up with the planned elections to the Scottish Parliament in May of that year.  The delay would only lead to more uncertainty and could be very damaging for Scotland and the UK in economic terms.  Business does not tend to like this level of uncertainty in politics and it might well put off foreign investors from bringing much needed investment into Scotland and the UK.

There is, I submit, no harm whatsoever in Westminster passing primary or secondary legislation clarifying the position and eliminating any potential challenge to the resulting legislation.  One would expect the SNP to welcome such clarification as it means they can progress forward with the referendum with no doubt whatsoever that the referendum would be legal and won’t get tied up in a legal row over whether the Scottish Parliament had the power to pass it.

While it might be for the Scottish people to decide whether they wish to break away from the rest of the UK and become independent, Westminster has a place in the debate.  Scottish Independence won’t just affect the people of Scotland but will affect everyone in the United Kingdom.  Scottish MPs sit in Westminster and have just as much right to represent their constituents as the MSPs in Holyrood and those who represent English, Welsh and Northern Irish Constituents have the right (and indeed the responsibility) to play their part in the debate in order to represent the best interests of their constituents.

The legal question is by no means certain and people on both sides of the “is it legal?” divide undoubtedly have justification for their opinion.  It would, in my view, be better for all sides if this question was put to rest quickly, without years of expensive legal action in the Court of Session and Supreme Court, and the people of Scotland allowed to have their opinion known as soon as is reasonably practicable.

The UK Government have launched a consultation on some of the questions surrounding the legislative competence of the Scottish Parliament holding a referendum and what should be done to ensure that any referendum is legal, fair and decisive.  The consultation document can be found here.  Responses are invited from anyone, regardless of their place of residence, by Friday 9 March 2012.

Constitutional Law, Freedom of Information, Politics

I’m sorry, we can’t confirm or deny that

I was having a look at the list of current applications currently before the Scottish Information Commissioner for a decision pursuant to Section 47(1) of the Freedom of Information (Scotland) Act 2002.  One application in particular caught my attention, probably due to its constitutional significance.

Application 201101968 concerns the Scottish Government’s use of Section 18 of the Freedom of Information (Scotland) Act 2002 in relation to a request for information seeking independent legal advice held by the Scottish Ministers on an independent Scotland’s membership of the EU.  All I or any other member of the public has to go on at this stage is simply the information contained within the list of current applications (more could be made public by way of a request for information to the Office of the Scottish Information Commissioner), but it will be interesting to read the Commissioner’s Decision Notice.

Section 1(1) of the Freedom of Information (Scotland) Act 2002 requires public authorities to confirm in writing to an applicant for information whether the authority holds any information falling within the scope of the applicant’s request and to communicate any information not exempt under the Act to the applicant.  However, Section 18 provides that a public authority can refuse to confirm or deny whether it holds the information sought where the information would be exempt under the Act and to confirm or deny its existence would be contrary to the public interest.

It seems odd that the Scottish Ministers feel that it is contrary to the public interest to confirm or deny whether it holds such information (it’s almost guaranteed to be exempt as it comprises legal advice which is ordinarily exempt from disclosure).  In fact it would be rather worrying if the Scottish Ministers had not obtained such legal advice.

Of course, it is hard to make any judgment on the situation without the benefit of having seen the actual request submitted and the arguments advanced by the Scottish Ministers in support of utilising Section 18 of the Act.  Why would the Ministers feel that the public interest lies in not even confirming whether it has sought legal advice on this matter?  Given the Scottish Minister’s preferred option of an independent Scotland in the European Union and its frequent and continued assertions as to Scotland’s legal status over this matter (including that of joining the Euro) some would say that it indicates the Ministers have sought legal advice.  Whether any advice they may or may not have sought supports their position is something that the public are never likely to know unless the Ministers decide to publish it (or the Scottish Information commissioner takes a very rare decision to order its release in response to a FOI request.

I will certainly be watching this request with great interest and look forward to reading the Commissioner’s Decision Notice when it is eventually released (assuming some compromise isn’t reached between the applicant and the Ministers during the investigation in which case a Decision Notice is unlikely).  Interesting times indeed.

Constitutional Law, Politics, Scots Law

MacAskill’s latest shameful outburst over Supreme Court

The behaviour of the Cabinet Secretary for Justice, Kenny MacAskill MSP, in relation to the UK Supreme Court has been quite frankly disgusting of late and most certainly is not befitting of a man of his intellect and position.

Today I read about his latest outburst over the matter which can only be described as personal attacks against the Justices of the UK Supreme Court.  I have written recently on the position of the UK Supreme Court in relation to Scots law and so will refrain from making the same points again.  Here I intend on focusing more on the very fabric of democracy: the rule of law, the separation of powers and the need for the executive and legislature to be kept in check.

Having an independent judiciary that upholds the rule of law is vital for the survival of any democratic nation.  Without it too much power lies in the hands of the executive and legislature and that can result in disastrous consequences for the citizens of a state.  It is vital that the judiciary are able to hold the executive to account when upholding the rule of law.

Courts make decisions that parties to cases are unhappy with; it is part of the way in which justice operates. It is almost impossible for any Court to decide a case where both parties leave pleased with the result. There will always be one winner and one loser and the loser will feel as though they have been hard done by. What is quite irresponsible is for the Cabinet Secretary of Justice to make public comments which criticise judges personally. It is appropriate that the Executive criticises the judgment of the Court where it disagrees with it and explains the reasons why it disagrees with it, but when members of the Executive start making what appear to be personal attacks of judges in public then problems arise in relation to the relationship between the Judiciary and the Executive.

In any democracy it is essential that the Executive and the Judiciary have a good working relationship. That of course does not mean that the Executive is in a position to exert any influence over the Judiciary. The executive is subject to, like everyone else, the rule of law and on occasion the executive will lose before the Courts.  The role of scrutinising the executive and holding them to account falls to the legislature and the judiciary.  Given that in our system the executive forms part of the Legislature the only real independent scrutiny of the executive that exists comes from the judiciary.  That does not detract from the work the legislature does in holding the executive to account, but it is an important point to note.

Anything that threatens the good working relationship between the Executive and the Judiciary is a danger to the very fabric of democracy and it is quite frankly disgusting behaviour for a senior member of the Executive to launch a personal attack on the justices of the Supreme Court.

There is nothing wrong with having a constitutional debate in the way that the current Scottish Government are seeking to do, but when that debate starts descending into personal criticism of members of the judiciary (either individually or collectively) then things have gone too far.

The Cabinet Secretary should be thoroughly ashamed of himself and should make a public apology to the justices of the UK Supreme Court.  He should also refrain from making such attacks on the judicial arm of the State in the future, it simply is not fitting for a member of the Scottish Cabinet to act in such a way.

Constitutional Law, Criminal Justice, Criminal Law, Legal System, Scots Law

The UK Supreme Court and Scottish Criminal Law

Following the decisions of the UK Supreme Court in Cadder v HM Advocate and Fraser v HM Advocate the debate in Scotland on the role of the UK Supreme Court has intensified.  With Scotland having had a Nationalist Government since 2007 (a Government which was re-elected for a further term of 5 years in earlier this month) the position of the UK Supreme Court in terms of the Scottish legal system has been a key issue within the constitutional debate.

Since Scotland and England came together to create Great Britain, Scotland has retained an independent legal system with Scottish Courts having exclusive jurisdiction over criminal matters, but with a right of appeal to London in civil matters.  This was the position that operated for centauries with appeals from the Inner House of the Court of Session possible to the House of Lords, (which became the Supreme Court in October 2009 following the coming into force of the relevant provisions of the Constitutional Reform Act 2005) and criminal cases staying within Scotland.  Things changed, however, with devolution.  In 1998 Tony Blair’s first administration passed the Scotland Act which established a new Scottish Parliament and gave it power over a wide area of issues including Health, Education and Criminal Justice (all of which had been kept separate prior to 1998, but had been the responsibility of the Scottish Office).

The Scotland Act includes provisions that mean Scottish Ministers and the Scottish Parliament cannot act in a way that is incompatible with the Human Rights Act 1998, or with European Community Law.  Crucially the Lord Advocate is included within the definition of the Scottish Ministers.  For anyone who is reading this and is not familiar with Scots Law then the importance of this derives from the Lord Advocate’s role as the head of the prosecution service in Scotland.  All prosecutions on indictment are brought in the name of the Lord Advocate.  Not only does the inclusion of the Lord Advocate matter in terms of the relevant provisions within the Scotland Act 1998 that relate to Human Rights and EC Law, but so too does the inclusion of the Scottish Parliament.  This firmly brings the matter of criminal justice in Scotland under the terms of the Scotland Act 1998.

The situation in Cadder was not really what the Scottish Ministers and Scottish Parliament had done, but rather what they had failed to do.  When Criminal Justice was handed over to the Scottish Parliament they became responsible for ensuring that it complied with Human Rights so as to meet their obligations under the Scotland Act 1998.  In this instance they had failed to ensure that the rights suspects had under the Criminal Procedure (Scotland) Act 1995 remained compliant with Human Rights.  One argument that was brought out by the Cabinet Secretary of Justice, Kenny McAskill MSP, was that they thought there was no need to look at the issue after the highest criminal court in Scotland had looked at the issue only the year before Cadder, and decided that everything was fine.  The problem with that lies in the Constitutional set-up: Parliament (including the Scottish Parliament) trumps the Courts and really Ministers should have been looking at the issue following the jurisprudence from the European Court of Human Rights in Strasbourg, and the considerable body of opinion that was growing that the law had to change.  In the end the UK Supreme Court determined that rights under Article 6 of the European Convention were being breached as a result of the lack of legal assistance for suspects who were detained for police questioning, but not arrested.  I do not intend to dwell on Cadder as that’s not what this post is about and I have written quite a lot on the subject over the months.

In Fraser v HM Advocate the situation was quite different.  On this occasion the Prosecution had not disclosed information within their possession, that materially undermined the case that they had set before the Jury at the original trial in the High Court.  That, the Supreme Court ruled, rendered the trial unfair and therefore a breach of the appellant’s human rights had occurred.  The case in question had become one of Scotland’s most notorious and complex murder cases involving the disappearance of the appellant’s wife, Arlene Fraser.

The details of Cadder and Fraser are not really all that important in terms of this blog post as the purpose is to look at the role of the UK Supreme Court in terms of Scottish Criminal Law.  Scheduled 6 of the Scotland Act 1998 creates a process whereby issues arising as a result of devolution can be raised before the Courts, including an appeal to the UK Supreme Court.  These provisions relate to both Civil and Criminal matters as the 1998 Act does not exclude Scottish Criminal Law from the process.  This has resulted in cases such as Brown v Stott 2001 SLT 59, Cadder v HM Advocate [2010] UKSC 43 and Fraser v HM  Advocate [2011] UKSC 24 which relate to criminal law in Scotland being heard by Judges in London.

This has created a real debate in Scotland as it has effectively ended the High Court’s reign as being the court of last resort in terms of criminal matters.  This was written into the Act of the Union in 1707 and recognised by the House of Lords in Bywater v. Lord Advocate in 1781, where the House of Lords agreed not to consider any further criminal appeals from Scotland.

What would happen if the Scotland Act 1998 was to be amended and the right to appeal Scottish criminal matters to the UK Supreme Court on EC Law or Human Rights matters was ended?  Well, in terms of Human Rights decisions one could take a case directly from Edinburgh to the European Court in Strasbourg for a decision.  While Scotland is a separate jurisdiction from England, in terms of International Law it is recognised as being part of the United Kingdom.  As the UK is a member of the Council of Europe and a signatory to the European Convention on Human Rights then it would be considered that all domestic remedies had been exhausted and it would therefore fall within the terms of reference of the European Court.  There are a number of problems if this were to happen.

Firstly, rather than the High Court of Justiciary losing its status as the court of last resort to the UK Supreme Court, it would do so to the European Court of Human Rights, so doesn’t really address the issue that many (including the First Minister and Cabinet Secretary for Justice) have with the involvement of the UK Supreme Court (well the official reason, one rather suspects that the reason is more to do with the Court’s location being London and they being nationalists who want an independent Scotland).  Secondly, in the UK Supreme Court two very eminent Scottish Judges sit.  They will normally (by convention) both sit on the bench for cases that come from Scotland and have a working knowledge of the Scottish legal system (both of whom had held the highest judicial office in Scotland: Lord President of the Court of Session which also doubles up as Lord Justice-General of the High Court of Justiciary).  The Scottish Justices are sensitive to the distinct nature of Scots Law and that is clear from their judgments.  In Europe not a single one of the judges within the European Court comes from Scotland.  There is no knowledge at all on Scots Law and there is no sensitivity for the distinct nature of that law.

The judgments that have been handed down since devolution by first the House of Lords and laterally the UK Supreme Court have been very fair and very balanced.  They have not upheld every appeal, indeed one of the first criminal cases to go down south on a Human Rights grounds (Brown v Stott) was refused by the House of Lords.  They have not, as far as I can see, tried to force English Law upon Scotland and generally all the justices have been largely in agreement in their decisions.  It is hard to imagine that in the two most recent  high profile cases (Cadder and Fraser) that the European Court of Human Rights would have found any differently.  All that would have happened would have been a much longer period of uncertainty as the Strasbourg Court is well known to be far too busy.  Surely saving them the bother of having to deal with every Human Rights argument from Scotland can only be a good thing (for that Court anyway)?  At least while the UK Supreme Court is involved decisions are arrived at quickly and the uncertainty that surrounds the law as a result of these challenges is minimised.  This is, in my opinion, a good thing.

While from a nationalist perspective appeals to the UK Supreme Court on Human Rights grounds may be a bad thing I see it is the more positive of the two scenarios.  While the UK Supreme Court is delivering judgments in these areas that are fair, balanced and take account of the distinct nature of Scots Law I see no reason to change anything.

Constitutional Law, Criminal Law, Human Rights, Legal System, Scots Law

Fraser v HM Advocate [2011] UKSC 24

The disappearance of Arlene Phillips from her home town of Elgin in 1998 has become one of Scotland’s most notorious cases and today the man convicted of her murder, Nat Fraser, has had his appeal to the Supreme Court allowed on Human Rights Grounds.  The UK Supreme Court has remitted the decision to the High Court for consideration as to whether to authorise a fresh appeal, as this decision is always taken by the High Court of Justiciary prior to quashing a conviction.  Technically the UK Supreme Court has authority under rule 29(1) of the Supreme Court Rules 2009 to grant authority to the Crown to mount a fresh prosecution, but it seems keen to infringe upon the workings of the High Court of Justiciary in its appellate function as the court of last resort in criminal matters in Scotland as little as possible and decided that the High Court was the best place for the question as to whether authority for a fresh prosecution should be granted or not to be taken.

Lord Hope, in delivering the decision of the UK Supreme Court said:

This matter is best dealt with by the High Court of Justiciary. So the case will be remitted to that court for this question to be dealt with, and it will be for that court to quash the conviction.

We wish to add two things. First, it will be appreciated that it is of the first importance that the media should refrain from any discussion of the detail or strength of the evidence against the appellant until the issue of whether there is to be a retrial has been resolved.  

The decision that we have taken in these proceedings, and the reasons for it, may be published. But those whose programmes and publications are available to the public in Scotland must not do or say anything that might prejudice the prospects of a retrial, if that is what the High Court of Justiciary decides to authorise.

There is no denying that withholding evidence by the Crown which weakened what they saw as the cornerstone to their case renders a trial unfair.  The Crown evidence was unable to be tested properly as a result of that and this puts the defence on the back foot.  Exactly what the outcome of the trial would have been had the evidence of PC Lynch and WPC Clark been heard is something one can only speculate on, and something which one must not do while the possibility of further criminal proceedings exists, certainly not in any public forum that may prejudice any future criminal proceedings that may be taken by the Crown.

Authority from the UK Supreme Court is clear that the refusal to hear a devolution minute by the Court of Appeal is a determination of that issue and providing that refusal is made by two or more judges of the Court of Appeal can be appealed to the UK Supreme Court under Schedule 6 of the Scotland Act 1998.

Unlike in Cadder v HMA, the UK Supreme Court has made a determination that leaves the High Court of Justiciary no other option than to quash the conviction of Nat Fraser.  By deciding that the original trial was unfair it results in a Miscarriage of Justice.  The decision of Cadder still required the High Court of Justiciary to look again at the safety of the conviction in light of discounting evidence obtained under police interrogation (a matter that can only be examined under section 106 of the Criminal Procedure (Scotland) Act 1995 and one over which the Supreme Court clearly has no jurisdiction).

This will, once again, no doubt raise the questions that surfaced after the decision in Cadder over the exact role that the UK Supreme Court has in the Scottish Legal System.  The High Court of Justiciary has always been the final court of appeal in Scottish Criminal matters, and that position is what the Scotland Act 1998 intended on keeping (having expressed nowhere explicitly a right to have appeals under s.106 of the 1995 Act examined by the UK Supreme Court).  However, the UK Supreme Court operates a constitutional function which means that matters that arise relating to the UK’s Constitution can be appealed to that Court.

Is the ability of the UK Supreme Court to determine devolution minutes in relation to Scottish criminal cases infringing more and more upon the position of the High Court of Justiciary as the Court of last resort in Scottish Criminal Law?  Some would argue yes, but it is hard to see how the position could be any different with Scotland remaining part of the United Kingdom.  Devolution minutes are difficult as while they relate only to EC Law or to the Human Rights as granted by the European Convention and enacted by the Human Rights Act 1998 their applicability is to all areas of Scottish Criminal Law and that means appeals to the Supreme Court by the “backdoor” are possible in any case where Article 6 may have been infringed.

It really is a difficult point indeed.

The full judgment of the UK Supreme Court in the case of Fraser v HM Advocate can be found here.

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NOTE:  As there may be fresh criminal proceedings in this case please do not post any comments on this blog that could interfere with those proceedings.  That includes, but is not limited to, any proclamations of Nat Fraser’s guilt or innocence and the strength or weakness of the Crown case.  It is important in the interests of justice that due process is allowed to take place.

Constitutional Law, Scots Law

Payday Loans and the Scottish Parliament

Scottish Parliamentary independent candidate Margo MacDonald has spoken out against the extortionate rates of interest charged by companies who provide so called pay-day loans and pleged to introduce a Bill to the Scottish Parliament to cap the interest if elected next week.  These short term loans intended to be repaid on your next payday have grown considerably over the few years, probably down to the worsening economic situation during these periods.  One company providing these services charges customers an APR of 1734% and I have seen television adverts advertising (in very small print APR rates of more than 2000%).

Personally, I have a problem with loans of this nature and have criticised them elsewhere before.  However, I do not propose to discuss my opposition to such loans on this blog, but rather look at how likely it is that Margo MacDonald would be able to do anything from within the Scottish Parliament.

Margo MacDonald’s proposals are to use the criminal law to place a statutory limit on the rates of interest that could be charged on such loans making the charging of an APR higher than this limit a criminal offence.  The Scottish Parliament more or less has complete competence in matters of criminal law.  However, any move by the Scottish Parliament to pass legislation creating such a criminal offence is likely to be opposed by the Financial Service industry and a challenge could be mounted to the legislation before the UK Supreme Court.

The Financial Markets is an area specifically reserved to Westminster in terms of Schedule 5 of the Scotland Act 1998.  It could be argued that by placing a cap on the interest rates that companies can charge for these payday loans that the Scottish Parliament is attempting to regulate the Financial Markets.  Such an argument, in my view, would be very persuasive indeed.  Both Financial Services and the Markets are reserved under A3 and A4 of Schedule 5 of the 1998 Act with the only real exception being the setting of bank holidays.  It could clearly be taken from the framing of the Act that all matters relating to the regulation of legally registered financial services providers is something that Westminster has the sole responsibility for.  In reality to have a situation that differs would make almost no sense at all.  When taking this into account it is very probable that any legislation passed by the Scottish Parliament limiting the interest charged in relation to such services would be held as being ultra vires by the UK Supreme Court.

As much as I would like to see something done about these really quite disgustingly high rates of interest I fear that only Westminster can do something to tackle them.  These loans are aimed at those who can least afford an APR rate of 1734%.  The Coalition Government have promised to look at the matter and Margo MacDonald would be best to spend time pressing the Prime Minister and Deputy Prime Minister to take action rather than preparing a Bill for the Scottish Parliament that is likely t fail or be struck out due to being out with the Parliament’s competence.