Tag Archives: McCluskey Review

Stephen Tierney: The Scotland Bill before the Scottish Parliament

The Scotland Bill, which intends to implement the Calman Committee report , is currently before the Scottish Parliament for consideration under the Sewel convention. It is being assessed by a specially convened Committee of the Parliament which is considering whether or not Holyrood should give another Legislative Consent Motion.

The Bill completed its Committee stage in the House of Commons on 15 March 2011 and its Report and third reading stages by 21 June. The engagement of the Scottish Parliament comes before the House of Lords addresses the Bill. In the Lords it will be possible to table further amendments, some of which may well result from the current Scottish parliamentary process.

The convention issue is an interesting one. The Sewel Convention of course that requires that any change to the devolved powers of the Scottish Parliament or the Scottish Government should ordinarily pass through Westminster only once the consent of the Scottish Parliament has been obtained. The first thing to note is that the Scottish Parliament’s Scotland Bill Committee is now in its second incarnation. The Bill was published on 30 November 2010 by the coalition Government. The Committee was first established on 7 December 2010 and considered the Bill during the term of the last Scottish Parliament when it was chaired by Labour’s Wendy Alexander. This committee reported in March 2011 and based on this report the Scottish Parliament then agreed to pass a ‘Legislative Consent Motion’, ‘supporting the general principles’ of the Bill but inviting the UK Government and the UK Parliament to consider amendments and proposals contained in the report of the Scotland Bill Committee. It also asked to see any amendments made to the Bill with a view to debating them in a further legislative consent motion before the Bill was passed for Royal Assent. This was interesting because it introduced the idea of a qualified LCM.

Following the May 2011 Scottish parliamentary election and the return of an overall SNP majority the committee was reconstituted with a very different composition and the new Committee is reconsidering the whole issue of whether or not to give another LCM. In his speech to the Scottish Parliament on 18 May 2011, the First Minister, Alex Salmond MSP, called for ‘improvements’ to the Bill. He specifically outlined six areas for further improvement: borrowing powers, corporation tax, the Crown Estate, excise duties, digital broadcasting and a stronger say in European policy. On 13 June 2011, the UK Government announced proposals to amend the Scotland Bill, and it is with a complex mix of the published Bill, plus additional provisions proposed both from Whitehall and the Scottish Government that the Committee is concerned.

The Committee is coming to the end of its deliberations and intends to report in December 2011. The main focus of public interest in the Bill is on tax and borrowing powers, but there are also a number of constitutional matters that lawyers might want to look out for.

Highlights include:

Clause 15 which will rename the Scottish Executive as the Scottish Government. This has become the commonly used term and the provision will formalise this change. The ‘Scottish Government’ was a title adopted by the Scottish Labour. The Bill accepts that the new usage has become so established that it needs to be recognised in law.

Clauses 4 and 5 will enable the Scottish Parliament to decide respectively on the number of deputy presiding officers and how to constitute the Scottish Parliament Corporate Body. These are intended to make the workings of the Parliament run more smoothly; as such they are uncontroversial.

Clause 6 proposes to amend Section 31(1) of the Scotland Act to extend the duty to anyone introducing a bill within the Scottish Parliament to certify that the bill is within competence. This duty presently only applies to ministers. In other words, a statement roughly equivalent to a s19 statement under the Human Rights Act will now be required even of backbench MSPs introducing a Bill into Holyrood.

Clause 7 aims to provide the  Secretary of State for Scotland with the power to refer only particular provisions within bills rather than the entire Bill (as present under section 33 of the Scotland Act 1998) to the Supreme Court prior to Royal Assent. This would allow the other provisions in the Bill to come into force.

Clause 10 will amend section 30 of the Scotland Act to allow changes to the catalogue of reserved matters in Schedules 4 and 5 by Order in Council as necessary or appropriate. In effect this will allow these powers to be changed temporarily. At the moment extensions of powers cannot be limited in time. This issue arose from the Somerville case which led to a speedy amendment of the Scotland Act to see off some of the possible consequences of that case.

Clause 16 again builds upon Somerville and the Convention Rights Proceedings (Amendment) (Scotland) Act 2009 passed subsequent to this. The idea is that there should be consistency between the time bar period for devolution issues under the Scotland Act and the time bar period under the Human Rights Act 1998.

Clause 23 proposes to extend further powers to UK Ministers to implement international obligations. It provides that a regulation made by UK Ministers, implementing an international obligation, can have effect throughout the UK, irrespective of whether or not it deals with matters which are within devolved competence.

Clause 17 is a recently introduced measure which will do two things. First it will amend section 57(3) of the 1998 Act so that acts or failures to act of the Lord Advocate in prosecuting any offence, or as head of the system of criminal prosecutions in Scotland, are not rendered ultra vires by virtue of section 57(2) of the 1998 Act. This is in line with the recommendations of various reviews of how the existing law has led to countless legal challenges against the Lord Advocate for any defects in the criminal justice system.

Second, Clause 17 addresses the important and controversial issue of appeals to the Supreme Court from the High Court of Justiciary, Scotland’s highest criminal court. Traditionally there has been no right of appeal in Scots criminal matters to the Judicial Committee of the House of Lords or the Supreme Court. The Scotland Act complicates this of course since ‘devolution issues’ arising even in criminal cases are able to go to the Supreme Court, as they were the JCPC. The Bill proposes to introduce a fairly wide ranging right of appeal. The Lord Advocate has responded on behalf of the Scottish Government with a more limited right of appeal based upon the McCluskey report which considered this matter; this seeks to confine appeals to constitutional issues and would require the ‘certification’ of the High Court of Justiciary that the matter is of ‘general public importance’.

We await to see if a compromise on this and other matters can be reached which will lead to the Committee, or at least a majority of its members, recommending that the Parliament pass a Legislative Consent Motion – even of a qualified nature.

Stephen Tierney is Professor of Constitutional Theory at the University of Edinburgh and constitutional adviser to the Scottish Parliament Committee on the Scotland Bill. 

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Christine Bell: Bills of Rights and Devolution: From the Universal to the Particular.

‘To produce one Bill of rights may be regarded as a misfortune.  To produce eight, looks like carelessness’.

This blog picks up on Nicholas Barber’s blog of September 11, 2011.  There he sketched the complicated options for taking a human rights case with respect to the Human Rights Act, the European Convention on Human Rights and the European Court of Justice.  He opined: whilst one bill of rights shows caution, three suggests panic.’

In this blog I examine the complications of the similar ‘disorder of legal orders’ (to use Neil Walker’s great phrase), emerging on the domestic rights front.  A stochastic set of Bill of Rights initiatives and Human Rights Act devolution dilemmas are driving multiple processes of reform in different directions, towards a wonderfully chaotic panoply of unintended consequences.

From three to eight?

 Within the UK three Bills of Rights processes are in train, in addition to Nicholas Barber’s three.

4. A Northern Ireland Bill of Rights.  The Belfast / Good Friday Agreement provided for a bill of rights in Westminster legislation providing for ‘rights supplementary to those in the European Convention on Human Rights, to reflect the particular circumstances of Northern Ireland, drawing as appropriate on international instruments and experience.’ (See further, advice given by Northern Ireland Human Rights Commission and post by Colin Harvey earlier this year).

5. An all-Ireland Charter of Rights.  This was to be considered in a joint initiative of the Northern Irish and Republic of Ireland Human Rights Commissions as also required by the Belfast/Good Friday Agreement, and underwritten by a British-Irish Treaty, although little progress has been made.

6. A UK Bill of Rights.  As provided for by the coalition  government, a Commission has been tasked with investigating a UK Bill of Rights with terms of reference that are remarkably similar to the NI Bill of Rights process namely, to fashion ‘add-ons’ to the ECHR to form a UK Bill of Rights. (And without complicating things too much, even should this come to nothing AXA General Insurance Limited and others v The Lord Advocate and others (Scotland), [2011] UKSC 46 offers the prospect of building ‘rule of law’ judicial review which, in theory, could begin re-incorporating a range of rights were the HRA dismantled see Adam Tomkins’ blog on the case.)

7. Scottish Rights for Scotland. Regarding a seventh rights framework, we could further add the outcome of a process, one suspects still to run, in Scotland, regarding when and how rights frameworks should apply in this devolved context.  The Scottish Human Rights Commission talk of a ‘National Human Rights Action Plan’ rather than a bill of rights (and opposes a UK Bill of Rights, preferring the Human Rights Act).  Meanwhile, the Scottish government has focused serious and sustained attention on how to limit the UK Supreme Court’s HRA review of criminal cases – this jurisdiction having resulted as anomalous  by-product of the shift of Privy Council ultra vires jurisdiction to the UK Supreme Court (see Walker Report 2010, Advocate General Expert Group Report 2010, McCluskey Report 2011, and Scotland Bill).  At present proposals are limited to a new appeals mechanism involving a reference procedure for cases involving convention rights, but underlying this reform lurks continuing pressure for a distinctive Scottish human rights regime policed by Scottish courts.  Such impetus is likely to be galvanized if – as they must – UK Bill of Rights proposals require amendment of the Scotland Act 1998 (where the definition of ultra vires incorporates the Human Rights Act).  SNP rhetoric with reference to the UK Supreme Court decision of Cadder v Her Majesty’s Advocate [2010] UKSC 43 appears to lean towards mediating and limiting the direct application of European Court of Human Rights’ jurisprudence in Scotland.  However, SNP’s independence agenda suggests a more extensive rights regime to perhaps include socio-economic rights.  Scotland’s devolved governments have repeatedly taken a different path to England and Wales with regard to socio-economic issues and the recently produced independence document of the SNP talks of new constitutional rights protection for Scotland and provides socio-economic commitments with a ‘rights’ flavour, all of which have relevance to ‘independence lite/devo-max’ outcomes as well as fully blown independence.

8. Welsh rights for Wales? For number eight we must turn to Wales where it is easy to imagine that with the Welsh Parliament which has recently increased its powers, moving towards its own bill of rights (see Liberal Democrat community bill of rights proposal), or national action plan for Wales.  The equality duty in the Equality Act 2010 already has a distinctive Welsh dimension and indicates that devolved diversity in rights is already with us but where equality is concerned has managed to come in under the radar (Northern Ireland of course also having an already-differentiated equality duty, and conditioning the powers of the NI Assembly not just on the HRA but on equality).

Although I too paraphrase Oscar Wilde I should make it clear that I do not view bills of rights negatively.  However, I would view as misfortune a single UK bill of rights, which watered down the Human Rights Act and negated ten years of Bill of Rights debate and a sensible proposal in Northern Ireland.  And the UK Bill of Rights process does seem somewhat careless and unfortunate from whatever political point of view one comes from.  Seized on by the Conservative Party apparently to limit judicially protected rights, to ‘get out’ of unpopular ECHR and HRA rulings,  and perhaps even strengthen the (UK) union, the terms of reference they cobbled together in coalition contemplate extending EHCR rights and show little thought to devolution, much less any evaluation of whether a bill of rights process will be a force for unity or galvanize (already existing) commitments to devolved rights regimes.  Were I an anti-HRA/ECHR conservative I would view such this result as very careless.

Plus, it all seems a quite careless anyway.  The Commission is to consult on ‘which rights’, but not on process or enforcement; has a mandate and membership which ‘forgets’ devolution, does not mention or draw on expertise of identical devolved initiatives, and then tacks on a few devolved ‘advisors’ using a mysterious appointments process; apparently uses ‘polarized views on Bills of Rights’ as its key membership criteria; is given an almost non-existent website (buried as a section of the ‘Justice’ department); establishes a once-off time-limited written consultation process with no education dimension and little public purchase (despite lack of public ‘ownership’ being a key rationale for moving from the Human Rights Act, see  Grieve); and manifests its divisions on its first, less controversial, task of advising the government on reforms to the European Court of Human Rights, where the Commission’s official advice was supplemented/counteracted by a letter to Ministers from the Chair, both of which were then unilaterally denounced in the press by one of the members (see  UK Human Rights Blog).  Whew.

Lost in this Bill of Rights mess, it is easy to miss the quite fundamental underlying negotiations that beget and sustain the mess.  Two key negotiations in particular are worth noting.

Plural rights for constitutional pluralism, or rights hierarchy for a unitary state?

One submerged negotiation is over a unitary or pluralist conception of the UK current constitutional arrangements.  For better or worse, the UK seems to be tracked into a process of incremental constitutional reform that includes on-going negotiation of devolution, and on-going negotiation of rights frameworks and the balance between legislature and judges at both national and devolved levels.  It is unreaslistic to expect such a process to deliver order, a common rights framework, and a neat rights hierarchy from devolved regions and courts, to the ‘UK’ and the UK Supreme Court, all embraced by a ‘we the people’ consensus. The current ‘Bills of Rights’ debates are  a by-product of incremental piece-meal reform, but also expose the limitations of such a process.  It is difficult to draft ‘we the people’ documents and broker foundational political compromises as to centre v. periphery, legislatures v judges, through processes that pretend to be minor tinkering at the edges.  We are indeed a big and complex society or even constellation of societies, and we need a ‘big conversation’.

Navigating the Universal and the Particular

The second negotiation is one over where and how universal human rights are best fashioned and applied.  All efforts to implement international human rights standards into domestic law and practice involve an attempt to provide for a particular application of universal rights.  The general wording of international human rights standards and the jurisprudence of their implementation bodies all leave considerable room for translating the universal into the particular.  In the translation, however, arguments arise as to what constitutes ‘translation’ and what constitutes re-writing.

Underlying the debate as to where and how to protect rights as between European, UK-wide and devolved fora, is a political debate as to who it is will really uphold ‘universal values’ in a locally appropriate way, and who has an agenda to ‘particularize’ rights to their own imperialist/ partisan political image.  Thus conservative politicians charge the ECHR as foreign and imperialist in terms of a European paradigm, and assert a UK Bill of Rights as a legitimate ‘more appropriate’ alternative.  However, proponents of the HRA suspect a conservative particularist/imperialistproject at play in the UK Bill of Rights debate, and an attempt at ‘watering down’ or even jettisoning the ECHR for narrow political gain.

Meanwhile, the regions (and others) also charge the process as an imperialist conservative party and unionist project from an internal perspective; while attempts to construct differentiated regional rights provision are counter-alleged by the centre to be ‘too locally driven’, not ‘proper rights’, or not rights which can be delivered to devolved regions alone (see Labour government response to Northern Ireland Bill of Rights Advice).  Behind these counter-charges lies the suggestion that devolved rights agendas also hide imperialist ambitions, this time of devolution nationalists.

Reframing the issue

So what do I say to this?  First of all, I point it out to clarify debates.  But to go further I suggest that the following are useful to bear in mind.

1. Attempted imposition of ‘neat’ rights hierarchies will not make the difficulties of ‘what rights,  where?’ go away.  What is is, and it would be a mistake to assume that a constitutional default position exists.  Let’s embrace the negotiation which is an important one over where and how best to protect rights, and what the relationship is and should be between all the UK’s courts and legislatures.  If this is the debate let us be honest and explicit about it rather than pretending it can be ‘won’ by setting up or running a circumscribed process.

2.     We can never assume or take for granted who best protects  and develops universal human rights.  There is a tendency to think and argue that universality lies in a similar hierarchy to courts of appeal and legislatures themselves, and that we move from more particularized to more universal as we move from local, to national, to regional, to international legislatures and courts.  However, international law makers, courts and tribunals can have their own agendas just as surely as national ones.  While it is true that the expression of rights is likely to move from the more specific to the more generalized and abstract as we move from local to national to international, this does not necessarily equate to a movement from the particular to the universal.

3.     Judges best win jurisdiction over issues by the ways in which they reason from the universal to the particular, rather than by asserting a place in a legal hierarchy.  If local courts are to take themselves seriously and clamour for jurisdiction, they must show themselves capable of engaging with and reaching to universal values when they decide particular cases.  There is a difference between local application of universal values, and ignoring those values or seeking to attenuate them.  Similarly, international judges have most power to affect the implementation of rights where they take local context seriously.  The universal and particular are linked – and a court’s legitimacy in the arena of rights often depends on how it frames its decision in terms of navigating between the two.

4.     Most esoterically, but perhaps most importantly, the difficulty of navigating the universal and the particular is always with us.  Translating the universal to the particular, and using the particular to build, apply, and even establish the universal is an eternal dialectic.  Constant challenge and negotiation is less a problem, and more an important part of how we actually negotiate and come to understand values as universal in the first place.

5.     Therefore we should be suspicious of a priori claims to the Universal as linked automatically to the ‘level’ of the rights initiative, and seek to understand how challenge and counter-challenge work.  That is the end to which this blog has been written, and so I close.

Christine Bell is Professor of Constitutional Law at the University of Edinburgh.


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Filed under Constitutional reform, Devolution, Human rights, Northern Ireland, Scotland, UK Parliament, Wales

Aileen McHarg: Final Appeals in Scots Criminal Cases

On 25 May, the Supreme Court handed down its judgment in Fraser v Her Majesty’s Advocate [2011] UKSC 24, which held that Fraser, who had been convicted of murdering his wife, had received an unfair trial contrary to Article 6 ECHR, because of the Crown’s failure to disclose evidence to the defence.  The Supreme Court ordered the Court of Criminal Appeal in Edinburgh, which had earlier held that there had been no miscarriage of justice, to consider whether to authorise a new prosecution (which it subsequently did) and to quash the conviction.

This decision – fairly unremarkable in itself – nevertheless provoked a storm of controversy.  Scotland’s First Minister, Alex Salmond, and the Justice Secretary, Kenny MacAskill, accused the Supreme Court of illegitimate interference in Scotland’s criminal justice system, questioned the qualifications of its justices to pronounce on matters of Scots Law, and even threatened to withdraw Scottish funding of the Court.  Lord Hope of Craighead, in turn, granted a highly unusual interview to The Times rejecting these criticisms (‘Salmond has got it all wrong, says judge – First Minister “misunderstood the law and the facts”’, 27 May 2011).  Salmond and MacAskill were roundly condemned for their remarks, being accused of anti-Englishness and, more seriously, of threatening judicial independence and undermining the rule of law.  This unseemly row rumbled on for several weeks, until brought to an end by the untimely death of Lord Rodger of Earlsferry on 26 June.  Meanwhile, on 5 June, the First Minister announced the establishment of a review of the future scope of appeals to the Supreme Court in criminal cases.  The Review Group issued a hurried first report on 27 June, followed by a more considered final report published on 14 September.

The Review Group’s report is in fact the third in two years dealing with the issue of final appeals in the Scottish legal system.  The relationship between courts in Edinburgh and London has long been a contentious one.  Not only is the treatment of Scottish appeals to the House of Lords/Supreme Court anomalous compared with the other UK jurisdictions – there is no leave requirement for Scottish appeals in civil cases and, until 1999, there were no appeals whatsoever in criminal cases – but the House of Lords’ alleged insensitivity to the distinctive nature of Scots law has also been a long-standing source of grievance for many Scots lawyers.  However, the issue has become particularly fraught in recent years because of two controversial developments.

The first is the creation, as an unintended consequence of devolution, of a de facto right of appeal in criminal cases, first to the Privy Council and now to the Supreme Court, where a devolution issue is raised.  Because the Lord Advocate – who heads the prosecution service in Scotland – is also one of the Scottish Ministers, and because the Scottish Ministers are, by virtue of section 57(2) of the Scotland Act, prohibited from acting contrary to the ECHR or EU law, the Privy Council decided that any case in which the Convention-compatibility of a criminal prosecution is questioned raises a devolution issue.  This has led to a steady stream of cases in which the Privy Council/Supreme Court has taken a different view to the Court of Criminal Appeal on the convention-compatibility of Scots law.  As well as causing resentment amongst some Scottish judges, unused to external interference in criminal matters, some cases have caused significant problems for the Scottish Government.  Most notable is Cadder v HMA [2010] UKSC 42, which held that the lack of a right of access to a solicitor for suspects in police detention (rather than under arrest) was contrary to Article 6, leading to hundreds of consequential appeals and a significant additional charge on the Scottish legal aid budget.

The second controversial development was the creation of the Supreme Court itself.  Although this made no substantive changes to appeal rights in Scottish cases, the establishment of an explicitly ‘UK’ court reinflamed sensitivities about the continued independence of Scots law.

Attempts to reform final appeals date back to 2006, when Adam Ingram, an SNP MSP, introduced a Member’s Bill which sought to end civil appeals to the House of Lords and establish instead an additional layer of appeal within Scotland.  However, the Bill was rejected by the Scottish Parliament, having been ruled outwith devolved competence by the Presiding Officer.  In 2008, the by then minority SNP Government returned to the issue and asked Professor Neil Walker to conduct a review of final appellate jurisdiction in the Scottish legal system.  The Walker Review reported in January 2010, and recommended a quasi-federal system, whereby appeals in both civil and criminal cases which raised UK-wide issues would continue to be heard by the Supreme Court, but those involving purely Scottish issues would be dealt with exclusively by Scottish courts.  As well as raising practical difficulties and vires issues, this was almost certainly not the recommendation the Government wanted, and the report has effectively been shelved.

Subsequently, debates have focused on the narrower question of the treatment of devolution issues in criminal cases.  In September 2010, the Advocate-General established an Expert Group, headed by Sir David Edward, to make recommendations for reforms to be included in the Scotland Bill currently before Parliament.  The Expert Group report Expert Group report, published in November 2010, concluded that the inclusion of the Lord Advocate’s prosecution functions within the definition of devolution issues was a ‘constitutional error’ which ought to be removed.  These were ‘retained functions’, which had nothing to do with devolution, and the current arrangements were ‘clumsy, bureaucratic and productive of delay’.  Nevertheless, to ensure consistency with the rest of the UK, it recommended that a new, free-standing right of appeal to the Supreme Court should be created for criminal cases raising issues of compatibility with the ECHR or EU law.  A new clause 17 was added to the Scotland Bill at report stage in the House of Commons on 21 June to give effect to this recommendation.

In their submissions to the Expert Group, the Scottish Government and the Lord Advocate had called for appeals to the Supreme Court in criminal cases to be ended altogether, so Salmond was no doubt hoping that this is what the Review Group (headed by Lord McCluskey) would recommend.  Again, however, he was disappointed.  The Review Group agreed with the Expert Group that there should be a new, free-standing appeal right for cases raising Convention rights issues, albeit differing on the details of how this should operate.  In particular, the Review Group argued that an appeal should lie only where the Appeal Court certified that the case involved a point of law of general public importance, and that the Supreme Court’s powers should be limited to pronouncing on the question of law referred; it should not have all the powers of disposal available to the Appeal Court.  Moreover, they argued that the new appeal right created by clause 17 was technically deficient, since it was limited to acts or failures to act of the Lord Advocate, whereas what the Expert Group had intended was a right to appeal against any aspect of a trial raising Convention rights issues irrespective of the agency responsible for the alleged breach.  The Review Group also emphasised that criminal cases raising true devolution issues (e.g., concerning the vires of criminal offences created by the Scottish Parliament) should continue to be dealt with via the current procedure.

Since this was the third set of expert advisors to recommend retention of some form of appeal to the Supreme Court in criminal cases, the Scottish Government had little option but to accept it.  The tone of the report – which reaffirms the finality of the Appeal Court’s jurisdiction in criminal law generally, and emphasises the limited nature of the role proposed for the Supreme Court – together with the differences of detail from the Advocate General’s proposals, are probably sufficient to allow the Scottish Government to save some face.  There is, however, no guarantee that the Review Group’s proposals will be implemented.  This depends entirely upon the willingness of the UK Government and the Westminster Parliament to accept them; since the reform involves amendment of the Scotland Act 1998, it is outwith the competence of the Scottish Parliament itself.  The UK Government has laid down three tests for the acceptance of further Scottish Government amendments to the Scotland Bill: they must be based on detailed proposals; they must deliver clear benefits to Scotland, without prejudice to the rest of the United Kingdom; and they must generate cross-party consensus.  The first two of these conditions would seem to be fulfilled, but given the general political condemnation of Salmond and MacAskill for their handling of this issue earlier in the summer, other Westminster parties may be unwilling to make concessions.  The Scottish Government is not entirely powerless, though.  Amendments to the Scotland Bill during its Commons stages, including the addition of clause 17, mean that a new Legislative Consent Motion is required from the Scottish Parliament.  Should the Parliament refuse to consent to clause 17 as it currently stands (which seems likely), the UK Government could not ignore that without provoking another constitutional crisis.

Nevertheless, even if the Review Group’s recommendations are implemented, the outcome will be a poor one from the SNP’s perspective.  Far from ‘repatriating’ Scottish final appeals, the result will be the creation of a freestanding right of appeal in criminal cases, potentially broader in scope that the current devolution issue procedure.  Moreover, this will reinforce the incipient federalisation of the Scottish legal system.  Under the Constitutional Reform Act 2005, s 41(2), devolution issues are already implicitly regarded as matters of UK law, rather than Scots law, and the argument for consistency in the interpretation of Convention rights and EU law suggests that these are regarded in the same way.  Although both the Expert Group and the Review Group justified the need for consistency by reference to the need to ensure compliance with international law, this argument is less compelling than might be supposed.  Since the ECHR establishes only minimum standards for the protection of human rights, there is a respectable argument that consistency between the UK’s jurisdictions is not always required.  Similarly, the ECJ has recognised in Horvath (Case C-428/07 [2009] E.C.R. I-6355) that differential implementation of EU law as between ‘legislatively empowered’ regions within member states may sometimes be permissible.  The argument for consistency, then, is one based on internal constitutional considerations, not external requirements.  In other words, as the Walker report argued, the logical implication of devolution is the quasi-federalisation of the UK’s legal systems and the creation of an explicit body of ‘UK’ constitutional law.

The difficulty is that asymmetric devolution also means asymmetric federalisation.  For the time being, the Scottish legal system is much more tightly constrained by the emerging UK constitutional jurisdiction than the English legal system.  Given the legitimate interest that the Scottish government has both in the structure and scope of final appeal rights and in the impact of particular Supreme Court decisions, as well as the symbolic importance of the independence of the legal system to Scottish nationalists, this situation is bound to be a source of tension.  This is particularly so given that the Westminster Parliament can be expected to be even less interested in matters of Scots law post-devolution than it was before.

It is frustration over their lack of full control over the legal system which explains the intemperate nature of Salmond and MacAskill’s response to the Fraser case (see Salmond’s interview in Holyrood magazine on 13 June.  This was undoubtedly an attempt to influence the Supreme Court, and particularly its Scottish judges, by warning them that the legitimacy of their decisions in Scotland cannot be taken for granted.  In the absence of formal channels through which to respond to problematic Supreme Court decisions, resort to informal influence is inevitable.  Although the threat to judicial independence has probably – as is usually the case – been overstated, this cannot be regarded as a desirable constitutional position.  For now, the sting appears to have been drawn from the issue.  However, if the Supreme Court rules against the Scottish Ministers, for instance in the Axa General Insurance case, or in a future case regarding the competence of the promised independence referendum, similar ructions can be expected.

Aileen McHarg is a Senior Lecturer in Law at the University of Glasgow.

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