22 Wk 8, 1 Public Law - Scottish Judiciary PDF

Preview

Summary

Lectures Notes...

Description

Week 8, Lecture 1

Public Law – The Scottish Judiciary, Cormac Mac Amlaigh

LECTURE 22 The Independence of the Judiciary in the Scottish & EU Constitutions Essential Reading: P. Reid, Public Law, (Green: 2015), Chapter 8. “Presentation of the Court of Justice” available at: https://curia.europa.eu/jcms/jcms/Jo2_7024/en/ -

Last lecture looked at Judicial independence and impartiality in respect of UK Supreme Court

-

Today look at Scotland and the EU

-

First Scotland:

Let’s continue with our topic of judicial independence and judicial impartiality. Last week we looked at the Supreme Court, today we will look at the independence of the judiciary in the Scottish and EU constitutions of government. We will start with Scotland and first, with the question of ordinary or special jurisdiction. Ordinary constitutional or ordinary public law jurisdiction is where you have no separate stream of Constitutional Courts. All the courts decide all of the issues right up to the top. With special public law or constitutional jurisdiction, (those terms are used interchangeably) means that you have a special designated court like a Constitutional Court who only decides questions on what the Constitution means. That's the distinction. Cases are referred to the court, they decide what the Constitution means and then they revert the case (or refer the case) back to the ordinary court to allow it to make its ruling. Last week, we noted some examples of special jurisdiction in the UK and particularly in Scotland, and we'll look at those today. Ordinary or Special Jurisdiction? Noted last week that there are examples of special jurisdiction in Scotland Scotland generally has a system of Ordinary Jurisdiction for constitutional matters criminal matters end at the High Court of Justiciary in Edinburgh whereas civil matters can end up in UKSC (as per previous practice)  Exception for EU law applies also in Scotland (SCO courts can refer matters to EU Courts on questions of EU law) – e.g. Wightman case.  However other exception in Scotland: certain public law issues and criminal law matters can end up in the UKSC under a sort of special jurisdiction  In both these types of cases, the UKSC acts a bit like a Kelsenian Constitutional court This can happen for   

o o o

Law Officer Referrals for Bills ‘devolution issues’ under s. 98 Scotland Act and ‘compatibility issues’ under s. 288ZB Criminal Procedure Scotland Act 1995

Generally speaking, Scotland has an ordinary system of constitutional or public law jurisdiction. However, there are a number of exceptions to this, and this gives us the idea of a special constitutional jurisdiction operating right here in Scotland. First of all, the exception is the same exception that applies to the UK level on that is in matters involving EU law, which will continue at least up until the end of this year, potentially for longer will continue in existence, at least for the UK in Scotland, notwithstanding Brexit. So where Scottish courts have a question of determination of EU law, they must refer the case to the EU court, the European Court of Justice in Luxembourg, who will determine those issues. From your tutorials, the Factortame case, the famous EU law case that came before the House of Lords is precisely one such example of this; where the court had to refer a question to the special Constitution Court of the EU who determines the question, then it comes back. In that case Factortame came

1

Week 8, Lecture 1

Public Law – The Scottish Judiciary, Cormac Mac Amlaigh

to the House of Lords, who then had to conclude in the making of their ruling. One example of the special constitutional jurisdictions that operate at the UK level and the Scottish level, are questions involving EU law, which must be referred to the EU courts. However, there are more examples of special constitutional jurisdiction in Scotland. There are three that we're going to look at, (in your lecture handbooks, I omitted Law Officer Referrals for Bills, so write that at the top of the list). The second are devolution issues under Section 98 of the Scotland Act, and the third are compatibility issues under Section 288ZB of the Criminal Procedure Scotland Act, 1995. We'll start with Law Officer Referrals. In law making in the Scottish Parliament, before a bill can become law, there is a month period where any of the Law Officers can refer the case for questions of compatibility with the Scotland Act, in particular whether a proposed bill is within the competence of the Scottish Parliament. The court that they refer this to, is the UK Supreme Court. Before a bill can get royal assent, before a law becomes law at the Scottish level of government, any of the Law Officers can refer the case to the UK Supreme Court in order to receive a ruling as to whether that bill is within the competence of the Parliament. This is exactly what happened in the EU Continuity Bill case, the first such referral by the Law Officers. This is a form of special constitutional jurisdiction. This is a case where the Law Officers refer a bill before it even becomes law, to the UK Supreme Court, which in that context would act like a court of special constitution jurisdiction, (a form of Constitutional Court), which will say this bill is within the powers of the Scottish Legislature or it's out with the powers of the Scottish Legislature. That's one way in which Scotland has a system of special constitution jurisdiction as an exception to the general picture of it having ordinary constitution jurisdiction. Devolution Issues Already considered some of this in relation to the Scottish Parliament qua legislature i.e. that courts can review ASPs for compatibility. Sch. 6 of the SA has two referral procedures on devolution issues 

o From inferior courts to Court of Session in Scotland (i.e. the Inner House of the court of Session) o From Court of Session to the UKSC. But also s. 33 SA ‘law officer’ referrals directly to the SA o o o

Form of ex-ante review/abstract review That law officers can refer a Bill to the UKSC prior to receiving royal assent. E.g. as in the EU continuity Bill Case

The second way are devolution issues under Section 98 of the Scotland Act. Where a case is being tried or case is being heard in Scotland, if one of the party's raises what they call a devolution issue (questions whether an aspect of the trial touches upon the distribution of competence under the devolution arrangement), involves the Scotland Act and its limitation of the competences of the Scottish Legislature and the Scottish Executive. There are two forms of referral which can happen where a devolution issue is raised in proceedings. One is from the Inferior Courts to the Court of Session in Scotland. If, within the inferior courts, a devolution issue is raised, then they must ask the Court of Session to determine that question. And secondly, the Court of Session can then refer on to the UK Supreme Court for a determination, as to the powers and competences of the Scottish institutions. This is after a bill has become law and proceeding is taking place, and one of the parties in the proceedings raises a question that touches upon competences of the Scottish institutions be it the Scottish legislature or the Scottish executive. We have a form of special constitutional jurisdiction, (a form of special public law jurisdiction) where the Court of Session and ultimately the UK Supreme Court, can be petitioned to resolve this particular dispute. In that context, they are acting like a form of Constitutional Court where they have the competence to determine what the Constitution in this context, the Scotland Act, says on the given matter. Compatibility Issues  

Emerged after 2012 Amendment to Scotland Act Problem that criminal matters were getting to UKSC ‘by the back door’

2

Week 8, Lecture 1

Public Law – The Scottish Judiciary, Cormac Mac Amlaigh

Remember criminal proceedings stop with High court of Justiciary in Edinburgh However, all public bodies in UK (Inc. Scotland) have a statutory duty not to violate fundamental rights This includes the Scottish Government and in particular the office of the Lord Advocate All prosecutions in Scotland are done in the name of the Lord Advocate Who is a member of the Scottish government Therefore any criminal trial which raised questions of the human rights dimensions of the trial ended up in the UKSC as an issue relating to competence of acts of the Scottish government on human rights grounds  i.e. that someone could raise a breach of fundamental rights by the Lord Advocate as a devolution issue to the UKSC under Sch. 6 SA.  So, where you have criminal trial, the applicant argues that HRA breached, this is a devolution issue  HCJ can refuse appeal on a devolution but this refusal can itself be appealed to the UKSC  Therefore UKSC ended up deciding the substance of the case - de facto final appeal to UKSC on criminal matters  Matters came to a head in the celebrated Cadder v .HMA case 2011 SC (UKSC) 13 and Fraser v. HMA 2011 SC (UKSC) 113 where UKSC overturned decision of the High Court of Justiciary in relation to access to legal advice and suppression of evidence by the police  Caused serious controversy among the legal fraternity in Scotland  Therefore Sch. 6 SA amended to create category of ‘compatibility issue’  Rules contained in s. 288ZB Criminal Procedure (Scotland) Act 1995  Allows a Scottish court to Refer to high court where a compatibly issue raised or where law officers request  High Court may, in turn, refer the matter to UKSC for determination  UKSC can only determine the compatibility issue - not decide the case overall (as it had done previously prior to the 2012 reforms)  Once determined, the UKSC’s determination on the compatibility issue must be referred back to the High Court  Then the High court decides the case The final exception to the general rule of ordinary jurisdiction in Scotland are compatibility issues. The compatibility issues are a relatively new form of special constitutional jurisdiction, which emerged in the early 2010’s. They were formally recognised in the 2012 Scotland Act, (there's the 1998 Scotland Act, but then the 2012 Scotland Act and the 2016 Scotland Act made amendments to the 1998 Scotland Act).      

This was one such amendment which emerged from a problem that occurred in the course of criminal trials in Scotland after devolution. Traditionally in Scotland civil jurisdiction ended up in London, so you could take civil cases, private law cases primarily, to the courts in London, (contractor disputes etc.). However, criminal cases always stopped here in Edinburgh at the High Court of Justiciary, and this was just for historical reasons. There's no strong justification for this, but this was the set of arrangements that has existed when the union was established in 1707. However, under the Human Rights Act, all public bodies in the UK have a statutory duty not to violate fundamental rights. This included the Scottish executive and the members of the Scottish Government and in particular, the Office of the Lord Advocate. All prosecutions in Scotland are done in the name of the Lord Advocate who is a member of the Scottish government and the Scottish Executive. Therefore every criminal trial which took place in Scotland was, constitutionally understood as an action of the Lord Advocate. By dint of this, if a criminal trial in Scotland was deemed to have breached fundamental rights, they were deemed to have been an act of the Scottish Executive, of the Lord Advocate, and therefore could be raised as a devolution issue in the way that we just talked about. This could require an appeal from the Scottish criminal courts to the UK Supreme Court. This created a back door of criminal appeal to the UK Supreme Court. Traditionally, all criminal trials stopped and Edinburgh was a court of final jurisdiction for criminal matters in Scotland. However, because of the question of devolution issues, and the question of whether the Scottish government, (in this case the Lord Advocate), had remained within their powers under the Scotland Act, and some of the powers that they don't have under the Scotland Act is to breach fundamental rights. So where somebody alleged in a criminal trial, we think this trial breaches fundamental rights that ended up going as a devolution issue to the UK Supreme Court, who ultimately decided the case. This created a back door of criminal appeal to the UK Supreme Court, which was considered

3

Week 8, Lecture 1

Public Law – The Scottish Judiciary, Cormac Mac Amlaigh

to be a violation of the understanding of criminal jurisdiction in Scotland after the Act of Union, (which was that criminal jurisdiction ended in Edinburgh and didn't go to London). This came to a head in 2 celebrated cases in 2011, the Cadder and Fraser cases. These were two significant criminal cases that raised devolution issues that ended up with the Supreme Court's decision, and caused a lot of controversy in Scotland. The first was the question of criminal procedure and the access to legal advice whilst in detention. This was deemed by the Scottish courts to be compatible with fundamental rights, but an appeal was lodged on the matter of the devolution issue, so there was a question whether the Lord Advocate, who nominally conducts criminal trials in Scotland, was breaching their powers under the Scotland Act by violating fundamental rights. The UK Supreme Court, heard the case and said, Yes, that is the case, and this conviction has to be quashed. It created a lot of problems because a lot of criminal trials had been conducted using this form of denying certain people legal advice while they were in detention by the police. The second case was the Fraser case. This was a high profile murder case where a conviction had being found and the defendant raised an issue of evidence not being introduced in the trial. He alleged in his criminal trial, that some evidence had not been introduced into the trial and this was a breach of his right to a fair trial. Therefore, he raised a devolution issue, which sidestepped the Scottish criminal system to the UK Supreme Court, in order to make a determination whether the exclusion of this particular evidence breached the right to a fair trial which the Scottish institutions are not competent to do so, (the Scottish institutions cannot breach fundamental rights as contained in the Human Rights Act). The UK Supreme Court found that this was a breach of the defendant's fundamental rights and that therefore, the trial had breached fundamental rights so the case had to be re-tried. This created a lot of consternation because this was a very high profile criminal case at the time. In order to prevent this loophole in the Scotland Act, whereby criminal appeals ended up with the UK Supreme Court instead of staying here in Edinburgh at the High court of Justiciary the Scotland Act of 2012 created this category of a compatibility issue. This allows a Scottish court to refer to a higher court where a compatibility issue is raised or where the law officers request it, the High Court may, in turn, refer the matter to the UK Supreme Court for determination. However, unlike the pre-2012 situation, the UK Supreme Court must simply make a declaration: Yes, this violates fundamental rights, or No, this does not violate fundamental rights, then remands the case back to the High Court in Edinburgh, who makes the final determination and runs the rest of the trial. It's a little bit like devolution issue, but it limits the question of referral to a specific number of compatibility cases involving the conduct of criminal trials and their compatibility with fundamental rights. If it is alleged it can end up the High Court's decision in Edinburgh, and if it's still questioned, the high court can refer a case to the UK Supreme Court, who will determine only the compatibility issue and then refer the case back. Previously, they basically re-heard the whole case. The UK Supreme Court simply treated the case as if it was an appeal, not a question of special constitution jurisdiction. So basically that tightened it up and now we have another exception to the general rule of ordinary jurisdiction, where compatibility issues can create a form of special public law/ constitutional jurisdiction where the Scottish courts can re fer questions to UK Supreme Court exclusively on matters of the conduct of criminal trials of fundamental rights, which then refers them back to the Scottish courts, who then conduct the remainder of the trial and make their decision. So, the general rule is ordinary jurisdiction, but there are three important exceptions to that general rule creating more of a special constitutional or public law jurisdiction in respect of the Scottish court system.  In both these types of cases, the UKSC acts a bit like a Kelsenian Constitutional court Judicial Independence in Scotland   

The primary law protecting judicial independence in Scotland is the Judiciary and Courts (Scotland) Act 2008 s. 1 imposes on the First Minister, the Lord Advocate, the Scottish Ministers and MSPs an obligation to ‘uphold the continued independence of the judiciary’. Must not seek to influence judicial decision through special access to judiciary

4

Week 8, Lecture 1

Public Law – The Scottish Judiciary, Cormac Mac Amlaigh

Confirms the Lord President as the Head of the Scottish Judiciary Lord President also responsible for representing views to SCOGOV and SOCPAR on matters concerning the administration of justice in Scotland  Courts Reform (Scotland) Act 2014 regulates Sheriffs and Sheriff courts Moving onto questions of judicial independence in Scotland, like the Constitutional Reform Act, we talked about last week in respect of the UK Supreme Court, its equivalent in Scotland is the Judiciary and Courts (Scotland) Act 2008, which is the core statute which regulates the independence of judiciary in Scotland.  

Like the constitutional format, the Judiciary and Courts (Scotland) Act 2008, creates a duty on the First Minister, the Lord Advocate, the Scottish Ministers and the MSPs to uphold the continued independence of the judiciary. Section 1 of the Judiciary and Courts (Scotland) Act creates a statutory duty on all the members of the executive and the legislature of the Scottish level of government to uphold the independence of the judiciary. They must not seek to influence judicial decisions through special access to the judiciary, so they shouldn't have meetings with the judiciary about cases. The act also confirms the Lord President as the head of the Scottish judiciary and the Lord President is also responsible for representing views to the Scottish government and Scottish Parliament regarding the administration of justice in Scotland. Specifically with respect to sheriff and sheriff courts, the Courts Reform (Scotland) Act of 2014 regulates the independence, specifically of the Sheriff courts. Judicial Appointments 

UKSC appointments have already been considered (remember, 2 of the judges on the UKSC are Scottish judges)



Generally judges appointed by FM on recommendation of a Judicial Appointments Board



JAB has 3 types of members:

Judicial members appointed by Lord President (Court of session judge, a sheriff principal and a sheriff);  ‘legal members’ appointed by MSPs (a practicing advocate and a solicitor) and  Lay-members appointed by Scottish Ministers (e.g. members of civil society, academics etc.)  JAB must advertise vacancies and interview applicants  Must have regard to need to encourage diversity among the judiciary  Exception: appointment of the Lord President and Lord Justice Clerk (most senior judicial positions in the Court of Session and High Court of Justiciary) o These are regulated by s. 95 SA o Prime minister (of UK) makes these appoin...