Michael Fry: The case for legal independence

Published on Friday 3 June 2011 18:19

The government of Scotland should seek legal autonomy for the country in no less a degree than it hopes to seek fiscal autonomy during its parliamentary term over the five years ahead.

That is to say, just as the government means to make Scotland so far as possible independent in public finance, so it should set out to make the Scottish jurisdiction so far as possible independent (though there will be some unavoidable limitations, chiefly international ones). At the end of the five years, devolved Scotland would then have won effective autonomy in two huge areas of the modern state's functions.

In a certain sense formal independence, with a seat in the United Nations and on the European Council of Ministers, might in that case be rendered redundant. Or else, if in a referendum the voters found this halfway house not to be what they wanted, the step from effective autonomy to formal independence would have been reduced to such minor dimensions that even an electorate as wary as the Scottish one might feel tempted to take it.

The argument for legal autonomy seems to me to follow on from the controversy over the case of Nat Fraser, whose conviction was quashed in London on the grounds his human rights had been breached in Scotland during his appeal in 2007. This time, the judges of the Supreme Court were not ruling on his guilt or innocence as such, only whether his trial had conformed to the European Convention on Human Rights: they decided it had not.

That was the judges' job. But their decision opened up wider implications, casting doubt over the independence in criminal justice which, against the odds, Scotland had managed to preserve ever since the Union of 1707. Till a year or two ago, there were no appeals in criminal proceedings beyond the High Court in Edinburgh. Today there is the possibility of or even the invitation to one for cases somehow involving human rights, and such an appeal will go to the Supreme Court in London.

So a back door has been left ajar that could be hard to push to: there may be many cases in which clever and unscrupulous Scots defence lawyers will look for, indeed delight in finding, some aspect of human rights. The vaunted independence of the Scottish judiciary could in this area face the fatal risk of absorption into a British system of justice. And here, as in other areas, British may mean in reality English.

Is such an outcome credible in the era of devolution? I do not find it credible at all, yet I still think a positive effort must be made to avert it.In the matter of human rights, there is a reasonably satisfactory solution: the High Court must be empowered to grant leave to appeal to London, which is not a requirement at present. I would not expect Scots judges to be lavish with their leave.

But while we discuss perfecting new procedures, we can hardly fail to note pitfalls in existing procedures - especially those that have arisen from the fact that for three centuries appeals have been allowed to London in a much more important branch of Scots law, the civil law.

Though article 19 of the Treaty of Union excluded English courts from any jurisdiction in Scotland, that rule was overturned as early as 1711 in a case by which the House of Lords, graced with its bench of bishops, sought to clip the wings of the Kirk by allowing an appeal from an Episcopalian priest. From this narrow and partisan basis, the ultimate authority of the Lords over Scots civil law was established and in course of time extended.

It was not a happy experience. In the 18th century it led to a huge backlog of cases as judges in London struggled to get to grips with an alien system from a different country. And it brought rulings at times inexplicable and inapplicable to that system, because the judges thought along the lines of English common law while the law of Scotland was nourished on a rich mixture of European sources.

At length those judges got round their problem by thinking of Scots law as subaltern to English law. The idea found its classic expression in a verdict delivered by Lord Chancellor Cranworth, applying an English doctrine to a Scottish case before him: "I consider … that in England the doctrine must be regarded as well settled; but if such be the law of England, on what ground can it be argued not to be the law of Scotland? The law, as established in England, is founded upon principles of universal applications, not on any peculiarities of English jurisprudence."

By the 20th century some of those judges were applying English law to Scotland not out of mere ignorance or indifference but with almost vindictive relish. Andrew Dewar Gibb, professor at Glasgow, founder of the SNP and kinsman of Donald Dewar, wrote a deliciously polemical book about it, Law from over the Border. In 1982, a similar sort of situation gave the Canadians good reason to repatriate their constitution, enshrined in the British North America Act of 1867 - just a normal act of parliament subject to interpretation at Westminster. Only with devolution has Scotland found its own chance to think about lifting the Lords' yoke, which today has come to be held in place by the Supreme Court.

We should do so before we get into more of a mess of the kind Nat Fraser's case has caused. There, no important point of law happens to be at stake, but the difference between English and Scots law is bound to widen in future.We now have a Scottish Parliament churning out its own laws, not only criminal but mainly civil, year by year without reference to London. It is hard to see why London should be the place where queries about those laws need to be answered.

What the case of Nat Fraser means is that this vexed question can no longer be ignored or slapped down. That was what happened in 2006 when Adam Ingram MSP introduced a Civil Appeals (Scotland) Bill, precisely with the intention of stopping civil appeals being heard in London. The presiding officer ruled the bill to be beyond the powers of the Scottish Parliament. Now times have changed.

The government of Scotland should use its new majority to test whether the argument of ultra vires still applies. This rested on the fact that, under the Scotland Act, the Scottish Parliament could not encroach on the reserved powers of the Parliament at Westminster - of which the Lords formed one House, in a judicial as in a law-making capacity. Now the Lords have lost their judicial function to the Supreme Court, which is not a House of Parliament but a creature of statute in the same way as the Scottish Parliament is.

With the remnants of its absolute sovereignty, Westminster should adjust the distribution of powers between these two subordinate bodies, so as to end Scottish civil appeals to the Supreme Court.