Messing with the Acts of Union?

On 31st July, the UK Government announced its independent inquiry into judicial review. As lawyer and journalist David Allen Green remarked, “A first thought about this review is that you would think that the Ministry of Justice would have more important things to do. The ongoing coronavirus emergency means the criminal justice system is beset by backlogs and delays, and the prison system is more dangerous than ever.” But, swamped by the virus, and during the parliamentary summer recess, it was, as Joshua Rozenberg wrote: “the perfect day to bury bad news.”

One explanation for this inquiry is the government’s disgruntlement at losing the Article 50 and prorogation cases in the Supreme Court. The Conservative Party’s 2019 manifesto committed to “ensure that judicial review is not abused to conduct politics by another means or create needless delays.” In the world of Brexit and coronavirus, the government has wanted to legislate quickly and broadly, without too much parliamentary scrutiny. (Judicial review, which checks that government acts within the law, gets in the way of that.)

The new panel is chaired by Lord Edward Faulks QC, former conservative minister in the Ministry of Justice, and close adviser to former lord chancellor Chris Grayling. In a piece for the ConservativeHome website, Faulks, favourably citing Policy Exchange’s Judicial Power Project, was highly critical of the prorogation decision, describing it as “an assertion of judicial power that cannot be justified by constitutional law or principle,” urging government legislation “to limit the courts’ incursion into political territory.”

The panel’s terms of reference appear broad and vague, certainly enabling it to recommend significant limitations on judicial review, should it wish to do so. Some see this as part of “the executive power project.” Some see it as a potential waste of time. Others warn of its threat to the rule of law. For more general coverage of the review see this excellent piece by Alex Dean.

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However, less attention has been paid to the dangers posed by this inquiry to the UK union. For the worry is that it threatens Scotland’s independent legal system, constituting a potential “law grab.” The MoJ confirmed that the review covers all three UK legal jurisdictions—Scotland, England and Wales, and Northern Ireland. But, as Joanna Cherry, SNP justice and home affairs spokesperson at Westminster, highlighted in a letter to Lord Chancellor Robert Buckland, Scottish civil justice is devolved, and “the authority and privileges” of the Scottish Court of Session (which include its judicial review capacity) are protected under Article 19 of the 1707 Acts of Union “in all time coming.”

On the other hand, if the inquiry did not cover Scotland, cases of great public import—such as the 2019 prorogation case, which commenced in Edinburgh—might still occur, circumventing any UK Government move to reduce judicial review actions against it. So the government surely wants to include it.

Relations between the UK Government and Scotland are hardly optimal at present. A majority of Scotland voted against Brexit, with many seeing Scotland as taken out of the EU against its will. The Scottish Parliament refused to give its consent to Brexit legislation, such as the EU Withdrawal Agreement Act, yet this legislation was adopted anyway. The UK Government’s White Paper and forthcoming Bill on the UK Internal Market risks curtailing devolved powers and imposing English standards on the other UK nations (as well as overriding key parts of the Brussels Withdrawal Agreement). This would not be a good time to inflame relations further.

So how serious are the risks to the Scottish legal system posed by this inquiry? One certainly might hope the UK Government would not provoke another constitutional battle redolent of the heady days of 2016-2019. In any case, the panel might be inclined to recommend no changes to judicial review. (And one of the panel’s members is Professor Alan Page of Dundee university, a Scottish constitutional expert, well placed to advise on Scots law). However, even if the panel were so inclined, the government might ignore it, and proceed with legislation to constrain judicial review anyway. If so, what then?

If measures restricting judicial review in Scotland were adopted in Westminster, there is a good chance of legal challenge as well as political outcry. To simplify horribly, there are two distinct potential challenges. One concerns devolution under the Scotland Act 1998, and the other protection for the Scottish legal system under the 1707 Acts of Union.

First, the whole area of law, order and justice is clearly devolved under the 1998 Scotland Act. This means it is a matter over which the Scottish Government and Parliament have control. So if any legal measures were adopted by the UK as a result of the inquiry (let’s call it the UK “Judicial Review Act 2021”) this would be legislation on a devolved matter (Scottish civil justice). The UK Parliament is not completely barred from such legislation but it must abide by the Sewel constitutional convention, which provides that “it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.” (s 28(8) Scotland Act 1998.) However, although this convention has been entrenched in legislation, the UK Supreme Court refused in the first Miller case to recognise it as legally enforceable. Since then, the UK Parliament has twice legislated in the face of refusal of consent by the Scottish Parliament (the EU (Withdrawal) Act 2018 and EU (Withdrawal Agreement) Act 2020) without such legislation being invalidated. So while adoption of a “Judicial Review Act” might be unconstitutional, it would not necessarily be illegal. And, in the final resort, UK legislation altering a devolved matter could be adopted in Westminster (preferably with the Scottish Parliament’s consent, but even without, if necessary). This, however, is a potential constitutional battle in the making.

But the independence of Scotland’s legal system extends much further back than 1998. It is rooted in 1707, when the separate states of Scotland and England and Wales agreed to a union, thus creating a new state, that of the United Kingdom of Great Britain. Under the 1707 Treaty and Acts of Union, certain Scottish institutions were preserved, including the Scottish legal system, church and education. Therefore, the Scottish legal system was not recently devolved, but has been distinctively and independently Scottish for over 300 years. A separate challenge to a Judicial Review Act 2021 could be brought, arguing that it interfered with fundamental provisions of the Acts of Union. This could also ultimately find its way to the UK Supreme Court. If so, two alternative approaches are possible.

One approach could follow 19^th-century constitutional doyen, AV Dicey, and uphold Westminster parliamentary sovereignty. According to Dicey’s approach, a Judicial Review Act 2021, as an Act of the Westminster Parliament, could claim supremacy over other bodies, including any Scottish institutions, and override earlier legislation, such as the Acts of Union. Because of the strength of this doctrine, “hard” judicial review has not developed in the UK, which means that, unlike say in the US, a UK statute, however reprehensible, cannot be invalidated by the courts (with the exception of those incompatible with EU law during the UK’s EU membership—but that’s another story). Dicey personally viewed the Union Acts as like any other legislation: “neither the Act of Union with Scotland, nor the Dentists Act, 1878 has more claim than the other to be considered a supreme law.” This would be one way, perhaps the orthodox legal way, of disposing of the case. It would not settle matters politically of course, maybe just fan the flames of a political constitutional crisis. But it would rule out remedies in the courts.

Another approach would engage more thoroughly with the existence of a separate Scottish legal system. Scotland was not conquered by England but entered into a Treaty of Union with it (a treaty because these were two independent, sovereign states) ratified by Acts of Union in two separate parliaments. These could be said to provide a basic constitution for this new kingdom. Some provisions in the Acts of Union were clearly intended to be fundamental (ie to have a status that an ordinary Act of Parliament cannot override). Article 19, which preserves the “authority and privileges” of the Court of Session, “for all time coming,” is one such (although it also provides for “such Regulations for the better Administration of Justice as shall be made by the Parliament of Great Britain,” a weaselly phrase whose meaning is contestable). Even Daniel Defoe, a unionist sent to Edinburgh to spy for the English government in 1707, wrote that “Nothing is more plain than that the articles of the treaty cannot be touched by the Parliament of GB, and the moment they attempt it they dissolve their own constitution.” And Dicey acknowledged this, writing that “The legislators who passed these Acts assuredly intended to give to certain provisions of them more than the ordinary effect of statutes.” Dicey, however, believed that parliamentary sovereignty, which had since developed, overrode any fundamental effect. But not everyone agrees. Lord Cooper, a very senior Scottish judge, raised some doubts in the MacCormick case in 1953, asserting that “The principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish constitutional law.” It is not certain that Dicey’s statement on parliamentary sovereignty applies to the Acts of Union, although it is hard to prove that it does not.

The problem is that the issue has never been squarely faced. Undoubtedly, some provisions in the Acts of Union have been repealed, even those asserting a fundamental status, such as the requirement for Scottish university professors to be avowedly Presbyterian—but the rebuttal is that this was achieved by consent. And presumably any consent to changes in Scottish judicial review procedures would be conspicuously absent.

There have been murmurings by senior British judges that courts might refuse recognition to a statute that abolished judicial review altogether, including by three members of the UK Supreme Court in the Privacy International case, and it cannot be ruled out that legislation attempting to abolish the Scottish legal system might be denied recognition. These are (hypothetical) extreme cases. But might courts deny the validity of legislation that contravened fundamental principles of the Act of Union by restricting judicial review in Scotland? Perhaps judges would instead find it preferable to shelter behind notions of parliamentary sovereignty and non-justiciability.

Whatever the outcome, any meddling with Scottish justice by the UK Government is likely to provoke a strong reaction. The outcry in Scotland reveals not only concern over emasculating judicial review but also different understandings of the British Constitution. On the one hand is the view from Scotland that the Acts of Union are a pact between two states, based on consent. The Union continues, but only with consent of both parties. On the other hand, the UK Government appears to cleave ever more to a strong assertion of parliamentary, or even executive, sovereignty.

But what better way to increase support for Scottish independence than to interfere with a three centuries old constitutional settlement?

 

Correction: the original version of this article named the panel's chair incorrectly