Michael Gove, the erstwhile secretary of state for education, was once much-maligned. He was abhorred by teachers, academics and parents alike as he mounted his haughty crusade against the amorphous 'blob’, which he attacked without restraint, as it was avowedly apprehensive about his planned overhaul of the English school system. As his assault developed into a gruelling war of attrition, he was pulled from his general’s armchair and replaced by the less heavy-handed, and supposedly more 'friendly-faced’, Nicky Morgan.
After a brief stint as chief Tory whip, Gove was thrust into the role of Lord Chancellor, replacing the demonstrably inept Chris Grayling, who was bumped down to the post of Leader of the House of Commons (a post which attracts no ministerial remuneration). As a recognised intellectual, Gove has gone some way in earning the (often begrudging) respect of the English legal profession, although the goodwill with which he is graced comes mostly by dint of the fact that he is not his predecessor. He has attracted a good deal of support simply because he has systematically reversed each of Grayling’s previous policies in turn.
Perhaps more surprisingly, Gove has also drawn more recent acclaim from a number of Scottish Nationalist and pro-independence commentators. His recent anti-EU statement, wherein he asked, with a rhetorical flourish: 'Are we really too small, too weak and too powerless to make a success of self-rule?', chimed well with those who maintain that those decisions which affect Scotland should be made in Scotland. Gove may have been referring to the United Kingdom in his polemic, but his words could have fit just as well in the mouths of Salmond or Sturgeon just over a year ago. They still fit well in the mouths of anyone who remains committed to the cause of Scottish independence.
Gove’s high-style rhetoric is reflected, often less eloquently, by a number of other Tory politicians who wish to leave the EU. Although he restricted his own recent plea for a more noble, more British internationalism by reference to democracy and democratic institutions, many if not most of his colleagues take more issue with the power of the European Court of Justice than the union’s democratic deficit. The idea that a court in Luxembourg (although many of the commentariat confuse the ECJ with the Strasbourg based European Court of Human Rights) has the power to alter English law is anathema to their British identity; the fact that the law of the European Union poses a threat to the 'peculiarly English’ (to use the words of Lord President Cooper) principle of parliamentary sovereignty is, in their view, an insult too far.
For many in the independence movement, it is ironic to see former bastions of unionism make blatant appeals to national identity while effectively arguing the case for home rule. The argument that British laws should be made in London is logically analogous to the claim that Scottish laws should be made in Edinburgh. The question at hand is plainly one of identity; whether one is Scottish or British. If one identifies as the former, it (superficially, as indicated by the result of the 2014 referendum) appears axiomatic that the principles of Scots law should be decided in Scotland.
The people of Scotland rejected independence in 2014 and so they refused Holyrood the power to legislate on matters presently reserved to Westminster. Many elements of Scottish law remain governed by London and her politics. Schedule 5 to the Scotland Act 1998 (pending amendment) provides an exhaustive list of those matters which the Scottish Parliament cannot pass legislation on, from foreign affairs and defence to rail transport and employment law.
Constitutional matters are, naturally, reserved to Westminster, so why there was much wrangling over the 'legality’ of the 2014 referendum before the 2012 Edinburgh Agreement was signed? In the very first paragraph of the schedule, the 1998 Act reserves competence over the Crown and the union between Scotland and England, as well as the UK Parliament. In addition, the paragraph reserves competence over 'the continued existence of the High Court of Justiciary as a criminal court of first instance and of appeal' and 'the continued existence of the Court of Session as a civil court of first instance and of appeal'.
It is interesting to note that the schedule does not reserve the law pertaining to the London-based Supreme Court of the United Kingdom (formerly known as the appellate committee of the House of Lords). No mention of the Supreme Court is made in Schedule 5 and the Constitutional Reform Act 2005, which set up the ostensibly 'new’ court, is not set as an unalterable Act by Schedule 4. Nor is any mention made, in Schedule 4, of the Appellate Jurisdiction Acts of 1876 and 1888.
This means that the power to change the law pertaining to the function of the Supreme Court of the United Kingdom (in Scotland) is devolved to Holyrood. Indeed, the Scottish Parliament has already done so, to a limited extent, in enacting the Courts Reform (Scotland) Act 2014.
The Supreme Court of the United Kingdom occupies a curious place in Scottish jurisprudence. The Acts of Union 1706 and 1707 (collectively, the Treaty of Union) expressly provided for the continued independence of the Scottish legal system, profession and judiciary and to that end the Court of Session and High Court of Justiciary continued to exist post-union. The treaty explicitly provided that the English courts of chancery, Queen's bench, common pleas [and any] other court[s] of Westminster Hall should have no jurisdiction over Scotland, but (perhaps due to a simple oversight) it said nothing of the jurisdiction of the appellate committee of the House of Lords (the predecessor of the present UK Supreme Court).
As a result, although the union was ostensibly predicated on the independence of the Scottish judiciary, the first Scottish civil appeal to the House of Lords, the case of Rosebery v Inglis, was heard just one year after the union, in 1708. In 1713, in the case of Magistrates of Elgin v Ministers of Elgin, the House of Lords heard an appeal from Scotland’s High Court of Justiciary and, therein, reversed the decision of the Scottish court. The House of Lords continued to hear Scottish criminal appeals until 1781, when, while hearing the case of Bywater v Lord Advocate, the appellate committee accepted that it had overstepped its jurisdiction and that the High Court of Justiciary was to be regarded as the supreme criminal court of Scotland.
Although it surrendered its criminal jurisdiction, the House of Lords never relinquished jurisdiction over civil matters to the Inner House of the Court of Session, which had formerly been the supreme civil court of Scotland. When the House of Lords was reinstituted as the UK Supreme Court in 2009, the tribunal retained jurisdiction over Scottish civil appeals and even regained some competence in those criminal cases which involve a 'devolution issue’ of some kind.
At present, the decisions made by the High Court of Justiciary and the Court of Criminal Appeal are not generally justiciable in the UK Supreme Court, 'which reflects Scotland’s distinctive tradition of criminal law and procedure'. Scottish civil law – the private law of wills, contracts, property and so many other things, as well as the public law relating to functions of the state – is similarly distinctive. Scots private law has its roots in the principles of the continental European civilian legal tradition rather than the Anglo-American common law. The differences between these traditions are so vast and numerous that it would take a lengthy treatise to espouse them all. Yet with that said, issues relating to Scots civil law are still justiciable in London. By convention, two Scottish judges hear Scottish appeals in the Supreme Court, but at least one English judge is always present and, often, the Scottish judges may be outnumbered in appeals by 3-2.
Given the nature of the Scotland Act, however, it is for the Scottish Parliament, not Westminster, to decide whether or not this state of affairs ought to continue. Although the place of the Supreme Court as the ultimate arbiter of 'devolution issues’ is reserved per Schedule 6, and so a certain number of Scottish petitioners must have access to the court’s appellate function, the Scottish Parliament could choose to remove the jurisdiction of the UK Supreme Court over Scotland in the vast majority of cases by crafting and passing the requisite legislation.
If the SNP, or a similarly pro-independence party, were to open a debate on the place of the UK Supreme Court in Scotland, it would be very difficult for their political opponents to argue against returning jurisdiction over all non-devolution issues to the Court of Session, given the present temper of the EU referendum debate. With the southern political classes chattering about sovereignty and the need for decisions to be made closer to home, there is little scope to deny the mandate of a majority pro-independence Scottish Parliament which wishes to return sovereignty over Scots law to Edinburgh, if such a parliament is elected in May.
This is not simply a pro-independence issue; as noted, the continued independence of Scots law is among the prime principles of the Treaty of Union itself. Staunch Scottish unionists should therefore view the preservation of Scots law within the union as a paramount concern – the existence of Scots law alongside English law is one of the only true bastions of 'Britishness’ set forth in the UK’s foundational document. The House of Lords originally assumed jurisdiction over Scottish appeals because it was not expressly forbidden from doing so. It would therefore be proper, from a constitutional point of view, for the Supreme Court of the United Kingdom to be denied the power to hear and decide Scottish appeals.
A nominally unionist party, such as Scottish Labour, could consequently use a policy such as this to re-position itself as a proper party of continued devolution. Indeed, Scottish Labour is well-placed to take advantage of this mantle, given that it had such a large hand in establishing the Scottish Parliament itself (although its hands may be tied given its behaviour in relation to the Smith Commission). The SNP have made no mention of the place of the Supreme Court in their campaigning or their literature. This affords unionist parties a genuine opportunity to seize the initiative with a bold proposal that their opponents haven’t dared to make. It would be difficult for the SNP to argue against any attempt to return sovereignty to the Court of Session, given the ethos of that party.
Both unionists and nationalists alike may, therefore, find good reason to enact this change; equally, both have political reasons for shying away from discussing it. Regardless of the politics, however, there is certainly cause for jurists and commentators more mature and cerebral than myself to discuss whether or not any such changes should be made. The debate on the place of the UK Supreme Court in Scotland is not fringe, let alone mainstream, in Scottish politics at present. Although there was some debate in legal circles over the run-up to the new court’s establishment, nothing has occurred since the independence referendum. With a new, supposedly energised and informed electorate, the time appears ripe for a renewed discussion of the place of Scots law within the wider United Kingdom.