There is certainly plenty of law taking place in Scotland. The Scottish Parliament has not held back on legislation since it opened for business in 1999. Our legal academics can trace the roots of a distinct conceptualisation of Scots law back through the centuries to the Low Countries and ancient Rome. Our politicians are still occasionally to be heard insisting our jurisdiction and its institutions are unique and regarded with envy round the globe.
The reason I pose the open question, however, is based on the recent run of decisions of the UK Supreme Court that have overturned three out of the last five decisions of the Inner House of the Court of Session, the tip of the conceptualisation pyramid in Scotland.
According to the Scottish Judiciary website: ‘The Inner House deals mostly with appeals…The Inner House is divided into the First and Second Divisions, [each of six judges], which have equal authority and are chaired by the Lord President and Lord Justice Clerk respectively’.
The Inner House contains our wisest judicial heads who serve as stewards of our law as it meets new challenges of fact and circumstance that turn up in the lower courts in Scotland. And it tidies up fumbles further down the pyramid. In the longer view, since the inauguration of the UK Supreme Court in 2009, it turns out the Inner House has had its decisions upheld more often than not – approximately in a 3:2 ratio.
A glance over the entire spreadsheet of UKSC business since it took over from the judicial committee of the House of Lords suggests at first glance that that’s as good a rate of UKSC endorsement as their colleagues from the English, Welsh and Northern Ireland courts. Possibly better.
There are two important qualifications to note. First, Scottish civil cases have a direct route to the UKSC that is not enjoyed by prospective appellants in the other jurisdictions. They must seek leave to appeal from their own courts and an assessment is made at that stage of what the issues are and whether there is a significant new legal point to be argued. If they are refused leave to appeal they can appeal that decision to the UKSC. Some do and many of those are refused again. The UK Supreme Court does not appear to be actively seeking work.
The UKSC statistics show that 43 of its 207 cases – 20% – in the three years from 2011/12 to 2013/14 came from Scotland.
In a two-part blog on the UKSC website in May 2013 advocate Aidan O’Neill explained the convoluted constitutional route that created this direct access from the 1689 Claim of Right through to the UKSC via the 1707 Treaty of Union and the House of Lords.
The Inner House success scorecard should therefore be viewed in the context that several Scottish appeals against its decisions would never have reached the Supreme Court at all if they had come from England and Wales.
Aidan O’Neill cited an observation from Lord Reed in a 2013 case of Upritchard v Scottish Ministers that ‘the appeal did not on examination raise any arguable point of law of general public importance’ and hearing it ‘was not an appropriate use of the time of this court’. The sentiment has been repeated in several cases since.
The second qualification, however, is that among the successful appeals against Inner House decisions are several that have stretched the UKSC judges to the limit to find diplomatic words to convey their incredulity at the decisions reached in Edinburgh.
In the interface between the criminal appeal process, previously assumed to end in Edinburgh, and the European Convention of Human Rights, justiciable at the UK Supreme Court, the cases of Cadder in 2010 and Fraser in 2012 induced apoplexy in first minister Salmond and justice secretary MacAskill, when the High Court of Appeal was overturned by the judges in London.
In the Cadder case, concerning the right of an accused person to legal advice before being interviewed by police, a decision by a seven-judge Scottish bench was overturned in brutal terms by seven judges of the Supreme Court. It was asserted in public by certain politicians and in private within Parliament House that this was an outrageous interference in Scottish criminal justice by representatives of an alien jurisdiction. For alien, read English, even though the law they were applying was European and would have reached the same decision even if the UK Supreme Court had been taken out of the loop.
It was a humiliating moment. The Scottish Government introduced emergency legislation at Holyrood. Solicitors threatened to boycott the ad hoc scheme dreamed up by the government and the Scottish Legal Aid board to plug the gaps in coverage of overnight arrests. In the end it does not seem that Cadder brought down the structure of Scottish criminal law.
But was there anything in the argument that maybe the Scots judges were more in touch with the Scottish public and the Scottish way was distinctive and worth arguing for? Or is the Scottish bench essentially conservative and resistant to the idea that sometimes they do do it better elsewhere? Neither argument has been pursued for the benefit of the Scottish public.
The names of Cadder and Fraser in the footnotes of criminal law have been joined by similar broadsides in the family law cases of Principal Reporter v K and even NJDB v JEG in 2012. The latter is formally listed as an appeal dismissed and the Inner House endorsed but the terms in which the administration of Scottish family law was ripped to pieces led Lord Gill to set up a task force under Lord Brailsford in pursuit of the ‘culture change’ recommended by the Supreme Court.
Of the most recent five judgements in Scottish cases handed down by the UKSC since last December, three have overturned Inner House decisions.
The fourth, Moohan and another v The Lord Advocate, concerned an application by prisoners to be allowed to vote in last year’s indpendence referendum. The Inner House decision was that a referendum was not covered by the electoral law on which there has been a succession of European decisions declaring the blanket ban on prisoners voting in a general election non-compliant with the ECHR. Interestingly there were two dissenting opinions within the five-judge bench. This may yet turn out to be unfinished business.
The fifth was the Sustainable Shetland v Scottish Ministers appeal against Scottish Ministers’ decision to allow the construction of a wind farm in Shetland. It was one of those cases that relied on the unimpeded 1689 route. It didn’t delay the judges long.
Of the three appeals upheld against the Inner House, McGraddie v McGraddie at first sight concerned a dispute between a father and a son about property transactions. The first instance judge found in favour of the father and made his determination accordingly.
The Inner House upheld an appeal by the son. The Supreme Court took a very dim view not only that it had interfered with the decision of the lower court but had substituted its own view of the credibilty of the witnesses whom it had not heard.
It was a comprehensive criticism that ‘the Inner House had no proper basis for concluding that the Lord Ordinary had gone plainly wrong, let alone that on a re-consideration of the whole evidence that an opposite conclusion should be reached’. Ouch.
The sequence appears to have been similar in the case of Greater Glasgow Health Board v Doogan and another. Two midwives sought to excuse themselves from any involvement with patients who are having a termination of pregnancy. They had argued that grounds of conscience which excused them from ‘participating’ in a termination should be extended to wider ward support of women admitted for termination.
Again a judge at first instance rejected their case but the Inner House intervened and allowed their appeal. And again the UK Supreme Court gave their legal justification very short shrift.
Finally, perhaps the most curious case of all – concerning Jackson v Murray and another. In a tragic incident in January 2004 a 13-year-old schoolgirl, Lesley Jackson, stepped out from behind her school bus on the Banff-Fraserburgh Road and was severely injured when struck by a car on the opposite carriageway. It was after school on a dark January afternoon.
After an extraordinary passing of time she was awarded some damages in the Court of Session by Lord Tyre who nevertheless determined that she was 90% responsible for the incident. The financial award was reduced accordingly. There’s law on contributory negligence even for 13-year-olds.
That attribution of contributory negligence to Lesley Jackson was appealed to the ‘extra division’ of the Inner House. Three judges, Lord Clarke, Lord Drummond Young and Lord Wheatley explained that it was a difficult matter to interfere with a decision made by a judge in an area that allowed considerable discretion. Nevertheless, they did and reduced that attribution of contributory negligence to 70%.
Their decision was appealed to the UK Supreme Court which in turn explained last month that it was a difficult matter to interfere with a decision of a judge in an area that allowed considerable discretion etc. Nevertheless, in his leading judgement, Lord Reed overcame his reluctance and with the support of Lady Hale and Lord Carnwath further reduced the liability to 50%.
Lord Reed said: ‘I cannot discern in the reasoning of the Extra Division any satisfactory explanation that the major share of the responsibility should be attributed to the pursuer…’. Eleven years later it appears to be the end of the road.
Lord Reed is one of the two Scottish members of the Supreme Court. The other is Lord Hodge who dissented with an opinion that accepted that the 70% finding of contributory negligence was indeed high but he didn’t think that it was correct for the Supreme Court to interfere.
Whatever the jurisprudential rights and wrongs of these decisions, or the sympathies that go to anyone mired in litigation for years and the financial and emotional stress that are part of the experience, it is difficult to detect any distinctive Scottishness or Scots lawishness at stake in these manifest disagreements between the courts in London and Edinburgh. Is the Inner House protecting or even developing Scots lawishness under its stewardship?
I return to my opening question. Is there still such a thing as Scots law? Is it distinctive? If it is, how is it distinctive? Is it better? If it is, how is it better? Is it in tune with the perceptions of modern civic Scotland? The arguments are not being made one way or the other. We really are entitled to know what the significance is of this sequence of reversals.
Right now, I have an open mind though I rather think if I have to ask then I probably know the answer.
A judgment will be delivered at the UK Supreme Court on Wednesday March 11th in the case of Montgomery v North Lanarkshire Health Board. The court has been asked to consider an appeal against and Inner House decision and its application over several decades of the Scots courts approach to medical negligence claims. It’s significance will be far wider than the direct interest of the parties.