Judicial review: the independent panel and Scotland

Court of Sesson, Edinburgh

As reported in this earlier post, the government has set up an independent panel to examine judicial review. The panel will be chaired by Lord Edward Faulks QC- see the UK Government Press Release 31 July 2020 and the panel's terms of reference.

The Panel and Scotland:

Although details differ, a process of judicial review is available in each of the legal jurisdictions of the UK (i.e. England and Wales, Scotland, Northern Ireland). Wales is not yet a separate legal jurisdiction
but see the report - Commission on Justice in Wales Report (October 2019) - which called for the law applicable in Wales to be formally identified as the law of Wales, distinct from the law of England.

The independent panel's remit appears to extend to judicial review in all the UK's legal jurisdictions. The panel is asked to consider public law control "of all UK wide and England and Wales powers" that are currently subject to judicial review "whether they be statutory, non statutory, or prerogative powers."  The appointment to the panel of Professor Alan Page (Professor of Public Law - University of Dundee). provides Scots Law expertise.

Background:

Part of the background to the review is undoubtedly the annoyance within government that it was unable to "get away with" the prorogation of Parliament from 9 September 2019 to 14 October 2019.

The purported prorogation was challenged by way of judicial review in the High Court of England and Wales and also in Scotland's Court of Session. The High Court in England ruled that the matter was non-justiciable BUT the Court of Session (Inner House) ruled that the issue of prorogation was, in the circumstances, justiciable. When the reasons for the prorogation were considered they demonstrated that the true reason for the prorogation was to reduce the time for Parliamentary scrutiny of Brexit and thus prevent Parliament from performing its central role in scrutinising Government action. The case went to the Supreme Court of the UK which ruled unanimously that the purported prorogation was unlawful - see Judgment [2019] UKSC 41

Constitutional position of the Court of Session:

The Court of Session is Scotland's highest civil court. It was created in 1532 by the original Scottish Parliament during the reign of King James V of Scotland. The Union between Scotland and England dates from 1 May 1707 and was brought about by legislation of both the original Scottish Parliament (Union with England Act 1707) and the original English Parliament (Union with Scotland Act 1706).

Court of Session Window

The two former Kingdoms were to be "forever after" united into one Kingdom by the name of Great Britain.  The two Acts contained specific protection for the Court of Session - see Article XIX.

The important point in Article XIX for present purposes is the opening - "That the Court of Session or Colledge of Justice do after the Union and notwithstanding thereof remain in all time coming within Scotland as it is now constituted by the Laws of that Kingdom and with the same Authority and Priviledges as before the Union subject nevertherless to such Regulations for the better Administration of Justice as shall be made by the Parliament of Great Britain ..."

The Article is clearly aimed at preventing abolition of the Court of Session since it is to "remain in all time coming".  The article also protects the "authority and privileges" of the court but the court is expressly subject to "such regulations for the better administration of justice" as shall be made by the UK Parliament. The precise extent of the word "regulations" is unclear.

Since the Scotland Act 1998, the administration of justice is a matter devolved to Scotland's Parliament and it would therefore usually be the Scottish Parliament which regulates the better administration of justice by the court. Interestingly, the Scottish Parliament made changes relating to judicial review procedure when it enacted the Courts Reform (Scotland) Act 2014.

The UK Parliament is legally able to legislate for Scotland but will not normally do so without the consent of the Scottish Parliament which, in a matter such as this, is unlikely to be forthcoming. See the Scotland Act 1998 section 28(8) and the discussion in this previous post of 22 January 2020.  A refusal of consent would result in a UK government with negligible political support in Scotland seeking to foist a major constitutional change on to Scotland.

The question is therefore whether the setting up of the independent panel is likely to result in an attack on both the powers of the Court of Session and the devolution settlement. If, for example, the panel recommends that ministerial action taken under prerogative powers should not be reviewable by the courts then the scene would be set for an attack by the UK government on the judicial review powers available to the Court of Session and it would be arguable that this was a breach of the 1707 union settlement itself.

All of this is a politically contentious issue given the backdrop of a Brexit unwanted by Scotland's voters and with the Scottish National Party (SNP) firmly in power in Scotland. Demands for Scottish Independence have an increasingly shrill tone and any attack on the powers of the Court of Session is likely to be seen as an attack on the principles on which the Union was formed in 1707.  That would, of course, be a further argument for Scotland to demand independence. Scotland's First Minister has said that plans for an independence referendum will be set out by Spring 2021.