One of the most remarkable things about the expansion of judicial power that has followed devolution is how little it has been remarked upon. The lack of serious scrutiny is all the more striking given the significant constitutional implications that this carries both at the devolved and UK levels. In short, devolution challenges the traditional deference shown by courts to primary legislation passed by a democratically elected parliament.
Prior to devolution, with legislative power concentrated in Westminster, the Diceyan orthodoxy held firm. Parliament, it was said, could make or unmake any law whatever, and the courts had no power to set aside an Act of Parliament. Notwithstanding complications around the incorporation of EU law, the courts took the view that primary legislation enacted by the Westminster Parliament could not be illegal. Legislative devolution fundamentally altered this dynamic by expanding judicial power in at least two ways. First, the courts have been mandated by the UK Parliament to strike down Acts of the Scottish Parliament (ASP) that exceed the powers conferred by the Scotland Act. Secondly, courts have assumed for themselves the power to review and, in extreme circumstances to strike down, ASPs at common law which they deem to violate the rule of law. In this post I will focus on the former, and in a subsequent post I will turn my attention to the latter.
The mandated expansion of judicial power
When enacting the Scotland Act 1998, the UK Parliament did so with the clearly expressed intention to place legal limits on the law-making power of the Scottish Parliament. This is to say that there are laws that the Scottish Parliament cannot make or unmake (laws which inter alia “relate to” reserved matters, or which are incompatible with the ECHR or with EU law). Consequently, ASPs that fall outwith the Holyrood Parliament’s legislative competence can be struck down by the Court of Session or by the UK Supreme Court.
The significance of this recalibration of constitutional power towards the judiciary can barely be overstated. As Keith Ewing and Kenneth Dale-Risk have said, “for the first time in the democratic era the courts in this country have the clear and unequivocal power (and duty) to strike down legislation passed by a democratically elected Parliament.” However, far from being seen as an affront to democratic sensibilities, in Scottish public life it would appear that strong judicial review by a court imbued with the power to strike down primary legislation is somewhat assumed – whether that is because (as Lord Reed has put it), those particular limits are themselves set by a democratically elected parliament, such that the courts are seen merely to be “giv[ing] effect to the intention of Parliament” in an act of interpretation and application; or, taking the broader view put by Bernard Crick and David Millar, because “national identity no longer requires a belief in sovereign power rather than in a more pluralistic, constitutionalised account of power, defined and limited by law.”
Whatever the reason, in Scotland, we appear as a political and a public law community to take for granted this new power of the judiciary to review and to strike down primary legislation. The danger here is that in so doing we fail to confront the fundamental challenges that this poses to our democratic institutions. These are (at least) three-fold.
Three reasons to be fearful
- A strong judicial power enables courts to remove from the statute book provisions that have been passed by a democratically elected parliament. As we have seen, as it relates to ASPs this power can be defended on democratic grounds. The courts, in policing legislative competence, are here giving effect to the will of another, and superior, democratically elected legislature. However, there are at least two problems which this account overlooks. First, that such an approach restricts the assertion of constitutional ‘rights’ to those who have the means to pursue them through the courts. So, challenges are typically raised by those with the greatest resources (e.g. insurance, alcohol and tobacco companies, wealthy landowners or well-funded interest groups) or by those with the least (for example, by prisoners who are able to access legal aid). A model of constitutionalism which favours judicial supremacy reveals only a partial account of a much richer constitutional landscape, and leaves much else in the cold. Secondly, where the boundary of the Scottish Parliament’s legislative competence meets the ECHR or EU law, the influence of inter/supra-national courts and the application of doctrines of proportionality chip away at the classic account of domestic courts merely interpreting and applying clearly defined legal limits set by a democratically elected legislature. That said, and with the fourth session of the Parliament now behind us, to date there has been just one successful civil challenge to (a provision of) an ASP (more on which below). The new powers of the judiciary might be great: but until now they have been used sparingly.
- Related to this is the opportunity for those with interests at stake – and resources upon which to draw – to (ab)use the legal process in order to delay for 3-5 years the implementation of legislation for short term, private gain. Even if ultimately their challenges were unsuccessful in the Supreme Court, the opportunity for AXA General Insurance to delay the implementation of legislation requiring them to make payments to the victims of asbestos exposure (with the hope of having to make fewer payments to still surviving victims at a later date of implementation), or the opportunity for Imperial Tobacco to delay the implementation of legislation prohibiting the display of tobacco products at the point of sale (weighing income from sales during the period of the challenge against the cost of legal fees), highlights the way in which judicially enforceable limits on legislatures can be used strategically to subvert democratic institutions even where the judicial power is wielded only sparingly. It is, in other words, the existence as well as the exercise of judicial power that proves problematic.
- A further danger is that, by handing the last word to the courts, politicians and officials might be encouraged to ‘pass the buck’ rather than to engage with the fullest responsibility in the act of law-making. So, executive or legislative actors might leave difficult decisions (e.g. where there is strong disagreement between the Scottish and UK governments as to the legislative competence of an ASP) to the courts, and by extension to those affected by the law and who might reasonably be expected to raise a legal challenge. Or, politicians might (and routinely do) defer to lawyers acting on behalf of the Scottish and UK Governments or on behalf of the parliament’s Presiding Officer on questions that relate to the validity of legislation, rather than probe and challenge that (often contested) advice. In these ways the political process is in danger of being supplanted by an overly and overtly legalistic approach: the (understandable) attempt to ‘court-proof’ legislation requiring of the government a defensive and cautious view that might deter both Scottish Ministers and the Scottish Parliament from legislating to the fullest extent of their powers.
Of course, given the constitutional context in which the Scottish Parliament sits, some form of legal limitation to devolved powers is inevitable. It is extremely unlikely (save a seismic shift, such as withdrawal from the ECHR or from the EU) that Westminster will ever legislate to remove or to soften the legal limits to the Scottish Parliament’s powers. This begs a question for those who nevertheless remain cautious about the implications of this new judicial power: what might be done to rein in or to limit its use?
Parliament to the fore
Two concurrent responses must be adopted. One is to identify the gap within which the idea of an inevitably expansive (and expanding) judicial power (at Scottish and at UK levels) might be challenged. This will be my focus in an upcoming post. Here, however, I wish briefly to suggest that there is also an institutional response which that idea must underpin: the Scottish Parliament – as it enters its fifth session – ought to assert itself more robustly as an effective political check on the executive. The intellectual case for expansive judicial power is so often set against the perceived inability or unwillingness of legislatures adequately to hold government to account, and it has been no different in Scotland. Allow me then, in closing, to consider two recent challenges to Acts of the Scottish Parliament – one successful and one still pending – that serve (only) as examples of how a more robust parliament might have an inverse effect on the opportunities for, or on the inclination towards, judicial activism.
- A major gap in the political scrutiny of the Scottish Government relates to the introduction of substantive amendments in the final stage (stage 3) of the legislative process that are not routinely scrutinized by parliamentary officials and that are voted on immediately at that stage, with extremely limited opportunities for parliamentarians adequately to consider their legal or policy effects. In Salvesen v Riddell, the first successful civil challenge to an ASP, the Supreme Court was highly critical of one such amendment that had the effect of retrospectively and disproportionately encroaching upon the property rights of a landowner vis-à-vis his tenant farmer. Salvesen serves as a timely reminder that the scrutiny of amendments must not be left to government lawyers alone (that is, to the executive checking the executive). Rather, parliament must be given or must assert for itself the opportunity to scrutinise substantial new amendments before the final vote on a bill. One way in which this might be achieved is to revisit and refine the proposals made by the Calman Commission to split the final parliamentary stage into two, and to return substantial new amendments made at that stage to the relevant parliamentary committee (or to the Presiding Officer) for further scrutiny before a final vote. Whatever the solution, had such a procedure been in place it seems likely that the Supreme Court would have been spared the opportunity to exercise its power.
- A recurring criticism is that Scottish Ministers tend to introduce legislation into the Scottish Parliament before the policy objectives underpinning the bill have fully been developed. As one official put it to me, this is the tendency to legislate towards a headline and to colour in the details later. However, where legislation is susceptible to being struck down on the basis that it encroaches disproportionately on a Convention right, or on a right or duty conferred by EU law, it is essential that the legitimate aim(s) of legislation are clearly identified, fully debated and robustly tested so as to ensure that parliament is confident that the measures taken in pursuit of those aims do not encroach disproportionately on this or that right. With Scotch Whisky Association’s challenge to the minimum unit pricing of alcohol (MUP) to return in June from the EU Court of Justice (CJEU) to the Inner House for a decision on its compatibility with EU law, the approach adopted by the CJEU serves as a reminder of what is at stake here. The CJEU accepted the legitimacy of the Scottish Government’s stated aim in adopting MUP of improving health through reduced consumption by ‘harmful and hazardous drinkers’, but also identified a secondary aim of reducing alcohol consumption within the wider population. This aim was not made explicit by the Scottish Government nor was it identified and tested during the bill’s passage through Holyrood. It was with this secondary aim in mind that the CJEU held that the MUP was possibly disproportionate with the EU’s ban on measures with an equivalent effect to quantitative restrictions on imports. In other words, if Salvesen presents an example of a structural reform that might be made to facilitate greater parliamentary scrutiny and thereby alleviate the need for judicial review, the challenge to MUP reminds us that institutional reform can carry us only so far. To be truly effective it requires a greater degree of intellectual curiosity by the MSPs tasked with the conduct of that scrutiny. Had the aims of the MUP legislation been more keenly tested during the passage of the bill, it seems likely that the uncertainty into which the CJEU could read this contentious second aim would not have existed.
The new powers of the judiciary in Scotland are unlikely to be reversed. Indeed, such is the trajectory of our constitutional journey that both the devolved (see the proposal by the SNP to establish social and economic rights) and any newly independent (see the proposal for a draft interim constitution and a permanent written constitution) Scottish Parliament are likely to be subject to more substantive legal constraints. For those concerned by the opportunity for litigants and for judges themselves to undermine democratic institutions in the exercise of that power the response must begin with a reformed and reinvigorated parliament that is better able and more willing to provide an effective political check on government action and legislation.
University of Strathclyde