Recent developments in Scots law: lessons for English lawyers

How Scottish law has influenced English law, especially since the start of devolution.

This was published under the 2010 to 2015 Conservative and Liberal Democrat coalition government

The Rt Hon Lord Wallace of Tankerness QC

I am very grateful to Fraser and to All Soul’s College for inviting me here today to set the scene for what I’m sure will be a fascinating afternoon of debate and discussion. I’m also very pleased to be taking part in the third session on the constitutional outlook.

The focus of the day is on the lessons for English lawyers in relation to recent Scots law developments. I think it is worth stating at the outset that the dissemination of legal thought and jurisprudence across the border in both directions is certainly not a new phenomenon. The interaction between the legal systems in Scotland and in England and Wales has been evolving for centuries. Since 1707, it is clear that the law of Scotland has been shaped not only by the decisions of the House of Lords (and more recently the Supreme Court), but also by the Westminster Parliament legislating for Scotland.

As a law student at Downing College, Cambridge, I was a member of the Cranworth Law Society – a society named after the college’s only Lord Chancellor. But it was always a source of irritation to me that the ruling for which he seems to have been most remembered was the doctrine of common employment; an alien concept in Scots law, but one which he affirmed in the case of Bartonshill Coal Company v Reid with the words:

“But if such be the law of England, on what ground can it be argued not to be the law of Scotland?”

However, what is sometimes overlooked is the influence that Scots law has had south of the border. For example, liberal doctrines in the criminal sphere, such as diminished responsibility and provocation were developed in the Scottish courts and only later adopted in legislation applying to England and Wales. It was essentially the judgment by Lord Alness in Her Majesty’s Advocate v Savage in 1923 which created the concept of diminished responsibility that later gave rise to section 2(1) of the Homicide Act 1957 being introduced to the criminal law of England and Wales.

This cross-fertilisation has continued to develop over time and, if anything, has increased since the start of devolution. The Scottish Parliament has pre-empted the UK Parliament in the introduction of, for example, the smoking ban and legislation on forced marriages. The coalition pledged in its Programme for government to ‘adopt the protections of the Scottish model for the DNA database’ and indeed the biometric data provisions in the Protection of Freedoms Act 2012 have their origins in the Police, Public Order and Criminal Justice (Scotland) Act 2006. This afternoon’s panel sessions will no doubt touch on many more such issues.

At the outset, it is probably worth saying something about my role and the role of the Office of the Advocate General. Upon devolution, the Lord Advocate and Solicitor General for Scotland moved from the UK government to become Law Officers to the devolved administration. The Scotland Act 1998 therefore created the role of Advocate General for Scotland to be the UK government’s legal adviser in Scots law. Alongside the Attorney General and Solicitor General for England & Wales, I am one of the UK government’s 3 Law Officers.

My office, largely based in Edinburgh, provides legal advice to all Whitehall departments which ranges from advising on the Scottish aspects of UK Bills so that legislation created at Westminster works for Scotland, to preparing Scotland Act Orders which ensure Scottish Parliament legislation has proper cross-border effect and which can also adjust the boundaries of devolution. My office also represents the UK government in Scottish courts in areas such as immigration and HM revenue and customs matters.

To give a flavour of the work of the Office of the Advocate General, in the past 12 months, we have taken forward 7 Scotland Act orders, worked on the Scottish aspects of 18 Westminster Bills and been involved in (often lively) legislative competence discussions with the Scottish government on a number of Scottish Parliament Bills. In fact, this has been a relatively quiet year on the Scottish Parliament legislation front, given its inevitable period of reduced activity following the May 2011 elections and the newly elected Scottish government’s slight preoccupation with a certain constitutional matter (more of that anon).

Having said that, whatever the differing priorities between the administrations north and south of the border, there continues to be a need for us to work closely together on the law – as is, in fact, the regular practice.

Given my opening remarks on the long history of cross-fertilisation between the two legal systems and their obvious close interdependency, it follows that English lawyers should be aware of the way in which Scots law is developing and vice versa. It is for that reason that I feel that events such as this one are extremely worthwhile.

I very much look forward to the sessions, on developments in Scots public law and private law. But, I would like to touch on a key legislative development in the past year which, I believe, does have relevance for English lawyers -the Scotland Act 2012 which received Royal Assent on the first of May.

It constitutes the biggest transfer of fiscal responsibility within the United Kingdom since the Act of Union in 1707. And the fact that it alters the boundaries of legislative and executive competence, not only in relation to fiscal matters, is clearly a matter of which English lawyers should be aware.

Further powers, both legislative and executive, have been devolved in a range of areas including the administration of Scottish Parliament elections, the regulation of air weapons and licensing the prescription of controlled drugs to addicts. Those English lawyers involved in property transactions in Scotland will need to be aware of the devolution of stamp duty land tax. The Act also includes powers in relation to setting speed limits and drink driving limits. There are lessons here not just for English lawyers but for anyone driving across the border who may well need to be aware not only of their speedometers, but also of their blood alcohol content.

Undoubtedly the most significant change brought about by the Scotland Act 2012 involves the creation of a Scottish rate of income tax and the provision of capital borrowing powers for the Scottish Parliament. Given the size of the Scottish Parliament’s budget and the breadth of its powers, ensuring it has a degree of not only financial independence but also fiscal responsibility was one of the key recommendations of the Calman Commission.

The Scotland Act 2012 also includes provisions on the role of the Supreme Court. Given that the Supreme Court has jurisdiction throughout the United Kingdom, the significance of these changes will undoubtedly be of interest to English lawyers.

As you will no doubt be aware, last summer, the Scottish government criticised, very publicly and vociferously, the role of the UK Supreme Court in devolution issue appeals in Scottish criminal appeals. I should perhaps just clarify that there is no general right of appeal to the Supreme Court in Scottish criminal cases.

In fact I had already commissioned an expert group, chaired by Sir David Edward, to review these rights of appeal in devolution issue. The Scottish Ministers subsequently set up their own expert group, chaired by Lord McCluskey. I was very pleased to note that both groups recognised the need for the Supreme Court to have a role in scrutinising the law on human rights. Indeed, Lord McCluskey’s interim Report recognised that if appeals from the High Court of Justiciary were made directly to Strasbourg “there is the potential for further uncertainty and delay”. Notwithstanding the best efforts of the recent Brighton declaration, the back-log of cases in the European Court of Human Rights remains high. Furthermore, that court does not enjoy the same level of representation by Scottish judges that can be found in the Supreme Court.

The McCluskey Report also stressed the need for coherence in the way in which the law on human rights is applied both north and south of the border. And I wholeheartedly agree with that sentiment - the key point is to ensure consistency throughout the UK. Otherwise, the next time Fraser organises an event such as this, there would need to be an additional panel session on the human rights of Scots, compared to their counterparts in England, Wales and Northern Ireland.

There is a certain irony in the fact that the McCluskey Report, commissioned at the behest of the Scottish government, proposed that the English approach of certification of criminal appeals ought to be adopted in Scotland. The UK government has resisted this, given the need to recognise the entirely different starting points in the different jurisdictions – namely that all criminal cases in England and Wales can be appealed to the Supreme Court, so, unlike in Scotland, a certification filter is needed to control the volume of cases.

Whatever view one took in relation to the dispute about the Supreme Court’s role in Scottish criminal cases, the matter has now been resolved in sections 35 and 36 of the Scotland Act 2012 - passed by the UK Parliament and approved by the Scottish Parliament.

In essence, the position under the new Scotland Act is that compatibility issues, including questions about Convention rights and EU law, can be referred from the High Court to the Supreme Court in certain circumstances, but, importantly, the Supreme Court will only determine the compatibility issue and will then refer the case back to the court in Scotland to apply the decision and determine the outcome of the case.

I hope that gives you a flavour of the sorts of issues that are not only of interest, but also of real importance to English lawyers. This afternoon promises to include a lively and engaging discussion. I feel it is events such as this that play a very important role in contributing to the continuation of cross-fertilisation between the legal systems north and south of the border.

Published 23 June 2012