WITH their obsession about avoiding scrutiny of their policies and actions, Boris Johnson’s UK Government may just have opened the door to the ending of the Act of Union.

In a development which has stunned Scottish lawyers, the Lord Chancellor of England, Robin Buckland QC, has set up a review of administrative law specifically to examine judicial reviews – the system by which the courts in any of the jurisdictions of the UK can hold governments and other public authorities to account for the legality of their actions.

Also the Secretary of State for Justice in the Westminster Government, Buckland has now confirmed to Joanna Cherry MP, the SNP’s justice spokesperson, that the review will cover all of the UK, and that means the long-held and much cherished power of judicial review in the courts of Scotland could be suppressed, which Cherry and others say is breach of the Act of Union.

Joanna Cherry told The National: “If their intention is to circumscribe judicial reviews in Scotland, then the Scottish legal profession will rush to the barricades.

“Civil justice is also devolved to Scotland, so is this another attack on devolution?”

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In a letter to Cherry quoted by The Guardian, Buckland wrote that the review would examine “the balance of the interest of the citizen being able to challenge the lawfulness of executive action through the courts with the importance of the executive being able to govern effectively under the law”.

The Justice Ministry has confirmed that Scotland’s separate legal system would be examined.

There is little doubt about the reasoning for such a review, which will be led by Lord Edward Faulks QC, a former minister of state under the Tories. Prime Ministers Theresa May and Boris Johnson have both suffered humiliating defeats in the courts, the former by Gina Miller successfully challenging the Government’s powers on Brexit, and the latter by Joanna Cherry and others on Johnson’s decision to prorogue Parliament – the Tories have had the courts in their sights ever since.

In her reply to Buckland, Cherry wrote: “In your letter, you make reference to ‘British justice’ and the terms of reference state that the scope of the review should include consideration of public law control of all UK wide powers. I also note the presence on the external advisory panel of Professor Alan Page, a Scots law academic. It seems therefore that you intend the recommendations of the review to extend to Scots law, but I would be grateful if you could confirm the position.

“The authority and privileges of the Court of Session, including its inherent supervisory jurisdiction are protected by article 19 of the Acts of Union and the underlying treaty of union.

“The scope of the review also raises serious questions for the rule of law which will be of concern across the United Kingdom.”

Article 19 states: “That the Court of Session or College 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 Privileges as before the Union subject nevertheless to such Regulations for the better Administration of Justice as shall be made by the Parliament of Great Britain.”

Cherry added: “I presume their thinking is that if they circumscribe judicial review in England and Wales but they don’t do it in Scotland then people could still raise judicial reviews on UK matters in Edinburgh. But the supervisory jurisdiction of the court of session in Scotland dates back to the 16th century and the judges themselves jealously guard the powers of the Court of Session.”

Jolyon Maugham QC, Cherry’s ally in the prorogation case, said: “Legislation to narrow the jurisdiction or powers of Scotland’s Court of Session would likely offend against article 19 of the Act of Union which guarantees for all time ‘the same authority and privileges’ as before the Union.

“It would be punchy of Westminster to rewrite that ancient constitutional settlement and undermine Scotland’s separate legal system at a moment when Brexit had already generated majority support for Scottish independence.”

A Scottish legal expert who asked not to be named told The National: “If there is one sure way of turning every lawyer in Scotland to the cause of independence then it’s an English Tory Government messing with Scots Law. They might as well tear up the Act of Union.”

A Ministry of Justice spokesperson said: “Judicial review is an essential part of our democracy.

“The independent panel will ensure this important check on government power is maintained, while making sure the process is not open to abuse and delay. The Scottish legal system has been distinct but entwined with the English and Welsh system for over 300 years and this panel has no intention of changing that.

“Nonetheless, we have appointed an esteemed Scottish law academic [Professor Alan Page] to the panel to assess whether any changes might impact Scotland.”