Experts predict major battle over threat to Scottish courts

Legal experts and SNP MP Joanna Cherry have now warned that any attempts to override the Scottish courts could end up as a serious constitutional fight.

The furore has erupted after the UK Government launched an inquiry into the role of judicial reviews, following a decision by the Scottish Appeal Court last year that the prorogation of Parliament was unlawful – a decision later upheld by the UK’s Supreme Court which ordered MPs to return to Westminster.

The inquiry is to cover the whole of the UK – potentially curbing the power of the Scottish courts and violating the treaty.

“It is very obvious how a big constitutional difficulty might emerge,” said Dr Paul Scott, senior lecturer in Public Law at the University of Glasgow. “You would hope that people would have the good sense not to start a fight for nothing but obviously we have seen lots of fights started for bad reasons in recent times.

“At the moment the Government seems to be determined to crackdown on judicial review without really having established that there is a problem to solve. That in itself is bad enough but if, as part of that process, you start a fight with the independence of the Scottish legal system and the position of the Court of Session then you can see trouble is going to result and for no good reason.”

Dr Scott said the review could have been limited to the law of England and Wales.

“Yet they have deliberately chosen not to. I suspect it is as a result of the prorogation and I suspect there is a wee bit of a belief that people are using the Scottish courts in a way that the English courts may not be willing to play along with.

“There must be a feeling that if you try and crack down on what is going on in English courts then people will simply make even more use of the Scottish courts.

“Obviously this is all being done over the head of the devolved government and so it might not be unconstitutional in a strict sense but it is certainly quite an aggressive move.”

Dr Scott said that if the inquiry resulted in legislation it could be challenged as incompatible with the Treaty of Union.

“That would be a big deal. What you would expect to happen is it would make its way to the Supreme Court and the Supreme Court would have to say something authoritative – the most important thing probably ever said by a court about the constitutional status of the Treaty of Union and whether or not the Westminster Parliament is able to legislate incompatibly with it.”

Tom Mullen, professor of law at the University of Glasgow, pointed out that the independent review group, which includes Professor Alan Page, a constitutional specialist who is an adviser to the Scottish Parliament, might not necessarily comply with the Government’s wish to limit the scope of judicial reviews.

However he said if it did and there was a move to legislate as a result, there would be a “major pushback”.

“I think all the other political parties would oppose a direct attempt to limit the ability of the courts to use judicial review to control the legality of government action and I also think you would get massive pushback from the Bar, the law societies and legal academics,” he said. “I think there would be a lot of highly organised opposition to any attempt to restrict the scope of judicial review.”

SNP MP Joanna Cherry QC, who has written to justice secretary Robert Buckland QC, to emphasise that Scotland’s system of civil justice is devolved and therefore the preserve of the Scottish Parliament, pointed out that the Tories were also trying to reduce the Scottish Parliament’s powers in other fields at the moment.

A Ministry of Justice spokesperson said: “The Scottish legal system has been distinct but entwined with the English and Welsh system for more than 300 years and this panel has no intention of changing that.”