Andrew Tickell: Devolution serves our politics up to the courts

Expensive, time-consuming, and unpredictable court cases may be – but they’re an increasingly important feature of how we do politics in this corner of the United Kingdom. The Scottish Government’s confirmation that it intends to judicially review Alister Jack’s Section 35 veto only confirms that disputes about the constitution in the UK are increasingly resolved not by political negotiation and winning democratic assent – but by the bench.

You wonder how comfortable judges are with this new responsibility. In a recent UK Supreme Court judgment, Lord Reed wrote that “judicial independence is accepted only if the judiciary refrains from interfering with political processes” and that “the judicial and political spheres have to remain separated”.

But devolution isn’t really structured that way. It doesn’t give judges the option to occupy the kind of splendid isolation from politics Lord Reed describes. Because it’s the founding documents of devolution which feed Holyrood’s decisions into the judicial sausage machine. As constitutional specialist Alan Trench pointed out more than a decade ago, “before devolution in 1999, there was an expectation that one consequence would be an increased, and increasingly political, role for the courts”.

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That prophecy may only now be coming true – but we have the basic design of the Scotland Act 1998 to thank for this upsurge in constitutional litigation. While Westminster comfortably shelters behind the shield of parliamentary sovereignty, the devolution settlement exposes all Holyrood does to challenge, on everything from human rights grounds and retained EU law to the sometimes-blurred lines dividing reserved and devolved powers.

This is the kind of legal and judicial scrutiny the UK Government would consider intolerable at Westminster – but it’s the kind of scrutiny Westminster has decided Holyrood and all the other devolved powers must be subjected to. The constitutional principle here is very much: “Do as I say, not as I do.”

It isn’t just politicians who’ve got the taste for legal solutions to their political problems. “We’re seeking judicial review” is now a familiar slogan to hear from campaigners and interest groups. Threats of legal challenge are now made routinely before, during and after bills make their way through Holyrood. Judicial review petitions have been launched contesting everything from minimum alcohol pricing to the lawfulness of the census.

Enterprising litigants – increasingly supported by online crowdfunding – have asked Court of Session judges to scrutinise decisions to prorogue parliament, definitions of womanhood, the compatibility of lockdown rules with religious freedoms and the lawfulness of the city council’s approach to licensing strip clubs in Edinburgh.

The fact large sums of money are required to get a legal hearing poses questions about how accessible our theoretically open court system is. It should help disabuse us of the simple notion that these cases are necessarily “public interest” litigation – the Plain People of Scotland against the powerful – just because someone sets up a CrowdJustice page. As often as not, Goliath is wrestling Goliath in these Court of Session battles. David can’t afford the entry fee.

Often, too, the politics behind these cases is contested, and rightly so. As Lord Reed observed – rather tartly – in a recent Supreme Court judgment, judicial reviews are “usually brought by campaigning organisations which lobbied unsuccessfully against the measure when it was being considered in Parliament,” raising the court case “as a means of continuing their campaign”. I don’t share Lord Reed’s implied distaste for strategic litigation. When the law is the only tool you have left, you can understand why activists reckon they have nothing left to lose.

It’s testament to the parochialism of UK – and Scottish politics, in particular – that the existence of this increasingly diverse range of legal disputes is seen as unusual, or somehow proof the Scottish Government can’t get the legal basics right. Extend the circle of your concern to any other country operating under a written constitution protecting rights and allocating different powers to different levels of government and you’ll find legal tensions and legal disagreements about how federal and reserved powers rub along. Pretending this is a unique form of Scottish dysfunction under devolution – well, partisanship and ignorance make it a compelling fiction to peddle.

Oftentimes, too, the legal basics aren’t all that basic. Other areas of law aren’t nearly as straightforward to navigate. When lawyers say things like this, folk are inclined to roll their eyes and cry “sophistry”. But I’ll give you a couple of simple examples to illustrate the point.

IN human rights cases, courts often have to consider whether a government decision is “proportionate” or not. The common law often asks judges to review whether a decision was “reasonable”. You don’t need to be a wilfully obtuse ambulance chaser to recognise these aren’t ideas which lend themselves to 2+2=4 thinking.

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When four constituents of Orkney and Shetland MP Alistair Carmichael raised an election petition against him in the wake of the 2015 General Election, they were dismissed as a “rabble” making empty legal threats. Although the LibDem’s election wasn’t ultimately voided, to general surprise, the court held the Orkney Four had a relevant case, forcing Carmichael to give evidence under oath and admit he’d lied during the campaign.

Cast your mind back to 2019 and the early days of the Cherry case – arguing Boris Johnson’s five-week Brexit prorogation was unlawful. When the case first called in the Outer House of the Court of Session, Lord Doherty seemed to confirm the lobby’s common sense that the case would be chucked out with prejudice. The Inner House decides otherwise. The shock was palpable – but ultimately, the Supreme Court agreed with Lord Carloway and his colleagues that the prorogation was unlawful. The smart money lost that time.

Make conservative predictions about what a conservative court system will do, and you will often be rewarded for your caution. Considering a Section 35 order has never been made under the Scotland Act before, considering a Section 35 order has never been judicially reviewed before, a significant amount of guesswork characterises predictions about who will ultimately prevail.

Some things we do know for sure. Some things we do know for certain. The Scotland Act requires the courts to consider whether the Secretary of State for Scotland is right that the GRR bill makes “modifications of the law as it applies to reserved matters” and “has reasonable grounds to believe it would have an adverse effect on the operation of the law as it applies to reserved matters”. We know “reasonableness” is generally a deferential standard of review, which must hand the UK Government a significant early advantage.

But there are other factors which may strengthen the Scottish Government’s legal position. The Scotland Act is silent on the standard of review that should be brought to bear. How closely should the court scrutinise the cogency of Alister Jack’s reasoning? How far into the merits are the courts prepared to wade? Should the judges take into account the process under which the decision was sprung on the Scottish Government, contrary to all their ordinary working practices?

Does the fact this is an executive fiat blocking a legislative measure figure in the intensity of the court’s analysis of whether the Secretary of State’s concerns are really reasonable? Or should the court say that this is essentially a political judgement, wash their hands of the case, and deferentially back Jack?

It’s on these kinds of legal arguments that the Scottish Government’s prospects of success will depend. But win or lose, this case is just another reminder that devolution has left us legalling more and more of our politics.