Public Law

Well who knew? Congratulations to KPMG Forensic on another very successful Scottish Annual Law Lecture tonight – and particularly for securing the services of the Advocate General for Scotland, Lord Wallace of Tankerness whose address brought the art of suspense into the world of constitutional law and had the (at least one) public lawyer in the room on the edge of her seat. There may have been some attending who didn’t find the discussion of the intricacies of the Scotland Act quite as exciting as I did but, as I doubt they’ll be reading this blog, they won’t mind me mentioning some of the highlights.

The appetiser, a measured but full hearted endorsement of the ECHR and the role of the courts in protecting fundamental rights. Yes, from time to time judges will reach the view that governments and parliaments have got things wrong, and, yes, that may lead to disruption and expense and the need for remedial measures but, no, it doesn’t mean the world has ended. In short, and I paraphrase, the rule of law and constitutional protection of individual rights are good things. I need not tell you I’m not given to hero worship but I had to resist the temptation to cheer.

For the main course, some tantalising offerings on what might be in the Scotland Bill which is shortly to be published by the UK Government. Will there or won’t there be a change to the devolution settlement to prevent human rights issues in criminal cases being dealt with by the Supreme Court in London? Lord Wallace revealed that there had been all of 17 responses to the Advocate General’s informal consultation on the issue (which, one might respectfully observe, is not entirely surprising given its informal, and short lived, nature). He was then so persuasive on why the system should remain unchanged I was sure he was going to announce a decision to leave well enough alone. But just as such an announcement seemed inevitable, he let us down gently by putting forward, equally cogently, the case for a change. Not a QC for nothing then. My suspicion:  human rights issues in criminal proceedings will still find a way to the Supreme Court  but perhaps not by way of the Scotland Act’s “devolution issues” mechanism which has been used for the past decade.

And finally, an unexpected treat. The Advocate General referred to a number of challenges to Acts of the Scottish Parliament (including our own AXA Petitioners) and to his surprise that such litigation had to date been instigated exclusively  by private parties. There haven’t been any court cases in which Scottish and UK governments have battled in public over the limits of devolved and reserved powers. I wonder if that’s about to change. Lord Wallace suggested that the Scotland Act might be amended to allow just one or two provisions of a Bill introduced in the Scottish Parliament to be referred to the Supreme Court for a ruling on their legality while allowing the remainder of the Bill to proceed without delay.

When will we know? Well, straight from the horse’s mouth, the Scotland Bill will be published in the “Autumn”. This apparently runs until Parliament breaks up at Christmas but it was suggested that publication will be ‘considerably sooner’ than that. I’ve not made any money betting on other November announcements this year but I believe there are good odds on St Andrew’s Day…

Christine O'Neill

Partner & Chairman at Brodies LLP
Christine is Chairman of Brodies LLP and leads our Public Law Litigation and Parliamentary team. She has considerable experience of parliamentary and public law work and has a special interest in administrative law, devolution and human rights. Christine has advised variety of clients on legislative procedure in the Scottish Parliament, particularly in relation to alcohol and tobacco regulation.
Christine O'Neill

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