Scottish judge David Hope, Lord Hope of Craighead, former Lord President Of The Court Of Session and Deputy President of the UK Supreme Court was interviewed recently by historian Peter Hennessy for BBC Radio 4’s series The Kingdom To Come, which looks at the constitutional future of the UK in the wake of the independence referendum and Scotland’s decision to remain part of the union.
After confessing to being a “constitutional nerd” Mr Hennessy asked Lord Hope about the corpus of devolution casework that has developed in the Supreme Court since the passing of the Scotland Act 1998.
PH: David, one might have thought that after the Scottish referendum in September and the vote to stay together, all would be relative calm. But instead there seem to be great jolts of anxiety, almost everywhere you look across the constitutional terrain, isn’t it a bit of a paradox?
Lord Hope: I don’t think so. If you live in Scotland and understand the strength of the feeling behind the movement for separation, it shouldn’t come as a surprise at all. You’ve got to give the Scottish National Party credit for the strength of their convictions. And after all what we’re facing is a series of events. We’ve had the first event, the referendum – it didn’t go their way – but they have the general election coming up in May at which they hope to do extremely well and then the following year the 2016 elections for the Scottish parliament.
PH: There’s quite a corpus of devolution casework that’s developed already through the Supreme Court, which is the body that arbitrates disputes between the jurisdictions and will continue to do so. I think that unless you are a bit of a constitutional nerd as I confess to being myself, not many people have kept up with the jurisprudence that already exists on devolution since the passing of the Scotland Act 1998, for example.
LH: Well, there are two aspects to this. One is the devolved powers of the Scottish parliament which are subject to oversight if necessary by the United Kingdom Supreme Court, where for example a bill comes through which a law officer suspects is outwith the powers of the parliament. Now, one of the extraordinary things, and quite surprising, is that there never was any jurisprudence about that – so far as Scotland is concerned – because what was known as the Sewell convention has been able to smooth over difficulties of that kind and there haven’t been the tensions which I think those who drafted the act to begin with thought there would be.
PH: The Sewell convention means that you don’t interfere in the other parliaments’ work, essentially.
LH: Well, yes but it can be achieved by discussion. In the early days of devolution between Scotland and Westminster the cooperation was extremely good but what is really interesting is what’s been going on in Wales and there have now been three cases that have come from Wales under the same chapter, which is challenges by the attorney general for England and Wales to draft measures, or measures indeed passed by the Welsh Assembly which, he maintains, are outwith their powers. They’ve all gone to the Supreme Court for scrutiny. So that’s one chapter. The other chapter has rather died away and that it is an enormously busy amount of human rights jurisprudence dealing really with the prosecution system in Scotland and that raised one or two really quite difficult issues, but that has almost entirely died away because the problems have very largely been sorted out.
PH: Another aspect of the Supreme Court and its functions of ensuring compatibility. If, quite apart from Scotland, we get into not quite into Mr Gladstone’s “home rule all round”. But if you get into a multiplicity of jurisdictions and the Supreme Court is required, with different political parties making the running or being the majority of them and the Supreme Court is required to some degree to arbitrate, isn’t there a danger that devolution in the realm as a proportion of its workload will increase and that could actually give the impression that it is being politicised, against its wishes and all the instincts of the judges, because of the very nature of the dispute resolution in which it’s involved.
LH: I don’t think so. You have to appreciate first of all how the issues will come before the court and, secondly, what the court is really looking at. What I’m envisaging is that an issue will come below the court at the instance of a law officer. That is, pre-legislative, pre-enactment scrutiny. Or, possibly at the end of the road by somebody who feels they’re disadvantaged by the legislation as happened in a case called AXA in Scotland at the instance of insurers. These are perfectly legitimate issues which need to be resolved and in order to resolve them the court looks at the language of the statute under which the issue arises and its interpreting the statute and applying it in a way that the court has always done and that’s not a political exercise, it’s a judicial exercise. And the individuals who are sitting there are chosen entirely independent of government now and there‘s no question of them having any political angle on this at all. It’s different from the United States Supreme Court in that everybody knows that the president appoints his own people and, that being so, you can count off the heads and say which side of the line they are. But you can’t find that in our system and that’s always been one of the understandings – that the judges are entirely independent.
PH: There was one constitutional question raised by that extraordinary pledge by the three main party leaders two days before the referendum poll in September – the Vow – as it was called on the front of the Scottish Daily Record, which has run through into the Smith Commission report, which says the Scottish parliament will be made permanent in UK legislation and given powers over how it is elected and run. The Scottish government will similarly be made permanent. But as a country we don’t do entrenched legislation. To me, that sounds like entrenched legislation that cannot be overturned by a future parliament and that’s simply beyond our tradition. We have no precedent for that, or am I reading too much into it?
LH: Well, the basic constitutional principle is that no parliament can bind its successors. But I think there’s a political dimension to this as well. And the very first words of the Scotland Act 1998 are “there shall be a Scottish Parliament”. Now you can put the word “always” in but I think from the political point of view the idea of just simply repealing the Scotland Act and removing the Scottish parliament and the Scottish government is just unthinkable. If you want to add the word “permanent” alright, but what do you mean by it? You certainly wouldn’t want the parliament as presently designed to be permanently fixed as it is now and the government fixed as now with all its powers and technically a subsequent parliament at Westminster could simply repeal the word or at least strike the word out. So, it may have some political resonance but I don’t think it adds anything.
PH: Isn’t it undesirable though that the impression would be given, if you read that literally, that this is going to be entrenched even though we don’t do it that way. And the form of words may give the impression that we’re doing it – in fact we’re not. It’s not a smoke and mirrors business, legislating, is it?
LH: Well, I think you’re talking as an academic. From the point of view of the politician it’s rather nice to have the word “permanent” there and just simply rubber stamp what everybody believes to be the case. And the whole idea, of course, from north of the border is to tell Westminster to keep of our turf, you know, the Scottish parliament belongs to us not for Westminster and let’s make it absolutely plain.
PH: So you’re not too worried about that. You don’t think it will produce a huge constitutional precedent that we might rue one day? I agree with you it’s inconceivable that the Scottish parliament will be undone but that’s not the same thing as saying that entrenching legislation is desirable.
LH: Well I don’t mind frankly. I mean if they agreed on this, well it’s jolly good, they found something to agree about.
PH: One of the other questions that’s arisen because of the Conservative party making it plain it wants to repeal the human rights legislation, that’s fairly recent in our tradition, and have a substitute for it and Scotland and Wales show no desire for that. It seems to me it’s going to be a problem if you have a different human rights regime for different constituent parts of the same state; the same United Kingdom. How on earth can that be reconciled?
LH: Well I think that’s probably a question for the prime minister. But I think there’s one point which you shouldn’t overlook and that is the thinking behind the Scotland Act was the feeling that legislation from parliament had to be consistent with our Treaty obligations. The real point of the Convention rights being in the Scotland Act was that the legislation creating the devolved institutions had to be compatible with the European Convention on Human Rights. So, repealing the Human Rights Act is one thing but, so long as we remain part of the Council of Europe, we still have that Treaty obligation and one could say that the two can live side by side, in theory. But it’s very unbalanced, I agree, to have the executive, the Scottish government I should say, and the parliament required to act compatibly with the Convention rights and other public bodies are under a different regime. It’s very unprincipled and messy I think.
PH: And deeply undesirable?
LH: Well, if you believe in the human rights convention yes of course it’s undesirable.
PH: Which I suspect you do?
LH: Well I live to, as a judge, to try and read and understand these various principles. One of the first acts of the secretary of state for Scotland, in conjunction with the Scottish ministers, was to design a compatibility act to go through everything they did in Scotland to see that it was compatible with the Convention and it didn’t solve every problem but it was a major step forward in trying to look at everything and see that it was up to date in human rights terms and I think it has improved in many ways the way we run our country and to suddenly walk away from that I think is a great mistake. I’ve yet to hear how the two systems, the UK system under the Human Rights Act and the devolved systems can live with the revolution which is being suggested.
PH: It’s one of the many mysteries that we’re facing I think. But there are several others. Do you think that the knock on effects to the rest of the UK requires us to have a constitutional convention to look at it in the round?
LH: There is a lot to be said, I think, for getting together to discuss these issues. There are all sorts of things that have to be talked about. If you’re talking about further devolution in England and Wales you’re talking about legislation, legislative power. If so, how is that to go? And are you to say well alright, we don’t want lots of legislative assemblies about the place but we want devolved governments, what are they to be like? Are they any different from the mayor of London or the equivalents in the various big cities throughout England. There is an enormous thing to explore as to what we mean by “devolution”.
PH: We’ve never faced anything of this magnitude before.
LH: No, we have a vehicle for it because the Scotland Act is remarkably well drafted actually, when you look through it. The structure that is there is capable of adapting to, as it did in 2012, a lot more new powers.
PH: 2012 was the new Scotland Act.
LH: Yes, and it gave powers to, for example, increase the basic rate of income tax or lower it by 10p in the pound and deal with stamp duty which the Scottish parliament has just done or deal with driving and they’ve done that too by lowering the drink-drive limit. So these powers are in the act, the 2012 act, and they’ve been put in to the 1998 act structure without any difficulty and I can see the Smith recommendations following that pattern well. So we’ve got a perfectly good structure there which could be adapted region by region in England if you want. But is that what you really want. Do the regions agree? This is something that really has to be talked about before parliament gets round to setting out how the thing should be put into legislation.
PH: How would we, if we got to a constitutional settlement, and the constituent parts of the nations and regions of the UK could live in kind of mutual flourishing and the Smith Commission has a similar line about nothing should be done that’ll be to the detriment of any part of the kingdom. What’s the best way of reflecting all that? Is it an all-encompassing statute or is it a series of mini-statutes?
LH: It’d be neater to have an an-encompassing statute if it can be achieved and it can be divided into various parts. You can follow the government of Wales model, which was quite an interesting one where you had as it were stage one, which was capable of being changed by referendum into stage two. And they’ve now reached stage two. And you can design it with stages that apply to different parts of the country. But if it’s all within one act, then at least everybody knows where to go to, instead of getting lost and deciding oh I’ve got to the wrong act for this particular purpose.
PH: So it’s variable geometry within a single statute?
LH: I don’t see why that couldn’t be done.
PH: We woke up on Friday the 19th of September, the day after the referendum vote in Scotland to find ourselves in a vast constitutional building site. And there’s no plan, no real forethought. What’s your single greatest worry about all of this:
LH: Well I think it’s the worry of the detail being buried by propaganda. It was a feature of the referendum campaign, really, that it was so easy for politicians on either side to shrink issues down to the obvious, which they could meet and get round the difficulties. The propaganda effect of the message is enormous in dealing with a body that doesn’t really understand the details of the system we’re talking about. I think that is my greatest worry because there is a lot of detail that goes behind this. The other worry is what Lord Smith has mentioned in his preface where he draws attention to the two main things: the lack of a robust and transparent relationship between Westminster and Holyrood and also a relatively weak understanding in both parliaments and also amongst people generally of what the devolution system is actually doing. People don’t really understand it and he’s hoping, first of all, the mutual understanding can be improved and that’s very difficult in the present political climate. And the other is that the speaker of the house of commons and the presiding officer in Edinburgh should work together to try to improve understanding in their parliaments. And I hope that could be worked on because that is something that is tangible and should be done.
PH: David Hope thank you very much indeed.