In December 2009 the new U.K. Supreme Court heard its first devolution matters since it took over the role from the Judicial Committee of the Privy Council.
The judgments will be published tomorrow (Wednesday 10th February) at 9.45 am.
The U.K. Supreme Court's webpage can be found at:
http://www.supremecourt.gov.uk/index.html
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The U.K. Supreme Court's first two judgments since taking over the post-devolution role of the Judicial Committee of the Privy Council (JCPC) have been published.
That post-devolution role is to determine 'devolution issues' in the Scottish criminal justice system.
What was particularly interesting in the first of these two judgments was the clear way that Lord Hope clarified the role of the UK Supreme Court as regards devolution issues. More of that below but, first, a little background.
Lord Hope of Craighead was the most senior judge in Scotland before he moved to take up a judicial role in the House of Lords - hearing appeals in the Scottish civil justice system.
The same Law Lords who sat as judges in the House of Lords also sat as judges in the JCPC in Downing Street. Following devolution the JCPC took on a new role hearing devolution issues from the newly devolved administrations in Scotland, Wales and Northen Ireland.
The Law Lords have now physically separated from the home of the legislature and executive by flitting into new premises to sit as the U.K. Supreme Court. Lord Hope is the second most senior judge in the Supreme Court.
In the first of the two Supreme Court decisions relating to Scottish devolution issues - McInnes v H.M. Advocate 2010 - Lord Hope indicates the extent of the UK Supreme Court's reach on Scottish devolution. Lord Hope states:
'Devolution issues as defined in para 1 of Schedule 6 to the Scotland Act 1998 mean questions about the legislative competence of the Scottish Parliament and the exercise or non-exercise of functions by members of the Scottish Executive. They do not extend to things that are done or not done by the courts... it can be taken to be well settled that it is open to the Supreme Court to determine under para 13 of Schedule 6 to the Scotland Act 1998 not only the devolution issue itself but also questions which are preliminary to and consequential upon the determination of that issue... The question of remedy forms part of the devolution issue. So too does the test that is to be applied in determining whether the appellant is entitled to that remedy.'
So, within the scope of devolution issues, the reach of the UK Supreme Court is wide. However Lord Hope is careful also to confine the role of the UK Supreme Court.
Lord Hope does this by saying: 'In some cases these [devolution] questions will give rise to no special features of Scots criminal law or practice. In others ... the reverse will be true. That does not mean that it is not open to this Court to determine the question. But we must be careful to bear in mind the fact that the High Court of Justiciary is the court of last resort in all criminal matters in Scotland, and that when we are dealing with questions of this kind it is the law of Scotland that must be applied.'
It is notable that Lord Hope has used this opportunity to discuss the parameters of the relationship between the U.K. Supreme Court and the High Court of Justiciary in the Scottish criminal justice system.