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Actually I’m curious about this. If she loses at the trial court level in Scotland, is there no Scottish court of appeals?
Regardless of the answer to the previous question, if she were to lose both the initial trial and any available appeals within Scotland, could she appeal to an appellate court of the United Kingdom? If not, we are a heartbeat away from nullification being fair game for any devolved legislature within the UK, and bizarrely, the ECHR would have more power than “domestic” British courts, at least in Scotland!
In general the interplay of devolution and the judiciary is fascinating. It’s like the UK is cherry-picking bits and pieces of US- or Canadian-style federalism without a real guiding principle of who exactly has authority over what. No British constitution indeed.
Technically the Supreme Court of the UK (mostly just England, Wales and NI) has ultimate jurisdiction over the Scottish Courts, but cases are vanishingly rare and generally relate to ‘devolution issues’ where controversy over the Scottish government’s authority lies.
Devolution grants the Scottish government explicit control of crime, culture, “anti-social behaviour” and justice as interpreted broadly. Excepted matters are limited to constitutional issues, defense, immigration, foreign policy, trade policy, some other national issues and so on.
Of course, the UK has absolute parliamentary sovereignty, a majority of 1 would be enough to impose any policy on Scotland for any reason at any time without any recourse (provided it was written in the correct way). But parliament generally accepts the Scottish government’s control of most of the criminal law. The UK vetoed self-ID for trans people but it was a very specific thing based off them modifying (rather than merely building on top of) some equality legislation.
Not really, no - that England and Scotland have had separate legal systems despite being part of the same sovereign state predates US-style federalism - the Act of Union was in 1707, and it explicitly left Scots law unchanged. The fact that Scotland had its own legal system but no legislature pre-devolution was one of the constitutional weirdnesses that so offended Tony Blair.
The Supreme Court of the UK can't hear direct appeals of Scottish criminal cases (this was part of the deal made in 1707), but you are right that this one could be litigated as a devolution issue - the powers of the Scottish Parliament (like every other UK body with delegated legislative powers) are limited by the Human Rights Act, so if the Scottish law JK Rowling was being prosecuted under violated a ECHR right, it would be ultra vires. If the bad actor here was activist Scottish judges rather than politicians and she was prosecuted under Scots common law then there would be no appeal to a UK court, only to the ECtHR in Strasbourg.
"Doing fine without one" is misleading. The UK Supreme Court doesn't have a materially different role to the old Judicial Committee of the House of Lords (i.e. the Law Lords) - it just meets in a different building. I agree with you about Tony Blair feeling the need to rationalise things when there was no practical benefit.
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That's Tony Blair for you. Same reason the UK now has a "Supreme Court" despite doing just fine without one for centuries.
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