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Why would she win? If she violates the law and is convicted there is no higher court to appeal to, there is no British constitution. She could ‘flee’ to England, which would lead to an interesting legal situation (any British police force can make arrests anywhere in the UK, so Police Scotland could in theory arrest her in, say, London and drive her back to Edinburgh, but they would be reluctant to do so for political reasons). But the only real way for her to win if charged would be for the UK Parliament to pass a law explicitly reversing the Scottish Parliament’s bill. In an election year that is unlikely, and it will be even more so after Labour win in October.
Part of the court challenge/conviction proceedings would undoubtedly be a question of whether the law as written is constitutional or not, and that's where it's likely to be quashed.
This brings its own drama though as it's not the first time the UK Supreme Court has quashed legislation enacted in Scotland for being unconstitutional - see: https://www.bbc.com/news/uk-scotland-scotland-politics-67648200
As an ignorance American I read that article and am confused. They don't have a Constitution, so how is anything unconstitutional?
The UK likes to say it has an "unwritten constitution". There have been calls for a formal constitution, but in practice there is a 'constitution', it's just not all collected in one document:
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The Supreme Court of the UK is essentially a government department that rules on whether policies, laws or sentences violate primary legislation passed by parliament. The House of Commons itself can overrule or abolish the Supreme Court at any time, convict or free anyone of anything, or do anything else by simple majority because it is singularly sovereign. Technically the Commons can be limited by the Lords and the King, but the lords have been neutered for a century and the monarchy had its last vestiges of genuine influence removed by the early Victorian era.
“Constitutional” therefore is a kind of legalese thing where a law or policy gets struck down because it conflicts with previous law passed by parliament. The Constitution is, to some extent, whatever parliament in Westminster passes, plus some procedural stuff. Of course the government can just ‘make it legal’ with a majority vote, but if they don’t explicitly override or repeal the previous legislation then they need to go back and do so.
In Scotland’s case constitutional questions related to devolution involve stuff from the original 1707 acts of union, huge amounts of precedent in the following centuries and the official devolution enacted by Tony Blair. The Supreme Court ruling Scottish law as unconstitutional is essentially the government (and thus parliament) saying that the law itself violates UK law.
The thing is that the UK’s protections for free speech in the law are pretty limited, largely either longstanding precedent or just incorporating the ECHR (which has carve outs for speech rights) into law. It’s not clear, therefore, that this Scottish law is ‘unconstitutional’.
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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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ECHR
She could file a complaint with the ECHR, and under Scottish law the government would have to consider their decision, sure. But it would be as meaningless as appealing to the King for a royal pardon (and about as likely).
Hate speech (which the ECHR admits is vaguely or broadly defined) or any speech that runs contrary to the “fundamental principles” of the ECHR is explicitly considered exempt from Article 10 (free speech) protection.
Not only that, but the ECHR has a history of rejecting challenges to hate speech convictions, especially those relating to LGBT issues. For example, here’s the ECHR affirming the conviction of an Icelandic national for calling LGBTQ people “sexual deviants”.
Rowling would not win her case there, an appeal to the ECHR would be appealing to a body around which the Scottish government essentially bases much of its social policy.
I'm not sure how the case would go, the point was that she could still appeal to it.
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