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Notes -
J. K. Rowling challenges new Scottish hate speech legislation, openly challenging them to arrest her for calling trans criminals men who pretend to be women:
https://twitter.com/jk_rowling/status/1774747068944265615
#ArrestMe is, dare I say it, brave and powerful. At least she's putting skin in the game. It's also pretty well calculated in my opinion.
They can't really attack her for being a right wing extremist when her world famous books are a pretty clear allegory of Racism Bad. She even makes sure to target India Willoughby, who is apparently anti-black. Rowling has an enormous pot of money for expensive litigation and automatic worldwide attention on her. It's hard to righteously defend people such as
It's very practical politics to fish out the worst of the enemy milieu to preface one's normative statements. I think Rowling has a good shot at tactical victory - either the govt won't charge her or she'll win in court. On the other hand, only systemic change is going to change the progressive-leaning status quo. You need an Orban or some similar force to drag out the weed by the roots, rather than just pruning away when it grows particularly egregious. Rowling is no Orban, that's probably far too extreme for her.
The legislation is here: https://www.legislation.gov.uk/asp/2021/14/contents
Crimes include 'stirring up hate' by 'behaving in a manner that a reasonable person would consider to be threatening, abusive or insulting' to select groups. Looks like it allows nigh-limitless opportunities for selective enforcement. And a huge drain on police resources, given they can't even investigate all crimes:
https://www.bbc.com/news/uk-scotland-68703684
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.
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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