Examination of Witnesses (Questions 300
- 304)
TUESDAY 2 DECEMBER 2003
RT HON
LORD HOPE
OF CRAIGHEAD
Q300 Chairman: Are there some matters
in the Government's proposals which could not be implemented without
either a decision of the Scottish Executive, legislation by the
Scottish Parliament or a Sewell motion?
Lord Hope of Craighead: This is
perhaps a matter for debate. But I believe that the whole issue
of Scottish participation in the new court is a matter which is
devolved, because, if you look at Section 126 of the Scotland
Act, the whole of Scots private law and criminal law is a matter
for the Scottish Parliament unless it touches on reserve matters.
That suggests to me that what we are talking about, when we are
talking about a final court of appeal in Scottish cases, is an
amendment of the Court of Session Act, which is a Scottish Act
under the supervision of the Scottish Parliament. Certainly it
can be dealt with by a Sewell motion, which would require a vote
in Edinburgh, but the ideal position would be for the matter to
be debated fully by the Members of the Scottish Parliament.
Q301 Chairman: I hope the Government
are listening to the very strong advice you are offering them.
We will try to make sure that they do. Are there any other particular
matters on which the profession in Scotland might have a view,
for example, about the number of Scottish judges to be appointed
to the supreme court, or indeed whether it should sit in Scotland,
or anywhere else other than in London?
Lord Hope of Craighead: I believe
the view is taken in Scotland that it should be three Scottish
judges rather than two. Speaking from within the team, as it were,
I doubt whether that is practical, knowing myself how we run cases.
Given the very small number of Scottish appeals in any year, I
really do not think there is a case for more than two Scots on
the team of 12. There is a question about how one deals with devolution
issues because they do raise particularly Scottish points. That
is why, in our paper on behalf of the Law Lords, rather reluctantly
we were driven to the view that devolution cases should not come
to the supreme court so that they could be dealt with under the
rather looser arrangements that apply in the Privy Council. One
can bring in, because they are Privy Councillors, members of the
Scottish judiciary, and we have done that, from time to time,
in devolution cases. That would remain available if the existing
structure under the Scotland Act remained. If the supreme court
is designed as a fixed panel of 12 then the possibility of enlargement
simply is not there. One would have to face the fact that devolved
issues, or devolution issues, always have to be dealt with with
a minority of two Scots.
Q302 Chairman: The arguments about the
Judicial Committee of the Privy Council retaining that devolution
function simply are practical arguments, or is there an argument
of principle?
Lord Hope of Craighead: I think
there is a bit of both. The original decision to go to the Privy
Council, I think, was a point of principle, because it was thought
to be unsatisfactory for the competence of the Scottish Parliament
to be reviewed by the House of Lords at Westminster. One could
see how the hackles of the Scots would rise at that prospect,
and the Judicial Committee was a very happy compromise for that.
There is a practical problem, which is the one I have been touching
on, of simply numbers. One can enlarge the team, or at least the
Scottish input into the team, without any problem in the Judicial
Committee. But the design of the supreme court is unlikely to
allow for that.
Q303 Chairman: Is there not also a problem
that exists now of conflicting views being taken on devolution
issues, given the interface with the European Convention on Human
Rights, and the Judicial Committee could come to one view and
the House of Lords could come to another?
Lord Hope of Craighead: Yes, there
is, indeed.
Q304 Chairman: What is the way out of
that?
Lord Hope of Craighead: I think
that is a very difficult question. Certainly it is possible that
the Scottish judges will take a different view on a particular
human rights issue than the English, and partly it is a product
of different criminal justice systems. To take one example, the
Scots take a very different view about delay in criminal trials.
The Scottish system is a very tight one, where trials have to
be held within time limits, and there is a very sharp view taken
by the judiciary if these time limits are exceeded. For various
reasons, the English view is different, and certainly I can foresee
the situation where the way in which one would look at the reasonable
time guarantee in a human rights case would be a very different
one in Scotland from in England. So long as one respects the fact
that the Scottish jurisdiction is a separate one with its own
identity, that position can be accepted. If you gather it together
in the idea that there is a UK perspective on this then one side
or the other has to give way to produce a UK answer. Under our
system, of two systems of law in one country, that is quite difficult
to achieve.
Chairman: Lord Hope, thank you very much
indeed for your very thoughtful answers to our questions. We are
very grateful.
|
