Select Committee on Constitutional Reform Bill Written Evidence

Memorandum by Ross Gilbert Anderson


  In his well-known work on the Law of the Constitution,[1] the great English constitutional lawyer, Dicey stated that "it would be rash of the Imperial Parliament to abolish the Scotch law courts, and assimilate the law of Scotland to that of England. But no one can feel sure at what point Scottish resistance to such a change would become serious." In 1953, following the coronation of Her Majesty, the great Scottish judge, Lord Cooper of Culross, labelled such a view "exceedingly cynical"[2] and suggested that an Advisory opinion from the International Court of Justice might be available if such a situation arose. Mercifully, the government's proposals for a new Supreme Court for the United Kingdom do not include a proposal to abolish the independent existence of Scots law. Nevertheless, the proposals, in their present form, pose a serious threat to the independent existence of the Scottish legal system. That is not to say that the status quo is ideal. Far from it. Indeed, some of the criticisms which follow are applicable mutatis mutandis to the present arrangements.


  The government has suggested that the new Supreme Court is necessary to ensure compliance with the European Convention on Human Rights (ECHR).[3] I have argued elsewhere that the continuation of the status quo, whereby non-Scottish judges sit and vote on Scottish appeals, is contrary to article 6 ECHR.[4] The argument is simple. Article 6 ECHR states that "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair . . . hearing . . .". While it may be acceptable to have unqualified judges at the lower end of the judicial hierarchy, it is quite simply unacceptable to have unqualified judges at the apex of the appellate process. In Scottish appeals, judges who trained, qualified and practised in England and Wales, or in Northern Ireland, are unqualified. They have no training in Scots law. The converse is also true: Scottish judges are unqualified in English law. Section 6(1) of the Human Rights Act 1998 makes it unlawful for any public authority to act in any way that is incompatible with a Convention right. The House of Lords and the new Supreme Court are both a "public authority" in terms of the Human Rights Act 1998, section 6(3). It seems to this writer that litigants cannot receive a "fair" hearing in terms of article 6 ECHR where there are unqualified judges. Scots and English law remain, in many respects, fundamentally different in terms of principle, philosophy, culture and terminology. While English law has exercised a great influence over Scots law in the last couple of centuries, this has not altered much of the basic fabric of Scots law. English lawyers, I would venture, would be somewhat dissatisfied if someone who had qualified and practised only in France or Germany was one of the ultimate arbiters of English law. Yet, for the Scots lawyer, German or French law is often far closer to Scots law in terms of principle than English law.[5] English judges seem to express genuine surprise that Scots law might ever be different than English law, despite the fact that the Scottish position is often the norm in Europe and that it is English law that is the peculiar exception. For example, the late Lord Hobhouse of Woodburgh stated in a recent appeal: "What does surprise me is that Scotland, now a highly developed economy, should have a land law which is still based on the judicial development, albeit sophisticated, of the laws of Rome and the mediaeval Feudal system".[6] Yet, the private law of all the main European jurisdictions is based on principles taken from the doctrinal development of Roman law through the centuries. And no one would suggest that the economies of France, Germany, Austria, or Switzerland have been impeded as a result. In the same appeal Lord Hobhouse also asked counsel at one point in the appeal: "What is diligence?" The subject of the appeal was the effect of a bankruptcy. In Scots law, sequestration is a collective diligence for creditors. This is something that every first or second year law student in Scotland would know.[7] Further examples of judicial ignorance of Scots law are too numerous to mention in this short note.[8] No matter how brilliant a judge may have proved himself to be in matters of English or commonwealth law (which is a descendent of English law), this does not necessarily mean that he or she will be able to think him or her self into the terms and concepts of Scots law.[9] It is a matter of basic common sense that the final court of appeal in any legal system should contain only judges who are fully qualified in that law and have proven themselves to be distinguished practitioners in that law. The question is one of perception:[10] how can the Supreme Court command the respect of the people of Scotland when the majority of the judges in the Court (indeed, if any of the judges) have never studied or practised Scots law?


  Other Supreme Courts in the world are in a somewhat different position. So too is the Judicial Committee of the Privy Council when it hears appeals from commonwealth countries. In the first situation, matters which reach the supreme court are issues of federal law. There is rarely any dispute that the federal law applies in any particular state. In the second situation, the laws which must be applied are essentially the same as English law. They share a common heritage with English law. Scots law is in a radically different position. Its private law has a common European heritage. Its lawyers historically studied in France and the Netherlands. Even after the Union, it was only in the later part of the eighteenth century that English law exercised any influence on Scots law. In any event, the fact that there are other supreme courts[11] which allow non-qualified judges to sit is hardly a good reason to adopt or perpetuate such a position in the UK.


  I opened this note with the comment that Scots lawyers have serious concerns that the new Supreme Court will erode the independence of Scots law as an independent system. The government has sought to refute these claims. Reference to section 31(1) of the Constitutional Reform Bill 2004, however, suggests that it is to be an English court: "The Supreme Court is a superior court of record". This is a technical English expression with no counterpart in Scots law. The terms of the Bill are unequivocal: the court is to be an English court.


  The present position is that, by convention, there are always two Scottish Lords of Appeal in Ordinary. The convention—and, again, it is no more than that—is that they will always sit in Scottish appeals. But this does not always happen. Often there is only one. Usually, the English judges will follow the speeches of the Scottish judges. However, since the Scots are in a minority, there is always the possibility that the unseen influence of the majority English judges will be such that the Scottish judges will deliver a decision which would never have been reached in Scotland.[12] In other cases, the English judges simply consider the position in English law and make little attempt to appreciate the Scottish position. The point has been well illustrated in appeals on "devolution issues" in terms of the Scotland Act 1998. The Judicial Committee of the Privy Council now has limited jurisdiction over Scots criminal law. Prior to devolution, there had never been any London jurisdiction over Scots criminal law. Scots criminal law has therefore been little influenced by English law. One of the cornerstones of the Scottish criminal justice system has been the tight time constraints in which an accused must be served with the indictment (80 days)[13] and brought to trial (110 days).[14] There has never been such a culture, never mind statutory requirement, in England. In a recent case[15] the issue in a Scottish appeal was whether unreasonable delay had led to a breach of the ECHR on the right to a fair trial. There were a majority of three Scottish judges on the committee. They were quite clear that the unreasonable delay had led to a breach of the convention. The English judges disagreed: one of the reasons being that such a decision would have catastrophic consequences in England, though English law was quite irrelevant to the appeal. Unfortunately, however, when the same point arose for decision in an English appeal,[16] the English judges doubted whether the previous decision in the Scottish appeal was correct, much to the consternation of the Scottish judges, Lord Hope and Lord Rodger. The Scottish appeal was not, after all, binding on the court in the English appeal. There is no reason whatsoever why one result can be reached for Scotland and another for England; indeed, this has been the position in criminal law for the last three hundred years of union. With respect, it seems to this writer that the great problem with the present arrangements (which will be perpetuated in the proposed Supreme Court) is a great reluctance on the part of the English judges to do anything in a Scottish appeal other than reach the result that would be reached on the basis of English law. This is not surprising: that is the law in which they are trained and indeed expert.


  The foregoing point raises an important issue. The legal systems of Scotland and England both apply a principle of precedent, ie lower courts are bound by the judgements of higher courts. At the moment, a judgement of the House of Lords in an English appeal is binding only in England; judgements in Scottish appeals bind only Scottish courts. As was highlighted in the previous paragraph, differences between Scottish and English law do arise. Yet, nowhere in the Constitutional Reform Bill 2004 is there a guarantee that English judgements will not be binding in Scotland. This again highlights the problem of judges who are quite unqualified to pronounce on Scots law producing opinions which the Court of Session may then be bound to follow. A rigid system of precedent is not required to achieve uniformity between the laws of Scotland and England. Scottish lawyers make regular and often copious reference to English law. Often the results arrived at are the same in both systems. Rather, it is the way of arriving at that result which sometimes differs; and the chosen route can be very important for future legal development. The more flexible system of precedent advocated here would also allow different decisions to be reached in the small number of cases where differences do arise.


  As noted in paragraph 5 above, the convention is that there are always two judges who have qualified and practised in Scotland in the House of Lords. Naturally, the judges appointed to the House of Lords are among the most distinguished of Scots lawyers. The number of appeals from Scotland to the House of Lords each year is, on average, between four and six.[17] On elevation to the Lords or the Supreme Court, Scotland's best judges then spend the majority of their time hearing English appeals. Their contact with Scots law is then on an infrequent rather than a daily basis. And all this while there is a chronic shortage of judges in Scotland. In recent years, our small legal system has not just had to cope with losing two distinguished judges to the House of Lords. The incumbent Lord President, Lord Cullen, has spent much time conducting public inquiries; as has Lord Penrose. Judge David Edward has spent all his judicial life in Luxembourg in the European Court of Justice. Lord Bonomy has just been appointed to the International War Crimes Tribunal in The Hague.[18] The individuals concerned are only to be congratulated for their achievements and dedicated public service. On a more prosaic level, however, back in Glasgow there are not enough able judges to preside over murder trials; in Edinburgh litigants have to wait months or years for proof dates or to pursue an appeal to the Inner House of the Court of Session. Scots law can cope with relatively short term absences of her best judges to ad hoc appointments like public enquiries.[19] It is also right that judges with particular expertise should not be inhibited from taking up outside appointments. However, Scots law cannot cope with the permanent loss of another two senior judges to London on a full time basis. In any event, and I say this with the greatest of respect, they are not actually qualified to do the majority of the work that they are required to carry out: ie sit on English appeals.[20] This writer would therefore advocate that in Scottish appeals to the Supreme Court, the Bench is made up entirely of Scots judges appointed on an ad hoc basis.


  This comment has tried to make clear that Scots lawyers find the present appellate system highly unsatisfactory. Indeed, it may be that the present system, to be perpetuated by the Supreme Court, is itself in breach of the ECHR. If the Supreme Court is to inspire the confidence of the Scottish people, it must be comprised only of practising Scottish judges (paragraph 1). They should be appointed on an ad hoc basis (paragraph 7). This is something which has, to some extent, already begun: in some Privy Council cases, extra Scottish judges have been drafted in to ensure a Scottish majority.[21] I would argue, however, that only a full bench of Scottish judges is sufficient to comply with the ECHR: otherwise, if there be disagreement among the Scottish judges, the opinions of unqualified judges will have the deciding vote. Finally, provision must be made to ensure that decisions of the Supreme Court in English appeals are not binding on Scottish courts (paragraph 6).

21 April 2004

1   (9th ed 1948) p 82. Back

2   MacCormick v Lord Advocate 1953 Session Cases 396 at 412. Back

3   See, eg paragraph 44 to the Explanatory notes to the Constitutional Reform Bill 2004. Back

4   "Appeals to London and Human Rights" 2003 Scots Law Times (News) 297. Back

5   See the comment in the leading text on Scots property law, written by one of the Law Commissioners for Scotland, Professor K G C Reid: "Thus, so far as property law is concerned, modern Scots law may be classified along with the civilian systems of western Europe, such as France and Germany, and with other `mixed' legal systems such as Louisiana and the legal systems of Southern Africa. Conversely, it has little in common with English law, and with other Anglo-American systems, except in those few topics . . . where English law has drawn on Roman law. A lawyer trained in Scots law can without difficulty (other than linguistic difficulty) read and understand a book about the law of property in Germany or, indeed, Japan (where the law is based on German law). But he is likely to be perplexed by a book on the law of property in England": the Law of Property in Scotland (1996) para 2. Back

6   Burnett's Tr v Grainger [2004] UKHL 8 at para 53. Compare the statement of Lord Maugham, Lord of Appeal in Ordinary until 1946, whose impression of Scots law was "those interesting relics of barbarism, tempered by a few importations from Rome, known to the world as Scots law" (quoted by Professor Sir Thomas Smith QC in British Justice: The Scottish Contribution (1961) at p 215. Back

7   The comparable English legal institution is execution. I by no means wish to single out Lord Hobhouse for undue criticism: he was distinguished and often brilliant judge, a master of English law. The quotes are taken to emphasis how expertise in one system is not often a great advantage when trying to understand another. Back

8   Further references can be found in D M Walker, The Scottish Legal System (8th ed 2001). Back

9   See the warning administered to the English members of the Judicial Committee of the Privy Council in Montgomery v HM Advocate 2001 Session Cases (Privy Council) 1 at 12H-13B. Back

10   And I can do no better than quote an English judge: "justice should not only be done but should manifestly and undoubtedly be seen to be done" per Hewart CJ in R v Sussex Justices, ex p McCarthy [1924] 1 Law Reports, Kings Bench Division 256. Back

11   The other notable example is the Supreme Court of Canada. It hears appeals from Quebec. Quebec law is essentially French based, compared to the Anglo-American law in force in the other provinces. Even in the Supreme Court of Canada, however, there is the requirement that there is a majority of Quebec trained lawyers. Back

12   For example, it is an axiomatic principle of the law of Scotland that the transfer of immoveable property, ie land, occurs only on registration: see Young v Leith (1844) 6 Session Cases, Dunlop's Series 370; (1847) 9 Session Cases, Dunlop's Series 932, affirmed (1848) 2 Ross's Leading Cases 103; Sharp v Thomson 1995 SC 455; Burnett's Tr v Grainger 2002 SC 580. Yet, when the point reaches the House of Lords, this axiomatic principle subject to uninformed criticism and unnecessary alteration: Heritable Reversionary Co v Miller (1892) 19 Session Cases, Rettie's edition, House of Lords pagination, 43; Sharp v Thomson 1997 Session Cases, House of Lords 66; Burnett's Tr v Grainger [2004] UKHL 8, especially per Lords Hoffmann and Hobhouse of Woodburgh. Back

13   Criminal Procedure (Scotland) Act 1995, (c 46) section 65(4)(a). Back

14   Criminal Procedure (Scotland) Act 1995, (c 46) section 65(4)(b). Back

15   R v HM Advocate 2003 Session Cases, Privy Council 21; [2003] 2 Weekly Law Reports 317. Back

16   AG's Reference, No. 2 of 2001 [2003] UKHL 68; [2004] 2 Weekly Law Reports 1. Back

17   The statistic is Lord Hope of Craighead's. See his article, "Taking the case to London-is it all over?" 1998 Juridical Review 135. Back

18   Scots law has also had to cope with two litigations of unprecedented length: the Lockerbie trial in the Netherlands and subsequent appeal; and the litigation arising out of the Piper Alpha disaster. Back

19   BBC correspondent Andrew Marr has labelled the phenomenon "Send for a Scots lawyer again!" See "Scots Law News, No. 349 available at <<>>. Back

20   This writer would in no way wish to suggest that any of the judges concerned have ever failed to discharge their onerous responsibilities with anything other than the highest standards of professional ability. Back

21   See eg Brown v Scott 2001 Session Cases, Privy Council 43. Here Lord Kirkwood, a Privy Councillor, but not a Lord of Appeal, sat. Back

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