Memorandum by David Christie
1. Many of the commentators in Scotland
following the government's proposals to create a Supreme Court
for the United Kingdom have suggested that there must be measures
taken to prevent a breach of the Acts of Union 1707. Among others,
the Scottish judiciary,
the Scottish Bar,
the Scottish Solicitors,
two Scottish Law Lords (one active
and the other retired)
and the relevant House of Commons Select Committee,
have recorded their disquiet about the potential conflicts that
may arise in this case.
2. The main source of angst relates to the
effect of the proposals in connection with Article XIX of the
Act of Union. Interpretation of the Act of Union is difficult
given the age of the document and the complex context in which
it was drafted. In a decision of the House of Lords Privileges
committee (albeit one in which the opinions given were those of
Lords of Appeal) on Lord Gray's Motion,
the provisions of a different Article, XXII, of the Act of Union
were discussed. In interpreting the Article in question, it seems
clear that the Law Lords were looking to the purpose of the Act
in the context of the whole Union settlement.
3. Accepting that the Act should be given
a generally purposive interpretation, I would suggest that a gloss
of the article would be to protect the independence of the Scottish
court system. This is the core purpose of the article. When referring
to Article XIX in Lord Gray's Motion, Lord Hope described the
Article as for the "preservation of the Scottish juridical
The Lord Advocate's interpretation is:
4. "the real underlying purpose of
the provision has nothing to do with the place where the courts
sit: it is to secure that the Court of Session should not become
a part of the English judicial system"
5. It is pointless to go much beyond these
interpretations, as this would be to second guess the interpretation
of the courts on a highly sensitive area and as Lord Hope further
pointed out; "the matter [of interpreting the Act] is ultimately
one for the courts to decide."
This raises an important issue. Given the importance of the issue
and the arguments either way, it would seem clear that any arguments
relating to the new Supreme Court would be the subject of an appeal.
Where to? Eventually, to the Supreme Court. This raises a problem,
however, as surely the Supreme court could not decide on a question
relating to its own validity, after all nemo judex in sua causa.
If not, then where? Would the House of Lords Appellate Committee
have to reform? It is difficult to think of any other body, especially
if the Privy Councils jurisdiction is merged with that of the
Supreme Court who would be competent to decide on the matter.
Even if the case did go to the Supreme Court (or for that matter,
the Lords) then the make-up of the court would be crucial. The
convention is that Scottish cases have two Scottish judges sitting
on them, along with three others. The problems here are clear;
in deciding the effect of any new measures on the independence
of the Scottish judiciary, the final judgement will rest in the
hands of judges from the very legal tradition from which the independence
6. The concerns about the independence have
been raised by various bodies in various public discussions on
the proposals. I do not wish to go into them here but have drawn
out what I see as the main points from the various discussions
on the topic. They are essentially as follows:
A. The existence of a "United Kingdom"
Supreme Court suggests that there is a body of "United Kingdom"
law for it to adjudicate on. The fact that there is not is not
made clear in the Bill.
B. The funding arrangements do not seem to
give the appearance of independence either from the executive
or, for the purposes of this paper, from the Legal systems of
England and Wales. It seems strange that measures that are aimed
at strengthening the separation of powers do in fact have the
potential to weaken them.
C. The methods of appointment do not seem
to pay sufficient respect for the separateness and stature of
the Scottish Legal system.
D. The position of the Court may create a
physical link with the English Legal system, if it was based close
to buildings associated with the English legal profession; rather
than for it to be based within the United Kingdom context in which
it currently resides.
E. There is no protection for the Scottish
Legal system within the Billeven the current convention
that there will be Scottish representation on the Bench during
a Scottish Appeal is not guaranteed.
7. Whilst the consultation suggests that
one of the principle aims of the exercise is to maintain a degree
of continuity of jurisdictions it cannot be ignored that the functions
are being moved from one institution, the Parliament, to another,
a Supreme Court. The reasons why Scots law ended up as it did
with a civil appeal to the House of Lords but no criminal appeal
are convoluted and beyond the scope of this essay. They were satisfactory
in the context of the Act of Union. With the new arrangements,
the question of whether or not the arrangements comply with the
Act of Union must be asked again. It is not sufficient to assume
that a new institution can and will, automatically, take on all
the features of the previous one. Furthermore, this question must
be asked on the basis of the facts as they are nowthe independence
of the Scottish court must be assured in the context of devolution
and human rights,
not merely under the considerations of the past.
8. The problem for Scots Law is that under
the doctrine of Parliamentary Supremacy there does not seem to
be any protection for it, if Parliament were to legislate contrary
to the Act. Many parts of the Act have already been repealed.
9. There is, however, a view that parliamentary
supremacy would not strike at Article XIX as it did with other
parts of the Act of Union. Article XIX, in protecting the Scottish
judiciary strikes at a fundamental condition of the Union while,
by contrast, Article XXII does not, since it is more concerned
with the cosmetics of the new Parliamentary set up. The importance
of Article XIX is clear from the context of the Union in 1707
(as providing a sop for parts of the establishment which otherwise
oppose the Union); the words of the Act itself and from the treatment
it has been given by the courts.
10. The very text of the Act of Union also
makes the importance of Article XIX clear. As will be seen from
the quotation of Article XIX, the words "in all time coming"
appear. Even these "words of irrevocability" would not
prevent Parliament from legislating against the Article; but they
do show its importance. It should be noted that, by contrast Article
XXII has no such words in it.
11. These factors have been taken, in some
parts, to show that Article XIX does impact on Parliamentary Supremacy.
It is impossible for Parliament to legislate contrary to it because
to do so would be to remove one of its own fundamental preconditions.
The locus classicus of this opinion is found in the obiter
dictum of Lord President Cooper in the famous case of MacCormick
v Lord Advocate.
12. However, even if it was accepted that
Article XIX were theoretically irrevocable, the doctrine of Parliamentary
supremacy would bite again. Traditionally, there is no remedy
available from the courts to strike down primary legislation.
Parliament is supreme in that it supersedes the role of the courts.
It is uncertain what remedy there would be in the event of a breach
of an Article of the Union. This is the orthodox view, but the
last few years have revealed that this is changing. The trouble
with any Act of Parliament is, however, that it cannot apply itself.
This is left to the courts. Essentially the doctrine of parliamentary
supremacy is a rule of interpretation. As Dicey said: "Parliament
is the supreme legislator, but from the moment Parliament has
uttered its will as law giver, that will becomes subject to the
interpretation put upon it by the judges"
13. The final interpretation is for the
courts. In recent times, some remedies have been developed to
give effect to changing situations. We have seen the House of
Lords grant an interim remedy over the functioning of a statute
that breached European Community Law
and the inception of "declarations of incompatibility"
in the case of statutes that breach Human Rights legislation.
I would suggest that it would be possible for the Court to declare
a statute as being inconsistent with the legal order set out in
the Act of Union. The basis for this is doubtful. In practical
terms, however, this declaration would not have to take the form
of tradition final interlocutor in the case but could be a statement
in the judgement, with reasons. It would practically impossible
for Parliament to ignore such a statement. If it did, then this
would cause new problems.
14. If this was considered beyond the courts
there is a further development. This has come from the common
law in the form of the doctrine of "fundamental rights"
set out by Laws LJ in his judgement in the English Court of Appeal
in the Metric Martyrs case, Thoburn v Sunderland City Council.
Laws LJ has, in this judgement, reinterpreted the traditional
doctrine of Parliamentary supremacy to fit the change in circumstances
brought about by the changes to the UK's constitution over the
last thirty years or so.
He says that there are certain statutes that cannot be impliedly
repealed by Parliament. At the same time, it does not change the
essence of the doctrine: that Parliament can do what it wishes
as long as it does not bind its successors. It recognises that
there are some Acts that cannot be repealed accidentally, as the
doctrine of implied repeal allows (although it would never be
admitted that such an occurrence was accidental). What these Acts
actually are and how an Act qualifies as a constitutional statute
are questions beyond the scope of this essay. Suffice to say that
the Acts of Union are mentioned explicitly by Laws LJ and notwithstanding
that fact, surely must be considered to be "constitutional"
in their status.
15. The effects of this doctrine on the
current discussion are two-fold. Firstly, it further bolsters
the status of the Act of Union against the doctrine of Parliamentary
supremacy. Secondly, and more importantly, it shows a way through
the issue for both courts and Westminster.
16. If the "fundamental rights"
doctrine expounded by Laws LJ, is read in conjunction with the
dicta in MacCormick, it is argued, it would be impossible
for the Supreme Court statute to impliedly repeal Article. The
guarantees of Article XIX would prevail over the newer legislation.
This would not be a new remedy that the court was applying, merely
a new rule of interpretation, following Laws LJ decision in Thoburn.
17. This does not leave Westminster powerless,
however. Indeed, it would be undesirable if that were the case.
The time may come when an independent Scottish legal system or
indeed a single, united, kingdom of Scotland, England, Wales and
Northern Ireland is no longer needed or desirable. It would be
wrong to keep it going because we were locked into it by the Act
of Union. Since Laws LJ's doctrine is based within the concept
of parliamentary supremacy, there is a path through this difficulty.
If Parliament wished to repeal Article XIX, according to Laws'
reasoning, it must do so expressly. In order to ensure that part
of the Supreme Court legislation does not fall foul of the "fundamental
rights" doctrine, therefore, the statute will have to expressly
disapply Article XIX at any point in which there may be conflict.
18. Thus, the path is clear. If any part
of the Supreme Court statute is inconsistent with Article XIX
(or any other "fundamental" legislation) it will not
be considered to repeal that Article, unless the statute expressly
states that it is doing so.
38 As will be evident from an examination of some
of the other responses on www.dca.gov.uk/consult/supremecourt/responses
and the discussions of the Scottish Parliament's Justice 2 Committee
see www.scottish.parliament.gov.uk/justice2 as well as Himsworth
and Paterson 2004 L.S. 99. Back
Response of the Faculty of Advocates www.dca.gov.uk/consult/supremecourt/responses/sc051.pdf. Back
Response of the Law Society of Scotland www.dca.gov.uk/consult/supremecourt/responses/sc088.pdf. Back
Lord Hope of Craighead's concerns have been widely reported see
eg the Report of the House of Commons Select committee on the
constitution infra at n.8. Back
Response of Lord Clyde www.dca.gov.uk/consult/supremecourt/responses/sc030.pdf. Back
Report available on www.publications.parliament.uk/cm200304/cmselect/cmconst/48/4802.htm. Back
Lord Gray's Motion [Committee for Privileges] 2000 SC (HL) 46. Back
Lord Hope 2000 SC (HL) 46 at 60G. Back
Ibid. at 57I. Back
P 8 of Lord Advocate's speech 23 January 2004. Back
2000 SC (HL) 46 at 59C. Back
Even if, one might say "iudex casae summae est". Back
For a criticism of the past arrangements as affecting Human Rights
legislation see Anderson, Ross Appeals to London and Human
Rights 2003 SLT 297. Back
1953 SLT 255. Back
P 413, Dicey, Law of the Constitution (10th ed, 1961). Back
Factortame (No.2)  1 AC 603. Back
Section 4 of the Human Rights Act 1998 c 42. Back
 EWCA Admin 934. Back
See eg Boyron In the Name of European Law: The Metric Martyrs
Case  European LR 771. Back
Presumably. Having said that it would surely be likely that the
Supreme Court statute would be "constitutional" as well
and I wonder if there is any different rule governing a clash
of two constitutional statutes?. Back