Select Committee on Constitutional Reform Bill Written Evidence

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,[38] the Scottish judiciary,[39] the Scottish Bar,[40] the Scottish Solicitors,[41] two Scottish Law Lords (one active[42] and the other retired[43]) and the relevant House of Commons Select Committee,[44] 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,[45] 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.[46]

  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 system."[47] 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"[48]

  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."[49] 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.[50] 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 is claimed.

  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 Bill—even 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 now—the independence of the Scottish court must be assured in the context of devolution and human rights,[51] 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.[52]

  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"[53]

  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[54] and the inception of "declarations of incompatibility" in the case of statutes that breach Human Rights legislation.[55] 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.[56] 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.[57] 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.[58] 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 and the discussions of the Scottish Parliament's Justice 2 Committee see as well as Himsworth and Paterson 2004 L.S. 99. Back

39   IbidBack

40   Response of the Faculty of Advocates Back

41   Response of the Law Society of Scotland Back

42   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

43   Response of Lord Clyde Back

44   Report available on Back

45   Lord Gray's Motion [Committee for Privileges] 2000 SC (HL) 46. Back

46   Lord Hope 2000 SC (HL) 46 at 60G. Back

47   Ibid. at 57I. Back

48   P 8 of Lord Advocate's speech 23 January 2004. Back

49   2000 SC (HL) 46 at 59C. Back

50   Even if, one might say "iudex casae summae est". Back

51   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

52   1953 SLT 255. Back

53   P 413, Dicey, Law of the Constitution (10th ed, 1961). Back

54   Factortame (No.2) [1991] 1 AC 603. Back

55   Section 4 of the Human Rights Act 1998 c 42. Back

56   [2001] EWCA Admin 934. Back

57   See eg Boyron In the Name of European Law: The Metric Martyrs Case [2002] European LR 771. Back

58   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

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