House of Lords - Constitutional Reform Bill

Select Committee on Constitutional Reform Bill Written Evidence

Memorandum by Aidan O'Neill QC

SUMMARY

1.1 This paper looks at some of the more recent case law emanating from the House of Lords, and from the Judicial Committee of the Privy Council acting under its devolution jurisdiction. It points to certain tensions in the manner in which these two courts have been operating to date as courts for the whole of the United Kingdom. It suggests that, while the proposed amalgamation within the new UK Supreme Court of the devolution jurisdiction of the Privy Council with the existing appellate jurisdiction of the House of Lords is a necessary step, it is not a sufficient step to ensure constitutional coherence and stability for the Union. The paper proposes that, within the context of the current constitutional reforms, a new office within the UK Supreme Court be created, occupying a similar position that to that of Advocates General to the European Court of Justice. The primary function of this new office would be, prior to the Supreme Court's judgment, to draw to the attention of the parties, the court and the public at large the general implications of the Court's decision in the individual case before it, both for the separate jurisdictions making up the Union, as well as for the UK as a whole. The paper also suggests that it may be appropriate for this proposed new office of Advocate General to the Supreme Court to be involved prior to the hearing of individual cases in publicly advising the Court as to whether or not the case before it needs a larger bench than the usual five judge panel (as envisaged in Clause 32(2) of the Bill), and whether that bench should be required include particular or additional representation from the individual jurisdictions from within the Union (as Clause 29 envisages with its provision for "acting judges"). At the moment the reasons why the House of Lords or the Privy Council occasionally sits in panels larger than the normal five judges, or why, in the case of the devolution jurisdiction Privy Council, judges other than the current Lords of Appeal in Ordinary have been co-opted on to its bench, are not made public. In the interests of transparency and the maintenance of public confidence in an open and fair procedure, it would seem appropriate for the issues determining these decisions to be made more open and explicit.

2.THE PROPOSED AMALGAMATION OF THE DEVOLUTION JURISDICTION OF THE PRIVY COUNCIL WITH THE HOUSE OF LORDS

2.1 In its July 2003 consultation paper on proposals for a new UK Supreme Court, the UK Government suggested that the new court should combine the existing jurisdictions of the Appellate Committee of the House of Lords with the devolution jurisdiction of the Judicial Committee of the Privy Council. This proposal is now reflected in Clause 31(4) of, and Part 2 of Schedule 8 to, the Constitutional Reform Bill.

2.2 The suggestion that there be amalgamation of the devolution jurisdiction of the Privy Council with the existing appellate jurisdiction of the House of Lords was, however, rejected by the Law Lords in their published collective response to the Westminster Government's consultation paper. Although their Lordships accepted that it would be "consistent" with the role of the proposed new UK Supreme Court that "it should be the final arbiter of devolution issues", they noted that under the devolution statutes the Privy Council may, in effect, call in other judges to their bench "drawn from the devolved jurisdictions", who would not otherwise be eligible to sit as House of Lords judges. They suggested that this was a feature of the devolution settlement which the devolved administrations would not wish to see abrogated and accordingly, "with a measure of reluctance" concluded that the two jurisdictions should not be combined into the one UK Supreme Court.[94]

How the devolution jurisdiction of the Privy Council has been used in practice

2.3 Almost as soon as its new devolution jurisdiction was conferred on the Privy Council the judges in Scotland, in their enthusiasm to establish Convention right review, gave a very broad definition to "devolution issues" so as to encompass anything done by the prosecution in the course of any (summary or solemn) criminal trial in Scotland.[95] The Scottish judges also insisted that the fair trial rights set out in Article 6 ECHR imposed in Scotland duties directly upon the Lord Advocate and all those acting on his behalf in prosecuting offences.[96] There was some initial opposition to this analysis—notably from Lord Hoffmann[97]—in the first devolution cases to come before the Privy Council, but the more expansive approach to the Privy Council's devolution jurisdiction advocated primarily by Lord Hope soon prevailed.[98]

2.4 The overall result was, in the words of Lord Bingham, "anomalous" and "surprising and unexpected"[99] in that the Privy Council, when exercising its devolution jurisdiction, became a court—in which Scottish judges became a significant and at times dominant bloc[100]—dealing exclusively with cases coming from Scotland. The Privy Council in its devolution guise became, in effect, a second Scottish court of appeal, rather than a UK constitutional court, and dealt primarily with questions concerning the proper interpretation of Convention rights in ordinary criminal trials, rather than with broader constitutional issues.

2.5 In the five years of its existence there have been a total of 13 cases which have been considered by the Privy Council under its devolution jurisdiction. All of these cases have come from Scotland. Two of these cases have been preliminary hearings before a three judge panel considering applications for special leave to appeal to the Judicial Committee cases after such leave had been refused by the court in Scotland.[101] The remaining 11 cases have been substantive appeals before five judges. Of these substantive cases, only one has been a civil appeal from a decision of the Inner House of the Court of Session;[102] the remaining 10 being criminal appeals from decisions of the High Court of Justiciary.[103]

2.6 There were two Scottish judges in all of these cases, and in two of the substantive cases Scottish judges formed a majority of the Board. Lord Hope has sat in all 13 of the Privy Council's devolution cases to date. In only one of the 13 Privy Council devolution cases to date has a Privy Councillor who was not also a Lord of Appeal in Ordinary been called to sit on the Board of the Judicial Committee—Lord Kirkwood, a judge of the Inner House of the Court of Session, who sat in the second ever devolution case before the Privy Council, Brown v Stott (Procurator Fiscal, Dunfermline).[104]

2.7 Thus the only devolved administration which has been before the Privy Council in the five years of its devolution jurisdiction has, in fact, been the Scottish Ministers.

2.8 In their own response to the Westminster consultation paper, however, the Scottish Ministers do not appear to share the concerns voiced by the Law Lords in their opposition to the amalgamation of the Privy Council devolution jurisdiction with that of the House of Lords. In fact the Scottish Ministers state that, precisely in order to avoid the possibility of "conflicting judgments on important constitutional issues", they consider it "essential" that there be a single UK-wide court before which "all matters of a constitutional nature", such as devolution issues and all cases involving breaches of ECHR, whether arising under the Human Rights Act or by operation of section 57(2) of the Scotland Act, might be decided upon.[105]

Conflict within the House of Lords

2.9 It should, of course, be noted that the possibility of "conflicting judgments on important constitutional issues" coming even from one amalgamated UK Supreme Court remains if that new court follows the practice of the present House of Lords (as appears to be envisaged by Clause 32 of the Bill) and, from its full complement of 12 judges, normally sits in committees of five, rather than en banc as a full or plenary court. However, this practice has not, to date, made for a consistent line of judgments from the Appellate Committee in areas of some constitutional importance.

2.10 Thus in R v Lambert[106] a House of Lords bench made up of Lord Slynn of Hadley, Lord Steyn, Lord Hope of Craighead, Lord Clyde and Lord Hutton pronounced judgment on 5 July 2001 in a 4:1 decision (Lord Steyn strongly dissenting) finding to the effect that the relevant provisions of the Human Rights Act 1998 were not intended to apply to events which happened before October 2000 when the Act came into force and that, accordingly, decisions of courts or tribunals made before that date could not to be impugned under section 6 on the ground that the court or tribunal had acted in a way incompatible with Convention rights. This decision in Lambert was, as Lord Lloyd was to point out,[107] itself inconsistent with a previous 4:1 majority decision of the House of Lords in R v Director of Public Prosecutions, Ex p Kebilene[108], in which the majority had been made up by three of the same judges as in Lambert (Lord Slynn of Hadley, Lord Steyn and Lord Hope) together with Lord Cooke of Thorndon, (with Lord Hobhouse of Woodborough dissenting).

2.11 Just under five months after the decision in R v. Lambert on 29 November 2001 in R v. Kansal,[109] almost precisely the same House of Lords bench as in Lambert (the only change of personnel being that Lord Lloyd of Berwick replaced Lord Clyde) held by a 3:2 majority (Lord Lloyd of Berwick, Lord Steyn, and Lord Hope of Craighead) Lambert had, in fact, been wrongly decided. They considered that a defendant whose trial took place before the coming into force of section 7(1)(b) of the Human Rights Act 1998 should be entitled, after the Act had come into force, to rely in an appeal on an alleged breach of his Convention rights under section 22(4) of that Act. Notwithstanding that they considered that in Lambert the wrong decision had been reached on the question of the retrospectivity of the Human Rights Act, however, both Lord Lloyd and Lord Steyn took the view that there was no compelling reason which would require the House to depart from that earlier considered majority opinion. They therefore applied the rationale of Lambert, which they considered not only erroneous but plainly erroneous, to the facts of the case then before them. Only Lord Hope maintained that the Lambert majority (of which he had been part) had been wrong and that the decision should be departed from on the ground that their Lordships were in a developing field of jurisprudence, and therefore the sooner any mistakes were corrected the better.

2.12 An even more striking example, post-Lambert and Kansal, of continuing inconsistency between two benches of the Appellate Committee may be seen in comparing, on the one hand, the decisions in Regina (Middleton) v West Somerset Coroner and another[110] and Regina (Sacker) v West Yorkshire Coroner[111] with, on the other hand, the decision in In re McKerr.[112]

2.13 The cases of Middleton and Sacker were heard by a five bench appellate committee consisting of Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Walker of Gestingthorpe, Baroness Hale of Richmond and Lord Carswell between 2 and 4 February 2004. The decision in these two cases was pronounced on 11 March 2004. The Appellate Committee took the unusual step of giving its decisions in each of these cases in the form of a joint single judgment which was said to represent "the considered opinion of the Committee".

2.14 The appellate committee in In re McKerr also sat on 2 and 3 February 2004, and also announced its decision on 11 March 2004. The appellate committee in that case was, however, constituted by Lord Nicholls of Birkenhead, Lord Steyn, Lord Hoffmann, Lord Rodger of Earlsferry and Lord Brown of Eaton-under-Heywood. The unanimous decision in that case took the usual form of five individual speeches; unusually, however, all five judges made substantive speeches.

2.15 Middleton concerned a death in prison 14 January 1999; Sacker concerned a prison suicide on 7 August 2000; McKerr concerned the death in November 1982 of an individual who had been shot dead by members of the Royal Ulster Constabulary. All of these deaths pre-dated the coming into force of the Human Rights Act 1998 in October 2000.

2.16 In both Middleton and Sacker—following a line of case law established in its unanimous October 2003 decision in R (Amin) v Secretary of State for the Home Department[113] (which concerned the murder in March 2000 of a prisoner by his cell mate)—the Appellate Committee held that, in carrying out inquests into these deaths, the State was obliged under Article 2 of the European Convention of Human Rights to ensure that there was a full inquiry into and findings upon: the general circumstances of the death; the causes of the death; any steps which could have been, but were not, taken to prevent it; and any precautions which ought to have been taken to avoid or reduce the risk of death to individuals in similar positions. In McKerr, by contrast, the Appellate Committee held that the State had no such obligations in respect of any deaths which had occurred prior to 2 October 2000. Lord Nicholls' speech was the only one to mention—and that in a passing remark—the inconsistency between this approach and that taken by their Lordships in Amin, Middleton and Sacker:

R (Amin) v Secretary of State for the Home Department

R (Middleton) v West Somerset Coroner

2.17 Given that the decision in McKerr was an appeal from the Northern Ireland Court of Appeal, whereas Middleton and Sacker were each appeals from the Court of Appeal of England and Wales, it might be said that, strictly, the McKerr decision is binding only in Northern Ireland, whereas the approach taken by the House of Lords in Middleton and Sacker binds the courts of England and Wales. But it seems no way for a Supreme Court to operate as an institution presumably intended to strengthen the Union within the United Kingdom as a whole.

2.18 It might be noted, too, that, the five judge bench of the Appellate Committee in McKerr which overruled the unanimous decision of the Northern Ireland Court of Appeal (consisting of the then Lord Chief Justice Sir Robert—now Lord—Carswell, Lord Justice McCollum and Mr Justice Coghlin) contained no judge from the Northern Irish legal system, notwithstanding Lord Hutton's continued eligibility under the present rules to sit, post-resignation, as a Lord of Appeal until June 2007. The decision of their Lordships in McKerr can only add to calls already being made for wholly separate provision to be made for a new Northern Ireland Supreme or Constitutional Court, possibly even a cross-border institution with the Irish Republic's legal system, leaving the proposed new UK Supreme Court to be a Supreme Court at best only for Great Britain.[114]

2.19 The question as to whether and when the provisions of the Human Rights Act can be relied upon in relation to events which occurred prior to its coming into force is one of major constitutional significance. But, as a result of a continuing series of inconsistent and irreconcilable judgments from differently constituted five judge benches of the House of Lords, this whole question remains utterly confused, contrary to basic requirements of legal certainty. Such a situation cannot add to the reputation of the House of Lords as a judicial body. And if no effective national judicial remedy is permitted by the courts�even in the case of admitted or uncontested breaches of Convention rights by the State prior to the coming into force of the Human Rights Act�some harm may conceivably be done to the international legal standing of United Kingdom as a whole as a State founded upon and governed by the principles of the rule of law.

Conflict between the House of Lords and the Privy Council

2.20 And the possibility of "conflicting judgments on important constitutional issues"— which, as we have seen, had been anticipated by the Scottish Ministers in their response to the UK Government's consultation on constitutional reform—has also been realised as between devolution decisions of the Privy Council from Scotland and the appellate decisions of the House of Lords from England and Wales. This is plain from the incompatible decisions of, respectively, the Privy Council in November 2002 in HM. Advocate v "R" and of the House of Lords in December 2003 in Attorney General's Reference No 1 of 2001.

2.21 In H M Advocate v "R"[115] the Privy Council in its devolution jurisdiction considered the question as what remedy could be pronounced by the court where it was found that there had been a breach of his Article 6 Convention right to be brought to trial within a "reasonable time". The Board split 3:2, with the three Scots Judges—Lord Hope, Lord Rodger and Lord Clyde—forming a majority bloc on the Board in the face of robust dissent from Lord Steyn and Lord Walker to decide the following matters of law:

The scope of the Convention right

The remedy available under Scots law for breach of the Convention right:

no option

The procedure to be followed in seeking vindication of the Convention right:

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2.22 The two non-Scots making up the Board of the Judicial Committee in "R" (the South African educated Lord Steyn and the Englishman, Lord Walker) were clearly unhappy with this result fearing, perhaps, that the decision in the Scottish case would mean that a similar result would have to be reached in English proceedings: a result which the non-Scots appeared unwilling to countenance, given that the Strasbourg jurisprudence appeared to allow, rather than the quashing of all charges, a lesser remedy for breach of the reasonable time requirement, such as civil damages or a reduction in sentence. Lord Steyn was also unhappy that a decision which might, in effect, let the guilty walk free would be subject to adverse public reaction, and might bring the idea of the necessity for judicial protection of human rights into disrepute. He noted (at paragraph 18):

R v O'Connor

It is important to recognize that the Charter has now put into judges hands a scalpel instead of an axe—a tool that may fashion, more carefully than ever, solutions taking into account the sometimes complementary and sometimes opposing concerns of fairness to the individual, societal interests, and the integrity of the judicial system.'

The moral authority of human rights in the eyes of the public must not be undermined by allowing them to run riot in our justice systems.

2.23 Lord Rodger, speaking as part of the Scottish majority in the case, was equally robust in his response to Lord Steyn at paragraphs 128-9, 155:

"Parliament has quite deliberately treated the acts of members of the Scottish Executive differently from the acts of Ministers of the Crown. [I]n all such cases of positive acts by a member of the Scottish Executive the legal consequence of incompatibility with Convention rights is that the purported act is invalid so far as it is incompatible. That is the legal consequence which Parliament has chosen to attach to this situation�whether or not it is the consequence that would most suit the party who challenges the act.

[. . .]

If this is to use an axe rather than a scalpel, then Parliament has selected the tool. Your Lordships' Board cannot re-open the exercise that Parliament undertook and re-balance the competing interests for itself. Rather, it must loyally give effect to the decision of Parliament on this sensitive matter, even if—or perhaps especially if—there are attractions in a different solution."

2.24 The decision of the Privy Council in H. M Advocate v "R" would appear to have caused some general consternation within the higher judicial circles because it was then decided (under what precise circumstances is not known)—in an exercise that, from the outside at least, rather looks like "court packing"— to field a bench of nine judges to form the appellate Committee of the House of Lords to hear argument in Attorney General's Reference No 2 of 2001,[117] an English case on appeal from the Court of Appeal (Criminal Division).[118] This appeal concerned the same substantive Convention law/human rights questions as were considered in "R": whether criminal proceedings may�or indeed must�be stayed on the grounds that there has been a violation of the reasonable time requirement in Article 6 of the European Convention of Human Rights in circumstances where the accused cannot demonstrate any prejudice arising from a delay.

2.25 As we have seen, the Privy Council majority in "R" was of the view that any prosecution after an unreasonable delay would necessarily be Convention incompatible. Accordingly they held that, in the context of the Scotland Act, it would be ultra vires the Lord Advocate to continue with any such prosecution. In so deciding they effectively established that the incorporation of the European Convention of Human Rights into Scots law by the Scotland Act means that an individual has a positive right not to be prosecuted after an unreasonable time has passed regardless of any question of (un)fairness or prejudice.

2.26 In the decision of the Appellate Committee in Attorney General's Reference No 2 of 2001[119] seven of this unprecedented nine judge bench stated, quite unequivocally, that the previous year's majority decision of the Privy Council in H M Advocate v "R"[120] had been wrongly decided. The two dissenting judges from this House of Lords decision were the Scots, Lord Hope and Lord Rodger, who together with Lord Clyde had formed the Scottish majority in the earlier Privy Council case. Departing from the reasoning of the majority in "R", the House of Lords majority in Attorney General's Reference stated that it was not, in and of itself, contrary to the Convention for a criminal prosecution to be proceeded with against an individual, even after an unreasonable time has passed. Their Lordships' majority therefore held that the power to stay criminal proceedings on the ground of unreasonable delay may be exercised only if either a fair hearing was no longer possible, or it was for any compelling reason unfair to try the defendant.

2.27 Lord Hope and Lord Rodger—now forming the dissenting minority in Attorney General's Reference—were unsparing in their criticisms of the majority, accusing them of "emptying the reasonable time guarantee almost entirely of content" and of confusing the issue of whether the right has been breached with the wholly distinct question as to what remedy might properly be made available under domestic law in respect of any such breach. In this the majority were perhaps exemplifying what has been described as the "typical" English law approach of "fasten[ing] not upon principles but upon remedies"[121]8 in contrast to the approach characteristic of Scots law (and other Roman-canonical law based legal systems) of first establishing the content of the right and then determining the remedy which vindication of that right requires, as captured in the maxim ubi ius ibi remedium.

2.28 The House of Lords majority in Attorney General's Reference did accept that, notwithstanding their greater numbers, they had no jurisdiction formally to overrule the majority decision of the Privy Council in "R". They did, however. make clear their "preference" for the dissenting minority opinions therein expressed by Lords Steyn and Walker.

2.29 What the House of Lords majority did not consider, however, was the extent to which it is required by statute to regard itself as bound by the decisions of the Privy Council exercising its devolution jurisdiction, even when it disagrees with them. Section 103 of the Scotland Act, Section 82 of the Northern Ireland Act and paragraph 32 of Schedule 8 to the Government of Wales Act all assert the binding nature of decisions of the Judicial Committee of the Privy Council in proceedings under these Acts in all other courts and legal proceedings, (apart from later cases brought before the Committee). And the status of the House of Lords as a court subordinate to the Privy Council would appear to be confirmed by the provision in the Devolution Statutes for preliminary references on devolution issues being made from the lower courts to higher courts; a procedure modelled, in part, on article 234 EC (formerly article 177 of the EC Treaty). Provision is made specifically for the House of Lords to refer any devolution issues arising in judicial proceedings before it to the Privy Council "unless the House considers it more appropriate, having regard to all the circumstances, that it should determine the issue".[122] The House of Lords majority in Attorney General's Reference make no reference to these provisions, however.

2.30 What can be taken from this magisterial silence on the part of their Lordships' majority to statutory provisions apparently binding them to follow the Privy Council exercising its devolution jurisdiction? Is it that that the non-Scottish judges on the Appellate Committee have come to regard the Privy Council in its devolution guise as nothing more than a further Scottish appeal court rather than—as was arguably the original intent of the devolution settlement—a new court for the whole of the United Kingdom binding the new constitutional settlement together in the Union ? It might perhaps be argued that this is because the Privy Council, in its interpretation and application of Convention rights in its devolution jurisprudence to date, has decided matters simply under reference to Scotland, the only legal system from which its cases have come thus far, and has not taken full and due account of the impact of their rulings on all of the legal systems of the UK.

2.31 The silence of their Lordships on these fundamental constitutional matters is to be regretted.

3.CONFLICT IN THE TOP COURTS AND A DISUNITED KINGDOM?

3.1 The failure on the part of the House of Lords majority in Attorney General's Reference No 2 of 2001 to address the issue of the proper hierarchy of courts under the existing constitutional arrangements in fact highlights the very question�which of necessity has to be addressed in the context of the plans for a UK Supreme Court to replace the Appellate Committee�as to whether there can indeed be a United Kingdom court which overarches and unites the various distinct legal systems within the Union.

3.2 The judges of the Court of Session—in their response to the UK Government's consultation paper on the proposed new Supreme Court—went so far as to deny that one may meaningfully talk of there being any "United Kingdom law" (any more, perhaps, than there can properly be said to be "Franco-German law"[123]). This is, perhaps, to go too far, standing the harmonising influence of EU law across the United Kingdom and the fact that in many areas of law reserved to the Westminster Parliament under the Scotland Act 1998 (for example, social security, employment protection and discrimination law) a uniform approach is taken across the United Kingdom by UK tribunals acting on the basis of UK statutes.[124]

3.3 In any event, the Court of Session judges express their "strong opposition"—on the grounds that it would "be retrograde and damaging to the separate identity of Scots law"—to the suggestion in the consultation paper that the decisions of this new court should be considered as binding throughout the United Kingdom, as opposed to simply within that particular legal jurisdiction from which the appeal has come. Perhaps, indeed, the refusal by the majority of the House of Lords in Attorney's General's Reference to recognise the Privy Council when acting under its devolution jurisdiction as the supreme United Kingdom court whose decisions bind even the appellate committee in English appeals makes this very point.

Implications for Scotland

3.4 Where does this split between and within the UK's current top courts leave matters in Scotland? What is clear is that under the current constitutional structure a decision of the House of Lords in an English appeal on a criminal issue such as the Attorney General's Reference does not apply to, nor will it be regarding as binding upon, the Scottish courts, whether in criminal[125] or in civil cases.[126] In relation to delays in prosecution attributable to the Lord Advocate, then, the strict analysis given to the reasonable time provisions of Article 6 ECHR by the Privy Council Scottish majority in "R" remains binding upon the courts in Scotland.

3.5 Questions may arise as to whether or not the analysis of Article 6 ECHR by the Privy Council in "R" formally binds the Scottish courts in relation to cases involving unreasonable court delays which cannot be attributed to the Lord Advocate or the Scottish Ministers generally, for example where the delays are caused by the court itself or by the court administration.[127] If not, this would leave open, at least in theory, the possibility of the courts situated in Scotland developing a "third way" analysis of the reasonable time requirements of Article 6 ECHR distinct from either the House of Lords or the Privy Council, leading to further fragmentation of any notion of a uniform standard of human rights protection throughout the Union.

3.6 But it can be anticipated that the situation in which Article 6 ECHR is taken to mean one, or more, things in Scotland, but yet a third thing in England will not be allowed to continue for any extended period. One would expect the Lord Advocate (or, conceivably, the Advocate General, the Scottish Law Officer for the UK) to seek at the earliest opportunity to bring this issue back before the Privy Council. Mandatory references directly to the Privy Council may be made of devolution issues in proceedings in which any of the Law Officers are parties, on their application.[128] Alternatively, the matter may come to the Privy Council by way of appeal from or reference by the High Court of Justiciary acting as the Scotland's Court of Criminal Appeal. The Privy Council would not, of course, be bound to follow the House of Lords decision in Attorney General's Reference but it would seem that whether it does or not may well be determined by the composition and size of the Board of the Judicial Committee deciding the issue—and who decides that is not known. The spectre of more "court packing" inevitably raises its head.[129] Clause 32(2) of the Bill makes provision for the President of the Court to direct in any specific proceedings that the bench of the new Supreme Court should consist in a higher than normal quorum.

Implications for England

3.7 Where does this unresolved dispute between the two top courts leave matters in England? It would seem at least to open arguments (whether in applications to the European Court of Human Rights or before other courts) to the effect that a failure to give persons charged in England at least as good a remedy for breach of the reasonable time requirement in criminal prosecutions as is available to those charged in Scotland may itself be a breach of Article 14 ECHR which provides that "the enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as . . . race . . . national or social origin, birth or other status.". The English do, after all constitute a distinct racial group from the Scots for the purposes of the Race Relations Act 1976.[130]

Implications for the United Kingdom

3.8 And what of the situation for the United Kingdom as a whole? As a result of the Attorney General Reference (HL) v "R" (PC) split there is now no one court in the United Kingdom with the jurisdiction to ensure uniformity as regards the interpretation and application of Convention rights across the United Kingdom. The Privy Council decides matters on devolution issues for Scotland (and potentially also Wales and Northern Ireland), the House of Lords for England. But what rationale is there, then, for the Privy Council (or its successor the new UK Supreme Court) to continue in the newly assumed role of a court of final appeal in Scottish criminal matters (at least when the accused's Convention rights have been breached by the "acts" of the prosecution) ?

3.9 The review conducted by Lord Bonomy into the practice and procedure of the High Court of Justiciary recommended that, because of the delays and disruption caused to criminal trials in Scotland by the devolution issue procedure, the right of appeal under from decisions of the Scottish Court of Criminal Appeal to the Privy Council should now be withdrawn. He stated:

131

3.10 If this suggestion were taken up, it would "let Scotland be Scotland". The Scottish judges on the top courts seem to be happy enough to see a split between England and Scotland on fundamental rights issues.[132] This need not be a bad thing. The two countries have two distinct legal systems, and the system of criminal law in Scotland has been almost entirely uninfluenced by English law considerations for centuries. Different rights regimes within the same overall polity would conceivably set up the conditions for an inter-jurisdictional dialogue which can only be to the benefit of rights protection in a race to the better protection for individuals.

Appeal from Scotland to the new UK Supreme Court and the 1707 Acts of Union

3.11 The suggestion that Scotland and England might be allowed to go their own ways on fundamental rights matters (at least in relation to criminal law) is not one which apparently finds favour with the Scottish Ministers, however. They have not sought the change proposed by Lord Bonomy and instead, as we have seen, in principle they support the UK Government's proposals for a new UK Supreme Court absorbing the Privy Council's existing devolution jurisdiction.

3.12 On the question of Scottish representation on the new Supreme Court the Scottish Ministers state that:

"in relation to devolution issues under the Scotland Act, the new UK Supreme Court is the appropriate forum for final determination of all such matters . . . provided that appropriate arrangements are made to ensure that Scottish Judges sit in cases raising devolution issues",

while accepting that

133

3.13 It is clear, however, that the talk of further reform of the constitution and the creation in the proposed new Supreme Court of a new institution of the Union has stirred up anxieties in certain quarters in Scotland.[134] In their response to the Government's proposals the Faculty of Advocates has stated that

135

3.14 The Claim of Right of 1689 is a Declaration of the pre-Union Scottish Parliament—styled the Estates of the Kingdom of Scotland—asserting that James VII of Scotland (and II of England) had, by his conduct and religion, forfeited the right to the Crown in Scotland and that the throne had become vacant, thereby allowing the pre-Union Scottish Parliament to offer the Scottish Crown to the then King and Queen of England, William and Mary. The Claim declares that:

136

3.15 Otherwise, it reads as a profoundly sectarian document, excoriating Catholics and Catholicism[137] and, indeed, requiring the abolition of the episcopacy even over the reformed Scottish Church.[138] As the Lord Advocate, Colin Boyd QC has noted:

139

3.16 It is indeed somewhat surprising that any contemporary reliance should be placed upon this document as the basis for a claim for fundamental constitutional freedoms in our now properly pluralist and Convention rights-sensitive Polity. But the implicit suggestion from those relying upon this document seems to be that the right to appeal from the Court of Session to the pre-Union Scottish Parliament which was asserted in the 1689 Claim of Right was transformed with the 1707 Union into an unqualified right of appeal to the United Kingdom Parliament (without need for leave, whether from the Court of Session or from the House of Lords[140]). Although not fully stated, the idea would appear to be that any alteration in this now settled right of appeal from the Court of Session to the House of Lords would be contrary to the Claim of Right of the pre-Union Scottish Parliament[141] and thus (?) ultra vires the post-Union United Kingdom Parliament[142]—and, therefore, challengeable before the courts as unconstitutional. In the words of the Faculty of Advocates' response:

"Any attempt to create a Supreme Court which did not comply with these requirements would be contrary to the constitution of the United Kingdom, and any purported act in or affecting Scotland by such a Court would be unlawful and of no effect in Scotland."

3.17 The irony is, that any such claim would have to be tested before the Court of Session, and the parties involved would then have a right of appeal to the House of Lords which would then become iudex in causa sua in that it would have to determine whether the Westminster Parliament could lawfully abolish appeals from Scotland to itself as a Committee of the Westminster Parliament.

3.18 This studied legal antiquarianism all rather smacks of desperation, given that the pre-Union Scottish constitution was not one noted for its protection of what would now be regarded as the fundamental rights and freedoms of the individuals.[143]

3.19 But what it would seem that these references—to what are presented as the foundational documents of the constitution of Scotland—are intended to do is to make the non-Scottish parts of the Union stop and listen. The altering of settled constitutional arrangements resurrects many issues, and may exhume half-buried resentments or unarticulated unease. This is not something peculiar to Scotland. It applies equally to the debate over the terms of a new European Union Constitution and the place of the United Kingdom therein, as to the reform of the institutions of the United Kingdom and the place of its constituent nations therein. If you are altering the institutions of the Union then you have to have some view as to what sort of Union we have or want.

3.20 From the Scottish point of view, the United Kingdom is considered to be a union of nations, based primarily on an 18th Century compact between two equal contracting parties—the Scottish and English Parliaments—resulting in the dissolution of both institutions and the creation of new Union institutions; in particular the Westminster Parliament which does not have unbridled sovereignty but is, instead, to be understood as being bound by the original Eighteenth century institutions and instruments which created it.[144]

3.21 The impression one sometimes gets is that, insofar as the English think about these matters, the 1707 union was an incorporating union, under which Scotland was annexed to England. There is and was no equality. There is and was no binding contract. There is no limitation on the sovereignty or power of Parliament. As was submitted on behalf of the appellant to the House of Lords in 1876 in Mackintosh v Lord Advocate:

145

3.22 Such a constitutional analysis is not one which would be likely to go down well in present day Scotland, however.

Two UK Supreme Courts, One or None?

3.23 However one interprets the impact and continued relevance of the Treaty of Union and Claim of Right, for the sake of constitutional and democratic stability in post-devolution UK it is clear that the present structure of two top courts (in the House of Lords and the Privy Council) cannot continue. The Constitutional Reform Bill is premised on that finding.

3.24 It would appear, then, that we have two options. Either there is one Supreme court for the United Kingdom which, at the very least, combines the current jurisdiction of the House of Lords with the devolution jurisdiction of the Privy Council in a manner which properly has regard to the differing constitutional traditions existing within the United Kingdom; within this one court, the dialogue (and dialectic) between the approach of the Aristotelian judge (who insists that right decisions are and be reached by only following the rules) and the Platonists (who intuit the right result and then try and find a way to use the rules to get to that result) can be contained, and may continue in a manner while maintains constitutional stability within the multi-national state that is the United Kingdom. The alternative would be to consider the abolition of all appeals (whether criminal, civil or devolution issues) from Scotland and let England be England.

3.25 This latter option is one which seems to find some favour in the Scottish legal academic community on the basis that it will ensure that Scots law can develop in a manner uncontaminated by English law.[146] There is indeed an argument that with the re-establishment of a Scottish Parliament�which has established a public petitions committee to consider requests from individuals for the Parliament to express a view or introduce or amend legislation on a matter of public concern�the mischief complained of in the 1689 Claim of Right reference to the need for recourse to Parliament has now been remedied, and there is no longer any need to provide for further appeals to London from decisions of the Court of Session.

3.26 But the abolition of appeals from Scotland would, in my view, be a retrograde step and not one to be recommended if the intention is that the Union is to be maintained. Scotland is a small country and its legal system, lawyers and judges all benefit from appeals to London. It is psychologically very important for all judges to think that they may judged in another forum—the classic "quis custodiet ipsos custodes?" problem�so that even if they are not appealed against, they know that they might be, and their reasoning there analysed and held up to rigorous scrutiny.

3.27 It is arguable that the possibility of appeals to the House of Lords in civil cases from Scotland does precisely that, and keeps the judges of the Inner House sharp, less likely to fall into unreasoned prejudice, more careful in how and what they decide. The ECtHR performs a similar (but not as pervasive) a function for the House of Lords. So the rationale for even the unexercised possibility of second or third tier appeals is precisely to keep the judges focussed. From this practitioner's point of view coming from a small jurisdiction, it is also not unwelcome to be able to argue a difficult or controversial point before judges who are not known to one personally and are therefore unlikely to confuse the point being argued with the person arguing it. The possibility of getting into a broader UK legal forum can therefore be something a breath of fresh air for practitioners and judges and indeed the law of Scotland.[147] And indeed it is potentially very useful to argue before (and hear argument from) Platonist judges as well as from Aristotelians. The English legal system, too, benefits from having a comparativist outsider perspective on matters which can be brought by the non-English judges on the House of Lords bench.

4.CONCLUSION: A PROPOSAL TO MINIMISE JUDICIAL CONFLICT AND STABILISE THE UNION

4.1 How then to preserve the benefits of comparativism, while allaying the fears expressed by some Scots lawyers and judges that the integrity of the Scottish legal system would be undermined by a new United Kingdom supreme court? One possible solution might be to consider the appointment of comparativist amici curiae in cases coming to the new Supreme Court. Their task might be to set out before the court the relevant law as applies in the jurisdictions other than that from which the appeal is being taken, and then draw the possible implication of any decision of the court from an overall United Kingdom perspective. Thus, appeals from England might profitably have an amicus to present the position in Scotland while Scottish cases could be advised as to the position in England. It is noteworthy that already in purely English cases it would appear to be the custom of Lord Hope also to advise (albeit without the benefit, it would seem, of specific submissions from counsel on the matter) what the position is in Scotland and Scots law. In this way the whole Union perspective of the decisions emanating from a UK Supreme Court may be assisted.

4.2 The role played by these proposed comparativist amici curiae might be similar to that taken by the Advocate General before the European Court of Justice who seeks to place the submissions of the parties against the broader European perspective[148] or by the Commissaire du Gouvernement in proceedings before the French Conseil d'tat.[149] It is suggested that they might be given the title of Advocate General to the UK Supreme Court.

4.3 It should, of course, be borne in mind that the European Court of Human Rights has stated that "the right to adversarial proceedings means in principle the opportunity for the parties to court proceedings falling within the scope of Article 6 to have knowledge of and comment on all evidence adduced or observations filed, with a view to influencing the court's decision".[150] This would, then, require that the actual parties to the litigation have the last word and a proper opportunity to comment on the submissions of the comparativist amicus,[151] if so advised, since "in this context, importance is attached to appearances as well as to the increased sensitivity to the fair administration of justice."[152]

4.4 There is arguably, already, at least the beginnings of provision for the appointment of suitable comparativist amici curiae in Clause 34 of the Constitutional Reform Bill which provides as follows:

with the assistance of one or more specially qualified advisers appointed by it

(2) Any remuneration payable to such an adviser is to be determined by the Court unless agreed between the adviser and the parties to the proceedings

(3) Any remuneration forms part of the costs of the proceedings."

4.5 This provision of the Bill would require some amendment however, given that the role of the comparativist amicus would be to represent the general public interest in outlining the effects of a decision on (the constituent parts of) the Union, it would seem more appropriate that the costs of his participation should be borne not by the parties to the action but subsumed within the costs of running the court itself. But in any event, the proposed new position of Advocate General to the UK Supreme Court would encompass but go beyond the comparativist amicus role outlined above.

4.6 As a matter of fundamental principle, the public at large and the parties before the court are entitled to expect consistency from the court, particularly given that this is a court of final instance against which there is no appeal. Without consistency in court decisions, lawyers cannot properly advise their clients and individual cannot properly regulate their affairs. As should be clear from the review of the recent case law set out above, the current structures under which the House of Lords and the Privy Council do not seem to be ensuring this necessary consistency in approach, particularly on question as to how and when Convention rights may be relied upon before the courts by individuals against the State. Some more structural reform seems to be called for.

4.7 Further, provision is also made in Clauses 29 and 30 of the Supreme Court Bill for the appointment of "acting judges" to the UK Supreme Court from persons who hold high judicial office or are Privy Councillors who are members of a specified "supplementary panel". This provision is presumably primarily intended to allow for additional judges to be appointed to specific cases from individual jurisdictions of the Union to ensure adequate representation of that jurisdiction on the case in question. But the fact that additional acting judges may, on occasion, be called to sit on any particular case would itself tend to militate against a overall consistency in approach by the Supreme Court, since it is plain that the changing of the identity of even one member of the court can change the internal dynamic of decision making within the court and may potentially make the difference between a close minority decision becoming a majority decision.

4.8 So, it would appear that there is an overall general public interest in the interests of transparency and maintaining public confidence in the integrity of the court's decision in knowing when, how and why a particular bench of the court has been composed in the way that it has�why a larger bench than five is thought necessary in one particular case; why particular acting judges from Scotland and/or Northern Ireland or Wales or, indeed, England have been co-opted in another case.

4.9 It is suggested that the proposed new Advocate General to the UK Supreme Court could properly play a role on this issue. For example, once it is clear that a case is proceeding before the Supreme Court (whether because leave to appeal has been granted or a petition for appeal without leave duly lodged) it might be useful for the Advocate General to the Court to advise as to whether or not this case raises such issues as would be appropriate for a larger bench than normal to be assigned the case, or that the bench in question should contain at least two members from Scotland, say—whether full time members of the court or acting judges co-opted from the relevant jurisdiction. It is not suggested that the parties to the case should have any input into the composition of the bench (to avoid fears of court picking) but it would at least make it clear to the parties (and the public at large) why their bench is composed of seven or nine judges, and why some of these are acting judges, and/or why a number of the judges in question are Scots.

4.10 In sum, one thing seems clear: the conflict within the House of Lords and between the House of Lords and the Privy Council has made further reform of our top courts' structure inevitable. The status quo cannot be maintained on this matter. But if a more stable and lasting constitutional structure is to be achieved, it must be one which is not inconsistent with the historic constitutions of the Union, and of its constituent nations if it is to maintain the confidence of the people. This has, at the very least, to involve a formal recognition in the structure of the new court of the distinctive intellectual and constitutional history, judicial philosophy, and continuing national identity of Scotland, and a conscious and explicit acknowledgment that the Union of which the new UK Supreme Court will be a lynchpin is based on partnership among nations rather than presumed incorporation into the one nation that is "greater England".[153]

19 April 2004

"But the approach which that Act has taken is that the right of the accused to receive a fair trial is a responsibility of the Lord Advocate as well as of the court."

"[A devolution issue] arises only if the prospective infringement of their rights is an act of the Lord Advocate. It is therefore necessary to identify the persons upon whom Article 6.1 imposes a correlative obligation. Whom does it oblige to act in such a way as to ensure a fair and public hearing ? If, as a matter of construction of the Article, no obligation is imposed upon the Lord Advocate, then no complaint of an infringement of this particular Convention right can give rise to a devolution issue."

"When Scotland was united with England and Wales in 1707 it was clearly implicit in the Act of Union that there was no criminal appeal from Scotland to London . . . There was originally a doubt as to whether there was even a civil appeal from Edinburgh to London, but it was very quickly established that there was and indeed extensive use of it was made to such an extent that there was very little time to hear English appeals! But what is important is that the Scots criminal system has always been self-contained and has had no English input at all. One of the anomalous, and to me surprising and unexpected, results of devolution is that for the first time one does have judges, Scots prominently among them but nonetheless judges, sitting in London ruling on questions relating to Scots criminal trials."

(i) Montgomery v HM Advocate, 2001 SC (PC) 1—decision of Lord Slynn, Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Clyde, Lord Hope of Craighead, 19 October 2000 (Article 6 ECHR and pre-trial publicity);

(ii) Brown v Stott (Procurator Fiscal, Dunfermline), 2001 SC (PC) 43—decision of Lord Bingham of Cornhill, Lord Clyde, Lord Hope of Craighead, Lord Kirkwood and Lord Steyn, 5 December 2000 (Article 6 ECHR and the privilege against self-incrimination);

(iii) McIntosh v HM Advocate, 2001 SC (PC) 89—decision of Lord Bingham of Cornhill, Lord Hoffmann, Lord Hope of Craighead, Lord Clyde and Lord Hutton, 5 February 2001 (Article 6 ECHR, drug confiscation orders and the presumption of innocence);

(iv) McLean and another v Buchanan (Procurator Fiscal, Fort William) and another, 2002 SC (PC) 1—decision of Lord Nicholls of Birkenhead, Lord Hope of Craighead, Lord Clyde, Lord Hobhouse of Woodborough and Lord Millett, 24 May 2001 (Article 6 ECHR, legal aid and the equality of arms between prosecutors and criminal defence lawyers);

(v) Millar v Dickson, 2002 SC (PC) 30—decision of Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Hope of Craighead, Lord Clyde, Lord Scott of Foscote, 24 July 2001 (Article 6 ECHR and possible waiver of the right to an independent and impartial tribunal);

(vi) Dyer v Watson and Another and HM Advocate v K, 2002 SC (PC) 89—decision of Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Hutton, Lord Millett and Lord Rodger of Earlsferry, 29 January 2002 (Article 6 ECHR and the factors indicating unreasonable delay);

(vii) Mills v HM Advocate (No. 2) 2003 SC (PC) 1—decision of Lord Nicholls of Birkenhead, Lord Steyn, Lord Hope of Craighead, Lord Scott of Foscote, Lord Mackay of Clashfern, 22 July 2002 (Article 6 ECHR unreasonable delay between conviction and hearing of appeal and the remedy of a reduction in sentence);

(viii) R v HM Advocate, 2003 SC (PC) 21 —decision of Lord Steyn, Lord Hope of Craighead, Lord Clyde, Lord Rodger, Lord Walker of Gestingthorpe, 28 November 2002 (Article 6 ECHR unreasonable delay in bringing charges and remedies under the Scotland Act);

(ix) Clark v Kelly, 2003 2 WLR 1586; 2003 SLT 208, JCPC—decision of Lord Bingham of Cornhill, Lord Hoffmann, Lord Hope of Craighead, Lord Hutton, and Lord Rodger of Earlsferry, 11 February 2003 (Article 6 ECHR and the independence and impartiality of the District Court);

(x) Flynn and others v HM Advocate, [2004] UKPC D1�decision of Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Rodger of Earlsferry, Baroness Hale of Richmond and Lord Carswell, 18 March 2004 (Articles 5 and 6 ECHR tariffs for mandatory lifers).

"[A]n argument presented on behalf of the Advocate General that section 57(2) of the Scotland Act 1998 extended only to acts of members of the Scottish Executive, and not to the failure of a member of the Scottish Executive to act. Section 57(2) is in the following terms:

HM Advocate v R, 2003 SLT 4, where in the Privy Council Lords Hope and Rodger expressed the view, obiter, that the term `act' in section 57(2) did not include a failure to act. A contrast was drawn with other provisions of the Scotland Act, notably sections 52(4) and 100(4)(b) and paragraph 1(e) of Schedule 6; each of those provisions made express reference to a failure to act. Consequently the expression `act' dealt only with positive acts of the Lord Advocate. In response, counsel for the petitioner cited the opinions of Lords Sutherland, Coulsfield and Penrose in the Inner House in Clancy v Caird, 2000 SC 441, where it was held that the term `act' in section 57(2) covered a failure to act. In the latter case, it was indicated that once the Human Rights Act 1998 came into force in its own right an act was deemed to include a failure to act, which would avoid the problem in so far as breaches of Convention rights were concerned. Nevertheless, the court considered that there were serious practical difficulties in distinguishing an act from a failure to act, and it was pointed out that the reference to Community law in section 57(2) had no parallel in the Human Rights Act; consequently, a failure by the Scottish Executive to act in accordance with Community law would fall outwith the scope of the legal framework of the Scotland Act unless an `act' were construed as including a failure to act. Clancy v Caird was not cited in HM Advocate v R. I do think that it is necessary for me to express any view on this controversy. I have come to a decision in favour of the general position adopted by the Advocate General on a number of other grounds, and thus any view on this dispute would be plainly obiter. Moreover, the construction of section 57(2) raises difficult issues which are fundamental to the structure of the Scotland Act and where differing views have been expressed by a number of eminent judges. Any further opinion on those issues should be confined to a case where the proper construction of section 57(2) is essential to the decision."

"It would be unacceptable if German jurists, even distinguished members of the Bundesgerichtshof, sat in judgment in cases before the Cour de Cassation in Paris. Why is the House of Lords any different? While Scotland and England are politically united, Scots law and English law are legally separate (see, most recently R v Manchester Stipendiary Magistrates, ex parte Granada Television [2001] 1 AC 300 at 304 per Lord Hope of Craighead."

"Scots private law is markedly different from English private law, and indeed it is a devolved issue in the Scotland Act and it has its own definition as to what private law contains. The problem is, I think, if you describe the court as a supreme court of the United Kingdom, it tends to suggest that there is a body of United Kingdom law. In a court which inevitably is filled with a majority of English judges there may be a temptation to say, `Well, we see differences between Scots law and English law on issues relating to property or other matters, what's the point of having a difference when we're sitting as a United Kingdom court?' The Scots may well feel that would introduce a drift away from their system of law into an English system, and there are signs in case law, even now, that there is a temptation along that line. I think Scots are anxious that anything that will tend to dilute the present system, which maintains a distinctive Scottish appellate structure, will give rise to risks of losing the separate identity of Scots law."

"In our view it is not at all clear that if this issue had been fully debated before us the incorporation of Trident II in the UK's defence strategy, in pursuance of a strategic policy of global deterrence, would have been regarded as giving rise to issues which were properly justiciable. Chandler [v Director of Public Prosecutions [1964] AC 763, HL] remains binding authority in this court. Such developments as have taken place seem to have left untouched the status of the prerogative in matters relating to the defence of the realm. However, we have not been asked to dispose of the case on this basis, and we see no alternative but to reserve the issue for another occasion" (emphasis added).

"Lord Lester of Herne Hill asked Her Majesty's Government:

`Responsibility for determining the composition of the Judicial Committee of the Privy Council lies with the Lord Chancellor. However, for many years it has been the policy of successive Lord Chancellors in practice to delegate this responsibility to the senior Lord of Appeal in Ordinary. Thus it will be for him to determine which members of the Judicial Committee sit in the Privy Council to hear cases under the provisions of the Scotland Bill and the Government of Wales Bill.'"

"If there is a difference between the position in Scotland and that which may exist in England under the Human Rights Act 1998 that is a difference which has been prescribed by Parliament in the express enactment of section 57(2) in the Scotland Act 1998."

"That Erecting Schools and Colleges for Jesuits, the Inverting Protestant Chapels and Churches to public Mass houses and the allowing Mass to be said are Contrary to Law

That the allowing Popish bookes to be printed and Dispersed is Contrary to law

That the taking the children of Noblemen Gentlemen and others sending and Keeping them abroad to be bred papists The making funds and donations to popish schooles and Colleges The Bestowing pensions on priests and the perverting protestants from ther religion by offers of places preferments and pensions are Contrary to law

That the disarming of Protestants and employing papists in the places of greatest trust both Civil and military the thrusting out Protestants to make room for papists and the entrusting papists with the forts and magazines of the Kingdom are Contrary to law".

"That Prelacy and the superiority of any office in the Church above presbyters is and hath been a great and insupportable grievance and trouble to this Nation and contrary to the Inclinationes of the generality of the people ever since the reformations (they having reformed from popery by presbyters) and therefor ought to be abolished."

"For the reasons given by my noble and learned friend Lord Hoffmann I too would dismiss this appeal. I add only that it seems to me a great misfortune for Mr Buchanan that he was able to bring this appeal before your Lordships House without leave. Had leave been required assuredly it would have been refused and Mr Buchanan thereby saved a very great deal of expense."

"That the Court of Session or College of Justice do after the Union, and notwithstanding thereof, remain in all time coming within Scotland as it is now constituted by the laws of that kingdom, and with the same authority and privileges as before the Union; and that the Court of Justiciary do also, after the Union, and notwithstanding thereof, remain in all time coming within Scotland as it is now constituted by the laws of that kingdom, and with the same authority and privileges as before the Union, subject, nevertheless, to such regulations as shall be made by the Parliament of Great Britain, and without prejudice of other rights of justiciary."

"The principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish constitutional law. It derives its origin from Coke and Blackstone, and was widely popularised during the nineteenth century by Bagehot and Dicey, the latter having stated the doctrine in its classic form in his Law of the Constitution. Considering that the Union legislation extinguished the Parliaments of Scotland and England and replaced them by a new Parliament, I have difficulty in seeing why it should have been supposed that the new Parliament of Great Britain must inherit all the peculiar characteristics of the English Parliament but none of the Scottish Parliament, as if all that happened in 1707 was that Scottish representatives were admitted to the Parliament of England. That is not what was done. Further, the Treaty and the associated legislation, by which the Parliament of Great Britain was brought into being as the successor of the separate Parliaments of Scotland and England, contain some clauses which expressly reserve to the Parliament of Great Britain powers of subsequent modification, and other clauses which either contain no such power or emphatically exclude subsequent alteration by declarations that the provision shall be fundamental and unalterable in all time coming, or declarations of a like effect. I have never been able to understand how it is possible to reconcile with elementary canons of construction the adoption by the English constitutional theorists of the same attitude to these markedly different types of provisions."

"The blessings of the English Constitution, however, were not extended to Scotland [at the Union in 1707]. The Scotch consequently have no Magna Charta, no Bill of Rights, no Habeas Corpus . . . Personal freedom depends on the temper of the existing government, or rather on the discretion—peradventure the caprice—of the Lord Advocate. When that high functionary incarcerated a gentleman supposed to entertain dangerous political opinions, the Lord Advocate justified himself in the House of Commons by the proud boast that he represented the Scottish Privy Council, and that his powers were unlimited. Under the sway of a benignant sovereign Caledonian grievances have practically disappeared. But the grave question remains whether it is consistent with the dignity of an intellectual people that their political rights should depend on the clemency of the government."

"If difference of laws with an inevitable majority of non-Scottish members makes the House of Lords inherently unsuitable for Scottish criminal appeals, then the case is, if anything, stronger for private law appeals. One does not need to be a legal nationalist to see this."

"As a legal system in a small country on the edge of Europe, we must be conscious of the risk of becoming self-centred and inward looking. It would be very easy for us to fall into the trap of defining our unique legal qualities and character in a negative sense, of simply not being the same as others. Certainly we must protect and cherish and develop the many valuable features of our legal heritage. But the presence of Scottish judges in the supreme court, whether it is the current House of Lords or the proposed new institution, opens a two-way window for us into the world-wide family of common-law systems. In the same way the United Kingdom's membership of the European Union opens up for Scots lawyers opportunities of contributing to and learning from the differing systems of Continental Europe. This is not the time for Scots law to retreat into some kind of protectionist shell."

94 See "The Law Lords response to the Government's consultation paper on Constitutional reform: a Supreme Court for the United Kingdom" November 2003 at paragraph 9 (paper available online at http://www.parliament.uk/documents/upload/JudicialSCR271003.pdf) Back

95 See, for example the decisions of the High Court of Justiciary in Brown v Stott 2000 JC 328 and Starrs and another v Ruxton (Procurator Fiscal, Linlithgow), 2000 JC 208. Back

96 See, for example, Montgomery v HM Advocate, 2001 SC (PC) 1 per Lord Hope at pages 19G: Back

97 See, for example, Montgomery v HM Advocate, 2001 PC 1 per Lord Hoffmann at 7B-C: Back

98 See Aidan O'Neill "Judicial Politics and the Judicial Committee: the devolution jurisprudence of the Privy Council"[2001] 64 Modern Law Review 603-618. Back

99 Lord Bingham of Cornhill, evidence to the Joint Committee on Human Rights, 26 March 2001: Back

100 See further Aidan O'Neill "Judging democracy: Scotland's Constitution and Human Rights" in (2004) Edinburgh Law Review (forthcoming). Back

101 Hoekstra and others v Her Majesty's Advocate (No. 5) 2001 SC (PC) 37-decision of the screening committee comprising Lord Slynn, Lord Hope and Lord Clyde, 26 October 2000 and Follen v HM Advocate, 2001 SC (PC) 105-decision of the screening committee comprising Lord Bingham, Lord Hope and Lord Clyde, 8 March 2001. Back

102 Anderson v The Scottish Ministers, 2002 SC (PC) 63-decision of Lord Slynn of Hadley, Lord Hope of Craighead, Lord Clyde, Lord Hutton, Lord Scott of Foscote, 24 July 2001 (Article 5(1)(e) ECHR and the detention of persons of unsound mind). Back

103 The 10 substantive criminal appeal decisions are, in chronological order: Back

104 Brown v Stott (Procurator Fiscal, Dunfermline), 2001 SC (PC) 43. Back

105 See Constitutional Reform: Scottish Executive Response: Supreme Court for the United Kingdom" 14 November 2003, available online at http://www.scotland.gov.uk/about/JD/JD-BSU/00018515/SEresponse.pdf. Back