Memorandum by The Royal Society of Edinburgh
1. The Royal Society of Edinburgh (RSE) is pleased
to respond to the House of Lords Inquiry into the Constitutional
Reform Bill. This response has been compiled by the General Secretary,
Professor Andrew Miller and the Research Officer, Dr Marc Rands,
with the assistance of a number of Fellows with considerable experience
in this area.
2. In considering this Bill it is important to
recognise that there are separate jurisdictions and judicial systems
within the United Kingdom, and consideration needs to be given
as to whether the Government's proposal is compatible with the
Treaty of Union between Scotland and England and the Claim of
Right.
3. The specific sections of the Bill are now
addressed below.
PART 1: ARRANGEMENTS
TO REPLACE
OFFICE OF
LORD CHANCELLOR
4. Clause 1, seems to refer only to the English
judiciary and places on Ministers of the Crown a duty to uphold
the continued independence of the judiciary, as part of the proposed
arrangements to replace the office of the Lord Chancellor. However,
as a result, a Scottish Minister, being a Minister of the Crown,
would have a duty to uphold the independence of the English judges,
if he were involved in English proceedings, but not those of Scottish
judges. Similar treatment, therefore, should be given to Scottish
judges with Scottish Ministers also having a duty to uphold the
independence of Scottish judges involved in Scottish proceedings.
PART 2: THE
SUPREME COURT
5. The existence of a Supreme Court for the United
Kingdom is a potentially important symbol of the continuing unity
of the state post-devolution, but there are concerns over it acting
as a final appellate court rather than as a United Kingdom court,
addressing United Kingdom issues.
6. The Appellate Committee, in so far as it is
a court at all, functions, in effect, as an English Court or as
a Scottish Court, according to the jurisdiction from which the
appeal has come. Any decision of the Appellate Committee in an
English appeal is not binding in Scotland, and its decision in
a Scottish appeal is not binding in England. Therefore, it will
be vital that that the binding effect of a Supreme Courts' decisions
should be limited to the jurisdiction from which the appeal has
come, and that there are sufficient safeguards to preserve the
separate identity of the civil and criminal law of Scotland. The
Bill as it stands says nothing about the need to preserve the
distinct nature of Scots law and the separate existence of the
Scottish legal system, which is guaranteed by article XVIII of
the Treaty of Union 1707. Consideration, therefore, should be
given to including a clause in the Bill to the effect that nothing
in the Act affects the continuing commitment of the United Kingdom
to the distinct existence of separate legal systems within England
and Wales, Scotland and Northern Ireland.
7. In addition, to date, there have been only
a comparatively small number of Scottish appeals at the House
of Lords, and the even fewer which resulted in overturning the
Court of Session. Analysis of the Civil Judicial Statistics for
the last forty years shows that on average over that period there
have been seven to eight appeals per year. Of this small number
of appeals, only one or two of the seven or eight appeals achieved
a change in the decision of the case. It is therefore questionable
whether is it good for Scots law for some of its best lawyers
to be dealing mainly with cases to be decided under other laws,
and that their input into Scots law to be confined to seven or
eight cases per annum. Restricting the jurisdiction of the Supreme
Court to single market law and constitutional matters, including
Community law, human rights and devolution issues, should therefore
be considered.
8. It will also be important for a Supreme Court's
United Kingdom character, to be administered and funded by an
independent Supreme Court Service rather than by the Department
of Constitutional Affairs which is responsible for the English
but not the Scottish legal system.
PART 3: JUDICIAL
APPOINTMENTS AND
DISCIPLINE
9. Should Appellate matters be considered by
the Court, it will be important to ensure an appropriate proportion
of Scottish Judges are present when considering Scottish cases.
One curious aspect of the debate has been the way in which the
presence of an inevitable majority of judges unqualified in Scots
law on any Scottish appeal to the House of Lords has been presented
as a valuable corrective to the potential insularity of the Scottish
system. There is nothing to parallel this in other legal systems
and, although England & Wales sometimes has the benefit of
Scottish and Northern Irish input, that input is never in the
majority.
10. Therefore, three of the five judicial members
of the Supreme Court ought to be Scottish judges when dealing
with a case that comes from Scotland. In order to achieve this
you would either need to increase the number of Law Lords beyond
the present 12 (currently with two Scottish judges), or alternatively
ensuring that, when a Scottish case came before the supreme court,
every effort was made to ensure that a third Scot was there by
bringing an ad hoc judge into play.
11. In terms of the appointment of judges of
the Supreme Court, the proposed independent Judicial Appointments
Commission is to recommend a single candidate for each vacancy
and, before doing so, is to consult the Lord Chief Justice about
the candidate or possible candidates. We recommend that consultation
should also be made with Scotland's Lord President and Lord Justice
Clark of the Court of Session, when considering the appointment
of Scottish Judges.
12. The Secretary of State is then to be able
to appoint only candidates recommended by the commission. However,
he is to have the option of asking the commission to reconsider
its recommendation for appointment, "if the evidence suggests
that the recommended candidate is not the strongest candidate".
If due recognition is to be given to the independence and importance
of the Commission, its recommendation as to the strongest candidate
should prevail, except in exceptional circumstances.
PART 4: OTHER
PROVISIONS IN
RELATION TO
THE JUDICIARY
13. Clause 94 of the Bill extends the parliamentary
disqualification to judges of the Supreme Court and members of
the House of Lords while holding any of the judicial offices referred
to in clause 94(2), who will be disqualified from sitting or voting
in the House of Lords and its committees. While the removal of
the right to vote, is accepted, we question the need for removal
of the right to sit (and with it the right to speak).
14. Since devolution, much legislation relating
to devolved matters has been taken under Sewell motions at Westminster.
This removes the legislation from detailed scrutiny at Holyrood
and it heightens the importance of its receiving detailed scrutiny
in the House of Lords. However, only a few peers are skilled in
Scots law and practice and almost all of them are based in Scotland.
The Scottish Law Lords, who are regularly present, should also
be seen as a resource in this regard. There would therefore be
merit in enabling the Scottish members of the Supreme Court to
participate by allowing them to sit and speak in the House, particularly
in regard to legislation which affects Scotland.
PART 5: GENERAL
15. With regard to the question of the cost of
running the Supreme Court, the Explanatory Memorandum states that
costs will be apportioned between litigants before the Supreme
Court and those engaged in civil litigation before the lower courts
in England and Wales, Northern Ireland and Scotland. However,
fees are recovered from litigants in the Scottish courts under
regulations made under section 2 of the Courts of Law Fees (Scotland)
Act 1895, where the definition of "the Scottish courts"
does not mention the House of Lords, and there is no provision
for the recovery of fees payable in one of the courts listed in
the definition to be used to subsidise the cost of running another.
Therefore, the Bill will need to be amended to make provision
for the fees charged to litigants in the Scottish courts to be
surcharged by the amount needed to contribute to the cost of the
Supreme Court. However, the proposal is likely to be contentious.
Some litigants may be unable to go to a final court because their
case is not the sort of case that can be appealed to such a court;
and if a litigant's case can go to such a court, it may be refused
leave to do so. It would be unfair for litigants to have to suffer
the surcharge in these circumstances.
ADDITIONAL INFORMATION
16. Copies of this response are available from
the Policy Officer, Dr Marc Rands (email: evidenceadvice@royalsoced.org.uk)
or from the RSE website (WWW. Royalsoced.org.uk).
April 2004
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