Memorandum by the Scottish Ministers
BACKGROUND
1. The purpose of this minute is to provide written
evidence on behalf of the Scottish Ministers in relation to that
part of the Constitutional Reform Bill proposing the establishment
of a new UK Supreme Court which is the subject of consideration
by this Special Select Committee of the House of Lords.
2. The Secretary of State for Constitutional
Affairs and Lord Chancellor provided written evidence to the Committee
and gave evidence on 1 April. Given the particular implications
of the creation of the new Court in Scotland and the Scottish
legal system, the Scottish Executive hope that it is helpful to
the Committee to set out their view in relation to the proposals
of the UK Government for the creation of the new Court.
VIEW OF
THE SCOTTISH
EXECUTIVE
3. In its response to the DCA consultation document
issued last July proposing the establishment of the new Court,
the Scottish Executive welcomed the proposals. The Executive agreed
that the right of appeal to the House of Lords on civil matters
which exists at present has served the Scottish justice system
well, building up a tradition of high quality and durable decisions
ensuring valued and valuable consistency throughout the UK. It
also noted the existence, since 1 July 1999, of a UK wide jurisdiction
in devolution issues for the Judicial Committee of the Privy Council,
deriving from the Scotland Act.
4. The Executive agrees with the DCA that, as
a point of principle, the separation of the roles of the Law Lords
as judges and legislators should be made explicit. This is consistent
with Lord Bingham of Cornhill's view as to the importance of establishing
a Court visibly separate functionally, institutionally and geographically
from either House of the legislature.
5. That separation should be transparent and
be sufficient to eliminate any concerns—whether real or
perceived—that Judges are not independent, impartial or
free from prejudice or bias.
6. The Executive has made clear (and in doing
so agrees with DCA) that there is no suggestion that the independence
of the Law Lords has been compromised. However, having Law Lords
sitting both as judges and as legislators gives rise to a risk
that the separation of their roles may not be perceived or properly
understood.
7. The Scottish Parliament had the opportunity
on 29 January to debate the proposals on an Executive motion and
voted to support the establishment of the Supreme Court.
IMPLICATIONS FOR
SCOTLAND
8. The Scottish Executive has given close scrutiny
to the proposals, having regard to their implications on the Scottish
legal system and to the need and desirability of preserving the
independence and integrity of Scots law.
9. At a constitutional level, the preservation
of the independence and integrity of Scots law is rooted in the
continuation of the separate existence of Scots law, as provided
for in the Act of Union.
10. The Executive believe that the Constitutional
Reform Bill properly respects the separate nature of Scots law
and the protections set out in the Act of Union. The Executive
agrees with the analysis by the Lord Advocate of the assertion.
that the establishment of a Supreme Court would not infringe the
Claim of Right and/or the Treaty of Union. His views were set
out in a lecture to the Law Society of Scotland on 21 January
(a copy is appended).
11. There are two strands to this which are
of particular importance. Firstly, the Scottish Executive has
carefully considered the administrative structures proposed with
a view to ensuring that, in terms of legal analysis, Scots law
does not become subservient to the law of England and Wales by
virtue of these proposals.
12. A concern has been raised in this respect
in connection with governance arrangements for the court proposed
by the DCA. This concern arises at a general (as opposed to a
peculiarly Scottish) level and was addressed by the written and
oral evidence given by the Secretary of State and Lord Chancellor
to the Special Select Committee.
13. The DCA has responsibility for the administration
and financing of the court system for England and Wales but as
the Secretary of State and Lord Chancellor has made clear in his
evidence to this Committee, the separate governance arrangements
for the Supreme Court do not, on any assessment, have the effect
of placing the Supreme Court (and so Scots law) subservient to
the court system for England and Wales. For that reason, the Scottish
Executive do not consider that the proposals, in relation to governance,
are contrary to the Act of Union.
14. Secondly, the Scottish. Executive is alert
to the fact that, as a general proposition, the current civil
jurisdiction of the Appellate Committee is not a unified jurisdiction
throughout the whole of the United Kingdom but comprises three
separate jurisdictions—Scotland, England and Wales, and
Northern Ireland—dependent on the court from which the appeal
to the House of Lords is taken.
15. In view of the Scottish Executive, the transfer
of the jurisdiction of the Appellate Committee to the new Supreme
Court does not in itself, have the effect, as a matter of law,
of merging those streams of jurisdiction. Accordingly, in future,
it will remain the position (to the same extent as at present)
that a decision in a case emanating from Scotland will be binding
in relation to Scotland but only persuasive in relation to England
and Wales (and vice versa).
16. As a transfer of the existing jurisdiction
in itself would not, in the view of the Executive, impact or impinge
upon those jurisdictions, the Bill does not at present have or
require an express provision preserving the current position.
17. Concerns have, however, been raised that
the creation of a Supreme Court will create a momentum towards
the idea of a unified body of UK law which will be inconsistent
with the maintenance of those two independent streams of jurisdiction.
The Secretary of State and Lord Chancellor, therefore, in. his
evidence to the Committee has indicated his intention to bring
forward an amendment to entrench the current degree of separation
of jurisdictional streams. The Scottish Executive support that
proposal.
NUMBER OF
SCOTTISH JUDGES
18. Moving on from constitutional issues, the
Scottish Executive would wish to address one further issue concerning
the way in which Scottish cases are to be dealt with by the new
Supreme Court. This issue relates to the number of Scottish Judges
who would sit as Supreme Court Judges and the question of whether
there should or could be a Scottish majority in all or some Supreme
Court panels hearing cases emanating from Scotland
19. At present, by convention no fewer than two
of the Judges appointed to the House of Lords are judges who have
held high judicial office in Scotland.
20. It is entirely a matter for the Government
(subject to the agreement of Parliament) to determine the number
of Judges sitting in the Supreme Court from time to time having
regard to the level of judicial business. The Scottish Executive
are content with the proposal that at commencement the number
of such Judges is to be 12 comprising the existing Lords of Appeal
in Ordinary. The Scottish Executive agree that, on that basis,
there should be no fewer than two suitably qualified Judges from
Scotland.
21. The Scottish Executive considers that it
is important that, for so long as there are 12 permanent judges
in the Supreme Court, the convention should be that at least two
should have held judicial office in Scotland. Were the qualifications
and practices to allow for lawyers who have not held judicial
office being appointed to the Supreme Court, then the requirement
would be for someone qualified in Scots Law who has practised
and was familiar with Scots Law. In any event the conversation
should be that there were at least two (out of 12) identifiable
Scots lawyers. Were the number to increase then consideration
should be given to increasing the nuumber of permanent Scots judges.
22. While the Executive does not consider it.
necessary to set out a minimum number on the facie of the Bill,
the Executive is concerned to establish a proper mechanism for
continuation of the convention. The Executive votes and welcomes
the commitment from the Secretary of State and Lord Chancellor
that the convention will be respected. The Executive is in discussion
with the DCA about the mechanism for enshrining the convention.
23. In most, though not all, cases before the
Privy Council a majority of the Board have been Scottish judges.
This arrangement is a product of the devolution settlement which
recognised the importance, and political sensitivity, of devolution
issues. The Executive believes that this system has worked well.
24. Accordingly the Executive would wish to see
a continuation of the arrangements whereby, where appropriate,
a majority of the court hearing a devolution issue, could be Scottish
judges. Where appropriate this cap. be extended to other Scottish
cases.
25. However the Executive believes that it would
be inappropriate to have a rule requiring that Scottish cases
always had a majority of Scottish judges. First the Executive
recognises that this has not been the rule to date Secondly it
would, in effect divide the court with the possibility that different
approaches were taken by different majorities of Scottish and
English judges. Thirdly it would be very difficult to arrange
where the court sat in larger panels of 7, 9 or even 11 judges.
26. So far as the appointment process is concerned,
the Executive agrees that appointment must be on merit. The Executive
agrees that the appointment process must be more open and transparent
and based on recommendations from an independent appointments
board. The Executive considers that it is vital that there should
he a consultation with the senior judiciary in Scotland (ordinarily
the Lord President of the Court of Session) and, at the appropriate
point in the process with the First Minister. The Executive is
in discussion with the DCA on the detail of the mechanism, particularly
on the issue of ensuring a continuation of the convention on the
minimum number of judges, referred to above.
SEWEL MOTION
27. The DCA proposals in relation to the creation
of a new Supreme Court impinge on the regulation of the Scottish
legal system insofar as they modify the appeal jurisdiction from
the Inner House of the Court of Session. Accordingly, the relevant
provisions of the Bill require the agreement of the Scottish Parliament
in accordance with the Sewel convention. The Executive is awaiting
the outcome of the Committee's consideration of the Bill before
seeking the consent of the Scottish Parliament by means of a Sewel
Motion.
CONCLUSION
28. Subject to that, the Scottish Executive
reiterate its support for the creation of a Supreme Court as an
effective measure of reform, modernising the court system and
reaffirming the independence and integrity of Sects law.
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