Select Committee on Constitutional Reform Bill Minutes of Evidence

Memorandum by Lord President of the Court of Session and the Senators of the College of Justice


  1.  This paper has been prepared in response to the call for evidence by the House of Lords Select Committee on the Constitutional Reform Bill. It sets out the views of the Lord President of the Court of Session and the other Senators of the College of Justice who sit as judges of the Court of Session and the High Court of Justiciary. Reference may be made to the Appendix for previous public statements of the Lord President on the subject of the Bill.


  2.  The proposal for a Supreme Court of the United Kingdom has important constitutional implications. It is thought that the consultation process has been approached in an unfortunate manner for a change of this magnitude. It remains our view that a Royal Commission would have been an appropriate means to investigate whether any change is necessary and, if so, the merits of the various options for change. It is unfortunate that the question of the compatibility of the proposal with the Treaty of Union between England and Scotland and the Claim of Right has not been addressed.

  3.  The arguments for a Supreme Court of the United Kingdom are not convincing. First, they are concerned only with matters of perception, and appear to be technical and theoretical. Secondly, the proposal would involve the loss of significant benefits which flow from the fact that the members of the Appellate Committee are members of the House of Lords, these being benefits to them and to the House. Thirdly, the establishment and running of a Supreme Court would impose unjustifiable financial burdens, whether on the public purse or on individual litigants.

  4.  Under the Appellate Jurisdiction Act 1876, which would be repealed by the Bill, the Appellate Committee of the House of Lords is not a United Kingdom court but sits at times as a Scottish, and at times as an English, court of final appeal. Its decisions are of binding effect only in the jurisdiction from which the appeals have originated and are only persuasive in the other jurisdictions of the United Kingdom. Despite assurances from the Secretary of State for Constitutional Affairs that this would apply in the case of the proposed Supreme Court, there is no provision to this effect contained in the Bill.

  5.  This is part of a more general concern. In the past, and in particular in the 19th century, there was a tendency for members of the House of Lords whose experience was of English law, to assume that what was right for that law must be correct for Scots law. This led to the importation into Scots law of a number of doctrines of English law which were not consistent with the principles of Scots law. Despite the introduction of Lords of Appeal drawn from Senators of this College of Justice there have still been occasions when Lords of Appeal appointed from other jurisdictions have shown themselves to be unsympathetic to differences between English and Scots law. There is a clear risk that the creation of a Supreme Court of the United Kingdom may foster an attitude among the members of the court that the respects in which Scots law diverges from English law are of less importance than the perceived need to provide a solution to a particular issue that can be applied throughout the United Kingdom. Hence there is a risk of the progressive "anglicisation" of Scots law.

  6.  It is also proposed that the devolution jurisdiction of the Judicial Committee of the Privy Council should be transferred to the Supreme Court. This jurisdiction already results in anomalous situations in which judges whose training and experience have been in England have to make decisions relating to Scottish criminal trials. The transfer of this jurisdiction to the Supreme Court could result in devolution issues on matters touching on Scots criminal law being decided by a majority composed of English judges, and a growing influence of English law on its reasoning. We remain of the view that jurisdiction should remain with the Judicial Committee. It may be noted that in 1998 the policy of the Government was the devolution jurisdiction should be assumed by the Judicial Committee of the Privy Council rather than by the Appellate Committee of the House of Lords.

  7.  Our view is that, if there is to be a Supreme Court of the United Kingdom, it should have full corporate independence. The Supreme Court must be seen to be, and must act as, a court of the United Kingdom rather than a regional court. It is undesirable that it should be funded and administered by the Department for Constitutional Affairs, which is responsible for the funding of the English Court Service. This could lead to the Supreme Court being perceived as an English court. In addition, we are of the view that control over the administration of the Supreme Court by an arm of the executive would not assist in protecting the judiciary from any possible executive pressure: it would be at odds with the guarantee of judicial independence in clause 1 of the Bill. The proposal to increase fees throughout the lower courts to part-fund the setting up of the Supreme Court has implications for access to justice. We are not convinced that this is the appropriate approach. On the contrary, there is a serious risk that the administration of justice in the lower courts will suffer as a consequence of funds being taken away from them.


Clause 1 (guarantee of continued judicial independence)

  8.  Clause 1(1) imposes an obligation upon Ministers of the Crown and "all with responsibility for matters relating to the judiciary or otherwise to the administration of justice" to uphold the continued independence of the judiciary. Several particular duties in that respect are also set out.

  9.  By virtue of clause 102(1), clause 1 applies only in England and Wales. This would lead to a rather strange situation in which the Scottish Ministers, who are Ministers of the Crown by virtue of section 117 of the Scotland Act 1998, would be under an obligation to uphold the continued independence of the judiciary of England and Wales, but they would not be under a similar obligation in respect of the Scottish judiciary. Similarly, UK Ministers of the Crown would not be under any obligation to uphold the continued independence of the judiciary in relation to anything done in or as regards Scotland.

  10.  We are of the view that an amendment is required to extend the application of clause 1 to Scotland.

Clauses 6 (powers to make rules)

  11.  The Committee may wish to consider whether the rule-making powers to which this clause and Schedule 2 relate concern rules that would apply only in England and Wales. If such rules could apply in Scotland, Part 1 of the Schedule would require to be amended in order to give a role to the Lord President.

Clause 7 (powers to make directions)

  12.  Similar considerations may apply, as in relation to clause 6.

Clause 17 (the Supreme Court)

  13.  This clause establishes the Supreme Court and provides that it is to have a maximum number of 12 judges. This reflects the current composition of the House of Lords. By long-standing convention, two of the Lords of Appeal in Ordinary have held high judicial office in Scotland.

  14.  We are of the view that this clause should be amended to provide that the composition of the Supreme Court is to include at least two judges who have held high judicial office in Scotland. Where a Supreme Court judge who has held high judicial office in Scotland resigns, retires or dies, he or she should be replaced by another judge who has held high judicial office in Scotland. In our view such an amendment is necessary to protect the administration of justice in Scotland and the distinctive principles of Scots law.

  15.  There is a case that the Supreme Court should consist of 15 judges (with a consequential increase in the Scottish membership). This would assist in maintaining the collegiality of the court.

  16.  On any view there is a need for the Supreme Court to have the participation of a sufficient number of judges who have been trained in and gained experience of Scots law to deal with devolution issues from Scotland.

  17.  The title of "Supreme Court" is perhaps not appropriate, having regard to the different functions which the new court would exercise.

Clause 19 (qualification for appointment)

  18.  This clause provides that a person who has been a qualified practitioner for at least 15 years can be appointed as a judge of the Supreme Court. We appreciate that this reflects section 6 of the Appellate Jurisdiction Act 1876. However, in modern conditions the basic requirement for qualification to the Supreme Court should be that the candidate has held high judicial office. The Appellate Committee delivers judgments of the highest quality, which are read and respected throughout the world. We do not consider it to be appropriate that cases which reach the highest court of civil appeal in the United Kingdom should be decided by persons without any practical experience of decision-making at an appellate level. There is a strong argument that 2 years service in high judicial office at an appellate level should be an additional requirement. We are opposed to the provisions of clause 19(1)(b) and (2).

Clause 21 (selection of candidate)

  19.  The manner of appointment of judges is of primary importance to judicial independence. Sub-clause (2)(a) refers to "prescribed criteria", which are to be prescribed by the Secretary of State for Constitutional Affairs. We are concerned that, without there being any clear explanation for it, these criteria are not set out on the face of the Bill. The Bill is also silent as to whether the Commission will only be able to include in its list of candidates those who have applied for appointment or whether it will be able to include candidates whom the Commission itself has approached. This is an important issue for the Committee to address.

  20.  Sub-clause (2) requires the Commission to consult the "senior judges". The Lord President is the only Scottish-based "senior judge". If the Lord President were to be a candidate for appointment this would lead to a rather odd situation. We are of the view that the Lord Justice Clerk should be added to the list of people to be consulted. Moreover, where Scottish candidates are being considered, it seems somewhat anomalous that the Lord Chief Justice, the Master of the Rolls and the Heads of Divisions are to be consulted, whereas the only member of the Scottish judiciary to be consulted is the Lord President of the Court of Session.

  21.  Sub-clause (5) provides that the Minister, having been provided with a list of between 2 and 5 candidates, is to decide which of them "is the most suitable". It is undesirable that the ultimate choice between those who have been selected should lie with a politician, and hence be subject to being influenced by political considerations. Appointments to the Supreme Court are of such importance that any decision should be taken by the Prime Minister.

Clause 29 (acting judges)

  22.  Clause 29 provides that a person who holds high judicial office or is a member of the Privy Council and of the supplementary panel may, at the request of the President, act as a judge of the Supreme Court.

  23.  We consider that it would be preferable to increase the numbers of permanent members of the Supreme Court to minimise the use of the supplementary panel.

Clause 31 (jurisdiction)

Sub-clause (1)

  24.  Clause 31(1) states that the Supreme Court is "a superior court of record". This is not a term which has any recognised meaning in the law of Scotland. We are of the view that it should be made clear that clause 31(1) does not relate to the jurisdiction referred to in sub-clause (3).

Sub-clauses (2) and (3)

  25.  Sub-clause (3) states that an appeal will lie to the Supreme Court from any order or judgment of a court in Scotland if an appeal lay from that court to the House of Lords at or immediately before the commencement of the clause. This will mean that an appeal will lie to the Supreme Court from any final decision of the Court of Session unless the appeal is otherwise excluded by specific statutory provision.

  26.  Although the Bill sets out the appeals which are to be considered by the Supreme Court it does not currently seek to set out how those appeals are to be dealt with. Similarly, clause 35(1) provides that rules governing the practice and procedure to be followed by the court are to be made by the President of the Supreme Court. The Supreme Court, as a new statutory body, will therefore be empowered to determine how it will deal with appeals falling within its jurisdiction and the practices and procedures to be followed. There will be no statutory compulsion upon the Supreme Court either to determine appeals in a particular manner or to follow the previous practices and procedures of the House of Lords. The only matter which is determined by reference to the pre-commencement position is the jurisdiction of the court.

  27.  There are two important features about the way in which the House of Lords currently operates which are thought to provide a safeguard to the continued separate existence of Scots law. The first of these is that where the House of Lords is dealing with an appeal from the Court of Session it has been historically regarded as sitting as the Court of Session ie as a Scottish court (see, Elphinstone v. Campbell (1787) 3 Pat 83; Forbes v. Macpherson (1790) 3 Pat 177; and Dewar v. Mackinnon (1825), 1W & S 167). Accordingly, when determining an appeal from the Court of Session, the House of Lords applies Scots law.

  28.  The second of these is the fact that the decision of the House of Lords on an appeal from a particular jurisdiction is only binding in that jurisdiction. Thus a decision in an appeal from the Court of Session is binding only in Scotland although it may be of persuasive value in the English Courts. Similarly, a decision of the House of Lords in an English Appeal is not binding on the Scottish courts (see, for example, McDonald v. Secretary of State for Scotland 1994 SLT 692). This enables the inferior courts in the separate jurisdictions within the UK to continue to apply the law of their particular jurisdiction.

  29.  It is our view that there should be a provision in the Bill which will require the Supreme Court to determine Scottish appeals by reference to Scots law and to provide that a decision of the Supreme Court in an appeal under sub-clause (3) from a particular jurisdiction will only be binding in that jurisdiction. This protection is thought necessary to protect the separate identity of Scots law. In addition, the Bill should contain a provision that, in the determination of any appeal, the Supreme Court will respect the continuing separate identities of the different legal systems within the United Kingdom.

Sub-clause (4)(b)

  30.  This provides for the transfer of the jurisdiction of the Judicial Committee of the Privy Council in devolution issues. In regard to this jurisdiction also, the Bill should provide that the Supreme Court is to respect the continuing separate identities of the different legal systems within the United Kingdom.

Clause 94 (parliamentary disqualification)

  31.  We remain of the opinion that judicial membership of, and participation in, the proceedings in the House of Lords is beneficial to all concerned. We do not wish to rehearse our views on this matter and refer to our earlier comments.

23 April 2004

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