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1876, which would be repealed by the Bill, the Appellate Committee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)
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
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.
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
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