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.