Law and change: Scottish legal heroes
Law and change: Scottish legal heroes

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Law and change: Scottish legal heroes

5 A UK Supreme Court

As you learnt in Week 1, the rule of law is one of the principles underpinning the UK’s constitution. One of the features of the rule of law is the separation of powers – that the executive, legislature and judiciary should all perform separate functions within the state. In this way they can act as checks and balances on each other and thus prevent the abuse of power.

This was not adhered to in its strictest sense for many centuries as the highest appeal court in the UK was formed from holders of judicial office in the House of Lords, the UK Parliament’s (the legislative branch) second chamber. This changed on 1 October 2009 when judicial power was transferred from the House of Lords to the newly created UK Supreme Court. At the time of writing, two of the Justices of the UK Supreme Court are Scottish – Lord Reed and Lord Hodge. Lord Lloyd-Jones and Lord Kerr are the first UK Supreme Court Justices to come from Wales and Northern Ireland respectively.

Figure 7 UK Supreme Court Parliament Square London

This move to a new UK Supreme Court was not without criticism as Activity 3 below shows. Activity 3 asks you to read an extract from the written evidence to the Select Committee on Constitutional Reform (UK Parliament).

Activity 3 UK Supreme Court

Timing: Allow about 20 minutes

Read the extract from the written evidence presented to the Select Committee on Constitutional Reform at the UK Parliament. Based on your reading of the extract, answer the questions below.

  1. Why had English law had little influence over Scots criminal law?
  2. What concerns are expressed about English judges hearing a Scottish appeal?
  3. In the conclusion, what view does the writer reach on ways to make the UK Supreme Court effective for Scots law?

Box 3 Written evidence to the Select Committee on Constitutional Reform

Box 3 Memorandum by Ross Gilbert Anderson

1.  INTRODUCTION

In his well-known work on the Law of the Constitution, the great English constitutional lawyer, Dicey stated that "it would be rash of the Imperial Parliament to abolish the Scotch law courts, and assimilate the law of Scotland to that of England. But no one can feel sure at what point Scottish resistance to such a change would become serious." In 1953, following the coronation of Her Majesty, the great Scottish judge, Lord Cooper of Culross, labelled such a view "exceedingly cynical"2 and suggested that an Advisory opinion from the International Court of Justice might be available if such a situation arose. Mercifully, the government's proposals for a new Supreme Court for the United Kingdom do not include a proposal to abolish the independent existence of Scots law. Nevertheless, the proposals, in their present form, pose a serious threat to the independent existence of the Scottish legal system. That is not to say that the status quo is ideal. Far from it. Indeed, some of the criticisms which follow are applicable mutatis mutandis to the present arrangements.

The Judicial Committee of the Privy Council now has limited jurisdiction over Scots criminal law. Prior to devolution, there had never been any London jurisdiction over Scots criminal law. Scots criminal law has therefore been little influenced by English law. One of the cornerstones of the Scottish criminal justice system has been the tight time constraints in which an accused must be served with the indictment (80 days) and brought to trial (110 days).There has never been such a culture, never mind statutory requirement, in England. In a recent case the issue in a Scottish appeal was whether unreasonable delay had led to a breach of the ECHR on the right to a fair trial. There were a majority of three Scottish judges on the committee. They were quite clear that the unreasonable delay had led to a breach of the convention. The English judges disagreed: one of the reasons being that such a decision would have catastrophic consequences in England, though English law was quite irrelevant to the appeal. Unfortunately, however, when the same point arose for decision in an English appeal, the English judges doubted whether the previous decision in the Scottish appeal was correct, much to the consternation of the Scottish judges, Lord Hope and Lord Rodger. The Scottish appeal was not, after all, binding on the court in the English appeal. There is no reason whatsoever why one result can be reached for Scotland and another for England; indeed, this has been the position in criminal law for the last three hundred years of union. With respect, it seems to this writer that the great problem with the present arrangements (which will be perpetuated in the proposed Supreme Court) is a great reluctance on the part of the English judges to do anything in a Scottish appeal other than reach the result that would be reached on the basis of English law. This is not surprising: that is the law in which they are trained and indeed expert.

6.  PRECEDENT

The foregoing point raises an important issue. The legal systems of Scotland and England both apply a principle of precedent, i.e. lower courts are bound by the judgments of higher courts. At the moment, a judgment of the House of Lords in an English appeal is binding only in England; judgments in Scottish appeals bind only Scottish courts. As was highlighted in the previous paragraph, differences between Scottish and English law do arise. Yet, nowhere in the Constitutional Reform Bill 2004 is there a guarantee that English judgments will not be binding in Scotland. This again highlights the problem of judges who are quite unqualified to pronounce on Scots law producing opinions which the Court of Session may then be bound to follow. A rigid system of precedent is not required to achieve uniformity between the laws of Scotland and England. Scottish lawyers make regular and often copious reference to English law. Often the results arrived at are the same in both systems. Rather, it is the way of arriving at that result which sometimes differs; and the chosen route can be very important for future legal development. The more flexible system of precedent advocated here would also allow different decisions to be reached in the small number of cases where differences do arise.

CONCLUSIONS

This comment has tried to make clear that Scots lawyers find the present appellate system highly unsatisfactory. Indeed, it may be that the present system, to be perpetuated by the Supreme Court, is itself in breach of the ECHR. If the Supreme Court is to inspire the confidence of the Scottish people, it must be comprised only of practising Scottish judges (paragraph 1). They should be appointed on an ad hoc basis (paragraph 7). This is something which has, to some extent, already begun: in some Privy Council cases, extra Scottish judges have been drafted in to ensure a Scottish majority. I would argue, however, that only a full bench of Scottish judges is sufficient to comply with the ECHR: otherwise, if there be disagreement among the Scottish judges, the opinions of unqualified judges will have the deciding vote. Finally, provision must be made to ensure that decisions of the Supreme Court in English appeals are not binding on Scottish courts (paragraph 6).21 April 2004

(House of Commons, 2004)

Comment

The writer in the extract expresses a number of concerns and is clearly unhappy with the way in which Scottish appeals may potentially be dealt with in what are, in effect, appeal courts staffed mainly by English Judges. There was no one way in which to answer the three questions but the main points were as follows:

1. The conclusion that English law has had little influence over Scots criminal law was drawn as prior to devolution there had been no jurisdiction over Scots criminal law in the appeal courts in England. The highest appeal court in relation to criminal law had been the High Court of Justiciary. However, when criminal matters now involve a matter of human rights, the highest civil appeal court could hear the case (the House of Lords and now the UK Supreme Court). This is staffed by a majority of English judges who have little or no knowledge and experience of Scots criminal law and Scots legal traditions. The writer provides an example of the differences in relation to the item constraints which exists in Scotland but not in England.

2. A number of concerns were expressed about English judges hearing a Scottish appeal. One of these was mentioned in relation to question one; English judges are not grounded in Scots law or Scots legal tradition. Another was that English judges may question a decision of Scottish judges without providing an opportunity for the Scottish judges to respond. An example was also given that a matter may be relevant to Scotland but that applying the precedent may cause significant issues in England, so the decision in a Scottish appeal case may therefore be questioned by English judges.

3. The views the writer reaches on ways to make the UK Supreme Court effective for Scots law include ensuring that decisions in English appeals are not binding on Scottish courts and that judges should be co-opted so that only Scottish judges hear Scottish cases.

The writer makes reference to the ‘English’ legal system. Whilst many texts make reference to the ‘English legal system’ the correct reference is to the legal system in England and Wales. The use of the shorthand ‘English’ leads to misconceptions, but an alternative has not yet been found.

Whilst some of the writer’s concerns have been addressed with the establishment of the UK Supreme Court, for example, there are two Scottish judges appointed as justices who sit in Scottish cases with one or more other judges. There is no full bench of Scottish judges.

Such significant constitutional change is relatively rare. The end of the twentieth century did, however, see an unusual number of constitutional statues enacted, ranging from those which enabled the UK to join the EU, as well as human rights protections and devolution. All these reflected and furthered change in society.

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