Justice 2 Committee, 16 Mar 2004

Meeting date: Tuesday, March 16, 2004

Official Report 281KB pdf

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Constitutional Reform Bill

I welcome members to the Justice 2 Committee's 11th meeting this year. We have apologies from Colin Fox and Nicola Sturgeon.

Agenda item 1 is the Constitutional Reform Bill, for which I welcome on the committee's behalf two familiar faces from the Law Society of Scotland: Michael Clancy, who is the law reform department's director, and Gerard—or Gerry—Brown, who is the criminal law committee's convener. Members should have a copy of the correspondence from the Law Society.

Gentlemen, I thank you for attending the meeting. I do not know whether you want to make an initial comment. As we have your paper, do you want to let us proceed with general questions?

We can just fire ahead.

I appreciate that; that is helpful. I will ask a general question. I notice from the letter that you sent for the legislative process down south that it seems to be accepted that the present position is not all that bad, but that the new proposals add something. Has a demonstrable case been made for the change? As a professional society, would the Law Society have otherwise called for change, or is it simply commenting on a proposal?

It is fair to say that we are commenting on a proposal. When the Government made the announcement last June, we took the view that a supreme court would be created. When the Department for Constitutional Affairs published the consultation paper, we took the view that Whitehall had decided that there should be a supreme court, so we are not really in a position to comment on the principle.

That said, when the Scotland Bill was considered in 1997, we said that there might be room to establish a constitutional court to deal with matters such as devolution issues. Of course, that suggestion was not taken up. Instead, the Judicial Committee of the Privy Council was the preferred option.

We did not call for the supreme court, but now that it has been proposed in a bill and is something that the Government has set its sights on and has made a commitment to establish in the Queen's speech—it reinforced that commitment at the second reading debate in the House of Lords last week—we must live in the real world.

At the risk of treading on the toes of one of my colleagues—I realise with apprehension that they might be Jackie Baillie's toes—I point Mr Clancy to a sentence in his letter of 2 March, which says in relation to clause 17:

"The creation of the court will reinforce the doctrine of the separation of powers."

Are you satisfied that the bill's provisions on the appointment of judges, for which final responsibility will rest with a minister, achieve that desired separation of powers?

When considering the current situation, many theorists could reflect upon constitutional writers stretching back to Montesquieu who, in book 11, chapter 6 of his "De l'esprit des lois"—I see a shocked look on the convener's face—explained:

"Il n'y a point encore de liberté, si la puissance de juger n'est pas séparée de la puissance législative et de l'exécutrice."

I think that I can safely say that none of the committee will be intimately acquainted with the document, so please feel free to enlighten us.

Neither was I until half an hour ago.

You could hardly believe that we had almost the same education.

We are impressed.

Montesquieu was saying that there is no liberty if the power to judge is not separated from legislative and executive powers. If the power to judge is joined with the legislative power, the power over the life and liberty of the citizen will be arbitrary.

There has been a long and extensive flow of philosophical and constitutional thought—stemming from 18th century writers and going right down to Lord Justice Bingham, the campaign organisation Justice and the constitution unit—that says that the separation of powers is one of the best ways of maintaining and supporting the liberty of the citizen. It is a long and well-respected constitutional track, and that is the context in which we approached the subject.

You might ask why all that has resonance now and why, if there has been no separation of powers, we are not all in bondage. One of the reasons for the change in attitude is that the situation in our country has changed. We have devolution under the Scotland Act 1998 and the Government of Wales Act 1998, and the Human Rights Act 1998 has changed the way in which legislators and judges deal with legislation. Issues arise from the implementation of the European convention on human rights that place judges in quite a different position from before. The lords of appeal in ordinary acknowledged that when, in June 2000, they established a self-denying ordinance that they would not speak in debates in the House of Lords on matters of controversy or on matters on which they were likely to end up making judgments. That is part of the issue; things are changing and have changed. That is why we think that the separation of powers might be more appropriately enforced.

Are you entirely content with the mechanism for the final appointment of a judge under the bill's proposals?

The bill needs to have a lot of clear scrutiny.

The issue is the selection procedure. As I understand it, the ad hoc commission for senior appointments will refer between two and five candidates, and the minister will make a recommendation to the Queen. That is not the normal constitutional convention. We do not have a procedure where commissions of appointment across our constitution recommend directly to the Queen. That could be a subject for debate in another forum.

In our response to the Department for Constitutional Affairs consultation, we recommended that the recommendations of the ad hoc commission should be made directly to Her Majesty and not through a minister.

Appointments should be made by the Queen.

Yes, directly.

At present, the House of Lords is the final court of appeal in civil cases. What are the main advantages of that system? Are there any advantages that should be protected if a supreme court is established?

The number of civil appeals to the House of Lords is not substantial—I am sure that you already have information on that. If the member is referring to the protection of Scots law, I advise her that custom has it that, in civil appeals, prime judgments are normally made by Scottish judges. Prior to introduction of the bill, following a consultation process, there was not perceived to be any major clamour for change. The whole issue was hotly debated—if that is not a contrary comment—in the working party, and contrary views were put on whether the proposal could change and on bringing matters back to Scotland, extending them to England and Wales, extending them to London, and so on. We came down in favour of the status quo because we felt that the system was working and provided Scotland with the appropriate decisions in important case law.

It is important to note that, if an issue is of such importance that someone would consider taking it to the House of Lords, fundamental questions of law are involved. One can point to many cases in which the House of Lords has provided a decision that creates a just view of the law. For example, in the famous case of Donoghue v Stevenson—the so-called snail in the ginger beer bottle case, which most, if not all, people who have ever been to Paisley will know about—the Court of Session denied Mrs Donoghue the opportunity to have recourse against the manufacturer of the polluted ginger beer. It was the House of Lords that gave her that opportunity and that gave the opportunity for the law to develop so that manufacturers' liability could be extended, enabling us all to live in an environment in which manufacturers are held liable for their misdeeds or for failures in their systems. The duty of care that underpins all that was clearly enunciated by Lord Atkin. Therefore, there is clearly a value in having a superior court to hear cases of such great importance and to give definitive and authoritative decisions.

The important fact is that when the Appellate Committee of the House of Lords makes decisions on matters of Scots law, it acts as a Scottish court. That is not a proposition without controversy—some people have maintained that it is really an imperial court making imperial decisions. Nevertheless, the general thrust of opinion would accord that it is a Scottish court making Scottish decisions that are binding on Scottish courts lower down the track. That is an important fact to acknowledge, and we would expect the supreme court, in deciding cases that emanate from Scotland, to be viewed in the same way. Likewise, in deciding cases that emanate from England and Wales or Northern Ireland, it will have a different character, particularly in relation to the effect that such decisions have—whether they are binding or merely persuasive. We think that decisions in cases relating to England and Wales or Northern Ireland should be only persuasive in Scotland.

The famous Paisley case obviously had a resonance in the whole of the United Kingdom. What is your view on the suggestion by some who practise the law that civil cases should be taken to appeal in the House of Lords or the new supreme court only when the issues that they raise relate to the whole of the United Kingdom rather than to the implementation of Scots law or Scots jurisdiction?

That is a very interesting point. We used to refer to Scots Law Times cases or Session cases, but now cases from all over Europe and the Commonwealth are referred to. That helps in decision making. I wonder whether the point that Karen Whitefield raises would result in decision making being too restrictive.

The Lord President gave the example of a decision on a UK tax law statute. If it originated from a Scottish source, it would be considered binding in Scotland but not in England—although it would be considered highly persuasive in England. Obviously, that is because guidance would be required from the other jurisdiction. There are differences in the common law; and, even when there is a statutory interpretation, there can be elements of consideration of the purely Scottish common law.

Let us say that we have two separate litigants—Gerry Brown and Michael Clancy—before the Court of Session. My case relates to the fact that my limited company—Clancy Enterprises Ltd—has a clause in its memorandum and articles of association that does not allow me to give evidence at the Scottish Parliament's committees. Nevertheless, I give evidence and end up in the Court of Session. I then have a right of appeal to the House of Lords because company law is reserved to the UK Parliament. Gerry Brown's case relates to a contractual dispute with the Scottish Parliament. He had an agreement with the committee convener that he would be able to come along but she has breached that agreement by saying, "No. You can't." Because that is a devolved issue, he will not have a right of appeal. Therefore, the two of us, as litigants before the one court, will find that one has a right of appeal but the other does not. Such a situation should not be a policy objective. One would want litigants to be equal before the court. Therefore, rights of appeal should be open to each of them.

If my limited company were making a contract that was purely devolved, we would get into a whole mess of entanglement. With no disrespect to the current senators of the College of Justice, it would be beyond the powers of Solomon to judge that.

May I remind members and our witnesses that we have an eye on the clock. We have a lot of business to get through, so we should birl this along as best we can.

Lord Falconer's proposes that, as at present, civil cases will have a final right of appeal to the supreme court. However, in criminal cases, there will be no such right. Is that correct and will it safeguard Scots law?

Yes.

Thank you. [Laughter.]

I am not going to argue with the convener. It is one-word answers from now on.

There is nothing better than a compliant lawyer.

Everybody has been having great fun with the act of union, the claim of right and so on. In your written evidence, you mention the need to

"comply with Article XIX of the Treaty of Union",

but you do not mention the claim of right, as others have done. When we took evidence from Lord Cullen last week, he said that the bill as it stands will not protect the separate nature of Scots law. Do you think that it will? If not, do you agree with Lord Cullen that an amendment—although not a large one—would be required to make absolutely sure that there is a separation? Without that, Lord Cullen thought that the supreme court would be a UK court and could not sit as a Scottish court or an English court.

You are quite correct that we did not mention the claim of right. There has been a lot of controversy about the claim of right. I do not know whether you have had the pleasure of reading it, but it is an interesting document. I am not quite sure what its constitutional status is. In any event, the treaty of union is the key document in this regard. It acknowledges that the Court of Session and the High Court of Justiciary should remain for all time as they were constituted in 1707. To discover why we ended up with a system that allowed an appeal to the House of Lords, we have to look way back into the mists of time. The first such appeal, in the Earl of Rosebery's case, came in 1708 and was swiftly followed by cases relating to the court of exchequer and the High Court of Justiciary. There has been a trail of appeals from the earliest days of our present constitutional arrangement.

We did not think that the claim of right added much to that. In fact, the process of remede of law under the claim of right was one that, while it might have operated in civil cases, might not have operated in criminal cases. One of the reasons why we do not have a criminal appeal is because, during the 19th century, it was acknowledged that there was never a criminal appeal from the High Court to Parliament. That is one reason for not including the claim of right.

The issue of whether the bill should be amended is taxing. Many aspects of it should be amended. Off the top of my head, I note that the guarantee of judicial independence in part 1, clause 1 of the bill is limited to England and Wales. I am not entirely sure why that should be and why it should not be expected to apply to Scotland and Northern Ireland. In part 2, further amendments are needed in relation to the supreme court and the matter of consultation with the First Minister and the Scottish Executive about certain aspects of appointments and rules that are made. Similarly, aspects of schedule 1 relating to the disengagement of the Lord Chancellor should be examined.

It is clear that, in that package of amendments, some of which we have already drawn up and are in the process of sending to peers, we would also seek to include some words that would flag up the need for the supreme court to be considered to be a Scottish court when sitting in relation to Scottish matters. That might not be a terribly difficult amendment to construct, but I have not yet written it down and the working party has not yet approved any ideas in that regard. However, that is the sort of thing that we would consider.

Do you think that it would be necessary to include those proposals in the bill or would including them in guidance be sufficient?

It is always good to have something in the bill.

I want to explore what you think about the cases that go to the House of Lords at present. In the absence of a requirement to seek leave to appeal, do you think that the cases that are currently going before the House of Lords are appropriate or do you think that some sort of change should be made?

You are right that there is no need to have leave to appeal. As I understand it, the process in Scotland is that you obtain counsel's opinion that the case is of merit for the House of Lords. I am given to understand—although I have not been involved in it—that that procedure works well. There are not a great number of cases that go to the House of Lords.

In 1997, only 11 appeals that related to Scotland were disposed of; in 1998, seven; in 1999, five; in 2000, six; and in 2001, four. We are talking about only a small number of cases, but the fact that they have reached that point indicates their general importance to the law. Small though the numbers might be, that alone might be sufficient rationale for people to argue the point.

As the committee is probably aware, the new supreme court will also deal with devolution cases. Such cases have increased substantially since the passing of the Scotland Act 1998 and have fulfilled a very important purpose in developing our law.

Mr Brown, you mentioned the important purpose that might be fulfilled by transferring the consideration of devolution issues from the Judicial Committee of the Privy Council to the supreme court. Do you have any concerns about such a move?

As far as that transfer is concerned, we have a view that the supreme court should have 15 justices. Michael Clancy will correct me if I am wrong, but I think that we have sought to lodge an amendment to the bill to ensure that at least three of the judges are Scottish.

That is the formulation.

We expect that, if the supreme court deals with a Scottish case of some importance, the selection procedure will accommodate it. Nothing in the historical case law contradicts that; after all, at the end of the day, one has to consider the purity of what the supreme court is supposed to produce. It is supposed to produce fundamentally good and permanent law for the present climate.

Lord Bonomy recommended that devolution issues should not include acts of the Lord Advocate as the prosecutor and that as a result such cases should not be referred.

I am well acquainted with Lord Bonomy's consultation. At the moment, the Parliament is considering a bill that has been introduced as a result of Lord Bonomy's recommendations. He will quickly correct me if I am wrong, but I think that he made that proposal to address potential delays in cases as a result of people raising devolution issues that would have to be considered by the Judicial Committee of the Privy Council. My reading of the Criminal Procedure (Amendment) (Scotland) Bill, which is currently wending its way through Parliament, is that it will make provision for dealing with these particular issues by focusing on and addressing matters at preliminary diets.

So you feel that such a clarification would be sensible.

No. I am not saying that I want to change the situation radically just now. Instead, I want to see how the Bonomy proposals come into effect, because I believe that many of these issues, which were usually dealt with later on, can be addressed more effectively at an early stage. In short, I think that there might be fewer devolution issues because of the provisions in the Criminal Procedure (Amendment) (Scotland) Bill.

So in the end that might not be an issue.

It might not be an issue, but we have to reserve judgment at this stage.

I want to get down to the question of the number of judges that there should be and how they should be appointed. How many judges do you think there should be in the proposed supreme court? We have heard varying figures between 12 and 15 and I wondered whether you had a particular view on the matter.

Our view is that there should be 15 judges. I think that I have already commented on our reasons for that. A bench comprises five judges. Cases are not simple, but require a lot of consideration and it is preferable that they should be addressed as soon as possible. There must be a proper quorum of judges to deal with that work. We also propose that there should be at least three Scottish judges.

How many of the 15 judges would be from Scotland?

We think that there should be no limit to the number of judges from Scotland. At present, there are two, but there should be at least three.

I entirely understand that benches normally comprise five judges. However, I understand that there is no legislation that sets out that there must always be five judges on the bench. In that context, is it your position that there should be an overall majority of judges from Scotland when the bench is sitting in individual cases that arise in Scotland?

I think that the bill makes provision, not only for a set bench, but for reserves and substitutes. To move away from the Scottish angle for a moment, in a case that involved admiralty law, one might want to bring in from the substitutes' bench—so to speak—judges who had great experience in that area, who could assist in the decision making.

There are clearly advantages to having a wider panel beyond the permanent membership of 12, 15 or however many there were.

Yes.

A principle has been established in relation to cases that arise from the consideration of admiralty law, but the committee's interest is very much in Scots law. Do you think that, to avoid a dilution of Scots law, a majority of judges from Scotland should sit in cases that arise in Scotland?

That has not happened in the past and I am not sure that there has been a dilution of Scots law as a result. It is possible to find an example of a case in which five judges from England and Wales dealt with a matter of Scots law in an appeal from the Court of Session. Equally, one might find a case that came from the English Court of Appeal in which a majority of the judges were from Scotland. Indeed, the latter situation arose in the quite recent past, in 1975, and the former slightly earlier, in 1949. I do not know whether there has been a visible dilution of Scots law, simply because of the composition of an Appellate Committee bench.

Thank you, that is helpful. Finally, I know that the convener was treading gently when she raised issues about the appointments process. Your response was that the ad hoc commission should perhaps report directly to the Queen. Others have suggested that there should be an across-the-board ad hoc commission. Do you think that that should be a Scottish commission? Should the First Minister be the person who makes the decision, rather than a consultee?

I think that we would hold to our suggested composition of the appointments commission, which was that it should comprise members of the supreme court bench and also representatives of the judicial appointments bodies from each of the jurisdictions concerned. The Judicial Appointments Board for Scotland system works and we repose faith in it in relation to the membership of our own, localised courts, which operate in this jurisdiction. I see no reason to depart from that system.

There is a convention at the moment that non-Scottish judges will not speak in Scottish appeals. Would you wish that convention to be observed in any new proposal?

I think that we would wish that to be preserved in any new proposal. One anticipates that, when a case arrives in the House of Lords, a decision will be made on how it is to be allocated. Many issues have to be determined; not only timetabling and availability, but conflict of interest and prior involvement. I presume that the presiding justice will consult on that, so that any decision that is made is above criticism. There have been recent cases in which judges have had to decline jurisdiction because they suddenly realised that such issues had arisen. I think that they would want to avoid that.

On the whole question of administration, location and funding, do you have any apprehension that all of that may constitute the new court being seen as an English court?

My impression was that there was consideration that it could be peripatetic and could come to Edinburgh or go to Cardiff or to Belfast. I do not think that there are any rules against that.

At the moment, there is no limitation on the Appellate Committee of the House of Lords as to its location. A House of Lords committee could sit wherever it wanted. I am sure that I have no recollection of the Judicial Committee of the Privy Council either consulting or sitting in Edinburgh. I do not think that that is a restrictive matter.

There are no other questions from members. Are there any concluding remarks that either of you would like to make?

This is a purely discursive point about the funding of the court. A view is expressed in the explanatory notes about how the court is to be funded—by court dues for civil litigants. Our understanding is that that would appear to result in court dues being increased for civil litigants across the board, even for those litigants who have no right of appeal to a supreme court.

The figures refer to an increase from 0.8 per cent to 1 per cent per civil case in each jurisdiction. In some respects, that could mean a court fee increase of about 50p, but that is obviously not set in tablets of stone. The litigants who were paying that would be litigants who do not have access to the supreme court. There is an issue as to whether the funding of the supreme court should be dealt with by funding from the consolidated fund and general taxation. That would assist the independence and transparency of the funding, rather than its being linked to some other source. I have a slight concern about funding being laid at the door of the litigant when we are all trying to encourage access to justice, particularly with regard to those who will not have access to that supreme court.

If that is an issue that you think is worth considering, we can certainly write to you about that rather than delay the committee's consideration.

Would members find that helpful?

Members indicated agreement.

Could that be done, Mr Brown?

Yes, that could be done, and it is something that we think is important.

We are listening with considerable interest to the point that you are making about access to justice. That is helpful.

Mr Clancy, do you have any concluding remarks?

I have nothing further to say, convener.

Either in English or in French.

Latin will do.

When he starts German it is bad.

Ex facie that would be correct.

On behalf of the committee, I thank both of you very much indeed for attending the meeting. We have found your comments extremely helpful and we are grateful to you for circulating to us a copy of your letter.

I think that our next witness, Professor MacQueen, has arrived, but I am conscious that we have been sitting here since 2 o'clock. With Professor MacQueen's indulgence, I propose that we have a short break of five minutes, which should let him have a cup of tea or coffee and allow others of us to attend to other critical needs. We shall adjourn for five minutes.

Meeting suspended.

On resuming—

I welcome to the meeting Professor Hector MacQueen of the University of Edinburgh.

Your written submission has been very helpful to the committee. Members will want to ask some questions on your submission, very much in the same format that we used with the witnesses from the Law Society of Scotland. You have produced a very full paper. Would you like to make any introductory comments or are you content that we proceed with questioning?

I do not wish to make an introductory comment, but I hope that there will be an opportunity to say something more about funding and the separation of powers, as I have had an interesting exchange with an American colleague, who is visiting the University of Edinburgh at the moment, in connection with that subject.

I know that those issues will be raised by the committee in its questioning, so we could perhaps leave it to individual members.

I am happy to leave things that way.

You have made extensive comment in your paper on the proposals that have been made. I put this question to the Law Society witnesses, too. I am interested in ascertaining whether you have found a demonstrable case for change. In other words, if the current proposals had not been made, would you have been moving for change?

I would certainly not have been moving for change, because I do not think that there is anything that is demonstrably very far wrong with the present set-up. There is certainly nothing causing major problems in this regard, least of all the issues of the separation of powers and human rights.

However, since the Scotland Bill was being considered, I had thought that the question of a constitutional court would become an issue. I had thought that it was almost inevitable that, over time, the Privy Council would evolve into a constitutional court. Given devolution, human rights legislation and lots of difficulty with European Community constitutional arrangements, there was, I thought, a clear need in this country, as in other countries, for a specialised constitutional court to deal with constitutional issues. That would be different from the proposals that are before us. That is what I would have anticipated being spoken about whenever reform was to be discussed. I did not think that there was a major problem with the House of Lords. There was perhaps a theoretical issue, but I thought that the lords had done nearly everything that they needed to do on that, with various self-denying ordinances and so on.

I am very struck by those comments. One of the underlying components of the proposals is the separation of powers. This is an intangible area, and it can be difficult to get specific comment on it. You refer to self-denying ordinances and to the way in which the appellate lords have conducted themselves. Was it your impression that the political presence did not interfere with the discharge of independent judicial functions?

I would not want to put it in quite that way. The reason why there was not a problem was that there was not really a strong political dimension. The perceived problem is really to do with the legislature and the judiciary. As I say in my paper, the real problem is when the executive is on top of or in control of the judiciary beyond a certain inevitable extent. It is the checks and balances in that relationship on which we ought to be much more focused and concerned.

I have a slightly more specific question. Paragraph 9 of your submission refers to the case of Burnett's Trustee v Grainger and another. You are critical of the process that arrived at the decision in that case. To help the committee, could you explain that a little?

I am not critical of the process. I am saying that that case illustrates nicely a situation where the Scots law of property arrived at a particular result, and so did the Court of Session and the sheriff court below it. The English judges, who were in a majority in that case, did not like the results, but they were persuaded by Lord Hope and Lord Rodger that that was Scots law, like it or not. I suspect that this Parliament may find itself looking at that outcome in a few years' time. It was not for the English judiciary to, as it were, change Scots law in a case of that kind, so there was a five-nil result in favour of the Scots law position, but at least two of the English judges were strongly critical of the outcome, and said that had they felt free to do so, they would have arrived at another result.

But what is important is that they did not feel free to do so.

That is absolutely correct. There has been considerable interest in the legal world about the outcome of that case. Many people were anxious about the prospects because, on the whole, if law reform is needed in that area, it would be better if it were carried out by this Parliament rather than by English judges.

I want to go back to the separation of powers. Do you agree that there needs to be a perception that the legislature and the judiciary are not linked? I do not know whether you ever read the West Highland Free Press—

I have occasionally read it.

This week there was an article by Iain Fraser Grigor, which was on an entirely different matter, but in it he mentioned the Freshwater and Salmon Fisheries (Scotland) Act 1976, which was instigated in the House of Lords. He wrote:

"of the 20 peers who spoke, at least 15 had vested interests as the owners of salmon fishings … the landlords had very deep pockets, and their stratagem was not challenged in a civil court in an action which … might have cost huge sums of money and gone all the way to the House of Lords: that same "House" which had so joyously helped bring to perfection the 1976 Salmon Act."

So there is a particular public perception, which is a problem. In fact, there is no link, but the public perception is that there is.

I would not deny for a moment that public perceptions are important. One of the confusions that can arise is the perception that the legislative House of Lords is the same as the judicial House of Lords, but 99 per cent of the time that is not the case. I fully see the point, and I certainly have difficulty explaining the difference to foreign students in the university, as I have frequently had to do over the years. It is confusing and difficult to understand, but I do not think there is a serious problem in reality for legislative or judicial decision making.

In your paper, you suggest that we should be questioning whether we need a second tier of appeal at all, which is a different proposal from the one that is in front of us. Given that you believe that the system is working reasonably well and that there is no need for change, why would you then suppose that we do not need a second tier of appeal at all?

Let me try to explain that. I think that I have a coherent and clear position on this matter, which is as follows. The system as it is works tolerably well. No system is perfect, and there are many things about it that one would change if one had the opportunity, but it works tolerably well. It is a little bit obscure and difficult to explain, as we have just discussed, but it works reasonably fairly. However, when the question of what should happen is thrown into the air, that provides an opportunity to think about the anomalies and the difficulties. My paper is not in any sense committed to a particular view. It simply throws out a number of ideas. I am doing my professorial bit, and offering my students and anyone else who will listen the opportunity to talk about different ideas. I feel strongly that this is an opportunity that, by and large, we have not had before.

Certainly, in the light of the figures that I drew together, one of the possibilities that we could think about is why we want a third level of court in our system. It may be that we decide to have one. If so, that would be fine and I would not stand in the way of it. I am simply drawing attention to the fact that the third level of court is not doing a lot of work specifically for the Scottish system at present. As has been explained, some of the work that it does is very helpful and useful. Right now, it has some outstanding judges, which has also been the case in the recent past, but it is still not clear whether we need it.

The main point that I want to make on the subject is that there is room for more debate on the issue. It so happens that the Constitutional Reform Bill coincides with the Scottish National Party's proposal for a civil appeals bill to get rid of the right of appeal in Scottish civil cases to the House of Lords. I think that it is still worth considering whether that is a sensible option—perhaps it could be aligned with the constitutional court idea.

Although I see the obvious and symbolic importance of having a UK-level court, does it have to be accessed through the present system? I tend to think that that question should at least be debated. The possibilities of a constitutional court, a "single market" court or no appeal at all should be looked at in a much more thorough and rigorous manner than they have been by the Department for Constitutional Affairs and the Executive.

I have to confess that, when I read your submission, I jumped to the wrong conclusion. I believed that you thought that there was no case for us to have or even to consider having a third tier of appeal. I understand now that your submission is suggesting that we should have a wider debate about whether there is a need for a third tier. There might well be a need for it and there might be times when Scots law could benefit from having the input of other jurisdictions, particularly on issues of human rights and European legislation.

I would not dissent from any of that. I repeat the point that I made in my submission that it is slightly curious and unusual for a legal system to build in the opportunity for others to have a look at what it does. In many ways, it is a good thing to do that, but there are many ways in which that could be achieved other than by having people who are not qualified in the system sitting in judgment on it.

That is the situation that we have in the UK. The real problem and oversight from a Scots law point of view is that we never have a majority in our superior court of the House of Lords. We are always at risk of someone who really does not like the result taking the view that they do not like the judgment, that they think English law—or some other law, for that matter—is better and that they will apply that. I do not know what would happen in that situation.

I want to return to a slightly more practical proposition. In the United Kingdom, we have law that is applicable to all parts of the United Kingdom—I am thinking of employment law or taxation law. If the appellate function for civil cases stopped in Scotland, how would we avoid inconsistencies?

That is another reason for the possibility that I ventilated in my submission. If one says that the court is to look only at UK legislation, it creates the problem of having lower courts that are able to deal with everything but a superior court that is able to deal only with what I called the "single market" matters that are put up above. It would be slightly odd and also quite difficult to do that.

I do not think that we have encountered many problems in looking at, for example, what matters are reserved in the Scotland Act 1998 and how they interact with devolved matters. A number of potential legal pitfalls are involved that will one day trip all of us up fundamentally. I am not sure that the situation will necessarily be resolved by having an appellate court that a litigant could get to only after going through two tiers of appeal at considerable expense.

But you accept that for as long as we remain part of the United Kingdom there will always be a framework of law that is universally applicable throughout the United Kingdom. If that law had different applications in the different parts of the United Kingdom, the result could be unsatisfactory.

Absolutely—I accept that. I am trying to say that we will have great difficulty in defining the scope of the jurisdiction of the supreme court—I will use that name—in terms of UK-wide law.

I apologise to Karen Whitefield for butting in on her line of questioning. Forgive me.

My questions are finished.

Perhaps we could narrow our focus. We have had the debate, but we are back with the bill as it stands. Concern has been expressed that the bill does not protect the separateness of Scots law. What provisions does the bill need to protect that separate identity?

One measure is having enough Scottish judges to form the majority, not necessarily in the body but on the panels that sit on cases from Scotland. That is certainly important.

The judicial appointments system deserves closer scrutiny. I do not have a magic formula for that either; the matter is not easy. However, the judicial appointments boards that are developing in this jurisdiction and in England and Wales are good and sensible. They bring what was previously a shadowy process out into the open.

The big problem is with the difficulty that some may feel in applying for posts that people were previously slipped into. As my paper says, I was recently in South Africa, where I saw judicial appointments board applications, which are public and very tricky. Some people do not apply for the posts. We are putting ourselves in some difficulty with that. I accept judicial appointments boards and think that they are good. However, the supreme court will have difficulties if the Scottish legal system is inadequately represented. The bill proposals amount to inadequate representation.

You think that the act of union and the claim of right are relevant to consideration of the bill.

They are relevant background, but I do not see major problems in them for the proposals, other than the fact that the system will be under the wing of a department—the Department for Constitutional Affairs—that has essentially an England and Wales remit, rather than a UK remit but even that is not strictly covered by the act of union.

Is having enough Scottish judges the answer?

Yes—that and an appointments system with proper scope for the Scottish system to supply its best candidates to fill the posts.

In the absence of a requirement to seek leave to appeal, do appropriate cases go to the House of Lords at the moment, or should any changes be made?

There is some evidence that some cases have reached the House of Lords when they should not have. If anyone wants to follow up the reference, that is discussed in an article by a colleague of mine from the University of Aberdeen, James Chalmers, which was published in the Edinburgh Law Review of January 2004. James cites several cases in which law lords said that the cases should never have reached the House of Lords. In his submission to the consultation by the Department for Constitutional Affairs, Lord Jauncey, who was one of the Scottish law lords, said that the system could be tightened. Certification by two counsel has not always proved completely satisfactory.

An interesting figure in the table of statistics that I have prepared for the committee is the large number of cases that do not go to judgment. Some appeals to the House of Lords are disposed of other than by judgment—in other words, those cases are settled somewhere along the line. There are more of those cases than cases in almost any other category. One suspects that sometimes an appeal to the House of Lords is a litigation tactic to bring pressure to bear on the other side's resources. If there is an issue about access to justice, greater control is needed of the cases that get to the top level. That is what I said in my submission to the DCA.

How would you put that control in place?

The only system I know in this regard is the English system, in which the Court of Appeal certifies whether there is a point of sufficient interest for the case to continue to the House of Lords. Of course, there is a right of appeal against that to the House of Lords, which usually considers such appeals fairly briefly. I cannot give you any figures as to how often it overturns the view of the Court of Appeal.

On a point of practice, at the moment, by convention, non-Scottish judges do not make speeches in Scottish cases. Do you want that practice to continue in any supreme court?

Again, that is not totally satisfactory. After all, if the justification is that we will be getting some sort of external perspective, but English judges do not speak, we get the benefit of an external perspective only as it is filtered through whatever the Scottish judges end up saying. If there are five judges on a case, they should all be entitled to speak. They should not have to speak, but they should all be entitled to do so, and if they have critical things to say, let us hear them. The Burnett's Trustee case gives good examples of that. There is plenty of raw material there for us to think about, however satisfied we might be that the Scots law of property is in good shape.

Paradoxically, maybe that absence of a right to speak introduces the critical facility for judges from another jurisdiction to comment on the law and how it might be applied without having the authority or legal power to determine the appeal. Scots law would therefore be protected, but appellate Scottish judges would have the benefit of hearing what other judges think without that affecting Scots law.

I am not necessarily to be seen as someone who believes that Scots law should be protected. That seems to suggest that it is like some rare bird or animal, which it is not; it is a legal system and it is law.

When I say protected, I mean that it should be free from contamination from other sources.

I am trying to say that if there are five judges on a case, they should all have the right to speak. There certainly should not be a statutory rule that says that of the five judges, two or three shall not speak. That would be quite absurd because then there would be no point in having them there.

Just to be clear, you said that you thought that the present system worked quite well, and that is how it works.

Yes; it works well with that convention, which can be broken—the Burnett's Trustee case shows it being broken. No one gets very upset about that. The upset would have come if the three English judges had overturned the view of their two Scottish counterparts. That is acceptable to me and I find little of benefit in a rule that says that some judges sitting in a case shall speak and others shall not. That seems to me to be completely mad.

I want to look at devolution issues and the proposal that they be transferred to the proposed supreme court from the Judicial Committee of the Privy Council. What do you think of that? Is that idea moving towards your constitutional court idea?

I would prefer to see things go that way, but with caution and hesitation. It should be open to discussion.

South Africa has a Constitutional Court and what it calls a Supreme Court of Appeal, which deals with all the other ordinary, non-constitutional appeals. I went along thinking, "What a good idea," but the first thing that I heard at the conference at which I was speaking was a proposal to merge the two courts. So, 10 years in, the South Africans are at least debating the issue. I strongly suspect that there is no clear, right answer to the question. Nonetheless, I believe that we should be looking first at a UK-level court being a constitutional court and only then considering whether to add other functions to it. That is how I would deal with the matter.

So you would support having two separate courts.

Yes.

But perhaps merging them eventually, as in the South African example.

That might be a possibility, although it has not happened yet in South Africa.

Why not just leapfrog the whole process and merge the courts now?

Again, it is about having the sense that the constitution is distinct from and above ordinary law and that the law in general must comply with the constitution. We are not there yet because we do not have a full, written constitution. However, we may be heading in that direction, because so many of our difficulties flow from the lack of such a constitution. We are inching towards something like that and, as part of that development, I would personally like the Privy Council jurisdiction to be the platform for considering issues at a constitutional level. We should accept that we have changed and are no longer the country of the unwritten constitution and that we should be developing in the way that other countries with such constitutions do.

I suspect that that might take a long time.

It would.

What do you think of Lord Bonomy's recommendation that devolution issues should not include acts of the Lord Advocate as prosecutor.

I do not have a view on that. The fact that those are devolution issues under the present system has thrown up instances of clear anomalies, of which temporary sheriffs were one. That was another instance of the question of the separation of powers, in which the executive had too much control over the judiciary. Many people had said that since temporary sheriffs began to develop, but there was no mechanism for doing anything about it until the Human Rights Act 1998 came along and it was held that the acts of the Lord Advocate should be treated as devolution issues. Without having strong and developed views about the matter, I would say that the current system has not been a bad thing so far and I would interfere with it only with great caution.

Several of my questions have been covered, but I will home in on a couple of points about the number of judges in the supreme court and how they would be appointed. Your written submission is silent on the issue of the overall number of judges and what proportion of them should come from Scotland. It would be interesting to hear your view on that.

The previous witnesses from the Law Society of Scotland said that there should be 15 judges in the supreme court. I do not see any difficulty with that. However, the House of Lords has difficulty in dealing with all its business with its present complement of 12 judges, so from time to time it brings in retired judges and so on to help. That suggests that there is a manpower shortage—perhaps I should say person power, but the Appellate Committee did not include any women until recently. Therefore, the evidence is that there are not enough judges for the existing work. Members will note from the statistics in my written submission that the amount of casework is increasing substantially, so there is a case for having more judges to deal with that. Having 15 judges may be the answer, but I do not know.

For cases coming from Scotland, I would like there to be at least a majority of three Scottish judges sitting on the five-judge panel. How we get there and whether all three would have to be full-time is a matter for debate, given the statistics about the number of judges. Perhaps we can make use of the idea of acting justices. Harping back to South Africa, I note that it has what are called acting justices of appeal, who serve what is almost an apprenticeship before they eventually graduate to become full-blown justices. That system enables the court to get its work done. That might be the way to enable the supreme court to do its Scottish work. That would be my suggestion.

I do not want to put words in your mouth, but I want to be clear about the matter. Irrespective of the size of the bench—which does not always have five judges—you would want it to have a majority of Scots judges who could be a combination of permanent members and those from the wider legal system.

That is a pretty accurate summation.

That is helpful.

Finally, on the appointments process, you express a different view in your paper from the view that I heard from the Law Society. Why have you taken that view?

I cannot recall precisely what the Law Society's view is, but the view that I want to express is that there should be a more substantial Scottish input in the appointments process than what appears in the bill. It seems that the Judicial Appointments Board for Scotland will be represented on the group that makes the initial recommendations and thereafter there will be consultation with the Lord President and the First Minister. One cannot help but think that that is inadequate, especially when a candidate for any vacancy will be one of two to five Scots lords. Who would the two to five be? I do not know whether we have as many as five who could do the job at any particular time. The Secretary of State for Constitutional Affairs will make the final decision and will make a recommendation to the Prime Minister and on to the Queen. In reality, one can assume that the decision will be made by the Secretary of State for Constitutional Affairs, who will know very little about the quality or otherwise of potential Scottish judges.

Surely it would be up to the consultees to make them aware of the policy.

Absolutely, but there is no obligation whatever to do anything other than take their views into account—I think that that is the phrase.

I want to clarify a point that arises from the previous question. What would you like to be strengthened? Would you like the composition of the commission to be strengthened?

I would like the Judicial Appointments Board for Scotland to have a much more active role in identifying the candidates to go forward—

To the minister?

If I had my way, the board would have a much more active role in identifying candidates to go forward to the Prime Minister and to the Queen, assuming that the Queen would ultimately make the appointment.

What about the current rather elastic nature of the consultation provision? We will not know two things—we will not necessarily know what the consultation process will have produced, unless the consulters put that into the public domain, or why the minister will have disregarded what he is told if he has disregarded it. Do those elements concern you?

Yes. As I said earlier, the attraction of the judicial appointments system as it has developed is that the process is open and transparent. We can see what is going on. If we think that the Executive is exerting too much influence, we can criticise it. There is public debate, which is entirely healthy and appropriate on such matters.

I notice that you did not come up with a specific answer in your paper relating to the general proposals on funding administration of the court—it was probably brave of you not to do so. Do you think that there is a danger that the current arrangements that are proposed for administration funding and location could give rise to a perception that the court is an English rather than a United Kingdom court?

Yes, in as much as the Department for Constitutional Affairs will, in effect, determine what goes on. I will take the opportunity to make the point that I said earlier that I would like to make. I am concerned about the separation of powers, which has not been properly discussed. Members may recall that I have been concerned about the executive having too much control over the judiciary. Other jurisdictions could be considered. I have discussed the matter with a colleague from the United States, who has given me useful information that I would be happy to pass on to the committee, if it would like to consider it. That information is about how the United States runs its federal judicial structure, its supreme court and the federal courts that operate underneath that. Basically, the executive has nothing to do with it. Congress determines the budget, essentially by a formula that has been worked out over time. Thereafter, the management of the budget is entirely in the hands of the judiciary itself. There is a body that is roughly akin to our Scottish Court Service. It is completely detached from the executive because the greatest anxiety in the separation of powers lies in the executive controlling the judiciary too strongly. Therefore, Congress has the status, if you like.

One could argue quite forcefully that there is much more reason to be concerned about the executive's control of funding, which is apparent, regardless of which bit of the executive we mean—English, Scottish or whatever—and that we should be carefully considering a completely separate system that would in essence be under the control of and monitored by the Parliament, either at Westminster or here. That is the best way of fulfilling the requirements of the separation of powers.

I think that you implied earlier that you do not like the name "supreme court". Others have been asked for alternative suggestions; do you have one?

The best suggestion that I have been able to come up with is "court of final appeal", but it is a pity that that is not a very attractive name. "Supreme court" is attractive on one level, as is "House of Lords". "Court of final appeal" is rather limp by comparison.

Do you have a view on where the court might sit?

Again, I agree that it could sit anywhere and should try to do so. The real problem is that the resources that back up a court, notably a library, are not necessarily portable, although perhaps now that we have computers, the internet and all the rest of it, that is less of a problem than it might have been in the past. Lord Hope made something of that in his evidence to—I think—the House of Commons committee that considered the matter and I accept his view. We would have to think about what the court's support systems would do while the court was in transit. In principle, however, the court should be on the move.

I gather that no other members want to ask questions, so thank you very much, Professor MacQueen, for being with us this afternoon and for the very full paper that you provided, which was extremely thought provoking.

Would the committee like to see the short e-mail from my colleague that quotes from the federal court book of the United States? I can send a copy to Mr Hough.

Yes. That would be welcome; please send it to our clerks. Thank you.

Our next two witnesses will be the dean and the vice-dean of the Faculty of Advocates, who cannot be with us until 4.30 pm. Do members agree to proceed to the next item on the agenda, to try to make some progress on that?

Members indicated agreement.