Justice 2 Committee, 16 Mar 2004

Meeting date: Tuesday, March 16, 2004

Official Report 281KB pdf

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Constitutional Reform Bill

We return to agenda item 1. I am pleased to say that the witnesses from the Faculty of Advocates have now joined us: I welcome Colin Campbell QC, who is the dean of the faculty and Roy Martin QC, who is the vice-dean. On behalf of the committee, I say how pleased we are to have you with us. We appreciate your making time to join us. Members have various questions, but would you like to make an introductory comment, Mr Campbell?

Thank you for the welcome and for the invitation to give evidence. I thank the committee for accommodating us—Roy Martin and I have both been in court today and I am conscious that the committee has made particular arrangements, for which we are grateful.

Members of the committee may have seen our response to the consultation by the Department for Constitutional Affairs, but perhaps I can take a minute—no more than that—to say something else. The main driving force behind the proposals for a supreme court is the desirability of separating the highest court in the land from the legislature. Many have argued for that for a long time, even though it is widely accepted that the current Appellate Committee is not in fact compromised by the present arrangements. However, those who have put forward those arguments have done so for perfectly understandable reasons that are based on sound constitutional principles. The faculty accepts those arguments and thus supports the principles and the underlying thinking behind the Government's proposals for a supreme court.

Clearly, the Government has accepted and decided to proceed upon the basis that the separation of powers is of sufficient importance to justify the changes. I suggest that it is perhaps a little odd that the same does not appear to apply to the new court's independence from the executive arm of Government. The bill, as it is presently framed, fails to respect that aspect of the separation of powers in at least two important respects. The first is the discretion given to Government in the matter of selection for appointment to the new court. The second is that the court will be under the administrative umbrella of the Department for Constitutional Affairs, which runs the court service for England and Wales but not that of Scotland.

It is my personal view that the independence of the court from Government is more important than separating its members from the upper house. The arguments that are given in the consultation paper against an independent supreme court service seem to be based principally upon economic considerations and civil service career structures, and they are, I suggest, not convincing.

Those aspects of the proposals are of particular concern from a Scottish viewpoint. It is vitally important that there is no risk that, over time, the new court will in effect come to be, or be seen to be, part of the hierarchy of the courts of England and Wales, and part of the court service of England and Wales. Not only would that be constitutionally improper, but it would damage the identity and standing of the separate Scottish legal system, which is an important part of our national identity. The failure to place in the bill any safeguards for the Scottish legal system in a new United Kingdom court simply adds to our alarm.

Madam, that is all that I wish to say by way of introduction, although I note that last week, you asked some questions about the meaning of the phrase "a superior court of record". If that is still a matter of uncertainty, I hope that I might be able to help you with that in the course of the discussion.

I will take advantage of that, Mr Campbell. I asked the question because, as far as I can recall, the phrase never featured in my law degree. If you can explain to the committee what that phrase means, that would be appreciated.

In a sense, it is all of a piece with what I have just said about the bill. The concept of a superior court of record is a purely, and very traditional, English legal term. A traditional classification of English courts is their division into superior and inferior courts. The critical nature of superior courts is that their jurisdiction is limited neither by the value of the subject matter of the case, nor geographically. That does not apply to an inferior court.

Examples of superior courts are the House of Lords, the Court of Appeal, the High Court, the Crown Court and the Judicial Committee of the Privy Council. I have read that there is an ancient division of courts into courts of record and courts that are not courts of record. The basic historical distinction depended upon whether the court in question maintained a record of its proceedings. In more recent times, the essential characteristic of a court of record is one that has the power to punish for contempt.

It is not surprising that none of us has heard of a superior court of record, and the inclusion of the phrase suggests that we have to keep a close watch on the bill from the Scottish viewpoint.

I am grateful for that clarification.

At the start of your remarks, you said, diplomatically, that in so far as these were the proposals, here were your comments and observations on them. Would the Faculty of Advocates have been calling for change to the current structure of appeals to the House of Lords had the proposals not come forward?

The answer to that is probably no.

Are there aspects of the current system that do not work satisfactorily?

I can answer that from my personal point of view, but I should say that Mr Martin has been closely involved in preparing our response to the consultation. I hope that it will be acceptable if he contributes from time to time.

He must feel free to contribute.

I am struggling to think of any aspects of the current system that do not operate satisfactorily.

Likewise, I am not aware of any difficulties in the current arrangements. I endorse Mr Campbell's view: I cannot conceive of the faculty having sought a supreme court if the initiative had not been proposed. The concept has been debated for some time, but the faculty has not been actively engaged. It is certainly not one of the priorities for the legal system.

The House of Lords jurisdiction—which, of course, is the civil jurisdiction—has not caused any particular difficulty. When devolution took place, the jurisdiction of the Judicial Committee of the Privy Council came into being for devolution issues. There was perhaps some uncertainty about how that would sit alongside the House of Lords and alongside the High Court of Justiciary as the highest jurisdiction of the criminal court in Scotland—notwithstanding the fact that devolution issues could go to the Judicial Committee of the Privy Council. It is fair to say that the process was evolutionary and has worked itself out. The system does not now give rise to any immediate concern, whatever anxieties there may have been at the time. It was perhaps one of the consequences of devolution that simply had to settle—and it has settled.

Mr Campbell, you mentioned separating the role of the legislature from that of the judiciary, but you expressed concern that that independence had not been achieved in relation to the executive arm of Government. Was your concern specifically in connection with the proposals on the appointment of judges?

I mentioned two specific points in that context, and selection for appointment was certainly one of them. The other related to the proposals for the administrative, funding and staffing arrangements at the Department for Constitutional Affairs. One benefit of the current system is that—both in fact and in perception—the Appellate Committee of the House of Lords is completely independent, in all senses, of Government. I am concerned that that may no longer be the case.

In response to my colleague Annabel Goldie, you said that you were satisfied with the current system and saw no disadvantages in it. You mentioned the importance of the independence of the judiciary. What are the other main advantages of the current system and how would you want to protect them in any new supreme court?

Before I answer that, I will elaborate on my earlier answer to the convener. There is a powerful argument—which the faculty accepts in principle—for the change, but that argument does not relate to the practical workings of the House of Lords sitting as the Appellate Committee. If I said that it was a question of theory, it would sound as if the question were unimportant. However, the question is not unimportant—it is a matter of perception and of respecting the independence of the court by separating it from one of the other arms of our constitutional set-up; namely, the legislature.

Many people, not least Lord Bingham and Lord Steyn, have argued persuasively and cogently that in a modern liberal society the supreme court or the highest court in the land—indeed, any court—should not have direct links to, overlap with or duplicate the work of any other arm of the constitution. Not everyone takes that view; however, there is a perfectly respectable argument for that position.

Everyone hopes that we will benefit from the new arrangements by an increase or improvement in the independence of the judiciary in the proposed supreme court or the highest court in the land. However, we also hope that no corresponding disadvantage will emerge in some other realm. To answer Karen Whitefield's question directly, the Appellate Committee of the House of Lords must be one of the world's most widely respected judicial bodies. It contains judges of the very highest quality and its decisions are read all over the world. I am sure that the vice-dean Mr Martin and any practitioner would agree with me that visiting the House of Lords is like a trip to Hampden Park or to the centre court at Wimbledon—it is the pinnacle of one's career and a wonderful experience. Although I am sure that that would still hold true for the supreme court, one knows that with the Appellate Committee of the House of Lords one is dealing with something very special. We hope that none of that will change.

That was a very colourful analogy.

I hope that you have more success at the House of Lords than we have at Hampden.

I was at the Holland game at Hampden. We had some success there, but we were not so good in Holland.

At the moment, the House of Lords is the final court of appeal only for civil cases. The UK Government is not proposing any change in that respect and, indeed, maintains that it is entirely appropriate that, as far as Scots law is concerned, the final court of appeal should relate only to civil cases and not to criminal cases. Do you think that such a position is right? If so, why?

I will make a brief comment and then Mr Martin will say something. I know that he has thoughts on that matter.

The Faculty of Advocates felt that the issue in question was among the most controversial or contentious. With regard to the arguments in favour of retaining the appeal on civil matters from the inner house of the Court of Session to London, the consultation paper points out quite persuasively that for really important and appropriate cases there is real benefit in having the extra breadth of experience of that further court of appeal with judges from another closely related jurisdiction. Our civil law has really benefited from that appeal mechanism.

That said, exactly the same point could be made for the criminal jurisdiction of the High Court of Justiciary and the Court of Criminal Appeal. There is a perfectly respectable argument that the benefits for civil law could apply equally to criminal law. However, I should point out one important difference that persuaded the faculty in its response to support the status quo with regard to criminal jurisdiction: there has never been an appeal to the House of Lords in criminal matters. History shows that there was a right of appeal, from the old lords of council and session, to the King and Parliament only in civil matters and, after a case in the 1870s—almost two centuries ago—the absence of an appeal on criminal matters was enshrined in statute. It would be a major innovation to introduce a criminal appeal to London. On balance, the Faculty of Advocates is not persuaded that that is necessary.

I endorse what Colin Campbell has said. The matter was the subject of considerable debate in the committee that prepared the response. It is fair to say that there were two views; the prevailing view was that which the dean has just set out.

The content of the question underlies another anxiety about the proposal, which has come about because the British Government has sought to drive it. If there is a need and justification for a supreme court, the opportunity could be taken to reconsider issues such as the difference between criminal and civil jurisdiction and whether there should be an appeal to a final court—a supreme court or the House of Lords. At the moment, both the consultation paper and the legislation would simply preserve the status quo, except that they would turn the House of Lords and the Judicial Committee of the Privy Council into a supreme court. It might have been interesting to have had a much more substantial debate: first, about whether there ought to be a supreme court and secondly—in this context and more importantly—about the radical changes in the jurisdiction of such a court that might be justified in modern circumstances. One criticism of the legislation might be that although it takes the first step—the radical innovation of creating a supreme court—there appears to be no willingness to take the second step, which is to engage in a debate about exactly what that court might do.

I do not want to prolong the discussion, but some would say that there is in the current situation a degree of illogicality that would be preserved under the proposals. At the moment, under the Scotland Act 1998, criminal issues can be referred to the Judicial Committee of the Privy Council in the form of devolution issues. In particular, actions of the prosecutor as a public authority can be raised in London. Under the proposals, that jurisdiction would be transferred to the proposed supreme court. Some criminal issues could be referred to London, but most could not. Some people would see that as an unbalanced and awkward situation.

My last question relates to a submission to the consultation on the proposed supreme court from John Chalmers, who suggested that civil appeals that are made to the House of Lords from Scotland should relate to matters that have an obvious relationship with the whole United Kingdom and that would influence civil law across all jurisdictions in the UK. The Law Society of Scotland said that it would be difficult to make such a judgment. It asked how litigants would be able to determine whether their case was suitable for consideration by the House of Lords and suggested that the proposal would cause inequity of access to justice. What are your views on Mr Chalmers's proposal? Is it a good idea for civil appeals to be made to the House of Lords or to the new supreme court—should it be created—when we think that the matters that are raised affect the whole United Kingdom, rather than Scotland exclusively?

I can give only a personal view. I do not favour Mr Chalmers's proposal. I think that the intention behind the proposals and the provisions of the bill is not fundamentally to change the current arrangements. If that is the case, the provisions of the bill might be improved.

When the House of Lords sits in a Scottish appeal, it sits as a Scottish court, it is the final court of appeal in the Scottish legal system, it is hearing a Scottish appeal and its decision is binding only in Scotland. Similarly, a decision of the House of Lords sitting in a case coming from Northern Ireland is not binding in the Scottish legal system. Likewise, a Scottish decision is not binding in England. The system respects the separate identities of the legal systems.

I understand the thinking behind Mr Chalmers's proposal and the point that he is making, but I am anxious in that it would seem that, over time, some kind of UK jurisdiction or legal system would be created. There are some who might ask what is wrong with that, but the Faculty of Advocates would always wish to stand up for the Scottish legal system and for Scots law.

I agree with what the dean has said. The matter comes back to the absence of critical examination of the various relationships. At the moment, in a Scottish civil case there is a right of appeal without leave to the House of Lords against a final decision. That is a remnant of the right to appeal formally to the King and Parliament.

In an English civil case, one has to have leave or permission to appeal either from the Court of Appeal or from the House of Lords. That gate-keeping arrangement tends to mean that the court has control over the character of the cases that come before the House of Lords. In Scotland that does not happen, although a case requires certification by two counsels, as appropriate, for the appeal jurisdiction of the House of Lords.

An arrangement such as Mr Chalmers suggested could be facilitated by introducing into Scotland a requirement for leave to appeal. However, that goes against what some might say is the fundamental constitutional entitlement in Scotland to go to the court beyond the lords of council and session. Although it is a suggestion that one can understand, it might limit access to the House of Lords, which might be a good thing or a bad thing. More important, raising the issue identifies the absence of debate on the jurisdiction of the House of Lords, all the various relationships and how they might work in a new court in comparison to how they work at the moment.

For clarification, is signature by two counsels a convention or a practice? Would a case not proceed to appeal to the House of Lords without those signatures?

It would not. As I understand it, the practice directions of the House of Lords state that it is necessary for there to be signatures of two counsels in support of an appeal from Scotland. There is authority on the view that that is to ensure that the case is appropriate for the House of Lords and not simply a further appeal.

So that is a de facto leave to appeal.

Yes. It is usually, but not exclusively, exercised by the counsel who have represented the unsuccessful party. It is a form of safeguard against uncontrolled access to the House of Lords, but it is not under the control of the court either at junior or senior level, as would happen in an English case in which there would be a requirement for leave or permission to appeal.

What you are referring to is the claim of right when someone can appeal to the House of Lords over the heads of judges. It was originally an appeal to politicians rather than to judges in the House of Lords, but it is now an appeal to judges.

Clause 19 in the act of union also allows for the separation of the two legal systems. The dean raised those points in his statement about there being no safeguards in the bill to preserve the separation of the two jurisdictions. What safeguards and protections do you think need to be added to the bill? Is it possible to amend the bill to add a clause that would make it clear that the jurisdictions were to be kept separate?

I have no doubt that various formulations could be put forward, but I see no reason why a draftsman could not come up with something that simply reflects what underlies the act of union. I am sure that that could be achieved.

Another important safeguard that I hope will be introduced is the stipulation of a minimum number of Scottish judges. At the moment, the convention is that, of the 12 law lords, at least two will be Scottish. I see no reflection of that convention in the bill. One can debate how many members should sit in the new court and how many should be Scottish, how many should be English and how many should be from Northern Ireland, but I am concerned to see that there is no built-in preservation of the entitlement of this jurisdiction to a minimum number of justices who are experienced in our legal system.

Do you think that the number of judges is the most important safeguard?

It is a very important safeguard. I think that it is probably implied in the current provisions, but I see no reason why one could not also have some provision in the bill that would seek simply to transfer the current status quo of the jurisdictions to the supreme court. There would be a powerful argument that that is implied in the provisions of the bill, but why not express something to the effect that the new court is obliged to respect the separate identities of the various jurisdictions?

Would that need to go into the bill itself, or would it suffice to have it in guidance alongside the bill?

No—that provision should be in the bill. That is a fundamental point that should not be left to convention, to regulations or to anything else.

Neither should it be left to speculation.

I am quite clear about your view that the number of judges should be specified in the bill, but do you have a magic number?

We suggested a minimum of three in our response, which would be an increase of one on the current convention. The reason why we made that suggestion is that it would enable there to be a majority of Scottish judges sitting in Scottish appeals—assuming that the new court continues to sit in panels of five, which I understand is the suggestion.

You are quite right that normal benches would indeed be of five judges, but although it is a convention, there is nothing to indicate that that number could not be increased. Should the principle be that we should have a majority of judges from Scotland sitting in cases that are entirely about Scots law?

I struggle to find any cogent argument against that.

So does the committee, it has to be said.

One of the arguments that has been presented to us is that, even with three judges, there is a lot of work on. Do you see an advantage in having a wider panel of membership beyond that of the permanent membership of the three Scottish judges?

I shall ask Mr Martin to add his thoughts on that question: it is a difficult question. In principle, I have a difficulty with extensive use of temporary or ad hoc judges in any court system, all the more so in the proposed UK supreme court or the House of Lords. There will, I think, always be a place for them and one could debate about the pool from which temporary or ad hoc appointments should come.

The guiding principle should be that the permanent establishment, which is subject to all the selection procedures of full-time permanent appointments to that court, should be sufficient to deal with the anticipated work load of the court. However, there may be occasions when people are ill, when there is an unexpected increase in the work load or when there are other particular circumstances in which it makes sense to ask a retired justice, a sitting Lord President or someone else to sit.

I certainly agree with that. A distinction should be made between part-time or temporary appointments for genuine emergencies—whatever they may be—and the use of temporary or ad hoc appointments for the anticipated establishment. If one anticipates that a committee will normally consist of five and one believes that there should be a majority in a Scots case, it seems to me that it is immediately inappropriate to assume that one will make up that majority by means of one or more part-time or temporary appointments. Issues of independence and freedom from perceived pressure—which have given rise to difficulties in other matters of which I am sure the committee is aware—arise in such circumstances.

I would like to add to the comments that have been made in response to questions. It is well recognised that the system that is in place at the moment operates by convention; there are conventions relating to the type of court, the constitution of the court, the number of members who sit in a committee and the number of Scots or Northern Irish members. One cannot in principle rely on such conventions if one creates a new institution, such as the proposed supreme court, even if one wants it to be exactly the same as what existed before. People will question whether such conventions should apply. I endorse the view that these matters are so fundamental that they should be in the act when it comes into being.

Colin Campbell said that he is concerned about the appointments process, but we did not receive much elaboration on the nature of his concerns. Rather than elaborate on the concerns, can Mr Campbell tell me how he would structure the appointments process?

As a member of the Judicial Appointments Board for Scotland, I should make it plain that the comments that I am about to make are purely personal and are not made on behalf of the board.

The second half of the bill deals with the establishment of a judicial appointments commission for other judicial appointments in England and Wales. A separate provision in the first part of the bill establishes a judicial appointments commission to select justices for the new supreme court. It is interesting to compare the differences between the two.

My concern about the new supreme court centres around the proposed power of the commission to suggest at least two, but no more than five, names to the Government, which will then choose one of the names that have been put forward. Much less discretion is given to the Government in the part of the bill that deals with other judicial appointments. If a name is suggested to the Government under the appropriate part of the bill, the Government has the right to ask the commission to reconsider. I do not doubt that on occasions, facts will come to light that might make it entirely sensible for the commission to think again. As I understand the proposal, if the commission does not wish to change its view, nothing can be done and the name will go forward on its recommendation.

I struggle to understand the logic or rationale behind the proposed system of establishing a judicial appointments commission to select appropriate candidates for the new supreme court. What is the point of going through the process I have outlined and then asking for a list of names—from a pool that will inevitably be rather small—only to leave it to the Government to choose? Why is that being suggested? The logical answer is that the Government wants to retain control: it wants to have a say in deciding who will sit in the supreme court of this jurisdiction and the English jurisdiction.

Of course, the Government has that at the moment, so it might say that it is simply preserving the status quo, which is true. I will pick up the vice-dean's point. We have an opportunity to reflect on whether that arrangement is appropriate and my view is that it is wholly inappropriate for the Government to choose judges for judicial posts of such importance and in general.

Do you have thoughts about where the court should sit? Should it rotate and sit in different locations? Do you have thoughts about what we should call the court? I have a slight problem with the name "supreme court", which smacks of Americanism.

I will answer the questions in reverse order. The name "supreme court" suggests an American-type court or a constitutional court. The proposed alteration to the constitutional arrangements will not change the constitutional jurisdiction of the House of Lords. Whether one would advocate such a change is another matter, but a supreme court could be created with the power to strike down United Kingdom legislation, just as courts have the power to strike down Scottish Parliament legislation. That would make the supreme court more like a constitutional supreme court in the United States and other countries.

To use the name "supreme court" may give a slightly misleading impression because, in general, it will simply be the final court of appeal, although some cases will have constitutional implications. What one calls the court may make a difference to perception. The name "Supreme Court of Judicature" is a term of art that refers to the highest courts in England and Wales. In Scotland, the phrase "supreme court" has no technical significance, but we tend generally to refer to the Court of Session and the High Court of Justiciary as the supreme courts, because they are supreme in Scotland. The faculty does not propose and has not considered an alternative name and I will not suggest what the court might be called.

The faculty made representations about the court's location. If a radical alteration to the status quo is being considered, why not think about the location? If the court is to be separate from the legislature and the executive, why does it have to sit in London or England? Why should it not sit in Scotland, Northern Ireland, Wales or a part of England that is away from London? I will say no more about that. The faculty has made various suggestions.

One measure that might be worth considering is having the court sitting on circuit, even if its base is in London. There is no reason why, for a Scottish case, the court should not sit in Edinburgh or Glasgow. A similar arrangement could be made for cases from Northern Ireland, Wales or London. The opportunity to debate those matters is available, but it has not been taken. The assumption seems to be that the court will sit in London.

That is the assumption. Evidence has been given that sitting on circuit might be a good idea, but that back-up for having the court in four places might be difficult. Do you agree?

That is a matter of administration. Courts sit on circuit all the time—the High Court of Justiciary and English courts sit on circuit. Resources would be required for that to happen, but the new supreme court is intended to serve all parts of the United Kingdom. The question is whether the additional cost of the court sitting on circuit—which I suspect would not be great, as the court would not need permanent establishments in any of the places where it might sit away from its base—would be justified by the advantage of the court being seen to be placed at times in other parts of the country. That issue could be debated.

The equivalent court in Australia—the High Court of Australia—sits in Melbourne, Brisbane, Sydney and Perth. I grant that it travels around an area that is much larger than the UK, but if that court can move around, I see no reason why our new court should not be able to do so.

We are about to vacate the building that we are in today, which is very handy for the High Court. What better use for this building could there be?

This is a lovely room.

I have a couple of rather technical points. We briefly discussed the current system, whereby there is no formal leave to appeal to the House of Lords, but the signatures of two counsel are required in respect of cases that are appealed. Has that system meant that inappropriate cases have been appealed, or are you satisfied that the cases that go to appeal genuinely merit determination by the House of Lords?

The current system places a heavy responsibility on counsel to exercise their discretion responsibly. I cannot say that there have not been odd occasions in the past—indeed, there has been one fairly recently—when their lordships have expressed anxiety about a case. There was a period about 10 or 15 years ago when similar sentiments were expressed in relation to a couple of appeals that were taken to London. However, those are very much the exception and would not in themselves justify any major change to the system. There is a heavy responsibility on counsel to ensure that they certify a case as suitable for appeal only when it is genuinely appropriate—for example, because it raises a major point of principle or is of great importance to the law or, sometimes, to the parties concerned. There is often room for debate. In some cases, there is no automatically right or wrong answer; that applies in questions of granting leave to appeal, too. I am not aware of sufficient cause, of the nature that you mentioned, to justify any change.

Has it been known for counsel to refuse to exercise their discretion in such a way?

Yes, absolutely. I am sure that I have done so myself.

You are saying that that is not just in isolated cases.

By definition, unless one is directly involved in the decision, one does not know about the exercising of discretion, but I would be very surprised if what you suggest did not happen fairly regularly.

I am sure that that is right. Obviously, a litigant who loses a case in the inner house of the Court of Session and who is unrepresented does not have a counsel who has been in the case and who can consider whether he might appeal to the House of Lords. On two occasions I have considered, along with another counsel, whether I would be prepared to sign and certify that an unrepresented litigant's appeal was appropriate for the House of Lords—I considered the case not because I anticipated that I would be involved in it, but simply so that an unrepresented litigant would not lose at least the opportunity for that consideration to be given. On both occasions, I was not prepared to certify that the appeal was appropriate.

There is a current convention that non-Scottish judges do not make speeches in Scottish appeal cases. Should that convention be continued in the proposed supreme court?

I noticed that that matter was raised earlier. I must confess that I was not aware of that convention. Such a convention does not seem to be honoured these days and I see no reason why it should be. I can think of many recent Scottish appeals in which English law lords—many of whom are in fact South African, for whatever reason, although they have practised as barristers and then judges in the English courts—regard themselves as being under no self-denying ordinance to refrain from delivering speeches in Scottish appeals. I, for one, would not want to gag them.

I think that you have already partially covered the subject matter of my final question. You talked about your slight reservations about the proposal to make the Department for Constitutional Affairs the supremo that would administer the proposed new court. I infer from what you said that you have no specific solutions about how the supreme court should be administered or, indeed, funded. In fact, concerns have already been expressed about the intended system of funding, which will involve divvying up charges among the litigants. Would you be concerned by such a system?

Before I deal with that question, I will make an observation about something that you said a moment ago. The faculty suggested in its response that there should be a one-line budget. Of course, we must have some form of democratic accountability and a minister who is ultimately answerable for the budget in Parliament. However, we have proposed a one-line budget for a supreme court service, which would effectively be under the control of the senior judge of the supreme court. As a result, procedures, personnel matters, administrative arrangements and the day-to-day organisation of the courts would be under the justices' control.

And not under the control of the Executive.

It would not be under the control of the Secretary of State for Constitutional Affairs. Of course, the money will have to come from the Government, which means that there will have to be some form of accountability. However, I understand that the High Court of Australia operates on the basis that I outlined. Indeed, I would like the same system to be introduced for the court system in Scotland. If it is good enough for the UK supreme court, I see no reason why it would not be good enough for the Court of Session. That said, the committee should probably not get into that very different matter, because it raises all sorts of issues.

On the specific question of funding, I should have mentioned earlier that one of the big advantages of the Appellate Committee of the House of Lords is that it is incredibly good value for money. On any view, the proposed supreme court will be a much costlier exercise, certainly in the short term, because a new and appropriate building will have to be built. I do not have any easy answers to the question, but there are concerns about spreading the cost among all litigants. Access to justice is a major issue—indeed, that is another subject that the committee should not get into today—and anything that increases the barriers to access would be a serious matter. I hope that the cost will not be spread among litigants—after all, most of them will never see the inside of the supreme court.

You touched earlier on the transfer of devolution issues from the Judicial Committee of the Privy Council to the supreme court and highlighted the anomaly of transferring criminal cases that have a devolution connection. Moreover, Lord Bonomy recommended that devolution issues should not include acts of the Lord Advocate as prosecutor. The Law Society of Scotland thought that he had made that recommendation because of the potential for cases to be delayed and claimed that the Criminal Procedure (Amendment) (Scotland) Bill would address the matter. Do you have any comments on that issue?

I am hoping that the vice-dean will have some bright ideas.

I am not aware of the details of the Law Society of Scotland's consideration, but I am aware of Lord Bonomy's proposals. That specific recommendation raises a number of other issues about the proper status of the Lord Advocate as an independent prosecutor of crime in Scotland and a member of the Scottish Executive, which itself brings the acts of the Lord Advocate within the remit of a devolution issue.

If I understand the Law Society correctly, its comments raise a big question, which might depend on whether the Lord Advocate ought to remain a member of the Scottish Executive or ought to be reconstituted as an entirely separate and independent prosecutor whose acts would not be the Executive's acts. I have to say that I am not advocating the latter course of action, which, although it might bring those acts outside the ambit of devolution issues, would raise the question of what right of appeal there might be against an act of the Lord Advocate as far as purely criminal law is concerned. I am sorry if that does not help you. As I indicated, I was not aware of what the Law Society had said.

The Law Society, which gave evidence to us earlier this afternoon, seems to believe that Lord Bonomy was anxious about potential delays in the system but that the Criminal Procedure (Amendment) (Scotland) Bill will ensure that such matters are addressed at a preliminary diet. However, you are obviously talking about something that is much more constitutional.

Yes, in so far as the Bonomy proposals for the operation of the High Court of Justiciary are concerned. Delays in court operations are intended to be addressed by a system involving preliminary diets. I believe that the faculty gave evidence to the Justice 1 Committee on those matters. I am not sure that the issue of delays in court operations is directly related to a delay that might occur if there were a devolution issue in a particular case. I do not believe that Lord Bonomy's proposals for a preliminary diet would result in direct control over the time that it would take to resolve a devolution issue.

But you feel that the issue goes deeper than that.

Yes. It goes back to what we said earlier. If one were looking at the issue in depth, one would have to examine the relationship between the Lord Advocate and the Scottish Executive, the independence of criminal prosecution and the relationship between devolution issues in criminal cases and a criminal appeal jurisdiction. I believe that several issues would arise that might ultimately lead to changes in the supreme court approach, which basically continues with the arrangements that we have now, albeit with a different court.

I do not know whether this is helpful, but I believe that there was a flurry of devolution issues while Lord Bonomy was considering his proposals. I am not conscious that as many matters are now being taken to the Judicial Committee of the Privy Council as one might expect. When a new jurisdiction is introduced, there will inevitably be a bit of pushing at its frontiers and a proper testing of it. Even if a devolution issue were raised, I suspect that, in an urgent case, the Judicial Committee of the Privy Council would be remarkably good at dealing with it quickly.

What are your views on the proposal that the Judicial Committee of the Privy Council should become part of the supreme court? Would you be content with that?

Yes, if I may speak for myself. That proposal seems logical and I do not believe that it raises any particular issue. Of course, it leaves aside all the questions that we have talked about regarding overall consequences. However, I have no difficulty in principle with the proposal, which seems logical.

As members have no further questions, I ask the two witnesses whether they want to make any concluding remarks.

I do not, other than to say thank you for what has been an enjoyable session. I wish you well in your deliberations.

I endorse that.

On behalf of the committee, I thank you both. We appreciate your coming here after a day's work in court. We particularly appreciate your presence, because the nature of the supreme court proposal is such that it is vital that the committee receives the best and most informed evidence that it can get. Your contribution to the meeting has been extremely helpful in that respect.