Civil Appeals (Scotland) Bill
The next item of business is consideration of motion S2M-5246, in the name of David Davidson, on behalf of the Justice 2 Committee, that the Parliament does not agree to the general principles of the Civil Appeals (Scotland) Bill.
The Civil Appeals (Scotland) Bill was introduced by Adam Ingram MSP on 29 September 2006. Its aim is to provide for a final right of appeal to a civil appeals committee in the Court of Session and to abolish the right of appeal to the House of Lords.
Rule 9.3.1 of the standing orders states that
"A Bill shall on introduction be accompanied by a written statement signed by the Presiding Officer which shall … indicate whether or not in his or her view the provisions of the Bill would be within the legislative competence of the Parliament".
The Presiding Officer ruled as follows:
"In my view, the following provisions are not within the competence of the Parliament—
Section 3
Section 5 insofar as it relates to paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 11, 12, 14, 15, 16, 17, 18, 19, 21, 24, 25 and 27 of schedule 1
Paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 11, 12, 14, 15, 16, 17, 18, 19, 21, 24, 25 and 27 of schedule 1
Section 6 insofar as it would confer power to make provisions relating to matters outside the competence of the Parliament
Section 8 and schedule 2
With the exception of paragraph 16 of schedule 1, the reason for this view is that in my opinion these provisions relate to the Constitution. The Parliament of the United Kingdom, including the judicial functions of the House of Lords, is reserved under paragraph 1(c) of Schedule 5 to the Scotland Act 1998. Section 29(2)(b) of the Scotland Act 1998 states that a provision is outside the legislative competence of the Parliament if it relates to reserved matters.
As regards paragraph 16 of schedule 1, the reason for this view is that in my opinion the provision would be incompatible with Article 6(1) of the Convention. Section 29(2)(d) of the Scotland Act 1998 states that a provision is outside the legislative competence of the Parliament if it is incompatible with any of the Convention rights."
It is therefore possible, under the Parliament's rules, for parliamentary committees and the Parliament to consider a bill even if the Presiding Officer has ruled in such a manner. As the convener of the lead committee, I sought further advice from the Parliament's directorate of legal services and the legislation clerks. Their advice, which I shared with members of the Justice 2 Committee, confirmed the Presiding Officer's advice: the majority of the bill is outwith the Parliament's legislative competence and it is unlikely that it could be brought within the Parliament's legislative competence, even if it were amended at stages 2 and 3.
The remainder of the bill is within the Parliament's legislative competence, but while it would create a civil appeals committee and enable rules of procedure to be made for it, it could not confer any jurisdiction on the committee that would be recognised in law, so the committee would not have any functions to perform. What remains of the bill is therefore rendered nugatory.
In the light of the evidence, I concluded that undertaking the extensive work that stage 1 consideration would involve would not be a productive use of the committee's, or the Parliament's, time, and I recommended to the committee that I move the motion in my name. The committee supported that position by five votes to two.
I do not criticise the policy aims of the proposal. Indeed, I recognise that there may be room for debate about the appropriate route for such appeals, but I do not believe that the bill is the correct vehicle for such a debate, given the competency issues I have outlined.
I move,
That the Parliament does not agree to the general principles of the Civil Appeals (Scotland) Bill.
As the convener of the Justice 2 Committee made clear, the general principles of the bill, which seeks to repatriate final appeals in civil cases from the House of Lords to the Court of Session, have not been considered by his committee.
By a majority, Justice 2 Committee members chose to accept without question the Presiding Officer's ruling that the bill's provisions are outwith the legislative competence of the Parliament and decided under rule 9.14.18 to put the kibosh on the bill without further consideration. The rule is pernicious and effectively gives the Presiding Officer's legal advisers the power of veto over members' bills.
My view is that the legal advice given to the Presiding Officer could have been, and should be, challenged. Whether the bill is within the Parliament's legal competence revolves around whether the judicial committee of the House of Lords should be regarded as a court or as part of the United Kingdom Parliament in the context of what the bill aims to do. Given that the bill focuses exclusively on the civil appeals process, the pith and substance of its purpose falls within a devolved, rather than a reserved, area. Plenty of legal opinion confirms that contention. For example, the public law class for first year undergraduates at the University of Edinburgh has been set the question whether a bill to abolish appeals to the House of Lords was competent. The students' tutors have been telling them that such a bill was legally competent under schedule 5 to the Scotland Act 1998. That view is common currency in the legal profession.
The Justice 2 Committee did not ask to view the legal advice that was given to the Presiding Officer, but I did. It may interest members to learn that I have been refused access on the ground of confidentiality. So much for transparency in decision making, so much for openness and accountability and so much for a fair hearing.
I urge Parliament to reject David Davidson's motion and to send the bill back to the Justice 2 Committee. Failing that, the only remaining recourse will be to put the matter in front of the Scottish courts for judgment.