The Scottish Government

UK Supreme Court

LAW SOCIETY CONFERENCE - JANUARY 21, 2004

Lecture by the Lord Advocate, Colin Boyd QC

I am grateful to the Law Society for the invitation to speak this evening. The Law Society has a long tradition of engaging in the wider aspects of public affairs, which the Scottish Executive values, whether or not the Society's views happen to coincide with those of the Executive. In this case I welcome the Society's general support for the Supreme Court.

The establishment of a Supreme Court for the United Kingdom is, I believe, a logical and welcome step in the modernisation of our constitution and our legal system. The principle of the separation of powers has been around for a long time. It has its genesis in the writings of Montesquieu and Locke in the 18th Century. That our highest court should sit as part of the legislature has long been regarded as a somewhat quaint feature of the British constitution.

Recent developments, however, have given impetus for change. The reform of the House of Lords inevitably raised the question of the future of the Law Lords. But it is perhaps the passing of the Human Rights Act incorporating the European Convention on Human Rights into domestic law which has encouraged a stricter view of the concepts of independence and impartiality.

That is not to say that the present Law Lords lack independence or have displayed partiality in the conduct of their business. As the Government's Consultation Paper makes clear, no criticism is intended of the present incumbents. Yet the present arrangements do lack the appearance of independence.

The Lords of Appeal in Ordinary are members of the House of Lords with debating and voting rights which they - normally - do not exercise. They sit as a committee - the Appellate Committee - of the House of Lords, usually in one of two small committee rooms at the end of the Committee Corridor which, for those of you not familiar with the Houses of Parliament, runs the length of the building on the river side, on a floor above the debating chambers. Sometimes, of course, when the House of Lords itself is not sitting, they use the debating chamber, both for hearing argument and for issuing judgments. Like other peers, the judges have rooms allocated to them, and for their research they have the normal access to the House of Lords library, supplemented, for the Scottish Lords, by the Scottish books which the Faculty of Advocates maintains as an annex.

With working arrangements like that, it is difficult to demonstrate to an outside observer wherein lies the separation of the judiciary from the legislature.

A number of current judges have joined the call for a new court: Lord Bingham of Cornhill, in his lecture to the Constitution Unit in May 2002, and Lord Steyn, in an article in the Law Quarterly Review in July 2002. I would like to quote one passage from Lord Bingham, where he said

"To modern eyes, it was always anomalous that a legislative body should exercise judicial power, save in very restricted circumstances. This anomaly may not have mattered in the past. But if the House of Lords is to be reformed, and even if it is not, the opportunity should be taken to reflect in institutional terms what is undoubtedly true in functional terms, that the law lords are judges not legislators and do not belong in a House to whose business they can make no more than a slight contribution."

I believe that we in Scotland should welcome and embrace these developments. As a number of the Law Lords said in their response to the consultation paper, I regard the functional separation of the judiciary at all levels from the legislature and Executive as a cardinal feature of a modern, liberal, democratic state governed by the rule of law.

From a Scottish perspective it gives us the opportunity to rationalise the present Byzantine and archaic procedures which take devolution issues to the Judicial Committee of the Privy Council and other appeals to the House of Lords.

Nevertheless the proposals have not been without controversy in Scotland. Some have argued that the proposals are contrary to the Claim of Right of 1689 and to the Treaty of Union. Some have argued that the right of appeal from the Court of Session to a higher court, at least to one sitting in London, should be abolished. Others have raised more general concerns about securing the status of Scots law. This evening I would like to discuss some of those questions and set out my own views and those of the Executive on issues raised by the Government's proposals.

Both the Faculty of Advocates and the Scottish Judges have said in their responses that any proposal for a new court must be compatible with the Claim of Right 1689 and the Treaty of Union 1707. The Law Society agree on the matter of the Act of Union, but do not mention the Claim of Right. The Faculty go so far as to say that

"a supreme court which is created must be consistent with the Claim of Right of 1689 and the Act of Union of 1707. These instruments are fundamental parts of the constitution of the United Kingdom of Great Britain and Northern Ireland, and in the view of the Faculty any proposal for a supreme court which contravened any provision of these instruments would be unlawful". (my emphasis)

So we must clearly look carefully at the provisions in the Claim of Right. It deals with several topics, but let us start with its provisions in relation to courts.

Prior to the Claim of Right, the whole question of whether or not there should be an appeal from the Court of Session to the Parliament had been one of considerable controversy in Scotland. Viscount Stair, perhaps the doyen of Scottish institutional writers, was against the idea of any appeal from the Lords of Session to the Parliament. In taking this view he was in conflict with many members of the Faculty of Advocates. The matter came to a public dispute between Charles II and those members of Faculty who thought that there ought to be an appeal and in 1674 some members of the Faculty of Advocates were actually banished from Edinburgh for persisting in giving advice that there should be such appeals.

It is clear from Stair's commentary on the issue that his objections were principled. He saw the difficulties of appealing from a body of lawyers, judges, to a political body which sat only occasionally and which was not equipped to deal with legal appeals. The rationale for the contrary view was that the right of appeal to the King and the estates was seen as a security against the possibility of injustice by the judges who at that time were very much under the influence of the King. In practical terms, it must have been the involvement of the estates which was seen as important. The perception appears to have been that the nobles who secured the ear of the King used their position to control the composition of the Court and therefore their ability to secure their own political and other ends. So the premise upon which an appeal to the Parliament was based was the fact - real or imagined - that the judges were subject to the influence of the Executive.

Be that as it may, those in favour of an appeal appear to have been in the ascendancy in 1689, when the Claim of Right was drafted. The Claim of Right, after the manner of 18th Century statutes, helpfully sets out the evils which it is designed to address. Having said in the preamble that King James VII had changed the constitution of Scotland from a legal limited Monarchy to an arbitrary despotic power and had asserted an absolute power to "cass annul and dissable" all the laws the declaration goes on to specify 14 particular complaints. It may be that these complaints are not set out in the order of gravity, but I have to say that the judges do not feature until number 13 and then the complaint is in the following terms -

"By sending letters to the Chief Courts of Justice not only ordaining the judges to stop and desist sine die to determine causes but also ordering and commanding them how to proceed in cases depending before them contrary to the express laws and by changing the nature of the judges' gifts ad vitam aut culpam and giving them commissions ad beneplacitum to dispose them to compliance with arbitrary courses and turning them out of their offices when they did not comply".

These are serious complaints. If the King, the executive, can direct the judges how to deal with particular cases and sack them if they do not comply then the confidence of the citizen in the rule of law is gravely diminished.

In its substantive provisions, on this matter, the Claim of Right specifically provides-

"That the sending letters to the Courts of Justice ordaining the judges to stop or desist from determining causes or ordaining them how to proceed in causes depending before them and the changing the nature of the judges gifts ad vitam aut culpam into commissions durante beneplacito are contrary to law."

Then there is a final reference to the judges, unheralded by any introductory complaint. It simply provides -

"That it is the right and privilege of the subjects to protest for remeed of law to the King and Parliament against sentences pronounced by the Lords of Session providing the same do not stop execution of the sentences."

So it was not sufficient, in 1689, simply to provide that Executive interference with the operation of the courts was contrary to law. It was also thought necessary to provide a specific appeal to the King and Parliament in relation to individual sentences pronounced by the Lords of Session. There are two principal comments to be made about this provision.

First, there is absolutely no suggestion that this was an appeal on law or even an appeal to lawyers. That, as I have indicated, was Stair's principal objection to the appeal. In his commentary on this provision he states many reasons why it would be wholly inappropriate to allow a right of appeal from the Court of Session to Parliament; but he does not really succeed in getting round the plain words of the statute. The Parliament comprised the nobility and the burgesses of Scotland. Indeed, while appeals to the House of Lords, following the Act of Union, were primarily considered by legally qualified peers, it was not until comparatively late in the 19th Century that the Appellate Committee, in its current form, was institutionalised. Prior to that it was open to non-legal members of the House of Lords to sit in on legal appeals.

This is one of the difficulties for those who say that any departure from the Claim of Right would be constitutionally unsound. We have already changed the nature of the appeal from that which was clearly envisaged in 1689.

The second difficulty is the proviso to the statement in the Claim of Right. The proviso says -

"Providing the same [that is, the protest against the sentence, the judgment, of the court] do not stop execution of the sentences".

It would be unwise for any lawyer in 2004 to attempt to say precisely what was in the mind of the Parliamentary draftsman in 1689 - but this provision looks to me like a saving of the effect of the judgment against which a protest is being made. In other words, what appears to be provided for here is not an appeal against the merits of the judgment complained of, but some sort of procedure equivalent to a Lord Advocate's or Attorney General's reference. However that may be, the House of Lords itself, on 19th April 1709, only two years after the Union, made an Order enacting that an appeal from a Scottish court prevented execution of the sentence or decree appealed. No-one can have told them that this was unconstitutional! It was not until 1808 that the Court of Session Act provided again for interim execution. And today we are still a long way from what was said in the Claim of Right, because the effect of sections 40 and 41 of the Court of Session Act 1988 is that while the Court of Session can provide for interim execution of interlocutors appealed to the House of Lords, that interim execution, like all other interlocutors in the case, is subject to review by the Lords.

It is difficult to reconcile the view of the Faculty, that any departure from the Claim of Right is unconstitutional, with what has happened and is happening in fact.

Even if we could understand precisely what the Claim of Right meant in these passages which I have quoted, how far should we treat it as an important constitutional statement rather than a response to a particular political situation? It was certainly important to those who drafted it in 1689, because they had just been through a period in which the Executive had assumed and exercised quite unwarrantable powers in relation to the conduct of the courts. But I suggest that it would be very unwise for us to assume that what was right for them in 1689 is necessarily right for us today. It would be even more unwise for us to adopt the position that a proposition of law is binding upon us today simply because it appears in the Claim of Right.

It may help to put the matter into perspective, and it is certainly instructive, to delve further into that document, because it was not only the judges and the courts which caught the attention of the legislators in 1689.

The first four of the specific complaints made by the Estates in the Claim of Right in 1689 related to various measures taken by the King to encourage the promotion of the Catholic faith and the employment of Catholics in public positions. Those actings of the King, like his actings in relation to his interference with the courts, were specifically declared to be contrary to law. According to the Claim of Right, it is contrary to law to allow mass to be said. It is contrary to law to allow "Popish" books to be printed and dispersed. It is contrary to law to make funds and donations to "Popish" schools. Leaving entirely aside the provisions of the Human Rights Convention, and of the legislation as to discrimination made under the European Union Treaties, no one has complained that the Education (Scotland) Act of 1918, which extended the right to public education to members of the Catholic faith, was in breach of the Claim of Right. If we are to accept that the Claim of Right is a golden statement of immutable principles, then we should be told why it is that its strictures on the practice and dissemination of the Roman Catholic faith, which look very odd to our modern eyes, are not to be followed today, while its rather vague provision about political appeals are set in stone for all time coming.

I turn to the Act of Union. It is interesting to note that, scarcely 20 years later, at the passing of the Act of Union with England, the Scottish Commissioners did not think it necessary to include in the Treaty of Union a specific repetition of this right of parties to appeal from the Lords of Session to the new Parliament of Great Britain at Westminster. There are indications that this omission, if omission it was, may have been at the instance of the English side in the negotiations, because of some internal trouble they were having over the differing rights of the House of Lords and the House of Commons. Be that as it may, if the right of citizens to appeal to Parliament was a fundamental right inserted by the Claim of Right in 1689, it was not so fundamental that the Scottish Commissioners insisted on its continuation in the Treaty of Union. They were content to leave that matter to be inferred by the Court. And that is indeed what happened.

In the context of this discussion, the relevant provision in the Act of Union is Article 19 which provides for the continuation of the Court of Session in all time coming and provides that judgments of the Court of Session shall not be subject to appeal to or review by any court sitting in Westminster Hall. But of course the real underlying purpose of the provision has nothing to do with the place where the courts sit: it is to secure that the Court of Session should not become a part of the English judicial system. I shall talk later about the nature of the present House of Lords and the proposed nature of the new Supreme Court. For the present it is perhaps sufficient to say that there appears to be no question in the mind of the United Kingdom Government of creating a new Supreme Court for England and Wales and making that court responsible for reviewing judgments of the Court of Session.

However the Faculty raise another point. They say that the arrangements for funding do not comply with Article XIX of the Treaty of Union. They note that the Department for Constitutional Affairs is responsible for the English Court system. If that Department is also to be responsible for the administration of the Supreme Court, "the existence of responsibility for the courts of England and Wales and the Supreme Court within the same Department would inevitably result in the two jurisdictions being regarded together for administrative purposes.".

That argument is I believe misconceived. While I acknowledge that the DCA is responsible for the English court system it also has a broad range of responsibilities relating to the constitution of the UK. It is responsible for the Scotland Office. Whatever else may be said about the funding proposals they are not contrary to the Treaty of Union.

So what is the significance of these constitutional Acts in the year 2004? It is more than three hundred years since the Estates of Scotland, in the political crisis occasioned by the deposing of James VII and the accession of William and Mary, set out what they saw as the contemporary requirements of Scottish constitutional law in the Claim of Right. What they said reflected their priorities. One of those - and it is a reflection of the regard in which the then judiciary was held - was that there must be an appeal from the judges to the King and Parliament. It is almost three hundred years since the Treaty of Union was negotiated, signed and ratified. It too reflected the political requirements of the two sides.

It would be difficult to over-state the astonishing differences in politics, government, administration and law which have occurred since these statutes were enacted. In the last three hundred years universal suffrage has developed, and the relationship between the Crown, the House of Lords and the House of Commons has changed, moving irreversibly in favour of the latter, and the administration of the two countries has come together. At the same time the whole legal landscape has altered out of recognition. The relationship between the two systems of law has developed, and the statute law of the United Kingdom has assumed an ever-increasing importance. We have joined the European Union and signed up to the European Convention on Human Rights. More importantly for our present purposes, the general quality of the judiciary has improved, and the arrangements for securing the independence of the judges from political influence have been transformed.

So we must interpret these Acts in accordance with modern principles, looking to the future, not to the past. We have to do what is right for us and what will best reflect the genius and spirit of Scots law in the United Kingdom of the 21st Century.

Jurisdiction of Court

One of the major issues to be settled in relation to the new Supreme Court relates to its jurisdiction. In that connection I noted the statement in the comments by the Lord President and the other Senators of the College of Justice, that the House of Lords does not function as a supreme court at present: that it sits either as an English or as a Scottish court. The Lord President goes on to say-

"The practical consequence of this is that the decision of the Appellate Committee in an English appeal is not binding in Scotland, and its decision in a Scottish appeal is not binding in England."

The Scottish Judges' concern is that there may be an implication that the new Court's decisions in civil cases will apply throughout the United Kingdom, and that any such move would be a retrograde step. They say-

"If the proposal for a United Kingdom Supreme Court is to proceed, it is vital that the binding effect of its decisions is limited to the jurisdiction from which the appeal has come, and that there are sufficient safeguards built into the powers of the proposed court to preserve the separate identity of the civil and criminal law of Scotland."

I am certainly not going to disagree with the Lord President and all the other judges of the Court of Session on a question of the effect of the decisions of the House of Lords. I would be with them in opposition to any attempt to change the present jurisdiction of the House of Lords in a way which would be to Scotland's disadvantage. But, as I understand it, the proposal is that the new Supreme Court should in civil cases assume the current jurisdiction of the House of Lords. Perhaps we should look at how that works in practice. I think that in broad terms one might make two observations.

The first is in relation to questions of statute law. Where the House is considering a statute of the United Kingdom Parliament which applies equally across both jurisdictions, or even a statute which is in the same terms in both jurisdictions, its decisions will be taken as binding in both. (We do not yet have any material to work on in relation to Acts of the Scottish Parliament.) The second is in relation to common law. Where the common law of both countries is the same on a particular issue - and the House is well able to recognise when it is not - its decision on that issue will be taken as binding across both jurisdictions.

The proposition about identical statutes is very clear in relation to bodies of law like the taxing statutes, which apply equally across the United Kingdom. But it also applies in relation to areas such as planning law where, at present at least, the statutes are separate but identical. Finally, where there is some general question of statutory interpretation, it does not matter whether it arises in a Scottish or an English statute. In the case of Lord Advocate v Dumbarton District Council, Lord Keith of Kinkel laid down some principles of general application. His Lordship said-

"There would appear to be no rational grounds upon which a different approach to the construction of a statute might be adopted for the purpose of ascertaining whether or not the Crown is bound by it according to the jurisdiction where the matter is being considered."

His Lordship then went on to find that statutes did not bind the Crown unless by express provision or by necessary implication.

In relation to common law, we are all familiar with Donoghue v Stevenson which was an appeal arising from a well known incident in Paisley. (It is unfortunate, to put it no higher, that throughout the Common Law jurisdictions of the world, the name of Paisley should be eternally associated not with the many fine qualities of the town, but with snails and ginger beer.) The panel of the House of Lords in that case comprised three English judges and two Scottish judges, and none was in any doubt as to what they were doing. Lord Atkin who, with the two Scottish judges, constituted the majority view, said -

"The case has to be determined in accordance with Scots law; but it has been a matter of agreement between the experienced Counsel who argued this case, and it appears to be the basis of the judgments of the learned judges of the Court of Session, that for the purposes of determining this problem the Laws of Scotland and of England are the same."

Similarly, Lord McMillan and Lord Thankerton, the Scottish judges, also approached the matter on the basis that Scots law and English law were the same. Indeed, as Lord Rodger of Earlsferry pointed out in his article on Lord McMillan's speech in the Law Quarterly Review of April 1992, there are strong indications that Lord McMillan redrafted his speech so that it would apply more specifically to English law than had originally been his intention.

So here was a Scottish appeal, on a question of Scots law, which the House of Lords treated as establishing a new principle of liability not only for the law of England but also, effectively, for all the common law jurisdictions of the Empire and Commonwealth.

And finally, I should mention a case in which the House of Lords found that the law was not the same, desirable though similarity might be, and decided accordingly. That was in relation to Glasgow Corporation v Central Land Board, which was a case involving public interest immunity. The leading case in England was Duncan v Cammel Laird. In Duncan the House of Lords had held that the court could not look behind a public interest immunity certificate granted by the Government, and the question which the House of Lords was considering was whether the same rule applied in Scotland. Viscount Simond said-

"At once it must be said that that decision [that is, the decision in Duncan] was given upon an English appeal, in which the law of Scotland was not directly under review, that the common law of Scotland differs from that of England in regard to the liability of the Crown to be sued and developed independently in regard to the right of discovery or recovery of documents in possession of the Crown, and that, desirable though it may be that in matters of constitutional importance the law of the two countries should not differ, yet it would clearly be improper for this House to treat the law of Scotland as finally determined by a decision upon an English appeal unless the case arose upon the interpretation of a statute common to both countries."

What do we take from this? It can only be that not only in relation to statute, but also in relation to common law issues, there are areas of the law where the law of Scotland and of England has always been or has become the same. In those areas a judgment of the House of Lords will at present be regarded for practical purposes as settling the law in both jurisdictions.

The second point I would make, however, is more fundamental for our present purposes. It is that, in modern times at least, the House of Lords has no difficulty in recognising those occasions upon which it is important to distinguish between the different legal systems in the United Kingdom, and to adapt its approach accordingly. If the new Supreme Court has the same jurisdiction as the House of Lords has at present, then there is no reason to suppose that it will not be equally discriminating.

Take in JCPC jurisdiction?

A separate question arises as to whether the new Supreme Court should have transferred to it the jurisdiction, currently exercised by the Judicial Committee of the Privy Council, to decide upon devolution issues arising out of the devolved arrangements for Scotland, Wales and Northern Ireland. The development of the respective jurisdictions of the Appellate Committee of the House of Lords, on the one hand, and of the Judicial Committee of the Privy Council, on the other, has been very different. The former has evolved from the right of citizens, both in Scotland and in England, to appeal to the King in Parliament from the decisions of the Royal Courts. The latter stems from the Judicial Committee Act of 1833. The Judicial Committee had at one time a very extensive jurisdiction as, effectively, the final court of appeal from most colonial jurisdictions. In addition, a number of different professional bodies within the United Kingdom, such as the doctors and the dentists, had, for historical reasons, the right to submit appeals to the Judicial Committee. But these jurisdictions are dwindling, as Empire diminishes to vanishing point and the countries of the Commonwealth develop their own arrangements. Even the appeals of the doctors and the dentists have now been transferred, at an appropriate level, to the ordinary courts. In these circumstances the arrival of devolution issues might have been seen as a much-needed fillip to the business of the Judicial Committee.

But there are practical considerations. Both the Joint Committee to the Privy Council courts are normally staffed by the Lords of Appeal in Ordinary, in other words, from the panel of 12 permanent House of Lords Judges. Both can invite other distinguished judges to join them, although the range open to the Judicial Committee is wider than that open to the Appellate Committee. But the great bulk of the work is done by the permanent judges of the House of Lords. We have to ask then, what is the difference between the Judicial Committee of the Privy Council and the Appellate Committee of the House of Lords? When the matter was debated in the House of Lords during the passage of the Scotland Act 1978, when there was a question as to which of the two courts should decide devolution issues, the Lord Hailsham of St Marylebone, subsequently Lord Chancellor, was able to assist the House. He said, after pointing out that either court would comprise the same body of distinguished judges -

"What is the difference between these two vastly different judicial bodies? A large Daimler car, because one sits upstairs, and one sits in Downing Street. That is the difference."

It is a commonplace for courts, certainly for the Court of Session, to adjust their consideration of different matters by reference to the jurisdiction which they are exercising in particular areas of law. There is clear evidence from the judgments which have been issued by the Judicial Committee, in the devolution cases which they have already dealt with, that the judges recognise the limitations of the jurisdiction which has been conferred upon them by the Scotland Act. I see no reason to suppose that these same judges would suddenly become unable to recognise those limitations if the court they sat in were to be known by a different name.

Leaving aside these esoteric arguments as to the constitutional nature of the differing jurisdictions, there must be clear practical advantages for the administration of the courts, and the handling and management of their business, if there is, so far as possible, a single organisation.

Why do we need an appeal to a Supreme Court?

There are some who argue that this proposal gives us an opportunity to end the right of appeal in civil cases from the Court of Session to a Supreme Court. They argue for the "repatriation" of Scots law. The fear for its future. They worry about the "anglicisation" of Scots law.

I begin by saying, by way of general comment, that we should not underestimate the value of differing viewpoints to a consideration of legal principle at the highest level. I have mentioned the specific contribution of Scots judges in particular cases. I am sure that in many others the input from the Scottish members of the panel has improved the consideration by the English judges of questions of English law.

And the process is two-way. The Scottish legal system benefits from the exposure of our legal practices and principles to friendly but critical examination by members of another legal discipline, particularly where, as in the Glasgow Corporation case, which I have already mentioned, there is no question of the Scottish principles being overruled simply because they are different.

As a legal system in a small country on the edge of Europe, we must be conscious of the risk of becoming self-centred and inward-looking. It would be very easy for us to fall into the trap of defining our unique legal qualities and character in a negative sense, of simply not being the same as others. Certainly we must protect and cherish and develop the many valuable features of our legal heritage. But the presence of Scottish judges in the supreme court, whether it is the current House of Lords or the proposed new institution, opens a two-way window for us into the worldwide family of common law systems. In the same way the United Kingdom's membership of the European Union opens up for Scots lawyers opportunities of contributing to, and learning from, the differing systems of Continental Europe. This is not the time for Scots law to retreat into some kind of protectionist shell.

Paradoxically, those who still worry about the future should look to the past. We have survived 300 years of appeals to the House of Lords. We are still here. We still have our own legal system, a jurisdiction which I strongly believe punches above its weight in the world. The Scottish Parliament has a wide jurisdiction over most areas of Scots private law, our court system and legal professions. We are now in many ways better placed than ever before to ensure the continuation of our distinctive legal system and avoid assimilation in a wider UK jurisdiction.

Criminal Appeals

I do not propose to spend much time discussing the question of whether criminal appeals should be able to be taken to the new Supreme Court. They never have gone beyond the High Court of Justiciary in Edinburgh. The United Kingdom Government is not suggesting that they should go to the new Supreme Court. Nor are the Lords of Appeal in Ordinary, the Scottish Judges, the Faculty of Advocates or the Law Society of Scotland. The only rationale for considering whether a change should be made would be in the name of some kind of over-focused drive for logical consistency in the face of historical experience and practical utility. Let us pass on to the exploration of more relevant matters.

Appointment Process

I turn to some of the more detailed aspects of the matter. As you know, the appointment of judges to the Court of Session and of sheriffs in Scotland is now dealt with by a Judicial Appointments Board which advises the First Minister as to the names which he should take into account before he in turn advises the Queen. I believe that the new system is working well in Scotland. It introduces a level of transparency into the appointment process which is valuable, as assuring the public that anyone properly qualified can be certain that his or her name will go forward as a possible candidate for judicial office.

The consultation paper issued by the Department of Constitutional Affairs is open minded about the system for the appointment of judges to the new Supreme Court. The functions of a judge of the Supreme Court are of course very different from those of a judge at first instance. The successful candidates will certainly already have occupied high judicial office for some time. I believe that we should have a process for appointing Supreme Court judges which is separate from the other appointment systems. No doubt the Government will arrive at a workable conclusion on this matter. For my own part, I think that the process should recognise that it is for the Prime Minister to recommend to the Queen the appointment of new members of the Supreme Court, because of the rule that the Queen acts only on the advice of Ministers, and because ultimately Ministers must be responsible to Parliament for any appointments. I think that in that process he should take advice from the Supreme Court, from the Heads of the Judiciary in the jurisdictions of the United Kingdom and, so far as Scotland is concerned, from the First Minister.

How many Scottish judges on appeals?

The final substantive matter I wish to discuss this evening is the composition of the Supreme Court for particular cases. This is a matter of some delicacy and difficulty. Some say that any panel of the Supreme Court considering an appeal from a particular jurisdiction should contain a majority of judges from that jurisdiction. But leaving aside the practical difficulties, I think that that would be a retrograde step. There is, as I have indicated, no evidence that in modern times the larger jurisdiction has sought to use its position to impose alien solutions on the smaller. And there have been cases in which it was only the fact that there was a majority of English judges in a Scottish case which enabled the House of Lords to produce a decision which would be binding also in England and Wales. Donoghue is the classic example.

More fundamentally, if there were, either by statute or by convention, a rule that there must be a majority of Scottish judges on an appeal from Scotland, there would open up the possibility of differing interpretations of the same provision of UK law in different parts of the United Kingdom. There is a recent example of this. In the case of Attorney General's Reference No 2 of 2001, a question arose as to the correct interpretation of section 6(1) of the Human Rights Act 1998. I do not wish to go deeply into the issues, but the approach and the interpretation adopted by the two Scottish judges was completely at odds with that adopted by the seven English judges. If there were a requirement that there must be a Scottish majority in any Scottish appeal on the meaning of that Act, we would clearly open up the possibility that the same provision of United Kingdom law would be taken to mean different things north and south of the border. That would be a most undesirable development.

One of the principal advantages of a supreme court is that it definitively settles legal questions for the benefit of the public. It provides the citizens, and the companies, and the public authorities with a degree of certainty as to the framework within which they can carry on their several occupations. Complex litigation is fun for us lawyers. It is a fascinating exercise to look at a new judgment, and try to work out how many questions it settles, and how many it leaves open for further detailed consideration, argument and appeal in due course.

That is what we do, and I would like to think that in a sophisticated society it is a necessary and even an admirable function. But we have to remember that the point of all this activity must be relevant to the real concerns of real people, or it is a waste of time. We should not set up a system which carries within it the possibility, if not the probability, of pointless division of views on the same subject. There are quite enough possibilities for judicial confusion inherent in the present system, without our seeking to create more. We should ensure that the arrangements for the new Supreme Court prevent that from happening, so far as is possible. So I would be against the proposal that there should be a built-in Scottish majority in Scottish cases.

I would go further. I would like to think that the new Court will seriously consider sitting in larger panels more of the time. There have been several cases in recent years in which differently constituted panels of the same court have reached different views on the same question. It has happened in the Judicial Committee of the Privy Council and it has happened also in the House of Lords. I think that there is a strong argument for the court to sit in larger bodies so as to reduce the risk that a different group of the judges will within a relatively short time come to a different view on the same question.

Conclusion

As I said at the beginning of this speech, I welcome the decision to set up a new Supreme Court. In a modern democratic society the highest court should be clearly separated from the legislature. I also welcome the opportunity which the new proposal gives us in Scotland to modernise the arrangements for Scottish appeals so that we can have a single source of authority at the highest level. I have no fears that Scots law will be submerged in that process. On the contrary, I look forward to the new arrangements enabling Scots law to continue to make its distinctive contribution to the common law systems of the world and to the civil law systems of the European community.

ENDS