Appendix III: Autonomy of Scottish law within the appellate jurisdiction of the House of Lords/Supreme Court
The Scotland Act 1998 is but the latest chapter in the constitutional narrative of Scots law and the Scottish legal system. The running theme of that narrative has been the separateness of the Scottish system from those of England and Wales and of Northern Ireland. Yet separateness has never been complete, autonomy never more than 'relative'. The several legal systems of the single 300 hundred year old polity of the United Kingdom have had many and cumulative occasions for interpenetration. This organic development has been both influenced by and reflected in the manner in which the House of Lords has exercised its function as an appellate court.
Although the House of Lords consistently rejected purported appeals from decisions of the High Court of Justiciary, it did accept appeals from the Court of Session shortly after the Union of 1707. 1 Accordingly, the nature of appeals which could relevantly be brought to the House of Lords was well settled early in the history of the new state. What was less clear, and perhaps more surprising for its lack of clarity, was the institutional quality or corporate character of the House of Lords as a court. Further, the vagueness and ambiguity at the general institutional level left unresolved certain questions relating to precedent at a more practical level. In what follows, we will first explore this background of vagueness and ambiguity in terms of the Appeal Committee of the House of Lords, before going on to consider the extent to which the creation of the new Supreme Court changes the position.
B House of Lords
The Appeal Committee of the House of Lords represented the highest court in civil matters for Scotland for three centuries. What is remarkable, therefore, is the extent to which the theoretical character in which this highest tribunal operated has been, and indeed remains, underspecified. 2 This has been well described by a number of commentators:
Before considering the ways in which decisions of the House of Lords affect current practice of precedent in Scotland, something must first be said about the identity of the House as a court. Given the House's role in constitutional and general legal matters, it is surprising perhaps to discover that it is not altogether clear in what capacity the House sits as a court, and in particular whether the House is to be characterised as a Scottish court or alternatively as a United Kingdom court. 3
The difficulty in characterising the nature of the House of Lords as a court of law is a result of the organic development of its jurisdiction, and the asymmetry of the different systems which it served. On the one hand, it was the final court of appeal for the legal systems of England and Wales, Northern Ireland, and Scotland in civil matters. On the other hand, these different legal systems or jurisdictions have their own substantive laws and procedures, though the extent of the differences between the three systems is variable. Yet, while the different systems are distinct and have their own structural integrity, there is also a somewhat amorphous body of law which may be common to the different systems-sometimes said to be areas of general jurisprudence, statutory construction, and perhaps now more broadly with regard to non-devolved matters under the Scotland Act.
These different aspects of the interactions between the different systems within the House of Lords have traditionally been considered within the context of the system of precedent. 4 As the House of Lords appears not to have conclusively specified its own character, the key judicial conceptualisations of the nature of the House of Lords hearing Scottish appeals are pronouncements of the Court of Session. In Virtue v Commissioners of Police of Alloa5 a seven judge bench arrived at a variety of different views with regard to the nature of the judicial character of the House of Lords. The most strident views expressed in favour of the House of Lords as a United Kingdom court are those of Lord President Inglis:
I think it is an error in constitutional law to represent the House of Lords as sitting at one time as a Scottish Court and at another time as English Court. That House, I apprehend, sits always in one character, as the House of Lords of the United Kingdom, and as such the Imperial Court of Appeal for the whole three parts of the United Kingdom. It has occasion to administer at one time the law of Scotland, at another the law of England and at another the law of Ireland. But in appeals coming from all three countries it has to deal with principles of law that are common to the whole three. 6
This pronouncement is the clearest authority in favour of viewing the House of Lords as a United Kingdom court, 7 though it is a different matter to ascertain the law which that court administered.
Against the above view, it has been suggested elsewhere that the House of Lords not only applied Scots law, but, furthermore, that when hearing a Scottish appeal it sat as a specifically Scottish court. 8 It seems clear at least, then, that the law which was administered by the court, whether it was a United Kingdom or Scottish court, is Scottish law. Yet, within this statement there are hidden complications and unresolved questions-namely, to what extent is such 'Scottish law' permeated by notions of 'general jurisprudence', and what status and significance should be accorded to statutory interpretations of United Kingdom statutes. Furthermore, these questions are closely tied up with the issue of the precedent value of decisions of the House of Lords, when dealing with appeals from the other legal systems of the United Kingdom.
According to one commentator writing at the beginning of the 20 th century:
The distinction thus drawn indicates three classes of decisions by the House of Lords, binding on our courts in different degrees. (1.) When the House of Lords as an Appeal Court is administering the law of Scotland, its decision is conclusively binding on Scotch Courts. (2.) When it is administering English or Irish law, its decision is not necessarily binding on our Courts… (3.) When the House of Lords is dealing with principles of law common to the three countries-such as the construction of an imperial statute-its decisions are conclusively binding. 9
It is important to note the language used in the first rule, notably when the House is administering the law of Scotland it is binding. This is different from saying that only decisions on appeals from Scotland are binding upon the Scottish courts, which in turn opens up questions with regard to the fact that the laws of Scotland, England and Northern Ireland are institutionally comprehended through the device of judicial knowledge. 10 While it has been suggested that an appeal from another United Kingdom legal system which nonetheless results in the application of Scottish law might be binding, others have stated that:
'…the view that these observations have only high persuasive authority for the Court of Session but are not absolutely binding seems preferable and more rational. No Scottish Lord of Appeal nor Scottish counsel might have been involved…Thus, although the House of Lords may take judicial notice of Scots law in an English appeal for the purposes of that appeal, it would jeopardise the coherence of Scots law if it were to be determined conclusively by a decision of the House of Lords, especially if it has sat without the assistance of Scottish law lords or counsel.' 11
It appears, therefore, that the exact force accorded to a decision of the House of Lords is a matter of context and degree. It seems clear that a decision in an appeal from another legal system within the United Kingdom, which also deals with the law of that system, will be accorded great respect but cannot be said to represent a binding precedent. However, to this proposition there must be attached the following caveat-statutory interpretations of United Kingdom statutes appear to be given a stronger precedent value. Therefore, according to Henderson such a decision will be binding in a Scottish appeal. 12 This assertion is accepted without demur by TB Smith, though he is careful to point out that the binding effect accorded to a statutory interpretation is different from the more nebulous authority ascribed to decisions proceeding upon questions of 'general jurisprudence.' 13 A more tentative approach is advanced by Walker who suggests that 'Decisions of the House in English appeals on statutory provisions common to England and Scotland are probably binding, but not if the statute is peculiar to England.' 14 Even more cautiously, however, it has been suggested that:
'...the preferable view may be that even in interpreting statutory provisions applicable to Great Britain or the United Kingdom, although it is highly probable that the House will accept an interpretation adopted in an English appeal as appropriate to be followed in a subsequent Scottish appeal (and conversely), it is not strictly bound to do so...There is probably more sensitivity to such matters than hitherto. Thus, although in McIntyre v Armitage Shanks Ltd the House adopted a statutory interpretation pronounced in a prior case, Lord Fraser was careful to indicate that it was not formally binding in a Scottish appeal.' 15
Therefore, there is a full spectrum of views regarding the binding force of a decision of the House of Lords interpreting a United Kingdom statute. At one end the decision is said to be binding, whereas at the other end it is said to be not strictly binding, though it will be given very full consideration. The judicial pronouncements on the issue are not capable of easy reconciliation either. We have already seen the broad expressions of opinion uttered by Lord President Inglis in Virtue v Commissioners of Police of Alloa, 16 where he stated that the true constitutional position of the House of Lords was as a United Kingdom court. However, in a later case Lord President Inglis sought to clarify his remarks:
I recognise without hesitation the position of the House of Lords as the Court of ultimate resort, in the fullest sense, for the whole three parts of the United Kingdom; and I had occasion in the very remarkable case of Virtue v Commissioners of Police of Alloa, differing from my brethren, to express myself in the following words: "I think it an error in constitutional law, to represent the House of Lords as sitting at one time as a Scotch court, and at another time as an English court. That House, I apprehend, sits always in one character, as the House of Lords of the United Kingdom, and as such the imperial Court of Appeal for the whole three parts of the United Kingdom. It has occasion at one time to administer the law of Scotland, at another the law of England and at another the law of Ireland. But in appeals coming from all three countries, it has also to deal with principles of law that are common to the whole three." If this be sound the corollary is manifest. This Court is bound by the judgments of the House of Lords in cases of the last description as authorities, even though the judgments may have been pronounced in Scotch appeals. But it is otherwise when the House if administering a law different from or antagonistic to the principles of the law of Scotland. There the judgment on appeal is no more binding on this court than the judgment of the Court of first instance, from which the appeal comes. 17
Accordingly, the binding effect which Lord President Inglis would ascribe to such cases is confined to this somewhat more nebulous class of matters of 'general jurisprudence'. Historically this concept of general jurisprudence has been difficult to define categorically, and indeed it seems better to view the exercise as a case by case attempt to show common rules and principles between the two systems, rather than as an appeal to an abstract general jurisprudence. 18 Indeed, the leading judgment in the House of Lords appeal of Ewing v Orr Ewing19 gives less strength to a precedent arising from another United Kingdom system, even if it proceeds upon such general principles of jurisprudence:
A decision of this House, in an English case, ought to be held conclusive in Scotland, as well as England, as to the questions of English law and English jurisdiction which it determined. It cannot, of course, conclude any question of Scottish law, or as to the jurisdiction of any Scottish Court in Scotland. So far as it may proceed upon principles of general jurisprudence, it ought to have weight in Scotland; as a similar judgment of this House on a Scotch appeal ought to have weight in England. If, however, it can be shewn that by any positive law of Scotland, or according to authorities having force of law in that country, a different view of the proper interpretation, extent, or application of those principles prevails there, the opinions on those subjects, expressed by noble and learned Lords when giving judgment on an English appeal ought not to be held conclusive in Scotland. When a Scottish decision, in apparent conflict with them, is brought to the bar of this House, the first duty of your Lordships must (I conceive) be, to ascertain, whether there is any settled rule of Scottish law, requiring or justifying that decision. 20
It is striking that this judgment, just in order to demonstrate its high sensitivity to the position of Scots law, is prepared to be less strict in its view of the binding effect of its own decisions relating to matters proceeding upon general jurisprudence. It should, however, be borne in mind that the context for the case was a direct conflict between the authority of Court of Session and the Court of Chancery, and the argument relating to the authority of the House of Lords was treated as something of a side issue by the majority of the law lords.
C United Kingdom Supreme Court
The question that falls to be considered now is the extent to which the newly established Supreme Court may take a different approach to the, admittedly somewhat unclear, approach previously taken by the House of Lords. It seems clear on the one hand that the House of Lords applied the law of the court system from which the appeal before came. On the other hand, although perhaps less definitively clear it seems that the House of Lords constituted a single United Kingdom court. The relative authority accorded to the decision of the House of Lords in a case from one UK jurisdiction in another remained unclear, as there was no definitive pronouncement from the House of Lords itself, and the opinions of commentators are divided.
The legislative provisions which set out the competence and remit of the newly established Supreme Court provide guidance on the matter. Technically, indeed, this will be decisive as the court is not a court of inherent jurisdiction but a creature of statute. The new Supreme Court's Scottish jurisdiction is defined in section 40 (3) of the Constitutional Reform Act 2005, which states that it will be competent to hear appeals from any Scottish court from which an appeal lay to the House of Lords at or immediately before the commencement of the section. Therefore, in order to understand the jurisdiction of the newly erected Supreme Court it is necessary to be aware of the prior jurisdiction exercised by the House of Lords. The basic point here is that criminal appeals, except those dealing with devolution issue matters, will not be within the purview of the new Supreme Court.
In addition to the jurisdictional provisions contained within section 40, the Act then goes on to provide for the Supreme Court's 'Relation to other courts.' 21 It is this section that seeks to offer clarification of the interaction between the different legal systems of the United Kingdom within a single apex court. The first subsection states that 'Nothing in this Part is to affect the distinctions between the separate legal systems of the parts of the United Kingdom.' 22 At first blush this may seem to suggest that the distinct nature and integrity of the separate legal systems of the United Kingdom, notably those of Scotland, England and Wales, and Northern Ireland, is fully endorsed and protected. However, the provision is capable of another interpretation. The subsection literally provides only that the provisions of the new Act will not affect those distinctions between the separate legal systems that already obtain. In this sense the subsection preserves precisely the existing understanding of the separateness of those legal systems, and so cannot resolve existing doubts and ambiguities about the nature and degree of that separateness.
The section goes on to further provide that 'A decision of the Supreme Court on appeal from a court of any part of the United Kingdom, other than a decision on a devolution matter, is to be regarded as the decision of a court of that part of the United Kingdom.' 23 Accordingly, this provision is capable of being read as a rationalisation of the question of whether the court sits as a United Kingdom court applying the law of the individual systems which it serves; or alternatively, if the court sits as a Scottish court when it hears a case on appeal from a Scottish court. Again, however, the wording is somewhat obtuse. It merely stipulates that a decision of the Supreme Court in a case on appeal from the Court of Session is to be treated as the decision of a Scottish court. Therefore, while the effect of this provision is that the court is deemed to sit as a Scottish court in appeals from Scotland, it does not necessarily alter the strict legal fact that the court sits as a United Kingdom court, especially given that the court is so named. 24 Furthermore, it remains to be seen-and this will be a matter for the Supreme Court itself to authoritatively decide, though lower courts may take initial views-to what extent these new statutory provisions will impact upon the problems of precedent discussed above.