Tuesday 9 December 2003: Constitutional Affairs Committee – Examination of Witness – Rt Hon Lord Cullen, (Lord Justice General of Scotland and Lord President of the Court of Session) Chairman: We are particularly pleased to have the head of judiciary in Scotland.
Lord Cullen: we have met before when we were carrying out our inquiry into the judicial appointments in Scotland before the Government announced its plans for England and Wales.
Chairman: What we thought we might do is start by looking at the Supreme Court issue and initially looking at it in general terms before coming on to those aspects which are particular to Scotland.
Lord Cullen: It all depends what kind of Supreme Court we are talking about.
We seem to be talking about one which is simply taking over lock, stock and barrel the existing functions of the Appellate Committee and perhaps also the Judicial Committee of the Privy Council, so what is happening is to happen somewhere else in a different atmosphere and I do not quite see how that takes you any further.
There may be opportunities possibly for making pronouncements which would be of use to the whole of the United Kingdom, but one has to remember that the existing civil jurisdiction as far as Scotland is concerned is that the Appellate Committee functions as a Scottish court (with a wall, as it were) between it and its functioning as an English court.Q: Could I address my comments to you, Lord Cullen. I understand from your evidence that you are not wildly enthusiastic about the proposed changes?
Lord Cullen: That is right.
Q: Many of us were astounded that the Government could come up with proposals to reorganize our court of final appeals without consulting the outgoing Lord Chancellor, the incoming Lord Chancellor, the present members of the Judicial Committee of the Lords, and I think we would do better to discuss this in terms of a court of final appeal and leave the title to be chosen afterwards. Referring to perceptions. What would be the minimal changes that might meet the perception point?
Lord Cullen: I am not sure what you mean by “minimal changes”.
Q: Largely that the Lord Chancellor should not be able to sit as a law lord.The minimal change is the Lord Chancellor saying “I will not sit as a law lord” rather than throwing the whole system in the air.
People argue that having the law lords meeting in the House of Lords is somehow the executive interfering, forgetting of course that Parliament is not the executive and that any arrangements are likely to be more expensive. Could they be cheaper than the present arrangements?
Lord Cullen: I cannot say because I do not sit as a Lord of Appeal but my impression is that it would be cheaper to leave things as they are than to create something free-standing outside, and there also is the advantage at the moment, as I understand it, that the Appellate Committee is funded through the House of Lords whereas if it is to be exported to some other place it would then be funded by the Department of Constitutional Affairs, hence you get a closer association or greater association with the executive which did not previously exist. Now that itself raises a problem of independence.
Chairman: Turning, Lord Cullen, to the Scottish aspects of this, are the Government’s proposals compatible with the Act of Union, Article 19 and the “Claim of Right” and, if not, what would have to be done to them to make them compatible?Article 19 of the Act of Union states “… that the Court of Justiciary do also after the Union, and notwithstanding thereof, remain in all time coming within Scotland, as it is now constituted by the Laws of that Kingdom, and with the same Authority and Privileges as before the Union, subject nevertheless to such Regulations as shall be made by the Parliament of Great Britain, and without Prejudice of other Rights of Justiciary…”
Lord Cullen: I venture this matter in my response really in order to make the point that this aspect ought to be considered by the Government. Before the “Act of Union” there is the “Claim of Right”, which was a Scottish provision at the time when the monarchy was returning to Scotland in 1689 and there was then a declaration by the Scottish Parliament as to the right of subjects to protest for remede of law to the King and Parliament and that is the ancestor, so far as Scotland is concerned, of the hearing of civil appeals from the Court of Session to the House of Lords.
The “Act of Union” was silent on the question of appeal from the “Court of Session” or, indeed, the “High Court of Justiciary” but it was later, much later, interpreted in such a way as to indicate that the “Court of Session” and its decisions should be subject to review whereas the “High Court”, the criminal court, would sit its decisions to be regarded as final and conclusive, so what you have, firstly, is an interpretation of the “Act of Union.”
The second point is that, until now, it has been recognized that there are some situations, not easy to define, where certain elements in our constitution may be unalterable – that is a possible view.
It arises from time to time, most recently in the case involving Lord Gray’s Motion where certain members of the “Committee for Privileges” reserved their view on that matter.
So however strange it may seem there is an argument that Parliament might not be able to alter or undo certain elements of a constitutional nature.
That is a sketch of the argument: whether it is good or not I do not propose to advance, but simply say it is there to be considered.
Chairman: Are you proposing any way in which the Government’s proposals might be modified to avoid collision with that argument?
Lord Cullen: I am inclined to think that it may very well be that so far as civil appeals are concerned there is not a problem, but it is simply something that ought to be looked at. Therefore my answer to that is probably that no alteration is, in fact, required.
Chairman: Do you agree that legislative competence so far as any changes to leave to appeal and things of that kind are concerned does not lie with Westminster under the devolution settlement but with the Scottish Parliament?
Lord Cullen: That is quite a difficult matter. If you look at the Scotland Act you will find that what is reserved is the continued existence of the Court of Session and the High Court of Justiciary. The way that the Scotland Act is constructed certain matters are specifically reserved: the rest is not, and therefore it appears on the face of it that matters other than the continued existence of these courts is a matter for the Scottish Parliament.
Nobody is entirely clear as to that being the case but that seems to be the position, in which case there seems to be a role here for the Scottish Parliament.
Now I would hope that the matter was not, so to speak, nodded through in Scotland but given serious consideration, but that is the position, as I understand it.
Chairman: Lord Hope expressed the view that the Scottish Parliament would need time to deal with this matter before it proceeded at Westminster?
Lord Cullen: I would agree with that and the consultation paper, whereas it makes clear what the executive’s attitude is and we have seen the executive’s response since then, so far as I know as yet there has not been a considered discussion in the Scottish Parliament.
Chairman: There is a phrase which I think you may have challenged already which the Government use in respect of constitutional issues where they say that the establishment of the new court “accordingly gives us the opportunity to restore a single apex to the United Kingdom’s judicial system where all the constitutional issues can be considered”.
That is in the consultation paper.
Is it your view that, leaving aside the devolution issues, there ever was or should be a single apex which combines the judicial systems of England and Scotland?
Lord Cullen: I do not think that is correct. The position until now is that the Appellate Committee functions sometimes as an English court and sometimes as a Scottish court, and I say that because what is binding in England is not binding in Scotland.
You have two completely separate jurisdictions so that whatever decision the House of Lords reaches in regard to a civil matter it does not bind in Scotland, and vice versa, so you really have two apices rather than one apex and, if the position is that that is to be taken over by the Supreme Court, it will have those two high points, whereas the paper tends to talk as if this is the opportunity for the United Kingdom court.
Well, I say that is obscuring the point: that you have two separate jurisdictions each with its own head happening to be administered under one device, namely the Appellate Committee.
That is what we have: it is a result of the separate growth of two legal systems, and it is preserved, of course, by the Act of Union.