Scotland Bill: Written Representations

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SCOTLAND BILL: WRITTEN REPRESENTATIONS

UNDER THE CONSTITUTIONAL REFORM ACT 2005

1.I, the Right Honourable Lord Hamilton, Lord President of the Court of Session, in furtherance of section 5 of the Constitutional Reform Act 2005, lay before Parliament the following written representations in relation to clause 17 of the Scotland Bill presently before Parliament, a matter of importance relating to the administration of justice in Scotland. What I urge should be done in that regard is set out at paragraph 18 below.

Background

2.Section 57(2) of the Scotland Act 1998 provides that a member of the Scottish Executive has no power to do any act in so far as that act is incompatible with any of the Convention rights or with Community law. The Convention rights are the rights and fundamental liberties set out in certain Articles of the Convention for the Protection of Human Rights and Fundamental Freedoms, including Article 6 of that Convention (Scotland Act, section 126(1), as read with sections 1 and 21(1) of the Human Rights Act 1998). The Lord Advocate is a member of the Scottish Executive (Scotland Act, section 44(1)(c)).

3.Virtually all prosecutions of criminal cases in Scotland are brought by or on behalf of the Lord Advocate. A broad judicial interpretation of the concept of an “act” under section 57(2) of the Lord Advocate has had the effect that a wide range of procedural issues arising in such prosecutions have become amenable to challenge on the ground that they are ultra vires (beyond the powers of) the Lord Advocate. The jurisprudence in this field is substantial. The High Court of Justiciary, both as a court of first instance for the trial of serious crime and as a court of appeal in relation to all crime, has had wide experience of this area of law since the coming into force of the Scotland Act in 1999. That court is also alert to the circumstance that, as a public authority, it is unlawful for it to act in a way which is incompatible with a Convention right (Human Rights Act, section 6(1)).

4.The devolution settlement made by the Scotland Act recognised and conferred certain judicial jurisdictions. For that purpose it identified the concept of a “devolution issue”, namely one of the questions specified in paragraph 1 of schedule 6 to the Scotland Act. A primary purpose of these jurisdictions was to ensure that there was judicial monitoring of the vires of the exercise, by the Scottish Parliament and by the Scottish Executive, of the powers conferred on them respectively. Part II of schedule 6 acknowledged the responsibility of the ordinary courts in Scotland, both civil and criminal, to adjudicate upon devolution issues duly raised before them. But it went further. By paragraphs 12 and 13 it conferred on the Judicial Committee of the Privy Council an appellate jurisdiction with respect to certain determinations of devolution issues by the superior courts in Scotland (the Inner House of the Court of Session in civil matters and the High Court of Justiciary in appellate criminal matters). This was a new jurisdiction. Until then, while an appeal lay in civil matters from the Inner House of the Court of Session to the House of Lords (which would prospectively include a determination in the course of ordinary appellate proceedings of a devolution issue), the Judicial Committee of the Privy Council had no jurisdiction to hear appeals from Scotland (whether civil or criminal). And it has long been established that the House of Lords has no jurisdiction to hear any appeal from the High Court of Justiciary (Bywater v The Crown (1781) 2 Paton 564; Mackintosh v Lord Advocate (1876) 3 R (HL) 34).

5.Because the Lord Advocate was a member of the Scottish Executive the effect of paragraph 13(b) of schedule 6 (as read with paragraph 1) was to confer on the Judicial Committee of the Privy Council a jurisdiction to entertain an appeal from a court of two or more judges of the High Court of Justiciary (in effect, that court sitting as a court of appeal) on a devolution issue. The jurisdiction lay only with leave of the High Court or, failing such leave, with special leave of the Judicial Committee. Section 40(4) of the Constitutional Reform Act 2005 (as read with schedule 9, para 103(8)) transferred this jurisdiction to the Supreme Court. It has been exercised on a number of occasions since 1999, sometimes with leave granted by the High Court, on other occasions, where leave has been refused, with special leave of the Judicial Committee or the Supreme Court.

Developments
6.In 2008 the judges of the High Court of Justiciary made a submission to the Calman Commission about the operation of section 57(2) of, and schedule 6 to, the Scotland Act in which they expressed certain concerns. Since then a number of other bodies have expressed views on the practical operation of the jurisdictions conferred on the Judicial Committee (now the Supreme Court) by the Scotland Act. These include the Expert Group (under the chairmanship of The Right Honourable Sir David Edward, Q.C.) set up by the Advocate General for Scotland – to which also the judges made a submission – and the Review Group (under the chairmanship of The Right Honourable Lord McCluskey) set up by the Scottish Ministers. These two Groups appear to be of the same mind – that the present arrangements are unsatisfactory, but disagree on the solution to the problem. Clause 17 of the present Bill comprises the Advocate General’s initial proposal for amending legislation. It is understood that, in certain respects at least, he is minded to depart from that initial proposal. At the time of drafting these representations I have not had sight of any recent proposed amendments by the Advocate General to clause 17. I have, however, seen certain amendments proposed by Lord McCluskey.

The issues

7.There are, as I see it, two primary issues which require to be addressed. These are (1) the triggers for the invoking of a human rights issue appropriate for consideration by the Supreme Court and (2) whether the jurisdiction of that court should be limited to cases in which the High Court of Justiciary has granted a certificate that the particular case raises a point of law of general public importance.

8.An anomaly of the present jurisdiction of the Supreme Court in criminal devolution issues from Scotland is that they can arise only if the Lord Advocate has acted (or failed to act) in a way which, arguably, infringes the Convention rights of an accused or appellant. That is notwithstanding that the High Court, as a public authority, cannot lawfully act in a way which is incompatible with a Convention right (Human Rights Act, section 6(1)). An incompatible act by the High Court is not however justiciable before the Supreme Court. This seems anomalous. It means, for example, that an act of the High Court in sentencing (a matter with which the Lord Advocate has no concern) could not be brought under review in the Supreme Court even if that incompatible act raised a point of law of general public importance. It should not, I suggest, depend on who is responsible for the infringement (the prosecutor or the court) as to whether there is in principle a right of appeal.

9.The second issue, though different, is related to the first. It concerns the appropriate relationship between an intermediate court of criminal appeal (such as the High Court of Justiciary in its appellate capacity) and a further court of appeal (such as the Supreme Court). Criminal appellate jurisdiction differs from civil appellate jurisdiction in that it is not concerned solely with the determination of the rights and obligations of litigants appearing before it. It is also concerned with the practical operation, including the effect on the community, of the exercise of that jurisdiction. The intermediate court of appeal will have numerous cases coming before it – some impinging on human rights, some not. Being closer than a court of further appeal to the day to day operation of criminal jurisdiction it will, I suggest, have a better appreciation of the operation of the criminal law in the community it serves. That appreciation will allow it more readily to identify what in that community are at the time in question matters of law of general public importance. That points to the desirability of entrusting to that intermediate court the identification of points of law which are of general public importance – thus the need for a certification procedure. It may, of course, be valuable to have a jurisdiction in criminal matters vested in the further appeal court (here, the Supreme Court); but that court’s talents are best directed, essentially as a court of reference, to issues which the intermediate court has identified as raising a point or points of general public importance and which accordingly may require a wider perspective.

10.In that connection it is important to notice that the Court of Criminal Appeal in England and Wales and the equivalent court in Northern Ireland have long had a certification procedure. This provision seems first to have been made for England and Wales by section 1(2) of the Administration of Justice Act 1960 (now re-enacted as section 33(2) of the Criminal Appeal Act 1968). Equivalent provision was made by the 1960 Act for Northern Ireland (now re-enacted as section 31(2) of the Criminal Appeal (Northern Ireland) Act).

11.The 1960 Act amended the Criminal Appeal Act 1907, which first introduced, for the United Kingdom (other than Scotland), appeals in solemn cases. In moving the reading of the relative Bill for a second time the then Lord Chancellor (Viscount Kilmuir) said:

“… I think it is important to remember that Parliament in 1907 intended that the decision of the Court of Criminal Appeal should normally be final, and that a further appeal to the House of Lords should be quite exceptional as, indeed, the [1907] Act itself makes plain … What we propose is that the machinery for granting leave to appeal should be in the hands of the Court itself, and that only those cases should go to the House of Lords which do, in the Opinion of the Court below, raise questions of law of real importance …” (HL Deb 24 March 1960, vol.222, col.250)

12.Section 33(2) of the 1968 Act has recently been held to be Convention-compliant (R v Dunn [2010] 2 Cr. App. R 30). From conversation with the current Lord Chief Justice of England and Wales (Lord Judge) and with the current Lord Chief Justice of Northern Ireland (Sir Declan Morgan) I understand that each of them finds the certification requirement to be valuable and, so far as I am aware, it raises no difficulties in practice.

13.If it is valuable in these jurisdictions, it is difficult to see why it would not have value for Scotland. Of course, the issues which could potentially go from these other intermediate appeal courts to the Supreme Court extend across the whole range of the criminal law, whereas the justiciable issues from Scotland could only extend to human rights issues. But that is because Scotland has, and always has had, its own distinctive system of substantive criminal justice and it is not suggested that that be altered. The true question is whether, with respect to the areas of the law which are justiciable in the Supreme Court (whether that encompasses the whole range of the criminal law or only part of it), the intermediate court of appeal should have a certification responsibility. I firmly believe that it should. There is no suggestion that the power of certification held by the courts of appeal of England and Northern Ireland should be abolished or restricted. I therefore can see no good reason why the same power should not be held by the High Court in Scotland. No such reason has been given by the relevant Ministers.

14.It may be said that an important objective of the certification procedure is that the Supreme Court should not be “swamped” by an excessive number of criminal appeals and that since 1999 the Judicial Committee of the Privy Council and later the Supreme Court have not been swamped by Scottish devolution issue appeals. According to figures recently given by Lord Hope (a Justice of the Supreme Court), twenty nine devolution issue cases from Scotland have gone to a full hearing in the Judicial Committee/Supreme Court since the jurisdiction was created some twelve years ago. In fourteen of these leave was granted by the High Court; in six reference cases leave was not required; in the remaining nine leave was granted by the Privy Council/Supreme Court, it having been refused by the High Court. In four of these nine the appeal was dismissed. It should be added that there are many more cases in which, leave having been refused by the High Court, an application has been made to the Privy Council/Supreme Court and refused by it. I do not have figures for the full twelve years of the jurisdiction but an indication of the extent of the burden imposed on the Supreme Court in this respect is provided by figures again given by Lord Hope: in the period of a little over two years since the jurisdiction was transferred from the Privy Council to the Supreme Court, twenty one applications for leave were presented to the Supreme Court, of which only two were granted. This cannot be regarded as a useful expenditure of time and resources by the Justices.

15.The consideration of applications for a certificate would be a new responsibility for the judges of the High Court. But there is every reason to suppose that, like their colleagues in the other jurisdictions in the United Kingdom, they would act reasonably and responsibly. The figures given in the previous paragraph in relation to the grant or refusal by the High Court of leave applications suggest that, in the main, that court has correctly identified what is worthy of consideration by the Privy Council/Supreme Court.

16.It might be suggested that as an apex court for the whole of the United Kingdom the Supreme Court is best placed to determine issues which may have ramifications across the United Kingdom. But, while that suggestion might have force were there no certification requirements in England and Wales or Northern Ireland, it loses much of its force where there are – and accordingly where the Supreme Court does not have an untrammelled view of criminal law issues arising throughout all three jurisdictions.

17.A number of other issues may arise about clause 17 and any proposed amendments to it. But I find it unnecessary to make representations to Parliament upon these.

Conclusion

18.For the reasons given above I urge Parliament to provide in the Scotland Bill an amendment to the Scotland Act 1998 so as (1) to extend the jurisdiction of the Supreme Court in Scottish criminal appeals and references to the remedying of infringements of the European Convention by the courts below as well as by the prosecutor but (2) to restrict those cases in which leave may be granted to appeal to the Supreme Court from the High Court of Justiciary to cases in which the High Court has certified that a point of law of general public importance is involved in the decision.

16 January 2012