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Final Appellate Jurisdiction in the Scottish Legal System

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Walker, N 2010, Final Appellate Jurisdiction in the Scottish Legal System. Scottish Government.

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FINAL APPELLATE JURISDICTION IN

THE SCOTTISH LEGAL SYSTEM

PROFESSOR NEIL WALKER

Regius Professor of Public Law and the Law of Nature and Nations
School of Law, Edinburgh University

FINAL APPELLATE JURISDICTION IN

THE SCOTTISH LEGAL SYSTEM

PROFESSOR NEIL WALKER

Regius Professor of Public Law and the Law of Nature and Nations
School of Law, Edinburgh University

© Crown copyright 2010 ISBN: 978-0-7559-8213-4 Further copies of the report can be obtained from: Eli do Rego The Scottish Government Legal System Division 2nd Floor West St Andrew’s House Edinburgh EH1 3DG

0131 244 3839 [email protected]v.uk

An electronic copy of the full report including appendices is available at www.scotland.gov.uk/publications

RR Donnelley B63059 01/10 The text pages of this document are printed on recycled paper and are 100% recyclable

Acknowledgements

I have many people to thank for their help in the preparation of this report. First of all, there are the various judges, advocates, solicitors, civil servants, academics and others who generously gave of their valuable time to share their thoughts with me on the future of appellate jurisdiction in Scotland. As these exchanges took place under conditions of anonymity I cannot convey my thanks to all of these persons individually, but I want to record my gratitude to each and every one of them for their expertise and insight. On the administrative side, warm thanks are due to Lachlan Stuart of the Courts and Administrative Justice Team in the Scottish Government's Constitution, Law and Courts Directorate for his invaluable assistance. On the academic side, I was in the very fortunate position of being able to draw upon the wise counsel of a small Steering Group made up of Sir David Edward, David Johnston QC and Professor Tom Mullen. They read numerous drafts, often at extremely short notice, and provided just the right mix of critical insight and encouragement at our regular meetings. I greatly appreciate their constant and selfless support. Dr Elisenda Casanas Adam of the Universitat Autònoma di Barcelona drew upon her considerable expertise in matters of ‘judicial federalism’ to make an important contribution to the comparative dimension of the research, for which I am also very grateful. Last, but certainly not least, I wish to convey my enormous gratitude to Dr Daniel Carr of the Law School of the University of Dundee, who has worked tirelessly on this project with me over the last year. I could not have asked for a better research assistant or a more engaging intellectual collaborator. He takes full credit for the Appendices, and whatever is of value in the report itself is due in no small part to his sterling efforts.

Neil Walker Old College January 2010

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Contents

EXECUTIVE SUMMARY ................................................................................................................................. 5

CHAPTER ONE: INTRODUCTION REMIT, CONTEXT AND PLAN OF REVIEW...................................................... 9

1.1 REMIT.............................................................................................................................................................9 1.2 CONTEXT.........................................................................................................................................................9

1.2.1 The Immediate Contex t . ....................................................................................................................... 9 1.2.2 The Fuller Historical Background....................................................................................................... . 1 0

1.3 PLAN OF REVIEW ............................................................................................................................................12

CHAPTER TWO: THE CONSTITUTIONAL CONTEXT........................................................................................ 13

2.1 INTRODUCTION...............................................................................................................................................13 2.2 THE UNION STATE...........................................................................................................................................13 2.3 EVOLVED RATHER THAN DESIGNED .....................................................................................................................15 2.4 PROVISIONAL RATHER THAN FINAL......................................................................................................................16 2.5 ASYMMETRICAL RATHER THAN SYMMETRICAL .......................................................................................................17 2.6 DEEP DIVERSITY AND FORMAL DIVERGENCE .........................................................................................................18 2.7 CLOSE INTERMESHING AND SUBSTANTIVE CONVERGENCE .......................................................................................19

CHAPTER THREE: THE DEVELOPMENT OF FINAL APPELLATE JURISDICTION.................................................. 21

3.1 THE TERMS OF THE UNION SETTLEMENT..............................................................................................................21 3.2 THE DIFFERENT TREATMENT OF CIVIL AND CRIMINAL APPEALS...................................................................................22 3.3 CIVIL APPELLATE JURISDICTION AND THE RELATIVE AUTONOMY OF SCOTS LAW ............................................................23 3.4 DEVOLUTION ISSUES: THE BIRTH OF A CONSTITUTIONAL JURISDICTION ......................................................................25 3.5 OVERVIEW OF THE PRESENT SYSTEM...................................................................................................................27

3.5.1 Final appeal in London: appeals to the Supreme Court..................................................................... . 2 7

3.5.1.1 Civil appellate jurisdiction............................................................................................................................27 3.5.1.2 Devolution Issues.........................................................................................................................................31

3.5.2 Final appeal in Scotland .................................................................................................................... . 3 2

3.5.2.1 Appeals to the Court of Session...................................................................................................................32 3.5.2.2 Appeals to the High Court of Justiciary ........................................................................................................32

CHAPTER FOUR: COMPARATIVE PERSPECTIVES .......................................................................................... 34

4.1 INTRODUCTION...............................................................................................................................................34 4.2 THE VERTICAL AXIS; DECENTRALISATION AND JURISDICTIONAL AUTONOMY..................................................................35

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4.3 THE HORIZONTAL AXIS; THE SCOPE AND DIVISION OF JURISDICTION FOR A TOP COURT ...................................................41

4.4 CONCLUSION..................................................................................................................................................47

CHAPTER FIVE: THE EVALUATION OF FINAL APPELLATE JURISDICTION ........................................................ 48

5.1 CRITERIA OF EVALUATION .................................................................................................................................48 5.2 DEMOCRACY ..................................................................................................................................................49 5.3 FAIR TREATMENT ............................................................................................................................................53 5.4 COHERENCE AND INTEGRITY ..............................................................................................................................55 5.5 RICHNESS OF RESOURCES ..................................................................................................................................57 5.6 EXPERTISE......................................................................................................................................................59 5.7 DETACHMENT.................................................................................................................................................60 5.8 OPERATIONAL EFFECTIVENESS ...........................................................................................................................60 5.9 ECONOMY .....................................................................................................................................................61 5.10 CONCLUSION................................................................................................................................................62

CHAPTER SIX: FINAL APPELLATE JURISDICTION: THE ALTERNATIVE MODELS ............................................... 63

6.1 SIX MODELS FOR SCOTLAND..............................................................................................................................63 6.2 MODEL ONE: AN AUTONOMOUS SCOTTISH APPELLATE COURT SYSTEM ....................................................................64

6.2.1 Full Autonomy ................................................................................................................................... . 6 4 6.2.2 Autonomy of ordinary appellate jurisdiction..................................................................................... . 6 8

6.3 MODEL TWO: A UNITARY APPELLATE SYSTEM FOR A UNITARY STATE........................................................................68

6.3.1 Unitary Final Appellate System for a Unitary Legal Order ................................................................ . 6 8 6.3.2 Unitary Final Appellate System for Different Legal Orders ............................................................... . 6 9

6.4 MODEL THREE: THE UK SUPREME COURT AS THE NEW STATUS QUO .......................................................................70 6.5 MODEL FOUR: THE SUPREME COURT WITH A SCOTTISH DIVISION OR CHAMBER .........................................................71

6.5.1 A Scottish Chamber for all Scottish Cases ......................................................................................... . 7 1 6.5.2 A Scottish Chamber for Distinct Questions of Scots La w . .................................................................. . 7 1

6.6 MODEL FIVE: A QUASI‐FEDERAL SUPREME COURT................................................................................................72 6.7 MODEL SIX: THE SUPREME COURT AS A UNITED KINGDOM COURT OF JUSTICE ...........................................................74 6.8 CONCLUSION..................................................................................................................................................76

APPENDICES (available at www.scotland.gov.uk/publications)

APPENDIX I: HISTORICAL DEVELOPMENT OF APPEALS FROM SCOTLAND APPENDIX II: APPEALS TO THE JUDICIAL COMMITTEE OF THE PRIVY COUNCIL APPENDIX III: AUTONOMY OF SCOTTISH LAW WITHIN THE APPELLATE JURISDICTION OF THE HOUSE OF LORDS/SUPREME COURT APPENDIX IV: STATISTICAL INFORMATION

4

Executive Summary

The report presents the findings of a review of final appellate jurisdiction in the Scottish legal system undertaken in the light of the recent establishment of a new Supreme Court for the United Kingdom. The aim of the review was to examine the nature, strengths and weakness of the Scottish final appellate system, taking account of its historical development and of comparative perspectives, and to consider the case for reform.

Chapter One introduces three key historical features of final appellate jurisdiction in the Scottish legal system. These are the abiding link to the legal and political framework of the United Kingdom as a whole, the absence of a clear distinction between ordinary and constitutional jurisdiction, and the different treatment of civil and criminal appeals.

In Chapter Two the broader political context framing Scots law and its distinctive scheme of final appellate jurisdiction is addressed. In particular, the idea of the United Kingdom as a Union state is developed as a lens through which we may appreciate more fully the character of the evolved law and practice.

Chapter Three focuses more closely on the shaping of the Scottish final appellate framework since the Union of 1707, with specific reference to the three themes and tensions introduced earlier—part versus whole, ordinary versus constitutional and civil versus criminal.

Chapter Four introduces a comparative perspective. The relationship between the appellate court systems of the UK and of Scotland is illuminated by consideration of other decentralized or multi-level arrangements where the smaller national or regional unit possesses a significant measure of jurisdictional autonomy. Equally, the relationship between ordinary and constitutional jurisdiction and between civil and criminal jurisdiction within the Scottish system is compared to other legal systems with regard to their various ways of combining or separating jurisdictions within the appellate chain. In conclusion, however, the highly distinctive unique character of the Scottish situation is reaffirmed, with only modest lessons to be drawn from comparative experience.

Chapter Five specifies a number of criteria for evaluating the merits of any scheme of final appellate jurisdiction and applies these criteria to the Scottish scheme. The criteria in question are democracy, fair treatment, coherence and integrity, richness of resources, expertise, detachment, operational effectiveness and economy. On examination, some of these values, notably democracy, fair treatment, richness of resources, coherence and integrity and expertise, are more relevant to the assessment of final appellate jurisdiction than others, though the relationship between these values and the institutional design of the court system remains complex. There is simply no single model of appellate jurisdiction that provides an optimal institutional expression of any of these values considered separately, still less all in combination.

Finally, Chapter Six considers a number of different options for reform of present arrangements in the light of the prior historical, comparative and evaluative analysis and draws some general conclusions. Six general models are suggested, some of which allow for internal variation and sub-division. Model One proposes an autonomous Scottish appellate court system. Its more radical variant envisages a fully autonomous court system based in

5

Scotland and serving a fully autonomous Scots law, an option which would be feasible only within an independent Scotland. Its less radical variant envisages a fully autonomous court system based in Scotland, with the exception of the judicial treatment of those constitutional questions relevant to the continuing integrity of the United Kingdom state. Model Two goes to the opposite extreme and has Scottish appellate arrangements fully integrated into a UK-wide appellate court system, accompanied by the general erosion or eclipse of Scots law as a distinct order and the development of a unitary law for the United Kingdom. Model Three maintains the present arrangement, with the UK Supreme Court the top court for civil appeals and for devolution issues and the High Court of Justiciary the top court for criminal appeals. Models Four to Six each envisages some reform of the present institutional apparatus. Model Four contemplates a Scottish Division or Chamber of the UK Supreme Court. Model Five restructures the UK Supreme Court as a final appeal court along quasi-federal lines. Model Six draws on the example of the European Court of Justice and has a United Kingdom Court of Justice equipped with a reference jurisdiction rather than with a final appellate jurisdiction.

The radical version of Model One—a fully autonomous appellate court system for a fully autonomous Scots law—presupposes fundamental constitutional reform and the replacement of the Union state with a sovereign Scottish state. In these altered constitutional circumstances it represents a perfectly coherent option, and one that would be in line with international practice. We examine different blueprints for the institutional design of such a fully autonomous system, concluding that a self-standing Scottish Supreme Court with separate procedures for ordinary and constitutional jurisdiction would offer the optimal arrangement for an independent Scotland.

All the other options are premised upon more or less autonomy within the existing Union state. The conditionally autonomous variant of Model One, where all except constitutional questions would be reserved to Scottish courts in a still sovereign British state in which a measure of Westminster legislative authority continued alongside the legislative authority of the Scottish Parliament, appears both infeasible and quite unsatisfactory in terms of the key values set out; this is so because it ignores the need to tailor appellate jurisdiction to the appropriate legislative and democratic level and to distribute that jurisdiction accordingly. For that reason, this option was discounted. So, too, and for similar reason, were solutions under Model Two which would situate themselves towards the opposite end of the constitutional spectrum and eradicate the identity of Scots law or the distinctiveness of its appellate system.

Of the more modest options, Model Three, with its retention of the division of final appellate jurisdiction both within the UK Supreme Court (as regards constitutional and ordinary matters) and between the UK Supreme Court and the Scottish courts (as regards civil and criminal matters) has its attractions, especially in allowing for the continuation and refinement as a matter of judicial practice of a sensitive approach to the difference between those cases raising substantively distinct questions of Scots law and those that do not. However, the conservative quality and informality that are the major strengths of this approach are also its main weaknesses, as it does not address certain standing anomalies of the system (in particular the quite different treatment of civil and criminal appeals), and as it cannot guarantee the long-term stability of its informal advantages. Of the other options, the idea of a Scottish division or chamber of the Supreme Court (Model Four) is at best a partial answer to a larger question of proper jurisdictional boundaries, while the reference-based model of a British Court of Justice (Model Six) involves a considerable shift in the apex

6

court’s approach and does not guarantee that it will have the effective last word in those matters which fall properly within its jurisdiction.

The model of a quasi-federal Supreme Court (Model Five) envisages that those Scottish cases (both civil and criminal) raising common UK issues be heard by the Supreme Court, preferably at a Scottish location, and those Scottish cases (again, both civil and criminal) addressing distinct questions of Scots law be dealt with by the indigenous Scottish courts. It is most acute in its diagnosis and most sensitive to the relevant values at stake in its treatment of the complex mix of divergent and convergent influences that lies at the heart of the relationship of Scots law and its appellate court system to that of the UK as a whole. It is also reasonably capable of overcoming the difficulties of asymmetrical reform of the institution of the UK Supreme Court. For these reasons we recommend it as the most attractive reform option under the present constitutional settlement.

  • 7
  • 8

Chapter One:
Introduction Remit, Context and Plan of Review

1.1 Remit

In December 2008 I was asked by the Cabinet Secretary for Justice to conduct a review of final appellate jurisdiction in the Scottish legal system in the following terms:

“… to provide… an overview of the historical development of final appellate jurisdiction in the Scottish legal system; to identify the established constitutional principles of such jurisdiction and to provide appropriate international comparisons.

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    Cornell Law Review Volume 17 Article 3 Issue 3 April 1932 Development of the Anglo-American Judicial System George Jarvis Thompson Follow this and additional works at: http://scholarship.law.cornell.edu/clr Part of the Law Commons Recommended Citation George Jarvis Thompson, Development of the Anglo-American Judicial System, 17 Cornell L. Rev. 395 (1932) Available at: http://scholarship.law.cornell.edu/clr/vol17/iss3/3 This Article is brought to you for free and open access by the Journals at Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell Law Review by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. For more information, please contact [email protected]. THE DEVELOPMENT OF THE ANGLO- AMERICAN JUDICIAL SYSTEM* GEORGE JARVIS THOMPSONt PART I HISTORY OF THE ENGLISH COURTS TO THE JUDICATURE ACTS b. The Prerogative Courts (Continued) THE ECCLESIASTICAL COURTS The "Courts Christian", or ecclesiastical courts, formed a complete judicial system which administered a law of its own, the ius commune (common law) of the church, or canon law.M14 This law was based upon the CorpusJuris Canonici,which derived from the Roman Law. As we have seen, the separation of the spiritual and temporal juris- dictions of the ancient communal courts"' is generally credited to the famous ordinance of William the Conqueror about 1072. "IT ]he *Copyright, 1932, by George Jarvis Thompson. This article is the third and final installment of Part I of a historical survey of the Anglo-American judicial system. The preceding installments appeared in the December, 1931, and Febru- ary, 1932, issues of the CORNELL LAW QUARTERLY.

  • Constitutional Reform Act 2005

    Constitutional Reform Act 2005 CHAPTER 4 CONTENTS PART 1 THE RULE OF LAW 1 The rule of law PART 2 ARRANGEMENTS TO MODIFY THE OFFICE OF LORD CHANCELLOR Qualifications for office of Lord Chancellor 2 Lord Chancellor to be qualified by experience Continued judicial independence 3 Guarantee of continued judicial independence 4 Guarantee of continued judicial independence: Northern Ireland Representations by senior judges 5 Representations to Parliament 6 Representations to the Northern Ireland Assembly Judiciary and courts in England and Wales 7 President of the Courts of England and Wales 8 Head and Deputy Head of Criminal Justice 9 Head and Deputy Head of Family Justice Judiciary and courts in Northern Ireland 10 The Lord Chancellor and Northern Ireland courts iv Constitutional Reform Act 2005 (c. 4) 11 Lord Chief Justice of Northern Ireland Other provisions about the judiciary and courts 12 Powers to make rules 13 Powers to give directions 14 Transfer of appointment functions to Her Majesty 15 Other functions of the Lord Chancellor and organisation of the courts 16 Functions of the Lord Chief Justice during vacancy or incapacity Lord Chancellor’s oath 17 Lord Chancellor’s oath Speakership of the House of Lords 18 Speakership of the House of Lords Functions subject to transfer, modification or abolition 19 Transfer, modification or abolition of functions by order 20 Protected functions not transferable under Ministers of the Crown Act 1975 21 Amendment of Schedule 7 Supplementary 22 Transfers: supplementary PART 3 THE SUPREME COURT The Supreme Court 23 The Supreme Court 24 First members of the Court Appointment of judges 25 Qualification for appointment 26 Selection of members of the Court 27 Selection process 28 Report 29 The Lord Chancellor’s options 30 Exercise of powers to reject or require reconsideration 31 Selection following rejection or requirement to reconsider Terms of appointment 32 Oath of allegiance and judicial oath 33 Tenure 34 Salaries and allowances 35 Resignation and retirement 36 Medical retirement Constitutional Reform Act 2005 (c.