– Scottish Parliament written question – answered at on 15 December 2008.
Nigel Don
Scottish National Party
Question S3W-18796
To ask the Scottish Executive what effects the establishment of a UK Supreme Court will have on the final appellate and devolution jurisdiction under the Scottish legal system.
Kenny MacAskill
Scottish National Party
Section 40 of the Constitutional Reform Act 2005 provides that an appeal from any order or judgment of a court in Scotland will lie to the Supreme Court of the United Kingdom if it currently lies from a court in Scotland to the House of Lords. This provision continues the current right of appeal, for civil cases, from decisions of the Court of Session to the House of Lords. It also transfers jurisdiction in devolution issues – including Scottish devolution issues - from the Judicial Committee of the Privy Council to the new Supreme Court. Schedule 9 of the act makes other amendments relating to the jurisdiction of the new Supreme Court. The Supreme Court and other interacting constitutional reforms represent significant constitutional changes introduced by the Parliament at Westminster.
In view of other changes to the operation of courts in Scotland introduced by the Scottish Parliament, it is entirely appropriate that the implications of these changes for the distinctive Scottish legal system are considered in full, in Scotland, and at this time.
I recognise that under the Scotland Act it would not be possible to deliver legislative change in all these areas without legislation in the UK Parliament.
However, I am pleased that Professor Neil Walker, Regius Chair of Public Law and the Law of Nature and Nations at the University of Edinburgh, has accepted my invitation to conduct a review of final appellate jurisdiction in the context of its implications for the Scottish legal system.
I have asked Professor Walker to provide me with 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.
I have also asked Professor Walker to appraise the features, benefits and disadvantages of the current Scottish arrangements, and to assess options for future developments in order to present his conclusions and recommendations by December 2009.
The house of Lords is the upper chamber of the Houses of Parliament. It is filled with Lords (I.E. Lords, Dukes, Baron/esses, Earls, Marquis/esses, Viscounts, Count/esses, etc.) The Lords consider proposals from the EU or from the commons. They can then reject a bill, accept it, or make amendments. If a bill is rejected, the commons can send it back to the lords for re-discussion. The Lords cannot stop a bill for longer than one parliamentary session. If a bill is accepted, it is forwarded to the Queen, who will then sign it and make it law. If a bill is amended, the amended bill is sent back to the House of Commons for discussion.
The Lords are not elected; they are appointed. Lords can take a "whip", that is to say, they can choose a party to represent. Currently, most Peers are Conservative.
The Privy Council goes back to the earliest days of the Monarchy, when it comprised those appointed by the King or Queen to advise on matters of state.
As the constitution developed into today's constitutional monarchy, under which The Sovereign acts on the advice of Ministers, so the Privy Council adapted. Its day to day business is transacted by those of his Majesty's's Ministers who are Privy Counsellors, that is all Cabinet Ministers and a number of junior Ministers. Membership of the Privy Council brings with it the right to be called "Right Honourable".
The Privy Council still meets regularly, on average once a month, but, as with the Cabinet, most of its business is transacted in discussion and correspondence between its Ministerial members and the Government Departments that advise them. The Privy Council Office (which is itself a Government Department) provides a secretariat for these discussions, as the Cabinet Office does in relation to the business of Cabinet and Cabinet Committees. Councils are held by The King and are attended by Ministers and the Clerk of the Council. At each meeting the Council will obtain His Majesty's formal approval to a number of Orders which have already been discussed and approved by Ministers, much as Acts of Parliament become law through the giving of the Royal Assent after having been debated in Parliament.
Meetings are reported in the Court Circular, along with the names of Ministers attending (usually four in number). The Orders made at each Council are in the public domain, and each bears the date and place of the Council at which it was made. There is therefore nothing at all "secret" about Privy Council meetings. The myth that the Privy Council is a secretive body springs from the wording of the Privy Counsellor's Oath , which, in its current form, dates back to Tudor times. It requires those taking it to "keep secret all matters...treated of in Council". The Oath (or solemn affirmation for those who cannot take an Oath) is still administered, and is still binding; but it is only in very special circumstances nowadays that matters will come to a Privy Counsellor on "Privy Council terms". These will mostly concern matters of the national interest where it is important for senior members of Opposition parties to have access to Government information.
