HL Deb 20 December 2004 vol 667 cc1597-600

(1) Nothing in this Part is to affect the distinctions between the separate legal systems of the parts of the United Kingdom.

(2) 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.

(3) A decision of the Supreme Court on a devolution matter—

  1. (a) is not binding on that Court when making such a decision;
  2. (b) otherwise, is binding in all legal proceedings.

(4) In this section "devolution matter" means—

  1. (a) a question referred to the Supreme Court under section 33 of the Scotland Act 1998 (c. 46) or section 11 of the Northern Ireland Act 1998 (c. 47);
  2. (b) a devolution issue as defined in Schedule 8 to the Government of Wales Act 1998 (c. 38), Schedule 6 to the Scotland Act 1998 (c. 46) or Schedule 10 to the Northern Ireland Act 1998 (c. 47)."

The noble Baroness said: My Lords, this amendment fulfils a commitment made to the Select Committee, and underlined in the recommendation at paragraph 283 of the Select Committee's report, to bring forward an amendment to safeguard the separate jurisdictions to be exercised by the Supreme Court in respect of Scottish, Northern Irish and English law.

The concern which the amendment is designed to meet is that the establishment of the Supreme Court would set off a process of erosion of the distinctions between the separate and quite distinctive legal systems of England and Wales, of Scotland and of Northern Ireland or, as it has been described, the possibility of creeping Anglicisation of Scottish law. It is no part of the Government's proposals to have that effect. The new clause introduced by this amendment, therefore, sets out to forestall any such possibility.

Subsection (1) is a clear statement that nothing in this part of the Bill is to affect the distinctions between the separate legal systems of the parts of the United Kingdom. Subsection (2) states that a decision of the Supreme Court on appeal from a decision of a court of any part of the United Kingdom is to be regarded as the decision of a court of that part of the United Kingdom, except in relation to a devolution matter, which is dealt with in subsection (3). That is not a new or controversial proposition: it is consistent with the approach of the House of Lords outlined as long ago as 1802 in Johnstone v Stotts by the Lord Chancellor, Lord Eldon, who stated: We are sitting here as the Court of Session in Scotland, to decide as that court ought to decide, and … we are bound not to apply our English principles, and our English doctrines". Thus, the landmark case of Donoghue v Stevenson, which revolutionised the English law of tort, did so not because the decision of the House of Lords was formally binding on English courts, but because the principles enunciated in it, although set out in the context of the Scottish law of delict, were of such persuasive force as to be compelling in subsequent English cases.

Subsection (3) of the new clause maintains the status quo in relation to the effect of decisions in devolution proceedings. A decision of the Judicial Committee of the Privy Council in the exercise of its devolution jurisdiction is, binding in all legal proceedings". Subsection (3) of the new clause accordingly makes it clear that a decision of the Supreme Court on a devolution matter will not bind the court itself when subsequently making a decision on a devolution matter, but will otherwise be, binding in all legal proceedings".

Finally, subsection (4) of the new clause defines "devolution matter". This term encompasses all those matters that are encompassed in "proceedings under this Act" in the Scotland Act, Northern Ireland Act and Government of Wales Act, again so that the existing position is maintained.

I think that that also answers the question of the noble Baroness, Lady Carnegy. I beg to move.

Lord Renton

My Lords, the point that I wish to raise is rather technical. Subsection (1) states: Nothing in this Part is to affect the distinctions between the separate legal systems of the parts of the United Kingdom". Although Northern Ireland and, to a limited extent, Wales have had some statutory amendments to their law, the only truly separate legal system is the ancient legal system of Scotland. I hope that I am right in this. I would have thought that, if that is so, that should be made clear in this clause.

Baroness Ashton of Upholland

My Lords, there are differences between English law and Scottish law, Scottish law and law in Northern Ireland and England and Wales. What this addresses is the distinction between the different legal systems. The noble Lord may have a view about the length and type of the distinctions but, none the less, this amendment seeks to address the fact that there are distinctions and to make sure that they are recognised in the way that I have described. I think there is no contradiction between us. It is simply the way that we have chosen to address this.

On Question, amendment agreed to.

Clause 33 [Composition]:

[Amendment No. 40 not moved]

Clause 34 [Changes in composition]:

[Amendment No. 41 not moved.]

Clause 35 [Specially qualified advisers]:

[Amendment No. 42 not moved.]

Clause 36 [Making of rules]:

[Amendment No. 43 not moved.]

Clause 37 [Procedure after rules made]:

[Amendment No. 44 not moved]

Clause 38 [Photography etc]:

[Amendment No. 45 not moved.]

Clause 41 [Accommodation and other resources]:

[Amendment No. 46 not moved]

Clause 43 [Fees]:

[Amendments Nos. 47 and 48 not moved.]

Clause 44 [Fees: supplementary]:

[Amendment No. 49 not moved.]

Clause 46 [Records of the Supreme Court]:

[Amendment No. 50 not moved.]

Clause 47 [Proceedings under jurisdiction transferred to Supreme Court]:

[Amendment No. 51 not moved.]

Clause 48 [Interpretation of Part 2]:

[Amendments Nos. 52 to 56 not moved.]

Clause 68 [Selection of puisne judges and other office holders]:

Lord Falconer of Thoroton moved Amendment No. 57:

Page 30, line 25, leave out subsection (3).

On Question, amendment agreed to.

Clause 69 [Request]:

Baroness Ashton of Upholland moved Amendment No. 58:

Page 30, line 38, after "recommended" insert "or appointed"

The noble Baroness said: My Lords, I shall be as brief as I can in speaking to these amendments, which are purely matters of drafting improvement and consistency. Amendment No. 58 is a drafting amendment to ensure consistency in Clause 69. The additional words make it clear that some judicial appointments will be made by the Lord Chancellor while others will be made by Her Majesty the Queen on the recommendation of the Lord Chancellor.

Amendments Nos. 150 and 151 correct the references in Part 1 of Schedule 11 to the Senior District Judge (Chief Magistrate) and Deputy Senior District Judge (Chief Magistrate) to bring them into line with Section 10A of the Justices of the Peace Act 1997. I beg to move.

On Question, amendment agreed to.

Baroness Ashton of Upholland moved Amendment No. 59:

After Clause 76, insert the following new clause—