Devolution (Constitution Committee Reports)

Lord Cullen of Whitekirk Excerpts

Monday 9th October 2017 Lords Chamber

[Lord Cullen of Whitekirk (CB)]

My Lords, in its report The Union and Devolution the Constitution Committee, of which I was a member, made this as one of its recommendations:

“There is a strong case for creating a flexible framework, based on appropriate principles, as a guide for future action within which any further demands for devolution can be considered in a coherent manner”.


The committee found that in the past there had,

“been no guiding strategy or framework of principles to ensure that devolution developed in a coherent or consistent manner and in ways that do not harm the Union”.

I have to say that I find the Government’s response to the case advocated by the committee to be entirely disappointing. The Government state that that they support the approach which was taken by the Smith commission and the Silk commission. That approach was, they said, considering proposals for devolution against a set of principles. One initial difficulty I have with this response is that the principles applied by the Smith commission were not similar to those of the Silk commission, as the Government claim, but were different in kind. The Smith commission followed the line agreed with the representatives of the five political parties in the Scottish Parliament, namely that a package of new powers for Scotland should,

“not cause detriment to the UK as a whole nor to any of its constituent parts”.

It was a negative principle. It was understandable that the commission used it in testing the outcome of negotiations between those parties within a short timescale, but it focused not on what devolution should do, but on what it should not do. The Silk commission, on the other hand, applied positive principles such as collaboration, equity, stability and subsidiarity. Part of its stated vision was that:

“Devolution of power to Wales should benefit the whole of Wales and the United Kingdom".


Elsewhere in their response, the Government also state that their approach to devolution,

“is governed by the principle that … it is the right thing to do for the integrity and success of the UK”.

So far, so good, but what are the other principles that they have in mind? That is not clear. Surely if the Government are in favour of the application of a set of principles to consideration of further devolution, a matter of great importance for the constitution of this country, they should say what are those principles, and do so clearly and coherently. However, they seem to have avoided doing so.

The committee identified some of the core principles which it considered should govern the relationship between the union and the devolved nations. They are solidarity, diversity, consent, responsiveness, subsidiarity and clarity. These are positive and constructive principles going to the strength of the union and the vitality of that relationship. In the case of some of these core principles, the Government have responded. Others they have ignored. It is somewhat strange that where they have agreed with the Committee, they have mostly referred to the negative principle adopted by the Smith commission in the circumstances I referred to. It is in the light of these matters that I find the Government’s response on matters of principle unsatisfactory and, indeed, lacking in clarity and coherence. It is of some interest to note that in the course of its report the European Union Committee made this recommendation:

“Thanks to Brexit, it is now more important than ever that reform of the devolution settlements should be underpinned by a clear and agreed framework of guiding principles”.

Scotland Bill

Lord Cullen of Whitekirk Excerpts

Thursday 2nd February 2012 Lords Chamber

[Lord McCluskey]

My Lords, I will comment in greater detail on the matter of certification. The lawyers among us will recognise that it arises in relation to various amendments, including Amendments 72B, 72C and 72D. The report of the review group that I chaired deals with the matter in paragraphs 35 onwards. No doubt the noble and learned Lord the Advocate-General has had a careful look at what was said there. We are dealing with a point of law of general public importance. The noble and learned Lord, Lord Boyd, referred to the philosophical objection: namely, that a court can prevent an appeal against its own decision. That is fairly common. However, in this case the English Court of Criminal Appeal, having considered that very matter, said that it did not arise because the issue of whether a case raises a point of law of general public importance is not the issue that was decided in the appeal. That empowers the Court of Appeal in England to prevent an appeal to the Supreme Court, but in various cases in England, the Court of Appeal and others have upheld that particular right on the ground that there must be a filter. I could refer your Lordships to some detail, but I shall not go into detail on that matter at this late hour.

In other words, the point to be considered is a point of law of general public importance, a different point from that considered in the appeal. Mention has been made of the case of Cadder in which leave was refused, but I am assured by judges who took part in that case and others that there can be no question that if someone had said to the court that that case raised a point of law of general public importance, the judges would have said that it did and a certificate would have been granted. Of course, there was no occasion to consider that because there was no law in Scotland requiring that to be done. The whole matter has been looked at in great detail in the English Court of Appeal and elsewhere in England, and your Lordships will find a very useful summary of the law in an article by CJS Knight in the Law Quarterly Review 2011 “Second criminal appeals and the requirement of certification”. I shall not read excerpts from that tonight because there is not really time.

Bearing in mind that the High Court of Justiciary has always been responsible for deciding all matters of substance, the only thing that changed in 1998 was the introduction of a new ground of appeal. That is what I said earlier, but I repeat it. Plainly, when the English and, indeed, the Northern Irish considered whether certification should apply to that, they decided implicitly that it would continue to apply there, so why should Scottish judges not be trusted to make the same judgment that is made in Northern Ireland and in the Court of Appeal Criminal Division in England about whether a case raises a point of law of general public importance? It is, in effect, to demean the Scottish judiciary to say that they cannot detach themselves sufficiently from the case in order to make that judgment.

Noble Lords who followed the history of this matter in more detail than I would recommend will know that we raised this question when we put the matter out for consultation between our first and second reports, and nobody suggested that there was anything wrong with the court deciding whether to consider leave to appeal from its own decision. That largely covers the same point.

I ought to deal with some of the objections. First, there is the objection which is the principal one taken by Sir David Edward and some of the members of this Committee subsequent to our report. It was that in England no certification is required for habeas corpus. We do not have habeas corpus in Scotland. We have our own rules and, in any event, we are bound by Article 5. If one wanted to introduce an exception to the rule for certification, it would be easy to do so under reference to Article 5. There are other minor things in relation to contempt of court and courts martial. I have no objection to a list of exceptions which would mirror those in England, except in relation to habeas corpus, which, as I have said, would be dealt with differently.

It is very important to take account of and to give full and proper weight to the written representation by the Lord Justice General. So far as I can tell, it has never been done before. The Lord Justice General thought very carefully and hard, and he decided to make these representations. Furthermore, he consulted the noble and learned Lord, Lord Judge, and he also consulted the noble and learned Lord, Lord Phillips of Worth Matravers, if I recall correctly, and they said that the certification created no problem in England for the courts for which they were responsible. The Lord Advocate and the Scottish Government support our position on this, and the Scotland Bill Committee of Members of the Scottish Parliament also supported it. Indeed, Paul McBride, who was a member of Sir David Edward’s group, has specifically decided to support it and said so to that Committee.

The objections taken by others have been mentioned by the noble and learned Lord—for example, the Law Society and the Faculty of Advocates—but they were barking up a tree which no longer has the branch on which they were endeavouring to sit; namely, that the matter is no longer a devolution issue if it arises in the course of criminal proceedings. Therefore, the idea that because devolution issues are taken to the Supreme Court without permission in other parts of the United Kingdom no longer has any validity. Therefore, in my submission to your Lordships, the reasoning on that is not sound.

If certification and leave are granted in England and Wales, the Supreme Court considers the point of law and then deals with it and any other matters necessary to decide the appeal. That is exactly what we propose. I remind your Lordships of what was said by the Lord Justice General in the written submission—if I can get my iPad to remind me of what I have on it. He said in terms that this issue relates to,

“the appropriate relationship between an intermediate court of criminal appeal (such as the High Court … in its appellate capacity) and a further court of appeal (such as the Supreme Court)”.

He goes on to discuss that in some detail. He said that the English provision has recently been held to be “Convention compliant” in the case of Dunn in 2010. He adds:

“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”.

At paragraph 13 of the written submission, he mentions that it would have “value for Scotland” and, in particular, that there is no reason why we should be different from England in relation to that. Perhaps I may remind your Lordships of the quotations that I gave from House of Commons Hansard of 21 June 2011 from Ministers who envisage that the regime should be the same on both sides of the border in relation to the Supreme Court.

On the very important point made by the noble and learned Lord, Lord Boyd, the Lord Justice General said:

“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”.

I remain of the view that the relevant amendment should be considered further by the Minister and the noble and learned Lord, Lord Boyd, but we will not reach it today because it is way down the list. However, I am certainly reserving my position. After today’s debate, if I can overcome the confusions which are partly my responsibility, I intend to put down amendments for Report in order to ensure that the matters still outstanding are more fully debated. I would express the hope to the House authorities that on that occasion we will not be sitting late on a Thursday afternoon when the Scots have gone home—sent homeward to fight again is the expression that we will be hearing on Saturday afternoon in a different context. They have gone home, which is a great pity because, although this is not the most important matter since the fall of the Berlin Wall, none the less it is an important matter in this context. I remind the noble and learned Lord of what I have said to him, and I think that he agrees with me. This is not just for Christmas; it is for a very long time. It may be many years before this legislation is looked at again, so I hope that it will be looked at very thoroughly in this context.

As far as I am concerned, that deals with certification and I will return to the other matters in a moment or two.

Lord Cullen of Whitekirk: My Lords, the review group under the noble and learned Lord, Lord McCluskey, is to be complimented on the work that it has done so enthusiastically but I have considerable reservations about the proposal that there should be certification for access to the Supreme Court. Of course, I speak with an interest in this matter as a former Lord Justice General. As matters stand, an appellant who seeks permission from the Supreme Court, having been refused it by the Appeal Court, requires to satisfy the appeal panel of the Supreme Court in accordance with the relevant practice direction that the application raises,

“an arguable point of law of general public importance which ought to be considered by the Supreme Court at that time”.

So one must ask: is there a need for a certificate from the Appeal Court? The main argument presented by the noble and learned Lord, Lord McCluskey, is that it is necessary in order to achieve consistency or parity with the position in England, Wales and Northern Ireland. But, as the noble and learned Lord, Lord Boyd, has said, is this comparing like with like? The Appeal Courts in those other jurisdictions may be asked to sanction appeals to the Supreme Court on a wide variety of issues concerned with any aspect of criminal law and procedure. In the case of Scotland, on the other hand, the Supreme Court has a special jurisdiction to deal with issues confined to alleged breaches of human rights, and it is for this reason that the group under Sir David Edward rejected any attempt to draw a parallel. The group confirmed that this was the case when responding to questions from the review group under the noble and learned Lord, Lord McCluskey.