Opening Remarks
My Lords, Ladies and Gentlemen.
I would like to thank you for inviting me here tonight, and for so many of you coming to this inaugural lecture in honour of my father. I hope that it is the first of many.
For myself and my family this honour is very great. My father and grandfather were both WSs. They would both have regarded the ethics and standards of being a WS in Edinburgh as being second to none, and also representing a tradition of public service and commitment to the highest personal standards. For myself and my brother and my sisters we revere lawyers and admire them because we revered and admired our father as a lawyer.
He and his contemporaries could not be further away from the caricature of the lawyer today. I remember being interviewed for a scholarship at the Inner Temple where my father's means were relevant. I was cross-examined by a Lord of Appeal in Ordinary about earnings on the basis they must be dishonest because no lawyers' firm could earn so little. I was not surprised because he did so many things for which he was not paid. I believe he had the respect of his professional colleagues. He had the respect of his clients because they knew he selflessly and wisely looked after them whilst ensuring they never got unnecessarily enmeshed in the law. He would have been so proud that I had become Lord Chancellor (if a little surprised). But even more proud I believe I had been invited to give this Lecture this evening. So thank you very much indeed.
I am delighted to be able to deliver this Lecture in this magnificent building, and at the behest of the legal education unit. The library's dedication to legal endeavour is well known, long lived, and I am honoured to be in this building this evening.
I am also honoured to be here in Edinburgh, home to a tradition of thinking about philosophy, citizenship and the state, and also my hometown.
Could I talk to you this evening about the values that drive the Government's agenda of constitutional reform, and then a little later how these values have lead to reforms which have a particular impact or will have a particular impact or will have a particular impact on Scotland.
Many of the reforms, will of course, not apply to Scotland. But of course we are following your lead on some of them: for example, the Judicial Appointments Commission.
Constitutional reform does matter and is a driver of change beyond the reform itself. In a lecture to the Society of Legal Scholars last year Vernon Bogdanor (Professor of Government at Oxford University) called the package of changes which this government has introduced a quiet revolution. Different to the last great periods of constitutional reform. Different because those other periods were distinguished by one great piece of legislation: the Great Reform Act 1832 and the Parliament Act 1911, whereas the changes we have brought in have been a package of reforms.
We must I believe constantly review our constitutional arrangements to ensure they reflect the needs of the citizens they serve.
Since 1997 three progressive values have underpinned our approach to redefining that relationship.
The first has been to strengthen our democracy and public engagement with decision-making
The second has been to increase trust and accountability in public bodies
The third has been to enhance the credibility and effectiveness of our public institutions
The first value is to strengthen our democracy and public engagement.
One of the first pieces of work for this Government, on coming to power in 1997, was devolution.
There are two trends emerging in the distribution of decision-making. Sometimes decisions need to be taken beyond the state, because the issues involved or the effects to be created escape the boundaries of the single state. This is why our engagement with Europe is so important. Sometimes, though, Government from Westminster is too far away. Sometimes - some would say very often - Westminster and Whitehall are not best placed to understand the aspirations of the nations and regions of the UK. This was why we legislated to devolve power from Westminster and Whitehall to the Scottish Parliament and National Assembly for Wales.
Devolution of decision-making has, I believe, been successful. The Parliament and Assembly have brought their distinctive perspectives to bear in the making of decisions that affect the people of Scotland and Wales.
Devolution has, undeniably, made some decision-making more complex, but only in the right sorts of ways. Rolling devolution out across Whitehall, embedding it in decision-making, remains a political priority. I believe that this has begun to happen, that we are responding to the new distribution of powers very well, but we must continue to improve in that respect.
The second value is: increasing trust in public institutions. The foundation for trust amongst citizens and public institutions must be good and honest decision-making. People must believe that those who run public institutions place the interests of citizens at the heart of what they do. Of course it is part and parcel of a modern, sophisticated democracy that people challenge what public institutions say or do. However, whenever trust in public institutions falls below a certain point, problems arise. The politician and the government find it harder to persuade the public to make changes, often those changes which will benefit most, because trust gets lost.
I believe that there are two aspects to increasing trust in our public institutions. The first aspect is establishing greater openness.
The party that is seeking trust must be open in its dealings with the other. The other must not feel that it might be taken advantage of, or that it is being shut out. To this end, the Government brought forward Freedom of Information legislation in its first term and this will shortly be implemented in full in England and Wales. This legislation will allow the public to hold public institutions to account. It will let them see that Government has nothing to hide.
The second aspect of enhancing trust in public institutions is assurance. The party that is seeking trust must provide the other with an account of the lines that it will not cross and what the other may do if it does cross those lines. There must be clear parameters within which decisions will be made.
It is here that the Human Rights Act has particular constitutional significance. The Act provides important public re-assurance about the standards that public authorities should be working to. It is, I believe, a fairness guarantee enforceable against public authorisation by the court.
My third value is that Constitutional reform enhances the Credibility and effectiveness of our public institutions. This brings me to my own position. I am Lord Chancellor and Secretary of State for Constitutional Affairs. The office of Lord Chancellor has however become increasingly difficult to justify. We need to separate out the distinct roles of the Lord Chancellor and clarify the relationship between the independent judiciary, the executive, and the legislature.
The Lord Chancellor is both a minister with a substantial budget, and a figure with significant responsibilities towards the judiciary. As a minister he must ensure a well-run court service in England and Wales. He has responsibility for legal aid. He is the minister throughout the UK responsible for the constitution, human rights and electoral policy. In relation to the judiciary he is responsible for judicial appointments, judicial discipline and judicial deployment. The judges are his constituency for the judicial function. The public are his constituency for his ministerial function. The interests and the views of the two do not always coincide.
The public need their minister. The judges need their leader. The abolition of the Lord Chancellor, and the appointment of the Lord Chief Justice as the head judge allows this to occur. And it is right that it should.
It is, I think, just the kind of rational reform - stripping away confusing traditions; introducing transparent, comprehensible systems of governance - that is needed to make sure that our institutions better reflect the ideals and the values of the society they serve.
In the same piece of legislation, the Government proposes to create a distinct Supreme Court. Here again, there has been in the past a blurring of constitutional distinctions to the highest court in the land sitting as a committee of the House of Lords.
I do not suggest for one moment that the siting of the Appellate Committee within the legislature has in fact ever compromised the independence of judges who sit on it: on the contrary, the Appellate Committee is internationally admired and respected rightly for the quality of its jurisprudence.
But there is a fundamental difficulty with the idea of judges being able to sit as legislators. And since June 2000 the Law Lords have adopted a form of self-denying ordnance under which they will not speak or vote in debates on Bills that they might subsequently be required to interpret judicially.
Greater transparency in our constitutional arrangements is one of three key messages I wish to leave with you today. The new Supreme Court will give continuity in the way appeals are heard. While a new constitutional structure will come into being, the reality will be that appeals from Scotland will continue to be heard as they are now by the Appellate Committee of the House of Lords. The Supreme Court will be more relevant to the people of Scotland because in addition it will have responsibility for devolution cases, which I think are central to the interests of Scotland.
In all the arrangements we make we must ensure that the Supreme Court continues to preserve the integrity of the Scottish legal system. This has two aspects. First, the administrative arrangements for the court. It must be a body run entirely separately from the court services of the three territories - England and Wales, Scotland and Northern Ireland. I will deal with that in a moment. And second, the decisions it makes must be on Scottish law not some new form of UK law. We have, I believe, secured both these aims.
I believe that establishing a distinct Supreme Court, will enhance the credibility of the judicial system in the eyes of citizens. A distinct Supreme Court, quite definitely outside the legislature will, as Lord Steyn put it "carry in the eyes of the public a badge of independence and neutrality: it will be a potent symbol of the allegiance to our country to the rule of law". And that allegiance is important. I know that here in Edinburgh some concerns have been expressed about the court in a number of areas. There is debate over the numbers of Scottish judges who will sit in the Court, and about the arrangements for administering it. More fundamentally, questions have been raised in some quarters as to whether the new Supreme Court should continue to hear Scottish civil appeals at all. And there are cases about the effect of the Claim of Right and the Act of Union on the proposals.
Taking appointments first, I believe it is a considerable source of strength to the legal systems of both England and Scotland that there should be a mixture of English and Scottish judges sitting in the final Court of Appeal for all three jurisdictions.
Whilst there may be cases where it is appropriate to have a majority of Scottish judges, I think generally the mix works better. In devolution cases, the Judicial Committee of the Privy Council has always enjoyed the flexibility to draw on the expertise of holders of high judicial office in each jurisdiction who are members of the Privy Council - in practice, members of the Court of Appeal in England and Wales and Northern Ireland, and Senators of the Inner House of the Court of Session in Scotland. In the Supreme Court, this flexibility will be extended across the whole of the Court's work. It will be a matter entirely within the discretion of the President of the Court when to draw on additional justices. To preserve the status of the justices of the court, he or she should only be able to use the power sparingly. Where appropriate, a panel can be composed in which Scottish Justices form the numerical majority.
Could I return to the administrative arrangements for managing the Court. It has been suggested that, if the Court is to be financed and administered within the Department for Constitutional Affairs, then it will in practice become a part of the Court Service of England and Wales. Again, while I am sympathetic and understand the sentiments raised, I think the concerns are groundless. My Department has responsibilities which go well beyond the administration of the courts in England and Wales. It is responsible for the overall management of relations between the UK Government and the Devolved Administrations. The Secretary of State for Constitutional Affairs therefore has UK-wide responsibilities which make it entirely appropriate that he should take ministerial responsibility for the creation of a new UK Supreme Court.
But in any event the court will have a separate identified fund. The management of that fund will be entirely a matter for the Chief Executive of the court, reporting to the justices of the Supreme Court. This will ensure the degree of separateness the Act of Union required.
The Court will be based in London - since London is the capital city of the United Kingdom. But it will have the flexibility to sit elsewhere and it will be a matter for the court to decide - and I would expect and hope that will include Edinburgh. I would also hope and expect that some members of its staff will be seconded from Scottish and Northern Ireland Departments, so that the whole institution has a genuine flavour which reflects its UK-wide responsibilities and status.
I have referred to the issue of the Act of Union. On the Claim of Right question, the Lord Advocate on 21 January delivered an authoritative lecture on this issue to the Law Society which I could not better. Its power is demonstrated by the fact that the Vice Dean of the Faculty of Advocates told me this afternoon that he would now reflect on their position on the Claim of Right.
The Lord Advocate pointed out the circumstances prevailing in 1689 at the time of the Claim of Right. He identified the fact that it may well never have been intended to affect the result in individual cases. He made it clear that it probably didn't prevent the current proposal. But whatever its effect its purpose had been to protect the Scots from their judges, not to increase their independence. He pointed out that times had moved on. And for example, the ban on Roman Catholics contained in the Claim of Right plainly had no place in modern society. For all these reasons, I do not believe the Claim of Right stands in the way of the proposal.
I would, however, make one more general observation on the interplay between our two legal systems, and why the Supreme Court should have conferred on it the combined jurisdictions currently exercised by the Appellate Committee of the House of Lords and the Judicial Committee of the Privy Council.
To take Civil law first, we all know, acknowledge and indeed rejoice in the fact that Scotland and England have different legal histories and different legal systems and different law. Our final Court of Appeal gives recognition to that fact.
But there are also cases in which it is the relation between Scots and English law itself which may be in issue. An example is Donoghue -v- Stevenson itself, which was analysed by Lord Rodger in 1992 on the basis of the papers left by the late Lord Macmillan. Here it was the job of the House of Lords not merely to decide where the loss should fall as between the two famous citizens of Paisley, but to consider the principles of negligence applying throughout the United Kingdom (and, as it turned out, the entire common law world). In doing so, it needed to be able to draw upon a Bench expert not only in deciding questions of English and Scots law in isolation, but in taking an overview of the relationship between the legal principles in play across both systems of law. It is my belief that we should not, in creating a Supreme Court for the United Kingdom, create an institution which would not be capable of dealing as effectively with a case of the importance of Donoghue and Stevenson should it arise today. That is why we have framed our proposals in the way we have, and I believe future generations will thank us for it.
Our proposals rest on the separation of powers. The Law Lords will be taken out of the House of Lords and set up in a separate Supreme Court. People are increasingly sensitive to the need to underline that our judicial system is independent of both the executive and the legislature. The present arrangements, whereby the highest court in the land sits under the guise of a committee of the House of Lords, are obscure. Judges are much more scrutinised for their independence and impartiality now, and for their neutrality than they ever were before. And that is how it should be.
I believe that by establishing a distinct Supreme Court, for the whole of the UK, we shall enhance the credibility of the judicial system and embed its strengths.
It will be a court which will, I believe, quickly become a court recognised nationally and internationally for its quality and integrity. To remove it from the legislature, from the Lords, allows it to stand as the final Court of Appeal over the Scots, England and Wales and Northern Irish jurisdictions. Scots law and appeals preserved and enhanced. Scottish judges contributing to the development of the law as they have done for so many years.