Scottish Court of Session Decisions

[1] The circumstances in which this appeal was brought to the Court of Session under section 51(11) of the Children (Scotland) Act 1995, the issues which were raised in the appeal and the decisions made by the court on those issues are all set forth in detail in the Opinion of the Court dated 26 June 2003, to which we make reference. On 25 September 2003, there came before us an application for leave to appeal to the Judicial Committee of the Privy Council under paragraph 13(b) of Schedule 6 of the Scotland Act 1988. It provides as follows:

Senior counsel for the second named appellant pointed out to us, in our view correctly, that this was a case where there was no appeal to the House of Lords from the decision which we had made on 26 June 2003, by virtue of section 51(11) of the Children (Scotland) Act 1995. She also recognised that any appeal to the Judicial Committee could only be against "a determination of a devolution issue", as appeared from Follen v. H.M. Advocate 2001 S.L.T. (P.C.) 774. Senior counsel indicated that, during the hearing of the appeal, she had insisted in arguing the devolution issues described in the Minute, No. 19 of process. In this connection she referred to what was said in paragraph [18] of our Opinion dated 26 June 2003. The background was that motions for intimation of that Minute had been refused on 30 November 2001 and 4 December 2002, as appeared from paragraph [91] of that Opinion. Senior counsel expressed the view that the second of these motions may have been incompetent and that a third motion would have been. She acknowledged that, at the hearing of the appeal, she had expressly declined to make any motion for intimation. She then adverted to the history of the treatment of the matter by this court disclosed in paragraphs [19], [28], [89] and [95] of our Opinion. It was contended that, by taking the course which this court had done in paragraph [99] of our Opinion, there had been a decision by the court not to entertain a devolution issue. It was argued that that amounted to a "determination" of a devolution issue, against which an appeal to the Judicial Committee could, with leave, be taken.

[2] Senior counsel for the second named appellant went on to elaborate the nature of the devolution issue which she contended had been determined in the appeal. It was one falling within the definition contained in paragraph 1(e) of Schedule 6 to the 1998 Act, that is to say,

What had been involved here was a failure on the part of the Scottish Executive to allocate sufficient resources to the Scottish judicial system to enable the sheriff and subsequently this court to determine the proceedings before her and it within a reasonable time, as appeared from paragraph 6 of the Minute, No. 19 of process. She contended that a devolution issue was a question and that, in paragraph [99] of the Opinion of the Court, a decision had been made on such a question. The decision was not to provide an answer to the question. That amounted to a "determination of a devolution issue". In that connection reference was made to various definitions of the word "determination" contained in Words and Phrases Legally Defined, Butterworths, 3rd edition. The "determination of a devolution issue" did not necessarily involve the making of a decision on the merits of the issue. It included the bringing to an end of the issue in so far as the existing process was concerned.

[3] In response to questions by the court, senior counsel for the second named appellant submitted that the devolution issue which she said had been determined had been competently raised, despite the provisions of Rule of Court 25A.3.(1). It was also submitted that the 1998 Act intended that alleged violations of human rights arising as devolution issues could be the subject of decision in whatever proceedings they arose. Thus, the second named appellant had the right to raise her devolution issue in the Stated Case which had been before the court. The court had no discretion in the matter. It was obliged to entertain the issue in those proceedings. Senior counsel went so far as to submit that Rule of Court 25A.3 was ultra vires and not worth the paper it was written on. Reference was then made to Brown v. Stott 2001 SLT 59, at pp. 76-77 and 82-83, and H.M. Advocate v. R. 2003 SLT 4, at paras. 44-45 and 122-123, which it was contended supported the submissions made. The court ex proprio motu should have ordained intimation of Minute No. 19 of process in terms of paragraph 5 of Schedule 6 to the 1998 Act, but it had not done so.

[4] Again, in answer to questions by the court, it was indicated that the purpose of an appeal to the Judicial Committee of the Privy Council, were leave to be granted, would be to ask the Judicial Committee to remit the case to this court to consider the issues raised in the Minute. That process could involve the reopening of the decisions made by the court in answering the various questions in the Stated Case.

[5] Senior counsel for the respondent moved us to refuse the application for leave to appeal. She drew attention to the fact that the court had twice refused intimation of the Minute, as appeared from paragraphs [18] and [91] of the Opinion. She also drew attention to the fact that, in the course of the hearing of the appeal, the primary argument for the second named appellant had been based upon the Human Rights Act 1998, rather than the Scotland Act 1998. In any event there were certain difficulties in the application of the provisions of that Act, having regard to the chronology of the events involved in the Sheriff Court, as appeared from paragraph [70] of the Opinion.

[6] In any event, the proper view of the words "a determination of a devolution issue" in paragraph 13 of Schedule 6 to the Scotland Act 1998 was that there was no determination unless there had been a decision on the merits of a devolution issue properly raised. On that basis, the present application for leave to appeal was incompetent. In its Opinion, the court had taken the view that there was a serious question as to what remedies might be available in the Stated Case procedure, a view which was reflected in paragraph [93] of the Opinion.

[7] It had been said that the court had no discretion as regards the determination of a devolution issue, if it accepted that there was such an issue before it, which was not frivolous or vexatious in terms of paragraph 2 of Schedule 6. However, this court was not required to entertain all submissions relating to devolution issues, even if they were not to be regarded as frivolous or vexatious. The court could always reject a submission as irrelevant or incompetent. The basis of that submission was threefold. In the first place, the remedy sought might not be available in the context. Secondly, the court was entitled to control the manner and time of raising of a devolution issue. Thirdly, equitable principles could be applied in relation to the stage at which such issues were sought to be raised and the effect which the raising of them might have on other parties. The court had been quite entitled to take the course which it did. The remedies sought in the Minute No. 19 of process were declarator and reduction. The court had taken the view that those remedies could not be furnished in the process before it., which view was amply justified. The court had been entitled to decline to entertain the Minute. The remedies sought in it could not competently be granted in the present process. The court could not simply discard the restraints and disciplines inherent in an appeal by way of Stated Case. If the second named appellant wished to pursue a remedy in other proceedings, no doubt she could take that course.

[8] It had been contended that Rule of Court 25A.3 was, in some way, ultra vires, or of no effect in the context. That contention was unsound. Paragraph 37 of Schedule 6 to the Scotland Act 1998 specifically authorised the making of rules for the regulation of procedure, which included the purpose of "prescribing the stage in the proceedings at which a devolution issue is to be raised or referred." Rule of Court 25A.3.(1) contained provisions as to the stage at which a devolution issue might be raised. If it were not raised at the stage specified, then it could only be raised if "the court, on cause shown, otherwise determines." The court had not even been asked to exercise its discretion under that Rule. In these circumstances, the court had been quite entitled to reach the decision which it did. Accordingly, even if the present application for leave to appeal was competent, it should be refused. Senior counsel for the respondent also referred to the scope of the intended appeal, as disclosed in the second named appellant's legal aid memorandum. She submitted that an appeal to the Privy Council was not designed to deal with matters such as those specified there.

[9] In our opinion, the competency of the present application depends upon whether, on a proper view of the terms of paragraph 13 of Schedule 6 to the Scotland Act 1998, the application for leave falls within the scope of that paragraph. What the paragraph contemplates is "an appeal against a determination of a devolution issue." Plainly, if there has been no determination of a devolution issue, then the application for leave to appeal must be incompetent. We are of the opinion that the word "determination" in that context implies the making of a decision upon the merits of a devolution issue by the court. As will be apparent from the terms of our Opinion, dated 26 June 2003, no such decision has been made. Indeed, for the reasons which we have explained in that Opinion, the court was at pains to make no such decision. In these circumstances we conclude that the present application for leave to appeal is incompetent. It will be refused on that basis.

[10] Even if our view regarding that matter were to be wrong, we would have refused to grant leave to appeal. It appears to us to be quite inappropriate for an appeal to the Judicial Committee to be authorised in a situation in which this court, for the reasons which it has given, has in fact not made a decision on the merits of the issue raised.

[11] It was represented to us that a decision by this court to decline to entertain a devolution issue was itself unlawful and that the Judicial Committee ought to be given the opportunity so to decide. In our opinion that contention is unarguable. Paragraph 37 of Schedule 6 to the Scotland Act 1998 and Rule of Court 25A.3, in our view, authorises this court to decline to entertain a devolution issue in the circumstances defined in that Rule. No attempt was made to persuade us, during the course of the hearing of the appeal, to exercise the discretion, which we consider we have under those provisions, in favour of the second named appellant. In this situation we consider that no stateable argument to the effect indicated could be presented to the Judicial Committee. In the whole circumstances the application is refused.