Judicial Committee of the Privy Council

 

Information Note on Rules of procedure for determination of devolution cases

1. The Judicial Committee (Devolution Issues) Rules Order 1999 (S.I. 1999 No. 665) has been published setting out rules of procedure to govern proceedings in the Judicial Committee of the Privy Council for the determination of devolution cases under the Scotland Act 1998, the Government of Wales Act 1998 and the Northern Ireland Act 1998. These statutes in effect make the Judicial Committee the court of final appeal for the United Kingdom in relation to questions as to the functions and/or legal competences of the devolved legislative and executive authorities in Scotland, Wales and Northern Ireland and, in some cases, the executive authorities in England.

2. Cases may come to the Judicial Committee in the following ways.

(1) A question may be referred by a United Kingdom Law Officer, including the Advocate General for Scotland, who will be a new Law Officer of the United Kingdom, the Lord Advocate (who will be acting on behalf of the Scottish Government), the National Assembly for Wales or the First Minister and deputy First Minister of Northern Ireland acting jointly.
(2) The same persons may require any court or tribunal to make a reference to the Judicial Committee.
(3) Certain superior courts in the United Kingdom, including the House of Lords, may refer devolution issues to the Judicial Committee for determination.
(4) Appeals against the determination of devolution issues lie to the Judicial Committee from the High Court and Court of Appeal in England and Wales, from the Court of Session and the High Court of Justiciary in Scotland and from the Court of Appeal in Northern Ireland. Leave to appeal is required in most cases.

3. The rules are in five parts. Parts I and V contain general and common rules applying to all cases; Parts II, III and IV apply only to Scotland, Wales and Northern Ireland respectively.

4. The rules set out the various procedural steps and the time limits within which they must be taken. Briefly, proceedings are started by lodging a document (either a reference or a petition of appeal) with the Registry of the Judicial Committee in Downing Street. Petitions are to be addressed to the Judicial Committee, not to Her Majesty in Council. The rules prescribe what petitions and references should contain and who must be served with copies of them. Where there are existing court proceedings (i.e. in appeals or references from courts) the parties to those proceedings must be served with the reference or petition. In addition, in all cases one or more of the following must also be served, depending on the nature of the case, and will have a right to intervene: the First Minister and the deputy First Minister of Northern Ireland, the Welsh Assembly and the Law Officers. Parties and interveners who wish to participate must enter an appearance at the Registry. These steps need not be taken by personal attendance, but formal documents may not be lodged by fax, nor may they be served by fax unless (and then only to the extent that) the recipient has indicated his willingness to accept service by that method.

5. For appeals the appellant must within 28 days of lodging his petition lodge a statement of facts and issues in the case and an "appendix" consisting of certain documents recording the proceedings in the courts below and other relevant documents. For references by courts the reference itself will contain the facts and issues, but a similar "appendix" must also be lodged. Within another 28 days all parties must lodge concise written statements of their cases. The matter is then ready for hearing.

6. For direct references, where the Judicial Committee is exercising an original jurisdiction, there is no statement or appendix, but all parties and interveners must lodge their written cases within a specified time limit (14 days where a Bill, or a provision of a Bill, of the Scottish Parliament or the Northern Ireland Assembly is being questioned; two months in other cases).

7. Leave to appeal will be required except for certain Scottish appeals and can be obtained either from the court appealed from or, if it is refused by that court, from the Judicial Committee itself. Petitions for special leave to appeal to the Judicial Committee will be considered on the papers in the first instance and leave may be granted or refused without a hearing. Alternatively a hearing may be held.

8. Hitherto the right to conduct litigation in the Judicial Committee of the Privy Council has been in general restricted to Privy Council Agents, i.e. London solicitors who have been enrolled as Agents at the Judicial Committee Registry. The devolution rules disapply that restriction and expressly provide that all persons with a right to conduct litigation in any of the superior courts of the United Kingdom may conduct devolution cases in the Judicial Committee.

9. At the end of the rules is a table of the Council Office fees to be charged in devolution cases in the Judicial Committee.

10. The rules will come into force on 6th May 1999 in relation to cases under the Scotland Act and the Government of Wales Act. In relation to cases under the Northern Ireland Act the rules will come into force on the same day as Parts II and III of the Northern Ireland Act 1998.

Judicial Committee Registry
25th March 1999