Chapter Three: The Development of Final Appellate Jurisdiction
3.1 The Terms of the Union Settlement
The nation states of England and Scotland came together on the 5 th May 1707 to form a single Union state, to be known as the United Kingdom of Great Britain. 42 The legislation creating the new state, which was passed in both parliaments, contained provisions relating to the institutions of the new state, including those related to the administration of justice in Scotland. The Union legislation specifically provided for the continuing existence and authority of the Court of Session and High Court of Justiciary. 43 However, in addition to protecting those courts, the legislation also stated:
'…that no causes in Scotland be cognoscible by the courts of chancery, queen's bench, common-pleas, or any other court in Westminster Hall [ 44]; and that the said courts, or any other of the like nature after the union, shall have no power to judge, review or alter the acts or sentences of the judicatures within Scotland, or stop the execution of the same.' 45
The exact meaning of this passage has proven controversial. On the one hand it may be taken to indicate that Scottish cases should not be decided in courts outside Scotland; on the other hand, its terms are less than categorical. Whatever its intention, the effect of the measure was that Scottish litigants were not barred from appealing to the House of Lords, because the House of Lords did not sit as a court in Westminster Hall. It has been suggested that this was a deliberately vague provision that assuaged Scottish sensitivities concerning the prospect of domination by English institutions, while at the same time being sufficiently ambiguous to allow appeals to be taken to the House of Lords by those who might value an extra review of their legal situation. 46 The attractions of such a course even had some historical backing. The Claim of Right of 1689 had also specifically provided that an appeal from a decision of the Court of Session would lie to the Parliament of Scotland. The House of Lords was a part of the parliament which replaced the Parliament of Scotland, and so provided a natural alternative and successor.
Whatever the balance of background influences, in the absence of a prohibition on Scottish appeals to the House of Lords, a large number of Scottish litigants took appeals to the House of Lords, and the House of Lords accepted this appellate jurisdiction. Accordingly, the House of Lords assumed a final appellate jurisdiction for civil appeals from Scotland. 47
This historical narrative is important for our understanding of the present appellate jurisdiction of the United Kingdom Supreme Court. The Constitutional Reform Act 2005, we may recall, provides that an appeal will lie from a Scottish court '…if an appeal lay from that court to the House of Lords at or immediately before the commencement of this section.' 48
3.2 The different treatment of civil and criminal appeals
The Claim of Right asserted that there was an appeal from the Court of Session to the Parliament of Scotland, but it did not make the same assertion with respect to appeals from criminal courts. The question whether criminal appeals from Scotland could be heard by the House of Lords was one which generated controversy for some time. 49 Although there was arguably one successful early criminal appeal from Scotland to the House of Lords, 50 the weight of authority came to be strongly against allowing criminal appeals. In HMA v Murdison51 the question of a criminal appeal to the House of Lords was fully ventilated. The convicted prisoners presented a petition of appeal to the House of Lords which, on 10 th March 1773, refused to hear the case. Such was the strength of the decision MacLaurin was moved to state 'Thus was the great question, as to the competency of appeals from the court of justiciary, at last determined in the negative.' 52 Less than ten years later in the important Bywater case the House of Lords once again asserted that a criminal appeal from the High Court of Justiciary was not competent. 53 Therefore, just as the existence of a criminal appeal to the Parliament of Scotland before the Union seems dubious, eighteenth century decisions suggest that the possibility of extension of such an avenue to the Parliament of the United Kingdom was definitely foreclosed by then.
With the enactment of the Criminal Procedure (Scotland) Act 1887 the legislature specifically provided that there could be no criminal appeals from the High Court of Justiciary, thereby removing any remaining doubts with regard to the possibility of a criminal appeal to the House of Lords. Today it remains the case that civil law and criminal law are formally distinguished, 54 and that appeals in criminal matters to the United Kingdom Supreme Court are not competent. 55 The current legislative provisions that render a criminal appeal incompetent are: 1) section 124 (2) of the Criminal Procedure (Scotland) Act 1995, which states that decisions of the High Court of Justiciary '…shall be final and conclusive and not subject to review by any court whatsoever.'; and 2) the aforementioned section 40 (3) of the Constitutional Reform Act 2005, which confirms that under the new institutional arrangements appeals may be brought from a court in Scotland only '…if an appeal lay from that court to the House of Lords at or immediately before the commencement of this section.' Therefore, because no criminal appeal lay to the House of Lords from Scotland, there cannot be Scottish criminal appeals to the United Kingdom Supreme Court. 56
3.3 Civil appellate jurisdiction and the relative autonomy of Scots Law
The House of Lords, therefore, exercised a Scottish civil appellate jurisdiction from the 1707 Union onwards; furthermore, it also exercised a final appellate jurisdiction for England, Wales and Ireland in both civil and criminal law. In other words, the House of Lords was the court of last resort for the citizens of Great Britain and Ireland in all matters except Scottish criminal matters. However, the Union legislation had specifically provided that not only would the Court of Session and High Court of Justiciary continue to exist, but that Scottish law would also continue as a separate body of law, distinct from that of England. 57 Therefore, the Union legislation protected the existence of the Scottish legal system-courts and law-but the final civil appellate court of the Scottish system became the House of Lords, whose jurisdiction has now been assumed by the United Kingdom Supreme Court. 58 Thus, the Scottish legal system is an autonomous system within the United Kingdom, but it shares a final civil appellate institution with the other legal systems of the United Kingdom.
For a long time it was not clear whether the House of Lords, when hearing an appeal from a Scottish court, sat as a Scottish court applying Scottish law, or whether it sat as a United Kingdom court applying Scottish law. An important case which illustrates some of the historic uncertainty is Virtue v Commissioners of Police of Alloa, 59 more particularly in the judgment of the Lord President (Inglis):
I think it is an error in constitutional law to represent the House of Lords as sitting at one time as a Scottish Court and at another time as English Court. That House, I apprehend, sits always in one character, as the House of Lords of the United Kingdom, and as such the Imperial Court of Appeal for the whole three parts of the United Kingdom. It has occasion to administer at one time the law of Scotland, at another the law of England, and at another the law of Ireland. But in appeals coming from all three countries it has to deal with principles of law that are common to the whole three. 60
Following on from this pronouncement, the majority of modern commentators appear to favour the theory that the House of Lords sat as a United Kingdom court which applied Scottish law. 61 The Constitutional Reform Act, however, tends towards the other view, holding that the decisions of the United Kingdom Supreme Court are 'to be regarded as' decisions of a Scottish court when it hears appeals from Scotland, except if they are devolution issues. 62 This suggests that, when read properly, the section provides that the new Supreme Court should be seen as a Scottish court applying Scottish law.
The recognition that the apex court is somehow distinctly convened (whether as a distinct court, or as the one court applying a distinct law) in Scottish cases, has long been reflected in the practice of ensuring that Scottish-trained members of the court are actively involved in these cases. With the creation of Lords of Appeal in Ordinary in 1876 63 there was a Scottish Lord of Appeal in Ordinary appointed, 64 and in the early twentieth-century the modern convention that there should be two Scottish Lords of Appeal in Ordinary was established. 65
A further complication which arises from the traditional autonomy of the Scottish legal system is the nature of the substantive law itself. Scottish law has been influenced by the laws of a number of different countries including English law, which itself has been influenced by Scottish law. 66 The different autonomous systems within the United Kingdom, therefore, may be completely separate in terms of court structures, but the different systems influence the content of each other's law. Furthermore, there are certain statutory laws which apply in each legal system of the United Kingdom, and so are in some sense shared laws, but which are applied within different legal systems. 67 There are also legislative provisions which are the same, or at least very similar, in different statutes which apply to the different legal systems. 68 This points to a tension between the high level of formal autonomy and the rather lower level of substantive autonomy of the Scottish legal system, to which we return in later chapters. 69
Accordingly, while the Scottish legal system is clearly separate from the others within the United Kingdom, it is also the case that aspects of the law are similar across the different systems. The complicated and subtle interaction between these systems becomes important when the final appellate court sits to decide cases from Scotland. The fact that the United Kingdom Supreme Court will sit as a Scottish court may be clear; what is less clear is the extent to which and the circumstances under which it will apply Scottish law as a distinct body of law. The matter is left imprecise by the wording of the Constitutional Reform Act 2005 where it states: 'Nothing in this Part is to affect the distinctions between the separate legal systems of the parts of the United Kingdom.' 70 This subsection can be interpreted differently; all that is absolutely certain, however, is that Scots law and the Scottish legal system retains some form and measure of autonomy. 71
3.4 Devolution Issues: The Birth of a Constitutional Jurisdiction 72
The Scotland Act 1998 provided the instrument for the implementation of devolution in Scotland by the United Kingdom Government. The 1998 Act contains the institutional arrangements for the newly devolved powers of governance, including the two key institutions of the Scottish Government and Scottish Parliament. Similar legislation laid the foundations for devolution in Wales and Northern Ireland. The legislation implementing devolution in the different parts of the United Kingdom also contained provisions setting out a legal framework which could deal with disputes concerning the operation of the newly created devolved authorities. The devolution legislation stipulated that the Judicial Committee of the Privy Council ( JCPC), traditionally a court of appellate jurisdiction for various overseas legal systems with a continuing connection to the British crown, would be the court with responsibility for adjudicating disputes arising from devolution.
The JCPC derived its statutory jurisdiction 73 with regard to 'devolution issues' from the devolution legislation; 74 accordingly, the JCPC determined appeals from the Scottish legal system under this statutorily constituted jurisdiction. In turn, the United Kingdom Supreme Court derived the devolution issue jurisdiction by statutory transfer from the JCPC on 1 st October 2009. 75
This new jurisdiction created three novel and related judicial functions within the Scottish legal system: 1) judicial examination of devolved legislation beyond that of judicial reviewæmore particularly, subjecting legislation derived from a democratically elected legislature to a competence test; 2) a further (if indirect) appeal in criminal matters above the High Court of Justiciary; and 3) an institutionally internalised human rights jurisdiction.
The most commonly litigated issue under the JCPC's devolution issue jurisdiction has been the role of the Lord Advocate. The Lord Advocate is the primary law officer in Scotland, and is the head of the Scottish prosecution service. As a result of the Scotland Act 1998, the Lord Advocate is also a member of the Scottish Executive. 76 The significance of the Lord Advocate's membership of the Scottish Executive lies within the Scotland Act s 57 (2):
A member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights or with Community law. 77 (emphasis added)
The manner in which the Lord Advocate's powers are restricted by section 57 (2) has been fastened upon as a means by which broader aspects of Scottish criminal law and procedure may be reviewed. This is because if aspects of Scottish criminal law or Scottish criminal procedure are not compatible with the ECHR, any "act" of the Lord Advocate in bringing a prosecution before a court in a manner which reflects or expresses these incompatibilities may itself be taken to be in breach of section 57 (2). In turn, this broad brush interpretation of the Lord Advocate's powers and responsibilities has contributed to the growth of criminal law business in the JCPC. It is the wide-ranging effects which attach to the supervision of the Lord Advocate's role that have led to calls for an amendment which would remove the Lord Advocate from oversight under section 57 (2). 78
Such a broad interpretative approach by the judiciary to "devolution issues" was not inevitable. 79 Yet it was established early on, 80 allowing for critical scrutiny not only of the acts of the Lord Advocate and the prosecution service but also extending to the rules and procedures of the courts in which prosecutions were brought. 81 In this way wider and more substantive aspects of Scottish criminal law have come under the purview of the Judicial Committee's jurisdiction.
The development of an expansive 'devolution issue' jurisprudence by the JCPC meant that, when coupled with the difficulty of having a dual apex court regime, and a dual human rights regime represented by the Scotland Act 1998 and the Human Rights Act 1998, the scene was set for conflict. In a series of important cases the potential for conflict became manifest. The House of Lords and the JCPC reached differing conclusions upon the same point, and in such a way that exposed divergent approaches by the Scottish and non-Scottish judges in each case. 82
The manner in which the law has evolved in this area, as we have seen, 83 has divided opinion. What is clear, however, is that the devolution issue arrangements for appeals and references to the JCPC have operated in a manner that was not foreseen when the new jurisdiction was introduced. 84
3.5 Overview of the Present System
3.5.1 Final appeal in London: appeals to the Supreme Court
18.104.22.168 Civil appellate jurisdiction
The formal rules governing appeals from Scotland to the United Kingdom Supreme Court today are reasonably straightforward. 85 An appeal in civil matters 86 generally lies as of right, though there are exceptions, 87 and has been recognised by statute since the early nineteenth century. 88 The current arrangements are governed by the Court of Session Act 1988 which provides:-
40.- Appealable interlocutors.
(1) Subject to the provisions of any other Act restricting or excluding an appeal to the [Supreme Court] and of sections 27(5) and 32(5) of this Act, it shall be competent to appeal from the Inner House to the [Supreme Court]-
(a) without the leave of the Inner House, against a judgment on the whole merits of the cause, or against an interlocutory [ 89] judgment where there is a difference of opinion among the judges or where the interlocutory judgment is one sustaining a dilatory defence and dismissing the action;
(b) with the leave of the Inner House, against any interlocutory judgment other than one falling within paragraph (a) above.
(2) An interlocutor of the [Inner House] granting or refusing a new trial, on an application under section 29 of this Act, shall be appealable without the leave of the [Inner House] to the [Supreme Court]; and on such an appeal the [Supreme Court] shall have the same powers as the [Inner House] had on the application and in particular the powers specified in sections 29(3) and 30(3) of this Act.
(3) It shall be incompetent to appeal to the [Supreme Court] against an interlocutor of a Lord Ordinary unless the interlocutor has been reviewed by the Inner House.
(4) On an appeal under this section all the prior interlocutors in the cause shall be submitted to the review of the [Supreme Court]. 90
Accordingly, an appeal can be brought, as of right, against a judgment of the Inner House 91 if that judgment is on the 'whole merits of the cause'. An appeal can also be brought, as of right, against an interlocutory judgment of the Inner House, if the judgment appealed against is not unanimous; or, if it is an interlocutory judgment sustaining a dilatory defence and dismissing the action, an appeal as of right also lies. 92 In simple terms, a right to appeal exists against final decisions of the Inner House, and also in cases where an interim decision is made and there is disagreement among the judges hearing the case about that decision. In any case where there might be further proceedings in the Inner House an appellant will need the leave of the Inner House to appeal, unless there was disagreement between the judges in the Inner House.
Any appeal against an interlocutory judgment not mentioned above requires the leave of the Inner House, 93 and if it should refuse to give leave to appeal, that decision is final. If an appeal is lodged with the Supreme Court from the Inner House, then the effect of that appeal is that all the interlocutors pronounced by the Inner House are the subject of review. 94 The only restriction, 95 beyond the statutory restrictions and exclusions, 96 upon the right to appeal against a final decision of the Inner House is the requirement that the petition of appeal must be signed by two Scottish counsel who certify the appeal is reasonable. 97 The requirement that two Scottish counsel certify the appeal as reasonable therefore operates as an alternative to a requirement for leave to appeal. In this sense the position is different from the position in England and Wales.
In England and Wales there is a leave requirement to appeal to the United Kingdom Supreme Court. The Court of Appeal may grant leave to appeal, and if they refuse the United Kingdom Supreme Court may grant leave to appeal. The United Kingdom Supreme Court will grant leave to appeal if the appeal would:
'…raise an arguable point of law of general public importance which ought to be considered by the Supreme Court at that time, bearing in mind that the matter will already have been the subject of judicial decision and may have already been reviewed on appeal. An application which in the opinion of the Appeal panel does not raise such a point of law is refused on that ground.' 98
The process is normally one where the application for leave to appeal is dealt with in writing without a hearing by three Justices, 99 though they will give brief reasons for refusing any decision. Thus, the lack of a formal leave to appeal requirement for Scottish appeals, 100 providing as it does a somewhat easier route for Scottish litigants to the apex court than for their counterparts elsewhere in the United Kingdom, has been somewhat controversial. 101
We should not, however, overstate the impact of the procedurally generous approach taken to the hearing of Scottish cases. In the modern era, Scottish civil appeals to the House of Lords are relatively few in number, averaging fewer than ten a year. 102 While with regard to indices such as population or even overall volume of litigation, this does not necessarily constitute an under-representation of Scottish cases before the House of Lords relative to other parts of the UK, 103 it nevertheless means that in absolute terms (and in comparison to most foreign legal systems) very few cases arising under the jurisdiction of Scots law find their way to the top court of that jurisdiction.
As for these Scottish litigants who do arrive at the apex court in London, in line with the well established historical practice 104 they are likely to be met by a court with a strong Scottish representation. Indeed, there has been no significant period of time since the late 1920s when there have been fewer than two Scottish judges in the House of Lords, and recent statistics show that they are both present and active in all cases raising distinct questions of Scots law. 105 It would however be unwise to dismiss too lightly the possibility that a new institution, with a new name and headquarters, and with the experience of many a powerful Supreme Court in the common law world to draw upon, may depart from the practices of its previous incarnation. There have been concerns that the new Supreme Court may seek to develop the law in terms which assert its 'supreme' authority. 106 Such an assertion of 'supreme' authority may be less sensitive to the constituent jurisdictions of the United Kingdom, 107 and may in turn undermine the authority of lower appellate courts. 108
22.214.171.124 Devolution Issues
In addition to the formal regulation of the Supreme Court's civil appellate jurisdiction, it is useful to set out the devolution issue jurisdiction of the Supreme Court. 109 The legislation which underpins the devolution jurisdiction of the Supreme Court is the Scotland Act 1998. According to the terms of the legislation, 110 the Inner House of the Court of Session, or the High Court of Justiciary, may refer a devolution issue to the Supreme Court. 111 However, where the Inner House or High Court of Justiciary decide the devolution issue themselves, there is also an avenue of appeal to the Supreme Court from these determinations. In civil cases, appeal is normally 112 as of right, whereas in criminal cases, appeal is only with permission of the High Court itself, or, failing that, the Supreme Court. 113 Furthermore, the classification of a devolution issue as such is ultimately a matter for the Supreme Court, and not the High Court of Justiciary. 114 In addition to the provisions with regard to appeal and court references, there are also provisions for the law officers to refer devolution issues to the Supreme Court. 115
Now that the United Kingdom Supreme Court has assumed the JCPC's jurisdiction in these matters, it remains to be seen if the change of court will also herald a change in approach. It seems unlikely, however, that the United Kingdom Supreme Court, with substantial continuity of membership and an identical jurisdiction, will address the key issues very differently from the JCPC, at least in the short term. Therefore the devolution issue jurisdiction, which is closely bound to human rights jurisprudence, looks set to continue to provide an avenue for a UK wide interpretation of human rights which will be applied to Scottish cases, including criminal cases. This UK wide human rights interpretative approach might also be described as one that allows for what-in the UK context at least-would constitute a novel assertion of judicial constitutionalism. 116
3.5.2 Final appeal in Scotland
126.96.36.199 Appeals to the Court of Session
It also remains open to a Division of the Inner House of the Court of Session to direct a cause to be heard by a greater number of judges 117 in certain circumstances. Such a direction may be made if there is an equal division of opinion in the Division, or if the cause raises a question of particular difficulty or importance. 118 It is also still theoretically possible for a cause to be referred to the Whole Court for consideration; in practice, however, this has not happened in recent times. 119 These procedures do not constitute a second appeal, 120 though they do provide the Court of Session with a flexible mechanism whereby it can revisit, and if necessary overrule, prior decisions of the Inner House. It also allows decisions of difficulty or importance to be accorded a more authoritative weight. In practice decisions of an enlarged bench of the Court of Session are rarely the subject of an appeal to London; yet ultimately, any such decision remains a decision of the Court of Session, and as such it can be, and indeed has been, the subject of an appeal to the Supreme Court. 121
188.8.131.52 Appeals to the High Court of Justiciary
The High Court of Justiciary, like the Court of Session, is also a collegiate court with the power to convene a larger bench to hear appeals. 122 The Appeal Court of the High Court of Justiciary can sit as a court of three, 123 five, 124 seven, 125 and nine judges, 126 as well as sitting as a Whole Court. 127 The High Court of Justiciary was not subject to the numerical stipulations which historically applied to the Court of Session; 128 nevertheless, the Appeal Court of the High Court of Justiciary does convene larger benches in order to overrule the decision of another large bench court. Therefore, an unsatisfactory decision of a bench of five judges will be reviewed by a bench of seven judges; 129 an unsatisfactory decision of a bench of seven judges will require a court of nine judges to overrule it, 130 and so on. It remains an unanswered question whether a decision of the Whole Court can be overruled by a decision of a subsequent Whole Court. 131
Further, as we have seen 132 there is no appeal in criminal matters from the High Court of Justiciary to the Supreme Court. This might explain why in modern times the High Court of Justiciary has exercised this power more frequently than the Court of Session, 133 since the lack of a corrective further appeal makes precedent management within the High Court of Justiciary a necessity. Yet, despite this power to convene a larger bench to consider prior decisions, it remains the case that there is only a single appeal open to an appellant; 134 a position which may be contrasted with the position in civil matters, where there can be as many as three appeals. 135 Finally, while an appellant can submit a motion requesting that a larger bench be convened such a motion is no more than a request, and the appellant cannot insist upon a larger bench.