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Final Appellate Jurisdiction in the Scottish Legal System

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Appendix I: Historical Development of Appeals from Scotland

A Introduction

The structures of the appellate jurisdictions within the Scottish legal system represent a picture of institutional asymmetry. It is unique for a modern legal system to allow appeals emanating from its civil law 1 appeal court to be decided by the highest court within the sovereign state, while at the same time barring appeals to that same court in criminal matters. However, it is not merely jurisdictional geometry which may surprise the observer of the Scottish legal system. The organic evolution of the United Kingdom's 'constitution' as a whole, and more particularly the development of its pre-eminent court's jurisdiction-until recently the House of Lords, and now the United Kingdom Supreme Court-has meant that the highest court does not have a heritage of constitutional review as distinct from its standard jurisdiction. This characterisation of the appellate jurisdiction, however, is a very general one. A more refined understanding of the appellate jurisdiction of the Supreme Court requires us to trace its, historical development of that jurisdiction within the broader context of the development of the British state.

B Early Days: the Union of 1707 2

The methodology of legal history, especially legal history undertaken with the purpose of illuminating modern day positions, remains a problematic subject. 3 Of more immediate relevance, and indeed difficulty, is the related question of where to begin. In the present context, a useful starting point for considering the historical development of the current appellate structure in Scotland is the political union with England. On 1 st May 1707 the sovereign state of the United Kingdom of Great Britain was born. 4 This new state encompassed the nations of England, Scotland and Wales. The coming together of these two sovereign states into a single entity was consensual, 5 formally at least. And so, it has been observed, in theory it could be similarly unmade. 6

In the present context the most important aspects of the Union are the provisions within the Union legislation pertaining to the administration of justice in Scotland. 7 The two most important provisions for the present enquiry are articles 18 and 19 of the Treaty of Union, which relate both to substantial law and to the machinery of justice. The relevant texts are reproduced below:-

Art XVIII: That the Laws concerning Regulation of Trade, Customs, and such Excises, to which Scotland is by virtue of this Treaty to be liable, be the same in Scotland, from and after the Union as in England; and that all other Laws, in use within the Kingdom of Scotland do after the Union, and notwithstanding thereof, remain in the same force as before (except such as are contrary to or inconsistent with this Treaty) but alterable by the Parliament of Great Britain, With this difference betwixt the Laws concerning publick right Policy, and Civil Government, and those which concern private right and the Laws which concern publick right Policy and Civil Government may be made the same throughout the whole United Kingdom; but that no alteration be made in Laws which concern private Right, except for the evident utility of the subjects within Scotland. (emphasis added)

Art XIX: That the Court of Session or Colledge of Justice, do after the Union and notwithstanding thereof, remain in all time coming within Scotland as it is now constituted by the Laws of that Kingdom, and with the same Authority and Priviledges as before the Union; subject nevertheless to such Regulations for the better Administration of Justice as shall be made by the Parliament of Great Britain; And that hereafter none shall be named by Her Majesty or Her Royal Successors to be Ordinary Lords of Session but such who have served in the Colledge of Justice as Advocats or Principal Clerks of Session for the space of five years, or as Writers to the Signet for the space of ten years With this provision That no Writer to the Signet be capable to be admitted a Lord of the Session unless he undergo a private and publick Tryal on the Civil Law before the Faculty of Advocats and be found by them qualified for the said Office two years before he be named to be a Lord of the Session, yet so as the Qualifications made or to be made for capacitating persons to be named Ordinary Lords of Session may be altered by the Parliament of Great Britain.

And that the Court of Justiciary do also after the Union, and notwithstanding thereof remain in all time coming within Scotland, as it is now constituted by the Laws of that Kingdom, and with the same Authority and Priviledges as before the Union; subject nevertheless to such Regulations as shall be made by the Parliament of Great Britain, and without prejudice of other Rights of Justiciary:

And that all Admiralty Jurisdictions be under the Lord High Admirall or Commissioners for the Admiralty of Great Britain for the time being; And that the Court of Admiralty now Established in Scotland be continued, And that all Reviews, Reductions or Suspensions of the Sentences in Maritime Cases competent to the Jurisdiction of that Court remain the same manner after the Union as now in Scotland, until the Parliament of Great Britain shall make such Regulations and Alterations, as shall be judged expedient for the whole United Kingdom, so as there be alwayes continued in Scotland a Court of Admiralty such as in England, for determination of all Maritime Cases relating to private Rights in Scotland competent to the Jurisdiction of the Admiralty Court; subject nevertheless to such Regulations and Alterations as shall be thought proper to be made by the Parliament of Great Britain; And that the Heritable Rights of Admiralty and Vice-Admiralties in Scotland be reserved to the respective Proprietors as Rights of Property, subject nevertheless, as to the manner of Exercising such Heritable Rights to such Regulations and Alterations as shall be thought proper to be made by the Parliament of Great Britain;

And that all other Courts now in being within the Kingdom of Scotland do remain, but subject to Alterations by the Parliament of Great Britain; And that all Inferior Courts within the said Limits do remain subordinate, as they are now to the Supream Courts of Justice within the same in all time coming;

And that no Causes in Scotland be cognoscible by the Courts of Chancery, Queens-Bench, Common-Pleas, or any other Court in Westminster-hall; And that the said Courts, or any other of the like nature after the Union, shall have no power to Cognosce, Review or Alter the Acts or Sentences of the Judicatures within Scotland, or stop the Execution of the same;

And that there be a Court of Exchequer in Scotland after the Union, for deciding Questions concerning the Revenues of Customs and Excises there, having the same power and authority in such cases, as the Court of Exchequer has in England And that the said Court of Exchequer in Scotland have power of passing Signatures, Gifts Tutories, and in other things as the Court of Exchequer in Scotland hath; And that the Court of Exchequer that now is in Scotland do remain, until a New Court of Exchequer be settled by the Parliament of Great Britain in Scotland after the Union;

And that after the Union the Queens Majesty and Her Royal Successors, may Continue a Privy Council in Scotland, for preserving of public Peace and Order, until the Parliament of Great Britain shall think fit to alter it or establish any other effectual method for that end. (emphasis added)

Within these two provisions the template for the future of the Scottish appellate structure can be readily discerned. The history of the negotiations of the drafting of the provisions, and indeed the wider context informing those negotiations, has been well described by others. 8 As regards the first provision, that is to say Art XVIII, the obvious issue is the manner in which Scottish law will be incorporated into the new singular Union state. As John Ford notes, the negotiations pertaining to the status of Scottish law were set against a backdrop of dynamic debate on the question. 9 Indeed, the Union of Crowns in 1603 had meant that the topic of political union, and hence the practical facilitation of such a union, had been the subject of substantial contemporary debate for some time. Unsurprisingly, the status of the law of the Kingdom of Scotland, and indeed to a lesser extent England, had been canvassed by pamphleteers and aborted commissions in some depth. 10 As is observed by Ford, in many ways the requirement for a specific saving of Scottish law, unlike its southern counterpart, illustrates the common law orientation of the negotiation and ultimate agreement. 11

Perhaps the most significant aspect, for present purposes, of the written protection of Scottish law within the Treaty of Union is the distinction that the Treaty draws between 'publick' and 'private' right. 12 The regulation of matters touching 'publick' right and civil government would be made uniform throughout the new state, whereas matters of 'private right' would endure untouched, and only to be altered for the evident utility of the subjects in Scotland. To modern eyes 13 this distinction would appear to have been predicated upon the perceived need for a uniform constitutional law; whereas, with regard to private law, the municipal law of Scotland would retain its distinct character, subject to alteration for the evident utility of the Scottish people. Interestingly, there was contemporary disagreement over the status of criminal law as either 'publick' or 'private, though ultimately no specific provision was made with regard to criminal law. 14 On purely textual grounds, therefore, it is perhaps surprising that private law, with its apparent protection, would become subject to appeals to the House of Lords; while, on the other hand criminal law, with its disputed protected status, would not become the subject of appeal to London. 15 In any event, it is clear that Scottish criminal law was not assimilated with English law, nor was it subsumed within a more nebulous idea of British criminal law. 16 On the flip side, the apparent protection afforded to the Scottish law relating to matters of 'private right' has not insulated it from legislative change; 17 yet, the continued existence of a separate Scottish legal system at all is perhaps testament to the efficacy of the Articles of the Treaty.

In addition to the specific provision for the continued existence of the laws of Scotland, the treaty also made provision for the machinery of justice. In the second article reproduced above, Article XIX, we can see that the Treaty also made provision for the preservation of Scottish courts to administer the distinct Scottish law protected in the preceding article. The particulars of the article provide that the Court of Session would remain 'in all time coming', as would the Court of Justiciary, though both would be amenable to statutory reform by the new United Kingdom parliament for the '…better Administration of Justice.' 18

Yet, important as these provisions for the continuity of the Scottish 'Supream Courts of Justice' are, the more ambiguous provision is that which relates to the prohibition against Scottish causes being heard by courts constituted in Westminster Hall. This provision has proven somewhat problematic, at least insofar as it provides potential for debating the intent of the drafters of the Treaty: did they purport to disallow appeals beyond Scotland altogether; or, did they envisage appeals to the new Parliament, and hence left the matter silent beyond the prohibition on Scottish causes at Westminster Hall? The significance of the reference to Westminster Hall is that the main central English courts were located in Westminster Hall, and so a specific prohibition against cases being heard in Westminster Hall would assuage concerns that Scottish appeals would be heard by English courts. However, and indeed crucially, the House of Lords did not sit in Westminster Hall, and therefore there was no, clearly expressed, written prohibition against Scottish appeals to the House of Lords.

The Scots commissioners in previous aborted union negotiations had attempted to prevent any appeals being heard in England, while the English commissioners had suggested that the House of Lords ought to be able to hear such appeals. 19 However, it is pointed out by Ford that times had changed by the early eighteenth century, as popular discontent with the Lords of Session had resulted in the Claim of Right, and greater clamour for some kind of recourse to parliament. 20 And, on that basis, it would appear that the intention of the articles in question was not to bar appeals to the new parliament. 21 Indeed, the contemporary debate considered the perceived danger posed to the Scottish courts and the law they administered; yet, that threat was offset by the assumption that the new parliament's powers would extend only to review of process (not unlike judicial review today), and the need to go to England might even operate as a deterrent, thereby underlining the authority of the Scottish institutions. 22 Perhaps the most telling aspect of the debate is summed up by Ford: 'What no one seems to have welcomed was the prospect of decisions of the session being subjected to substantive review by the House of Lords.' 23

It is readily apparent that the Union of 1707 represents a highly important moment in the historical development of the jurisdictional structure of the Scottish legal system. The protections afforded to Scottish law in the Treaty of Union are an enduring testament to the attempts of those long since deceased to safeguard the notion of Scottish law in Scottish courts. However, no less apparent is the difficulty inherent in trying to discern the intent of those who drew up and voted on the treaty, and, ultimately, the effect of that difficulty upon those who would come to be governed by the Union's terms. Clearly there were disagreements and disparate intentions which were not necessarily embodied within the finalised terms of the treaty.

Compounding the inevitable disconnect between the intentions of all concerned and the concrete manifestation of those intentions, is the fact that it seems clear that certain assumptions about the limited character of any recourse to the London courts, almost axiomatic in their strength, were made about the future operation of the Treaty provisions. With hindsight such assumptions can seem naïve. The use of the term naïve is not intended to be negative-this is not a qualitative evaluation of the historical development of this jurisdiction, it is a descriptive one. As a matter of description therefore, it seems clear that the subsequent development of the appellate jurisdiction did not equate with the intentions of contemporary Scottish legal opinion. Yet it is equally clear that the subsequent development of the appellate jurisdiction of the House of Lords is not inconsistent with these provisions: any gap between an intention and the resulting manifestation of that intention does not undo the process by which the result was reached. Therefore, it is to the subsequent interpretation of the Treaty of Union, and indeed subsequent parliamentary activity, that we now turn.

C Post-Union Development: The Eighteenth Century

Whatever may have been the intention of the framers of the Treaty of Union, it soon became clear that Scottish litigants would take advantage of the ability to take cases to the House of Lords in London. 24 The terminology of the time was that the pursuer might 'protest for Remeid 25 of Law'. 26 It is clear that litigants intended to appeal to the new British parliament before it had even come into existence. 27 It would appear that in the period between the dissolution of the Scottish Parliament, and the constitution of the new British Parliament, these litigants were hedging their bets by providing for their protestations to be heard in the hypothetical successor 'judicatory' of the Scottish Parliament.

The new parliament met for the first time on 23 October 1707, and thereafter a Scottish litigant would simply assert that they '…appealed to the British parliament.' 28 As MacLean notes the significance of such early cases lies in the fact that they are ones in which the appeal notices were being lodged in the Court of Session. This all changed with the important case Rosebery v Inglis, where the House of Lords heard the petition and appeal from the decree of the Lords of Council and Session on 16 th February 1708, and ordered the defender Inglis to give written answers. 29 A committee was constituted to consider the mechanics of the procedure to be followed, 30 which duly reported in the following manner:

It is Ordered, by the Lords Spiritual and Temporal in Parliament assembled, That the Respondent Sir John Inglis and all other Respondents to Appeals from Scotland do put in their Answers, as Respondents do in Cases of Appeals from the Courts in England, within the Time appointed by the House; and that the Clerk Register and his Deputies the Principal Clerks of Session shall give authentic Copies of the Proofs and Extracts of the Proceedings, to either Party that shall require them, at his proper Charge, to be made Use of at the Bar of this House: And it is further Ordered, That Sir John Inglis hath hereby further Time allowed him, for answering to the Appeal of the Earl of Roseberie, until Tuesday the Twentieth Day of April next, at Eleven a Clock. 31

One may note the telling turn of phrase that 'all other Respondents to Appeals from Scotland' would follow this procedure, and indeed, the orders directed the Clerks of Session to provide the necessary materials for the consideration of such appeals. 32 This decision represents the beginning of substantive procedures for appeals from Scotland. 33 Thus, the 'first' Scottish case to be heard by the House of Lords following the Union was Rosebery and not, as is sometimes asserted, Greenshields v Provost and Magistrates of Edinburgh. 34 We have seen that the Rosebery case first appeared in February 1708, and may note in passing further appeals from 'North Britain' in December 1708. 35 The first example of the House of Lords reversing the Court of Session appears to be 10 th March 1709; 36 however, four days later the Court of Session's decree in another case was affirmed. 37 At the same time, appeals were still being presented in Edinburgh for consideration in the British Parliament. 38

These pioneering appeals helped to settle the existence of the jurisdiction, but they also ensured that the procedures extant in such appeals were also developed. Thus, we have already noted that the House of Lords ordered the Clerks of Session to cooperate with appellants wishing to appeal. In addition to this, it is noted by Walker that appeals to the House of Lords from Scotland were precisely that, and not, as in some English cases, hearings on writs of error. 39 The House of Lords also began to order awards of costs, which were to be given effect to by the Court of Session '…by the same Rules and Methods as Costs given by them are to be levied.' 40

Perhaps most significant of all however, was the order handed down on 19 th April 1709 which stated 'It is Ordered, by the Lords Spiritual and Temporal in Parliament assembled, That, after an Appeal shall be received by this House, from any Sentence or Decree given or pronounced in any Court in Scotland, and an Order made by this House for the Respondent to answer the said Appeal, and Notice of such Order duly served on the Respondent; the Sentence or Decree so appealed against, from such Time, ought not to be carried on into Execution by any Process whatsoever." 41

The following years saw a steady increase in the number of appeals, with the result that by the end of the eighteenth century the House of Lords could justifiably be described as '…to all intents and purposes a Scottish Court.' 42 In the early-nineteenth century almost 80% of the House of Lords's business originated in Scotland, and the sheer numbers of Scottish appeals had become a major problem for the effective administration of justice across Britain. 43 This arbitral logjam forced changes in the way in which the jurisdiction operated. From an early stage, entire days had to be devoted solely to judicial work, and on such days the decision making process was often for all intents and purposes solely exercised by the Lord Chancellor. 44 However, the problem was not only one of securing adequate judicial manpower. To compound this, in some cases, especially those of political significance, lay peers would take an active part in decisions. 45

A number of reasons have been given for the large numbers of Scottish appeals to the House of Lords. Some have suggested that the stay of execution granted to an appellant to the House of Lords was attractive, 46 and appeal was used as a delay mechanism. 47 Another factor was domestic dissatisfaction with the judicial process in Scotland, and more particularly the perceived partiality, to put the matter lightly, of the Court of Session. 48 The manner in which justice and the machinery of justice operated was permeated by the intrigues of powerful political dynasties. 49 This unfortunate domestic backdrop may well have encouraged litigants to appeal to an 'external' appellate body which, in perception at least, would be less susceptible to domestic intrigue or influence. 50 There have also been suggestions that in addition to the partial implementation of justice, the quality of adjudication itself was not as high as could be expected. In particular, the forms of process were in such a state as to allow the wily litigant to beguile the Scottish court, which seldom gave reasons for its decision, 51 and then gamble with some hope that the House of Lords would be unable to comprehend the antiquated intricacies of the Scottish procedure. 52 Whatever inspired the groundswell of appeals, by the end of the eighteenth century the need for change had become clear, and so the stage was set for the reforms of the judicial machinery of Scotland in the nineteenth century.

D Changes to the Court of Session

At the outset of the nineteenth century any doubts, inspired by the Union settlement and its implementing legislation, as to the Scottish appellate jurisdiction of the House of Lords were long since dispelled. Not only had the right to appeal been firmly established, so too had the necessary procedural mechanisms supporting such a jurisdiction. In fact, in many ways, the most important systemic issue facing Scottish law was the way in which to handle the spectacularly popular growth in the jurisdiction. Furthermore, the issue was not only of the greatest importance to Scottish lawyers-the massive Scottish caseload for the House of Lords was threatening to unhinge the administration of justice in England as well as in Scotland. Therefore, the eyes of many political constituencies were beginning to focus upon these Scottish appeals, and indeed upon the court whence they came-the Court of Session. It is necessary to give some attention to the structure of the Court of Session, and the way in which it was to be reformed, in order to provide a complete picture of the appellate jurisdiction to the Lords.

In 1800 the Court of Session looked much as it had done for centuries-there were fifteen judges, or Senators, who undertook the judicial work of the court. Of the fifteen judges, all but the Lord President took turns to sit in the Outer House of the court; while the Inner House sat with at least nine judges. Therefore, the court essentially sat en banc and was known by various nicknames such as the 'Haill Fifteen', or the 'Auld Fifteen'. This arrangement was becoming problematic by the early nineteenth century. Beyond the age-old complaint that if a certain judge had not been absent a party may have won, a more profound problem was manifesting itself: the judges frequently based their decisions upon quite different grounds, and indeed prevented publication of those grounds. 53 In addition to the judicial reasoning process, and no doubt linked to it, the forms of process and tradition of written pleadings were taking a heavy toll upon the system, with much judicial time being devoted to refining the arguments of the litigant. It was becoming clear that the system was incapable of providing justice in an efficient and reasonable manner, especially against the backdrop of industrialisation and the massively increased size and importance of commercial causes.

This state of affairs, which appears to have been the bane of many but the fault of none, could not be allowed to continue. There were a number of reforms proposed, ranging from tinkering with judicial numbers, experimentation with juries, reconsidering the equity/law divide, new courts, all the way to having Scottish law lords. 54 The pressure for reform was made all the stronger by the unusually strong London interest in reform, prompted mainly by the need to deal with the sheer number of Scottish appeals, which were beginning to clog up the business of the Lords. 55 The leading text dealing with the initial Whig reforms of the Court of Session details the disparate solutions which were tested, and shows the extent of English interest in solving the perceived problems of the Court of Session. 56 What emerged from these varying solutions was a very different structure for the Court of Session, and in addition to this, important reforms were made with regard to appeals to the House of Lords.

Therefore, by virtue of the Court of Session Act 1808, the Court of Session was divided into the Inner and Outer Houses, with the former being split into two divisions to handle appellate work. Of perhaps more importance for present purposes were two important changes which the Act made to appeal procedures to the House of Lords. First, there would no longer be an appeal from interlocutory judgments of the Court Session, unless they gave leave so to do; and, secondly, the automatic stay of execution of the judgment of the Court of Session was removed. These reforms were made with the intention of improving the quality of justice administered in Scotland, with the additional vested interest of reducing the number of Scottish appeals to the House of Lords. The plan worked to some extent, though it took time. 57

These early nineteenth-century reforms represented domestic Scottish changes which regulated appeals from the Court of Session to the House of Lords-the reform was of what went to the Lords, and how it got to there - as opposed to reform of the House of Lords itself. From the middle to end of the nineteenth century, the emphasis for reform shifted to examine the nature, and indeed very existence, of the House of Lords as an ultimate juridical arbiter.

We may also note that it was in this period that the theoretical possibility of a Scottish appellate criminal jurisdiction was finally conclusively denied by the House of Lords. 58 The possibility of a criminal appeal to the old Scottish parliament was at best dubious, and by the time of the Union it seems to have been totally disregarded. However, while we might say that the latter part of the nineteenth century saw the final and conclusive rejection of the possibility of criminal appeals, 59 it seems that the prospect of appeals from the High Court of Justiciary was, in reality, foreclosed long before this.

The important Bywater60 case, which essentially amounts to a rejection of any criminal jurisdiction in the latter eighteenth century, is foreshadowed by a seldom mentioned 61 decision reported by MacLaurin. 62 In HMA v Murdison63 the convicted prisoners presented a petition of appeal to a committee of the House of Lords which, on 10 th March 1773, refused to hear the appeal. 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.' 64 Further, the importance of the decision, its contextual background, and indeed the manner in which it was reached, are fully set out. The account given by MacLaurin includes opinions from the English Attorney-General and the Lord Advocate stating that there was no appeal from the Justiciary. 65 The Lord Advocate's opinion states clearly that:

'…there is not in any one book of authority in our law, the least hint or insinuation, that any appeal lay from the court of justiciary to the parliament of Scotland…no trace of any such appeal has been discovered. This is stronger than the opinion of a hundred lawyers; because it ascertains the fact, that no such appeal was ever taken; and in this case the fact ascertains the law. The instances of capital, and other sentences, for all sorts of crimes, pronounced by the courts of justiciary, are innumerable, and many of them against persons of rank and fortune; yet no such method of suspending or avoiding these sentences was ever attempted; which shows it has been the universal opinion of the nation, and of all lawyers throughout succeeding ages, that no such remedy was competent in law…When the Revolution gave the people of Scotland an opportunity of vindicating their rights and privileges, and obtaining redress of grievances, the estates of parliament, in their claim of right 1689, do assert, "That it is the right and privilege of the subjects, to protest for remeid at law to the King and parliament, against sentences pronounced by the Lords of Session, provided the same do not stop execution of these sentences." This was thought necessary for the security of the property of the subjects; and was explained by the after practice to import a right of appeal from that court to the high court of parliament: but no such claim is made as to sentences pronounced in the high court of justiciary. The safety of the public depended upon the speedy trial and execution of criminals. The criminal law, and the forms of trial, were more fixed and certain; and, above all, the security which the subjects had by a jury-trial before the court of justiciary, and their last resort in all cases to the grace and mercy of the sovereign, were sufficient reasons for the estates of parliament to leave the jurisdiction of that court to remain upon the same footing as it had stood from the earliest period of our constitution.' 66

Therefore, in addition to the clear lack of precedent for a criminal appeal, 67 we also can see here the giving of reasons why such a criminal appeal would not be allowed. The protection of stronger procedures, trial by jury, and the ultimate prerogative of mercy vested within in the Crown were considered sufficient protections to render an appeal superfluous, and indeed when considered against the perceived public protection by speedy execution, almost dangerous. 68 Therefore, although the matter was finally put beyond doubt in the nineteenth century, the potential for a criminal appeal, as a matter of history, appears to have been foreclosed long before the Mackintosh decision. 69

E Changes to the House of Lords

The early nineteenth century had seen legislative interventions aimed at the reform of the Court of Session, with the objective of reducing the number of appeals to the House of Lords. 70 As was noted above, these reforms, alongside other procedural changes within the House of Lords, were effective in time in reducing the number of appeals from Scotland. 71 Within these procedural reforms lay the seeds for more profound changes in the way in which the House dealt with judicial business-the need to draw up a dedicated rota system to deal with the backlog of predominantly Scottish appeals, prepared the ground for a more professionalised approach to the judicial business of the House more generally. 72

The professionalization of the judicial function of the House of Lords appears to have occurred with the change of Lord Chancellor from Eldon and Lyndhurst to Brougham. 73 These changes contributed to the greater identification of the House of Lords and Appeal Committee as courts of law which were '…increasingly independent of the legislative and executive organs whose names they bore.' 74 With this change in character came a change in the attitude of the English legal profession. This was reflected in the fact that 1834 was the first year in which more English cases were decided in the House of Lords than Scottish cases. 75 That year was also notable for Brougham's attempt to substantially merge the House of Lords, in its judicial role, and Judicial Committee of the Privy Council. However, the bill came to nothing with the fall of the government that year. 76

The next important judicial reforms, which took place against a backdrop of massive changes to the fundamental political nature of the country, to touch upon Scottish affairs came in the 1850s. The appointment of a select committee in 1856 to consider the appellate jurisdiction of the Lords was the result of political discontent with the operation of the House of Lords as a court of law generally. The political climate of the time was changeable-a multitude of unconnected concerns were abroad. Among them was the possibility of Scottish judicial representation in whatever arrangements were to emerge. It would appear that the evidence presented to a select committee was contradictory, but a majority of the key Scottish lawyers giving evidence were in favour of a Scottish judicial member of the house. 77 The recommendations of the committee were encapsulated in a weak reform bill, which never became an Act.

However, despite the failure to reform in the 1850s, the judicial function of the House of Lords, and the related Privy Council jurisdiction, remained a target for the reforming spirit of the 'Utilitarians'. 78 In the latter 1860s a Royal Commission on the Judicature was established, which recommended the creation of a Supreme Court, which would have a High Court and Court of Appeal. The High Court would be split into five divisions akin to the existing courts of the common law and equity. Yet, these recommendations, and the attempts to implement them, did not touch directly upon the role of the House of Lords. At this time, there was no discussion of the cessation of appeals from Scotland to the House of Lords. 79 This was because the Commission was concerned with the English court system, and not the jurisdiction of the House of Lords or Judicial Committee of the Privy Council. In 1872 a Select Committee was appointed to consider the House of Lords and Privy Council jurisdictions-which recommended a unified Judicial Committee of the two bodies. 80 In 1873 there appeared a Judicature Bill which was to implement the Royal Commission's plan for a Supreme Court. However, in addition to this, the Court of Appeal was to be strengthened, with the concomitant effect that a second appeal would be unnecessary and so the House of Lords jurisdiction would be removed. The position as regards Scotland was less clear-Scottish appeals were to continue to the House of Lords, though it seems clear that they were expected to either dry up or be transferred to the new Court of Appeal. 81 However, the bill was subsequently amended to provide that Scottish and Irish appeals would go to this Court of Appeal. This amendment proved to be a political miscalculation and was dropped so that Scottish and Irish appeals would still go to the House of Lords. The bill became the Supreme Court of Judicature Act 1873.

However, this somewhat fast and loose dealing in the location of the Scottish final appeal had not yet finished. A change of government meant that in 1874 a bill was again brought forward to end Irish and Scottish appeals to the House of Lords, 82 though by this time the planned Court of Appeal had been re-branded as the Imperial Court of Appeal. The court was also to be split into different divisions, with the larger to be senior and also responsible for Scottish appeals. However, this never made it onto the statute book, and legislation was brought forward to delay the effect of the 1873 Act. After this point, there were no further legislative moves to remove the House of Lords's jurisdiction to hear Scottish appeals.

The enactment of Judicature Act 1876 ensured that the jurisdiction would continue. Importantly, these legislative provisions also created Lords of Appeal in Ordinary, and of the first two, one was a Scot. 83 Accordingly, the jurisdiction of the House of Lords had survived its most serious threat of the nineteenth century, and for the first time dedicated judges were paid to undertake the judicial business of the House. This model was the one which would survive, with the incremental addition of judicial manpower but broadly unaltered, for the rest of the House of Lords judicial life.

F Refinement of the Judicial Character of the Lords: Modern Times

The previous reforms associated with the jurisdiction of the House of Lords had, to a large but not exclusive extent, concentrated on an existential question: should the House of Lords should be a court of law at all? In the twentieth century, despite occasional academic and political suggestions that the House of Lords should not continue to have a judicial role, the appellate jurisdiction of the House of Lords was never seriously challenged. 84 However, the nature of the judicial function of the House of Lords was substantially altered throughout the century in profound ways. In many ways the formal regulation of Scottish appeals to the House of Lords did not change significantly; but the greater formalisation of the distinction between law and politics meant that by the end of the twentieth century the House of Lords functioned as a substantively professional and impartial separate judicial organ. In this section an attempt has been made to give an short account of the broad cultural changes which affected the practice of the House of Lords, with particular reference to Scots law.

As has been observed above, the substantive jurisdiction and competence of the House of Lords was essentially settled by the end of the nineteenth century with the passage of the Appellate Jurisdiction Act 1876. Subsequent changes to the nature of appeals to the House of Lords from Scotland owe much to broader changes in the manner in which the House of Lords was conducting its judicial business. The formalised and substantive roles of the personnel within the House of Lords changed through the twentieth century, as indeed did the approach taken by the Law Lords in the execution of their jurisdiction. Such changes reflected a growing acceptance of the relevance and importance of an idea of the separation of powers, alongside changing jurisprudential approaches. These emerging cultural changes came to affect the nature of the House of Lords's judicial function, while at the same time, from a Scottish perspective at least, the formal delimitation of the jurisdiction itself remained unchanged.

At the beginning of the twentieth century the idea of a substantive separation of powers was not clearly articulated or applied with regard to the House of Lords in its judicial capacity. Arguably a substantive separation of powers did become entrenched through the century, but it was not until much later that a formal separation was to be achieved. Thus, although the participation of lay peers in judicial business had been dispensed with in the 19 th century, the final court of appeal remained a chamber of the legislature. Indeed, the members of that 'court' were therefore necessarily members of both the legislature, and of the judiciary; while their leader, the Lord Chancellor, was the most senior judge, the speaker of the House of Lords, and a Cabinet minister. These formal roles remained the same throughout most of the twentieth century; however, substantive separation became clear in the latter stages of the twentieth century. 85 This trend was ultimately manifested in the creation of a new Supreme Court, and the emasculation of the Lord Chancellor's role. 86