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Appeals from Scotland to the House of Lords in civil matters have been vigorously pursued since the 1707 Union and the right of appeal from the Lords of Session has subsequently been described as a “fundamental constitutional right” in Scots law.  Clause 22 of the Claim of Right (Scotland) 1689 provides that:

“That it is the right and privilege of the subjects to protest for remeed of law to the King and Parliament against Sentences pronounced by the lords of Session, providing the same do not stop Execution of these sentences.”

In Mackintosh v Lord Advocate, (1876) 2 App Cas 41, HL(Sc) this provision of pre-Union Scottish Claim of Right (which allowed for an appeal from decisions of judges of the Court of Session to the Scottish Parliament) was said to form the constitutional basis, after the 1707 Union of Parliaments, for the right to appeal from the Court of Session to the post-Union House of Lords, notwithstanding the provisions in the Acts of Union which provide that

“no Causes in Scotland [shall] be cogniscible 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 Cognose Review or Alter the Acts or Sentences of the Judicatures within Scotland or stop the Execution of the same”.  

 

The House of Lords’ appellate jurisdiction from Scotland has always only in matters of civil law.  There was at no time any right of appeal from the Scottish criminal courts to the House of Lords, although the UK Supreme Court has also had transferred to it the jurisdiction over “devolution issues” (which may arise in civil or criminal court) previously exercised the Judicial Committee of the Privy Council.  But as Lord Hope observed in Robertson v Higson  [2006] UKPC D 2;  at paragraph 6:

“It will be important … for the members of that [UK Supreme] court to appreciate that the devolution jurisdiction that is being transferred by the 2005 Act is a jurisdiction which is confined to dealing with devolution issues and with questions that are preliminary or ancillary to their determination.     The jurisdiction of the High Court of Justiciary as the court of last resort in all criminal matters in Scotland is, and must be seen to be, otherwise unaffected.”

 Section 40(4) of the Constitutional Reform Act 2005 (“CRA”) provides that the Scottish jurisdiction of the UK Supreme Court is to be determined by reference to the pre-existing law and practice in relation to appeal from Scotland to the House of Lords.    The primary provision regulating this issue is Section 40(1) of the Court of Session Act 1988 (“CSA”) which sets out the general rule that it shall be competent to appeal from the Inner House to the House of Lords.     Section 40(1)(a) CSA provides that such an appeal may be made without the leave of the Inner House in the following 

  •  against a judgment on the whole merits of the cause;
  •  against an interlocutory judgment where there is a difference of opinion among the judge
  •  against an interlocutory judgment sustaining a dilatory defence and dismissing an action  

By virtue of Section 40(1)(b) CSA appeals against any other interlocutory judgment of the Inner House require its leave before an appeal may proceed to the UK Supreme Court.  Following Viscount Dunedin’s observations in Ross v. Ross 1927 SC (HL) 4 at 6, and Lord Hope in Davidson v. Scottish Ministers (No. 3), 2005 SC (HL) 1 it is not open to an appellant who has been refused leave by the Inner House under Section 40(1)(b) CSA to apply directly to the UK Supreme Court for leave to appeal.  The decision of the Inner House refusing leave to appeal is final and not subject to any review from London.

The effect of these provisions is that the Appellate Committee of the House of Lords had (and now the UK Supreme Court has) no control over what cases might be brought before on appeal from the Inner House of the Court of Session.  All that is required for an appeal to be brought from Edinburgh to London in civil matters is a signature from counsel certifying that such an appeal would in their view be reasonable.  This has led to occasional criticism by some on the previous Appellate Committee that worthless appeals could be, and were being, brought before them from Scotland.    Thus in Buchanan v. Alba Diagnostics Ltd. [2004] UKHL 5,  Lord Brown of Eaton-under-Heywood stated at paragraph 41:

“For the reasons given by my noble and learned friend Lord Hoffmann I too would dismiss this appeal. I add only that it seems to me a great misfortune for Mr. Buchanan that he was able to bring this appeal before your Lordships House without leave. Had leave been required assuredly it would have been refused and Mr. Buchanan thereby saved a very great deal of expense.”

While in Wilson v. Jaymarke Estates Ltd. [2007] UKHL 29, Lord Hope said this (at paragraphs 15-20):

[15] I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hoffmann. I agree with it, and for the reasons he gives I too would dismiss the appeal.  There is however one aspect of this case that I find disturbing and on which I wish to comment.

[16] Section 40(1)(a) of the Court of Session Act 1988 enables a party against whom a final judgment has been pronounced in the sheriff court, as happened in this case, to appeal from the Inner House to the House of Lords without leave. He does not require to seek leave from the Inner House, nor does he require to seek the permission of this House before doing so. This is a privilege which is not enjoyed by litigants in the other parts of the United Kingdom from which appeals come to this House. An appeal to the House of Lords from any order or judgment of the Court of Appeal in England and Wales or in Northern Ireland may only be brought with the leave of the Court of Appeal or of the House of Lords (Administration of Justice (Appeals) Act 1934 (24 & 25 Geo 5 cap 40), sec 1(1); Judicature (Northern Ireland) Act 1978 (cap 23), sec 42). It has been suggested that the privilege should be discontinued when the jurisdiction of the House of Lords is transferred to the new Supreme Court. But the effect of sec 40(3) of the Constitutional Reform Act 2005 (cap 4) is that it will continue in the case of that court too. Nevertheless the debate on this issue must not be regarded as closed. If it is at risk of being abused, the public interest may require that the privilege be looked at again.

[17] The public interest is served, in the case of appeals from the Court of Appeal in England and Wales and Northern Ireland, by the rule that leave to appeal is granted only where the case raises an arguable point of law of general public importance which ought to be considered by the House at the time when the appeal is brought (House of Lords Practice Directions (2007), para 4.7). This rule ensures that the time which is available for the consideration of appeals in this House is devoted to appeals which require consideration at this level.    It is contrary to the public interest that the time of the House should be taken up with appeals which do not raise an arguable question of general public importance, as this is liable to cause delay in the disposal of appeals which merit its attention.

[18] In the case of appeals from the Inner House of the Court of Session the public interest is dealt with in a different way. First, there is the general requirement that the petition of appeal must be signed by two counsel who must also certify that the appeal is reasonable (House of Lords Standing Order IV; Practice Direction 1.9). Secondly, there are the opening words of sec 40(1) of the Court of Session Act 1988. These words state that the right of appeal is subject to the provisions of any other Act restricting or excluding an appeal to the House of Lords and of sections 27(5) and 32(5) of the Act.    Section 32 applies to appeals from the sheriff to the Court of Session.    In substance it re-enacts provisions originally to be found in sec 40 of the Judicature Act 1825 (6 Geo 4 cao 120). Section 32(4) requires the Court of Session in its judgment to distinctly specify in its interlocutor the facts that it finds to be established by the proof. Section 32(5) provides that the judgment of the Court of Session shall be appealable only on a point of law. Judgments delivered in this House over many years have emphasised the importance of this rule and its effect (see, for example, Laing v Scottish Grain Distillers Ltd , 1992 SC (HL) 65 at 69). As Lord Normand said in  Sutherland v Glasgow Corporation  1951 SC (HL) 1 at 8), the intention of the statute is to prevent appeals coming to this House unless there is a genuine question of law.

[19] It is the responsibility of counsel, when considering whether an appeal is reasonable, to consider the statutory rules, if any, that qualify the right of appeal….

[20] I mention these points because I am far from satisfied that proper attention was given to these matters when this appeal was certified as reasonable. ….The privilege which appeals from the Court of Session to this House still enjoy, if properly used, can work to the advantage of Scottish litigants and to the development of Scots law. But the limits on it must be carefully and jealously respected if it is to continue to be in the public interest, given the amount of appellate business that now comes before the House from all parts of the United Kingdom.”

 

It has to be said that it is not always easy for counsel to predict what their Lordships or the Justices might consider to be an arguable point of law of general public importance which the UK Supreme Court would consider suitable for its consideration.    In Moncrieff v Jamieson [2007] UKHL 42,  the dispute between the parties was whether a right to park and leave a car in front of a property was a necessary incident of right of vehicular access to that property, or whether the right was restricted to stopping vehicles on the servient tenement in order to turn, load and unload goods from them and to set down passengers.  Lord Scott of Foscote at paragraph 45 described it as “an interesting case raising some very basic questions about the nature of easements/servitudes” and Lord Rodger said at paragraphs 65-66:

 “[T]his appeal raises an important and difficult issue in the law of servitudes …. My noble and learned friends, Lord Hope of Craighead and Lord Scott of Foscote, have narrated the transactions and events in Shetland which have brought this issue before the courts. Your Lordships have variously described it as an ‘unfortunate case’, as a ‘sad one’ and as an ‘unfortunate matter’.    The parties are, however, adults and the dispute between them is genuine. Since the point at issue is difficult, it is not surprising that they have been unable to resolve it for themselves. In these circumstances they have simply chosen to exercise their right to have it resolved by the courts. Those on one side have decided to spend their own money on doing so; the Legal Aid Board has financed the other side. As a judge, I would not describe the resulting situation as sad or unfortunate: after all, courts exist and judges are paid to resolve such disputes, which are indeed the life blood of the common law.”