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In the first article of this two-part series Aidan O’Neill QC discusses the development of the Scottish route of appeal to the UKSC.

In Uprichard v Scottish Ministers [2013] UKSC 21 the UKSC bench, unusually, contained a majority of 3 judges from Scotland (Lord Hope, Lord Reed and the Lord Justice Clerk of the Court of Session, Lord Carloway) who were joined by Lord Kerr and Lord Carnwath.   Lord Reed gave the sole judgment, speaking for a unanimous court in dismissing this appeal.  The judgment contains a postscript at paragraphs 58-60 which sets out the court’s regret that this appeal had ever been brought before it on the basis that “the appeal did not on examination raise any arguable point of law of general public importance” and hearing it “was not an appropriate use of the time of this court”. Lord Reed noted that similar observations had already been made about other recent Scottish appeals to it: see G Hamilton (Tullochgribban Mains) Ltd v Highland Council [2012] UKSC 31; 2012 SLT 1148, para 29.

At paragraph 50 Lord Reed speaks of litigants from Scotland enjoying a “privilege which is not enjoyed by litigants in any other part of the United Kingdom” in that appeals from England and Wales and Northern Ireland can only be brought before the UKSC if permission to appeal is granted (usual by the UKSC itself).  For Scottish appeal however  “the general rule is that an appeal against a judgment on the whole merits of a cause lies to this court from the Inner House of the Court of Session without leave”.

Lord Reed goes on to note that in practice – at least in appeals from England and Wales – the Appeal Panel is able to select what cases it wishes to hear.  In line with Supreme Court Practice Direction 3.3.3 leave to appeal will be given only in cases

“that, in the opinion of the Appeal Panel, 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”

 In Scotland all that is needed for an appeal is that two individuals with rights of audience before the higher courts in Scotland (counsel or solicitor advocates) certify that the appeal is reasonable(Supreme Court Practice Direction 1.2.25).   Lord Reed expressly endorses and applies to appeals to the UKSC earlier remarks of Lord Hope in the House of Lords decision in Wilson v Jaymarke Estates Ltd 2007 SC (HL) 135 the House of Lords at paras 17, 20:

“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.….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.”

This reference to the possibility of appeal to the UKSC (or previously to the House of Lords) as a “privilege” is, I would suggest, a slightly odd usage, at least when considered against the historic background as to why there are any appeals at all from Scottish courts to London.  The right of appeal from decisions of the Court of Session has historically not been described as a privilege but as a fundamental constitutional right.

The 1707 Union and appeals from Scotland to the Union Parliament

 The paradox of the 1707 Union between Scotland and England is that the original intent of the negotiating parties seemed to be that the two contracting nations within the United Kingdom should remain, for legal purposes, foreign countries in relation to one another, while now being politically united.  As Lord Campbell LC observed in Stuart v Bute (1861) 4 Macq 1 at 49

‘[A]s to judicial jurisdiction, Scotland and England, although politically under the same Crown, and under the supreme sway of one legislature, are to be considered as independent foreign countries, unconnected with each other.’”

 Thus Article XIX of the Acts of Union expressly prohibited English courts from purporting to exercise any jurisdiction in Scotland by providing 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.”

 But as JD Ford has noted (“Protestations to Parliament for Remeid of Law” (2009) 88 The Scottish Historical Review 57–107 at 98-9):

“What this did not preclude, however, and quite deliberately, was the hearing of appeals from Scotland in the upper house of the proposed parliament, for it was known that the House of Lords in the present English parliament did not sit in Westminster Hall, and the commissioners from Scotland had been unable to agree among themselves about whether appeals to the new parliament should be permitted. While some maintained that ‘not allowing appeals wou’d make the lords of the session too great’, others warned that in seeking to curb ‘the excessive power of the lords of the session, we run ourselves into another extream much worse’, and after a heated debate it was agreed to ‘lett fall the matter, that the parliament of Scotland might determine in it’.   The relevant article of the treaty was discussed in the Scottish parliament in January 1707, but no attempt was made then to spell out more clearly the implication that cases might in future be appealed from the session to the new [British] parliament….”

 In the face of Article XIX of the Acts of Union specifically prohibiting English courts from adjudicating on Scottish matters, it was the 1689 Scottish Claim of Right which was relied upon as giving a legal basis for the creation of a new appellate jurisdiction from the Court of Session in Scotland to the House of Lords.

Article 22 of the Scottish Claim of Right 1689 declared that “it is the right and privilege of the subjects to protest for remeid of law to the King and Parliament against Sentences pronounced by the lords of Session”.    The post-Union House of Lords (now including some members elected form among the Scottish nobility by their peers) was held to have inherited the appellate jurisdiction against decisions of the Lords of Session which had formerly exercised by the pre-Union Scottish Parliament.   As Lord Weatherly noted in Mackintosh v. Lord Advocate (1876) 3 R (HL) 34 at 37:

“I apprehend that what we must really look to is this: we must see to what revision the judgments of the Courts in Scotland were liable anterior to the Act of Union. We find that the judgments of the Court of Session were, as is narrated in the Petition of Right presented to King William III in 1689, subject to revision by the Scottish Parliament in the manner there pointed out.

…

Finding that an appeal lay from one Court to the Parliament in Scotland anterior to the Union, and finding that from another Court, namely, the Court of Justiciary, it did not lie to the Parliament of Scotland before the Union, your Lordships’ House after the Union said,—We must supply the place of the Parliament of Scotland, with such little changes as may be necessary in consequence of the changed position of things since the Union, with regard to the detail of the mode of carrying into effect the Union; subject to these little changes, we will hear those appeals which the Parliament of Scotland heard from the Court of Session, and (I apprehend this is the result of what Lord Mansfield says) we will not hear those cases, namely, cases from the Justiciary Court, which were not heard by the Parliament of Scotland before the Union.”

And Lord Kinnear confirmed in Lyal v. Henderson, 1916 SC (HL) 167 at 181-2:

[A]lthough there was at one time a somewhat violent controversy as to the existence of the right to appeal from the Court of Session to the Scottish Parliament, it was at an end before the Union; it had been finally established that an appeal lay to the Scottish Parliament, and the right so to appeal is one of the rights maintained in the Claim of Right of 1689. Then it is quite as clearly established that the right to appeal to the Scottish Parliament had been transferred to the Parliament of Great Britain after the Union. That the Parliament of Great Britain exercises its appellate jurisdiction through this House is again a matter as to the history of which it is unnecessary to inquire; it is absolutely established by a persistent practice of centuries. I think, further, that the series of enactments by which appeals from Scotland are regulated proceed upon the same assumption. They do not confer a right of appeal as if any intervention of Parliament were necessary for that purpose, but, assuming that the aggrieved suitor may appeal to this House de jure, they interpose to regulate or restrict that right in particular circumstances. I take it, therefore, that the question must always be, as Lord Campbell puts it, whether an appeal is clearly prohibited. If not so prohibited, it rests upon a general right which cannot be called in question.”

 This constitutional right of appeal to the House of Lords from the Court of Session was subsequently been recognized as having become embedded in the common law of Scotland:

“[A]n appeal would lie to this House from the judgment of the Court of Session by the common law of Scotland.   Since the case of Bywater v. The Crown (1 May 1781) 2 Paton 564 this right has been well recognised. It is accepted in every book of authority on the practice of this House and of the Court of Session, and can no longer be open to dispute. I do not think that such a right ought to be taken away by implication.”

 The exercise of this appellate jurisdiction from the Court of Session by the House of Lords undoubtedly kept Scots civil law from diverging too far from the expectations of English law; albeit sometimes to the fury of purist Scottish legal nationalists.    Influenced, perhaps, by the terms of Article XVIII of the Treaty of Union which provides that “the laws concerning public right, policy and civil government may be made the same throughout the whole United Kingdom” the House of Lords in Scottish cases has often sought to ensure that Scots law is aligned with English law in constitutional and public law issues generally: see, for example, Davidson v. Scottish Ministers, 2006 SC (HL) 42 per Lord Hope of Craighead at 50 para 38 and Eba v. Advocate General [2011] UKSC 29, 2012 SC (UKSC) 1 per Lord Hope at para 46.   But as J.D. Ford concludes (ibid at 107):

“[B]y failing to clarify in the years following 1689 how protestations for remeid of law were intended to operate, and by failing to resolve in 1707 the issue left to its consideration by the union commissioners, the Scottish parliament had facilitated the emergence of a ‘strange jurisdiction’ through which in time its attempt to preserve the integrity of a separate legal system would be undermined.  The House of Lords had been enabled to replace the decisions of the session with decisions of its own which would eventually be recognised as binding precedents of the highest authority.”

 The brief reign of the Judicial Committee of the Privy Council in Scottish affairs

 Against the background of a certain continued sensitivity among Scottish (legal and political) nationalists about the existence and exercise of the House of Lords appellate jurisdiction in Scottish matters, it is of interest to note that the devolution jurisdiction which was created under and in terms of the Scotland Act 1998 and gave the courts powers to hear cases and rule on, among other things,  the validity of Acts of the Scottish Parliament, was conferred by the UK Parliament on the Judicial Committee of the Privy Council rather than on the Appellate Committee of the House of Lords.   This was, of course, simply perpetuating a polite constitutional fiction since, in practice, the judges making up a Board of the Privy Council was drawn almost exclusively from the Lords of Appeal in Ordinary, and indeed Lord Hope of Craighead sat as a judge (and often presided) on every devolution case which ended up before the Privy Council.

The creation of the UKSC and its continued jurisdiction in Scottish appeals

 When the UK Supreme Court was created, the Privy Council’s “devolution jurisdiction” under the Scotland Act 1998 was transferred to it (by paragraph 93-107 of Schedule 9 to the Constitutional Reform Act 2005), while Section 40(3) of the Constitutional Reform Act 2005 made the court the statutory successor to the Scottish appellate jurisdiction previously exercised by the House of Lords by providing that:

“(3) An appeal lies to the Court from any order or judgment of a court in Scotland if an appeal lay from that court to the House of Lords at or immediately before the commencement of this section.”

 In giving the UK Supreme Court jurisdiction to hear appeals from Scotland, the 2005 Act was careful not to innovate upon or change in any way the extent of the House of Lords’ historic appellate jurisdiction in Scottish matters.   And the ultimate constitutional basis for this appellant jurisdiction is, as we have seen, Article 22 of the Scottish Claim of Right 1689, a document whose legitimacy is founded on the (“Glorious-”) revolutionary claim to Scottish popular sovereignty.