New appeals system key to Supreme Court

THE creation of a Supreme Court for the United Kingdom has implications for the Scottish legal system because it may alter the structure of appeals and potentially the rights of those wishing to appeal. Presently, the House of Lords appellate committee can hear appeals from the Scottish Court of Session, while the judicial committee of the Privy Council can hear devolution issues on both civil and criminal matters arising under the Scotland Act 1998.

The history of rights of appeal stretches back far into Scottish feudal society. The pre-Union parliament of Scotland possessed the powers of a court. This concept had its clearest expression in the Claim of Right (1689) which stated: "It is the right and privilege of the subject to protest for remeed of law to the King and Parliament against sentences pronounced by the Lords of Session."

The sovereign and the council in the parliament were recognised as a proper appeal body.

The Treaty of Union of 1707 created the political union of Great Britain with a bicameral parliament. The House of Lords, after the treaty, continued in its normal way to act as an appeal body over the English courts. But the treaty made no provision for a new appeal structure outside Scotland following upon the "remeed of law" provisions.

However, Article XIX of the Treaty of Union left open the possibility of an appeal to the House of Lords.

The first appeal from the Court of Session to the Lords was in 1708 and the first from the High Court of Justiciary in 1713. But it is the celebrated case of James Greenshields - a priest jailed in Edinburgh for conducting the Anglican liturgy in 1711 - which attracted attention. The Court of Session upheld the decision of presbytery and magistrates. But Greenshields appealed to the Lords which reversed the Court of Session decision and ordered his release. This drew attention to the fact that litigants could appeal to the House of Lords and there were many appeals during the 18th century. It was not until 1876 that the House of Lords declined jurisdiction in Scottish criminal cases.

Lord Falconer, the Secretary of State for Constitutional Affairs and Lord Chancellor, has made it clear the government has come to the view that the final court of appeal should be separated from the legislature.

Commentators such as Lord Hope have drawn attention to the implications for breaching the Treaty of Union and Claim of Right. Others contend the role of the judicial committee of the Privy Council under the Scotland Act 1998 has already created a "supreme court". But the real test of any change in appeals procedure must be its impact on the litigant.

The author is director of law reform for the Law Society of Scotland.