Final Appellate Jurisdiction in the Scottish Legal System

DescriptionA review looking at the potential impact of the UK Supreme Court on the Scottish legal system
Official Print Publication DateJanuary 2010
Website Publication DateJanuary 22, 2010


ISBN 978 0 7559 8213 4

This document is also available in pdf format (1.7mb)



Executive Summary

Chapter One: Introduction Remit, Context and Plan of Review
1.1 Remit
1.2 Context
1.2.1 The Immediate Context
1.2.2 The Fuller Historical Background
1.3 Plan of Review

Chapter Two: The Constitutional Context
2.1 Introduction
2.2 The Union State
2.3 Evolved rather than Designed
2.4 Provisional rather than Final
2.5 Asymmetrical rather than Symmetrical
2.6 Deep Diversity and Formal Divergence
2.7 Close Intermeshing and Substantive Convergence

Chapter Three: The Development of Final Appellate Jurisdiction
3.1 The Terms of the Union Settlement
3.2 The different treatment of civil and criminal appeals
3.3 Civil appellate jurisdiction and the relative autonomy of Scots Law
3.4 Devolution Issues: The Birth of a Constitutional Jurisdiction
3.5 Overview of the Present System
3.5.1 Final appeal in London: appeals to the Supreme Court Civil appellate jurisdiction Devolution Issues
3.5.2 Final appeal in Scotland Appeals to the Court of Session Appeals to the High Court of Justiciary

Chapter Four: Comparative Perspectives
4.1 Introduction
4.2 The vertical axis; decentralisation and jurisdictional autonomy
4.3 The horizontal axis; the scope and division of jurisdiction for a top court
4.4 Conclusion

Chapter Five: The Evaluation of Final Appellate Jurisdiction
5.1 Criteria of Evaluation
5.2 Democracy
5.3 Fair Treatment
5.4 Coherence and Integrity
5.5 Richness of resources
5.6 Expertise
5.7 Detachment
5.8 Operational Effectiveness
5.9 Economy
5.10 Conclusion

Chapter Six: Final Appellate Jurisdiction: the Alternative Models
6.1 Six Models for Scotland
6.2 Model One: An Autonomous Scottish Appellate Court System
6.2.1 Full Autonomy
6.2.2 Autonomy of ordinary appellate jurisdiction
6.3 Model Two: A Unitary Appellate System for a Unitary State
6.3.1 Unitary Final Appellate System for a Unitary Legal Order
6.3.2 Unitary Final Appellate System for Different Legal Orders
6.4 Model Three: The UK Supreme Court as the New Status Quo
6.5 Model Four: The Supreme Court with a Scottish Division or Chamber
6.5.1 A Scottish Chamber for all Scottish Cases
6.5.2 A Scottish Chamber for Distinct Questions of Scots Law
6.6 Model Five: A Quasi-Federal Supreme Court
6.7 Model Six: The Supreme Court as a United Kingdom Court of Justice
6.8 Conclusion

Appendix I: Historical Development of Appeals from Scotland
A Introduction
B Early Days: the Union of 1707
C Post-Union Development: The Eighteenth Century
D Changes to the Court of Session
E Changes to the House of Lords
F Refinement of the Judicial Character of the Lords: Modern Times

Appendix II: Appeals to the Judicial Committee of the Privy Council
A Introduction
B Legislative Provisions
C Case Law
1 Scotland Act 1998 s 57 (2)
2 Challenges to Legislative Competence

Appendix III: Autonomy of Scottish law within the appellate jurisdiction of the House of Lords/Supreme Court
A Introduction
B House of Lords
C United Kingdom Supreme Court

Appendix IV: Statistical information
A Judicial appeal statistics
B Scottish appeals to the House of Lords: 1993-2002
C Scottish appeals to the House of Lords: 2003-2009 (inclusive)
D Subject matter of appeals and patterns of judicial decision making
E House of Lords Scottish Business 1961-2002**
F Digest of appeals to the House of Lords 1996-2009
G Digest of Scottish Devolution Issue cases