JUSTICE responded to the Scottish Government consultation on the proposal to introduce a leave requirement for Scottish cases to proceed to the Supreme Court. Currently no equivalent requirement for leave applies to that applicable in England, Wales and Northern Ireland. Instead, appeals must be certified by counsel before being referred.
JUSTICE expressed our support for the introduction of a leave stage, principally to remove what had become a significant legal anomaly and to allow the Supreme Court greater control over its own docket. The certification system currently in operation is inadequate. We recommended that any new test for leave should be closely modelled on the existing test for leave from the Court of Appeal in England and Wales. However, while JUSTICE supported the change proposed in principle, we noted that further consultation was needed on the procedures to be applied. In particular, careful consideration will need to be given to ensuring that access to the Supreme Court for Scots litigants is not unduly restricted in practice and that the tests to be applied are capable of clear and consistent application within Scotland.