Court of Session
The Court of Session is the highest national court of Scotland in relation to civil cases. The court was established in 1532 to take on the judicial functions of the royal council. Its jurisdiction overlapped with other royal, state and church courts but as those were disbanded, the role of the Court of Session ascended. The Acts of Union which established the Kingdom of Great Britain on 1 May 1707 provided that the court will "remain in all time coming" as part of Scotland's separate legal system. Cases at first instance are heard in the Outer House by a single judge. The Inner House hears appeals from the Outer House and all other courts and tribunals in Scotland. Only Scottish advocates and solicitor-advocates may argue cases before the court. The Court of Session has sat at Parliament House since 1707. The Scottish Courts and Tribunals Service and the Principal Clerk administers the court and judges.
Decisions of the court are subject to review by both the UK Supreme Court and the European Court of Human Rights and on appeal, the UK Supreme Court can overturn them altogether. Early judges of the court recorded their decisions and codified the law at a time early in the development of Scots law, leading to the development and distinct character of Scots law. In modern times, the court has ruled on issues of public importance and proceedings of its Inner House have been streamed and recorded since 2023. The court now hears cases from any part of Scotland on any issue, other than criminal cases, which belong to its sister court, the High Court of Justiciary.
The Court of Session is the Royal Court of Scotland, hearing civil cases in the name of the Monarch. Judges are termed Lords of Council and Session and appointed simultaneously to the College of Justice and the High Court of Justiciary. Their number is fixed by statute, currently to 37, although a number of temporary judges assist the court with its workload. The court is led by the Lord President of the Court of Session who also heads the Scottish judiciary.
History
Establishment of the court
The creation of the court was part of wider efforts to improve and reform access to justice in Scottish society. By 1153, the local feudal courts had been established. Depending on the part of Scotland where the cause originated, justice might also be available from the local baron or lord of regality, sitting with the king's authority. Parties often found these courts ineffectual. Appeal of the decisions of local courts lay to the king and the Lords of Council, sitting together as the King's Council, or the Parliament of Scotland. The burden on these bodies of hearing appeals led to a growing effort to divest their judicial functions.James I decided that a Session would be held periodically to hear appeals and decide cases. It came to be known as the Auld Session and sat three times a year, comprising the Lord Chancellor and "certain discreet persons of the Three Estates" as the Lords of Session. The Sessions had universal jurisdiction to hear disputes formerly arguable to the king's Council. According to the Stair Memorial Encyclopedia, they were so named because the Sessions were "a court and the term 'session' was used to distinguish this new court from the royal court which was peripatetic, whereas the Session sat at such places as the king appointed."
By 1438, the Session was convening only yearly and it ceased altogether at a time between 1457 and 1468, with its function transferring back to the king's council and decided by the Lords of Council. The voluntary and unpaid nature of the office of Lord of Session was likely responsible for the Auld Session's failure. The work of the Session continued under the auspices of the king's council and in 1491, an act proclaimed that "the Chancellor with certain Lords of Council or else the Lords of Session sit for the administration of justice thrice each year… so that justice may be put to due execution to all parties complaining".
These sittings, or 'sessions', became more regular. Edinburgh was fixed as the location for the sessions, addressing a frustrating feature of the royal courts – litigants would summon an opponent to appear at one place on one date, but by that day the king may have decided to move onto another location. The summons would fail and the litigant would have to spend considerable money both following the court and issuing a fresh summons. The Lords of Council and the Lords of Session became commingled, and the modern court's judges are still styled Lords of Council and Session.
In 1531, it was decided to create a permanent, dedicated, national court of Scotland. James V obtained a papal bull in 1531 and established the College of Justice in 1532, basing it on the Parisian parlement. The council lords became members of the College of Justice and judges of the new Court of Session. The Lord Chancellor of Scotland presided over the court.
The court began providing free access to a lawyer, the advocatus pauperum, in 1534. Initially, the court's judiciary numbered fourteen and was split evenly between clerics and laymen. Judges were at first selected by the king and council, but the court grew anxious at the quality of those selected, and from 1579 nominees had to be confirmed by the existing judges.
Early operation
On its founding, the court had jurisdiction over "all civil actions". Consistorial and succession causes were moved from the church courts to the Court of Session after the Reformation. As the court's jurisdiction grew, it began to direct that smaller causes be heard in the local courts, with the Court of Session acting as an appeal court. The court also developed the doctrine of nobile officium under which it had an inherent power to provide a remedy for any injustice not already provided for by Scots law. Scots law did not develop a distinction between its common law and equitable principles partly due to the nobile officium.The Courts Act 1672 allowed for five of the Lords of Session to be appointed as Lords Commissioners of Justiciary, and as such becomes judges of the High Court of Justiciary. The High Court of Justiciary is the supreme criminal court of Scotland. Previously the Lord Justice General, the president of the High Court, had appointed deputes to preside in his absence. From 1672 to 1887, the High Court consisted of the Lord Justice General, Lord Justice Clerk, and five Lords of Session.
In 1640, membership of the court was restricted to laymen only, by withdrawing the right of churchmen to sit in judgement of legal causes. The number of laymen was increased to maintain the number of lords in the court.
Towards the modern day
The Court of Session is explicitly preserved "in all time coming" in Article XIX of the Treaty of Union between England and Scotland, subsequently passed into legislation by the Acts of Union in 1706 and 1707 respectively. The office of Extraordinary Lord of Session was abolished in 1762. Outer House judges continue to be addressed in the Inner House as "the Lord Ordinary", a remnant of the historical distinction between the Extraordinary Lords of Session and the other or 'Ordinary' ones.Several significant changes were made to the court during the 19th century, with the Court of Session Act 1810 formally dividing the Court of Session into the Outer House and Inner House Cases in the Outer House were to be heard by Lords Ordinary who either sat alone or with a jury of twelve. Cases in the Inner House were to be heard by three Lords of Council and Session, but significant or complicated cases were to be heard by five or more judges. A further separation was made in 1815, by the Jury Trials Act 1815, with the creation of a lesser Jury Court to allow certain civil cases to be tried by jury. In 1830 the Jury Court, along with the Admiralty and Commissary courts, was absorbed into the Court of Session following the enactment of the Court of Session Act 1830.
In 1834, the remuneration and working conditions were a matter of public discussion and debate in the House of Commons. On 6 May 1834 Sir George Sinclair addressed the House of Commons to plead for an increase in the salaries of the senators, noting that "a Civil Judge in the Supreme Court in Scotland received only " and the masters in the Court of Chancery were paid. A select committee was appointed to investigate the matter.
In October 1834, The Spectator reported on the conflicting views around the remuneration and working conditions of the judges of the Court of Session, with conflicting views being presented in response to the Report on the Scotch Judges' Salaries. The Spectator reported the arguments made by Sir William Rae, Lord Advocate, that the judges of the Court of Session had considerable duties, which he listed as:
The select committee recommended that the salaries of the Lord President, Lord Justice Clerk and remaining senators should be increased, and also recommended that all senators should become Lords Commissioners of Justiciary. The committee recommended salaries of for Senators, for the Lord President, and for the Lord Justice Clerk. However, The Spectator was very critical of the actual amount of work done by the judges of the court, noting that there was much public criticism of their effectiveness and that the judges were entitled to 7 months' vacation each year. The Spectator also asserted that civil justice was out of the reach of the poor in Scotland.
In 1887, all of the Lords of Session were made Lords Commissioners of Justiciary, and thus judges of the High Court of Justiciary, following the passage of the Criminal Procedure Act 1887.