EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Eassie Lord Clarke Lord Mackay of Drumadoon	[2012] CSIH 38 XA28/11 OPINION OF THE COURT delivered by LORD EASSIE in the Application for Leave to Appeal by KP and MRK Applicants; against THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent: _______

Applicants: Wolffe, QC, Byrne; Drummond Miller LLP (for Peter G Farrell, Glasgow)

Respondent: Lindsay, Q.C., MacGregor; Office of the Solicitor to the Advocate General

amicus curiae; Crawford, Q.C.

11 April 2012

[1] This is an application under section 13(4) of the Tribunals, Courts and Enforcement Act 2007 - "TCEA" - by KP, the first named applicant, and her son MRK, the second applicant, for leave to appeal against a decision of the Immigration and Asylum Chamber of the Upper Tribunal. At this stage in the hearing of the application for leave to appeal the sole issue arising for decision concerns the validity of Rule 41.59 of the Rules of the Court of Session - "RCS 41.59" - as the Rules stood at the time when the application was lodged. By reason of later amendment to the Rules of the Court of Session, the text of RCS 41.59 now appears, unaltered as to its wording, as Rule of Court 41.57. Since the pleadings, and parties in their written notes and oral argument, refer to RCS 41.59 it is convenient to maintain that usage.

[2] It is appropriate to mention some background to the application for leave to appeal. The applicants are citizens of Pakistan. They left Pakistan in early 2007 and arrived in the United Kingdom on or around 9 December 2007. They claimed asylum. Put very shortly, the basis of the first applicant's claim was that she had been the subject of prolonged domestic, particularly physical, abuse in respect of which she had received no assistance from the police on complaint to them. The second applicant's claim was associated with that of his mother in respect that he had sought to support and protect her, in consequence of which he had been seriously assaulted by his father.

[3] The respondent - the Secretary of State for the Home Department - refused the applications for asylum, although acknowledging that the first applicant had indeed been the victim of serious domestic violence in Pakistan. It was maintained that relocation within Pakistan would be a course open to the applicants. On appeal to the First-tier Tribunal (Immigration and Asylum Chamber) the immigration judge on 8 April 2010 allowed the applicants' appeal against the decision of the Secretary of State on both asylum and human rights grounds. Against that decision the Secretary of State sought and obtained leave to appeal to the Upper Tribunal. That appeal was heard by a senior immigration judge who, on 6 December 2010, allowed the appeal, set aside the decision of the First-tier Tribunal and substituted therefor a dismissal of the appeal by the applicants against the refusal of their asylum claims.

[4] The applicants thereupon sought permission under section 13(4)(a) TCEA to appeal to this Court (being the "relevant appellate court" specified by the Upper Tribunal in terms of section 13(11) TCEA). That permission was refused by a judge of the Upper Tribunal on 26 January 2011; accordingly, the applicants now invoke section 13(4)(b) TCEA and seek leave from this Court to pursue their appeal.

[5] In seeking permission from this Court to pursue that appeal, the applicants encounter the provisions of RCS 41.59, which was inserted into the rules of the Court of Session as one of a number of amendments to those rules by paragraph 7(6) of the Act of Sederunt (Rules of the Court of Session Amendment No. 5) (Miscellaneous) 2008
[1]. The terms of RCS 41.59 are as follows:

"41.59.- (1) This rule applies where an application is made to the court under section 13(4) of the Tribunals, Courts and Enforcement Act 2007 for permission to appeal a decision of the Upper Tribunal which falls within section 13(7) of that Act and for which the relevant appellate court is the Court of Session.

(2) Permission shall not be granted on the application unless the court considers that -

(a) the proposed appeal would raise some important point of principle or practice; or

(b) there is some other compelling reason for the court to hear the appeal."

[6] As part of their application for leave to appeal, the applicants question the validity of RCS 41.59. They contend that the making of such a rule is ultra vires in that it goes beyond the powers enjoyed by the Court of Session to make rules of procedure by way of Act of Sederunt.

[7] The nature and extent of the historical powers of the Court of Session to make rules of procedure was largely distilled in section 5 of the Court of Session Act 1988 - "CSA" - and it is convenient to set out at this point the terms of that section (as amended), the paragraphs in the section to which particular reference was made in the hearing being paragraphs (a) and (l):

"5. Power to regulate procedure etc. by act of sederunt.

The Court shall have power by act of sederunt-

(a) to regulate and prescribe the procedure and practice to be followed in various categories of causes in the Court or in execution or diligence following on such causes, whether originating in the said Court or brought there by way of appeal, removal, remit, stated case, or other like process, and any matters incidental or relating to any such procedure or practice including (but without prejudice to the foregoing generality) the manner in which, the time within which, and the conditions on which any interlocutor of a Lord Ordinary may be submitted to the review of the Inner House, or any application to the Court, or any thing required or authorised to be done in relation to any such causes as aforesaid shall or may be made or done;

(b) to prescribe the form of any summons, defence, petition, answer, writ, pleading, extract of a decree or other document whatsoever to be used in, or for the purposes of, any such causes as aforesaid, or in, or for the purposes of, execution or diligence following on such causes and the manner in which, and the person by whom, any such summons, petition, writ, pleading, extract of a decree or document shall be signed or authenticated;

(ba) to make provision as to the quorum for a Division of the Inner House considering solely procedural matters, and, in the case of an extra Division, to make provision as to which judge is to preside and to sign any judgment or interlocutor pronounced by the extra Division;

(c) to prescribe the manner in which, the time within which, and the conditions on which any verdict of a jury may be submitted to the review of the Inner House on any ground set out in section 29 of this Act;

(d) to regulate the production and recovery of documents;

(da) to regulate the procedure to be followed in proceedings in the Court in connection with the making of orders under sections 12(1) and (6) and 13(2) of the Vulnerable Witnesses (Scotland) Act 2004 (asp 3) ("the 2004 Act");

(db) to regulate, so far as not regulated by the 2004 Act, the use in any proceedings in the Court of any special measures authorised by virtue of that Act to be used;

(e) to provide in any category of causes before the Court, for written statements (including affidavits) and reports, admissible under section 2(1)(b) of the Civil Evidence (Scotland) Act 1988, to be received in evidence, on such conditions as may be prescribed, without being spoken to by a witness;

(ee) to permit a person who is not an advocate or solicitor and is not represented by an advocate or solicitor to transmit, whether orally or in writing, the views of a child to the Court for the purposes of any enactment which makes provision (however expressed) for the Court to have regard to those views;

(ef) to permit a lay representative, when appearing at a hearing in any category of cause along with a party to the cause, to make oral submissions to the Court on the party's behalf;

(f) to provide for the payment into Court and the investment or application of sums of money awarded in any action of damages in the Court to a pupil or a minor;

(h) to regulate the expenses which may be awarded to parties in causes before the Court;

(i) to regulate the summoning, remuneration, and duties of assessors;

(j) to fix the ordinary sessions of the Court and to regulate the days on which and times at which the Court shall sit;

(k) to prescribe the matters with which the vacation judge may deal;

(l) to make such regulations as may be necessary to carry out the provisions of this Act or of any Act conferring powers or imposing duties on the Court or relating to proceedings therein; and

(m) to modify, amend or repeal any provision of any enactment including this Act relating to matters with respect to which an act of sederunt may be made under this Act."

[8] In her response to the application for permission to appeal the Secretary of State for the Home Department also contends, for reasons largely similar to those advanced by the applicants, that in promulgating RCS 41.59 in the amending Act of Sederunt the Court of Session acted ultra vires. If RCS 41.59 is set aside, the Secretary of State accepts that leave to appeal should be granted, the decision of the Upper Tribunal being vitiated by material error of law. There is then an issue between the appellants and the respondent as to the appropriate disposal were the appeal to be granted but that is not a matter with which the Court is currently concerned.

[9] Given the unity of view among the applicants and the respondent that RCS 41.59 is ultra vires, the Court appointed Miss Crawford QC as amicus curiae to assist the Court with the presentation of any countervailing argument. The Court is appreciative of Miss Crawford's willingness to undertake that office and of the care and diligence with which she has discharged its duties.

[10] The principal statutory provision governing appeals from the Upper Tribunal to the Court of Session and to the respective courts of appeal in England and Wales and Northern Ireland is section 13 TCEA. So far as pertinent to the issues raised in this application, section 13 provides:

"13 Right to appeal to Court of Appeal etc.

(1) For the purposes of subsection (2), the reference to a right of appeal is to a right to appeal to the relevant appellate court on any point of law arising from a decision made by the Upper Tribunal other than an excluded decision.

(2) Any party to a case has a right of appeal, ...

(3) That right may be exercised only with permission (or, in Northern Ireland, leave).

(4) Permission (or leave) may be given by-

(a) the Upper Tribunal, or

(b) the relevant appellate court,

on an application by the party.

(5) An application may be made under subsection (4) to the relevant appellate court only if permission (or leave) has been refused by the Upper Tribunal.

(6) The Lord Chancellor may, as respects an application under subsection (4) that falls within subsection (7) and for which the relevant appellate court is the Court of Appeal in England and Wales or the Court of Appeal in Northern Ireland, by order make provision for permission (or leave) not to be granted on the application unless the Upper Tribunal or (as the case may be) the relevant appellate court considers-

(a) that the proposed appeal would raise some important point of principle or practice, or

(b) that there is some other compelling reason for the relevant appellate court to hear the appeal.

(7) An application falls within this subsection if the application is for permission (or leave) to appeal from any decision of the Upper Tribunal on an appeal under section 11.

................

(11) Before the Upper Tribunal decides an application made to it under subsection (4), the Upper Tribunal must specify the court that is to be the relevant appellate court as respects the proposed appeal.

(12) The court to be specified under subsection (11) in relation to a proposed appeal is whichever of the following courts appears to the Upper Tribunal to be the most appropriate-

(a) the Court of Appeal in England and Wales;

(b) the Court of Session;

c) the Court of Appeal in Northern Ireland.

(13) In this section except subsection (11), "the relevant appellate court", as respects an appeal, means the court specified as respects that appeal by the Upper Tribunal under subsection (11).

..."

Section 11 TCEA, to which section 13(7) refers, is concerned with appeals from the First-tier Tribunal to the Upper Tribunal. Put briefly, it allows for appeal to the Upper Tribunal on any point of law, subject to permission, or leave, being granted by either of those tribunals. The decision with which the present application is concerned is not an "excluded decision" and it is not necessary to set out the catalogue of decisions which constitute "excluded" decisions.

[11] In terms of section 49(6) TCEA, the power given to the Lord Chancellor to make as respects both England and Wales and Northern Ireland an order under section 13(6) TCEA requires a draft of the statutory instrument making the order to be laid before, and approved by resolution of, each House of Parliament. The power thus given to the Lord Chancellor in section 13(6) TCEA was exercised by him, following completion of that positive resolution procedure, in the Appeals from the Upper Tribunal to the Court of Appeal Order 2008
[2].

[12] Parliament did not include in the TCEA any provision applicable to Scotland which might constitute an equivalent to the power conferred in section 13(6) on the Lord Chancellor as respects England and Wales and Northern Ireland. As was pointed out by counsel, the absence of any such equivalent provision was not in any way an omission or oversight. During the course of the passage of the Bill which became TCEA amendments were proposed to give to the Lord President of the Court of Session a similar power. These were opposed

by the Government and, in consequence, withdrawn. The basis for that opposition was explained by the Minister, Vera Baird QC, thus:

"The amendment would extend to the Court of Session the possibility of limiting second appeals in the way in which they are limited for the rest of the UK. The limitation is established in England, Wales and Northern Ireland but there is no equivalent provision for Scotland. The hon. Gentleman is right: his noble colleague, Lord Kingsland proposed the same amendment in the other place, and my noble Friend, Baroness Ashton undertook to consult the Lord President and the Scottish Executive. As a result of the consultation, we concluded that the judicially led review of the Scottish civil courts announced by the Minister for Justice in the Scottish Executive in March 2006 would be best placed to consider the detail of possible application for second appeals in Scotland across all Scottish civil courts. I hope that the hon. Gentleman agrees with that conclusion and can be persuaded to withdraw his amendment."
[3]

[13] As is implied in the terms of that response, and as was accepted by all counsel before us, the legislative intention underlying section 13(6) TCEA, and the order of the Lord Chancellor enabled by that provision, was to align the legislative criteria for the grant of permission in appeals from the Upper Tribunal to the courts of appeal in England and Wales and Northern Ireland with the legislative criteria which had been set more generally for the granting of permission to appeal to those appellate courts in ordinary civil appeals in which there had already been an appellate hearing. Those criteria - referred to as the "second-appeals test" - were enacted as respects England and Wales by section 55 of the Access to Justice Act 1999 which provides:

"55.- Second appeals.

(1) Where an appeal is made to a county court or the High Court in relation to any matter, and on hearing the appeal the court makes a decision in relation to that matter, no appeal may be made to the Court of Appeal from that decision unless the Court of Appeal considers that-

(a) the appeal would raise an important point of principle or practice, or

(b) there is some other compelling reason for the Court of Appeal to hear it.

(2) This section does not apply in relation to an appeal in a criminal cause or matter."

It was also a matter of agreement before us that the introduction of the second-appeals test in section 55 of the Access to Justice Act 1999 followed a report by a committee set up by the Lord Chancellor and chaired by Sir Jeffery Bowman FCA to consider inter alia the workings of the Court of Appeal in England and Wales.

[14] Those provisions respecting the grant of leave for second appeals have been the subject of judicial discussion in England and Wales: see among others Tanfern Ltd v Cameron-MacDonald [2000] 1 WLR 1311; Uphill v BRB (Residuary) Ltd [2005] EWCA Civ 60. Those, and other, authorities were reviewed and held applicable also to the identically worded test for appeals from the Upper Tribunal to the Court of Appeal contained in the Order made by the Lord Chancellor in PR (Sri Lanka) and Others v Secretary of State for the Home Department [2011] EWCA Civ 988. In the course of delivering the Opinion of the Court, Carnwath LJ said, at paragraphs 33-36:

"33 Mr Fordham [counsel for the first appellant, PR] is right in our view to acknowledge that the issues are ones primarily of judicial policy. The historical survey shows the extent to which developments in this field have stemmed from judicial thinking, and Parliament's response to it, rather than from government initiatives. The introduction of the second-appeals test in 1999 following a Court of Appeal review, was designed to ensure best use of the limited judicial resources of that court. The emphasis was to be on important points of law or principle. The alternative 'compelling reasons' test, the wording proposed by senior judges, was to be an 'exceptional' remedy, a 'safety valve". The required value-judgement was entrusted to the court.

34 It is to be noted also that it is for the Court of Appeal ultimately to decide whether a matter is sufficiently compelling to justify its attention. If permission is refused, that will be the end of the matter; there is no further right of appeal to the Supreme Court. Conversely, if permission is granted, attention will turn to the merits of the appeal. The question whether permission was rightly granted becomes academic, both in this court and in the onward appeal. It follows that views expressed on this issue by the Supreme Court, though highly persuasive, cannot be determinative.

35 Judicial guidance in the leading case of Uphill emphasised the narrowness of the exception. The prospects of success should normally be 'very high', or (as it was put in Cart
[4] para 131) the case should be one which 'cries out' for consideration by the court. The exception might apply where the first decision was 'perverse or otherwise plainly wrong', for example because inconsistent with authority of a higher court. Alternatively a procedural failure in the Upper Tribunal might make it 'plainly unjust' to refuse a party a further appeal, since that might, in effect, 'deny him a right of appeal altogether'. In Cart Lord Dyson, following Laws LJ, characterised such a case as involving 'a wholly exceptional collapse of fair procedure' (para 131). Similarly, Lord Hope in Eba
[5]referred to cases where it was 'clear that the decision was perverse or plainly wrong' or where 'due to some procedural irregularity, the petitioner had not had a fair hearing at all".

36 It is true that Lady Hale and Lord Dyson in Cart acknowledged the possible relevance of the extreme consequences for the individual. However, as we read the judgments as a whole, such matters were not seen as constituting a free-standing test. In other words 'compelling' means legally compelling, rather than compelling, perhaps, from a political or emotional point of view, although such considerations may exceptionally add weight to the legal arguments." [footnote references added]

[15] In his submissions on behalf of the applicants, which were adopted and endorsed by counsel for the Home Secretary, counsel for the applicants argued, in summary, that the second-appeals test which (replicating the provisions of section 55 to the Access to Justice Act 1999) is contained in RCS 41.59 cut down the right of appeal on a point of law which was conferred by the legislature in section 13(1) and (2) TCEA. It was clear both from the text of RCS 41.59 and the manner in which section 55 of the Access to Justice Act 1999 had been construed and applied by the courts in England and Wales that it was not sufficient that the applicant for permission had an appeal on a point of law which was meritorious. RCS 41.59, if valid, confined appeals to a distinct subset of meritorious appeals. While Parliament had provided specifically for the application of the second-appeals test (on the making by the Lord Chancellor of the requisite order) to appeals from the Upper Tribunal to the courts of appeal in Northern Ireland and in England and in Wales respectively, Parliament had refrained from making equivalent provision as respects appeals to the Court of Session. Whether to confine judicial determination of an appeal to a restricted category of meritorious appeals was a matter of substance to be decided upon by the legislature. Parliament having decided not to apply the second appeals test to appeals from the Upper Tribunal to the Court of Session, to do so by means of a rule of court was inconsistent with the intention of Parliament.

[16] Further, section 5 CSA was concerned solely with matters of practice and procedure. The only paragraphs of section 5 which it was suggested by the amicus curiae might provide a basis for promulgating RCS 41.59 were paragraphs (a) and (l). However, paragraph (a) was not intended to confer a blanket power to make acts of sederunt covering all aspects of proceedings in the Court of Session - Taylor v Marshalls Food Group Ltd 1988 SC 841, 844. It did not enable the court by an act of sederunt to cut down a substantive right - cf Edmund Nuttall Ltd v AMEC Projects Ltd 1992 SC 133. Reference was also made to Graham v Paterson & Son 1938 SC 119. A statutory provision respecting a right of appeal was a matter of substance, not procedure and practice. To interfere with it was therefore outwith the scope of section 5(1) CSA. Further, paragraph (l) of section 5 CSA was of no relevance since TCEA did not impose any duty, or confer any power, on the court calling for the exercise of a procedural rule-making function.

[17] As amicus curiae Miss Crawford presented for the assistance of the Court such countervailing arguments as she considered were stateable. In summary, she observed that the core problem was that of distinguishing between matters of procedure and matters of substance; making that distinction raised in turn the question of the way in which one ought properly to characterise the right conferred by Parliament in section 13(1) and (2) TCEA. In Poyser v Minors [1881] 7 QBD 329 (in a passage to which reference was made in the report of the case of Lord Advocate v Mirrielees' Trustees 1945 SC (HL) 1 by Lord Thankerton at p14) Lush LJ stated that practice and procedure "denotes the mode of proceeding by which a legal right is enforced, as distinguished from the law which gives or defines the right". Further reference was also made to Ross v The Queen [1957] AC 208; Colonial Sugar Refining Co Ltd v Irving [1905] AC 369; Newman v Klausner [1922] KB 228; McKerr v Armagh Coroner [1990] 1 WLR 649 and Shoesmith v Lancashire Mental Hospitals Board [1938] 3 All ER 186. Miss Crawford went on to submit that the right given by section 13(1) TCEA was not a "stand alone" right of appeal. It could only be exercised if leave were granted. The substantive right was therefore, she said, the right to seek leave to appeal on a point of law. Since the only substantive right was thus that of seeking leave, the requirements conditioning the granting of leave (whatever those criteria might be) did not cut down that substantive right. The criteria were thus matters of procedure. By way of example, in Edmund Nuttall v AMEC Projects Ltd the substantive right under the statute was to have the arbiter directed to state a case. But provisions about the timing of and procedure for giving such a direction, were matters of procedure which could properly be addressed by rules of court and did not affect the substantive right.

[18] Observing that the breadth of section 13(1) TCEA extended to an appeal on any point of law, Miss Crawford further submitted that on the argument for the applicant and the Home Secretary, any restriction on that breadth through the elaboration of criteria or conditions for the grant of leave might amount to an interference with the substance of the right of appeal and therefore be ultra vires, or contrary to the statute. However, it was evident that the Court had developed tests for the grant of leave. In Campbell v Dunoon & Cowal Housing Association Ltd 1992 SLT 1136 (which was concerned with an application for leave to appeal a decision of an Employment Appeal Tribunal) the Court had observed:

"We are content to proceed on the footing that applicants for leave to appeal must generally show something of the nature of probabilis causa in relation to a genuine point of law which is of some practical consequence."

In Hoseini v Secretary of State for the Home Department 2005 SLT 550, in the context of an appeal from the Immigration Appeal Tribunal, the Court had formulated the basis for granting leave as being whether there was "a reasonable prospect of success or other compelling reason". The Court accordingly had an inherent power to develop its practice and procedure in the granting of leave. It could therefore develop and alter the test which it had set out in Hoseini. If the Court could thus lay down by judicial decision principles governing the grant of leave, there appeared to be no reason why it should not lay down different principles or rules by the exercise of its power to make rules of court by Act of Sederunt. Paragraph (a) of section 5 CSA was wide enough for that purpose.

[19] The amicus curiae also invited us to consider whether RCS 41.59 might not be warranted under paragraph (l) of section 5 CSA on the basis that section 13(3) TCEA conferred a power to grant leave and that the rule of court was necessary to enable the Court to exercise that power.

[20] We return now to consider the competing arguments. It is evident from the submissions for the parties and the amicus curiae that a central question is whether the introduction of the "second-appeals test" set out in RCS 41.59 can properly be said to be a matter of practice and procedure. As was pointed out by the Lord President (Rodger) at page 845E-Fin Taylor v Marshalls Food Group Ltd, paragraph (a) of section 5 CSA did not confer some blanket power to make provision by Act of Sederunt covering all aspects of proceedings in the Court of Session. The powers were limited by the leading words of the provision to the regulation and prescription of procedure and practice and matters incidental thereto. While we recognise that defining what are matters of practice and procedure and what is a substantive norm is not always straightforward, we have come to the conclusion that, when its nature is analysed, the "second- appeals test" does not properly fall into the category of practice and procedure for dealing with cases before the court.

[21] First, it must be noted that the "second-appeals test" has the intended consequence that an appeal which the Court has jurisdiction to hear and which is recognised to have reasonable, or indeed greater, prospects of success may nonetheless not be entertained by the Court. The second-appeals test, and hence RCS 41.59, thus accepts that a party to a decision which it may be argued with good prospects of success is erroneous will be denied the opportunity of advancing that meritorious argument and of having the error corrected. The policy justification for a rule which thus, by design, provides for a meritorious appeal not to be entertained involves considerations of the overall structures of the judicial system, the resources to be devoted to that system, and the deployment of those resources within the various levels of that system. It respectfully appears to us that those are not matters of the elaboration by a court of rules for its procedures but matters which involve wider issues of political or societal judgment.

[22] In support of that view we find it significant that - as was pointed out by counsel for the applicants - the introduction of the second-appeals test in the Court of Appeal in England and Wales was effected by primary legislation, namely section 55 of the Access to Justice Act 1999 and that the enactment of that provision followed upon a report commissioned by and presented to the Lord Chancellor as a member of Government. Of equal, if not greater, significance is that in giving to the Lord Chancellor the power to apply the second-appeals test to appeals to the Court of Appeal from the Upper Tribunal the legislature made the exercise of that power subject to legislative control in the form of the affirmative resolution procedure. Counsel directed our attention to the second report of the House of Lords Select Committee on Delegated Powers and Regulatory Reform which, as respects clause 13 of the Bill which became section 13 TCEA, states:

"33 This provision mirrors section 55(1) of the Access to Justice Act 1999, which deals with onward appeals form the High Court or county court. It is intended to restrict second appeals (from the Upper Tribunal to the Court of Appeal) on the same point unless the wider public interest test is met. The Lord Chancellor has a legitimate interest in the grant of onward appeals because of his responsibility for the provision of judicial resources. The provision is in secondary legislation because the extent of the First-tier and Upper Tribunal is not set and other jurisdictions may be added in the future. Also, this restriction may be appropriate for some functions but not for others.

34 This power will be regulated by means of the affirmative procedure so that Parliament can be assured, in each instance of its use, that those with a legitimate interest in an appeal are not being restricted in their access to justice."

From all of this, we conclude that Parliament did not regard the introduction of the "second-appeal" test as being a matter of simple practice and procedure to be determined upon by a court as part of its inherent rule-making powers.

[23] Further support for the notion that provisions respecting appeals are matters of substantive right was also sought by counsel for the applicants in the advice tendered by the Board in the proceedings before the Privy Council in the appeal to the Council in Colonial Sugar Refining Co Ltd v Irving. At page 372 in the report of the case Lord Macnaghten says:

"And therefore the only question is, Was the appeal to His Majesty in Council a right vested in the appellants at the date of the passing of the Act, or was it a mere matter of procedure? It seems to their Lordships that the question does not admit of doubt. To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure. In principle, their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new tribunal. In either case there is an interference with existing rights contrary to the well-known general principle that statutes are not to be held to be act retrospectively unless a clear intention to that effect is manifested."

The amicus suggested that this case might be distinguished from the present in the respect that the right of appeal conferred by section 13(1) and (2) TCEA is qualified by the later requirement in the section - namely section 13(3) TCEA - that leave be obtained. But on our reading of the Colonial Sugar case, the right of appeal with which the Privy Council was concerned was the right to appeal, with leave, from the Supreme Court of the State of Queensland to the Privy Council. (Leave was in fact granted by the Supreme Court in Brisbane). We are therefore not persuaded by the argument proffered by the amicus curiae that s.13 TCEA conferred no substantive right of appeal but only a substantive right to have an application for leave heard by the Court, the criteria for the grant of leave being matters of procedure to be regulated by rules of court.

[24] As an important branch in the argument which Miss Crawford put forward for the consideration of the Court, she drew attention to the fact that by judicial pronouncement the Court had in the past sought to identify an appropriate approach to follow in considering applications for leave to appeal from tribunals. Thus, as already narrated, following upon the observations of the Court in Campbell v Dunoon & Cowal Housing Association Ltd to the effect that, generally, an applicant should show something in the nature of probabilis causa, in its later decision in Hoseini v The Secretary of State for the Home Department the Court, having paid regard to inter alia the Immigration and Asylum Appeals (Procedure) Rules 2003, adopted the approach of considering whether the appeal would have a realistic prospect of success, or presented some other compelling reason for its being heard. Having embarked upon that course of making judicial pronouncement on the approach to be followed it was, said the amicus, arguable that it was thus open to the Court by way of judicial pronouncement to alter that test and substitute another. That being so, as we have already recorded, she suggested that there was no reason why the same exercise might not be achieved by way of promulgation of an Act of Sederunt.

[25] We have given careful consideration to the argument thus put before us by the amicus curiae. We would observe that where a right of appeal is given by statute subject to the obtaining of leave the prospects of success in the appeal will no doubt generally be a material factor for the court in question to evaluate, since the absence of any tangible prospect of success will normally be an almost incontrovertible reason for not permitting the appeal to proceed further. To enunciate the view that leave should be declined for unmeritorious appeals is hardly to be seen as cutting down the substance of the right of appeal; nor as restricting the grant of leave to a defined subset of meritorious appeals. In response to this branch of the argument canvassed by the amicus curiae counsel for the applicants and counsel for the Home Secretary also submitted that in Campbell v Dunoon & Cowal Housing Association Ltd and Hoseini v Secretary of State for the Home Department the Court was, in effect, directing its mind to identifying whether the appeal presented a real point of law rather than laying down peremptory rules of a procedural nature. We think that there is force in those submissions. But even if the opinions delivered by the Court in those cases are taken to be setting out some legal rule or principle, as part of the Court's task of declaring the law, it appears to us that if such a declaration of the legal principle is to be reversed or qualified the methods whereby that might take place are through further appeal (or reconsideration by a larger bench), or by legislative intervention. The power to make rules of procedure, unlike primary legislation, is not, in our opinion, a proper means of reversing earlier legal decisions pronounced in foro.

[26] We are of course well aware that at first sight it may be seen as anomalous that the scope of appeal from the Upper Tribunal to the Court of Session should be different from that of an appeal from that tribunal to the courts of appeal in the other constituent parts of the United Kingdom. On the other hand if - as well appears to be the case - the thinking be that the scope of appeal from the Upper Tribunal should be aligned with the scope of appeal to the relevant appellate court in other civil cases, it might be equally be thought anomalous to have in Scotland a "second-appeal test" for appeals from the Upper Tribunal when no such test applies in other appeals to the Court of Session. Be that as it may, it is in our view clear that in not including in the TCEA as respects Scotland any equivalent of section 13(6) Parliament was content, when enacting that measure, that the position in Scotland could be, and for at least some time would be, different from that obtaining in England and Wales and Northern Ireland respectively. As we understood counsel for the Home Secretary, it was accepted by the Home Secretary that such should be the position in the absence of intervention by primary legislation.

[27] In these circumstances we have come to the conclusion that the contentions of the applicants and of the Secretary of State for the Home Department are sound and that RCS 41.59 - now RCS 41.57 - is ultra vires.

[28] In reaching that conclusion we are of course aware that in Eba v Advocate General for Scotland the Supreme Court of the United Kingdom noticed the terms of RCS 41.59 as a factor in the decision which it reached. However it is clear that no issue was before the UK Supreme Court concerning the vires of RCS 41.59; indeed, so far as one can tell from the judgment, RCS 41.59 does not appear to have been relied upon by any party. Naturally, counsel, in drawing to our attention to the notice paid to RCS 41.59 in the judgments in Eba v Advocate General for Scotland and also R (Cart) v Upper Tribunal, did not suggest that such could confer a validity upon RCS 41.59 which it did not otherwise have.

[29] In the light of the conclusion which we have reached on the preliminary question of the vires of RCS 41.59 we shall therefore continue the hearing of this application for leave to appeal to a future date to hear parties' submissions on the further disposal of the application, given the acceptance of the Home Secretary that leave should be granted and the appeal be granted, the question then remaining - on the assumption that the concession of the Home Secretary is shown to be justified - being one of disposal.