Professor Neil Walker of the University of Edinburgh today (22 Jan 2010) published his report to the Scottish Government on the position of the new (UK) Supreme Court within the context of the current constitutional settlement (in Scotland).
As you know, the current position is that in civil cases, a right of appeal lies from the Inner House of the Court of Session to the Supreme Court. In criminal matters, the High Court of Justiciary (sitting in an appellate capacity) is the final court of appeal. Unless there is a “devolution matter” raised (usually a human rights point), in which case the Supreme Court will take a look. Happy so far? Good.
It is also worth noting that civil appeals to the Supreme Court from the Court of Session do not require leave to appeal (from either Court) – unlike in England & Wales.
So, Prof. Walker (ably assisted by a select steering group comprising Sir David Edward, David Johnston QC and Prof. Tom Mullen) has now delivered his view on appeals to the Supreme Court concluding as follows:
- If Scotland were to become independent, then the judicial system should also be independent, with all cases being determined in Scots courts and no further appeal to the Supreme Court.
- Under current arrangements (devolution), then in cases (civil or criminal) involving only devolved issues – the Court of Session / High Court should be the final stage of appeal. However in cases (civil or criminal) which involve a reserved matter (e.g. employment law or tax fraud) then a final appeal should lie to the Supreme Court.
I happened to share a train back from Edinburgh today with one of the steering group, who was kind enough to share his thoughts on some of the implications. For what it’s worth, I share the view that if Scotland became an independent country, then rights of appeal to the Supreme Court should cease altogether. If we’re leaving home, then those apron strings must be cut too (is that the correct expression?).
The proposals for the devolution (or “devo-max”) scenario would involve a decrease in the number of Scottish civil cases being heard by the Supreme Court, but an increase in the numbers of criminal cases. Such changes would also require to be enacted (at least in part) by the Westminster Parliament, rather than by Holyrood alone.
The prohibition in the Act of Union 1707 that “no Causes in Scotland be cognoscible by the Courts of Chancery, Queens-Bench, Common-Pleas, or any other Court in Westminster-hall;” (Article 19) has presumably been overcome now that the Supreme Court has moved across the street to Parliament Square?