A report into the potential impact of the UK Supreme Court on the Scottish legal system has been published. The review considers six possible models of reform, ranging from a fully autonomous Scottish appeal court system to a unitary UK framework with the gradual erosion of Scots law.
At the moment, the final court of appeal for Scottish civil cases is the newly created Supreme Court for the UK, which sits in London. Prior to the creation of Supreme Court, civil appeal cases were heard by the House of Lords. For Scottish criminal cases, the court of last resort is still the High Court of Justiciary in Edinburgh.
The review was commissioned by the Justice Secretary Kenny MacAskill in December 2008, to examine the possible effects of the new court on Scotland's distinct legal system.
He appointed Professor Walker of Edinburgh University to chair the review. His brief was to report on the implications of the new UK arrangements for the Scottish courts and Scotland's legal system as a whole, as well as suggesting possible models of reform to ensure the most appropriate and effective system of final appeal for Scottish cases.
The review had to take into account Scotland's current constitutional situation and consider the impact of any possible future changes.
Publishing the report, Professor Walker commented, "There is no one answer to the question of how, if at all, the system of final appeals in the Scottish legal system should be remodelled. It all depends on the wider constitutional horizon.”
"On the one hand, a fully independent Scottish court system would be entirely appropriate for a fully independent Scotland," he explained. "On the other hand, under existing constitutional circumstances there could be a more satisfactory division of labour than at present between cases raising common UK issues and so eligible for appeal to a UK Supreme Court, and cases raising distinctly Scottish issues where our home courts should have the last word."
Professional Walker puts forward six possible models of reform, and immediately discounts four of them,
either because they fail to respond sufficiently to the changing constitutional realities or because they do not fully reflect the valuable features of the present arrangements. The two models that remain are an 'independence option' and a 'devolution max' option, and the report goes into these models in more detail.
The independence option states that if Scotland were to achieve full independence, then a fully autonomous Scottish appeals court system would be the most appropriate arrangement. However, Professor Walker concludes that so long as Scotland remains part of the UK, this option is neither practical nor appropriate given the continued existence of common areas of law.
The 'devolution max' option involves the creation of a quasi-federal Supreme Court. Under this model the Supreme Court would sit at a Scottish location in order to hear both Scottish civil and criminal cases that raise common UK issues. Scottish cases, civil and criminal, that only address questions of Scots law would be heard entirely within Scotland's own court system.
Taking into account Scotland's current constitutional situation, Professor Walker recommends this final model as the most attractive reform option for Scotland.
The Walker Report
http://www.scotland.gov.uk/Publications/2010/01/19154813/0
|
