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2010-05-01

Document Cited authorities 4 Cited in Related
Vincent
AuthorLiz Campbell,James Chalmers,Frankie McCarthy,Alan Page,George L Gretton,Fiona Leverick,Daniel J Carr
Pages269-305
DOI10.3366/elr.2010.0007
Published date01 May 2010
Date01 May 2010
<p>In December 2008 the Cabinet Secretary for Justice asked Professor Neil Walker, Regius Professor of Public Law and the Law of Nature and Nations in the University of Edinburgh, to undertake an examination of final appellate jurisdiction in the Scottish legal system in the light of the establishment of the new United Kingdom Supreme Court by the <a href="https://vlex.co.uk/vid/constitutional-reform-act-2005-808170665">Constitutional Reform Act 2005</a>. In working out the new court's jurisdiction, it will be recalled, no attempt had been made to address the historical anomaly whereby appeals lay to the House of Lords from the Court of Session but not from the High Court of Justiciary. The failure to address the anomaly attracted some criticism at the time.<xref ref-type="fn" rid="fn1-1"><sup>1</sup></xref><fn id="fn1-1"><label>1</label><p>J Chalmers, “Scottish appeals and the proposed Supreme Court” (2004) 8 EdinLR 4; G Gretton, “Scotland and the Supreme Court” 2003 SLT (News) 265; H MacQueen, “Scotland and a Supreme Court for the UK?” 2003 SLT (News) 279; C Himsworth, “A Supreme Court for the United Kingdom” 2003 SCOLAG 178.</p></fn> A subsequent attempt by Nationalist MSP Adam Ingram to abolish the right of appeal in civil cases by means of a member's bill in the Scottish Parliament effectively failed when the Presiding Officer ruled that a large number of the bill's provisions were outside the Parliament's legislative competence.<xref ref-type="fn" rid="fn1-2"><sup>2</sup></xref><fn id="fn1-2"><label>2</label><p>The bill was the Civil Appeals (Scotland) Bill 2006. For discussion, see C Himsworth “Presiding officer statements on the competence of bills” (2007) 11 EdinLR 397.</p></fn> It was no surprise therefore that a Nationalist government should come back to the question.</p> <p>A reading of Professor Walker's report<xref ref-type="fn" rid="fn1-3"><sup>3</sup></xref><fn id="fn1-3"><label>3</label><p>Scottish Government, <italic>Final Appellate Jurisdiction in the Scottish Legal System</italic> (2010, available at <ext-link ext-link-type="uri" xlink:href="http://www.scotland.gov.uk/Publications/2010/01/19154813/0" xlink:type="simple"><italic>http://www.scotland.gov.uk/Publications/2010/01/19154813/0</italic></ext-link>).</p></fn> prompts a number of questions: about the nature of modern Scots law, by which I mean Scots law ten years after devolution; about the relationship between the different legal systems that make up the United Kingdom; about UK law and GB law, which appear “as through a glass darkly” at various points in the report; and about the essential nature of United Kingdom institutions such as the Supreme Court — are we to understand them as genuinely United Kingdom institutions, or are they essentially English institutions with a United Kingdom gloss, or a sometimes uneasy combination of the two? — Immediate interest in the report, however, is less likely to lie in these questions than in the six models of reform set out in the final chapter. Six models – nine if we include the variations on three of the models – might seem rather too many. Analysis reveals, however, that there are essentially four underlying models of reform, of which only two are practical possibilities at the present time: the status quo and what we might term “Scots law plus” or “Scots law max”.</p> THE MODELS

Model 1 – a fully autonomous appellate court system – is the independence model, which of course is not an option until such time as independence is an option. The report, however, includes an interesting discussion of what the final appellate jurisdiction in an independent Scotland might look like, and in particular how constitutional cases might be...

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