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A review looking at the potential impact of the UK Supreme Court on the Scottish legal system has been published today by Professor Neil Walker of Edinburgh University.

The review was commissioned by the Justice Secretary in December 2008, following the establishment of a new Supreme Court for the UK, to examine the possible effects of the new court on Scotland's distinct legal system.

Its remit 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.

In his final report, Professor Walker has today put forward six possible models of reform. However, he focuses on two options in greatest detail, which could be characterised as an 'independence option' and a 'devolution max' option.

'Independence' option

• Professor Walker concludes that if the broader constitutional landscape were to alter and full independence was achieved, an entirely autonomous Scottish appeals court system would be a logical model, and an entirely fitting arrangement. He concludes that a new, self-standing Scottish Supreme Court, with separate procedures for ordinary and constitutional jurisdiction, would offer the optimal arrangement for an independent Scotland. However, for as long as Scotland remains part of the UK, this option is neither practical nor appropriate given the continued existence of common areas of law.

'Devolution Max' option

• Under the current constitutional set up, Professor Walker concludes that the most attractive option is a quasi-federal Supreme Court. Under that option, those Scottish cases, both civil and criminal, that raise common UK issues can be heard by the quasi-federal Supreme Court at a Scottish location, while those Scottish cases, again both civil and criminal, that address distinct questions of Scots law can be dealt with solely and conclusively by the indigenous Scottish courts.

The other four blueprints for final appellate jurisdiction in the Scottish legal system considered in the Report are dismissed either because they fail to respond sufficiently to the changing constitutional realities or because, by contrast, they are too dismissive of valuable features of the present arrangements.

Professor Walker said:

"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. 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'

Background

The system of final appeal for cases arising under Scots law is substantially unchanged since the formation of the United Kingdom in 1707. From the early days of the new Union the House of Lords in London was, with one exception, the court of last resort for all categories of cases arising in the various legal systems of the United Kingdom, including Scottish civil cases. The sole exception was Scottish criminal cases, where the court of last resort was, and remains today, the High Court of Justiciary in Edinburgh. Recent constitutional developments have cast these traditional arrangements in a new light.

The creation of a Scottish Parliament and Government 11 years ago involved the drawing of a basic distinction between those areas of law, both civil and criminal, falling within the competence of the new Scottish institutions and those areas of law, again both civil and criminal, reserved to the UK Parliament and government in London. The new arrangements also gave rise to a new category of final Scottish appeals alongside ordinary civil and criminal appeals; namely appeals of a constitutional character in cases involving disputes over the boundary between devolved and reserved matters (so-called 'devolution issues'). More recently, on the initiative of the UK Government and Parliament, the judicial functions of the House of Lords have been abolished, and a new United Kingdom Supreme Court has been established in its place. The new Supreme Court, which began sitting last autumn, has responsibility both for Scottish civil appeals and for 'devolution issues'. Like the House of Lord before it, however, the new Supreme Court has no responsibility for Scottish criminal appeals. Also like the House of Lords before it, the new Supreme Court includes a minority of Scottish judges - two out of twelve of the permanent members - who as matter of practice take a prominent role in all cases before the court that raise distinct questions of Scots law.

In December 2008 Cabinet Secretary for Justice Kenny MacAskill asked Professor Neil Walker of Edinburgh University Law School to conduct a Review of the evolving appellate arrangements. Professor Walker was assisted by a small Steering Group comprising Sir David Edward, David Johnston QC and Professor Tom Mullen of Glasgow University.

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