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Impact of the Supreme Court - report
A review looking at the potential impact of the UK Supreme Court on the Scottish legal system has been published. The review, by Professor Neil Walker of Edinburgh University, was commissioned by the Justice Secretary in December 2008.
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 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.
Professor Walker dismisses the other four blueprints for final appellate jurisdiction in the Scottish legal system considered in the report, 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.
"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," said Professor Walker.
"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."
