Proposed UK supreme court illegal in Scotland?

The Herald reports that many Scottish lawyers think a new UK supreme court would be unconstitutional in Scotland. (via An Oasis)

The 1707 Act of Union provides that no Scottish case can be heard in an English court. It also removed Scotland’s parliament, but left it its judicial independence. The Faculty of Advocates, the equivalent of the Bar Council in England and Wales, says the supreme court would be unlawful and unconstitutional.

Apparently the Act of Union is entrenched, so it should not be possible for it to be amended (but it must have been an amendment when Scotland was given a parliament). That is one question. Another is, why would the supreme court be an ‘English’ court? It would be for the whole of the UK. And another: how is it that some Scottish appeals (in civil matters) go to the House of Lords?

In fact, the Herald article suggests that the main difficulty is with the proposals for a supreme court in their present form. There have always been one or two Scottish law lords, and similar provisions need to be made for a UK supreme court (if there ever is one). And perhaps the court is too closely integrated into the system of English and Welsh courts for the Scots to accept.

6 thoughts on “Proposed UK supreme court illegal in Scotland?

  1. As a Sassenach, I can – subject to my learned Scots Advocate and solicitor friends coming in on this one – but venture the following.

    If the Act of Union is so entrenched to ex-Jacobite opposition, then I wonder what would happen if England or Scotland disappeared beneath the waves.

    Possibly the very non-Gaelic title of Supreme Court is over-modelled on English lines. The existing ‘High Court of Justiciary Appeals Court’ in Edinburgh might be a more natural highest-level forum.

    Linked to that court is the answer to the third part. The framers of the Act of Union ‘forgot’ there was an appeal route to the High Court in Edinburgh. The delusion laboured under also became entrenched.

  2. I somewhat doubt whether your learned Scots Advocate (capital A) and solicitor (small s – no bias here, I hope?) friends are reading this.

    Of course, reading the whole article, it appears this is just a way of drawing attention to the fact that not enough thought has been given to including Scottish judges. This is hardly surprising, since I should think not enough thought has been given to anything. It says something like ‘the whole thing looks as if it had been written on the back of an envelope’ – Surely it *was* written on the back of an envelope?
    I’m afraid you’ve lost me with your final High Court in Edinburgh point.

  3. I’m unsure the blueprint (call it a ‘Konzept’) was written on the back of an envelope – certainly not an apt description for the glossary brochure on the intended Supreme Court I have from the Department of Constitutional Affairs, albeit in London.

    On the last point, if I remember rightly from the Scots law textbooks, either of retired Glasgow Law Professor-cum-Solicitor Enid Marshall – my apologies, but note the capital ‘S’ and small b for Barrister in the ITI Bulletin – or of Scots lawyer Robert Walker, Unionists mistakenly thought that, after 1707, there was no longer a highest-level civil appeal route available in Scotland. So the practice grew up of referring civil appeals down South to London. Sounds obscure I know, but there have been historical mistakes with worse consequences than that.

  4. I don’t know Robert Walker. I can’t find anything in David M. Walker, but Enid Marshall has a note, saying the Act of Union (Treaty of Union, she calls it) left it doubtful whether there was to be a similar right of appeal from the Court of Session. It was only after 1876 that there was always one Scottish Law Lord, and by convention there are now at least two. – Probably there’s more to it than that.

    The only thing I have seen is a PDF file (could you mean a glossy rather than glossary brochure?) This is dated July, however, and it’s seeking reactions rather than going into any detail as to the proposed supreme court – rude of me to refer to it as the ‘back of an envelope’, but certainly not detailed.

  5. Yes. Thanks for the David Walker correction. Unlike me, you sure are travelling with good Scots law sources.

    Also, the Dept. of Const. Affairs 50pp glossy brochure – I must have glossary words on the brain – is CP 11/03 July 2003> ‘Const. Reform: a Supreme Court for the UK’.

    At p. 15: ‘ ‘the right of …civil.. appeal from the Court of Session to the Scottish Parliament was established by the (Scottish) Claim of Right in 1689. That right translated into a right of appeal to the House of Lords following the Treaty of Union in 1707. It has remained largely unchanged since then, and is now set out in in the Court of Session Act 1988’.

    The brochure otherwise pays lip-service to Scottish, Welsh and N. Irish ‘devolution’ cases that would go to a UK Supreme Court – I thought Solicitors were already admitted to the Supreme Court of Eng. & Wales – and the tradition of including Scottish judges on Senior Judicial House of Lords and Privy Council Committees. I wonder what the Welsh and northern Irish make of all this.

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