Public Law

My colleague Charles Livingstone last week wrote about the Scottish Government’s proposals for the transition to independence. One feature of those proposals has been intriguing me ever since. The paper distinguishes between long term constitutional arrangements for an independent Scotland and what it describes as the ‘Constitutional Platform’ which would be put in place in the event of a Yes vote but before the formal transfer of sovereignty from the UK to Scotland. That Constitutional Platform would provide for ‘the Supreme Court of Scotland’. No further detail is given at this stage but interesting questions arise.

First – would the proposed Supreme Court be a building or a concept? The idea is obviously to ensure that the work currently done by the UK Supreme Court in relation to Scottish court cases is done, instead, in Scotland. That could be done by creating a whole new Court in Scotland to which appeals from the Inner House of the Court of Session (and as Charles alluded too, perhaps also the Appeal Court of the High Court of Justiciary) would go. But that’s not the only option. When Australia ended the practice of sending constitutional appeals to the Privy Council in London that was achieved not by creating a new Court but simply by terminating the Privy Council’s jurisdiction (via an Act of the Commonwealth of Australia and a parallel Act of the UK Parliament, which are known collectively as the Australia Act 1986). New Zealand (which amongst other similarities has a population approximating Scotland’s) did things differently, replacing the appeal to the Privy Council with a shiny new Supreme Court in 2004.

Then there is the question of timing. The Scottish Government’s position is that the new Scottish constitution should be the product of a constitutional convention after independence. It is not clear whether the constitution and powers of the Supreme Court would be up for grabs as part of that constitutional convention. What does seem to be clear, however, is that if the Supreme Court were to be established before independence – as part of the Constitutional Platform – then any disputes about the outcome of the proposed constitutional convention would ultimately be decided by a Scottish Supreme Court and not in London. That is no doubt, and in the context of an independence debate understandably, part of the plan.

Christine O'Neill
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