Independent Scotland justice must not be affected

Scotland's court system is already independent, with the exception of the right of appeal to the UK Supreme Court. Picture: PA

AN ASPECT of the independence debate not yet considered in any detail is how independence would affect our court system. Scotland already has a separate legal system to the rest of the UK; our court system is independent, with the exception of the right of appeal to the UK Supreme Court (UKSC) in civil cases. If Scotland votes for independence, this right of appeal is to be removed and a new Supreme Court of Scotland established.

In fact, this is to be a rebranding of the Inner House of the Court of Session (CSIH) in Edinburgh, without the creation of any new court but, as the Law Society of Scotland has pointed out, “the creation of a Scottish Supreme Court is more than just a naming exercise”.

Appeal to the UKSC (formerly the House of Lords) has been available in Scottish civil cases for over 300 years and it is critical to consider what removal of the highest tier of the Scottish civil court system would mean for Scottish civil justice and the development of Scots law.

Would the outcome of Scottish civil cases be different if the Court of Session made the final decision? Our review of appeals to the UKSC in 2013 shows that out of a total of 81 appeals 11 were Scottish and in around half of which the UKSC overturned the decision of the CSIH.

So far in 2014, one of three Scottish appeals to the UKSC has resulted in the CSIH decision being overturned.

The figures will vary from year to year, however, this snap-shot suggests that in a significant number of cases, appeal to the UKSC produced a different outcome than had the decision of the CSIH been final. It might be inferred from this that removal of the UKSC from the Scottish civil court structure could have a significant impact on the development of Scots law.

Would it also have a negative impact on access to justice? There will be differing views on whether or not appeals to the UKSC produce the right outcome.

The controversial decision in Cadder v HM Advocate, for example, in which the UKSC held that the well-established Scottish practice of detaining and questioning a criminal suspect for up to six hours without access to a solicitor was a breach of the right to a fair trial, attracted criticism from some quarters, notably the SNP, whereas it was lauded by the civil liberties community.

Of course, in a Scotland with no appeal to the UKSC, a case like Cadder could be appealed to the European Court of Human Rights, which may have reached the same decision.

Scotland incorporated the European Convention on Human Rights (ECHR) into domestic law before England and Wales and the Scottish Government has confirmed that the ECHR will remain part of Scots law.

For cases not involving the ECHR though, it is important to note that a single decision of the UKSC can have far-reaching implications for the development of the law.

The perfect example is Scotland’s most famous civil case, Donoghue v Stevenson. Mrs Donoghue found a dead snail in her bottle of ginger beer, fell ill and sued the manufacturer. The Court of Session decided that the manufacturer did not owe her a duty of care, as there was no direct relationship between the manufacturer and the consumer.

The UKSC, then the House of Lords, disagreed and upheld her claim, laying the foundation of the modern law of negligence, not only in Scotland and the UK, but in common law countries worldwide. Had the decision of the IHCS been final the law of negligence would not have developed as it did.

Another important aspect is that a Supreme Court of Scotland may have to grapple with constitutional issues, given that the Scottish Government envisages introducing a written constitution setting out our fundamental rights.

This would presumably mean that new laws could be struck down by the Supreme Court of Scotland if they were incompatible with the constitution. It may be that special rules would have to be introduced for constitutional cases, for example, requiring a minimum of five judges to sit on those cases.

The key question is whether or not the removal of the UKSC as the highest level of review for Scottish civil cases will undermine the development of Scots law and/or access to justice. If Scotland votes “Yes” it will be incumbent upon us to ensure that Scottish jurisprudence and access to justice does not suffer.

• Barbara Bolton is a partner in Tods Murray Solicitors’ litigation and dispute resolution department www.todsmurray.com