Chapter 7 of the White Paper considers Justice. Scotland already has its own separate legal system so the potential for change is not as far reaching as in some other areas set out in the White Paper. Additionally, much of what the White Paper has to say about Justice relates to the criminal justice system.
In relation to civil matters, the key change is that disputes would no longer be referred to the Supreme Court in London, instead being dealt with by the existing Inner House (for civil matters) which, along with the High Court of Justiciary (for criminal matters), would become known as the Supreme Court of Scotland.
The practical effect
Post-independence, decisions of the UK Supreme Court on points of Scots law made before independence would remain binding unless and until overturned by the Supreme Court of Scotland. The present position whereby decisions of the UK Supreme Court on English law matters are persuasive in Scots law, but no more than that, would also continue after independence.
At present, where the UK Supreme Court makes a decision on a matter of English law, that decision is persuasive in areas of Scots law where the same legal principles apply. However, the generally prevailing view is that it can only be binding in Scots law if it has been adopted by a Scottish court of sufficient authority. If the UK Supreme Court subsequently overturns its decision on the English law matter, there is a question as to what effect that has in Scots law if the earlier decision was adopted by a Scottish court. The most recent decision is, after all, highly persuasive. This notwithstanding, until the earlier decision of the UK Supreme Court which binds the Scottish courts is reversed by a Scottish court of equal or higher standing than the one which adopted it, the earlier decision of the UK Supreme Court remains the binding authority in Scots law.
The change of the Supreme Court in Scots civil law matters will not alter the current position. If, post-independence, the UK Supreme Court overturns an earlier decision on an English law matter which has been adopted in Scotland, the later decision will still be persuasive in Scots law. It will, however, be no more than that until the Scottish courts adopt it in place of the earlier decision.
In that respect at least, the advance of Scots law should continue to benefit from the larger volume of decisions that are made by the English courts in comparison to the Scottish courts. Clearly, however, there is a prospect of that benefit diminishing if Scots law begins to diverge from English law in areas where common principles currently apply. That might most obviously arise in areas which are presently the subject of UK-wide legislation but where changes would be the subject of Scottish legislation after independence.
Reform of the Civil Justice system in Scotland
It is worth noting that, regardless of the outcome of the referendum vote, the civil courts in Scotland are about to go through far reaching changes as a result of the Scottish Government's "Making Justice Work" programme; the Courts Reform (Scotland) Bill was introduced to the Scottish Parliament in February 2014, with implementation expected to take place from mid 2015.
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