The UK Supreme Court and the Act of Union

As the Law Lords leave the House of Lords and move into Middlesex Guildhall, the site of the new UK Supreme Court. We can look upon this as the first step on the long road of reform necessary to bring the House of Lords into the 21st Century. To do so however, would fail to take into account the inherent injustice within it's scope.

Whilst reform of the House of Lords is already something which I have spoken about, see here, the separation of powers and furtherance of democracy are not the only issues here. The sovereignty of Scots law is also at stake.

Only two out of the twelve judges appointed to the Supreme Court are Scottish lawyers, Baron Hope of Craighead and Baron Rodger of Earlsferry. Since Scottish cases require at least five judges to hear a case, the best that can be hoped for when the Supreme Court hears a Scottish appeal is for two out of the five judges to have been trained within the legal jurisdiction that they are expected to pronounce upon. Are the English trained Judges likely to adopt an Scots law perspective, which hearing cases? I think not, and indeed that is not entirely unreasonable given that the knowledge and experience which saw them appointed is based entirely upon another jurisdiction. It becomes clear therefore, that Scots law will not be upheld on appeal.

With it's own entirely separate legal sytem, Scotland should have it's own Supreme Court. Would one think it acceptable for the the United States Supreme Court to hear Canadian appeal cases? Clearly not, and indeed it is further apparent that the House of Lords should never have held any jurisdiction over Scotland in the first place. See the Act of Union 1707, Art 19 "[N]o Causes in Scotland be cognoscible by the Courts of Chancery, Queens-Bench, Common-Pleas, or any other Court in Westminster-hall" Westminster-hall obviously being the key term.

The highest criminal court in Scotland is the High Court of Justiciary, and indeed the Supreme Court will have no jurisdiction over Scottish criminal cases; likewise the Court of Session should be the highest civil court in Scotland. Anything else rules roughshod over the Treaty of Union and the maintainence of a seperate Scottish legal jurisdiction. Something most Scots feel very strongly about, and as any who have purchased property in England will testify to, see gazumping.

Perhaps it is ironic that, before Parliament trampled all over the Act of Union by establishing the House of Lords as the highest civil appeal court in Scots law, when the Court of Session as the highest Court of the land, its operation was entirely separate from Parliament. Scotland would in fact never have needed these democratic reforms if the Act of Union hadn't been gazumped in the first place.