Adviser raises court plan queries

Mar 12 2013

A Supreme Court of Scotland could have the power to strike down "unconstitutional legislation" passed by an independent Scottish Parliament, according to Alex Salmond's independent adviser on the referendum.

The Scottish Government has invited opposition parties and members of civic society to join them in drafting a new constitution if Scotland votes yes to independence.

While this constitution will not take shape until after the referendum, constitutional expert Professor Stephen Tierney has identified some of the Government's preferences outlined in the post-referendum planning paper Scotland's Future.

"Scotland's Future is somewhat light on the possible content of a new constitution but there are some hints about the Government's preferences," Prof Tierney wrote in a paper presented to The Law Society of Scotland. It is notable in itself that the Government proposes a written constitution.

"It also suggests that the Sovereign will continue as head of state; that there will be a Supreme Court of Scotland, and that this court will have the power to strike down unconstitutional legislation (the constitution will contain 'citizens rights that cannot be taken away by a decision of Parliament').

"This raises a number of questions about court structure under the new regime. How would a new Supreme Court be established and how would it be populated?

"Would it be a free-standing court with personnel separate from the existing superior courts in Scotland, and if so could this be justified given the limited number of constitutional issues that come from Scotland to the UK Supreme Court at the moment? Or would judges from the Court of Session sit on this on an ad hoc basis?"

Prof Tierney described suggestions that principles on climate change, the environment, natural resources and a ban on nuclear weapons could be written into Scotland's constitution as "radical".

"Each of these proposals, of course, raises questions about what type of enforcement would accompany such provisions," he said.

"In particular, would the courts be vested with the duty to enforce social and environmental rights etc., the constitutional appropriateness of such a duty the competence of judges to execute it?"