SCOTTISH independence may provide a financial windfall for lawyers who would “grab some of that practice cake” that currently migrates to London, a leading QC has insisted.
Gordon Jackson QC, Dean of the Faculty of Advocates, said seceding from the UK would enable Scotland to seize back swathes of commercial work being lost to the English court system.
And he insisted a new court of final appeal would have to be established in the event of independence despite the SNP’s 2013 White Paper claiming there was no need to add to the existing court system.
Read more: Should Nicola Sturgeon stick or twist on a second referendum as Britain heads for Brexit?
In an exclusive interview with the Herald, former Labour MSP Mr Jackson - now the country’s most senior court lawyer - revealed how the Brexit vote had made him “more open minded” about Scotland breaking from the UK and highlighted opportunities to exploit the “huge amount of legal business that could be done in Scotland is being done in London”.
He said: “How Brexit will turn out no one has a clue so we should keep our powder dry until we see how that is turning out.
“It is difficult to say how it will affect us but the Scottish legal profession has never been integrated with the English one so in some ways this provides an opportunity for Scottish law because at the moment a huge amount of commercial work goes to London because everyone wants to litigate in London.”
And he added: “Independence could create an opportunity for Scotland to grab some of that practice cake.
“It’s not about what the downside of change is but the opportunities that can give us and how we can make the most of that.”
Scottish independence would enable lawyers to “grab some of that” back.
As a former Labour MSP, Mr Jackson has traditionally been a supporter of the Union. He lost his Glasgow Govan seat to Nicola Sturgeon in 2007 as the SNP became the largest party and formed a minority government.
In 2016, Mr Jackson became Dean of the Faculty of Advocates and is currently working with the Scottish Government on how it could put legislation in place to ensure more legal actions in Scotland do not drift to English courts.
“If the Scottish Government is giving money to companies to invest there’s an argument to say that they should write into contracts that [any contentious matters arising from those investments] will be litigated in Scotland,” he said.
“The Justice Minister [Michael Matheson, who like Mr Jackson became an MSP in 1999] is extremely interested in that whole field.”
Scottish independence would require an overhaul of the country’s court system, he claims, with the establishment of a new court to replace the additional layer of appeal currently provided by the UK Supreme Court.
As a court of last resort for the whole of the UK, the Supreme Court hears cases appealed from Scotland’s highest court, the Court of Session.
The UK Supreme Court has previously been criticised by former First Minister Alex Salmond who launched a series of attacks on the authority of the court which was accused of “intervening aggressively” in Scotland’s independent legal system At the time, then Justice Minister Kenny MacAskill suggested most supreme court judges’ only knowledge of Scotland was through attending the Edinburgh festival.
Read more: Should Nicola Sturgeon stick or twist on a second referendum as Britain heads for Brexit?
However, Gordon Jackson QC said he remained a “huge supporter” of the Supreme Court.
In its 2013 white paper ‘Scotland’s Future’ the Scottish Government said that “independence will not result in a need for Scotland to add to its existing courts and judiciary” and that “the highest courts in an independent Scotland will be the Inner House of the Court of Session and the High Court of Justiciary (sitting as Court of Criminal Appeal), which will be known jointly as the Supreme Court of Scotland”.
However, Mr Jackson noted that those courts operate a collegiate system, meaning the same judges can preside over first-instance hearings as well as appeals, while the justices of the UK Supreme Court sit in that chamber only.
“We do need something - the Supreme Court is there and it works,” he said. “We would need to put an additional structure in place.”
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