Named persons in the Supreme Court: the Christian Institute and Others v The Lord Advocate

No abstract available

Public interest judicial review in cross-border perspective

This paper assesses challenges in England and in Scotland to the ‘public interest conception’ of judicial review according to which judicial review is intended primarily to promote the public, rather than private, interest. It shows that though recent decades have seen the public interest conception of judicial review in the ascendancy south of the border, there has been in the recent past a changing of the tide: the public interest conception of judicial review has been chipped away by legislative developments which reject the premise upon which it is based – largely by implementing procedural rules which are in significant tension with it. In Scotland, on the other hand, the courts have shown less enthusiasm for that conception, with many of the procedural rules and developments which reflect it having been resisted by the Scottish judiciary or acceded to only belatedly and with some reluctance. On the basis of a consideration of the issues of standing, protective costs orders and third party interventions, it shows that, though the conception of judicial review which sees it primarily as a tool by which the public interest can be pursued and protected is in poor health on both sides of the border, the details of, and reasons for that conclusion, differ in interesting ways

Subsidy Control Bill - Some Constitutional Considerations : Briefing Paper from the Committee Adviser Dr Christopher McCorkindale to the Committee, 23 November 2021

Even before the Subsidy Control Bill was introduced into the UK Parliament, devolution has been impacted by the issue of subsidy control in important ways. First, in the face of disagreement during common framework negotiations about whether subsidy control was a reserved or devolved matter, section 52 of the Internal Market Act 2021 explicitly reserved the '[r]egulation of the provision of subsidies which are or may be distortive or harmful by a public authority to persons supplying goods or services in the course of a business' in each of the devolution statutes. Second, both the Scottish Parliament and the Welsh Parliament refused legislative consent to the Internal Market Bill (the Northern Ireland Assembly did not hold a formal legislative consent vote) which was - as with the EU Withdrawal Bill (consent withheld by the Scottish Parliament) and the EU (Withdrawal Agreement) Bill (consent withheld by the Scottish Parliament, the Welsh and the Northern Ireland Assembly) - nevertheless passed without any consequent amendment. Whilst there might be an argument that, with the article 50 clock ticking and a 'no deal' default position waiting at the end of the article 50 period, the EU Withdrawal Bill constituted a justified exception to the rule that ‘the UK will not normally legislate with regard to devolved matters [nor to adjust the boundaries of devolved competence] without the consent' of the devolved legislatures, the case is far less clear in so far as the EU Withdrawal Bill and the Internal Market Bill were concerned. Not only was devolved competence adjusted (with regard to subsidy control), but this adjustment was done by imposition rather than with the consent of the devolved legislature

Parliament, sovereignty and the paradox of the political constitution

Keith Ewing has made an outstanding – indeed, an inspiring - contribution to the way in which we perceive and understand the United Kingdom’s (still) political constitution, both in theory and in practice. In this chapter, however, I will take as my point of departure what in my view is a tension between two claims that he has made about that tradition. The first is made in defence of Parliamentary sovereignty, which for Ewing is the ‘core legal principle of the political constitution,’ and this, he says, for two reasons. First, because it defines the power of the legislature itself, having evolved to become ‘no more and no less than the legal principle underpinning the political principle that there should be no legal limit to the wishes of the people.’ Second, because Parliament, in the exercise of its legislative function, delineates the proper scope of lawful executive action. Seen in this light, Ewing defends judicial review on traditional ultra vires grounds as being ‘not so much a usurpation of the sovereignty of Parliament as its vindication, to the extent that the courts do not permit Ministers or others to stray beyond their Parliamentary mandate.’ For Ewing, the problem of judicial review (against which so much of modern political constitutionalism has been defined) emerges where judicial activism has gone further than this in order to wash through (and by implication to constrain) progressive social and economic legislation and government action with conservative common law values. For these reasons, Ewing found it frustrating that JAG Griffith, in his seminal 1978 Chorley Lecture, The Political Constitution, paid such little attention to the principle of Parliamentary sovereignty, because Ewing found it difficult to see how a political constitution could operate without it. Indeed, Griffith’s only explicit reference to the principle in that lecture was to deny – contra contemporaneous challenges – that the sovereignty of Parliament was amongst the constitutional vices of the time

Devolution in Scotland and the Supreme Court : a question of interpretation?

As we celebrate its first decade it is clear that the Supreme Court is coming to terms with its position as an apex constitutional court for the United Kingdom. Whilst recent trends indicate that this is true even in the face of Westminster legislation and UK Government action, in the devolved sphere the court has been cultivating a bespoke devolution jurisprudence almost from its inception. In this paper I want to focus on two key issues that arise from this. First, that despite the Supreme Court holding itself out to be a truly constitutional court in the devolved sphere – where it has power hitherto unknown to UK courts to strike down primary legislation enacted by democratically elected legislatures – it remains uncomfortable proceeding from first constitutional principles. Rather, the devolution jurisprudence of the Court – certainly as it relates to the constitutional status of devolution – demonstrates the Court’s continued faith in its exercise of a more traditional function: that of (sometimes innovative means of) statutory interpretation. Second, that whilst relatively few devolution disputes will manifest themselves before the Supreme Court, that (still developing) jurisprudence looms large over the work of government and parliamentary lawyers whose task it is to protect as far as possible every piece of devolved legislation from judicial censure through an intricate process of legislative constitutional review

Three waves of political constitutionalism

No abstract available

A Charter of Workers' Rights for Scotland

1 Labour law as broadly defined is a reserved matter, though there has been a vigorous debate about its devolution by enhancing the powers of the Scottish Parliament. This is a debate that could continue for some time. In the meantime, Scottish workers’ rights cannot stand still: there is a need for both a framework of workers’ rights and consideration of to how best it can be implemented within the current constitutional arrangements. 2 Although labour law generally may be a reserved matter, this does not mean that there is no opportunity for the Scottish government to advance a programme for workers’ rights. It is true that the nature of the devolution settlement is such that it would be difficult for the Scottish Parliament to legislate as the National Assembly for Wales has done recently in respect of agricultural workers and the Trade Union Act 2016 respectively. 3 While recognising that for the time being legislative authority continues to be based at Westminster, there is nonetheless more that can be done to advance workers’ rights, in terms of bringing trade unions into the process of government, identifying a framework of workers’ rights, and developing strategies for their effective implementation. In this document we set out the questions of institutional responsibility and opportunity. 4 In a devolved context, government has both a responsibility and an opportunity to take the initiative where there is need to be met. After almost 40 years of liberal economics, followed by austerity, there is clearly a need to be met. There is also an urgent need to deal with workers’ rights in the imminent consequences of Brexit

Brexit and the work-family conflict:a Scottish perspective

This paper examines the Scottish Government’s desire to maintain ties with EU law post-Brexit in the context of employment and equality law, particularly those laws which impact on work-family conflict. The paper critically examines whether there is, or could be, a distinctly Scottish perspective in the context of work-family rights post-Brexit. The paper frames the analysis by considering the potentially gendered implications of Brexit in this context. In doing so, it examines this issue from the perspective of traditional heterosexual dual-partnered working family models. It is argued that rights for working fathers will be most vulnerable post-Brexit, with related consequences for working mothers. Consequently, the implications of Brexit in this context are primarily viewed through the lens of working fathers. The paper then critically examines the Scottish Government’s position on EU employment and equality law in the post-Brexit context

Devolution : a new fundamental principle of the UK constitution

In an event that marked its twentieth anniversary, Tony Blair – the Prime Minister whose government delivered legislative devolution to Scotland and Wales (and who returned legislative devolution to Northern Ireland) - revealed what he believed to have been the two-fold purpose of those reforms. The first, principled, purpose was ‘to bring about a new settlement’ whereby ‘decision making was brought closer to the people who felt a strong sense of identity’; the second, political, purpose was ‘to ward off the bigger threat of secession’. Of course, these purposes are indelibly linked. First, because the ‘threat’ of secession, more pronounced in Scotland, albeit latent in Wales, is on one reading a manifestation of the desire to bring decision making closer to those who share a sense of (national) identity. Second, the prospect of secession has been a significant driver of the broadening scope and deepening entrenchment of devolution during its first twenty years. To these, we might add a third, constitutional, purpose of devolution: to bring about radical (in Blair’s words, ‘necessary’) change to the territorial distribution of power in the United Kingdom whilst at the same time preserving the indivisible sovereignty of the Crown-in-Parliament