1,000 words: Devolution

The current system of devolution in the UK was introduced by the Blair Government in the late 1990s. It involved the creation of new legislative and executive institutions in Scotland, Wales and Northern Ireland, and the conferral upon them of law-making and administrative powers. A key purpose of devolution is to enable parts of the country that possess distinct political and cultural identities to remain part of the Union without subjugating those individual identities. In this way, devolution aims to strengthen the Union by equipping it to accommodate diversity, a flexible structure being stronger than a brittle one. In Northern Ireland, devolution serves the further, and crucial, objective of fashioning a system of government capable of bridging community divisions. The technical operation of the different devolution schemes and the (significant) differences between them are important, but are beyond the scope of this post. Rather, its focus is on the general nature of devolution and on the broader insights it affords into the nature of the UK’s constitution.

One of the most striking features about the devolution system in the UK is its asymmetry. Scotland and Northern Ireland can enact legislation — including laws overriding those enacted by the UK Parliament in relation to Scotland and Northern Ireland respectively — on all matters save those that are reserved to the exclusive competence of the UK Parliament in Westminster. Wales has sparser powers, being permitted to enact legislation only in relation to specific matters. England has no devolved powers at all; since the devolution system does not extend to it, it relies upon the UK Parliament and the UK Government to enact its laws and administer it. Those institutions therefore serve dual functions, as the UK but also the de facto English legislature and executive.

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A lack of constitutional imagination lies at the heart of the Scottish independence debate

Opinion polls suggesting that the pro-independence campaign in Scotland may have taken a narrow lead have had an electrifying effect, causing the mainstream UK media and political establishment — both of which have been curiously disengaged from the debate so far — to sit up and take notice. The point of this post is not to make the case in favour of the Union (although it happens to be a case with which I agree, and one that has been made by others far better than I could make it myself). Rather, the point is to suggest that the nature of the debate — premised as it is on bald agreement or disagreement with independence — displays a lack of constitutional imagination. There are suggestions today that the Westminster political elite is waking up to this, but the indications are presently only tentative — and, even then, hint at the application of only a modest degree of imagination.

The question lying at the heart of the independence debate appears to be an unambiguously binary one. Should Scotland be an independent country? Yes or no? But the terms upon which the debate has largely been conducted — particularly by those arguing in favour of independence — have often implicitly, and sometimes explicitly, eroded the ostensibly binary nature of the question. The obvious example is the pro-independence campaign’s insistence that an independent Scotland could and would continue to use the pound. The strategy is clearly an attempt to allay fears about independence by relying upon the relationship that — it is said — would persist between a newly independent Scotland and the United Kingdom. (I pass over, for the time being, the obvious point that while the question whether it should become independent is rightly and exclusively one for Scotland, the terms of an independent Scotland’s relationship with the United Kingdom manifestly should not and would not be settled only by Scotland.)

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New series: 1,000 words

Starting in the 2014-15 academic year, I will be writing a new series of posts entitled 1,000 words. Each post will address — in roughly a thousand words — a key concept, principle, doctrine, institution or debate relevant to Public Law. The intention is that — over time: posts will roll out slowly — 1,000 words will evolve into a resource that will address a broad range of key issues in Public Law, and that it will help students better to engage with crucial aspects of the subject.

Posts in the 1,000 words series are not intended to replace traditional resources, such as textbooks, but rather to complement them, including by providing additional perspectives and highlighting relationships between the often-interconnected issues that must be confronted if Public Law is to be understood. 1,000 words posts will not necessarily aim to provide an exhaustive overview; rather, they are likely to offer a particular perspective, or to tackle aspects of topics that students commonly find difficult. (The idea for this series came, in part, from a set of posts I came across on Professor Paul Cairney’s Politics & Public Policy blog.)

Links to each 1,000 words post will appear on this page. If you wish to receive 1,000 words posts (along with other posts) via email, you can subscribe to the blog. You can also receive notifications of new posts by following me on Twitter.

Constitutional legislation, EU law and the UK’s contemporary constitution

Screen Shot 2014-08-24 at 23.09.53I have just finished work on a paper entitled “Constitutional legislation, European Union law and the nature of the United Kingdom’s contemporary constitution”. It will be published in the European Journal of Constitutional Law in December 2014.

The paper is concerned with the recent judgment of the UK Supreme Court in R (HS2 Action Alliance Ltd) v Secretary of State for Transport [2014] UKSC 3, [2014] 1 WLR 324 (about which I have written before on this blog). In HS2, the Supreme Court gives some support to the notion of ‘constitutional statutes’ — a concept that, although proposed by Laws LJ more than a decade ago in Thoburn v Sunderland City Council [2002] EWHC 195 (Admin), [2003] QB 151, is essentially novel in UK constitutional law. The Court in HS2 also engages with questions about the relationship between domestic law and European Union law in a way that — given the paucity of constitutional analysis undertaken by the House of Lords in R v Secretary of State for Transport, ex parte Factortame Ltd (No 2) [1991] 1 AC 603 — is arguably unparalleled at the apex-court level in the UK. For these reasons, the HS2 judgment is of considerable constitutional significance.

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Lords Woolf and Brown on proposed limitation of judicial review

I have written before about (what is now) clause 64 of the Criminal Justice and Courts Bill. If enacted, it will insert new provisions into s 31 of the Senior Courts Act 1981 such that relief must be refused

if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.

It will also be possible—and sometimes obligatory—for the court to consider this point not at the substantive-hearing stage, but at the permission stage. The High Court will be permitted—and, if the defendant makes a request,  required—to consider whether the outcome would have been substantially different absent the impugned conduct, and will have to refuse to grant leave if it is highly likely that the outcome would not have been substantially different. This contrasts with the present position, whereby courts may refuse relief or refuse to grant leave if satisfied that it is inevitable that the outcome would have been no different.

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Cambridge Public Law Conference: Detailed programme published

The full programme for the 2014 Cambridge Public Law Conference has now been published. It provides details of all plenary sessions and parallel panel sessions, and will enable those attending the conference to plan their time ahead of arrival in Cambridge. The programme can be accessed via the conference website or viewed below. Registered participants will shortly be able to access, via the conference website, copies of the papers that are due to be delivered at the conference.

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Current Legal Problems Lecture: Abstract

On Thursday 5 March 2015, I will be giving a lecture in the Current Legal Problems series at University College London. I will be speaking to the title: “A post-European British constitution: plus ça change?” I am delighted that Lord Reed JSC has agreed to chair the lecture. My abstract is as follows:

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