IMPACT OF DEVOLUTION ON THE UNITED KINGDOM CONSTITUTION
Devolution settlements have affected the United Kingdom constitution. We will now address several of these, taking into account how the historical backdrop of the United Kingdom as a union state informs these ongoing developments.
Parliamentary Sovereignty
The most pressing question in any assessment of constitutional change in the United Kingdom is what impact, if any, these processes have had on the doctrine, or at least the practice, of parliamentary sovereignty. This doctrine is better described as the legislative supremacy of the Parliament of Great Britain, composed of Monarch, House of Commons, and House of Lords, each of which play an essential role in the law-making process. This doctrine of parliamentary supremacy, which was already emerging within English law at the end of the seventeenth century, thereafter crystallized within English constitutional thinking, receiving its most famous articulation in the work of the constitutional scholar Dicey, who wrote between 1885 and 1915. For Dicey the legislative supremacy of the Crown in Parliament was clearly unlimited. As such it was possessed of both a positive and a negative aspect: in a positive sense Parliament had the power to make or unmake any law for the United Kingdom, and in its negative manifestation no other body could make law for the United Kingdom. It is this doctrine that continues to dominate debate about the power of the United Kingdom Parliament to this day.27
The intention of Parliament in passing the legislation for devolution was that this doctrine would not be modified. To take the Scotland Act as an example, by the doctrine of parliamentary supremacy this is simply an act of Parliament like any other and is, therefore, open to express or implied repeal by a later inconsistent act. The White Paper that preceded the Scotland Bill certainly took this view, stating plainly: “the U.
K. Parliament is, and will remain sovereign in all matters,” and “Westminster will be choosing to exercise that sovereignty in devolving legislative responsibilities to a Scottish Parliament without in any way diminishing its own powers. The Government recognise that no U. K. Parliament can bind its successors.”28 However, we have also observed that despite the overwhelming weight given to Diceyan orthodoxy within English constitutional practice, there has persisted a discrete Scottish constitutional tradition, voiced by the Court of Session in MacCormick and by prominent political actors through the SCC, that Westminster’s self-assumed supremacy is not untrammelled, at least in the context of the Acts of Union. A question that remains therefore is whether, as devolution settles down, it will provide the institutional infrastructure within which this Scottish tradition might be reinvented, and if so, whether the Scotland Act itself will be seen as a mechanism whereby Westminster’s absolute supremacy might be modified.Already in English law some doubt has been cast on the traditional Diceyan doctrine, at least as far as implied repeal is concerned.29 In the English Court of Appeal, Lord Justice Laws took the view that there is a set of particularly important statutes, including the Scotland Act 1998, that he termed “constitutional statutes.” These, he suggested, cannot be repealed simply by a later, inconsistent act of the Westminster Parliament. Instead the amendment of these statutes would require the express intention of the United Kingdom Parliament. This does not mean that a challenge to Westminster’s express intention to amend or abolish the Scotland Act, even if such an act went expressly against the will of the Scottish Parliament, would be upheld by either Scottish or English courts.
The impetus for the development of this doctrine has primarily been the United Kingdom’s relationship with the EU, but there is also a sense that devolution is also affecting the attitude of the courts to the constitution of the United Kingdom.
This was more apparent in Jackson. In this case, which involved the ban on fox hunting in England, it seems that among certain House of Lords30 judges there was a sense that the traditional doctrine of parliamentary sovereignty may be weakening in the face of various challenges, including devolution to Scotland.31 In Jackson Lord Steyn commented: “We do not in the United Kingdom have an uncontrolled constitution … The settlement contained in the Scotland Act 1998… points to a divided sovereignty… The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom.”32 Equally radically, Lord Hope, formerly Lord President of the Court of Session and now the more senior Scots judge on the Appellate Committee, argued: “Our constitution is dominated by the sovereignty of Parliament. But Parliamentary sovereignty is no longer, if it ever was, absolute… It is no longer right to say that its freedom to legislate admits of no qualification whatever. Step by step, gradually but surely, the English principle of the absolute legislative sovereignty of Parliament which Dicey derived from Coke and Blackstone is being qualified.”33While it is important to note that these sentiments were expressed obiter dicta and were not expressly shared by a majority of judges in the case, they do represent significant cracks in what has traditionally been a monolithic acceptance by senior judges of Westminster’s untrammelled legislative power. It is also significant that Lord Steyn’s reference to divided sovereignty in respect of the Scotland Act came in a case that did not even involve devolution. It is also not inconceivable that in time the common law courts of England and Scotland may in the future declare the doctrine of parliamentary supremacy to be significantly modified, and as such we may even see a divergence between Scots and English courts on this issue given that each have jurisdiction to consider devolution issues arising from the Scotland Act.
As Lord Steyn also argued in the context of the English common law:the supremacy of Parliament… is a construct of the common law. The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism. In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish.34
It may also be that the courts are becoming aware in the context of the devolution settlement encapsulated in the Scotland Act, a settlement that most Scots consider should not be subjected to fundamental change or repeal without the consent of the Scottish Parliament or the Scottish people expressed in a referendum, that adherence by way of a narrow conception of legalism to an out-moded vision of an absolutely supreme Parliament in Westminster in the face of constitutionally unacceptable behaviour by that Parliament would be to cut the constitution off from the political legitimacy upon which it depends. As Lord Hope observed in Jackson: “Parliamentary sovereignty is an empty principle if legislation is passed which is so absurd or so unacceptable that the populace at large refuses to recognise it as law.”35 It is in this context that we must ask whether the devolution settlement, having transformed the Union in a way unprecedented since 1707, now offers the prospect of a revived Scottish constitutional tradition that might in time challenge the absolute nature of Westminster’s self-ascribed supremacy.
Given dicta such as that of Laws LJ to the effect that the devolution statutes are “constitutional statutes” and the dicta in Jackson, it seems that we can see the Scotland Act, in practice if not yet by formal legality, as unrepealable unless the clear will of the Scottish people supported repeal.
This is not the division of sovereignty of a federal system but it shows how devolution acts perhaps as something of a Trojan horse in weakening parliamentary sovereignty in other areas too. We see this doctrine undermined in terms of the United Kingdom’s membership of the EU.36 But we also see the potential for change appearing through the Human Rights Act.37 In other words, a series of constitutional cracks can come together to create a larger fissure that undermines the traditional authority of Westminster. This has the potential to become the most stark example of how a devolved territory can use existing powers and the historical legacy of a distinct juridical identity to push for further constitutional space to an extent that the narrative of undivided sovereignty becomes less and less sustainable as an explanation for the nature of divided powers in such a heavily decentralized state.