Holyrood Parliament

When the UKSC was created, there was great emphasis by the architects of the Court that it would largely assume the same constitutional position and functions as the Appellate Committee of the House of Lords. For example, in the course of shepherding the Constitutional Reform Act through Parliament, Lord Falconer insisted that:

As to whether we envisage the Supreme Court having the power to give advisory opinions, no, we do not. Our legal system has never operated on the basis that hypothetical questions are put to courts. We should not see the courts as having an advisory function; they are bodies which resolve disputes between people […] Nor do I believe it would be a particularly good idea for the Government to be able to refer issues to the courts for advisory opinions.

Of course this characterisation of the contemporary judicial function was a misnomer then, and if anything, time has proven that the UKSC is a different type of constitutional entity to the institution which preceded it. From the beginning, the transfer of matters arising from the devolution settlements from the Judicial Committee of the Privy Council to the Court meant that the final appellate jurisdiction of this country was altered in constitutionally significant ways which are perhaps coming to the fore now. The UKSC recently concluded hearings on a reference by the Attorney General and Advocate General for Scotland on the compatibility of the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill with the scheme of devolution to Scotland in the Scotland Act 1998.

Thus the exigencies of Brexit have ignited what has rather been a dormant, but constitutionally sensitive part of the UKSC’s jurisdiction. As noted in an earlier post on this blog in anticipation of these very proceedings, this is the first time a bill of the Holyrood Parliament has been referred for judicial scrutiny through the mode laid down in s 33 of the Scotland Act. Despite this jurisdiction being previously invoked in respect of two Bills of the Welsh Assembly, the combination of the proceedings’ intrusion into the legislative process and the detachment from ‘a dispute between parties’, appear to militate against the traditional instincts about the judicial function emphasised by Lord Falconer before the House of Lords in 2004. However, this post argues that this aspect of the …read more

Source:: from ukconstitutionallaw.org

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