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Lady Hale address surveys the devolution scene

15 June 2018

Devolution of legislative as opposed to executive power has turned the UK Supreme Court into a genuinely constitutional court, the court’s President, Lady Hale, said in an address in Edinburgh last night.

Speaking to a packed public meeting of the Scottish Public Law Group, Lady Hale said that was about the only conclusion she could draw relating to the theme of her talk: “Devolution in the Supreme Court – 20 years on”. However in answer to a question from the floor, she did not believe that the court now decided cases differently from the days of the House of Lords.

Ranging over all the UK’s devolution settlements, Lady Hale pointed out their common features, and differences, and their relationship with the UK Parliament – noting that the latter remains supreme and, notwithstanding the Sewel convention as now expressed in statute, able to legislate even without the consent of the devolved legislature. Noting the potential for dispute in relation to the law on abortion in Northern Ireland, on which the court ruled this month, she added: “Fortunately it is not likely to be the Supreme Court that sorts it out!”

The President examined the different ways by which the validity of an Act might be challenged – by reference to the court in advance of Royal Assent, which had the advantage that no one had yet acquired rights that might then be lost, but meant the court had to try and envisage all the circumstances in which the Act might apply; or by later litigation by an affected person or body, which meant the court could look at “specific facts with real people”, but issues might arise as to how a ruling could be applied, as with the Salvesen v Riddell agricultural holdings case.

She noted that only in one Welsh case had it been found that an Act was not law because it dealt with a reserved matter – as opposed to conflicting with European human rights law – suggesting as possible reasons that better established channels for discussion of legislation might exist between Scotland and London, and that the Scotland Act was more precisely drafted in relation to reserved matters.

Answering questions, Lady Hale declined to comment on the “political” issue of whether the lack of a guarantee in relation to the powers of the Scottish Parliament meant that devolution could not be a long term scheme; and in response to an observation that it seemed “counter intuitive” to say that the enactment of the Sewel convention had no effect in law, replied that the terms of the Act made it difficult to hold that the UK Government could be held bound by it.

To a final question asking for advice for a girl at high school thinking of studying law, she replied “Go for it, girl!” She suggested you had to like the law to want to study it, and you find out about legal ways of thinking and consider whether it was for you – “and work very hard”. But “Subject to both of those, don’t let the bastards grind you down!"


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