Devolution is one of the most noteworthy features of the British constitution as it stands today. It has radically modified the relationships between the constituent nations of the United Kingdom, and the central government at Westminster. Part of this settlement involved an enhanced role for the apex court in constitutional adjudication. Whether or not this enhanced legal constitutionalism in the UK is a constitutional improvement is, however, is uncertain. We will consider devolution’s basis in British constitutional law and practice. We must consider what precisely is meant by ‘legal constitutionalism’. It is not an unqualified good, but nonetheless useful and reformable in the context of the British constitution. We will suggest here that codifying some of the later jurisprudence of the court will be beneficial in clarifying, and fixing the Supreme Court’s role as regards the devolved polities. During our discussion, we will deal with certain fundamental principles of the British constitution, including, of course, Parliament’s sovereignty and the separation of powers, but also the less discussed but no less important principle of institutional comity.
- The Meaning of Legal Constitutionalism vis-à-vis the Devolution Statutes
Under the Devolution Statutes, the Supreme Court may perform abstract review on devolved Bills, upon reference by the prescribed officials, subject to time constraints, to determine if their provisions are ultra vires (preventative review).[1] The courts of each relevant jurisdiction perform concrete review on Acts of the devolved legislatures on application by a private person, which is not subject to any time limitations.[2] Furthermore, the Supreme Court itself, when adjudicating a devolution matter, is not treated as a court of the particular part of the United Kingdom which it is dealing with.[3] Therefore, in devolution matters, the Supreme Court is placed in a unique position as the Court of the Union itself.[4]
What are the implications of this? First, that the case-law on devolved matters is Union-level case-law. As such “a single body of case law” on devolution across the sub-state polities exists,[5] an implication readily inferable from the legal classification of devolved case-law under s. 41(2) of the Constitutional Reform Act 2005. Second, however, each Statute is distinct and concerns a specific part of the Kingdom,[6] and thus a different context. Thus, case-law on one Statute may be relevant a similar provision in another Statute. However, the Court must be cognizant of the differing contexts and beware of treating similar provisions as having precisely the same effect, as held in Byelaws (Wales) Bill.[7] Thus described, legal constitutionalism here is the increased supervision of the judiciary over the territorial constitution as Statutorily defined and as such is beneficial, for the proper administration of the devolved institutions by law.
This is within the wider context of legal constitutionalism, as the constituting of the political State as one governed by laws and not men, if we may borrow an American expression.[8] For indeed, legal constitutionalism, and not the constitution being primarily determined by politics and conventions is the fundamental principle of the constitution since the Glorious Revolution sought to do away with “Arbitrary Power” itself inimical to the ancient liberties of the nation.[9] Thus, law gives the constitution its fundamental framework, albeit with a larger space than elsewhere for politics to do its work. “To be free,” Lord Mansfield declared, “is to live under a government by law”.[10] The late Queen thus recognised that the post-1689 settlement has at its centre the principle of freedom under the law.[11] Thus, the rule of law and legality, alongside the positive enactment of laws, taking precedence over practical political actions and their settlements of mere convenience. This should not, of course, let the rule of law become a cheap veil to cover archaism,[12] but it should not be roughly discarded either, because without law there is no free constitution but rather arbitrary whim.[13] These values of legal constitutionalism are fundamental to the Court’s jurisprudence, even as it recognizes and accounts for the value of political arrangements, as our discussion of the case-law will show. As a fact of both the political and legal aspects of the constitution, it is the legal structure of the constitution which is of basic importance.
We would not perhaps be remiss in accounting for an observation of Sir Winston Churchill upon the US Constitution.[14] Sir Winston, after tracing the broad structure of the Republic’s legislative and executive branches says that standing at the “summit of the constitutional edifice” is the Supreme Court with power of judicial review over all legislation made under the Constitution.[15] This is not the place to dispel misnomers in British minds regarding the unique role of the Supreme Court in the American system, which has been done quite ably by others.[16] However, the position that because it is the province of the judicial department to pronounce on the law, and the written Constitution being such a written legal instrument, the Supreme Court has the final say in its interpretation,[17] has an analogue in the British context as regards its power of review.
Concrete review, and abstract review of constitutional instruments (a term itself to be discussed later) originates in States with written constitutions providing for constitutional review.[18] Polities thus constituted have a judicial body with jurisdiction to rule on matters concerning the constitution, including rights of citizens, and competence of legal officials. The similarities between such polities and the review mechanisms, particularly the UK Supreme Court’s place in the territorial constitution, are readily apparent. The Supreme Court itself, in a dictum of Lord Hope, has described its activity here as of a “fundamental constitutional nature”.[19] Thus, considering its subject matter and mode of review, Lady Hale and Lord Reed have at different times extrajudicially called the Court the UK’s “constitutional court”.[20] This label is misleading, for two reasons. First, the politically-exercised constitutional principle of Parliamentary Sovereignty is the basis of all the Supreme Court’s authority and, being unlimited, this jurisdiction may be removed or modified by ordinary legislation.[21] Second, there is no ‘constitution’ in the Miller (I) sense of “a single coherent code of fundamental law which prevails over all other sources of law”[22] under which the Supreme Court may review all legislation and acts of the State on constitutionality grounds. Instead, the fundamental constitution of the United Kingdom is formed by, what sometimes seems to be a confusing cacophony of common law rules, unwritten customs both political and legal, and statutory provisions.[23]
The Devolution Statutes bear some similarity to written constitutions, and the institutions they provide for are governed in some respects as if they were under a written constitution (points to be further developed later, herein), but their ultimate authority is derived from Parliament. And Parliament has only external and internal constraints of a political and social, and not a legal, character.[24] One cannot characterise the judicial power in the UK as standing at the lonely summit of constitutional interpretation, [25] even regarding devolution matters, in any meaningful way. For one, the judges do not generally judge the validity of the Union Parliament’s enactments,[26] but, indeed, their entire legal authority is derived from its will to constitute the judicial power. The Supreme Court stands at the top of the judicial ladder, but as, at least in the formal law of the constitution, inferior to the legislature sitting at Westminster. Thus, considering the peculiar nature of the British constitution, it is more accurate to analytically describe the Supreme Court’s function as “quasi-constitutional” as distinguished from courts with similar but greater, and differently grounded, constitutional jurisdiction in other States.[27] These distinctions help to understand and to properly evaluate the legal constitutional procedure in the territorial constitution.
- The Devolution Statutes, as Interpreted Judicially
We shall view the cases considering the unified approach to adjudicating devolution matters which Parliament sought to establish,[28] and how it has been actuated in the quasi-constitutional review of the apex court.
Robinson[29]presents us with a remarkable instance of the House of Lords’ (before 2009, the apex court) broad, purposive,[30] and contextual[31] interpretation of the Devolution Statutes. There, the Northern Ireland Act 1998 was treated as “in effect a constitution”.[32] This meant that despite the Act’s merely formal sense being adverse to the appellant’s case, the appeal was allowed and new elections were not held to, in part, allow the Secretary of State to act as guardian of the polity’s constitution.[33] The approach here relies heavily on purposive construction in a manner analogous to interpretation of the United States’ Constitution, as Lord Hoffmann admitted and held permissible because the long title of the Act referenced its purpose as implementing the Belfast Agreement.[34] Thus, the words of the Act themselves were supplemented by the Agreement “just as much” as, e.g., the Convention Debates or The Federalist papers inform interpretation of the American Constitution.[35] The characterisation of the Act as a constitution allowed the majority to consider such (for the British, at least) quintessentially non-judicial matters as the political Agreement and historical background which would otherwise be impermissible for the judiciary to consider.[36] The fact that other case-law on devolution matters on all the Acts, even the very Act Robinson dealt with,[37] while not overruling Robinson, restricts and reins back its reasoning is instructive. Before further pursuing this point, we should observe two things. First, developing Dame Sioban Keegan and Tomkins view, we would rightly suppose Robinson to mark the point of greatest purposiveness and, so to speak, broadly ‘constitutional’, and not traditional statutory, interpretation in devolution jurisprudence.[38] Second, if for pragmatic political and precedent reasons, as the decision is not overruled despite developments, it is best as seeing it solely restricted to its narrow factual matrix.[39]
Having mentioned the judiciary’s pragmatism and purposiveness in relation to Robinson, a further discussion of these points can only be profitably had by considering the AXA case.[40] This will allow a more developed discussion of the later change in approach. In the Court of Session, Inner House (Scotland’s appellate court), Lord Reed stated that the United Kingdom is not a ‘‘juristocracy” where the judges ultimately control the validity of the Union Parliament’s enactments.[41] In this scheme of a Sovereign Parliament, the devolved Parliaments are given the power to enact a sort of sui generis primary legislation.[42] The “constitutional statute” descriptor was material in rendering review of legislation made under it immune from ordinary common law grounds and grounds of lawful competence under the Act.[43] It is, substantively significant here, unlike in Imperial Tobacco,[44] where the court subtly reversed its position. Certainly, it is not a point that is greatly developed in the AXA case, but its position at the head of his Lordship’s discussion of the nature of devolved legislation[45] invites the inference that it is the conceptual bedrock of his legal discussion. Considering that Lord Hope in the Supreme Court treated the Scottish Parliament as self-standing, in terms of being legitimated by its democratic basis,[46] it is submitted, for the purposes of conceptual analysis, that his reasoning there may be implicitly informed by a broad view of constitutional statutes similar to Lord Reed. Indeed, Lord Hope substantially agrees with Lord Reed’s judgement on all material points, including those analysing the character of the Scottish Parliament, in his own judgement.[47]
At the Supreme Court, on the vires of the Scottish Parliament to make a devolved Act, it was argued, first, that it was apparently against the Claimant’s European Convention rights, and second, was apparently in violation of common law standards of reasonableness.[48] As to the first, the Court exercised its rights-review jurisdiction[49] to apply Convention rights to hold that though there was an interference with Convention property rights, it was proportionate as pursuing a legitimate aim.[50] This certainly reflects the Supreme Court’s quasi-constitutional jurisdiction mirroring the way many other polities, in their constitutions, require the judiciary to protect fundamental rights.[51] Its position in the constitution regarding the Sovereign Union Parliament and the devolved Parliaments must be considered.
The majority’s reasoning as to the second assists us to determine the Court’s self-understanding apropos the devolved institutions, complementing its interpretation of Statutory protection of rights regarding Scottish legislative competence. Lord Hope gives a purposive interpretation to that Parliament’s legislative competence as best placed to make policy determinations.[52] Taking his cues from the formal arrangements for that Parliament,[53] he infers the constitutional status of the devolved Parliament as grounded in its nature as a “self-standing democratically elected legislature”.[54] As a matter of formal interpretation, the “self-standing” characterisation is disputable since the legal authority of the devolved Parliament is delegated by the Sovereign Parliament and so it may as well be argued that the Scottish Parliament stands on the authority of Westminster as its agent.[55] In fact, the appellants sought to argue on similar grounds.[56] Nevertheless, we submit, they failed as Lord Hope broadly interprets Parliamentary intent in the Statute’s formal arrangements as establishing a subordinate legislature analogous in the basis of its constitutional legitimacy, and not bare-boned legality, to the Sovereign Parliament: hence, “self-standing”.[57] Thus, whilst the legislation treats the devolved Parliament as its delegate, the democratic principle gives a constitutional legitimacy to the statutorily erected legislature greater than a mere unelected quango set up in some dusty, obscure Act might enjoy. Tomkins is therefore mistaken in stating that Lord Hope gave no reasoning (though he did obscurely) for his position, and the case itself is the seminal authority for the proposition.[58] Lord Reed seems to draw similar analogies in his reasoning.[59] Lord Hope held that there could not be no common law review on irrationality, unreasonableness, and arbitrariness,[60] but on rule of law grounds.[61] Drawing on Jackson,[62]the Court drew up this ground by analogising the Scottish Parliament to aspects of the Sovereign Parliament’s constitutional position as described obiter dicta in that case.[63] This discussion of the Scottish Parliament’s basis for authority and legitimacy is equally applicable to the other devolved Parliament’s as their “essential nature […] is the same”.[64]
Here, we come to a key underlying point of principle permeating the Court’s approach to devolution. That is, the principle of institutional comity between the three distinct branches of the State within the same polity.[65] Comity requires that an authority act with respect (‘deference’) to the legitimate authority of another authority.[66] It is thus a necessary part of the Rule of Law with each distinct branch of the State recognising, upholding, and not infringing upon, the lawful authority of the other.[67] Lord Hope’s remarks in AXA support this.[68] There he notes that the determination of competence engages the two core constitutional factors the delimitation of judiciary-legislative competence, and the role of substantive rule of law considerations in determining that.[69] He considers the democratic mandate of legislators making them “best placed” to make legislative policy judgements, which are then not able to be struck down on ordinary common law grounds.[70] Comity considerations, particularly regarding the Northern Irish Administration and the British Secretary of State also informed Lord Bingham’s reasoning in Robinson.[71]Indeed, the statutory construction was supported by the consideration that the formation of the executive required a political, not judicial, solution as an “essentially political problem”.[72] Further, the Secretary of State had discretion as the person in the executive charged with supervising the political problem’s resolution, to wait for a political resolution instead of being forced to frustrate the Statute’s objective by formalistically, almost mechanically, requiring elections to be held “forthwith”.[73] In these two cases, then, emblematic of the apex court’s approach in the first era of devolution, we see underlying it important constitutional, and interpretive consideration. That is, a purposive approach to Statute, and allowing the devolved institutions to act freely so as to work. This is comity between the Supreme Court and the devolved institutions. The later period (especially under the Reed Presidency)[74] of the Court’s jurisprudence sees a shift from this.
It is notable that in AXA Lord Hope acknowledges but refuses to resolve the apparent conundrum between the Rule of Law and the sovereignty of the Union Parliament.[75] Lord Reed in that case, despite acknowledging that fundamental constitutional rule, no where questions it.[76] Notably however, there is a manifest convergence between the approach of the majority in Robinson and that of Lord Reed (sitting on the case ad hoc)in AXA.[77]He cites approvingly of Lord Bingham’s statement that NIA 1998’s provisions ought to be interpreted “bearing in mind the values which the constitutional provisions are intended to embody”.[78] Indeed he says Lord Bingham’s statement is “equally true” of the Scotland Act 1998, which is an important contrast to his later reputation for formalism.[79] These constitute the limitations and the interpretive slant to devolved Acts under the principle of legality, alongside the s. 29 restrictions, to the devolved Parliament which has plenary powers.[80] From the foregoing analysis, the preferred approach of the apex jurisdiction concerning the Devolution Acts had, at least until AXA been an expansively purposive one. We saw that this purposive approach, had, in its doctrinal subtext, important rule of law considerations of institutional comity. This approach does bear similarities to other jurisdictions with legal constitutions, as distinct from the British political constitution. It is quite striking how the Court’s high threshold for quasi-constitutional review mirrors jurisdictions with entrenched constitutional review. For example, American Federal Courts possess jurisdiction to nullify Acts of Congress, not because they are unwise, but unlawful as violating the “superstatute” of the US Constitution.[81] Similarly, modified to the UK context where constitutional statutes exist in an essentially unwritten constitution, both Lords Hope and Reed’s approaches set a high threshold for review, essentially restricting it to violating the express limitations of the Statute establishing the legislature, alongside on rule of law/legality principles. Moreover, these latter are extremely difficult to successfully argue.[82] Arguably, this sort of legal constitutionalism in devolution is beneficial. Beneficial, that is, by balancing the plenary, electorally legitimized authority of the legislature and the substantive legality and rule of law considerations necessary for good governance that the judiciary have the legitimate duty to conserve.[83] It remains to be seen what form comity considerations had in the later jurisprudence, and the extent to which formalism became predominant.
The major points for us from Imperial Tobacco[84] are Lord Hope’s norms in paragraphs 13 to 15. for interpreting devolution matters in the Devolution Statutes, there the Scotland Act 1998. This case marks for us the beginning of the second phase of devolution jurisprudence. First, it is the Statute that is the ultimate basis of devolved competence and thus the Statute itself is the guide to what competence is given, and not any federal constitutional schemes in foreign States that the draftsman may have consulted.[85] Second, the ordinary rules of Statutory interpretation apply, with the ordinary meaning of words to be preferred for legal certainty, both to give effect to the Sovereign Parliament’s intention to institute a “coherent, stable and workable” devolved scheme.[86] Third, the descriptor of a Statute as “constitutional” has no substantive role in legislative interpretation.[87] Applying these considerations, his Lordship notes that the Act intended to allow the devolved Parliament to legislate “effectively” within its nevertheless “carefully defined” competences.[88] To that end, in s. 29 it provided a mechanism for resolving competence disputes.[89] Davies observes that Imperial Tobacco shows a Court willing to widely interpret legislative competence.[90] While this may be true, it is of secondary importance because it is not a matter of fundamental principle. Of primary importance are Lord Hope’s triad of considerations. These, in enumerating ordinary principles of statutory interpretation prevent the application of the wider interpretive principle in Robinson without expressly stating so.[91] Thus, this effectively restricts Robinson to the facts of its case and to Northern Ireland. This then prepares the way for Lord Neuberger’s statement in Byelaws (Wales) that though the provisions of the Devolution Statutes may be similar, the Court ought to account for the differing legislative intent between the provisions for each distinct sub-state polity.
If we see Robinson and AXA in the same general trend of interpreting the Statutes expansively and in a similar fashion to written constitutions, Imperial Tobacco certainly marks a turn to a different mode of reasoning. Accepting this, we may still posit sound reasons to consider that the change is, despite being a change in fundamental premises, a constitutionally consistent one. First, we may consider it as a question of precedent. In Martin Lord Hope had stated that it is an analysis of the statutory provisions, which have their “own dictionary” in the Statute, that determines their meanings.[92] Indeed, this was developed and more fully stated in Imperial Tobacco, and upheld in Christian Institute.[93] It is supported by the principle of Parliamentary Sovereignty part of which, traditionally, is that the Court’s role is “confined” to statutory interpretation and application in a narrow sense.[94] to As such it is good law, and the position of the law as it stands.Next, this position reflects the position of the devolved legislatures as existing because of, and as not limiting, the sovereign authority of Parliament in Westminster, as Lord Walker recognised.[95] As such, it, as Tomkins has argued,[96] comports comfortably with the orthodox principles of the constitution with the Sovereign Parliament at its “bedrock”.[97] Indeed, purposiveness in the Robinson mould applied to devolution jurisprudence writ large would sit uncomfortably with that principle,[98] not least because the Statutes did not institute a federal model. Lady Hale’s extra-curial comments on the United Kingdom being a federal state with constitutional review are best understood as intemperate hyperbole considering the case-law, let alone the Statutes, do not establish this.[99] The Court’s understanding of review here balances two comity considerations, one, that of the Sovereign Parliament as the ultimate legislative body in the Union,[100] and two, following AXA that of the legitimate authority of a devolved legislature qua legislature.[101] Thus alongside comity, the delicate principle of subsidiary is maintained, recognizing the lawful authority of both the senior and junior legislative authorities. These considerations fit well with the theoretical consideration that the Scottish Parliament was not established by Parliament acting as a constituent assembly fundamentally altering the basic rules of the constitution but only adding to them in exercise of its ordinary constitutional authority.[102]
The Byelaws (Wales) Bill Reference,[103] illustrates this change alongside the Asbestos (Diseases) Wales Bill Reference.[104] In Byelaws a few points of general importance for devolution were made. Beyond those we have already discussed elsewhere, it is useful to note Lord Hope’s restatement of what he said in Imperial Tobacco. Namely, that the constitutional significance of a Statute is not itself a guide to its interpretation, but rather the ordinary rules of statutory interpretation.[105] It is material that he said there that the rule did not exclude the use of the constitutional purpose of the Statute where “help is needed” to determine the meaning of words.[106] Notwithstanding the suggestion above about Lord Hope’s implicit conceptual basis for his decision in AXA, it seems that, for the sake of a harmonised view of the case-law, that the Byelaws constitutional “purpose’’ reasoning may be applied as the correct basis for the restricted ability to use common-law grounds of judicial review against devolved legislation.[107] This sits well with his Lordship’s use of constitutional comity considerations between judiciary and legislature, as above discussed.[108] Lord Thomas’s minority view in Asbestos that the devolved legislatures should be treated, in terms of the value of their judgements, equally to the Union Parliament may seem to be supported by the AXA case-law.[109] Lord Mance, for the majority, held that the significant changes to tort and third party liability for breach of statutory duty had only a loose connection to the management and financing of NHS Wales.[110] Indeed, he made no mention of Lord Hope’s deference to the legislature’s position as being best placed to make decisions as those in the Asbestos Reference.[111] Here we see plainly the change in comity considerations much favouring more rigid adherence to Statute, following though not required by Imperial Tobacco, which here seems to be a mistake.[112] That is inasmuch as, as we have indicated before, comity works in two directions. It operates towards the devolved legislatures, according their judgments weight, but also towards the Sovereign Parliament whose ultimate and overriding (“uncontrolled”)[113] judgement retains finality, notwithstanding the unorthodox obiter dicta in Jackson.[114] It is a matter of the political constitution, and not the judiciary, to determine, e.g., when future legislative initiative is taken in Westminster affecting the devolved polities, how comity is to be exercised as the Court has said regarding the Sewel Convention in R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 [146]. Similarly, it was the duty of the legislative branch in exercise of its political judgment in drafting the Statutes to consider the right balance in the grant of legislative competence,[115] which, as a matter of comity, the judiciary is bound to accept.
It remains to be seen what the developments under Lord Reed’s presidency entail for the Supreme Court’s position apropos legal constitutionalism following this.
Here, two cases are of note, the Incorporation Reference[116] and Independence Reference.[117] For our purposes the point of interest in Incorporation Reference is the Court’s ruling that the Scottish Parliament lacked competence to authorise the Scottish courts to issue incompatibility declarators.[118] These would be made by the courts regarding UK Parliament legislation’s compatibility with the UN Convention on the Rights of the Child which the Scottish Parliament had vires to repeal or amend.[119] Regarding these provisions, the Court also had a duty to interpret the provisions so far as possible to conform to the Convention.[120] The development of the doctrine of Parliamentary sovereignty, and its relation to the Court’s review jurisdiction, in that case is notable. The Court first asserted that a provision which required the judiciary to modify the “meaning and effect” of Parliamentary legislation would “plainly impose a qualification” upon the sovereign legislative power of Parliament.[121] This qualification is best understood as a qualification in the extent to which Parliament can impose its legislative intent upon those to whom the legislation is addressed, uncontrolled and without outside interference, as the Scottish legislation plainly would. Next it rejected the argument that because the devolved Parliament could amend or repeal certain Parliamentary legislation, a fortiori it followed that it could do so in the lesser matter of authorising another body to merely alter the “meaning and effect” of that legislation.[122] Further, it considered – quoting Lord Nicholls – that the equivalent provision in the Human Rights Act was “of an unusual and far-reaching character”, and thus was an imposition on the Sovereign Parliament’s power that Parliament alone could authorise.[123] This implicitly draws a distinction between the formal authority of Parliament, and the real political exercise of power which exists within the formal concept. In essence, at its very heart, the issue was the Bill violated s.28(7) of the Scotland Act clarifying the retention of plenary authority of the Sovereign Parliament over Scotland.
It is insufficient to say that s.28(7) was merely stating “the obvious” and that it is legally pathological to give it the Court’s interpretation.[124] In fact, AXA at [45] notes s. 28(7) but, it is submitted, notices the convention that “in practice” the Scottish and British Parliaments had the same law-making power except as limited expressly in s.29. So, it follows, that the Scottish Parliament has de facto absolute authority in areas of its competence, and therefore is, in the way we stated before, analogous to the Union Parliament. However, this is not the same as stating that s. 28(7) had only a conventional existence. Further it is hopeless to argue that Lord Hope’s statements in Hansard that s. 28(7) merely stated the then-existing position of the UK Parliament to legislate, first because the high threshold of Pepper v Hart to invoke legislative history is not met.[125] Next, because the s. 28(7) itself re-states the legislative authority of Parliament, and Imperial Tobacco at [13] recognises the “continuing” sovereignty of Parliament rendering an argument that s. 28(7) is legally obscure is of little force. Further, since the sovereignty of Parliament, as a matter of the basic constitutional structure of the United Kingdom, intrinsically touches the indeterminate line between law and high politics at that level.[126] Thus, the Court in Incorporation Reference was right to not rigidly consider only formal authority but also the practical power of Parliament in context because the former is rendered nugatory, indeed frustrated as a legal principle, if the latter is not given effect. Thus, it can be laid down as a legal, and manageable, rule[127] if the “practical reality” of exercising power noticed in s. 28(7) is considered as a necessary condition of its effectual formal exercise.[128]
That said, even should the preceding doctrinal analysis be conceded, the provisions at hand may be considered unreasonably excluded based on the Lord Advocate’s a fortiori argument outlined above. However, the doctrine from Imperial Tobacco both in the Court of Session and at the Supreme Court would exclude this. In the former court, for our purposes it is material that Lord Reed noted that the “Scotland Act is not a constitution, but an Act of Parliament”.[129] Thus, its “dense and detailed” provisions exclude a liberal interpretation.[130] Indeed, its flexibility of amendment is a reason for denying that it intended the sort of flexible interpretation the Lord Advocate advanced.[131] Furthermore, Incorporation Reference usefully clarifies the institutional hierarchy of the UK constitution, with Parliament at its apex, which even AXA implicitly recognised in its consideration of s. 28(7) as stated above. Thus, it is submitted that the Court sees itself as articulating constitutional principle at a Union-level.[132] In any event the principle of Parliamentary sovereignty apropos Scotland as enunciated by Lord Reed is not dependant on s. 28(7), because it underlies the devolved legislature’s authority in any case, and can thus be similarly invoked whether or not s. 28(7) exists. The underlying issue here is not one of the mere formal effect of the devolution legislation, but the very relationship between the judiciary, the Sovereign Parliament, and the devolved Parliaments in respect of fundamental legal constitutional principle.
However, the Independence Reference and a discussion of the Sewel Convention are useful to develop this argument, and to tie up our argument on legal constitutionalism and the principles underlying it in the British constitution. In the Independence Reference for us it is material that the Court continues its broad approach developed in the Incorporation Reference. Thus, in determining if an independence referendum reference “relates to” the reserved matter of the Union “in all the circumstances”, the Court cites Imperial Tobacco and the Agriculture (Wales) Bill to state that the “legal and practical” effects of the devolved legislative act were to be considered.[133] Indeed, since it concerns the sovereignty of the Union-wide Parliament over Scotland, it also has a more than “loose or consequential” connection to that matter.[134] It is interesting to note the use of the Welsh Agriculture case here, reinforcing the Court’s task in forging a Union-wide constitutional jurisprudence. More importantly, in recognising the constitutional position of referenda in the United Kingdom, it marks a development from Miller (I) in considering their practical political-constitutional effects,[135] which in turn use the law to effect certain political ends.[136] The development here is a continuation of that beginning in Incorporation Reference: to account for political circumstances in relation to the Union Parliament’s exercise of its sovereign power. It is submitted that the use of political context in the context of a legal rule’s application here does not convert constitutional adjudication into “political prognostication or preference aggregation”.[137] Instead, it is – to quote Lord Neuberger – “political (with a small ”p”)”.[138] Thus it is that the Court here attempts to balance the principles of subsidiarity, Parliamentary sovereignty, and how they affect institutional comity in the enhanced legal constitutionalism devolution has provided for. While the Court recognises that devolution was instituted to promote “subsidiarity”, it also recognises that the Sovereign Parliament has the final constitutional mandate.[139] Is this inconsistent with subsidiarity, requiring power’s exercise at the lowest possible level, as Petkar suggests?[140] No, because the Union Parliament, as instituted by the Acts and Treaty of Union, represents all parties to the Union, and as affecting them all, is suitably constitutionally placed to have the ultimate constitutional mandate.[141] Nevertheless, democratic referenda cannot be ignored constitutionally, and have a degree of finality.[142] That there is a tension here, because the mutual interplay between both principles is partially theorised, is accepted.[143] However, the solution to this is a principled reform of the devolution settlement.[144]
The role of the judiciary as the legal guardian of the principles of the political constitution is seen in Miller (I) on the Sewel Convention.[145] It has declined to enforce the Convention because, first, the Devolution Statutes expressly recognise the continuing sovereignty of the British Parliament.[146] Next, the statutory wording of the Convention (“it is recognised” and “will not normally”) indicates mere recognition, and not a formally enforceable rule.[147] At any rate, the word “normally” is inchoate and indicates a level of discretion not determinable by the Courts, for what is meant by “normal” if not changeable political practice?[148] Even so, as Elliott posits, the extraordinary circumstances of the vast constitutional changes occasioned by Brexit can hardly be characterised as a “normal” legislative environment.[149] We see, however, in the refusal to enforce the Sewel Convention the Court’s close adherence to the will of the Sovereign Parliament expressed in its enactments.[150] We see also the operation of a hierarchy of institutions, with the devolved Parliaments legally subordinated to the Sovereign Parliament, which the devolution legislation itself stipulate. In adhering to the words of Statute, the Court thus expresses the operation of comity towards the constitution-forging authority of Parliament as the ultimate democratic body of the Union.
It is evident that there is no judicially mandated solution for the issues raised by the Sewel Convention, or a new independence referendum. Indeed, the jurisprudence following Imperial Tobacco would expressly forbid the wide purposive interpretation of previous case law, as noted. Indeed, the previous case-law risked taking somewhat of a purposive “living instrument” turn, in the style, perhaps, of Lord Hoffmann’s Commonwealth constitutional jurisprudence.[151] Lords Reed and Brodie acknowledged this in rejecting a Commonwealth-style approach to devolution, and restricting the effect of Robinson, in the Court of Session.[152] We have mentioned above the greater soundness of the post-Imperial Tobacco jurisprudence. However, the change necessarily generates uncertainty. Thus, it may be beneficial for Parliament to codify the principles of interpretation, and the Court’s more recent approach to Parliamentary Sovereignty apropos devolution, in a separate Statute applying to all devolved nations. This would comport well with the existing Union-wide devolution jurisdiction of the Court. It would also satisfy Lord Neuberger’s desire for a “clearer and more principled” settlement, at least in terms of the legal constitutional position of the Court[153] For, the discrepancies in the two periods of devolution jurisprudence are not at all conducive to certainty, but indicate, contrary to Parliament’s intention, incoherence and relative instability over time in the Court’s own interpretation of the Devolution Statutes.[154] Thus, in Tomkins colourful phrase, the present case-law shows “confusion and retreat”.[155] It is best if this is resolved by Statutory intervention, now that the post-Imperial Tobacco position is normative. For indeed, there has been confusion and retreat, but now the lines are basically fixed. To finalise them in Statute is the next logical step to give a more permanent, and therefore clearer, basis to the principled approach of the Court post-Imperial Tobacco.
In sum, devolution has enhanced legal constitutionalism through concrete and abstract quasi-constitutional review. The Devolution Statutes and the relation of the Courts thereto has experienced a significant interpretive change, even regarding the interplay of fundamental principles of the sovereignty of Parliament, the comity and the separation of powers, since their enaction. Nevertheless, the Court’s legal constitutional role here is fundamentally important and beneficial to the operation of the Statutes. It has, indeed, despite a shifting and uncertain approach in the past, developed now, at least regarding its own approach to the Statutes, a principled way of reading them. That is to say, it has developed an approach which upholds the normative status of the Devolution Statutes as statutes, and places their interpretation in the proper context of the constitutional principles in which they operate. It is submitted, that the latter developments have been more consistent with basic constitutional rules, and for the sake of certainty, coherence and workability they should be codified in Statute. This is particularly true of the Imperial Tobacco rules of interpreting the Devolution Statutes, which provide the only coherent way, in the British constitution, of interpreting the Devolution Statutes without transforming their nature and importing foreign legal conceptions which do not sit well in the British interpretive tradition.[156]
[1] Scotland Act 1998 s. 98, Sch. 6; Government of Wales Act 2006 ss. 99, 111B, 112; Northern Ireland Act 1998 s. 11; Hassan Ebrahim, ‘Abstract Review: A Survey of European Constitutions’ (Constitutional Assembly of South Africa, 24 January 1996) [2.3] <https://www.nationalarchives.gov.za/sites/default/files/ITEM_CA-0040-0011-_-003.pdf> accessed 27 December 2024
[2] Scotland Act 1998 s. 33; Northern Ireland Act 1998 s. 11; Government of Wales Act 2006 s. 112.
[3] Constitutional Reform Act 2005, s. 41(2), (4)
[4] Gregory Davies, ‘The UK Supreme Court and devolution: guardian of the passive revolution?’ [2025] PL 58, 61-63.
[5] Lord Reed, ‘Scotland’s Devolved Settlement and the Role of the Courts’ (27 February 2019) <https://supremecourt.uk/uploads/speech_190227_3c34f7973e.pdf> accessed 27 December 2024; cf. Gregory Davies, (n4).
[6] ibid.
[7] Local Government Byelaws (Wales) Bill [2012] UKSC 53 [50] (Lord Neuberger).
[8] John Adams, Constitution of Massachusetts (1780), Part the First, Article XXX; cf. Morrison v. Olson, 487 U.S. 654 (1988) 697 (Scalia J., dissenting).
[9] Bill of Rights 1689, Preamble.
[10] Proceedings against the Dean of St Asaph (1783) 21 How. St. Tr. 847, 1040 (Lord Mansfield)
[11] Hansard, HC Deb. 20 July 1988 vol 137 c1081 (Revolutions of 1688–89 (Tercentenary))
[12] Cf. Martin Loughlin, ‘John Griffith obituary’ (The Guardian, 25 May 2010) <https://www.theguardian.com/education/2010/may/25/john-griffith-obituary> accessed 8 August 2025
[13] Cf. Bill of Rights 1689, Preamble; Yves Simon, A General Theory of Authority (Notre Dame Press, 1962/1980) 48n11
[14] Sir Winston S. Churchill, A History of the English Speaking Peoples (vol. 3, Cassell and Company Ltd 1957) 208.
[15] Ibid; cf. Marbury v Madison (1803)5 US (1 Cranch.) 137
[16] Cf. for example, Joshua Braver, ‘Exporting U.S. Counter-Interpretation: Redeeming Constitutional Supremacy in the U.K.’ [2016] 47 Georgetown Journal of International Law 867, 905-906
[17] Marbury v Madison, op cit, 178
[18] Tom Ginsburg and Mila Versteeg, ‘Models of Constitutional Review’ in The Oxford Handbook of Comparative Judicial Behaviour, Lee Epstein ed. (OUP, 2024) 45, 47-51.
[19] H v Lord Advocate [2012] UKSC 24 [30]; cf. Adam Perry and Farrah Ahmed, ‘The Quasi-Entrenchment of Constitutional Statutes’ [2014] 73 CLJ 514.
[20] Lady Hale, ‘Devolution and the Supreme Court – 20 Years On’ (14 June 2018) 18 <https://supremecourt.uk/uploads/speech_180614_414a49b9b6.pdf> accessed 2 December 2024;
Lord Reed, ‘The Supreme Court Ten Years On’ (6 March 2019) <https://supremecourt.uk/uploads/speech_190306_9afb42650c.pdf> accessed 13 December 2024.
[21] R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Bancoult (No 2) [2008] UKHL 61, AC 453, 504-505 where Lord Rodger says that the “use of the legislative power is political, not judicial”; Cf. A.V. Dicey, Introduction to the Study of the Law of the Constitution (Liberty Fund 1982 [1915], 9th edn) 88.
[22] R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 [40]; cf. Lord Neuberger, ‘Judge not, that ye be not judged’: judging judicial decision-making’ (F.A. Mann Lecture, 29 January 2015) [6] <https://supremecourt.uk/uploads/speech_150129_782eb16593.pdf> accessed 27 December 2024
[23] Cf. R (Miller) v Prime Minister [2019] UKSC 41 [39]; Sir Ivor Jennings, The Law and the Constitution (5th edn, University of London Press 1959) 81-89.
[24] British Railways Board and Others v Pickin [1974] UKHL 1, 15 (Lord Simon of Glaisdale); A.V. Dicey, op cit, 104; Lord Sumption, ’Lecture 5: Shifting the Foundations’ (BBC Radio 4, 18 June 2019) <https://downloads.bbc.co.uk/radio4/reith2019/Reith_2019_Sumption_lecture_5.pdf> accessed 17 December 2024
[25] Cf. Sir Winston S. Churchill, op cit, 208
[26] AXA General Insurance Ltd v Lord Advocate [2011] CSIH 31 [74] (Lord Reed); cf. R (Factortame Ltd) (I) v Secretary of State for Transport [1990] UKHL 7
[27]Roger Masterman and Jo Murkens, ’Skirting supremacy and subordination: the constitutional authority of the United Kingdom Supreme Court’ [2013] PL 800, 801, 809-811;
Lord Neuberger, op cit, [51];
Lord Neuberger ’Speech to ABA London Sessions on the 800th Anniversary of Magna Carta’ (11 June 2015) <https://worldjusticeproject.org/news/right-honourable-lord-neuberger-abbotsbury-speech-aba-london-sessions-800th-anniversary-magna> accessed 27 December 2024
[28] Constitutional Reform Act 2005 s. 41(2)
[29] Robinson v Secretary of State for Northern Ireland and Others (Northern Ireland) [2002] UKHL 32.
[30] ibid [14].
[31] ibid [10], [25].
[32] ibid [11].
[33] ibid [14].
[34] ibid [33].
[35] ibid.
[36] Marie Lynch, ‘Political Adjudication or Statutory Interpretation: Robinson v Secretary of State for Northern Ireland’, [2002] 53 NILQ, 327, 335; cf. In Re Northern Ireland Human Rights Commission [2002] UKHL 25 [60]; R (Lord Carlisle) v Secretary of State for the Home Department [2014] UKSC 60 [151] (Lord Kerr)
[37] In Re Northern Ireland Human Rights Commission [2002] UKHL 25; Re McCord [2020] NICA 23.
[38] Dame Sioban Keegan, ‘Human Rights Protections: A View from Northern Ireland’ (20 November 2024) 4 <https://www.judiciaryni.uk/files/judiciaryni/2024-12/LCJNI%20-%20Sir%20Thomas%20More%20Lecture%202024%20-%2020%20Nov%2024%20-%20FINAL%20FOR%20PUBLICATION%20-%20021224.pdf> accessed 30 December 2024;
Adam Tomkins, ‘Confusion and Retreat: The Supreme Court on Devolution’ (UK Constitutional Law Association, 19 February 2015) <https://ukconstitutionallaw.org/2015/02/19/adam-tomkins-confusion-and-retreat-the-supreme-court-on-devolution/> accessed 30 December 2024.
[39] Adam Tomkins, ibid.
[40] AXA General Insurance v Lord Advocate [2011] UKSC 46.
[41] AXA General Insurance Ltd v Lord Advocate [2011] CSIH 31 [74] (Lord Reed)
[42] ibid [87]
[43] ibid [75]
[44] Imperial Tobacco Ltd v Lord Advocate [2012] UKSC 61.
[45] AXA, op cit, [75]-[89]
[46] AXA, op cit, [46]
[47] cf. Ibid [46] -[52]
[48] ibid [17], [43] (Lord Hope); cf. R (Jackson) v Attorney General [2005] UKHL 56 [102] (Lord Steyn); Kruse v Johnson [1898] 2 QB 91, 99-100.
[49] Scotland Act 1998, s. 29(2)(d).
[50] AXA, op cit, [41]; European Convention on Human Rights, Article 1 Protocol 1.
[51] Cf. HKSAR v Ng Ngoi Yee Margaret and Others [2024] HKCFA 24 [76] (Lord Neuberger);
Andrew Harding, The Fundamentals of Constitutional Courts (October 2016) 3, 5, 8 <https://peacemaker.un.org/en/documents/fundamentals-constitutional-courts> accessed 2 December 2024.
[52] AXA, op cit, [45]-[52]
[53] ibid [45]; cf. Scotland Act ss.1(1), 28(1)-(2), (5), (7), 29.
[54] ibid [46]
[55] cf. ibid [17], [42]
[56] ibid.
[57] ibid [46], [49]-[51]
[58] Adam Tomkins, op cit,; cf. Christopher McCorkindale, Aileen McHarg, and Paul F Scott, ‘The Courts, Devolution, and Constitutional Review’ [2017] 36 UQLJ 289, 308.
[59] ibid [153]; cf. Christopher McCorkindale, Aileen McHarg, and Paul F Scott, ibid 307-308.
[60] AXA, op cit, [52]
[61]Ibid [51]
[62] R (Jackson) v Attorney General [2005] UKHL 56.
[63] AXA, op cit, [51]
[64] Local Government Byelaws (Wales) Bill, op cit, [81] (Lord Hope).
[65] Timothy Endicott, Administrative Law (OUP 2021, 5th edn) 22; Cf. Patrick S. Atiyah, ‘Judicial-Legislative Relations in England’ in Robert A. Katzmann (ed), Judges and Legislators: Toward Institutional Comity (The Brookings Institution 1988) 129-161.
[66] Timothy Endicott, ‘Comity among Authorities’ (17 November 2014) <https://ssrn.com/abstract=2530958> accessed 1 January 2025; cf. R (Lord Carlisle), op cit,[22] (Lord Sumption).
[67] Timothy Endicott, op cit, 24-25
[68] AXA,op cit, [42]
[69] ibid
[70] ibid [49]
[71] Robinson, op cit, [10]-[14]
[72] ibid [14]
[73] ibid [13]-[14].
[74] Lewis Graham, ’The Reed Court by the Numbers: How Shallow is the ’Shallow End’?’ (UK Constitutional Law Association, 4 April 2022) <https://ukconstitutionallaw.org/2022/04/04/lewis-graham-the-reed-court-by-numbers-how-shallow-is-the-shallow-end/> accessed 1 January 2025
[75] AXA, op cit, [50]-[51]
[76] ibid [137]-[138], [141], [151]
[77] ibid [153]
[78] ibid [153]; Robinson, op cit, [11]
[79] AXA, op cit, [153]
[80] ibid [144]-[147]
[81] Antonin Scalia, ‘Constitutional Interpretation the Old Fashioned Way’ (14 March 2005) <https://www.bc.edu/content/dam/files/centers/boisi/pdf/Symposia/Symposia%202010-2011/Constitutional_Interpretation_Scalia.pdf> accessed 7 January 2025;
Marbury v Madison (1803)5 US (1 Cranch.) 137, 176-178;
cf. Martin H Redish, ‘Abstention, Separation of Powers, and the Limits of the Judicial Function’ [1984] 94 Yale Law Review 71, 72.
[82] Christopher McCorkindale, Aileen McHarg, and Paul F Scott, op cit, 296; cf. Moohan v Lord Advocate [2014] UKSC 67.
[83] Timothy Endicott, op cit, 15
[84] Imperial Tobacco, op cit.
[85] ibid [13]
[86] ibid [14]
[87] ibid [15]
[88] ibid [16]
[89] ibid [16]
[90] Gregory Davies (n4) 64
[91] Cf. Adam Tomkins, op cit.
[92] Martin v Her Majesty’s Advocate [2010] UKSC 10 [15] (Lord Hope)
[93] Christopher McCorkindale, Aileen McHarg, and Paul F Scott, op cit, 302; The Christian Institute v Lord Advocate [2016] UKSC 51 [32]
[94] Bahamas District of the Methodist Church in the Caribbean and the Americas and Others v The Hon Vernon J Symonette MP and 7 Others (Bahamas) [2000] UKPC 31 [26]; cf. Quaintville v Human Fertilisation and Embryology Authority [2005] UKHL 28
[95] Martin, op cit, [44] (Lord Walker)
[96] Adam Tomkins, ’The Emergence of a Devolution Jurisprudence?’ (British Government and the Constitution, 3 March 2013) <https://britgovcon.wordpress.com/page/2/> accessed 7 January 2025
[97] Jackson, op cit, [9] (Lord Bingham)
[98] Adam Tomkins, op cit.
[99] Lady Hale, ’The Supreme Court in the UK Constitution’ (Legal Wales 2012, 12 October 2012) <https://www.legalwales.org/downloads/lectures-archive/lady-hale-2012.PDF> accessed 7 January 2025.
[100] Pickin, op cit, (Lord Simon of Glaisdale); Scotland Act 1998 s. 28(7); Government of Wales Act 2006 s. 93(5); Northern Ireland Act s. 5(6); cf. Union with Scotland Act 1706, Art. 3; Union with Ireland Act 1801 Art. 3.
[101] AXA, op cit, [46]
[102] Cf. A.V. Dicey, op cit, 36-39;
Raffel N Fasel and Shona Wilson Sark, ’How (Not) to Break Up: Constituent Power and Alternative Pathways to Scottish Independence’ [2024] 44 Oxford Journal of Legal Studies 1, 5-8;
Alan Greene, Written Evidence, HC PAC0010 <https://committees.parliament.uk/writtenevidence/96866/html/> accessed 11 January 2025.
[103] Local Government Byelaws (Wales) Bill [2012] UKSC 53
[104] Recovery of Medical Costs for Asbestos Diseases (Wales) Bill [2015] UKSC 3
[105] ibid [80]
[106] ibid
[107] ibid.
[108]Imperial Tobacco, op cit, [49]
[109] Asbestos (Diseases) Wales Bill, op cit, [122]; Adam Tomkins, op cit.
[110] Asbestos Diseases (Wales) Bill, op cit, [27]
[111] Cf. Adam Tomkins, op cit.
[112] Cf. Gregory Davies (n4)
[113] McCawley v The King [1920] 28 CLR 106, 115-116
[114] Jackson, op cit, [104] (Lord Hope); cf. Pickin, op cit; Lord Bingham, The Rule of Law (Penguin Books, 2010) 160-170.
[115] Cf. Bancoult, op cit, 504-505
[116] Reference by the Attorney General and the Advocate General for Scotland – United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill [2021] UKSC 42.
[117] Reference by the Lord Advocate of devolution issues under paragraph 34 of Schedule 6 to the Scotland Act 1998 [2022] UKSC 31.
[118] Incorporation Reference, op cit, [48].
[119] ibid [38].
[120] ibid.
[121] ibid [28].
[122] ibid [30]
[123] ibid [34]; Mark Elliot and Nicholas Kilford, ’The Supreme Court’s defence on unqualified lawmaking power: parliamentary sovereignty, devolution and the Scotland Act 1998’ [2022] CLJ 4, 6-7.
[124]; Ian Jamieson, ‘Altering the Effect of Section 28(7) of the Scotland Act 1998’ (UK Constitutional Law Association, 11 November 2024); cf. Lord Hope, Hansard, HL vol 592, col 796
[125] Pepper (Inspector of Taxes) v Hart [1992] UKHL 3.
[126] Cf. Jo Eric Khushal Murkens, ’Judicious Review: The Constitutional Practice of the UK Supreme Court’ [2018] 77 CLJ 349, 350
[127] cf. Shergill v Khaira [2014] UKSC 33 [39]-[40].
[128] Incorporation Reference, op cit, [42]
[129] Imperial Tobacco, Petitioner [2012] CSIH 70 [71]
[130] ibid [71], [73].
[131] ibid [71]
[132] Jo Eric Khushal Murkens, op cit, 374.
[133] Independence Reference, op cit, [74]; cf. Imperial Tobacco, op cit, [39]; Agriculture Sector (Wales) Bill, op cit, [2014] UKSC 43 [53]
[134] Independence Reference, op cit, [82]
[135] Miller (I), op cit, [125], [171]; Nicky Gillbrand, Somsubhra Banerjee, and Eoin Carolan, ‘Cracks in the foundations? Exploring the tension between constitutional tradition and constitutional culture regarding referendums’ [2023] PL 587, 588-589.
[136] Cf. John Griffiths, ‘The Political Constitution’ [1979] 42 MLR 1, 14-15.
[137] Nicky Gillbrand, Somsubhra Banerjee, and Eoin Carolan, op cit, 596.
[138] Lord Neuberger, op cit.
[139] Cf. Independence Reference, op cit, [90]
[140] Praver Petkar, ’Cracking a nut with a sledgehammer: the Lord Advocate’s reference on a second Scottish independence referendum in constitutional context’ [2024] 75 NILQ 370, 380.
[141] Lord Sumption, ’The Disunited Kingdom: England, Ireland and Scotland’ (Lincoln’s Inn, 5 November 2013) <https://supremecourt.uk/uploads/speech_131105_0c42d37db4.pdf> accessed 14 December 2024; cf. A.V. Dicey, England’s Case Against Home Rule (John Murray, 1886) 1; cf. Imperial Tobacco, op cit, [29]
[142] ibid; cf. Independence Reference, op cit, [79]
[143] Nicky Gillibrand, Somsubhra Banerjee, and Eoin Carolan, op cit, 589, 606-608; cf. Cass R Sunstein, ’Incompletely Theorized Agreements’ [1995] 108 HLR 1733, 1735-1736, 1739, 1749, 1752-1753.
[144] Cf. Lord Neuberger, Select Committee on the Constitution (HL), Corrected oral evidence: with the President and Deputy President of the Supreme Court (29 March 2017) <https://committees.parliament.uk/oralevidence/6886/html/> accessed 26 December 2024
[145] Miller (I), op cit, [136]-[151]
[146] ibid [136]
[147] ibid [147]-[148]
[148] Cf. ibid [146].
[149] Mark Elliot, ’Parliamentary Sovereignty in a Changing Constitutional Landscape’ in Sir Jeffrey Jowell and Colm O’Cinneide eds., The Changing Constitution (OUP, 2019) 29, 38.
[150] Miller (I), op cit, [148]
[151] Boyce v R (Barbados) [2004] UKPC 32 [28]-[29].
[152] Imperial Tobacco, op cit, [71], [181]
[153] Lord Neuberger, Select Committee on the Constitution (HL), Corrected oral evidence: with the President and Deputy President of the Supreme Court (29 March 2017) <https://committees.parliament.uk/oralevidence/6886/html/> accessed 26 December 2024
[154] Imperial Tobacco, op cit, [14]
[155] Adam Tomkins, op cit.
[156] Cf. Imperial Tobacco, op cit, [14]
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