Constitutionalising the Role of the Judge: Scotland and the New Order

Abstract

The extensive process of constitutional reform which is presently being undergone in the UK will fundamentally alter the way in which the body politic is thought about and talked about, leading in time to a new constitutionalism. In the course of this development a more central role is promised for the courts as judges are called upon to interpret and develop these changes. In addition, judges will be required to reconsider their own part in this process and to assess the legitimacy of the courts as presently constituted to meet these new challenges. In the past two years these developments have been most keenly felt in Scotland with the establishment of devolved government. This article will examine some of the early cases involving devolution issues in Scotland which have already impacted on the judicial role in two main respects. The first involves the task of judicial self definition, whereby judges evaluate the extent to which they themselves satisfy the requirements of due process in terms of two related matters: judicial impartiality and judicial independence. The second element of the judicial role which has been called into question is concerned not so much with procedural fairness but more with the substantive aspects of constitutional adjudication: in other words, with how judges confront the task of balancing the competing interests between individual and state and between centre and devolved unit which emerge from the new constitutional arrangements. The article will conclude by considering the extent to which changes in the self-definitional or due process elements of the judicial role connect to questions about the substantive role the courts ought to play in modelling and refining constitutional change itself.