Devolution in Scotland and the Supreme Court: a question of interpretation?

Abstract

As we celebrate its first decade it is clear that the Supreme Court is coming to terms with its position as an apex constitutional court for the United Kingdom. Whilst recent trends indicate that this is true even in the face of Westminster legislation and UK Government action, in the devolved sphere the court has been cultivating a bespoke devolution jurisprudence almost from its inception. In this paper I want to focus on two key issues that arise from this. First, that despite the Supreme Court holding itself out to be a truly constitutional court in the devolved sphere – where it has power hitherto unknown to UK courts to strike down primary legislation enacted by democratically elected legislatures – it remains uncomfortable proceeding from first constitutional principles. Rather, the devolution jurisprudence of the Court – certainly as it relates to the constitutional status of devolution – demonstrates the Court’s continued faith in its exercise of a more traditional function: that of (sometimes innovative means of) statutory interpretation. Second, that whilst relatively few devolution disputes will manifest themselves before the Supreme Court, that (still developing) jurisprudence looms large over the work of government and parliamentary lawyers whose task it is to protect as far as possible every piece of devolved legislation from judicial censure through an intricate process of legislative constitutional review.