Judging Democracy: the Devolutionary Settlement and the Scottish Constitution

Abstract

177 This article considers three distinct but inter-related issues concerning human rights and the Scottish constitution. First of all, it discusses the alleged antidemocratic nature of human rights which, of course, depends on what is meant by “democracy”. The paper suggests that “democracy” after the Human Rights Act 1998 has to be given a substantive “value-rich” meaning founded on the principle of respect for the individual, rather than simply a claim that the majority is always right. Second, it looks at the fact that Scotland’s new constitution under the Scotland Act 1998 mandates a new form of “democratic constitution”, one in which the judges are supreme in the sense that they have the power to strike down as invalid – because Convention-incompatible – both legislation which has been duly passed by the Scottish Parliament and acts of the Scottish Ministers which would otherwise be warranted under primary Westminster legislation. It is suggested that the reasons why this constitutional revolution has not yet made the impact that might have been expected relate to the institutional conservatism inherent in the current Scottish legal culture. Third, it examines the issue of the role and structure of the Judicial Committee of the Privy Council in the devolutionary settlement. It is submitted that the case-law to date shows certain tensions in the way that the current arrangements are working in the United Kingdom as a whole, and a unitary state with two Supreme Courts deciding on Convention rights is inherently unstable. For the sake of constitutional and democratic stability in the post-devolution UK, we need one Supreme Court – at the very least one which combines the current jurisdiction of the House of Lords with the devolution jurisdiction of the Privy Council.