Courts have been respectful but not minimalist in devolution cases: Reed

Courts deciding devolution cases have been respectful of the devolution settlement but not minimalist in their approach, according to Lord Reed, Deputy President of the UK Supreme Court, in a lecture just published.

Giving the inaugural Dover House Lecture in London on 27 February, Lord Reed considered the powers conferred on the devolved parliaments and the cases that have considered these. 

The courts, he concluded, "have adopted what I would describe as a balanced approach, accepting that the devolution legislation has established democratic legislatures with very wide powers, whose judgment should be treated by the courts with great respect, and also that those powers are subject to limits, both in terms of subject matter and in terms of human rights and EU law, which it is the responsibility of the courts to enforce, when called on to do so, with complete impartiality".

He also set out five "important constitutional principles" that the case law had established, including that devolution was a crucial aspect of the governance arrangements of the UK as a whole; that the devolution regimes were best described from a legal perspective as a single body of constitutional reform for the UK; that the Scottish Parliament had plenary powers within the limits of its legislative competence, but the courts had to give effect to the rules limiting that competence; and that the courts "recognise the importance of giving [the Scotland Act] a consistent and predictable interpretation, so that the Scottish Parliament has a coherent, stable and workable system within which to exercise its legislative power".

Finally, "the Supreme Court has responded institutionally to the sensitivity of the devolution issues which it has had to decide. The most sensitive cases in which the UK Government has been in dispute with a devolved government, or in which flagship devolved legislation has been challenged by private parties, have usually been heard by enlarged panels".

He added: "The court’s success in performing that role [as arbiter when political solutions cannot be found] depends on public and political confidence in the court’s complete impartiality: something which both the court and the political institutions involved have a responsibility to maintain and support."

Click here to view the text of the lecture.