Constitutional Reform in UK Law

If a Head of Division exercised that inherent power to give directions as to a procedure to be adopted in a particular court as happened before the 2005 Act, and a fortiori if the direction is given with the approval or agreement of the Lord Chief Justice and Lord Chancellor, it cannot be open to another judge of the court to which the practice direction is intended to apply to ignore that practice direction or to suggest in a judgment that a practice direction should no longer be followed in that court.

The Northern Ireland Court of Appeal is a superior court, but the underlying question of construction remains, whether the legislature has by article 61(7) of the 1980 Order, set out in para 62 above, excluded any right of appeal in circumstances such as the present. The finality provision in article 61(7) is therefore focused on the decision on the point of law, not on the regularity of the proceedings leading to it.

The Scottish Parliament takes its place under our constitutional arrangements as a self-standing democratically elected legislature. Its democratic mandate to make laws for the people of Scotland is beyond question. Acts that the Scottish Parliament enacts which are within its legislative competence enjoy, in that respect, the highest legal authority. The United Kingdom Parliament has vested in the Scottish Parliament the authority to make laws that are within its devolved competence.

A requirement that the applicant demonstrate an interest in the matter complained of will not however operate satisfactorily if it is applied in the same way in all contexts. In some contexts, it is appropriate to require an applicant for judicial review to demonstrate that he has a particular interest in the matter complained of: the type of interest which is relevant, and therefore required in order to have standing, will depend upon the particular context.

Section 106(1A) requires the Lord Chancellor to seek to make rules which balance the requirements for fairness, speed and efficiency. In this field, speed and efficiency are unquestionably important, but there must be a limit to the degree to which fairness can be sacrificed in order to achieve speed and efficiency. It must still be possible to say that a rule which has been designed to achieve speed and efficiency is fair in its operation.

section IV(2)(a) below I discuss the historic primacy of the High Court's predecessor, the Court of King's Bench. To offer the same guarantee of properly mediated law, any alternative source must amount to an alter ego of the High Court; and indeed there are instances where the authoritative source is another court, such as the Court-Martial Appeal Court and the Restrictive Practices Court (see the reference at paragraph 71 below to R v Cripps, ex parte Muldoon [1984] 1 QB 68).

Subject to any restrictions imposed by primary legislation, the general rule is that the power to make or unmake treaties is exercisable without legislative authority and that the exercise of that power is not reviewable by the courts — see Civil Service Unions case cited above, at pp 397–398. The second proposition is that, although they are binding on the United Kingdom in international law, treaties are not part of UK law and give rise to no legal rights or obligations in domestic law.