Judicial Politics and the Judicial Committee: The Devolution Jurisprudence of the Privy Council
| Date | 01 July 2001 |
| Published date | 01 July 2001 |
| DOI | http://doi.org/10.1111/1468-2230.00341 |
| Author | Aidan O’Neill |
Judicial Politics and the Judicial Committee: The
Devolution Jurisprudence of the Privy Council
Aidan O’Neill QC*
Devolution issues
The three ‘Devolution Statutes’ of 1998, namely the Scotland Act, the Government
of Wales Act and the Northern Ireland Act, all make reference to and define a new
category of legal questions, ‘devolution issues’, which arise out of the creation of
devolved governments for the non-English parts of the United Kingdom.1
Devolution issues are boundary markers. They are concerned with questions as
to whether or not the devolved assemblies and administrations have transgressed
the limits of the powers granted them under their founding acts – for example, by
entering into areas reserved to the Westminster Parliament, or by being in breach
of Community law, or by being incompatible with any Convention rights, or by
otherwise being outwith the legislative or administrative competence of the
devolved institutions.
Since the limits of the devolved legislative bodies and administrations are set out
in statute, the task of ensuring that the devolved institutions stay within the limits
of the powers granted to them is one for the courts. Quite separately from the
provisions of the Human Rights Act 1998, the three Devolution Statutes put it
within the power of all UK courts to review and strike down on grounds of
incompatibility with Convention rights, both legislative and executive acts
emanating from the devolved institutions of Scotland,2Wales3and Northern
Ireland.4What has been created by the Devolution Statutes then are democratic
institutions whose acts are, however, subject to control by the judiciary.
Questions as to the ‘constitutionality’ of the acts or omissions of the devolved
institutions and administrations (in the sense of whether or not these are in
conformity with the limits set out in their founding statutes) may, if relevant to the
matter at hand, competently be raised in any proceedings before any courts in the
United Kingdom. Such matters are not reserved for decision by the higher courts.
In principle, devolution issues may arise within any of the legal jurisdictions of the
United Kingdom: thus, questions as to the vires of a Welsh measure might be
raised before a Scottish court; while Scottish legislation may be challenged in
Northern Ireland or in England. Schedules 6, 8 and 10 of the Scotland Act,
Government of Wales Act and Northern Ireland Act respectively set out the
procedures to be followed when devolution issues are raised before courts in the
United Kingdom. All provide that frivolous or vexatious challenges to the
ßThe Modern Law Review Limited 2001 (MLR 64:4, July). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 603
*Advocate at the Scots Bar and Associate Member of Matrix Chambers, Gray’s Inn, London.
1
For the various definitions of ‘devolution issues’ see para 1 of each of: Sched 6 to the Scotland Act
1998; Sched 8 to the Government of Wales Act 1998; and Sched 10 to the Northern Ireland Act
1998.
2 Scotland Act 1998 ss 29(2)(d) and 57(2).
3 Government of Wales Act 1998 s 107.
4 See Northern Ireland Act 1998 ss 6(2)(c) and 24(1)(a).
competency of devolved legislation or administrative action or omissions need not,
however, be taken up by the courts.5
The three Devolution Statutes have also created a new role for the Judicial
Committee of the Privy Council in that they have given it, rather than the House of
Lords, jurisdiction on the question of the final domestic resolution of any
devolution issues.6But it is only those Privy Councillors who hold or have held the
office of a Lord of Appeal in Ordinary, or high judicial office as defined in Section
25 of the Appellate Jurisdiction Act 1876 (that is to say English and Northern
Ireland High Court and Court of Appeal Judges and, in Scotland, Senators of the
College of Justice) who may sit and act as members of the Judicial Committee in
proceedings brought under the Devolution Statutes. In effect, what this means is
that: firstly, Privy Councillors who are Commonwealth judges (for example Lord
Cooke of Thorndon) are excluded from sitting in devolution issue proceedings, and
secondly, unless Privy Councillors who do not sit in Parliament are specifically
called to sit on a particular Judicial Committee hearing, there will be high degree
of overlap between those who are active House of Lords judges and the Privy
Council judges.7
The devolution jurisprudence of the Privy Council
Between October 2000 and February 2001 four decisions of the Judicial
Committee of the Privy Council, acting for the first time under its devolution
jurisdiction, were pronounced. All of these cases came from Scotland on appeal
from decisions of the High Court of Justiciary sitting in Edinburgh as a court of
criminal appeal. The Scottish criminal appeal court has, throughout its history,
been a court of final instance with no possibility of further appeal against any of its
decisions to the House of Lords. Paragraph 13(a) of Schedule 6 to the Scotland Act
1998, however, introduced for the first time the possibility of an appeal against
decisions of the Scottish criminal appeal court to the Privy Council, either with
leave of the Scottish court or, failing such leave, with special leave of the Judicial
Committee. The four cases which have now gone to the Judicial Committee from
Scotland are, chronologically:
(i) Montgomery and Coulter vHer Majesty’s Advocate and the Advocate
General for Scotland,8an appeal by the two accused in the second Surjit
Singh Chhokar murder trial against a decision by the High Court of Justiciary,
acting as the Scottish criminal appeal court, to refuse their claim that the
extent of their pre-trial publicity (resulting in part from a public dispute
between Lord McCluskey the trial judge in the first Chhokar trial and the then
5 See para 2 of each of Sched 6 to the Scotland Act 1998, Sched 8 to the Government of Wales Act
1998 and Sched 10 to the Northern Ireland Act 1998.
6 For extra-judicial reservations about the appropriateness of using the Judicial Committee of the Privy
Council in this way, rather than the House of Lords, see Rt. Hon Lord Steyn, ‘Incorporation and
Devolution – a few reflection on the changing scene’ [1998] European Human Rights Law Review
153–156.
7 Lord Hope of Craighead, ‘Edinburgh vWestminster & Others: resolving constitutional disputes –
inside the crystal ball again?’ (1997) 42 Journal of the Law Society of Scotland 140–143 for a
discussion of the differences between the House of Lords and the Judicial Committee of the Privy
Council.
8Montgomery vHer Majesty’s Advocate and the Advocate General for Scotland and Coulter vHer
Majesty’s Advocate and the Advocate General for Scotland JCPC, 2001 PC 1, 2001 SLT 37, also
accessible at
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