The Courts and Devolution in the UK
| Author | Alan Trench |
| Published date | 01 May 2012 |
| Date | 01 May 2012 |
| DOI | http://doi.org/10.1111/j.1467-856X.2011.00497.x |
| Subject Matter | Article |
The Courts and Devolution in the UK
Alan Trench
The courts have hitherto played a remarkably limited role in the working of devolution in the United
Kingdom. In this respect, the UK has been an exception to practice in most federal or decentralised
systems, where the courts have tended to assume a prominent role in adjudicating intergovernmental
disputes. This article examines whether political congruence contributed to this minimal role for the
courts in IGR. It argues that additional factors are also at play: the limited role accorded to lawyers
and legal issues in the UK’s system of government, the flexibility of the devolution settlements, and the
political nature of the UK’s constitution, which make it both possible and desirable to resolve
intergovernmental disputes by differentmeans. While the courts are likely to become more prominent
as a result of third-party litigation, particularly as devolved legislatures become more active, the
limited role of the courts in most intergovernmental matters appears unlikely to change.
Keywords: devolution; courts; intergovernmental relations; United Kingdom
Introduction
Before devolution in 1999, there was an expectation that one consequence would
be an increased, and increasingly political, role for the courts. They would be called
upon to resolve a variety of disputes arising from the new constitutional settlement,
as had been seen in many other federal and decentralised systems around the
world. This role would increase the political profile of the courts, and put pressure
on their perceived impartiality. In practice, however,little of this has happened; the
amount of devolution-related litigation has been modest, and there has been no
intergovernmental litigation whatever to date. This limited role for the courts is a
classic case of a dog that did not bark (Conan Doyle 1950, 28), and like that dog, its
silence tells us a good deal about devolution in the UK, not least because it marks
a significant difference between the UK and other systems elsewhere.
This article will seek to explain this phenomenon, and in doing so will address two
questions. First, what factors mean that the courts have played such a minimal role
in devolution, and the resolution of devolution disputes, since 1999? While
explaining a negative is always difficult, it is possible to identify a number of aspects
of devolution’s institutional design, and of the practice of government and consti-
tutional politics in the UK more generally, that explain this. Second, how durable
are those factors? How susceptible are they to changes in the constitutional and
political context, such as the increased party political incongruence that has
emerged since 2007?
The article first discusses the role of courts in federal and decentralised systems.
Next, it considers the expectations of the role they would play before UK devolu-
bs_bs_banner
doi: 10.1111/j.1467-856X.2011.00497.x BJPIR: 2012 VOL 14, 303–322
© 2012 The Author.British Journal of Politics and International Relations © 2012
Political Studies Association
tion, and the role they have actually played. It then explores reasons for the courts’
limited role. As well as published materials including court judgments and official
documents, the article draws on interviews with civil servants and politicians
involved in devolution, carried out since 2001.1
Courts and Politics in Federal and Decentralised Systems
There is considerable debate about the nature of constitutional adjudication, and
indeed the nature of judicial decision-making more generally. In the political
science literature, it is regarded as inherently political, with the result that the
highest court of appeal in any system will assume a prominent role as a political
actor, as well as its legal one (e.g. Shapiro 1981; Stone Sweet 2000). Traditionally,
lawyers have taken a different view, treating the exercise of judicial authority as a
technical exercise in which political considerations do not figure—a view, in the
UK, first seriously challenged by J. A. G. Griffiths (1977), and now accepted by very
few scholars. Certainly, judicial decisions in constitutional cases are political by their
nature. This role is particularly pronounced in federal and decentralised systems. As
Daniel Halberstam (2008, 143) puts it:
The precise content of the federal bargain will necessarily be incomplete.
The authors cannot foresee all the contingencies that an effective system
of governance must confront. Federal bargains will be struck on particu-
lars without consensus on an underlying theory; and federal bargains will
be struck on more abstract principles without agreement on the particu-
lars that the principles entail. ... A successful federal system must remain
flexible enough to allow for effective governance and yet be stable enough
to prevent radical centripetal or centrifugal shifts of power that under-
mine the principle of shared rules.
The constitutional arrangements of most federal and decentralised states mean that
such flexibility is a scarce commodity. Written constitutions with formal amend-
ment procedures commonly require unanimity among the main institutional
actors, or a very high level of consensus among them. They may also require the
holding of referenda (as notably in Australia). Where parties cannot agree, there
can be no change to the constitution and so amendments cannot be made. In such
circumstances, the burden passes to the courts to determine what the constitution
‘means’. The decisions made by the courts in pursuit of this are often not only
controversial in themselves, but also make the role of the courts the subject of wider
political controversy.
One consequence of this is the emergence of an academic literature exploring the
role of the courts in the working of a particular federal or decentralised system. This
literature is usually concerned with only a single system, and involves perspectives
both from lawyers and from political scientists. Examples in English include John T.
Saywell (2002) for Canada; Donald P. Kommers (1997) and Philip Blair and Peter
Cullen (1999) for Germany; or Geoffrey Sawer (1967) or Leslie Zines (1997) for
Australia. In Canada, the trend toward emphasising provincial rights has halted
with the ending of appeals to the Privy Council and the Supreme Court of Canada
becoming the final court of appeal. In Australia, the High Court has consistently
304 ALAN TRENCH
© 2012 The Author.British Journal of Politics and International Relations © 2012 Political Studies Association
BJPIR, 2012, 14(2)
To continue reading
Request your trial