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Barnhill, Jura. June 2015. (Thanks to the kindness of the Fletcher family).

An early bath for the devolved governments?

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Lord Reed has indicated that the UKSC will contemplate a distinction in the mind of the Court as between a narrower scenario, involving a relatively straight-forward case of interpretation as between what are reserved and what are devolved matters on the one hand[1] and, on the other hand, a more ‘generous’ or at least ‘different’ approach for a scenario (such as the current ‘Brexit’ appeal).[2]

The latter generous/different approach is in the same field as the HS2 case where certain fundamental aspects of the constitution are accorded something of a special status.

If the UKSC adopts the narrower Robinson approach, the intervention on the basis of a viable interest amongst the devolved powers within the UK may amount to little - with the matter of Brexit and the triggering of Article 50 TEU simply being considered a reserved matter. End of that argument.

However if the more generous/different AXA approach is used there may well be some scope for the devolved governments to be more directly involved in the process.

In Imperial Tobacco v Lord Advocate [2012] CSIH 9 Lord Reed said that the Scotland Act 1998 was, “not a constitution” but an ordinary statute.

That might suggest that Scotland could have left this particular competition at an early stage.



[1] Robinson v Secretary of State for Northern Ireland [2002] UKHL 32

[2] AXA General Insurance v Lord Advocate [2011] UKSC 46


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