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
An early bath for the devolved governments?
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