2016 Global Review of Constitutional Law

y a network of prerogative power (the royal
prerogative power was originally exercised
by the reigning monarch, but is now generally
exercised by Government ministers in the
name of the Sovereign 4 ), and constitutional
conventions which are not legally enforceable.
Since the courts have not been central
players in constitutional change as they have
elsewhere, it is therefore particularly notable
that the major cases which emerged in the
context of the Brexit referendum have focused
entirely upon the issue of Parliament’s
supremacy and its interaction with the devolution
statutes, the prerogative power, and
constitutional conventions.
DEVELOPMENTS AND
CONTROVERSIES IN 2016
The main controversy in 2016 was the Brexit
referendum and its aftermath. But in this
section we will also discuss changes to the
devolution settlements for Scotland and
Wales, which are also very significant but
which have tended to be overlooked in light
of the EU referendum.
Brexit
The Conservative Party’s success in the 2015
general election required it to make good on
its campaign pledge to hold a referendum on
the UK’s continued membership of the EU, 5
and the referendum was duly held on 23 June
2016. The unexpected ‘Leave’ vote – by a
slim margin of 52% to 48% – has led to the
resignation of Prime Minister David Cameron
and left the next Government, under
Prime Minister Theresa May, charged with
the complex task of achieving a divorce from
the EU that complies with UK constitutional
law, EU law, and wider commitments under
international law (particularly as regards the
Good Friday Agreement, a bilateral international
treaty between the UK and Ireland in
1998, which, with the accompanying Northern
Ireland Act 1998 passed by the UK Parliament,
established a peace settlement in
Northern Ireland).
The process of withdrawal from the EU
is governed by Article 50 of the Treaty on
European Union (TEU). 6 As the UK is the
first state to seek to leave the EU, the precise
requirements and procedure to be followed
under Article 50 are unclear and have
been the subject of much discussion at both
the national and EU levels. The prospect of
Brexit has also sparked renewed discussions
of profound constitutional change within the
UK, not only through an official request by
the Scottish Government for the authority to
hold a second independence referendum, 7
but also in calls for constitutional change for
Northern Ireland. 8 Below, we will return to
the litigation provoked by the June referendum.
Devolution Developments
Scotland Act 2016
The Scotland Act 2016 provides the Scottish
Parliament with a set of new powers that
will make it one of the most autonomous
sub-state legislatures in the world. It considerably
extends the powers already provided
for in the Scotland Acts of 1998 and 2012.
The Scottish Parliament acquires a range of
additional competences in policy areas such
as taxation, welfare, unemployment services,
transport, energy efficiency, fuel poverty,
and onshore oil and gas extraction. It is
the provisions on taxation that have attracted
the most attention. In light of the Scotland
Act 2016, Scotland will acquire far more fiscal
responsibility. 9 In particular, it has been
given extensive powers in relation to income
tax raised in Scotland which is important
in symbolic as well as practical terms. This
builds upon the more modest tax powers
which were included in the 2012 Act, a number
of which are still to be implemented.
The 2016 Act also changes the constitutional
status of the Scottish Parliament, providing:
‘The Scottish Parliament and the Scottish
Government are a permanent part of the
United Kingdom’s constitutional arrangements’.
10 It is difficult to see what constitutional
effect this might have, given the UK’s
doctrine of parliamentary sovereignty, 11 but
the very statement could be a steer to the
courts to consider Scottish devolution now
to be an entrenched arrangement at the level
of constitutional principle. 12
English Votes for English Laws (EVEL)
The Scotland Act was the culmination of
the promise of more powers for the Scottish
Parliament in light of the independence referendum
in 2014, in which 45% of voters
opted for independence. From this process
what also emerged was resentment within
England at how devolution continued to expand
with no account of the constitutional
position of England.
This resulted in a change to parliamentary
procedure known as ‘English Votes for English
Laws’ (EVEL). The system was introduced
in 2015 through an amendment to the
Standing Orders of the House of Commons. 13
It seeks to address the ‘West Lothian Question’.
14 This question refers to whether West-
4
See generally T Poole, Reason of State: Law, Prerogative and Empire (Cambridge University Press, 2015).
5
See The Conservative Party Manifesto 2015 http://bit.ly/1FPYN2z 72ff.
6
A brief summary of the process is provided in T Lock and TG Daly, Legal Implications of Brexit and the British Bill of Rights (Edinburgh Law School and
Bingham Centre for the Rule of Law) 20.
7
The request was made by a letter from First Minister Nicola Sturgeon to Prime Minister Theresa May dated 31 March 2017, the text of which is available at
http://bit.ly/2p1RXb0. See also S Tierney, ‘A Second Independence Referendum in Scotland: The Legal Issues’ U.K. Const. L. Blog (13 March 2017) https://
ukconstitutionallaw.org/.
8
See e.g. T Reidy, ‘Scottish Independence and a United Ireland: A Brexit Game of Gaelic Games?’ Irish Politics Forum (21 March 2017) http://bit.ly/2oG1vaS.
9
House of Lords Constitution Committee, ‘Proposals for the devolution of further powers to Scotland’, 18 March, 2015, para 95. http://bit.ly/2oaUEml.
10
Scotland Act 2016, s.1.
11
M Elliott, ‘The Draft Scotland Bill and the sovereignty of the UK Parliament’, Public Law for Everyone blog, 22 January 2015 http://bit.ly/2p20QBn.
12
K Campbell, ‘The draft Scotland Bill and limits in constitutional statutes’ U.K. Const. L. Blog (30 January 2015) http://ukconstitutionallaw.org.
13
R Kelly, ‘English votes for English laws’, House of Commons Library Briefing Paper No. 7339, 2 December 2015: http://bit.ly/1MEnEHC.
14
P Bowers, ‘The West Lothian Question’, House of Commons Library Standard Note SN/PC/2586, 18 January 2012: http://bit.ly/2oywNjd.
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