Aileen McHarg

Property and the law in energy and natural resources

The law of energy and natural resources has always had a strong focus on property as one of its components, but there are relatively few comparative, book-length, treatments of both property law and energy and natural resources law. The aim of this edited collection is to explore the multiple dimensions of the contemporary relationship between property and energy and natural resources law.

Justifying Affirmative Action: Perception and Reality

This article surveys developments in United Kingdom law and policy which require, permit or are more accommodating towards, the use of affirmative action. It then considers the various justifications that can be used in support of affirmative action and their philosophical and political strengths and weaknesses. Finally, it advocates a strategic approach to the justification and use of affirmative action, taking account of relevant political, contextual, pragmatic, and practical considerations.

Brexit and Scotland

In the 2016 Brexit referendum, Scotland voted decisively to Remain in the EU, while a UK-wide majority voted to Leave. This article discusses responses to the constitutional significance of a territorially divided result, both prior to and following the referendum, including in litigation over the ‘constitutional requirements’ necessary to trigger the United Kingdom’s withdrawal from the EU under Article 50 TEU (R (Miller) v Secretary of State for Exiting the European Union). It considers what these debates reveal about the uncertain and contested nature of the UK’s territorial constitution, focusing on issues of constitutional security for devolved institutions and competences, and constitutional voice for the devolved territories in handling issues of intertwined competence. It argues that the Brexit episode reveals major weaknesses in the dominant reliance on political mechanisms to give recognition to the constitutional significance of devolution, which do not adequately displace continued legal adherence to the assumptions of a unitary constitution.

Quotas for Women! The Sex Discrimination (Election Candidates) Act 2002

The Sex Discrimination (Election Candidates) Act 2002 is unusual in two respects. First, it is a rare example of the permissible (though not mandatory) use of affirmative action in the United Kingdom, in this case to reduce gender inequality in the selection of election candidates. Secondly, the Act contains a sunset clause and will expire in 2015 unless extended. This article examines the background to the legislation, the forms of affirmative action it permits, and the use so far made of it by political parties. It also considers the justifications for affirmative action to increase womens political representation, asking what sets this apart from other contexts in which women are under-represented, and whether the temporary nature of the legislation is appropriate.

Climate change constitutionalism? Lessons from the United Kingdom

Preventing dangerous climate change presents a significant political challenge. Extensive, urgent, and sustained political action is required to support necessary technological, economic, and behavioural changes. Yet the long-term, global, and uncertain effects of climate change, combined with the substantial short-term costs of mitigation action create what economists term a “credible commitment” problem, given the dominance of material considerations and short-term electoral cycles in political decision-making. Accordingly, building effective climate change law is not simply about devising appropriate measures to reduce emissions, but more fundamentally about instituting legal and political “regime change”. The UK Climate Change Act 2008 represents an important attempt to address the credible commitment problem on a domestic level. Not only does it impose long-term, legally binding emission-reduction targets, it also creates a so-called “carbon accounting” regime, designed to maintain government focus on meeting the targets. The Act involves a “pre-commitment strategy” which is intended to have a systemic and transformative effect on government action, and it has been described as having a “constitutional” significance. The aim of this article is to interrogate this claim to constitutional status. It discusses, first, whether it is appropriate to describe the Act as a constitutional measure and why this classification might matter. Secondly, it considers the likely impact of the Acts substantive and institutional/procedural provisions. Finally, it considers the wisdom of “climate change constitutionalism”, and asks whether this is an approach which ought to be emulated by other states.

Introduction: Brexit and Scots law

Leaving the European Union will be the most significant systemic change to Scots law since the creation of the Scottish Parliament in 1999. The essays in this special Analysis section survey some (though by no means all) of the key aspects of the legal system likely to be affected by Brexit. In some of these areas, such as agriculture and fisheries, EU law has been the central source of legal regulation since we joined what was then the EEC in 1973. In other areas, EU law has played a role alongside domestic regulation, in greater or lesser degrees. At the time of writing (October 2017) – some 16 months after the EU referendum and seven months after formal notification of the United Kingdom’s intention to withdraw from the EU was given under Article 50 TEU – it is surprising just how much uncertainty there still is about the likely effects of Brexit. The articles in this section identify three key sources of uncertainty.

A Powerhouse Parliament? An Enduring Settlement? The Scotland Act 2016

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Crown Estate Devolution

One of the Smith Commissions more significant recommendations was that responsibility for managing the Crown Estate in Scotland, and the revenue generated from it, should be transferred to the Scottish Parliament.1 The Crown Estate is currently managed on a UK-wide basis by the Crown Estate Commissioners under the Crown Estate Act 1961 (“CEA”). Its origins date back to 1760, when George III surrendered the revenues from Crown lands to parliament in return for support via the civil list, an arrangement confirmed by each subsequent monarch. Today the Crown Estate consists of a mixture of hereditary Crown property rights, more recent rights vested in the Crown by statute, and modern property acquisitions. It does not comprise the entirety of Crown property rights, nor is it the personal property of the sovereign. It is, in effect, a publicly-owned property business, the revenues from which accrue to the UK Treasury.