Tom Mullen

Constitutional Jurisprudence on Federalism and Devolution in UK and Canada

The courts have different roles in policing Canadian federalism and Scottish devolution. In Canada, the division of competences is entrenched, limiting the powers of both levels. The constitution is difficult to amend. This has led the courts, initially headed by the Judicial Committee of the Privy Council and then the Supreme Court, to reinterpret the constitution in order to adapt to changing political, economic and social circumstances. From 1970 the Supreme Court explicitly adopted a progressive interpretation, according to which the constitution can evolve over time. This, according to Brouillet and Mullen, has led to an expansion of federal power. The Canadian Supreme Court has also taken account of constitutional conventions, although refusing to accept as a binding convention the need for Quebec to agree to major constitutional moves such as the patriation of the constitution in 1982.

Judicial Review in Scotland: Update

2. The Scotland Act 1998 created a Parliament with limited powers, although within those limits legislative competence does extend to a wide range of matters, some of which are of major policy importance such as health and housing. It is interesting to consider, first, the extent to which the Scottish Parliament may alter the institutions of administrative law (the structure within which substantive administrative law operates) and, secondly, the scope for changing the substance of administrative law. Arguably, a review of Scottish administrative justice is one of the tasks the Parliament should set itself. However, in what follows discussion is confined to what is legally possible, and does not offer a view on the desirability of any such reforms. It is also worth noting that the provisions detailing the competence of the devolved institutions are very complex, and this article does not purport to be a detailed analysis of those provisions. For convenience, when discussing possible reforms to the system, “reserved matters” is used as shorthand for all the provisions which deal with the allocation of power between Edinburgh and Westminster.