Role of the Scottish devolution ‘settlement’ in the recognition of constitutional statutes and Britain’s unwritten constitution
Because the British constitutional order is notoriously uncodified, though not truly ‘unwritten’, we must excavate a little deeper to expose the roots of the constitution. That the British constitutional order includes statutes with constitutional character is clear even on a surface examination. That such statutes will be approached in an especially careful manner by the courts appears increasingly clear. It is these features, and the light which devolution in the evolving territorial constitution helps to shed on them that form the subject of this research. The historical past of Britain’s constitution is long, which is a matter of interest both with respect to the resources on which it can draw, and, perhaps more strongly, because of the narrative of continuity which at times appears to have a normative as well as descriptive and rhetorical dimensions. The thesis begins with a survey along a longer arc which seeks to make sense of the notion of ‘constitutional’ as it has come to be understood over time by constitutional actors, and particularly by the courts, in the British context. In this way, it may be possible to gain insight into the forces which have led to articulation of the idea of constitutional statutes as instruments having a particular status. That historical perspective is followed by a survey of the principal contending intellectual perspectives on the British constitutional order, in order to situate the work which follows. It is against the background of the incompletely resolved, and perhaps irresoluble, contending analyses of constitutional fundamentals, that the emergence of judicial recognition of constitutional statutes as a common law component of the constitution must be considered. This the thesis does first by a doctrinal analysis of the notion of constitutional statutes as that has come to be explicated by the higher courts in the past quarter century. The argument then moves to an examination of the structure of devolution within the UK, and the case law of the higher courts arising from the devolution settlement, as a means of exploring the nature and effect of constitutional statutes, something which has not previously been the subject of systematic analysis. That analysis is extended in light of the re-ordering of components of the British constitution, including the devolution settlement, following on the UK’s departure from the European Union. In doing so, the thesis concludes with reflection on the nuanced constitutional understanding disclosed in the case-law, and how this challenges executive-centred models of the constitutional order.