Constitutional Jurisprudence on Federalism and Devolution in UK and Canada

Abstract

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.

By contrast, the courts have taken a restrictive view on the interpretation of the Scotland Act and the UK Supreme Court has explicitly rejected the idea that conventions can be legally enforced. This judicial restraint is helped by the fact that the division of competences between the two levels is reasonably clear and the lack of challenges from the UK Government. While the UK Government insists that it still has the power to legislate in devolved fields, it has generally accepted the convention that it will not do so. Such challenges as there have been have come mostly from private parties and often based on European Union law and the European Convention on Human Rights, which are directly applicable in Scotland in relation to devolved matters. There is also a general reluctance in British political culture to take matters to the courts, rather than resolving them through political challenges. Even the contentious matter of whether the Scottish Parliament could authorize a vote on independence was by-passed in an agreement between the UK and Scottish governments to transfer the power on a temporary basis, on condition that a clear question was asked. This remains an open issue in Quebec, which would return were a future Quebec government to attempt a third independence referendum.