UK Government Union Capability

Lord Trevethin and Oaksey Excerpts

Thursday 1st July 2021 Lords Chamber

[Lord Trevethin and Oaksey (CB) [V]]

My Lords, I congratulate the noble Earl on his illuminating speech introducing this debate. I merely wish to make one observation about the following passage in chapter 4 of the review, which discusses intergovernmental relations:

“While the Review therefore agrees there should be a far greater role for Parliament in scrutinising discussions which take place in an IGR setting, to put their basis in statute risks dragging the courts into what fundamentally should be a political and parliamentary realm. In order to build respect and trust around IGR it is therefore important political differences are handled in a political, not legal, space.”


Litigation can be used, and perhaps misused, as a continuation of politics by other means. Some aspects of the Brexit litigation suggest that the concerns expressed in the Dunlop review about the courts being dragged into devolution issues are well founded. The Wightman case was problematic. The applicants there sought a reference to the CJEU of the question of whether an Article 50 notification could be revoked. The issue was academic at that time, although the applicants hoped that it would cease to be so. It is very unlikely that an English court would have been prepared to make the reference. In Scotland, the Outer House dismissed the application as an unacceptable encroachment on political terrain, but the Inner House made the reference and the CJEU determined the issue.

Putting the merits of the decision to one side, the case exposes the risk that politically motivated litigants may forum shop. Forum shopping and moving between the English and Scottish courts in relation to this agreement between central government and devolved Administrations is obviously very undesirable. Miller II, the Prorogation case, involved an actual—as opposed to potential—difference between Scottish and English decisions. The Scottish court made findings about the Prime Minister’s motivations which raised questions that would probably be regarded as non-justiciable in the English courts. The Supreme Court did not need to address the findings of the Scottish court directly, but the constitutional tensions inherent in the case strongly confirmed the wisdom of the preference of the noble Lord, Lord Dunlop, for political solutions to devolution issues.