Constitutional basis of judicial review in Scotland
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Date
02/07/2014Item status
Restricted AccessEmbargo end date
31/12/2100Author
Thomson, Stephen
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Abstract
The thesis examines the constitutional position of the Court of Session's supervisory
jurisdiction.
It begins by emphasising the methodological and substantive importance of the historicality
and traditionality of law. It then provides a detailed historical account of the emergence of
the Court's supervisory jurisdiction, from its inheritance of supervisory functions from
emanations of the King's Council to the present-day law of judicial review. Throughout,
emphasis is placed on the Court's strong sense of self-orientation in the wider legal and
constitutional order, and the extent to which it defined its own supervisory jurisdiction. The
court was a powerful constitutional actor and played a strong role in the increasing
centralisation and systematisation of the legal order, expanding its supervisory purview
through a powerful triumvirate of remedies (advocation, suspension and reduction) and a
comprehensive approach to the supervision of a wide range of bodies.
The thesis then frames tensions between Parliament and the Court in the context of judicial
review of ouster clauses, chosen as a point of heightened inter-institutional tension. This is
demonstrated to be an area in which divergent visions of the constitution are evident –
Parliament regarding itself as entitled to oust the jurisdiction of the Court to judicially
review, and the Court regarding itself as entitled to examine and pronounce on the extent of
ouster, including its limitation or exclusion. In attempting to conciliate these divergent
constitutional worldviews, the thesis rejects a “last word” approach which prevails in the
English judicial review literature. It considers (and rejects), as alternatives, dialogue theories
and functional departmentalism.
The thesis then advances constitutional narratology as its preferred analytical framework for
the accommodation of those inter-institutional tensions, and conciliation of their divergent
worldviews. The Court's performance of a constitutional-narratological function facilitates
the integration, conciliation and synthesis of legal norms with an existing law and legal
system; weaves and coagulates multifarious legal norms into a unified and univocal body of
norms; and executes a chronicling, expository and explanatory storytelling function which
sets a legally-authoritative narrative to the law. In doing so, the Court performs a distinctive
and indispensable constitutional function incapable of fulfilment by Parliament. It is argued
that traditionality and functional necessity provide the legal-systemic legitimation for the
Court's performance of the constitutional-narratological function. Finally, the thesis
considers the institutional specificity of the function, concluding that it is the function, rather
than the institution, that is indispensable. However, neither the advent of the Upper Tribunal
nor the U.K. Supreme Court suggest at this stage that the Court's performance of that
function is waning.