Lord McConnell calls for new judicial solution to impending constitutional disputes

Labour peer and former First Minister Lord McConnell has suggested a judge should be appointed to rule over possible constitutional disputes between Holyrood and Westminster as part of the UK’s withdrawal from the EU.

As the repatriated powers will cover devolved areas too, MSPs will also be scrutinising the changes – something Whitehall insiders worry will result in a series of disputes.

Holyrood will be asked to agree with legislative consent motions (LCMs) in a number of areas as the repeal bill goes through Parliament.

Appearing before the Lords EU Committee, Lord McConnell said that there should be some judicial alternative to taking each dispute to the Supreme Court.

“It should be possible through some sort of judicial appointment or something of that sort to have at least an independent view where there’s a dispute over the allocation of powers as a result of repatriation from Brussels,” he said.

Speaking to Scottish Legal News, Stephen Tierney, professor of constitutional theory at Edinburgh University, explained that LCMs are not needed for delegated legislation, which will likely be “the main vehicle for domesticating EU law”, adding: “Nor is there any impediment to the Scottish Parliament passing law in devolved areas which may conflict with the UK government’s plans.

“The only way to arrive at a body of domesticated law that works coherently and consistently across the UK is to maintain an effective system of intergovernmental and inter-parliamentary relations.

“The existing IGR system is being reviewed and already has a mediation system built-in. Whether or not this is sufficiently robust to handle the tensions that will ensue with Brexit preparations remains to be seen.”