public law Lecture 4 flashcards from transcription and slides

What does devolution tell us about how power is shared between Scotland and the UK?

The relationship between the Scottish legal system and the rest of the UK, and how powers are shared between UK and Scottish institutions.

Which UK nations have devolved legislatures, according to the lecture?

Scotland, Wales and Northern Ireland. England as a whole has no separate devolved legislature, although some English regions have devolved bodies.

What happened to the Scottish and English Parliaments in 1707?

They combined to form the Parliament of Great Britain, the ancestor of the present UK Parliament.

Which statute is the central instrument of Scottish devolution in this lecture?

The Scotland Act 1998, an Act of the UK Parliament which devolved powers to the Scottish Parliament.

Which provision establishes the Scottish Parliament?

Scotland Act 1998, s.1(1): “There shall be a Scottish Parliament.”

What does Part 1 of the Scotland Act 1998 cover?

The legislative authority of the Scottish Parliament: how and on what matters it can make primary legislation.

What does Part 2 of the Scotland Act 1998 cover?

The executive authority of the Scottish Government.

What does it mean that the Scottish Parliament is unicameral?

It has a single chamber, with no separate houses.

How many elected members sit in the Scottish Parliament, and what are they called?

129 Members of the Scottish Parliament (MSPs).

Where does the Scottish Parliament sit?

Holyrood, Edinburgh.

Which provision gives the Scottish Parliament power to make Acts?

Scotland Act 1998, s.28(1): subject to s.29, the Parliament may make laws known as Acts of the Scottish Parliament (ASPs).

Do all Scottish institutions derive their powers from the Scotland Act 1998?

No. The courts predate it, and some executive powers derive from the royal prerogative.

When was the Court of Session established, according to the lecture?

1532, long before both the Acts of Union and the Scotland Act 1998.

What is the royal prerogative in the lecture’s account?

A source of traditional executive powers outside legislation and judicial precedent.

What does legislative competence mean in this lecture?

The scope of the Scottish Parliament’s legal power to make legislation.

Which section primarily governs the Scottish Parliament’s legislative competence?

Section 29 of the Scotland Act 1998, although other provisions also matter.

What is the first question to ask when examining the validity of an ASP?

Is the provision within the legislative competence of the Scottish Parliament?

What does s.29(1) of the Scotland Act 1998 provide?

An ASP is not law so far as any provision is outside the Parliament’s legislative competence.

What is the consequence of a provision being outside legislative competence?

It is not law to that extent: it is invalid and cannot be relied upon as law.

What is the difference between s.29(1) and s.29(2)?

Section 29(1) states the consequence of exceeding competence; s.29(2)(a)–(e) identifies grounds on which a provision is outside competence.

What are the five restrictions listed in s.29(2)(a)–(e)?

Territorial limits; reserved matters; Schedule 4 restrictions; incompatibility with Convention rights; removing the Lord Advocate as head of criminal prosecution and investigation of deaths.

What territorial restriction appears in s.29(2)(a)?

A provision is outside competence if it would form part of another country’s or territory’s law, or confer or remove functions exercisable otherwise than in or as regards Scotland.

Could the Scottish Parliament make conduct illegal in France or England under the lecture’s territorial example?

No. That would exceed the territorial limits in s.29(2)(a).

What does s.29(2)(b) prohibit?

Provisions relating to reserved matters.

What does s.29(2)(c) prohibit?

Provisions breaching the restrictions in Schedule 4 of the Scotland Act 1998.

What does Schedule 4 of the Scotland Act 1998 contain?

Restrictions protecting specified enactments or provisions from modification by the Scottish Parliament.

Which Union provisions are identified as protected in Schedule 4?

Articles 4 and 6 of the Union with Scotland Act 1706 and the Union with England Act 1707, so far as they relate to freedom of trade.

Which three major modern Acts are listed as protected under Schedule 4?

Human Rights Act 1998; European Union (Withdrawal) Act 2018; United Kingdom Internal Market Act 2020.

Which other enactments or provisions are listed as Schedule 4 examples on the slides?

Private Legislation Procedure (Scotland) Act 1936; Schedule 32, paragraphs 5(3)(b) and 15(4)(b), Local Government, Planning and Land Act 1980; ss.140A–140G, Social Security Administration Act 1992.

What does s.29(2)(d) prohibit?

Provisions incompatible with any Convention rights.

Where does the Scotland Act define “Convention rights”?

Section 126(1): the term has the same meaning as in the Human Rights Act 1998.

Which convention is meant by “Convention rights” in the lecture?

The European Convention on Human Rights, through the definition in the Human Rights Act 1998.

What does s.29(2)(e) protect?

The Lord Advocate’s position as head of the systems of criminal prosecution and investigation of deaths in Scotland.

What model of devolution operates in Scotland?

A reserved powers model: everything not reserved is devolved, subject to the other competence restrictions.

Does the reserved powers model list only the powers granted to the Scottish Parliament?

No. It identifies reserved matters; powers outside the reservations are devolved, subject to the other restrictions.

What statutory trail identifies reserved matters and their legal effect?

Section 29(1) → s.29(2)(b) → s.30(1) → Schedule 5 of the Scotland Act 1998.

What does s.30(1) of the Scotland Act 1998 do?

It gives effect to Schedule 5, which defines reserved matters.

What is the difference between Schedule 4 and Schedule 5?

Schedule 4 protects specified enactments or provisions from modification; Schedule 5 defines reserved matters.

Which five constitutional matters are reserved by Schedule 5, Part I, paragraph 1?

The Crown; the Union of Scotland and England; the UK Parliament; the continued existence of the High Court of Justiciary; the continued existence of the Court of Session.

What aspects of the Crown are expressly included in the constitutional reservation?

Succession to the Crown and a regency.

What aspect of the High Court of Justiciary is reserved?

Its continued existence as a criminal court of first instance and appeal.

What aspect of the Court of Session is reserved?

Its continued existence as a civil court of first instance and appeal.

Could the Scottish Parliament abolish the Court of Session?

No. Its continued existence is reserved by Schedule 5, Part I, paragraph 1(e).

Which executive matters does the constitutional reservation expressly leave unreserved?

The Crown’s prerogative and other executive functions; functions exercised by people acting for the Crown; offices in the Scottish Administration.

What is the practical significance of the executive exceptions to the constitutional reservation?

The Scottish Parliament can modify powers of the Scottish Government.

Which matters are covered by Schedule 5, Part I, paragraphs 6–10?

Paragraph 6: political parties; 7: foreign affairs; 8: UK Civil Service; 9: defence; 10: treason.

Why is treason an important example of a reserved matter?

Although Scots criminal law is generally devolved, treason is expressly reserved by Schedule 5, Part I, paragraph 10.

Which headings in Schedule 5, Part II concern financial/economic matters and social security?

Head A concerns financial and economic matters; Head F concerns social security. Some taxation and social security powers have nevertheless been devolved.

Give examples of other reserved areas listed in the lecture.

Drugs, data protection, elections, firearms, immigration, national security, gambling, consumer protection, electricity, trade, transport, regulation of professions and medicines.

Is the lecture’s list of reserved matters exhaustive?

No. It gives highlights from Schedule 5, which contains further reservations, including in Part III.

How did the Scotland Acts 2012 and 2016 affect devolution?

They expanded some Scottish Parliament powers by amending the devolution settlement, including Schedule 5.

Which new devolved powers are listed for the Scotland Acts 2012 and 2016?

Income tax, stamp duty, borrowing powers, drink-driving limits, abortion and social security.

Were the Scotland Acts 2012 and 2016 passed by the Scottish Parliament?

No. They are Acts of the UK Parliament amending the Scotland Act 1998 settlement.

What test does s.29(3) establish for whether a provision relates to a reserved matter?

Determine the provision’s purpose, having regard among other things to its effect in all the circumstances, subject to s.29(4).

What two practical questions help apply s.29(3)?

Why was the provision enacted, and what effect will it have? Purpose is assessed with regard to effects.

Does an apparent connection with a reserved subject automatically settle competence?

No. Apply the purpose-and-effect test in s.29(3), consider s.29(4), and consider whether a narrow reading under s.101(2) is possible.

What is the general rule in s.29(4)?

A provision otherwise unrelated to reserved matters is treated as relating to them if it modifies Scots private or criminal law as it applies to reserved matters, subject to the consistency exception.

What is the consistency exception in s.29(4)?

The provision is not treated as reserved on that basis if its purpose is to make the law apply consistently to reserved matters and otherwise.

What does s.101(2) require when interpreting a provision for competence?

Read it as narrowly as required for it to be within competence, if such a reading is possible, and give it effect accordingly.

Why is s.101(2) called a devolution-saving provision?

It preserves a provision as valid law where a sufficiently narrow interpretation can bring it within competence.

Can s.101(2) save a provision if it cannot be interpreted in a way that falls within the Scottish Parliament’s powers?

No. It only works if the words can mean something within the Scottish Parliament’s powers.

Which three special interpretative provisions does the lecturer emphasise?

Sections 29(3), 29(4) and 101(2) of the Scotland Act 1998.

What is the general role of s.126 of the Scotland Act 1998?

It defines terms used in the Act, helping interpret its provisions.

When does a “financial year” end under the s.126 extract on the slide?

31 March.

What does “functions” include under the s.126 extract?

Powers and duties.

What counts as a “document” under the s.126 extract?

Anything in which information is recorded in any form.

Which resources does the lecturer recommend for understanding the Scotland Act?

The statute, course textbooks and the statute’s explanatory notes, especially for the competence and interpretation provisions.

Which provision preserves Westminster’s power to legislate for Scotland?

Scotland Act 1998, s.28(7).

Can Westminster legislate on devolved matters as well as reserved matters?

Yes. Section 28(7) preserves the UK Parliament’s power to make laws for Scotland, including on non-reserved matters.

Why does the UK Parliament seek a legislative consent motion (LCM)?

To obtain Scottish Parliament consent and reduce political friction when legislating on devolved matters.

According to the lecture, how were consent disputes generally handled from 1998 to 2017?

The UK Parliament modified the relevant bill to secure the Scottish Parliament’s consent through political compromise.

Which Act is identified as the first passed without Scottish legislative consent?

The European Union (Withdrawal) Act 2018.

What is a constitutional convention in this lecture?

A non-binding political understanding forming part of the UK Constitution.

What does the Sewel Convention state?

The UK Parliament will not normally legislate on matters devolved to Scotland without the Scottish Parliament’s consent.

Where is the Sewel Convention recognised in the Scotland Act 1998?

Section 28(8), inserted by s.2 of the Scotland Act 2016.

Did statutory recognition make Sewel legally enforceable, according to the lecturer?

No. It remains a political convention; the wording “will not normally” does not create a court-enforceable bar in the lecture’s account.

Which two clearly identified Acts are examples of breaches of the Sewel Convention in the lecture?

European Union (Withdrawal) Act 2018 and United Kingdom Internal Market Act 2020.

Does refusal of an LCM legally prevent Westminster legislating?

No. Westminster retains its legislative power under s.28(7); consent operates as a political constraint in the lecture’s account.

What further control does the UK Government have over Scottish bills under s.35?

The Secretary of State can, on the specified grounds, prohibit the Presiding Officer from submitting a bill for Royal Assent.

What grounds are listed in s.35(1)(a)?

Reasonable grounds to believe bill provisions would be incompatible with international obligations, or the interests of defence or national security.

What grounds are listed in s.35(1)(b)?

The bill modifies law as it applies to reserved matters, and the Secretary of State reasonably believes this would adversely affect the operation of that law.

Who makes a s.35 order, and whose action does it prohibit?

The Secretary of State makes the order; it prohibits the Scottish Parliament’s Presiding Officer from submitting the bill for Royal Assent.

Why does preventing Royal Assent stop a Scottish bill becoming law?

Royal Assent is required before the bill can become law.

How do s.29 and s.35 differ?

Section 29 determines whether provisions fall within legislative competence; s.35 allows the Secretary of State to block submission for Royal Assent on its specified grounds.

Which bill illustrates use of s.35 in the lecture?

The Gender Recognition Reform (Scotland) Bill, passed by the Scottish Parliament in 2022.

What change in the Gender Recognition Reform Bill is highlighted?

Removal of the requirement for a medical diagnosis of gender dysphoria to change legal gender.

Why was a s.35 order made concerning the Gender Recognition Reform Bill?

The Secretary of State considered it would affect reserved equal opportunities law, specifically the Equality Act 2010.

Which protected characteristic is highlighted in the lecture’s Equality Act discussion?

Sex.

What happened when the Scottish Government challenged the Gender Recognition s.35 order?

The Court of Session sided with the UK Government in Re Scottish Minister’s Petition, 2023 CSOH 89, as cited in the slides.

What is the citation for Imperial Tobacco in the slides?

Imperial Tobacco Limited v the Lord Advocate [2012] UKSC 61.

Which legislation was challenged in Imperial Tobacco?

Sections 1 and 9 of the Tobacco and Primary Medical Services (Scotland) Act 2010.

What did the challenged tobacco provisions prohibit?

Tobacco vending machines and the display of tobacco products.

Why did Imperial Tobacco argue the provisions exceeded competence?

It argued they concerned reserved product safety and the sale and supply of goods to consumers, under Schedule 5, Part II, C7 and C8.

What was the outcome in Imperial Tobacco?

The UK Supreme Court dismissed the appeal and held ss.1 and 9 within the Scottish Parliament’s competence.

How did the court identify the purpose of the tobacco provisions?

To make tobacco products less visible, reduce sales and reduce smoking.

Which statutory test did the court apply in Imperial Tobacco?

The purpose test in s.29(3) of the Scotland Act 1998.

What is the key competence lesson from Imperial Tobacco?

Assess the provision’s purpose under s.29(3); an apparent connection with a reserved subject does not by itself establish that it relates to a reserved matter.

What is the citation for AXA in the slides?

AXA General Insurance Limited & ors. v The Lord Advocate & ors. [2011] UKSC 46.

Which Act was challenged in AXA?

The Damages (Asbestos-related Conditions) (Scotland) Act 2009.

What common-law challenge did AXA advance?

That the Act should be struck down as unreasonable, irrational or arbitrary.