public law lecture 4 Final

What is devolution?

Giving law-making and governing powers to institutions such as the Scottish Parliament and Scottish Government.

Which Parliament passed the Scotland Act 1998?

The UK Parliament.

What do Parts 1 and 2 of the Scotland Act 1998 cover?

Part 1 covers the Scottish Parliament's power to make laws. Part 2 covers the Scottish Government's executive powers.

Which provision establishes the Scottish Parliament?

Scotland Act 1998, s.1(1).

Which provision allows the Scottish Parliament to make Acts?

Section 28(1), subject to the limits in s.29.

What does 'subject to s.29' mean in s.28(1)?

The Scottish Parliament can make laws only within the limits set by section 29.

What does legislative competence mean?

The legal power to make a particular law.

Do Scottish courts get their existence from the Scotland Act 1998?

No. They existed before it. Some government powers also come from the royal prerogative.

What is the royal prerogative?

Traditional powers of the Crown, some exercised by government, that do not come from legislation or judicial precedent.

What does Scotland Act 1998, s.29(1) say?

A part of an ASP that goes beyond the Scottish Parliament's legal powers is not law.

What are the five limits in s.29(2)?

Territorial limits, reserved matters, Schedule 4 protections, Convention rights, and protection of the Lord Advocate's prosecution and death-investigation role.

What is the territorial limit in s.29(2)(a)?

It cannot make law for England or another country. Functions it gives or removes must be exercisable in Scotland or concern Scotland.

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

Scottish legislation relating to reserved matters.

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

Changes that breach the protections in Schedule 4.

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

Legislation that conflicts with Convention rights under the European Convention on Human Rights.

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

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

What is Scotland's reserved powers model?

Matters not reserved are devolved, although the Scottish Parliament must still follow its other legal limits.

Where are reserved matters listed?

Schedule 5 of the Scotland Act 1998, given effect by s.30(1).

How do Schedule 4 and Schedule 5 differ?

Schedule 4 protects specified laws from modification. Schedule 5 lists subjects reserved to the UK level.

Which important Acts are protected by Schedule 4?

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

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

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

Can the Scottish Parliament abolish the Court of Session or High Court of Justiciary?

No. Their continued existence is reserved.

What are other examples of reserved matters?

Foreign affairs, defence, immigration, national security, data protection and treason.

Is all Scottish criminal law devolved?

No. For example, treason is reserved.

What did the Scotland Acts 2012 and 2016 do?

They expanded devolved powers, including powers over income tax, stamp duty, borrowing, drink-driving limits, abortion and social security.

How does s.29(3) decide whether a law relates to a reserved matter?

Look at its purpose, taking account of its effects in all the circumstances.

Does any connection with a reserved subject automatically make a Scottish law invalid?

No. Examine the law's purpose and effects under s.29(3), along with the other relevant rules.

What does s.29(4) say about changes to Scots private or criminal law affecting reserved matters?

Such changes are treated as relating to reserved matters unless their purpose is to make the law apply consistently to reserved and other matters.

What does s.101(2) tell courts to do?

If possible, interpret a law as covering only what the Scottish Parliament has power to regulate, so it stays valid.

Can s.101(2) save a law if no interpretation keeps it within Scottish powers?

No. It only works if an interpretation within those powers is possible.

What is the difference between s.29(3) and s.101(2)?

Section 29(3) tests a law's purpose and effects. Section 101(2) helps preserve it through an interpretation within Scottish powers, where possible.

What is the role of s.126?

It defines terms used in the Scotland Act 1998, including Convention rights.

Can Westminster still make laws for Scotland on devolved matters?

Yes. Section 28(7) preserves the UK Parliament's power to legislate for Scotland.

What is the Sewel Convention?

Westminster will not normally legislate on devolved matters without the Scottish Parliament's consent.

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

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

What is a legislative consent motion, or LCM?

A motion through which the Scottish Parliament agrees to Westminster legislating in the relevant circumstances.

Does refusing an LCM legally stop Westminster passing the law?

No. Sewel is a political convention, not a court-enforceable restriction on Westminster's law-making power.

Which Acts illustrate Westminster legislating without Scottish consent?

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

What can the Secretary of State do under s.35?

On the specified grounds, block the Presiding Officer from sending a Scottish bill for Royal Assent.

What grounds are covered by s.35(1)(a)?

Reasonable grounds to believe the bill conflicts with international obligations or the interests of defence or national security.

What grounds are covered by s.35(1)(b)?

The bill changes law applying to reserved matters, and the Secretary of State reasonably believes this would harm how that law operates.

How do s.29 and s.35 differ?

Section 29 sets the legal limits of Scottish law-making. Section 35 allows the UK Government to block submission for Royal Assent on specified grounds.

Which bill illustrates use of s.35?

The Gender Recognition Reform (Scotland) Bill, passed in 2022. The Secretary of State considered it would affect reserved equality law.

What happened to the Scottish Government's challenge to the Gender Recognition s.35 order?

The Court of Session upheld the UK Government's action in the 2023 Scottish Ministers' petition case.

What law was challenged in Imperial Tobacco Ltd v Lord Advocate [2012] UKSC 61?

Sections 1 and 9 of the Tobacco and Primary Medical Services (Scotland) Act 2010, banning tobacco vending machines and displays.

Why did Imperial Tobacco say the tobacco restrictions exceeded Scottish powers?

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

What did the Supreme Court decide in Imperial Tobacco?

The restrictions were within Scottish powers. Their purpose was to make tobacco less visible, reduce sales and reduce smoking, applying s.29(3).

What is the key rule from Imperial Tobacco?

A law's purpose matters when deciding whether it relates to a reserved matter. A connection with a reserved subject is not enough by itself.

What law was challenged in AXA v Lord Advocate [2011] UKSC 46?

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

What did AXA argue about the Scottish Act?

It should be struck down through judicial review as unreasonable, irrational or arbitrary.

What did the court decide in AXA?

ASPs cannot be reviewed like ordinary secondary legislation on grounds such as irrationality or arbitrariness. The challenge failed.

Does AXA mean Scottish Acts can never be challenged?

No. Challenges under the Scotland Act's competence limits remain possible. The court also recognised exceptional rule-of-law review.

Why do ASPs resemble both primary and secondary legislation?

An elected Parliament makes them and can authorise further legislation, but its powers come from, and are limited by, the Scotland Act 1998.

Why did the Scottish Parliament need extra power for the 2014 independence referendum?

The Union of Scotland and England is reserved, so the referendum was outside its ordinary law-making powers.

What does Scotland Act 1998, s.30(2) allow?

Schedules 4 and 5 can be modified by Order in Council, changing the limits of Scottish law-making powers.

What is an Order in Council in this context?

Secondary legislation made through the Privy Council, which operates in practice as a government tool.

How was the 2014 referendum made legally possible?

Following the 2012 Edinburgh Agreement, the Scotland Act 1998 (Modification of Schedule 5) Order 2013 temporarily allowed the referendum on specified conditions.

Did the 2013 Order give Scotland a permanent, unrestricted referendum power?

No. It temporarily changed the reservation for that referendum, subject to conditions.

When was the 2014 referendum, and what was the result?

18 September 2014. No won with 55.3%, while Yes received 44.7%.

What was proposed in the 2022 Lord Advocate's reference, [2022] UKSC 31?

A non-binding independence referendum asking whether Scotland should be an independent country, without a new s.30 order.

What does Schedule 6, paragraph 34 allow?

Specified law officers, including the Lord Advocate, can ask the Supreme Court to decide a devolution issue not already in court proceedings.

What legal question did the 2022 referendum reference raise?

Could the Scottish Parliament legislate for the proposed referendum, or did it relate to reserved matters?

What did the Supreme Court decide in the 2022 referendum reference?

The proposed referendum related to reserved matters and was outside the Scottish Parliament's powers.

Why did calling the proposed referendum 'non-binding' not bring it within Scottish powers?

Its result would still have major political consequences concerning the Union. The court considered those consequences when deciding whether it related to reserved matters.

Why was a court reference not needed for the 2014 referendum in the same way?

A s.30 order had already provided the necessary power. There was no equivalent order for the later proposal.

Can the Scottish Parliament change UK Acts?

Yes, where the change is within its powers and does not breach protections such as Schedule 4.

Does a new UK Act about a devolved subject automatically remove Scottish power over that subject?

No. The general position is that Scottish power remains unless the relevant legal limits or express protections prevent the change.

Why does the Scotland Act's constitutional status matter when Westminster legislates later?

Its powers should not be silently reduced through implied amendment of Schedule 5. Constitutional statutes require explicit change.

Is it equally straightforward for the Scottish Parliament to let other bodies change UK Acts?

No. The UNCRC and Legal Continuity Bill references show difficulties with granting those powers to other bodies.

What does Scotland Act 1998, s.63A say about the Scottish Parliament and Government?

They are permanent parts of the UK's constitutional arrangements and should not be abolished without a decision by Scotland's people in a referendum.

Why does s.63A give limited legal protection under parliamentary sovereignty?

The UK Parliament can expressly repeal the law. The declaration therefore provides mainly political protection.

Why could the Lord Advocate's two roles create a conflict of interest?

They advise and represent the Scottish Government while also overseeing prosecutions that might concern that Government or its members.

Why was the United Kingdom Internal Market Act 2020 introduced?

After Brexit, there were concerns that different rules across the UK would disrupt trade previously supported by shared EU rules.

What is mutual recognition under UKIMA 2020, s.2?

Goods produced or imported in one part of the UK can be sold in another despite local rules that would otherwise prevent their sale.

What is non-discrimination under UKIMA 2020, s.5?

Rules must not target goods from another UK part or put them at a disadvantage that is not reasonably necessary.

How does UKIMA 2020, s.54 affect Scottish powers?

It protects UKIMA from Scottish amendment through Schedule 4, restricting the Scottish Parliament's ability to change rules in the areas it covers.