Challenges to Devolved Legislation (L18/19) Flashcards
What happened in Moohan v Lord Advocate [2014] UKSC 67?
Scottish Independence Referendum (Franchise) Act 2013 excluded prisoners from voting in the independence referendum.
ECHR had (very controversially) held in Hurst v United Kingdom (2005) 42 EHRR 849 that the UK’s “blanket ban” on prisoner voting was contrary to A3P1 ECHR (the duty “to hold free elections at reasonable intervals”).
Was exclusion of prisoner voting in the indyref contrary to ECHR?
UKSC held (5:2): No. A3P1 did not apply to referendums: only to elections.
What happened in Christian Institute [2016] UKSC 51?
Children and Young People (Scotland) Act 2014 made provision for a named persons service under which every child in Scotland would have a designated named person responsible for promoting that child’s “wellbeing”.
Included within the NP’s powers and duties were obligations in certain circumstances to share information about the child and his/her family with others.
Were these obligations in breach of the right to respect for family life under Article 8 ECHR?
UKSC unanimously held: yes they were.
To be lawful, an interference with Article 8 ECHR had to be: in accordance with the law; for a legitimate aim and; proportionate.
Rules re information-sharing were so obscure as to be unclear and, for that reason, inaccessible. Therefore not in accordance with the law.
Rules re information-sharing were for a legitimate aim.
But their application could, in individual cases, give rise to a disproportionate interference with Article 8 rights.
What happened in Scotch Whisky Association [2017] UKSC 76?
Alcohol (Minimum Pricing) (Scotland) Act 2012 provided for a minimum price per unit of alcohol.
Scotch Whisky Association challenged this as being an unlawful restriction on the free movement of goods in the EU (contrary to Article 34 TFEU).
ScotGov argued that the policy could be justified as a reasonable, legitimate and proportionate restriction on the free movement of goods under Article 36 TFEU.
Outer House, Inner House, Court of Session and UKSC agreed with ScotGov (the seven judges in the UKSC were unanimous).
What does SA98 s29 set out?
s29(1) and (2)(b):
An Act of the Scottish Parliament is not law so far as any provision … relates to reserved matters.
s29(3):
The question whether a provision of an Act of the Scottish Parliament relates to a reserved matter is to be determined … by reference to the purpose of the provision, having regard … to its effect in all the circumstances.
What happened in Imperial Tobacco v Lord Advocate [2012] UKSC 61?
Tobacco and Primary Medical Services Act 2010 ss1 and 9 (asp).
Ban on displaying tobacco products at point of sale and ban on selling tobacco products in vending machines.
Imperial Tobacco’s arguments:
Relate to reserved matter of “the sale and supply of goods to consumers (Schedule 5, Head C, section C7)?
Relate to reserved matter of “product safety” (Schedule 5, Head C, section C8)?
REJECTED BY UKSC.
Did not relate to either.
s29(3) applied.
Purpose of legislation was to promote public health - NOT RESERVED.
Paras 40-42.
What was the background for the Continuity Bill Reference [2018] UKSC 64?
The first s.33 reference of an asp to the UKSC.
Legislation which was challenged: what roles should EU law play in the UK after Brexit? (Focuses on Scotland).
European Union (Withdrawal) Act 2018 - passed by Westminster despite Holyrood refusing to consent to it (cf the Sewel convention).
Instead, Holyrood passed the UK Withdrawal from the EU (Legal Continuity) Bill.
What were the 3 main arguments in the Continuity Bill case?
The Bill as a whole related to the reserved matter of the UK’s relations with EU.
- UK Government lost this argument.
- Was not relating to relations with EU (reserved), related instead to the role EU law would play in Scotland (devolved).
s.17 of the Bill modified SA98 s.28(7).
- UK Government won this argument.
That various other provisions of the Bill modified the EU (Withdrawal) Act 2018 contrary to SA98, Sched4.
- UK Government won this argument, but only because EUWA was added (very late in the day) to the list of protected enactments in SA98, Sched 4.
What was the Continuity Bill judgment on reserved powers?
UKSC judgment at paras 33 and 35.
Continuity Bill was concerned not with UK/EU relations but with the “domestic legal consequences” in Scots law of EU withdrawal.
This case is more so about effect, rather than purpose.
UKSC reads reserved powers as limited as possible here.
What was the Continuity Bill judgment on the sovereignty of Parliament?
SA98, s28(7): this Act “does not affect the power of the Parliament of the United Kingdom to make laws for Scotland”.
Continuity Bill, s17 provided that the consent of the Scottish Ministers would be required for certain UK Statutory Instruments to come into force in Scots Law.
UKSC held this would modify s28(7) and was therefore unlawful.
In UNCRC Bill Reference [2021] UKSC 42: modified = “implicitly amended, disapplied or repealed in whole or in part”.
What happened in the UNCRC Bill Reference [2021] UKSC 42?
Applying what the UKSC had said about SA98, s28(7) in the Continuity Bill Reference, the UKSC unanimously ruled as follows:
Holyrood may not require that an Act of the UK Parliament is to be read and given effect subject to the UNCRC (therefore s19 of the Bill is unlawful).
Holyrood may not confer a power on the courts to declare that a provision of an Act of the UK Parliament is incompatible with the UNCRC (therefore ss10-21 of the Bill are unlawful).
Holyrood may not provide that a UK Minister, when applying an Act of the UK Parliament, is acting unlawfully because his/her actions are contrary to the UCRC (therefore s6 of the Bill is unlawful).
