constitutional law 2 - Devolution Flashcards
what was the significance of Robinson v Secretary of State for Northern Ireland [2002] UKHL 32?
sets out that the 1998 Ireland act functions as a constitution and should be interpreted generously and purposively to ensure political flexibility.
all about statutory interpretation and the purposive intent of Parliament to legislate generously.
What was the main purpose of the Scotland Act 1998?
It established the Scottish Parliament, provided it with legislative powers, created the Scottish Executive (later Scottish Government), and set limits on its competence.
Under Section 29(1), when is an Act of the Scottish Parliament not law?
If it is outside the Parliament’s legislative competence, such as:
(a) Applying outside Scotland
(b) Relating to reserved matters
(c) Breaching Schedule 4 restrictions
(d) Violating Convention rights (ECHR)
(e) Undermining the Lord Advocate’s role
How do we determine if an issue is reserved under the 1998 Scotland act?
Schedule 5 of the Scotland Act 1998 lists reserved matters, including:
The Constitution (Crown, UK Parliament, Union with England)
Foreign affairs, defence, civil service, treason
Financial & economic policy (Bank of England, taxation)
Consumer protection
What power does Section 35 of the Scotland Act give the UK Government?
The Secretary of State can prevent a Scottish Bill from receiving Royal Assent if it:
Conflicts with international obligations or national security
Adversely affects reserved matters
Key Case:
Re Scottish Minister’s Petition 2023 CSOH 89 – Scotland’s Gender Recognition Reform Bill was blocked under Section 35, and the Scottish Government’s judicial review failed.
What are the five conditions under which a provision is outside legislative competence according to Section 29(2)?
It applies to a territory other than Scotland.
It relates to reserved matters.
It breaches restrictions in Schedule 4.
It is incompatible with Convention rights.
It removes the Lord Advocate from their position.
What were the key principles established in Imperial Tobacco for determining legislative competence?
Competence must be assessed according to Section 29 and Schedules 4 & 5.
The rules must be interpreted like any UK statute, using ordinary meaning.
The Scotland Act is a constitutional statute, but it must still be interpreted as a normal statute.
What was the Supreme Court’s decision in Lord Advocate’s Reference and What key legal principles were established?
The Bill did relate to the reserved matter of the Union, meaning the Scottish Parliament could not legislate for an independence referendum.
“Relates to” means more than a loose connection—practical and political consequences matter.
Purpose analysis under Section 29(3) involves looking beyond the Bill’s wording to its real intent.
The Bill’s effect is not just its legal impact but also its wider political significance.
What were the key facts of UNCRC Bill Reference [2021] UKSC 42 and the principles derived from the judgement?
The Bill required that, “so far as it is possible,” UK Acts must be read in a way compatible with the UNCRC. The UK Government argued this effectively modified the UK Parliament’s power to legislate for Scotland.
Section 28(7) is interpreted broadly—it is modified not just by direct legal constraints but also by provisions that create political pressure on the UK Parliament.
The ruling reinforces that the Scottish Parliament cannot pass laws that affect the UK Parliament’s ability to legislate for Scotland, even indirectly.
How does the ruling in Imperial Tobacco contrast with Lord Advocate’s Reference?
Imperial Tobacco: Interpreted legislative competence generously, allowing for broad powers.
Lord Advocate’s Reference: Applied a strict approach, emphasising the reserved nature of the Union.
What were the key issues with Continuity Bill Reference [2018] UKSC 64 and the principles derived from it?
1) Is the Continuity Bill as a whole outside the legislative competence of the Scottish Parliament because it relates to the reserved matter of “relations with the EU” under Schedule 5?
2) Is Section 17 outside the legislative competence of the Scottish Parliament because it would be in breach of the Schedule 4 restrictions in that it would “modify” section 28(7) of the Scotland Act 1998?
A little summary of how to approach questions of legislative competence at para. 12 (basically reaffirming the principles from Imperial Tobacco).
Clarification of what it means to “modify” a protected enactment under Schedule 4 of the Scotland Act 1998:
“Without attempting an exhaustive definition, a protected enactment will be modified by a later enactment, even in the absence of express amendment or repeal, if it is implicitly amended, disapplied or repealed in whole or in part”. [para. 51].
1st precedent for the proposition that if a provision in an Act of the Scottish Parliament obstructs or hinders the UK Parliament’s ability to make laws for Scotland it will “modify” s. 28(7) of the Scotland Act 1998 (and therefore be outside the legislative competence of the Scottish Parliament).
What are the broader constitutional implications of UNCRC case?
The judgment highlights that devolution has clear legal limits and that UK parliamentary sovereignty remains intact, even if Scotland seeks to legislate within its devolved powers.
How did the Supreme Court rule on the incompatibility declarator provisions in UNCRC?
The Court ruled that while they did not legally invalidate UK Acts, they could politically pressure the UK Parliament, which still modified section 28(7).
How did Lady Haldane rule on the Principle of Legality argument in Re Scottish Minister’s Petition [2023] CSOH89?
She dismissed the argument, stating that s35…
(UK parl blocking Scot parl for ‘reasonable grounds’)
does not undermine the Rule of Law or interfere with fundamental rights, as it is part of the constitutional framework under devolution.
What does Re Scottish Minister’s Petition [2023] CSOH89 illustrate about the limits of Scottish legislative competence?
The ruling emphasizes that the Scottish Parliament cannot pass laws affecting reserved matters without UK Government oversight, reinforcing that section 35 is a lawful check on devolution.
what does s.28(7) of the 1998 act state?
“The section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland”.
what does s.126 of the 1998 act tell?
(1) In this Act—
* “the Convention rights” has the same meaning as in the . Human Rights Act 1998. Human Rights Act 1998, s(1) In this Act “the Convention rights” means the rights and fundamental freedoms set out in— (a) Articles 2 to 12 and 14 of the Convention,
what were the main concerns in AXA?
1st Issue:
Does the 2009 Act violate Article 1, Protocol 1 (A1P1) of the ECHR (Right to Property)?
❓ 2nd Issue:
Can the legislative competence of the Scottish Parliament be challenged on grounds other than s.29?
If so, is the Act irrational, unreasonable, or arbitrary?
what were the judgments from each judge in AXA and their significances?
Key Judgments in AXA
⚖ Lord Hope:
Judges must retain power to strike down extreme legislation.
Rule of law requires courts to step in if necessary.
⚖ Lord Reed:
The Scottish Parliament has plenary powers within its limits.
Common law review applies only in extreme cases.
⚖ Lord Mance:
Would allow some irrationality-based review (e.g. blatantly discriminatory law).
what are the principles to take from AXA?
Judicial Review of Scottish Parliament Acts?
Possible only in extreme cases.
Not possible for mere irrationality or unreasonableness.
UK Supreme Court’s View on Scottish Parliament:
More than a statutory body but less than a sovereign legislature.
UK Parliament still retains ultimate control.
AXA confirms:
Scottish Acts can be challenged on common law grounds.
Courts will not interfere unless an extreme constitutional violation occurs.
