Devolution

Question 1

Quick Q:

The Scottish Parliament has passed an Act of the Scottish Parliament affecting university education. The Scotland Act 1998 (as amended) does not list education as a devolved matter. A university affected by the Act has challenged it by way of judicial review on the grounds that it is outside the Scottish Parliament’s legislative competence and irrational.

Which of the following best describes the approach the courts are likely to take to the challenge?

The courts will reject the challenge unless education is listed in the 1998 Act as a reserved matter.

Answer 1

Option A is correct. The reserved powers model applies to the Scottish Parliament. This means that the Scottish Parliament has the power to pass legislation on all matters which are not explicitly reserved to the Westminster Parliament. (In fact, education is not a reserved matter so the Act will be within the Scottish Parliament’s legislative competence.) Option B is wrong because the Enrolled Act Rule only applies to Acts of the UK Parliament which is a sovereign legislature.

Option C is wrong as individuals (including universities) do have the standing to challenge Acts of the devolved legislatures.

Option D is wrong as the Supreme Court has stated that Acts of the devolved legislatures cannot be challenged on common law grounds such as irrationality.

Option E is wrong, because under the reserved powers model devolved matters are all those matters except for those that are reserved.

Question 2

Does the Senedd Cymru have the power to amend Acts of the UK Parliament?

Answer 2

Yes, unless the subject-matter of the bill is outside its legislative competence.

Question 3

Does the UK Parliament have the power to pass Acts covering the whole of the UK even if the devolved legislature opposes the legislation?

Answer 3

Yes

The Westminster Parliament remains sovereign notwithstanding devolution. It can therefore can pass Acts for the whole of the UK pertaining to devolved matters even in the face of opposition from the devolved legislatures. Although the Sewel Convention provides that the UK Parliament will not normally legislate on a devolved matter without the devolved legislature’s consent, it has the competence to do as the Sewel Convention is not legally enforceable.

Question 4

Process to determine whether a bill is within the devolved legislature’s competence.

Question in the example was: Can the UK Government challenge the Act passed by the Scottish Parliament through the Supreme Court?

Answer 4

Yes, because the Act deals with defence of the UK, which is a matter reserved to the UK Parliament, so the Attorney-General can ask the Supreme Court to determine whether the Scottish Parliament had legislative competence.

Question 5

Quick Q:

The minister in charge of a bill being presented to the Scottish Parliament has asked for advice whether they can make a statement that the bill is within the Parliament’s legislative competence. The minister’s main concern is that the bill amends an Act of the UK Parliament.

Can the minister make a statement that the bill is within the Parliament’s legislative competence?

Yes, because the Scottish Parliament has power to amend Acts of the UK Parliament unless the subject-matter of the bill is outside its legislative competence.

Answer 5

Option E is correct. The Scottish Parliament has power to amend Acts of the UK Parliament unless the subject-matter of the bill is outside the legislative competence of the Scottish Parliament.

Option A is wrong as Acts of the UK Parliament are not in themselves reserved matters. The subject-matter of some Acts are reserved matters, but the Acts concerned must be specifically listed in the devolution legislation. Option B is wrong. Although there are some protected statutes such as the Human Rights Act 1998 which the Scottish Parliament cannot amend, Acts of the UK Parliament are not in general protected.

Option C is wrong as Acts of the Scottish Parliament are primary legislation. Although the Scottish Parliament is not sovereign in the way that the UK Parliament is, its Acts are still primary legislation. In any event, it is possible for secondary legislation to amend primary legislation. See for example Henry VIII powers discussed in Chapter 2.

Option D is wrong as, unlike the UK Parliament, there are limits on the Scottish Parliament’s legislative competence.