Devolution - Scotland

Question 1

Facts of Miller 1?

Answer 1

Gov tried to trigger Art.50 to issue withdrawal from EU via prerogative.

Miller argued Parli must pass AoP authorising gov to issue notice or else, gov is overriding statute (undermines Ps).

Question 2

PP and Sewel

UKSC’s judgement in Miller 1?

Answer 2

Ministers can only issue notice of withdrawal via an AoP.

Sewel Convention – a political convention doesn’t give rise to legal obligation.

Question 3

Four key points from Miller 1?

Answer 3

1. Prerogative can’t be exercised to change the law (main point).
2. Principle that prerogative can’t be used to change constitution emphasised.
3. Retrospective analysis of Factortame – without ECA, no EU law in the UK -> therefore, ECA 1972 is constitutionally significant.
4. Perfectly coherent to say EU has primacy for ordinary law (gov) but this doesn’t alter fundamentals of constitutional order (sovereignty).

Question 4

Facts of Miller 2?

Answer 4

Fixed-term Parliaments Act 2011 – removed PM’s prerogative of dissolving Parliament.

Only call early election if (a) vote of no confidence or (b) vote in favour of a no confidence motion.

So Johnson advised Queen Lizzie to prorogure Parliament for five weeks in Sept-Oct 2019

Question 5

Judgement in Miller 2?

Answer 5

UKSC held proroguing is unlawful if it frustrates, without reasonable justification, Parli in executing constitutional functions as a legislature and regulator of executive (in this case it’s unlawful).

Ps would be undermined if executive could stop it from exercising its legislative authority for as long as it pleased.

Question 6

Three reasons for devolution in Scotland?

Answer 6

1. Democratic deficit – Scot voters had govs voted by English due to England’s disproportionate size/population.
2. Const. incoherent – Scotland had their own law but subjected to English leg.
3. Appeased demands of power in response to rising nationalism.

Question 7

Two main points of Scotland Act 1998?

Answer 7

1. Created unicameral Parli elected by proportionate representation.
2. Reserved powers model – i.e. Scotland has powers over all except reserved matters.

Question 8

S. 28 of the SA 1998?

Answer 8

S. 28 – Scotland’s AoPs will be recognised judicially.

Question 9

S. 28(7) of the SA 1998?

Answer 9

S. 28(7) – doesn’t affect UK Parli’s power to make laws for Scotland.

Question 10

Sewel Convention?

Answer 10

Scotland Act 2016 placed Sewel Convention on statutory footing – amended s. 28(8) SA 1998.

Held that Westminster Parli ‘won’t normally’ legislate on matters involving Scotland w/o Scot Parli’s consent.

Question 11

UKSC said what about Sewel Convention in Miller 1?

Answer 11

Even in statutory form, just a convention:
A political, not legal, obligation – courts have no jurisdiction in regard to it.

Question 12

Consequence of Miller 1 for devolution in Scotland?

Answer 12

De facto victory for UK Parli.

Westminster can, and will, legislate without Scotland’s consent.

Question 13

Ps

McHarg said what about the UKSC after Miller 1?

Answer 13

UKSC’s ruling hinders its ability to acknowledge the plural and contested nature of constitution and court a defence for Ps.

Question 14

AoSP

Judgement in AXA General Insurance v Lord Advocate?

Answer 14

Although AoSP derived authority from Act of UK Parliament, it’s not subject to JR like delegated legislation is.

Question 15

Re AoSP

Lord Hope in AXA General Insurance?

Answer 15

AoSP enjoy the ‘highest legal authority’ like UK Parliament.

Question 16

SA 1998

Judgement in Imperial Tobacco v Lord Advocate?

Answer 16

Courts to treat Scotland Act 1998 in the same way as any other statute.

Scotland Act 1998 to be interpreted according to ordinary meaning of words used, considering its purpose where relevant

Question 17

McHarg on Imperial Tobacco?

Answer 17

Provides generous understanding of devolved competence

Question 18

Facts of Legal Continuity Bill?

Answer 18

Despite fact that Westminster Parli had already infringed Sewel Convention and issued notice of withdrawal from EU w/o Scot Parli’s consent, gov then challenged Scotland’s Bill to give continuity of effect to EU law in devolved nations post-Brexit.

After challenging, but before judgement, Westminster Parli added amended SA 18 to protect it from modification by Scot Parli.

Question 19

Context of Legal Continuity Bill?

Answer 19

S. 12 of EUWA allowed Westminster ministers to specify parts of retained EU law that devolved legislatures couldn’t amend.

Jowell and O’Cinneide – understandable provision -> ensures devolved govs don’t override UK gov.

Question 20

Judgement of Legal Continuity Bill?

Answer 20

UKSC decided they need to take the law as it is, at the time of decision.

Must acknowledge legislative circumstances changed, so must adhere to new legal circumstances (i.e. UK’s addition EUWA into Sch.4 of Scotland Act).

Question 21

Scotland Act 2016 added what to SA 1998?

Answer 21

S. 63(A) to SA 1998 – held that Scot Parli and Scot Gov are a permanent part of UK’s const.
As such, can only be abolished by a decision of Scottish people voting in referendum.

Question 22

McHarg said what about UKSC’s decision in Legal Continuity Bill?

Answer 22

Demonstrates while Westminster’s sovereignty is intact, it’ll always have upper hand in disputes.

Question 23

Facts of UNCRC Bill?

Answer 23

Scottish Parli passed UNCRC Bill & ECLSG Bill.
Aim of Bill – give effect to two treaties to which UK is signatory.

Question 24

Judgement of UNCRC Bill?

Answer 24

UKSC – all provisions outside Holyrood competence –> modifies power of s. 28(7) SA 1998 which Scot Parli can’t do.

Three provisions of UNCRC provision would modify s. 28(7):

S. 19 – would require courts in certain circumstances to give stat provs a different meaning and effect which conflicts with that intended by UK Parli.

S. 20 – would enable courts to strike down and invalidate provs of AoP made by UK Parli which are incompatible with the UNCRC, provided relevant AoP was enacted before s. 20 of UNCRC Bill came into force.
Would affect power of UK Parli to make laws for Scotland.

S. 21 – would confer power for courts to declare a UK Parli’s AoP incompatible with UNCRC so long as AoP was enacted before s. 21 of UNCRC Bill came into force.

Question 25

Elliott and Kilford on UNCRC case?

Answer 25

UNCRC case confirm devolved legislatures are constrained not merely by Ps but by the more far-reaching, and imprecise, notion that it retains “unqualified” power.