Law of Devolution (L17) Flashcards
What is the Sewel Convention?
SA98, s28(8):
“It is recognised that the Parliament of the UK will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.”
This is a CONSTITUTIONAL CONVENTION which is recognised in statute.
Not judicially enforceable (R (Miller) v Secretary of State [2017] UKSC 5, paras 136-51). Parliament still has the power to do this.
What happened in Whaley v Watson 2000 SC 340 (IH) and why was it a mis-step in case law?
Lord President (Rodger):
The SP “is a body which, like any other statutory body, must work within the scope of the powers conferred upon it by statute. The Court has the same power over the Parliament as it would have over any other statutory body”.
SP is democratically elected - has the power to make laws. Rodger is incorrect here.
Court does not have same powers over SP as it would over any other statutory body.
What happened in Robinson v SSNI [2002] UKHL 32 and why is it significant?
Lords Bingham and Hoffmann:
The Northern Ireland Act 1998 is “in effect a constitution” which should be interpreted “generously and purposively”.
Polar opposite to Whaley.
What was the question in AXA General Insurance v Lord Advocate [2011] UKSC 46 (1)?
SA98, s29 lists the grounds on which an ASP may be challenged (that it extends beyond Scotland, that it relates to reserved matters, that it is incompatible with Convention rights, etc).
Could an ASP additionally be challenged on common law grounds of judicial review: i.e. that it is irrational or unreasonable?
What did Lord Hope conclude in AXA?
In general terms, no, an ASP cannot be challenged on common law grounds of judicial review.
An ASP could be challenged under the common law only if it was violative of the rule of law. Cf Lord Hope in Jackson!
Para 46: Scottish Parliament is “self-standing”; its enactments enjoy “the highest legal authority”
Para 49: “The dominant characteristic of the Scottish Parliament is its firm rooting in the traditions of a universal democracy … While the judges, who are not elected, are best placed to protect the rights of the individual … elected members of a legislature … are best placed to judge what is in the country’s best interests as a whole … [as they have] the advantages that flow from the depth and width of experience of … elected members and the mandate that has been given to them by the electorate …”
What did Lord Reed conclude in AXA?
Scottish Parliament’s powers do not need to be exercised for any specific purpose: in that sense, its law-making powers are “plenary” (para 147).
As long as its powers are exercised within the limits set by SA98, s29, how it exercises its lawmaking powers is a political question in respect of which the Parliament is accountable to the electorate, not a legal one in respect of which the Parliament is accountable to the courts (para 148).
But, under Lord Hoffmann’s principle of legality in Simms, Parliament cannot be taken to have intended to create a body (the Scottish Parliament) able to legislate contrary to the fundamental rights of the individual or contrary to the rule of law.
What was the question in Imperial Tobacco v Lord Advocate [2012] UKSC 61?
How to interpret SA98 in terms of how broad (or generous) its grant of legislative authority to the Scottish Parliament is?
What were the three principles in Imperial Tobacco?
Section 29 and Schedules 4 and 5 govern the matter (para 13).
These provisions must be interpreted in the same way as any other rules found in a UK statute.
SA98 designed to create a system that is “coherent, stable and workable”; thus, interpretation should be “constant and predictable” (para 14).
No special status can be attached to describing SA98 as a “constitutional statute”.
There is no “presumption in favour of competence” but SA98 was “intended, within carefully defined limits, to be a generous settlement of legislative authority” (para 15).
