Devolution Law

Question 1

Scotland Act 1998 Basics

3 sections

Answer 1

s.1(1) - created the Scottish Parliament.
s.28 - gives the power to make laws.
s.35 - gives the UKG power to intervene if a Bill contains provisions which would have an adverse effect on the operation of the law for reserved matters.

Question 2

Sewel convention? and statute

Answer 2

S.28(8)
Uk government will not normally legislate on devolved matters without the consent of the Scottish Parliament.

Question 3

Reserved Matters

Scotland Act for Reserved

Answer 3

s.29(2)(b)
an act of the SP is not law if it relates to a reserved matter.

s.29(3)
reserved matter link is decided with consideration to the purpose/effect

Question 4

Reserved Matters

Imperial Tobacco v TLA 2012

info and principle

Answer 4

INFO
- Scot Goovt passed prohibited display of tobacco/vending machines - companies said this was outside competence (product safety).
- court said NO, instead about public health.

TEST
1. Look at provision and its purpose, rather than content - s.29(3)
2. Examine rules in SA1998 s.29 (1)+(2) - Check it does not fall under any of the exclusion areas.
3. Reach conclusion.

Question 5

Reserved Matters

Lord Advocate’s Reference 2022

attached to tobacco

Answer 5

Expands on s.29(3) purpose rule.
- Considering purpose must include the practical purpose/intention and effect it will have.

Question 6

Protected Enactments

Scotland Act for Protected Enactments

Answer 6

s.29(2)(c)
An act of the SP is not law if it breaches the restrctions in Sch4.
this says that acts cannot modufy protected enactments, incl. SA1998 itself.

s.28(7)
An act of the SP cannot change the power of the UKP to make laws for Scotland.

Question 7

Protected Enactments

Continuity Bill Reference 2018

Answer 7

INFO
- Act said any legislation made by the UKG about REUL should have consent from Scotland - UKG argued this was reserved matter.
- Court said EU was reserved matter, but this was about inter-UK function rather than international.

RULE
- A protected enactment may be modified by a later enactment if there is not an explicit appeal, as long as there is an implied change in the rule.

Question 8

Convention Rights

Scotland Act for Convention Rights

Answer 8

s.29(2)(d)
An act of the SP will not be law if it is incompatible with convention rights.

Question 9

Convention Rights

AXA General Insurance v TLA 2011

Answer 9

INFO
- Many people were exposed to asbestos, caused health problems.
- Scot Govt passed an act saying asbestos related health issues should be treated as non-negligible harm.
- insurance companies said this was interfering with their right to property.
- Court said this an be interfered with if it is for public interest.

RULE
- Act of SP is not subject to normal gorunds of common law judicial review such as irrationality as it is a democratically elected legislature, and not statute.
- common law judicial review is possible in exceptional circumstances/extreme cases - e.g. abolish judicial review, prevent access to courts, remove rights.