Scotland Act 1998

General

A number of legal questions may be raised as a result of the Scotland Act and the establishment of the Scottish Parliament and the Scottish Executive. There may, for example, be questions as to whether an Act of the Scottish Parliament is within the legislative competence of the Parliament or whether some function has transferred from a Minister of the Crown to the Scottish Ministers or whether a member of the Scottish Executive has acted or failed to act compatibly with the Convention rights or with Community law.

These important questions affect the boundary of the devolution settlement and are called “devolution issues”. This Schedule defines what they are and provides special procedures to apply to them when they arise in legal proceedings. This Schedule does not confer jurisdiction upon the courts to deal with such questions. It assumes that such questions may arise in legal proceedings whether before a court or a tribunal in Scotland, England and Wales and Northern Ireland and then provides for certain procedures to apply.

The main aspects of the special procedures which apply in the case of proceedings in Scotland are:

(a)

that the Advocate General and the Lord Advocate may institute proceedings for the determination of a devolution issue and the Lord Advocate may defend any such proceedings;

(b)

that, where a devolution issue arises in proceedings before a court or tribunal, intimation of the issue has to be given to the Advocate General and the Lord Advocate and they are then entitled to take part in the proceedings, so far as they relate to the devolution issue;

(c)

that, where a devolution issue arises in a court below the level of the Inner House of the Court of Session or the High Court (sitting as a court of Criminal Appeal), the court may refer it to the Inner House or, as the case may be, the High Court. A tribunal may refer such an issue to the Inner House and must do so if there is no appeal from their decision;

(d)

that the Inner House of the Court of Session or the High Court (sitting as a court of Criminal Appeal) may refer a devolution issue to the Judicial Committee - except where the issue has been referred to them;

(e)

that there is an appeal against the determination of a devolution issue by the Inner House or the High Court (sitting as a court of Criminal Appeal) to the Judicial Committee. Leave to appeal from the court concerned or special leave from the Judicial Committee is required in the case of the High Court or the Court of Session where there is no appeal to the House of Lords;

(f)

that any devolution issue which arises in the House of Lords must be referred to the Judicial Committee unless the  House of Lords considers that it would be more appropriate, having regard to all the circumstances, that it should determine the issue;

(g)

that any of the Law Officers may require any court or tribunal to refer any devolution issue to the Judicial Committee; and

(h)

that any of the Law Officers may refer a devolution issue directly into the Judicial Committee provided it is not the subject of proceedings.