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Scotland Act 1998

SCHEDULE 6: Devolution Issues.

Purpose and Effect

This Schedule is given effect to by section 98.  The Schedule defines devolution issues and provides for special procedures to apply to them when they arise in legal proceedings in Scotland, England and Wales and Northern Ireland.  It also makes provision for proceedings in the House of Lords and for direct references to the Judicial Committee.

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.

Parliamentary Consideration

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Details of Provisions

Part 1 - Preliminary

Part 1 (paragraphs 1 and 2) defines “devolution issue” for the purposes of this Schedule as meaning one of a series of questions in the following sub-paragraphs:

  • sub-paragraph (a), a question whether an Act of the Scottish Parliament or any provision of such an Act is within the Parliament’s legislative competence;

  • sub-paragraph (b), a question whether any function which any person purported or is proposing to exercise is a function of the Scottish Ministers, the First Minister or the Lord Advocate. This would include any question as to whether the function has transferred to the Scottish Ministers under section 53 or has remained with a Minister of the Crown;

  • sub-paragraph (c), a question whether the purported or proposed exercise of a function by a member of the Scottish Executive is or would be within devolved competence. This is relevant, for example, as to whether a function is exercisable by the Scottish Ministers by virtue of section 53;

  • sub-paragraph (d), a question whether a purported or proposed exercise of a function by a member of the Scottish Executive is incompatible with any of the Convention Rights or with Community law;

  • sub-paragraph (e), a question whether a failure to act by a member of the Scottish Executive is incompatible with any of the Convention Rights or with Community law;

  • sub-paragraph (f), any other question about whether a function is exercisable within devolved competence or in or as regards Scotland, and any other question arising by virtue of the Scotland Act about reserved matters. The questions swept up into this sub-paragraph can arise in various circumstances. For example, there could be a question whether Her Majesty is making an Order in Council within devolved competence (see note on section 118) or whether a function is exercisable “in or as regards Scotland” so that it may transfer by an order under section 63 or whether a public body is a Scottish public authority whose functions are exercisable only “in or as regards Scotland” (see definition in section 126(1)) or whether the functions of a body relate to a reserved matter (see section 126(3)).

Paragraph 2 provides that a devolution issue should not be taken to arise in proceedings before a court or tribunal merely because a party argues that there is such a question if the court or tribunal considers the argument to be frivolous or vexatious.

Part 2: Proceedings in Scotland

Part 2 of the Schedule provides for proceedings about devolution issues in Scotland.

Paragraph 3 provides that Part 2 applies in relation to devolution issues in proceedings in Scotland.

Paragraph 4 provides that either the Lord Advocate or the Advocate General may raise proceedings for the determination of a devolution issue.  It also specifically provides that when such proceedings are raised by the Advocate General then the Lord Advocate has the right to defend them.  Paragraph 4 also provides that these powers do not prejudice any other powers which may be exercisable by any person.

Paragraph 5 provides that when a devolution issue arises in proceedings before a court or tribunal, intimation of it must be given to the Advocate General and Lord Advocate (if they are not already a party to the proceedings).

Paragraph 6 provides that, if the Advocate General and/or Lord Advocate are given intimation of a devolution issue in any case, they will be able to participate in that case as a party in relation to that issue.

Paragraph 7 provides for references of devolution issues from courts in Scottish civil proceedings (other than the House of Lords or a court of 3 or more judges of the Court of Session) to the Inner House of the Court of Session.  In effect this section allows reference of devolution issues that arise in civil proceedings in the Sheriff Court and in the Outer House of the Court of Session to the Inner House.  Such references are not mandatory.

Paragraph 8 provides that when a devolution issue arises in a tribunal in Scotland from which there is no appeal the issue must be referred to the Inner House.  It further provides that any tribunal from which there is an appeal may make such a reference.

Paragraph 9 provides for references of devolution issues from criminal courts in Scotland to the High Court of Justiciary sitting as a court of Criminal Appeal.  It allows reference of devolution issues that arise in proceedings in the District Courts; in criminal proceedings in the Sheriff Court; and High Court proceedings before one judge to a larger bench of judges in the High Court.

Paragraph 10 provides that a court consisting of 3 or more judges of the Court of Session may refer a devolution issue that arises in a case before it to the Judicial Committee.  The court is not empowered to make such references where the devolution issue has been referred to the court by another court or tribunal under paragraphs 7 and 8.  Accordingly, when the Inner House is acting as a court of first instance or as the court of appeal in ordinary course it will be able to refer a devolution issue that arises before it to the Judicial Committee.

Paragraph 11 provides that a court consisting of 2 or more judges of the High Court of Justiciary may refer a devolution issue that arises in a case before it to the Judicial Committee.  The court is not empowered to make such references where the devolution issue has itself been referred to it by another court under paragraph 9.  Accordingly, when a bench of 2 or more judges is acting as the court of criminal appeal it will be able to refer a devolution issue that arises before it to the Judicial Committee.

Paragraph 12 provides that an appeal against a determination of a devolution issue by the Inner House of the Court of Session, where that issue has been referred to the Inner House by another court or tribunal under paragraphs 7 or 8, will lie to the Judicial Committee.

Paragraph 13 provides that an appeal against a determination of a devolution issue by a court of 2 or more judges of the High Court of Justiciary (sitting in ordinary course or on a reference from another court under paragraph 9) or a court of three or more judges of the Court of Session from which there is no appeal to the House of Lords (in effect the Lands Valuation Appeal Court) will lie to the Judicial Committee.  However, such an appeal could only be made with the leave of the relevant court or, if that leave is refused, with special leave of the Judicial Committee itself.

Part 3: Proceedings in England and Wales

Part 3 (paragraphs 14-23) make similar provisions to Part 2 but for proceedings in England and Wales.

Part 4: Proceedings in Northern Ireland

Part 4 (paragraphs 24-31) make similar provisions to Part 2 but for proceedings in Northern Ireland.

Part 5: General

Paragraph 32 provides that where a devolution issue arises in judicial proceedings in the House of Lords the issue will normally be referred to the Judicial Committee.  However, if the House of Lords considers that it would be more appropriate in the circumstances of any case that it determines the issue it will be able to do so.

Paragraph 33 provides that the Lord Advocate, the Advocate General, the Attorney General or the Attorney General for Northern Ireland (i.e. all the principal Law Officers) may require any court or tribunal to refer to the Judicial Committee any devolution issue that has arisen in proceedings to which he is a party.

Paragraph 34 provides that all the principal Law Officers may refer to the Judicial Committee any devolution issue which is not the subject of proceedings.  This power enables the Law Officers to refer any vires question to the Judicial Committee if it is not already the subject of a judicial dispute.

Paragraph 35 provides the procedure that must be followed when one of the principal Law Officers has made a reference to the Judicial Committee under paragraph 34 relating to the proposed exercise of a function by member of the Scottish Executive.  The Law Officer making the reference must notify a member of the Scottish Executive that he is doing so.  Having been so notified, no member of the Scottish Executive shall exercise the function as proposed until the reference has been disposed of.  If a member of the Scottish Executive does attempt to exercise the function the Advocate General will be able to raise proceedings against him.

Paragraph 36 enables a court where a devolution issue has arisen in a case, to take account of any additional expenses incurred because of the participation of a Law Officer who was not previously party to the proceedings in deciding any question as to costs or expenses in the case.

Paragraph 37 provides that any power to regulate the procedures by which courts and tribunals conduct their business will include the power to make provision for the purposes of this Schedule including when a devolution issue is to be raised or referred; the procedure for sisting or staying (holding a case in abeyance); and the manner and timescale in which notice or intimation must be given.

Rules for the Court of Session, High Court of Justiciary and the Sheriff Court are provided by:

  • Act of Sederunt (Devolution Issues Rules) 1999 (S.I. 1999/1345);

  • Act of Adjournal (Devolution Issues Rules) 1999 (S.I. 1999/1346); and

  • Act of Sederunt (Proceedings for Determination of Devolution Issues Rules) 1999 (S.I. 1999/1347).

Paragraph 38 provides that any power or duty to refer a devolution issue to a court shall be interpreted as a power or, as the case may be duty, to refer the issue to the court for a decision i.e. a binding decision upon that issue.

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