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Scotland Act 1998

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.

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