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Section 98.

SCHEDULE 6E+W+S+N.I. Devolution issues

Part IE+W+S+N.I. Preliminary

1In this Schedule “devolution issue” means—E+W+S+N.I.

(a)a question whether an Act of the Scottish Parliament or any provision of an Act of the Scottish Parliament is within the legislative competence of the Parliament,

(b)a question whether any function (being a function which any person has purported, or is proposing, to exercise) is a function of the Scottish Ministers, the First Minister or the Lord Advocate,

(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,

(d)a question whether a purported or proposed exercise of a function by a member of the Scottish Executive is, or would be, incompatible with any of the Convention rights or with [F1EU] law,

(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 [F1EU] law,

(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 this Act about reserved matters.

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Amendments (Textual)

2A devolution issue shall not be taken to arise in any proceedings merely because of any contention of a party to the proceedings which appears to the court or tribunal before which the proceedings take place to be frivolous or vexatious.E+W+S+N.I.

Part IIE+W+S+N.I. Proceedings in Scotland

Application of Part IIE+W+S+N.I.

3This Part of this Schedule applies in relation to devolution issues in proceedings in Scotland.E+W+S+N.I.

Institution of proceedingsE+W+S+N.I.

4(1)Proceedings for the determination of a devolution issue may be instituted by the Advocate General or the Lord Advocate.E+W+S+N.I.

(2)The Lord Advocate may defend any such proceedings instituted by the Advocate General.

(3)This paragraph is without prejudice to any power to institute or defend proceedings exercisable apart from this paragraph by any person.

Intimation of devolution issueE+W+S+N.I.

5Intimation of any devolution issue which arises in any proceedings before a court or tribunal shall be given to the Advocate General and the Lord Advocate (unless the person to whom the intimation would be given is a party to the proceedings).E+W+S+N.I.

6A person to whom intimation is given in pursuance of paragraph 5 may take part as a party in the proceedings, so far as they relate to a devolution issue.E+W+S+N.I.

Reference of devolution issue to higher courtE+W+S+N.I.

7A court, other than the [F2Supreme Court] or any court consisting of three or more judges of the Court of Session, may refer any devolution issue which arises in proceedings (other than criminal proceedings) before it to the Inner House of the Court of Session.E+W+S+N.I.

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Amendments (Textual)

8A tribunal from which there is no appeal shall refer any devolution issue which arises in proceedings before it to the Inner House of the Court of Session; and any other tribunal may make such a reference.E+W+S+N.I.

9A court, other than any court consisting of two or more judges of the High Court of Justiciary, may refer any devolution issue which arises in criminal proceedings before it to the High Court of Justiciary.E+W+S+N.I.

References from superior courts to [F3Supreme Court]E+W+S+N.I.

10Any court consisting of three or more judges of the Court of Session may refer any devolution issue which arises in proceedings before it (otherwise than on a reference under paragraph 7 or 8) to the [F4Supreme Court].E+W+S+N.I.

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Amendments (Textual)

11Any court consisting of two or more judges of the High Court of Justiciary may refer any devolution issue which arises in proceedings before it (otherwise than on a reference under paragraph 9) to the [F5Supreme Court].E+W+S+N.I.

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Amendments (Textual)

Appeals from superior courts to [F6Supreme Court]E+W+S+N.I.

12An appeal against a determination of a devolution issue by the Inner House of the Court of Session on a reference under paragraph 7 or 8 shall lie to the [F7Supreme Court].E+W+S+N.I.

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Amendments (Textual)

13An appeal against a determination of a devolution issue by—E+W+S+N.I.

(a)a court of two or more judges of the High Court of Justiciary (whether in the ordinary course of proceedings or on a reference under paragraph 9), or

(b)a court of three or more judges of the Court of Session from which there is no appeal to the [F8Supreme Court apart from this paragraph],

shall lie to the [F9Supreme Court], but only with [F10permission] of the court [F11from which the appeal lies] or, failing such [F10permission], with [F12permission] of the [F9Supreme Court].

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Amendments (Textual)

Part IIIE+W+S+N.I. Proceedings in England and Wales

Application of Part IIIE+W+S+N.I.

14This Part of this Schedule applies in relation to devolution issues in proceedings in England and Wales.E+W+S+N.I.

Institution of proceedingsE+W+S+N.I.

15(1)Proceedings for the determination of a devolution issue may be instituted by the Attorney General.E+W+S+N.I.

(2)The Lord Advocate may defend any such proceedings.

(3)This paragraph is without prejudice to any power to institute or defend proceedings exercisable apart from this paragraph by any person.

Notice of devolution issueE+W+S+N.I.

16A court or tribunal shall order notice of any devolution issue which arises in any proceedings before it to be given to the Attorney General and the Lord Advocate (unless the person to whom the notice would be given is a party to the proceedings).E+W+S+N.I.

17A person to whom notice is given in pursuance of paragraph 16 may take part as a party in the proceedings, so far as they relate to a devolution issue.E+W+S+N.I.

Reference of devolution issue to High Court or Court of AppealE+W+S+N.I.

18A magistrates’ court may refer any devolution issue which arises in proceedings (other than criminal proceedings) before it to the High Court.E+W+S+N.I.

19(1)A court may refer any devolution issue which arises in proceedings (other than criminal proceedings) before it to the Court of Appeal.E+W+S+N.I.

(2)Sub-paragraph (1) does not apply to—

(a)a magistrates’ court, the Court of Appeal or the [F13Supreme Court], or

(b)the High Court if the devolution issue arises in proceedings on a reference under paragraph 18.

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Amendments (Textual)

20A tribunal from which there is no appeal shall refer any devolution issue which arises in proceedings before it to the Court of Appeal; and any other tribunal may make such a reference.E+W+S+N.I.

21A court, other than the [F14Supreme Court] or the Court of Appeal, may refer any devolution issue which arises in criminal proceedings before it to—E+W+S+N.I.

(a)the High Court (if the proceedings are summary proceedings), or

(b)the Court of Appeal (if the proceedings are proceedings on indictment).

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Amendments (Textual)

References from Court of Appeal to [F15Supreme Court]E+W+S+N.I.

22The Court of Appeal may refer any devolution issue which arises in proceedings before it (otherwise than on a reference under paragraph 19, 20 or 21) to the [F16Supreme Court].E+W+S+N.I.

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Amendments (Textual)

Appeals from superior courts to [F17Supreme Court]E+W+S+N.I.

23An appeal against a determination of a devolution issue by the High Court or the Court of Appeal on a reference under paragraph 18, 19, 20 or 21 shall lie to the [F18Supreme Court], but only with [F19permission] of the High Court or (as the case may be) the Court of Appeal or, failing such [F19permission], with [F20permission] of the [F18Supreme Court].E+W+S+N.I.

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Amendments (Textual)

Part IVE+W+S+N.I. Proceedings in Northern Ireland

Application of Part IVE+W+S+N.I.

24This Part of this Schedule applies in relation to devolution issues in proceedings in Northern Ireland.E+W+S+N.I.

Institution of proceedingsE+W+S+N.I.

25(1)Proceedings for the determination of a devolution issue may be instituted by the [F21Advocate General for Northern Ireland].E+W+S+N.I.

(2)The Lord Advocate may defend any such proceedings.

(3)This paragraph is without prejudice to any power to institute or defend proceedings exercisable apart from this paragraph by any person.

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Amendments (Textual)

Notice of devolution issueE+W+S+N.I.

26A court or tribunal shall order notice of any devolution issue which arises in any proceedings before it to be given to the [F22Advocate General for Northern Ireland] and the Lord Advocate (unless the person to whom the notice would be given is a party to the proceedings).E+W+S+N.I.

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Amendments (Textual)

27A person to whom notice is given in pursuance of paragraph 26 may take part as a party in the proceedings, so far as they relate to a devolution issue.E+W+S+N.I.

Reference of devolution issue to Court of AppealE+W+S+N.I.

28A court, other than the [F23Supreme Court] or the Court of Appeal in Northern Ireland, may refer any devolution issue which arises in any proceedings before it to the Court of Appeal in Northern Ireland.E+W+S+N.I.

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Amendments (Textual)

29A tribunal from which there is no appeal shall refer any devolution issue which arises in any proceedings before it to the Court of Appeal in Northern Ireland; and any other tribunal may make such a reference.E+W+S+N.I.

References from Court of Appeal to [F24Supreme Court]E+W+S+N.I.

30The Court of Appeal in Northern Ireland may refer any devolution issue which arises in proceedings before it (otherwise than on a reference under paragraph 28 or 29) to the [F25Supreme Court].E+W+S+N.I.

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Amendments (Textual)

Appeals from Court of Appeal to [F26Supreme Court]E+W+S+N.I.

31An appeal against a determination of a devolution issue by the Court of Appeal in Northern Ireland on a reference under paragraph 28 or 29 shall lie to the [F27Supreme Court], but only with [F28permission] of the Court of Appeal in Northern Ireland or, failing such [F28permission], with [F29permission] of the [F27Supreme Court].E+W+S+N.I.

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Amendments (Textual)

Part VE+W+S+N.I. General

E+W+S+N.I.

F30. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

32F31. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W+S+N.I.

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Amendments (Textual)

Direct references to [F32Supreme Court]E+W+S+N.I.

33The Lord Advocate, the Advocate General, the Attorney General or the [F33Advocate General for Northern Ireland] may require any court or tribunal to refer to the [F34Supreme Court] any devolution issue which has arisen in proceedings before it to which he is a party.E+W+S+N.I.

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Amendments (Textual)

34The Lord Advocate, the Attorney General, the Advocate General or the [F35Advocate General for Northern Ireland] may refer to the [F36Supreme Court] any devolution issue which is not the subject of proceedings.E+W+S+N.I.

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Amendments (Textual)

35(1)This paragraph applies where a reference is made under paragraph 34 in relation to a devolution issue which relates to the proposed exercise of a function by a member of the Scottish Executive.E+W+S+N.I.

(2)The person making the reference shall notify a member of the Scottish Executive of that fact.

(3)No member of the Scottish Executive shall exercise the function in the manner proposed during the period beginning with the receipt of the notification under sub-paragraph (2) and ending with the reference being decided or otherwise disposed of.

(4)Proceedings relating to any possible failure by a member of the Scottish Executive to comply with sub-paragraph (3) may be instituted by the Advocate General.

(5)Sub-paragraph (4) is without prejudice to any power to institute proceedings exercisable apart from that sub-paragraph by any person.

ExpensesE+W+S+N.I.

36(1)A court or tribunal before which any proceedings take place may take account of any additional expense of the kind mentioned in sub-paragraph (3) in deciding any question as to costs or expenses.E+W+S+N.I.

(2)In deciding any such question, the court or tribunal may award the whole or part of the additional expense as costs or (as the case may be) expenses to the party who incurred it (whatever the decision on the devolution issue).

(3)The additional expense is any additional expense which the court or tribunal considers that any party to the proceedings has incurred as a result of the participation of any person in pursuance of paragraph 6, 17 or 27.

Procedure of courts and tribunalsE+W+S+N.I.

37Any power to make provision for regulating the procedure before any court or tribunal shall include power to make provision for the purposes of this Schedule including, in particular, provision—E+W+S+N.I.

(a)for prescribing the stage in the proceedings at which a devolution issue is to be raised or referred,

(b)for the sisting or staying of proceedings for the purpose of any proceedings under this Schedule, and

(c)for determining the manner in which and the time within which any intimation or notice is to be given.

InterpretationE+W+S+N.I.

38Any duty or power conferred by this Schedule to refer a devolution issue to a court shall be construed as a duty or (as the case may be) power to refer the issue to the court for decision.E+W+S+N.I.

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