SCHEDULES
SCHEDULE 6 Devolution issues
Part I Preliminary
1
In this Schedule “devolution issue” means—
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 F37Scottish Government is, or would be, within devolved competence,
d
e
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.
2
A 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.
Part II Proceedings in Scotland
Application of Part II
3
This Part of this Schedule applies in relation to devolution issues in proceedings in Scotland.
Institution of proceedings
4
1
Proceedings for the determination of a devolution issue may be instituted by the Advocate General or the Lord Advocate.
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 issue
5
Intimation 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).
6
A 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.
Reference of devolution issue to higher court
7
A 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.
8
A 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.
9
A 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.
References from superior courts to F5Supreme Court
10
Any 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 F3Supreme Court.
11
Any 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 F4Supreme Court.
Appeals from superior courts to F12Supreme Court
Words in heading before Sch. 6 para. 12 substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40(4), 148(1), Sch. 9 para. 103(6); S.I. 2009/1604, art. 2
12
An 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 F6Supreme Court.
13
An appeal against a determination of a devolution issue by—
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 F7Supreme Court apart from this paragraph,
Part III Proceedings in England and Wales
Application of Part III
14
This Part of this Schedule applies in relation to devolution issues in proceedings in England and Wales.
Institution of proceedings
15
1
Proceedings for the determination of a devolution issue may be instituted by the Attorney General.
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 issue
16
A 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).
17
A 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.
Reference of devolution issue to High Court or Court of Appeal
18
A magistrates’ court may refer any devolution issue which arises in proceedings (other than criminal proceedings) before it to the High Court.
19
1
A court may refer any devolution issue which arises in proceedings (other than criminal proceedings) before it to the Court of Appeal.
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.
20
A 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.
21
A court, other than the F14Supreme Court or the Court of Appeal, may refer any devolution issue which arises in criminal proceedings before it to—
a
the High Court (if the proceedings are summary proceedings), or
b
the Court of Appeal (if the proceedings are proceedings on indictment).
References from Court of Appeal to F16Supreme Court
Words in heading before Sch. 6 para. 22 substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40(4), 148(1), Sch. 9 para. 104(4); S.I. 2009/1604, art. 2
22
The 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 F15Supreme Court.
Appeals from superior courts to F20Supreme Court
Words in heading before Sch. 6 para. 23 substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40(4), 148(1), Sch. 9 para. 104(6); S.I. 2009/1604, art. 2
23
An 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 F17Supreme Court, but only with F18permission of the High Court or (as the case may be) the Court of Appeal or, failing such F18permission, with F19permission of the F17Supreme Court.
Part IV Proceedings in Northern Ireland
Application of Part IV
24
This Part of this Schedule applies in relation to devolution issues in proceedings in Northern Ireland.
Institution of proceedings
25
1
Proceedings for the determination of a devolution issue may be instituted by the F21Advocate General for Northern Ireland.
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 issue
26
A 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).
27
A 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.
Reference of devolution issue to Court of Appeal
28
A 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.
29
A 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.
References from Court of Appeal to F25Supreme Court
Words in heading before Sch. 6 para. 30 substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40(4), 148(1), Sch. 9 para. 105(3); S.I. 2009/1604, art. 2
30
The 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 F24Supreme Court.
Appeals from Court of Appeal to F29Supreme Court
Words in heading before Sch. 6 para. 31 substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40(4), 148(1), Sch. 9 para. 105(5); S.I. 2009/1604, art. 2
31
An 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 F26Supreme Court, but only with F27permission of the Court of Appeal in Northern Ireland or, failing such F27permission, with F28permission of the F26Supreme Court.
Part V General
Sch. 6 para. 32 and preceding heading repealed (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40(4), 146, 148(1), Sch. 9 para. 106(2), Sch. 18 Pt. 5; S.I. 2009/1604, art. 2
F31. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
32
F30. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Direct references to F36Supreme Court
Words in heading before Sch. 6 para. 33 substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40(4), 148(1), Sch. 9 para. 106(3); S.I. 2009/1604, art. 2
33
34
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 F37Scottish Government.
2
The person making the reference shall notify a member of the F37Scottish Government of that fact.
3
No member of the F37Scottish Government 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 F37Scottish Government 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.
Expenses
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.
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 tribunals
37
Any 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—
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.
Interpretation
38
Any 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.
Words in heading before Sch. 6 para. 10 substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40(4), 148(1), Sch. 9 para. 103(3); S.I. 2009/1604, art. 2