2012-09-01

Document Cited authorities (13) Cited in Related
Date01 September 2012
AuthorDaniel J Carr,George L Gretton,Colin Matthew Campbell,Martin Hogg,Robert Rennie,Solinas Matteo,Findlay Stark
Pages410-450
DOI10.3366/elr.2012.0122
Published date01 September 2012
<p>Unlike man, the Scottish Parliament was born in chains.<xref ref-type="fn" rid="fn1-1"><sup>1</sup></xref><fn id="fn1-1"><label>1</label><p>Apologies to Rousseau: J J Rousseau, <italic>The Social Contract</italic> (1761, 1913 reprint by G D H Cole (ed)) 5.</p></fn> Its legislative competence was limited from the beginning. It has no legislative “<italic>kompetenz-kompetenz</italic>”<xref ref-type="fn" rid="fn1-2"><sup>2</sup></xref><fn id="fn1-2"><label>2</label><p>See J H H Weiler and U R Haltern, “The autonomy of the community legal order – through the looking glass” (1996) 37 Harvard International LJ 411 at 437; N Walker, “The idea of constitutional pluralism” (2002) 65 MLR 317 at 349.</p></fn> for it cannot set the limits of its own power. The United Kingdom Parliament set down the limits of the Scottish Parliament's legislative competence in the <a href="https://vlex.co.uk/vid/scotland-act-1998-808137621">Scotland Act 1998</a> (“<a href="https://vlex.co.uk/vid/scotland-act-1998-808137621">the 1998 Act</a>”).<xref ref-type="fn" rid="fn1-3"><sup>3</sup></xref><fn id="fn1-3"><label>3</label><p><italic>Whaley v Lord Advocate</italic> <a href="https://vlex.co.uk/vid/whaley-v-lord-watson-807421005">2000 SC 340</a> at 348H per Lord President Rodger; <italic>Martin v Most</italic> [2010] UKSC 10, 2010 SC 40 at paras 1–2 per Lord Hope, and para 44 per Lord Walker; <italic>Axa General Insurance Ltd v HM Advocate</italic> <a href="https://vlex.co.uk/vid/axa-general-v-u-818718353">[2011] UKSC 46</a>, <a href="https://vlex.co.uk/vid/axa-general-v-u-818718353">2011 SLT 1061</a> at para 46 per Lord Hope and para 138 per Lord Reed.</p></fn> In order to preserve the boundaries of competence, the exercise of power by the Scottish Parliament must be supervised and checked if necessary. Hence, the courts are tasked with ensuring the Scottish Parliament does not break free of its chains. In the past year it has been confirmed that it is not only <a href="https://vlex.co.uk/vid/scotland-act-1998-808137621">the 1998 Act</a> that empowers the courts to consider whether the Scottish Parliament has acted according to law.<xref ref-type="fn" rid="fn1-4"><sup>4</sup></xref><fn id="fn1-4"><label>4</label><p><italic>Axa</italic> at para 47.</p></fn> However, the grounds of any common law review appear (the specifics are far from clear) limited.<xref ref-type="fn" rid="fn1-5"><sup>5</sup></xref><fn id="fn1-5"><label>5</label><p><italic>Axa</italic> at paras 136–154 per Lord Reed; cf para 97 per Lord Mance. See C M G Himsworth, ‘The Supreme Court reviews the review of Acts of the Scottish Parliament’ [2012] PL 205 at 209–10.</p></fn> Thus, the main vehicle for reviewing the Parliament's actions is the scheme of <a href="https://vlex.co.uk/vid/scotland-act-1998-808137621">the 1998 Act</a>, as interpreted by the courts.<xref ref-type="fn" rid="fn1-6"><sup>6</sup></xref><fn id="fn1-6"><label>6</label><p><italic>Martin</italic> at para 5.</p></fn> If the courts decide that the Scottish Parliament has acted beyond its competence, then the offending provisions are statutorily “not law”.<xref ref-type="fn" rid="fn1-7"><sup>7</sup></xref><fn id="fn1-7"><label>7</label><p><a href="https://vlex.co.uk/vid/scotland-act-1998-808137621">Scotland Act 1998 s 29(1)</a>.</p></fn></p> <italic>SALVESEN v RIDDELL</italic>

After more than a decade of devolution without a successful challenge to an Act of the Scottish Parliament, the supreme courts of Scotland have declared twice in the space of just over a month that the Scottish Parliament has exceeded its competence. The appeal court of the High Court of Justiciary in Cameron v Procurator Fiscal for Livingstone8

Cameron v Procurator Fiscal for Livingstone [2012] HCJAC 19; [2012] HCJAC 31.

and the Second Division of the Court of Session in Salvesen v Riddell9

Salvesen v Riddell [2012] CSIH 26; 2012 GWD 12–234.

 have done what no Scottish court had previously: both have declared legislation from an elected Parliament to be ultra vires and therefore “not law”. This note concentrates on the Court of Session's decision in Salvesen

In Salvesen v Riddell the Second Division held that the Scottish Parliament exceeded its legislative competence by passing section 72 of the Agricultural Holdings (Scotland) Act 2003 (“the 2003 Act”). The Lord Justice Clerk's opinion suggests that the Parliament exceeded its competence in a fairly spectacular fashion.10

Despite the controls to ensure legislative competence: Scotland Act 1998 ss 31, 33 and 35.

Although the facts of the case are ostensibly simple, they are splayed across tortuous legislative drafting and convoluted legislative policy processes and reasoning. Mr Salvesen was the owner of a farm in East Lothian. There was a tenancy over the farm, held by a limited partnership. The respondents were the general partners of the limited partnership, and Salvesen's agent the limited partner. Both the limited partnership and tenancy had commenced in 1992, and both were due to expire on 28 November...

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