Your World of Legal Intelligence
 United Kingdom | +44 (0) 20 7284 8080

Vetting Bills in the Scottish Parliament for Legislative Competence

Document Cited authorities 5 Cited in Related
Vincent
Pages319-351
DOI10.3366/elr.2017.0433
Published date01 September 2017
Date01 September 2017
INTRODUCTION

Unlike Acts of the United Kingdom Parliament, primary legislation made by the Scottish Parliament is not immune from judicial review.1 The devolved legislature is a parliament of limited competence, the boundaries of which are found in both statute and the common law. Accordingly, an Act of the Scottish Parliament (ASP) “is not law” in so far as, inter alia, it “relates to” a reserved matter, or is incompatible with a Convention right or with EU law,2 and, in extreme circumstances, it is also invalid to the extent that it violates the fundamental principle(s) of the rule of law.3 Where the Parliament does legislate beyond those limits, courts have the power to set aside the offending Act.

For those engaged in the law-making process – from civil servants, to legislators, to courts, to those public bodies and private actors who rely on the rights and duties conferred by legislation – the consequences of legislating beyond the Parliament's competence are therefore severe, for a number of reasons. First, there is a clear risk of reputational damage both to the Scottish Government and to the Scottish Parliament where legislation is found to be defective. Second, because an Act might have been in force for some time, or have been widely and deeply relied upon, there may be uncertainty in the obligations arising from devolved legislation at least until such time as the matter has been settled by a court. Third, there are serious concerns for the Scottish Government if elements of its legislative agenda face delay and defeat. These concerns are not restricted to the inability to pursue and implement key policies but can have broader political and electoral effects for a government that is perceived to be failing to deliver its promises. Fourth, there is an associated remedial cost both in terms of the parliamentary time required to cure defective legislation and in terms of damages or other remedies that might arise as a result of an adverse judicial ruling. Finally, there is a possibility that courts themselves might suffer reputational damage where they are perceived to have overstepped the mark in striking down primary legislation passed by a democratically elected legislature.4

In order to protect legislation against this vulnerability the Scotland Act 1998 established a framework of pre-enactment checks and cross-checks which engage the Scottish Government5 with both the Scottish Parliament and the UK Government in the exercise of vetting Bills for legislative competence:

On or before the introduction of a Bill, the responsible Minister must report to Parliament that in his or her view the Bill is within the Parliament's legislative competence;6

On or before the introduction of a Bill, the Presiding Officer must report to Parliament his or her view as to whether or not the Bill is within the Parliament's legislative competence;7

Following the completion of the Bill's parliamentary stages, the Presiding Officer must withhold submission of the Bill for Royal Assent for four weeks,8 during which period the Scottish and UK Law Officers – the Lord Advocate on behalf of the Scottish Government, and the Advocate General for Scotland and the Attorney General on behalf of the UK Government – may refer the question of legislative competence directly to the Supreme Court.9

In this article we examine the ways in which the relevant offices and individuals have engaged internally and with one another in the process of vetting Bills for legislative competence during the first four parliamentary sessions (1999–2016). By shedding light on a process that generally is concealed behind private discussions and legal confidentiality (what Alan Trench has called “a form of private public law”)10 we will see (1) why it is that – contrary to early warnings that strong judicial review might make Scotland's “a constitution of judges”11 – (successful) legal challenges to the competence of legislation have proved to be the exception rather than the rule; and (2) why it is that, despite this network of checks, legislation might nevertheless remain at risk of judicial censure.

To understand the complex processes which constitute this exercise we interviewed more than twenty officials, advisers and politicians currently or formerly in the Scottish Government, Scottish Parliament and UK Government.12 During the course of our interviews officials who have been involved at each of the distinct vetting points stressed to us their commitment (and the faith that they have in the commitment of counterparts across those institutions) to make devolution work. Moreover, officials stressed to us that serious disagreement about legislative competence is a relatively (though not an insignificantly) rare occurrence during the legislative process, perhaps arising once or twice during an average year. However, and this commitment notwithstanding, these interviews revealed differences within and across those institutions both with regard to how competence assessments are made and with regard to the expectations and anxieties of each as they engage in the process.

The first part of the article focuses on the conceptual argument that, despite the strong form of judicial review that applies to Acts of the Scottish Parliament, the decision to require legislative review of every Bill for its constitutional quality aligns the devolution scheme with those political systems which – in different ways – combine Westminster-style parliamentary government with judicially enforceable constitutional boundaries. Whilst these have been developed in the specific context of rights review we shall see that the Scottish variant augments these models in two senses: first, by applying legislative review to a broader set of constitutional considerations (namely EU law and the boundary between reserved and devolved matters); and second, by multiplying and varying the points at which Bills are subject to legislative review. The second part of the article supports this conceptual argument with an empirical examination of the ways in which assessments about legislative competence are made by and between the Scottish Government, the Scottish Parliament and the UK Government.

 LEGISLATIVE REVIEW: A THIRD WAY

In recent years public law scholarship has sought to describe, and to defend, an alternative or “third way” of constitutionalism. This approach builds upon (rather than breaks with) antecedent models of legislative or judicial supremacy, in which either parliament or the courts have the last word on the legality of legislation.13 Two fundamental characteristics distinguish this alternative approach. One is constrained judicial remedial powers. In Westminster-based parliamentary systems, the very idea of introducing a judicially-enforceable bill of rights represents a fundamental departure from previously held assumptions that such instruments clash with the core constitutional principle of parliamentary supremacy. However, by distinguishing between judicial review and judicial remedies, it is possible to retain parliament's last word on the validity of legislation. The second fundamental characteristic is that this approach envisages a far more important role for rights review at the legislative stage than is usually associated with a bill of rights. By placing a statutory obligation on the executive to report to parliament when a Bill is inconsistent with rights this particular legislative focus reflects the following three ideals:14 identifying whether and how proposed legislation implicates rights; encouraging more rights-compliant ways of achieving legislative objectives (and in the extreme discouraging the pursuit of objectives that are fundamentally incompatible with rights); and facilitating parliamentary deliberation about whether legislation implicates rights, thereby increasing parliament's capacity to pressure government to justify, alter or abandon legislation that unduly infringes rights.15

Judicial supremacy revisited

In some respects Scotland's devolution scheme is a neat fit with the model of judicial supremacy. First, the Scottish Parliament is not a sovereign legislature but one for which constitutional limits have been enshrined in statute. This is so not only because it is a subordinate legislature, itself constituted and limited by an Act of Parliament,16 but also because it was an aspiration of its framers that the new Parliament should distinguish itself from Westminster on the question of sovereignty. As Bernard Crick and David Millar said:

The concept of sovereignty…is a product of a by-gone age when unchallengeable central power seemed to many (as in 1707) the only answer to continual civil war. National identity does not depend upon a belief in sovereign power rather than in a more pluralistic, constitutionalised account of power, defined and limited by law. A Scottish Parliament, however elected, needs limiting as…much as any other.17

As Lord Rodger would later recognise, with regard to the question of unlimited legislative supremacy, Westminster is the exception rather than the rule. The Scottish Parliament, he said, “has simply joined that wider family of parliaments” who “even where [they] have been modelled in some respects on Westminster [nevertheless] owe their existence and powers to statute and are in various ways subject to law and the courts which act to uphold the law”.18

Second, it is the UK Supreme Court, and not the Scottish Parliament, that has the final word on whether an Act of the Scottish Parliament is law. Indeed, Lord Neuberger, the President of the Supreme Court, has said that this power over devolved competence bestows upon that court some of the characteristics of a constitutional court. Just as in a country with a codified constitution

the Supreme Court (as in the US) or the Constitutional Court (as in Germany) can, indeed must, strike down legislation which has been enacted by the...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT