October 2012 – The Scottish Parliament and When Law Is Not Law

Author: Mitchells Roberton
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This month saw the “Edinburgh Agreement” signed by Alex Salmond and David Cameron paving the way for the referendum on an independent Scotland. This Note does not pursue any of the interesting political aspects of that. But the signing of the agreement prompts a brief look at one particular distinction between the Westminster and Holyrood Parliaments.

The Sovereignty of Parliament

  • The “Sovereignty of Parliament” is one of those phrases (reminiscent of school history lessons) which might be said to be so well-known it requires no introduction. Not all would agree. But again, that is not pursued here. The nub of the matter is that the Queen in Parliament is the supreme law-making authority in the country. It was put like this in 1872:

“There is no judicial body in the country by which the validity of an Act of Parliament could be questioned. An act of the legislature is superior in authority to any court of law…and no court could pronounce a judgment as to the validity of an act of parliament.”

  • This acceptance of parliamentary sovereignty distinguishes us from many other countries where the constitution interpreted by the courts has been the supreme law of the land. In such countries legislation inconsistent with the constitution, even if duly enacted, may be held by the courts to be unconstitutional and so invalid. Not so here where “no court could pronounce a judgment as to the validity of an act of parliament.”
  • (Of course one might argue that parliamentary sovereignty was but is no longer absolute: two obvious examples are the European Communities Act 1972, and the Human Rights Act 1998. Yet these Acts involved a curtailment of the Westminster Parliament’s power to legislate – which curtailment takes effect by express authority of the Westminster Parliament. In theory at least it retains its power to revoke that curtailment.)

The Scottish Parliament

  • Section 1 of the Scotland Act 1998 starts pithily: “There shall be a Scottish Parliament”. (Not all of the Act reflects that concision.) Because one is so used to the notion of parliamentary sovereignty it is not unnatural to assume that the Scottish Parliament is the same in this respect to the UK Parliament in being, likewise, sovereign. But that would be a mistake. Indeed the Parliament was yet very young when the matter came up in the Scottish courts in relation to the fox-hunting ban (in Whaley v Lord Watson). It was argued that the Scottish Parliament being a parliament shared a similar sort of sovereignty to the UK Parliament and so was immune from judicial interference. Lord Prosser was having none of this:

“The contention that the court did not have jurisdiction to deal with the issues raised in this case was one I found hard to grasp. As I understood the submissions, the argument seemed to rest upon some broad view that since the Scottish Parliament was a parliament, rather than for example a local authority, the jurisdiction of the courts must be seen as excluded, as an unacceptable intrusion upon the legislative function which belonged to Parliament alone… it is in my opinion self-evident that the courts have jurisdiction…a defined parliament is there to do not whatever it wants, but only what the law has empowered it to do.”

A (little) bit more on the Scotland Act

  • The powers of the Scottish Parliament are to be found in sections 28 and 29 of the Act. Section 28 gives it the power to make laws. But section 29 delimits the scope of that power by providing that an Act of the Scottish Parliament “is not law so far as any provision of the Act is outside the legislative competence of the Parliament”. And a provision is outside that “legislative competence” in a number of circumstances including in particular where:

it relates to reserved matters (these include for example: the Constitution; Defence; National Security; Immigration and Nationality; Social Security and a wide range of others); or

it is incompatible with any of the Convention rights or with EU law.

Court challenges to “legislative competence”

  • The foxhunting case mentioned above was one of the earliest challenges to the legislative powers of the Scottish Parliament. There have been a number of such challenges through the courts since then mainly (though not exclusively) concerned with Human Rights.
  • A recent case (AXA General Insurance Limited v The Lord Advocate) had a Human Rights aspect. But there was an additional aspect to the challenge over and above the Human Rights one. It was separately argued that legislation of the Scottish Parliament was subject to “judicial review”: a procedure whereby the courts may “regulate the process by which decisions are taken by any person or body to whom a jurisdiction, power or authority has been delegated or entrusted by statute, agreement or any other instrument.”
  • Broadly put the general grounds for making out a case to have a decision “judicially reviewed” are that the decision was unreasonable, or irrational or arbitrary. In Axa it was argued that an Act of the Scottish Parliament itself was open to judicial review on such common law grounds as an “unreasonable, irrational and arbitrary exercise of the legislative authority conferred by the Scotland Act 1998 on the Scottish Parliament.”
  • That argument did not win the day. Lord Hope said:

“I would hold…that Acts of the Scottish Parliament are not subject to judicial review at common law on the grounds of irrationality, unreasonableness or arbitrariness. This is not needed, as there is already a statutory limit on the Parliament’s legislative competence if a provision is incompatible with any of the Convention rights…But it would also be quite wrong for the judges to substitute their views on these issues for the considered judgment of a democratically elected legislature unless authorised to do so, as in the case of the Convention rights..”

  • One cannot help but feel that the Scottish Parliament (and other devolved Parliaments) must have been relieved by the decision to exclude challenges being made on grounds of “irrationality, unreasonableness or arbitrariness”.

Note: This material is for information purposes only and does not constitute any form of advice or recommendation by us. You should not rely upon it in making any decisions or taking or refraining from taking any action. If you would like us to advise you on any of the matters covered in this material, please contact Paul Neilly: pdn@mitchells-roberton.co.uk

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