Public Law I - Legislative Competence

Public Law I - Sources of Power - Legislative Competence

• Learning Objectives: Understand the nature and extent of the Scottish Parliament's legislative competence, how it's controlled, and how limits are enforced.

Scotland - Legislative Competence

• Legislative Competence: The power to create laws.
• Devolution (1 July 1999): The Scottish Parliament gained legislative competence in areas devolved from the UK Parliament.
• Shared Competence: The Scottish and UK Parliaments share legislative authority in some areas. Scotland Act 1998, section 28(7) clarifies that the UK Parliament retains power to make laws for Scotland.
• Reserved Matters: Certain areas, like taxation and defense, remain the UK Parliament's exclusive responsibility.
• Subordination: The Scottish Parliament's power is subordinate to the UK Parliament, meaning its powers can be modified, extended, or revoked.

Reserved Matters Model

• Areas Not Reserved: Matters not specifically reserved for the UK Parliament are within the Scottish Parliament's legislative competence (Scotland Act 1998, Schedule 5).
• Protected Enactments: Certain enactments of the Scotland Act 1998 (e.g., the principal features of devolution) cannot be modified by the Scottish Parliament.
• Retained EU Law: Post-Brexit, the Scottish Parliament retained powers over EU law under the Scotland Act 1998, section 30A.

Controlling Legislative Competence

• Pre-Assent Checks: Checks on legislative competence before a Bill becomes law.
• Ministerial Confirmation: A Scottish Minister ensures the Bill falls within legislative competence.
• Presiding Officer's Decision: The Presiding Officer decides if a Bill is within the legislative powers of the Scottish Parliament. The Officer can refer to the Supreme Court if it is unclear.
• Supreme Court Reference: The Supreme Court can be asked to decide on legislative competence.
• Time Limit: References to the Supreme Court can take place within four weeks of the Bill being passed by the Scottish Parliament.

Judicial Review of Competence

• Judicial Review: Courts have the role of arbitrating and providing guidance on what is within the competence of the Scottish Parliament.
• Competence Determines: Questions of competence are determined by applying Scotland Act 1998, section 29 and Schedules 4 and 5.
• Interpreting Acts: The rules in the Scotland Act 1998 should be treated as comparable to any other UK Act of Parliament.
• Limited Powers: Holyrood's powers are defined by law.
• No Parliamentary Sovereignty (Holyrood): Holyrood does not enjoy unlimited legislative power.
• Westminster Can Still Act: The UK Parliament maintains the power to legislate for Scotland.