Public Law I - Sources of Power PDF

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LustrousMistletoe

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University of Dundee

Dr Tarik Olcay

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public law sources of power scottish parliament legislation

Summary

This document is lecture notes, in Public Law I, on Sources of Power. It discusses the legislative competence of the Scottish Parliament and how it is controlled. The lecture, from the University of Dundee, also covers reserved matters, and judicial review of competence.

Full Transcript

PUBLIC LAW I – SOURCES OF POWER Legislative competence Dr Tarik Olcay University of Dundee Week 10 LEARNING OBJECTIVES Explain the nature and extent of the legislative competence of the Scottish Parliament Explain how legislative competence is con...

PUBLIC LAW I – SOURCES OF POWER Legislative competence Dr Tarik Olcay University of Dundee Week 10 LEARNING OBJECTIVES Explain the nature and extent of the legislative competence of the Scottish Parliament Explain how legislative competence is controlled and limits on it are enforced SCOTLAND – LEGISLATIVE COMPETENCE Legislative competence  power to make laws Since 1 July 1999 the Scottish Parliament exercised legislative competence in the increasing sphere of devolved competence Shared competence with Westminster Scotland Act 1998, s 28(7): “This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland.” Also, the terms of devolution is a reserved matter, therefore, Holyrood remains subordinate to Westminster AXA General Insurance Co Ltd v Lord Advocate UKSC 46, per Lord Reed at : “… The Scottish Parliament is subordinate to the United Kingdom Parliament: its powers can be modified, extended or revoked by an Act of the United Kingdom Parliament…” RESERVED MATTERS MODEL Any matters not reserved to the exclusive competence of the Westminster Parliament to legislate on falls within the legislative competence of the Scottish Parliament – SA 1998, sch 5 Other limits on the Scottish Parliament’s legislative power: Enactments protected from modification – SA 1998, sch 4 Includes the Scotland Act itself so far as it prescribes the principal features of the devolution settlement. Retained EU law – SA 1998, s 30A introduced by EU (Withdrawal) Act 2018, s 12 Common law eg, securing the rule of law – AXA v Lord Advocate, per Lord Reed at CONTROLLING LEGISLATIVE COMPETENCE How are limits on the Scottish Parliament’s legislative power enforced? Pre-assent checks Scottish Minister statement that Bill is within legislative competence – SA 1998, s 31(1) Presiding Officer states his/her decision whether s/he thinks Bill is within legislative competence – SA 1998, s 31(2) Presiding Officer may not send the Bill forward for Royal Assent if the Bill is referred to the Supreme Court (to decide whether Holyrood has legislative competence over it) by the Advocate General, Lord Advocate, or Attorney General under s 33 – SA 1998, s 32(2) A reference may be made to the Supreme Court under s 33 regarding legislative competence at any time during the four week period commencing with the passing of the Bill by the Parliament eg, UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill Reference UKSC 64 JUDICIAL REVIEW OF COMPETENCE Imperial Tobacco Ltd v Lord Advocate UKSC 61, at [13-15] Questions of competence must be determined by applying s 29, and schs 4 and 5 to, SA 1998 – the Court should not express its view on whether an issue was better legislated by Westminster or Holyrood The rules in SA 1998 are to be interpreted in the same way as any other Act of Parliament There is no presumption that a provision of an Act of the Scottish Parliament is inside, as opposed to outside, competence UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill Reference UKSC 64, at Powers of Holyrood are delimited by law Holyrood has democratic mandate to legislate for the people of Scotland It has plenary powers to legislate within the limits of its legislative competence No parliamentary sovereignty for Holyrood, limits on its power enforceable by courts Westminster can legislate for Scotland, and Holyrood cannot legislate to affect this power SA 1998 is to be interpreted in the same way as any other Act of Parliament The courts will strive to interpret SA 1998 to ensure a coherent, stable, and workable legislative system for Holyrood

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