Parliamentary Consideration

Details of Provisions

Subsection (1) requires the Clerk of the Parliament to give written notice:

(a)     to witnesses notifying them of the time and place at which they are required by the Parliament to attend, and the subjects concerning which they will be required to give evidence; or

(b)     to document holders notifying them of the documents which they need to produce, the date by which they should be available and the subjects to which the documents should relate.

Subsection (2) sets out requirements in relation to service of notices. A notice is to be sent by registered post or recorded delivery. In the case of an individual, it is to be sent to his usual or last known address or to an address for service, where he has given one. In any other case (e.g. a health board or another public body), the notice is to be sent to the person's registered or principal office.

SECTION 25: Witnesses and documents: offences

Purpose and Effect

This section makes it an offence for a person who is required to attend the Parliament to give evidence or to produce necessary documents to fail to do what is required by the notice served on him under section 24(1). It applies only to Scotland by virtue of section 131.

General

This section should be read with the notes on sections 23, 24 and 26.

Parliamentary Consideration

Details of Provisions

Subsection (1) provides that it is a criminal offence for a person to whom a notice under section 24(1) has been given to:

(a)     refuse, or fail, to attend proceedings as required by the notice;

(b)     refuse or fail to answer any question concerning the subjects specified in such a notice;

(c)     deliberately alter, suppress, conceal or destroy any document which is required by such a notice to be produced; or

(d)     refuse or fail to produce such a document.

Subsection (2) provides that subsection (1) is subject to:

section 23(9), which provides that a person is not obliged to answer any question or produce any document which he would be entitled to refuse to answer or produce in court proceedings in Scotland;

section 23(10), which provides that a procurator fiscal is not obliged to answer any question or produce any document relating to the operation of the criminal prosecution system in a particular case, on the Lord Advocate's authorisation; and

section 27(3), which provides that the Lord Advocate or Solicitor General for Scotland may in any proceedings of the Parliament, decline to answer any question or produce any document relating to the operation of the criminal prosecution system in any particular case if he considers that answering the question or producing the document might prejudice criminal proceedings in that case or would otherwise be contrary to the public interest.

Subsection (3) provides that it is a defence for a person charged with an offence under subsection (1)(a), (b) or (d) above to prove that he had a reasonable excuse for the refusal or failure.

Subsection (4) sets the penalty in the case of a person found guilty of an offence under subsection (1) as a fine not exceeding level 5 on the standard scale or imprisonment for not more than three months.

Subsection (5) makes provision for the case where an offence under the section is committed by a body corporate. Where the offence is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of a director, manager, secretary or similar officer of the body corporate or any person purporting to act in any such capacity, he, as well as the body corporate, is guilty of that offence, and liable to be proceeded against accordingly.

SECTION 26: Witnesses and documents: general

Purpose and Effect

This section deals with various matters relating to the giving of evidence and production of documents to the Parliament including administering the oath to witnesses, the creation of a criminal offence where a person refuses to take the oath and the payment of allowances and expenses. It applies to everyone who gives evidence or produces documents to the Parliament, not just those who do so in response to a notice under section 24(1).

General

This section should be read in conjunction with the notes on sections 23-25.

Parliamentary Consideration

Details of Provisions

Subsection (1) empowers the Presiding Officer or any other person authorised by standing orders to administer an oath to any person giving evidence to the Parliament and to require such a person to take the oath. The Standing Orders of the Parliament authorise the conveners of committees to administer the oath. This section applies both to a person who has been required to attend and to a person who attends by invitation. A person will be able to make a solemn affirmation as an alternative to taking the oath as provided for in the Oaths Act 1978.

Subsection (2) creates an offence where a person refuses to take the oath when required to do so.

Subsection (3) by reference to section 25(4) provides that the person found guilty of an offence will be liable to a fine not exceeding level 5 on the standard scale or to not longer than three months imprisonment.

Subsection (4) allows for standing orders to provide for the payment of expenses and allowances to people who attend to give evidence to the Parliament or produce documents, whether or not they were required to do so by a notice under section 23(8). "Document" is defined in section 126(1).

Subsection (5) provides that a person is taken to comply with a requirement to produce a document if he produces a copy of, or an extract of the relevant part of, the document.

SECTION 27: Participation of the Scottish Law Officers

Purpose and Effect

This section makes provision about the participation of the Lord Advocate or the Solicitor General for Scotland in the proceedings of the Scottish Parliament. In particular it makes provision about a Law Officer's participation if he is not a member of the Scottish Parliament (MSP) and his entitlement to decline to answer questions about the operation of the criminal prosecution system in particular cases under certain circumstances.

General

This section is part of the set dealing with the proceedings of the Scottish Parliament.

Section 48 makes provision about the appointment of the Lord Advocate and the Solicitor General for Scotland but does not require them to be members of the Scottish Parliament. Section 27(1) makes provision about their participation in proceedings of the Parliament if they are not MSPs.

Section 27 (3) is one of a number of provisions which safeguard the independence of the Lord Advocate and the Solicitor General in connection with the exercise by them of their prosecution functions. Section 29(2)(e) provides that it would be outside the competence of the Parliament to legislate to remove the Lord Advocate from his position as head of the systems of criminal prosecution and investigation of deaths in Scotland. Section 48(5) provides that any decision taken by the Lord Advocate as head of those systems shall continue to be taken by him independently of any other person.

Section 27 (3) is intended to protect the Scottish Law Officers from inappropriate questioning in relation to particular criminal cases. This protection also extends to the procurator fiscal by section 23(10). However, subject to that, the Scottish Law Officers will be accountable to the Scottish Parliament for their actings and decisions in relation to the operation of the criminal justice system, including those relating to individual cases: this provision merely protects them from divulging details of particular cases where it would be inappropriate for them to do so.

There are other provisions which also prevent the Parliament from raising matters in relation to particular cases which may either constitute a contempt of court or breach the sub judice rule. Its proceedings are subject to the Contempt of Court Act 1981 (see section 42) and paragraph 1 of Schedule 3 requires standing orders to include provision to prevent conduct which would constitute a criminal offence or a contempt of court and to include a sub judice rule. In addition, section 23(9), which deals with the Parliament's power to call for witnesses and documents, is also relevant in that it provides that a person is not obliged to answer a question or to produce a document if he would be entitled to refuse to do so in a court in Scotland.

Parliamentary Consideration

Details of Provisions

Subsection (1) provides that, if either the Lord Advocate or the Solicitor General is not a member of the Scottish Parliament, he may participate in its proceedings to the extent specified by the Parliament's standing orders but may not vote, and that otherwise standing orders may apply to him in the same way as to an MSP. "Proceedings" includes proceedings of committees and sub-committees - see section 126(1). The Standing Orders of the Parliament permit the Scottish Law Officers to participate as fully in the proceedings of the Parliament as any other member but they may not vote or be appointed a member of the SPCB or the Parliamentary Bureau.

Subsection (2) qualifies subsection (1) by making it clear that it is without prejudice to section 39 which requires the Parliament to make provision about members' interests. Section 39(8)(b) provides that for this purpose the Law Officers are to be subject to the same rules as MSPs even if they are not members of the Parliament.

Subsection (3) provides that the Lord Advocate or the Solicitor General for Scotland may decline to answer questions or to provide documents relating to the operation of the criminal prosecution system in relation to about particular criminal cases if he considers that doing so might prejudice the proceedings in that case or would otherwise be contrary to the public interest. There is a similar provision in relation to a procurator fiscal in section 23(10).

SECTION 28: Acts of the Scottish Parliament

Purpose and Effect

This section provides that the Parliament may make laws, sets out the arrangements for Bills of the Scottish Parliament, once passed, to receive Royal Assent as signified by Her Majesty under the Scottish Seal, and makes general provisions relating to the making of laws by the Scottish Parliament. It also confirms that the UK Parliament remains sovereign.

General

This section empowers the Scottish Parliament to make legislation. It forms part of the set of sections which deal with the legislative competence of the Parliament and the passing of legislation. Sections 29-36 make further provision in this regard.

Provision about the numbering, citation, publication and interpretation of Acts of the Scottish Parliament are matters for the Parliament but, until the Scottish Parliament makes such provision, transitional provisions are contained in the Scotland Act 1998 (Transitory and Transitional Provisions) (Publication and Interpretation etc. of Acts of the Scottish Parliament) Order 1999 (S.I. 1999/1379).

Parliamentary Consideration

Details of Provisions

Subsection (1) confers the power on the Scottish Parliament to make laws, to be known as Acts of the Scottish Parliament (ASP). This is subject to section 29 which imposes limitations upon the legislative competence of the Parliament.

Subsection (2) provides that proposed Acts are to be known as Bills. A Bill will become an Act of the Scottish Parliament when it has been passed by the Parliament and has received Royal Assent.

Subsection (3) contains provisions regarding Royal Assent. A Bill receives Royal Assent at the beginning of the day on which Letters Patent under the Scottish Seal signed with Her Majesty's own hand signifying Her Majesty's Assent are recorded in the Register of the Great Seal by the Keeper of the Registers of Scotland. The form of these Letters Patent is prescribed by the Scottish Parliament (Letters Patent and Proclamations) Order 1999 (S.I. 1999/737) which is made under section 38. Section 38(2) requires the Keeper, on recording the Letters Patent signifying Her Majesty's Assent to a Bill, to intimate the date of recording to the Clerk.

Subsection (4) provides that the date of Royal Assent shall be written by the Clerk on the Act of the Scottish Parliament and shall form part of it. In addition, the date when Royal Assent is given to an ASP is usually given in the next Business Bulletin of the Parliament.

Subsection (5) provides that the validity of an Act of the Scottish Parliament is not affected by any invalidity in the proceedings of the Parliament leading to its enactment. What is meant by any invalidity in the proceedings of the Parliament is not defined but there are other provisions in the Act which envisage that the proceedings may be invalid for some reason-see sections 1(4) and 17(5). However, this subsection is intended to protect ASPs from being challenged on procedural grounds, for example, on the grounds that some rule in the standing orders regulating the proceedings of the Parliament has not been complied with - see Lord Sewel H.L. Deb vol 593 col 1946. However, it is not thought that this subsection would protect an ASP from challenge if the Bill had not been passed by the Parliament before it had been submitted for Royal Assent because this would not meet the requirements of section 28(2).

Subsection (6) confirms that every Act of the Scottish Parliament shall be judicially noticed (i.e. it does not need to be proved in any court proceedings). The Scotland Act 1998 (Transitory and Transitional Provisions) (Publication and Interpretation etc. of Acts of the Scottish Parliament) Order 1999 (S.I. 1999/1379) makes provision for the publication of ASPs by or under the authority of the Queen's Printer for Scotland (see section 92) and for the master copy of the ASP to be kept by the Keeper of the Records.

Subsection (7) makes it clear that the power of the Westminster Parliament to make laws for Scotland is not affected. This express provision confirms the sovereignty of the United Kingdom Parliament.

Lord Sewel indicated in the House of Lords during the passage of the Scotland Bill (H.L. Deb vol. 592 col. 791) that "we would expect a convention to be established that Westminster would not normally legislate with regard to devolved matters without the consent of the Scottish Parliament". This has come to be known as the Sewel Convention. The House of Commons agreed to follow this practice by adopting on 21 October 1999 the 4^th Report of the House of Commons Procedures Committee, The Procedural Consequences of Devolution (HC 185 1998-99). The Government agreed to obey the Convention in paragraph 13 of the Memorandum of Understanding and Supplementary Agreements between it and the devolved administrations, first presented to Parliament in July 2000. The Government and the Scottish Executive have also issued further guidance on the Convention.

SECTION 29: Legislative competence

Purpose and Effect

This section limits the competence of the Scottish Parliament to make laws. It provides that an Act of the Scottish Parliament (ASP) will not be law so far as any provision of it is outside the legislative competence of the Parliament. It then defines that what is meant by a provision of an ASP being outside the legislative competence of the Parliament is if it would form part of the law of a country other than Scotland or confer or remove functions exercisable otherwise than in or as regards Scotland, relates to reserved matters, is in breach of the restrictions in Schedule 4, is incompatible with any of "the Convention rights" (i.e. the rights under the European Convention on Human Rights which are defined and given effect in the Human Rights Act 1998) or with European Community law, or would remove the Lord Advocate from his position as head of the systems of criminal prosecution and investigation of deaths in Scotland. The section also makes provision to ensure that the Scottish Parliament can legislate about Scots private law and Scots criminal law, provided it does so to make the law apply consistently to reserved and devolved matters.

General

This section is part of a set dealing with legislation of the Scottish Parliament. Section 28 provides for the Parliament to be able to make laws known as Acts of the Scottish Parliament (ASPs). Section 30 introduces the list of reserved matters (which are set out in Schedule 5) and provides for the modification of Schedules 4 and 5 by subordinate legislation. Sections 31 to 33 and 36 make provision for the scrutiny of Bills and ASPs to establish whether their provisions are within the powers of the Parliament and for the necessary procedural arrangements for this. Section 35 provides for the Secretary of State to have the power to intervene to prevent submission of a Bill for Royal Assent in certain limited circumstances. Sections 98, 101 to 103 and Schedule 6 make provision in relation to the judicial determination of questions about the legislative competence of the Scottish Parliament. Scots private law and Scots criminal law are defined in section 126(4) and (5). Schedule 4 sets out restrictions on modification of a number of enactments and rules of law. Schedule 5 defines reserved matters.

This section is also one of a number dealing with the relations between the Parliament and the Scottish Executive, the UK Government and the European Union. Although relations with the EU are reserved to the UK Government, the Parliament and the Executive will be responsible for observing and implementing Community law in relation to devolved matters (see also Schedule 5 and section 126).

Responsibility for secondary legislation and any other executive functions are devolved by virtue of section 53 in so far as the functions do not relate to reserved matters or the retained functions of the Lord Advocate. Section 63 allows for subordinate legislation to specify additional functions to be exercised by the Scottish Ministers. See also section 57 in relation to Community law and Convention rights and section 58 in relation to the Secretary of State's power to prevent or require action to be taken.

Parliamentary Consideration

The interrelationships between section 29 and Schedules 4 and 5 were explained by Lord Sewel on 21 July 1998 (H.L. Deb. vol. 592 cols. 818-822) during consideration of the Scotland Bill by the House of Lords.

Details of Provisions

Subsection (1) provides that an Act of the Scottish Parliament is not law so far as any provision in it is outside the legislative competence of the Scottish Parliament.

If a provision of an ASP is held to be outside the legislative competence of the Parliament, section 29(1) does not render the whole Act invalid. It only provides that the Act is "not law so far as" that invalid provision is concerned.

A provision, which is outside the legislative competence of the Parliament, is "not law" and will never have been law. It is ultra vires the Parliament's competence and therefore void ab initio. This could have quite drastic effects, particularly if this invalidity is only found to be the case by the courts after the ASP has been in operation for some years. Accordingly, section 102 empowers a court, where it decides that an ASP or some provision in it is not within the legislative competence of the Parliament, to make an order removing or limiting the retrospective effect of its decision or suspending its effect for a period to allow the defect to be corrected.

Subsection (2) provides that a provision is outside the legislative competence of the Parliament if any of the five paragraphs apply.

Paragraph (a) mentions two circumstances. It provides that a provision is outside that competence if it would form part of the law of any country or territory other than Scotland. "Scotland" is defined by section 126(1) to include the internal waters and territorial seas adjacent to Scotland. This provision would, therefore, prevent the Scottish Parliament from legislating as a matter of English law but it does not prevent a provision in an ASP from having extra-territorial effect provided it does so only as a matter of Scots law. If it is necessary, in consequence of an ASP for some provision to be made in the law in the rest of the UK, for example, some cross border provision, section 104 enables the Secretary of State to make such provision by subordinate legislation.

Paragraph (a) also provides that a provision is outside that competence if it confers or removes functions exercisable otherwise than in or as regards Scotland. There is no definition of what is meant by a function exercisable "as regards Scotland" but it is clear that there has to be some connection or nexus with Scotland. There are other references in the Act to functions being exercisable "in or as regards Scotland" - see sections 63, 88(6), 90(1) and in the definition of Scottish public authority in section 126(1). It is also implicit in the concept of "devolved competence" (see section 54) so that, for example, it is only functions of a Minister of the Crown which are exercisable in or as regards Scotland which are transferred to the Scottish Ministers under section 53. The question whether a function is exercisable in or as regards Scotland is specifically made a devolution issue by paragraph 1(f) of Schedule 6. Section 30(3) enables Her Majesty, by Order in Council, to specify functions which are to be treated, for such purposes of the Act as may be specified (including for the purposes of legislative competence) as being or as not being exercisable "in or as regards Scotland".

Paragraph (b) provides that a provision is outside the legislative competence of the Parliament if it relates to reserved matters. Reserved matters are defined in Schedule 5.

What is meant by a provision "relating to" a reserved matter is dealt with in section 29(3).

Paragraph (c) provides that a provision is outside the legislative competence of the Parliament if it is in breach of the restrictions in Schedule 4. Schedule 4 imposes various restrictions preventing the Scottish Parliament from modifying various enactments or rules of law, such as the law on reserved matters. Accordingly, even if the provision does not relate to reserved matters, it may still be outside its competence if it does so by modifying the law on reserved matters contrary to that Schedule. The notes on Schedule 4 give further detail in this regard.

Paragraph (d) provides that a provision is outside the legislative competence of the Parliament if it would be incompatible with any of the Convention rights or with Community law.

The effect of this provision is to make it ultra vires for a provision of an ASP to be incompatible with any of the Convention rights or with Community law.

The expression "Convention rights" is defined in section 126(1) as having the same meaning as in the Human Rights Act 1998. That Act came into force on 2 October 2000 but, until that time, section 129(2) provided that section 29(2)(d) should have effect as it would have after that date.

The expression "Community law" is defined in section 126(9) in similar terms as in the European Communities Act 1972. It is also modified by section 106(6) in the case of an obligation under Community law which is a quantitative obligation and it is split in terms of section 106.

Paragraph (e) provides that a provision is outside the legislative competence of the Parliament if it would remove the Lord Advocate from his position as head of the systems of criminal prosecution and investigation of deaths in Scotland. This is one of the provisions in the Act which are intended to safeguard the position of the Lord Advocate. It does not prevent the Scottish Parliament from amending or even completely altering those systems from what they are at present.

Subsection (3) provides that, for the purposes of this section, the question of whether a provision of an Act of the Scottish Parliament "relates to" a reserved matter is to be determined, subject to sub-section (4), by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances.

When this amendment was made at Committee Stage in the House of Lords on 21 July 1998 (H.L. Deb vol. 592 col. 818 et seq), Lord Sewel indicated that it was necessary to ensure that the Scottish Parliament could legislate about devolved matters, such as planning or pollution, even although they might affect reserved matters, such as coal mining. He explained that it had been intended to rely upon the "respection doctrine" which the courts had developed in determining whether a provision was "in respect of" some matter in cases arising from the Commonwealth and the Government of Ireland Act 1920. The classic statement of the respection doctrine was by Lord Atkin in the Northern Irish case of Gallagher v Lynn 1937 AC 863 at 870:

It is well established that you are to look at the "true nature and character of the legislation ".. the "pith and substance of the legislation". If, on the view of the statute as a whole, you find the substance of the legislation is within the express powers, then it is not invalidated if, incidentally, it affects matters which are outside the authorised field.

However, in order to avoid any doubt as to whether the courts would apply that doctrine, it was reflected in statutory form as the purpose test in section 29(3). The courts are therefore required by statute to determine whether a provision "relates to" a reserved matter by reference to "the purpose of the provision". In determining its purpose, the courts are to have regard, amongst other things, to its effect in all the circumstances. It may be that it is thought that a provision might have two or more purposes but section 29(3) does not say that the courts are to determine what is the dominant purpose. It requires the courts to determine what is "the" purpose of the provision or, in other words, what the provision is about, what is its "true nature", its "pith and substance".

How are the courts to do this? In determining the purpose of a provision, the courts are required to have regard to "its effect in all the circumstances". A provision might be said to have many effects and among them might well be the fact that it "affects" reserved matters. The courts would be required to have regard to that in determining what is "its effect in all the circumstances". The courts are also required to have regard to other things. These may include the legislative context, what is stated in the Parliament to be the purpose of the provision and what may be said to be its legislative intention.

Once the courts have determined that the purpose does not relate to reserved matters, the fact that it may affect them, even significantly, is irrelevant. This is similar to the effect of the respection doctrine. The fact that there can be a provision which does not relate to reserved matters but which nevertheless affects them is implied by subsection (4).

Subsection (4) qualifies subsection (3) by making special provision as to whether a provision in an ASP relates to reserved matters where it modifies Scots private law or Scots criminal law as it applies to reserved matters. It provides that, even although such a provision would not otherwise relate to reserved matters (that is, by the application of the purpose test in subsection (3)), it is nevertheless to be treated as relating to reserved matters unless "the purpose of the provision is to make the law in question apply consistently to reserved matters and otherwise".

Scots private law and Scots criminal law are defined in section 126(4) and (5). Scots private law is defined as including not only the various familiar areas of the civil law of Scotland but also judicial review of administrative action.

The application of the purpose test may well result in a provision in an ASP amending Scots private law and Scots criminal law being regarded as not "relating" to reserved matters even although it might substantially affect them. Subsection (4), however, deems such a provision to relate to reserved matters (and therefore to be invalid) unless it can be said that "the purpose of the provision is to make the law in question apply consistently to reserved matters and otherwise" i.e. to both reserved and devolved matters.