SECTION 30: Legislative competence: supplementary

Purpose and Effect

This section introduces the list of reserved matters in Schedule 5. It also provides power, by Order in Council, to modify Schedules 4 or 5 and to specify that functions should be treated as being, or not being, exercisable "in or as regards Scotland" for particular purposes.

General

This section is part of a set dealing with the legislative competence 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 29 limits the legislative competence of the Scottish Parliament to make ASPs. Sections 31 to 36 make provision for the scrutiny of the vires of Bills of the Scottish Parliament and for associated procedural matters. Schedule 4 sets out restrictions on modification of a number of enactments and rules of law. Schedule 5 defines reserved matters.

This section provides a power to modify the legislative competence of the Parliament by making modifications to Schedules 4 and 5 and by deeming functions to be or not to be exercisable in or as regards Scotland. This power is exercisable by Her Majesty by Order in Council. Further provision about the making of an Order in Council under section 30 is to be found in sections 112 to 115 and Schedule 7. In particular, section 114(3) provides that it may have retrospective effect and Schedule 7 provides that it is subject to Type A procedure, namely that it is subject to affirmative resolution in both the UK and Scottish Parliaments.

Section 30 therefore permits certain alterations to be made to the legislative competence of the Scottish Parliament but only with the agreement of both Parliaments. This is the only way in which the Scotland Act envisages that subordinate legislation under that Act can modify Schedules 4 and 5. The Westminster Parliament could, of course, make such alterations unilaterally by virtue of its sovereignty (section 28(7)).

Under section 30(3), an Order in Council may be made specifying functions which are to be treated as being or not being exercisable in or as regards Scotland for different purposes of the Act such as sections 53 and 63.

However, before a function can be specified in such an Order in Council as being exercisable in or as regards Scotland, it must be capable of being exercisable separately in or as regards Scotland. Where this is not already the case, section 106 enables an Order in Council to be made to modify a function to make it so exercisable for the purpose of enabling or facilitating its transfer to the Scottish Ministers. This power was exercised in the Scotland Act 1998 (Modification of Functions) Order 1999 (S.I. 1999/1756) and in the Scotland Act 1998 (Modification of Functions) Order 2000 (S.I. 2000/1458).

Parliamentary Consideration

Details of Provisions

Subsection (1) provides that Schedule 5 (which defines reserved matters) shall have effect. Under section 29(2)(b) a provision in an ASP which relates to reserved matters is outside the legislative competence of the Scottish Parliament.

Subsection (2) provides that Her Majesty may by Order in Council modify Schedules 4 or 5 in ways which She considers necessary or expedient.

This power has been exercised in the Scotland Act 1998 (Modifications of Schedules 4 and 5) Order 1999 (S.I. 1999/1749), the Scotland Act 1998 (Modifications of Schedule 4) Order 2000 (S.I. 2000/1831), the Scotland Act 1998 (Modification of Schedule 5) Order 2000 (S.I. 2000/3252) and the Scotland Act 1998 (Modification of Schedule 5) Order 2001(S.I. 2001/1456).

Subsection (3) provides that Her Majesty may by Order in Council specify functions which are to be treated, for such purposes of this Act as may be specified, as being, or as not being, functions which are exercisable in or as regards Scotland. See the general note above and the note on section 29(2)(a).

Section 30 (3) was inserted into the Bill principally for the purpose of enabling provision to be made to make it clear which Ministerial functions relating to the regulation of sea fisheries outside Scotland would transfer to the Scottish Ministers under section 53 and what would be the competence of the Scottish Parliament to confer or remove such functions from them - see H.L. Deb 21 July 1998 vol. 592 col. 835 et seq. This was given effect to in the Scotland Act 1998 (Functions Exercisable in or as Regards Scotland) Order 1999 (S.I. 1999/1748). That Order also made provision in respect of functions relating to prisoners, agriculture and marine dredging.

The power has also been exercised for the purposes of section 63 which makes provision for an Order in Council to transfer additional functions which are exercisable in or as regards Scotland to the Scottish Ministers including functions relating to reserved matters examples include article 2 of the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 2000 (S.I. 2000/1563) and article 2 of the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) (No. 2) Order 2000 (S.I. 2000/3253).

Subsection (4) provides that an Order in Council under this section may also make such modifications of any enactments, prerogative instruments, other instruments or documents as is considered necessary or expedient in connection with other provision made by the Order. This includes any enactment in or made under the Scotland Act.

SECTION 31: Scrutiny of Bills before introduction

Purpose and Effect

This section deals with the responsibility of the Scottish Executive to scrutinise Bills which they introduce to ensure they are within the competence of the Parliament and to make a statement to that effect. It also requires the Presiding Officer to take a view on the legislative competence of a Bill and to state his decision.

General

This section forms part of the set dealing with the legislative competence of the Parliament.

An Executive Bill (that is, a Bill introduced by a member of the Scottish Executive) cannot be introduced without a statement by the member in charge of it that it is, in his view, within the legislative competence of the Parliament. However, this does not apply to a "Member's Bill" or a "Private Bill".

All Bills require a statement from the Presiding Officer on or before the introduction of the Bill as to whether or not in his view the provisions of the Bill would be within the legislative competence of the Parliament and to state his decision. The Standing Orders also require the Presiding Officer, if he considers that the provisions of the Bill would not be within legislative competence, to state what those provisions are and the reasons for his view. There is a similar provision in the case of Private Bills in Standing Orders.

The fact that the Presiding Officer considers that a Bill, or any provision in it, would not be within the legislative competence of the Parliament does not prevent the introduction of the Bill. He does not therefore exercise a veto over the introduction of a Bill. However, any such view is something which will be taken into account by the Scottish Executive and the Parliament during the passage of the Bill and, if it is passed, by the UK and Scottish Law Officers in determining whether to refer the Bill to the Judicial Committee of the Privy Council under section 33.

Amendments which are made to a Bill during its passage do not require any similar statements. Furthermore, the question whether an amendment is within the legislative competence of the Parliament is not a matter which is taken into account in determining its admissibility. The Standing Orders of the Parliament make further provision in this regard.

Parliamentary Consideration

Details of Provisions

Subsection (1) requires a member of the Scottish Executive in charge of a Bill to make a statement on or before introduction of the Bill stating that in his view the provisions of the Bill would be within the legislative competence of the Parliament. This only applies to an Executive Bill, that is a Bill introduced by a member of the Executive. The Standing Orders of the Parliament require that this statement forms part of the documents which are required to accompany a Bill on its introduction, known as the "accompanying documents".

Subsection (2) requires the Presiding Officer to decide on or before the introduction of a Bill whether or not in his view the provisions of the Bill would be within the legislative competence of the Parliament and to state his decision. This statement is required in the case of every Bill which is introduced into the Parliament. The Standing Orders provide that this statement must form part of the "accompanying documents" for a Bill.

The Standing Orders also require the Presiding Officer, if he considers that the provisions of the Bill would not be within legislative competence, to state what those provisions are and the reasons for his view. There is a similar provision in the case of Private Bills.

Subsection (3) provides that the form of any statement and the manner in which it is to be made should be determined under standing orders and that standing orders may provide for any statement to be published.

SECTION 32: Submission of Bills for Royal Assent

Purpose and Effect

The section provides that it is for the Presiding Officer to submit Bills for Royal Assent but prohibits him from doing so in certain circumstances. He cannot do so during the time when the Law Officers may refer it to the Judicial Committee under section 33, if the Judicial Committee is deciding a reference on it or the Secretary of State may intervene under section 35. The Presiding Officer may also not submit a Bill for Royal Assent in its original form if the Judicial Committee decides that the Bill or a provision of it are outside the Parliament's competence or if the reference is withdrawn under section 34(2)(b) so that the Parliament may reconsider it.

General

This section forms one of a number of Sections on the passing of legislation in the Parliament.

Parliamentary Consideration

Details of Provisions

Subsection (1) provides that it is for the Presiding Officer to submit Bills for Royal Assent. No-one else can do so other than a deputy Presiding Officer in terms of section 19(4) or (5). Bills require Royal Assent before they can become Acts of the Scottish Parliament.

Subsection (2) provides that the Presiding Officer shall not submit a Bill for Royal Assent at any time when:

(a)     the Advocate General, the Lord Advocate or the Attorney General may make a reference in relation to the Bill under section 33; or

(b)     the Judicial Committee is considering any such reference; or

(c)     an order may be made by the Secretary of State under section 35 prohibiting the Presiding Officer from submitting the Bill for Royal Assent.

Under section 33, any of the specified Law Officers may refer to the Judicial Committee the question whether the Bill, or any provision in it, is within the legislative competence of the Parliament. They may do so at any time during the period of 4 weeks after the passing of the Bill or after any subsequent approval of the Bill after its reconsideration in terms of section 36(5). An order under section 35 may be made by the Secretary of State at any time during the same period but, if the Bill is referred to the Judicial Committee, the Secretary of State has a further period of 4 weeks after the reference has been decided or otherwise disposed of by the Judicial Committee in which to make the order. Bills may be submitted more quickly for Royal Assent in cases where the Law Officers and the Secretary of State notify the Presiding Officer as provided for in sections 33 and 35.

If a reference to the Judicial Committee is made, the Presiding Officer cannot submit the Bill for Royal Assent until the reference has been decided or otherwise disposed of by the Judicial Committee, such as by the Judicial Committee agreeing to the withdrawal of the reference.

Subsection (3) provides that the Presiding Officer shall not submit a Bill in its unamended form for Royal Assent if:

(a)     the Judicial Committee decides that the Bill or any part of it is outside the legislative competence of the Parliament; or

(b)     a reference made in relation to a Bill under section 33 has been withdrawn following a request for withdrawal of the reference under section 34(2)(b).

This ensures that the Presiding Officer cannot submit a Bill for Royal Assent containing provisions in their original form which the Judicial Committee have found to be outside the competence of the Parliament or about which there may have been questions referred to the Judicial Committee but the reference has been withdrawn in the circumstances described in section 34. However, it does not prevent the Presiding Officer from submitting such a Bill after it has been amended following a reconsideration of it by the Parliament in terms of section 36, but only after the period (normally 4 weeks) allowed for a further reference to the Judicial Committee under section 33 or the making of an order under section 35.

Subsection (4) provides a definition of the 'Advocate General' to mean the Advocate General for Scotland (see section 87) and the 'Judicial Committee' to mean the Judicial Committee of the Privy Council (see section 103).

SECTION 33: Scrutiny of Bills by the Judicial Committee

Purpose and Effect

This section provides that the Advocate General, the Lord Advocate or the Attorney General may refer a Bill of the Scottish Parliament, or any provision of such a Bill, to the Judicial Committee of the Privy Council ("the Judicial Committee") for determination of whether it is within the legislative competence of the Parliament. Such a reference may only be made within the 4 week period beginning with the passing of a Bill or its subsequent approval following reconsideration of it by the Parliament.

General

This section forms part of the set of provisions in sections 31 to 34 dealing with the scrutiny of Bills to ensure that they are within the legislative competence of the Scottish Parliament before they are submitted for Royal Assent. It provides for the determination of such questions by the Judicial Committee at the instance of one of the specified Law Officers.

These questions may also be raised in court or tribunal proceedings after Royal Assent by any member of the public who has title and interest to sue, such as by way of judicial review. Schedule 6 provides for certain special procedures to apply when they do arise, for example, to ensure that the UK and Scottish Law Officers are given an opportunity to participate and that these questions can be determined ultimately by the Judicial Committee. Schedule 6 also enables any of the specified Law Officers to bring such proceedings or to refer the matter directly to the Judicial Committee.

Section 103 makes provision for the procedure and membership of the Judicial Committee in cases arising under either section 33 or Schedule 6. The rules regulating the procedure on a reference under section 33 are contained in the Judicial Committee (Devolution Issues) Rules Order 1999 (S.I. 1999/665). The powers of the Judicial Committee in such cases are also dealt with in the Judicial Committee (Powers in Devolution Cases) Order 1999 (S.I. 1999/1320).

Parliamentary Consideration

Details of Provisions

Subsection (1) provides that the Advocate General, the Lord Advocate or the Attorney General may refer the question as to whether a Bill of the Scottish Parliament or any provision of it is within the Parliament's legislative competence to the Judicial Committee for a decision.

Subsection (2) prescribes when such a reference by those Law Officers may be made. It may be made during a period of four weeks following either the passing of the Bill by the Parliament or the approval of a Bill by the Parliament on its reconsideration in accordance with the Standing Orders made by virtue of section 36(5).

If the Law Officers do not refer a Bill to the Judicial Committee within that four week period, then the Presiding Officer will be free to submit it for Royal Assent at the end of that period, subject to any order made by the Secretary of State under section 35. If, however, a reference is made, the Presiding Officer will not be able to submit the Bill for Royal Assent until it has been decided or otherwise disposed of by the Judicial Committee by virtue of section 32(2)(b).

Subsection (3) qualifies subsection (2) by providing that a Law Officer shall not refer a Bill to the Judicial Committee if he has already notified the Presiding Officer that he does not intend to make a reference in relation to that Bill. However, if, after giving such a notification, the Bill has been approved by the Parliament on reconsideration, then that notification does not preclude him making a reference during the second four week period following such approval in terms of subsection (2)(b).

The provision to allow the Law Officers to notify their intention not to refer a Bill will allow for cases where it is intended that the Bill should be brought into force as soon as possible, such as in the case of emergency legislation. The Presiding Officer will be entitled to submit a Bill for Royal Assent as soon as all the Law Officers so notify and the Secretary of State has notified him that he does not propose to make an order under section 35. So far as the Law Officers are concerned, this, of course, depends on general agreement that the Bill raises no question of vires which ought to be referred.

SECTION 34: ECJ references

Purpose and Effect

This section makes provision in a case where a reference has been made to the Judicial Committee under section 33 and the Judicial Committee has, in turn, made a reference for a preliminary ruling to the European Court of Justice (ECJ). In such a case, if the Scottish Parliament resolves to reconsider the Bill, the Law Officer making the reference to the Judicial Committee is required to request the withdrawal of the reference to the Judicial Committee.

General

The kind of circumstance in which a reference to the Judicial Committee might lead to a reference for a preliminary ruling to the ECJ is where there is some dispute as to whether a provision in the Bill is incompatible with EC law. If there is a question as to what is the EC law, this question should be referred to the ECJ for a preliminary ruling. However it will be for the Judicial Committee to determine whether the provision in the Bill is incompatible with whatever the ECJ hold the law to be.

If such a reference is made to the ECJ, this could lead to a considerable delay before the Bill might be able to be enacted and commenced. This could be unfortunate if the provision in question is not an essential part of the Bill or could easily be amended or deleted so as to remove the problem. This section is intended to enable the reference to the Judicial Committee to be withdrawn if the Parliament resolves that it is prepared to reconsider the Bill. If the Judicial Committee agree that the reference can be withdrawn, this does not mean that the Presiding Officer can then submit the Bill for Royal Assent in its original state: section 32(3)(b) prevents this.

However, if the Parliament amends the Bill on reconsideration, the Law Officers have a further period of 4 weeks in which to refer the Bill again to the Judicial Committee. The Secretary of State also has a further period of 4 weeks in which to decide whether to make an order under section 35.

This is the only circumstance in which the Parliament is able to reconsider a Bill after it has been referred to the Judicial Committee and before the Judicial Committee have reached a decision on the reference.

Procedures for reconsideration of Bills are provided for the Standing Orders of the Parliament.

Parliamentary Consideration

Details of Provisions

Subsection (1) provides that this section applies where a reference has been made to the Judicial Committee by a Law Officer under section 33 and the Judicial Committee has, in turn, made a reference for a preliminary ruling and neither of those references has been decided or otherwise disposed of. A reference for a preliminary ruling is defined in subsection (3).

Subsection (2) provides that, if the Parliament resolves to reconsider the Bill, the Presiding Officer shall notify the Advocate General, the Lord Advocate and the Attorney General of that fact and the Law Officer who made the reference to the Judicial Committee is required to request the withdrawal of the reference. There is no obligation upon the Judicial Committee to accede to such a request.

Subsection (3) defines a "reference for a preliminary ruling" as meaning a reference of a question to the ECJ under Article 177 of the Treaty establishing the European Community, Article 41 of the Treaty establishing the European Coal and Steel Community or Article 150 of the Treaty establishing the European Atomic Energy Community.

SECTION 35: Power to intervene in certain cases

Purpose and Effect

This section enables the Secretary of State, to intervene, by order, to prohibit the Presiding Officer from submitting a Bill for Royal Assent in certain limited circumstances. It also specifies when the order can be made and what it must contain.

General

This section is one of a number dealing with the legislative competence of the Parliament.

The limits upon the legislative competence of the Scottish Parliament are set out in sections 28-30, together with the list of reserved matters in Schedule 5 and the entrenched enactments and rules of law in Schedule 4. Any provision in an Act of the Scottish Parliament which falls outside those limits is ultra vires and void, subject to any order made by the courts under section 102. There are various provisions providing for a Bill to be scrutinised before it is enacted to ensure that it is intra vires, both before its introduction (section 31) and by the Judicial Committee after it has been passed but before it is submitted for Royal Assent (sections 32- 34). After the Bill has been enacted, any question as to whether the Act or some provision in it is outside the legislative competence of the Parliament is a devolution issue and attracts the special procedures in Schedule 6

However, there are certain limited circumstances where the UK Government can exercise a policy control or veto over what legislation is enacted by the Scottish Parliament, even although it is within its competence. This section defines what those circumstances are. There is a related power in section 58(4) enabling the Secretary of State, in similar circumstances, to revoke subordinate legislation made by a member of the Scottish Executive.

Parliamentary Consideration

Ministers explained these provisions in the House of Lords during the passage of the Scotland Bill on 28 July 1998 and 28 October 1998.

Details of Provisions

Subsection (1) provides that the Secretary of State may make an order prohibiting the Presiding Officer from submitting a Bill for Royal Assent if the Bill contains provisions:

(a)     which the Secretary of State has reasonable grounds to believe would be incompatible with any international obligations or the interests of defence or national security; or

(b)     which make modifications of the law as it applies to reserved matters and which he has reasonable grounds to believe would have an adverse effect on the operation of the law as it applies to reserved matters.

Subsection (1)(a) enables the Secretary of State to prevent a Bill from being enacted where he has reasonable grounds to believe that it would be incompatible with the UK's international obligations.

"International obligations" are defined in section 126(10) as meaning "any international obligations of the United Kingdom other than obligations to observe and implement Community law or the Convention rights".

In relation to EC law rights or rights under the European Convention on Human Rights ("Convention rights"), there is a vires control in the Act: section 29(2)(d) provides that any provision in an ASP which is incompatible with Community law or any of the Convention rights is outside the legislative competence of the Scottish Parliament.

However, other international obligations cannot be protected by such a vires control because, except in certain limited circumstances, they are not normally justiciable as a matter of domestic law. Accordingly, it is necessary to ensure that they can be protected by the Secretary of State by the use of the power in this section (see also section 58 in relation to the actions of the Scottish Executive).

Subsection (1)(a) also enables the Secretary of State to prevent a Bill from being enacted where he has reasonable grounds to believe that it would be incompatible with the interests of defence or national security. These are reserved matters by virtue of paragraph 9 of Part I, and Section B8 of Part II, of Schedule 5 and therefore provisions in an ASP cannot relate to them (see section 29(2)(b)). Nevertheless, an ASP could have a significant effect upon such reserved matters (see the note on section 29). In view of the national importance of defence and national security, it was thought appropriate that they should be given this special protection.

Subsection (1)(b) enables the Secretary of State to prevent a Bill from being enacted which makes modifications of the law as it applies to reserved matters and which he has reasonable grounds to believe would have an adverse effect on the operation of the law as it applies to reserved matters.

Provisions in an ASP cannot relate to reserved matters (section 29(2)(b)) and they, generally, cannot modify "the law on reserved matters" by virtue of section 29(2)(c) and paragraph 2 of Schedule 4. Nevertheless, they could have a significant effect upon reserved matters (see the note on section 29).

Subsection (2) requires the order to identify the Bill and the provisions concerned, and state the reasons why it is being made.

Further provisions about the making of the order are to be found in sections 112 to 115 and Schedule 7. The Order is subject to "Type I" procedure i.e. it is subject to annulment in pursuance of a resolution of either House of Parliament.

Subsection (3) gives the Secretary of State four weeks from the Scottish Parliament passing the Bill, or approving it following reconsideration, or after a reference under section 33 being decided or otherwise disposed of by the Judicial Committee, in which to make the Order.

Subsection (4) prevents the Secretary of State from making an order if he has previously notified the Presiding Officer that he does not intend to do so, unless the Parliament has meanwhile approved the Bill following reconsideration.

Subsection (5) provides that an order ceases to have effect if the Scottish Parliament approves the Bill following reconsideration (section 36(5) and under Standing Orders Rule 9.9). (See also the note on section 36(4)). If the Parliament approves the Bill, then, under subsection (3), the Secretary of State has a further 4-week period in which to make a further order if he is still not content.