Parliamentary Consideration

Details of Provisions

Subsection (1) provides that Her Majesty may by Order in Council provide for the Scottish Parliamentary Corporate Body to make payments to registered political parties to assist their MSPs in performing their parliamentary duties. These payments would be made out of the Scottish Consolidated Fund.

Subsections (2) and (3) restrict the power of the SPCB to make payments in pursuance of an order under subsection (1). Under subsection (2) payment is restricted to those parties who do not have one or more of its members as a member of the Scottish Executive or junior Scottish Ministers. However subsection (3) provides that the Order in Council under subsection (1) may provide for the fact that an MSP is a member of the Scottish Executive or a junior Scottish Minister to be disregarded in any circumstances which may be specified in the Order.

Subsection (4) provides the Order may determine the circumstances in which a member of the Parliament and a party are regarded as connected for the purposes of this section. This is intended to deal with situations such as where a member ceases to be associated with a party but remains a member of the Parliament.

SECTION 98: Devolution issues

Purpose and Effect

This section gives effect to Schedule 6 to the Act, which defines devolution issues and makes provision for the special procedures to apply where they arise in legal proceedings.

General

This section forms part of the set of provisions which deal with the power of the Judicial Committee of the Privy Council and the other courts in Scotland, England and Wales and Northern Ireland to deal with disputes about the vires (or legal competence) of Acts of the Scottish Parliament; secondary legislation made under its auspices; and actions of members of the Scottish Executive.

Section 102 provides for a court or tribunal to limit the retrospective effect, or suspend the effect, of a finding of ultra vires. Section 103 provides for the membership of the Judicial Committee in devolution cases and for the conferring of certain powers on the Judicial Committee in relation to such proceedings.

Details of Provisions

Section 98 simply introduces Schedule 6. See the separate note on Schedule 6 for further information.

SECTION 99: Rights and liabilities of the Crown in different capacities

Purpose and Effect

Section 99 provides for legal relations to arise between the Crown in right of Her Majesty's Government in the UK and the Crown in right of the Scottish Administration. It provides that rights and liabilities may arise between the Crown in such different capacities by virtue of a contract, by operation of law or by virtue of an enactment and that property and liabilities can be transferred between them as if they were subjects. It also provides that the Crown can sue each other in such different capacities in respect of such property and liabilities or in respect of the exercise of, or failure to exercise, any function exercisable by an office holder of the Crown in one of those capacities. This will enable the Scottish Ministers, in appropriate cases, to sue a Minister in the UK Government (or vice versa) in contract or in delict or to seek judicial review of the exercise, or failure to exercise, of some function by that Minister.

Parliamentary Consideration

General

Section 99 ensures that the two manifestations of the Crown, as the UK Government and as the Scottish Administration, are placed in the same relationship to each other as they would be if they were not the Crown but two subjects. Legal relationships can be created between them and they are able to enforce any rights or obligations created. Without this provision, the doctrine of Crown indivisibility would have meant that it would not be possible to create legally enforceable obligations, as the two would have been regarded as parts of the same body.

The Crown Suits (Scotland) Act 1857, as amended by paragraph 2 of Schedule 8, provides for the Lord Advocate to represent the Scottish Administration (or any part of it) and for the Advocate General for Scotland to represent the UK Government in Scottish legal proceedings. Amendments are also made to the Crown Proceedings Act 1947 by paragraph 7 of Schedule 8 to differentiate between Crown proceedings where the proceedings are by or against any part of the Scottish Administration and where they are by or against the UK Government.

Details of Provisions

Subsection (1) provides that rights and liabilities may arise between the Crown in right of Her Majesty's Government in the UK and the Crown in right of the Scottish Administration by virtue of a contract, by operation of law, or by virtue of enactment as they may arise between subjects.

Subsection (2) provides that property and liabilities may be transferred between the Crown in such different capacities as between subjects and that they may create, vary or extinguish any property or liability as subjects may.

Subsection (3) provides that judicial proceedings in respect of property or liabilities of the Crown or the exercise of functions of office-holders of the Crown may be instituted by the Crown in either capacity and the Crown in the other capacity may be a party to the proceedings. In appropriate cases, the Advocate General, as representing the Secretary of State, could for example institute proceedings in contract or delict against the Lord Advocate, as representing Scottish Ministers or seek judicial review of some decision taken by Scottish Ministers, such as to appoint staff in breach of the provisions referred to in section 51(3).

Subsection (4) provides that section 99 applies to a unilateral obligation as it applies to a contract. This is because, under Scots law, legal obligations can arise, in certain cases, as a result of a promise or undertaking.

Subsection (5) defines an "office-holder" in relation to the Crown in right of Her Majesty's Government in the United Kingdom as any Minister of the Crown or other office-holder under the Crown in that capacity and, in relation to the Crown in right of the Scottish Administration, as any office-holder in the Scottish Administration. It defines "subject" as a person not acting on behalf of the Crown.

SECTION 100: Human rights

Purpose and Effect

The purpose of this section is to ensure that, so far as possible, there is compatibility between the Scotland Act and the Human Rights Act 1998 with regard to who would have title and interest to bring proceedings on the ground that an act of a member of the Scottish Executive is incompatible with the Convention rights and the amount of damages which may be awarded if such an act is incompatible.

General

The Scotland Act has various devices which ensure that a member of the Scottish Executive would be acting ultra vires if he made any subordinate legislation or did any other act which is incompatible with any of the Convention rights - see, for example, section 57(2). The question whether an act by a member of the Scottish Executive is incompatible with Convention rights is a devolution issue and proceedings raising such questions attract the special procedures set out in Schedule 6.

This section provides that the only persons, apart from the Law Officers, who can bring proceedings on the ground that an act of a member of the Scottish Executive is incompatible with Convention rights or rely on Convention rights in proceedings are victims for the purposes of Article 34 of the Convention. This is similar to what is provided by section 7(1) of the Human Rights Act 1998. Article 34 requires applications to the European Court of Human Rights to be from "any person, non-governmental organisation or groups of individuals claiming to be a victim of a violation of a Convention right".

This section also restricts the amount of damages which a court or tribunal may award in respect of such an act which is incompatible with Convention rights to the damages which could be awarded if section 8(3) and (4) of the Human Rights Act applied. Section 8(3) provides, in effect, that no award of damages should be made unless, taking account of all the circumstances of the case, the court is satisfied that "the award is necessary to afford just satisfaction to the person in whose favour it is made". Section 8(4) provides that, in determining whether to award damages or the amount of the award, the court must take into account the principles applied by the European Court of Human Rights under Article 41 of the Convention.

Parliamentary Consideration

Details of Provisions

Subsection (1) provides that the Scotland Act does not enable a person to bring proceedings in a court or tribunal on the grounds that an act is incompatible with the Convention rights or to rely on Convention rights in such proceedings unless he would be a "victim" for the purposes of Article 34 of the Convention (within the meaning of the Human Rights Act 1998) if proceedings in respect of the act were brought in the European Court of Human Rights.

Subsection (2) provides that subsection (1) does not apply to the Law Officers (the Lord Advocate, the Advocate General, the Attorney General or the Attorney General for Northern Ireland). They will be able to bring such proceedings even although they are not victims.

Subsection (3) provides that the Scotland Act does not enable a court or tribunal to award any damages in respect of an act which is incompatible with any of the Convention rights which it could not award if section 8(3) and (4) of the Human Rights Act 1998 applied.

Subsection (4) defines act for the purposes of this section. "Act" means (a) making any legislation and (b) any other act, or failure to act, of a member of the Scottish Executive.

Section 101: Interpretation of Acts of the Scottish Parliament

Purpose and Effect

This section makes provision for the interpretation of an Act or a Bill of the Scottish Parliament, or of subordinate legislation made, confirmed or approved or purporting to be made confirmed or approved by a member of the Scottish Executive. The purpose of the section is to enable the courts to give effect to such legislation, wherever possible, rather than to invalidate it. It is intended to ensure that the courts will not invalidate such legislation merely because it could be read in such as a way as to make it outside competence, such as outside the legislative competence of the Parliament or the competence of Scottish Ministers. It provides that, in that case, such legislation is to be read as narrowly as is required for it to be considered to be within competence, if such a reading is possible.

General

This section is intended to assist the courts by providing a statutory interpretative rule when they are construing such Scottish legislation. Arguably, it does no more than replicate the normal common law rule of construction which the courts should apply when construing legislation which might be ultra vires, namely to seek, so far as it is possible to do so, to give effect to that legislation rather than invalidate it. This is sometimes called the principle of efficacy.

For example an ASP which purports to confer a power on the Scottish Ministers to hold a referendum on any matter could be read as enabling the Ministers to hold a referendum on independence or the Monarchy. Those are reserved matters and the ASP might therefore be read as relating to those reserved matters and therefore outside the legislative competence of the Parliament under section 29(2)(b). Rather than invalidating the ASP (or invalidating it to the extent that it could be so read), this section would require the ASP to be read, if it is possible to do so, as conferring a power to hold a referendum only on matters within the competence of the Parliament. However, if a provision clearly cannot be read to be within competence, for example an ASP providing only for a referendum on independence, then the section will not allow it to be read as being within competence.

The section also provides that the interpretative provision should apply to the interpretation of the provisions of a Bill before the Scottish Parliament as well as to those of an ASP. It will therefore apply in any case where the Judicial Committee of the Privy Council are considering any reference to them of a Bill or of a devolution issue in connection with an ASP.

There are other statutory interpretative rules which the courts are required to apply when construing such Scottish legislation. For example:

(a)     section 2(4) of the European Communities Act 1972 would require such legislation to "be construed and have effect subject to the foregoing provisions of this section" - see the gloss on the meaning of enactment in that section by paragraph 15(2)(b) of Schedule 8 to the Scotland Act; and

(b)     section 3(1) of the Human Rights Act 1998 would require such legislation "so far as it is possible to do so, to be read and given effect in a way which is compatible with the Convention rights" because ASPs and instruments under ASPs are subordinate legislation for the purposes of that Act.

Parliamentary Consideration

SECTION 102: Powers of courts or tribunals to vary retrospective decisions

Purpose and Effect

This section provides for a court or tribunal to remove, or limit any retrospective effect, or suspend any such effect, of a decision by it that an Act of the Scottish Parliament or a provision of it is ultra vires or that a member of the Scottish Executive did not have the power to make subordinate legislation that he has purported to make.

It also provides that one of the criteria the court or tribunal must take into account when determining whether to use this power is the extent to which third parties would otherwise be adversely affected. The section also provides that if a court or tribunal is considering using this power it must in certain circumstances intimate that fact to the Lord Advocate and the appropriate law officer who may then become a party to the proceedings so far as they relate to the possible exercise of the power.

General

The courts may find that an ASP, or a provision in an ASP, is outside the legislative competence of the Parliament. Such an ASP or provision would be "not law" as is stated in section 29(1). In other words, the effect of that decision would be that such an ASP or provision would be void ab initio i.e. it would never have had legal effect from the date of its enactment or commencement.

Similarly, the courts may find that some subordinate legislation made by Scottish Ministers is ultra vires because, for example, the power to make the legislation did not transfer to Scottish Ministers under section 53 because it was not exercised within devolved competence (section 54) or simply because the power was exercised beyond the limits of the delegated power. Again, the effect of that decision would be that such subordinate legislation would be void ab initio.

Such decisions could cause difficulty particularly if they are made some years after the ASP or the subordinate legislation has purported to come into force. It is doubtful whether the courts have the power, at common law, to vary the retrospective effect of their decisions, such as to provide that the decision should only have effect from the date of the decision or from some date other than the date when the defective provision purported to come into force.

This section confers such a power. Such a power is thought to be necessary since the court or tribunal will, in this situation, be declaring invalid legislation (whether primary or secondary) that had, until that point, been considered to be perfectly valid. This power affords the courts and tribunals the power to protect those who had been acting on that basis. A court may, for example, limit any retrospective effect which its decision may have by providing that it should only take effect from the date of its decision or from some other time. It would also allow the court to preserve the legal effects of anything already done in reliance on the erroneous provision.

This section also empowers the court to suspend the effect of its decision for any period to allow the defect to be corrected. This would be appropriate where, for example, it was likely that the defect would be corrected by an ASP or by a remedial order under section 12 of the Convention Rights (Compliance) (Scotland) Act 2001 (asp 7) or by the UK Government in a Westminster Act or an order under section 30(2) or 107 of the Scotland Act.

In framing this section, account was taken of the similar provision in Article 172(1) of the Constitution of South Africa 1996.

Parliamentary Consideration

Details of Provisions

Subsection (1) defines the circumstances in which the section will apply. It will apply where a court or tribunal decides that an Act of the Scottish Parliament or any provision in such an Act is not within the legislative competence of the Parliament or that a member of the Scottish Executive has purported to make, confirm or approve subordinate legislation when he had no power to do that.

The power itself is defined in subsection (2). If the court or tribunal makes such a decision, it may make an order to remove or limit any retrospective effect of that decision. It may also suspend the effect of the decision for any length of time and on any conditions to allow the defect in the Act or the subordinate legislation to be corrected.

Subsection (3) requires the court or tribunal, in deciding whether to make such an order, to have regard (amongst other things) to the extent to which third parties (i.e. those not a party to the proceedings in which the decision is made) would be adversely affected if the power were not exercised. The court or tribunal may however also take into account other relevant criteria as it sees fit.

Subsection (4) provides that if a court or tribunal is considering using the power conferred by this section it must intimate that to the Lord Advocate and the appropriate law officer (where the decision relates to a devolution issue) if that person is not already a party to the proceedings. This ensures that, where a Law Officer has already been given intimation that the proceedings raise a devolution issue but he has chosen not to become a party to those proceedings, the Law Officer will be given intimation of the fact that the court intends to make an order under section 102 as it relates to a devolution issue. "Appropriate law officer" is defined in subsection (7). Rules of court which provide for the giving of notice are S.I. 1999/1345 (Rule of Court 25A.12), S.I. 1999/1346 (Rule 40.12) and S.I. 1999/1347 (Rules 8.9).

Subsection (5) provides that when a person is given intimation in terms of subsection (4) he may participate in the proceedings so far as they relate to the making of the order.

Subsection (6) provides that paragraphs 36 and 37 of Schedule 6 apply, with necessary modifications, for the purposes of subsections (4) and (5) as they apply for the purposes of that Schedule. This, in effect, enables the courts, in deciding any question of costs or expenses, to take into account the fact that the Lord Advocate has taken part in the proceedings in consequence of this section; and makes clear that general powers to regulate the procedures before any court or tribunal include power to make provisions for the purposes of subsections (4) and (5).

Subsection (7) is a technical provision that defines "intimation" in this section as including notice. It also provides that the "appropriate law officer" is to be the Advocate General in relation to proceedings in Scotland, the Attorney General in relation to proceedings in England and Wales or the Attorney General for Northern Ireland in relation to proceedings in Northern Ireland.

SECTION 103: The Judicial Committee

Purpose and Effect

This section provides for the membership of the Judicial Committee of the Privy Council in proceedings under the Scotland Act and enables certain powers to be conferred on the Judicial Committee in relation to such proceedings. It also provides that decisions of the Judicial Committee in these proceedings will be binding on all other courts.

General

The White Paper on Scotland's Parliament proposed in Chapter 4 that the Judicial Committee of the Privy Council should become the ultimate court of last resort on matters concerning the competence of the Parliament and the Executive.

This is reflected in:

(a)     section 33 which provides for scrutiny of Bills by the Judicial Committee following a reference by the Advocate General, Lord Advocate or the Attorney General within four weeks after its passing by the Parliament; and

(b)     Schedule 6 to the Act which defines devolution issues and provides for special procedures for proceedings raising such issues, including references of, or appeals upon, such issues to the Judicial Committee.

Section 103 provides for the membership of the Judicial Committee in proceedings under the Act and for the conferring of certain powers on the Judicial Committee in relation to such proceedings.

Parliamentary Consideration

Details of Provisions

Subsection (1) provides that any decision of the Judicial Committee in proceedings under this Act shall be stated in open court. It also states that any such decision will be binding in all legal proceedings except proceedings before the Committee itself. This effectively means that the Judicial Committee's decisions will be binding on all other courts and tribunals but not binding on itself.

Subsection (2) provides for the membership of the Judicial Committee in proceedings under the Act.

Membership of the Judicial Committee normally includes the Lords of Appeal in Ordinary (Law Lords), the Lord Chancellor, the Lord Justices of Appeal and members of the Privy Council who have been judges in the higher courts of Commonwealth states.

Paragraph 4.17 of the White Paper proposed that membership of the Judicial Committee for the purposes of the Scotland Act should be restricted to the Law Lords and that at least 5 Law Lords should sit. However, this section extends membership to include those members of the Judicial Committee who are either serving or retired Law Lords or who hold or have held "high judicial office" as defined in section 25 of the Appellate Jurisdiction Act 1876. This will include serving and retired Lord Chancellor, judges of the Court of Session and judges of the English ( or Northern Irish) High Court or Court of Appeal.

Section 5 of the Appellate Jurisdiction Act 1887 is disapplied because this extends the definition of "high judicial office" to include members of the Judicial Committee (and Lords of Appeal in Ordinary). This would, therefore, undermine the intended restriction of membership for Scotland Act purposes.

Subsection (3) provides that Her Majesty may by Order in Council, in relation to proceedings under this Act, confer such powers upon the Judicial Committee as She considers necessary or expedient, make rules for regulating the procedure before the Judicial Committee and apply the Judicial Committee Act 1833 with exceptions or modifications.

This power has been exercised in making the Judicial Committee (Devolution Issues) Rules 1999 (S.I. 1999/665) and the Judicial Committee (Powers in Devolution Cases) Order 1999 (S.I. 1999/1320).

Subsection (4) defines "proceedings under this Act" which is used throughout this section. Effectively, the provisions of section 103 apply to cases where the competence of a Bill, or any provision of a Bill, have been referred to the Judicial Committee for decision (section 33) or where the Judicial Committee is considering a "devolution issue" as defined in Schedule 6.

SECTION 104: Power to make provision consequential on legislation of, or scrutinised by, the Parliament

This section enables Her Majesty or a Minister of the Crown by subordinate legislation, subject to procedure at Westminster, to make provision which is considered necessary or expedient in consequence of any provision made by or under an Act of the Scottish Parliament or by various classes of subordinate legislation.

General

To be effective, an ASP may require consequential provision to be made to the law relating to reserved matters or the law elsewhere in the UK, such as, for example, to make cross-border provisions for prisoners. It may also be necessary to provide for the enforcement of provisions of an ASP in the rest of the UK where this may be necessary or desirable to maintain a coherent scheme of enforcement throughout the UK. An example might be legislation making the conditions of Scottish fishing licences enforceable as a matter of English law.

However, the legislative competence of the Parliament to make such consequential provision is extremely limited. It may be able to make certain consequential amendments of the law on reserved matters by virtue of paragraph 3 of Schedule 4 but this power is very limited and, in any event, it does not enable the Parliament to legislate otherwise than as a matter of Scots law. Many consequential provisions require to take effect in the law of England.

Similar problems also apply to subordinate legislation made under an ASP and certain other classes of subordinate legislation made under a Westminster Act, such as a statutory instrument made by Scottish Ministers under powers transferred under section 53 and which is subject to supervision by the Scottish Parliament.

Accordingly, this section enables the UK Government to make subordinate legislation to deal with the consequences of provision made by or under an Act of the Scottish Parliament or by such subordinate legislation.