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( 155 .)


the Scottish Parliament has no competence to legislate in a way that is
incompatible with Convention rights or with European Community law
(Scotland Act 1998, s 29).
(5) The scheme adopted in the Scotland Act is to specify the powers retained
at Westminster, not those devolved. Accordingly the Act speci¬es in detail (in
Sch 5) the ˜reserved matters™ which are outside the competence of the Scottish
Parliament, those matters that are not reserved being generally devolved.
Matters are reserved to the Westminster Parliament so as to ˜safeguard the
integrity of the United Kingdom™ (C Himsworth and C O™Neill, Scotland™s
Constitution: Law and Practice (2003), p 166). The reserved matters include: the
constitutional framework (the Crown, the Union of Scotland and England,
the United Kingdom Parliament, the continued existence of the High Court of
Justiciary and the Court of Session); international relations and the European
Communities; the regulation of international trade; the civil service; defence and
the armed forces; ¬scal, economic and monetary policy; electoral arrangements
(except local government elections); immigration and nationality; national
security and o¬cial secrets; companies and other business associations; com-
petition policy; consumer protection; ownership and exploitation of coal, oil
and gas; nuclear energy; social security; employment and industrial relations;
broadcasting; and equal opportunities.
Within the reserved categories many exceptions are made. For instance, the
reservation of ¬scal, economic and monetary policy is subject to the exception
of local taxation to fund local authority expenditure, which is devolved.
The list of reserved matters in Schedule 5 is lengthy but leaves a wide range
of matters to fall within the competence of the Scottish Parliament. The
devolved matters include Scots private law (including judicial review) and crim-
inal law; the prosecution service, police and prisons; the judiciary and the court
system; agriculture, forestry and ¬sheries; economic development, tourism,
204 British Government and the Constitution

roads and transport; planning and environmental protection; education and
training; health; local government, social work and housing, sport and the arts.
Some matters within these ¬elds are reserved in Schedule 5: for instance,
abortion, surrogacy, medicines and regulation of the health professions are
reserved although in general health is a devolved matter; treason, terrorism,
¬rearms legislation and misuse of drugs are reserved although criminal law is
broadly devolved.
Acts of the Scottish Parliament have implemented distinctive policies for
Scotland, for instance, in abolishing feudal land tenure, discontinuing tuition
fees for students in higher education, reforming the law of marriage, divorce
and cohabitation, legitimising breast-feeding in public, providing for free
long-term care for the elderly and banning smoking in public places.
(6) Since the judiciary and the court system are devolved matters, the
Scottish Parliament has power to alter the structure and jurisdiction of the
courts in Scotland. On the other hand the continued existence of the High
Court of Justiciary as a criminal court of ¬rst instance and of appeal, and of
the Court of Session as a civil court of ¬rst instance and of appeal, as well as the
determination of judicial salaries, are reserved matters. The Scotland Act
includes provisions for the appointment and removal of judges which are
designed to safeguard the independence of the judiciary (s 95).
(7) Changes to the list of reserved matters “ as by transfer of additional
powers to the Scottish Parliament “ may be made by Order in Council under
section 30 of the Act. This can be done only if the Westminster and Scottish
Parliaments agree on the change, for the Order in Council has to be approved
in draft by both Houses at Westminster and by the Scottish Parliament. If the
change is e¬ected by primary legislation, an agreed convention requires that the
prior approval of the Scottish Parliament should be obtained.
(8) Section 29 of the Act places certain restrictions on the competence of the
Scottish Parliament to enact valid legislation. In particular, an Act of the
Parliament may not relate to reserved matters and cannot modify the Scotland
Act itself (with some few exceptions: see Sch 4, para 4), or the Human Rights
Act 1998, or include provisions that are incompatible with any of the
Convention rights under that Act or with Community (EU) law. In general the
Parliament can, however, repeal or amend Acts of the Westminster Parliament
in relation to devolved matters.
(9) Finance for Scotland is provided in a block grant voted by the
Westminster Parliament and paid by the Secretary of State for Scotland into the
Scottish Consolidated Fund. (The amount is adjusted each year in line with
changes in population and in ¬nancial allocations to comparable Whitehall
spending departments, in accordance with the so-called ˜Barnett formula™.) The
Scottish Parliament and Executive determine expenditure within this block
budget. The Parliament has power to vary the basic rate of UK income tax in
Scotland by up to 3p and can by the use of this power increase the amount of
money at its disposal, although by 2006 this option had not been exercised.
205 Devolution and the structure of the UK

(10) The Parliament decides on its own procedures and working practices,
which are incorporated in standing orders and may be amended as necessary.
The standing orders provide for the establishment of committees of the
Parliament, some of which are mandatory (eg on Procedures of the Parlia-
ment, European and External Relations, Finance and Equal Opportunities),
while ˜subject™ committees scrutinise departments of the Scottish Executive
and legislative proposals and may themselves initiate legislation (˜commit-
tee bills™).
(11) A bill becomes an Act of the Scottish Parliament ˜when it has been
passed by the Parliament and has received Royal Assent™ (Scotland Act 1998,
s 28(2)). The Act provides (in s 36) for a framework of legislative procedure,
including three stages corresponding to the second reading, committee stage
and third reading of bills in the House of Commons.
The Act also includes provisions intended to reduce the likelihood of an
ultra vires bill being passed by the Parliament. A member of the Scottish
Executive in charge of a bill is required to state, on or before the introduction
of the bill, that in his view its provisions would be within the legislative com-
petence of the Parliament (s 31(1)). In addition the Presiding O¬cer of the
Parliament “ a politically impartial o¬cer like the Speaker of the House of
Commons “ has to decide and state whether or not in his view the bill™s pro-
visions would be within the Parliament™s competence (s 31(2)). It is for the
Parliament to decide on the appropriate course of action “ such as a correc-
tive amendment “ if the Presiding O¬cer should conclude that provisions of
the bill would be ultra vires.
The legality of Acts of the Scottish Parliament may be judicially reviewed (for
the relevant procedures, see below). One question for the courts in such cases
is how they should treat Acts of the Scottish Parliament: should they be regarded
as being akin to decisions of local authorities, or should they be regarded with
more deference than that, owing to the fact that the Acts concerned are, after all,
the product of a fully democratic Parliament? The following two cases reveal
that a variety of approaches may be taken to this issue.

Whaley v Watson 2000 SC 340 (Court of Session)
Whaley sought to prevent an MSP, Lord Watson, from introducing into the
Scottish Parliament a bill that, if passed, would have banned in Scotland
certain forms of hunting with hounds. The MSP was closely connected to, and
relied upon the assistance and support of, the Scottish Campaign Against
Hunting with Dogs. As such, Whaley argued that in presenting the bill the
MSP was in violation of article 6 of the Scotland Act 1998 (Transitional
Provisions) (Members™ Interests) Order 1999, S1 1999/1350 which prohibited
a Member of the Scottish Parliament from doing anything in his capacity as
an MSP which relates directly to the a¬airs or interests of, or which seeks to
confer bene¬t upon, any person from whom the member received or expected
206 British Government and the Constitution

to receive remuneration. At ¬rst instance, the Lord Ordinary refused the
motion and dismissed the action. In the course of his judgment he ruled as

In my opinion, the actionable wrong, assuming it to have been committed, is against the
rules of the Parliament . . . In my opinion it is for the Parliament to decide whether or not
in those circumstances the member in question is entitled or not to present the bill . . . The
Scottish Parliament is entitled to make its own determination, in my opinion, upon its own
rules and this court should not even look at it on grounds of irrationality.

While Whaley™s reclaiming motion (appeal) to the Inner House of the Court of
Session was unsuccessful, in the course of his judgment the Lord President of
the Court of Session, Lord Rodger (now Lord Rodger of Earlsferry, in the House
of Lords), stated as follows:

Lord President (Rodger): . . . These remarks . . . contain some general observations about
the relationship between the courts and the Scottish Parliament . . . which I am unable to
The Lord Ordinary gives insufficient weight to the fundamental character of the Parliament
as a body which “ however important its role “ has been created by statute and derives its
powers from statute. As such, it is a body which, like any other statutory body, must work
within the scope of those powers . . . In principle, therefore, [subject to the Scotland Act
1998, s 40] the Parliament like any other body set up by law is subject to the law and to the
courts which exist to uphold that law . . .
Some of the arguments of counsel . . . appeared to suggest that it was somehow incon-
sistent with the very idea of a parliament that it should be subject in this way to the law of
the land and to the jurisdiction of the courts which uphold the law. I do not share that view.
On the contrary, if anything, it is the Westminster Parliament which is unusual in being
respected as sovereign by the courts . . . By contrast, in many democracies throughout the
Commonwealth, . . . even where the parliaments have been modelled in some respects on
Westminster, they owe their existence and powers to statute and are in various ways subject
to the law and to the courts which act to uphold the law. The Scottish Parliament has simply
joined that wider family of parliaments.

Adams v Scottish Ministers 2004 SC 665 (Court of Session)
Adams challenged the legality of the Protection of Wild Mammals (Scotland)
Act 2002, legislation passed by the Scottish Parliament which bans in Scotland
the hunting of wild mammals with dogs. The basis of Adams™ argument was
that the Act was ultra vires the Scottish Parliament on the basis that it was
violative of a number of Convention rights (the Scottish Parliament having
no power to legislate incompatibly with Convention rights). The argument
was unsuccessful. The court™s judgment was delivered by the Lord Justice
207 Devolution and the structure of the UK

Clerk, the second most senior judge in the Court of Session, and the approach
taken was signi¬cantly di¬erent from that preferred by Lord Rodger in
Whaley™s case.

Lord Justice Clerk (Gill): . . . If the Parliament was of the view that foxhunting was cruel,
and was aware of the likely impacts of the legislation, the next question is whether
the Parliament was entitled to make the judgment that foxhunting should be proscribed
by law.
The starting point on this issue, in our opinion, is that the prevention of cruelty to animals
has for over a century fallen within the constitutional responsibility of the legislature. The
enactment of every statute on the subject has necessarily involved the making of a moral
judgment. In our view, the 2002 Act should be seen as a further step in a long legislative
sequence in which animal welfare has on numerous occasions been promoted by legislation
related to contemporary needs and problems.
Looking at the Act in that context, we consider that it represents a considered decision by
the Parliament on a long-standing and highly charged public controversy. In our view, any
judgment on that controversy is pre-eminently one for MSPs . . . MSPs are elected on their
policies on matters such as this. Once elected, they have the means at hand to inform them-
selves on the factual and moral issues, and are open to representations from all interest
groups. They are subject to the constraints of the legislative process, which requires inter alia
that the principle of a Bill should be expressly considered and voted on before any question
of the details of the proposal can arise. That consideration involves the formal reception of
evidence and the analysis of the issues in the course of debates.
We consider that it was entirely within the discretion of the Parliament to make the judg-
ment that the pursuit and killing of a fox by a mounted hunt and a pack of hounds for the
purposes of recreation and sport and for the pleasure of both participants and spectators was
ethically wrong; that the likely impacts of the legislation did not justify its continuing to be
legal; that it was a fit and proper exercise of legislative power to proscribe such an activity;
and that the criminal offences, and related sanctions, that the 2002 Act imposes were the
appropriate means of doing so. Moreover, in deciding on the utility and appropriateness of
the legislative response to the problem of animal cruelty, the Parliament was entitled to con-
sider inter alia whether, apart from its sporting and recreational aspects, foxhunting was an
efficient method of pest control.
The judgment of the Parliament in this case had the consequence that certain individuals
and groups would suffer economic loss without right to compensation. That was a material
consideration, but not a decisive one. Most legislation that is enacted for some public benefit
results in economic detriment to some persons or bodies. The lack of compensation is merely
one of many material factors that go into the exercise by which the intended public benefit
is balanced against adverse social, economic and other impacts and against private disad-
vantage. This is certainly not an area in which the courts have any special expertise. The -
considered judgment of the Parliament upon it lies squarely within the scope of that
discretionary area into which, in our view, the court should not intrude.
208 British Government and the Constitution

For these reasons, we consider that the Lord Ordinary was right in his general approach
to this matter and in his conclusion that the prohibition of foxhunting was capable of being
regarded as necessary in a democratic society for the protection of morals (Article 8(2)
ECHR) and necessary in accordance with the general interest (Article 1 of the First Protocol,
para 2).
That was pre-eminently a judgment for the legislature. In our opinion, there is no reason
why we should conclude that the legislature exceeded or misapplied its discretionary area
of judgment, still less substitute our own views on the matter.

(These cases touch on issues of how much ˜deference™ the courts should show
to Parliaments and governments when judicially reviewing their decisions and
policies. We return to this theme and consider it in more detail in chapter 10.
For further commentary on the judges™ approach to Acts of the Scottish
Parliament, see Winetrobe [2002] PL 31 and [2005] PL 3.)
The Scotland Act 1998 provides for a Scottish Administration consisting of
ministers, other o¬ce-holders and their sta¬. All these are servants of the
Crown. Non-ministerial o¬ce-holders and members of the sta¬ belong to the
uni¬ed home civil service of the United Kingdom.
The Crown is one and indivisible but may have distinct capacities, and the
Scotland Act distinguishes between ˜the Crown in right of Her Majesty™s
Government in the United Kingdom™ and ˜the Crown in right of the Scottish
Administration™. By section 99, the Crown in either of these capacities may enter
into legal relations with, and take legal proceedings against, the Crown in its
other capacity. Accordingly contracts and other legal arrangements may be
made between the Scottish Administration and the United Kingdom Govern-
ment, and may be enforced in legal proceedings.
Within the Scottish Administration executive power is exercised in devolved
matters, in a ˜Cabinet-style™ government, by the Scottish Executive. What
follows is a summary of the main attributes and powers of the Executive (see,
in more detail, Himsworth, ˜The domesticated Executive of Scotland™, in
P Craig and A Tomkins (eds), The Executive and Public Law (2006), ch 6).
(1) The Scottish Executive is composed of a First Minister, ministers
appointed by the First Minister and the Scottish Law O¬cers (the Lord
Advocate and the Solicitor General for Scotland). The members of the Executive
are known collectively as the Scottish Ministers. They may be assisted by junior
ministers. These latter, together with all members of the Executive except the
Law O¬cers, must be members of the Parliament. Consistently with the
Westminster model of Cabinet government, Scottish Ministers are individually
responsible for their portfolios (the matters allocated to them by the First
Minister), take part in decision-making in the Executive and are collectively
responsible for the decisions taken.
The First Minister is nominated by the Parliament and appointed by the
Queen; ministers and junior ministers are appointed by the First Minister with
209 Devolution and the structure of the UK

the agreement of the Parliament and the approval of the Queen. The Law
O¬cers are appointed by the Queen on the recommendation of the First
Minister, acting with the agreement of the Parliament. In 2006 there were eleven
ministers (including the First Minister), together with eight junior ministers. In
2006 ¬ve ministerial posts (including that of Deputy First Minister) were held


. 45
( 155 .)