. 46
( 155 .)


by members of the junior partner in the coalition (the Liberal Democrats).
(2) The Executive is accountable to the Scottish Parliament. Its members
may be required by the Parliament or its committees to appear before them and
give evidence. If the Parliament resolves that the Executive no longer enjoys its
con¬dence, the First Minister and all other members of the Executive as well as
junior ministers are obliged to resign (Scotland Act 1998, ss 45(2), 47(3)(c),
48(2) and 49(4)(c)).
(3) Functions (powers and duties, including powers of subordinate legisla-
tion) which formerly belonged to the Secretary of State for Scotland, or to other
United Kingdom ministers in regard to Scotland, have been transferred gener-
ally “ so far as they fall within the devolved ¬eld “ to Scottish ministers (s 53).
Additional functions may be transferred by Order in Council (˜executive
devolution orders™) from Ministers of the Crown to Scottish Ministers under
section 63. The ¬rst executive devolution order (SI 1999/1750) transferred over
400 functions to the Scottish Ministers and further transfers have been made by
subsequent orders.
Legislation of the Scottish Parliament itself may entrust new functions to
Scottish Ministers in devolved matters, and may empower them to make sub-
ordinate legislation.
(4) The Scottish Executive is bound to implement European Community
obligations in the devolved ¬eld, and may not act incompatibly with
Community law (s 57(2)). A quantitative Community obligation of the United
Kingdom (eg, a requirement to achieve a speci¬ed reduction of ˜greenhouse gas™
emissions) may be split so that an appropriate share of the obligation is placed
on Scottish Ministers (see s 106).
Relations with the European Communities are a reserved matter under
Schedule 5 but Scottish Ministers may ˜assist™ Ministers of the Crown in the
conduct of such relations (Sch 5, Part I, para 7(2)(b)). The United Kingdom
Government undertook to ˜involve the devolved administrations as fully as pos-
sible in discussions about the formulation of the UK™s policy position on all EU
and international issues which touch on devolved matters™ (Memorandum of
Understanding, Cm 5240/2001, para 19: see above) and the Joint Ministerial
Committee operates ˜as one of the principal mechanisms for consultation on
UK positions on EU issues which a¬ect devolved matters™ (Agreement on the
Joint Ministerial Committee (Part II A of the Memorandum of Understanding
above), para A1.9). Arrangements for handling European Union business that
a¬ects Scottish interests are made in the Concordat on Co-ordination of
European Union Policy Issues: Scotland agreed between Scottish Ministers and
the United Kingdom Government (see above, p 191). The Concordat declares
210 British Government and the Constitution

as a ˜key objective™ that there should be ˜full and continuing involvement of
Ministers and o¬cials of the Scottish Executive in the processes of policy for-
mulation, negotiation and implementation, for issues which touch on devolved
matters™. Scottish Ministers may be part of the United Kingdom delegation at
meetings of the Council of the European Union and on occasion it may be
agreed that a Scottish Minister should speak for the United Kingdom in the
Council, although always in furtherance of ˜a single UK policy line™. The
Scottish Administration has established an o¬ce in Brussels. (See further Sloat,
˜Scotland and Europe™ (2000) 31 Scottish A¬airs 92; Simon Bulmer et al (eds),
British Devolution and European Policy-Making (2002); C Je¬ery in A Trench
(ed), The Dynamics of Devolution (2005), ch 9; N Burrows in A McHarg and
T Mullen (eds), Public Law in Scotland (2006).)
(5) Subordinate legislation and other acts of the Scottish Executive must be
compatible with the Convention rights under the Human Rights Act 1998
(Scotland Act 1998, s 57(2)).
Since the Scottish Parliament is a legislature of limited competence, provision
is made in the Scotland Act for resolving questions of vires that may arise in the
passage of a bill or after its enactment. We have seen that the Act sets up proce-
dures designed to ensure that bills introduced in the Parliament are intra vires.
If it should nevertheless happen that the Parliament passes a bill which it is
thought may be (wholly or in part) ultra vires, the Advocate General for
Scotland, the Lord Advocate or the Attorney General may within a period of four
weeks refer the question of vires to the Judicial Committee of the Privy Council
(or, once it comes into operation, the Supreme Court) (Scotland Act 1998, s 33).
If the Privy Council (or Supreme Court) decides that the bill or any of its provi-
sions would not be within the Parliament™s legislative competence, the
Parliament has an opportunity of reconsidering the bill with a view to its amend-
ment or rejection (s 36(4)). The Presiding O¬cer cannot submit a bill in its
unamended form for the Royal Assent if the Privy Council (or Supreme Court)
has ruled that it or any of its provisions is ultra vires (s 32(3)(a)). To date no such
case has been brought.
Section 29(1) of the Act provides:

An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the
legislative competence of the Parliament.

Questions of competence, which include the requirement of compatibility
with Convention rights and Community law, are termed ˜devolution issues™.
After a bill has received the Royal Assent and become an Act of the Scottish
Parliament, a devolution issue “ as to whether the Act™s provisions are within
the competence of the Parliament “ may arise in the course of legal proceedings,
whether in the Scottish courts or elsewhere in the United Kingdom. Moreover,
proceedings for the determination of a devolution issue may be instituted in
211 Devolution and the structure of the UK

Scotland, England and Wales or Northern Ireland by the appropriate Law
O¬cer. Questions of judicial machinery and jurisdiction relating to devolution
issues are dealt with in Schedule 6 to the Scotland Act, as amended. The ¬nal
court of appeal in devolution issues is the Judicial Committee of the Privy
Council, although its jurisdiction will be transferred to the new Supreme Court
once that Court commences its work (see the Constitutional Reform Act 2005).
There may be di¬culty in deciding whether a provision of an Act of the
Scottish Parliament exceeds the limits of the Parliament™s power because it
relates to a reserved matter. Whether it does so relate must be determined by
reference to the purpose and the e¬ect of the provision (Scotland Act 1998,
s 29(3)). (See further C Himsworth and C O™Neill, Scotland™s Constitution: Law
and Practice (2003), pp 184“8.) Devolution issues may also arise with regard to
actions of the Scottish Executive, as to whether they are within devolved
competence or are compatible with Convention rights or with Community law.
These issues too are determined by the courts in accordance with the jurisdic-
tional rules in Schedule 6.
When any devolution issue arises in respect of either an Act of the Scottish
Parliament or subordinate legislation by a member of the Scottish Executive,
a disputed provision ˜is to be read as narrowly as is required for it to be within
competence, if such a reading is possible, and is to have e¬ect accordingly™
(s 101). Interpretation in accordance with this section may save the legislation
from being struck down as ultra vires.
Most of the devolution issues that have arisen in Scottish courts have con-
cerned the compatibility of Acts of the Scottish Parliament, or (more often)
actions of the Scottish Executive, with the European Convention on Human
Rights. For instance, in Adams v Scottish Ministers 2004 SC 655 and Friend
v Lord Advocate [2005] CSIH 69, the Protection of Wild Mammals (Scotland)
Act 2002 survived a challenge on the ground of incompatibility with
Convention rights, while in Starrs v Ruxton 2000 SLT 42 it was held by the
High Court of Justiciary that the Lord Advocate (a member of the Scottish
Executive) had acted incompatibly with Article 6(1) of the Convention (right
to a fair trial by an independent and impartial tribunal) in permitting a crim-
inal trial to proceed before a temporary sheri¬ who lacked security of tenure
and did not possess the required independence. (See too Kearney v HM
Advocate [2006] UKPC D1 and see further G Gee, ˜Devolution and the
courts™ in R Hazell and R Rawlings (eds), Devolution, Law Making and the
Constitution (2005), ch 8.)
There continues to be a Secretary of State for Scotland with a seat in the
Cabinet, although the transfer of almost all the functions of the Scotland O¬ce
to Scottish Ministers greatly reduced the range of his or her responsibilities and
the present Scottish Secretary also holds the o¬ce of Secretary of State for
Transport. The Scotland O¬ce, now a component part of the Department for
Constitutional A¬airs, occupies premises in both Edinburgh and London. The
212 British Government and the Constitution

role of the Secretary of State following devolution is described as follows on the
Scotland O¬ce website:

The primary role of the Secretary of State for Scotland is to promote the devolution settle-
ment and to act as guardian of it. He promotes partnership between the Government and
the Scottish Executive and between the two Parliaments. At the same time, the Secretary of
State continues to represent Scottish interests in reserved matters within the UK Government,
advising colleagues about any distinctive Scottish aspects that arise for reasons other than
the impact on devolved matters and supporting them in presenting Government policies in

Under the Scotland Act the Secretary of State (it can be any Secretary of State)
has certain powers of intervention to safeguard United Kingdom interests.
Under section 35 the Secretary of State may make an order prohibiting the
Presiding O¬cer of the Parliament from submitting a bill for Royal Assent, if
he has reasonable grounds to believe that its provisions would be incompatible
with international obligations or the interests of defence or national security, or
would adversely a¬ect the operation of the law in reserved matters. Section 58
gives the Secretary of State power to revoke subordinate legislation of the
Scottish Executive on similar grounds, and to give directions to the Executive to
ensure compliance with international obligations. (Note also the further powers
conferred on United Kingdom ministers by section 107.) A new Law O¬cer, the
Advocate General for Scotland, was created by section 87 of the Scotland Act.
The Advocate General for Scotland is responsible for advising the United
Kingdom government on matters of Scots law. (The far older o¬ces of Lord
Advocate and Solicitor General became the Law O¬cers of the Scottish

(iv) Parliament and the devolution settlement
In the White Paper, Scotland™s Parliament (Cm 3658/1997) para 4.2, it was
insisted that the United Kingdom Parliament ˜is and will remain sovereign in all
matters™, and that it ˜will be choosing to exercise that sovereignty by devolving
legislative responsibilities to a Scottish Parliament without in any way dimin-
ishing its own powers™. Section 28(7) of the Scotland Act, in empowering the
Scottish Parliament to make laws, provides:

This section does not affect the power of the Parliament of the United Kingdom to make laws
for Scotland.

In the course of proceedings on the Scotland Bill in the House of Commons,
Mr Tam Dalyell MP remarked of this subsection that it ˜may conceivably be true
in an arcane legal sense, but in the political reality of 1998 it is palpably
misleading and about as true as it would be to say that the Queen can veto any
legislation™ (HC Deb vol 305, col 366, 28 January 1998). A similar view was taken
213 Devolution and the structure of the UK

by Vernon Bogdanor, in concluding that after devolution the supremacy of
Parliament ˜will become merely a nebulous right to supervise the Scottish
Parliament, together with the right under pathological circumstances, to
abolish it™ (˜Devolution: the constitutional aspects™, in University of Cambridge
Centre for Public Law, Constitutional Reform in the United Kingdom (1998),
p 12). In its enactment of the Scotland Act we may see Parliament as having
divested itself, in respect of devolved matters, of the real substance of its sover-
eignty. Doubtless Parliament may once again put on that substance, but the
likelihood of its doing so will seem increasingly remote as the devolutionary
scheme becomes embedded in constitutional thought and practice. May a time
come when the courts will be persuaded to hold that devolution is irreversible,
in accordance with a judicially revised account of parliamentary sovereignty?
(See M Loughlin, Sword and Scales (2000), p 154 and Little, ˜Scotland and
parliamentary sovereignty™ (2004) 24 LS 540.)
It was contemplated from the ¬rst that it might sometimes be convenient,
from the viewpoints of both the Scottish Administration and the British
Government, for the United Kingdom Parliament to legislate on a devolved
matter. This might be so, for instance, if it were thought desirable to have
uniform legislation in place throughout the United Kingdom, or if an Act to be
passed by the United Kingdom Parliament in the reserved ¬eld would need
corresponding provision to be made for Scotland to ensure its e¬ectiveness.
(For examples see J McFadden and M Lazarowicz, The Scottish Parliament
(3rd edn 2003), pp 86“7.) Moreover, if the provisions of an Act to be passed at
Westminster were in any event to be replicated for Scotland, it would save time
and trouble for the Scottish Parliament if the Act were to be made applicable to
Scotland, even though it dealt with devolved matters.
It was envisaged that in cases such as these the Westminster Parliament
should legislate on devolved matters only with the agreement of the Scottish
Parliament. This understanding was con¬rmed by a minister, Lord Sewel, when
the Scotland Bill was before the House of Lords, in saying (HL Deb vol 592,
col 791, 21 July 1998):

we would expect a convention to be established that Westminster would not normally
legislate with regard to devolved matters in Scotland without the consent of the Scottish

The ˜Sewel Convention™ was put on record in the Memorandum of Under-
standing concluded in 1999 between the United Kingdom Government and the
devolved administrations (see above). The convention has since been scrupu-
lously observed. After discussion and agreement between the United Kingdom
Government and the Scottish Executive, a ˜Sewel Motion™ is introduced in the
Scottish Parliament for approval of the legislation to be enacted at Westminster.
Perhaps one of the most surprising things about Scottish devolution since 1998
is how frequently Sewel Motions have been employed: the ¬rst six years of
214 British Government and the Constitution

devolution saw no fewer than ¬fty-two bills being discussed in Westminster
which concerned devolved matters in Scotland. As Barry Winetrobe has argued
(˜A partnership of the parliaments?™, in R Hazell and R Rawlings (eds),
Devolution, Law Making and the Constitution (2005), pp 41“2):

What began life as a ˜negative™ safeguard and assurance against any unilateral exercise of
Westminster legislative supremacy over devolved matters, has become in practice a positive
mechanism authorising the exercise, albeit with consent, by Westminster of just such
legislative authority. Far from being the exception, as was originally suggested, it has
become a regular, virtually institutionalised feature of the Scottish devolved law making
scene . . .
The central criticism of the Sewel Convention as a law making device, is that legislation
subject to the Sewel process is not only not scrutinised by the Scottish Parliament in its usual
ways, but also that it is scrutinised in the very place and by the very procedures whose per-
ceived failings were a justification for both devolution and for the devising of Holyrood™s own
legislative process.

(See also Page and Batey, ˜Scotland™s other Parliament: Westminster legislation
about devolved matters in Scotland since devolution™ [2002] PL 501; Cairney
and Keating, ˜Sewel motions in the Scottish Parliament™ (2004) 47 Scottish
A¬airs 115.)
Members representing Scottish constituencies continue to sit in the House of
Commons. Scotland was formerly overrepresented in the House with seventy-
two MPs, but this number was reduced in 2005 to ¬fty-nine, following a review
by the Boundary Commission for Scotland under new rules. (See the Scotland
Act 1998, s 86.)
In debates on the Scotland Bill the familiar and intractable ˜West Lothian
question™ re-emerged. In the 1976“78 devolution debates the Labour MP for
West Lothian, Mr Tam Dalyell, had repeatedly protested that, since the repre-
sentation of Scotland in the United Kingdom Parliament was to be maintained,
Scottish MPs might have a decisive voice in legislation on a matter concerned
only with England and Wales, whereas English and Welsh MPs would have
forfeited their right to take part in legislation devolved to Scotland. (A similar
objection had troubled the attempts to enact home rule for Ireland in
1886“1914.) An amendment designed to deal with the West Lothian question
was made to the 1978 Scotland Bill although it had been resisted by the
Government as a ˜constitutional imbecility™. It provided that if the second
reading of an ˜English™ bill was approved only with the support of MPs for
Scottish constituencies, there would have to be a second vote after an interval of
fourteen days. (It was contemplated that the Scottish MPs would be induced to
abstain in the second vote.)
The Scotland Act 1998 includes no provision for dealing with the West


. 46
( 155 .)