The approach of the Court of Session and the Supreme Court in considering the nature

and extent of the Scottish Parliament’s legislative competence

Abstract

The role and the decisions of the United Kingdom Supreme Court and of the Court of Session
1
in relation to the Scottish Parliament 2 have been discussed for a couple of years now.
Without any doubt the role that the Supreme Court and the Court of Session fulfil today, in
respect to Scotland, is not what it was in the beginning of the existence of the Scottish
Parliament and perhaps not even what was strictly prescribed by section 29 of the Scotland
Act 1998. This essay will present an analysis on the manner in which the check and balance
mechanism has been implemented in Scotland within the scope of the fundamental UK
constitutional principle : the Westminster Parliament supremacy. Secondly, this essay will
seek to see if there are any limits for the UK Supreme Court and Court of Session in defining
through case law, the powers of the Scottish Parliament. Lastly, there will also be an analysis
on the impact of the decisions of the UK Supreme Court and the Scottish Court of Session in
relation to the nature and extent of the Scottish Parliament legislative power.

Disposition of the essay

In what follows, a background of the establishment of the Scottish Parliament will be

presented. Subsequently, it shall be argued that the Scotland Act 1998 through which the
Edinburgh Parliament was established only illustrates a general framework for the powers of
the Holyrood legislature. As a result, it will next be contended the fact that the power of both
the UK Supreme Court and of the Court of Session to review legislation made by the Scottish
Parliament, generates tensions between the two administrative systems even if, often, a
judicial consensus is reached. Following, I will present the implications of the decisions of
the two courts in the judicial review process by analysing the decisions from two of the
leading cases on judicial review in Scotland -AXA Insurance 3 and Imperial Tobacco4. It will
be concluded that over the last four years the relationship between the Scottish Parliament,

1
Hereinafter the UK Supreme Court and the Court of Session will be referred to as “the Courts”;
2
The Scottish Parliament will be also referred to as the Edinburgh Parliament and/or Holyrood Parliament ;
3
AXA General Insurance v Lord Advocate [2011] UKSC 46;
4
Imperial Tobacco v Lord Advocate [2012] CSIH 9;
the UK Supreme Court and the Court of Session, has evolved in the sense that the Scottish
Parliament powers started to be defined in a way which complies with the modern
interpretation of the principle of Parliament Supremacy.

Scotland Act 1998- the re-establishment of the Scottish Parliament

As a result of the 1997 referendum for independence, it was decided the re-establishment of
the Scottish Parliament as it was prior to the Union between England and Scotland from
1707. The new Scottish Parliament was constructed under the Scotland Act 1998, in a modern
way with the aim to further modernise the UK constitution. 5 More precisely it was designed
to be subordinate to the Westminster Parliament, but in the same time the new parliament
from Edinburgh was built to represent a new and consensual political approach. What the
new Scottish Parliament had to achieve was to re-establish the relationship between those
who govern and those who are governed. This was achieved through “the Scotland Act 1998
(…) that chooses to confer a general power on the Scottish Parliament to make laws to be
known as Acts of the Scottish Parliament whilst imposing some limitation on its power” 6 as
“the faith in politics for the British and Scottish citizens was renewed” 7 The rather general
limitations for the Scottish Legislature competence shows that its re-establishment was a
process and not an event.8 In order to understand why the re-establishment is a process, one
has to look at section 29 of the 1998 Act which provides that an Act of the Scottish
Parliament is not law, if it is outside the legislative competence of the Parliament, if “it relates
to reserved matter” or if is in breach of “community law”. The importance of section 29 is
given by the fact that this section confers a certain degree of autonomy. The driving factor
behind this section is, in the view of this essay, the fact that the Scottish Parliament is
different in nature from the UK Parliament. To be more precise at the core nature of Scottish
5
Noreen Burrows, Unfinished Business: The Scotland Act 1998. The Modern Law Review, 1999
Vol.62, pp241 >http://onlinelibrary.wiley.com/doi/10.1111/1468-2230.00203/pdf<accessed 29 th
March 2015;
6
Noreen Burrows, Unfinished Business: The Scotland Act 1998. The Modern Law Review, 1999
Vol.62, pp241 >http://onlinelibrary.wiley.com/doi/10.1111/1468-2230.00203/pdf<accessed 29th
March 2015 ;
7
New Labour because Britain deserves better > www.politicsresources.net/area/uk/man/lab97.htm<
accessed 30th March l 2015;
8
Iain Macwhirter, ‘Finally, we all agree: devolution is a process, not an event’
>www.heraldscotland.com/finally-we-all-agree-devolution-is-a-process-not-an-event-1.830943<
accessed 31st March 2015;
Parliament is the principle of people’s sovereignty whereas in England what prevails is the
concept of Parliamentary supremacy. However, there is a very fine borderline between the
two prevailing concepts mentioned previously and that is due to the fact that the UK does not
have a written constitution. The fact that there can be made this distinction between
administrative and constitutional systems of the same country proves that “devolution has
undoubtedly added complexity to the United Kingdom’s constitution.”9 Consequently “few
propositions concerning the post-devolution British constitution are more axiomatic than that
10
the Westminster Parliament remains sovereign, while devolved legislatures are not.”
Therefore one cannot analyse the way courts approach legislative competence of the Scottish
Parliament without having in mind that the UK Parliament sovereignty was at the cornerstone
of the devolution process. Moreover as it will be discussed further on in the essay courts have
started to analysis the relationship between the UK and Scottish Parliament in the context of
the more predominate involvement of the Courts in defining the powers of the Scottish
Legislature.

Parliament Sovereignty and people sovereignty

“One could therefore argue that it must have been the intention of Parliament to deny the
Scottish Parliament the same ‘plenary’ legislative powers as of other legislatures, and that
judicial review on Wednesbury grounds is warranted just as it is in relation to local
authorities. This would, however, be a startling assertion for any court to make.”11

As a result, if one is looking back at section 29 of the Scotland Act 1998 it can be seen that it
only sets out some basic guidelines regarding what is “outside Holyrood legislative
competence.”12 Yet, when enacting the 1998 Act, the UK Parliament “legislated for a liberal

9
Mark Elliott, ‘Holyrood, Westminster and judicial review of legislation’, C.L.J. 2012, 71(1), 9-11, >
http://journals.cambridge.org/abstract_S0008197312000013< accessed 8th April 2015;
10
Mark Elliott, ‘Holyrood, Westminster and judicial review of legislation’, C.L.J. 2012, 71(1), 9-11, >
http://journals.cambridge.org/abstract_S0008197312000013< accessed 8th April 2015;
11
Alan Page, The Scottish Parliament, pleural plaques and the courts, Jur. Rev. 2010, 2, 139-147,
>http://login.westlaw.co.uk/maf/wluk/app/document?
&src=ri&docguid=I3070C1717A8111DF9D47DC64898C717A&hitguid=I4BBBBD5094D411E48660B51292A50CF
3&suppsrguid=i0ad69f8e0000014cb810385de35341ae&spos=7&epos=7&td=19&refer=%2Fmaf%2Fwluk
%2Fapp%2Fdocument%3Fspos%3D7%26rank%3D7%26hitguid
%3DI4BBBBD5094D411E48660B51292A50CF3%26docguid
%3DI4BBBBD5094D411E48660B51292A50CF3%26resolvein%3Dtrue%26crumb-action%3Dappend%26td
%3D19%26epos%3D7%26srguid%3Di0ad69f8e0000014cb810385de35341ae%26context%3D9&crumb-
action=append&context=10< accessed 8th April 2015;
12
Mark Elliott, ‘Holyrood, Westminster and judicial review of legislation’, C.L.J. 2012, 71(1), 9-11, >
http://journals.cambridge.org/abstract_S0008197312000013< accessed 8th April 2015;
democracy founded on particular constitutional principles and traditions13. Consequently,
Parliament cannot be taken to have intended to establish a body which was free to abrogate
fundamental rights or to violate the rule of law”. 14 The approach taken by the Supreme Court
and the Court of Session when looking at the enforceability of the Acts of the Scottish
Parliament, is a cautious one, due to the fact that reviewing ASP might create tension between
the role of the courts and the principle of parliament sovereignty. 15 The view of this essay is
that in Scotland, Parliament sovereignty has a more profound meaning due to the fact that the
cornerstone of the Holyrood Parliament is that of people’s sovereignty. Hence, in my opinion
the power to review legislation from Scotland of the Supreme Court and the Court of Session
is determined not only from a legal perspective, but also from a moral one which might mean
that the judges are not yet ready to discharge the latter perspective. The moral perspective is
in strict connection with the degree of legitimacy of the Scottish Parliament as its members
are elected exclusively by the Scottish electorate. The importance of the moral approach can
be noticed with the help of the case law developed by the two courts, in their attempt to
define what ‘legislative competence’16 means for the Scottish Parliament.

Before moving further in discussing the implication of the decisions of the Supreme Court
and of the Court of Session it is important to mention the fact that the Supreme Court can
hear judicial review cases relating to both UK and Scottish statutes, whereas the Court of
Session can only review the Scottish legislation. The fact that the Acts of the Scottish
Parliament can be challenged at first instance at the Court of Session, and after that an appeal
can be made to the UK Supreme Court, raises the question of whether the latter court should
be entitled to hear a judicial review case from a different legal system. The implications of
the UK Supreme Court hearing judicial review cases from Scotland have shown that even
though there is an interplay between the two legal systems, the judges are working on a fine
line of whether they should adhere to a restrictive approach or not. Even though judicial
review is not a novel situation itself, the novel element appears as the law regarding ‘the
powers of the Scottish Parliament’ is still developing. The recent decisions coming from the
Court of Session and the Supreme Court emphasis the fact that judges need to be careful not
to undermine the principle of devolved matter.

13
AXA General Insurance Ltd. v HM Advocate [2011] UKSC 46, [2011] 3 W.L.R. 871 , per Lord Reed at 153;
14
AXA General Insurance Ltd. v HM Advocate [2011] UKSC 46, [2011] 3 W.L.R. 871 , per Lord Reed at 153;
15
Adam Tomkins, The Supreme court’s welcome attack on the court of justice,
>https://britgovcon.wordpress.com/category/sovereignty-of-parliament/< accessed 11 th March 2015;
16
, Scotland Act 1998 ,section 29;
Implications

“Judicial review involves a challenge to the legal validity of the decision. It does not allow
the court of review to examine the evidence with a view to forming its own view about the
substantial merits of the case.” 17

Notwithstanding it has been said that judicial discretion is at the heart of administrative law, 18
as often judicial review is considered to be the only check and balance mechanism in the
Scottish administrative system. Therefore it is important to understand what the limits of this
discretion are and how they are exercised by the courts. Following, I will analysis the
approach taken by the Court of Session and the UK Supreme Court regarding the extent of
the powers of the Scottish Parliament in relation to its legislative competence.

In order to determine if there are any margins for the judicial discretion in administrative law,
it is necessary to understand what triggers the need for judicial review in Scotland. As
mentioned in the third heading of this essay, all Acts of the Scottish Parliament must not be
outside the legislative powers given to Holyrood by the Westminster Parliament. At the same
time, it is important to note that another factor of judicial review is, that the laws must be in
accordance with the ECHR and with the EU law. Sometimes, as it will be seen from the two
cases there is an overlap between the grounds on which judicial review is sought. Therefore
the overlap will have an implication of the way the judgement is given which has
implications on the judgement.

The decisions from the AXA and Imperial Tobacco cases show how the Court of Session and
the UK Supreme Court interact with each other in cases of judicial review. In AXA, the Court
of Session ruled that ASPs are potentially subject to judicial review on grounds of illegality
or irrationality but, only in the extreme circumstances such as bad faith, improper motive or
manifest absurdity, these could be shown19. The approach taken by the Supreme Court was
different in the sense that it focused more on defining what an ASP is. The reason for this is,
20
that we are in this case, in “uncharted territory” and the issue therefore has to be addressed
as one of principle. Basically what the Supreme Court is trying to do in AXA is to explain
that the conflict between the rule of law and Parliament Supremacy cannot be resolved as
17
Reid v. Secretary of State for Scotland [1999] 2 W.L.R. 28 at page 54 per Lord Clyde;
18
A.W Bradely Ewing E D, , Constitutional and administrative law, Longman, 2011, page 669;
19
Adam Tomkins, Confusion and Retreat: The Supreme Court on Devolution, >
http://ukconstitutionallaw.org/2015/02/19/adam-tomkins-confusion-and-retreat-the-supreme-court-on-
devolution/< accessed 18th March 2015;
20
AXA General Insurance Ltd. v HM Advocate [2011] UKSC 46, [2011] 3 W.L.R. 871 , per Lord Hope at para 48;
they are not competing principles. Therefore some guidance was given in respect to how the
ASP should be understood. Nevertheless, the fact that the two leading judges from this case
reached the same decision but in different ways, shows that there is a tension between the
Scottish and English legal systems.

Imperial Tobacco is a case of increased importance, as it is the first to involve a

straightforward claim that an ASP has infringed section 29 of the Scotland Act 1998.
Furthermore this case is important due to the guidance gave by the Court of Session in
respect to how this disputes might be solved 21. The character of the judicial consensus
between the UK Supreme Court and the Court of Session, can be seen as in my view the
judgement from Imperial Tobacco is a more subtle way re-defining the legislating powers of
the Scottish Parliament.

Therefore the judgement from the two cases should be looked at in parallel as they
complement each other. A striking similarity in the judgements of the two cases is that it is
emphasised that the Scottish Parliament has power to legislate in an area not specifically told
and the reason for this is routine. Again, the idea of judicial consensus appears and I would
like to argue that behind it, is the dichotomy between the Parliament sovereignty principle
and the fact that in Scotland. The Supremacy of Parliament exists only due to another
principle, that of people sovereignty. From the two judgements it can be acknowledged the
fact that even if the power was devolved from Westminster to Edinburgh , this does not mean
that the subordinate one – the Scottish Parliament- cannot be treated in the same way as the
Westminster Parliament. The willingness showed by the courts in creating a new definition
for the initial powers of the Scottish Parliament has its roots on the fact that often Holyrood is
legislating on matters that are not devolved due to a routine

Conclusion

The fact that the Supreme Court and the Court of Session are trying to make their way in re-
defining the nature and extent of the Scottish Parliament show that the courts are not willing
to leave the concept of parliament sovereignty to solely, govern the UK constitutional system.
In doing so, the UK and Scottish judiciary have used their discretion in interpreting the SP
legislation. As it was the case in AXA, the Courts engaged themselves in a gap-filling
process in an area where the legislation is silent. Therefore both the Court of Session and the
21
Aileen McHarg, Public Law, Private Law and the Distinctiveness of Scots Judicial Review,
>http://ukconstitutionallaw.org/2012/01/20/aileen-mcharg-public-law-private-law-and-the-distinctiveness-of-
scots-judicial-review/< accessed 8th March 2015;
Supreme Court approach when analysing the competence of the Scottish Parliament show the
fact that the role of the Scottish Parliament has suffered changes in the last years. 22 Hence the
way in which ASP are being scrutinized depends on different factors. It is my opinion that the
two Courts will most likely avoid ruling against the Edinburgh Parliament s it is expect ,
especially after the 2014 Referendum or anticipate that the Scottish government and
legislature will not accept that an ASP would be invalidated . Nonetheless, it can be interfered
from the judicial discretion that the Courts have utilised in the AXA case that they will try –
on a case-by-case situation – to find a balance between the powers given to Scotland by
Westminster and the interests of Scottish citizens. I would also argue that UK Supreme Court
is perceived as the representative of the Westminster Parliament and not of the Scottish one.
Therefore the decisions of the UKSC in relation to the Scottish Parliament Acts are in my
view the attempt to redefine not only the powers of the Scottish Parliament, but also to
redefine the powers and extent of the UK Parliament. The reasoning behind this statement
can be found in Lord’s Hope judgement from AXA where his Lordship emphasis what the
UK and Scottish Parliaments have in common.

As a result I consider that in respect to the Scottish Parliament, the UKSC and the Court of
Session mentioned in this essay represent the only independent mechanism which can control
the Scottish Legislature. Finally, I appreciate that the Court of Session and Supreme Court
have and will play an essential role in the functioning and devolution process of the United
Kingdom

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22
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AXA General Insurance Ltd. v HM Advocate [2011] UKSC 46

Imperial Tobacco v Lord Advocate [2012] CSIH 9

Reid v. Secretary of State for Scotland [1999] 2 W.L.R. 28

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