Public Law

My previous post discussed what the possible grounds of a challenge to a Holyrood Referendum Bill might be, and the potential results of that challenge. This post explains WHO would be most likely to bring a challenge, and HOW and WHEN they could do it.

The most obvious candidates to challenge Scottish Parliament legislation purporting to authorise a referendum would be the UK Government Law Officers – the Attorney General (currently Dominic Grieve MP) and/or the Advocate General (Lord Wallace of Tankerness). The linked piece refers to the Attorney General having “a legal duty to consider a challenge”, and he would certainly be entitled to do so. However, the Advocate General, as the senior Scottish Law Officer in the UK Government, would surely be a more likely candidate if only for presentational reasons.

Section 33 of the Scotland Act allows either Officer to refer the question of whether a Bill is within the Scottish Parliament’s competence to the Supreme Court for a decision. (The Lord Advocate has the same power, though as a member of the Scottish Government would probably be unlikely to do so.) The Supreme Court would then decide whether the Referendum Bill was within legislative competence, and if not would strike it down.

Under section 33, the Law Officers have 4 weeks from the passing of a Bill to refer it to the Supreme Court – a procedure that has never actually been used (though the Attorney General for Northern Ireland recently made a reference under the equivalent section of the Northern Ireland Act 1998, only to withdraw it shortly before the hearing). The Presiding Officer of the ScottishParliament cannot submit the Bill for Royal Assent during that period or, if a reference is made within that time, before the Supreme Court has reached a decision (per section 32). A successful challenge at that stage would therefore prevent a Referendum Bill from ever becoming an Act, at least not without further Westminster involvement.

It should also be competent for the Law Officers to challenge Scottish Parliament legislation after it has received Royal Assent. Acts of the Scottish Parliament can be attacked as being outside legislative competence by way of a post-Royal-Assent petition for judicial review – several Acts have been directly challenged this way, including legislation on fox-hunting, tobacco regulation and asbestos-related conditions. While these challenges were all brought by independent parties, I can think of no reason in principle why the Law Officers could not take that route if they wished. But why would they do that rather than use their powers of reference under the Scotland Act? That is a subject for a future post…

Charles Livingstone

Partner at Brodies LLP
Charles works with a broad range of commercial, public sector, charitable and individual clients, advising them on public law issues including judicial review, human rights, information law and the powers and duties of local and other public authorities. He is named by Chambers & Partners in both Competition Law and Administrative & Public Law.
Charles Livingstone

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