Constitutional Law Tutorial

The recently created Scottish Parliament carries out many of the same functions as the U. K. parliament, although the legislative function is curtailed by the limits imposed by the Scotland Act 1998. Contained in this Act is a list of areas of power to be "retained" at Westminster, with Holyrood having de facto power to legislate on any areas not retained. Other constraints on the content of Acts of the Scottish Parliament (ASPs) include: the European Convention on Human Rights, European Community Law and the Human Rights Act 1998 with ASPs breaching this being unenforceable in courts.

Section one of the Scotland Act 1998 instructs the courts to take the "narrowest possible reading" of an ASP clause where it could be seen as ultra vires of the Scottish Parliament. Despite these restrictions, however, Holyrood does have a wide legislative capacity as demonstrated by its theoretical ability to pass law in the situations discussed below. The four situations listed in the question are discussed separately below: (a) abolish existing universities and create a single University of Scotland;

Under the Union with Scotland Act 1706 section 2, "the universities or colledges of Saint Andrews, Glasgow, Aberdeen and Edinburgh as now established by law shall continue in this kingdom for ever". This would appear prima fasciae to restrict the Scottish Parliament's ability to abolish the four named universities. However, section 37 of the Scotland Act makes it clear that an ASP cannot be challenged on the basis of incompatibility with the Acts of Union 1706-07.

Another possible stumbling block would be if this matter was reserved to Westminster but it is not contained in schedule five of the Scotland Act where the reserved areas are listed and, as previously mentioned, any area not reserved is within the competence of the Parliament. I would therefore advise the Presiding Officer that the first Bill is within the legislative competence of the Parliament. The consequences of this may be that there would be a public outcry at such a radical departure from tradition.

However, this is a factor for the politicians to weigh up and not really the concern of the Presiding Officer. As far as Westminster is concerned, it would be politically contentious to intervene and remove a power it has expressly given the Parliament and such a reaction would be highly unlikely. (b) create a Human Rights Commission for Scotland Schedule five specifies some commissions which it is outwith the legislative competence of Parliament to alter (s. 3 (2) (c)) or to create similar new bodies (s. 3 (1) (a)).

These are the commissions for Racial Equality, Equal Opportunities and Disability Rights. However, a Commission for Human Rights is not mentioned at all in the schedule and this would tend to indicate that it was an area that the Parliament could legislate on. There would have to be some restriction on its activities though, as it would have to be given powers within the framework of the ECHR and the Human Rights Act 1998. These pieces of legislation are, in practice, going to have the same aims as any commission so I can see no problem with this Bill being introduced to Parliament either.

There do not seem to be any foreseeable consequences of this Bill passing through Parliament as long as the relevant pieces of superior legislation are not breached as this would invalidate the whole Act and therefore the commission. (c) abolish appeals to the House of Lords The House of Lords is the highest civil court in Britain at the moment and it seems unlikely that there would be a desire to change the system so significantly. However, with reference to schedule five section one of the 1998 Act, the status of the Court of Session and the High Court of Justiciary as the highest courts in Scotland is a reserved matter.

It would seem to be no more than common sense, then, to suggest that the status of the House of Lords as Supreme Court would be protected if that had been Parliament's intention. The exclusion of this would seem to suggest that Holyrood is free to legislate on this matter as it sees fit. S. 29 (4) (b) of the main body of the 1998 Act reserves Scots criminal law as a matter for Westminster where it relates to "offences, jurisdiction, evidence, procedure and penalties and treatment of offenders. It seems reasonable, then that if criminal but not civil law is specified, then civil law has been deliberately excluded.

It also seems to stand to reason that such an important constitutional issue would have been reserved if it was decided to be necessary and so I would recommend the introduction of the Bill. (d) provide for new offences curbing dangerous behaviour on oil platforms The first point to be made is that the oil platforms would have to be within Scottish territorial waters as this is the extent of legislative power of the Scottish parliament. This can be contrasted with Westminster, where legislative power can extend to all areas, in one instance even to space.

Offshore installations are reserved in schedule five section two Head D2 (c), but this is used generically and it is not clear whether it extends to conduct on oil platforms or not. Also in Head D2, it is specified in (e) that "the application of Scots law" in relation to offshore activities is reserved; there is no mention of the creation of new law or regulations. Under the employment Head H2 (b) ( i ), conduct relating to fire safety is specified as reserved but there is not other forms of conduct, so perhaps a bill with no reference to fire safety would be competent.

A specification made for the whole Act is that it cannot contravene the Health and Safety at Work etc Act 1974 and so any regulations would have to avoid issues dealt with here, or at least not contradict them. So it seems unclear whether Holyrood would be able to pass competent legislation on this issue. Perhaps of it did not contravene the Health and Safety Act and it was not in relation to fire safety, an ASP on this matter may be competent within Scottish waters.

There could be consequences to this, however, as it seems to be almost going through a loophole in the Scotland Act, or at least very close to the limit of legislative competence. Again, though, there are not many realistic ways in which Westminster could respond to this. Having created the Scottish Parliament, the U. K. government cannot politically trim its powers without a potentially damaging outcry from the opposition and a significant proportion of the Scottish electorate.

Passing contradictory legislation would be against the convention already forming that Westminster will not legislate on matters which are devolved and would be tantamount to limiting Holyrood's powers in any case. Another more realistic option would be, on introduction of a Bill, which the U. K. Government thought ultra vires of Holyrood, to instruct all the M. S. P. s of its own party to vote it down. This would only work where the Bill was not unanimously popular anyway as no party has an absolute majority in the Scottish Parliament at the moment and therefore no single party could vote a Bill down.

It seems, then, that Holyrood could, in theory, pass at least limited legislation on all four of these topics, although the political feasibility of some of the measures must be called into question. The fact that there is a Scottish Parliament and not Assembly must imply a reasonable level of legislative competence and this should be reflected here. I would therefore advise the Presiding Officer to allow introduction and discussion of all the Bills, with discussion and amendments ensuring that the legislation was within competence.