A Scottish Minister, when introducing a Bill into the Scottish Parliament, is required by section 31(1) of the Scotland Act 1998 to state that, in his or her view, the Bill would be within the legislative competence of the Parliament. Such a statement is required, by paragraph 3.4 of the Scottish Ministerial Code, to be “cleared” with the Scottish Law Officers (in practice the Lord Advocate).
It was because the Lord Advocate did “not have the necessary degree of confidence” to clear such a statement in relation to the draft Scottish Independence Referendum Bill that she was requested by the First Minister to refer the question whether the Bill would be within the legislative competence of the Parliament to the Supreme Court in terms of paragraph 34 of Schedule 6 to the Scotland Act.
To date, the Supreme Court has not accepted the reference but has told both the UK and Scottish Governments that it will consider that issue at the same time as it considers the substantive issue of whether the Bill is within legislative competence.
A date for the hearing has been provisionally set for 11-12 October.
It is against this background that Chris McCorkindale suggests that the Lord Advocate should not have a veto over which Bills, or provisions in the Bills, are within legislative competence at the pre-introduction stage.
He argues that it was only intended by section 31(1) that the statement that the Bill was within the legislative competence of the Parliament should be the political view of the Scottish Minister in charge of the Bill “on the basis of a stateable case” taking into account any legal view expressed by the Lord Advocate but not necessarily following it.
He argues that it was not intended that it should be the legal view of the Lord Advocate or, in particular, that she should have a veto upon what Bills could be introduced into the Scottish Parliament. Such a veto would mean that there might be no opportunity for any judicial determination as to whether the vetoed Bill is within competence if, as in the case of the current reference to the Supreme Court, the Court determines that a reference was only intended to be made under section 33 of the Scotland Act after the Bill is passed and before it is enacted.
This is an ingenious argument which might be very appealing in certain quarters. It is certainly the case that section 31(1) only refers to “The person in charge of a Bill” and does not refer to the Lord Advocate, as it could have done in the case of Scottish Government Bills. It is also the case that such a statement does not carry any legal weight when a court is determining whether a Bill or an ASP is within legislative competence (Imperial Tobacco v Lord Advocate  UKSC 61). However, it does not follow that it was intended that such a statement should merely be the political view of the responsible Minister.
Two of the prime characteristics of Scottish devolution are the strict vires control imposed upon the Scottish Parliament and Scottish Ministers to act within the limits of their devolved powers and the various checks to ensure that Bills are within the Parliament’s legislative competence before they are enacted.
One of those checks is the requirement in section 31(1) for a pre-introduction statement to be made by the responsible Minister that, in his or her view, the Bill is within legislative competence. If such a statement is to be of any value as a check upon legislative competence, it must have been intended that the issue would have been properly considered within the Scottish Government and reached on the basis of the best available legal advice to the Scottish Government which is that of the Lord Advocate.
There does not appear to be any warrant for interpreting section 31(1) to mean, as Chris McCorkindale suggests, that the statement should merely be the political view of the responsible Minister on the basis of what he or she considers to be a “stateable case” even although this might not accord with the legal view taken by the Lord Advocate.
Such a view conflicts with the ethos of the Scottish Government that Scottish Ministers have, as the Scottish Ministerial Code puts it, “an overarching duty to comply with the law” (paragraph 1.3) and, in appropriate cases, to take the advice of the Scottish Law Officers, whose duty it is to ensure that the Scottish Government acts lawfully at all times (paragraphs 2.30 and 2.33). It is for this reason that the Code requires the pre-introduction statement by the responsible Ministers to be “cleared” with the Scottish Law Officers (paragraph 3.4)
In an excellent article entitled “Vetting Bills in the Scottish Parliament for Legislative Competence”, Chris McCorkindale and Janet Hiebert describe how the advice of the Lord Advocate is frequently sought by lawyers within the Scottish Government (SGLD) whenever legislative competence issues emerge during the drafting of a Bill. They also describe how, before the responsible Minister makes the pre-introduction statement, it is the practice for SGLD to send to the Lord Advocate a detailed note on all the competency issues which have been identified as arising from the Bill during its drafting and to seek her view upon whether the Bill, and all the provisions in it, are within legislative competence. It is only when any concerns raised by the Lord Advocate have been addressed that the responsible Minister is advised that he or she can make the statement.
It would undermine the rule of law if the view was taken that, in making that statement, the responsible Minister did not have to seek the advice of the Lord Advocate and, even worse, could decide not to follow that advice if it is taken but to prefer his or her own view of what might be the case.
Chris McCorkindale describes this as meaning that the Lord Advocate has a veto upon what Bill is introduced into the Parliament and prevents a judicial determination of the competency of the Bill. In practice it might be thought exceptional that the Lord Advocate’s advice has this effect. Normally, it might only affect particular provisions in a Bill and there may be other ways of achieving the policy in a different way which did not offend against competence. Nevertheless, the Scottish Independence Referendum Bill might be one of the exceptions.
It may be thought unlikely that the Supreme Court would refuse the reference which the Lord Advocate has made to it under paragraph 34 of Schedule 6 on the grounds that it is premature. This is because the effect of such a refusal would be that the Bill could not be introduced into the Scottish Parliament and so there would never be an opportunity to refer the Bill to the Supreme Court at a later stage under section 33. However the Court could refuse the reference on the ground that the structure of the Scotland Act envisages that a reference of a Bill to the Court should only be made under section 33 within 4 weeks after the Bill has been passed by the Parliament and before it is enacted. In this sense the Lord Advocate’s refusal to advise that the Bill is within legislative competence would have the consequence as described by Chris McCorkindale but this is no different from her advice on many other matters, which may be referred to her for her opinion and which she considers are outside competence. These matters may never give rise to a judicial determination even although it might be considered that the risk of any judicial challenge might be small. It is the role played by the Lord Advocate as the final internal check upon the lawfulness of what Scottish Ministers do and decide which ensures that the rule of law is observed by the Scottish Government.
Iain Jamieson, retired Government lawyer in the UK and Scottish Governments
(Suggested citation: I. Jamieson, ‘The Lord Advocate’s Role in Vetting Bills in the Scottish Parliament for Legislative Competence: A Reply to Chris McCorkindale’, U.K. Const. L. Blog (25th July 2022) (available at https://ukconstitutionallaw.org/))