Tag: Scotland Act 1998
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Iain Jamieson: Altering the Effect of Section 28(7) of the Scotland Act 1998
This article suggests that the Supreme Court’s interpretation of section 28(7) has created such problems in relation to the legislative competence of the Scottish Parliament that the provision needs to be amended, repealed or qualified. Text The terms of section 28(7) appear innocuous. Section 28(1) confers power on the Scottish Parliament to make laws to…
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Michael Foran: Section 35 and the Separation of Powers: On the Role of Unwritten Constitutional Principles in the Interpretation of the Scotland Act
This week, the Outer House of the Court of Session delivered judgment in Re Scottish Minister’s Petition 2023 CSOH 89. The case concerned the lawfulness of an Order made under section 35 of the Scotland Act 1998 to prevent the Gender Recognition Reform (Scotland) Bill from receiving Royal Assent. I wrote about this possibility at…
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Chris McCorkindale and Aileen McHarg: Rescuing the Gender Recognition Reform (Scotland) Bill? The Scottish Government’s Challenge to the Section 35 Order
Introduction On 17 January, the Secretary of State for Scotland, Alister Jack MP, made an Order under s.35 of the Scotland Act 1998 prohibiting the Scottish Parliament’s Presiding Officer from presenting the Gender Recognition Reform (Scotland) Bill (GRR Bill) for Royal Assent. The Bill, which was passed with cross party support on 22 December 2022,…
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Iain Halliday: Political and Legal Constitutionalism in the Age of Supreme Court Referrals
Back in early 2013 I wrote my undergraduate dissertation on the role of law and politics in the independence debate. I concluded that: “Throughout the independence debate, the law, in the form of judicial intervention, had no role to play. This can be seen as a victory for the political constitution. In the context of…
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Gordon Guthrie: Brown vs Dewar – The Labour Commission on the UK’s Future
With the publication of Labour’s Commission on the UK’s Future it is worth contrasting the approach that Gordon Brown and his colleagues have taken with the very successful devolutionary legacy of Donald Dewar. The Scottish Parliament is one of the most powerful subnational parliaments in the world. But the Scottish state hardly changed in 1999…
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Leah Trueblood: What is the ‘purpose’ of the Scottish Independence Referendum Bill?
What is the purpose of the referendum proposed in the Scottish Independence Referendum Bill? Is it, as s 1 (1) of the Bill itself says ‘to ascertain the views of the people of Scotland?’ Or is the aim – either directly or indirectly – the dissolution of the United Kingdom? If the purpose is only to…
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Stephen Tierney: The Lord Advocate’s Reference: Referendums and Constitutional Convention
On 11-12 October the Supreme Court is scheduled to hear a reference brought by the Lord Advocate under the Scotland Act 1998, Schedule 6, para.34 (‘the Reference’). The Lord Advocate seeks determination of the following questions: Does the provision of the proposed Scottish Independence Referendum Bill that provides that the question to be asked in…
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Shona Wilson Stark and Raffael Fasel: Unconstitutionally Legal: How the UK Supreme Court Should Decide the Lord Advocate’s Reference
On 28 June 2022, the Lord Advocate referred to the UK Supreme Court (“UKSC”) the question of whether the Scottish Parliament has the power to legislate for a second independence referendum (“Indyref 2”) without an Order enabling it do so under section 30 of the Scotland Act 1998 (a “section 30 Order”). Assuming the UKSC…
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Iain Jamieson: The Lord Advocate’s Role in Vetting Bills in the Scottish Parliament for Legislative Competence: A Reply to Chris McCorkindale
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…
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Mark Elliott and Nicholas Kilford: Devolution in the Supreme Court: Legislative Supremacy, Parliament’s ‘Unqualified’ Power, and ‘Modifying’ the Scotland Act
In the Continuity Bill Reference, the Supreme Court advanced a striking analysis of the implications for devolution of the doctrine of parliamentary sovereignty — or, more specifically, of the provision in the Scotland Act 1998 that had hitherto been understood merely to affirm that doctrine. The provision in question is section 28(7), which says of…