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Constitutional Law Tutorial 11.

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Introduction

Gordon Syme Constitutional Law Tutorial 11 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". ...read more.

Middle

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. ...read more.

Conclusion

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. ...read more.

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