2.3 Powers to intervene
The Secretary of State for Scotland can, in certain circumstances, intervene if a Bill fails to meet one of the following conditions (Section 35 Scotland Act 1998 (as amended)). Where there are reasonable grounds (note reasonable is not defined) to believe that:
- the Bill is incompatible with the UK’s international obligations or interests
- in the interests of defence or national security
- it applies to reserved matters
- it would have an adverse effect on the laws relating to reserved matters.
If one of these conditions exists, then the Secretary of State can make an order prohibiting the Bill from going for Royal Assent.
Section 35 contains the words ‘reasonable grounds’ and in the ‘interests of defence or national security’. They are not defined and are not uncommon in legislation. Such terms are criticised by some as being too vague but supported by others in covering situations that have yet to be determined.
Box 3 Section 35 Scotland Act 1998 (as amended)
35 Power to intervene in certain cases.
- (1) If a Bill contains provisions—
- (a) which the Secretary of State has reasonable grounds to believe would be incompatible with any international obligations or the interests of defence or national security, or
- (b) which make modifications of the law as it applies to reserved matters and which the Secretary of State has reasonable grounds to believe would have an adverse effect on the operation of the law as it applies to reserved matters,
- he may make an order prohibiting the Presiding Officer from submitting the Bill for Royal Assent.
- (2) The order must identify the Bill and the provisions in question and state the reasons for making the order.
- (3) The order may be made at any time during—
- (a) the period of four weeks beginning with the passing of the Bill,
- (b) any period of four weeks beginning with any F1... approval of the Bill in accordance with standing orders made by virtue of section 36(5),
- (c) if a reference is made in relation to the Bill under section [F232A(2)(b) or] 33, the period of four weeks beginning with the reference being decided or otherwise disposed of by the [F3Supreme Court].
- (4) The Secretary of State shall not make an order in relation to a Bill if he has notified the Presiding Officer that he does not intend to do so, unless the Bill has been approved as mentioned in subsection (3)(b) since the notification.
- (5) An order in force under this section at a time when such approval is given shall cease to have effect.
F1 Word in s. 35(3)(b) omitted (18.5.2017) by virtue of Scotland Act 2016 (c. 11), ss. 11(14)(a), 72(4)(a); S.I. 2017/608, reg. 2(1)(i)
F2 Words in s. 35(3)(c) inserted (18.5.2017) by Scotland Act 2016 (c. 11), ss. 11(14)(b), 72(4)(a); S.I. 2017/608, reg. 2(1)(i)
F3 Words in s. 35(3)(c) substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40(4), 148(1), Sch. 9 para. 98; S.I. 2009/1604, art. 2