2.1 Within competence?
The Scotland Act 1998 (as amended) sets out the law-making powers of the Scottish Parliament. Laws passed by the Scottish Parliament must fulfil the requirements set out in Section 29(1) of the Scotland Act 1998 (as amended). These state that Acts have to:
- only apply in Scotland
- only apply to devolved matters
- be compatible with rights set out in the European Convention on Human Rights (ECHR) (and EU law).
- comply with the laws, rules and regulations in relation to retained EU law.
And the requirements state the Act cannot:
- remove the Lord Advocate from their office
- breach Schedule 4 of the Scotland Act. This schedule contains a number of existing legislative provisions such as free trade in the Acts of Union (English Parliament’s Union with Scotland Act 1706 and the Scottish Parliament’s Union with England Act 1707), which cannot be modified or repealed by the Scottish Parliament.
Box 1 Section 29 Scotland Act 1998 (as amended)
29 Legislative competence.
- (1) An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament.
- (2) A provision is outside that competence so far as any of the following paragraphs apply—
- (a) it would form part of the law of a country or territory other than Scotland, or confer or remove functions exercisable otherwise than in or as regards Scotland,
- (b) it relates to reserved matters,
- (c) it is in breach of the restrictions in Schedule 4,
- (d) it is incompatible with any of the Convention rights or [F1in breach of the restriction in section 30A(1)],
- (e) it would remove the Lord Advocate from his position as head of the systems of criminal prosecution and investigation of deaths in Scotland.
- (3) For the purposes of this section, the question whether a provision of an Act of the Scottish Parliament relates to a reserved matter is to be determined, subject to subsection (4), by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances.
- (4) A provision which—
- (a) would otherwise not relate to reserved matters, but
- (b) makes modifications of Scots private law, or Scots criminal law, as it applies to reserved matters,
- is to be treated as relating to reserved matters unless the purpose of the provision is to make the law in question apply consistently to reserved matters and otherwise.
[F2 (5) Subsection (1) is subject to section 30(6).]
F1 Words in s. 29(2)(d) substituted (31.12.2020) by European Union (Withdrawal) Act 2018 (c. 16), ss. 12(1), 25(4) (with s. 19, Sch. 8 paras. 37, 41); S.I. 2020/1622, reg. 3(g) (with reg. 10)
F2 S. 29(5) inserted (3.7.2012) by Scotland Act 2012 (c. 11), ss. 9(2), 44(5); S.I. 2012/1710, art. 2(d)
Modifications etc. (not altering text)
C1 S. 29(2)(b)(c) excluded by 1974 c. 53, Sch. 3 para. 9(1) (as inserted (13.4.2015) by Criminal Justice and Courts Act 2015 (c. 2), ss. 19, 95(1); S.I. 2015/778, art. 3, Sch. 1 para. 15)
C2 S. 29(2)(d) restricted (1.3.2019) by European Union (Withdrawal) Act 2018 (c. 16), s. 25(4), Sch. 8 para. 41(3)(9) (with s. 19, Sch. 8 para. 37); S.I. 2019/399, reg. 2
C3 S. 29(2)(d) excluded (14.11.2020) by Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (c. 20), s. 9(4), Sch. 2 para. 2; S.I. 2020/1279, reg. 2(c)
When considering legislation of the Scottish Parliament the first question is whether it is within the competence of the Scottish Parliament. Subsequent weeks explore a number of the legal challenges that have been made on this ground. If legislation is not within competence, it is void (not valid).
All legislation of the Scottish Parliament must be interpreted so as to be compatible with the ECHR (the European Convention of Fundamental Human Rights and Freedoms to give it its full title). If it is not within the legislative competence, the provision is void and does not have the status of law.