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Devolution — SQE1 Public law question

A worked single-best-answer question on devolution, with why each wrong option is wrong — the way SQE1 traps candidates.

Devolution

The Scottish Parliament has just passed a Bill which, among other things, regulates the operation of UK-wide broadcasting licences, a matter reserved to Westminster under Schedule 5 to the Scotland Act 1998. The Bill has not yet been submitted for Royal Assent. The UK Government believes the Bill is outside the Scottish Parliament's legislative competence and wants the question resolved before the Bill becomes law.

Which of the following best describes the step the UK Government's law officers may take?

  1. AThe Secretary of State for Scotland may veto the Bill at any time before or after Royal Assent.
  2. BThe Advocate General for Scotland or the Attorney General may refer the question of competence to the Supreme Court within four weeks of the Bill being passed.
  3. CThe Attorney General must apply to the Court of Session for an injunction preventing Royal Assent.
  4. DNo step can be taken until the Bill becomes an Act, after which it can be challenged in the courts.
  5. EThe UK Parliament must pass an Act annulling the Bill before Royal Assent.
Show answer and reasoning
B is the best answer. An Act of the Scottish Parliament is not law so far as any provision is outside its legislative competence, including where it relates to reserved matters (Scotland Act 1998, s 29). Before Royal Assent, the Advocate General, the Lord Advocate or the Attorney General may refer the question whether a Bill is within competence to the Supreme Court within four weeks of its passing (s 33), and the Bill may not be submitted for Royal Assent while a reference can be made or is pending (s 32).

Rule: The law officers may refer the question whether a Scottish Bill is within competence to the Supreme Court within four weeks of its passing.

  • A There is no general power for the Secretary of State to veto Bills on competence grounds; the competence route is a Supreme Court reference. (wrong rule)
  • C The statutory route is a reference to the Supreme Court, not an injunction application in the Court of Session. (wrong rule)
  • D Although an Act can later be challenged, the Scotland Act provides a pre-Assent reference procedure. (wrong rule)
  • E The UK Parliament does not need to annul a Scottish Bill; the competence question is resolved by the Supreme Court. (wrong rule)

Source: Scotland Act 1998, ss 29, 32 and 33, Sch 5

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