Devolved powers

Everything is assumed to be devolved unless it is listed as reserved.[1]  There are two types of reservation:

  • General: such as constitutional issues; the registration and funding of political parties; international relations; defence.
  • Specific: cover particular areas of social and economic policy under 11 heads such as ‘Head A – financial and economic matters’ which covers matters such as economic and monetary policy, currency, financial services, financial markets and money laundering.

Scottish Parliament

Unlike the UK Parliament the Scottish Parliament:

  • is unicameral (single chambered) in that there is no second or revising chamber,
  • operates (currently) a five-year sessional cycle, rather than the typical annual cycle of sessions used in Westminster,
  • is elected by proportional representation, namely the Additional Member System (AMS) which produces 129 Members of the Scottish Parliament (MSPs): 73 from constituencies and 56 from a regional list drawn up by a political party,
  • enfranchises children aged 16 and 17 (rather than merely adults), and
  • is chaired by a Presiding Officer (rather than the Speaker) and two or more deputies.

Scottish Government

  • is headed by the First Minster (rather than Prime Minister), who is recommended by the Presiding Officer (usually on the basis of being the leader of the largest single party) and appointed by the Monarch,
  • has a cabinet comprised of the First Minister, all Cabinet Secretaries, Minister for Parliamentary Business and Permanent Secretary,[2]
  • has law officers know as the Lord Advocate (rather than Attorney General) and Solicitor-General for Scotland (rather than Solicitor-General).

Legislative competence

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.[3]  A provision is outside that competence if it[4]:

  • would form part of the law of a territory other than Scotland,
  • relates to a reserved matter,
  • seeks to modify specified protected acts such as the Human Rights Act 1998,
  • is incompatible with the ECHR, or
  • would remove the Lord Advocate from his position as head of the systems of criminal prosecution and investigation of deaths.

To address the issue of legislative competence four office holders are required or empowered to consider the issue:

  • The MSP in charge of a bill shall state, on or before the bill’s introduction, that in his view its provisions would be within the Parliament’s legislative competence.[5]
  • The Presiding Officer shall state, on or before the bill’s introduction, make a statement on legislative competence.[6]
  • Once a bill is passed, there is a four week period in which the Advocate General for Scotland (a UK government law officer) can either refer it to the Supreme Court or confirm that he does not intend to.  Only then does the Presiding Officer write to the Monarch asking for Royal Assent.[7]
  • The Secretary of State for Scotland (a UK government minister) can, on limited grounds, make an order prohibiting the Presiding Officer from submitting a bill for Royal Assent.[8]

Additional powers are given to various law officers, including the Lord Advocate, to refer certain matters to the Supreme Court such as ‘in relation to a devolution issue which relates to the proposed exercise of a function by a member of the Scottish Executive.’[9]

[1] The reservations are provided for in Scotland Act 1998, s30, and established in Schedule 5.

[2] The personnel of the Scottish government are listed here.

[3] Scotland Act 1998, s29(1).

[4] Scotland Act 1998, s29(2) and schedule 4.

[5] Scotland Act 1998, s31(1).

[6] Scotland Act 1998, s31(2).

[7] Scotland Act 1998, s32.

[8] Scotland Act 1998, s35.

[9] Scotland Act 1998, s98 and schedule 6, §§33-35, as considered in Reference by the Lord Advocate of devolution issues [2022] UKSC 31, §§16, 21-27, 37-42, 44-46.