SECTION 33: Scrutiny of Bills by the Judicial Committee.
Purpose and Effect
This section provides that the Advocate General, the Lord Advocate or the Attorney General may refer a Bill of the Scottish Parliament, or any provision of such a Bill, to the Judicial Committee of the Privy Council (“the Judicial Committee”) for determination of whether it is within the legislative competence of the Parliament. Such a reference may only be made within the 4 week period beginning with the passing of a Bill or its subsequent approval following reconsideration of it by the Parliament.
General
This section forms part of the set of provisions in sections 31 to 34 dealing with the scrutiny of Bills to ensure that they are within the legislative competence of the Scottish Parliament before they are submitted for Royal Assent. It provides for the determination of such questions by the Judicial Committee at the instance of one of the specified Law Officers.
These questions may also be raised in court or tribunal proceedings after Royal Assent by any member of the public who has title and interest to sue, such as by way of judicial review. Schedule 6 provides for certain special procedures to apply when they do arise, for example, to ensure that the UK and Scottish Law Officers are given an opportunity to participate and that these questions can be determined ultimately by the Judicial Committee. Schedule 6 also enables any of the specified Law Officers to bring such proceedings or to refer the matter directly to the Judicial Committee.
Section 103 makes provision for the procedure and membership of the Judicial Committee in cases arising under either section 33 or Schedule 6. The rules regulating the procedure on a reference under section 33 are contained in the Judicial Committee (Devolution Issues) Rules Order 1999 (S.I. 1999/665). The powers of the Judicial Committee in such cases are also dealt with in the Judicial Committee (Powers in Devolution Cases) Order 1999 (S.I. 1999/1320).
Parliamentary Consideration
| Stage | Date | Column |
|---|---|---|
| CR | 12-May-98 | 202 |
| CR | 12-May-98 | 203 |
| LR | 28-Oct-98 | 1952 |
| LR | 28-Oct-98 | 2004 |
Details of Provisions
Subsection (1) provides that the Advocate General, the Lord Advocate or the Attorney General may refer the question as to whether a Bill of the Scottish Parliament or any provision of it is within the Parliament’s legislative competence to the Judicial Committee for a decision.
Subsection (2) prescribes when such a reference by those Law Officers may be made. It may be made during a period of four weeks following either the passing of the Bill by the Parliament or the approval of a Bill by the Parliament on its reconsideration in accordance with the Standing Orders made by virtue of section 36(5).
If the Law Officers do not refer a Bill to the Judicial Committee within that four week period, then the Presiding Officer will be free to submit it for Royal Assent at the end of that period, subject to any order made by the Secretary of State under section 35. If, however, a reference is made, the Presiding Officer will not be able to submit the Bill for Royal Assent until it has been decided or otherwise disposed of by the Judicial Committee by virtue of section 32(2)(b).
Subsection (3) qualifies subsection (2) by providing that a Law Officer shall not refer a Bill to the Judicial Committee if he has already notified the Presiding Officer that he does not intend to make a reference in relation to that Bill. However, if, after giving such a notification, the Bill has been approved by the Parliament on reconsideration, then that notification does not preclude him making a reference during the second four week period following such approval in terms of subsection (2)(b).
The provision to allow the Law Officers to notify their intention not to refer a Bill will allow for cases where it is intended that the Bill should be brought into force as soon as possible, such as in the case of emergency legislation. The Presiding Officer will be entitled to submit a Bill for Royal Assent as soon as all the Law Officers so notify and the Secretary of State has notified him that he does not propose to make an order under section 35. So far as the Law Officers are concerned, this, of course, depends on general agreement that the Bill raises no question of vires which ought to be referred.