An alternative view on the appropriate intensity of judicial scrutiny of the s.35 Scotland Act 1998 order – UK Constitutional Law Association

Michael Foran has eloquently defended on this blog the decision by Lady Haldane in Re Scottish Minister’s Petition 2023 CSOH 89 which found the Secretary of State for Scotland’s maiden exercise of the power contained in s.35 of the Scotland Act lawful. I will not repeat here the discussion of the particulars of the case, nor the precise step-by-step illustration of Lady Haldane’s reasoning. What I will do instead in this brief contribution is raise some doubts on the cogency of Lady Haldane’s reasoning as to the intensity of review that should be applied by courts to the use of the s.35 power. In particular, I will argue that a crucial oversight in both the court’s judgment and Foran’s endorsement of it lies in the failure to appreciate the difference between the presence of the s.35 power in the context of the devolution constitutional settlement as opposed to its actual use; and that appreciation of such difference leads to a different answer as to the question of the appropriate intensity of review of the s.35 order than the one put forward in the case.

An (extra-)ordinary power?

What is the nature of the s.35 power? It is worth remembering that the starting point which was agreed by all the parties to the proceedings in Re Scottish Minister’s Petition was that it was within the competence of the Scottish Parliament to legislate on the gender recognition certificate. As confirmed by the UK government in the case [at 36], if this had not been the case, then the recourse to the s.35 order by the Secretary of State would have been misguided. It is thus a triggering condition of the power in question that the Scottish Parliament is acting within its lawful legislative boundaries, as established by the Scotland Act 1998. Against the background of the overarching purpose of the devolution constitutional settlement – that of creating a democratically-elected Parliament for Scotland imbued with plenary powers – this observation alone already seems to run against the understanding of the nature of the s.35 power as ‘ordinary’.

In fact, as established by the Supreme Court in AXA, the democratically legitimated Scottish Parliament cannot be considered akin to a statutory body with delegated powers, and its decisions must be consequently afforded greater deference by the courts than those by delegated authorities or, significantly for our purposes, by ministers of the Crown. Granted, it is not a sovereign parliament in the same way that the Westminster one is, and this is clearly exemplified by its limited (as opposed to unlimited) legislative competences. Yet its decisions, provided they remain within the boundaries of said competences, must be recognised and afforded respect for what they are – decisions of a democratically elected legislative assembly – especially in the case of policy divergence with the UK institutions.

This last point bears repeating: the ultimate function of the devolution constitutional settlement – the whole point of it, one could say – is to allow for (rather than hinder) policy divergence between Scotland and the rest of the United Kingdom in those areas where the Scottish Parliament has legislative competence. How does this bear on the intensity of scrutiny by courts on the exercise of the s.35 power? The gist of Lady Haldane’s reasoning is that s.35 is ‘itself part’ of the constitutional framework as established by the Scotland Act [at 70]: as Foran puts it, rather than being an affront to the separation of powers, it actually constitutes an ‘instantiation’ of it. Therefore, the fact that the SoS has decided to exercise said power for the first time vis-à-vis the Scottish gender recognition bill is a perfectly ordinary course of action within the devolution framework, and it follows that its exercise should not attract – in and of itself – any heightened scrutiny by the courts. Or should it?

The Phantom Menace: on the difference between the existence of the s.35 power and its actual exercise

As has already been underscored by Daly among others, it would not have been unreasonable for the Outer House to take a different view and subject the exercise of the s.35 power to heightened scrutiny, which could have led (but I do not wish to speculate in this respect, as it is not the point of this post) to a different outcome in the case. Foran denies this, stressing that arguments for heightened scrutiny based on the principles of democracy and devolution can only be used to criticise the current devolution settlement, but cannot constitute ‘a plausible approach to interpreting it’. What are the possible grounds to affirm that the court ought to have afforded less deference and scrutinised more strictly the order by the SoS? 

Pace Foran, there appear to be indeed two feasible and competing interpretations, underpinned by different constitutional principles, of the s.35 powers in the Scotland Act 1998 at stake. The first is the one adopted by the Outer House of the Court of Session in Re Scottish Minister’s Petition [at 70-71). In keeping with the orthodox theory of parliamentary sovereignty and the colonial origins of the s.35 powers, this interpretation adopts a binary code and stresses that: a) Scotland is not an independent country; and b) that the central government’s veto power is expressly enshrined in the legislative scheme and it is, as such, the manifestation of the intention of the sovereign parliament. Consequently, its exercise is constitutionally unproblematic and it should attract heightened judicial scrutiny if and only if the additional recognised triggers of the principle of legality obtain in a given case (that is, if the rule of law or fundamental rights are at stake).

The main problem with this interpretation should be apparent. As has been raised already in the context of its colonial antecedents, the regular exercise of a ministerial veto power like this could effectively be used to hollow out the legislative competences of the ‘subordinate’ legislature on the basis of policy disagreements (more on this in a moment) as opposed to intentional abuses of competence. There is even at least one precedent, in the context of the Government of Ireland Act 1920, in which this precise line of reasoning was used to successfully resist the attempt by the British government to use for the first time the equivalent of the s.35 power. In the context of Scottish devolution too, then, an ordinary use of s.35 orders that is not always subject to heightened scrutiny by courts could be used to progressively frustrate the very raison d’être of the constitutional devolution settlement. This danger seems particularly acute considering that: 

  1. the provision only requires ‘reasonable grounds’ by the minister in believing the bill would have ‘adverse effects’ on the operation of the law as it applies to reserved matters – and not a more demanding test re ‘adverse effects’ as is to be found, for instance, in the Northern Ireland Act 1998
  2. it will often be the case that legislation in a devolved area has implications for reserved areas and functions, without necessarily putting it outside competence; 
  3. the decision by the Outer House does not specify any criterion to identify ‘adverse effects’ objectively, with the risk of effectively collapsing the test into what the UK government considers to be ‘adverse effects’; and
  4. the ‘operation of the law’ criterion appears broad enough to be triggered in such a vast number of situations – arguably encompassing also non-legal factors which impact how the law is applied in specific circumstances – that it makes its exercise more readily open to arbitrariness.

True, the Outer House in Re Scottish Minister’s Petition explicitly excludes that a mere policy disagreement could give rise to a lawful use of the s.35 power by the UK government [at 64]. But given the lack of determinacy of the test contained in s.35(1)(b) – as I have just illustrated – it is very difficult to accept Lady Haldane’s statement at face value. It appears, in fact, more accurate to suggest that, lacking any objective and more stringent test, an ‘adverse effect’ (loosely defined) could be identified to match almost any substantive policy disagreement between Edinburgh and Whitehall. 

The second and alternative interpretation underscores instead the overall constitutional rationale of the devolution settlement and how the s.35 power should be understood – purposively – more like an ‘enabling mechanism’ (in the words of the then Secretary of State for Scotland Donald Dewar) rather than an ordinary veto power. To put it differently, this interpretation assumes that the power enshrined in s.35 is the kind of power which was created precisely not to be used: that is, it was created to act like a Phantom Menace in the background of the devolution constitutional settlement, so as to ensure (one could also say ‘compel’) collaboration between the central and devolved governments in dealing in good faith with the complexities of a competence-based division of lawmaking labour. 

This interpretation was explicitly endorsed by Lord Sewel – in his role of Scottish Office minister at the time – during the debate on the Scotland Act 1998 in the House of Lords:

“[the] existence [of the section 35 power] should be sufficient to ensure consultation between Whitehall and Edinburgh so that there may be no need for them to be used”.

It seems also to capture with the 2013 Memorandum of Understanding on Devolution between the UK, Scottish and Welsh governments, where the UK government affirms – after stating that they are ready to use them ‘if necessary’ – that they see these powers ‘very much as a matter of last resort’. 

Overall, then, the combination of a constitutionally-oriented interpretation of s.35 which recognises the democratic legitimacy of the Scottish Parliament and the constitutional status of its competences with the acknowledgement of the very broad scope (and potential for arbitrary exercise) of the veto power indicates the necessity of far greater intensity of judicial scrutiny of its actual use. Admittedly, one could argue that this purposive line of reasoning takes us too far from the statutory language of s.35, where there is no trace of this ‘last resort’ nature of the power. But this objection would miss the point: on the one hand, because the question of the adequate intensity of judicial review of a statutory power is one which is not decided by courts exclusively on the basis of textual inputs; on the other, because any legislative provision might have to be read in light of its co-text, which ranges from other provisions in the same statute, to relevant provisions in other statutes, all the way to constitutional principles which are engaged by the application of the provision in question. 

Conclusion

In my view, then, the crucial oversight in Lady Haldane’s reasoning and Foran’s endorsement of it lies in the failure to appreciate the difference between the presence of the s.35 power in the legislative scheme of the devolution constitutional settlement as opposed to the possibility of its actual exercise. More precisely, the reasons to have this kind of emergency veto power as part of the devolution framework are different from – and arguably directly run against – the reasons in favour of exercising it, and demand stricter scrutiny by courts than that carried out in Re Scottish Minister’s Petition.

The court’s approach to the intensity of review, to be sure, is not freestanding: it is the product of an interpretation of the s.35 powers and of the devolution settlement more generally which appears rooted in the orthodox, old-fashioned theory of parliamentary sovereignty and in a centralist vision of the constitutional division of labour between UK and devolved institutions. But this interpretation does not seem the only one available, nor arguably the one most within the spirit of the whole devolution arrangements as they exist. 

For it appears very hard to reconcile the legitimacy of the decisions of an elected Parliament which is a ‘permanent part of the United Kingdom’s constitutional arrangements’ with the possibility that its competences might be further hollowed out by the regular exercise of a highly discretionary executive gatekeeping power, as the one established by s.35, ‘coupled’ with ordinary intensity review by courts. One should not forget, in fact, that the decision in Re Scottish Minister’s Petition takes place in a legal and political context where the conventions protecting the integrity of devolved competences are increasingly set aside by the UK government post-Brexit.

Once again, if one adopts a binary code of ‘independent/non-independent’ like the Outer House and Foran do, both the presence and the exercise – even regular exercise – of the s.35 power appears unproblematic. Scotland is clearly not an independent country. But if the constitutional devolution settlement is supposed to meaningfully address historical demands for Scottish independence – as the aftermath of the 2014 Scottish independence referendum indicates – then the exercise of the s.35 power cannot be allowed to betray its colonial roots and is to be avoided at all costs; or, at least, is to be scrutinised by courts more intensely than was done by the Outer House in Re Scottish Minister’s Petition.

My gratitude goes to Anurag Deb for extensive discussion on these matters, and to the editors of this blog Paul Scott and Se-shauna Wheatle for really helpful comments on previous versions of this blog. I also greatly benefitted from the depth of research in the House of Commons Library Research Briefing (11 December 2023) ‘The Secretary of State’s veto and the Gender Recognition Reform (Scotland) Bill’ by David Torrance and Doug Pyper.

Paolo Sandro, Lecturer in Law at the University of Leeds.

(Suggested citation: P. Sandro, ‘Devolution and the Phantom Menace: An alternative view on the appropriate intensity of judicial scrutiny of the s.35 Scotland Act 1998 order’, U.K. Const. L. Blog (20th December 2023) (available at https://ukconstitutionallaw.org/))

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