Statutory interpretation and legislative competence: section 101 of the Scotland Act 1998

A public lawyer at the Scottish Bar tells of the first time that they invited the Court of Session to strike down an Act of the Scottish Parliament (ASP) on the basis that it was ultra vires in terms of section 29 of the Scotland Act 1998. According to that provision an ASP ‘is not law’ – and therefore may be declared by the courts to be invalid – where, inter alia, it ‘relates to’ a matter reserved to the United Kingdom (UK) Parliament, is incompatible with the European Convention on Human Rights (ECHR) or is incompatible with EU law. In the words of Ewing and Dale-Risk, the 1998 Act created a ‘clear and unambiguous power (and duty) to strike down legislation passed by a democratically elected Parliament.’ Yet when, in the early days of devolution, our protagonist asked the Court to do just that the response from the bench was somewhat sceptical: ‘we can’t do that…can we?’ So alien to judicial culture in the UK was the role of courts to review the validity of primary legislation that not even the explicit instruction to do so in the Scotland Act was comfort enough for some members of the judiciary at that time to avail themselves of that power.