BROWN PAPER: Challenging Section 35 Scotland Act 1998 Orders
Some thoughts on the potential grounds of challenge the Section 35 order could face.
Introduction
This post is the result of a very late night debate on Twitter a couple of nights ago (not on my TheLawDrafter account) about how challenges to the exercise, by the Secretary of State, of the power in section 35 of the Scotland Act 1998 might be framed and pursued.1 To note, references to “Bill” in this post relate to a Bill of the Scottish Parliament and not a Westminster Bill.
Much of the debate centred on whether or not the fact the effect of a section 35 is effectively a veto on the exercise of a democratic power by a democratically elected body has any relevance to the statutory test which must be met before the power can be exercised. (At least that’s my understanding of the debate, but it was in the early hours of the morning - that said, it doesn’t really matter, because it still gives a nice “problem question” to explore the interaction between statutory interpretation and wider public law).
In my view, it does not - and I will try to explain why I think that in this post. As you will see, I do think the veto context is relevant and could feature in a judgment, but I don’t think it impacts on whether the condition precedents for the power are met. This post is intended to look at challenges which could be put at the “high level” rather than engaging in any consideration of the merits of whether or not the particular Bill does meet the threshold for the power to be engaged.
It goes without saying, though, this is novel territory and all of us who are expressing opinions are doing our best to do so using general principles; there is scope for perfectly valid disagreement as to how the arguments could/should be run and how this will eventually play out.
The power
I’m sure people are already sick of seeing the power being set out, but it is still useful to have it here so you are able to have it in mind as you read the rest of this post.
35 Power to intervene in certain cases.
(1)If a Bill contains provisions—
(a)which the Secretary of State has reasonable grounds to believe would be incompatible with any international obligations or the interests of defence or national security, or
(b)which make modifications of the law as it applies to reserved matters and which the Secretary of State has reasonable grounds to believe would have an adverse effect on the operation of the law as it applies to reserved matters,
he may make an order prohibiting the Presiding Officer from submitting the Bill for Royal Assent.
(2)The order must identify the Bill and the provisions in question and state the reasons for making the order.
(3)The order may be made at any time during—
(a)the period of four weeks beginning with the passing of the Bill,
(b)any period of four weeks beginning with any approval of the Bill in accordance with standing orders made by virtue of section 36(5),
(c)if a reference is made in relation to the Bill under section 232A(2)(b) or 33, the period of four weeks beginning with the reference being decided or otherwise disposed of by the Supreme Court.
(4)The Secretary of State shall not make an order in relation to a Bill if he has notified the Presiding Officer that he does not intend to do so, unless the Bill has been approved as mentioned in subsection (3)(b) since the notification.
(5)An order in force under this section at a time when such approval is given shall cease to have effect.2
The power is exercised by statutory instrument which is subject to annulment by a resolution of either the House of Commons or the House of Lords. This is relevant on the political level because it is open to those members of the Houses who do not agree this is a correct use of section 35 to seek to annul the order.
It is not relevant to the discussion in this post, however, because I’m concerned with the grounds that might be advanced to challenge the use of section 35.
The exercise of the power in these circumstances
The section 35 order which was made is made under subsection 1(b), in other words
If a Bill contains provisions which make modifications of the law as it applies to reserved matters and which the Secretary of State has reasonable grounds to believe would have an adverse effect on the operation of the law as it applies to reserved matters, he may make an order prohibiting the Presiding Officer from submitting the Bill for Royal Assent.
The first step is to try to understand what subsection 1(b) means and how it operates in the wild. The correct approach to statutory interpretation has recently been authoritatively restated by Lord Hodge DPSC in O (a minor), R (on the application of v Secretary of State for the Home Department, at [29] to [31]
The courts in conducting statutory interpretation are “seeking the meaning of the words which Parliament used”: Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591, 613 per Lord Reid of Drem. More recently, Lord Nicholls of Birkenhead stated:
“Statutory interpretation is an exercise which requires the court to identify the meaning borne by the words in question in the particular context.”
(R v Secretary of State for the Environment, Transport and the Regions, Ex p Spath Holme Ltd [2001] AC 349, 396). Words and passages in a statute derive their meaning from their context. A phrase or passage must be read in the context of the section as a whole and in the wider context of a relevant group of sections. Other provisions in a statute and the statute as a whole may provide the relevant context. They are the words which Parliament has chosen to enact as an expression of the purpose of the legislation and are therefore the primary source by which meaning is ascertained. There is an important constitutional reason for having regard primarily to the statutory context as Lord Nicholls explained in Spath Holme, 397:
“Citizens, with the assistance of their advisers, are intended to be able to understand parliamentary enactments, so that they can regulate their conduct accordingly. They should be able to rely upon what they read in an Act of Parliament.”
External aids to interpretation therefore must play a secondary role. Explanatory notes, prepared under the authority of Parliament, may cast light on the meaning of particular statutory provisions. Other sources, such as Law Commission reports, reports of Royal Commissions and advisory committees, and Government White Papers may disclose the background to a statute and assist the court to identify not only the mischief which it addresses but also the purpose of the legislation, thereby assisting a purposive interpretation of a particular statutory provision. The context disclosed by such materials is relevant to assist the court to ascertain the meaning of the statute, whether or not there is ambiguity and uncertainty, and indeed may reveal ambiguity or uncertainty: Bennion, Bailey and Norbury on Statutory Interpretation, 8th ed (2020), para 11.2. But none of these external aids displace the meanings conveyed by the words of a statute that, after consideration of that context, are clear and unambiguous and which do not produce absurdity. In this appeal the parties did not refer the court to external aids, other than explanatory statements in statutory instruments, and statements in Parliament which I discuss below. Sir James Eadie QC for the Secretary of State submitted that the statutory scheme contained in the 1981 Act and the 2014 Act should be read as a whole.
Statutory interpretation involves an objective assessment of the meaning which a reasonable legislature as a body would be seeking to convey in using the statutory words which are being considered. Lord Nicholls, again in Spath Holme, 396, in an important passage stated:
“The task of the court is often said to be to ascertain the intention of Parliament expressed in the language under consideration. This is correct and may be helpful, so long as it is remembered that the ‘intention of Parliament’ is an objective concept, not subjective. The phrase is a shorthand reference to the intention which the court reasonably imputes to Parliament in respect of the language used. It is not the subjective intention of the minister or other persons who promoted the legislation. Nor is it the subjective intention of the draftsman, or of individual members or even of a majority of individual members of either House. … Thus, when courts say that such-and-such a meaning ‘cannot be what Parliament intended’, they are saying only that the words under consideration cannot reasonably be taken as used by Parliament with that meaning.”3
So, the first thing to do is to work through the wording of the subsection and consider if it has a clear an unambiguous meaning. If it does, then the exercise ends there.
The subsection has two parts to it:
first, the conditions that need to be met:
If a Bill contains provisions which make modifications of the law as it applies to reserved matters and which the Secretary of State has reasonable grounds to believe would have an adverse effect on the operation of the law as it applies to reserved matters
and
second, what happens when they are:
he may make an order prohibiting the Presiding Officer from submitting the Bill for Royal Assent.
The conditions can be separated into a two-stage test which can be expressed by two questions:
Does the Bill contain provisions which modify the law as it applies to reserved matters?
Are there reasonable grounds for the Secretary of State to believe those modifications would have an adverse effect on the operation of the law as it applies to reserved matters, and does the Secretary of State hold that belief?
If the answer to question 1 is “no” there is no reason to consider question 2.
Potential grounds of challenge
The first point to make is that, because this order is secondary legislation, it is amenable to judicial review. It’s fair to say that was common ground in the Twitter debate. The question then, is what grounds can be advanced in challenge to the relevant order?
Ground 1: The Bill does not contain provisions which make modifications of the law as it applies to reserved matters, the order is therefore unlawful
This ground would involve argument over the scope and effect of the Bill in question. There are two main ways in which this argument could be advanced:
The proper reading of section 35 is such that the power is only engaged where the Bill amends, repeals or modifies a piece of legislation which is in the scope of a reserved matter;
The Bill does not modify the law as it applies to reserved matters.
The proper reading of section 35 is such that the power is only engaged where the Bill amends, repeals or modifies a piece of legislation which is in the scope of a reserved matter
This argument, if advanced is likely, in my view, to fail as a matter of statutory interpretation. As mentioned by Scott Wortley here
“modify” is a defined term within the Scotland Act 1998.4 The definition is an "expanding" definition, adding things into the meaning which it wouldn't ordinarily be thought to include. In this particular circumstance, the definition is expanded to include "amendments and repeals". The reason for this is likely ease of drafting of the Scotland Act 1998; "modification" in legislative drafting terms usually means applying a piece of legislation to another situation and changing how it operates just for that situation - the legislation itself is left un-amended and un-repealed. Writing "modifies, amends or repeals" each time would be tedious and over the course of the Act could add pages of unnecessary text.
Not only does the definition show “modify” is likely to be wider than changes to the text of legislation, the following wording makes that clear. Subsection 1(b) refers to modification “of the law as it applies to reserved matters”. The “law” is wider than legislation and brings within it case law.
The proper reading (so far) of subsection 1(b) is, therefore, likely to be the Bill amends, repeals or modifies the law rather than any particular piece of legislation. However, the analysis does not end there because the expanded definition coupled with “law” is, on its own, only capable of supporting a reading that the Bill does not need to directly touch a piece of legislation; it could, for example, be caught, if it overturned case law in an area of reserved matters.
In order to fully understand subsection 1(b) we need to focus on what is meant by “as it applies to reserved matters”. As section 35 has never been used before, there isn’t any cases on how to construe the wording in this section. However, there are a couple of cases which consider the wording “as it applies to reserved matters” in section 29(4).5
Section 29(4) sets out
A provision which—
(a)would otherwise not relate to reserved matters, but
(b)makes modifications of Scots private law, or Scots criminal law, as it applies to reserved matters,
is to be treated as relating to reserved matters unless the purpose of the provision is to make the law in question apply consistently to reserved matters and otherwise.
Both judgments consider a change by Scottish legislation to the summary jurisdiction of the Sheriff which impacts on the prosecution of offenders for offences contrary to the Road Traffic Act 1988. The Road Traffic Act 1998 (and the Road Traffic Offenders Act 1988) are reserved matters. Both judgments essentially conclude (on this point) the Scottish legislation is within the legislative competence of the Scottish Parliament because the changes it makes also apply to criminal offences which are not a reserved matter.
From this we can draw the conclusion that, in section 29(4), the phrase “as it applies to reserved matters” captures Scottish legislation which does not amend or modify the reserved matter law but modifies how that law then applies.
Jumping back to the restatement of the principles of statutory interpretation, we are able to rely on the interpretation of wording in one part of an Act as an aid to construction in a different part.
Drawing all that together, the proper reading of the section is more likely to be that a Bill which has the potential to alter how the law in the area of a reserved matter applies is caught.
The Bill does not modify the law as it applies to reserved matters.
The second potential argument is that the effect of the Bill is not to modify the law as it applies to reserved matters because it does not change how the law relating to those particular matters applies.
The result of this argument would depend on the construction of the particular Bill which the section 35 order was made in respect of. If, on the proper construction of the Bill, there was no impact on the law as it applies to reserved matters then the first condition in subsection 1(b) of section 35 is not met and the order would be unlawful. If, however, the proper construction of the Bill is such that the application of the law on a reserved matter is altered then the ground of challenge would fail and ground 2 would then need to be considered.
Ground 2: There are no reasonable grounds for the Secretary of State to believe the Bill would have an adverse effect on the operation of the law as it applies to reserved matters
This is the part of the section the Twitter debate centred on. In a nutshell, the point of debate was whether or not the context that a section 35 order is effectively a veto on legislation passed by a democratically elected body is a relevant consideration for determining if this part of the two-stage test in the legislation is met.6
Again, there is no judgment about the wording in the context of section 35 but there are other arenas in which a similar test has been considered that we can use to help inform a view on what the legislation here requires. Because of my background, the cases I will be drawing on here are cases from the law enforcement arena. The phrase “reasonable grounds to believe” pops up regularly in legislation granting powers to law enforcement agencies.
One such place is part of the conditions for the exercise of the power of arrest without warrant in section 24 of the Police and Criminal Evidence Act 1984.7 Subsection 4 constrains the power of summary arrest by imposing a condition that it
is exercisable only if the constable has reasonable grounds for believing that for any of the reasons mentioned in subsection (5) it is necessary to arrest the person in question.
The question as to what “reasonable grounds for believing” means was considered in Hayes v Merseyside Police.8 It was submitted (at [21]), on behalf of Merseyside Police, that the correct formulation of the test is
(i) that the constable actually believed that arrest was necessary, and for a subsection (5) reason; and
(ii) that objectively that belief was reasonable.
This was held to be the correct test and has formed the basis of subsequent decisions. There remained some discussion as to whether the standard to be applied to “reasonable” was the Wednesbury standard which was settled in B & Ors (Former Soldiers) v Police Service of Northern Ireland at [23]:
We find no support for this contention in the recent authorities. Their effect is that the appropriate test is the two-stage one identified in Hayes. That approach incorporates the Wednesbury principle of review via the concept of reasonable grounds, brought forward from the previous law and extended to the new general requirement of necessity (see Hayes at paragraph 15 and Joshua Shields (by his litigation friend Rebecca Shields) v Chief Constable of Merseyside Police [2010] EWCA Civ 1281 at paragraph 13). There is no separate or overarching review based on Wednesbury principles to be carried out. The objective second limb of the test encompasses the concept of Wednesbury reasonableness.9
As we can see, these cases all focus on whether the belief of the officer that an arrest was necessary was based on reasonable grounds. This was confirmed in R (oao TL) v Surrey Police at [39]:
The first limb of the test is subjective. Mr Summers did not submit that DC Andreas did not have the requisite honest belief. Insofar as the second limb deploys the adverb "objectively", all that means is that this Court, in the exercise of its judicial function, applies independent, objective standards to its review of the Defendant's decision: in particular, the reasonableness of the grounds upon which that decision was founded. That review is carried out on the basis of information known to the decision-maker at the time it was made. Finally, the Court does not ask itself whether any police officer could rationally have made the decision under challenge; it directs itself to the particular decision maker and his grounds.10
So, what does all that mean for the section 35(1)(b) Scotland Act 1998? Well, we can draw on the reasoning in those cases to help understand what the test is in section 35. If we swap “arrest was necessary” to “will have an adverse effect on the operation of the law as it applies to reserved matters” and apply statement in R (oao TL) v Surrey Police to it that leaves us with:
The Secretary of State needing to have a belief the Bill will have an adverse effect on the operation of the law as it applies to reserved matters - this is a subjective test
The grounds on which the Secretary of State based that belief being objectively reasonable - this is an objective test of the grounds actually relied on, not what others might have chosen to rely on
Coming back to what this started - does the fact the effect of an order being issued is to veto the legislation of a democratically elected body impact on whether or not the second limb of the two-stage test has been met?
In my view, no, it doesn’t. The wording of the legislation provides the tramlines of what needs to be considered - and that starts, and ends, with whether the Bill will have an adverse effect on the operation of the law as it applies to reserved matters.
The section 35 order must contain a statement of reasons for making it. It is likely, therefore, that in any challenge to a section 35 order on this ground the court will assess the reasons set out in it and will decide whether they are reasonable. If, objectively, they are then the ground will fail.
Ground 3: Notwithstanding the power was available, the Secretary of State should not have exercised their discretion in favour of making the order
This ground is the ground where I think the impact of the order does become relevant. This argument could be put on the basis that although there is an adverse impact on the law as it applies to reserved matters it is such a triffling impact that no reasonable person could, acting reasonably, form the view that it was worth intervening in the democratic process.
Final thoughts
One other thing we may see come into play is standing. Should the challenge be brought by the Scottish Government or the Scottish Parliamentary corporation acting on behalf of the Scottish Parliament?
Whatever happens, this will be an interesting case to watch and it could have far reaching consequences. 2023 is not going to be that boring, quiet, calm year we were all hoping for.
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At some point in the debate, Acts of the Scottish Parliament were referred to as “primary legislation”. As I have been writing this post doubts have begun to creep into my head as to whether that is an accurate description given the source of their authority is itself statutory but that is currently an interesting thought piece and one I really don’t know where my view will end up on.