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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
  13. Chapter twelve: The governance of Scotland and Wales
    1. The Scotland Act 1998 s.1; s.28; s.29; s.101
    2. The Sewel Convention House of Lords Debates 21 July 1998 c. 791
    3. Martin v Most [2010] UKSC 10; 2010 SC (UKSC) 40
    4. AXA General Insurance v The Lord Advocate [2011] UKSC 46; [2012] 1 AC 868
    5. Imperial Tobacco v Lord Advocate [2012] UKSC 61; 2013 SC (UKSC) 153
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
  15. Chapter fourteen: Procedural grounds of judicial review
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

Martin v Most [2010] UKSC 10; 2010 SC (UKSC) 40

Lord Hope......

[5] The question whether an Act of the Scottish Parliament is within the legislative competence of the Parliament is a devolution issue ( sch 6, para 1(a) ). So it is for the courts to decide whether an Act which is challenged is within or outside competence. But the judicial function in this regard has been carefully structured. It is not for the judges to say whether legislation on any particular issue is better made by the Scottish Parliament at Holyrood or by the UK Parliament at Westminster. How that issue is to be determined has already been addressed by the legislators. It must be decided according to particular rules that the Scotland Act 1998 has laid down. But those rules, just like any other rules, have to be interpreted. That is the court's function. It is for the court to say what the rules mean and how, in a case such as this, they must be applied in order to resolve the issue whether the measure in question was within competence.

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Legislative competence rules

[11] The scheme of devolution of legislative power which the Scotland Act sets out recognises that it was not possible, if a workable system was to be created, for reserved and devolved areas to be divided into precisely defined, watertight compartments. Some degree of overlap was inevitable, for the reasons explained by Lord Rodger in his discussion of the division of responsibility on matters of policy (see paras 73, 74). This is a familiar phenomenon in the case of federal systems such as those in Canada and Australia, where legislative competence is divided between the Dominion and the Provinces or the Commonwealth and the States. In Prafulla Kumar Mukherjee v Bank of Commerce Ltd, Khulna the Judicial Committee rejected the argument that the principles which obtain in Canada and Australia had no application in India. Lord Porter gave this explanation (p 42):

'It is not possible to make so clean a cut between the powers of various legislatures: they are bound to overlap from time to time.'

The rule that was evolved by the Judicial Committee was to examine the statute that was impugned to ascertain its 'pith and substance', or its 'true nature and character', to determine whether it was legislation 'with respect to' matters that were in the prohibited or permitted sphere. The phrase 'pith and substance' was first used by Lord Watson in Union Colliery Co of British Columbia Ltd v Bryden (p 587). The phrase 'true nature and character' was first used in Russell v The Queen (pp 839, 840). The principles that these phrases embody are sometimes referred to, by a word that went out of fashion in mediaeval times, as the 'respection' doctrine.

[12] In Prafulla Kumar Mukherjee v Bank of Commerce Ltd, Khulna having referred to the rule and found that it applied to Indian as well as Dominion legislation, Lord Porter went on to say this (p 43):

'No doubt experience of past difficulties has made the provisions of the Indian Act more exact in some particulars ... But the overlapping of subject-matter is not avoided by substituting three lists for two, or even by arranging for a hierarchy of jurisdictions. Subjects must still overlap, and where they do the question must be asked what in pith and substance is the effect of the enactment of which complaint is made, and in what list is its true nature and character to be found. If these questions could not be asked, much beneficent legislation would be stifled at birth, and many of the subjects entrusted to provincial legislation could never effectively be dealt with.'

[13] The same point had already been made by Lord Atkin in Gallagher v Lynn , which was an appeal from Northern Ireland. Section 4 of the Government of Ireland Act 1920 (10 & 11 Geo 5 cap 67) provided that the Parliament of Northern Ireland had power to make laws for the peace, order and good government of Northern Ireland, but not to make laws in respect of, among other things, trade with any place out of Northern Ireland. He held that an Act regulating the supply of milk in Northern Ireland which imposed controls on every person who within Northern Ireland sold or exposed for sale milk, whether produced within or without the territory of Northern Ireland, was a law for the peace, order and good government of Northern Ireland in respect of precautions taken to secure the health of its inhabitants, not a law in respect of trade. Explaining what was meant by the 'pith and substance' doctrine, he said (p 870):

'If, on the view of the statute as a whole, you find that the substance of the legislation is within the express powers, then it is not invalidated if incidentally it affects matters which are outside the authorized field. The legislation must not under the guise of dealing with one matter in fact encroach upon the forbidden field. Nor are you to look only at the object of the legislator. An Act may have a perfectly lawful object, eg to promote the health of the inhabitants, but may seek to achieve that object by invalid methods, eg a direct prohibition of any trade with a foreign country.'

[14] The rule that was evolved and applied in these cases, among others, provides the background to the scheme that is now to be found in the Scotland Act . It was referred to at the committee stage in the House of Lords by Lord Sewel ( Hansard , HL vol 592, cols 818 et seq (21 July 1997) ). The scheme seeks to give effect to the rule. Lord Sewel, recognising that a degree of trespass into reserved areas was inevitable, said that it was intended that any argument as to whether a provision in an Act of the Scottish Parliament 'relates' to a reserved matter must be decided by reference to its 'pith and substance' or its purpose and if its purpose is a devolved one it is not to be outside legislative competence merely because it affects a reserved matter (col 819).

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[18] The question whether a provision 'relates to' a reserved matter in terms of sec 29(2)(b) is to be determined by reference to the purpose of the provision, applying the rule set out in sec 29(3) . This rule lays down the primary test of what is meant by 'purpose'. But it is necessary to have regard also to sec 29(4) which deals with a special category of overlap between reserved matters and matters which are not reserved that is in point in this case. This is because sec 126(5) of the 1998 Act provides that references in the Act to Scots criminal law include criminal offences, jurisdiction, evidence, procedure and penalties and the treatment of offenders, and because sec 45 of the 2007 Act deals with what the head-note to Pt 3 of that Act refers to as 'penalties'.

[19] The list of reserved matters has been drawn up by reference to different aspects of executive or governmental responsibility. But the spheres of activity embraced by Scots private law and Scots criminal law, which are not reserved, do not respect those boundaries. They extend across all of them. The regulation of both devolved matters and reserved matters within Scotland is likely to involve questions of Scots private law and Scots criminal law. Section 29(4) does not apply if, applying the test laid down by sec 29(2) , the provision in question has already been found otherwise to 'relate to' a reserved matter. That is the effect of para (a) of this subsection. It does apply, however, if it makes modifications of Scots private law or Scots criminal law as it applies to reserved matters ( para (b) ). Here too the boundary between what is reserved and what is not reserved is to be determined by applying a 'purpose' test. The key word here is 'consistently'. If the purpose is to make the relevant rule of Scots criminal law apply consistently to reserved matters and otherwise, it will pass the test. The provision will not then fall to be treated as relating to a reserved matter, and thus outside the legislative competence, because it is caught by sec 29(2)(b).

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What was the 'purpose' of sec 45?

[25] Section 29(3) of the 1998 Act provides that, when consideration is being given to the 'purpose' of the provision, regard is to be had to its effect 'in all the circumstances'. One of the circumstances to which it is proper to have regard is the situation before the provision was enacted, which it was designed to address. Reports to and papers issued by the Scottish Ministers prior to the introduction of the Bill, explanatory notes to the Bill, the policy memorandum that accompanied it and statements by Ministers during the proceedings in the Scottish Parliament may all be taken into account in this assessment.

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[31] In my opinion this material shows conclusively that the purpose of sec 45 of the 2007 Act was to contribute to the reform of the summary justice system by reducing pressure on the higher courts. An increase in the sentencing powers of sheriffs when they were dealing with statutory offences was seen as a necessary part of this process. The jurisdiction of the sheriff sitting summarily is defined by reference to the penalties that the sheriff can impose. These are pre-eminently matters of Scots criminal law (see 1998 Act, sec 126(5) ). As it was to a rule of Scots criminal law that the provision was directed, I would hold that it does not relate to a reserved matter within the meaning of sec 29(2)(b) .

Was it to make the law apply 'consistently'?

[32] Section 45 of the 2007 Act forms part of a group of sections, all directed to a reform - or modification - of the sentencing powers of the sheriff sitting summarily. The leading provision is sec 43 , which increased the maximum sentence for common law offences from three (or, in the case of some repeat offences, six) months to 12 months. It is obvious however that to have left the matter there would have led to an imbalance in the system between how common law offences were to be dealt with on the one hand and how statutory offences were to be dealt with on the other. The reform that this would have achieved would have been incomplete and confusing. To achieve its object it had to be extended across the board to statutory offences as well.

[33] To draw a line between statutory offences relating to reserved matters and those relating to matters that were not reserved would have been even more confusing. When they were dealing with an offence created by a UK statute, prosecutors and sheriffs would have had to check in each case whether they were on the right side of the line. Statutory offences of all kind form a large part of the diet of the summary courts. To achieve a complete and worthwhile reform of the summary justice system a modification of the sentencing power across the whole range of statutory offences was required. In my opinion the purpose of the modification in sec 45 must be taken to have been to make the law relating to the increased sentencing power of the sheriff sitting summarily apply consistently to reserved matters and otherwise. I would hold that sec 45 is not to be treated as relating to a reserved matter under sec 29(4).......

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