United Kingdom 1215 Constitution (reviewed 2013)

Part III. General Provisions

Subheading 1. Scottish public authorities

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1. This Schedule does not reserve any Scottish public authority if some of its functions relate to reserved matters and some do not, unless it is a cross-border public authority.
2. Sub-paragraph (1) has effect as regards—
   1. the constitution of the authority, including its establishment and dissolution, its assets and liabilities and its funding and receipts,
   2. conferring or removing any functions specifically exercisable in relation to the authority.
3. Sub-paragraph (2)(b) does not apply to any function which is specifically exercisable in relation to a particular function of the authority if the particular function relates to reserved matters.
4. An authority to which this paragraph applies is referred to in this Act as a Scottish public authority with mixed functions.

1. Paragraph 1 of Part I of this Schedule does not reserve any Scottish public authority with functions none of which relate to reserved matters (referred to in this Act as a Scottish public authority with no reserved functions).

Subheading 2. Reserved bodies

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1. The reservation of any body to which this paragraph applies has effect to reserve—
   1. its constitution, including its establishment and dissolution, its assets and liabilities and its funding and receipts,
   2. conferring functions on it or removing functions from it,
   3. conferring or removing any functions specifically exercisable in relation to it.
2. This paragraph applies to—
   1. a body reserved by name by Part II of this Schedule,
   2. each of the councils reserved by Section C12 of that Part,
   3. the Commission for Racial Equality, the Equal Opportunities Commission and the Disability Rights Commission.
   4. the Commission for Equality and Human Rights.

Subheading 3. Financial assistance to industry

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1. This Schedule does not reserve giving financial assistance to commercial activities for the purpose of promoting or sustaining economic development or employment.
2. Sub-paragraph (1)—
   1. does not apply to giving financial assistance to any activities in pursuance of a power exercisable only in relation to activities which are reserved,
   2. does not apply to Part I of this Schedule, except paragraph 9, or to a body to which paragraph 3 of this Part of this Schedule applies,
   3. is without prejudice to the exceptions from the reservations in Sections C11, E2 and E3 of Part II of this Schedule.
3. Sub-paragraph (1) does not affect the question whether any matter other than financial assistance to which that sub-paragraph applies is reserved.

Subheading 4. Interpretation

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1. References in this Schedule to the subject-matter of any enactment are to be read as references to the subject-matter of that enactment as it has effect on the principal appointed day or, if it ceased to have effect at any time within the period ending with that day and beginning with the day on which this Act is passed, as it had effect immediately before that time.
2. Subordinate legislation under section 129(1) may, in relation to the operation of this Schedule at any time before the principal appointed day, modify the references to that day in sub-paragraph (1).

Schedule 6. Devolution issues

Part I. Preliminary

1. In this Schedule “devolution issue” means—
   1. a question whether an Act of the Scottish Parliament or any provision of an Act of the Scottish Parliament is within the legislative competence of the Parliament,
   2. a question whether any function (being a function which any person has purported, or is proposing, to exercise) is a function of the Scottish Ministers, the First Minister or the Lord Advocate,
   3. a question whether the purported or proposed exercise of a function by a member of the Scottish Executive is, or would be, within devolved competence,
   4. a question whether a purported or proposed exercise of a function by a member of the Scottish Executive is, or would be, incompatible with any of the Convention rights or with EU law,
   5. a question whether a failure to act by a member of the Scottish Executive is incompatible with any of the Convention rights or with EU law,
   6. any other question about whether a function is exercisable within devolved competence or in or as regards Scotland and any other question arising by virtue of this Act about reserved matters.

   But a question arising in criminal proceedings in Scotland that would, apart from this paragraph, be a devolution issue is not a devolution issue if (however formulated) it relates to the compatibility with any of the Convention rights or with EU law of-

   1. an Act of the Scottish Parliament or any provision of an Act of the Scottish Parliament,
   2. a function,
   3. the purported or proposed exercise of a function,
   4. a failure to act.
2. A devolution issue shall not be taken to arise in any proceedings merely because of any contention of a party to the proceedings which appears to the court or tribunal before which the proceedings take place to be frivolous or vexatious.

Part II. Proceedings in Scotland

Subheading 1. Application of Part II

1. This Part of this Schedule applies in relation to devolution issues in proceedings in Scotland.

Subheading 2. Institution of proceedings

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1. Proceedings for the determination of a devolution issue may be instituted by the Advocate General or the Lord Advocate.
2. The Lord Advocate may defend any such proceedings instituted by the Advocate General.
3. This paragraph is without prejudice to any power to institute or defend proceedings exercisable apart from this paragraph by any person.

Subheading 3. Intimation of devolution issue

1. Intimation of any devolution issue which arises in any proceedings before a court or tribunal shall be given to the Advocate General and the Lord Advocate (unless the person to whom the intimation would be given is a party to the proceedings).
2. A person to whom intimation is given in pursuance of paragraph 5 may take part as a party in the proceedings, so far as they relate to a devolution issue.

Subheading 4. Reference of devolution issue to higher court

1. A court, other than the Supreme Court or any court consisting of three or more judges of the Court of Session, may refer any devolution issue which arises in proceedings (other than criminal proceedings) before it to the Inner House of the Court of Session.
2. A tribunal from which there is no appeal shall refer any devolution issue which arises in proceedings before it to the Inner House of the Court of Session; and any other tribunal may make such a reference.
3. A court, other than any court consisting of two or more judges of the High Court of Justiciary, may refer any devolution issue which arises in criminal proceedings before it to the High Court of Justiciary.

Subheading 5. References from superior courts to Supreme Court

1. Any court consisting of three or more judges of the Court of Session may refer any devolution issue which arises in proceedings before it (otherwise than on a reference under paragraph 7 or 8) to the Supreme Court.
2. Any court consisting of two or more judges of the High Court of Justiciary may refer any devolution issue which arises in proceedings before it (otherwise than on a reference under paragraph 9) to the Supreme Court.

Subheading 6. Appeals from superior courts to Supreme Court

1. An appeal against a determination of a devolution issue by the Inner House of the Court of Session on a reference under paragraph 7 or 8 shall lie to the Supreme Court.
2. An appeal against a determination of a devolution issue by—
   1. a court of two or more judges of the High Court of Justiciary (whether in the ordinary course of proceedings or on a reference under paragraph 9), or
   2. a court of three or more judges of the Court of Session from which there is no appeal to the Supreme Court apart from this paragraph,

   shall lie to the Supreme Court, but only with permission of the court from which the appeal lies or, failing such permission, with permission of the Supreme Court.

3. In criminal proceedings, an application to the High Court for permission under paragraph 13 must be made—
   1. within 28 days of the date of the determination against which the appeal lies, or
   2. within such longer period as the High Court considers equitable having regard to all the circumstances.
4. In criminal proceedings, an application to the Supreme Court for permission under paragraph 13 must be made—
   1. within 28 days of the date on which the High Court refused permission under that paragraph, or
   2. within such longer period as the Supreme Court considers equitable having regard to all the circumstances.

Part III. Proceedings in England and Wales

Subheading 1. Application of Part III

1. This Part of this Schedule applies in relation to devolution issues in proceedings in England and Wales.

Subheading 2. Institution of proceedings

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1. Proceedings for the determination of a devolution issue may be instituted by the Attorney General.
2. The Lord Advocate may defend any such proceedings.
3. This paragraph is without prejudice to any power to institute or defend proceedings exercisable apart from this paragraph by any person.

Subheading 3. Notice of devolution issue

1. A court or tribunal shall order notice of any devolution issue which arises in any proceedings before it to be given to the Attorney General and the Lord Advocate (unless the person to whom the notice would be given is a party to the proceedings).
2. A person to whom notice is given in pursuance of paragraph 16 may take part as a party in the proceedings, so far as they relate to a devolution issue.

Subheading 4. Reference of devolution issue to High Court or Court of Appeal

1. 1. A magistrates’ court may refer any devolution issue which arises in proceedings (other than criminal proceedings) before it to the High Court.

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1. 1. A court may refer any devolution issue which arises in proceedings (other than criminal proceedings) before it to the Court of Appeal.
   2. Sub-paragraph (1) does not apply to—
      1. a magistrates’ court, the Court of Appeal or the Supreme Court, or
      2. the High Court if the devolution issue arises in proceedings on a reference under paragraph 18.
2. A tribunal from which there is no appeal shall refer any devolution issue which arises in proceedings before it to the Court of Appeal; and any other tribunal may make such a reference.
3. A court, other than the Supreme Court or the Court of Appeal, may refer any devolution issue which arises in criminal proceedings before it to—
   1. the High Court (if the proceedings are summary proceedings), or
   2. the Court of Appeal (if the proceedings are proceedings on indictment).

Subheading 5. Appeals from superior courts to Supreme Court

1. An appeal against a determination of a devolution issue by the High Court or the Court of Appeal on a reference under paragraph 18, 19, 20 or 21 shall lie to the Supreme Court, but only with permission of the High Court or (as the case may be) the Court of Appeal or, failing such permission, with permission of the Supreme Court.

Part IV. Proceedings in Northern Ireland

Subheading 1. Application of Part IV

1. This Part of this Schedule applies in relation to devolution issues in proceedings in Northern Ireland.

Subheading 2. Institution of proceedings

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1. Proceedings for the determination of a devolution issue may be instituted by the Advocate General for Northern Ireland.
2. The Lord Advocate may defend any such proceedings.
3. This paragraph is without prejudice to any power to institute or defend proceedings exercisable apart from this paragraph by any person.

Subheading 3. Notice of devolution issue

1. A court or tribunal shall order notice of any devolution issue which arises in any proceedings before it to be given to the Advocate General for Northern Ireland and the Lord Advocate (unless the person to whom the notice would be given is a party to the proceedings).
2. A person to whom notice is given in pursuance of paragraph 26 may take part as a party in the proceedings, so far as they relate to a devolution issue.

Subheading 4. Reference of devolution issue to Court of Appeal

1. A court, other than the Supreme Court or the Court of Appeal in Northern Ireland, may refer any devolution issue which arises in any proceedings before it to the Court of Appeal in Northern Ireland.
2. A tribunal from which there is no appeal shall refer any devolution issue which arises in any proceedings before it to the Court of Appeal in Northern Ireland; and any other tribunal may make such a reference.

Subheading 5. References from Court of Appeal to Supreme Court

1. The Court of Appeal in Northern Ireland may refer any devolution issue which arises in proceedings before it (otherwise than on a reference under paragraph 28 or 29) to the Supreme Court.

Subheading 6. Appeals from Court of Appeal to Supreme Court

1. An appeal against a determination of a devolution issue by the Court of Appeal in Northern Ireland on a reference under paragraph 28 or 29 shall lie to the Supreme Court, but only with permission of the Court of Appeal in Northern Ireland or, failing such permission, with permission of the Supreme Court.

Part V. General

Subheading 1

[Repealed]

1. [Repealed]

Subheading 2. Direct references to Supreme Court

1. The Lord Advocate, the Advocate General, the Attorney General or the Advocate General for Northern Ireland may require any court or tribunal to refer to the Supreme Court any devolution issue which has arisen in proceedings before it to which he is a party.
2. The Lord Advocate, the Attorney General, the Advocate General or the Advocate General for Northern Ireland may refer to the Supreme Court any devolution issue which is not the subject of proceedings.

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1. This paragraph applies where a reference is made under paragraph 34 in relation to a devolution issue which relates to the proposed exercise of a function by a member of the Scottish Executive.
2. The person making the reference shall notify a member of the Scottish Executive of that fact.
3. No member of the Scottish Executive shall exercise the function in the manner proposed during the period beginning with the receipt of the notification under sub-paragraph (2) and ending with the reference being decided or otherwise disposed of.
4. Proceedings relating to any possible failure by a member of the Scottish Executive to comply with sub-paragraph (3) may be instituted by the Advocate General.
5. Sub-paragraph (4) is without prejudice to any power to institute proceedings exercisable apart from that sub-paragraph by any person.

Subheading 3. Expenses

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1. A court or tribunal before which any proceedings take place may take account of any additional expense of the kind mentioned in sub-paragraph (3) in deciding any question as to costs or expenses.
2. In deciding any such question, the court or tribunal may award the whole or part of the additional expense as costs or (as the case may be) expenses to the party who incurred it (whatever the decision on the devolution issue).
3. The additional expense is any additional expense which the court or tribunal considers that any party to the proceedings has incurred as a result of the participation of any person in pursuance of paragraph 6, 17 or 27.

Subheading 4. Procedure of courts and tribunals

1. Any power to make provision for regulating the procedure before any court or tribunal shall include power to make provision for the purposes of this Schedule including, in particular, provision—
   1. for prescribing the stage in the proceedings at which a devolution issue is to be raised or referred,
   2. for the sisting or staying of proceedings for the purpose of any proceedings under this Schedule, and
   3. for determining the manner in which and the time within which any intimation or notice is to be given.

Subheading 5. Interpretation

1. Any duty or power conferred by this Schedule to refer a devolution issue to a court shall be construed as a duty or (as the case may be) power to refer the issue to the court for decision.

Schedules 7-9. [Schedules 7-9 omitted due to length – full text of schedules can be found online at http://www.legislation.gov.uk/ukpga/1998/46/schedules]