(27)  The Scotland Bill

was published on 18 December 1997, and received its Second Reading in the House of Commons on 12 and 13 January 1998. It largely gives effect to the White Paper of July 1997 described below (see No 22 ). Key provisions include Clause 35, which provides for the continuing effect of the Acts of Union 1706 and 1707, and Clause 27(7), which declares that the legislative competence of the Scottish Parliament does not affect the power of the Westminster Parliament to make laws for Scotland. Clause 28 states that an Act of the Scottish Parliament will not be law insofar as any provision of the Act is outside the legislative competence of the Parliament. It thus appears that the whole Act will fall if any part is incompetent. The Parliament cannot legislate on reserved matters which are spelt out in Schedule 5. Bills will be scrutinised for competence by the Scottish Executive, the Presiding Officer of the Parliament and the Law Officers (the Lord Advocate, the Solicitor General for Scotland, and the new Advocate General for Scotland). The Law Officers may refer a Bill to the Judicial Committee of the Privy Council for a decision on its legislative competence. Further, under clause 33, the Secretary of State may prohibit the submission of a Bill for Royal Assent if there are reasonable grounds to believe it incompatible with international obligations or if there are reasonable grounds to believe it would have an adverse effect on the operation of another enactment as it applies to reserved matters. Legislative competence can also be tested after enactment in judicial proceedings (see Schedule 6). Such proceedings can be instituted by the Advocate General OR the Lord Advocate, raising the possibility of a difference of view being tested in court, since the Lord Advocate may defend any such proceedings instituted by the Advocate General. The matter of legislative competence can be raised in any court or tribunal. The question may then be referred to the Inner House of the Court of Session or, in criminal matters, to the High Court of Justiciary, unless the question arises in the Inner House or the High Court, in which case reference is made to the Judicial Committee of the Privy Council. Under clause 93 courts are empowered to find Acts of the Scottish Parliament outwith its legislative competence but may then make an order limiting or removing any retrospective effect of the decision, or suspending it to allow the defect to be corrected. The judges will clearly have a key role in the new Scotland, and there are important provisions on their appointment and removal. While the Lord President and Lord Justice Clerk will continue to be appointed by the Prime Minister of the UK, he can only appoint nominees of the Scottish First Minister. Further, it will be for the First Minister to recommend to the Queen the appointment of any other Court of Session judge, sheriff principal or sheriff. A judge of the Court of Session will be removable on the recommendation of the First Minister, although the Parliament must so resolve by two-thirds majority. (See for further comment H. L. MacQueen, Quis custodiet? , human rights and the judges, Scotland Forum no 1 (January 1998) 8-9; idem, Judging the issue of legal power, Edinburgh Evening News, 10 February 1998; N. Gow, Judicial tenure and the Advocate General, 1998 SLT (News) 87; A. W. Bradley, Constitutional reform, the sovereignty of parliament and devolution, in Constitutional Reform in the United Kingdom: Practice and Principles, University of Cambridge Centre for Public Law, 1998.) However, comfortingly for the judiciary, judicial remuneration is listed among the matters reserved to Westminster. Amongst other points of interest should be mentioned the definition of Scots private law in classical terms of persons, things and actions (see clause 111(3)), the specific inclusion of floating charges and receivers amongst matters not reserved (see Schedule 5 Head 3 Section 2), and the provision for the possibility of codification of Scots private and criminal law (see clause 28(10)). A decision on the location of the Parliament building is now awaited. In early December the Scottish Office announced that a further site was under consideration, beside the Palace of Holyroodhouse. Whichever site is chosen, it now seems certain that the cost of constructing the Parliament will exceed the original estimate of £40 million. (See now No 28 ).