1a) The term devolution refers to the transfer or delegation of powers from a central body such as a government, to a lower arm. For example, the Scotland Act 1998 allowed Westminster Parliament to transfer certain powers to Scotland. They were able to highlight which areas would remain outside of the Scottish Parliaments competence, and are able to challenge the Scottish Parliament should they feel they have overstepped these boundaries.
Legislative competence is the boundaries within which a party with the devolved powers has control over the laws it makes. When Westminster Parliament granted powers to countries within the United Kingdom such as Northern Ireland, it did so with conditions. Under the Northern Ireland Act 1998 it is stated that “a provision of an Act is not law if it is outside the legislative competence of the Assembly” and provided the provisions which would be outside of its competence.
1b) In the case of Imperial Tobacco Ltd v Lord Advocate (Scotland) [2012] UKSC 61 the Supreme Court had to consider three separate challenges from the Appellant that the Scottish Parliament were acting outside of their legislative competence with their proposed Tobacco and Primary Medical Services (Scotland) Act 2010.
Imperial Tobacco firstly stated that “sections 1 and 9 of the 2010 Act relate to the ‘sale and supply of goods to customers’ which is a reserved matter” and therefore outside of parliaments competence under the Scotland Act 1998. The lead judge, Lord Hope, recalled that the purpose of the existing law was to protect customers from unfair trade, and so the proposed Act would have no impact and so rejected this first challenge.
Secondly, Imperial Tobacco maintained that “sections 1 and 9 relate to ‘product safety’ which is a reserved matter”. Again, Lord Hope stated that the purpose of the new Act had nothing to do with “the standards of safety to be observed in the production or sale of tobacco products” and so rejected the Appellants challenge on these grounds.
Finally, Imperial Tobacco claimed that as the new Act would potentially create new offences relating to the “sale and supply of goods to consumers”, it would therefore modify Scottish Criminal Law, and should be treated as outside of competence. Lord Hope and his fellow judges decided that this was not sufficient to constitute a successful appeal. He wrote in his decision that he could “see no connection between its purpose and effect and the law on reserved matters”. “It” being the 2010 Act.
As all three grounds of Imperial Tobacco Ltd’s appeal were rejected, the Supreme Court held that the Scottish Parliament had not acted outside of it’s competence.
1c) The Scotland Act 2016 c11 has further broadened on the devolved powers the Scottish Parliament had.
The Act will allow Scotland more power over its own tax and spending, giving it “one of the most extensive arrays of tax and spending powers of any devolved parliament in the developed world” – (The Rt Hon Alistair Carmichael, Scotland in the United Kingdom: An enduring settlement, 2015)
It will also allow Scotland to create their own welfare payments and systems, including arranging their own schemes to get people back into employment. Overall this will give Scotland control of over £2.5billion of spending.
The Act will also give further powers surrounding Scottish Parliament elections, energy supplies and the Crown Estate. For example, while Scotland already had a range of powers relating to their elections , they will also have the ability to control the timing of their elections, and subsequently the election terms.
2) Public international law is a relatively recent development in its contemporary state and has been created to govern the states of the United Nations. International law consists of eight distinct fields. These fields have been developed from a variety of primary and secondary sources. This essay will look to explain these fields and sources and the effect they have on the legal system in England and Wales.
The scope of international law covers diplomatic relations, human rights, the law of treaties, the law of the sea and economic, criminal, humanitarian and environmental law with each individual field covering a spectrum of issues. For example, the law of treaties is intended to regulate how treaties are created, and when they are abolished. The law is able to determine if a treaty is binding, how it should be interpreted and how a state can withdraw from it. Treaties are one of the most recognisable sources of international law so it is important that they are adequately governed.
There are three primary sources of law; treaties, customs and general principles. In addition to these there are secondary sources of law such as judicial decisions and published law books written by respected scholars.
A treaty is very similar to a written contract between two states intended to create legal obligations. A treaty would ordinarily be registered with the UN Secretariat, and be publicly accessible at https://treaties.un.org.
A treaty may have a number of different titles, including an agreement, convention or covenant but all are equal. In order to be classified as a treaty however it must meet certain criteria, which includes; all parties must be subjects of international law, it must be intended to create legal rights and duties between parties, it must be a written agreement and it’s subject matter must be governed by international law. Once a treaty is ratified and a state bound by it they are expected to keep to the agreements it has set out, as to breach them can create international treaty disputes.
The second primary source of international law is custom. These are legal customs that have developed over time. In order to be classified as customary international law a custom must consist of two fundamental components. The first is opinio juris, the second is state practice. That is to say, it must be shown that the state believes its custom is compatible with international law and ‘it must be demonstrated that the practice is widespread and consistent’ (Thirlway, 2010, p.105). This can be done in a number of ways, for instance invoking a domestic law, however recently the law was enacted. There have been numerous customary international law that have been relied upon so much that over time they have also been codified in treaties.
The final primary source of law are the general principles of law. Owing to the fact that international law is fairly new thing, and consequently is distinctly more underdeveloped than domestic law, there are instances where an issue can arise with no law in place to resolve it. In cases like this a court can consider any ‘general principles’ of law that could be applicable. A most noted principle is that of ‘good faith’ which is essential if states are going to co-operate harmoniously. ‘General principles’ was formalised as a source of law following ‘South-West Africa Case’ (International Status of South-West Africa (Advisory Opinion) [1950] ICJ Rep 128).
In the UK we have taken a dualist approach to incorporating treaties into our legal system, meaning Parliament has to pass legislation before it takes effect here. This does not mean that if parliament choose not to expressly incorporate it into our domestic law that it has no impact, as they may draw upon it when creating new laws, and judges are able to use it to help interpret an issue in other cases.
Similarly customary international law is not automatically part of domestic law. However this is not to say that it cannot be, as highlighted by the House of Lords in R v Jones (Margaret) [2006] HL 16. In the aftermath of Jones the courts will have to answer two key questions when trying to decide if a custom is to become domestic law. Firstly, is there anything stopping it being law, and will it be possible to apply it in UK courts?
To conclude, there are eight fields of international law, founded through three primary sources of law and multiple secondary sources of law. Whilst these primary sources of law are not automatically embedded in the legal system within England and Wales they still impact how issues are interpreted and resolved as well as the approach Parliament may take when creating new legislation.
3a) As I studied W101 last year I have previous experience in finding cases and so was able to find the required case with relative ease. I have the lexis library bookmarked in my ‘favourites’ section and so was quickly able to access the site, but I also have the ‘essential skills guide’ which walks through how to find a case from various databases in the ‘personal links’ section of my OU homepage to refresh my memory.
3b) Legal skills one suggested skim reading as a useful way to select relevant sections that you then want to look into in more detail which was particularly useful when it came to reading back over my notes whilst looking for information I needed for the previous questions.