The limits of devolved legislative power: subordinate legislation in Scotland

The powers that have been conferred on the Scottish Parliament and the Scottish Executive are subject to a range of legal limitations. There have already been many cases where the validity of actions by the Executive, and even Acts of the Parliament, has been tested in the courts. One major element in the exercise of devolved power is the making of subordinate legislation by the Executive, and although no such legislation has yet been subject to direct challenge, several issues relating to the limits of devolved powers have emerged during the scrutiny procedures in the Scottish Parliament. The purpose of this article is to examine those issues which have been raised in the Subordinate Legislation Committee of the Scottish Parliament and which cast light on the division of legislative power between Edinburgh and London and on the operation of the devolution arrangements. A significant question that emerges is the extent to which the constitutional arrangements for implementing European Community law permit or require the division of responsibilities envisaged in the devolution settlement to be overridden. Copyright Oxford University Press 2003