Adams & Ors [2002] ScotCS 344 (31 July 2002)

Adams & Ors [2002] ScotCS 344 (31 July 2002)

The Lord Advocate, not the Advocate General or the Parliamentary corporation, is the appropriate contradictor in proceedings challenging the legislative competence of an Act of the Scottish Parliament. The Parliamentary corporation is not an appropriate respondent as its functions do not extend to constitutional matters. Section 40(3) of the Scotland Act does not preclude the remedy of reduction in such proceedings, as they are not proceedings against the Parliament. The Advocate General's participation is discretionary and not mandatory. The pleas-in-law for the Advocate General are repelled.

Citation
[2002] ScotCS 344
Parties
Petitioners: Trevor Adams and Others; First Respondent: Advocate General for Scotland; Second Respondent: Scottish Ministers
Jurisdiction
Scotland
Judgment Date
31 July 2002
Procedural Posture
Petition for Judicial Review / First Hearing (debate on Legal Competency and Relevancy)
Outcome
Pleas-in-law for the Advocate General repelled; Lord Advocate found to be the proper contradictor; question of expenses reserved; main petition not yet determined on merits.
Legal Topics
Legislative Competence, Devolution Issues, Judicial Review, European Convention on Human Rights, Remedies Against Legislation
Constitutional Law Administrative Law Human Rights Law Legislative Competence Devolution Issues Judicial Review European Convention on Human Rights Remedies Against Legislation

Case Brief

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Parties

Trevor Adams and Others

Petitioners

Advocate General for Scotland

First Respondent

Scottish Ministers

Second Respondent

Procedural Posture

Petition for Judicial Review / First Hearing (debate on Legal Competency and Relevancy)

Legal Issues

  1. 1 Whether the Protection of Wild Mammals (Scotland) Act 2002 is outside the legislative competence of the Scottish Parliament due to incompatibility with the European Convention on Human Rights (ECHR)
  2. 2 Whether the Parliamentary proceedings leading to the Act were vitiated by procedural impropriety
  3. 3 Whether the Act is so unreasonable as to be ultra vires the Scottish Parliament

Ratio Decidendi

The Lord Advocate, not the Advocate General or the Parliamentary corporation, is the appropriate contradictor in proceedings challenging the legislative competence of an Act of the Scottish Parliament. The Parliamentary corporation is not an appropriate respondent as its functions do not extend to constitutional matters. Section 40(3) of the Scotland Act does not preclude the remedy of reduction in such proceedings, as they are not proceedings against the Parliament. The Advocate General's participation is discretionary and not mandatory. The pleas-in-law for the Advocate General are repelled.

Court Disposition

Pleas-in-law for the Advocate General repelled; Lord Advocate found to be the proper contradictor; question of expenses reserved; main petition not yet determined on merits.

Orders

  • Repel all pleas-in-law for the Advocate General.
  • Reserve all questions of expenses relating to the first day of hearing.