Martin v HMA; Miller v HMA - Legislative competence of the Scottish Parliament

8 March 2010

More than 11 years after the Scotland Act 1998 received royal assent and more than a decade after the devolved Scottish Parliament set up under it assumed its full powers, the Supreme Court issued its first judgement in a case considering the extent of legislative competence of the Scottish Parliament on grounds other than compliance with Convention rights.

The appeals in question related to the Road Traffic Act 1988 and the Road Traffic Offenders Act 1988.   In terms of the Scotland Act, the subject matters of both those acts are matters reserved to the UK Parliament.  As originally enacted, the Road Traffic Offenders Act provided that a maximum sentence imposed by a sheriff sitting summarily could impose in respect of the Road Traffic Act offence of driving while disqualified was six months of imprisonment (or the statutory maximum fine or both).  If the offence was prosecuted on indictment, the maximum sentence was 12 months imprisonment (or a fine or both).

The Scottish Parliament enacted the Criminal Proceedings etc (Reform) (Scotland) Act 2007.  Section 45 of that act increased the maximum sentence that sheriffs sitting summarily could impose for the offence of driving while disqualified to 12 months imprisonment. 

The question for the Supreme Court was whether the increase in the sentencing powers of sheriffs sitting summarily provided by section 45 of the 2007 Act was within the legislative competence of the Scottish Parliament.

The Supreme Court, by a majority of 3 to 2, decided that the provision in question was within the legislative competence of the Scottish Parliament. The judgement contains important considerations of section 29 of the Scotland Act, which lies at the heart of the division between matters reserved for the UK Parliament and matters within the powers of the devolved legislature.

James Wolffe Q.C. and James Mure Q.C appeared for the Lord Advocate, Mark Lindsay appeared as junior counsel for the Advocate General for Scotland and Almira Delibegovic-Broome appeared as junior counsel for one of the appellants.