42 days are almost up… What is Section 102?

Many have been asking what will happen when the 42 days proposed by the UK Supreme Court comes to an end and what exactly is the Section 102 order.

102 Powers of courts or tribunals to vary retrospective decisions

(1) This section applies where any court or tribunal decides that—
(a) an Act of the Scottish Parliament or any provision of such an Act is not within the legislative competence of the Parliament, or

(2) The court or tribunal may make an order—

(b) suspending the effect of the decision for any period and on any conditions to allow the defect to be corrected..

Section 102 is a mechanism that allows for the suspension of the effect of a court’s decision to strike down a piece of legislation while the problems with it are sorted out.

This is a rarely used constitutional power. Section 102 was intended to be used in cases where the court is proposing to declare a statutory provision which is already in force to be unlawful. In order to avoid resulting chaos from striking down the law, they give the executive a period in which to fix it, while allowing the unlawful law to remain in force and effect.

In this case, the law is not in effect and the UK Supreme Court has declared that it cannot be brought into effect. However, section 102 could allow the UK Supreme Court to keep a supervisory role in settling any replacement legislation.

The 42 days cited in the judgment are for the parties involved in the legal action to make submissions on whether or not the UK Supreme Court should use its section 102 power. At the conclusion of the submissions, the Court could maintain a supervisory role over the Scottish Government/Parliament, given them a period to change the law and guidance into what the Scottish Ministers think to be a Convention compatible form and then re-present this to the court for their approval.

It is certainly not expected that the necessary legislative/guidance changes will be presented to the court within the 42 day period mentioned in the judgment.

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