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The Lawmaking Process in The Scottish Parliament

Published online by Cambridge University Press:  31 July 2008

Jean McFadden
Jean McFadden
Affiliation:
Jean McFadden, CBE, JP, gives an account of the way in which legislation is created in the Scottish Parliament. She provides detailed guidance and explanatory tables. Jean McFadden is a Senior Lecturer at the Law School of the University of Strathclyde. She is the co-author (with Mark Lazarowicz) of Scottish Parliament:An Introduction.
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Extract

The Scotland Act 1998 which established the Scottish Parliament confers on that Parliament the power to make laws which are known as Acts of the Scottish Parliament. However, the legislative competence of the Parliament is restricted. The main restriction relates to reserved matters, that is those matters which the UK Parliament has not devolved to the Scottish Parliament. These are listed in sch 5 to the Act and cover such matters as defence, taxation, social security and macro-economics. Other significant restrictions on the Parliament's legislative competence are that an Act of the Scottish Parliament cannot make any provision which is incompatible with the European Convention on Human Rights (ECHR) or with European Community law, nor can an Act of the Scottish Parliament modify certain “protected enactments” - including most provisions of the Scotland Act 1998 itself and the Human Rights Act I 998. Finally, an Act of the Scottish Parliament cannot have effect outside Scotland, nor can it remove the Lord Advocate from his position as head of the systems of criminal prosecutions and investigation of deaths in Scotland. An Act of the Scottish Parliament is not law so far as any provision of it is outside the Parliament's legislative competence

Type
Research Article
Information
Legal Information Management , Volume 1 , Issue 1 , Spring 2001 , pp. 35 - 42
Copyright
Copyright © The British and Irish Association of Law Librarians 2001

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References

1. The Scotland Act 1998, s 28. An Act of the Scottish Parliament is abbreviated to ASP.

2. Scotland Act 1998, ss 29 and 30.

3. Scotland Act 1998, s 29(2) and Sch 4.

4. Scotland Act 1998, s 31(1).

5. The Presiding Officer is the equivalent of the Speaker of the House of Commons.

6. Scotland Act 1998, s 31(2).

7. The Advocate General for Scotland is a UK Law Officer whose task is to advise the UK Government on matters of law relating to Scottish devolution.

8. The Lord Advocate is the principal legal adviser to the Scottish Executive.

9. Scotland Act 1998, s 33.

10. Scotland Act 1998, s 34.

11. Scotland Act 1998, s 35.

12. The Parliament has a limited power to pass laws which affect matters reserved to the Westminster Parliament. The power given to a Secretary State to prohibit legislation being submitted for Royal Assent allows the UK Government to stop such legislation if it would be damaging.

13. Scotland Act 1998, s 36

14. Scotland Act 1998, s 36(3)

15. For example, a furore arose in Scotland over the Scottish Executive's proposal to repeal s2A of the Local Government Act 1986 (better, though inaccurately, known as section 28). As a result, the Parliament inserted a new section which imposes a duty on Scottish councils to have regard to the value of stable family life in a child's development

16. A Scottish Parliament Bill is divided into sections, not clauses.