There Shall be a Scottish Parliament

“There shall be a Scottish Parliament [1] .” This was the opening article of the Scotland Act 1998. With this simple phrase, the new Scotland Act brought to fruition the desire by the majority of the electorate in Scotland for the return to the region of a fully functioning legislative body. Schedule five of the 1998 Act sets out the Scottish Parliament’s powers as a devolved legislature. [2] Rather than listing the matters over which the Scottish Parliament can control “devolved powers”, it describes the legislative competence of the Parliament by unequivocally stating the matters over which it cannot control “reserved matters.” [3] All matters that are not explicitly reserved are automatically the responsibility of the Scottish Parliament.

The areas governed by the Scottish Parliament are highlighted in sections 29 and 30 and schedules four and five of the 1998 Act. These provisions define the matters “reserved” by the UK Parliament. Reserved matters include the UK Constitution, foreign policy, national security, fiscal policy, international trade policy, nuclear safety, certain areas of social security and employment policy, and certain areas of health policy. [4]

The legislative powers of the Scottish Parliament are “devolved” [5] meaning that they have arisen from the powers handed down by Westminster parliament through the 1998 Scotland Act. This fact is important in that the Scottish Parliament’s powers are considered subordinate in relation to the powers of the UK Parliament. Having subordinate powers means that the Parliament for the United Kingdom can continue to legislate for Scotland [6] however, if the Parliament at Westminster continued to legislate when Scotland now has its own provisions to do so then it would defeat the purpose of having a Scottish Parliament. Under the Scotland Act 1998 by what is known as the “Sewel Convention [7] “, an agreement between the two government bodies which applies “when the UK Parliament legislates on a matter which is devolved to the Scottish Parliament. It holds that this will happen only if the Scottish Parliament has given its consent [8] .” It was predicted that this procedure would be exceptional. However, the current devolution framework has a myriad of either areas where there is clear overlap or very grey areas for responsibility [9] . For example in Scotland’s first parliamentary session, forty-one Acts were passed with the Sewel Convention, provoking criticism that Holyrood was avoiding its responsibility and undermining the principles of devolution. Westminster’s continuing pre-eminence is commonly deemed controversial though frequently it can be convenient, yet, this may depend on the relationship between the two Governments [10] . Recently the relationship between Westminster and Holyrood became tested, with the controversial “compassionate release” of Al-Megrahi, the man convicted of the Lockerbie bombing [11] .

The Scottish Parliament has the authority to make primary legislation in all areas of public policy where it has ‘legislative competence’ [12] . This power reflects the distinctive

Scottish legal, administrative and social systems, which, prior to devolution, were legislated for by Westminster through legislation applying either solely or partly to Scotland. Primary legislation of the Scottish Parliament refers to Acts of the Parliament, which make valid law within the Parliament’s legislative competence as prescribed by the 1998 Act. Ultimately, the legislative competence of the Scottish Parliament is the extent of its power to make valid laws through Acts of the Scottish Parliament. Caution must be observed to ensure that the Scottish Parliament passes only those laws it is competent to pass. In this sense, a number of provisions have been incorporated in to the law making procedures to stay inside its legislative competence.

A proposed Act will not be valid law if any of its provisions are outside of the Parliament’s legislative competence. For a law to be legitimate in Scotland it cannot, form part of the law of a country or territory other than Scotland [13] , or “confer or remove functions exercisable otherwise than in or as regards to Scotland.” [14] It cannot relate to any reserved matters [15] or breach any of the restrictions according to Schedule 4. [16] It has to be compatible with all of the Convention rights [17] and with European Community law and finally if it were to remove the Lord Advocate as head of the systems of criminal prosecution and investigation of deaths in Scotland [18] the Act would not be valid. If not all of these conditions are adhered to then it is “ultra vires” [19] or beyond the powers of the superior UK Parliament and purported Act will be deemed null and void. In certain circumstances under section 29(1), the whole Act is not rendered invalid [20] as far as the unsound provision is concerned.

As mentioned above, an Act of the Scottish Parliament must not be incompatible with any of the Convention rights of individuals [21] . On January the 1st 2001 the Scottish Executive introduced the Convention Rights Bill in the Scottish Parliament. The purpose of the Bill was to bring a number of areas of Scots law into line with the rights of persons under the European Convention on Human Rights as incorporated into domestic law by the Scotland Act 1998 and the Human Rights Act 1998 [22] . The Scotland Act 1998 states that for a Bill to be presented to the parliament it must be published with a Policy Memorandum, Explanatory Notes, a Financial Memorandum, an Executive Statement on Legislative Competence and the Presiding Officer’s Statement on Legislative Competence [23] . Prior to the introduction of an Executive Bill into the Scottish Parliament, or upon its introduction, the Scotland Act requires the Scottish Executive to provide a statement that the Bill is within the Parliament’s legislative competence, including confirmation of its compatibility with the Convention. Any member of the Scottish Parliament may be permitted to introduce a Bill, and when a Bill is introduced, s31 of the Scotland Act 1998 requires that the person introducing it to state that it be within the parliament’s legislative competence [24] , and the Presiding officer to decide whether it not this is the case.

The 1998 Act has placed the Scottish Parliament under a legal obligation to comply with the Convention while implementing their respective powers and functions. The main provisions in the Scotland Act relating to the Scottish Parliament and the Convention came into operation on 1 July 1999 when the Scottish Parliament assumed its powers. Where there is any doubt over the competence of any legislation, provisions are to be read as narrowly as required to fall within the parliament’s powers, if such a reading is possible. [25] Most of the provisions in the Scotland Act requiring compliance by the Scottish Executive with the Convention came into force on 6 May 1999, with the exception of the public prosecution system operating under the authority of the Lord Advocate, where devolved responsibility, and therefore the requirement to comply with the Convention, took effect from 20 May 1999.

Under further devolution arrangements, wider powers are also granted to the Scottish Parliament , comprising the first Minister, the other Scottish Ministers , the Lord Advocate and Solicitor General for Scotland. [26] It is expressly provided that a member of the Scottish Parliament have no power to pass any act incompatible with the Convention rights or Community law. The powers of the Parliament derives from four sources, acquired as the result of the general transfer of functions [27] or devolution. This provision transferred to the Scottish Ministers from Minsters of Westminster those statutory and privilege functions, which fell within the devolved competence at the date of the commencement of the Act. The Scotland Act does however state that, the Parliament may not go outside of its legislative competence and may only legislate on devolved matters. However, powers, which are in the hands of UK ministers, can be transferred to Scottish Ministers to the extent that they are exercisable in Scotland, or converted into powers that can be exercised [28] . This means that Scottish Ministers can in fact be given functions within the range of “reserved” matters, so that their powers extend beyond the limits of those enjoyed by the Scottish Parliament.

The transfer of powers to the Scottish Ministers includes the transfer of powers to make subordinate or secondary legislation [29] and the Ministers have been quick to exercise these. Therefore providing that the competence is upheld, this power gives the Scottish Parliament the ability to create subordinate legislation allowing amendments to be made within the 1998 Act and also allowing for the modification of the functions of cross-border public authorities set up by the act if it is crucial and or practical [30] . What is more, s113 extends the scope of the powers to make delegated legislation, in a range of ways.

An intrinsic attribute of devolution is that the devolved authorities enjoy delegated power, though must keep within the limits of those powers. Since the parliament was established it has seemed to work very well in practice, generally it is popular with the public and it has nestled itself in to a niche in the UK constitution. Though the UK Government can still take control of what is made law in Scotland, since 1999 the Holyrood has managed to hold its own. It has embraced the new challenge of running the devolved areas set out in the 1998 Act and it has made full use of the power it has been afforded while being cautious not to breach the rights and responsibilities that are associated with the given powers. The Scottish Parliament was established to permit Scottish solutions to Scottish problems, consequently the UK Government should allow the distinctive law and society to develop as it sees fit.

References

http://slr.oxfordjournals.org/content/24/3/187.full.pdf+html