Devolution in Scotland (L16) Flashcards
What are the functions of the Scottish Parliament?
THE SAME AS THE UK PARLIAMENT.
To supply the Government (parliamentary government).
To make laws for people of Scotland (within legislative competence).
To hold the Scottish Ministers to account.
What is the first stage of the law-making process in the Scottish Parliament?
Lead Committee inquiry into the general principles of the Bill.
Evidence taking.
Report.
Chamber debate and vote on general principles of the Bill.
What is the second stage of the law-making process in the Scottish Parliament?
Lead Committee debates and votes on all competent amendments, which may be lodged by any MSP (whether a member of the Committee or not).
Only members of the Committee may vote on amendments at Stage 2.
What is the third stage of the law-making process in the Scottish Parliament?
Also an amending stage, but for the whole Chamber, which debates and votes on competent amendments selected by the Presiding Officer.
Followed by a short debate and a vote on the Bill.
What are the last stages of the law-making process in the Scottish Parliament?
Royal Assent (SA98 ss 32, 33).
Commencement.
What are the differences in the legislative process in Holyrood
& Westminster?
Stage 1 debate in Scottish Parliament is informed by a committee report which is very detailed about the policy aspirations of the legislation.
More scrutiny in Scotland at Stage 1 than the equivalent Second Reading in Westminster.
In Scotland, Bill only has to pass through one chamber as opposed to the HC and HL.
What are the limits to the legislative competence of the SP/asps?
The rules on competence: Scotland Act 1998, ss 28-29 and Schedules 4-5.
Section 28(7):
“This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland”.
- As a matter of legal theory, devolution does not affect the sovereignty of the UK Parliament.
Section 29(2):
A provision of an ASP is outside competence (and is “not law”) if:–
- It would form part of the law of a country or territory other than Scotland.
- It relates to reserved matters [see Schedule 5].
- It is in breach of the restrictions in Schedule 4.
- It is incompatible with any of the Convention rights [or, formerly, with EU law].
Foreign affairs, defence, monetary policy and currency are examples of what?
Reserved powers under Schedule 5.
What are protected measures under Schedule 4?
An ASP may not “modify” certain aspects of:
- The Acts of Union.
- (Formerly) the European Communities Act 1972; (now) the UK’s Brexit legislation, including the EU Withdrawal Act 2018 and the UK Internal Market Act 2020.
- The Human Rights Act 1998.
- The law on reserved matters.
What did the Scotland Act 2012 set out?
Calman Commission.
Made modest changes to:
- Fiscal powers of the SP (Scottish rate of income tax, LBTT, landfill tax).
- Devolved competence (drink driving; air weapons).
What did the Scotland Act 2016 set out?
Smith Commission (2014).
Declared the SP to be “permanent”; made significant changes to the Scottish Parliament’s fiscal powers as regards income tax.
Transferred one-third of working-age welfare benefits (social security powers) to the SP.
Income on earnings = devolved.
Income on unearned e.g. dividends = reserved.
National Insurance = reserved.
What is involved in the process of ‘checking for competence’?
Minister or other Member in charge of a Bill must certify that Bill is competent (SA98, s31(1)).
Presiding Officer must certify whether Bill is competent (s31(2)).
Law Officers may refer competence of a Bill passed by the Scottish Parliament to the Supreme Court (they have a four-week window for doing this) (s33).
- Continuity Bill Reference [2018] UKSC 64.
- UNCRC Bill Reference [2021] UKSC 42.
Query whether Law Officers may also refer proposed Bills to UKSC – e.g. Referendum Bill Reference.
Third parties may challenge lawfulness of ASPs after enactment.
- AXA General Insurance v Lord Advocate [2011] UKSC 46.
- Imperial Tobacco v Lord Advocate [2012] UKSC 61.
- Christian Institute v Lord Advocate [2016] UKSC 51.
- Scotch Whisky Association v Lord Advocate [2017] UKSC 76.
