HOW THE SCOTTISH PARLIAMENT WORKS
Alistair McConnachie explains
The Legislative Process in the Scottish Parliament
A piece of legislation promoted by the executive in the UK or Scottish Parliaments is called a "Public Bill".
At Westminster, there is a 5-stage process for the passing of a Bill: First reading; second reading; committee stage; report stage; third reading. The pressure on time is considerable and sometimes Bills are barely read by MPs. It is often only in the House of Lords where the Bills have time to be studied in depth.
At Holyrood, (see pic above) there is a 3-stage process. The introduction of a Bill in the Scottish Parliament (SP) is roughly equivalent to the First Reading stage of a Bill in the UK Parliament, but more is required of the member in charge of the Bill in the Scottish Parliament, in the sense of accompanying documents. This is in order to give the members of the committee more information.
Stage 1: After the committee has prepared the legislation, the Parliament will debate and vote on it and if agreed, it will proceed to Stage 2. The latter part of Stage 1 is equivalent to the Second Reading in the UK Parliament.
Stage 2: Here the Bill is referred back to the committee for detailed consideration. It is open to any MSP to propose an amendment but only the committee can vote on it. At the end of Stage 2, if the Bill has been amended, the Clerk of the Parliament arranges for the amended Bill to be printed and published.
Stage 3: Every MSP has an opportunity to consider and vote on the Bill. This stage is the equivalent of the Report and Third Reading stages in the UK Parliament. If passed, the Bill is ready to be presented by the Presiding Officer for Royal Assent.
Standing Orders set time limits for this process to occur. Bills either fall at Stage 1 or Stage 3.
These arrangements in the Scottish Parliament are designed to simplify the process. It is argued that the SP's committees have a more prominent role and also increase the chances of participation by the public. Legislative proposals from the Executive must be accompanied by a memo showing what public consultation has been undertaken.
A Bill falls if it has not been passed by the end of the session in which it was introduced, unless it is a "Private Bill" in which case it is carried over -- see below.
A session is the fixed four year period from one Scottish election to the next. This differs from the UK Parliament where a "session" is a Parliamentary session which may only be a year or so.
Devolved Areas on which Holyrood can Legislate
The broad areas are Health; Education and training; Local government, social work and housing; Economic development and transport; Law and home affairs; Environment; Agriculture, forestry and fishing and; Sport and the arts. However, within those broad headings, certain areas are still reserved to Westminster.1
Ensuring Proposed Legislation is within Competence of SP
Each Bill is subject to scrutiny to ensure it is not outside the powers of the SP. The Presiding Officer must provide a written statement indicating that the provisions of the Bill are within its legislative competence.
If the Bill is an Executive Bill, the member of the Executive in charge of it should also consider the matter and make a written statement. After the Bill has been passed, if either one of the Advocate General for Scotland, the Lord Advocate and the Attorney General have doubts about the legality of a Bill, he can refer it to the Judicial Committee of the Privy Council for a decision.
The Role of the Secretary of State for Scotland
The Secretary of State for Scotland may order that action be taken, or not taken, and he may revoke legislation.
Where the Secretary of State believes that the Bill contains provisions which would modify the law as it relates to reserved matters or where there are reasonable grounds to believe it would have an effect on the law as it applies to reserved matters, then the Secretary of State can intervene to prevent the law progressing.
Specifically, under Sec. 58(1) of the Scotland Act 1998, the Secretary of State may by order, direct that a proposed action by a member of the Scottish Executive shall not be taken if he has reasonable grounds to believe that it would be incompatible with any international obligations, including obligations under EC treaties or arising from the European Convention on Human Rights, or which are contrary to the Human Rights Act 1998.
Under Sec. 58(2), he may also order that any action be taken if it is required for the purpose of giving effect to any such international obligations.
Under Sec. 58(4)a, if the Secretary of State has reasonable grounds to believe subordinate legislation made, or which could be revoked by a member of the Scottish Executive, contains provisions which he has reasonable grounds to believe to be incompatible with any international obligations, or the interest of defence or national security, then he may revoke the legislation.
Similarly, under Sec. 58(4)b, if he has grounds to believe modifications of the law as it applies to reserved matters will have an adverse effect on the operation of the law as it applies to reserved matters, then he can revoke the legislation.
Difference between an Act of the UK and Scottish Parliaments
An Act of the UK Parliament is supreme law within the United Kingdom. It cannot be overturned in any court in the UK.
An Act of the Scottish Parliament is subordinate legislation meaning that, theoretically, it can be revoked by the Westminster Parliament, and Acts of the Scottish Parliament could be deemed unlawful in court if they conflicted with the statutory competence of the Scottish Parliament as defined by the Scotland Act 1998.
In this regard, and however unlikely it may be, the Scottish Parliament could, theoretically, be abolished by Westminster. The sovereignty of the UK Parliament is asserted in Sec. 28(7) of the Scotland Act 1998.
How Legislation is Introduced at Holyrood
An Executive Bill is a Bill introduced by a member of the Executive.
A Committee Bill is a Bill introduced by a Committee of the SP and is an innovation in British law-making.
A Member's Bill is the equivalent of a Private Member's Bill at Westminster. It is the primary means by which an individual MSP -- who is not a member of the Executive -- is able to promote legislation.
Each member is entitled to introduce 2 Bills in any four-year session. He or she has two options -- they can present their bill to a committee which will decide whether to take it forward as a Committee bill. This would not technically be a "Member's Bill" but it counts against his or her allocation of 2 Bills per session.
The second option is for the MSP to lodge a proposal for a Bill with the clerk. Notice is published and the MSP must gather the support of at least eleven other MSPs to enable a Bill giving effect to the proposal to be introduced. If the MSP cannot gather this support during that month, the proposal falls and a similar proposal cannot be introduced by any MSP within 6 months.
A Private Bill is relatively uncommon and is introduced by an individual who is not an MSP, by a body corporate or by an unincorporated association of persons. After such a Private Bill has been lodged correctly, a "Private Bill Committee" will be established to consider it, and whether it should move to the first stage.2
At the close of the SP's first term on 31 March 2003, it had passed 62 Acts. Of these, 50 had been introduced as Executive Bills, 3 as Committee Bills, 8 as Members' Bills and 1 as a Private Bill. Nearly 2,000 "Scottish Statutory Instruments" had also been passed.3
(1) See Jean McFadden and Mark Lazarowicz, The Scottish Parliament: An Introduction,
(Edinburgh: Lexis Nexis, 3rd edition, 2003), Ch. 2.
(2) For more info on the operation of a Private Bill, see Ch. 9A of the Scottish Parliament's Standing Orders, and McFadden and Lazarowicz, op cit at Ch.5.