The Scottish Parliament and law making

Transcription

1 WXM151_1 The Scottish Pariament and aw making The Scottish Pariament and aw making Copyright 2017 The Open University Contents Introduction and guidance 5 Introduction and guidance 5 What is a badged course? 6 How to get a badge 6 Acknowedgements 7 Week 1: Law making powers of the Scottish Pariament 8 Introduction 8 1 The Scotand Act The Scotand Act New and amended powers 12 3 The Scotand Act Further additiona powers 15 4 Legisative consent or Sewe motions 19 5 Working reationship between the Pariaments and Governments Devoution Guidance Note What next? Referencing 26 6 This week s quiz 26 Summary 27

2 Week 2: Constitutiona characteristics, the rue of aw and Scotand 28 Introduction 28 1 Constitutions What is a constitution? Features of a constitution 33 2 Evoution of the United Kingdom 34 3 Characteristics and functions of the UK s constitution 37 4 The UK s constitutiona arrangements The rue of aw and UK's constitution Thinking about the UK s constitution 42 5 Constitutiona characteristics and Scotand 43 6 This week s quiz 44 Summary 45 Week 3: Law making processes in the Scottish Pariament 47 Introduction 47 1 A new Scottish Pariament Law making processes in the Scottish Pariament 50 2 Legisative competence The criteria to determine egisative competence 53 3 How aw is made in the Scottish Pariament Bis in the Scottish Pariament Types of Bis Finding Bis Stages of egisation A Government Bi Roya Assent Acts of Scottish Pariament 66 4 This week s quiz 68 Summary 68 Week 4: Law making and the UK Pariament 71 Introduction 71 1 Bis in the UK Pariament Preparation for Bis 73 2 Stages of a Bi in the UK Pariament Debating Bis Roya Assent Commencement of Acts of the UK Pariament The UK Pariament and Scotand The work of the UK Pariament and getting invoved 85 3 This week s quiz 87 Summary 87 2 of 153 Tuesday 12 December 2017

3 Week 5: Reading an Act of the Scottish Pariament 89 Introduction 89 1 Acts: An overview 89 2 Acts of the Scottish Pariament Accompanying documentation to Bis Structure of an Act of the Scottish Pariament Citing an Act 99 3 Who drafts the Bis? 99 4 Acts of the UK Pariament Bis and Acts and the UK Pariament Making aw accessibe This week's quiz 105 Summary 105 Week 6: Exporing egisation 107 Introduction Secondary egisation The Scottish Pariament Subordinate egisation Affirmative or negative procedure The UK Pariament Scrutiny in the UK Pariament Refection on subordinate egisation in the Scottish and UK Pariaments The expansion of reguation Advantages and disadvantages of using deegated egisation Deegated powers and the Scotand Act This week s quiz 124 Summary 125 Week 7: MSPs, MPs and aw making 127 Introduction Members of the Scottish Pariament (MSPs) Voting in Scottish pariamentary eections The work of MSPs The many roes of an MSP The Committee System The UK Pariamentary eections The UK Government The voting system for the UK Pariament Who can vote in a UK genera eection? The House of Lords Pariamentary eection constituencies This week s quiz 143 Summary of 153 Tuesday 12 December 2017

4 References 146 Acknowedgements of 153 Tuesday 12 December 2017

5 Introduction and guidance Introduction and guidance Introduction and guidance Introduction and guidance Wecome to this badged open course, The Scottish Pariament and aw making. The course asts eight weeks, with approximatey three hours of study each week. You can work through the course at your own pace, so if you have more time one week there is no probem with pushing on to compete another week s study. In this course you earn about the aw making roe of the Scottish Pariament and consider how, and why, aws are made by both the Scottish and United Kingdom (UK) Pariaments. You expore devoved matters, reserved matters, egisative competence, secondary egisation and consider changes in the ega cuture of Scotand which took pace at the end of the twentieth century. You are introduced to reading an Act of the Scottish Pariament, the workings of the Scottish and UK Pariaments and how citizens can become invoved in the aw making process. Law is not made in isoation, it refects the society and cuture within which it is made, deveoped and appied. It is not static. Mechanisms (such as the Scottish and UK Pariaments) evove to aow it to deveop and change. Law making is heaviy infuenced by change, whether poitica, socia, economic or technoogica. You consider aspects of this as you expore how the Scottish Pariament works. No ega system is without its criticisms as there are both benefits and drawbacks to the way in which aw is made and scrutinised. You wi expore a number of these as you progress through the course. After competing this course, you shoud be abe to: understand the roe of the Scottish Pariament in aw making understand the reationship between the Scottish and UK Pariaments understand the roe payed by aw and how you can infuence the aw making process. Moving around the course In the Summary at the end of each week, you can find a ink to the next week. If at any time you want to return to the start of the course, cick on Course content. From here you can navigate to any part of the course. Aternativey, use the week inks at the top of every page of the course. It s aso good practice, if you access a ink from within a course page (incuding inks to the quizzes), to open it in a new window or tab. That way you can easiy return to where you ve come from without having to use the back button on your browser. 5 of 153 Tuesday 12 December 2017

6 Introduction and guidance What is a badged course? What is a badged course? Whie studying The Scottish Pariament and aw making you have the option to work towards gaining a digita badge. Badged courses are a key part of The Open University s mission to promote the educationa we-being of the community. The courses aso provide another way of heping you to progress from informa to forma earning. To compete a course you need to be abe to find about 24 hours of study time, over a period of about 8 weeks. However, it is possibe to study them at any time, and at a pace to suit you. Badged courses are a avaiabe on The Open University s OpenLearn website and do not cost anything to study. They differ from Open University courses because you do not receive support from a tutor. But you do get usefu feedback from the interactive quizzes. What is a badge? Digita badges are a new way of demonstrating onine that you have gained a ski. Schoos, coeges and universities are working with empoyers and other organisations to deveop open badges that hep earners gain recognition for their skis, and support empoyers to identify the right candidate for a job. Badges demonstrate your work and achievement on the course. You can share your achievement with friends, famiy and empoyers, and on socia media. Badges are a great motivation, heping you to reach the end of the course. Gaining a badge often boosts confidence in the skis and abiities that underpin successfu study. So, competing this course shoud encourage you to think about taking other courses. How to get a badge Getting a badge is straightforward! Here s what you have to do: read each week of the course score 50% or more in the two badge quizzes in Week 4 and Week 8. For a the quizzes, you can have three attempts at most of the questions (for true or fase type questions you usuay ony get one attempt). If you get the answer right first time you 6 of 153 Tuesday 12 December 2017

7 Introduction and guidance Acknowedgements wi get more marks than for a correct answer the second or third time. If one of your answers is incorrect you wi often receive hepfu feedback and suggestions about how to work out the correct answer. For the badge quizzes, if you re not successfu in getting 50% the first time, after 24 hours you can attempt the whoe quiz, and come back as many times as you ike. We hope that as many peope as possibe wi gain an Open University badge so you shoud see getting a badge as an opportunity to refect on what you have earned rather than as a test. If you need more guidance on getting a badge and what you can do with it, take a ook at the OpenLearn FAQs. When you gain your badge you wi receive an emai to notify you and you wi be abe to view and manage a your badges in My OpenLearn within 24 hours of competing the criteria to gain a badge. Get started with Week 1. Acknowedgements This free course was written by Caro Howes. Except for third party materias and otherwise stated (see terms and conditions), this content is made avaiabe under a Creative Commons Attribution-NonCommercia-ShareAike 4.0 Licence. The materia acknowedged beow is Proprietary and used under icence (not subject to Creative Commons Licence). Gratefu acknowedgement is made to the foowing sources for permission to reproduce materia in this free course: Course image: georgecerk/istockphoto.com Every effort has been made to contact copyright owners. If any have been inadvertenty overooked, the pubishers wi be peased to make the necessary arrangements at the first opportunity. Don't miss out: 1. Join over 200,000 students, currenty studying with The Open University choose/ ou/ open-content 2. Enjoyed this? Find out more about this topic or browse a our free course materias on OpenLearn openearn/ 3. Outside the UK? We have students in over a hundred countries studying onine quaifications incuding an MBA at our tripe accredited Business Schoo. Don't miss out If reading this text has inspired you to earn more, you may be interested in joining the miions of peope who discover our free earning resources and quaifications by visiting The Open University openearn/ free-courses. 7 of 153 Tuesday 12 December 2017

8 Week 1: Law making powers of the Scottish Pariament Introduction Week 1: Law making powers of the Scottish Pariament Introduction In this week you consider the aw making powers of the Scottish Pariament. In subsequent weeks you consider the aw making process in the Scottish Pariament. When the process of devoution within the UK began in 1998, egisation from the UK Pariament created new devoved egisatures in Scotand, Waes and Northern Ireand with new aw making powers. The Scotand Act 1998 outined the initia powers of the new Scottish Pariament, the Government of Waes Act 1998 outined those of the Nationa Assemby of Waes and the Northern Ireand Act 1998 outined those for the Northern Ireand Assemby. Those origina devoution settements have been buit upon in subsequent decades. The powers of the Scottish Pariament and Wesh Assemby have been extended. The situation in Northern Ireand is more compex and differs. The Assemby there has been suspended on a number of occasions when agreement over power sharing arrangements has not been reached. Devoution is therefore an ongoing process which refects the changing nature of the UK. In Scotand it refects the reationship between the Scottish and UK Governments and the peope both pariaments represent. From its inception devoution has been seen as a process and not an event and this week takes an historica approach to expore how the powers of the Scottish Pariament have evoved. Understanding the aw-making powers of the Scottish Pariament is important as it can ony egisate (make aws) within certain defined areas. Its powers fow from the devoution egisation passed by the UK Pariament. In the first three sections you consider this transfer of powers and the subsequent expansion of those powers. There are three reevant Acts and each wi be considered in turn: the Scotand Act 1998 the Scotand Act 2012 the Scotand Act Learning outcomes By the end of this week you wi be abe to: understand the aw-making powers of the Scottish Pariament expain the difference between devoved and reserved matters expain what a egisative consent motion is and why they are used. 8 of 153 Tuesday 12 December 2017

9 Week 1: Law making powers of the Scottish Pariament 1 The Scotand Act 1998 Before you start, The Open University woud reay appreciate a few minutes of your time to te us about yoursef and your expectations of the course. Your input wi hep to further improve the onine earning experience. If you d ike to hep, and if you haven't done so aready, pease fi in this optiona survey. 1 The Scotand Act 1998 The Scotand Act 1998 (The 1998 Act) estabished the Scottish Pariament and outined the aw-making process, on what matters aws can be made (devoved matters) and the egisative competence of the Scottish Pariament. The aw-making process is expored in week 3. Here you consider on what matters aw can be made. Figure 1 The Mace of Scotand The 1998 Act contained a ist of reserved matters in Schedue 5. These were matters which were to be reserved for the UK Pariament and on which ony the UK Pariament coud make aw. There was, however, no simiar ist of devoved matters on which the Scottish Pariament coud egisate. It has therefore been estabished that the matters on which the Scottish Pariament can egisate are, in effect, a those matters that are not reserved. So, athough power is devoved, there are some imitations as the UK Pariament continues to egisate for Scotand on reserved matters. 9 of 153 Tuesday 12 December 2017

10 Week 1: Law making powers of the Scottish Pariament 1 The Scotand Act 1998 Box 1 Reserved and Devoved matters under the Scotand Act 1998 (unamended) Reserved matters in Schedue 5 of the Scotand Act 1998 (origina unamended) incude: constitutiona matters UK foreign poicy (incuding reations with Europe) UK defence and nationa security the fisca, economic and monetary system immigration and nationaity energy: eectricity, coa, gas and nucear energy common markets trade and industry, incuding competition and customer protection raiways, transport safety and reguation empoyment egisation socia security and chid support gambing and the Nationa Lottery data protection firearms consumer protection ordnance survey abortion, human fertiisation, embryoogy, genetics xenotranspantation and vivisection equa opportunities reguation of activities in outer space Matters on which the Scottish Pariament can egisate under the origina unamended Scotand Act 1998 heath education oca government economic deveopment tourism crimina aw civi aw agricuture and food sport and the arts panning socia work nationa heritage training housing some aspects of transport, incuding the road network, ports and harbours aw and home affairs (the prosecution system and courts) the poice and fire services the environment agricuture, forestry and fishing statistics, pubic registers and records The Scottish Pariament has fu egisative competence (it can pass both primary and subordinate egisation) in devoved areas (i.e. those matters that are not reserved ). Since its estabishment in 1998 the Scottish Pariament in its aw making and powers has infuenced the character and stye of Scots aw in ways in which have resuted in differences from those appicabe in Engand, Waes and Northern Ireand. The possibiity of the UK Pariament egisating on devoved matters does, however, exist. This is expored in Weeks 2 and of 153 Tuesday 12 December 2017

11 Week 1: Law making powers of the Scottish Pariament 2 The Scotand Act The Scotand Act 2012 In 2007 the Scottish Pariament voted to estabish the Commission on Scottish Devoution (known as the Caman Commission after the Chair of the Commission, Professor Sir Kenneth Caman) to review how devoution was working and whether any amendments were needed to make it effective. The Commission was to provide an independent review. Its terms of reference are in Box 2. Box 2 Terms of reference of the Caman Commission To review the provisions of the Scotand Act 1998 in the ight of experience and to recommend any changes to the present constitutiona arrangements that woud enabe the Scottish Pariament to serve the peope of Scotand better, that woud improve the financia accountabiity of the Scottish Pariament and that woud continue to secure the position of Scotand within the United Kingdom (Hoden, 2010) Foowing wide-ranging consutations the Commission made a number of recommendations in its fina report Serving Scotand Better: Scotand and the United Kingdom in the 21 st Century (Commission on Scottish Devoution, 2009). Figure 2 Recommendations from Serving Scotand Better: Scotand and the United 11 of 153 Tuesday 12 December 2017

12 Week 1: Law making powers of the Scottish Pariament 2 The Scotand Act 2012 Kingdom in the 21 st Century The Caman Commission provides an iustration of the difference between the roes of the Scottish Pariament and Scottish Government (Executive). The Caman Commission was estabished by the Scottish Pariament. The Scottish Government (Executive) had voted against the estabishment of the Commission when the proposa was made in Pariament, athough it ater cooperated with the Commission. 2.1 New and amended powers The UK Coaition Government (conservative and ibera democrats) had committed to impementing the recommendations of the Caman Commission. This commitment resuted in The Scotand Act 2012 (passed by the UK Pariament) which made a number of changes to the devoution settement for Scotand. It gave effect to many of the recommendations as set out in the Caman Commission s fina report. The Scottish Executive was formay renamed as the Scottish Government, Revenue Scotand was estabished to repace HMRC for devoved taxes and further powers were transferred (see Box 3 for more detai). Figure 3 Scotand Act 2012 Chapter 11 Disagreement over the draft Bi which subsequenty became the 2012 Scotand Act (the 2012 Act) had to be resoved before it was passed by the UK Pariament. The UK Government aso required a egisative consent motion be passed by the Scottish Pariament before the 2012 Act was passed by the UK Pariament. Paragraph 8 of the expanatory notes to the 2012 Act state that the 2012 Act contains provisions that trigger the Sewe Convention. As the Act changes the devoution settement for Scotand, the Act contains provisions which ater the egisative competence of the Scottish Pariament (for exampe, reating to air weapons) and provisions which ater the executive competence of the Scottish Ministers (for exampe, reating to the power to prescribe drink-driving imits). The Scottish Pariament gave its consent to the provisions in the Act that trigger the Sewe Convention on 18 Apri of 153 Tuesday 12 December 2017

13 Week 1: Law making powers of the Scottish Pariament 3 The Scotand Act 2016 You wi earn more about the Sewe convention and egisative consent motions in Section 4. Box 3 New and amended Devoved Powers foowing the 2012 Scotand Act Power Impementation Air weapons The Air Weapons and Licensing (Scotand) Act 2015 asp 10 received Roya Assent on 4 August Borrowing powers Drink-driving acoho imits Land and Buidings Transaction Tax Power to borrow up to 2.2 biion (Capita) and 500m (Revenue) from 1 Apri Road Traffic Act 1988 (Prescribed Limit) (Scotand) Reguations New drink-driving acoho imits appied in Scotand from 5 December Land and Buidings Transaction Tax repaced the Stamp Duty Land Tax from 1 Apri Landfi Tax Landfi Tax (Scotand) Act 2014 asp 2 appied in Scotand from 1 Apri Scottish Rate of Income Tax (SRIT) UK Government deducts 10p in the from basic, higher and additiona rates of income tax and the Scottish Pariament has the power to evy a Scottish rate across the three bands from 1 Apri Based on information from the Scottish Pariament website (n.d). 3 The Scotand Act 2016 In September 2014, foowing a Scottish referendum on independence, the peope of Scotand voted to remain part of a United Kingdom. The Scottish Government had campaigned for independence. Foowing the referendum Lord Smith of Kevin was tasked with overseeing and deivering a cross-party agreement on the shape of improved and enhanced devoution for Scotand. 13 of 153 Tuesday 12 December 2017

14 Week 1: Law making powers of the Scottish Pariament 3 The Scotand Act 2016 Figure 4 The Smith Commission On 27 November 2014 Lord Smith deivered an agreement. This had been agreed by a five of the main Scottish poitica parties and outined further powers for the Scottish Pariament. Box 4 Comment on the Scotand Bi eading to the 2016 Scotand Act. The Bi wi make the Scottish Pariament one of the word s most powerfu devoved pariaments and aow more decisions affecting Scotand to be taken in Scotand. It wi increase the financia responsibiity of the Scottish Pariament, and its accountabiity to the Scottish pubic. The package contains significant financia powers, incuding over income tax and VAT, the devoution of substantia eements of the wefare system and a range of other powers, incuding constitutiona powers and powers in areas such as oi and gas and transport. Aong with a more powerfu and accountabe Scottish Pariament, Scotand wi aso retain the huge benefits of being part of a strong United Kingdom with a arge UK economy, a UK pound, UK pensions and UK armed forces just as the Scottish peope made cear they wanted in ast year s referendum. Scotand Office and Munde (2015a). The expanatory note to the Bi indicates that it deivers the Smith Commission Agreement. 14 of 153 Tuesday 12 December 2017

15 Week 1: Law making powers of the Scottish Pariament 3 The Scotand Act 2016 Box 5 Overview of the Bi 1 The Scotand Bi wi deiver the Smith Commission Agreement, which was pubished in November 2014 having gained a-party agreement in Scotand. 2 The Bi is an enabing Bi and the majority of the provisions in the Bi set out the powers that are being transferred to the Scottish Pariament and or Scottish Ministers. In particuar the Scotand Bi amends sections of the Scotand Act 1998 and rebaances the devoved and reserved responsibiities between the administrations. The Bi aso incudes provisions which set out the constitutiona reationship of the Scottish Pariament and Scottish Government within the United Kingdom's constitutiona arrangements. It does not amend this reationship. Scotand Office and Munde (2015b). 3.1 Further additiona powers The Scotand Act 2016 transferred the foowing additiona powers to the Scottish Pariament: powers to set rates and threshods of Income Tax, and devoution of Air Passenger Duty some socia security powers incuding disabiity and carers benefits, Winter Fue payments the power to create new benefits in devoved areas and to top up reserved benefits the power to adjust aspects of Universa Credit in Scotand incuding the housing eement devoution of some empoyment services devoution of the Crown Estate in Scotand the arrangements for eections to the Scottish Pariament devoution of Tribunas in reserved areas such as the Empoyment Tribunas in Scotand devoution of additiona powers over equa opportunities, incuding to egisate for gender baance on pubic boards devoution of British Transport Poice. 15 of 153 Tuesday 12 December 2017

16 Week 1: Law making powers of the Scottish Pariament 3 The Scotand Act 2016 Figure 5 Scotand Act 2016 Chapter 11 The powers of the Scottish Pariament have grown since the origina devoution settement contained in the 1998 Scotand Act. The growth of those powers has been incrementa (with subsequent Acts in 2012 and 2016) and piecemea. There are now a number of Acts and other instruments to consider when ooking at the powers of the Scottish Pariament. Box 6 UK Government Poicy paper 2010 to 2015 government poicy: Scottish devoution Scotand has two governments: the UK government is responsibe for matters incuding defence, foreign affairs, the economy, socia security and the constitution, whie the Scottish government is responsibe for matters incuding heath, education, justice and poicing, and oca government. Athough responsibiity is divided in this way, the two governments work together on many issues and cooperate to make sure that the devoution settement is we managed. The division of responsibiities is not fixed, and it has changed severa times since devoution began in Office for the Advocate Genera for Scotand (2015). 16 of 153 Tuesday 12 December 2017

17 Week 1: Law making powers of the Scottish Pariament 3 The Scotand Act 2016 Figure 6 The Scotand Act new powers for Scotand Activity 1 Reserved or Devoved? Aow about 20 minutes This Activity is designed to provide you with an opportunity to pause and refect on the information provided so far and to enabe you to test your knowedge of reserved and devoved powers. You have engaged with a ot of important information about the powers of the Scottish Pariament. 1 Take a few minutes to refect on what you have read. How did you manage the information presented? Did you find it approachabe or did you have to read it severa times? 2 The ist beow contains matters which are either devoved or reserved. Based on the knowedge you have gained from your studies indicate by cicking in the appropriate box whether a matter is devoved or reserved. Devoved Seect the devoved matters. o o o o o o socia security heath broadcasting housing education and training equa opportunities 17 of 153 Tuesday 12 December 2017

18 Week 1: Law making powers of the Scottish Pariament 3 The Scotand Act 2016 o o o o o o o o o o o o o o o o o o o o o o misceaneous matters, such as compiing statistics and keeping pubic records defence panning and the environment medicines sport and the arts aspects of transport (e.g. reguation of air services, rai and internationa shipping) the prosecution system and the courts the constitution agricuture, forestry and fishing tourism and economic deveopment aspects of energy reguation (e.g. eectricity, coa, oi and gas and nucear energy) trade and industry empoyment financia and economic matters socia work foreign affairs Scottish road network, bus poicy, and ports and harbours misuse of drugs immigration and nationaity oca government internationa deveopment the Civi Service Reserved Seect the reserved matters. o o o o o o o o o o o o o o o o o o equa opportunities heath defence empoyment housing aspects of energy reguation (e.g. eectricity, coa, oi and gas and nucear energy) financia and economic matters education and training foreign affairs immigration and nationaity panning and the environment socia security internationa deveopment aspects of transport (e.g. reguation of air services, rai and internationa shipping) the prosecution system and the courts agricuture, forestry and fishing misuse of drugs medicines 18 of 153 Tuesday 12 December 2017

19 Week 1: Law making powers of the Scottish Pariament 4 Legisative consent or Sewe motions o o o o o o o o o o broadcasting sport and the arts the constitution tourism and economic deveopment the Civi Service oca government misceaneous matters, such as compiing statistics and keeping pubic records trade and industry Scottish road network, bus poicy, and ports and harbours socia work Comment 1 The powers of the Scottish Pariament are set out in Acts of the UK Pariament. Acts of Pariament create aw. Those aws tend to be expressed in forma anguage that is quite different from the anguage you woud find in a nove or newspaper artice, and very different from the anguage in an onine bog or tweet. Learning to order information to make sense of it is an important ski. Here the authors chose to take a step-by-step historica approach to buid a picture of the powers of the Scottish Pariament. This enabed the incrementa nature of those powers to be expained. The incrementa nature refects events such as the independence referendum. Devoution has not been a fixed and setted process and is on-going, refecting changes within society. 2 The Scotand Act 1998 (as amended) specifies those matters that are reserved to the UK Pariament. Matters not reserved by the Scotand Act 1998 (as amended) are devoved to the Scottish Pariament. 4 Legisative consent or Sewe motions During the debates of the Scotand Act 1998 in the House of Lords (UK Pariament), Lord Sewe, the then Pariamentary Under-Secretary of State for Scotand, stated that they woud expect a convention to be estabished that Westminster woud not normay egisate with regard to devoved matters in Scotand without the consent of the Scottish Pariament. It was important that this convention was estabished as there were no provisions in the Scotand Act 1998 (origina unamended) which prevented the UK Pariament from egisating on devoved matters. The Scottish Pariament is abe to agree the incorporation of egisative provisions affecting Scotand in devoved areas. This enabes the Scottish Pariament to consent to the UK Pariament egisating for Scotand on devoved matters in certain circumstances where, for exampe, it is considered sensibe and appropriate to put in pace a singe, UKwide regime, or where the Scottish Pariament supports the proposed egisation but there is no pariamentary time avaiabe because of separate Scottish priorities. These agreements, initiay known as Sewe motions, were renamed in 2005 as egisative consent motions. The procedures for egisative consent motions are stated in the Scottish Pariament s Standing Orders. Such motions can save time and the need for separate and 19 of 153 Tuesday 12 December 2017

20 Week 1: Law making powers of the Scottish Pariament 4 Legisative consent or Sewe motions simiar egisation in both the Scottish and UK Pariaments. They can aso be used to confine egisative discussions to the UK Pariament ony. Such a motion was used in respect of civi partnerships egisation which eventuay became the Civi Partnerships Act Box 7 Legisative consent motions A egisative consent motion is the means by which a devoved body grants permission to the UK Pariament to pass a aw on something that is a devoved matter. Sometimes referred to as Sewe motions, they arise out of the convention that the UK Pariament woud not normay egisate on a devoved matter without the consent of the reevant devoved institution. UK Pariament website (n.d.). In practice five uses have emerged: 1 Where it woud be more effective to egisate on a UK basis in order to put in pace a singe UK-wide regime (for exampe, powers for the courts to confiscate the assets of serious offenders). 2 Where there is a compex inter-reationship between reserved and devoved matters that can most effectivey and efficienty be deat with in a singe Westminster Bi (for exampe, the introduction of civi partnerships). 3 Where the UK Pariament is considering egisation for Engand and Waes which the Scottish Government beieves shoud aso be brought into effect in Scotand, but no Pariamentary time is avaiabe at Hoyrood (for exampe, to strengthen protection against sex offenders). 4 Where the provisions in question, athough they reate to devoved matters, are minor or technica and uncontroversia (for exampe, powers for Scottish Ministers to vary the functions of the Centra Counci for Education and Training in Socia Work). 5 Where the breadth of the powers of the Scottish Pariament and/or Scottish Ministers woud be enhanced in a manner that coud not be achieved uniateray through an Act of the Scottish Pariament (for exampe, conferra of functions in reation to raiways). Box 8 Legisative and Pubic Bodies Act consent memorandums and motions statistics Current session statistics!warning! Caibri not supportedpariamentary Session Current 12 May 2016 to.. Sewe/ Legisative consent memorandums odged Suppementary memorandums pubished or odged Legisative consent motions odged/ Sewe Motions odged Legisative consent/ Sewe Motions passed 20 of 153 Tuesday 12 December 2017

21 Week 1: Law making powers of the Scottish Pariament 4 Legisative consent or Sewe motions Session 41 May 2011 to 23 March 2016 Session 3: 9 May March 2011 Session 2 7 May 2003 to 2 Apri 2007 Session 1 12 Mat 1999 to 31 March Since 2011 consent motions to Pubic Bodies Acts are aso recorded. In Session 4 these totaed 11, at the time of writing there had been none in Session 5. (The Scottish Pariament, n.d.) Activity 2 Reserved matters Aow about 15 minutes Take a moment to think about what you have read so far. The Scottish Pariament has devoved powers and there are reserved matters on which ony the UK Pariament can egisate. It has been estabished that the UK Pariament woud not normay egisate in a devoved matter in Scotand without the agreement of the Scottish Pariament. What might be the benefit to the Scottish Pariament in having some matters reserved to the UK Pariament? Comment There are a number of reserved matters. These incude constitutiona issues, foreign poicy, defence and nationa security, data protection, and ordnance survey. There are a number of benefits to having reserved matters, incuding: the Scottish Pariament has more time to devote to Scottish issues the Scottish Pariament is abe to consut more widey on issues which affect Scotand it aows the UK Pariament to egisate in areas where there is ikey to be common agreement (Scottish MPs sti sit in the UK Pariament) it coud be seen to prevent dupication of debate in both Pariaments. This ist is not exhaustive and you may have thought of other benefits. The reationship between the Scottish and UK Pariaments continues to deveop. It can suit the Scottish Pariament to aow the UK Pariament to egisate in a devoved matter. Remember, however, that the Pariaments and Government are separate and serve different functions. Protocos have therefore emerged for the use of these powers and you wi now expore these. 21 of 153 Tuesday 12 December 2017

22 Week 1: Law making powers of the Scottish Pariament 5 Working reationship between the Pariaments and Governments 5 Working reationship between the Pariaments and Governments In practice the principe that the UK Pariament woud not normay egisate on a devoved matter in Scotand without the agreement of the Scottish Pariament operates through a system of consutation. The UK Cabinet Office pubishes Devoution Guidance Notes which provide advice on the working reationships between the UK and Devoved Governments. Box 9 outines the areas on which such notes have been pubished. Box 9 Devoution Guidance Notes 1 Common working arrangements: advice on common working arrangements between the UK government and the devoved administrations. It sets out an introduction to the main principes invoved in the managing of the devoution settements and ooks in more depth at biatera reations, correspondence, pariamentary business, egisation and concordats. 2 Handing correspondence under devoution: the genera principes for the handing by UK government departments of correspondence from members of the devoved egisatures. Guidance on the handing of inter-ministeria and interdepartmenta correspondence is avaiabe in devoution guidance note 6. 3 Roe of the Secretary of State for Scotand: the functions and the roe payed by the Secretary of State for Scotand foowing devoution. 4 [ ] 5 [ ] 6 Circuation of inter-ministeria and inter-departmenta correspondence: the conventions to be foowed by UK government departments when they are invoving devoved administrations in matters which are the subject of correspondence between UK ministers, or otherwise writing to ministers of devoved administrations. 7 Court proceedings regarding devoution issues: not yet pubished. 8 [ ]. 9 [ ]. 10 Post-devoution primary egisation affecting Scotand: guidance for UK government departments on handing egisation affecting Scotand. Sets out how the LP Committee expects departments to hande primary egisation affecting Scotand, whie ensuring the smooth management of the government s egisative programme. 11 Ministeria accountabiity after devoution: genera advice on matters which remain the responsibiity of UK ministers, and for which they are accountabe to the UK Pariament. 12 Attendance of UK ministers and officias at committees of the devoved egisatures: advice for UK ministers and civi servants on how to dea with invitations to attend committees of devoved egisatures. It does not provide guidance on the giving of evidence to these committees. 22 of 153 Tuesday 12 December 2017

23 Week 1: Law making powers of the Scottish Pariament 5 Working reationship between the Pariaments and Governments 13 Handing of pariamentary business in the House of Lords: genera principes to be put in practice in business before the House of Lords. Comprises 2 separate weeks on Bis, and on pariamentary questions and debates. 14 Use of Scotand Act 1998 Week 30(2) Orders: the use of Week 30(2) Orders to amend the ist of reservations in the Scotand Act - either increasing or reducing the scope of reserved matters. 15 Scottish egisative proposas giving devoved powers and functions to UK bodies: Acts of the Scottish Pariament can, in certain circumstances, incude provisions giving powers or functions to UK government ministers, UK departments or other UK bodies. The Scottish Executive and the UK government have agreed a protoco setting out the procedures which wi appy if considering the possibiity of egisating in this way. 16 [ ] Cabinet Office (2011). 5.1 Devoution Guidance Note 10 Devoution Guidance Note 10 is reevant here as this sets out guidance for UK wide government departments on the ways in which egisation affecting Scotand is managed, incuding how and when consutations between reevant Ministers and departments shoud take pace. The guidance restates the principe of egisative consent and notes that the Commons Procedures Committee (UK Pariament, House of Commons) aso supports the convention. A framework for consistent working with each of the devoved administrations has aso been pubished as a Memorandum of Understanding (MOU). This represents an agreement reached between the UK Government and the Governments of the three devoved administrations (the most recent version at the time of writing was the 2012 version) and sets out principes which underie reations between them. The MOU is not, however, intended to be egay binding. This principe, that the UK Pariament woud not normay egisate in a devoved matter in Scotand without the agreement of the Scottish Pariament, has now been enshrined into the Scotand Act 1998 with an amendment to Section 28. The amendment was made by the Scotand Act 2016 Sections 2 and 72(7). Figure 7 shows the reevant amendment.. The amendment added a new subsection, subsection 8, to Section 29. You wi expore how egisation is set out and amended in more detai in Weeks 3 and 4. Figure 7 Section 29(8) Scotand Act 1998 You may have noticed that the word normay has been incuded in the wording of this new subsection. The meaning of normay in this context has yet to be tested. 23 of 153 Tuesday 12 December 2017

24 Week 1: Law making powers of the Scottish Pariament 5 Working reationship between the Pariaments and Governments A compex system has emerged as two Pariaments can now make aws which affect Scotand. You wi expore this in Week 7. Figure 8 Exampe of an egisative consent motion 5.2 What next? The resuts of the EU Referendum on 23 June 2016 have caused debate both within Scotand and within the UK. In Scotand the vote was 62% in favour of remain but within the UK overa the vote was 51.9% to eave the European Union. Artice 50 of the Lisbon Treaty was triggered by the UK s Prime Minister, Teresa May, on 23 March Foowing this the Scottish First Minister, Nicoa Sturgeon, responded by writing to the UK Prime Minister, Teresa May. The etter expressed frustration over the way in which the devoved administrations have been consuted over Artice 50. The EU set out its position in the European Counci (Art. 50) guideines for Brexit negotiations issued on 29 Apri of 153 Tuesday 12 December 2017

25 Week 1: Law making powers of the Scottish Pariament 5 Working reationship between the Pariaments and Governments Figure 9 David Cameron and Nicoa Surgeon, Figure 10 EU and Scottish fags, Figure 11 Nicoa Sturgeon, Figure 12 UK Pariament and Scottish fag These events were foowed by a UK genera eection on 8 June This eection changed the poitica andscape of both Scotand and the UK resuting in a minority government for the UK. This had a number of consequences incuding: for the moment, unti the terms of the negotiations over the UK s exit from the EU are cear, a second independence referendum in Scotand is unikey to be hed. the UK government was not returned with the anticipated majority. This resuted in a confidence and suppy agreement with the Democratic Unionist Party (DUP) which has an impact on the approach taken to negotiations. Debate over the terms of the UK s exit from the EU wi continue we into The outcome of negotiations and any roes of the administrations in Scotand, Waes and Northern Ireand in that process remain uncear. The negotiations are unikey to be reported on in an unbiased manner with information coming from a number of sources. This makes it difficut to gain a cear overa picture. The UK is one of 28 member states and a member states wi be consuted. The UK remains a member of the European Court of Human Rights and a signatory to the European Convention on Human Rights. Athough often confused with the EU and the Court of Justice of the European Union they are in fact separate institutions. The EU currenty exercises powers which come within the remit of the devoved administrations, for exampe, agricuture, as those EU powers cover devoved matters. The position in reation to the return of powers directy from the EU to the devoved administrations is a compex matter over which the devoved administrations and UK Government disagree. The Scottish Pariament (and the devoved assembies in Waes and Northern Ireand) as part of its egisative competence has to ensure that a aws compy with EU aw. An 25 of 153 Tuesday 12 December 2017

26 Week 1: Law making powers of the Scottish Pariament 6 This week s quiz amendment of some form wi be needed to the 1998 Scotand Act in reation to egisative competence. This wi be dependent on the outcome of negotiations. 5.3 Referencing Referencing is an important ski. By referencing you are providing a cear note of where you found information that you are using and sharing this information with those reading your work. Referencing is important in academic work for a number of reasons. the points you make are ceary supported by evidence for exampe, what the Section of an Act states you can use the sources for further research in the future for exampe, you wi know which Section of the Act you were discussing your work wi be more persuasive for exampe, you reference the Section of an Act around which you based your expanation or discussion but the reader of your work can see your starting point and evidence your reader can find your sources for exampe, you have referenced the Section of the Act around which you based your expanation or discussion and they can go and read the origina if they wish to you can demonstrate how widey you have read and show that you understand the area your work wi refect expected academic vaues and good academic practice. Referencing, whether to an Act you have discussed, a text book you have read, a piece you have found on the internet, a journa artice or this course, demonstrates good academic practice. You can reference this course as The Open University (2017) The Scottish Pariament and aw making, [Onine]. Avaiabe at content-section-overview (Accessed 13 October 2017). In this course you wi earn how Acts of Pariament are structured and how to reference them (this is referred to by awyers as a citation). This is covered in the weeks that foow. 6 This week s quiz We done you have reached the end of Week 1 and can now take the weeky quiz to test your understanding. Week 1 practice quiz Open the quiz in a new tab or window (by hoding ctr [or cmd on a Mac] when you cick the ink). 26 of 153 Tuesday 12 December 2017

27 Week 1: Law making powers of the Scottish Pariament Summary Summary During this week you have earnt about the powers of the Scottish Pariament and the inter-reationship between the Scottish and UK Pariaments which continues to evove. Having studied this week you shoud now: 1 understand the roe of the Scottish Pariament in aw making 2 understand the reationship between the Scottish and UK Pariaments In the foowing week you expore the importance of the principes that underpin aw making. You can now go to Week 2. During this course, at the end of each Week you wi be provided with a summary overview detaiing what that Week covered. We hope you find these usefu. 27 of 153 Tuesday 12 December 2017

28 Week 2: Constitutiona characteristics, the rue of aw and Scotand Introduction Week 2: Constitutiona characteristics, the rue of aw and Scotand Introduction The UK s constitution has undergone significant change in recent decades. In this week you wi expore the roe and function of a constitution, the constitutiona arrangements of the UK and the rue of aw. You then consider the impications of these for both the Scottish Pariament and Scotand. By the end of this week you shoud be abe to: expain the UK s constitutiona arrangements define the UK s constitution expain the principe of the rue of aw. 1 Constitutions Here you consider constitutions as they appy to states. Other organisations such as sports cubs, companies, oca authorities, Poice Scotand, charities, vounteering organisations, the United Nations and Counci of Europe aso have constitutions which share some of the features of state constitutions. These are often contained in the form of rues, memorandum or artices of association. 28 of 153 Tuesday 12 December 2017

29 Week 2: Constitutiona characteristics, the rue of aw and Scotand 1 Constitutions Figure 1 Regiam Majestatem Most state constitutions deveop over time and evove as the structures of society in which they exist deveop. Some constitutions are created as a resut of confict or rebeion (which generay resuts in a singe constitutiona document). For exampe, the French constitution was redrafted in the period eading to the decaration of a repubic in 1792, and has been redrafted or refined on a number of occasions since. The Constitution of the United States of America deveoped after war with Engand. It first came into effect in 1789 and has been amended 27 times since. 29 of 153 Tuesday 12 December 2017

30 Week 2: Constitutiona characteristics, the rue of aw and Scotand 1 Constitutions 1.1 What is a constitution? The UK s constitution is not contained in a written document but has deveoped and evoved in a piecemea way over time. In the media you may have come across or heard about the importance of checks and baances on presidentia or prime ministeria power. That phrase reates to constitutiona arrangements within a state which you expore ater. The past 50 years has seen great constitutiona change within the UK; the joining of the EU, the creation of the UK Supreme Court and devoution of the Nations. These changes have had a significant impact on the nature of the UK s constitution and on the roe of Scotand. Activity 1 How woud you define a constitution? Aow about 10 minutes Consider the foowing quotations and using these as your source of information identify what features you think a constitution shoud have. Figure 2a Definitions of a constitution 30 of 153 Tuesday 12 December 2017

31 Week 2: Constitutiona characteristics, the rue of aw and Scotand 1 Constitutions Figure 2b Definitions of a constitution 2 Figure 2c Definitions of a constitution 3 31 of 153 Tuesday 12 December 2017

32 Week 2: Constitutiona characteristics, the rue of aw and Scotand 1 Constitutions Figure 2d Definitions of a constitution 4 Comment A range of state constitutions exists wordwide and each one is unique. A range of definitions aso exist but at its most basic a state constitution is seen as having the foowing eements: rues about the structure and power of government of the state rues about the basic rights and freedoms of the citizens of that state rues on how aw is created within that state. States have their own ega systems and nationa aws which are created according to their constitution. Constitutions are fundamenta to a society as they provide the structures which determine who has the right and the power to make and enforce the aw. The constitution of each state aso represents the history and cuture of that state. Looking at each of the definitions you were given as your source of information reveaed different aspects of a state constitution and what features the authors thought ought to exist. 1 The definition in The Encycopaedia Britannica identifies the need for a structure, a definition of responsibiities, and different roes for different pubic officias is emphasised. The definition aso inks the notion of both peace and defence to a constitutiona framework. You may have noticed that at the end of the definition it 32 of 153 Tuesday 12 December 2017

33 Week 2: Constitutiona characteristics, the rue of aw and Scotand 1 Constitutions indicates that the constitution shoud be contained in a written form. This is an aspect that you wi return to ater. 2 King s definition focuses on the reations between governing institutions, but again mentions the reationship between the state (governing institutions) and individuas. 3 Professor Wheare s focuses on the reguation of the government by a system of rues. This definition has a narrower focus than the other definitions we have considered. There may at first gance appear to be a sma difference; however, a constitution which is defined as reguating the state and state bodies has a wider scope than one which concentrates on reguation of the government. The definitions discussed so far have considered the state, the government, and aso the reationship between the state and individuas. 4 Paine s approach to defining a constitution provides a different perspective as it focuses on the source of a constitution. Paine s view is that a constitution utimatey derives from the peope acting through the government. Another point to note is that definitions of a constitution tend to be neutra in their tone. They do not make a judgement as to whether the constitution is good or bad. Regimes such as Nazi Germany and the Soviet Union both had constitutions. 1.2 Features of a constitution Before moving on take a few moments to refect on what you have earnt as you wi buid on this as you consider the UK s constitution. A constitution wi do one or more of the foowing: 33 of 153 Tuesday 12 December 2017

34 Week 2: Constitutiona characteristics, the rue of aw and Scotand 2 Evoution of the United Kingdom Figure 3 Features of a constitution 2 Evoution of the United Kingdom The constitutiona arrangements in the United Kingdom (UK) are a refection of the reationship between the four nations that make up the UK. This reationship is one based on a history of confict, trade and war. Box 1 contains a very concise overview of how four nations came to be the UK. Box 1 A concise historica overview By 1283 much of Waes had been conquered by Edward I of Engand. Waes retained a separate ega system but was governed by the Engish Monarch. The Acts of Union with 34 of 153 Tuesday 12 December 2017

35 Week 2: Constitutiona characteristics, the rue of aw and Scotand 2 Evoution of the United Kingdom Waes 1535 to 1542 effectivey ended the separate ega system. Waes continued to be governed by the Engish Monarch. The kingdom of Scotand evoved around the eary 800s. Scotand and Engand were often at war with each other and border raids were commonpace. Scotand during this time had a coser reationship with France than with Engand. Figure 4 Aexander III, Figure 5 David of Scotand, Figure 6 Margaret Maid of Norway, Figure 7 Kenneth 35 of 153 Tuesday 12 December 2017

36 Week 2: Constitutiona characteristics, the rue of aw and Scotand 2 Evoution of the United Kingdom Figure 8 James I, Figure 9 Mary Queen of Scots, Figure 10 James VI, Figure 11 Chares I In 1603 Eizabeth I of Engand died chidess and her cousin James VI of Scotand was invited to become King of Engand. (Henry VII of Engand was Eizabeth s grandfather and James VI s great great grandfather). This united the two countries under one monarch for the first time. James VI of Scotand became James I of Engand. Athough there was one monarch two separate pariaments and ega systems continued. It was not unti the Union 36 of 153 Tuesday 12 December 2017

37 Week 2: Constitutiona characteristics, the rue of aw and Scotand 3 Characteristics and functions of the UK s constitution of Scotand Act 1706 and the Union with Engand Act 1707 that one Pariament at Westminster (the Pariament of Great Britain) was created with the power to make aws reating to Scotand. The history of poitica reations between Ireand and Engand is compex. Ireand came under Engish contro in the twefth century but since this time there has been amost constant strife between the two countries. In 1800 the Act of Union with Ireand was passed. A civi war in the eary twentieth century ed to the Government of Ireand Act 1920, which spit Ireand in This removed 26 counties of the Irish Free State from the UK. Ongoing poitica issues ed to the Northern Ireand Act This estabished that the UK Pariament in London woud rue over Northern Ireand directy. This asted unti the Good Friday Agreement in Characteristics and functions of the UK s constitution Having earnt a itte about the background of the evoution of the UK you now consider the specific characteristics and functions of the UK s constitution. You may aready be aware (from reports you may have seen in the media or TV and fim dramas) of some underying conventions of the UK s constitution, for exampe that: free and fair eections are hed on a reguar basis (whether for the Scottish Pariament or the UK Pariament) in the Scottish Pariament, the eader of the poitica party with the argest majority normay becomes First Minister. The First Minister is nominated by the Scottish Pariament and is officiay appointed by the monarch in the UK Pariament, the eader of the poitica party with the argest majority in the House of Commons normay becomes Prime Minister. The Prime Minister is officiay appointed by the monarch in the UK Pariament, the custom that the Genteman Usher of the Back Rod knocks at the door of the House of Commons chamber to summons the members of the House of Commons to hear the Queen s Speech in the House of Lords. The UK s constitution has been described as monarchica, supreme, argey unwritten (uncodified), and fexibe. On the diagram beow cick on each of the four boxes to earn more about these aspects of the UK s constitution. Interactive content is not avaiabe in this format. 4 The UK s constitutiona arrangements Having considered the characteristics of the UK s constitution you now consider some of the underpinning principes of the UK s constitution. 37 of 153 Tuesday 12 December 2017

38 Week 2: Constitutiona characteristics, the rue of aw and Scotand 4 The UK s constitutiona arrangements The UK s constitution can be thought of as a buiding with a number of coumns. As iustrated by Figure 12 the UK s constitution can be thought of as a buiding with a number of coumns. Listen to the foowing audio which expores the UK s constitutiona arrangements as iustrated by Figure 12. Figure 12 The UK's constitution can be thought of as a buiding with a number of coumns Audio content is not avaiabe in this format. 4.1 The rue of aw and UK's constitution You shoud now be famiiar with the rue of aw and the constitutiona arrangements of the UK. Activity 2 has been designed to test your knowedge of the rue of aw and UK s constitutiona arrangements. Activity 2 The rue of aw Aow about 10 minutes You have earnt that the rue of aw is a fundamenta principe underpinning the constitution of the UK. This Activity is designed to test your knowedge of the rue of aw as you wi return to the rue of aw when exporing the powers of the Scottish Pariament, deegated egisation, Members of Scottish Pariament (MSPs) and Members of Pariament (MPs). 38 of 153 Tuesday 12 December 2017

39 Week 2: Constitutiona characteristics, the rue of aw and Scotand 4 The UK s constitutiona arrangements Consider each of the statements beow and seect the statements which refect the rue of aw. 1 Protects rights and iberties True Fase Comment The rue of aw protects rights and iberties. This requires that a person s rights and obigations are determined by the aw, that wrongs are punished according to aw and that everyone is subject to the aw. 2 States everything must be done in accordance with the aw (egaity). True Fase Comment States everything must be done in accordance with the aw (egaity). For exampe, a pubic authority must not do something which affects a person s rights or iberty (e.g. decide to refuse panning permission) uness Pariament has given it authority to do so, either in an Act of Pariament or indirecty by subordinate egisation.. 3 Requires that government is carried out within a framework of rues and principes. True Fase Comment Requires that government is carried out within a stabe framework of rues and principes which pace appropriate restrictions on the exercise of power. This is why the judiciary has deveoped a series of administrative aw rues) which pubic bodies are required to observe when exercising discretionary powers. This provides certainty and predictabiity and prevents the abuse of discretionary power. 4 States no one shoud be judge in his or her own cause. True Fase Comment States no one shoud be judge in his or her own cause. Therefore, disputes about the egaity of something done by the government are decided by a judiciary which is independent of the government. Judicia independence is seen as a cornerstone of the UK s constitution. 5 States there wi be fairness between the government and its citizens. True Fase Comment 39 of 153 Tuesday 12 December 2017

40 Week 2: Constitutiona characteristics, the rue of aw and Scotand 4 The UK s constitutiona arrangements States there wi be fairness as between the government and its citizens. In other words, pubic bodies shoud generay be subject to the same ega duties and iabiities as individuas, uness this is inconsistent with their government functions. 6 Requires that procedures for determining ega disputes must be fair, and must not invove inordinate deay or prohibitive cost. This is a principe about providing access to justice. True Fase Comment Requires that procedures for determining ega disputes must be fair, and must not invove inordinate deay or prohibitive cost. This is a principe about providing access to justice. 7 Uphods fundamenta human rights and the UK s compiance with its obigations under internationa aw. True Fase Comment Uphods fundamenta human rights and the UK s compiance with its obigations under internationa aw. As you wi earn foreign affairs are reserved to the UK Pariament. 8 Requires that the aw is written in anguage that is, so far as possibe, cear and free from ambiguity. True Fase Comment Requires that the aw is written in anguage that is, so far as possibe, cear and free from ambiguity. Laws must avoid contradictions and must not command the impossibe. Laws must be forward ooking (prospective), in other words they must not be backdated (retrospective). This is a principe about how the aw is written down and pubished. 9 Must be observed at a stages of the aw making process. True Fase Comment Must be observed at a stages of the aw making process. It is reevant when deciding the content of aws, when drafting aws and when pubic bodies and the courts administer and enforce the aw. 10 Laws must aso be freey avaiabe. True Fase Comment 40 of 153 Tuesday 12 December 2017

41 Week 2: Constitutiona characteristics, the rue of aw and Scotand 4 The UK s constitutiona arrangements Laws must aso be freey avaiabe. Laws of both the Scottish and UK Pariaments are avaiabe eectronicay as the case reports of the UK Supreme Court, High Court of Justiciary and other appea courts. Figures 13, 14 and 15 take the form of cartoons which represent aspects of the rue of aw and provide an exampe of an aternative way in which the rue of aw can be iustrated. Figure 13!Warning! Aria,sans-serif not supporteddicey s rue of aw part 1 Figure 14!Warning! Aria,sans-serif not supporteddicey s rue of aw part 2 Figure 15!Warning! Aria,sans-serif not supporteddicey s rue of aw part 3 41 of 153 Tuesday 12 December 2017

42 Week 2: Constitutiona characteristics, the rue of aw and Scotand 4 The UK s constitutiona arrangements 4.2 Thinking about the UK s constitution In this section you expore further the UK's constitutiona arrangements and identify the key features of that constitution. Activity 3 Defining the UK s constitution Aow about 10 minutes Take a few moments to refect on what you have earnt. How woud you describe the UK s constitution? Seect the terms and phrases you think are appicabe to the UK s constitution and add them into the bank box provided. You are not being asked to create an order or hierarchy within the box. This Activity is designed to encourage you to identify the terms and phrases that you think provide an accurate description of the UK s constitution. Interactive content is not avaiabe in this format. Comment There were a number of terms and phrases that you coud have identified as reevant to the UK s constitution. These incuded: Uncodified Pariamentary sovereignty Fexibe Constitutiona principes Conventions No one is above the aw Separation of powers UK Pariament Monarch Statutes Rue of Law Scottish Pariament Wesh Assemby Northern Ireand Assemby The other terms coud appy to a written constitution (such as codified). The UK does not have a federa constitution (athough some awyers based outside the UK see the devoution settements as moving towards a federa framework). Democracy does not form part of constitutiona arrangements - it foows from them. A federa constitution is one in which a nationa government and specificgovernments (for exampe, the devoved administrations) each has their own powers which are specified by the constitution. 42 of 153 Tuesday 12 December 2017

43 Week 2: Constitutiona characteristics, the rue of aw and Scotand 5 Constitutiona characteristics and Scotand 5 Constitutiona characteristics and Scotand The process of devoution has impacted the UK s constitutiona framework as new constitutiona statutes exist. You have earnt about the theory that the UK Pariament is sovereign it can make and unmake any aw, it cannot be bound by decisions of past pariaments and it cannot bind future pariaments. Questions about the sovereignty of the UK Pariament are not uncommon. In recent times, as you may have heard or seen in the media, these were often in reation to membership of the EU and the European Communities Act The nationwide referendum on EU membership in 2016 proved a turning point in reation to those questions as the UK Pariament prepared egisation to eave the EU. In R (on the appication of Mier and another) (Respondents) v Secretary of State for Exiting the European Union (Appeant) [2017] UKSC 5 the concept of Pariamentary Sovereignty was considered and uphed. Since [ ] wi be a fundamenta ateration in the UK s constitution, it can ony be effected by Pariamentary egisation. The process and consequences of devoution differ. New reationships between the nations which make up the UK have been created. These reationships differ significanty from EU membership and the aspirations which ead to the creation of Europe-wide institutions such as the EU or European Court on Human Rights. The EU, as it is known today, emerged from institutions created at the end of WWII. In the aftermath of that war European poiticians (incuding those based in the UK) and governments sought to create a cimate of stabiity, harmony, prosperity and cooperation to ensure that the horrors which occurred during the war woud never be seen again in Europe. The way forward was seen to be through agreed common vaues, such as the protection of the rights of citizens, security, democracy and the rue of aw. The reationship between the nations has a onger history encompassing confict, revoution, conquest, integration and rue by one monarch. Scotand has aways retained its own ega system and economic reasons ead to the Treaty of Union in That treaty was not necessariy popuar with everyone, as shown by the popuar uprisings and genera unrest in Scotand at the time. Scotand is aso often referred to as the most devoved nation as it was initiay given the greater of the devoved powers. The Scotand Act 1998, estabished Scottish devoution. The Scotand Act 2016 inserted a new Section into the 1998 Act, providing for the permanence of the Scottish Pariament and Government. This acknowedges that both the Scottish Pariament and Government are a permanent part of the UK s constitutiona arrangements. The Section states that they shoud not be aboished without the consent of the Scottish peope, which woud be gained through a referendum (Section 63A(3)). 43 of 153 Tuesday 12 December 2017

44 Week 2: Constitutiona characteristics, the rue of aw and Scotand 6 This week s quiz Box 2 Section 63(A) Scotand Act 1998 Figure 16 Section 63(A) Scotand Act 1998 In theory, despite devoution, the concept of pariamentary sovereignty remains. The UK Pariament granted the new aw making powers as part of the devoution settements, and so it coud remove them. In theory the UK Pariament remains as the supreme aw making power. You wi expore this ater when you consider the roe and powers of both the Scottish and UK Pariaments. Watch the foowing video of the opening of the fourth session of the Scottish Pariament. The video incudes a speech made by the Presiding Officer of the Scottish Pariament and one made by Queen Eizabeth II. Listen to these speeches carefuy. They expore the roe and functions of the Scottish Pariament. In particuar isten to how MSPs are reminded about the roe of pariament to egisate, scrutinise and refect the wi of the peope. The speeches in the audio have not been edited. They contain some important points which ink to the foowing weeks of this course. Identifying key points in a text, speech, presentation or discussion is an important ski whether for study, for work or eisure time. If you choose further study (such as a degree or apprenticeship), you may attend events such as seminars in which you wi expected to take notes of key points. In empoyment you may attend conferences or presentations of coeagues, where being abe to concentrate and identify information reevant to your work coud be important. In your eisure you may enjoy sports, trave or going to the cinema. In a these you wi be presented with information to process and make sense of. Being abe to concentrate and identify reevant information is something we hope the audios in this course wi assist you in practising. 6 This week s quiz We done you have reached the end of Week 2 and can now take the weeky quiz to test your understanding. Week 2 practice quiz Open the quiz in a new tab or window (by hoding ctr [or cmd on a Mac] when you cick the ink. 44 of 153 Tuesday 12 December 2017

45 Week 2: Constitutiona characteristics, the rue of aw and Scotand Summary Summary In this week you expored the fundamentas of the UK s constitution. An understanding of the overa picture of the UK provides a foundation on which to buid your knowedge of the Scottish Pariament, its powers, roe and reationship with the UK Pariament. You shoud now be abe to expain the different eements of the UK s constitution. Before moving on take a few moments to refect on what you have earnt about the sources and principes which underpin the UK s constitution during this week of study. You shoud now be abe to: expain the UK s constitutiona arrangements define the UK s constitution expain the principe of the rue of aw. In the next week you expore the aw-making processes of the Scottish Pariament. You can now go to Week of 153 Tuesday 12 December 2017

46 Week 2: Constitutiona characteristics, the rue of aw and Scotand Summary Figure 17 Summary overview of Week 2 46 of 153 Tuesday 12 December 2017

47 Week 3: Law making processes in the Scottish Pariament Introduction Week 3: Law making processes in the Scottish Pariament Introduction In this week you consider the egisative powers (aw making) of the Scottish Pariament and the procedures that Bis have to go through before they become aw. A Bi is a draft Act. If the Bi is passed it is enacted and becomes an Act and part of egisation. Before devoution, a Bis affecting Scotand were introduced in, and subject to the procedures of, the UK Pariament. Some of those Bis were imited in extent to Scotand, whie others appied to the whoe of the UK (athough often with some distinct provisions appicabe ony to Scotand). By the end of this week you shoud be abe to: expain the different types of Bis describe the stages in the aw making process of the Scottish Pariament expain the egisative competence of the Scottish Pariament. 47 of 153 Tuesday 12 December 2017

48 Week 3: Law making processes in the Scottish Pariament 1 A new Scottish Pariament Figure 1 Map of the four nations that make up the UK 1 A new Scottish Pariament The Scotand Act 1998 estabished a new Scottish Pariament with 129 seats. The current Scottish Pariament has a unicamera pariament, meaning that, unike the UK Pariament, there is ony one pariamentary chamber. 48 of 153 Tuesday 12 December 2017

49 Week 3: Law making processes in the Scottish Pariament 1 A new Scottish Pariament Figure 2 Scottish Pariament at night The Scotand Act 1998 gave the Scottish Pariament power to make aws (both primary and secondary egisation) in a number of areas. The Scotand Act 1998 aso estabished a Scottish Government (at that time referred to as Executive). This consists of the First Minister and a number of ministers appointed by the First Minister. Members incude the Lord Advocate and the Soicitor Genera for Scotand. The monarch appoints the First Minister. They are usuay the eader of the party with the most seats in the Scottish Pariament. The roes of the Scottish Pariament and Scottish Government differ. In this course you consider the Scottish Pariament; if you wish to earn more about the roe of the Scottish Government you can expore their website. 49 of 153 Tuesday 12 December 2017

50 Week 3: Law making processes in the Scottish Pariament 1.1 Law making processes in the Scottish Pariament Figure 3 The Scottish Pariament and Scottish Government expained 1.1 Law making processes in the Scottish Pariament Here you consider the processes used to make aw in the Scottish Pariament. The Scottish Pariament can ony make aws that are within its competence (i.e. that it has the power to make) so competence wi be expored before the Pariamentary process. 50 of 153 Tuesday 12 December 2017

51 Week 3: Law making processes in the Scottish Pariament 2 Legisative competence Figure 4 The Scottish Pariament iuminated at night The powers of the Scottish Pariament and processes of aw making were estabished by the Scotand Act 1998, a constitutiona statute which forms part of the UK s constitution. Throughout this week extracts from that Act wi be used to expain the powers of the Scottish Pariament. This approach has been chosen to enabe you to become famiiar with the ayout of Acts (sometimes caed statues, and often referred to as egisation), the technica anguage and terminoogy used. Do not be too concerned if the design, terminoogy and anguage of Acts ooks and fees unfamiiar, possiby even aien. This is not an uncommon reaction but, as you become more famiiar with them, you wi begin to find Acts more approachabe. The important point is that powers have been created in a particuar way: a framework for aw making has been created. As you wi earn ater, if that framework is not foowed then there are consequences. 2 Legisative competence The egisative competence of the Scottish Pariament is set out in the Scotand Act 1998 (as amended). In particuar, Sections 28 and 29 of the Act are reevant. The concept of egisative competence is an important factor in the aw making process of the Scottish Pariament. The Scottish Pariament can ony make aws that are within its egisative competence. Any aw that is made without egisative competence is void (and therefore has no ega effect). Section 28 (as amended) is set out in Figure 5. This Section gives the Scottish Pariament power to make aws and sets out the arrangements for Bis of the Scottish Pariament, 51 of 153 Tuesday 12 December 2017

52 Week 3: Law making processes in the Scottish Pariament 2 Legisative competence once passed, to receive Roya Assent. You wi earn more about the process of Roya Assent in the next week (it is signified by the monarch under the Scottish Sea). Section 28(5) (this is a citation for an Act of Pariament: You ook at these in more detai ater in the course) notes that the vaidity of an Act of the Scottish Pariament wi not be affected by any invaidity in the proceedings of the Scottish Pariament during the process of enactment. i.e. the debating and other stages of the pariamentary aw making process. Section 28(7) inks to the pariamentary sovereignty discussion you expored in the previous week of study. This is the subsection that is said to maintain UK Pariamentary sovereignty. Figure 5 Section 28 Scotand Act 1998 (as amended) As you ooked at Section 28 you may have noticed the use of F1 and square brackets [..]. These brackets are used to show that the origina Act has subsequenty been amended. It is not uncommon for subsequent Acts to amend earier Acts by making further additions. The copy of the Scotand Act 1998 in Figure 5 is a screen shot (of an Act currenty in force) taken from egisation.gov.uk. On that website the origina text of the Act (origina pdf and sometimes caed as enacted ) can be found aongside the most up to date version of the Act and expanatory notes. Section 28(8) was added to the origina Scotand Act 1998 by a ater Act. Section 28(8) reates to egisative consent motions which you expored earier in the course. 52 of 153 Tuesday 12 December 2017

53 Week 3: Law making processes in the Scottish Pariament 2 Legisative competence Section 29 of the Scotand Act 1998 sets out egisative competence and provides that An Act of the Scottish Pariament is not aw so far as any provision of the Act is outside the egisative competence of the Pariament. This section sets out the powers of the Scottish Pariament to make aws in devoved areas. You now expore those powers in Section 2.1. Figure 6 Section 29 Scotand Act 1998 (as amended) 2.1 The criteria to determine egisative competence Legisative competence of the Scottish Pariament is defined according to five criteria: 1 The UK Pariament can ony egisate for or in reation to Scotand. 2 The Scottish Pariament cannot egisate in reation to the reserved matters. 3 The UK Pariament cannot modify certain enactments (these incude the Human Rights Act 1998, certain provisions of the Acts of Union and the European Communities Act 1972). 4 Any egisation must be compatibe with the European Convention on Human Rights (ECHR) and with European Union aw. 5 The Scottish Pariament cannot remove the Lord Advocate from their position as head of the system for crimina prosecution. The concept of egisative competence is important because the Scotand Act 1998 (as amended) requires the egisative competence of any Bi to be assessed before it is introduced, and aso provides an opportunity for it to be chaenged after a Bi is passed but before it can become aw. 53 of 153 Tuesday 12 December 2017

54 Week 3: Law making processes in the Scottish Pariament 2 Legisative competence The Scottish Pariament does not have power to egisate for Engand, Waes or Northern Ireand; it cannot egisate on reserved matters and cannot create egisation which is incompatibe with EU aw or the ECHR. It must foow the provisions of the Scotand Act 1998 (as amended). Box 1 Changing ega cuture Legisative competence is a way of determining whether an Act of the Scottish Pariament has been produced within the power of the Scottish Pariament. This represents a change in the ega cuture of Scotand. Practising and academic awyers had, unti this point, been taught that an Act of Pariament was aw. With the introduction of the Scottish Pariament they must now question whether an Act of Pariament is aw. If an Act of the Scottish Pariament has been passed in an area where there is no egisative competence, that Act can be chaenged. Where such issues arise they wi be determined by a court. The fina court for the determination of these issues is the Supreme Court of the United Kingdom. You may reca from your studies of the rue of aw that one of the underying principes was that aws shoud be freey avaiabe. The use of the internet has enabed greater access to egisation. Laws made by both the Scottish and UK Pariaments can be accessed quicky onine. They are aso avaiabe in hard copy. However, you aso expored that the rue of aw requires that the aw is written in anguage that is, so far as possibe, cear and free from ambiguity. Having considered Sections 28 and 29 Scotand Act 1998 (as amended) you may have deveoped a view as to whether aws of the UK Pariament (the Scotand Act 1998 was passed by the UK Pariament as it transferred its powers to a new Scottish Pariament) are written in a cear and unambiguous way. 54 of 153 Tuesday 12 December 2017

55 Week 3: Law making processes in the Scottish Pariament 2 Legisative competence Figure 7 Competences 55 of 153 Tuesday 12 December 2017

56 Week 3: Law making processes in the Scottish Pariament 3 How aw is made in the Scottish Pariament 3 How aw is made in the Scottish Pariament The Scotand Act 1998 provided minimum requirements for the process which was to be foowed by the Scottish Pariament in creating aw by considering and passing Bis. Section 36(1) of the Scotand Act 1998 required there to be at east three distinct stages to which Bis are subject, incuding a stage when MSPs can debate and vote on the genera principes of a Bi, a stage when they can consider and vote on its detais and a fina stage when the Bi can be passed or rejected. Figure 8 Section 36 Scotand Act 1998 (as amended) 3.1 Bis in the Scottish Pariament Bis in the Scottish Pariament are very simiar, in terms of ayout, structure and the conventions of egisative drafting, to Bis of the UK Pariament. This is primariy because the Acts of the Scottish Pariament, to which they are intended to give rise, form part of the UK statute book aongside existing statute aw. A current Bis can be accessed on the Scottish Pariament website. Aongside the origina Bi other information such as the stages a Bi is going through, amendments, research briefings, ead committee (the committee designated to gather feedback and undertake scrutiny) and dates of consideration (both in pubic or private) can be found. 56 of 153 Tuesday 12 December 2017

57 Week 3: Law making processes in the Scottish Pariament 3 How aw is made in the Scottish Pariament Acts of the Scottish Pariament, as they form part of UK egisation, can be found at Legisation.gov.uk. Figure 9 Exampe of the ayout of a Bi 57 of 153 Tuesday 12 December 2017

58 Week 3: Law making processes in the Scottish Pariament 3 How aw is made in the Scottish Pariament Figure 10 Exampe of overview information avaiabe on Scottish Pariament website in reation to a Bi 3.2 Types of Bis The stages of a Bi through the Scottish Pariament wi depend on a number of factors as not a Bis foow the same process. Pubic Bis seek to change the genera aw or dea with matters of pubic poicy. Private Bis seek powers for a particuar organisation or individua that are in excess of or in confict with genera aw. There are aso a number of routes by which a Bi can be introduced. Tabe 1 Routes by which a Bi can be introduced Government Bi Members Bi introduced by Cabinet Secretaries and Ministers introduced by an MSP 58 of 153 Tuesday 12 December 2017

59 Week 3: Law making processes in the Scottish Pariament 3 How aw is made in the Scottish Pariament Committee Bi Private Bi introduced by the convenor of a pariamentary committee introduced by an externa person, company or group of peope A Bis submitted for introduction must be accompanied by various documents. These incude: expanatory notes a financia memorandum a statement of egisative competence a poicy memorandum. Other requirements appy to Bis reating to the budget and to Bis which seek to repea existing egisation. One of the purposes of this process is to provide as much information as possibe to ensure informed decision making. The Bis considered by the Scottish Pariament have been wide-ranging in their focus and topics, for exampe, from panning, historica monuments, succession, education, justice, carers, vioence, acoho, buria, bankruptcy, abusive behaviour, tenements, raiways, dog fouing, cimate change, crimina cases, agricutura hodings, eections, British sign anguage, wefare, the commonweath games, fur farming, water industry, high hedges, charities and homeessness to emergency workers and wind farms. Figure 11 Bis of the Scottish Pariament 1999 to 2016 Detais of Bis and the work of the Scottish Pariament can be found in their annua reports (accessibe via the Scottish Pariament website). Tabe 2 Breakdown of Bi types Scottish Pariament Annua Report Number of Bis Government Bis Members Bis Committee Bis Private Bis * 59 of 153 Tuesday 12 December 2017

60 Week 3: Law making processes in the Scottish Pariament 3 How aw is made in the Scottish Pariament (* pus 1 hybrid Bi). 3.3 Finding Bis Being abe to access and find information is an important ski. As you have earnt, one aspect of the rue of aw is that aws are accessibe. The Scottish Pariament website is designed to encourage as much engagement with the pubic as possibe and make the information about the work of the Scottish Pariament accessibe. It covers information on the work of the Pariament, MSPs and Committees. You wi aso see that there is a pariamentary TV channe where you can watch ive debates or access archive materia form previous debates. Activity 1 Finding Bis of the Scottish Pariament Aow about 20 minutes Find the Scottish Pariament website. Take a few moments to famiiarise yoursef with the website. What sort of information does it contain? Locate the information on current Bis under the Pariamentary business tab. Look at the number and range of those Bis and expore whether they are members Bis, government Bis or committee Bis. Comment Figure 13 contains what we found when ooking for current Bis. 60 of 153 Tuesday 12 December 2017

61 Week 3: Law making processes in the Scottish Pariament 3 How aw is made in the Scottish Pariament Figure 12 Exampes of what can be found when ooking for current Bis (6 May 2017). 3.4 Stages of egisation When a Bi is introduced to the Pariament there are three stages that it must go through. 61 of 153 Tuesday 12 December 2017

62 Week 3: Law making processes in the Scottish Pariament 3 How aw is made in the Scottish Pariament Stage 1 invoves consideration of the genera principes of the Bi by the pariamentary committee designated to dea with it. Here there wi be proactive engagement with the genera pubic and reevant experts. The committee wi report back to Pariament and, if Pariament agrees to the Bi s genera principes, it wi be referred back to the committee. Stage 2 entais detaied consideration of the Bi, incuding any amendments proposed by the Scottish Government and MSPs. Stage 3 is where fina consideration of the Bi takes pace and the Pariament votes on whether or not the Bi shoud be passed. Figure 14 shows an aternative and more visua way of iustrating the stages of a Bi. Pause for a few moments and refect on how you process and remember information. Which of the two ways of presenting the information do you prefer? The inear ist such as the one above, or the diagram in Figure 14? Being abe to identify the way in which you respond to, and earn from information, is a ski. One of the keys to success is identifying which best suits your own needs. Figure 13 Stages of a Bi (from Scottish Pariament website) One of the unique features of the Scottish Pariament is its openness, transparency of process and proactivity in engaging with the Scottish pubic. There are processes for wide 62 of 153 Tuesday 12 December 2017

63 Week 3: Law making processes in the Scottish Pariament 3 How aw is made in the Scottish Pariament consutation, an open evidence process at committees, and members of the pubic and interested parties are abe to iaise directy with MSPs to obby for amendments to a Bi. The Scottish Pariament website has a Getting Invoved week which encourages individuas to engage with and participate in the work of the pariament and expains how to do this. For a this work the Scottish Pariament has received internationa recognition and works more cosey with the peope MSPs represent. Figure 14 Extract from Scottish Pariament Annua Report 63 of 153 Tuesday 12 December 2017

64 Week 3: Law making processes in the Scottish Pariament 3 How aw is made in the Scottish Pariament Watch the foowing videos which provides an overview of the aw making process in the Scottish Pariament. Overview Stage 1 Stage 2 Stage 3 How the Bi comes into force A Government Bi To provide a favour of the aw making process you now consider the stages of a Government Bi. A Government Bi begins ife through the formuation of poicy. If it is fet that egisation is required to achieve that poicy, a team is put together to draft a Bi. Whie the draft Bi is being prepared there is usuay a process of pubic consutation. Pre-egisative scrutiny may aso take pace. This means that the proposas or draft Bi may be considered by a pariamentary committee. The committee chosen wi be the one expected to consider the Bi when it is introduced to the Pariament. This procedure is usefu as it aows members of the committee to famiiarise themseves with the subject matter of the Bi at an eary stage. When the draft Bi is finaised, there is a three-week period during which matters such as egisative competence are checked. At this point the Bi is aso checked to ensure that it is set out in the proper form. Once the Bi has been introduced the Stage 1 processes of the consideration of the Bi take pace. These are outined in Tabe 3 beow. Tabe 3 The processes of the consideration of a Bi Stage 1 Committee The function of the committee is to produce a Stage 1 report on the genera principes of the Bi. In preparing this they: ook at the accompanying documents, may take evidence from witnesses, may ask for written evidence and consider, for an Executive Bi, whether sufficient consutation was undertaken before introduction. Stage 1 Report Committee report which wi incude a recommendation as to whether the genera principes of the Bi shoud be agreed to. Stage 1 Debate Pariament decides whether to agree to the genera principes of the Bi. Debates take pace, amendments may be agreed or the Bi may be returned to the committee for a further report. Where there is agreement the Bi moves to Stage of 153 Tuesday 12 December 2017

65 Week 3: Law making processes in the Scottish Pariament 3 How aw is made in the Scottish Pariament The Stage 2 processes invove a more detaied consideration of the Bi by a committee. The Stage 2 committee coud be a committee of the whoe Pariament of which a MSPs are members, the committee producing the Stage 1 report or another speciaist committee. The Stage 2 process begins 11 whoe sitting days after the competion of the Stage 1 process. At Stage 2 the roe of the committee is to consider and dispose of proposed amendments to the Bi. Once the Stage 1 decision is taken, any MSP coud odge an amendment to the Bi. If amendments are agreed, the Bi is reprinted. Once Stage 2 has been competed, Stage 3 proceedings take pace. Again amendments can be proposed. The Bi is now heard by Pariament. Proposed amendments are deat with first. Once these have been voted on, Pariament must decide whether to pass the Bi. This is done by majority vote. 3.6 Roya Assent Section 32 of the Scotand Act 1998 provides that a Bi, once passed, must be submitted by the Presiding Officer for Roya Assent. This is done after a period of four weeks. During that time, the Bi may be subject to ega chaenge by the Advocate Genera for Scotand, the Lord Advocate or the Attorney Genera, and may aso be subject to an order made by the Secretary of State. The Presiding Officer may, however, submit the Bi for Roya Assent after ess than four weeks if notified by a three Law Officers and the Secretary of State that they do not intend to exercise their powers of ega chaenge. Roya Assent, when the Bi becomes an Act, is treated (under Section 28(3) of the Scotand Act 1998) as taking pace at the beginning of the day on which Letters Patent signed by the Monarch are recorded in the Register of the Great Sea by the Keeper of the Registers of Scotand. When Roya Assent has been given, the Cerk of the Pariament writes the date of Roya Assent on the Officia Print. The Cerk aso assigns an asp number in the form 2017 asp 1 (for the first Act given Roya Assent in The etters asp stand for Act of the Scottish Pariament). The Cerk then sends a certified copy of the Officia Print to the Queen s Printer for Scotand, as authority to pubish the Act. The Officia Print itsef is sent to the Keeper of the Records of Scotand for incusion in the Nationa Archives of Scotand (NAS). (NAS aso hod the signed Letters Patent.) The Queen s Printer version of the Act, which is identica to the Officia Print except the date and asp number are added, is avaiabe to the pubic through Stationery Office bookshops and on the OPSI (Office of Pubic Sector Information) website. (It is not a pubication of the Scottish Pariament and therefore does not appear on the Scottish Pariament website.) The text of the Act is aso sent to the Statutory Pubications Office for incusion in the eectronic Statute Law Database, egisation.gov.uk. With a Scottish Bi, the interva between the passing of a Bi and Roya Assent is ess predictabe in advance than it woud be in reation to a Bi of the UK Pariament because of the possibiity of a Law Officer s reference under Section 33 or 34 of the Scotand Act 1998 or a Secretary of State order under Section 35 of the Scotand Act Party for that reason, most Bis provide for a commencement date by an order made under the resuting Act. At the same time, the Officia Print version of the Act is prepared. This is produced on specia archive-quaity paper bound with ribbon. The Officia Print is identica, in terms of its egisative text, to the Bi that was passed by the Pariament. (This is made possibe by the drafting convention that, within the text of a Bi, a references are, for exampe, to this Act rather than this Bi.) You shoud now watch this video which expores the Forth Road Bridge. 65 of 153 Tuesday 12 December 2017

66 Week 3: Law making processes in the Scottish Pariament 3 How aw is made in the Scottish Pariament Video content is not avaiabe in this format. 3.7 Acts of Scottish Pariament Figure 15 shows the number of Acts passed by the Scottish Pariament from Figure 16 shows the origin of Acts between 2009 and 2016, indicating whether they originated from Government, Members, Private or Committee Bis. Figure 15 Acts of the Scottish Pariament 1999 to of 153 Tuesday 12 December 2017

67 Week 3: Law making processes in the Scottish Pariament 3 How aw is made in the Scottish Pariament Figure 16 The origin of Acts of the Scottish Pariament If you wish to find out more about the work of the Scottish Pariament then the annua reports provide a good starting point and can be found using the search function on their website. You shoud now watch the foowing video in which Iain Gray, MSP, refects on egisation of the Scottish Pariament and the important roe that aw pays in society. Video content is not avaiabe in this format. 67 of 153 Tuesday 12 December 2017

68 Week 3: Law making processes in the Scottish Pariament 4 This week s quiz Figure 17 Aquacuture and Fisheries (Scotand) Act 2007 Before moving on to the next week watch this cip which expores the work of the Scottish Pariament in You can out more about the work of the Scottish Pariament and how to foow their work on the Scottish Pariament website. 4 This week s quiz We done you have reached the end of Week 3 and can now take the weeky quiz to test your understanding. Week 3 practice quiz Open the quiz in a new tab or window (by hoding ctr [or cmd on a Mac] when you cick the ink). Summary In this week you earnt about the aw making processes of the Scottish Pariament. You have expored how Bis become aw, the different types of Bi and begun to understand 68 of 153 Tuesday 12 December 2017

69 Week 3: Law making processes in the Scottish Pariament Summary the Scottish Pariament s roe in aw making. You wi earn to read an Act of the Scottish Pariament in ater weeks. You shoud now be abe to: expain the different types of Bis describe the stages in the aw making process of the Scottish Pariament expain the egisative competence of the Scottish Pariament. In the next week you earn about the aw making process in the UK Pariament. The UK Pariament egisates on reserved matters and matters where a egisative consent motion has been passed by the Scottish Pariament. You can now go to Week of 153 Tuesday 12 December 2017

70 Week 3: Law making processes in the Scottish Pariament Summary Figure 18 Summary overview of Week 3 70 of 153 Tuesday 12 December 2017

71 Week 4: Law making and the UK Pariament Introduction Week 4: Law making and the UK Pariament Introduction In this week you expore the roe of the UK Pariament in aw making. You have earnt that the UK Pariament egisates on reserved matters. It can aso egisate on devoved matters with the agreement of the Scottish Pariament. Figure 1 Inside the UK Pariament 71 of 153 Tuesday 12 December 2017

72 Week 4: Law making and the UK Pariament Introduction Figure 2 Inside the House of Lords The aw making process at Westminster is a very different process from that of the Scottish Pariament. It invoves both the Houses of the UK Pariament. Unike the Scottish Pariament, the UK Pariament is bicamera, it has two chambers, the House of Commons and the House of Lords. By the end of this week you wi be abe to: understand the aw-making process in the UK Pariament expain the difference between the House of Commons and House of Lords expain the types of Bis introduced in the UK Pariament. 72 of 153 Tuesday 12 December 2017

73 Week 4: Law making and the UK Pariament 1 Bis in the UK Pariament 1 Bis in the UK Pariament Figure 3 UK Pariament An Act of the UK Pariament starts off as a Bi, which, if approved by a majority in the House of Commons and the House of Lords, becomes an Act of the UK Pariament. There are severa types of Bi: A Pubic Bi This is the most common type of Bi. Pubic Bis dea with matters affecting the pubic generay and are usuay introduced by a government Minister. Most Bis are pubic and are introduced and supported by the government. A Private Members Bi A Private Members Bi deas with matters affecting the pubic generay but is introduced by a Member of Pariament who is not a Minister. Private Members Bis are a type of Pubic Bi and shoud not be confused with Private Bis. A Private Bi Deas with issues which affect ony a very sma number of peope. For exampe a Private Bi coud dea with a matter affecting a singe oca authority. Private Bis are promoted by the group concerned. A Private Bi does not affect the genera pubic as a whoe. The rest of this section wi dea mainy with Pubic Bis and the procedura stages through which they must pass to become Acts of the UK Pariament. 1.1 Preparation for Bis A period of preparation of a Bi aows time to scrutinise evidence on the poicies underying Bis, and to consider whether Bis can be improved before they are introduced. Proper preparation of a Bi shoud ead to better-informed debates on Bis 73 of 153 Tuesday 12 December 2017

74 Week 4: Law making and the UK Pariament 1 Bis in the UK Pariament when they are introduced, and may save time by identifying probems at an eary stage. This period of pre-egisative scrutiny aows vauabe time for consideration and is intended to avoid introducing aws that are unworkabe. Consutations are organised by the Government Department responsibe for the Bi and may incude the foowing: The Government Department wi pubish a Green Paper outining the ideas for a Bi and seek comments and advice from affected organisations. These comments are summarised by civi servants and passed on to the reevant Minister. The Department may then pubish a White Paper that outines firm proposas which wi be contained in the Bi. This White Paper wi form the basis of the Bi to be introduced to Pariament. 74 of 153 Tuesday 12 December 2017

75 Week 4: Law making and the UK Pariament 1 Bis in the UK Pariament Figure 4 Scotand's Pariament document 75 of 153 Tuesday 12 December 2017

76 Week 4: Law making and the UK Pariament 1 Bis in the UK Pariament Figure 5 The Scotand Bi: Devoution and Scotand's Pariament Figure 6 Pubic consutation on the United Kingdom s future ega framework Bis are drafted by Pariamentary Draftsmen (awyers skied in drafting Bis) who work to ensure that a Bi is cear and unambiguous. 76 of 153 Tuesday 12 December 2017

77 Week 4: Law making and the UK Pariament 2 Stages of a Bi in the UK Pariament Box 1 Bis and Pariamentary Counse Sir Geoffrey Bowman KCB, First Pariamentary Counse [ ] in written evidence, [he] described the reationship between the Department from which a bi originated and the Pariamentary Counse Office: A Bi is a joint effort, and there are many participants Ministers, administrative and ega civi servants, drafters, Members and officias of both Houses, and members of the pubic affected by the Bi. The drafter s main contact wi usuay be with the departmenta awyers, who draw up written instructions to our office. There is an inherent tension in the process of producing Bis. On the one hand there is the poitica need to get egisation prepared and enacted quicky. On the other hand there is the need to get egisation right. If it does not stand up to ogica anaysis or it is egay defective, it wi be prone to attack as it passes through Pariament and (once enacted) it wi be chaenged in the courts. There is aways a baance to be struck. If you go too quicky you risk producing a fauty product. If you go too sowy you risk getting nothing done. But any Bi needs a certain time to mature. Everything needs to be thought through and tested in order to make sure that it stands up. The iterative process in which successive drafts are tried out and discussed prior to introduction into Pariament is vita. And it takes time. Key, R. and the Pariament and Constitution Centre. (2005). 2 Stages of a Bi in the UK Pariament In order to become an Act of the UK Pariament a Bi has to be passed by both the House of Commons and the House of Lords. A Bi may start in either the House of Commons or the House of Lords, with the exception of Finance Bis which aways start in the House of Commons. A Finance Bi is introduced by the UK Government shorty after the Budget to bring the government s tax proposas into aw. Before the Bi can become an Act of the UK Pariament it must undergo a number of stages. Briefy these are as foows. 1 First reading The tite of a Bi is read out and copies of it are printed but no debate takes pace. There wi be a vote on whether the House wishes to consider the Bi further. 2 Second reading The genera principes contained in the Bi are debated. Frequenty, the second reading stage is the point at which pubic attention becomes drawn to the proposa through press coverage and, on occasion, vociferous campaigns for and against the Bi by groups 77 of 153 Tuesday 12 December 2017

78 Week 4: Law making and the UK Pariament 2 Stages of a Bi in the UK Pariament affected by the Bi. At the end of this debate a vote is taken: a majority must be in favour of the Bi in order for it to progress any further. 3 Committee stage At this stage a detaied examination of each cause of the Bi is undertaken by a Committee of between 16 and 50 MPs. The Committee subjects the Bi to ine-by-ine examination and makes amendments. The Committee which carries out these discussions comprises representatives of the different poitica parties roughy in proportion to the overa composition of the House. Often there wi be a government majority on the Committee; however, an attempt is made to ensure representation by minority parties. The membership of the Committee wi usuay be those with a specia interest in, or knowedge of, the subject of the Bi under consideration. (For Finance Bis the whoe House of Commons wi sit in Committee.) 4 Report stage A Bi that has been amended in Committee stage is reviewed by the House where it started. The amendments wi be debated in the House and accepted or rejected. Further amendments may aso be added. 5 Third reading This is the fina vote on the Bi. It is amost a formaity since a Bi which has passed through a the stages above is unikey to fai at this ate stage. In fact in the House of Commons there wi ony be a further debate on the Bi if at east six MPs request it. In the House of Lords amendments are sometimes made at this stage. 6 The House of Lords The House of Commons and the House of Lords must finay agree on the text of a Bi. If a Bi started ife in the House of Commons it is now passed to the House of Lords where it goes through a of the stages outined above. If the House of Lords makes amendments to the Bi it wi go back to the House of Commons for that House to consider those amendments. 78 of 153 Tuesday 12 December 2017

79 Week 4: Law making and the UK Pariament 2 Stages of a Bi in the UK Pariament Figure 7 The House of Lords in session If the House of Lords votes against a Bi it can go back to the House of Commons and wi become aw if the House of Commons passes it for the second time. The reason for this is that the House of Lords is not an eected body and its function is to refine and add to aw rather than oppose the wi of the democraticay eected House of Commons. There are proposas to make the House of Lords more representative and some members of the House of Lords may be eected in the future. This coud possiby ead to a change in the roe and function of the House of Lords. 2.1 Debating Bis There is opportunity for pariamentary debate and discussion at a stages except the initia stage. This process enabes poiticians from a parties to participate in pariamentary debates. The debate and discussion aso aows the UK Government the opportunity to refect on its proposed aws and modify them if necessary. An intricate web of poitics therefore is woven into what otherwise might appear a rather mechanica procedure for making aw.!warning! Caibri not supportedfigure 7 provides an overview of the process a Bi goes through in the UK Pariament. You Figure 8 Stages of a Bi 79 of 153 Tuesday 12 December 2017

80 Week 4: Law making and the UK Pariament 2 Stages of a Bi in the UK Pariament Watch the foowing video which expores how the House of Lords works with the House of Commons to make a Bi aw. Watch the Video at YouTube.com How the Lords works with the Commons to make a Bi aw 2.2 Roya Assent The monarch formay assents to a Bi in order for it to pass into aw. Roya Assent has never been withhed in recent times. Queen Anne was the ast monarch to withhod Roya Assent, when she bocked a Scottish Miitia Bi in The Queen feared a Scottish miitia might be turned against the monarchy. Figure 9 Bis of the UK Pariament receiving Roya Assent on 27 Apri 2017 Since the sixteenth century no monarch has actuay signed a Bi themseves. Instead, the monarch signs what are known as Letters Patent which announce that the monarch has given their assent. Aternativey, the Queen signs a document known as a Commission which commands certain Lords, known as Roya Commissioners, to et both Houses of Pariament know that Roya Assent has been given. Once Roya Assent has been given, the Bi is an Act of the UK Pariament. 2.2 Commencement of Acts of the UK Pariament Foowing the Roya Assent the Act of the UK Pariament wi usuay come into force on midnight of that date. However there has been a growing trend for Acts of the UK Pariament not to come into force immediatey. Instead, the Act itsef either states the date when it wi commence, or responsibiity passes to the appropriate Minister to fix the date when the Act wi come into force. In the atter case the Minister wi bring the Act into force by issuing a commencement order. To earn more watch the foowing video: To earn more about the roe in the House of Commons in aw making: 80 of 153 Tuesday 12 December 2017

81 Week 4: Law making and the UK Pariament 2 Stages of a Bi in the UK Pariament To earn more about the work of the UK Pariament watch: 2.3 The UK Pariament and Scotand The UK Pariament has the power to egisate on reserved matters and on devoved matters where a egisative consent motion has been passed by the Scottish Pariament. Activity 1 now asks you to expore Acts of the UK Pariament and their reevance to Scotand. Activity 1 Exporing Acts of the UK Pariament Aow about 10 minutes Take a few moments to consider the Acts isted beow. These Acts were some of the fina Bis to receive Roya Assent before the dissoution of the UK Pariament on 3 May 2017 prior to the genera eection on 8 June Having read through the ist, and based on the tites of the Act and your knowedge of matters which are devoved and reserved, indicate whether or not you think the Act covers Scotand. The Broadcasting (Radio Mutipex Services) Act 2017 Yes No Not sure The Bus Services Act 2017 Provide your answer... Provide your answer... Provide your answer... Chidren and Socia Work Act 2017 Provide your answer... Provide your answer... Provide your answer... Crimina Finances Act 2017 Provide your answer... Provide your answer... Provide your answer... Farriers (Registration) Act 2017 Provide your answer... Provide your answer... Provide your answer... Finance Act 2017 Provide your answer... Provide your answer... Provide your answer of 153 Tuesday 12 December 2017

82 Week 4: Law making and the UK Pariament 2 Stages of a Bi in the UK Pariament Guardianship (Missing Persons) Act 2017 Provide your answer... Provide your answer... Provide your answer... Heath Service Medica Suppies (Costs) Act 2017 Provide your answer... Provide your answer... Provide your answer... Homeessness Reduction Act 2017 Provide your answer... Provide your answer... Provide your answer... Inteectua Property (Unjustified Threats) Act 2017 Provide your answer... Provide your answer... Provide your answer... Loca Audit (Pubic Access to documents) Act 2017 Provide your answer... Provide your answer... Provide your answer... Merchant Shipping (Homosexua Conduct) Act 2017 Provide your answer... Provide your answer... Provide your answer... Nationa Citizen Service Act 2017 Provide your answer... Provide your answer... Provide your answer... Neighbourhood Panning Act 2017 Provide your answer... Provide your answer... Provide your answer... Northern Ireand (Ministeria Appointments and Regiona Rates) Act 2017 Provide your answer... Provide your answer... Provide your answer... Parking Paces (Variation of Charges) Act 2017 Provide your answer... Provide your answer... Provide your answer... Pension Schemes Act 2017 Provide your answer... Provide your answer... Provide your answer of 153 Tuesday 12 December 2017

83 Week 4: Law making and the UK Pariament 2 Stages of a Bi in the UK Pariament Preventing and Combating Vioence Against Women and Domestic Vioence (Ratification of Convention) Act 2017 Provide your answer... Provide your answer... Provide your answer... Comment The purpose of this activity was to get you to refect on the which matters the UK Pariament may egisate for Scotand, whether these be as a resut of reserved powers, such as internationa reations, or where there have been egisative consent motions. Figures 10, 11 and 12 have been provided to show you where the information that appears in these comments for each Act was found. Legisation.gov.uk does, on occasion, change but the screen shots are of the foowing: Figure 9 is of the egisation.gov.uk home page. On this page Scotand was seected which ead to the screen shot in Figure 10. Then by cicking on UK Pubic Acts the screen shot in Figure 11 appeared. Each Act was seected and then the extent Section was read to ocate the answers given beow. Your studies in subsequent weeks wi famiiarise you with the ook and ayout of Acts. Figure 10 The officia home of UK egisation 83 of 153 Tuesday 12 December 2017

84 Week 4: Law making and the UK Pariament 2 Stages of a Bi in the UK Pariament Figure 11 Seecting the Scotand tab on the home page eads to this and then seecting UK Pubic Genera Acts Figure 12 Seecting UK Pubic Genera Acts from the Scotand page A number of the Acts had an impact on the aw in Scotand. Three of the Bis which you saw in Figure 8 earier and which had received Roya Assent were not shown on egisation.gov.uk at the time of search 7 May These were the Digita Economy Bi, the Higher Education and Research Bi and the Haversham Oyster Fishery Company Bi. The Broadcasting (Radio Mutipex Services) Act Section 2 (1) states that it appies to (extends to) a of the UK. The Bus Services Act 2017 Section 25 states that ony certain provisions appy in Scotand (sections 17 and 23 to 27). Chidren and Socia Work Act 2017 states that section 10 and certain paragraphs in Schedue 1 appy to Engand, Waes and Scotand. 84 of 153 Tuesday 12 December 2017

85 Week 4: Law making and the UK Pariament 2 Stages of a Bi in the UK Pariament Crimina Finances Act 2017 Section 57 states that certain provisions appy UKwide and certain provisions ony appy to Scotand or Northern Ireand or Engand and Waes. Farriers (Registration) Act 2017 Section 3(1) states that the Act appies in Engand, Waes and Scotand. Finance Act 2017 outines fines to be appied on conviction in Scotand. Guardianship (Missing Persons) Act 2017 appies to Engand and Waes ony. Heath Service Medica Suppies (Costs) Act 2017 appies to Engand and Waes ony. Homeessness Reduction Act 2017 Section 13 states it appies to Engand and Waes ony. Inteectua Property (Unjustified Threats) Act 2017 Section 7 states that it appies to Engand, Waes, Scotand and Northern Ireand. Loca Audit (Pubic Access to documents) Act 2017 Section 2 states that it appies to Engand and Waes ony. Merchant Shipping (Homosexua Conduct) Act 2017 Section 2(3) states that the Act appies to Engand, Waes, Scotand and Northern Ireand subject to Section 3(2). Nationa Citizen Service Act 2017 Section 13 states that the Act appies to Engand and Waes (subject to any subsequent amendments which may extend the Act). Neighbourhood Panning Act 2017 Section 45 states that the Act appies to Engand and Waes except Section 42 and Part 3 which appy to (extend to) Engand and Waes, Scotand and Northern Ireand. Northern Ireand (Ministeria Appointments and Regiona Rates) Act 2017 Section 3(1) states that it appies to Northern Ireand ony. Parking Paces (Variation of Charges) Act 2017 Section 3(2) states that it appies to Engand and Waes ony. Pension Schemes Act 2017 Section 43 states that the Act extends (appies to) to Engand, Waes and Scotand. Preventing and Combating Vioence Against Women and Domestic Vioence (Ratification of Convention) Act 2017 Section 3(3) states that the Act appies (extends to) Engand, Waes, Scotand and Northern Ireand. Technica and Further Education Act 2017 states in Section 46 that Part Four and Section 6 (as it reates to Section 426 of the Insovency Act 1986) appy to Engand and Waes, Scotand, and Northern Ireand. Section 46(3) states that the remaining sections of the Act appy to Engand and Waes ony. 2.4 The work of the UK Pariament and getting invoved You shoud now have an understanding of the UK Pariament s roe in reation to aw making and Scotand. As you have seen from Activity 1 this can create compexity as parts of some Acts wi appy to Scotand, a of some Acts wi appy to Scotand and other 85 of 153 Tuesday 12 December 2017

86 Week 4: Law making and the UK Pariament 2 Stages of a Bi in the UK Pariament Acts wi not appy in Scotand at a. This is a piecemea approach to aw making which you consider further in ater weeks. Figure 13 Get invoved You can out more about the work of the UK Pariament and how to foow their work on the UK Pariament website. 86 of 153 Tuesday 12 December 2017

87 Week 4: Law making and the UK Pariament 3 This week s quiz Figure 14 UK Pariament homepage 3 This week s quiz It s time to compete the Week 4 badged quiz. It is simiar to previous quizzes, but this time instead of answering five questions there wi be fifteen. Week 4 compusory badge quiz Remember, this quiz counts towards your badge. If you re not successfu the first time, you can attempt the quiz again in 24 hours. Open the quiz in a new tab or window (by hoding ctr [or cmd on a Mac] when you cick the ink. Summary In this week you earnt about the aw making processes of the UK Pariament. You have expored how Bis become aw, the different types of Bi and begun to understand the UK Pariaments roe in aw making in reation to Scotand. You shoud now be abe to: understand the aw-making process in the UK Pariament expain the difference between the House of Commons and House of Lords 87 of 153 Tuesday 12 December 2017

88 Week 4: Law making and the UK Pariament Summary expain the types of Bis introduced in the UK Pariament. Next week you expore how acts of the Scottish Pariament are structured and cited (referenced). You can now go to Week 5. Figure 14 Summary overview of Week 4 88 of 153 Tuesday 12 December 2017

89 Week 5: Reading an Act of the Scottish Pariament Introduction Week 5: Reading an Act of the Scottish Pariament Introduction In this week you examine how egisation is structured and how you reference (cite) egisation. You were introduced to sections of an Act when you expored the powers of the Scottish Pariament and Sections 28 and 29 of The Scotand Act 1998 (as amended). Here you earn more about the structure of Acts and how to read them. By the end of this week you shoud be abe to: expain how an act is structured discuss the accessibiity of anguage used in Acts understand the roe of Pariamentary Counse. 1 Acts: An overview You have earnt that Acts of the Scottish Pariament and Acts of the UK Pariament (aso referred to as statutes and often referred to as egisation) originate in the Scottish (Hoyrood) or UK (Westminster) Pariaments as Bis. Once a Bi has passed through the various Pariamentary stages it may receive Roya Assent and become an Act. Some Acts of the UK Pariament sti appy to Scotand, whie a Acts of the Scottish Pariament appy to Scotand ony. Since 1999 Expanatory Notes have been produced for a Pubic Acts (and some Private Acts) pubished by the Scottish Pariament and UK Pariament. These Expanatory Notes are designed to make the Act of Pariament accessibe by providing expanations in pain Engish outining what the Act sets out to achieve, why it was passed and its content and extent. These are aimed at readers who have no speciaised knowedge of the matters deat with in the Act. Recent Acts of Pariament have moved towards using ordinary anguage and being more ceary written so that they are accessibe. This is regarded as important as individuas shoud easiy be abe to understand exacty what the Act was intended to cover and what the aw is on a particuar subject. Some Acts of the Pariaments however, particuary oder Acts, can be more difficut to understand. This may be due to the compexity of the subject matter, the more traditiona anguage used, the ength of the Act or the number of provisions within the Act. 89 of 153 Tuesday 12 December 2017

90 Week 5: Reading an Act of the Scottish Pariament 2 Acts of the Scottish Pariament Some Acts may codify (bring together) the aw on a specific area. Some Acts codify common aw, some Acts may amend the aw whie aso creating new aws, others consoidate severa Acts into one and other Acts create new aws. Acts of the Pariaments may aso incude a ot of exceptions to the Act, a ot of whereases and cross-references to other Acts. This can make it difficut to understand what an Act means and covers. Box 1 Citations When an Act is referenced in writing it is given a citation. The citation aows the reader to ocate the reevant Act and Section that the writer is referring to. Every Act is given a running number for the year in which it is passed. These are known as the asp (ower case is used) number for Acts of the Scottish Pariament and Chapter Number for UK Acts. Acts are referred to by their short tite and year, for exampe, Nationa Gaeries of Scotand Act 2003 (whose running number is asp16) or the Scotand Act 2016 ( whose running number is Chapter 11). Parts of statutes Acts tend to be divided into sections which are often further divided into sub-sections. For exampe Section 28(6) refers to Section 28 subsection 6. Schedues Many Acts have schedues at the end. Don t overook these as they can contain important information. For exampe, in week 1 you earnt that Schedue 5 of the Scotand Act 1998 (as amended) sets out the reserved matters on which the Scottish Pariament cannot egisate. These may be further divided into paragraphs, for exampe: Sch.1 para 8 is a reference to schedue 1, paragraph 8. 2 Acts of the Scottish Pariament In this section you ook at an Act that started ife as Private Members Bi. This Act has been chosen as it is short and has an accompanying expanatory note. The starting point with any egisation from the Scottish Pariament is to consider whether it has been passed with the egisative competence of the Scottish Pariament. The matter in this Private Members Bi is not a reserved one as it does not touch upon a reserved matter such as nationa security. The Bi reates to and and buidings in the centre of Edinburgh. 90 of 153 Tuesday 12 December 2017

91 Week 5: Reading an Act of the Scottish Pariament 2 Acts of the Scottish Pariament Figure 1 Screenshot of the summary of the Nationa Gaeries Bi from the Scottish Pariament website (accessed 5 October 2017) 2.1 Accompanying documentation to Bis Through Activities 1-4 you wi become famiiar with the documents which accompany Bis. Activity 1 fpromoters' memorandum to the Nationa Gaeries of Scotand Bi Aow about 15 minutes Read through the promoter s memorandum (The Scottish Pariament, 2015b) then answer the foowing questions. 1 Who were the promoters of the Bi? Comment The promoters of the Bi were the Board of Trustees of the Nationa Gaery of Scotand. This information coud be found in paragraph one. 2 When was the Bi introduced? Comment 91 of 153 Tuesday 12 December 2017

92 Week 5: Reading an Act of the Scottish Pariament 2 Acts of the Scottish Pariament The Bi was introduced into the Scottish Pariament on 28 October This information was in paragraph one. 3 What were the objectives of the promoters? Comment The objectives of the promoters were in reation to a piece of and onto which new faciities for the Nationa Gaery of Scotand woud be buit. These incuded new faciities and access. The proposed buiding works and improvements were prevented by a statutory restriction and the Trustees were seeking permission by egisation to carry out those works. They were seeking to have the and removed from the gardens over which there was a restriction and the restriction on that piece of and removed. This information coud be found in paragraph three. 4 Who has been consuted? Comment Paragraph 34 contained a ist of 19 organisations that had been consuted and expained why they had been chosen. 92 of 153 Tuesday 12 December 2017

93 Week 5: Reading an Act of the Scottish Pariament 2 Acts of the Scottish Pariament Figure 2 Nationa Gaery of Scotand showing the extension Figure 3 Nationa Gaery of Scotand showing its ocation in the Mound, Princess Street gardens 93 of 153 Tuesday 12 December 2017

94 Week 5: Reading an Act of the Scottish Pariament 2 Acts of the Scottish Pariament Having read the promoters' memorandum Activity 2 asks you to think about egisative competence and how Bis are advertised as part of the open and transparent aw making process. Activity 2 Expanatory note Aow about 10 minutes Read through the expanatory note (The Scottish Pariament, 2015a) and answer the foowing questions. 1 Who gave the statement on egisative competence? Comment The statement on egisative competence was given by the Presiding Officer (Sir David Stee) in paragraph Where had advertisements giving notice of the Bi been paced? Comment Advertisements giving notice of the Bi had been paced both in newspapers (the Scotsman and Evening News on two separate occasions) and oca ibraries (based in six Edinburgh constituencies). 2.2 Structure of an Act of the Scottish Pariament Having considered the promoters' memorandum and expanatory note Activity 3 requires you to read the Act and answer a number of questions in reation to that Act. Activity 3 Structure and commencement Aow about 15 minutes Read through the Nationa Gaeries of Scotand Act 2003 in Figure 5 beow and answer the foowing questions. 94 of 153 Tuesday 12 December 2017

95 Week 5: Reading an Act of the Scottish Pariament 2 Acts of the Scottish Pariament Figure 4 Nationa Gaeries of Scotand Act 2003 (asp 16) 1 How is the Act to be cited and where is this information found? 95 of 153 Tuesday 12 December 2017

96 Week 5: Reading an Act of the Scottish Pariament 2 Acts of the Scottish Pariament Comment Section 3(1) states that the Act to be cited as the Nationa Gaeries Scotand Act When did the Act come into force? i.e. when did it become aw? Comment The Act came into force on 8 May This was one week after 1 May 2003, the date of Roya Assent. This information coud be found in Section 3 (2). 3 How many sections does the Act have? Comment The Act has three Sections. 4 What does the Act do? Comment The Act provides for a certain piece of and to cease to form part of Princes Street Gardens and to disappy the effect of Section 22 of the Schedue to the City of Edinburgh District Counci Order Confirmation Act 1991 to that and. Section 1 is designed to remove the restrictions and Section 2 specifies the piece of and to which the Act appies. An expanatory note accompanied the Act. You have not been asked to read this but you may wish to do so. If you visit the Nationa Gaery on the Mound in Edinburgh you wi see the competed works which incude a ecture theatre, café, improved access and a ink between the buidings. 96 of 153 Tuesday 12 December 2017

97 Week 5: Reading an Act of the Scottish Pariament 2 Acts of the Scottish Pariament Figure 5 Nationa Gaery of Scotand Through Activities 1-3 you became famiiar with the documents which may accompany a Bi and the structure of an Act of the Scottish Pariament. Athough the Scottish Pariament works to be as transparent and open as possibe in its aw making process there are imitations as the structure of Acts is determined by ong standing historica precedent. Activity 4 asks you to consider and refect on the process. Activity 4 Refection on reading an Act Aow about 10 minutes Take a few moments to think about everything you have read. Refect on the different types of document you have read, one of which contained a aw. How approachabe did you find the stye of writing, ayout and anguage used in the documents? Comment Some of the information you may have found approachabe and interesting, some you may have found difficut in its use of technica or speciaised terminoogy and some you wi have found straightforward. However you approached the information you have been asked to read in this activity, you wi have started to deveop strategies to hep you make sense of it. 97 of 153 Tuesday 12 December 2017

98 Week 5: Reading an Act of the Scottish Pariament 2 Acts of the Scottish Pariament Understanding an Act is not aways easy without some guidance. This activity was presented in a number of stages to introduce the speciaist terminoogy used, incuding sections, schedues, commencement and asp numbers. This was designed to make the task more approachabe and to introduce you to, and buid your confidence in, reading unfamiiar and technica materia. Some famiiarity with the terminoogy and conventions (such as citation) used makes understanding an Act much easier. Some reading strategies Figure 6 contains a number of suggestions that you may find usefu when reading. Figure 6 Some tips for reading 98 of 153 Tuesday 12 December 2017

99 Week 5: Reading an Act of the Scottish Pariament 3 Who drafts the Bis? 2.3 Citing an Act Acts can often seem confusing at first, particuary if they are ong and use technica or compex anguage. The use of citation however can work as a sort of shorthand to make discussion of the Act more straightforward and ensure that peope know exacty which Act, and which part of the Act or its supporting documents, are being discussed. Tabe 1 provides an overview guide to citing an Act in different ways and contexts. Tabe 1 Citing an Act of the Scottish Pariament Type of citation Exampe Short tite incuding year Harbours (Scotand) Act 2015 Number 2015 asp 13 Citation in written materia such as an academic essay Citation where a Section of the Act has been referred to specificay or quoted If you refer to the Act in a sentence (Harbours (Scotand) Act 2015) (Harbours (Scotand) Act 2015 Section 2) or (Harbours (Scotand) Act 2015 s.2.) The Harbours (Scotand) Act 2015 was designed to If you want to refer to a specific Section to expain it Section 2 of Harbours (Scotand) Act 2015 states that Reference incuded in a bibiography or reference ist at the end of an artice or academic essay Harbours (Scotand) Act 2015 asp Who drafts the Bis? You have seen that drafting (writing) a Bi in a way that is both egay certain and precise, and comprehensive and accessibe, is no easy task. Drafting is a ski. At the Scottish Pariament there are a group of individuas whose task it is to draft Bis. Box 2 Extract from drafting Legisation and the Pariamentary Counse Office 2005 Since devoution, the Lord Advocate has become head of the Crown Office and Procurator Fisca Service. He is assisted by the Soicitor Genera for Scotand. They are the Scottish Law Officers and members of the Scottish Executive. The Office of the Scottish Pariamentary Counse is ocated within the Scottish Executive. The Office is: Responsibe for drafting Bis to be put before Pariament by the Executive and handing associated work such as the preparation of Executive amendments to Bis. It is headed by to the First Scottish Pariamentary Counse. In addition, the office has 12 Pariamentary Counse. 99 of 153 Tuesday 12 December 2017

100 Week 5: Reading an Act of the Scottish Pariament 4 Acts of the UK Pariament However, the Scottish devoution settement aowed for not ony Members bis (simiar to Westminster s Private Members bis) but aso for bis to be recommended by committees. Such bis are not prepared by the Office of the Scottish Pariamentary Counse. The Scottish Pariament has a non-executive bi unit which provides support for both members bis and committee bis. It was described in evidence to the Richard Commission on the powers and eectora arrangements of the Nationa Assemby for Waes: It s basicay a drafting resource within the Pariament itsef but the members of that Unit are a staff of the Pariament not staff of the Executive and they aso incidentay draft Members Bis so it is quite distinct from the Office of the Scottish Pariamentary Counse. Key, R. and the Pariament and Constitution Centre, (2005) You wi now consider Acts of the UK Pariament as these sti have reevance in Scotand. 4 Acts of the UK Pariament Copies of a Acts of the Pariament sitting at Westminster have been kept since Most of these are kept in the House of Lords Record Office in the Victoria Tower at Westminster and are avaiabe for pubic inspection on arrangement with the Cerk of the Records. The odest Act hed in the Victoria Tower dates from 1497 and is entited The Taking of Apprentices for Worsteads in the County of Norfok Act. Box 3 The tite of an Act of the UK Pariament Acts before 1962 use the foowing reference: Year of reign (known as Regna Year)/Monarch/chapter number to define a chapter of the appropriate statute book. The terminoogy chapter arises because the very eariest Acts were regarded as parts of a singe statute passed at one meeting of Pariament. For exampe, 16 Chares II c.2 was the second Act passed during the session of Pariament that fe during the 16 th year of the reign of Chares II. Another exampe is the Bis of Sae Act of 1854 known as 17 & 18 Vict c.36. Since 1962, the Regna Year has been repaced by the caendar year. Now a Acts of Pariament have a name and date, for exampe, the Road Traffic Act The name usuay refects the subject matter of the Act and the date indicates the year in which the Act passed through Pariament. Acts aso have a number (for exampe, the Road Traffic Act was No. 50 of 1961 that is, it was the 50 th Act passed in 1961). You shoud now watch the foowing video which considers the Farriers (Registration) Act Video content is not avaiabe in this format. 100 of 153 Tuesday 12 December 2017

101 Week 5: Reading an Act of the Scottish Pariament 5 Bis and Acts and the UK Pariament 5 Bis and Acts and the UK Pariament The Office of the Pariamentary Counse is a group of government awyers who speciaise in drafting egisation. Their roe begins when egisation is first being considered and they remain invoved throughout the Pariamentary process and beyond. Figure 7 Houses of the UK Pariament at Westminster 101 of 153 Tuesday 12 December 2017

102 Week 5: Reading an Act of the Scottish Pariament 6 Making aw accessibe Box 4 Information on Acts of the UK Pariament Putting the Act into force The Government is responsibe for bringing new aws into force, once they have been passed by Pariament. An Act may come into force immediatey, on a specific future date, or in stages. You can find out when an Act is due to come into force by ooking at a Section of the Act itsef, headed Commencement this is among the very ast sections of an Act. Sometimes a specific date is not given and the timing is eft to the discretion of the Secretary of State for the reevant government department. Athough Pariament is not responsibe for impementing egisation, its committees can investigate how we an Act is being impemented by the Government and the effect that the new aw is having. This is known as post-egisative scrutiny. Changes to Acts Future changes to the aw happen through the passing of another Act or deegated egisation. An Act can aso be repeaed so that its provisions no onger appy. Pariamentary committees examine UK aws and recommend the remova of out-of-date egisation. Finding the text of Acts Amost a current Acts of Pariament are avaiabe to read on the Legisation.gov.uk website. Be aware that the text of the origina Act passed by Pariament wi differ from a revised version of the Act that incorporates changes made by subsequent egisation. The UK Houses of Pariament changed from hand writing origina Acts of Pariament to printing them in They are printed on veum, and sti are to this day. The Acts were aso the Bis, unti the switch to printing. The Bis woud pass through one House, be handwritten onto parchment after report stage, and a amendments made on third reading and during a stages in the second House were painstakingy made onto the parchment. This same document became the Act after Roya Assent. This was the case from , so anyone wanting to consut Bis in this period shoud actuay consut the origina Act. There do additionay exist printed Bis for reference from the eary 18 th century but they were not made systematicay. There is no singe definitive set, sometimes they were printed by private promoters (rather than by Pariament), and where odd Bis do survive there is often no indication of what stage of debate they had reached. Their usefuness therefore varies. Texts of most Acts of Pariament as originay passed by Pariament since 1800 are avaiabe on the Legisation.gov.uk website. The Pariamentary Archives has copies of origina Acts from Making aw accessibe In Week 2 you expored the concept of the rue of aw. Underpinning this were a number of criteria reating to the accessibiity and openness of the aw. 102 of 153 Tuesday 12 December 2017

103 Week 5: Reading an Act of the Scottish Pariament 6 Making aw accessibe The Scottish Pariament does a great dea to ensure that its work is open and accessibe to the pubic. The UK Pariament is aso working to ensure the accessibiity of its egisation. Making Acts easiy avaiabe is an important part of this work. Here you expore whether what is being done is enough. Box 5 Legisation and its impact Legisation affects us a. And increasingy, egisation is being searched for, read and used by a broad range of peope. It is no onger confined to professiona ibraries; websites ike egisation.gov.uk have made it accessibe to everyone. So the digita age has made it easier for peope to find the aw of the and; but once they have found it, they may be baffed. The aw is regarded by its users as intricate and intimidating. That experience echoes observations that have been made about statute aw for many years. The voume of egisation, its piecemea structure, its eve of detai and frequent amendments, and the interaction with common aw and European aw, mean that even professiona users can find aw compex, hard to understand and difficut to compy with. Shoud we be concerned about any of this? After a, modern ife in a deveoped country ike the UK is compicated, and we use the aw to govern many aspects of it. So it is not surprising that statutes and their subordinate reguations are compex; and it is perhaps reasonabe to assume that citizens wi need hep or guidance in understanding the raw materia of aw. But in my view, we shoud regard the current degree of difficuty with aw as neither inevitabe nor acceptabe. We shoud be concerned about it for severa reasons. Excessive compexity hinders economic activity, creating burdens for individuas, businesses and communities. It obstructs good government. It undermines the rue of aw.!warning! Caibri not supportedpariamentary Office and Office of the Pariamentary Counse (2013) Over the past decade there has been a growing movement to make the wording of aw more accessibe. The UK Cabinet Office and Pariamentary Counse have aunched an initiative caed good aw which aims to make egisation more accessibe and understandabe for UK citizens. They have undertaken a number of reviews and set the chaenge of making aw cear, coherent, effective and accessibe. The good aw initiative is an appea to everyone interested in the making and pubishing of aw to come together with a shared objective of making egisation work we for the users of today and tomorrow. Listen to the foowing cip in which the former First Pariamentary Counse, Richard Heaton, expores aw and the anguage used. The cip makes reference to deegated egisation which you wi expore in more detai in week Six. The cip is onger than some of the others you have encountered in your studies. Being abe to isten to presentations, concentrate and identify their key points is an important ski. This cip contains materia reevant to this week of study and to the foowing week of study. As you isten refect on what you have earnt so far in this course. Think about how the points made in the cip are reevant to your studies. 103 of 153 Tuesday 12 December 2017

104 Week 5: Reading an Act of the Scottish Pariament 6 Making aw accessibe - TEDx Houses of Pariament speech by former First Pariamentary Counse Richard Heaton The materia in the cip is reevant to current debates about the voume of egisation, compexity of drafting and new ideas for review and reform. Through activities you have been introduced to the aw making processes in both the Scottish and UK Pariaments and have begun to see the compexity that this creates. The interconnectedness between four areas (content, anguage and stye, pubication and the statute book) that have traditionay been treated separatey is shown in Box 9. Pariamentary Counse are chaenging aw makers to consider each of the four from the different perspectives of citizens, professiona users and egisators. Reform has been caed for and is ongoing. Figure 8 Good aw Think back to Activity 4 where you were asked to refect on your experience of reading the Nationa Gaeries of Scotand Act 2003 and expanatory notes. Do your refections support the need for an initiative such as the good aw initiative to make aw more accessibe and cearer? 104 of 153 Tuesday 12 December 2017

105 Week 5: Reading an Act of the Scottish Pariament 7 This week's quiz 7 This week's quiz We done you have reached the end of Week 5 and can now take the weeky quiz to test your understanding. Week 5 practice quiz Open the quiz in a new tab or window (by hoding ctr [or cmd on a Mac] when you cick the ink). Summary You have expored Acts from both the Scottish and UK Pariaments and considered how egisation is structured and cited (referenced). You have aso been introduced to the growing compexity of aw making, both in terms of sources of egisation (two Pariaments) and the anguage used. You shoud now be abe to: expain how an Act is structured discuss the accessibiity of anguage used in Acts understand the roe of Pariamentary Counse. In the next week you consider the use of deegated egisation. This inks to the growing cas for reform on the grounds of accessibiity to which you have been introduced during your studies of this week. You can now go to Week of 153 Tuesday 12 December 2017

106 Week 5: Reading an Act of the Scottish Pariament Summary Figure 9 Summary overview of Week of 153 Tuesday 12 December 2017

107 Week 6: Exporing egisation Introduction Week 6: Exporing egisation Introduction In this week you expore and consider the growing use of secondary egisation for the purposes of aw making. You aso consider the processes for scrutiny in both the Scottish and UK Pariaments and expore some of the chaenges presented by secondary egisation. By the end of this week you wi be abe to: expain what secondary egisation is understand why secondary egisation is used Understand the difference between primary and secondary egisation. 1 Secondary egisation An Act of Pariament (whether of the Scottish or UK Pariament) may give a Minister, or some other body, power to make detaied reguations in a specified area of their responsibiity. In passing a Bi the Pariament accepts the principes and genera objectives but subordinate (aso referred to as secondary or deegated) egisation can then be used for the detai of the aws needed to achieve those objectives. It is becoming increasingy common for Acts of Pariament to provide a framework into which much of the rea detai and impact of the aw wi subsequenty be added through secondary egisation. Secondary egisation may aso be used to state the date upon which an Act wi come into force. Subordinate (secondary or deegated) egisation is generay regarded as a too for producing detaied egisation. Box 1 Primary / Secondary / Subordinate / Deegated An Act of Pariament is referred to as primary egisation. Secondary, Subordinate and Deegated egisation are the terms used to refer to egisation which is made under the authority of an Act of Pariament. 107 of 153 Tuesday 12 December 2017

108 Week 6: Exporing egisation 2 The Scottish Pariament 2 The Scottish Pariament The time avaiabe for debate and scrutiny in the Scottish Pariament is imited. The Pariament sits on Tuesdays, Wednesdays and Thursdays. Pariamentary Committees wi normay meet on a Tuesday or Wednesday (occasionay Monday). This means that it may not be possibe to hear a the detaied aspects of a particuar area of egisation quicky. A system, simiar to the one used in the UK Pariament, has therefore been deveoped to aow for the creation of subordinate egisation in the Scottish Pariament. Figure 1 The debating chamber of the Scottish Pariament Figure 2 Committee room inside the Scottish Pariament 108 of 153 Tuesday 12 December 2017

109 Week 6: Exporing egisation 2 The Scottish Pariament 2.1 Subordinate egisation Primary egisation of the Scottish Pariament often grants powers to individua Ministers or executive bodies to create aw. Their powers to make aws have imitations. They are ony abe to act within the powers and the framework set by the primary egisation. If they fai to do so then that aw may be chaenged by the Pariament or Committee. As you have earnt it is quite common for the detai of an Act (for exampe concerning timing, impementation or the mechanism for updating) to be fied out by subordinate egisation. The Scottish Pariament has a roe in scrutinising subordinate egisation and has the power to approve or reject it. It is extremey rare, however, for the Scottish Pariament to have any scope to amend or change subordinate egisation. Most subordinate egisation takes the form of statutory instruments. These are considered by the Deegated Powers and Law Reform Committee and at east one other Scottish Pariament committee. However, there are occasions when on a motion of the Pariamentary Bureau, the Pariament may decide that an instrument or draft instrument wi go directy to the Pariamentary Chamber for consideration. The parent Act wi generay specify the type of pariamentary procedure that subordinate egisation must foow. They wi foow either the negative procedure or the affirmative procedure. Activity 1 Chidren and Young Peope (Scotand) Act 2014 Aow about 15 minutes Read this section from the Chidren and Young Peope (Scotand) Act What powers does this Act give to Ministers? 109 of 153 Tuesday 12 December 2017

110 Week 6: Exporing egisation 2 The Scottish Pariament Figure 3 Section 99 Chidren and Young Peope (Scotand) Act 2014 Comment Section 99(1) of the Chidren and Young Peope (Scotand) Act 2014 outines the powers of Ministers. Where they have been given the authority to make orders under the Act then section 99(1) means Scottish Ministers are empowered to make different provision for different purposes (Section 99(1)(a)). They aso have further power to make such suppementary, incidenta, consequentia, transitiona, transitory or saving provision as they consider appropriate (Section 99(1)(b)). Note the wording: as they consider appropriate. Section 99 deegates power to the Minister who is then abe to use that power without further consuting the Pariament. You wi return to consider this ater. You may have noted the mention of affirmative and negative procedures. 2.2 Affirmative or negative procedure Affirmative and negative procedures are important in scrutinising deegated egisation. Deegated egisation is a major source of aw making. In the Scottish Pariament more than 300 pieces of deegated egisation are passed each year. Deegated egisation does not foow the same process as Bis so there is itte pubic consutation athough there may be consutation with experts in the particuar area. 110 of 153 Tuesday 12 December 2017

111 Week 6: Exporing egisation 2 The Scottish Pariament The affirmative procedure means that deegated egisation is aid before Pariament in draft form. Approva of that draft by Pariament is needed before it comes into force (becomes aw). The negative procedure means that the deegated egisation is signed by the Minister and then aid (go before) Pariament. Usuay they come into force 28 days after they are aid. The scope of deegated egisation varies consideraby, from technica and procedura to much more wide-ranging powers. 111 of 153 Tuesday 12 December 2017

112 Week 6: Exporing egisation 2 The Scottish Pariament Figure 4 Infographic Scottish Pariament Deegated Powers and Law Reform Committee Watch the foowing video which summarises the difference between primary and subordinate egisation and expores the work of the Deegated Powers and Law Reform Committee. Watch the Video at YouTube.com 112 of 153 Tuesday 12 December 2017

113 Week 6: Exporing egisation 3 The UK Pariament Figure 5 shows the voume of Scottish Statutory Instruments from 1999 to mid A significant number are passed each year with the highest number in 2007 (at 582). Take a moment and refect on how many Acts of the Scottish Pariament there have been (you considered these in Week 3). Statutory instruments far outnumber them. 3 The UK Pariament Many UK-wide aws are aso made by deegated egisation and do not go through the process set out in week 4. The term deegated egisation tends to be used more frequenty when referring to the UK Pariament. As in the Scottish Pariament most deegated egisation is created as statutory instruments. Primary Acts set out the framework of powers deegated to Ministers or other bodies in the primary Act. Deegated egisation, mosty in the form of statutory instruments, is frequenty used to suppement, provide detai, update and amend primary egisation. This can a be achieved without the UK Pariament having to pass a new Act. Box 2 UK Pariament and deegated egisation Deegated egisation is usuay concerned with detaied changes to the aw made under powers from an existing Act of Pariament. Statutory instruments form the majority of deegated egisation but rues or codes of practice can aso be used. 113 of 153 Tuesday 12 December 2017

114 Week 6: Exporing egisation 3 The UK Pariament What deegated egisation does Deegated egisation aows the Government to make changes to a aw without needing to push through a competey new Act of Pariament. The origina Act (aso known as primary egisation) woud have provisions that aow for future deegated egisation to ater the aw to differing degrees. These changes range from the technica, ike atering the eve of a fine, to feshing out Acts with greater detai; often an Act contains ony a broad framework of its purpose and more compex content is added through deegated egisation. Statutory instruments Statutory instruments (SIs) are a type of deegated egisation. Approximatey 3,000 SIs are issued each year, making up the buk of deegated egisation. About two thirds of SIs are not activey considered before Pariament and simpy become aw on a specified date in the future. SIs are normay drafted by the ega office of the reevant government department. Consutations often take pace with interested bodies and parties. The House of Lords Deegated Powers Scrutiny Committee The Lords Deegated Powers Scrutiny Committee (estabished in 1992) keeps under constant review the extent to which egisative powers are deegated by Pariament to government ministers, and examines a Bis with deegating powers which aow SIs to be made before they begin their passage through the House. There is an informa understanding in the Lords that, when the Deegated Powers Committee has approved provisions in a Bi for deegated powers, the form of those powers shoud not normay be the subject of debate during the Bi's subsequent passage. The House of Commons has no equivaent committee. The House of Lords Secondary Legisation Scrutiny Committee (formery the Merits Committee) Estabished in 2003, the Lords Secondary Legisation Scrutiny Committee considers every negative and affirmative SI (or draft SI) aid before Pariament about 1200 per year with a view to determining whether the specia attention of the House shoud be drawn to it on any of the foowing grounds: that it is poiticay or egay important or gives rise to issues of pubic poicy ikey to be of interest to the House that it may be inappropriate in view of the changed circumstances since the passage of the parent Act that it may inappropriatey impement EU egisation that it may imperfecty achieve its poicy objectives that the expanatory materia aid in support provides insufficient information to gain a cear understanding about the instrument s poicy objective and intended impementation that there appear to be inadequacies in the consutation process which reates to the instrument. The Lords Secondary Legisation Scrutiny Committee reports every week, normay considering SIs written days of being aid before the House. 114 of 153 Tuesday 12 December 2017

115 Week 6: Exporing egisation 3 The UK Pariament Like the Lords Deegated Powers and Reguatory Reform Committee, the Lords Secondary Legisation Scrutiny Committee's roe is to advise the House of Lords, and it is for the House to decide whether or not to act on the Committee's concusions. The House of Commons has no equivaent committee. From the information in Box 2 you can see that the procedures used in the UK Pariament differ from those in the Scottish Pariament and are more compex. The House of Lords has a wide-ranging membership with experts (incuding former members of the judiciary with their ega expertise) drawn from many areas and scrutinises deegated egisation. The Seect Committee of the House of Lords on the constitution (9 th Session ) raised concerns over the use of deegated egisation, in particuar that the roe of Pariament in scrutinising egisation and chaenging the government was being undermined. 3.1 Scrutiny in the UK Pariament The UK Pariament can deegate powers to UK Government ministers to make aws that extend to Scotand. Scrutiny of subordinate egisation by the UK Pariament is therefore important. You have expored the use of egisative consent motions and know that the UK Pariament is abe to make aws for Scotand in reserved areas. To understand aw making in Scotand it is therefore aso necessary to be famiiar with UK Pariamentary procedure for scrutiny and chaenge. There are three procedures in the UK Pariament. Box 3 Procedures for approving deegated egisation in the UK Pariament (I) The Negative Procedure Deegated egisation going through this procedure becomes aw on a stated date uness there is a motion passed in either House annuing the instrument. This motion is known as a prayer. If a member of either House wishes to reject a negative instrument they have to do so within 40 days of the instrument being aid before the UK Pariament. In the House of Commons, MPs tabe a prayer by putting it down as an Eary Day Motion. If time is aocated, MPs have up to 90 minutes to debate the instrument. In the House of Lords, time is usuay found for debate on a prayer motion. This debate is not subject to a time imit. Peers can either seek to reject the instrument or tabe a non-fata motion, critica of the instrument without annuing it. (II) The Affirmative Procedure The most substantia and important pieces of deegated egisation are subject to a more stringent form of contro and require the active approva of both Houses of Pariament before they can come into effect. In the House of Commons, affirmative instruments are referred to a Deegated Legisation Committee for debate, uness a motion for the debate to be hed in the Commons chamber is tabed. Debates ast no onger than 90 minutes and are 115 of 153 Tuesday 12 December 2017

116 Week 6: Exporing egisation 3 The UK Pariament conducted on a consideration motion. Foowing debate in committee, an approva motion is put formay to the House without debate on a separate day. In the House of Lords, a motion to approve an affirmative instrument can be taken in either Grand Committee or on the Foor of the House. Peers can express their opposition or concern by making an amendment to the approva motion or by tabing a separate motion, effectivey withhoding the agreement of the House as was the case in October 2015 when Peers deayed approva of the Tax Credit reguations. (III) The Strengthened Scrutiny Procedures There are currenty 10 Acts of the UK Pariament that provide for certain of their powers contained to be subjected to a higher eve of pariamentary scrutiny than the affirmative procedure. They confer upon a minister a significant power to amend primary egisation (often referred to as a Henry VIII power). The UK Pariament therefore has the opportunity to comment and recommend changes to proposas under these powers and in some cases to veto the proposed instrument. Backwe, J. (2015) 3.2 Refection on subordinate egisation in the Scottish and UK Pariaments The use of subordinate egisation is increasing. As you have earnt procedures for scrutiny differ between the UK and Scottish Pariaments. Activity 2 asks you to think about subordinate egisation and some of the concerns over its use. Activity 2 Use or abuse? Thinking about deegated egisation Aow about 20 minutes Deegated egisation is a compex area. Take a few minutes to refect on what you have earnt and then answer the foowing questions. 1 Where do the powers to make deegated egisation come from? Comment The powers to make deegated egisation can be found in the primary Act. That Act wi specify what powers have been deegated and to whom. 2 Are other terms used as an aternative to deegated egisation? Comment 116 of 153 Tuesday 12 December 2017

117 Week 6: Exporing egisation 3 The UK Pariament Deegated egisation is aso referred to as secondary or subordinate egisation. Both the terms secondary and subordinate indicate that they are subject to something in this case, the primary Act of Pariament. 3 What procedures exist to scrutinise deegated egisation? Comment There are procedures in both the Scottish and UK Pariaments. There are two procedures in the Scottish Pariament, the affirmative and negative procedures. The affirmative procedure requires pariamentary consideration. In the UK Pariament there are three procedures, affirmative, negative and strengthened scrutiny. 4 Legisation appicabe to Scotand may be made by both the Scottish Pariament (on devoved matters) and the UK Pariament (on reserved matters). To find the appicabe aw on a topic you may need to research both primary and deegated egisation made by either Pariaments. The deegated egisation may not have received much scrutiny. Take a few moments and identify three issues you think this may raise and why. Comment There is growing criticism of aw making using deegated egisation. The issues you identified wi refect your viewpoint and views on aw making in this way. There was no right or wrong answer to this question. It was designed to make you stop and think about what you had read, identify issues, reasons why you think they are issues and then note them. Accessibiity may have struck you as one issue: if there was so much aw how do you find it and navigate a way through it to find the answer to a question? And does this, in turn, mean that Ministers (whether of the Scottish or UK Government) are deegated a great dea of power with itte scrutiny of how that power is used? Finay, there is no process for reviewing whether the deegation was effective and there is usuay no stated point at which the power ends. 3.3 The expansion of reguation The increase in deegated egisation is an indicator of the growing compexity of society. The expansion of reguation, the wide range of socia security provision and the wide range of tax provisions, the rapidy changing nature of technoogy, the growth in deegation of powers to oca authorities and councis, use of the internet, the growth in technica detai required and the compexity of a 21 st century society have a contributed to a significant increase in the voume, technicaity and compexity of deegated egisation. 117 of 153 Tuesday 12 December 2017

118 Week 6: Exporing egisation 3 The UK Pariament Activity 3 A need for reform? Aow about 10 minutes Look at the foowing ist and indicate whether you cass the statement as support for, or a criticism of, deegated egisation: Supervising deegated egisation is very difficut. Support for deegated egisation Criticism of deegated egisation Pubication takes pace but few peope may be aware that the deegated egisation exists and where to find it. Most individuas do not know on what ground you can chaenge deegated egisation or how to go about it. Some enabing Acts can be ambiguous and can therefore be open to wide interpretation. Great power may be given to Ministers. The enabing Act might incude a phrase ike the minister may make such reguations as he sees fit for the purpose of bringing the Act into operation. Reieves pressure on pariamentary time so that Pariament can concentrate on important aws, rather than technicaities. Deegated egisation can be created more easiy and quicky. Deegated egisation can be drafted by experts in the fied. Deegated egisation can be made at any time, whereas Acts need to be timetabed. Pariament has insufficient time to scrutinise it. Deegation of powers causes compexity and confusion. 118 of 153 Tuesday 12 December 2017

119 Week 6: Exporing egisation 3 The UK Pariament Sheer voume causes compexity it is impossibe keep abreast of a deegated egisation (an average of 4,000 and more a year between both Pariaments). Lack of pubicity for, and consutation on, deegated egisation. Undemocratic: most deegated egisation is drafted by civi servants. Henry VIII causes can give power to amend or repea Acts of the UK Pariament. Saves imited time in Pariament aowing for more detaied debates on poicy and other matters. MPs and MSPs often ack detaied or technica knowedge. Enabes a quick response to new deveopments, crises or emergencies. Enabes minor changes to statutes, for exampe variations in sentences and approva of motor vehice changes. There is a fear that Ministers are increasingy seeking to use SIs rather than Bis to achieve their poicy objectives as these receive much ess scrutiny than primary egisation. Deegated egisation takes up ess pariamentary time. Traditionay, the justifications for using deegated egisation have been the need to eaborate compex and technica detai that cannot be easiy done on the face of a Bi. Deegated egisation enabes fexibiity and adaptabiity. The system of deegated egisation has been predicated on its reasonabe use and appication by Ministers couped with trust in the Pariaments systems of scrutiny. 119 of 153 Tuesday 12 December 2017

120 Week 6: Exporing egisation 3 The UK Pariament Deegated egisation is now being used for administrative convenience and often in circumstances where governments have not fuy pinned down the detai of poicy proposas. Deegated egisation can be found to justify amost any form of deegation a minister might now desire. Comment Support for deegated egisation Criticism of deegated egisation Supervising deegated egisation is very difficut. Pubication takes pace but few peope may be aware that the deegated egisation exists and where to find it. Most individuas do not know on what ground you can chaenge deegated egisation or how to go about it. Some enabing Acts can be ambiguous and can therefore be open to wide interpretation. Great power may be given to Ministers. The enabing Act might incude a phrase ike the minister may make such reguations as he sees fit for the purpose of bringing the Act into operation. Yes Yes Yes Yes Yes Reieves pressure on pariamentary time so that Pariament can concentrate on important aws, rather than technicaities. Deegated egisation can be created more easiy and quicky. Deegated egisation can be drafted by experts in the fied. Deegated egisation can be made at any time, whereas Acts need to be timetabed. Pariament has insufficient time to scrutinise it. Deegation of powers causes compexity and confusion. Sheer voume causes compexity it is impossibe keep abreast of a deegated egisation (an average of 4,000 and more a year between both Pariaments). Lack of pubicity for, and consutation on, deegated egisation. Undemocratic: most deegated egisation is drafted by civi servants. Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes 120 of 153 Tuesday 12 December 2017

121 Week 6: Exporing egisation 3 The UK Pariament Henry VIII causes can give power to amend or repea Acts of the UK Pariament. Yes Saves imited time in Pariament aowing for more detaied debates on poicy and other matters. MPs and MSPs often ack detaied or technica knowedge. Enabes a quick response to new deveopments, crises or emergencies. Enabes minor changes to statutes, for exampe variations in sentences and approva of motor vehice changes. There is a fear that Ministers are increasingy seeking to use SIs rather than Bis to achieve their poicy objectives as these receive much ess scrutiny than primary egisation. Deegated egisation takes up ess pariamentary time. Traditionay, the justifications for using deegated egisation have been the need to eaborate compex and technica detai that cannot be easiy done on the face of a Bi. Deegated egisation enabes fexibiity and adaptabiity. The system of deegated egisation has been predicated on its reasonabe use and appication by Ministers couped with trust in the Pariaments systems of scrutiny. Deegated egisation is now being used for administrative convenience and often in circumstances where governments have not fuy pinned down the detai of poicy proposas. Deegated egisation can be found to justify amost any form of deegation a minister might now desire. Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes 3.4 Advantages and disadvantages of using deegated egisation There are both advantages and disadvantages in using deegated egisation. For its critics, the growth in such egisation is however making aw ess accessibe something that goes against the rue of aw. There are a growing number of cas for review, as some observers argue the current system is creaking. Box 4 outines reasons put forward by the Hansard Society for change. Box 4 The need for change According to a bog written by the Hansard Society: 121 of 153 Tuesday 12 December 2017

122 Week 6: Exporing egisation 3 The UK Pariament The deegated egisation process is no onger fit for purpose. The way in which Pariament deas with deegated powers is neither systematic nor consistent. The Hansard Society s research shows that too much of the process reies on gut feeing and judgement rather than objective criteria. An incrementa approach to reform has created a patchwork of procedures, resuting in a system of scrutiny that is overy compex and confusing and often iogica. The anguage made and aid, negative, affirmative, and super affirmative, prayers and Henry VIII powers is confusing and undermines pariamentary and pubic understanding of the egisation. Many pariamentarians openy admit they don t understand them. Further patchwork reform risks making the situation worse. It is impossibe to separate consideration of deegated egisation from that of primary egisation. The issues are now so serious that an independent expert inquiry is needed to review the entire egisative process ooking at: How both primary and deegated egisation is prepared in Whiteha and scrutinised at Westminster. Issues of principe and practice, and where the baance shoud ie between administrative and poitica convenience and good egisative process. Rationaisation of scrutiny procedures exporing what criteria and principes define what members want to ook at again in the area of deegated egisation and how this can best be achieved. Whether the burden on Members to scrutinise deegated egisation shoud be reduced through the introduction of individuas or independent advisory bodies with genuine technica expertise in particuar poicy areas. Whether the scrutiny system shoud be re-designed so that the greater burden of technica scrutiny work fas on the House of Lords in future. Backwe, J. (2015) Unike primary egisation, deegated egisation is not subject to judicia review. 3.5 Deegated powers and the Scotand Act 1998 You may be wondering what reevance this a has to aw making in Scotand. Section 35 of The Scotand Act 1998 (as amended) heps iustrate some of the points made. 122 of 153 Tuesday 12 December 2017

123 Week 6: Exporing egisation 3 The UK Pariament Figure 6 Section 35 Scotand Act 1998 This section gives the Secretary of State (a UK Government post) power to prevent the Presiding Officer of the Scottish Pariament from submitting a Bi of the Scottish Pariament for Roya Assent in certain circumstances. This appies to both devoved and reserved matters. Note the use of words such as reasonabe grounds and interests of defence or nationa security which are not defined in the Act. 123 of 153 Tuesday 12 December 2017

124 Week 6: Exporing egisation 4 This week s quiz Figure 7 Secretary of State for Scotand ogo Figure 8 Section 63A Scotand Act 1998 Listen to the foowing audio discussion in which academics from the OU Law Schoo, Simon Lavis and Edwin Parks, expore deegated egisation and refect on its use and pace in aw making. Audio content is not avaiabe in this format. The use of deegated egisation 4 This week s quiz We done you have reached the end of Week 6 and can now take the weeky quiz to test your understanding. Week 6 practice quiz 124 of 153 Tuesday 12 December 2017

125 Week 6: Exporing egisation Summary Open the quiz in a new tab or window (by hoding ctr [or cmd on a Mac] when you cick the ink). Summary During this week you expored the reasons why secondary egisation is used and the procedures foowed in the Scottish Pariament and the UK Pariament. You earnt that the procedures are different and that there is growing criticism of the use of such egisation. In particuar, critics say that the growing use of secondary egisation is making the aw ess accessibe and that this undermines one of the important principes underpinning the rue of aw. You shoud now be abe to: expain what secondary egisation is understand why secondary egisation is used Understand the difference between primary and secondary egisation. In the next week you earn about MSPs and MPs and their roes. You can now go to Week of 153 Tuesday 12 December 2017

126 Week 6: Exporing egisation Summary 126 of 153 Tuesday 12 December 2017

127 Week 7: MSPs, MPs and aw making Introduction Week 7: MSPs, MPs and aw making Introduction Both the Scottish and UK Pariaments make aws covering Scotand. This may be achieved through primary or subordinate / deegated egisation. In previous weeks you have considered how the Pariaments make aws. In this week you expore who the individuas who contribute to making those aws are the MSPs (Members of the Scottish Pariament) and MPs (Members of Pariament, meaning the UK Pariament). You consider the eection process and work of Committees in the Scottish Pariament. By the end of this week you wi be abe to: expain who can vote in Scottish and UK Pariament eections expain the differences between Scottish and UK Pariament eections discuss the principes underpinning the Code of Conduct for MSPs. 1 Members of the Scottish Pariament (MSPs) The Scotand Act 1998 estabished a Scottish Pariament with egisative powers. There were to be 129 seats in the Scottish Pariament. The Pariament was to be eected party on the basis of proportiona representation and assumed fu powers on 1 Juy Terms of office of MSPs were to be for four years. The Scotand Act 1998 aso estabished the Scottish Government (referred to as the executive unti The Scotand Act 2012). The Scottish Government consists of the First Minister (eected by the Scottish Pariament and appointed by the monarch), other ministers appointed by the First Minister, the Lord Advocate and the Soicitor Genera for Scotand. The aw office for Scotand at the UK Pariament is now caed the Advocate Genera for Scotand. 127 of 153 Tuesday 12 December 2017

128 Week 7: MSPs, MPs and aw making 1 Members of the Scottish Pariament (MSPs) Figure 1 Members of the Scottish Government in March 2017 The Scottish Pariament is not responsibe for organising or administering eections to the Scottish Pariament. You may reca from your studies of Week 2 that the separation of powers which underpins the rue of aws separates the function of the egisature (Scottish Pariament), executive (Scottish Government) and judiciary. Figure 2 Aeria shot of Scottish Pariament 1.1 Voting in Scottish pariamentary eections The Scottish Pariament Eections (Dates) Act 2016 sets out the rues on eections. The most recent eections were on 5 May The next Scottish Pariament eections are schedued to take pace on 6 May The Scottish Pariament is a fixed term pariament and power to set eection dates is now devoved to the Scottish Pariament. 128 of 153 Tuesday 12 December 2017

129 Week 7: MSPs, MPs and aw making 1 Members of the Scottish Pariament (MSPs) There are a number of differences between the systems for eection to the Scottish and UK Pariaments. There are aso differences in who is entited to vote in eections. For Scottish Pariament eections individuas can vote if they are: aged 16 or over on the day of the eection, and a UK, Commonweath or European Union citizen, and resident at an address in Scotand, and, on the eectora register. Box 1 Registering to vote in the Scottish Pariament eections You can register to vote: onine at gov.uk/register-to-vote, or by contacting the Eectora Registration Officer (ERO) for your oca area. You can find the ERO contact detais using the postcode search on the About my vote website. In eections for the Scottish Pariament individuas are voting for MSPs to represent them and make decisions on devoved matters in Scotand. Every registered voter in Scotand has two votes: 1 vote for a constituency MSP 1 vote to eect regiona MSPs. Box 2 The power to set eection dates In June 2015 Scottish Secretary, David Munde, announced: The UK Government wi devove the power to Hoyrood to set an aternative date for the Scottish Pariament eection which had been due to take pace in 2020 The UK and Scottish Governments agreed voters shoud be aware of the ength of term they wi be eecting MSPs to in Mr Munde has written to the Presiding Officer and Scottish party eaders to inform them that Scotand Office is taking forward a Section 30 Order to devove the power which wi aow the Scottish Pariament to egisate on the timing of the first Scottish Pariament genera eection to be hed after The wider power to set eection dates beyond the next Scottish Pariament eection wi be incuded in the Scotand Bi. Eections to both the UK and Scottish Pariaments had been schedued to take pace on the same day in 2020, as a resut of the Fixed-term Pariaments Act The change wi aow the Scottish Pariament to introduce and pass egisation to avoid this happening. Hoyrood wi be abe to set a date which avoids hoding the po on the same day as UK Pariament, [ ] or oca government eections. 129 of 153 Tuesday 12 December 2017

130 Week 7: MSPs, MPs and aw making 2 The work of MSPs The move is consistent with the Smith Commission s recommendation that power over Scottish eections shoud be devoved to the Scottish Pariament. The Order has the support of the UK and Scottish Governments, the Scottish Pariament s Presiding Officer and the eaders of a parties represented at Hoyrood. Mr Munde said: This is a sensibe move which ensures carity for voters in Scotand by giving the Scottish Pariament the power to set its own pariamentary terms. It wi ensure Hoyrood eections take pace separatey from others in future. (Scotand Office and Munde, D., 2015) You shoud now watch the foowing expanation How to vote in a Scottish Pariament eection. Watch the Video at YouTube.com How to vote in a Scottish Pariament eection 2 The work of MSPs In Scotand every individua is represented by severa MSPs, one for the constituency in which they ive and others for the arger region in which they ive. 130 of 153 Tuesday 12 December 2017

131 Week 7: MSPs, MPs and aw making 2 The work of MSPs Figure 3 Inside the debating chamber In Scotand MSPs have a number of roes and are expected to demonstrate certain characteristics such as honesty and integrity. Read the information in Box 3 taken from the Code of Conduct for Members of the Scottish Pariament 6 th Edition (2016). Box 3 Key principes underpinning the Code of Conduct for MSPs These principes set the tone for the reationship between members and those they represent and between the Pariament and the peope of Scotand. Pubic duty Members are expected to act in the interests of the Scottish peope and the Scottish Pariament. Members shoud uphod the aw and act in conformity with the rues of the Pariament In order to exercise their pubic duty, members must take the oath of aegiance or make a soemn affirmation as expained in Rue 1.2 of the Standing Orders. Duty as a representative Members shoud be accessibe to the peope of the areas for which they have been eected to serve and represent their interests conscientiousy. Sefessness Members shoud take decisions soey in terms of the pubic interest. They shoud not act in order to gain financia or other materia benefit for themseves, their famiy or friends. Integrity 131 of 153 Tuesday 12 December 2017

132 Week 7: MSPs, MPs and aw making 2 The work of MSPs Members have a duty not to pace themseves under any financia or other obigation to any individua or organisation that might reasonaby be thought to infuence them in the performance of their duties. Honesty Members shoud act honesty. They must decare any private interests (as required by the Interests of Members of the Scottish Pariament Act 2006) reating to their pubic duties and take steps to resove any conficts arising in a way that protects the pubic interest. The categories of registrabe interest are outined in the schedue to the Act. The schedue is contained in Voume 4 of the Code. Accountabiity and openness Members are accountabe for their decisions and actions to the Scottish peope. They shoud consider issues on their merits, taking account of the views of others Members shoud be as open as possibe about their decisions and actions. Leadership Members shoud promote and support these principes by eadership and exampe, to maintain and strengthen the pubic s trust and confidence in the integrity of the Pariament and its members in conducting pubic business. Extract from Code of Conduct for Members of the Scottish Pariament (Scottish Pariament, 2016) 2.1 The many roes of an MSP MSPs wi become invoved in aw making and may propose new aws, take part in Chamber debates, participate on Pariamentary Committees, suggest amendments to aws, participate in campaigns to change the aw, speak in debates, and ask questions of Government. Their work is varied. Each MSP has an office at the Scottish Pariament and their offices form part of the iconic images of the Scottish Pariament. Box 4 expains this in more detai. Box 4 MSP accommodation at the Scottish Pariament The unique façade of the Members office accommodation quicky became the first iconic image of Hoyrood. The shape of the windows is said to have been inspired by an outine of the Reverend Robert Waker skating on Duddingston Loch taken from Raeburn s famous painting. The windows are made from stainess stee and framed in oak, with the oak attices providing privacy and shade for MSPs. The cadding around the windows is a mosaic of materias, incuding Kemnay granite from Aberdeenshire and darker granite from South Africa. To break the uniformity of the façade the windows jut out at differing widths and face in both directions. There are 114 projecting bay windows in tota. MSPs occupy 108 of the offices and the others are used as party resource rooms. 132 of 153 Tuesday 12 December 2017

133 Week 7: MSPs, MPs and aw making 2 The work of MSPs Figure 4 Interna image of an MSP think window 133 of 153 Tuesday 12 December 2017

134 Week 7: MSPs, MPs and aw making 3 The Committee System Figure 5 Externa image of an MSP think window Description of Members office accommodation taken from Scottish Pariament website (Scottish Pariament, 2015) To earn more about the work of MSPs watch the foowing short videos. Watch the Video at YouTube.com In the Pariamentary Chamber Watch the Video at YouTube.com In Committees Watch the Video at YouTube.com Out and about 3 The Committee System The way in which the Committee system operates and works is a unique feature of the Scottish Pariament. There are a number of Committees (shown in Box 5) with aocated areas of responsibiity. They have between five and fifteen members and scrutinise the work of the Government. They work much more on cross-party ines than do Committees of the UK Pariament. There tends to be much more agreement among MSPs from different parties when they are scrutinising or chaenging the Scottish Government s egisation as it passes through Pariament. The Convenors of the Committees are 134 of 153 Tuesday 12 December 2017

135 Week 7: MSPs, MPs and aw making 3 The Committee System responsibe for organising the meetings. These Convenors are drawn from across the main poitica parties. Box 5 Committees of the Scottish Pariament Cuture, Tourism, Europe and Externa Reations Committee Deegated Powers and Law Reform Committee Economy, Jobs and Fair Work Committee Edinburgh Bakers Widows Fund Bi Committee Education and Skis Committee Environment, Cimate Change and Land Reform Committee Equaities and Human Rights Committee Finance and Constitution Committee Heath and Sport Committee Justice Committee Justice Sub-Committee on Poicing Loca Government and Communities Committee Pow of Inchaffray Drainage Commission (Scotand) Bi Committee Pubic Audit and Post-egisative Scrutiny Committee Pubic Petitions Committee Rura Economy and Connectivity Committee Socia Security Committee Standards, Procedures and Pubic Appointments Committee You shoud now watch this short video in which Iain Gray expores the work of the Scottish Pariament and its committees. Video content is not avaiabe in this format. Iain Gray on the work of the Scottish Pariament and its committees 135 of 153 Tuesday 12 December 2017

136 Week 7: MSPs, MPs and aw making 4 The UK Pariamentary eections 4 The UK Pariamentary eections The UK Pariament can egisate for Scotand on reserved matters. In the UK Pariament there are 59 MPs who represent constituencies in Scotand. Both the workings of the UK Pariament and the eection process differ from those of the Scottish Pariament. The UK Pariament is divided into two chambers,the House of Commons and the House of Lords. The House of Commons is a directy eected Chamber. Members of the House of Commons are eected by the pubic, with the country being divided into constituencies. Each constituency returns one Member of Pariament (known as an MP). Figure 6 Inside the House of Commons The Fixed-term Pariaments Act 2011 estabished a five-year fixed term for the UK Pariament. An eection can, however, be announced before the end of the five-year period if: a motion of no confidence is passed and there is no aternative government, or if a motion for an eary genera eection is agreed either by at east two thirds of the House or without division. This happened in Apri 2017 when agreement was given to hod an eection on 8 June 2017, some two years before the end of the fixed five-year term of that Pariament. Before the Fixed-term Pariaments Act 2011 Act a UK Prime Minister coud ca a genera eection at any time of their choosing within a five-year period of eection to that pariament. 136 of 153 Tuesday 12 December 2017

137 Week 7: MSPs, MPs and aw making 4 The UK Pariamentary eections 4.1 The UK Government The UK Government of the day is generay formed by the poitica party which has the most MPs eected to the House of Commons. The Prime Minister wi usuay be the eader of the argest poitica party (i.e. the one with the most seats). The Prime Minister seects a arge team of ministers to run each of the Government departments. The head of each department is usuay a Secretary of State and sits in the Cabinet. The Cabinet is the group of approximatey 20 senior Government ministers who are responsibe for running the Government departments of state and deciding Government poicy. For exampe, the Secretary of State for Scotand (Scottish Secretary), whose roe is to promote and protect the devoution settement and who has responsibiities which incude promoting partnership between the UK government and the Scottish government, and reations between the two Pariaments. Figure 7 Scotand Office 137 of 153 Tuesday 12 December 2017

138 Week 7: MSPs, MPs and aw making 4 The UK Pariamentary eections Figure 8 The Scottish Office Whiteha 4.2 The voting system for the UK Pariament Each voter has ony one vote and to vote they simpy pace a cross on the baot paper to indicate their preference. The person who wins the highest number of votes within a constituency is the eected MP for that constituency. This eectora system is known as the first-past-the-post system which is described in Box 6. Box 6 The first-past-the-post system The first-past-the-post system is the ony system ever used in British genera eections and it has many advantages over other systems. It usuay produces strong, decisive Governments with an overa majority in Pariament; with every voter represented by one MP, it provides a cear democratic ink between the peope and Pariament and it is quick and simpe for the voters. However, the system may aso be unfair. As an exampe, an eection for the constituency of Not-Rea has taken pace. The three main candidates are from the three most prominent nationa parties. The resut is as foows: Candidate A: 25,000 votes Candidate B: 20,000 votes Candidate C: 10,000 votes In this exampe, the cear winner is Candidate A with a majority over Candidate B of 5,000. However, 25,000 voted for the candidate who won that eection but 30,000 voted against the winner. If more peope vote against a candidate by choosing an aternative, is this democratic in terms of popuar representation in Westminster? 138 of 153 Tuesday 12 December 2017

139 Week 7: MSPs, MPs and aw making 4 The UK Pariamentary eections In the 1997 UK Genera Eection, the Labour Party gained 43.2% of the tota votes cast and won 63.6% of seats at Westminster. The combined number of votes for the Conservatives and Libera Democrats represented 47.5% of the tota votes (over 4% more than Labour), yet between them they won 32.1% of the seats avaiabe at Westminster. In the 2001 eection, Labour had 43% of the tota vote whereas a the other parties had 57% yet Labour maintained its very powerfu position in Pariament with 413 MPs out of 659 (63% of the tota number of seats in Pariament). In the 2005 Genera Eection, Labour won 37% of the vote and 55% of the seats in the House of Commons. The combined number of votes for the Conservatives and Libera Democrats represented 55% of the tota votes (18% more than Labour), yet between them they got 40% of the seats avaiabe in the House of Commons. The 2010 eection resuted in the first coaition government in 70 years. The Conservatives and Libera Democrats shared power. In the eection the Conservatives won 36% of the votes, the Libera Democrats 23% and Labour 29%. The combined votes of the Conservatives and Libera Democrats represented 59% of the vote. The Conservatives had 306 seats, the Libera Democrats 57 seats, the SNP 6 seats and Labour 258 seats. The 2015 eection resuted in an overa Conservative majority of 11 seats in the House of Commons (not incuding the Speaker). The Conservatives won 330 seats, Labour won 232, the Libera Democrats 8 and the SNP 56. The Conservatives poed 11.3 miion votes, 36.8% of the vote. The 2017 eection resut resuted in a minority Conservative government with a confidence and suppy agreement with the DUP. The Conservatives won 318 seats, Labour 262, the Libera Democrats 12 and the SNP 35. The Conservatives poed 13.6 miion votes, 42% of the vote. Figure 9 UK Cabinet ministers No UK Government since 1935 has had a majority of pubic support as expressed through votes cast at a nationa eection. The effect of this on aw making is that a powerfu UK 139 of 153 Tuesday 12 December 2017

140 Week 7: MSPs, MPs and aw making 4 The UK Pariamentary eections Government with overwheming Pariamentary power can usuay push through its required egisation but with ony a minority of the country supporting it. In May 2011 a referendum was hed on the voting system used to eect MPs to the House of Commons. The question asked on the baot paper was: At present, the UK uses the first past the post system to eect MPs to the House of Commons. Shoud the aternative vote system be used instead? Eectora Commission (2011) Of those who voted, 68% voted for no change and 32% voted for change. 4.3 Who can vote in a UK genera eection? To vote in a UK genera eection you must be registered to vote and aso be 18 or over, and be a British citizen, a quaifying Commonweath citizen or a citizen of the Repubic of Ireand, and not be subject to any ega incapacity to vote. Voters cast their singe vote for a constituency MP. There are restrictions as to who can vote in a UK Genera eection. The foowing individuas cannot vote (athough they can vote at eections to oca authorities): Members of the House of Lords. EU citizens resident in the UK. Anyone other than British, Irish and quaifying Commonweath citizens. Convicted persons detained in pursuance of their sentences (though remand prisoners, un-convicted prisoners and civi prisoners can vote if they are on the eectora register). Anyone found guity within the previous five years of corrupt or iega practices in connection with an eection. 4.4 The House of Lords Originay the members of the House of Lords was comprised of those who had inherited a tite (known as hereditary peers), senior judges who sat as Law Lords, and the most senior bishops in the country. During the twentieth century the awarding of a tite for ife (known as a ife peerage) became more common. The Prime Minister nominated peope who shoud receive a tite for their ifetime ony. In this way, peope who had served the country and were thought to be suitabe members of the House of Lords were abe to bring their expertise to the House. 140 of 153 Tuesday 12 December 2017

141 Week 7: MSPs, MPs and aw making 4 The UK Pariamentary eections Figure 10 Inside the House of Lords Most ife peerages were given to former poiticians who had retired from the House of Commons. For exampe, James Caaghan, who was Prime Minister from 1976 to 1979, was made a ife peer in 1987, taking the tite Lord Caaghan of Cardiff, whie Margaret Thatcher, the first femae Prime Minister, was made a ife peer in 1992 and became known as Baroness Thatcher. When men are made ife peers they are caed ords; women ife peers are caed baronesses. During the ate 1990s the Labour Government decided that in a modern society an inherited tite shoud not automaticay aow someone to participate in making aw. They fet that some of the members of the House of Lords shoud be eected and some shoud be nominated. The right of most of the hereditary peers to sit in the House of Lords was aboished in As a resut of this change three types of peer now sit in the House of Lords: ife Peers, Bishops and eected hereditary Peers. The House of Lords is characterised by independence of thought. Some members (Peers) have a poitica background, most don t. They represent a wide range of professions incuding medicine, aw, business, the arts, science, sports, education, the armed forces, dipomacy and pubic service. Currenty, there are about 825 members who are eigibe to take part in the work of the House of Lords. The majority are ife Peers. Others incude 26 archbishops and bishops and 92 hereditary Peers. There is no upper imit on the tota number of members. Life peers: the majority (about 700) of members are appointed for their ifetime by the Queen on the advice of the Prime Minister. Any British, Irish or Commonweath citizen who is a UK resident and taxpayer over the age of 21 is eigibe to be nominated or can appy to become a member, via the independent House of Lords Appointments Commission. Archbishops and bishops: 26 Church of Engand archbishops and bishops sit in the House. When they retire as bishops their membership of the House ceases and is passed on to the next most senior bishop. 141 of 153 Tuesday 12 December 2017