3.3 How is law made?
If you believe that laws are unjust in some way – perhaps because you regard them as being in conflict with our natural rights or consider that the rights they bestow do not adequately serve our interests – that does not alter their status as laws. The content of the law is decided by recognised law-making bodies in accordance with the rules of the constitution and the remedy for ‘unjust’ laws in a liberal democracy like the UK is to campaign to change them via the democratic process. There are a number of sources of law in Scotland, including the decisions of the courts and European law-making institutions. In this course we will be focusing on the legislative process, which is the primary source of law in Scotland.
Since devolution in 1999, legislation which is applicable to Scotland originates from two law-making bodies: the UK Parliament at Westminster and the Scottish Parliament at Holyrood. Both legislatures have the power to pass Acts of Parliament, or statutes as they are otherwise known. This can be a source of some confusion if you are not familiar with the political landscape, and Box 2 summarises the key differences in competence between these two institutions.
Box 2: The Scottish and UK Parliaments
The Scottish Parliament has law-making powers devolved to it in certain areas. This means that it can legislate for Scotland on matters including health, education, social work, housing, judicial appointments, the courts, criminal justice and the prosecution systems, and legal aid. The Scottish Parliament is not permitted to make any law which is incompatible with the principles of the European Convention on Human Rights (ECHR).
Parliament in Westminster has reserved powers to legislate on matters which affect the UK as a whole. These include areas such as the constitution, foreign policy and defence, and also employment legislation, immigration and social security. In theory the UK Parliament is supreme and can make any law it wants. In practice, however, it is also limited by the Human Rights Act 1998.
Legislation passes more quickly through the Scottish Parliament because it does not have an upper house like the House of Lords.
Devolution has affected the context in which social work operates in Scotland. Social work is heavily influenced by social policy, and the pace of change in devolved areas has led to new legislation (on matters such as free personal care and mental health powers) and major organisational developments (the creation of new regulatory bodies and future implications of the 21st Century Social Work Review) (Ferguson, 2005). This creates the potential for active involvement of the profession in the shaping of policies which affect practice, and arguably contributes to the maintenance of a strong and distinctive identity for social workers in Scotland (Community Care, 2006).
Legislation can be created as a direct consequence of plans set out in a political party manifesto and put in train once an elected party forms a government. Or it can stem from the work of the Scottish Law Commission or a parliamentary select committee. Legislation is put before Parliament in the form of a bill, which must then pass through a number of stages (in both Houses of Parliament, in the case of the UK legislature) before it can become law in the form of an Act. Individual members of parliament can also initiate legislation, although in practice private members' bills generally require the support of the government to become law.
Activity 6: Finding out about the legislative process and government policy
Visit the websites of the Scottish Parliament and Scottish Executive to see what you can discover about their respective roles and how to find out about forthcoming legislation and policy agendas. Both websites are vast sources of information on parliamentary and government matters in Scotland. They are quite user-friendly to navigate; the best way to familiarise yourself with their contents is to browse through the toolbars and highlighted sections.
If this is your first visit, the following pointers should help:
On the Scottish Parliament site use the toolbars to find information ‘About the Parliament’ and on ‘Parliamentary Business’. See if you can locate the fact sheet on ‘Understanding the legislative process’ and a list of the current ‘Bills in progress’. Are there any which you think might be relevant to health and social care?
On the Scottish Executive site use the toolbars to read ‘About’ the executive and see if you can identify which ‘Topics’ might be relevant to this course. Visit the ‘Consultations’ section and again see whether the government is currently seeking opinion on policy areas which relate to social work.
The study of law cannot be separated from its political context, and if you are to keep abreast of legislative change you need to know where to go for information. You might like to bookmark these websites for future reference; you can also sign up for email notification of developments. While these official sites should be your first point of reference, there is also a wealth of material available online on social policy and its implications for social care in Scotland from professional organisations, journals, charities and pressure groups.
You may have found it hard to decide which topics on the Scottish Executive site were relevant to social work. This is because the concerns of the profession span a wide range of policy areas, and it can be difficult for social workers to keep informed. The 21st Century Social Work Review also recognised that the organisation of government departments in Scotland had implications for the coordination and implementation of policy affecting social work. There is no ‘minister for social work’, although, at the time of writing, a Cabinet Delivery Group and a National Social Work Services Forum chaired by the Minister for Education and Young People is proposed (Scottish Executive, 2006b).
In principle law making should be the end result of a considered and consultative process, and this is what the scrutiny of parliament in the passage of a bill is supposed to ensure. A good recent example of evidence-based law making is the Mental Health (Care and Treatment) (Scotland) Act 2003. This significant reform of mental health law in Scotland followed the publication of a detailed independent review of the previous legislation, which was conducted between 1999 and 2001 (Millan, 2001). There was also extensive government consultation with mental health service users and organisations on the Millan Committee's recommendations. Not all legislation, however, results from this kind of participative consensus. There can be substantial political debate over the need for a particular law, as well as over the detail of an Act's provisions.
There is often a link between issues of social concern and legislation, and politicians sometimes feel under pressure to act quickly, particularly if public emotions are running high. Under these circumstances governments have been criticised for pushing through knee-jerk social policy, which can be difficult to implement in practice or have detrimental effects. For example, you may remember the controversy surrounding the introduction of sex-offender registration, a popular measure designed to protect children from paedophiles, which some commentators argued would make it harder to supervise sex offenders in the community. More recently the introduction of anti-social behaviour legislation aimed to improve community well-being has attracted criticism for its potentially exclusionary effects on children, people experiencing mental ill health, ‘problem’ families and social housing tenants.
It is important to realise, however, that many areas of law which are in need of reform fail to capture the policy agenda, perhaps because they relate to ‘unattractive’ social causes, are hidden from view, or involve matters that are perceived to be too technical or complicated to address. The result is the continued existence of law which may lag behind society’s needs and expectations.
How the law is made, therefore, has relevance for all students of social work law because it reveals the social processes underpinning legal rules. Knowledge of this can provide insight into the underlying purpose of the legislation, and the way it is drafted, which assists in its application and empowers service users and others to scrutinise its use. It can help practitioners to understand the implications of new legal developments for their work, and to anticipate possible resistance to law from service users and partner agencies because of its effects on different groups. It also highlights the opportunities which exist for social workers, service users, carers and the general public to actively participate in the law-making process by, for example, supporting organisations which campaign for change, or responding to government policy consultations.