The Scottish Parliament and law making
The Scottish Parliament and law making

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1 The Scotland Act 1998

The Scotland Act 1998 (The 1998 Act) established the Scottish Parliament and outlined the law-making process, on what matters laws can be made (devolved matters) and the legislative competence of the Scottish Parliament. The law-making process is explored in week 3. Here you consider on what matters law can be made.

The Mace of Scotland
Figure 1 The Mace of Scotland

The 1998 Act contained a list of ‘reserved matters’ in Schedule 5. These were matters which were to be reserved for the UK Parliament and on which only the UK Parliament could make law. There was, however, no similar list of devolved matters on which the Scottish Parliament could legislate. It has therefore been established that the matters on which the Scottish Parliament can legislate are, in effect, all those matters that are not ‘reserved’. So, although power is devolved, there are some limitations as the UK Parliament continues to legislate for Scotland on reserved matters.

Box 1 Reserved and Devolved matters under the Scotland Act 1998 (unamended)

Reserved matters in Schedule 5 of the Scotland Act 1998 (original unamended) include:Matters on which the Scottish Parliament can legislate under the original unamended Scotland Act 1998

constitutional matters

health

UK foreign policy (including relations with Europe)

education
UK defence and national securitylocal government
the fiscal, economic and monetary systemeconomic development
immigration and nationalitytourism
energy: electricity, coal, gas and nuclear energycriminal law
common marketscivil law
trade and industry, including competition and customer protectionagriculture and food
railways, transport safety and regulationsport and the arts
employment legislationplanning
social security and child supportsocial work
gambling and the National Lotterynational heritage
data protectiontraining
firearms housing
consumer protectionsome aspects of transport, including the road network, ports and harbours
ordnance surveylaw and home affairs (the prosecution system and courts)
abortion, human fertilisation, embryology, geneticsthe police and fire services
xenotransplantation and vivisectionthe environment
equal opportunitiesagriculture, forestry and fishing
regulation of activities in outer spacestatistics, public registers and records

The Scottish Parliament has full legislative competence (it can pass both primary and subordinate legislation) in devolved areas (i.e. those matters that are not ‘reserved’).

Since its establishment in 1998 the Scottish Parliament in its law making and powers has influenced the character and style of Scots law in ways in which have resulted in differences from those applicable in England, Wales and Northern Ireland. The possibility of the UK Parliament legislating on devolved matters does, however, exist. This is explored in Weeks 2 and 4.

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