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

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5 Constitutional characteristics and Scotland

The process of devolution has impacted the UK’s constitutional framework as new constitutional statutes exist. You have learnt about the theory that the UK Parliament is sovereign – it can make and unmake any law, it cannot be bound by decisions of past parliaments and it cannot bind future parliaments.

Questions about the sovereignty of the UK Parliament are not uncommon. In recent times, as you may have heard or seen in the media, these were often in relation to membership of the EU and the European Communities Act 1972. The nationwide referendum on EU membership in 2016 proved a turning point in relation to those questions as the UK Parliament prepared legislation to leave the EU.

In R (on the application of Miller and another) (Respondents) v Secretary of State for Exiting the European Union (Appellant) [2017] UKSC 5 the concept of Parliamentary Sovereignty was considered and upheld.

Since […] will be a fundamental alteration in the UK’s constitution, it can only be effected by Parliamentary legislation.

The process and consequences of devolution differ. New relationships between the nations which make up the UK have been created. These relationships differ significantly from EU membership and the aspirations which lead 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 politicians (including those based in the UK) and governments sought to create a climate of stability, harmony, prosperity and cooperation to ensure that the horrors which occurred during the war would never be seen again in Europe. The way forward was seen to be through agreed common values, such as the protection of the rights of citizens, security, democracy and the rule of law.

The relationship between the nations has a longer history encompassing conflict, revolution, conquest, integration and rule by one monarch. Scotland has always retained its own legal system and economic reasons lead to the Treaty of Union in 1707. That treaty was not necessarily popular with everyone, as shown by the popular uprisings and general unrest in Scotland at the time.

Scotland is also often referred to as the ‘most devolved nation’ as it was initially given the greater of the devolved powers. The Scotland Act 1998, established Scottish devolution. The Scotland Act 2016 inserted a new Section into the 1998 Act, providing for the permanence of the Scottish Parliament and Government. This acknowledges that both the Scottish Parliament and Government are a permanent part of the UK’s constitutional arrangements. The Section states that they should not be abolished without the consent of the Scottish people, which would be gained through a referendum (Section 63A(3)).

Box 2 Section 63(A) Scotland Act 1998

Figure 16 Section 63(A) Scotland Act 1998

In theory, despite devolution, the concept of parliamentary sovereignty remains. The UK Parliament granted the new law making powers as part of the devolution settlements, and so it could remove them. In theory the UK Parliament remains as the supreme law making power. You will explore this later when you consider the role and powers of both the Scottish and UK Parliaments.

Watch the following video of the opening of the fourth session of the Scottish Parliament. The video includes a speech made by the Presiding Officer of the Scottish Parliament and one made by Queen Elizabeth II. Listen to these speeches carefully. They explore the role and functions of the Scottish Parliament. In particular listen to how MSPs are reminded about the role of parliament to legislate, scrutinise and reflect the will of the people.

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The speeches in the audio have not been edited. They contain some important points which link to the following weeks of this course. Identifying key points in a text, speech, presentation or discussion is an important skill whether for study, for work or leisure time. If you choose further study (such as a degree or apprenticeship), you may attend events such as seminars in which you will expected to take notes of key points. In employment you may attend conferences or presentations of colleagues, where being able to concentrate and identify information relevant to your work could be important. In your leisure you may enjoy sports, travel or going to the cinema. In all these you will be presented with information to process and make sense of. Being able to concentrate and identify relevant information is something we hope the audios in this course will assist you in practising.