2 Legislative competence
The legislative competence of the Scottish Parliament is set out in the Scotland Act 1998 (as amended). In particular, Sections 28 and 29 of the Act are relevant. The concept of ‘legislative competence’ is an important factor in the law making process of the Scottish Parliament. The Scottish Parliament can only make laws that are within its legislative competence. Any law that is made without legislative competence is void (and therefore has no legal effect).
Section 28 (as amended) is set out in Figure 5. This Section gives the Scottish Parliament power to make laws and sets out the arrangements for Bills of the Scottish Parliament, once passed, to receive Royal Assent. You will learn more about the process of Royal Assent in the next week (it is signified by the monarch under the Scottish Seal).
Section 28(5) (this is a citation for an Act of Parliament: You look at these in more detail later in the course) notes that the validity of an Act of the Scottish Parliament will not be affected by any invalidity in the proceedings of the Scottish Parliament during the process of enactment. i.e. the debating and other stages of the parliamentary law making process.
Section 28(7) links to the parliamentary sovereignty discussion you explored in the previous week of study. This is the subsection that is said to maintain UK Parliamentary sovereignty.
As you looked at Section 28 you may have noticed the use of F1 and square brackets [..]. These brackets are used to show that the original Act has subsequently been amended. It is not uncommon for subsequent Acts to amend earlier Acts by making further additions. The copy of the Scotland Act 1998 in Figure 5 is a screen shot (of an Act currently in force) taken from legislation.gov.uk. On that website the original text of the Act (original pdf and sometimes called ‘as enacted’) can be found alongside the most up to date version of the Act and explanatory notes. Section 28(8) was added to the original Scotland Act 1998 by a later Act. Section 28(8) relates to legislative consent motions which you explored earlier in the course.
Section 29 of the Scotland Act 1998 sets out legislative competence and provides that ‘An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament’. This section sets out the powers of the Scottish Parliament to make laws in devolved areas. You now explore those powers in Section 2.1.