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Law and change: Scottish legal heroes
Law and change: Scottish legal heroes

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2.1 Legislative competence

Legislative competence is a way of determining whether an Act of the Scottish Parliament has been produced within the powers of the Scottish Parliament. The Scotland Act 1998 transferred power to legislate (make laws) from the UK Parliament to the Scottish Parliament. The Scottish Parliament has power to make law on any matter that is not reserved. The areas on which it can make law are known as devolved matters. A list of these can be found in Box 1.

Table 1 Devolved matters – what is devolved and when was it devolved?
DevolvedDates on which it was devolved
Agriculture, forestry and fishingAll areas were devolved in 1998 under the Scotland Act 1998.
Education and trainingAll areas were devolved in 1998 under the Scotland Act 1998.
Elections to the Scottish ParliamentThis area was devolved in 2012 and 2016.
EnvironmentMost areas were devolved in 1998. Energy efficiency schemes were devolved in 2016.
Health and social servicesThese areas, including the NHS, funding, health education, health services, medicine, public health and mental health were devolved in 1998. Social work was devolved in 1998. Social security benefits were devolved in 2016.
HousingAll areas, including policy and building control were devolved in 1998. Land use planning was devolved in 1998.
Law and orderAreas including civil justice, civil law and procedure, courts, criminal justice, criminal law and procedure, police, debt and bankruptcy, family law, freedom of information, legal aid, legal profession, licensing law and property law were devolved in 1998. The drink drive alcohol limit was devolved in 2012. Railway policing was devolved in 2016.
Local governmentThis area was devolved in 1998 and the local government franchise was added in 2016.
Sport and the artsThis was devolved in 1998 and includes support for creative industries, Creative Scotland, national gallery, library and museum collections, national performing companies, sportscotland and major events.
Some forms of taxationScottish Variable Rate of Income Tax was devolved in 1998. In 2016, the partial assignment of VAT revenues was given and in 2012, powers were given to set the Scottish Rate of Income Tax (SRIT), Land and Buildings Transaction Tax and Landfill Tax.
Many aspects of transportAspects of transport including passenger rail franchise, road signs, speed limits, air passenger duty were devolved in 2016. (Most powers over aviation, shipping and road traffic law are reserved as is HGV and bus driver, vehicle and operator licensing).
Welfare Including social security benefits such as Disability Living Allowance, Personal Independence Payment, Carer’s Allowance, Severe Disablement Allowance, Discretionary Housing Payments and Winter Fuel Payments, fuel poverty schemes were devolved in 2016.
(Scottish Parliament, n.d.)

Section 29 of the Scotland Act 1998 contains a limit on the power of the Scottish Parliament to legislate. This is known as the limit of ‘legislative competence’ and is an important factor in the law making process of the Scottish Parliament. Legislative competence is defined according to five criteria:

Figure 3 outlines the legislative competence of the Scottish Parliament.
Figure 3 Legislative Competence of the Scottish Parliament

The concept of legislative competence is important because the Scotland Act 1998 requires the legislative competence of any Bill (a draft law) to be assessed before it is introduced in the Scottish Parliament. It also provides an opportunity for legislative competence to be challenged after a Bill is passed but before it can become law. If an Act is outside the legislative competence of the Scottish Parliament then it is void and unenforceable.

Figure 4 provides an example of a legislative consent motion.
Figure 4 Legislative consent motion