Part 1: Public Bills
Introduction
1.1 A Bill is a draft Act, and contains the text that will, if the Bill is passed and enacted, become part of the statute law. Most Bills, and the only ones dealt with in this Guidance, are “public Bills” – that is, Bills introduced by members and dealing with matters of public policy and the general law. (Private Bills – that is, Bills introduced by private individuals or bodies seeking powers or benefits in excess of or in conflict with the general law – are subject to distinct Rules and are the subject of separate Guidance.1) Bills are also items of Parliamentary business, subject to a process of scrutiny over various Stages. The main purpose of this Guidance is to describe that process as it applies to public Bills in the Scottish Parliament.
Devolution and the limits of legislative competence
1.2 Before devolution, all Bills affecting Scotland were introduced in, and subject to the procedures of, the United Kingdom Parliament (that is, the two Houses at Westminster). Some such Bills were limited in extent to Scotland, while others applied to the whole of Great Britain or the United Kingdom (often with some distinct provisions applicable only to Scotland).
1.3 Section 28(1) of the Scotland Act 1998, which established the Scottish Parliament, provides that “subject to section 29, the Parliament may make laws, to be known as Acts of the Scottish Parliament”. The limit on that power to legislate, set out in section 29, is the limit of “legislative competence”.
1.4 Legislative competence is defined according to five criteria (set out in section 29(2)). Expressed in general terms, those criteria are:
- that the Parliament can only legislate for or in relation to Scotland;
- that it cannot legislate in relation to the “reserved matters” set out in Schedule 5 to the Act (which include key elements of the constitution, foreign affairs, defence and social security, plus a range of more specific matters in home affairs, trade and industry, energy and transport, among others);
- that it cannot modify certain enactments set out in Schedule 4 to the Act (which include the Human Rights Act 1998 and certain provisions of the Acts of Union and the European Communities Act 1972);
- that its legislation must be compatible with the European Convention on Human Rights and with European Community law; and
- that it cannot remove the Lord Advocate from his or her position as head of the system for criminal prosecutions and the investigation of deaths.
1.5 While many of the limits on legislative competence are clear-cut, others may be subject to differences of interpretation. As such, the precise boundaries of the Parliament’s powers to legislate can ultimately be decided only by the courts. The Scotland Act requires the legislative competence of any Bill to be assessed before it is introduced in the Parliament, and provides an opportunity for it to be challenged after it is passed but before it can become law (as described in Part 2 below).
1.6 Although the Scottish Parliament has the power to legislate on a wide range of matters devolved to it - including most aspects of civil and criminal justice, health, education, local government, transport and housing - the United Kingdom Parliament retains a general power (under section 28(7) of the Scotland Act) to legislate on all matters, both reserved and devolved. However, the exercise of this power is subject to the convention that Westminster will not legislate on a devolved matter – or to alter the legislative competence of the Parliament, or the executive competence of Scottish Ministers – without the consent of the Scottish Parliament.2 The Parliament’s consent is obtained by the Parliament's agreement to what is known as a legislative consent motion. The procedure associated with this process is contained in Chapter 9B of Standing Orders and is not further covered by this Guidance.3
The Scotland Act and Standing Orders
1.7 The Scotland Act provides minimum requirements about the process to be followed by the Parliament in passing Bills. Section 36(1) requires there to be at least three distinct stages to which Bills are subject – namely a stage when members can debate and vote on the general principles of the Bill; a stage when they can consider and vote on its details; and a final stage when the Bill can be passed or rejected. This 3-stage model may be departed from in relation to specific types of Bill, and an additional stage must be provided for where a Bill is subject to challenge after being passed.
1.8 The Standing Orders of the Parliament provide its procedural framework. The process governing the passage of a public Bill is set out in Chapter 9 of the Standing Orders. (Private Bills are dealt with separately in Chapter 9A.) However, the rules in Chapter 9 need to be read in the context of the Standing Orders as a whole – including in particular, the rules relating to the management of business (Chapter 5), proceedings in committee (Chapters 6 and 12) and in the Parliament (Chapter 7), and on decision-making and voting (Chapter 11). It should be borne in mind, in particular, that any of the rules (except to the extent that they reflect requirements of the Act) may be suspended or varied on a particular occasion or for a particular purpose (Rule 17.2).
Structure and style of Bills
1.9 Bills in the Scottish Parliament are very similar, in terms of layout, structure and the conventions of legislative drafting, to Bills in Westminster. This is primarily because the Acts of the Scottish Parliament (ASPs) to which they are intended to give rise form part of the UK “statute book” alongside existing statute law in the relevant area, most of which consists of Acts passed by the UK Parliament before devolution.
1.10 Rule 9.2.3 requires Bills to be in “proper form”. The Presiding Officer has made a determination of “proper form” which, together with recommendations on the content of Bills, is reproduced at Annex A. An illustration of the form of a Bill and its principal components is set out at Annex F.
1.11 Users of this Guidance who are unaccustomed to dealing with primary legislation may find it useful to familiarise themselves with the information given in Annex B, which explains the structure of Bills and certain common features of drafting.
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Footnotes:
1 Guidance on Private Bills
2 This is generally known as the “Sewel Convention” after Lord Sewel, the Minister who announced the Government's intention to establish such a convention during the passage of the Scotland Bill.
3 For further details, see Procedures Committee, 7th Report, 2006.