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Law Making and the Scottish Parliament

Law Making and the Scottish Parliament: The Early Years

Elaine E Sutherland
Kay E Goodall
Gavin F M Little
Fraser P Davidson
Copyright Date: 2011
Pages: 432
  • Cite this Item
  • Book Info
    Law Making and the Scottish Parliament
    Book Description:

    A study of legislative developments in areas of law and policy devolved to the Scottish Parliament.

    eISBN: 978-0-7486-4543-5
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Preface
    (pp. vii-vii)
    Elaine E Sutherland, Kay E Goodall, Gavin F M Little and Fraser P Davidson
  4. List of Contributors
    (pp. viii-ix)
  5. Table of Cases
    (pp. x-xvi)
  6. Table of Westminster Statutes
    (pp. xvii-xxix)
  7. Table of Scottish Parliament Statutes
    (pp. xxx-l)
  8. Table of Westminster Statutory Instruments
    (pp. li-lii)
  9. Table of Scottish Statutory Instruments
    (pp. liii-2)

    • 1 Law Making and the Scottish Parliament: The Early Years in Context
      (pp. 3-8)
      The Editors

      The creation of the Scottish Parliament under the Scotland Act 1998¹ was without doubt a momentous political, constitutional and social happening in Scotland. The zeitgeist was captured at the first meeting of the Parliament in May 1999 by Dr Winnie Ewing, its most senior member, when she declared that “The Scottish Parliament, which adjourned on 25 March 1707, is hereby reconvened”.² Although the constitutional actuality of the new Scottish Parliament, which exercises law-making competence subject to the statutory authority of the UK Parliament,³ is very different from that of the Scottish Parliament of 1707, which was the legislature of an...

    • 2 A Parliament that is Different? The Law-Making Process in the Scottish Parliament
      (pp. 9-32)
      Alan Page

      Law making has emerged as one of the defining activities of the Scottish Parliament. In the ten years since devolution the Parliament has passed almost 150 Acts, on subjects ranging from criminal law to evidence, from local government to planning, and from mental health to family law. In doing so it has confounded the expectations of those who thought that law making would not feature prominently among the new Parliament’s activities:

      So passionate were some of the expectations of devolution that some respectable voices argued that little or no devolved legislation would be needed. A nation that had voted decisively...


    • 3 Human Rights and People and Society
      (pp. 35-57)
      Aidan O’Neill

      In February 1998 the Judicial Committee of the Privy Council gave judgment in Matadeen v Pointu. This was an appeal to the Board sitting in London by the Mauritius Minister of Education and Science from a decision of the Supreme Court of Mauritius to the effect that, in introducing new school exam regulations without due notice, the government of Mauritius had acted unconstitutionally because, inter alia, it had acted in a manner contrary to art 3 of the Declaration of the Rights of Man and Citizen of 1793 (which provided that “all men are equal by nature and before the...

    • 4 Child and Family Law: Progress and Pusillanimity
      (pp. 58-83)
      Elaine E Sutherland

      Any assessment of the Scottish Parliament’s contribution to child and family law necessarily involves measuring its output against criteria. Happily, selecting the criteria is one of the privileges of the author. In this chapter, what the Parliament has achieved will be assessed in the light of the problems it was designed to solve; the promises held out for it by its creators; and the subject-specific goals of child and family law itself.

      Scotland has long had an embarrassment of riches when it came to proposals for reform of child and family law, many emanating from the Scottish Law Commission. In...

    • 5 Culture
      (pp. 84-102)
      Robert Dunbar

      The Scottish Parliament generally has the competence to deal with most issues which would be considered to relate to culture,¹ with the important exception of broadcasting.² The creation of the Parliament has arguably resulted in greater discussion of a range of Scottish cultural issues than had been possible at Westminster, prior to devolution. There has, for example, been a committee with responsibility for culture since the creation of the Scottish Parliament,³ and it has produced a number of significant reports. These include a report in 2000 on an inquiry into the national arts companies;⁴ reports in 2001 on the Gaelic...

    • 6 Charity Law: An Issue of Choice
      (pp. 103-124)
      Stuart Cross

      The passing of the Charities and Trustee Investment (Scotland) Act 2005¹ was a landmark occurrence in the development of charity law in Scotland. It introduced a dedicated charities regulator, created a new definition of “charity” for Scottish charities and introduced a new regulatory regime to allow for the effective monitoring of and potential intervention in the affairs of Scottish charities, built on the information contained in the new Scottish register of charities. Although the public perception may have been that these changes to the landscape of charity law in Scotland only took place as a result of the need to...


    • 7 Local Government
      (pp. 127-140)
      Francis McManus

      Local government has been described as “big business”.¹ With the exception of Northern Ireland, local authorities in the United Kingdom are responsible for education, housing, personal services, transport, planning, fire and rescue services, policing, libraries and museums, leisure and recreation, waste services, consumer protection and environmental health.² This chapter examines the role which has been played by the Scottish Parliament in the development of local government.

      Local government falls within the legislative competence of the Scottish Parliament.³ Further, local authorities are creatures of statute, with legislation defining their geographical areas, the way in which their members are elected, how their...

    • 8 Housing
      (pp. 141-156)
      Peter Robson

      Housing has been a major feature of the first ten years of the Scottish Parliament. Legislation in relation to housing has been a major part of the work of the Holyrood legislature. There have been no fewer than three major pieces of legislation focusing solely on housing, as well as housing featuring significantly in three other Acts. Indeed, one of the first pieces of legislation to reach the statute books from the new Scottish Parliament was the Housing (Scotland) Act 2001 and, at the time of writing, a Housing (Scotland) Act is likely to be passed in 2010. Looking, then,...

    • 9 Education: Could Do Better
      (pp. 157-180)
      Janys M Scott

      The Scottish Parliament passed no less than fourteen education statutes between the beginning of 2000 and the end of 2009. This is hardly surprising given the importance of education to the future of Scottish society and the proud independent tradition of education in Scotland. The Parliament has been keen to make a mark on the international stage in recognition of children’s rights. Aspirations for the quality of Scottish education are clear. Under previous Westminster administrations, parents were considered the best guardians of education for their children. This administration has not agreed. Parents are to be interested and involved, but education...


    • 10 The Reform of the Scottish Judiciary
      (pp. 183-207)
      Gavin F M Little

      Scottish judges¹ possess considerable power over their fellow citizens and under the constitution. The Scottish Parliament has, in its first decade of law-making, introduced important statutory reforms of the judiciary with the objective of modernising its position in the constitution and strengthening its internal structures and processes. Indeed, for the higher judiciary in the Court of Session in particular, the passing by the Parliament of the Judiciary and Courts (Scotland) Act 2008² (hereafter “the 2008 Act”) is one of the most significant legislative landmarks since the Act of Union 1707.

      This chapter is set out as follows. First, brief consideration...

    • 11 Criminal Law and Criminal Justice: An Exercise in Ad Hocery
      (pp. 208-224)
      Pamela R Ferguson

      At the time of writing¹ the Scottish Parliament has passed 147 statutes, more than a third of which affect criminal procedure, sentencing, or the substantive criminal law.² Such is the extent of these changes that this chapter can do no more than highlight some of the main provisions and offer some critique.³ Prior to the re-establishment of the Scottish Parliament, Scots criminal procedure had frequently been amended by legislation, and it is unsurprising that this has continued post-devolution. While many of the changes have been highly successful,⁴ it may be suggested that we have moved further along the spectrum from...

    • 12 Juvenile Offending: Welfare or Toughness
      (pp. 225-249)
      Claire McDiarmid

      The most striking point about offending by juveniles during the period of the Scottish Parliament’s existence is the political capital which “dealing with the problem” is perceived to create. The past ten years have been a period in which the media have affirmed and reaffirmed the “problem” of out-of-control youth.¹ While this account has not gone unchallenged,² it can be said to have been dominant and it has given governments, both in Westminster and Holyrood, the opportunity to be seen to be taking a firm stance. Such “toughness” is often seen as the province of New Labour³ – the follow-up...

    • 13 Evidence
      (pp. 250-268)
      Fraser P Davidson

      Various chapters in this work will no doubt be able to allude to the root and branch reform of the law wrought by the Scottish Parliament, or to how certain areas of the law languished for many years in dire need of legislative reform but were unable to command parliamentary time prior to the advent of the Scottish Parliament. This cannot be claimed in relation to the law of evidence. While much of this area of the law continues to be judge-made, statute has intruded on the law, often in radically important ways, from the middle of the nineteenth century...


    • 14 Property Law: How the World Changed at Martinmas
      (pp. 271-302)
      Robert Rennie

      The first statute which was relevant to conveyancing was passed in 1540.¹ A great deal of legislation was passed in the nineteenth century.² The Conveyancing (Scotland) Act 1874 (hereafter “the 1874 Act”) remained the fundamental conveyancing statute until 1924.³ A small number of issues were dealt with in 1938⁴ but, apart from that, there was very little legislative activity until 1970.⁵ Compulsory redemption and the prohibition of feuduties were introduced in 1974.⁶ Finally, in 1979, land registration was introduced.⁷ There were various other Acts between 1979 and 1995 which dealt with discrete areas of the law.⁸ In 1988 the Scottish...

    • 15 Business
      (pp. 303-316)
      David Cabrelli

      In March 1999, the same year that the Scottish Parliament was re-established, the then Scottish Office commissioned a report entitled Pathfinders to the Parliament: A Business Agenda for the Scottish Parliament.¹ The report was divided on the basis of key sectors of the Scottish economy and each of the groups was convened by key business individuals operating within those sectors. Each group made suggestions for policy and legislative initiatives. The majority of the issues raised could be classified as policy issues which fell within the remit of the then Scottish Executive. Others entailed legislative proposals:

      There is also a strong...

    • 16 Environment and Sustainable Development
      (pp. 317-340)
      Colin T Reid

      A considerable amount of the legislation passed by the Scottish Parliament can be seen as falling within the general area of environment and sustainable development, but providing an assessment of it is not straightforward. In the first place there are difficulties over the scope of what should be covered. Not only do environmental concerns and those relating to sustainable development have a significantly different, and sometimes conflicting, focus, but the limits of both of these concepts are uncertain.

      A second key element is the need to take account of the extent to which there are significant constraints on the Scottish...

    • 17 Transport
      (pp. 341-360)
      Ann Faulds and Trudi Craggs

      Transport is an essential part of any society. Transport systems support economic growth and meet expectations for travel and communication in an increasingly mobile society. Despite its importance, investment in transport infrastructure was limited during the twentieth century – a situation aggravated by unprecedented growth in private car use throughout the UK and elsewhere. The last UK Conservative government introduced a range of measures that altered the balance between subsidised public services and market-driven private services. Competition became a key driver in government policy and the deregulation of bus services transformed the lynchpin of the public transport system.

      There has...

  15. Index
    (pp. 361-376)