Part 1: Public Bills and background to the legislative process
1.1 A Bill is a draft Act. A Bill introduced in the Scottish Parliament contains the text that will, if the Bill is passed and enacted, become part of the statute law as an Act of the Scottish Parliament.
1.2 Most Bills are “Public Bills” – Bills introduced by members of the Scottish Parliament and dealing with matters of public policy and the general law.
1.3 Various types of Bills (including Government Bills, Member’s Bills, Committee Bills, Consolidation Bills, Scottish Law Commission Bills, etc.) are classed as Public Bills.
1.4 Bills are subject to a process of parliamentary 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.
1.5 “Private Bills” are Bills introduced by private individuals or bodies seeking powers or benefits in excess of or in conflict with the general law. Private Bills are subject to distinct Rules and are not covered in this Guidance. Separate Guidance on Private Bills is available.
1.6 “Hybrid Bills” are Public Bills introduced by a member of the Scottish Government which adversely affect a particular private interest of an individual or body in a manner different to the private interests of other individuals or bodies of the same category or class. Hybrid Bills combine the characteristics of other Public Bills – being introduced by Scottish Government Ministers, and often dealing with matters of general public policy – with some of the characteristics of a Private Bill. Hybrid Bills are also subject to distinct Rules and are not covered in this Guidance. Separate Guidance on Hybrid Bills is also available.
The Scottish Parliament’s “legislative competence”
1.7 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).
1.8 The Scotland Act 1998 (“the 1998 Act”) established the Scottish Parliament, and gave it the power to legislate on certain matters. Section 28(1) of the 1998 Act 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 the Parliament’s “legislative competence”.
1.9 The Parliament’s legislative competence is defined according to five criteria (set out in section 29(2)):
- the Parliament can only legislate for or in relation to Scotland;
- it cannot legislate in relation to the “reserved matters” set out in Schedule 5 to the 1998 Act. Only the UK Parliament can legislate on those reserved matters;
- it cannot modify certain enactments set out in Schedule 4 to the Scotland Act 1998 (which include the Human Rights Act 1998 and certain provisions of the Acts of Union and the European Communities Act 1972);
- its legislation must be compatible with the European Convention on Human Rights and with European Union law; and
- it cannot remove the Lord Advocate from his or her position as head of the system for criminal prosecutions and the investigation of deaths.
1.10 The 1998 Act requires separate statements on the legislative competence of any Bill to be made by the Presiding Officer and by the “member in charge” of the Bill before it is introduced in the Parliament (see paragraphs 2.17-2.19 below). The 1998 Act also provides an opportunity for the legislative competence of a Bill to be challenged after it is passed but before it can become law (see paragraphs 2.99-2.102 below).
1.11 While many of the limits on legislative competence are clear-cut, others may be subject to differences of interpretation. Whether the provisions of a Bill are within the legislative competence of the Parliament may be a matter of debate throughout the process of considering the Bill – both in regard to general debate on the Bill as a whole (or specific provisions in it) and in the context of particular amendments (see paragraphs 4.10 and 4.11 below). The precise boundaries of the Parliament’s powers to legislate can ultimately be decided only by the courts.
1.12 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, housing and elements of taxation and social security.
1.13 Matters that are reserved to the UK Parliament include certain elements of the constitution, foreign affairs, defence and certain elements of taxation and social security, plus a range of more specific matters in home affairs, trade and industry, energy and transport, among others.
1.14 The United Kingdom Parliament also retains a general power (under section 28(7) of the 1998 Act) to legislate on all matters, both reserved and devolved. The exercise of this power is subject to the convention (known as “the Sewel convention”) that the UK Parliament will not legislate on a devolved matter – or alter the legislative competence of the Parliament, or the executive competence of the Scottish Ministers – without the consent of the Scottish Parliament. (The Sewel Convention, insofar as it relates to UK Parliament legislation on devolved matters, is given statutory recognition in section 28(8) of the 1998 Act, as amended by the Scotland Act 2016.) 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 the Parliament’s Standing Orders and is not covered by this Guidance.
The Scotland Act 1998 and Standing Orders
1.15 The Scotland Act 1998 (as amended by the Scotland Acts of 2012 and 2016) sets out the principles of the process to be followed by the Parliament in passing Bills. Section 36(1) requires there to be at least three distinct stages to the scrutiny of Bills:
- 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;
- a final stage when the Bill can be passed or rejected.
1.16 The Parliament may depart from this three-stage model in relation to specific types of Bill.
1.17 The 1998 Act also requires provision to be made for an additional stage (“Reconsideration Stage”) to be available in circumstances where a Bill is subject to challenge after being passed (on legislative competence grounds – section 33 of the Scotland Act 1998) or cannot be submitted for Royal Assent by the Presiding Officer because of an order issued by the Secretary of State (on various grounds – section 35 of that Act). Reconsideration Stage may also be held where—
- a Bill is rejected in circumstances where the Presiding Officer has stated that provisions in it relate to “protected subject-matter” (see paragraph 2.83 below), reference is made to the Supreme Court under section 32A(2)(a) of the Scotland Act 1998 and the Court decides that provisions referred to it do not relate to such a matter, or
- a Bill is passed (but by a majority of less than two-thirds) in circumstances where the Presiding Officer has stated that no provisions in it relate to “protected subject-matter”, reference is made to the Supreme Court under section 32A(2)(b) of the 1998 Act and the Court decides that provisions referred to it do relate to such a matter.
See paragraphs 2.99-2.111 below for further details of Reconsideration Stage.
1.18 The Standing Orders set out the Parliament’s procedures in more detail. The process governing the passage of a Public Bill is set out in Chapter 9. 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 decision-making and voting (Chapter 11).
1.19 Any of the rules in Standing Orders may be suspended or varied on a particular occasion or for a particular purpose. The rules cannot, however, be changed in a way that would be inconsistent with any requirements of the Scotland Act 1998 (Rule 17.2).
Structure and style of Bills
1.20 Bills in the Scottish Parliament are very similar, in terms of layout, structure and the conventions of legislative drafting, to Bills in the UK Parliament. 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.
1.21 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. Annex B explains the structure of Bills and certain common features of drafting. An illustration of the form of a Bill and its principal components is set out at Annex C.