Act of the Scottish Parliament
An act of the Scottish Parliament is primary legislation made by the Scottish Parliament. The power to create acts was conferred to the Parliament by section 28 of the Scotland Act 1998 following the successful 1997 referendum on devolution.
Prior to the establishment of the Parliament under the 1998 act, all post-union laws specific to Scotland were passed at the Westminster Parliament. Although the Westminster Parliament has retained the ability to legislate for Scotland, by convention it does not do so without the consent of the Scottish Parliament. Since the passing of the 1998 act, the Westminster Parliament has passed five public general acts that apply only to Scotland.
A draft act is known as a bill. Once it is passed by the Scottish Parliament and receives royal assent, the bill becomes an act and is then a part of Scots Law.
Classification of legislation
Public bills
A public bill is a bill which is introduced by a Member of the Scottish Parliament, and which will deal with the general laws of Scotland, rather than the law as it applies to a single person or organisation. Public bills are further divided into categories based on the MSP who proposed them: government bills for a member of the Scottish Government; committee bills for the convener of one of the committees of the Scottish Parliament; or members' bills for any MSP who is not a member of the Scottish Government.Public bills are the most common type of bill. In the Parliament's fourth session, 81 of the 86 proposed bills were public bills.
Private bills
A private bill is a bill which will apply only to the bill's promoter: the specific person, corporation, or unincorporated entity which is putting the bill before Parliament. For example, the National Trust for Scotland was created by act of Parliament in 1935, making its constitution part of the law. As a result, amending the Trust's constitution required an act of the Scottish Parliament – the National Trust for Scotland Act 2013. Certain private bills are classified as works bills. These are bills to grant the statutory power to construct or alter works such as bridges, docks, roads, or tunnels, or the statutory power to compulsorily purchase or use land or buildings.Unlike with public bills, anyone with suitable interest in the outcome of a private bill can lodge an objection and have it considered by a parliamentary committee.
Private bills also differ from public bills in that they can legislate outside of the legislative competence of the Scottish Parliament. If all of the provisions of a private bill are within the Parliament's legislative competence, then the bill's passage into an act is covered by the Parliament's standing orders. If not, however, then the bill's passage is covered under a 1936 act of the UK Parliament.
The number of private bills is low compared to public bills. In the fourth session of the Parliament, five of the 86 proposed bills were private bills.
Hybrid bills
A hybrid bill is a class of bill introduced in 2009. It is a combination of the characteristics of public and private bills and is intended for use where its contents relate to general law or public policy, but where those provisions may negatively affect specific persons or bodies. Hybrid bills are always introduced by a member of the Scottish Government and, like public bills, can make general law provisions within the Scottish Parliament's legislative competence. However, like private bills, any person with a suitable interest can object and have their objections considered by a parliamentary committee, and a hybrid bill can be classed as a works bill depending on its provisions.The first hybrid bill put before the Parliament was the Forth Crossing Bill on 16 November 2009. This bill was later passed as the Forth Crossing Act 2011, which granted the Scottish Government the power to build the Queensferry Crossing.
Stages of bills
There are a number of stages a bill must pass through before it becomes an act, but to pass through these stages it must first be introduced to Parliament. To be introduced, the bill is prepared in accordance with the Parliament's standing orders along with its supporting documents: statements on legislative competence; cost estimates relating to implementation of the bill; objective explanations of the bill's provisions; any reports from consultations relating to the bill; and a report from the Auditor General for Scotland if the bill authorises charges on the Scottish Consolidated Fund.Internal to Parliament
Following a bill's introduction to Parliament, the first three stages a bill passes through are broadly defined by section 36 of the Scotland Act 1998. The precise process is set out by the Parliament's standing orders, and varies slightly depending on how the bill is classified.General debate
The first stage after introduction is a debate of the bill's intentions and its general principles, referred to in the standing orders as Stage 1 and required by section 36 of the 1998 act. The bill is referred to the relevant parliamentary committee or committees, plus the Delegated Powers and Law Reform committee if the bill allows the creation of secondary legislation. One of the relevant committees is designated the lead committee, and that committee prepares a report on the bill's general principles. The DPLR, if it is involved, will also prepare a report on the necessity of conferring the power to create secondary legislation.Once prepared, the reports are presented to Parliament for consideration. The Parliament may move to have a further report produced by the lead committee, or proceed to debate. A debate considers the committee reports, and is concluded by the MSP in charge of the bill moving "that the Parliament agrees to the general principles of the bill." If that motion receives the support of the Parliament, the bill proceeds to Stage 2. If the motion fails, the bill fails and does not proceed.
In certain cases it is necessary to receive Crown Consent before the bill can proceed, such as when the bill affects royal prerogative or the private interests of the monarch or monarchs. Generally, Crown Consent will only be sought in Stage 1 if a key component or a majority of the bill deals with matters that require consent.
Committee consideration
Once the Parliament agrees to the general principles of a bill, the bill progresses to Stage 2. In this stage, the bill may be referred back to the lead committee designated in Stage 1, or may be transferred to one or more other committees. Occasionally, a bill is transferred to a committee of the entire Scottish Parliament. The committees the bill is referred to then cover the bill in detail, and must agree on each individual portion. Specifically, the committees must agree on individual sections of the bill, schedules to the bill, and the bill's long title, and must do so in that order unless the committees or Parliament decide otherwise.In this stage, a bill can be amended, and any submitted amendments to a portion of the bill must be considered before a committee can agree on that portion. MSPs not on any Stage 2 committees can participate in discussion and submit amendments, but can't vote on whether amendments are accepted or rejected. Depending on the amendments submitted, it may be required to update the bill's supporting documents. The Stage 2 committees, unlike the Stage 1 committees, do not produce a report on the bill.
Stage 2 partially fulfils the requirements of section 36 of the 1998 act, along with Stage 3.
Parliament consideration
Following committee consideration, the bill is presented "as amended" to a meeting of the entire Scottish Parliament, where it is again debated and can again be amended. This is Stage 3, and fulfils the requirements of sections 36 and 36 of the 1998 act. Unlike in Stage 2, the Parliament will only debate those amendments selected by the Presiding Officer of the Scottish Parliament. Amendments are considered in order of the portions of the bill they amend, unless Parliament agrees to consider them in a different order.Following the debate and consideration of the bill and any Stage 3 amendments, the Parliament may opt to send the bill back to Stage 2 for further consideration. However, if it is felt that adequate consideration has already been had, the Parliament will vote on whether to pass the bill. If the bill does not receive a majority in-favour votes, or if the vote is invalid, the bill fails and does not proceed. The vote is considered invalid when an electronic vote is taken and fewer than a quarter of MSPs vote.
If Crown Consent is required and was not gained before Stage 3, it will usually be gained before the start of the vote on whether to pass the bill.
External to Parliament
Once passed by Parliament, the stages a bill passes through before becoming an act are set out by sections 32 to 36 of the Scotland Act 1998. These stages generally do not involve Parliament.Statutory challenge
A passed bill may be challenged by the Advocate General for Scotland, the Lord Advocate, or the Attorney General, who can refer it under section 33 of the 1998 act to the Supreme Court of the United Kingdom for review. The Supreme Court will then determine whether the bill is within the Parliament's legislative competence; before the UK left the European Union in 2020, it could also decide whether the bill was to be referred to the European Court of Justice for review. Such a challenge may be lodged within the four weeks following the passing or approval of the bill. If a bill was referred to the ECJ, the Parliament could move to reconsider the bill and have the reference withdrawn. If the reference is only to the Supreme Court, the Parliament must wait for the Court's decision. This type of statutory challenge is termed a Section 33 reference. For example, this occurred with the European Charter of Local Self-Government Bill and the United Nations Convention on the Rights of the Child Bill - the UNCRC bill was later modified and passed as the United Nations Convention on the Rights of the Child Act 2024.The Secretary of State may also challenge by order under section 35 of the 1998 act. Section 35 provides that such challenges must be on the grounds that the bill: is incompatible with international obligations; is incompatible with the interests of defence or national security; or deals with reserved matters and will have "an adverse effect on the operation of the law." These orders can be created within the four weeks following the passing or approval of the bill, or within four weeks following the lodging of a section 33 reference against the bill. The orders can remain active indefinitely, and are referred to as Section 35 orders.For example, this occurred with the Gender Recognition Reform Bill.