Law Enforcement in Scotland - Sources of Law - Legislation

Legislation

The Parliament of the United Kingdom has the power to pass statutes on any issue for Scotland, although under the Sewel convention will not do so in devolved matters without the Scottish Parliament's consent. The Human Rights Act 1998, the Scotland Act 1998 and the European Communities Act 1972 have special status in the law of Scotland. Modern statutes will specify that they apply to Scotland and may also include special wording to take into consideration unique elements of the legal system. Statutes must receive Royal Assent from the Queen before becoming law, however this is now only a formal procedure and is automatic. Legislation of the Parliament of the United Kingdom is not subject to the review of the courts as the Parliament is said to have supreme legal authority; however, in practice the Parliament will tend not to create legislation which contradicts the Human Rights Act 1998 or European law, although it is technically free to do so. The degree to which the Parliament has surrendered this sovereignty is a matter of controversy with arguments generally concerning what the relationship should be between the United Kingdom and the European Union. Acts of the United Kingdom Parliament also regularly delegate powers to Ministers of the Crown or other bodies to produce legislation known as statutory instruments. This legislation has legal effect in Scotland so far as the specific statutory instrument is meant to.

The Scottish Parliament is a devolved unicameral legislature that has the power to pass statutes only affecting Scotland on matters within its legislative competence. Legislation passed by the Scottish Parliament must also comply with the Human Rights Act 1998 and European law, otherwise the Court of Session or High Court of Justiciary have the authority to strike down the legislation as ultra vires. There have been a number of high profile examples of challenges to Scottish Parliament legislation on these grounds, including against the Protection of Wild Mammals (Scotland) Act 2002 where an interest group unsuccessfully claimed the ban on fox hunting violated their human rights. Legislation passed by the Scottish Parliament also requires Royal Assent which, like with the Parliament of the United Kingdom, is automatically granted.

Legislation passed by the pre-1707 Parliament of Scotland still has legal effect in Scotland, though the number of statutes that have not been repealed are limited. Examples include the Royal Mines Act 1424, which makes gold and silver mines the property of the Queen, and the Leases Act 1449, which is still relied on today in property law cases.

The European Parliament and Council of the European Union also have the power to create legislation which will have direct effect in Scotland in a range of matters specified under the Treaty on the Functioning of the European Union. All levels of Scottish courts are required to enforce European law. Only the Court of Justice of the European Union has the authority to legally review the competency of a legislative act by the European Parliament and the Council. European legislation will be annulled if it is contrary to the Treaties of the European Union or their spirit, is ultra vires or proper procedures in its creation were not followed.

Legislation which forms part of the law of Scotland should not be confused with a civil code as it does not attempt to comprehensively detail the law. Legislation forms only one of a number of sources.