There are two institutions in the UK that have the power to make statutory legislation in Scotland. The first of these institutions is Westminster (London) where elected individuals serve in the House of Commons. These members are known as MP’s (Members of Parliament). Parliament is responsible for passing new laws (legislation). In the late nineties the House of Commons allowed the passing of devolved powers to the newly created Scottish Parliament. Only certain powers were transferred to Holyrood and Westminster still control the laws that govern Tax, National Security and many others. Westminster is still regarded as Primary Legislation. This means that any law made by Westminster in reserved matters of policy must be adhered to by the Scottish Parliament.
The second of these institutions is Holyrood (Edinburgh) where 129 elected individuals serve in the Scottish Parliament. These members are known as MSP’s (Members of Scottish Parliament). The Scottish Parliament was created on the 11th Sept 1997. The voters in Scotland took part in a referendum where they voted on a Devolved Scottish Parliament. This meant that Westminster would allow this devolved parliament to create laws in certain areas of policy. The Scottish people voted for a devolved parliament and the devolved powers were transferred from Westminster to The Scottish Parliament on the 1st July 1999. Westminster reserved certain powers that still govern many areas of Scotland today but the devolved powers allow Scotland to pass laws and regulate in areas such as Agriculture, Health and Housing to name a few.
The process of making primary legislation in the UK follows a very strict procedure of three distinct stages. An MP, Lord or a member of the public can raise a bill to suggest a change of law (legislation). The first stage of the process involves a parliamentary committee of members. They will review the bill and decide whether it moves to the second stage. The second stage allows amendments to the bill and allows the bill to be scrutinized by the committee and member. If the bill passes this stage then the third stage involves a member vote. If a majority of the members vote for the bill then the bill will be passed and presented to the Queen to receive a Royal Assent. The bill is now law.
Common Law has a major role in Scots law today and it draws on four separate elements. Common Law is often referred to as the ‘Unwritten Law’ or ‘Historical Law’. This unwritten law has developed over centuries and draws from different sources.
1. Common law is based on Equity. Equity is the process of allowing judges to apply fairness or justice when there is no legislation to refer to. They must base these decisions on fairness and equality for all. When the judge follows this process of Equity he/she is actually making the law. This is called Precedent and we will talk about this in more detail in point 4. 2. Common law is also based on Institutional Writing. Centuries ago men of a higher class would finish their schooling in the various cities of Europe. These men would learn the laws of other countries and on their return to their estates in the UK would write about these laws and use them to govern their own estates. Institutional Writings no longer hold the authority as days gone by as Government Legislation and Judicial Precedent are supreme and overrule Institutional writings if they are based on similar cases. 3. Common Law is also based on Custom.
Custom is when over a long period of time a particular habit is recognized by the people or social grouping. An example of this would be ‘common law husband’ where the couple are not in fact married but have lived as such so therefore the man would be entitled to the same rights as a legal husband. 4. The most important piece of common law in the courts today is Judicial Precedent. Judicial Precedent is where a judge or jury has no other legislation or act of parliament to decide a particular dispute and any decision they make will be followed in the future for any other similar disputes. A precedent can only be superseded by a higher court, government legislation or act of parliament. Judicial Precedent tries to keep the law stable. Consistency through the court system is vital when trying to uphold the virtues of Fairness and Equality.
The four key institutions of the European Union are the Council of Ministers, European Parliament, European Court of Justice and the European Commission. Each of these institutions has a representative from each member nation to allow a voice from each of the member states.
The European Commission along with the Council of Ministers can change and amend laws within the European states. The Commission, unlike The Council of Ministers, has the power to change Regulations and issue Directives (these are orders passed by the European Commission or The Council of Ministers to ensure legislation is implemented within all the member states). If a state, company or persons break or do not comply with European law then it is the European Commission who will raise a court action against those who are not complying.
The Council of Ministers is the legislative body of the EU. They are head of decision making and law/regulation introduction in the EU. They are the most powerful of all the institutions in Europe. Although the Council has the highest power there are still areas of legislation that the Council cannot pass with the advisory input of the European Parliament.
The European Parliament is to advise and make recommendations to the Council of Ministers in various areas of legislation. They will review any piece of legislation or directive and give their opinions on the matter. If the Commission does not implement the recommendations of the Parliament then they must advise why they have not done so. The Parliament cannot change, implement or make European law and are there solely as an advisory Parliament.
The European Court of Justice is the highest court within the European states on Community law (laws that have been issued by the Commission or Council of Ministers). If a state, company or persons fail to abide by the regulations and directives issued by the Commission then it is the Court of Justice responsibility to ensure the law is observed. The Commission will initiate the proceedings and allow the member state an opportunity to defend itself against the complaint. If that process does not result in the breach being rectified the action will then go to the Courts of Justice.
There are two main types of European Legislation. They are Directive & Regulation. 1. Directive legislation allows the European Commission to give a timescale for a piece to legislation to be introduced. Directives are issued to ensure that law is common throughout the European Countries. They keep the peoples equality to fairness and equality protected throughout the member states. If a country does not adhere to these directives sanctions can be issued.
2. Regulation Legislation is required in an emergency situation or crisis. They must be acted upon immediately by the state that the order is against. An example of this would be the BSE crisis in the 90’s when an immediate ban was put on the importing and exporting of beef from the UK. All member states had to adhere to this regulation to ensure that British beef stocks did not contaminate the other member states beef stock.
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