The Scottish Constitutional Convention and the Government therefore decided to use a different system – one that was new to Britain but has been used widely around the world, including in Germany and New Zealand. That system is the Additional Member System (AMS) and its major benefit is that the number of seats a party wins is more fairly related to its share of the vote. Using the additional member system, each elector has two votes. The first is cast for a constituency Member of the Scottish Parliament (MSP) in the same way that Westminster Members of Parliament are elected. Each voter has one ‘X’ vote and has a choice of one candidate from each party. The second vote is used to help elect the additional members. These are the MSPs elected to ensure that, as far as possible, the share of the seats in the Scottish Parliament reflects the share of the votes cast for each party. Scotland is divided into eight electoral regions, based on the old European electoral constituencies. In each of these regions, seven additional MSPs will be elected. The choice for the voter is simply between the different parties. The additional ballot paper will list the parties and the candidates from each party, although voters will only be able to vote for a party and cannot choose individual candidates from a list. Using AMS, Scotland has a fairer voting system than it used to. In the Scottish Parliament all the major parties will be represented in roughly the same proportion as their share of the vote. The system has been criticised because it does little to extend the power that voters have to decide who represents them. In many cases, the decision as to who will be the MSP is taken by the party selection committee because the seat is ‘safe’ for that party. The lists have also been criticised because they are decided by the parties and voters cannot change the order.
The Scottish Parliament is able to make primary legislation ('Acts of the Scottish Parliament'). Its legislative competence is limited in a number of ways. It is not able to legislate about reserved matters. The Scotland Bill was designed not to state what powers the Scottish Parliament does have but to state the powers it does not have (i.e. those left at Westminster). These powers that are retained are:
- The Constitution - This includes succession to the Crown, changes to the UK Parliament, Honours & Titles.
- Foreign Affairs - Membership of international organisations, international relations, regulation of trade and international development are all reserved. Negotiations with the European Union are primarily under the control of Westminster ministers.
- Civil Service of the State - Whitehall Officials and UK Judiciary are still to be determined through Westminster. (With the exception of Scottish Legal officers which the Scottish Executive can recommend for Scottish Sheriff Courts etc)
- Defence - Westminster oversees Defence of the Realm, the navy, military & air forces. Other Westminster defence powers relate to decisions over international headquarters and defence organisations and what the Act refers to as "trading with the enemy and enemy property".
- Fiscal And Economic Matters - Fiscal economic and monetary policy, including the issue and circulation of money, taxes and excise duties, government borrowing and lending, control over UK public expenditure the exchange rate and the Bank of England.
- Home Affairs - Some areas such as the Misuse of Drugs Act 1971 and the Data Protection Act 1984 which sets out the law on these issues for the whole of the UK can only be changed by Westminster. Matters like firearms, immigration, asylum seekers, animal testing, film licensing and hypnosis are still reserved only for Westminster to legislate on. National security, Official Secrets, betting & lotteries, and passports laws can only be changed by Westminster.
- Trade and Industry - Matters such as competition, insolvency, import and export controls and consumer protection, are reserved for Westminster. The UK Parliament also has power of the Post Office, telecommunications, and weights and measures.
- Energy - Westminster still oversees such matters as offshore oil and gas exploration, pollution. Mining ownership and the nuclear industry are also under the jurisdiction of the Westminster parliament.
- Transport - Provision and regulation of road, rail and marine transport are generally under Westminster control.
- Social Security - Benefits and pensions.
- Health - Reserved health matters include abortion, embryology, genetics, medicines and regulation of prices.
Many matters are reserved so as to retain a uniform UK market or policy space which prevents cross border conflicts. Employment for example is retained as a reserved matter in order to ensure companies, consumers and employers all operate under the same legislation. Likewise, the area of social security is reserved otherwise different areas could have different benefit levels which could lead to migration of the population to areas offering a more financially rewarding system.
The Westminster Parliament is still the sovereign parliament of the United Kingdom and it retains the power to legislate on any matter, including devolved matters, in Scotland. As the Scotland Act gave specific powers to the Scottish Parliament, the two parliaments currently operate under a system where the Westminster Parliament will not normally legislate with regards to devolved matters in Scotland without the consent of the Scottish Parliament.
The devolved powers of the Scottish parliament are:
- Agriculture, fisheries and forestry - The Scottish Parliament has primary and secondary legislative powers and a role in the formulation of European Union policy.
- Culture, media and sport - Edinburgh has primary and secondary legislative powers over the arts, sport and language. Control over broadcasting and the National Lottery remains in London
- Economic development - Primary and secondary powers have been devolved. Responsibilities include Scottish Enterprise and the Scottish Tourist Board.
- Education - Edinburgh has control over the Scottish education system through primary and secondary legislative powers. Its responsibilities include student fees, school standards and the training and supply of teachers
- Environment - Responsibilities include pollution control, water supplies and sewerage.
- Food standards - It has responsibility in co-ordination with Whitehall and the Food Standards Agency
- Health – Has primary and secondary legislative powers to run the NHS in Scotland. However, control over some areas remained with the Department of Health. They were abortion, embryology, surrogacy, genetics, fertilisation, medicine safety, oversight of medical professions and xenotransplantation (transplant of animal organs to humans).
- Home affairs - Edinburgh has primary and secondary legislative powers. It has overall responsibility for the criminal justice system, prisons and the police in Scotland. However, some areas remain the responsibility of the Home Office and Westminster, such as drugs policy, data protection, firearms, official secrets, immigration and gambling.
- Legal system - Has primary and secondary legislative powers to administer the Scottish legal system which was different from that in the rest of the UK even before devolution
- Local government, housing and planning - Has primary and secondary powers. Its responsibilities include control of local government finance and the designation of enterprise zones.
- Social work – Has primary and secondary legislative powers
- Trade and Industry - Some elements are devolved with primary and secondary legislative powers including inward investment and the promotion of trade, exports and tourism
- Transport - Some policy areas, such as Scottish ports and roads
If a devolved matter and a reserved matter overlap - for example, planning permission for a new nuclear power station, or a change in prescription charges then the Judicial Committee of the Privy Council will decide which category such issues fall into. But in principle, Scotland will be able to make laws relating to devolved matters even if they also affect reserved matters.
Westminster is still able to intervene to stop a piece of Scottish law if that law would:
- conflict with an "international obligation" of the UK
- damage national security or defence
- adversely affect a law that applies to reserved matters
The European Parliament has the same control that it had before devolution over its Scottish counterpart - all new laws have to comply with European Community law.
The Scotland Act 1998 removed the guarantee of at least 71 Scottish seats at Westminster (there are now 72) and required the Boundary Commission for Scotland to determine the level of Scottish representation by applying the same electoral quota as in England.
(At present, the average Scottish constituency comprises around 55,000 electors, while the average for English constituencies is around 70,000.) The Scotland Act also provides for the Scottish Parliament constituencies to be the same as the UK Parliament constituencies, except for Orkney and Shetland which each have their own MSP. The Scottish parliament would also shrink. Since the Scotland Act requires the number of Edinburgh single member constituencies to balance the number of PR seats in the ratio of 73:56, that would cut the parliament's size from 129 members to 106.
Bibliography
Budge I, Crewe I, McKay D and Newton K, The New British Politics Second Edition, Pearson Education Ltd, 2001
Forman F N and Baldwin N D J, Mastering British Politics Fourth Edition, MacMillan Press Ltd, 1999
Lynch P, Scottish Government and Politics – An Introduction, Edinburgh University Press Ltd, 2001
Politics class notes