(82)  The Scottish Parliament: a first term report

The Scottish Parliament completed its first year of legislative power and rose for its summer recess on 6 July 2000. Six Acts had entered the statute book: the Mental Health (Public Safety and Appeals) (Scotland) Act 1999, the Public Finance and Accountability (Scotland) Act 2000, the Budget (Scotland) Act 2000, the Census (Amendment) (Scotland) Act 2000, the Adults with Incapacity (Scotland) Act 2000, and the Abolition of Feudal Tenure etc (Scotland) Act 2000. Bills which had been passed by the Parliament and awaited Royal Assent included the Ethical Standards in Public Life etc (Scotland) Bill, the National Parks (Scotland) Bill and the Bail, Judicial Appointments etc (Scotland) Bill. Of these pieces of legislation, the one which attracted most public attention was the Ethical Standards in Public Life etc (Scotland) Bill, in which the Scottish Executive proposed the repeal of s 2A of the Local Government Act 1986 (popularly known as “Clause 28” since it was inserted by s 28 of the Local Government Act 1988).  This section prohibited local authorities from intentionally promoting homosexuality or the teaching in any maintained school “of the acceptability of homosexuality as a pretended family relationship”.  The proposal was countered by a campaign, entitled “Keep the Clause”, headed and financed by Mr Brian Souter, a prominent Scottish businessman, with support also from the leaders of the Roman Catholic Church and other religious groups in Scotland.  An unofficial referendum was held by the campaign in May 2000; less than one-third of the electorate voted, but of those who did, 87% supported the retention of the existing law.  However, the Scottish Parliament voted for its repeal by 99 votes to 17.  Section 25 of the new legislation now provides, in addition to the repeal of “Clause 28”, that it is the duty of councils, in performing functions relating principally to children, “to have regard to the value of stable family life in a child’s development”.            The very first Act of the Scottish Parliament, the Mental Health (Public Safety and Appeals) (Scotland) Act 1999, was challenged as contrary to art 5 of the European Convention of Human Rights (right to liberty), but in a judgment of 16 June 2000, the First Division of the Court of Session held that the Act was within legislative competence.  While the right to liberty was a high constitutional right, it was not absolute and the area affected by the Act (the detention and discharge of patients at the State hospital at Carstairs) fell into the exceptions recognised by the Convention where social policy came into play.  The retrospective effect of the legislation was balanced by the provision for additional judicial scrutiny of decisions not to discharge a patient (A v The Scottish Ministers 2000 GWD 22-864). The Bail, Judicial Appointments etc (Scotland) Bill is amongst other things a response to the decision against temporary sheriffs in Starrs v Ruxton 2000 SLT 42 (see (2000) 4 Edinburgh Law Review 1, 223; below, Nos 70, 78), by providing for the new office of Part-time Sheriff.  Appointments will be for a period of five years and may be renewed until the retirement age of 70.  Advertisements for the posts appeared in July 2000: payment is at a daily rate of £438 plus travel and subsistence. 

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