Question 1: Explain the difference between a devolved and reserved matter. Principally, a devolved matter is an area in which the Scottish Parliament can make law, whereas legislative power for a reserved matter belongs to the UK Parliament. The vision for devolution and demand for self government dates back to 1979. A referendum was held, but was unsuccessful in relation to voting percentages. The plight continued until power was eventually devolved on 1 July 1999 at the opening of the Scottish Parliament. This was formed as a result of a majority vote at the referendum on Scottish devolution in 1997 and established by the subsequent Scotland Act 1998. ‘The Scottish Parliament has full legislative competence in devolved areas i.e. those matters that are not ‘reserved’’ (Howells, 2012. p. 53). Devolved areas include; health, education and local government. While power is devolved, there are a number of areas that are not controlled by the Scottish Parliament. ‘The Scotland Act 1998 contained a list of ‘reserved matters’. These were matters which were to be reserved for the UK Parliament’ (Howells, 2012. p. 52). Examples of reserved matters include; energy, equal opportunities and employment legislation. In certain circumstances the UK Parliament can legislate in a devolved matter. Howells (2012) describes the convention instigated by Lord Sewel, now recognised as ‘legislative consent motions’. ‘Such motions can save time and the need for separate and similar legislation in both the Scottish and UK Parliaments’ (Howells, 2012. p. 55).
Question 2: Explain the relationship between parental rights and responsibilities under the Children (Scotland) Act 1995 In context to the question, having ‘right’ is classified as an entitlement by law of a parent. Similarly, having ‘responsibility’ is an obligation of a parent to fulfil a series of duties. Parental rights and responsibilities are vitally important in the relationship between parents and children. In the Children (Scotland) Act 1995, responsibilities are listed before rights. This is structurally sound in that the rights legally assist parents in carrying out their responsibilities. Section 1 of the Children (Scotland) Act 1995 states: It is a responsibility that the parent has:
To safeguard and promote the child’s health, development and welfare; (b)
To provide, in a manner appropriate to the stage of development of the child- (i)
To the child;
If the child is not living with the parent, to maintain personal relations and direct contact with the child on a regular basis; and (d)
To act as the child’s legal representative,
But only in so far as compliance with this section is practicable and in the interests of the child. Section 2 subsection 1 of the Children (Scotland) Act 1995 reads: Subject to section 3(1)(b) and (3) of this Act, a parent, in order to enable him to fulfil his parental responsibilities in relation to his child, has the right— (a)
To have the child living with him or otherwise to regulate the child’s residence; (b)
To control, direct or guide, in a manner appropriate to the stage of development of the child, the child’s upbringing; (c)
If the child is not living with him, to maintain personal relations and direct contact with the child on a regular basis; and (d)
To act as the child’s legal representative.
It is evident that the list of parental responsibilities and rights are almost a verbatim replication of one another. Less apparent then, is how they should be separated. Section 2 subsection 4 of the Children (Scotland) Act 1995 states: The rights mentioned in paragraphs (a) to (d) of subsection (1) … are in this Act referred to as “parental rights”; and a parent, or any person acting on his behalf, shall have title to sue, or to defend, in any proceedings as respects those rights. In other words, parental rights are designed to lawfully protect the child. A case law example of the relationship between parental...
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