Primary Legislation for Public Records
Primary Legislation for Public Records
Legislation falls into two categories – primary and secondary legislation. Primary legislation comprises Acts of Parliament. Acts often make provision for related, but more detailed, regulations to be issued by means of statutory instruments. These statutory instruments are known as secondary legislation. In Scotland, the same relationship exists between Acts of the Scottish Parliament and Scottish Statutory Instruments.
The main legislation governing the work of the National Records of Scotland (NRS) is the Public Records (Scotland) Act, 2011, the Public Records (Scotland) Act, 1937, the Public Registers and Records (Scotland) Act 1948, and some parts of the Public Records Act 1958, as amended by the Public Records Act 1967.
No legislation mentions the National Records of Scotland by name, as all rights and responsibilities are vested personally in the Keeper of the Records of Scotland.
The Act has its origins in The Historical Abuse Systemic Review: Residential Schools and Children’s Homes in Scotland 1950-1995 (The Shaw Report) published in 2007. The Shaw Report recorded how its investigations were hampered by poor record keeping and found that thousands of records were lost due to poor records management. A subsequent review of public records legislation in Scotland found that it was not fit for purpose and that poor records management was not restricted to the childcare sector, but affected many public bodies.
The Public Records (Scotland) Act was passed by the Scottish Parliament in March 2011. The Act has been in force since January 2013. The aim of the Act is to improve the quality of record keeping by named Scottish public authorities. It requires an authority to develop a Records Management Plan setting out the arrangements in place to manage its public records. The plan must be submitted to the Keeper of the Records of Scotland for his assessment and agreement, then implemented and reviewed regularly.
To help authorities comply with their obligations, the Keeper published a model plan and guidance. It takes the form of an annotated list of 15 key elements that would be expected to appear in a robust records management plan. The Keeper also published supplementary guidance on proper arrangements for archiving public records.
For more information about the Act and the Keeper’s Model Plan and guidance, visit our Public Records (Scotland) Act 2011 webpage.
A copy of the Act, incorporating recent amendments can be found via the legislation website.
This Act was largely concerned with providing for the transfer of records of central and local Scottish courts to the Keeper. It also:
- makes it lawful for government departments, agencies, non-departmental public bodies, statutory bodies corporate, and local authorities to transfer their records to the Keeper.
- prescribes procedures for records disposal.
- provides for the temporary retransmission of records when required by their creators.
- outlines the Keeper's powers and duties concerning the records in his care and allows him to take the steps he deems necessary to carry out these duties, including employing staff and destroying records which are not judged to be of long term value.
- creates the Scottish Records Advisory Council and outlines its duties.
- makes it lawful for the Keeper to acquire records from private owners through an amendment introduced in the National Heritage (Scotland) Act 1985.
We have produced a copy of the 1937 Public Records (Scotland) Act, incorporating amendments made by subsequent legislation.
When the 1937 Act was passed, the Keeper had responsibility not only for historical records, but also for the creation and maintenance of the General Register of Sasines. His full title until 1948 was the 'Keeper of the Registers and Records of Scotland'. By 1948, however, it was recognised that the work of the two departments was fundamentally different, and required staff with different specialisms. The 1948 Act therefore separated the two functions, creating a new 'Keeper of the Records of Scotland'.
We have produced a copy of the 1948 Public Registers and Records (Scotland) Act incorporating amendments made by subsequent legislation.
This Act excludes Scotland from its provisions, but it has an effect on Scottish public records in two respects:
- With the agreement of both the UK and Scottish Keepers, UK public bodies operating wholly or mainly in Scotland may transfer their records to the National Records of Scotland rather than to the National Archives (TNA) which are based in London. This is made possible by an interaction between section 3(8) of the 1958 Act and section 5(1) of the Public Records (Scotland) Act 1937.
- In 1962, the Scottish Office adopted the arrangements for access to government records set out in the 1958 Act and also adopted similar arrangements for the selection, transfer and preservation of government records.
You can find more information about the 1958 Act in the policy and legislation section of The National Archives (TNA) Website.
This Act reduced the standard closure period for UK government records from 50 years to 30 years, introducing what is commonly known as the "30 year rule". Although the Act does not apply to Scotland, the change was adopted here as well.
You can find more information about the 1967 Act in the policy and legislation section of The National Archives (TNA) Website.