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Annex D Interpretation and Legislative Reform (Scotland) Bill - Consultation Questions
Part 1 - Interpretation
1 Do you agree that it would be helpful to continue to have general interpretative provisions which apply to ASPs and instruments?
2(a) Do you agree that the provisions about interpretation in Part 1 should apply only to future ASPs and Scottish instruments?
2(b) Should these provisions also apply to Westminster Acts or instruments which relate to devolved matters or to provisions in ASPs or Scottish instruments which amend or repeal Westminster Acts or instruments made under them?
2(c) Should any of its provisions apply to deeds, documents or other instruments that are not made, given, issued or published by virtue of an ASP? If so, which documents and why? Which provisions and why?
2(d) If you think that some of the provisions should apply to deeds, documents or other instruments, is it clear what these terms mean? If not should they be defined and if so how (bearing in mind that there is a definition of "document" in schedule 1 to the Bill)?
2(e) Does section 1(2) make it clear when provisions in Part 1 are not applicable?
2(f) Should the definition of "Scottish instrument" be as wide as is proposed? Would a definition that listed exhaustively the types of instrument that are caught be preferable? If so what types of instrument should be covered and why?
2(g) Do you consider that there is sufficient certainty about what is captured by the definition of "Scottish instrument"?
3. Do you agree that, where no provision is made in an ASP for the ASP or a provision of it to come into force, it should come into force at the beginning of the day after the day on which the Bill for the ASP receives Royal Assent?
4(a) Do you agree that section 4 makes it clear when powers may be exercised between the date of Royal Assent and the commencement of an ASP or relevant provision?
4(b) Do you think it is necessary or appropriate to add to the list of powers? If so what should be included and why?
5(a) Are there any other powers that should be expressly included when an ASP confers power to appoint a person to an office?
5(b) Are there any other circumstances when a person is appointed in place of another that ought to be included?
6 Should this section extend the existing provision so as to apply where an ASP confers power to make any "Scottish instrument"?
7(a) Do you agree with how it is proposed to refer to ASPs, Acts of the Parliament and Acts of the Parliaments of Scotland?
7(b) Do you agree that it is necessary to retain all of these forms of reference? If not which ones do you consider are no longer applicable?
8 Should all references in an ASP or Scottish instrument to an EU instrument be made ambulatory as in the case of section 13 of the Bill?
9 Do you agree with the proposal that the section should make it clear that where an ASP or Scottish instrument refers to an enactment, the reference should be a reference to that other enactment as amended by subsequent enactments?
10 Do you consider that, if it is within the legislative competence of the Scottish Parliament, sections 14 to 16 should also deal with the case where an ASP or Scottish instrument repeals an Act of Parliament or revokes an instrument made under an Act of Parliament?
11(a) Do you agree that the Crown should be bound by an ASP, or any provision in it or a Scottish instrument, only if the Act provides so expressly?
11(b) Do you consider that the Crown should be placed in the same position as any subject and be bound by an ASP or a Scottish instrument unless the Act or instrument expressly provides otherwise?
12(a) Should the Scottish Ministers have power to amend the definitions in schedule 1 by order made by a SSI?
12(b) Is the affirmative procedure the appropriate procedure for the statutory instrument?
12(c) Should the proposed power be limited to amending schedule 1 or should Scottish Ministers also have power to amend any provision in Part 2 of the Bill by order made by a SSI?
12(d) Do you consider that the Scottish Ministers should be under a duty to consult on any proposed amendments?
13(a) Should provision be made for serving documents by electronic means?
13(b) Does the provision provide sufficient flexibility and choice in relation to delivery options?
13(c) Are there any practical difficulties relating to service of documents which this Bill could seek to resolve?
14(a) Do you agree with the proposed definitions of the words and expressions listed in schedule 1?
14(b) Do you consider that any words or expressions should be added or that any of the proposed entries should be deleted?
14(c) Do you consider that further expressions which are listed in section 127(1) of the Scotland Act should be included in this schedule in order to ensure that they should have the same meaning as in that Act?
15(a) Do you agree with the approach adopted in the Bill or should it attempt to set out certain principles of interpretation?
15(b) If you think that the Bill should set out certain principles, which ones, and why?
16 Do you consider that the Bill should include a provision stating that non-material differences between a form prescribed by legislation and the form used should not affect the validity of the form used?
17 Do you consider that it would be useful to include in the draft Bill a default provision about the powers that would be available where an ASP or Scottish instrument confers a power of entry on a person?
18 Do you consider that it would be useful to include a provision along the above lines?
Part 2 - Scottish Statutory Instruments
19(a) that the definition of SSI should be simplified along the lines proposed?; and
19(b) that the definition should apply for the purpose of pre-commencement enactments as well as for future enactments?
19(c) that the function of making orders, regulations and rules should be automatically made by SSI unless the enactment otherwise provides? Are there any other examples of subordinate instruments of a legislative nature which should also be automatically made by SSI, such as schemes or legislative directions?
20(a) Do you agree with the main features of the negative procedure and, in particular, with the proposal to extend from 21 days to 28 days the minimum period for the instrument to be laid before it can come into force?
20(b) If the Parliament passes a resolution to annul the instrument, do you agree with what is proposed to be provided in sections 26(4)-(7) as the consequences of that resolution?
20(c) Do you consider that it should go further and require or enable Scottish Ministers in appropriate cases either to restore the position to what it was before the instrument or in some other way to remove any legal uncertainty about the position?
21(a) Do you agree with what is proposed to be provided as the affirmative procedure?
21(b) Do you agree that the time limit for the Parliament to approve a draft instrument should be left to the Parliament to lay down in Standing Orders?
22 Do you agree with the proposal that all SSIs which are not subject to either the negative or the affirmative procedure should be laid before the Parliament?
23 Do you agree that failure to comply with the laying requirements does not affect the validity if the instrument?
24(a) Do you agree that it should be left to the Parliament to specify in Standing Orders what is meant by laying a SSI or a draft SSI before the Parliament?
24(b) Do you agree that failure to lay a SSI or draft SSI when required to do so should not invalidate the instrument?
25(a) Do you consider that provision should be made to change the procedure to which subordinate legislation is subject?
25(b) Do you consider that Scottish Ministers should be required - rather than merely being given a power - to give effect to the resolution of the Parliament?
26(a) Do you agree that this provision should be made as a consequence of sections 26-30?
26(b) Do you consider that this provision should apply to future as well as to existing Westminster Acts?
Part 3 - Publication of Acts and Instruments
27 Do you agree that the Queen's Printer should not be under a statutory duty to arrange for the printing for sale of copies of SSIs?
28 Do you agree that these matters can be left to regulations to be made by the Scottish Ministers subject to the affirmative resolution of the Parliament?
29 Do you consider that any enactment which requires any SSI to be published or notified in the London, Edinburgh or Belfast Gazette should be repealed?
30 Do you agree with the modifications which are proposed to be made to pre-commencement enactments in order to bring them into line with the approach taken to the definition of SSI in section 25?
31(a) Do you agree that the 8 existing procedures should be reduced essentially to the procedures specified in section 26-30 subject to the retention of Class 3 procedures and, where appropriate, parts of the super-affirmative procedure?
31(b) Do you agree that the provisions in pre-commencement enactments which refer to these 8 procedures should be changed as proposed in this schedule?
Part 4 - Pre-Consolidation Modification of Enactments
32 Do you agree that Scottish Ministers should have this power to make these pre-consolidation amendments?
Part 5 - Orders Subject to Special Parliamentary Procedure
33(a) Do you agree that Part 5 should simply replicate the effect of the SPP Order?
33(b) Do you consider that SPP should be totally abolished and replaced by something similar to what was provided in the Transport and Works (Scotland) Act 2007?
Part 6 - Laying of Documents other than SSIs
34 Do you consider that section 34 should be moved into this Part and merged with section 50?
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