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Part 2: Scottish Statutory Instruments
Overall purpose
The main purpose of Part 2 of the Bill is to make provision regarding the publication and Parliamentary scrutiny of subordinate legislation which takes the form of Scottish statutory instruments (" SSIs") Part 2 replaces the provisions in the Scotland Act (Transitory and Transitional Provisions)(Statutory Instruments) Order 1999 ( SI 1999/1096) ("the SI Order"). That Order was largely based on the provisions of the Statutory Instruments Act 1946 ("the 1946 Act") which applies to statutory instruments (" SIs").
General approach
The Report by the Subordinate Legislation Committee on the Inquiry into the Regulatory Framework in Scotland (12th Report, 2008 (Session 3)) ("the SLC Report"), and the work of its predecessor Committees, has led the debate on what should replace the SI Order. The Government has reflected on the outcome of the Committees' consideration of the issues.
The Government supports Recommendation 1 in the SLC Report that, subject to some improvements, the current arrangements and procedures for scrutinising SSIs should be retained. The SLC also recommended that legislation should be brought forward during the current Parliamentary Session and subsequently agreed that the relevant provisions should form part of a Government Bill. It is expected that the Parliament will review its Standing Orders to complement and complete the reform of the operating framework for subordinate legislation.
Part 2 of the Bill applies to SSIs and UKSIs that are subject to procedure in the Parliament. Its main features are:
- To simplify the existing definition of a SSI and apply it also to existing enactments (section 25 and schedule 2);
- To simplify the current procedures for scrutinising SSIs by providing for 3 procedures for SSIs- negative procedure, affirmative procedure and simple laying - and applying them also to existing enactments (sections 26-30, 32 and schedule 3);
- To enable changes to be made to the procedure to which SSIs are subject (section 31); and
- To provide for the procedure for SIs that are subject to procedure in the Parliament. (section 33 and schedule 4).
Section 25: Definition of "Scottish statutory Instrument"
This section defines what is meant by a SSI. The section is based on article 4(1) to (3) of the SI Order. But there are a few changes of approach.
The current definition of a SSI in the SI Order is very complicated. At present, a SSI is defined as a certain kind of SI. Accordingly, in order to determine whether a set of regulations is a SSI, it is first necessary to determine whether the regulations are to be made as a SI. This in turn depends on section 1 of the 1946 Act, as modified by the SI Order. It is then necessary to determine whether the regulations are made in exercise of a function exercisable by a member of the Scottish Executive, a relevant Scottish public authority or certain other persons within devolved competence and do not fall within any of the exceptions.
This results in the peculiar situation that, in order for a set of regulations made by Scottish Ministers to be a SSI, the Act of the Scottish Parliament (" ASP") has to provide that the regulations are to be made by SI.
It is therefore proposed to simplify this position by defining directly what is a SSI without having first to establish whether the instrument is a SI. The link with the 1946 Act will therefore be broken. The SLC recommended as much in its report and this draft section does that.
Section 25(1) defines a SSI as the document by which a function to which that section applies is exercised. There are 2 kinds of functions to which section 25 applies which are automatically to be made by a SSI without any express provision to this effect unless the enactment otherwise provides. These are:
- any function of Scottish Ministers, the First Minister or the Lord Advocate to make, confirm or approve an order, regulations or rules under an enactment;
- any function of Her Majesty to make an Order in Council under a Scottish enactment (that is defined as meaning an enactment contained in or in an instrument made under an ASP) or under any other enactment (such as a Westminster Act) so far as the function is exercisable within devolved competence within the meaning of section 54 of the Scotland Act.
This approach is an innovation. It is being taken because existing Acts conferring such powers almost always provide for them to be exercisable by statutory instrument. So it is considered sensible to set this requirement as the default provision.
The default provision only applies to functions of making, confirming or approving orders, regulations or rules. It is for consideration whether it should be widened to cover other subordinate legislation made, confirmed or approved by the Scottish Ministers, such as directions or schemes. Other functions are rarer and it may be less obvious that the function should be exercisable by SSI, particularly where the instrument made in the exercise of the function is not of a legislative nature. So the Bill leaves this issue to be resolved by the enabling Act on a case by case basis.
Accordingly, section 25 provides that there are 2 other kinds of functions to which the section applies which are made by SSI only if the enactment conferring the function (or some other enactment) so provides. These are:
- any function of Scottish Ministers, the First Minister or the Lord Advocate to make, confirm or approve other kinds of subordinate legislation, such as directions, schemes, bye-laws, warrants or other instruments; and
- any function of any other person of making, confirming or approving subordinate legislation.
However, section 25 does not apply to a function of agreeing or consenting to any subordinate legislation made by a UK Minister or a function which is exercised jointly with a UK Minister or a function of making an Order in Council which is laid before, or a draft of which is laid before, both the Westminster and the Scottish Parliaments.
"Enactment" is defined in schedule 1 as meaning Westminster Acts or ASPs and instruments made under either, whenever those Acts or instruments were passed or made. It would therefore apply not just to future enactments but to enactments passed or made before the commencement of Part 2 (which schedules 2-4 refer to as "pre- commencement enactments"). The reason why it is necessary for section 25 to apply to pre-commencement enactments is to avoid having to retain the existing definition of SSI in the SI Order for those enactments. This would be extremely confusing and complicated. However, this approach does mean that it is necessary to adapt pre-commencement enactments to ensure that, where appropriate, they fit into the new scheme set out in section 25. This is done in schedule 2.
Questions:
Do you agree:
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?
Section 26: Instruments subject to the negative procedure
Section 26 defines what is meant when an enactment provides that "devolved subordinate legislation" is subject to negative procedure. The expression "devolved subordinate legislation" is defined in section 34 as meaning any subordinate legislation which is to be made by SSI except special procedure orders which are dealt with in Part 5.
Negative procedure is similar to the existing procedure which provides for SSIs to be subject to annulment by resolution of the Parliament (commonly known as "the negative procedure"). It replicates the provisions of articles 10 and 11 of the SI Order but with modifications.
The main features of this procedure are that:
- section 26(2) requires the SSI to be laid before the Parliament as soon as possible after being made and not less than 28 days before the legislation is due to come into force. This replicates Article 10 of the SI Order except that the existing period of 21 days has been extended to 28 days and there is a requirement to lay it as soon as possible after being made. This gives effect to Recommendations 11 and 21 of the SLC Report;
- section 26(3) provides that the Parliament may, within the period of 40 days beginning with the date on which it is laid, resolve that the instrument be annulled. This replicates Article 11(3) of the SI Order;
- section 29(2) provides that failure to comply with these requirements does not invalidate the instrument. This provision is new and is intended to remove any doubts about the matter;
- section 26(8) provides that, in calculating the period of 28 or 40 days, no account is to be taken of any time during which the Parliament is dissolved or in recess for more than 4 days. This replicates Article 13 of the SI Order.
Section 26(4) to (6) explains the effect of the Parliament making an annulment resolution. This is similar to Article 11(3)-(5) of the SI Order except that section 26(4) seeks to clarify the existing provisions.
Section 26(4) provides that, in so far as the instrument is not in force on the date of the resolution, the instrument is not to come into force. But, in so far as the instrument is in force on that date, nothing further is to be done under, or in reliance upon, the instrument after that date.
Section 26 (5) and (6) requires Scottish Ministers to revoke the instrument or, if it is an Order in Council, Her Majesty may revoke it.
Section 26(7) provides that the resolution or revocation does not affect the validity of anything previously done under the instrument or the making of a new SSI.
These provisions should cause no difficulty in most of the cases where a SSI is annulled. There may, however, be some uncertainty in the case of those SSIs which have what might be described as a "once and for all effect", such as a SSI dissolving a body corporate such as a Health Board, and which is annulled after it has come into force. As the instrument already has had effect, neither the resolution nor its revocation would revive the Health Board. This would seem to be at odds with what the Parliament clearly intended. Equally, however, there may be uncertainty as to whether reliance can continue to be placed on its being dissolved.
It may be that, in such cases, what is required is a provision which not only requires Scottish Ministers to revoke the SSI but requires them, by order, either to restore the position to what it was before the SSI took effect or in some other way to remove any legal uncertainty about its current position eg to make an order to re-establish the Health Board which the SSI has dissolved or to provide that the Health Board remains dissolved etc. It may not always be possible or appropriate for such restorative provision to be made. So it is for consideration whether the requirement to make an order should be confined to appropriate cases, or even expressed as an enabling power rather than a requirement.
Questions:
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?
Section 27: Instruments subject to the affirmative procedure
Section 27 defines what is meant when an enactment provides that devolved subordinate legislation is subject to affirmative procedure.
The procedure in section 27(2) is similar to the existing procedure which provides that a SSI is not to be made unless a draft of it is laid before, and approved by resolution of, the Parliament (commonly known as "affirmative procedure"). The advantage of this approach is that future legislation need only use the expression "the affirmative procedure" in order to apply the requirements of section 27(2) rather than spell out those requirements in full each time.
Section 27(3) provides that the SSI has no effect if it is made without these requirements being complied with. This is a new provision but does no more than replicate what is thought to be the position at common law, namely that the purported instrument is of no legal effect.
By virtue of section 27(4), section 27(3) is subject to section 30(3) which provides that failure to lay a draft instrument in accordance with the procedure specified in the Standing Orders does not affect the validity of the instrument. So, if the only breach of section 27(3) is that the instrument was not laid properly in accordance with the standing orders on laying, then the instrument can still have effect.
There is no further statutory specification of the affirmative procedure. It is left to the Parliament to provide in Standing Orders how and within what time the Parliament is required to approve the draft by resolution. The existing standing orders require the lead committee to report on the draft within 40 days but do not impose any time limit on the Parliament to approve the draft. In Recommendation 12 of the SLC Report, the SLC recommended that "there should be a deadline for Parliament to take a motion to approve a draft instrument and this should be 10 days after the expiry of the 40 day period provided for committees to report". It is thought that it would be more consistent with the approach taken in relation to this procedure if this requirement was only laid down in Standing Orders and not in statute.
Questions:
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?
Section 28: Other instruments laid before the Parliament
Section 28 makes default provision for what is to happen in relation to all devolved subordinate legislation which is not subject to either the negative or the affirmative procedure.
It requires the instrument to be laid before the Parliament and provides that:the SSI is to be laid before the Parliament as soon as possible after being made and before it is due to come into force.
Question:
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?
Section 29: Failure to lay instruments in accordance with section 26(2) or 28(2)
Section 29 makes provision about the consequences of failure to lay a SSI in accordance with the laying requirements in section 26(2) or 28(2). Section 29(2) makes it clear that failure to comply with the laying requirements does not affect the validity if the instrument.
Section 33(3) and (4) provides that if the instrument breaches the laying requirement, the responsible authority must explain in writing to the Presiding Officer why it does so and as soon as possible after laying. This replicates part of Article 10(3) of the SI Order.
Question
23 Do you agree that failure to comply with the laying requirements does not affect the validity if the instrument?
Section 30: Laying of Scottish statutory instruments before the Scottish Parliament
Section 30 makes provision as to what is meant when an enactment requires or authorises a SSI or a draft SSI to be laid before the Parliament.
It provides that this is to be construed by reference to what is specified in the Standing Orders of the Parliament as constituting the laying of a SSI or a draft SSI before the Parliament. Rule 14.1.1 of the Standing Orders currently makes provision for this. This is similar to what is provided in Article 14 of the SI Order.
Section 30(3) provides that failure to lay a SSI or a draft SSI in accordance with that procedure does not affect the validity of the instrument. This provision is new but gives effect to Recommendation 21 of the SLC Report.
Questions:
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?
Section 31: Power to change procedure to which subordinate legislation is subject
Section 31 makes provision for changes to be made to the procedure to which Scottish subordinate legislation (i.e. SSIs) is subject.
It provides that the Parliament may resolve that any function of making, confirming or approving an SSI which is:
- subject to the negative procedure should instead be subject to the affirmative procedure; or
- subject to the affirmative procedure should instead be subject to the negative procedure; or
- not subject to the negative or affirmative procedure should instead be subject to either of those procedures.
In these circumstances, section 31(2) gives the Scottish Ministers the power, by order subject to the affirmative procedure, to make such modifications of any enactment as are necessary for the purpose of giving effect to the resolution.
This section gives effect to Recommendation 4 of the SLC Report.
Questions:
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?
Section 32: Procedures prescribed in pre-commencement enactments
This section introduces schedule 3 which modifies procedures prescribed in pre-commencement enactments so as to bring them into line with what is proposed in sections 26-30.
Section 33: Statutory instruments subject to procedure in the Scottish Parliament
There are certain Westminster Acts which make provision for a draft of a SI to be laid before, and approved by both Houses of Parliament and the Scottish Parliament or for a SI to be subject to annulment in pursuance of a resolution by either House of Parliament or the Scottish Parliament. For example, the Scotland Act provides for this in case of Orders in Council subject to the procedures referred to as Type A, F or H in Schedule 7.
As a consequence of the changes made to these procedures in sections 26 to 30, it is necessary to adapt those references in pre-commencement enactments to refer to the new procedures in the Scottish Parliament. Pre-commencements enactments are defined in paragraph 1 of schedule 4 to mean an enactments passed or made before Part 2 comes into force.
This section and schedule 4 accordingly provides that, where any pre-commencement enactment provides for:
- a SI to be subject to annulment in pursuance of a resolution of the Parliament, section 26 should apply to it as it applies in relation to a SSI which is subject to the negative procedure;
- a draft of a SI to be laid before, and approved by resolution of the Parliament, section 27 should apply to it as it applies in relation to a SSI which is subject to the affirmative procedure;
The section also applies the provisions about laying before the Parliament to such a SI or draft.
This provision replicates the effect of article 4(4) of the SI Order.
Questions:
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?
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