Scottish statutory instrument
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A Scottish statutory instrument (SSI;
The
: [s. 55]SSIs, and the power to enable the creation of subordinate legislation in general, are not mentioned in the original text of the Scotland Act 1998, which devolved powers to the Scottish Parliament. Rather, this power is implied by the statement that Acts of the Scottish Parliament are law to the extent that they are not "outside the legislative competence of the Parliament," without any subsequent reservation of the power to make subordinate legislation.[4]: (s. 28–29)
Before Scottish devolution, subordinate legislation applying only to Scotland was published as a subseries of the larger
Purpose
An SSI is made, with some exceptions, by a body exercising
For example, section 15 of the
In other cases, an SSI may be used to
Another example, although not involving SSIs, is the Health and Safety at Work etc. Act 1974, which applies to Scotland and makes provisions relating to ensuring safety in the workplace. This Act covers a wide remit, and so UK SIs have been issued under the same sections to cover different industries. Specifically, some sections of this Act which allow making SIs were used to make both the Control of Substances Hazardous to Health Regulations 2002 and the Control of Vibration at Work Regulations 2005 even though those regulations are not related.[10][11]
Procedure
Enabling
An SSI may only be made where an Act of the Scottish Parliament or Act of the UK Parliament gives that power. Such an Act is known variously as an enabling or parent Act, and sets out the scope of the power to make SSIs, and the associated procedure for exercising that power. An SSI may only make provision within the scope of its enabling power, and any provision outside that scope is invalid.
Making
An SSI is "made" when it is signed by a person or body who has the power to make that SSI – typically the Scottish Ministers.[12] This terminology appears to be inherited from the UK Parliament, as the Scottish Parliament has not provided official guidance specifically defining the term.
Laying
The "laying" of an SSI is the putting of that SSI before the Scottish Parliament for the Parliament's consideration. The phrase comes from
Scrutiny
Once an SSI is laid before Parliament, it may be scrutinised. Scrutiny is generally performed by the Delegated Powers and Law Reform Committee (DPLRC), which considers whether the Scottish Ministers are competent in making the SSI and whether the SSI of sufficient quality.[6]: 5 That is, the committee considers whether the Ministers have the power to make that SSI under the enabling Act, whether the Scottish Parliament has the power to make law in that area under the Scotland Acts, and whether the provisions of the SSI are clear, consistent, and free of typographical errors.
The DPLRC and other committees report back to Parliament, which applies a varying level of scrutiny depending on the exact procedure for that SSI.[6]: 6
Negative procedure
A negative SSI is an SSI subject to negative procedure. Such SSIs must be laid before Parliament at least 28 days before they come into force, and may be annulled by Parliament resolution within 40 days of their being laid. If an SSI is annulled after it comes into force, it ceases to have force from the date of annulment.[1]: [s. 28]
Affirmative procedure
An affirmative SSI is subject to affirmative procedure. These SSIs must be approved by resolution of Parliament before they can come into force.[1]: [s. 29]
Special parliamentary procedure
Some SSIs are subject to special parliamentary procedure. These are so-called special procedure orders (SPOs), and differ from SSIs subject to other types of procedure in that notice of SPOs must be posted in the
If an SPO is objected to, it must be laid before the Parliament with its objections and then confirmed by an Act of the Scottish Parliament. If no objections are made, the Parliament may annul the order within 40 days of its being laid. If no objections are made and the Parliament does not annul the SPO, the SPO comes into force at the end of the 40-day period or at a later date if the SPO so specifies.[1]: [ss. 50–52]
Other procedures
In addition to the above procedures, which are defined by the Interpretation and Legislative Reform (Scotland) Act 2010, an enabling Act may specify its own procedure for making SSIs. SSIs made under another procedure must be laid before Parliament "as soon as practicable after [they are] made," with some exemptions. As of October 2016, the exempted enactments are:[1]: [s. 30]
- Harbours Act 1964
- Water (Scotland) Act 1980
- Road Traffic Regulation Act 1984
- Roads (Scotland) Act 1984
- Salmon Act 1986
- National Heritage (Scotland) Act 1991
- Political Parties, Elections and Referendums Act 2010[14]: [s. 7]
- Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003
- Scotland Act 1998 (River Tweed) Order 2006
- Transport and Works (Scotland) Act 2007
- Equality Act 2010[14]: [s. 38]
Examples of these other procedures are laid-only procedure, where an SSI is laid before Parliament but cannot be rejected; and super-affirmative procedure, where a draft SSI must be subject to a formal consultation or other requirement before it can be made.[6]: 6
Commencement
An SSI will not typically have legal force immediately. Rather, it may require parliamentary approval, and may specify a "commencement day" on which it comes into force. For example, the order bringing into force the Bankruptcy (Scotland) Act 2016 was made on 15 September 2016, laid before Parliament on 21 September 2016, and has a commencement day of 30 November 2016.[9]
Types
Rules, regulations, and orders
While SSIs are separate from UK SIs, they generally appear to follow the same naming convention for rules, regulations, and orders. The Scottish Parliament and Scottish Government have not, however, as of October 2016, published official guidance defining the terms, and so it cannot be known with certainty whether the definitions used for SSIs and SIs are identical.
These definitions were established by the so-called "Donoughmore Committee" of 1932, and recommended in official guidance published by the
- Rules should set out procedure – how specific public bodies conduct themselves.
- Regulations should set out substantive law – how members of the public, companies, and so on conduct themselves.
- Orders should exercise executive power, or the power to take judicial decisions.
These definitions mostly hold true for SSIs, with some key differences. The
Orders in Council
An Order in Council is legislation made by the
Orders in Council are often used for making law which modifies how the branches of government work.[5]: 6 [17] Orders in Council have been used to adjust how the Scottish Parliament works – for example, to set who is disqualified from being a Member of the Scottish Parliament – and, in the UK SI series, to devolve powers to the Scottish Parliament.[19][20]
Orders of Council
An Order of Council is a form of
Orders of Council differ from
Orders of Council that are Scottish Statutory Instruments generally relate to higher education, for example under the powers in the Further and Higher Education (Scotland) Act 1992 to make provision for the constitution of governing bodies or regulate the granting of degrees.[22]
Acts of Sederunt
The Court of Session (the supreme civil court of Scotland) makes Acts of Sederunt to regulate its proceedings, the proceedings of tribunals, and the proceedings of Scotland's sheriff courts when they hear civil matters, including the Sheriff Appeal Court. The majority of the current power of the Court of Session to regulate is derived from the Courts Reform (Scotland) Act 2014, although some other Acts do also empower the Court.[23]
The original power of the Court of Session to regulate stems from the College of Justice Act 1540, which provided the court with the "power to make such acts, statutes and ordinance as they shall think expedient for ordering of processes and the hasty expedition of justice." Prior to this, following the 1532 establishment of the Court, the power to regulate was held by the Parliament of Scotland.[24][25][26]
Acts of Adjournal
An Act of Adjournal is a form of legislation made by the
In addition to this main power, several other modern enactments confer the power to legislate, including the Criminal Justice (Scotland) Act 2003,[28]: [s. 21] and its amendments to the Criminal Procedure (Scotland) Act 1995,[27]: [ss. 66(4), 141(2A), 141(2B), 141(7)(b), 210C, 210H] the Criminal Justice and Licensing (Scotland) Act 2010[29]: [s. 165] and its amendments to the 1995 Act,[27]: [ss. 113A, 227B, 227D, 227ZA, 271V] the Courts Reform (Scotland) Act 2014 which amended the 1995 Act and the Public Records (Scotland) Act 1937,[23]: [s. 119, sch. 5(11)] [30]: 1A [27]: 194ZF and the Criminal Justice (Scotland) Act 2016,[31]: [s. 36] and its amendments to the 1995 Act,[27]: [ss. 71C, 83B, 305]
Style
Numbering
SSIs are numbered by the year they were made, and consecutively by the order they were received by the
Citation
The recommended ways of citing an SSI are by its title – for example, The Letting Agent Registration (Scotland) Regulations 2016 – or by its year and number (e.g. S.S.I. 2016/432).[32]: [Art. 4] Some style guides recommend the use of both forms in a citation (as in The Letting Agent Registration (Scotland) Regulations 2016, S.S.I. 2016/432 or another similar form).[33][34]
Divisions
Division | Numbering | Name | ||
---|---|---|---|---|
Orders | Regulations | Rules | ||
1st | 1, 2, 3, ... | Article | Regulation | Rule |
2nd | (1), (2), (3), ... | Paragraph | ||
3rd | (a), (b), (c), ... | Sub-paragraph |
The parts an SSI is divided into have different names depending on the type of SSI and, although no official guidance has been published by the Scottish Government or Scottish Parliament, the names of the divisions appear to be identical to the names used for UK SIs.
The divisions shown in the table are for the main
As with Acts of the Scottish Parliament, SSIs can have schedules annexed to them. Schedules to SSIs are divided in the same manner as Acts.[5]: 7–8
See also
- Act of the Scottish Parliament
- List of statutory instruments of Scotland
- Delegated legislation in the United Kingdom
References
- ^ a b c d e f g h i j Scottish Government (2010). Interpretation and Legislative Reform (Scotland) Act 2010 (asp 10). National Archives. Archived from the original on 18 October 2016.
- ^ HM Government (1946). Statutory Instruments Act 1946 (c. 36, 9-10 Geo. 6). National Archives. Archived from the original on 16 February 2016.
- ^ HM Government (1999). The Scotland Act 1998 (Transitory and Transitional Provisions) (Statutory Instruments) Order 1999 (SI 1999/1096). National Archives. Archived from the original on 29 October 2016.
- ISBN 0-10-544698-X. Archived from the originalon 18 October 2016.
- ^ a b c d e Her Majesty's Stationery Office (2006). Statutory Instrument Practice: A manual for those concerned with the preparation of statutory instruments and the parliamentary procedures related to them. Office of Public Sector Information.
- ^ a b c d Delegated Powers and Law Reform Committee. "Guide to Scottish Statutory Instruments" (PDF). Scottish Parliament. Archived from the original (PDF) on 20 October 2016. Retrieved 20 October 2016.
- ^ Scottish Government (2005). Charities and Trustee Investment (Scotland) Act 2005 (asp 10). National Archives. Archived from the original on 20 October 2016.
- ^ Scottish Government (2007). The Charities References in Documents (Scotland) Regulations 2007 (SSI 2007/203). National Archives. Archived from the original on 14 January 2012.
- ^ a b Scottish Government (21 September 2016). "The Bankruptcy (Scotland) Act 2016 (Commencement) Regulations 2016 (SSI 2016/294)". National Archives. Archived from the original on 20 October 2016. Retrieved 20 October 2016.
- ISBN 0-11-042919-2. Archived from the originalon 9 February 2016.
- ISBN 0-11-072767-3. Archived from the originalon 25 September 2013.
- ^ House of Commons Information Office (2008). Factsheet L7: Statutory Instruments (PDF). UK Parliament. p. 3. Archived from the original (PDF) on 4 March 2016.
- ^ Scottish Parliament Corporate Body (2016). Standing Orders of the Scottish Parliament (5th rev. 2) (PDF). Scottish Parliament. Archived from the original (PDF) on 29 October 2016.
- ^ ISBN 978-0-10-540037-0. Archived from the originalon 29 October 2016.
- ISBN 978-1-78652-369-3.
- ^ "Scottish Statutory Instruments from 2015 numbered between 0 and 499". Legislation.gov.uk. National Archives. Archived from the original on 20 October 2016. Retrieved 20 October 2016.
- ^ a b "Orders in Council - Glossary page - UK Parliament". parliament.uk. Parliament of the United Kingdom. Archived from the original on 12 September 2016. Retrieved 21 October 2016.
- ^ Her Majesty's Privy Council. "Orders | Privy Council". Her Majesty's Privy Council. Archived from the original on 6 April 2016. Retrieved 21 October 2016.
- ISBN 978-0-11-102957-2. Archived from the originalon 21 October 2016.
- ISBN 978-0-11-113674-4. Archived from the originalon 21 October 2016.
- ^ Privy Council webpage on its Order-making powers, retrieved 13 January 2012
- ^ Further and Higher Education (Scotland) Act 1992, sections 45 and 48.
- ^ a b Scottish Government (2014). Courts Reform (Scotland) Act 2014 (asp 18). National Archives. Sections 23, 39, 62, 72, 75, 76, 98, 103-106, 115; and schedule 5 paras. (11), (31). Archived from the original on 21 October 2016.
- ^ King James V (1532). College of Justice Act 1532 (c. 2). National Archives. Archived from the original on 22 October 2016.
- ^ King James V (1540). College of Justice Act 1540 (c. 93). National Archives. Archived from the original on 22 October 2016.
- ^ HM Government (1906). Statute Law Revision (Scotland) Act 1906 (c. 38). National Archives.
- ^ a b c d e HM Government (1995). Criminal Procedure (Scotland) Act 1995 (c. 46). National Archives. Archived from the original on 17 November 2015.
- ISBN 0-10-590049-4. Archived from the originalon 25 October 2016.
- ^ Scottish Government (2010). Criminal Justice and Licensing (Scotland) Act 2010 (asp 13). National Archives. Archived from the original on 6 March 2016.
- ^ HM Government (1937). Public Records (Scotland) Act 1937 (c. 43, 1 Edw. 8 & 1 Geo. 6). National Archives. Archived from the original on 21 October 2016.
- ISBN 978-0-10-590264-5. Archived from the originalon 25 October 2016.
- ^ a b The Scottish Statutory Instruments Regulations 2011 (SSI 2011/195). National Archives. 2011. Archived from the original on 27 December 2016.
- ^ "Legislation - Statutory Instrument issued by the Scottish Government - RGU Harvard Referencing Guide - Library Guides at Robert Gordon University". Robert Gordon University. 10 November 2016. Archived from the original on 27 March 2016. Retrieved 27 December 2016.
- ^ "Citing the law (Scottish legislation)". Cardiff University. Archived from the original on 20 March 2012. Retrieved 27 December 2016.