Part 2Scottish statutory instruments
Parliamentary scrutiny
I1I7C5C2C828Instruments subject to the negative procedure
1
This section applies where, by virtue of an enactment, devolved subordinate legislation is subject to the negative procedure.
C112
The Scottish statutory instrument containing the subordinate legislation must be laid before the Scottish Parliament as soon as practicable after the instrument is made (and in any event at least 28 days before the instrument comes into force).
C113
The Parliament may, before the expiry of the period of 40 days beginning with the date on which the instrument is laid before it, resolve that the instrument be annulled.
4
Where the Parliament makes such a resolution in relation to an instrument—
a
so far as the instrument is not in force on the date of the resolution, the instrument is not to come into force after that date (despite any provision in it for its coming into force),
b
so far as the instrument is in force on that date, nothing further is to be done or continued under, or in reliance on, the instrument after that date.
5
Where the Parliament makes such a resolution in relation to an instrument which contains an Order in Council or an Order of Council, Her Majesty may by Order in Council revoke the instrument.
6
Where the Parliament makes such a resolution in relation to any other instrument, the responsible authority must by order revoke the instrument.
7
Any such resolution or revocation does not affect—
a
the validity of anything previously done under the instrument, or
b
the making of a new Scottish statutory instrument.
C128
In calculating the period of 28 days mentioned in subsection (2), or the period of 40 days mentioned in subsection (3), no account is to be taken of any time during which the Scottish Parliament is dissolved or in recess for more than four days.
9
In subsection (6), “responsible authority”, in relation to a Scottish statutory instrument, means—
a
the Scottish Ministers in a case where the instrument is made, confirmed or approved by the Scottish Ministers, the First Minister or the Lord Advocate, and
b
in any other case, the person who made, confirmed or approved the instrument.
10
An order under subsection (5) or (6) is to be made by Scottish statutory instrument.
I2I10C1029Instruments subject to the affirmative procedure
1
This section applies where, by virtue of an enactment, devolved subordinate legislation is subject to the affirmative procedure.
2
The subordinate legislation is not to be made unless a draft of the Scottish statutory instrument containing it is laid before, and approved by resolution of, the Scottish Parliament.
3
If the requirements of subsection (2) are not complied with in relation to any subordinate legislation to which this section applies, the purported subordinate legislation has no effect.
4
Subsection (3) is without prejudice to section 32(3).
I3I6C130Other instruments laid before the Parliament
1
This section applies where devolved subordinate legislation is not, by virtue of an enactment, subject to the negative procedure or the affirmative procedure.
2
The Scottish statutory instrument containing the subordinate legislation must be laid before the Scottish Parliament as soon as practicable after the legislation is made (and in any event before the legislation is due to come into force).
3
References in subsections (1) and (2) to devolved subordinate legislation do not include references to subordinate legislation made under an enactment mentioned in subsection (4).
4
Those enactments are—
a
the Harbours Act 1964 (c. 40),
b
the Water (Scotland) Act 1980 (c. 45),
c
the Road Traffic Regulation Act 1984 (c. 27),
d
the Roads (Scotland) Act 1984 (c. 54),
e
section 1, 2 or 8 of the Salmon Act 1986 (c. 62),
f
the Natural Heritage (Scotland) Act 1991 (c. 28),
F2fa
section 155(2)(a) of the Political Parties, Elections and Referendums Act 2000 (c.41),
g
section 33, 34 or 35 of the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003 (asp 15),
h
article 53 of the Scotland Act 1998 (River Tweed) Order 2006 (S.I. 2006/2913),
i
the Transport and Works (Scotland) Act 2007 (asp 8).
F1j
section 216(4) of the Equality Act 2010 (c.15).
5
The Scottish Ministers may by order modify subsection (4).
6
An order under this section is subject to the affirmative procedure.
F37
This section does not apply in relation to any regulations made in accordance with paragraph 6 of Schedule 7 to the European Union (Withdrawal) Act 2018 (including that paragraph as applied by paragraph 19(7) of that Schedule).
I4I8C6C3C9C1331Failure to lay instruments in accordance with section 28(2) or 30(2)
1
This section applies where section 28 or 30 applies in relation to devolved subordinate legislation.
2
Failure to lay the Scottish statutory instrument containing the legislation in accordance with the laying requirements does not affect the validity of the instrument.
3
Where the instrument is laid before the Scottish Parliament, but not in accordance with the laying requirements, the responsible authority must explain to the Presiding Officer why the laying requirements have not been complied with.
4
The explanation is to be given in writing as soon as practicable after the instrument is laid before the Parliament.
5
In this section, “the laying requirements” are—
a
in the case where section 28 applies, the requirements of subsection (2) of that section,
b
in the case where section 30 applies, the requirements of subsection (2) of that section.
6
In subsection (3), “responsible authority”, in relation to a Scottish statutory instrument, means—
a
the Scottish Ministers in a case where the instrument is—
i
made, confirmed or approved by the Scottish Ministers, the First Minister or the Lord Advocate,
ii
an Order in Council, or
iii
an Order of Council, and
b
in any other case, the person who made, confirmed or approved the instrument.
I5I9C7C4C1432Laying of Scottish statutory instruments before the Scottish Parliament
1
This section applies where an enactment authorises or requires the laying of a Scottish statutory instrument, or a draft of such an instrument, before the Scottish Parliament.
2
Unless the contrary intention appears, the reference to the laying of the instrument, or draft instrument, is to be construed as a reference to the taking of such action as is specified in standing orders of the Parliament as constituting the laying of a Scottish statutory instrument, or a draft of such an instrument, before the Parliament.
3
Failure to lay an instrument, or draft instrument, in accordance with the enactment does not affect the validity of the instrument.