Scottish Statutory Instrument

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A Scottish Statutory Instrument (Scottish Gaelic: Ionnsramaid Reachdail na h-Alba; SSI) is subordinate legislation made by the Scottish Ministers or a regulatory authority in exercise of powers delegated by an Act of the Scottish Parliament. SSIs are the main form of subordinate legislation in Scotland, being used by default to exercise powers delegated to the Scottish Ministers, the Lord Advocate, the High Court of Justiciary, the Court of Session, and the Queen-in-Council.^{[1]:[s. 27]}

The Interpretation and Legislative Reform (Scotland) Act 2010 defines the Scottish Statutory Instrument.^{[1]:[Pt. 2]} Before this Act, SSIs were governed by the Statutory Instruments Act 1946, which continues to govern UK Statutory Instruments.^{[2][3][1]:[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 UK statutory instrument (SI) series. This subseries is now used for SIs which deal with reserved matters in relation to Scotland.^[5]:12

Purpose

An SSI is made, with some exceptions, by a body exercising executive governmental functions – that is, a body responsible for putting the law into effect ("executing" the law) rather than a body responsible for defining the law (the legislature) or a body responsible for interpreting the law (the judicature). As a result, an SSI will provide specific details on how an Act should be put into effect, and may amend existing Acts or SSIs to reflect that the law has changed.^[6]:1 In other cases, an SSI may repeal parts of the law which had before been impliedly repealed.

For example, section 15 of the Charities and Trustee Investment (Scotland) Act 2005 allows the Scottish Ministers to make regulations setting out how charities refer to themselves in documents, and the Charities References in Documents (Scotland) Regulations 2007 sets out in regulation 2 how a charity must refer to itself, and in regulation 4 on which documents a charity must make such references.^[7][8]

In other cases, an SSI may be used to bring into force parts of the law through so-called "commencement orders." In these cases, sections of Acts may have no legal force until brought into force, which may allow time for accommodating preparations to be made. One example of a commencement order is the Bankruptcy (Scotland) Act 2016 (Commencement) Regulations 2016, which brought almost the entirety of the Bankruptcy (Scotland) Act 2016 into force.^[9]

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 laying before the house, which originally referred to the placing of a (physical) document on the table in the assembly chamber. All SSIs are required to be laid before Parliament in the manner specified by the Parliament's standing orders, although not laying an SSI before Parliament does not invalidate it.^{[13]:[Ch. 14]} The date an SSI is laid is also generally the date from which parliamentary scrutiny may begin.^{[1]:[ss. 28-32]}

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 Edinburgh Gazette (or a local newspaper, if the SPO relates to a particular area) and in that members of the public may object to an SPO.^{[1]:[s. 49]}

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]}

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 Her Majesty's Stationery Office. The committee recommended that:^{[5]:[pp. 6-7]}

• 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 Parliamentary Counsel Office recommends that, from 2016, rules only be used set out procedure for courts, tribunals and other bodies, and that regulations be used for everything else – including commencement orders.^[15]:23 That is not to say that orders are not used, as certain older Acts specify powers to create subordinate legislation as powers to create orders. A common example is the Road Traffic Regulation Act 1984 which, among other powers, provides that an authority "may by order restrict or temporarily prohibit use of [a] road." In 2015, approximately 160 orders were made under this Act, representing around 36% of all SSIs in 2015.^[16]

Orders in Council

An Order in Council is legislation made by the sovereign to exercise executive power, although in reality Orders are made by the Privy Council and approved by the sovereign.^[17][18] An Order in Council is primary legislation when made under the Royal Prerogative, and subordinate legislation if made under an Act of the Scottish Parliament. When an Order in Council is used to exercise a power granted by an Act, such Orders are made as SSIs.^{[1]:[s. 27]}

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]

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 current power of the Court of Session to regulate is primarily derived from the Courts Reform (Scotland) Act 2014, which allows the Court of Session to create Acts that regulate procedure, practice, and fees, with the ability to make law necessary for the implementation of those procedures and practices.^[21] A number of other modern enactments allow the Court of Session to regulate, including the Public Records (Scotland) Act 1937,^{[22]:[ss. 1, 1A, 10]} the Court of Session Act 1988,^{[23]:[s. 26]} and the Scottish Civil Justice Council and Criminal Legal Assistance Act 2013.^{[24]:[s. 2]}

The name sederunt – literally session – is derived from the Latin verb sedere ("to sit"). The word is a cognate of sedentary.^[25]

The historical power to regulate of the Court of Session has uncertain beginnings. The College of Justice Act 1532, which established the College of Justice under King James V, confirms that the rules of the College have the same force as an Act of the Parliament of Scotland and the decrees of the Lords of Session in all times bigane – implying that, prior to this Act, the Court of Session had some similar power. This Act, however, referred to such rules as being made by the King and approved by the Parliament, rather than by the College itself.^[26]

The power of the Court of Session to create Acts was later confirmed by the College of Justice Act 1540, then called the Ratificatioune of the Institutioune of the college of iustice. Unlike the 1532 Act, which allowed the King to make Acts of Sederunt, the 1540 Act "gives and grants to the President, Vice-President, and Senators power to make such acts, statutes, and ordinances as they shall think expedient for the ordering of process and hasty expedition of justice." This power was subsequently repealed by the Statute Law Revision (Scotland) Act 1906.^[27][28]

Acts of Adjournal

An Act of Adjournal is a form of legislation made by the High Court of Justiciary (the supreme criminal court of Scotland) to regulate its proceedings, the proceedings of the sheriff courts and the Sheriff Appeal Court when they hear criminal matters, and the justice of the peace courts. Acts of Adjournal are analogous to Acts of Sederunt, which regulate civil proceedings. The current power to regulate of the High Court comes from section 305 of the Criminal Procedure (Scotland) Act 1995, which allows the court to make Acts concerning practice and procedure including by electronic means, summary procedure fees, payment of fines by prisoners, and to make law necessary for the implementation of Acts of Adjournal and Acts of Parliament.^{[29]:[s. 305]}

In addition to this main power, several other modern enactments confer the power to legislate, including the Criminal Justice (Scotland) Act 2003,^{[30]:[s. 21]} and its amendments to the Criminal Procedure (Scotland) Act 1995,^{[29]:[ss. 66(4), 141(2A), 141(2B), 141(7)(b), 210C, 210H]} the Criminal Justice (Scotland) Act 2010^{[31]:[s. 165]} and its amendments to the 1995 Act,^{[29]:[ss. 113A, 227B, 227D, 227ZA, 271V]} the Courts Reform (Scotland) Act 2014 which amended the 1995 Act and the Public Records (Scotland) Act 1937,^{[21]:[s. 119; sch. 5(11)][22]:1A[29]:194ZF} and the Criminal Justice (Scotland) Act 2016,^{[32]:[s. 36]} and its amendments to the 1995 Act,^{[29]:[ss. 71C, 83B, 305]}

See also

• Act of the Scottish Parliament
• Lists of Statutory Instruments of Scotland
• Delegated legislation in the United Kingdom

References

External links

• SSIs on legislation.gov.uk
• Delegated Powers and Law Reform Committee