Scottish Government

Summary of Consultation Paper

This is a small, technical but nevertheless highly important Bill from the legal point of view. It deals principally with technical procedural matters and, given the legal nature of its content, it will be of most interest to academics and the legal community. It contains only one new measure that will make it easier to manage the process of consolidating legislation. Otherwise, it broadly restates the existing law with amendments where it is appropriate to clarify and modernise the legal position. Any departure from the existing position is highlighted below.

It has four main purposes. Specifically it deals with

• the publication, interpretation and operation of Acts of Scottish Parliament ( ASPs) and instruments made under them;
• the making and publication of subordinate legislation under an ASP in the form of a Scottish statutory instrument ( SSI) and the scrutiny procedures which apply in the Scottish Parliament;
• the special procedure which applies to orders that are subject to special parliamentary procedure; and
• giving the Scottish Ministers a power, by order, to make certain amendments to enactments in order to facilitate their consolidation.

Up until now, the first 3 of these matters have been regulated by 3 transitional Orders made by the UK Government under the Scotland Act 1998, namely:

• the Scotland Act 1998 (Publication and Interpretation etc. of Acts of the Scottish Parliament) Order 1999 ( SI 1999/1379) (" the Interpretation Order");
• the Scotland Act 1998 (Transitory and Transitional Provisions) (Statutory Instruments) Order 1999 ( SI 1999/1096) (" the SI Order"); and
• the Scotland Act 1998 (Transitory and Transitional Provisions) (Orders subject to Special Parliamentary Procedure) Order 1999 ( SI 1999/1593) (" the SPP Order").

After 10 years of devolution, the Scottish Government now feels that it is time that the Parliament took ownership of these matters and made its own provision for them. Consequently, the Scottish Government proposes to introduce a Bill that will replace the Orders.

Given the highly technical nature of these provisions, the Scottish Government proposes to consult on a draft Bill (attached at Annex C). This will allow interested parties to see how the provisions, in each part of the Bill, might interact and should allow comment on each provision, within the overall framework.

The proposals in the Bill are described in detail in the following pages and certain questions are raised on them. However, a brief summary of the main provisions is as follows:-

Part 1 deals with how ASPs and instruments made under are them to be interpreted. Most of the provisions are based on, and largely replicate the effect of, the Interpretation Order. Some relatively minor changes are proposed to clarify the wording and modernise its effect. Certain provisions are omitted on the basis that they would apply anyway and so are unnecessary. There are 2 major changes of substance. The first is the new provision stating that the Crown is bound by an ASP or an instrument only if it says so expressly. As a result, the common law rule is abolished under which the Crown may be bound by necessary implication (section 19). The second is an expansion of the current provision on service by post. The proposed new provision sets out default rules for 3 different types of service, including by electronic means (section 24). The Part applies to future ASPs and instruments only (section 1). The Interpretation Order is revoked but with savings for existing ASPs and instruments (section 51).

Part 2 deals with the making of subordinate legislation under an ASP in the form of a SSI and the procedures to which it is subject in the Parliament. Most of the provisions are based on, and replicate the effect of, the SI Order which is revoked (section 51). However, it provides for a simpler definition of SSI and simplifies the parliamentary procedures by making provision only for 3 procedures - the negative procedure, the affirmative procedure and the default procedure of simply laying the SSI before the Scottish Parliament. These provisions apply to existing as well as to future enactments and, accordingly, schedules 2 and 3 modify existing enactments ("pre-commencement enactments") in order to bring them into line with the new definition of what constitutes a SSI and the 3 procedures. It also makes provision about the procedure that applies to UK statutory instruments that are laid before the Scottish Parliament (section 33 and schedule 4). This Part also makes another major change by making provision for the Scottish Parliament to resolve that a change should be made to the procedure to which any SSI is subject and for Scottish Ministers to give effect to that resolution (section 31).

Part 3 makes provision as to how ASPs are to be numbered and published (sections 35-37). It also makes provision for the numbering and publication of SSIs. (sections 38-40). No changes of substance are proposed from the existing position.

Part 4 gives a new power to the Scottish Ministers to make, by order subject to the affirmative procedure, pre-consolidation amendments to enactments which are to be consolidated but only for the purpose of facilitating their consolidation (section 43).

Part 5 makes provision for the special procedure to which orders subject to SPP are to be subject in the Scottish Parliament (sections 44-49). It replicates the effect of the SPP Order; and provides for the revocation of the Order (section 51).

Part 6 makes provision as to what is meant when an enactment requires or authorises a document other than a SSI (or draft SSI) to be laid before the Parliament (section 50). It replicates the effect of a provision in the SI Order.