Chapter 10: Subordinate Legislation Procedure

Rule 10.1 Laying of instruments

1. Where, by virtue of any enactment, any instrument or a draft of any instrument made in the exercise of a power to make, confirm or approve subordinate legislation is required to be laid before the Scottish Parliament, the lodging of a copy of the instrument or the draft with the Clerk at any time when the office of the Clerk is open shall be treated for all purposes as being the laying of it before the Parliament.

2. The Clerk may require the person laying the instrument or draft instrument to provide such additional copies as the Clerk considers necessary.

3. Where any instrument or draft instrument is laid before the Parliament, the Clerk shall give members notice of that fact in accordance with Rule 10.9. Sunject to paragraph 4, the Clerk shall refer the instrument or draft instrument for consideration to—

(a) the committee mentioned in Rule 6.11; and

(b) the lead committee or, where the Parliament, on a motion of the Parliamentary Bureau, decides that the instrument or draft instrument is to be considered by the Parliament, the Parliament.

4. Where an instrument or draft instrument that is not subject to any of the forms of Parliamentary control mentioned in Rules 10.4.1, 10.5.1 or 10.6.1 is referred to the lead committee, the lead committee is not required to consider it (other than as required by Rule 10.3A).

Rule 10.2 Lead committee

1. The lead committee is the committee within whose remit the subject matter of the instrument falls.

2. Where the subject matter of the instrument falls within the remit of more than one committee, the Parliament may, on a motion of the Parliamentary Bureau designate one committee to be the lead committee. Copies of the instrument or draft instrument shall be sent to the other committees which may also consider the instrument or draft instrument and make any recommendations they consider necessary to the lead committee by a date specified in the business programme.

Rule 10.3 Subordinate legislation scrutiny

1. In considering the instrument or draft instrument, the committee mentioned in Rule 6.11 shall determine whether the attention of the Parliament should be drawn to the instrument on the grounds—

(a) that it imposes a charge on the Scottish Consolidated Fund or contains provisions requiring payments to be made to that Fund or any part of the Scottish Administration or to any local or public authority in consideration of any licence or consent or of any services to be rendered, or prescribes the amount of any such charge or payment;

(b) that it is made in pursuance of any enactment containing specific provisions excluding it from challenge in the courts, on all or certain grounds, either at all times or after the expiration of a specific period or that it contains such provisions;

(c) that it purports to have retrospective effect where the parent statute confers no express authority so to provide;

(d) that there appears to have been unjustifiable delay in the publication or in the laying of it before the Parliament;

(e) that there appears to be a doubt whether it is intra vires;

(f) that it raises a devolution issue;

(g) that it has been made by what appears to be an unusual or unexpected use of the powers conferred by the parent statute;

(h) that for any special reason its form or meaning could be clearer;

(i) that its drafting appears to be defective;

(j) that there appears to have been a failure to lay the instrument in accordance with section 28(2), 30(2) or 31 of the 2010 Act.

or on any other ground which does not impinge on its substance or on the policy behind it.

2. Other than where an instrument or draft instrument has been referred to the Parliament, the committee mentioned in Rule 6.11 shall report its decision with its reasons in any particular case to the Parliament and to the lead committee. It shall do so normally no later than 20 days, and in any event no later than 22 days, after the instrument or draft instrument is laid.

3.  Where an instrument or draft instrument has been referred to the Parliament, the committee mentioned in Rule 6.11 shall report its decision with its reasons in any particular case to the Parliament.  It shall do so normally no later than 20 days, and in any event no later than 22 days, after the instrument or draft instrument is laid.  Where the relevant motion under Rule 10.4.4, 10.5.4 or 10.6.5 in relation to the instrument or draft instrument is to be taken on a date before the expiry of 22 days after the instrument or draft instrument is laid, the committee mentioned in Rule 6.11 shall, if practicable, report its decision with its reasons to the parliament no later than the day before the motion is to be taken.

4. Where an instrument to which Rule 10.6.1(c) applies has a stated period that is greater than 44 days, the 22 day period in paragraphs 2 and 3 is replaced with the number of days amounting to half the stated period (rounded up to the nearest whole number). The normal reporting period of 20 days does not apply to such an instrument.

Rule 10.3A Procedure on breach of laying requirements

1. Where an instrument is laid in breach of the laying requirements of section 28(2), 30(2) or 31 of the 2010 Act, the lead committee, where one is designated, shall consider the explanation given to the Presiding Officer for the breach and may draw the explanation to the attention of the Parliament in any report on the instrument.

Rule 10.4 Motion for annulment

1. In the case of any instrument which is subject to the negative procedure, or otherwise subject to annulment in pursuance of a resolution of the Parliament, any member (whether or not a member of the lead committee) may, not later than 40 days after the instrument is laid, by motion propose to the lead committee that the committee recommend that the instrument be annulled.

2. In addition to the provisions of Rule 12.2.2, that member and the member of the Scottish Government or junior Scottish Minister in charge of the instrument, if not members of the lead committee, are entitled to attend the committee and participate in the proceedings for the purpose of debating the motion but may not vote. The debate on the motion shall last no more than 90 minutes.

3. The lead committee shall report to the Parliament on the instrument setting out its recommendations, taking into account any recommendations made by any other committee. It shall do so no later than 40 days after the instrument is laid.

4. If the lead committee makes a recommendation as mentioned in paragraph 1, the Parliamentary Bureau shall, no later than 40 days after the instrument is laid, by motion propose that the Parliament agrees that the instrument be annulled. The member moving the motion and the member of the Scottish Government or junior Scottish Minister in charge of the instrument may each speak in any debate for up to 3 minutes or such greater time as may be allocated by the Parliamentary Bureau. In addition, the Parliamentary Bureau may allocate such further time for open debate on such a motion as it considers appropriate.

Rule 10.5 Motion that a draft instrument be not made or submitted

1. In the case of any draft instrument laid before the Parliament where the instrument may be made without the approval of the Parliament, any member (whether or not a member of the lead committee) may, no later than 40 days after the draft instrument is laid, by motion propose to the lead committee that the committee recommend that the instrument be not made (or, in the case of a draft Order in Council, be not submitted to Her Majesty in Council).

2. In addition to the provisions of Rule 12.2.2, that member and the member of the Scottish Government or junior Scottish Minister in charge of the draft instrument, if not members of the lead committee, are entitled to attend the committee and participate in the proceedings for the purpose of debating the motion but may not vote. The debate on the motion shall last no more than 90 minutes.

3. The lead committee shall report to the Parliament on the draft instrument setting out its recommendations, taking into account any recommendations made by any other committee. It shall do so no later than 40 days after the instrument is laid.

4. If the lead committee recommends that the instrument be not made or, as the case may be, be not submitted to Her Majesty in Council, the Parliamentary Bureau shall, no later than 40 days after the draft instrument is laid, by motion propose that the instrument be not made or, as the case may be, be not submitted to Her Majesty in Council. Only the member moving the motion and the member of the Scottish Government or junior Scottish Minister in charge of the draft instrument may speak in any debate on such a motion. Each such person may speak for no more than 3 minutes.

Rule 10.6 Motion for approval

1. In the case of any instrument or draft instrument which is subject to the affirmative procedure, or otherwise subject to approval by resolution of the Parliament, including those laid before the Parliament which—

(a) cannot be made;

(b) cannot come into force; or

(c) cannot remain in force beyond a stated period,

unless the Parliament by resolution approves the instrument or draft, the lead committee shall decide whether to recommend that the instrument or draft instrument be approved.

2. Any member of the Scottish Government or junior Scottish Minister (whether or not a member of the lead committee) may by motion propose to the lead committee that the committee recommend that the instrument or draft instrument be approved.

3. In addition to the provisions of Rule 12.2.2, that member and the member of the Scottish Government in charge of the instrument or draft instrument, if not members of the lead committee, are entitled to attend the committee and participate in the proceedings for the purposes of debating any such motion but may not vote. The debate on the motion shall last no more than 90 minutes.

4. The lead committee shall report to the Parliament on the instrument or draft instrument setting out its recommendations, taking into account any recommendations made by any other committee. It shall do so no later than 40 days after the instrument or draft instrument is laid or, in the case of an instrument falling within paragraph 1(c), by the end of the stated period.

5. If the lead committee recommends that the instrument or draft instrument be approved, the Parliamentary Bureau shall by motion propose that the Parliament agrees to approve the instrument or draft instrument. Only the member moving the motion, the member of the Scottish Government or junior Scottish Minister in charge of the instrument or draft instrument (if that person is not the member moving the motion) and one speaker against the motion may speak in any debate on the motion. Each such person may speak for no more than 3 minutes.

Rule 10.7 Instruments considered by the Parliament

1. Where the Parliament has decided that an instrument or draft instrument laid before the Parliament be considered by the Parliament, any member may give notice of and move the relevant motion in relation to that instrument or draft instrument, as provided for in Rule 10.4.4, 10.5.4 or 10.6.5, within any relevant time limit set by that Rule. The debate on the motion shall last no more than 90 minutes.

Rule 10.8 Withdrawal of draft instruments

1. A draft instrument laid before the Parliament may be withdrawn at any time by the member of the Scottish Government or junior Scottish Minister in charge of it.

Rule 10.9 Notice of instruments and draft instruments

1. The Clerk shall ensure that notice of any instrument or draft instrument laid before the Parliament is published in the Business Bulletin. The notice shall give the title of the instrument or draft instrument.

Rule 10.10 Application to other documents

1. The Rules in this Chapter shall also apply, except for a pension or grants motion for which specific provision is made in Rule 8.11A, with such modifications as are appropriate, to any report, guidance, code of practice or other document laid before the Parliament which is subject to any form of Parliamentary control having the same or equivalent effect to those mentioned in Rules 10.4.1, 10.5.1 and 10.6.1.

Rule 10.11 Calculation of days

1. In calculating for the purposes of this Chapter any period of days, no account shall be taken of any time during which the Parliament is dissolved or is in recess for more than 4 days.