Annex B: Structure and drafting of Bills
Structure of Bills
The main components of all Scottish Bills and Acts are known as sections.1 The sections are consecutively numbered throughout the Bill. The section number appears in bold, followed by the section title.
Sections may be divided into two or more numbered subsections, (1), (2) etc. The text of each subsection (or of the section, if it is not divided into subsections) consists of a whole sentence (or occasionally more than one sentence). The division of a section into subsections is exhaustive: that is, the subsections make up the whole of the section without remainder.
Within each subsection (or within a section which is not divided into subsections), further divisions are possible. These divisions, however, are never exhaustive. Instead, they are devices to make the structure of the subsection (or section) clearer and easier to follow. The divisions in question are paragraphs, sub-paragraphs, sub-sub-paragraphs (sometimes known as “heads”) and so on. Each is further indented than the last and are numbered according to the following convention: (a), (b), (c) etc., then (i), (ii), (iii) etc., then (A), (B), (C) etc. There must be at least one word of text at each “level” of this structure before any such division, and the text may also resume after any such division (this is known as a “full-out”).
Although paragraphs are normally numbered (a), (b) etc., they may on occasion be divided into un-numbered paragraphs, for example in a list of definitions. Where such a paragraph is itself divided, the sub-paragraphs are numbered (a), (b) etc. rather than (i), (ii) etc. – since that is the first level of numbering available. By contrast, where a subsection breaks into paragraphs for a second time, these are numbered (i), (ii) etc to ensure that each paragraph within the subsection is uniquely numbered, and so can be referred to unambiguously.
After all the sections, there may be a schedule or schedules. Schedules are used to set out supplementary or consequential provisions (although they have the same status in law as the sections). Every schedule must be introduced by a section (or a part of a section). There is a reference below the schedule title to the provision that introduces it.
Schedules are usually divided into paragraphs (not to be confused with paragraphs within subsections) which are consecutively numbered within each schedule. Paragraphs of schedules may consist of a number of sub-paragraphs, which may be divided in turn into smaller components in exactly the same way as subsections.
Parts, Chapters etc.
Larger Bills are often divided into Parts, which may in turn be divided into Chapters. Chapters cannot exist except within Parts; and some Parts may consist of Chapters and other Parts not. Each Part or Chapter consists of a whole number of sections, plus any schedules introduced by those sections. Parts and Chapters are numbered 1, 2, etc., and may be further subdivided under a number of italic cross-headings.
The division of a Bill into Parts and Chapters can have formal significance in determining the scope of certain provisions. For example, there may be a section entitled “Interpretation of Part 2” containing definitions applicable only to that Part. Italic cross-headings, by contrast, are merely convenient navigational aids to the reader.
Individual schedules may also be divided into Parts (or Parts and Chapters), while the paragraphs making up the schedule may also be grouped together under a number of italic headings.
The long and short titles
Every Bill has a long title and a short title. The long title is set out at the beginning of the Bill and begins “An Act of the Scottish Parliament to …”. It consists of a single sentence, divided if necessary by semi-colons into various limbs, each of which deals with a principal purpose of the Bill. With large and complex Bills, it is common for the long title to end with a form of words such as “and for connected purposes”. A connected purpose is something that the Bill does that is not sufficiently distinct to merit a limb to itself, but which does not fall entirely within one of the preceding limbs. The long title should accurately describe what the Bill does and, as such, is a guide to the scope of the Bill.
The short title is set out at the top of the Bill and in the running header on each page. It is also cited in the text of the Bill itself, usually in the final section. This citation provision is given in the form “This Act may be cited as the Example (Scotland) Act 2001” – the year being that in which Royal Assent is expected to be given.
Common features of drafting
There are certain aspects of drafting style, familiarity with which will aid comprehension of the Bill. What follows is a basic introduction to this subject, which assumes that Scottish Bills and Acts are similar in the relevant respects to UK legislation. Ultimately, of course, it is a matter for the Parliament, in its consideration of Bills, to determine the style in which Scottish statutory provision is made.
The principal concern in drafting a Bill is to achieve the intended legal effect. Normally, this involves making provision that is as clear, certain and unambiguous as possible, leaving minimal scope for the courts to determine what legal effect the provision has. There are, however, cases where statute law explicitly leaves it for the courts to determine how a provision is to be applied – for example, what constitutes a “reasonable” fee. Considerations other than achieving the intended legal effect, including comprehensibility and accessibility of language, are necessarily secondary. Making a Bill’s intended effects obvious to the lay reader is never easy; where the legal concepts involved are complex, or where the appropriate mechanism involves amendments to existing Acts, it may be impossible.
More clear-cut are issues of economy and neutrality. Bills rarely if ever include provisions that do not have legal effect (except for entirely non-substantive provisions, such as indexes of defined expressions). Nothing is said merely by way of explanation or background (except for parenthetical descriptions of legislative provisions – e.g. “section 2 of that Act (which provides for exemptions in certain cases)”). Nothing is repeated unnecessarily or given textual emphasis (e.g. by italicisation), since this would inevitably give rise to uncertainty of application. Equally importantly, evaluative or subjective terminology is never used: however politically controversial the policy behind the Bill, the aim of the Bill itself is simply to state, clearly and objectively, how that policy is to be given legal effect.
There are many common drafting conventions in Bills and Acts. For example, where an ASP delegates powers to the Scottish Government, it will normally say “the Scottish Ministers may …” – rather than specifying a particular Minister. This reflects the convention of collective Cabinet responsibility, given expression by section 52(1) and (3) of the Scotland Act 1998. The equivalent term in UK Acts is “the Secretary of State may” and has a formal foundation in the Interpretation Act 1978, which provides a statutory basis for interpreting certain terms in all UK Acts. The Interpretation Act only applies to ASPs to the limited extent provided by paragraph 16 of Schedule 8 to the Scotland Act 1998; however, other interpretation provisions are provided in the Interpretation and Legislative Reform (Scotland) Act 2010 (“the 2010 Act”). Other drafting conventions are less formal and have evolved as a practice amongst the Scottish Government drafters. These include the standard form of words used for the short title provision and for creating offences.
Many Bills employ shorthand terms for individuals or bodies, dates (e.g. “the appointed day”) or existing Acts (e.g. “the 1997 Act”), with a single interpretation or definition provision (often at the end of the Bill) to explain what each such term means or refers to. In order fully to understand a provision of a Bill, it may be necessary to find the appropriate interpretation provision (and there may be different interpretation provisions for particular Parts, Chapters or even sections). Larger Bills often include, towards the end, an “index of defined expressions” to guide the reader to where particular terms are defined.
Provisions amending existing Acts
Bills frequently contain provisions to amend existing Acts (or, occasionally, subordinate legislation). Where this involves inserting text into an existing Act, the text to be inserted will be set out exactly as it would appear in that Act, in double quotation marks. Where the inserted text consists of a block of text beginning on a new line (e.g. an inserted section), it will appear in the Bill indented. Where inserted text extends over more than one page of the Bill, care is needed to identify what text is inserted text and what text is simply the text of the Bill.
Provisions in a Bill that make amendments to existing Acts usually follow certain conventions of wording (although the style depends on the drafter). New provisions are “inserted”, “added” or “substituted”; existing provisions are “repealed”, “omitted” or “cease to have effect” (all amount to the same in legal terms). New sections, subsections etc. to be inserted into an Act are numbered in such a way that the existing provisions of the Act do not require to be re-numbered (so, for example, a new section after section 12 is 12A).
Standard provisions in Bills
There are certain standard provisions that feature in most or all Bills, familiarity with which is useful in gaining an understanding of how the Bill works.
There is an important distinction between the enactment of a Bill and its commencement. The former is when, on receiving Royal Assent, it is converted from a Bill to an Act: in loose terms, when it becomes part of the “statute book”. The latter is when it comes into force and so becomes the law of the land. Some provisions of Acts are never brought into force, though they may remain on the statute book for years before being repealed.
Commencement is usually dealt with in one of the final sections of the Bill. In most cases, some general provisions (including, for example, the short title section) are brought into force immediately while others (including the main substantive provisions) are brought into force later. The various possibilities for commencement are:
- after a specified period – e.g. “Sections 1 and 2 come into force at the end of the period of two months beginning with the date of Royal Assent” ;
- on a specified day – e.g. “Sections 3 and 4 come into force on [date]”;
- on a day (or days) to be determined after enactment by subordinate legislation – e.g. “Sections 5 and 6 come into force on such day as the Scottish Ministers may by regulations appoint”; or
- immediately – “This Act comes into force on the day after Royal Assent”.
With a Scottish Parliament Bill, the interval between the passing of a Bill and Royal Assent is less predictable in advance than it would be in relation to a UK Parliament Bill – because of the possibility of a reference to the Supreme Court under section 32A or 33 or an order under section 35 of the Scotland Act 1998. Partly for that reason, most Bills provide for commencement by order made under the resulting Act. (This also allows the timetable for implementing a Bill to be adjusted according to the speed at which preparatory work is completed.) Commencement on (or immediately after) Royal Assent is used only rarely, where there is a particular need to bring the Act into force with minimum delay.
There are certain standard schedules that feature regularly in larger Bills. In particular, there is often a schedule of “minor and consequential amendments” to existing Acts, those Acts being listed in order of year and chapter/asp number. Also common are repeal schedules, listing all provisions of existing Acts (and statutory instruments) to be repealed (or revoked) by the Bill. This is often set out in two columns, the short title of the Act in the left column and the provisions to be repealed (or revoked) in the right column. (In many Bills, some repeals will instead be provided for in the body of the Bill.) It is quite common for schedules to consist of, or contain, text in columns, tables or lists (rather than text in sentences).
Subordinate legislation provisions
Most Bills contain provisions conferring powers to make subordinate legislation. The principle behind such legislation is that it may not be a good use of the Parliament’s time to consider the minutiae of some policy proposals, or some matters of administrative or procedural detail, and so the Parliament may allow the Scottish Ministers to give effect to the details of certain policy proposals, within the limits imposed by the parent statute. It also enables the Scottish Ministers to put certain provisions into place at a later date, taking account of changing circumstances, and to adapt provisions more easily as circumstances change, without the need for a Bill on each occasion.
The Parliament has an interest in ensuring that an Act does not delegate to the Scottish Ministers powers that are unnecessary or inappropriate, since that would undermine the Parliament’s primary legislative role. So provisions in a Bill conferring powers to make subordinate legislation are likely to come in for particularly close scrutiny. Those provisions will specify to what, if any, parliamentary scrutiny subordinate legislation made under the provisions of the Bill will be subject. The two main variants are:
- the affirmative procedure (under section 29 of the 2010 Act) – where the subordinate legislation is in the form of a statutory instrument which is laid before the Parliament “for approval by resolution”. Most such instruments are laid in draft and cannot be made or come into force until the Parliament has approved them.
- the negative procedure (under section 28 of the 2010 Act) – where the subordinate legislation is in the form of a statutory instrument which must be laid before the Parliament and is “subject to annulment”. Most such instruments are laid as made instruments (i.e. not in draft form) and come into force (or remain in force) unless the Parliament annuls them within a period of 40 days from the day that they are laid.
Some statutory instruments made under the powers in an Act only require to be laid before the Parliament but are not subject to any parliamentary control (section 30 of the 2010 Act); and some need not even be laid. Occasionally, an Act may give the Scottish Ministers power, by subordinate legislation, to amend the Act itself (or other primary legislation). Such provisions in Bills – known colloquially as “Henry VIII provisions” – are regarded by many parliamentarians with particular caution.
1 In UK Parliament Bills, they are known as “clauses”.