Subordinate Legislation

Subordinate legislation (often called delegated or secondary legislation) is law that is made by executive bodies or individuals – most often by Ministers – under powers granted to them by primary legislation (Acts). 

Much of the detail of an Act (for example concerning timing, implementation or the mechanism for updating) is often left to subordinate legislation.

The Parliament’s role is to scrutinise subordinate legislation and, where applicable, approve or reject it. It is extremely rare for the Parliament to have any scope to amend or change subordinate legislation.

The Act under which a particular piece of subordinate legislation is made (which is known as the parent Act) will normally indicate the type of parliamentary procedure to which it will be subject. Most statutory instruments (the most common form of subordinate legislation) are subject to either negative procedure or affirmative procedure, hence the terms ‘negative instrument’ and ‘affirmative instrument’.

The majority of statutory instruments are considered by the Delegated Powers and Law Reform Committee and at least one other Scottish Parliament committee. However, on a motion of the Parliamentary Bureau, the Parliament may decide that an instrument or draft instrument will go directly to the Chamber for consideration rather than through a lead committee.

The current procedures for dealing with negative and affirmative instruments are set out in detail in Chapter 10 of the standing orders.

Debating Chamber

Affirmative Instruments

Affirmative instruments are normally laid before the Parliament in draft form and require the approval of the Parliament in order to come into force.

Subordinate Legislation Committee meeting

Negative Instruments

Negative instruments are usually made (that is, signed by a Minister) before they are laid before the Parliament. They usually come into force 28 days after they are laid.