The Scottish Parliament makes new laws by passing Acts of the Scottish Parliament (ASPs), also known as primary legislation. Acts can give powers to the Scottish Government or other bodies to make further law through secondary legislation. Secondary legislation is also known as subordinate or delegated legislation.
Most secondary legislation in Scotland is made in the form of Scottish Statutory Instruments (SSIs).
Like Acts of the Scottish Parliament, SSIs are law. However, they are subject to a much shorter parliamentary scrutiny process.
Most SSIs are made by the Scottish Government, although sometimes powers are given to other bodies. For example, the Court of Session and High Court of Justiciary make procedural rules for the courts through secondary legislation.
Secondary legislation can cover any subject area within the Parliament’s legislative competence, including, for example, justice, the environment or education.
Different SSIs are subject to different levels of parliamentary scrutiny. The main procedures are:
Primary legislation is an Act that has been passed by the Parliament.
Secondary legislation can only be made where an Act gives a power to do so. The Act sets out what the power can be used for and the parliamentary procedure that applies to SSIs made under it.
When Parliament considers a Bill, it also considers any powers in the Bill that would allow future changes to be made through secondary legislation. This includes considering whether those powers are appropriate and what level of parliamentary scrutiny should apply.
What an SSI can do depends on the powers given by the Act under which it is made.
SSIs are often used to:
The scope of any SSI is limited by the powers contained in the Act under which it is made.
The parliamentary procedure for an SSI is set out in the Act that gives the power to make it. The procedure determines what steps the Parliament can take when looking at an instrument.
Most SSIs laid before the Parliament are considered by two committees.
The first committee is the Delegated Powers and Law Reform (DPLR) Committee. The second is the relevant subject committee, often referred to as the “lead committee”.
The DPLR Committee considers every SSI to identify any technical or legal issues, including whether:
If the Committee identifies concerns, it reports them to the Parliament and draws them to the attention of the lead committee.
The lead committee considers the policy effect of the SSI and the impact of the changes it would make. For example, an SSI relating to education would normally be considered by Education and Gaelic Committee.
Affirmative instruments are considered by the Delegated Powers and Law Reform (DPLR) Committee and the lead committee.
These SSIs cannot be made (that is, signed by the Minister) unless the Parliament has approved a draft of the instrument.
The lead committee may take evidence on the proposed SSI and will normally invite the Scottish Government minister responsible for the SSI to a committee meeting where the committee can ask the minister and any officials questions about the SSI.
The committee then considers whether it wishes to recommend that the Parliament approve the SSI.
If the Parliament approves the draft SSI, it may then be made by the Scottish Government.
When Parliament considers an affirmative SSI, it is considering a draft instrument. The SSI is made only after parliamentary approval has been given.
Negative instruments are the most common type of instrument. They are considered by the Delegated Powers and Law Reform Committee and the lead committee.
The Parliament generally has 40 days to consider a negative SSI. If the Parliament does not decide to annul the SSI, it will come into force on the date specified in the instrument.
However, any MSP may lodge a motion seeking to have the SSI annulled (“cancelled”). If the lead committee agrees that the SSI should be annulled, the Parliament will then be asked to decide whether the instrument should be annulled. If it does not agree, the instrument will remain in force.
Negative SSIs are generally required to be laid before the Parliament for at least 28 days before they can come into force. If the Scottish Government needs to bring the SSI into force sooner than this, it must write to the Presiding Officer explaining why.
If a negative SSI is annulled after it has come into force, it ceases to have effect from that point. If Parliament annuls an SSI, the Scottish Ministers may still make a replacement SSI under the relevant power.
No procedure SSIs are also known as laid-only SSIs. They are often used to bring provisions of an Act into force (when a Bill is passed, it doesn’t always become law straight away).
No procedure SSIs are considered by the Delegated Powers and Law Reform Committee which will report on them. The lead committee may also consider them if it wishes to, but it is not required to do so.
The Parliament has no power to approve or reject a laid-only SSI. Committees may nevertheless raise concerns or seek further information. For example, they may:
Provisional affirmative SSIs, often called “made affirmative” SSIs, are relatively uncommon.
They are generally used where it is necessary for legal changes to take effect immediately, including in urgent situations.
These instruments come into force before parliamentary approval is obtained. However, they must be approved by the Parliament within the period specified in the Act under which they are made to remain in force beyond that point.
If parliamentary approval is not obtained within that period, the instrument ceases to have effect.
There is no single super-affirmative procedure.
The term is used to describe procedures that require a greater degree of parliamentary scrutiny than the standard affirmative procedure. The requirements are set out in the Act that confers the power.
Super-affirmative procedures often involve consultation, publication of proposals and an extended period of parliamentary scrutiny before a draft SSI can be approved.
The DPLR Committee and, where appropriate, a lead committee, consider the proposals and report their views before a draft SSI is formally laid under the affirmative procedure.
Statutory Instruments (known as SIs or UK SIs) are a form of secondary legislation made by the UK Government under powers conferred by Acts of the UK Parliament.
Most SIs are scrutinised only by the UK Parliament, even if they affect devolved matters in Scotland. The exception is “joint” SIs which must also be laid in the Scottish Parliament, but these are rare.
The Scottish Parliament has no formal role in the scrutiny of SIs laid only in the UK Parliament. However, under the UK SI Protocol, the Scottish Government notifies the Scottish Parliament when an SI which affects the law in a devolved area has been made.
In Session 7, these notifications are considered by the Europe, External Affairs and Culture Committee as part of its scrutiny of matters relating to devolution and inter-governmental relations.