6. DELEGATED POWERS AND LAW REFORM
6.1. Almost all Scottish Statutory Instruments (SSIs) are considered by both the Delegated Powers and Law Reform Committee and at least one subject committee. There are a small number of instruments which are only subjected to technical and legal scrutiny by the Delegated Powers and Law Reform Committee.
6.2. Depending on the parent Act, instruments are normally subject to either affirmative procedure (which requires the approval of the Parliament to allow the provisions to come into force or to remain in force) or negative procedure (where the provisions can be annulled by the Parliament). Occasionally, instruments are subject to a “super-affirmative” procedure (where the Parliament has an initial opportunity to comment on a draft before a final version is laid for approval in the normal way) – and some instruments are laid only and not subject to any Parliamentary procedure.
6.3. When laid, an SSI is referred by the clerk to the subject committee within whose remit it falls and to the Delegated Powers and Law Reform Committee. If an instrument falls within the remit of more than one committee, the Parliament designates a lead committee on a motion of the Parliamentary Bureau. The instrument is copied to other committees who have an interest and they may, but do not require to, report to the lead committee.
Delegated Powers and Law Reform Committee
6.4. The Delegated Powers and Law Reform Committee is required to consider all SSIs and report, normally within 20 days of laying and in any event within 22 days, both to the Parliament and the lead committee, drawing attention to any legal or technical issues (Rule 10.3.2).
6.5. SSIs subject to negative procedure must be annulled if the Parliament so resolves within a 40-day period beginning with the day on which they are laid. Such instruments require to be laid at least 28 days before they are due to come into force under section 28(2) of the Interpretation and Legislative Reform (Scotland) Act 2010. If this “28-day rule” is breached, the Scottish Government must explain why in a letter to the Presiding Officer which is considered by the Delegated Powers and Law Reform Committee and the relevant subject committee.
6.6. SSIs subject to negative procedure come into force on the date specified in the instrument unless they are annulled by the Parliament.
6.7. Any MSP wishing to annul a negative SSI must lodge a motion proposing that the lead committee recommend annulment to the Parliament. Where such a motion is lodged, the SSI and the motion to annul are included on the agenda of the lead committee. Rules 10.4 and 10.5 provide for a debate on the motion in the lead committee not exceeding 90 minutes in which the member who has lodged the motion and the relevant minister or junior Minister are entitled to speak. However, only committee members are entitled to vote on the motion.
6.8. In any case where a motion to annul an instrument has been debated by a lead committee, the committee is required to report on the instrument, setting out its recommendations. If the lead committee agrees to recommend annulment, it reports in those terms and the Bureau is required to lodge a motion for annulment to be taken in the Parliament. Rules 10.4 and 10.5 provide for a short debate and, if the Parliament were to agree to the motion, the SSI would be annulled.
6.9. In practice it is unusual for a motion to annul to be lodged. However, all negative SSIs still appear on the agenda of the lead committee which may take evidence on them depending on the subject matter.
6.10. Where no motion to annul has been lodged, the lead committee may still report to the Parliament setting out any comments or highlighting any concerns that it has. Such a report does not require to be made within the 40-day period.
6.11. Affirmative SSIs are considered following the procedure set down in Rule 10.6. This allows a 40-day period for committees to consider and report on affirmative instruments. As with negative procedure, the lead committee can start but not complete its consideration before the Delegated Powers and Law Reform Committee has reported to it on most affirmative instruments. (With some affirmative instruments, which cannot remain in force beyond a stated period, the lead committee must report by the end of that period.)
6.12. During the time available for consideration, in order to bring the provisions into force or ensure that they stay in force, a member of the Scottish Government must lodge a motion that the committee recommend approval of the instrument to the Parliament. The motion to recommend approval is taken as an item on the agenda of the lead committee and Rule 10.6 provides for a debate lasting no more than 90 minutes. The minister is entitled to speak in the debate.
6.13. In advance of the debate, committees may take evidence on the instrument. In that situation, there are two separate agenda items, the first stating that the committee will take evidence on the instrument (and listing the witnesses); the second being the motion for approval. It is not uncommon for a minister to attend a committee meeting to give evidence on the instrument and then to move and speak to the motion.
6.14. Any MSP can lodge amendments to the minister’s motion. As instruments can only be approved or rejected in their entirety, an amendment seeking to alter the wording of the instrument is inadmissible. However, for example, an amendment could be lodged regretting that certain provisions have not been included in the instrument or commending the Scottish Government for bringing forward legislation promptly. The text of the motion (whether or not amended) forms part of the committee’s report.
6.15. Where the lead committee agrees to recommend approval of an instrument, it reports in those terms and there is then a Bureau motion to the Parliament proposing that the instrument be approved.
6.16. If the lead committee were to disagree to the motion to recommend approval and report accordingly, there would be nothing to prevent the Scottish Government from lodging a motion for approval for debate in the Parliament.