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Interpretation and Legislative Reform (Scotland) Act 2010

Section 28 -  Instruments subject to the negative procedure

61.Section 28 defines what is meant when an enactment provides that devolved subordinate legislation is subject to the negative procedure.

62.Under the negative procedure the legislation is made (i.e. signed) and is then subject to annulment by resolution of the Parliament. The main features of the procedure are that:

  • section 28(2) requires the SSI to be laid before the Parliament as soon as practicable after being made and not less than 28 days before the legislation is due to come into force. This replicates article 10(2) of the SI Order except that the period of 21 days specified in the Order is extended to 28 days and there is an express requirement to lay the instrument as soon as possible after it is made;

  • section 28(3) provides that the Parliament may, within the period of 40 days beginning with the date on which it is laid, resolve that the instrument be annulled;

  • section 31(2) provides that failure to comply with these requirements does not invalidate the instrument;

  • section 28(8) provides that, in calculating the period of 28 or 40 days, no account is to be taken of any time during which the Parliament is dissolved or in recess for more than 4 days.

63.Subsections (4) to (7) explain the effect of the Parliament making an annulment resolution.

64.Subsection (4) provides that, in so far as the instrument is not in force on the date of the annulment resolution, the instrument is not to come into force. But, in so far as the instrument is in force on that date, nothing further is to be done under, or in reliance upon, the instrument after that date.

65.Following an annulment resolution, subsection (6) requires the “responsible authority” to revoke the instrument (unless it is an Order in Council). Subsection (9) defines the expression “responsible authority”. If the instrument is an Order in Council, subsection (5) provides that following an annulment resolution Her Majesty may revoke it. Subsection (10) provides that a revocation order made under either subsection (5) or (6) is to be an SSI.

66.Subsection (7) provides that neither the annulment resolution, nor the instrument’s consequent revocation, affects the validity of anything previously done under the instrument or the making of a new SSI.

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Text created by the Scottish Government to explain what the Act sets out to achieve and to make the Act accessible to readers who are not legally qualified. Explanatory Notes were introduced in 1999 and accompany all Acts of the Scottish Parliament except those which result from Budget Bills.


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