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Interpretation and Legislative Reform (Scotland) Act 2010

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Parliamentary scrutinyS

28Instruments subject to the negative procedureS

(1)This section applies where, by virtue of an enactment, devolved subordinate legislation is subject to the negative procedure.

(2)The Scottish statutory instrument containing the subordinate legislation must be laid before the Scottish Parliament as soon as practicable after the instrument is made (and in any event at least 28 days before the instrument comes into force).

(3)The Parliament may, before the expiry of the period of 40 days beginning with the date on which the instrument is laid before it, resolve that the instrument be annulled.

(4)Where the Parliament makes such a resolution in relation to an instrument—

(a)so far as the instrument is not in force on the date of the resolution, the instrument is not to come into force after that date (despite any provision in it for its coming into force),

(b)so far as the instrument is in force on that date, nothing further is to be done or continued under, or in reliance on, the instrument after that date.

(5)Where the Parliament makes such a resolution in relation to an instrument which contains an Order in Council or an Order of Council, Her Majesty may by Order in Council revoke the instrument.

(6)Where the Parliament makes such a resolution in relation to any other instrument, the responsible authority must by order revoke the instrument.

(7)Any such resolution or revocation does not affect—

(a)the validity of anything previously done under the instrument, or

(b)the making of a new Scottish statutory instrument.

(8)In calculating the period of 28 days mentioned in subsection (2), or the period of 40 days mentioned in subsection (3), no account is to be taken of any time during which the Scottish Parliament is dissolved or in recess for more than four days.

(9)In subsection (6), “responsible authority”, in relation to a Scottish statutory instrument, means—

(a)the Scottish Ministers in a case where the instrument is made, confirmed or approved by the Scottish Ministers, the First Minister or the Lord Advocate, and

(b)in any other case, the person who made, confirmed or approved the instrument.

(10)An order under subsection (5) or (6) is to be made by Scottish statutory instrument.

Modifications etc. (not altering text)

C1S. 28 applied (with modifications) by 2002 c. 17, s. 38(3C) (as inserted (27.3.2012 for specified purposes, 16.3.2015 in so far as not already in force) by Health and Social Care Act 2012 (c. 7), ss. 224(3), 306(1)(d)(4); S.I. 2015/409, art. 2)

C2S. 28 applied (with modifications) (27.3.2012) by Health and Social Care Act 2012 (c. 7), ss. 304(7), 306(1)(c)

C4S. 28 applied in part by 2018 c. 16, Sch. 7 paras. 8C(8), 8E(8), 8G(8) (as inserted (23.1.2020 for specified purposes, 31.1.2020 for specified purposes, 19.5.2020 in so far as not already in force) by European Union (Withdrawal Agreement) Act 2020 (c. 1), s. 42(6)(e)(ix), Sch. 5 para. 51 (with s. 38(3)); S.I. 2020/75, reg. 4(n)(xxiii); S.I. 2020/518, reg. 2(p)(i))

Commencement Information

I1S. 28 in force at 26.1.2011 for specified purposes by S.S.I. 2011/17, art. 4(b) (with art. 5)

I2S. 28 in force at 6.4.2011 in so far as not already in force by S.S.I. 2011/17, art. 3(a)

29Instruments subject to the affirmative procedureS

(1)This section applies where, by virtue of an enactment, devolved subordinate legislation is subject to the affirmative procedure.

(2)The subordinate legislation is not to be made unless a draft of the Scottish statutory instrument containing it is laid before, and approved by resolution of, the Scottish Parliament.

(3)If the requirements of subsection (2) are not complied with in relation to any subordinate legislation to which this section applies, the purported subordinate legislation has no effect.

(4)Subsection (3) is without prejudice to section 32(3).

Modifications etc. (not altering text)

C12S. 29 applied by 2018 c. 16, Sch. 7 paras. 8C(7), 8E(7), 8G(7) (as inserted (23.1.2020 for specified purposes, 31.1.2020 for specified purposes, 19.5.2020 in so far as not already in force) by European Union (Withdrawal Agreement) Act 2020 (c. 1), s. 42(6)(e)(ix), Sch. 5 para. 51 (with s. 38(3)); S.I. 2020/75, reg. 4(n)(xxiii); S.I. 2020/518, reg. 2(p)(i))

Commencement Information

I3S. 29 in force at 26.1.2011 for specified purposes by S.S.I. 2011/17, art. 4(b) (with art. 5)

I4S. 29 in force at 6.4.2011 in so far as not already in force by S.S.I. 2011/17, art. 3(a)

30Other instruments laid before the ParliamentS

(1)This section applies where devolved subordinate legislation is not, by virtue of an enactment, subject to the negative procedure or the affirmative procedure.

(2)The Scottish statutory instrument containing the subordinate legislation must be laid before the Scottish Parliament as soon as practicable after the legislation is made (and in any event before the legislation is due to come into force).

(3)References in subsections (1) and (2) to devolved subordinate legislation do not include references to subordinate legislation made under an enactment mentioned in subsection (4).

(4)Those enactments are—

(a)the Harbours Act 1964 (c. 40),

(b)the Water (Scotland) Act 1980 (c. 45),

(c)the Road Traffic Regulation Act 1984 (c. 27),

(d)the Roads (Scotland) Act 1984 (c. 54),

(e)section 1, 2 or 8 of the Salmon Act 1986 (c. 62),

(f)the Natural Heritage (Scotland) Act 1991 (c. 28),

[F1(fa)section 155(2)(a) of the Political Parties, Elections and Referendums Act 2000 (c.41),]

(g)section 33, 34 or 35 of the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003 (asp 15),

(h)article 53 of the Scotland Act 1998 (River Tweed) Order 2006 (S.I. 2006/2913),

(i)the Transport and Works (Scotland) Act 2007 (asp 8).

[F2(j)section 216(4) of the Equality Act 2010 (c.15).]

(5)The Scottish Ministers may by order modify subsection (4).

(6)An order under this section is subject to the affirmative procedure.

[F3(7)This section does not apply in relation to any regulations made in accordance with paragraph 6 of Schedule 7 to the European Union (Withdrawal) Act 2018 [F4or paragraph 15 of Schedule 5 to the European Union (Future Relationship) Act 2020] F5....]

Textual Amendments

F2S. 30(4)(j) inserted (23.5.2016) by Scotland Act 2016 (c. 11), ss. 38(10), 72(7)

Modifications etc. (not altering text)

Commencement Information

I5S. 30 in force at 26.1.2011 for specified purposes by S.S.I. 2011/17, art. 4(b) (with art. 5)

I6S. 30 in force at 6.4.2011 in so far as not already in force by S.S.I. 2011/17, art. 3(a)

31Failure to lay instruments in accordance with section 28(2) or 30(2)S

(1)This section applies where section 28 or 30 applies in relation to devolved subordinate legislation.

(2)Failure to lay the Scottish statutory instrument containing the legislation in accordance with the laying requirements does not affect the validity of the instrument.

(3)Where the instrument is laid before the Scottish Parliament, but not in accordance with the laying requirements, the responsible authority must explain to the Presiding Officer why the laying requirements have not been complied with.

(4)The explanation is to be given in writing as soon as practicable after the instrument is laid before the Parliament.

(5)In this section, “the laying requirements” are—

(a)in the case where section 28 applies, the requirements of subsection (2) of that section,

(b)in the case where section 30 applies, the requirements of subsection (2) of that section.

(6)In subsection (3), “responsible authority”, in relation to a Scottish statutory instrument, means—

(a)the Scottish Ministers in a case where the instrument is—

(i)made, confirmed or approved by the Scottish Ministers, the First Minister or the Lord Advocate,

(ii)an Order in Council, or

(iii)an Order of Council, and

(b)in any other case, the person who made, confirmed or approved the instrument.

Modifications etc. (not altering text)

C20S. 31 applied (with modifications) by 2002 c. 17, s. 38(3C) (as inserted (27.3.2012 for specified purposes, 16.3.2015 in so far as not already in force) by Health and Social Care Act 2012 (c. 7), ss. 224(3), 306(1)(d)(4); S.I. 2015/409, art. 2)

C21S. 31 applied (with modifications) (27.3.2012) by Health and Social Care Act 2012 (c. 7), ss. 304(7), 306(1)(c)

Commencement Information

I7S. 31 in force at 26.1.2011 for specified purposes by S.S.I. 2011/17, art. 4(b) (with art. 5)

I8S. 31 in force at 6.4.2011 in so far as not already in force by S.S.I. 2011/17, art. 3(a)

32Laying of Scottish statutory instruments before the Scottish ParliamentS

(1)This section applies where an enactment authorises or requires the laying of a Scottish statutory instrument, or a draft of such an instrument, before the Scottish Parliament.

(2)Unless the contrary intention appears, the reference to the laying of the instrument, or draft instrument, is to be construed as a reference to the taking of such action as is specified in standing orders of the Parliament as constituting the laying of a Scottish statutory instrument, or a draft of such an instrument, before the Parliament.

(3)Failure to lay an instrument, or draft instrument, in accordance with the enactment does not affect the validity of the instrument.

Modifications etc. (not altering text)

C27S. 32 applied by 2002 c. 17, s. 38(3D) (as inserted (27.3.2012 for specified purposes, 16.3.2015 in so far as not already in force) by Health and Social Care Act 2012 (c. 7), ss. 224(3), 306(1)(d)(4); S.I. 2015/409, art. 2)

C29S. 32 applied by 2018 c. 16, Sch. 7 paras. 8C(9), 8E(9), 8G(9) (as inserted (23.1.2020 for specified purposes, 31.1.2020 for specified purposes, 19.5.2020 in so far as not already in force) by European Union (Withdrawal Agreement) Act 2020 (c. 1), s. 42(6)(e)(ix), Sch. 5 para. 51 (with s. 38(3)); S.I. 2020/75, reg. 4(n)(xxiii); S.I. 2020/518, reg. 2(p)(i))

Commencement Information

I9S. 32 in force at 26.1.2011 for specified purposes by S.S.I. 2011/17, art. 4(b) (with art. 5)

I10S. 32 in force at 6.4.2011 in so far as not already in force by S.S.I. 2011/17, art. 3(a)

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