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A Scottish statutory instrument (Scottish Gaelic : Ionnsramaid Reachdail na h-Alba; SSI) is subordinate legislation made by the Scottish Ministers or a regulatory authority in exercise of powers delegated by an Act of the Scottish Parliament. SSIs are the main form of subordinate legislation in Scotland, being used by default to exercise powers delegated to the Scottish Ministers, the Lord Advocate, the High Court of Justiciary, the Court of Session, and the Queen-in-Council. :[s. 27]
An Act of the Scottish Parliament is primary legislation made by the Scottish Parliament. The power to create Acts was conferred to the Parliament by section 28 of the Scotland Act 1998 following the successful 1997 referendum on devolution.
Her Majesty's Advocate, known as the Lord Advocate, is the chief legal officer of the Scottish Government and the Crown in Scotland for both civil and criminal matters that fall within the devolved powers of the Scottish Parliament. He or she is the chief public prosecutor for Scotland and all prosecutions on indictment are conducted by the Crown Office and Procurator Fiscal Service, nominally in the Lord Advocate's name.
The High Court of Justiciary is the supreme criminal court in Scotland. The High Court is both a trial court and a court of appeal. As a trial court, the High Court sits on circuit at Parliament House or the former Sheriff Court building in Edinburgh, or in dedicated buildings in Glasgow and Aberdeen. The High Court sometimes sits in various smaller towns in Scotland, where it uses the local sheriff court building. As an appeal court the High Court sits only in Edinburgh.
The Interpretation and Legislative Reform (Scotland) Act 2010 defines what a Scottish statutory instrument is. [Pt. 2] Before this Act, SSIs were governed by the Statutory Instruments Act 1946, which continues to govern UK statutory instruments. :[s. 55]:
The Statutory Instruments Act 1946 is an Act of the United Kingdom Parliament which governs the making of statutory instruments. Until 2011, the Act also governed Scottish statutory instruments made under Acts of the Scottish Parliament.
SSIs, and the power to enable the creation of subordinate legislation in general, are not mentioned in the original text of the Scotland Act 1998, which devolved powers to the Scottish Parliament. Rather, this power is implied by the statement that Acts of the Scottish Parliament are law to the extent that they are not "outside the legislative competence of the Parliament," without any subsequent reservation of the power to make subordinate legislation. (s. 28–29):
The Scotland Act 1998(c. 46) is an Act of the Parliament of the United Kingdom which legislated for the establishment of the devolved Scottish Parliament with tax varying powers and the Scottish Government. It was one of the most significant constitutional pieces of UK legislation to be passed since the European Communities Act 1972 and is the most significant piece of legislation to affect Scotland since the Acts of Union in 1707 which ratified the Treaty of Union and led to the disbandment of the Parliament of Scotland.
Scots law is the legal system of Scotland. It is a hybrid or mixed legal system containing civil law and common law elements, that traces its roots to a number of different historical sources. Together with English law and Northern Irish law, it is one of the three legal systems of the United Kingdom.
Before Scottish devolution, subordinate legislation applying only to Scotland was published as a subseries of the larger UK statutory instrument (SI) series. This subseries is now used for SIs which deal with reserved matters in relation to Scotland. 12:
An SSI is made, with some exceptions, by a body exercising executive governmental functions – that is, a body responsible for putting the law into effect ("executing" the law) rather than a body responsible for defining the law (the legislature) or a body responsible for interpreting the law (the judicature). As a result, an SSI will provide specific details on how an Act should be put into effect and may amend existing Acts or SSIs to reflect that the law has changed. 1 In other cases, an SSI may repeal parts of the law which had before been impliedly repealed.:
The executive is the organ exercising authority in and holding responsibility for the governance of a state. The executive executes and enforces law.
A legislature is a deliberative assembly with the authority to make laws for a political entity such as a country or city. Legislatures form important parts of most governments; in the separation of powers model, they are often contrasted with the executive and judicial branches of government.
A repeal is the removal or reversal of a law. There are two basic types of repeal, a repeal with a re-enactment of the repealed law, or a repeal without any replacement.
For example, section 15 of the Charities and Trustee Investment (Scotland) Act 2005 allows the Scottish Ministers to make regulations setting out how charities refer to themselves in documents, and the Charities References in Documents (Scotland) Regulations 2007 sets out in regulation 2 how a charity must refer to itself, and in regulation 4 on which documents a charity must make such references.
In other cases, an SSI may be used to bring into force parts of the law through so-called "commencement orders." In these cases, sections of Acts may have no legal force until brought into force, which may allow time for accommodating preparations to be made. One example of a commencement order is the Bankruptcy (Scotland) Act 2016 (Commencement) Regulations 2016, which brought almost the entirety of the Bankruptcy (Scotland) Act 2016 into force.
Another example, although not involving SSIs, is the Health and Safety at Work etc. Act 1974, which applies to Scotland and makes provisions relating to ensuring safety in the workplace. This Act covers a wide remit, and so UK SIs have been issued under the same sections to cover different industries. Specifically, some sections of this Act which allow making SIs were used to make both the Control of Substances Hazardous to Health Regulations 2002 and the Control of Vibration at Work Regulations 2005 even though those regulations are not related.
An SSI may only be made where an Act of the Scottish Parliament or Act of the UK Parliament gives that power. Such an Act is known variously as an enabling or parent Act, and sets out the scope of the power to make SSIs, and the associated procedure for exercising that power. An SSI may only make provision within the scope of its enabling power, and any provision outside that scope is invalid.
An SSI is "made" when it is signed by a person or body who has the power to make that SSI – typically the Scottish Ministers.This terminology appears to be inherited from the UK Parliament, as the Scottish Parliament has not provided official guidance specifically defining the term.
The "laying" of an SSI is the putting of that SSI before the Scottish Parliament for the Parliament's consideration. The phrase comes from laying before the house , which originally referred to the placing of a (physical) document on the table in the assembly chamber. All SSIs are required to be laid before Parliament in the manner specified by the Parliament's standing orders, although not laying an SSI before Parliament does not invalidate it. [Ch. 14] The date an SSI is laid is also generally the date from which parliamentary scrutiny may begin. :[ss. 28-32]:
Once an SSI is laid before Parliament, it may be scrutinised. Scrutiny is generally performed by the Delegated Powers and Law Reform Committee (DPLRC), which considers whether the Scottish Ministers are competent in making the SSI and whether the SSI of sufficient quality. 5 That is, the committee considers whether the Ministers have the power to make that SSI under the enabling Act, whether the Scottish Parliament has the power to make law in that area under the Scotland Acts, and whether the provisions of the SSI are clear, consistent, and free of typographical errors.:
The DPLRC and other committees report back to Parliament, which applies a varying level of scrutiny depending on the exact procedure for that SSI. 6:
A negative SSI is an SSI subject to negative procedure. Such SSIs must be laid before Parliament at least 28 days before they come into force, and may be annulled by Parliament resolution within 40 days of their being laid. If an SSI is annulled after it comes into force, it ceases to have force from the date of annulment. [s. 28]:
An affirmative SSI is subject to affirmative procedure. These SSIs must be approved by resolution of Parliament before they can come into force. [s. 29]:
Some SSIs are subject to special parliamentary procedure. These are so-called special procedure orders (SPOs), and differ from SSIs subject to other types of procedure in that notice of SPOs must be posted in the Edinburgh Gazette (or a local newspaper, if the SPO relates to a particular area) and in that members of the public may object to an SPO. [s. 49]:
If an SPO is objected to, it must be laid before the Parliament with its objections and then confirmed by an Act of the Scottish Parliament. If no objections are made, the Parliament may annul the order within 40 days of its being laid. If no objections are made and the Parliament does not annul the SPO, the SPO comes into force at the end of the 40-day period or at a later date if the SPO so specifies. [ss. 50-52]:
In addition to the above procedures, which are defined by the Interpretation and Legislative Reform (Scotland) Act 2010, an enabling Act may specify its own procedure for making SSIs. SSIs made under another procedure must be laid before Parliament "as soon as practicable after [they are] made," with some exemptions. As of October 2016, the exempted enactments are: [s. 30]:
Examples of these other procedures are laid-only procedure, where an SSI is laid before Parliament but cannot be rejected; and super-affirmative procedure, where a draft SSI must be subject to a formal consultation or other requirement before it can be made. 6:
An SSI will not typically have legal force immediately. Rather, it may require parliamentary approval, and may specify a "commencement day" on which it comes into force. For example, the order bringing into force the Bankruptcy (Scotland) Act 2016 was made on 15 September 2016, laid before Parliament on 21 September 2016, and has a commencement day of 30 November 2016.
While SSIs are separate from UK SIs, they generally appear to follow the same naming convention for rules, regulations, and orders. The Scottish Parliament and Scottish Government have not, however, as of October 2016, published official guidance defining the terms, and so it cannot be known with certainty whether the definitions used for SSIs and SIs are identical.
These definitions were established by the so-called "Donoughmore Committee" of 1932, and recommended in official guidance published by the Her Majesty's Stationery Office. The committee recommended that: [pp. 6-7]:
These definitions mostly hold true for SSIs, with some key differences. The Parliamentary Counsel Office recommends that, from 2016, rules only be used set out procedure for courts, tribunals and other bodies, and that regulations be used for everything else – including commencement orders. 23 That is not to say that orders are not used, as certain older Acts specify powers to create subordinate legislation as powers to create orders. A common example is the Road Traffic Regulation Act 1984 which, among other powers, provides that an authority "may by order restrict or temporarily prohibit use of [a] road." In 2015, approximately 160 orders were made under this Act, representing around 36% of all SSIs in 2015.:
An Order in Council is legislation made by the sovereign to exercise executive power, although in reality Orders are made by the Privy Council and approved by the sovereign. [s. 27]An Order in Council is primary legislation when made under the Royal Prerogative, and subordinate legislation if made under an Act of the Scottish Parliament. When an Order in Council is used to exercise a power granted by an Act, such Orders are made as SSIs. :
Orders in Council are often used for making law which modifies how the branches of government work. 6 Orders in Council have been used to adjust how the Scottish Parliament works – for example, to set who is disqualified from being a Member of the Scottish Parliament – and, in the UK SI series, to devolve powers to the Scottish Parliament.:
The Court of Session (the supreme civil court of Scotland) makes Acts of Sederunt to regulate its proceedings, the proceedings of tribunals, and the proceedings of Scotland's sheriff courts when they hear civil matters, including the Sheriff Appeal Court. The majority of the current power of the Court of Session to regulate is derived from the Courts Reform (Scotland) Act 2014, although some other Acts do also empower the Court.
The original power of the Court of Session to regulate stems from the College of Justice Act 1540, which provided the court with the "power to make such acts, statutes and ordinance as they shall think expedient for ordering of processes and the hasty expedition of justice." Prior to this, following the 1532 establishment of the Court, the power to regulate was held by the Parliament of Scotland.
An Act of Adjournal is a form of legislation made by the High Court of Justiciary (the supreme criminal court of Scotland) to regulate its proceedings, the proceedings of the sheriff courts and the Sheriff Appeal Court when they hear criminal matters, and the justice of the peace courts. Acts of Adjournal are analogous to Acts of Sederunt, which regulate civil proceedings. The current power to regulate of the High Court comes from section 305 of the Criminal Procedure (Scotland) Act 1995, which allows the court to make Acts concerning practice and procedure including by electronic means, summary procedure fees, payment of fines by prisoners, and to make law necessary for the implementation of Acts of Adjournal and Acts of Parliament. [s. 305]:
In addition to this main power, several other modern enactments confer the power to legislate, including the Criminal Justice (Scotland) Act 2003, [s. 21] and its amendments to the Criminal Procedure (Scotland) Act 1995, :[ss. 66(4), 141(2A), 141(2B), 141(7)(b), 210C, 210H] the Criminal Justice (Scotland) Act 2010 :[s. 165] and its amendments to the 1995 Act, :[ss. 113A, 227B, 227D, 227ZA, 271V] the Courts Reform (Scotland) Act 2014 which amended the 1995 Act and the Public Records (Scotland) Act 1937, :[s. 119; sch. 5(11)] :1A :194ZF and the Criminal Justice (Scotland) Act 2016, :[s. 36] and its amendments to the 1995 Act, :[ss. 71C, 83B, 305]:
SSIs are numbered by the year they were made, and consecutively by the order they were received by the Queen's Printer for Scotland in that year. Unlike with Acts of the Scottish Parliament, where Acts are numbered in exactly the order they are received, there is no such requirement for the numbering of SSIs – an SSI need only be ordered "as nearly as possible" in the order the Queen's Printer receives them. [Art. 3]:
The recommended ways of citing an SSI are by its title – for example, The Letting Agent Registration (Scotland) Regulations 2016 – or by its year and number (e.g. S.S.I. 2016/432). [Art. 4] Some style guides recommend the use of both forms in a citation (as in The Letting Agent Registration (Scotland) Regulations 2016, S.S.I. 2016/432 or another similar form).:
|1st||1, 2, 3, ...||Article||Regulation||Rule|
|2nd||(1), (2), (3), ...||Paragraph|
|3rd||(a), (b), (c), ...||Sub-paragraph|
The parts an SSI is divided into have different names depending on the type of SSI and, although no official guidance has been published by the Scottish Government or Scottish Parliament, the names of the divisions appear to be identical to the names used for UK SIs.
The divisions shown in the table are for the main body matter of the SSI, and the Orders column includes Orders in Council. It is also common, regardless of the traditional name of the division, to refer to a division generally as a "clause," such as in "interpretation clause" (which would provide information on how the instrument is to be interpreted). In addition to these numbered (or lettered) paragraphs, an SSI can contain unnumbered paragraphs.
As with Acts of the Scottish Parliament, SSIs can have schedules annexed to them. Schedules to SSIs are divided in the same manner as Acts. 7-8:
The Legislatures of the United Kingdom are derived from a number of different sources from both within the UK and through membership of the European Union. The Parliament of the United Kingdom is the supreme legislative body for the United Kingdom and the British overseas territories with Scotland, Wales and Northern Ireland each having their own devolved legislatures. Each of the three major jurisdictions of the United Kingdom has its own laws and legal system.
An Order in Council is a type of legislation in many countries, especially the Commonwealth realms. In the United Kingdom this legislation is formally made in the name of the Queen by and with the advice and consent of the Privy Council (Queen-in-Council), but in other countries the terminology may vary. The term should not be confused with Order of Council, which is made in the name of the Council without royal assent.
A statutory instrument (SI) is the principal form in which delegated legislation is made in Great Britain.
A decree is a rule of law usually issued by a head of state, according to certain procedures. It has the force of law. The particular term used for this concept may vary from country to country. The executive orders made by the President of the United States, for example, are decrees. In non-legal English usage, however, the term refers to any authoritarian decision. Documents or archives in the format of royal decrees or farming were issued by rulers.
The Court of Session is the supreme civil court of Scotland and constitutes part of the College of Justice; the supreme criminal court of Scotland is the High Court of Justiciary. The Court of Session sits in Parliament House in Edinburgh and is both a trial court and a court of appeal. Decisions of the Court can be appealed to the Supreme Court of the United Kingdom, with the permission of either the Inner House or the Supreme Court. The Court of Session and the local sheriff courts of Scotland have concurrent jurisdiction for all cases with a monetary value in excess of £100,000; the pursuer is given first choice of court. However, the majority of complex, important, or high value cases are brought in the Court of Session. Cases can be remitted to the Court of Session from the sheriff courts, including the Sheriff Personal Injury Court, at the request of the presiding sheriff. Legal aid, administered by the Scottish Legal Aid Board, is available to persons with little disposable income for cases in the Court of Session.
Delegated legislation is law that is not passed by an Act of Parliament but by a government minister, a delegated person or an entity in the United Kingdom. Delegated legislation is used for a wide variety of purposes such as fixing the date on which an Act of Parliament will come into force; setting fees for a public service; or establishing the details of an Act of Parliament. Delegated legislation is dependent on its Parent Act, which prescribes its parameters and procedures. Although a large volume of delegated legislation is written without close parliamentary scrutiny, there are Statutory Instruments to prevent its misuse.
The courts of Scotland are responsible for administration of justice in Scotland, under statutory, common law and equitable provisions within Scots law. The courts are presided over by the judiciary of Scotland, who are the various judicial office holders responsible for issuing judgments, ensuring fair trials, and deciding on sentencing. The Court of Session is the supreme civil court of Scotland, subject to appeals to the Supreme Court of the United Kingdom, and the High Court of Justiciary is the supreme criminal court, which is only subject to the authority of the Supreme Court of the United Kingdom on devolution issues and human rights compatibility issues.
Coming into force or entry into force is the process by which legislation, regulations, treaties and other legal instruments come to have legal force and effect. The term is closely related to the date of this transition.
This article explains the citation of United Kingdom legislation, including the systems used for legislation passed by devolved parliaments and assemblies, for secondary legislation, and for prerogative instruments. This subject is relatively complex both due to the different sources of legislation in the United Kingdom, and because of the different histories of the constituent countries of the United Kingdom.
The United Nations Act 1946 is an Act of the Parliament of the United Kingdom which enables Her Majesty's Government to implement resolutions under Article 41 of the United Nations Charter as Orders in Council. Thus the Parliament of the United Kingdom delegated the power to enact such resolutions without the approval of Parliament. However, the prospective Order must be laid before either Parliament or the Scottish Parliament. A similar mechanism was later used in the European Communities Act 1972 and the Terrorist Asset-Freezing etc. Act 2010.
In many countries, a statutory instrument is a form of delegated legislation.
The statutory rules of Northern Ireland are the principal form in which delegated legislation is made in Northern Ireland.
The powers of the police in Scotland, as with much of Scots law, are based on mixed elements of statute law and common law.
An Act of Sederunt is secondary legislation made by the Court of Session, the supreme civil court of Scotland, to regulate the proceedings of Scottish courts and tribunals hearing civil matters. Originally made under an Act of the Parliament of Scotland of 1532, the modern power to make Acts of Sederunt is largely derived from the Courts Reform (Scotland) Act 2014. Since 2013, draft Acts have also been prepared by the Scottish Civil Justice Council and submitted to the Court of Session for approval.
The politics of France take place with the framework of a semi-presidential system determined by the French Constitution of the French Fifth Republic. The nation declares itself to be an "indivisible, secular, democratic, and social Republic". The constitution provides for a separation of powers and proclaims France's "attachment to the Rights of Man and the principles of national sovereignty as defined by the Declaration of 1789."
An Act of Adjournal is secondary legislation made by the High Court of Justiciary, the supreme criminal court of Scotland, to regulate the proceedings of Scottish courts hearing criminal matters. Now primarily derived from the Criminal Procedure (Scotland) Act 1995, the original power to create Acts of Adjournal is derived from an Act of the Parliament of Scotland of 1672. Before promulgation, Acts of Adjournal are reviewed and may be commented upon by the Criminal Courts Rules Council.
In parliamentary systems and presidential systems of government, primary legislation and secondary legislation, the latter also called delegated legislation or subordinate legislation, are two forms of law, created respectively by the legislative and executive branches of government. Primary legislation generally consists of statutes, also known as 'acts', that set out broad outlines and principles, but delegate specific authority to an executive branch to make more specific laws under the aegis of the principal act. The executive branch can then issue secondary legislation, creating legally enforceable regulations and the procedures for implementing them.