Commencement of Parts 2, 4, 5 and Section 55(3) and Related Instruments to be made under the Interpretation and Legislative Reform (Scotland) Act 2010: Consultation Paper

Chapter 2
The Scottish Statutory Instruments Regulations 2011

General approach

23. Section 42 of the Act provides that the Scottish Ministers must make, by regulations, provision for the publication, numbering and citation of SSIs. The principal change from the framework of provision contained in the existing Scotland Act 1998 (Transitory and Transitional Provisions) (Statutory Instruments) Order 1999 ("the SI Transitional Order") is the move to give increased prominence to accessing SSIs by electronic means to better reflect modern practice.

Commentary on Regulations

Regulation 3: Numbering of instruments

24. This provision sets out the manner in which the QPS is to number SSIs. It does not depart from the SI Transitional Order in providing that instruments should generally be numbered sequentially based on the order in which they are received in each calendar year.

25. The provision presently follows article 5(2) of the SI Transitional Order in providing for an exception to the general numbering rule in relation to instruments subject to SPP and those instruments which are made but cannot come into force unless and until approved by parliamentary resolution. Article 5(2) of the SI Transitional Order provides that those instruments need not be numbered until the responsible authority confirms that they are to come into force, in which case they are assigned a number in the annual sequence based on their coming into force date rather than the date on which they are made.

26. The Government thinks that this exception to the usual numbering rule should be brought to an end. It is the Government's view that any instrument which has been made should be numbered and published by the Queen's Printer, regardless of whether it does or does not subsequently come into force. Subject to the views of consultees, the Government is therefore minded to remove paragraphs (3) and (4) of the proposed regulation 3.

Question 1: Is the provision clear as to its purpose and effect?

Question 2: Should the distinct provision made in paragraphs (3) and (4) be retained, or should the numbering of all instruments be done on the same basis?

Regulation 4: Citation of instruments

27. This regulation is concerned with how SSIs may be referred to in legislation. Regulation 4 differs from its predecessor in the SI Transitional Order (article 5(3)) in two respects.

28. Firstly, regulation 4(1)(a) provides for SSIs to be cited by their title. All SSIs contain a citation provision, but arguably that provision does not come into force until the date appointed in the instrument's commencement provision. Regulation 4(1)(a) ensures that the citation of an instrument is valid from the point at which it is made and avoids any possible ambiguity over references to the SSI in question before its own citation provision has come into force.

29. Secondly, regulation 4(2) provides for an instrument to continue to be cited by the title authorised in any enactment (including itself) despite the revocation of that enactment. This mirrors section 9(3) of the Act which provides that an Act of the Scottish Parliament may continue to be referred to by its short title notwithstanding the Act's repeal.

Question 3: Is the provision clear as to its purpose and effect?

Question 4: Are respondents content with the policies implemented in the regulation?

Regulation 5: Form of instruments

30. This regulation sets out requirements as to the form in which instruments will be published. It reflects the longstanding practice of the QPS, but is a new statutory provision, as this has not previously been a formal requirement. It is simply intended to recognise and regularise current good practice and ensure that it is maintained in the future.

Question 5: Is the provision clear as to its purpose and effect?

Question 6: Do respondents agree the provision is desirable?

Regulation 6: Publishing copies of instruments on a website

31. In terms of section 41(1) of the Act the responsible authority is required to give the QPS a certified copy of an SSI as soon as practicable after it is made. This regulation requires the QPS to publish the instrument on its website as soon as practicable after the certified copy is received. It also requires the QPS to publish any document related to the instrument that the responsible authority requests the QPS to publish. This is most likely to happen where an instrument amends primary or secondary legislation or is considered significant for some other reason. Experience to date suggests that in practice the QPS already publish material related to an instrument where it is both appropriate and practical to do so (e.g. Executive Notes). However, the addition of such provision is intended to deliver more clarity on this point. The provision reflects the primacy of electronic publication now that SSIs are most commonly referenced via the internet (as opposed to in print form).

Question 7: Is the provision clear as to its purpose and effect?

Question 8: Are respondents content that the position on publication of additional material should be clarified as is proposed?

Regulation 7: Printing copies of instruments for the National Library of Scotland

32. Although the principal point of reference for SSIs is now the internet, there is a continuing need to ensure that SSIs remain accessible in print form. This is necessary not only to accommodate those people without access to the internet, or choose not to use it (see the discussion of regulation 11 below), but is also necessary to maintain the integrity of the SSI archive record, which forms part of the Scottish statute book. Regulation 7 therefore places a duty on the QPS to provide print copies of SSIs to the National Library of Scotland.

33. As regards instruments that are not laid before the Parliament, regulation 7 would only require print copies to be provided to the National Library if a responsible authority requests that a particular instrument be provided. However, regulation 7 does not replicate the SI Transitional Order in conferring on the Presiding Officer of the Scottish Parliament a power to request that such instruments be printed. As far as we know, the existing power has never been exercised by the Presiding Officer.

Question 9: Is the provision clear as to its purpose and effect?

Question 10: Do respondents agree that the Parliament's Presiding Officer should not have the power to require the QPS to provide a printed copy of an instrument to the National Library of Scotland, where the general requirement to do so does not apply?

Regulation 8: Lists of instruments

34. This regulation makes provision for the QPS to prepare and publish Scottish Statutory Instrument Lists ("the SSI List"). The SSI List would indicate the title, number and publication date of each instrument published in accordance with regulation 6 (and not already featured in a previously published list). This re-enacts the provision in article 8(1) of the SI Transitional Order.

35. Article 8(3) of the SI Transitional Order provides that it is a defence to any charge of contravening the terms of an SSI to prove that on the date of the alleged contravention, the QPS had not published the instrument under which the offence was created. Section 41(3) to (5) of the Act will make provision to like effect. Provision clarifying the evidential status of the SSI Lists and Annual Editions is included at regulation 10.

Question 11: Is the provision clear as to its purpose and effect?

Regulation 9: Annual editions of instruments

36. This regulation makes provision for the QPS to prepare Annual EDITIONS of instruments. Although the general thrust of the proposed statutory framework looks to the publication of legislation on the web, provision in respect of Annual Editions is rather focussed on their preparation. This not only reflects the nature of the Annual Edition as a bound hard copy library reference tool/record, but also recognises that most of its content would have already been published on the web as and when individual instruments are received by the QPS.

Question 12: Is the provision clear as to its purpose and effect?

Question 13: Are respondents content with the policies implemented in the regulation?

Regulation 10: Evidential status of lists and annual editions of instruments and entries in them

37. This regulation confirms the evidential status of the SSI Lists and Annual Editions, but it does not require Courts to treat published (printed) copies of the SSI Lists as true copies. In future that would be a matter of proof before the court.

Question 14: Is the provision clear as to its purpose and effect?

Question 15: Are respondents content that the evidential status of the list has been changed? If not, what further provision should be made?

Regulation 11: Printing and selling

38. This regulation enables the QPS to print and sell SSIs, SSI Issue Lists and Annual Editions of SSIs on request. The provision reflects the need to maintain in legislation a mechanism for members of the public to continue to have access to print copies of legislation despite the emphasis now being given to publication of, and access to, legislation on the web.

Question 16: Is the provision clear as to its purpose and effect?

Question 17: Are respondents content with the policies implemented in the regulation?