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 3
The Interpretation and Legislative Reform (Scotland) Act 2010 (Savings and Transitional Provisions) Order 2011

General approach

39. The Scottish Government considers transitional provision to be necessary to explain how SSIs that are made, or laid in draft, before 6th April 2011 are to be dealt with after that date by both the Scottish Parliament and the QPS. The intention is to ensure that such instruments continue to be treated in accordance with the parliamentary scrutiny and publication regimes which applied at the time they were made or laid in draft before the Parliament.

40. For instance, articles 10 and 11 of the SI Transitional Order presently describe the procedure for instruments subject to annulment by parliamentary resolution. One aspect of that procedure is that if the instrument is laid before the Parliament fewer than 21 laying days before it is to come into force, the authority responsible for the instrument must explain to the Presiding Officer why it is necessary for the instrument to come into force before the Parliament has had that minimum period in which to consider it. Once it comes into force, section 28 of the Act will increase that minimum period to 28 days. If section 28 were to apply to an instrument made before it came into force, and the instrument's specified coming into force date was only 21 days after it was laid before the Parliament, the effect would be to place that instrument in breach of the rule when, at the time it was made, it complied with the rule. In other cases the effect of the Act will be to abolish the scrutiny procedure which applied to the instrument at the time it was laid, or laid in draft, before the Parliament. This could result in some instruments escaping parliamentary scrutiny altogether. This was never the policy intention, and the Government would not wish any instrument to inadvertently avoid proper parliamentary scrutiny processes in this manner. The Government therefore takes the view that it will be simpler and clearer if instruments which start their parliamentary scrutiny under the existing regime complete it under that regime.

Commentary on Articles

Article 3 Savings provision: pre-commencement instruments

41. Article 3(1) disapplies Part 2, and the associated schedules of the Act (which make provision about the parliamentary scrutiny of instruments) in relation to those SSIs made, or laid in draft before the Parliament, prior to the commencement date (6th April 2011). Instead, the SI Transitional Order will continue to apply to those instruments by virtue of paragraph (2). As discussed above, this is necessary to ensure that the parliamentary scrutiny of those instruments proceeds on the basis of the regime which applied at the time their parliamentary scrutiny began.

42. However, there is no reason for an instrument which was subject to parliamentary scrutiny before 6th April 2011 not to be numbered and published in accordance with the regime established by the new SSI Regulations. Article 3(3) and (4) therefore disapply the SI Transitional Order's provisions in relation to numbering and publication in respect of those instruments which are yet to be numbered and published on 6th April 2011.

Question 18: Is the provision clear as to its purpose and effect?

Question 19: Are respondents content with the policies implemented in the article?

Article 4 Savings provision: orders subject to special parliamentary procedure

43. Article 4 disapplies the whole of Part 4 of the Act for those SSIs that are subject to Special Parliamentary Procedure, if notice of the order was given before Part 4 of the Act comes into force. It provides instead for the Scotland Act 1998 (Transitory and Transitional Provisions) (Orders subject to Special Parliamentary Procedure) Order 1999 to continue to apply to such orders despite its ceasing to have effect by virtue of section 55(5) of the Act. Again, the intention is to ensure that orders which are already in the process of being made and brought into force, continue to be dealt with after 6th April 2011 in accordance with the procedures which applied when they began to be made and brought into force.

Question 20 : Is the provision clear as to its purpose and effect?

Question 21: Are respondents content with the policies implemented in the article?

Article 5 Transitional provision: numbering, form and publication of Scottish statutory instruments

44. This article disapplies regulations 3, 5, 6 and 7 of the SSI Regulations, for those SSIs that have been numbered in accordance with article 5(3) of the SI Transitional Order. As such instruments will already have been numbered, formatted, and published there is no need for the SSI Regulations' provisions in respect of those matters to apply.

45. Paragraph (2) of article 5 goes on to disapply regulation 5 of the SSI Regulations in relation to instruments made, or laid in draft before the Parliament, prior to 6th April 2011. An instrument made, or prepared in draft, before that date will have been formatted in accordance with the SI Transitional Order's formatting requirements rather than the requirements of regulation 5 of the SSI Regulations. Paragraph (2) will accordingly ensure that the latter does not apply to such instruments, whereas article 3(2) will ensure that the former does.

Question 22: Is the provision clear as to its purpose and effect?

Question 23: Are respondents content with the policies implemented in the article?

Article 6 Transitional provision: Scottish Statutory Instrument Issue Lists

46. Article 6 provides that for the purposes of regulation 8(2) and (3)(c) of the SSI Regulations, any SSI numbered in accordance with article 5(2) of the 1999 Statutory Instruments Order is deemed to have been published in accordance with regulation 6 of the SSI Regulations on the day it was published on the QPS website. Paragraphs (2) and (3)(c) of regulation 8 of the SSI Regulations require a Scottish Statutory Instruments Issue List published under it to include the date on which the instrument was published on a website under regulation 6 of the SSI Regulations. But instruments that have been numbered and published by the QPS before 6th April 2011 will not have been published under regulation 6. Article 6 ensures that the date of publication is recorded in relation to instruments published during the transitional period notwithstanding their not having been published under regulation 6 of the SSI Regulations.

Question 24 : Is the provision clear as to its purpose and effect?

Question 25 : Are respondents content with the policies implemented in the article?

Article 7 Transitional provision: annual editions

47. Article 7(1) makes it clear that the provisions in regulation 9 of the SSI Regulations regarding the publication of annual editions do not apply in respect of calendar years prior to 2011. Instead, annual editions for those years are to continue to be prepared and published in accordance with article 9 of the SI Transitional Order (article 7(2) makes provision to that effect). Article 7(3) will ensure that all SSIs made or laid between 1st January 2011 and the commencement date are included in the Annual Edition for calendar year 2011. Finally, article 7(4) requires that the annual edition for calendar year 2011 must include a list of SSIs classified as "Local" (in accordance with article 6 of the SI Transitional Order) that are made or laid prior to the commencement date (6th April 2011). Under the SI Transitional Order, instruments classified as local did not require to be published in terms of that Order. The concept has been deprecated in the new regime, under which all instruments will be published online at least.

Question 26: Is the provision clear as to its purpose and effect?

Question 27: Are respondents content with the policies implemented in the article?

Question 28: Are there any further savings or transitional provisions that you consider necessary?