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 4
Consequential Modification Orders

General approach

48. The provisions in Part 2 of the Act will impact on instruments made under the Transport and Works (Scotland) Act 2007 (" TAWS"). Instruments made under that Act which are categorised as being of "national significance" are currently subject to a relatively unusual parliamentary scrutiny procedure whereby the instrument is made by the responsible authority but can only come into force if approved by parliamentary resolution. TAWS amended the Harbours Act 1964 ("the Harbours Act") and the Roads (Scotland) Act 1984 ("the Roads Act") to apply the same procedure to instruments of national significance made under powers conferred under those Acts too. Once Part 2 of the Act comes into force, such instruments will be subject to the affirmative procedure as provided for in section 29 of the Act. Some changes require to be made to TAWS, the Harbours Act and the Roads Act to facilitate this conversion. This will enable them to fit with the new affirmative procedure provided for in section 29 of the Act.

Transport and Works (Scotland) Act 2007 Modification Order 2011 ("the Transport Order")

49. This Order textually amends TAWS to ensure that its terminology is consistent with the affirmative procedure rather than the made affirmative procedure which presently applies to instruments of national significance under that Act.

50. Articles 3 to 6 amend TAWS to ensure it will work with the affirmative procedure.

51. Article 7 makes it clear that the affirmative procedure does not apply to instruments that have already been made before 6th April 2011. This is necessary because, as mentioned, under the current regime instruments are made and must then be approved by resolution of the Parliament. Such instruments could not simply be subjected to the affirmative procedure, which requires instruments to be scrutinised in draft by the Parliament before they are made. Article 7 is therefore necessary to ensure that Parliament can continue its scrutiny of any such instrument.

52. Article 8 is a deeming provision intended to deal with a transitional issue. Section 13(7) of TAWS presently provides that the made affirmative procedure only applies to an instrument revoking, amending or re-enacting an earlier instrument that was subject to the made affirmative procedure in certain circumstances. As it is to be amended by article 5, section 13(7) will instead refer to the revoking, amending or re-enacting of an instrument which was subject to the affirmative procedure. But this means than an instrument revoking, amending or re-enacting an instrument which was subject to the made affirmative procedure will escape parliamentary scrutiny. To avoid that result, article 8 provides that instruments revoking, amending or re-enacting an instrument which was subject to the made affirmative procedure are to be treated as if they instead revoke, amend or re-enact an instrument subject to the affirmative procedure.

Question 29: Are these provisions clear, necessary, and do they achieve the intended effect?

Question 30: Do respondents consider further or different provisions are necessary? If so what are they?

The Harbours Act 1964 Modification (Scotland) Order 2011 ("the Harbours Order")

53. This Order adopts the same approach to modification of the Harbours Act as the Transport Order takes in relation to TAWS. The provisions in the Harbours Act dealing with developments of national significance are amended so that orders relating to these developments will in future be subject to affirmative procedure.

54. Articles 4 and 5 amend the Harbours Act to ensure that its provisions work with the affirmative procedure.

55. Articles 6 and 7 serve the equivalent function to articles 7 and 8 respectively of the Transport Order.

Question 31: Are these provisions clear, necessary, and do they achieve the intended effect?

Question 32: Do respondents consider further or different provisions are necessary? If so what are they?

Roads (Scotland) Act 1984 Modification Order 2011 ("the Roads Order")

56. This Order adopts the same approach to modification of the Roads Act as the Transport Order takes in relation to TAWS. The provisions in the Roads Act dealing with developments of national significance are amended so that instruments relating to such developments will in future be subject to the affirmative procedure.

57. Articles 3 to 6 amend the Roads Act to ensure that its provisions work with the affirmative procedure.

58. Articles 7 and 8 serve the equivalent function to articles 7 and 8 respectively of the Transport Order.

Question 33: Are these provisions clear, necessary, and do they achieve the intended effect?

Question 34: Do respondents consider further or different provisions are necessary? If so what are they?