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 Responses

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:

FORMAL GOVERNMENT RESPONSE TO CONSULTATION

Consultation overview

1. The consultation period ran from 21 September to 7 December 2010. The Government received 7 responses to the consultation paper. Respondents were as follows:

Iain Jamieson (individual)
Professor Colin Reid (individual)
The Lord President's Private Office
Faculty of Advocates
The Law Society of Scotland
North Lanarkshire Council
Food Standards Agency in Scotland

2. The majority of respondent comments were concerned with the detail of the SSI Regulations. A number of technical questions were raised on specific policy initiatives. However respondents were generally supportive of the overall policy approach and implementation proposals set out in the consultation paper.

The Scottish Statutory Instrument Regulations 2011

Context

3. Section 42 of the 2010 Act provides that the Scottish Ministers must, by regulations, make provision for the publication, numbering and citation of SSIs. The principal change from the framework of provision contained in the existing SSI transitional order is the move to give increased prominence to accessing SSIs by electronic means to better reflect modern practice. Substantive comments from respondents in relation to each of the proposed SSI Regulations are set out below.

Regulation 3 - Numbering of Instruments

4. The consultation paper proposed to discontinue any exceptions to the numbering rule as currently provided for in the SI Transitional Order. Excepted SSIs, in practice those SSIs that, although made, remain subject to parliamentary approval, are currently numbered only once the responsible authority confirms that they are to come into force.

5. Respondents appeared to welcome a more straightforward approach to the numbering of made instruments. One respondent argued that the status quo could be maintained given that Parliament still has a scrutiny role, but the fact remains that an instrument becomes part of the statute book at the point at which it is made, regardless of whether it remains subject to any parliamentary procedure. The Government has therefore removed subsections (3) and (4) of draft regulation 3 from the laid version of the SSI Regulations.

6. It was queried whether draft SSIs should be numbered. That is not current practice. A draft instrument is not yet an SSI and could not be numbered in the SSI series without causing confusion. Neither are there any strong advantages in assigning draft instruments a separate numbering series. What matters instead is that the relationship between the draft and final instrument is apparent. This is best done by reference to the name of the instrument and by effective presentation of information in published records. Furthermore, there is no evidence of confusion arising under current arrangements. Accordingly the Government does not consider that draft instruments should be numbered.

Regulation 4 - Citation of Instruments

7. One respondent argued that Regulation 4(1)(a) was unnecessary given that it would merely duplicate citation provision on the face of individual SSIs. The respondent noted the absence of equivalent provision in respect of Acts of the Scottish Parliament. The difference between an ASP and an SSI in this regard is that an ASP's short title invariably comes into force on Royal Assent. Thus from the point at which an ASP receives Royal Assent there is provision on the statute book providing for it to be cited by its short title. The citation provision of an SSI by contrast seldom comes into force on the day the SSI is made.

8. It was suggested that there was no problem about referring to an instrument by its title before it comes into force, with one respondent citing instances whereby an instrument is revoked (by name) prior to that point. The Government is not aware of any authoritative reference on this matter and therefore considers draft regulation 4(1)(a) as necessary to put the position beyond doubt. The argument was put that the draft regulation would not achieve its policy effect given the lack of any reference to an SSI's coming into force. The Government highlights that draft Regulation 4(1)(a) bears to apply to any instrument which has been made, regardless of whether it is in force or not.

9. A respondent queried both the wording of, and rationale for, draft regulation 4(2). The Government is content that the wording is necessary and not in need of remodelling. Although it is rare for an instrument's citation provision to be changed by another enactment, it has happened. To take a recent example, S.I. 2009/876 was renamed by S.I. 2010/2317, Schedule 8, paragraph 8. More historically (and in a specifically Scottish context), S.I. 1996/2447 was renamed by S.I. 1997/726.

10. It was suggested that inconsistency existed in drafting style as between draft regulations 4 and 5. However, the style adopted in each instance reflects the purpose of the respective provisions. Draft regulation 4(1)(b) is concerned with how an instrument may be cited in general terms, whereas draft regulation 5(1)(b) is concerned with references as they are to appear on an instrument's face.

Regulation 5 - Form of Instruments

11. One respondent queried whether the drafting of regulation 5 should be more explicit given their view that it was implicit that the provision pertained only to made instruments. The draft provision clearly refers to 'an instrument' and draft regulation 2 defines 'instrument' to mean 'Scottish statutory instrument'. Even recognition that a draft instrument may, in some sense, be 'an instrument' it is certainly not a Scottish statutory instrument until it is made. Further, the Queen's Printer for Scotland's ( QPS's) statutory duty to publish is clearly expressed in regulations 6 and 7 to arise when the QPS receives the certified copy of the instrument. The Government does not consider any further qualification to be necessary.

12. It was suggested that draft regulation 5(1)(d) should take account of those cases where the actual coming into force date is not specified, but dictated rather by the coming into force date of another instrument. Drafting of the provision in question follows that contained in the Transitional SI Order and the Government is not aware of any practical difficulties with those arrangements. In that context, the Government is content with the integrity of the provision as currently drafted. Comments as to the clarity of draft regulation 5(2) are addressed in the same manner as explained at paragraph 11 above.

13. One respondent proposed that the QPS should be required to include Subject Headings as part of the SSI. Subject Headings have consistently been included without a statutory requirement to do so. The Government is not aware of this approach having caused any operational problems and similarly cannot envisage any circumstance whereby any party would see an advantage in omitting Subject Headings, a key reference tool for all stakeholders and central to the QPS' own handling and recording of instruments. In any event, the QPS both controls and oversees the Subject Heading framework. It would not be appropriate for the SSI Regulations to seek to instruct the QPS on the use of Subject Headings. The Government is not therefore minded to make any change in this area.

Regulation 6 - Publishing copies of instruments on a website

14. One respondent queried whether provision should be included in Regulation 6 to require the QPS to publish draft instruments (and associated material). The QPS currently does so on an informal basis, with responsible authorities meeting the relevant publication costs. However, there is a coherent argument in favour of imposing a statutory requirement, in order to guard against a move (on the part of any interested party) to discontinue the current practice. For one, formalising the publication of draft instruments ensures their accessibility to the public.

Second, it makes transparent the link between the draft SSI and the SSI as made.

15. The Government has discussed the proposal with the QPS who is wholly supportive of the policy, which it sees as entirely consistent with its aims to maximise public accessibility to legislation. Accordingly, the Government has included provision in the laid version of the SSI Regulations to place a statutory requirement upon the QPS to publish draft instruments online, to send copies to the National Library of Scotland and to provide print copies on request.

16. It was also proposed that QPS should be required to publish correction slips online. Correction slips currently are published online and the Government sees no reason to formalise that requirement.

Regulation 7 - Printing copies of instruments for the National Library of Scotland ( NLS)

17. One respondent raised a number of points concerning the provision of print copies of SSIs to the NLS. Firstly, whether draft regulation 7 should clarify that print copies should only be sent to the NLS after they are numbered. The broader framework of the draft SSI Regulations make it implicit that an SSI would not be printed and sent to the National Library for Scotland until it is numbered. Secondly, why all made instruments should not be printed and archived. The Faculty of Advocates Library has already confirmed that it did not wish to routinely receive copies of SSIs which are exempted from laying and not printed (public access to exempted SSIs is discussed at paragraph 20 below). Lastly, why the QPS, as opposed to a responsible authority, should bear the cost of providing print copies to the NLS. The cost of providing print copies to the NLS, and other legal deposit libraries, is borne by QPS in consequence of the Legal Deposit Libraries Act 2003. The SSI Regulations simply reflect that earlier policy principle, such an approach being deemed appropriate to highlight the cost responsibility on the face of the Regulations.

18. Another respondent raised two additional points - firstly the number of print copies sent to libraries, suggesting that more than one print copy should be archived and, secondly, whether the Faculty Library (or the NLS) could be given a power in the regulations to require the printing of an SSI not otherwise printed as a result of the exception under section 30(4) of the 2010 Act.

19. On the former, it should be noted that the original signed SSI is sent to the Keeper of the Records for preservation. Regulation 7, in its triggering the printing of one copy of each SSI, in turn triggers the requirements of the 2003 Act to send a copy to all of the deposit libraries. Consequently there will always be the original document plus 6 hard copies held in different deposit libraries. The Government considers such measures are sufficient in terms of satisfying any concerns over the adequacy of procedures for SSI archiving.

20. The Government understands that the request for the Faculty Library (or the NLS) to require print copies of exempted instruments seeks to address instances where a public interest arises (at any given point in time) but where a responsible authority did not originally see it as being necessary to require (under Regulation 7(2) of the Regulations) the QPS to print an SSI exempt from laying in the Parliament. In fact, print copies of such instruments will always (in accordance with Regulation 12 of the laid version of the SSI Regulations) be available on request, albeit a charge may be incurred on the discretion of the QPS. Moreover, section 41(1) of the Act, read in conjunction with Regulation 6 of the SSI Regulations, require the QPS to publish all made instruments online. It follows that, in the event of a public interest arising in respect of the detail of any exempted instrument, the detail of such instruments would be easily accessible (either in print form on request, or online). Accordingly, the Government saw no reason for the Regulations to include any further requirement to print exempted instruments.

21. One respondent suggested that the Presiding Officer ( PO) should retain the power to require QPS to print exempted instruments, although they did recognise that the QPS will be required to publish all SSIs online. Another argued against any exemption from printing, querying the ability for anyone to access an archive copy of an exempted instrument.

22. The draft SSI Regulations did not replicate provision in the SI Transitional Order conferring on the PO a power to request that instruments not laid in the Parliament be printed. Whilst the origins of this power (believed to be in place since around 1946 and inherited on devolution) are uncertain, it may have sought to ensure that the legislature could initiate the publication (printing) of such instruments and thereby make them accessible in the public domain. Without such a power, where a responsible authority had previously classified an instrument as local in character, only that responsible authority would have the power to require the QPS to publish (print) the SSI in question.

23. The 2010 Act framework dispenses entirely with the system of classifying SSIs as local or general instruments. It also recognises the accessibility of legislation online - the SSI regulations require the QPS to publish all made instruments online. On that basis, not laid instruments will be accessible online, even when they are not required (by virtue of regulation 7(2) of the SSI regulations) to be printed. However, the Government took the view that a decision on a matter relating to the powers of the PO should ultimately be informed by the views of the Parliament.

24. The Parliament recognised that classification is no longer a feature of the new statutory framework. However, it regards the basis of the PO power as providing a safeguard should there ever be a dispute as to whether an instrument should be printed. It further highlights that the Parliament is responsible for representing the people of Scotland and that the PO therefore has a role in representing these interests and, in this case, the Parliament's constitutional role for ensuring public access to and preservation of the law.

25. The Government therefore decided to replicate provision in the SI Transitional Order which confers power on the Presiding Officer to require the printing of exempt orders in the laid version of the SSI Regulations.

26. The obligation for QPS to publish and print SSIs "as soon as practicable" was noted by one respondent who highlighted that equivalent provision in the SI Transitional order uses the terminology "as soon as possible". There was concern over the possibility that this change might encourage delays in the publication of instruments. The Government does not believe there to be any significant difference between "practicable" and "possible" in this particular context. In practice, the QPS endeavours to publish SSIs as soon as it can reasonably do so - ideally within 24 hours and certainly no later than 72 hours after receipt. Moreover, in drafting the provision, the term "practicable" was adopted because that is the word used in section 41(2) of the 2010 Act. That section provides that the QPS must publish instruments "as soon as practicable" and in accordance with the Regulations. It would be inappropriate, and potentially confusing, for the Regulations to use different terminology to that found in the original Act.

Regulation 9 - Annual Editions of instruments

27. It was queried why the Annual Edition should not record all published instruments, arguing its worth if not representing a complete record. Another respondent, whilst of the general view that all SSIs should be printed, saw no reason for instruments that are not printed to subsequently be included in the Annual Edition. The key point here is that the Regulations look to continue the general policy principle of the Annual Edition serving as a compendium record of all printedSSIs. The overarching policy principle of moving to electronic publication ensures that all SSIs are easily accessible in that format online.

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

28. One respondent contended that the evidential status of SSIs required further consideration. More specifically, they considered:

(a) that it would be desirable to provide for the evidential status of SSIs printed in the Annual Editions, as well as the SSI List;

(b) that a policy which would require it to be established before the Court that a SSI is a true copy of the SSI would be most unsatisfactory. They consider that It is not at all clear how this would be done, and in most cases requiring this to be proved would be wholly unnecessary. Rather, the appropriate policy seems to be that which is implicit in the 1868 and 1995 Acts - namely, of treating the production of a copy purporting to have been printed by the QPS as prima facie evidence of the instrument. This, in effect, puts the onus on the party who challenges the apparent copy of the instrument, which seems to be right as a matter of general policy.

(c) that if that general approach were to be taken, consideration should be given to providing that a document, purporting to be a printout from the website on which the QPS publishes instruments, be treated as prima facie evidence of the instrument.

29. Another commented as follows:

"Understand how regulation 10 can be said to have the effect of changing the evidential status of SSI Lists which are published electronically under draft regulation 8 (or printouts of such electronically published SSI Lists). Electronically published SSI Lists would not fall within the scope of draft regulation 10(1)(a) (whereas they do currently fall within the scope of article 8(2) of the 1999 SI Order). However, paragraph 37 of the consultation paper indicates that regulation 10 "does not require Courts to treat published (printed) copies of the SSI Lists as true copies". I am somewhat confused by the use of the word "printed" in this context. The effect of draft regulation 10(1)(a) seems to be that a copy of an SSI List printed and sold under draft regulation 11 is to continue to be received by Courts in evidence as a true copy. I assume therefore that the reference to "(printed)" copies at paragraph 37 of the consultation paper relates to printouts of SSI Lists which are published on the Queen's Printer website.

"The consultation paper provides no indication as to the reasons for the change in the evidential status of published SSI Lists. I am therefore not immediately clear whether draft regulation 10 is intended to address any particular mischief or practical difficulty. In particular, I am not immediately clear why the regulation dealing with evidential status now requires to treat printed copies under regulation 11 and published copies under regulation 8 differently in this respect."

30. One respondent argued that printed copies of SSIs, be they within Annual Editions or specifically requested under regulation 11, should have evidential status. They suggested that this would follow past precedent as under articles 8(2) and 9(3) of the SI Transitional order and avoid 'undermining the authority and status of the QPS'. The Government points out that current provision does not give evidential status to printed copies of SSIs. It is rather that those entries confirm the number, short title and date on which instruments were published by QPS. The Government note also that the evidential status of instruments published by, or under the authority of the QPS is derived from section 2 of the Documentary Evidence Act 1868.

31. In light of the consultation responses the Government has looked again at the issues, in order to be sure that the evidential status of SSIs will be understood clearly by all concerned, and in a manner which the Courts themselves regard as appropriate. As a result, the Government has concluded that evidential status will be given to copies of the List which have actually been printed by the QPS (in response to requests made under Regulation 12) but the Courts will not be obliged to accept any other version of the SSI List.

Regulation 11 - Printing and Selling

32. One respondent commented that provision for the printing and selling of SSIs by the QPS was wholly permissive and should be further qualified by an assessment of public interest against consideration of alternative means of access. They also considered that there should be a limitation on the "reasonable charge" to avoid excessive costs standing in the way of access to a printed version of the law.

33. The Government is of the view that the QPS can be relied upon to exercise its functions in a responsible, proportionate and reasonable manner. In the unlikely event that QPS were to impose an unreasonable charge, or act in a fashion that restricted access to printed copies of instruments, it would be open to the Government to bring forward further regulations to remedy any such problems.

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

Context

34. The Government considers transitional provision to be necessary to explain how SSIs that are made, or laid in draft, before 6 April 2011 are to be dealt with after that date by both the 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. The Government considers that it will be simpler and clearer for all concerned if instruments which start their parliamentary scrutiny under the existing regime complete it under that regime.

35. One respondent argued for article 3(1) to be extended more widely so as to exclude pre-commencement enactments from the requirements of sections 42-47 of the Act and the SSI Regulations, viewing this as a cleaner and clearer approach. Another also made reference to the complexity of the transitional arrangements.

36. The Government agrees that the highest priority must be to ensure that the key practitioners (the Government, Parliament and the QPS) can exercise their functions throughout the transitional period with the minimum scope for confusion. A clear perception and understanding of the practical rules that are to apply at any given point during that period is essential to achieving that end.

37. The Government considers it necessary and expedient to make transitional and saving provision to ensure a smooth migration from the old frameworks to the new, and has noted the concerns expressed by respondents as to the clarity of the provision as consulted upon. It has therefore redrafted the relevant provision to offer a clearer transitional framework.

38. A further respondent did suggest that the Government, Parliament and QPS consider the nomination of 'Transition Tsars' to oversee the arrangements and ensure that no unforeseen consequences occur. The Government would again highlight the short term nature of these arrangements and their impact only upon an expert client group. It is considered that key stakeholders are best placed to undertake the proposed oversight function.

Consequential Modification Orders

39. The consultation paper included drafts of 3 orders, the purpose of which would be to make consequential amendments to the Transport and Works

(S) Act 2007; the Harbours Act 1964; and the Roads (S) Act 1984 to reflect the removal by the 2010 Act of the 'made affirmative' scrutiny procedure for SSIs.

40. No substantive comments were received from consultees in respect of these orders.

Other consequential provision

Parliamentary resolutions

41. Paragraphs 59-61 of the consultation paper dealt with the question of what further provision might be required in consequence of the commencement of Part 2 of the 2010 Act. The paper highlighted in particular the impact upon statutory frameworks for parliamentary resolutions that are made under the Interests of Members of the Scottish Parliament Act 2006 and the Scottish Parliamentary Pensions Act 2009. Consequential provision would therefore be required to align those statutory frameworks to the revised framework introduced by the 2010 Act.

42. The Government has made the necessary consequential provision in a separate Consequential Provisions Order. That SSI amends statutory references in the relevant Acts to ensure that the existing policy framework under the 2006 and 2009 Acts is maintained post commencement in full of the 2010 Act.

43. Only one respondent offered any suggestions as to other statutory frameworks that would require consequential amendment in light of the commencement of Part 2 of the Act, as follows:

Public Records (Scotland) Act 1937, section 12 Pensions Appeal Tribunals Act 1943, paragraph 5 of the Schedule

"Section 12 of the Public Records (Scotland) Act 1937 (c.43) provides that the Lord Justice General or the Lord President may make regulations regarding the disposal of court records which have been transmitted to the Keeper of the Registers. This function can be distinguished from a function of the High Court to make an act of adjournal or the Court of Session to make an act of sederunt under an enactment. It seems to me that, if such regulations are to be dealt with under Part 2 of the 2010 Act, an enactment would require to provide that such a function is to be exercised by the Lord President or Lord Justice General by Scottish statutory instrument (under section 27(2)(f) of the 2010 Act).

"A similar requirement appears to arise in relation to the Lord President's powers to make rules relating to the Pensions Appeal Tribunal for Scotland under paragraph 5 of the Schedule to the Pensions Appeal Tribunals Act 1943 (c.39); the exercise of the Lord President's functions under this provision currently appears to fall within the scope of regulation 4(1)(b) of the 1999 SI Order (and sets of amending Rules were made as Scottish statutory instruments in 2001, 2005 and 2009).

"The Disposal of Court Records (Scotland) Regulations 1990 ( SI 1990/106) are made under section 12 of the 1937 Act at present. Section 12(2) of the 1937 Act provides for a procedure whereby any regulations made under the section are not to be made until a draft has lain for a period of 30 days before both Houses of the Westminster Parliament. Section 2(2) also provides for a procedure akin to annulment during that 30-day period. Under articles 3(3) and 12 of the 1999 SI Order, the Lord Justice General/Lord President is currently able make further regulations under this power. If this power were to be exercised today, the regulations would require to be laid before the Scottish Parliament for a period of 40 days and would be subject to a procedure akin to annulment.

"Subject to savings provisions, the 1999 SI Order will be swept away when Part 2 of the 2010 Act comes into force. If consequential provision is to be made that regulations made by the Lord Justice General/Lord President under section 12(2) of the 1937 Act are to be made by Scottish statutory instrument, it does not seem to me that any of the paragraphs set out at Schedule 3 to the 2010 Act would be applicable in these circumstances (neither paragraph 3 nor paragraph 7 of Schedule 3 appears to provide the necessary link back to the procedure set out at section 12 of the 1937 Act). It therefore seems to me that some additional modifying provision may well be required in relation to powers exercised under this provision.

Sheriff Courts (Scotland) Act 1971, section 12E

"This provision provides for the application of a modified version of article 10 of the 1999 SI Order in relation to a statutory instrument which is made to remove a sheriff principal or sheriff. It provides that such a statutory instrument is to be subject to annulment in pursuance of a resolution of the Scottish Parliament. The modification is that the instrument requires to be laid not less than 40 days (rather than the usual 21 days) before it is due to come into force.

"The effect of paragraph 2 of Schedule 3 to the 2010 Act appears to be that section 12E of the 1971 Act should be read as providing for the instrument to be subject to the negative procedure as described at section 28 of the 2010 Act. In the absence of any further consequential provision, this would mean that any instrument made under section 12E of the 1971 Act would require to be laid at least 28 days before it came into force.

"Section 12E of the 1971 Act was inserted by section 40 of the Judiciary and Courts (Scotland) Act 2008. If the modification is to be retained (and I presume that there were policy reasons for including the modification in the 2008 Act), it seems to me that a consequential amendment will also be required in relation to this provision."

44. The Government is giving close consideration to these suggestions and will look to promote any necessary consequentials in the context of the implementation project.

Scottish Government
22 February 2011