Public Services Reform (Scotland) Act 2010: Extension of Part 2 order making powers

Background - What these powers allow

5. The major benefit of these order-making powers is to provide the Scottish Government and Scottish Parliament with the flexibility to make changes quickly, as and when opportunities arise, through secondary legislation (also described as a Scottish Statutory Instrument, SSI or Order) without the need to take forward primary legislation (Bills which can become Acts of the Scottish Parliament).

6. Because these powers allow changes to be made through secondary legislation, in circumstances where primary legislation would otherwise be required, their use is restricted to two situations.

7. The first situation is so public bodies can undertake their functions in more effective, efficient and/or economical ways. Section 14 of the 2010 Act provides this power for one or more of the public bodies listed in schedule 5 to the 2010 Act. Most public bodies are listed in that schedule.

8. Examples of how an order can be made under this section include to reconfigure the way certain functions are delivered, such as by modifying, transferring or providing for the delegation of a function. An order can also be made under this section to amend the constitution of most bodies listed in schedule 5, or dissolve a body in certain circumstances. An order may also create a new person, body or office-holder to undertake particular functions.

9. The second situation in which the powers can be used is to reduce or remove burdens resulting from legislation. Section 17 of the 2010 Act provides this power. It can be applied to burdens on any public sector or private sector organisation.

10. For the purposes of this section, a “burden” can include: a financial cost; an administrative inconvenience; an obstacle to best regulatory practice; an obstacle to efficiency, productivity, or profitability; or a sanction, criminal or otherwise, which affects the bodies or bodies concerned.