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

Controls on the use of these powers

11. Because these powers allow for statutory reforms through secondary instead of primary legislation, a strict “super-affirmative” procedure applies to any Orders made using them. This includes the following elements as a minimum:

• Scottish Ministers must lay before the Parliament a copy of the proposed draft order and the proposed explanatory document and send copies of these to any person who is required to be consulted;
• Scottish Ministers must have regard to any representations made within 60 days (excluding periods when the Parliament is dissolved or in recess for more than 4 days) before laying a draft order before Parliament for approval;
• When laying the draft order, Scottish Ministers should also provide Parliament with a further explanatory document which gives details of the consultation which has been undertaken, any representations received and any changes made as a result of those representations; and
• The draft order requires a resolution of Parliament to be approved.

12. Additionally, the 2010 Act provides a recurring sunset clause for the order-making powers. This means that, unless Parliament renews these powers every five years, they are lost forever. As Parliament last renewed these powers in May 2020, they must be renewed by May 2025 if they are to continue.