Secondary legislation lets the Scottish Government (or in some cases the Lord President of the Court of Session and Lord Justice General of Scotland, who is the most senior judge in Scotland) make changes to laws. These changes are known as secondary legislation.
Secondary legislation can:
Secondary legislation can also be called:
Most Bills have plans to make secondary legislation in them. Secondary legislation has the same legal status as Bills but does not take as long for the Parliament to look at. Usually secondary legislation takes around 40 days to get through Parliament.
Secondary legislation, also called SSIs, can cover any subject area the Parliament looks at, like justice, the environment or education.
Because some SSIs need more parliamentary scrutiny than others, SSIs can follow different procedures. The different procedures are:
Primary legislation is an Act that has been passed by the Parliament.
Secondary legislation can make small changes to an Act. The Act must say what changes can be made to it by secondary legislation and what process the secondary legislation will follow.
Secondary legislation can also create new rules or add more details to an Act.
When MSPs are looking at the original Bill, they will look at what changes can be made by secondary legislation and whether they agree this is the right way to proceed.
Secondary legislation can:
When secondary legislation is sent to the Parliament (also known as “laid before the Parliament’) it is looked at by at least 1 committee but often 2.
The first committee is the Delegated Powers and Law Reform (DPLR) Committee. It looks at every SSI to:
The DPLR Committee will report to the lead committee to let it know if it is happy with the SSI.
The lead committee looks at what the SSI will actually do. For example, if it is about education, it will go to the Education, Children and Young People Committee. That committee will check to see whether the policy changes being made are the correct ones.
Affirmative SSIs are looked at by the Delegated Powers and Law Reform (DPLR) Committee and the lead committee (usually the committee who examined the Bill the SSI relates to).
The lead committee can take evidence on the SSI. It will also invite the Scottish Government minister responsible for the SSI to a committee meeting. The committee can ask the minister and any officials questions about the SSI. Both the DPLR and the lead committee will write reports.
At the meeting, the minister proposes (“moves”) a motion to say the lead committee recommends the SSI should be approved and the committee votes. The lead committee then writes a report to the Parliament with its recommendation. The lead committee has 40 days from when the SSI was laid before the Parliament to publish its report.
If the committee agrees the SSI should be approved, the whole of the Parliament then gets a chance to vote on it in the Chamber.
If the lead committee decides the SSI should not be approved, the Parliamentary Bureau decides whether MSPs should vote on it in the Chamber.
Some SSIs can go straight to a debate and vote in the Chamber, if the Parliament agrees.
Negative SSIs are the most common type. They are looked at by the Delegated Powers and Law Reform Committee and the lead committee (usually the committee who examined the Bill the SSI relates to).
The lead committee has 40 days to look at the SSI. If it agrees with what the SSI does, it does not have to do anything more and the SSI will pass. But if it disagrees, it can recommend the Parliament cancel (“annul”) the SSI. The Parliament then votes to decide.
Negative SSIs must be laid for at least 28 days before they can come into force. If the Scottish Government needs to have the SSI in force sooner than this, it must write to the Presiding Officer explaining why.
Sometimes a negative SSI can be in force before the Parliament has looked at it. The Parliament can then annul the SSI and it would not be in force any longer. Scottish Government ministers could then:
No-procedure SSIs are also called laid-only SSIs. They are often used to say when parts of the new Act should become law (when a bill is passed, it doesn’t always become law straight away).
No-procedure SSIs are looked at by the Delegated Powers and Law Reform Committee who write a report about them. They can also be looked at by the lead committee but they don’t have to be.
The Parliament cannot stop a no-procedure SSI. Committees can write a report to the Parliament with their concerns or raise issues with the Scottish Government, for example by:
Provisional affirmative SSIs are not very common. They are usually used for emergency situations because they can make changes straight away before Parliament has looked at the SSI.
The SSI must get Parliament’s approval within 28 days for the changes it makes to remain law.
Super-affirmative SSIs are used when the changes they would make need a lot of consideration by the Parliament.
Super-affirmative SSIs are looked at by the Parliament before they are made. The Scottish Government sends the Delegated Powers and Law Reform (DPLR) Committee a draft of the SSI and any more information it has. The DPLR Committee will then look at the SSI. A lead committee can also look at it, but it does not have to. They can also hear from people who are interested in the SSI.
The Parliament usually has 60 or 90 days to look at what the draft SSI does. The DPLR Committee, and usually the lead committee, then write a report to the Scottish Government.
After the Scottish Government has considered any suggestions, it introduces the SSI as a normal affirmative SSI.
Statutory Instruments (SIs) are a type of secondary legislation made by the UK Government which cover all parts of the UK, including Scotland. When this happens the Scottish Government and the Scottish Parliament have an agreement, or “protocol”, explaining how they will work together.
The Scottish Government writes to a Scottish Parliament committee explaining if it plans to agree with the SI being made in the UK Parliament, and why. The Scottish Government makes a recommendation to say if they think the UK Government should or should not make the SI in the UK Parliament for Scotland. The committee then decides if it agrees with the Scottish Government’s decision.
If the committee does not agree with the Scottish Government’s decision, the Scottish Government can either: