Overview of the Act Part 6: Remedial Regulations Section 40: Remedial regulations: procedure
141.Section 40 sets out the normal process for making remedial regulations under section 39. An alternative process is set out by section 41 for urgent situations.
142.Section 40 provides that remedial regulations are normally subject to parliamentary scrutiny by way of the affirmative procedure, which is set out in section 29 of the Interpretation and Legislative Reform (Scotland) Act 2010. It means that the regulations cannot be made unless the Scottish Parliament approves a draft of them.
143.Section 40 provides for additional procedural requirements, beyond those of the affirmative procedure, to apply to remedial regulations. Subsection (2) requires the Scottish Ministers to carry out a consultation process before it lays draft remedial regulations before the Parliament to seek its approval under the affirmative procedure. The Scottish Ministers are to invite the public to make comments on the draft remedial regulations within a 60-day comment period. A day is not to be counted if the Parliament is dissolved (which is to say that the day falls during the election period between one session of the Parliament ending and the new one beginning following the election). Nor is a day to be counted if it is a day within a period of 5 or more days during which the Parliament is in recess (details of when the Parliament is in recess can be found on its website, its recesses typically coincide with school holidays in Scotland).
144.Only once they have carried out the consultation required by subsection (2) may the Scottish Ministers seek the Parliament’s approval of draft remedial regulations under the affirmative procedure. Subsection (4) requires that, when it does so, the Scottish Ministers must lay before the Parliament alongside the draft regulations a document summarising the comments received during the consultation period and, if the draft regulations being laid before the Parliament differ from the draft of the regulations consulted on, a statement of how they differ and why.