Schedule 2: Scottish Statutory Instruments: Transitional and Consequential Provision
112.Section 27 will create a free-standing definition of “Scottish statutory instrument”. Prior to section 27 coming into force, an instrument would be classified as an SSI (by virtue of article 4 of the SI Order) only if it was also an SI (within the meaning of section 1 of the Statutory Instruments Act 1946 (c.36)). As section 55 of the Act will revoke the SI Order it is necessary to adapt enactments passed or made before Part 2 comes into force to bring them into line with the new approach taken to the definition of an SSI in the Act. This schedule achieves that.
113.A pre-commencement enactment is defined as meaning an enactment passed or made before Part 2 comes into force. For this purpose, an ASP is taken to have been passed on the date on which the Bill for it was passed by the Parliament – that is before it is enacted by receiving Royal Assent. The reason for this is that such ASPs need to be caught at the earliest possible time when they can no longer be amended by the Parliament because they are likely to refer to the old SI procedures and therefore require the modifications made by this schedule.
114.Paragraph 2 applies to the Scottish Ministers’, the First Minister’s and the Lord Advocate’s functions under pre-commencement enactments of making, confirming and approving orders, regulations and rules. It provides that any enactment which provides for the function to be exercisable by SI ceases to have effect. By virtue of section 27(2)(a) such functions are, by default, exercisable by SSI. If, however, the pre-commencement enactment does not provide for the function to be exercisable by SI it would not have been exercisable by SSI in terms of the SI Order. Accordingly paragraph 2(3) provides that if no provision has been made for the function to be exercisable by SI, it is not to be exercisable by SSI. Any orders, regulations or rules made in exercise of the function will therefore not be caught by the definition of SSI due to the exception to the default rule in section 27(3)(a).
115.Paragraph 3 applies to functions of Her Majesty, which are exercisable within devolved competence, of making Orders in Council under pre-commencement enactments. It provides that section 1 of the 1946 Act ceases to apply to such functions. That section provides that, by default, every Order in Council is to be an SI. By virtue of section 27(2)(c) Orders in Council within devolved competence will, by default, be SSIs instead. Paragraph 3(3) provides that if any enactment disapplies section 1 of the 1946 Act (that is, provides for a particular function of making an Order in Council not to be exercisable by SI), the function is not to be exercisable by SSI. Any Order in Council made in exercise of such a function will therefore not be caught by the definition of SSI in the Act due to the exception to the default rule in section 27(3)(a).
116.Paragraph 4 applies to the High Court of Justiciary’s functions of making acts of adjournal and to the Court of Session’s functions of making acts of sederunt under pre-commencement enactments. If the pre-commencement enactment conferring the function provides that it is not to be exercisable by SI, paragraph 4(2) provides for it not to be exercisable by SSI.
117.Paragraph 5 applies to other subordinate legislation making functions under pre-commencement enactments. Specifically, it applies to the Scottish Ministers’, the First Minister’s and the Lord Advocate’s functions of making, confirming and approving subordinate legislation other than orders, rules and regulations. It also applies to the subordinate legislation making functions of devolved Scottish public authorities (as defined by paragraph 1(1)) and to functions of making, confirming or approving devolved subordinate legislation conferred on anyone other than a Minister of the Crown. Section 27 provides for such functions to be exercisable by SSI only if an enactment provides for them to be exercisable by SSI. Paragraph 5(2) makes provision to that effect in relation to any function which a pre-commencement enactment states is exercisable by SI.