Scottish statutory instrument

Type of law in Scotland

A Scottish statutory instrument (SSI; Ionnsramaid Reachdail na h Alba) is subordinate legislation made by the Scottish Ministers, as well as subordinate legislation made by public bodies using powers provided to be exercisable by Scottish statutory instrument. SSIs are the main form of subordinate legislation in Scotland, being used by default to exercise powers delegated to the Scottish Ministers, the Lord Advocate, the High Court of Justiciary, the Court of Session, and the King in Council. The Interpretation and Legislative Reform (Scotland) Act 2010 defines what a Scottish statutory instrument is. Before Scottish devolution, subordinate legislation applying only to Scotland was published as a subseries of the larger UK statutory instrument (SI) series. This subseries is now used for SIs which deal with reserved matters in relation to Scotland.

An SSI is made, with some exceptions, by a body exercising executive governmental functions – that is, a body responsible for putting the law into effect ("executing" the law) rather than a body responsible for defining the law (the legislature) or a body responsible for interpreting the law (the judicature). As a result, an SSI will provide specific details on how an Act should be put into effect and may amend existing Acts or SSIs to reflect that the law has changed. In other cases, an SSI may repeal parts of the law which had before been impliedly repealed. For example, section 15 of the Charities and Trustee Investment (Scotland) Act 2005 allows the Scottish Ministers to make regulations setting out how charities refer to themselves in documents, and the Charities References in Documents (Scotland) Regulations 2007 sets out in regulation 2 how a charity must refer to itself, and in regulation 4 on which documents a charity must make such references. In other cases, an SSI may be used to bring into force parts of the law through so called "commencement orders." In these cases, sections of Acts may have no legal force until brought into force, which may allow time for accommodating preparations to be made. One example of a commencement order is the Bankruptcy (Scotland) Act 2016 (Commencement) Regulations 2016, which brought almost the entirety of the Bankruptcy (Scotland) Act 2016 into force. Another example, although not involving SSIs, is the Health and Safety at Work etc. Act 1974, which applies to Scotland and makes provisions relating to ensuring safety in the workplace. This Act covers a wide remit, and so UK SIs have been issued under the same sections to cover different industries. Specifically, some sections of this Act which allow making SIs were used to make both the Control of Substances Hazardous to Health Regulations 2002 and the Control of Vibration at Work Regulations 2005 even though those regulations are not related.

An SSI may only be made where an Act of the Scottish Parliament or Act of the UK Parliament gives that power. Such an Act is known variously as an enabling or parent Act, and sets out the scope of the power to make SSIs, and the associated procedure for exercising that power. An SSI may only make provision within the scope of its enabling power, and any provision outside that scope is invalid.

An SSI is "made" when it is signed by a person or body who has the power to make that SSI – typically the Scottish Ministers. This terminology appears to be inherited from the UK Parliament, as the Scottish Parliament has not provided official guidance specifically defining the term.

The "laying" of an SSI is the putting of that SSI before the Scottish Parliament for the Parliament's consideration. The phrase comes from laying before the house, which originally referred to the placing of a (physical) document on the table in the assembly chamber. All SSIs are required to be laid before Parliament in the manner specified by the Parliament's standing orders, although not laying an SSI before Parliament does not invalidate it. The date an SSI is laid is also generally the date from which parliamentary scrutiny may begin. Examples of these other procedures are laid only procedure, where an SSI is laid before Parliament but cannot be rejected; and super affirmative procedure, where a draft SSI must be subject to a formal consultation or other requirement before it can be made. That is not to say that orders are not used, as certain older Acts specify powers to create subordinate legislation as powers to create orders. A common example is the Road Traffic Regulation Act 1984 which, among other powers, provides that an authority "may by order restrict or temporarily prohibit use of [a] road." In 2015, approximately 160 orders were made under this Act, representing around 36% of all SSIs in 2015.

An Order in Council is legislation made by the sovereign to exercise executive power, although in reality Orders are made by the Privy Council and approved by the sovereign. An Order in Council is primary legislation when made under the royal prerogative, and subordinate legislation if made under an Act of the Scottish Parliament. When an Order in Council is used to exercise a power granted by an Act, such Orders are made as SSIs. Orders in Council have been used to adjust how the Scottish Parliament works – for example, to set who is disqualified from being a Member of the Scottish Parliament – and, in the UK SI series, to devolve powers to the Scottish Parliament.

An Order of Council is a form of legislation made by the Lords of the Privy Council (in practice, ministers of the Crown). Orders of Council differ from Orders in Council in that, while Orders in Council are orders made by the Queen meeting with the Privy Council, Orders of Council are made by the Privy Council in its own right and without requiring the Queen's approval. The preamble of all Orders of Council states that the order was made at a meeting of the council held in Whitehall; however, in practice they are all approved through correspondence, and no meeting is actually held. Orders of Council that are Scottish Statutory Instruments generally relate to higher education, for example under the powers in the Further and Higher Education (Scotland) Act 1992 to make provision for the constitution of governing bodies or regulate the granting of degrees.

The Court of Session (the supreme civil court of Scotland) makes Acts of Sederunt to regulate its proceedings, the proceedings of tribunals, and the proceedings of Scotland's sheriff courts when they hear civil matters, including the Sheriff Appeal Court. The majority of the current power of the Court of Session to regulate is derived from the Courts Reform (Scotland) Act 2014, although some other Acts do also empower the Court. The original power of the Court of Session to regulate stems from the College of Justice Act 1540, which provided the court with the "power to make such acts, statutes and ordinance as they shall think expedient for ordering of processes and the hasty expedition of justice." Prior to this, following the 1532 establishment of the Court, the power to regulate was held by the Parliament of Scotland.

The recommended ways of citing an SSI are by its title – for example, The Letting Agent Registration (Scotland) Regulations 2016 – or by its year and number (e. g. S. S. I. 2016/432).

Divisions of a Scottish Statutory Instrument Division Numbering Name Orders Regulations Rules 1st 1, 2, 3, Article Regulation Rule 2nd (1), (2), (3), Paragraph 3rd (a), (b), (c), Sub paragraph

The parts an SSI is divided into have different names depending on the type of SSI and, although no official guidance has been published by the Scottish Government or Scottish Parliament, the names of the divisions appear to be identical to the names used for UK SIs. The divisions shown in the table are for the main body matter of the SSI, and the Orders column includes Orders in Council. It is also common, regardless of the traditional name of the division, to refer to a division generally as a "clause," such as in "interpretation clause" (which would provide information on how the instrument is to be interpreted). In addition to these numbered (or lettered) paragraphs, an SSI can contain unnumbered paragraphs. As with Acts of the Scottish Parliament, SSIs can have schedules annexed to them. Schedules to SSIs are divided in the same manner as Acts.