Small rise in number of Scottish statutory instruments considered this year

Bill Bowman MSP

SSIs are a form of law made by Scottish ministers or other responsible authorities, usually in the form of regulations, orders, rules, or schemes, which set out technical details or administrative matters necessary for primary legislation to operate.

For this year’s annual report, the committee considered 255 instruments, compared with 243 it considered in 2018-19.

Of the 255 instruments, 243 were laid by the Scottish government and 12 by the Lord President’s Private Office, on behalf of the Court of Session and High Court of Justiciary, to update court rules in Scotland.

The COVID-19 pandemic accounted for 23 of the 243 Scottish government instruments, 9.5 per cent of the total.

The urgency required in addressing the public health emergency was the reason given for many of the breaches of the Parliament’s “28-day rule”, which provides that where an SSI is subject to the negative procedure it must be laid at least 28 days before the instrument comes into force.

The pandemic was also one of the reasons for the substantially increased use of “made affirmative” procedure, which means that an instrument may come into force as soon as it is made but will lapse after 28 days unless the Parliament approves it.

Meanwhile, the volume of Brexit-related instruments has declined in the last year.

There has been a number of instruments that have passed through the Parliament to address deficiencies in legislation that would arise on the UK’s withdrawal from the European Union, though the volume has significantly reduced compared with the last reporting period.

In 2019-20, 15 SSIs were considered under an SSI protocol created to assist committees in prioritising their scrutiny of these instruments, down from 31 instruments in the previous reporting period.

Under a separate protocol for considering UK statutory instruments stemming from the European Union (Withdrawal) Act 2018, which require the consent of the Scottish Ministers because they relate to devolved areas, the Scottish Parliament considered 34 consent notifications, down from 93 in the previous reporting period.

Bill Bowman MSP, DPLR committee convener, said: “The COVID-19 pandemic has been a significant aspect of the Committee’s work this year as we considered both primary and secondary legislation aimed at addressing the public health emergency and its consequences. This is something the Committee will continue to monitor in the next parliamentary year.

“The committee also notes the reduction in the volume of EU Exit legislation in this reporting year and is interested in exploring what the volume of legislation in this area might be as we approach the end of the Brexit transition period.

“The DPLR committee’s role is key in scrutinising the powers being delegated to Ministers by the Parliament. During lockdown the committee has had to balance the need for secondary legislation to be implemented quickly with the need for proper scrutiny. This it has done and continues to do as the pandemic has continued. The coming year will be challenging but the committee will continue to fulfil its obligations to the Parliament.”