In a previous blog, I wrote about how to reference Statutory Instruments made in the UK Parliament at Westminster, which can apply to England, Scotland, Wales and Northern Ireland. This time I will be discussing Statutory Instruments (SI) that specifically affect Scotland. There are two ways this can happen; firstly, an SI made at Westminster can apply to Scotland; and secondly, an SI made in the Scottish Parliament will naturally affect Scotland.
Before I get to how to reference these SIs, I will first review the devolution of power to Scottish Parliament and what SIs are. Feel free to skip this bit if you’re already confident on these topics!
Scottish Parliament
The Scottish Parliament meets in the Holyrood area of Edinburgh and meets all year round except for a recess over the summer and a few other shorter recesses. Details of these can be found on the Scottish Parliament website.
The Scottish Parliament was created by the Scotland Act 1998, an Act of the UK Parliament. Law in Scotland can come from either the Scottish Parliament or the UK Parliament, which can make law that applies to all of England, Wales, Scotland and Northern Ireland or any combination of the four. Pieces of legislation made by the Scottish Parliament are referred to as Acts of Scottish Parliament and are actually laws, unlike the measures made in the Welsh Assembly, which are not.
However, there are still limited areas on which Scottish Parliament can make legislation, for example, it can make laws on housing issues, but not housing benefit, as this is a social security matter. These remain under the jurisdiction of the UK Parliament.
What are Scottish Statutory Instruments?
Like UK Parliament, the Scottish Parliament can create Statutory Instruments, which are referred to as Scottish Statutory Instruments (SSIs). SSIs are a form of law and have multiple purposes. They are not actually made by the Scottish Parliament; instead, they are made on behalf of the Scottish Parliament by Scottish Ministers or another responsible authority, such as the Lord President.
SSIs allow law to be made more quickly and with less scrutiny, but with greater expertise or attention from the Ministers creating it. However, they still have the same legal status as primary legislation like Acts of Scottish Parliament, but the legislation delegating the power to make them is actually a form of secondary legislation, also called subordinate or delegated legislation.
SSIs come in the form of regulations, orders, rules or schemes. The most common purpose of SSIs is to set out the technical or administrative details needed for Acts of Scottish Parliament to function. Nevertheless, SSIs can be used in almost any area, including criminal penalties, implementing EU law and giving procedural laws.
Another notable point about SSIs is that they cannot be amended by the Scottish Parliament during the scrutiny process, although it can vote at certain times on whether the SSI should become law.
However, the actual content of SSIs can be limited by Parliament in the initial legislation which allows them to be made, which is known as the enabling power or parent Act. SSIs are also limited by the Scotland Act 1998, which sets out rules for all of the Scottish Parliament. If an SSI exceeds these limitations it is said to be acting in ultra vires (beyond the powers) and can be declared unlawful.
What are the Different Types of Scottish Statutory Instruments?
The Interpretation and Legislative Reform (Scotland) Act 2010 gives three different levels of scrutiny, giving the different types of SSI. The first level is laid-only. After an SSI is made it is simply laid before the Scottish Parliament for scrutiny but cannot be rejected (unless they are acting in ultra vires).
The next type is negative SSIs. These are made and brought into force, but the Scottish Parliament can annul them by a vote in the Chamber. These are the most common type of SSI as they strike a good balance between scrutiny and keeping the time-saving advantages that SSIs are supposed to bring.
The final type is affirmative SSIs, which can be sub-divided in three types. The first of these is just the simple affirmative SSI, which must be approved by a vote in the Chamber before they are brought into force.
The next sub-type is the provisional affirmative SSI, which are used to deal with emergency situations. They can be made and brought into force without a vote but will then require one to remain in force.
Finally, there are super-affirmative SSIs, which are subject to pre-legislative scrutiny, such as consultation on a draft. They also need to pass a vote in the Chamber before they come into force.
How Do You Reference Scottish Statutory Instruments?
The method for referencing SSIs is very similar to that for SIs. As a reminder, the format of SIs is:
Name | Year, | SI Number
For example:
Penalties for Disorderly Behaviour (Amendment of Minimum Age) Order 2004, SI 2004/3166.
The format for SSIs is:
Name | Year, | SSI Number
For example:
Breeding of Dogs (Licensing Records) (Scotland) Regulations 1999, SSI 1999/176.
As you can see, the only difference is that the SI number is instead replaced with an SSI number to show that the reference is to a Scottish SI.
So, there are only three parts to an SSI reference, the first being the name of the SSI as it is given. These can be abbreviated, which you can read more about in my blog OSCOLA Referencing Summary for Statutory Instruments. The next part is the year, which is the year of the SSI and is followed by a comma.
Finally, you need to put in the SSI number after the comma and add a full stop if the reference is in a footnote.
Acts of Sederunt and Acts of Adjournal are referenced in the same way as for other SIs and SSIs, with SI or SSI being used as suitable. An SI made at Westminster that applies to Scotland should simply be cited as a normal SI.
Wrapping Up
SIs and SSIs are both quite simple to cite, especially if you learn the method for both at the same time. Next time we will be looking at how to reference SIs from Wales, so stop by then!
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