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PART VI |
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SUPPLEMENTARY |
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Subordinate legislation |
| Subordinate legislation: general. |
100. - (1) Any power to make subordinate legislation conferred by this Act shall, in relation to its exercise by a Minister of the Crown or a member of the Scottish Executive, be exercisable by statutory instrument.
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(2) Subordinate legislation under this Act may make different provision for different purposes.
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(3) Subordinate legislation under this Act may make-
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(a) such supplementary, incidental or consequential provision, and |
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(b) such transitory, transitional or saving provision, |
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as the person making the legislation considers necessary or expedient.
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(4) Subordinate legislation under this Act may make provision for the delegation of functions.
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(5) Subordinate legislation under any of the following provisions may modify any enactment (including this Act except Schedule 5), instrument or other document: sections 59, 84, 92, 94(3)(a) or (b), 95 to 99 and paragraph 7 of Schedule 2.
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(6) Subordinate legislation under sections 29, 54(4), 92 or 95 may make provision having retrospective effect.
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(7) Subordinate legislation under this Act may make provision for sums to be payable out of the Scottish Consolidated Fund or charged on the Fund.
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(8) Subordinate legislation under this Act made by Her Majesty in Council or by a Minister of the Crown may make provision for the payment of sums out of money provided by Parliament or for sums to be charged on and paid out of the Consolidated Fund.
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| Subordinate legislation: procedure. |
101. - (1) A statutory instrument containing subordinate legislation under any of the following provisions shall be an affirmative instrument in relation to both Houses of Parliament: sections 2(1), 11(1), 29, 97, 98(1), 99 and 111(2).
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(2) A statutory instrument containing subordinate legislation under section 64(3) or 75 (other than an order which makes only such provision as is mentioned in section 75(3)) shall be an affirmative instrument in relation to the House of Commons.
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(3) A statutory instrument containing subordinate legislation under section 14, 29 or 99 shall be an affirmative instrument in relation to the Parliament.
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(4) A Minister of the Crown shall not make any subordinate legislation under this Act-
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(a) where the instrument containing the legislation will be an affirmative instrument in relation to both Houses of Parliament unless a draft has been laid before, and approved by resolution of, each House of Parliament, |
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(b) where the instrument containing the legislation will be an affirmative instrument in relation to the House of Commons unless a draft has been laid before, and approved by resolution of, that House, |
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(c) where the instrument containing the legislation will be an affirmative instrument in relation to the Parliament unless a draft has been laid before, and approved by resolution of, the Parliament. |
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(5) No recommendation shall be made to Her Majesty in Council to make any subordinate legislation under this Act-
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(a) where the instrument containing the legislation will be an instrument which is an affirmative instrument in relation to both Houses of Parliament unless a draft has been laid before, and approved by resolution of, each House of Parliament, |
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(b) where the instrument containing the legislation will be an instrument which is an affirmative instrument in relation to the Parliament unless a draft has been laid before, and approved by resolution of, the Parliament. |
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(6) A statutory instrument containing subordinate legislation under any of the following provisions shall, unless it is an affirmative instrument in relation to both Houses of Parliament, be subject to annulment in pursuance of a resolution of either House of Parliament: sections 33, 54(1), (2) and (4), 56, 58 to 60, 83 to 85, 92, 94(3)(a) or (b), 95, 96, 98(2) and 103(8) and paragraph 2 of Schedule 2.
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(7) A statutory instrument containing-
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(a) an order under section 61(5), or |
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(b) an order which makes such provision as is mentioned in section 75(3), |
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shall, unless it is an affirmative instrument in relation to the House of Commons, be subject to annulment in pursuance of a resolution of that House.
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(8) A statutory instrument containing subordinate legislation under any of the following provisions shall, unless it is an affirmative instrument in relation to the Parliament, be subject to annulment in pursuance of a resolution of the Parliament: sections 17(5), 36, 59, 84 and 85 and paragraph 7 of Schedule 2.
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(9) Subsection (6) does not apply to a statutory instrument containing an order merely revoking an order under section 54(1).
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| Subordinate legislation under open powers. |
102. - (1) Any power to make subordinate legislation conferred by this Act shall, if no other provision is made as to the person by whom the power is exercisable, be exercisable by Her Majesty by Order in Council or by a Minister of the Crown by order.
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(2) A power to which subsection (1) applies is referred to below as an open power.
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(3) A statutory instrument containing subordinate legislation under an open power which, apart from this subsection, would be subject to annulment in pursuance of a resolution of either House of Parliament or of the House of Commons or of the Parliament is not so subject if a draft has been laid before and approved by either House or the House of Commons or the Parliament (as the case may be).
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(4) An Order in Council under an open power may revoke, amend or re-enact an order, as well as an Order in Council, under the power; and an order under an open power may revoke, amend or re-enact an Order in Council, as well as an order, under the power.
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(5) A statutory instrument containing an Order in Council or order under an open power which revokes, amends or re-enacts subordinate legislation under an open power may be subject to a different procedure under section 101 or this section from the procedure to which the instrument containing the original legislation was subject.
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| Transfer of property: supplementary. |
103. - (1) This section applies in relation to subordinate legislation under section 56, 58, 60 or 85 or paragraph 2 of Schedule 2.
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(2) Any such subordinate legislation may, in particular, provide for-
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(a) the creation of rights or interests, or the imposition of liabilities or conditions, in relation to property transferred, or rights or interests acquired, under the legislation, |
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(b) any property, liabilities or conditions to be determined under the legislation. |
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(3) Subordinate legislation to which this section applies shall have effect in relation to any property or liabilities to which it applies despite any provision (of whatever nature) which would otherwise prevent, penalise or restrict the transfer of the property or liabilities.
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(4) A right of pre-emption, right of irritancy, right of return or other similar right shall not operate or become exercisable as a result of any transfer of property by virtue of any subordinate legislation to which this section applies.
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(5) Any such right shall have effect in the case of any such transfer as if the transferee were the same person in law as the transferor and as if no transfer of the property had taken place.
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(6) Such compensation as is just shall be paid to any person in respect of any such right which would, apart from subsection (4), have operated in favour of, or become exercisable by, that person but which, in consequence of the operation of that subsection, cannot subsequently operate in his favour or (as the case may be) become exercisable by him.
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(7) Any compensation payable by virtue of subsection (6) shall be paid by the transferor or by the transferee or by both.
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(8) Subordinate legislation under this subsection may provide for the determination of any disputes as to whether and, if so, how much, compensation is payable by virtue of subsection (6) and as to the person to whom or by whom it shall be paid.
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(9) Subsections (3) to (8) apply in relation to the creation of rights or interests, or the doing of anything else, in relation to property as they apply in relation to a transfer of property; and references to the transferor and transferee shall be read accordingly.
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(10) In this section "right of return" means any right under a provision for the return or reversion of property in specified circumstances.
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General modification of enactments |
| Ministers of the Crown. |
104. So far as may be necessary for the purpose or in consequence of the exercise by a member of the Scottish Executive of any function exercisable by virtue of section 49, any pre-commencement enactment or other document shall be read as if references to a Minister of the Crown were or included references to the Scottish Ministers.
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| Subordinate instruments. |
105. - (1) Subsection (2) applies in relation to the exercise by a member of the Scottish Executive by virtue of section 49 of a function to make, confirm or approve subordinate legislation.
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(2) If a pre-commencement enactment makes provision-
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(a) for any instrument or the draft of any instrument made in the exercise of such a function to be laid before Parliament or either House of Parliament, |
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(b) for the annulment or approval of any such instrument or draft by or in pursuance of a resolution of either or both Houses of Parliament, or |
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(c) prohibiting the making of such an instrument without that approval, |
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the provision shall have effect, so far as it relates to the exercise of the function by virtue of section 49, as if any reference in it to Parliament or either House of Parliament were a reference to the Scottish Parliament.
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(3) Subsection (2) shall also apply in relation to the exercise, as regards Scotland and so far as it does not relate to reserved matters, of a function to make, confirm or approve subordinate legislation conferred on a person other than a Minister of the Crown by a pre-commencement enactment.
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(4) If a pre-commencement enactment applies the Statutory Instruments Act 1946 as if a function of the kind mentioned in subsection (3) were exercisable by a Minister of the Crown, that Act shall apply, in relation to the exercise of the function as regards Scotland and so far as it does not relate to reserved matters, as if the function were exercisable by the Scottish Ministers.
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(5) This section does not apply to any retained functions of the Lord Advocate.
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