2.1 Subordinate legislation
Primary legislation of the Scottish Parliament often grants powers to individual Ministers or executive bodies to create law. Their powers to make laws have limitations. They are only able to act within the powers and the framework set by the primary legislation. If they fail to do so then that law may be challenged by the Parliament or Committee.
As you have learnt it is quite common for the detail of an Act (for example concerning timing, implementation or the mechanism for updating) to be filled out by subordinate legislation.
The Scottish Parliament has a role in scrutinising subordinate legislation and has the power to approve or reject it. It is extremely rare, however, for the Scottish Parliament to have any scope to amend or change subordinate legislation.
Most subordinate legislation takes the form of statutory instruments. These are considered by the Delegated Powers and Law Reform Committee and at least one other Scottish Parliament committee. However, there are occasions when on a motion of the Parliamentary Bureau, the Parliament may decide that an instrument or draft instrument will go directly to the Parliamentary Chamber for consideration.
The parent Act will generally specify the type of parliamentary procedure that subordinate legislation must follow. They will follow either the negative procedure or the affirmative procedure.
Activity 1 Children and Young People (Scotland) Act 2014
Read this section from the Children and Young People (Scotland) Act 2014. What powers does this Act give to Ministers?
Section 99(1) of the Children and Young People (Scotland) Act 2014 outlines the powers of Ministers. Where they have been given the authority to make orders under the Act then section 99(1) means Scottish Ministers are empowered ‘to make different provision for different purposes’ (Section 99(1)(a)). They also have further power to make ‘such supplementary, incidental, consequential, transitional, transitory or saving provision as they consider appropriate’ (Section 99(1)(b)). Note the wording: ‘as they consider appropriate’.
Section 99 delegates power to the Minister who is then able to use that power without further consulting the Parliament. You will return to consider this later.
You may have noted the mention of affirmative and negative procedures.