2.2 Affirmative or negative procedure

Affirmative and negative procedures are important in scrutinising delegated legislation. Delegated legislation is a major source of law making. In the Scottish Parliament more than 300 pieces of delegated legislation are passed each year. Delegated legislation does not follow the same process as Bills so there is little public consultation although there may be consultation with experts in the particular area.

• The affirmative procedure means that delegated legislation is laid before Parliament in draft form. Approval of that draft by Parliament is needed before it comes into force (becomes law).
• The negative procedure means that the delegated legislation is signed by the Minister and then laid (go before) Parliament. Usually they come into force 28 days after they are laid.

The scope of delegated legislation varies considerably, from technical and procedural to much more wide-ranging powers.

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Figure 4 Infographic Scottish Parliament Delegated Powers and Law Reform Committee

Watch the following video which summarises the difference between primary and subordinate legislation and explores the work of the Delegated Powers and Law Reform Committee.

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Transcript

NARRATOR:

When a change to the law is proposed, it is normally known as a ‘Bill’. This is primary legislation. Primary legislation that has completed its journey of consultation, debate and scrutiny, and is passed by the Parliament becomes an Act.

Often, primary legislation grants power to the Scottish Ministers to introduce changes to the law without the need for new primary legislation or to fill in the detail of primary legislation. This is known as secondary legislation.

Secondary legislation generally sets out the technical details or administrative matters necessary for primary legislation to operate. It can include any subject matter, from establishing criminal penalties or licencing schemes to providing procedural rules.

It is the job of the Parliament, with advice from the delegated powers and Law Reform Committee, to decide whether or not to grant power to the Scottish Ministers to make secondary legislation. If that power is granted, it is then the job of the delegated powers and Law Reform Committee and the relevant subject committee to check and report on the secondary legislation when it comes forward.

[MUSIC PLAYING]

End transcript

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Figure 5 shows the volume of Scottish Statutory Instruments from 1999 to mid-2017. A significant number are passed each year with the highest number in 2007 (at 582).

Take a moment and reflect on how many Acts of the Scottish Parliament there have been (you considered these in Week 3). Statutory instruments far outnumber them.