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Publication - Legislation

Drafting matters!: guidance

Published: 8 Aug 2016
Part of:
Constitution and democracy
ISBN:
9781786523693

Guidance on the drafting of primary legislation.

116 page PDF

2.4MB

116 page PDF

2.4MB

Contents
Drafting matters!: guidance
Part 1: Drafting technique

116 page PDF

2.4MB

Part 1: Drafting technique

Language

Plain language

Where possible, use simple words and short sentences.

Do not use archaic or legalistic words such as 'foregoing', 'notwithstanding', 'said', 'same' or 'here/there-after-by-in-to-with'.

Aim for clarity, including by:

  • devising accessible structures
  • in particular, where possible:
    • giving due prominence to the main proposition
    • breaking up the various propositions in play
    • stating particularities, exceptions or qualifications separately
    • avoiding sections of 10 or more subsections.

Grammar and usage

Observe proper rules of grammar and usage.

To note:

  • use the subjunctive, 'who/whom' and 'may/might' properly and take care to place 'only' correctly
  • split infinitives are unobjectionable so long as the right meaning is given clearly
  • words such as 'and', 'but', 'however', 'despite' and 'accordingly' may be used (sparingly) at the start of sentences where doing so aids sense and readability.

Punctuation

Use punctuation properly.

Rules:

  • try to avoid structures in ordinary text that require using semi-colons (it tends to indicate there are too many propositions in the subsection)
  • use linking commas between subsection paragraphs etc (but it is fine for consistency to use semi-colons when adding to a list in an Act that uses them)
  • if linking semi-colons cannot be avoided, use a comma immediately before any following full-out text
  • end a sentence or completed block of text with a full stop (this includes having one after the quotation marks indicating inserted text even if that text ends with a full stop).

Gender neutrality

Always give effect to the Scottish Government's policy on gender-neutrality.

To note:

  • avoid gender-specific pronouns such as 'he/she' except where essential for sense (for example, where the sheriff has misdirected 'himself or herself')
  • use an alternative word in place of a gender-specific noun (for example, 'convener' or 'chairing member' for 'chairman')
  • treat labels such as 'ombudsman', 'landlord', 'executor' and 'manager' as gender-neutral
  • actual gender-specificity need not be concealed in some exceptional contexts
  • unlike the Interpretation Act 1978, the Interpretation and Legislative Reform (Scotland) Act 2010 (ILRA) does not make the masculine or feminine cover the other.

Foreign words and Latin

Using English
Always use English as far as possible.

Gaelic wording may be necessary in a special context (for example, specifying the body Bòrd na Gàidhlig (see the Gaelic Language (Scotland) Act 2005)).

To note:

  • use the English version of an adopted foreign word
  • foreign expressions (including non-adopted words) do not usually need to be italicised when used.

Latin words

Use Latin words only where there is no suitable translation or another good reason for preferring them.

To note:

  • terms such as 'ex proprio motu' and 'ex officio' are to be avoided (since the ready alternatives 'of its own accord' and 'by reason of holding the office' are more easily understood by the ordinary reader)
  • examples of acceptable Latin are:
    • terms of art (for example, Nobile Officium, solatium, per stirpes, pro loco et tempore, curator ad litem)
    • scientific terminology (for example, for detailed botanical, medical or veterinary classification of plants, diseases or animals)
    • simple and recognised terms (for example, 'vice versa' or 'ante-natal', noting that terms such as these can probably be regarded as having been adopted into English)
  • in general, pluralise normally Latin words that have been adopted into English (for example, 'indexes', 'formulas', 'forums', 'memorandums', 'referendums', 'stadiums'). However, there are some peculiarities:
    • from Latin, 'agenda/agendas' has become the norm
    • the Latin 'data' is often used for the singular too
    • 'crises' shows the adoption of the Greek plural alongside the singular 'crisis'
    • the Greek plural 'criteria' has been adopted but is often used for the singular too.

Particular words and expressions

shall v must
Avoid the legislative 'shall' when imposing an obligation.

Rules:

  • use 'A must' or 'B is/are to' instead
  • 'it is the duty of C' or 'C has the duty' may be appropriate in a rare case
  • which option to use is a matter of context (especially in view of the emphasis required).

To note:

  • 'shall' may be used in textual amendment of an Act that already uses 'shall' nearby if 'must' or equivalent would cause confusion within it (but this is less important in the case of self-contained provisions with little or no read-across to other provisions)
  • 'shall' remains appropriate exceptionally in the high-level declaratory sense (for example, 'There shall be a Scottish Parliament.')

any
Try not to overuse 'any'.

To note:

  • 'a' (or 'an') is often just as good
  • ensure that the correct sense is imparted, for example:
    • for a list, it may be better to say, for example, 'one/any one/at least one of the following' depending on what exactly is to be achieved
    • for the 'each and every' sense, it may be better to use 'all'
    • 'any or all' may be needed in some instances.

To note also:

  • 'any' may be useful:
    • to emphasise that something is of universal application or without qualification (but only where it is really necessary to do so)
    • to refer to both a singular noun and an uncountable one (for example, 'any document or information').

being
Avoid the cumbersome (and archaic) 'being' formula to cover or exclude something.

To note:

  • a typical example of the negative is '(1) This section applies where a person, not being a child, …'
  • find a neater way of setting out the description (for example, use a defined term or narrate separately what is covered or excluded).

deem
Use the formal 'X is deemed to be…' only where it is the best way of conveying the intended sense.

To note:

  • as alternatives:
    • say that 'X is to be regarded/treated as Y'
    • state the two aspects separately
    • use a definition so as to make one include the other
  • do not overstretch the meaning of the main term (and see the similar rule below in relation to definitions).

if & where
Use 'if' and 'where' carefully for sense.

To note:

  • 'where' is useful for stating a case or a set of circumstances in which a later proposition applies
  • 'if' is used for stating a contingency
  • so, although there is little clear-cut distinction:
    • 'where' may be better for cases which inevitably will occur
    • 'if' for conditions which may or may not be satisfied.

To note also:

  • in some cases, it may depend on from whose perspective you are looking at the situation. For example, suppose a regulator has power to serve notices on defaulters:
    • in 'where the regulator serves a notice on a person, the regulator must...', we are speaking of the regulator (who will frequently serve notices)
    • in 'if the regulator serves a notice on a person, the person must...', we are speaking of the person (for whom the notice is not at all inevitable).

Separately, 'if' (or a different formulation) is preferable to 'provided that'.

such
Use the old-fashioned 'such' sparingly.

To note:

  • as alternatives:
    • often 'the/that' or 'a' will do just as well
    • 'any… that' may work instead of 'such… as'
  • it remains of some use for making shorthand reference to a type of thing previously mentioned.

that/the
Try not to overuse 'that' as a demonstrative pronoun.

Note:

  • 'the' will often be sufficiently specific
  • this is especially true when referring back to something previously mentioned with the indefinite article (for example, referring first to 'a body' then 'the body').

Style

Conjunctions

This relates to the use of a linking 'and' and 'or', as a matter of style and for meaning.

between paragraphs

To note:

  • try to use conjunctions sparingly for situations where something truly cumulative or additional or (as the case may be) disjunctive or alternative is intended
  • it will usually suffice to put the appropriate conjunction at the end of the penultimate paragraph and rely on the implication (in the absence of a contrary indication) that each of the preceding paragraphs is separated by the same conjunction
  • if that approach would not provide sufficient certainty, consider spelling out the intended effect in the introductory words (for example, 'either/each/both or at least one/any/all of the following')
  • also consider spelling out the intended effect where putting a single conjunction towards the end of a long list of paragraphs might cause difficulties for the reader
  • in contexts where normal usage would dictate the inclusion of a conjunction in un-paragraphed text (and its inclusion would not disturb the intended meaning), the conjunction should be included
  • often no conjunction is needed in the case of a simple list of things
  • there should not be a mixture of conjunctions, i.e. different conjunctions at the ends of different paragraphs in the same provision.

repeals and amendments

To note:

  • the starting point is the assumption that the conjunction does not form part of the paragraph
  • so, when removing or inserting a paragraph:
    • watch out for stray conjunctions
    • add or reinstate the conjunction where required
  • use something simple when repealing (for example, by including or excluding the 'and/or' (immediately) preceding or following the relevant paragraph).

non-exclusive 'or'

To note:

  • often 'or' falls naturally to be read in an inclusive sense (so a power to impose conditions relating to cats, dogs or rabbits would be read as allowing conditions relating to one or more of these)
  • the sense of 'and/or' may sometimes be conveyed by having no conjunction at all
  • sometimes it will be important to spell out that both of two alternatives is a permissible option (for example, in a penal provision, allowing the imposition of imprisonment or a fine (or both)).

Paragraphing

To note:

  • long un-paragraphed sentences should be avoided
  • clause sandwiches (i.e. sentences consisting of lead-in text, paragraphs and then full-out text) should be avoided if difficulties would be caused for the reader as a result of, for example, the separation of the introductory text from the final text or the gap between the subject of the sentence and its verb.

To note also:

  • full-out text at (a), (b) etc level should be avoided
  • use the (i), (ii) etc level sparingly
  • avoid going to a level lower than (i), (ii) etc
  • never frame provisions with a set of paragraphs, some full-out text and then a further set of paragraphs, for example:
    'If [………...]-
     (a)[text]; and
     (b)[text],
    the person [............]-
     (i)[text]; and
     (ii)[text].'
  • avoid putting too much of the overall weight into (or saying more than one thing in) a full-out, for example:
    'If a person ("A")-
    (a)without another person ("B") consenting, and
    (b)without any reasonable belief that B consents,

either intentionally engages in an activity and for a purpose mentioned in subsection (2) does so in the presence of B or intentionally and for a purpose mentioned in that subsection causes B to be present while a third person engages in such an activity, then A commits an offence, to be known as the offence of forcing a person to be present during a prescribed activity.'

  • a subsection may have more than one sentence (Annex B of the Scottish Parliament Guidance on Public Bills). See:
    • entries for two sentence subsections in the material on Form and content of Scottish Parliament Bills, below, and
    • by way of example, see sections 1 and 9(4) of the Arbitration (Scotland) Act 2010
  • bear in mind that it may be difficult to refer to a subsection's second sentence if later amending it
  • never use the old-fashioned style of proviso (i.e. in an un-numbered free-standing block starting 'Provided that' immediately following the main provision that it qualifies).

Periods of time

Take care when expressing periods of time since the various ways of expressing periods lead to different results.

To note:

  • be alert to which are the start and end days for a period:
    • running from or after a day to another day
    • involving 'within', 'on', 'by' or 'before'
  • consider framing a period by reference instead to its beginning with one day and ending on another.

To note also:

  • be aware of the meaning and application of references to:
    • odays, months or years
    • oworking days or calendar months.

Dates

Rules:

  • specify a date like this: 25 December 2015
  • that is:
    • the 3 elements in that order
    • this also applies when using the short form (but with no further abbreviation (for example, 25/12/15))
    • no st, nd, rd or th with the number (noting that SSI style has these).

Numbers and symbols

numbers generally

Rules:

  • use figures where possible for:
    • sums of money
    • percentages
    • times or periods
    • dates (see above)
    • ages of persons
    • units of measurement
    • mathematical contexts
  • in other situations, use figures where natural or appropriate.

To note:

  • minor points:
    • it is common to spell out 'one' and 'two'
    • something 'first class' is more natural than '1st class'
    • a sentence should normally start with a word
  • avoid mixing words and figures in a single context (except where another rule prevails).

statutory references

Rules:

  • Arabic numbers are to be used, for example, when creating or otherwise mentioning a schedule or Part of an Act
  • use Arabic numbers even if the result is a mixture of styles after inserting or substituting a new schedule or Part 00 (where it otherwise has Roman numbering)
  • the exception is where referring to an existing Part or schedule XX (in Roman numbering) is necessary for clarity, including when amending it.

symbols

Always use:

  • % not 'per cent' with a figure (for example, 10%)
  • for money, express the figure in full (i.e. £1,000 not £1K).

To note:

  • other well-known symbols or abbreviations may be used, for example, standard SI units such as kg or m 2.

Powers to amend amounts etc from time to time

Care should be taken when creating a power to amend a figure in an enactment not to inadvertently limit the power to a single use. Consider the following example:

(1) The Scottish Ministers may charge an applicant £100.
(2) The Scottish Ministers may by regulations amend subsection (1) so as to substitute for the sum "£100" a higher sum.

The question that might arise is whether this power may be exercised more than once. If the first exercise of the power raised the amount charged to £150, subsection (2) cannot operate because the figure of £100 will no longer appear in subsection (1).

The general principle (see section 7 of ILRA) is that a power may be exercised from time to time. But that can be displaced where the contrary intention appears. The formulation above might cause the reader to think that this power is exercisable only once.

If the intention is for such a power to be used on more than one occasion, use a formulation like:

(2) The Scottish Ministers may by regulations amend subsection (1) so as to substitute for the sum for the time being specified there a different sum [(which sum must exceed £100)].

Letter labels (Tag letters ('A'))

A letter label (sometimes called a tag letter) may be useful to label persons or things referred to so as to avoid gender-specificity, wordiness, or confusion (for example, '… a person ('A')… another person ('B')'), noting that:

  • the Sexual Offences (Scotland) Act 2009 employs this technique in many places
  • if a label is used, try to make it reasonably intuitive (for example, P for purchaser, S for seller)
  • it may be neater to do without a label (or definition) by simply:
    • repeating the noun (for example, 'the body'), or
    • relying on the context (for example, 'the applicant').

Form and key components of Bills

Form and content of Scottish Parliament Bills

Proper form

A Bill introduced to the Scottish Parliament must be in 'proper form' (see Rule 9.2.3 of the Scottish Parliament's Standing Orders).

Annex A of the Scottish Parliament's Guidance on Public Bills sets out what the Presiding Officer has determined to be proper form for Bills. It provides as follows
(as at June 2016):

'Structure

The text of a Bill should be set out in numbered sections, supplemented where appropriate by schedules, which should be numbered unless there is only one. Bills may be divided into numbered Parts and Chapters (as may schedules). Each section, schedule, Part and Chapter should have a brief descriptive title. The sections of a Bill (or the paragraphs of a schedule) may also be grouped under italic cross-headings as a guide to the structure of the Bill (or the schedule).

Sections may be divided into numbered subsections, which in turn may be divided into paragraphs, sub-paragraphs etc. Schedules may be similarly divided into numbered paragraphs, sub-paragraphs etc.

Each Bill should be prefaced by a long title beginning "An Act of the Scottish Parliament to …". Preambles to Bills are not permitted.

Style and presentation

Section numbers and titles should appear in bold, with each section title appearing above the text of the section. Units of text smaller than sections and schedule paragraphs should appear as indented blocks of text with straight left margins.

Where it is appropriate for repeals and revocations to be listed in tabular format in a schedule, that schedule should be set out in two columns, the first giving the short title and number of each statute or instrument affected, in chronological order; the second listing the provisions to be repealed or revoked, in the order in which they appear in the statute or instrument.'

Presiding Officer's recommendations as to style and content

The Presiding Officer has also made recommendations on the content of Bills. Annex A of the Scottish Parliament's Guidance on Public Bills reproduces the Presiding Officer's recommendations:

'Style and content

A Bill should be drafted so that, when read with any relevant existing statutory provision, its intended legal effect is clear.

A Bill should include provision for the short title by which the Act may be cited. The long title should set out the principal purposes of the Bill.

The text of a Bill - including both the short and long titles - should be in neutral terms and should not contain material intended to promote or justify the policy behind the Bill, or to explain its effect. The text of the Bill itself should be identical to the text of the Act to which it is intended to give rise and, in particular, should refer to the Bill as "this Act".

Any proposed Bill that has such severe deficiencies in drafting that it could not readily be understood or, if enacted, would be manifestly incapable of consistent legal application, should not be introduced.

A Bill whose principal purpose (or one of whose principal purposes) is to make provision manifestly outside the legislative competence of the Parliament should not be introduced.

Any Bill introduced as a Public Bill should not normally contain provisions that would affect a particular private interest in a manner different from the private interest of other persons or bodies of the same category or class.

Any Bill intended to extend other than to the whole of Scotland should set out that intended extent. Any Bill intended to come into force other than on the day of Royal Assent should either give a date or dates for commencement, or make provision for the appointment of the relevant date or dates. Any Bill containing provisions that would confer power to make subordinate legislation should specify what powers, if any, the Parliament is to have to approve or reject the subordinate legislation (or draft subordinate legislation) laid before it under those provisions.

Any Bill introduced to give effect to a proposal for a Member's Bill (under Rule 9.14) or a Committee Bill (under Rule 9.15) should only contain provisions that are broadly in conformity with the terms of the successful proposal.

Preparation for introduction

The text of a Bill should be submitted to the Clerk in writing or by e-mail in sufficient time before the proposed date of introduction to allow it to be prepared for printing. No Bill may be printed under the authority of the Parliament except by the Clerk. The Clerk will ensure that the printed version of the Bill conforms to the following presentational conventions:

  • The text of Bills (sections, schedules and the long title) should be printed in Times New Roman font, 11.5 point, fully justified.
  • There should be a running header throughout the body of the Bill containing the Bill's short title and page number together with, where appropriate, any Part and Chapter titles or schedule and schedule Part titles.
  • Bills of more than around six sections should be printed with a Contents page or pages.
  • The text of the Bill, including the long title, should be printed with line numbers every fifth line.
  • The Bill should be printed with a back sheet setting out the short and long titles, the name of the member who introduced it, the date of introduction, the names of any supporters and the type of Bill.'

Order of final provisions

'Final provisions' are provisions of a general nature that appear towards the end
of a Bill and deal with, for example, subordinate legislation, interpretation and commencement. They are also frequently referred to as 'general provisions'.

Order

There is no fixed order in which final provisions must appear (as there may be good reasons to adopt a different approach) but the default position is:

  • General provisions about offences (for example, offending by bodies corporate)
  • Regulations
  • Ancillary provision
  • Directions / Guidance
  • Interpretation (see also the material on Definitions)
  • Modifications of enactments / repeals
  • Crown application
  • Index of defined expressions
  • Commencement
  • Short title

As an alternative to an index provision before the short title, consider using a schedule appearing as the last schedule of the Bill - this makes it more accessible to the reader of the hard copy (for example, see schedule 5 to the Protection of Vulnerable Groups (Scotland) Act 2007).

Long title

Long titles are a mandatory component of a Bill (see the material on Form and content) and preface the substantive content of the Bill.

Long titles must be distinguished from preambles, which are not permitted in Scottish Bills.

Long titles do not determine the scope of a Bill for the purpose of the admissibility of amendments. However, as a summary of the principal purposes of the Bill they can be helpful in the consideration of scope. It follows that amending a long title does not change the scope of a Bill.

Content

Generally:

  • the long title must start with the words 'An Act of the Scottish Parliament to'
  • it should set out the Bill's principal purposes; to that end, it may have multiple limbs
  • it should be in neutral terms, i.e.:
    • it should not contain material intended to promote or justify policy or explain the Bill's effect, and
    • it should accurately describe what the Bill does.

Use of 'and for connected purposes'

To note:

  • it is common for long titles to end with the expression 'and for connected purposes'. This covers topics or provisions (short of being principal purposes) which are not obviously caught by any of the previous limbs of the long title
  • it is not always required, for example, if its inclusion is not justified by reference to specific provisions that aren't otherwise covered.

Amending the long title

The long title of a Bill may be amended.

It is appropriate to amend a long title if amendments to the Bill result in the long title being inappropriate or inaccurate (having regard to its requiring to set out the principal purposes of the Bill).

Procedurally, amendments to the long title are always taken last (see Standing Orders, rule 9.7.4) - this is done on the basis that it is necessary to know whether the substantive amendment has been voted in before amendments are made to the long title.

It is uncommon for amendments to be made to the long title of an Act which has been passed, even where the textual amendments being made in a Bill change the content of the Act significantly.

Short title

Rules:

  • The provision in a Bill which provides for the short title of the Bill and the resulting Act is to be in a section of its own and not combined with any other provision (such as Commencement).
  • The section is to be headed 'Short title'.
  • The section is to be the last section in the Bill.
  • The provision is to be worded as follows:

'The short title of this Act is ...'

Example provision

1 Short title
The short title of this Act is [title].

Commencement provisions

The provision in a Bill that provides for the commencement of the resulting Act is to be in a section of its own and not combined with any other provision such as the short title provision.

The section is to be headed 'commencement'.

The section is to be the second last section in the Bill, before the short title section (unless there is a sunsetting provision).

The section is to contain a comprehensive statement of commencement covering all provisions of the Act, including those that are intended to come into force on the day after Royal Assent in accordance with the default rule in section 2 of ILRA.

The wording 'comes into force on' rather than 'commences on' is to be used.

For provisions that are to come into force on the day of Royal Assent, the following wording is to be used:

Sections [x] come into force on the day of Royal Assent.

For provisions that are to come into force on the day after Royal Assent (i.e. where it is intended to replicate the default rule in section 2 of ILRA), the following wording is to be used:

Sections [x] come into force on the day after Royal Assent.

For provisions that are to come into force at the expiry of a specified period (for example, 2 months) after Royal Assent, the following wording is to be used:

Sections [x] come into force at the end of the period of [2 months] beginning with the day of Royal Assent.

For provisions that are to come into force on a specified day, the following wording is to be used:

Sections [x] come into force on [day].

For provisions that are to come into force on a day appointed by commencement regulations, the following wording is to be used:

Sections [x] come into force on such day as the Scottish Ministers may by regulations appoint.

Powers to commence by subordinate legislation are to be exercisable by regulations rather than order (see the material on Forms of subordinate legislation, below). Note that this makes it necessary to provide expressly for different days to be appointed for different purposes, as section 8 of ILRA cannot be relied on in relation to regulations.

Where provisions are to come into force in accordance with provision for which there is no form of wording set out in this Manual, the provision is to be drafted in a way that is, as far as possible, consistent with the forms of wording set out here.

Example provision

1 Commencement

(1)This section [and sections [X] and [Y]] come[s] into force on the day of Royal Assent.
(2)Sections [A] and [B] come into force on the day after Royal Assent.
(3)Sections [C], [D] and [E] come into force at the end of the period of [m] months beginning with the day of Royal Assent.
(4)Sections [F] to [K] come into force on [date].
(5)The other provisions of this Act come into force on such day as the Scottish Ministers may by regulations appoint.
(6)Regulations under this section may-
(a)[include transitional, transitory or saving provision,]
(b)make different provision for different purposes.

Powers to make subordinate legislation

The approach to take in relation to drafting powers to make subordinate legislation will depend on whether the provision is to be a freestanding Bill provision, an amendment to an Act passed after 6 April 2011 or an amendment to an Act passed before that date.

Freestanding Bill provisions and amendment of Acts passed after 6 April 2011

Application
The following applies when drafting a freestanding provision creating a function of the Scottish Ministers to make orders, regulations or rules or a textual amendment inserting such a function into an Act passed on or after 6 April 2011.

See also the material on Form of subordinate legislation, below.

Power to be exercisable by Scottish statutory instrument (SSI)
There is no need to state in the provision or Bill containing the provision that the function is to be exercised by SSI (i.e. section 27 of ILRA should be relied upon with the effect that the function is exercisable by SSI).

In drafting provisions for UK Bills, any general provision that functions are to exercisable by statutory instrument will need to be adjusted so as not to apply to devolved subordinate legislation.

Instrument to be subject to affirmative or negative procedure
If an order, regulations, rules, etc made in the exercise of the function are to be subject to parliamentary procedure, then provision should be included stating that the order, regulations, rules, etc are subject to the negative or affirmative procedure. (If the order, regulations, rules etc are to be subject to a form of parliamentary procedure other than the negative or affirmative procedure, then that procedure will have to be set out in full. In such a case, consideration should also be given as to the application of section 30 of ILRA.)

Example provision

(1) The Scottish Ministers may by regulations specify ...
(2) Regulations under subsection (1) are subject to the affirmative procedure.

Amendment of Acts passed before 6 April 2011

Application
The following applies when drafting a function of the Scottish Ministers to make orders, regulations or rules which is to be inserted into a pre-ILRA-commencement Act (whether an Act of the Scottish Parliament or a Westminster Act).

See also the material on Form of subordinate legislation.

Power to be exercisable by Scottish statutory instrument (SSI)
Section 27 of ILRA should be relied upon with the effect that the function is exercisable by SSI.

Any existing provision to the effect that all subordinate legislation under the pre-commencement Act is to be exercisable by statutory instrument can be treated as impliedly repealed and so can be left alone.

Instrument to be subject to affirmative or negative procedure
The existing procedural provision in the Act should apply (the only change that may be necessary will be to add a reference to the new function in the appropriate place within the provision (for example, to ensure it attracts affirmative procedure)). (If the order, regulations, rules etc are to be subject to a form of parliamentary procedure other than the negative or affirmative procedure and that other procedure is not already provided for in the Act, then the procedure will have to be set out in full. In such a case, consideration should also be given as to the application of section 30 of ILRA.)

The glosses in schedule 3 of ILRA (in conjunction, where appropriate, with the glosses in section 118 of the Scotland Act 1998) should be relied upon to modify the existing procedural provision so it fits with ILRA and so that the new function is subject to the appropriate ILRA procedure.

Exceptions
There will be cases where it is necessary or appropriate to depart from the above, either by amending the existing provision relating to statutory instruments or by making explicit that a particular function is subject to the negative or affirmative procedure.

Example provision

(1)After section 50 of the Representation of the People Act 1983 insert-
"50AForm of ballot papers
The Scottish Ministers may by regulations make provision about the form of ballot papers.".

(2)In section 201 (regulations)-
(a)in subsection (2), after "section" where first occurring insert "50A or",
(b)in subsection (2A), after "section" insert "50A or".

For reference, section 201 of the 1983 Act reads:

(1)Any power conferred by this Act to make regulations shall, except where this Act otherwise provides, be a power exercisable by the Secretary of State and except in the case of regulations under section 29(8) by statutory instrument.

(2)No regulations shall be made under this Act by the Secretary of State otherwise than under section 110(7) above or section 203(4) below unless a draft of the regulations has been laid before and approved by a resolution of each House of Parliament.

(2A)Any regulations under section 110(7) above shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Form of subordinate legislation

Rules:

  • A power in a Bill for the Scottish Ministers to make subordinate legislation exercisable by Scottish statutory instrument should be expressed as a power to make regulations rather than as a power to make an order, rules or any other form of instrument.
  • This applies to powers which are amended into existing Acts of the Scottish Parliament or UK Acts as well as to stand-alone powers in Bills.

Exception:

  • There is an exception for powers to make rules of procedure. A power may be expressed as a power to make rules if it is a power to make procedural rules for a court, tribunal or other body.

Example provisions:

1 Power to modify schedule

The Scottish Ministers may by regulations make such modifications of the list in the schedule as they consider appropriate.

2 Commencement

(1)This Act comes into force on such day as the Scottish Ministers may by regulations appoint.
(2)Different days may be appointed for different purposes.

3 Rule making power

The Scottish Ministers must make rules as to the practice and procedure of the Tribunal.

To note:

  • In the example of a commencement power expressed as a regulation-making power, it is expressly stated that the regulations can appoint different days for different purposes. This did not need to be done when commencement powers were exercisable by order because section 8 (additional powers on commencement by order) of ILRA provides a general gloss to that effect for commencement orders.

Ancillary provision

General

The section in a Bill that provides for the making of ancillary provision by regulations is to be in a section of its own and not combined with any other provision, such as a general regulations section.

The section is to be headed 'Ancillary provision'.

The section is to be placed among the final provisions of the Bill. See the material on Final provisions, above.

The content of the power is determined partly by which of the ancillary limbs are included, partly by whether the power can be used in relation to other regulations made under the Act and partly by whether the power can be used to modify enactments. The content of the power is also a function of the Bill within which it is contained - to a large extent, the Bill determines the areas of law in relation to which ancillary provision can be made.

Ancillary limbs

The ancillary limbs (or those included) are to be in the following form and in the following order:

  • incidental
  • supplementary
  • consequential
  • transitional
  • transitory
  • saving

References to things other than the Act itself

If it is considered necessary or desirable in policy terms to allow ancillary provision to be made in relation to subordinate legislation made under the Act, the provision may include a descriptor that the power may be used for the purposes etc of the Act 'or any provision made under it'.

Power to modify enactments

If the power is to be capable of modifying other legislation, the section (rather than, say, the general regulations section) should say so. Generally, that power should include power to modify the Act itself.

Procedure and relationship with general regulations section

Procedure for regulations under this section should be dealt with in the general regulations section. Where there is no general regulations section, procedure should be dealt with in the ancillary provision section itself.

Example provision:

1 Ancillary provision
(1) The Scottish Ministers may by regulations make any incidental, supplementary, consequential, transitional, transitory or saving provision they consider appropriate for the purposes of, in connection with or for giving full effect to this Act [or any provision made under it].

(2) [Regulations under this section may modify any enactment (including this Act)].

Technicalities

Citation of enactments

Primary legislation
In citing an Act of Parliament or an Act of the Scottish Parliament, a Bill should not include a reference to the chapter number or asp number. This applies to citation in both inserted text and freestanding provision. The exception to this rule is that chapter and asp numbers must be given in repeals schedules as a matter of proper form.

Subordinate legislation
In citing a statutory instrument or a Scottish statutory instrument, a Bill should include reference to the appropriate series number. This should appear immediately following the title of the instrument and be in the form of the following examples (including the punctuation of the abbreviation):

  • The Housing (Northern Ireland) Order 1983 (S.I. 1983/1118)
  • The Public Contracts (Scotland) Regulations 2012 (S.S.I. 2012/88)

European legislation
For EU law, cite as follows:

  • Council Regulation (EEC) No 1462/86
  • Commission Regulation (EU) No 495/2010
  • Regulation (EU) No 439/2010 of the European Parliament and of the Council
  • Council Directive 86/609/EEC or Council Directive 2010/24/EU
  • Directive 2010/13/EU of the European Parliament and of the Council
  • Council Decision 2010/299/EU

Cross-references

'above/below' & 'of this Act'

To note:

  • do not use these words when cross-referring to other provisions
  • exceptions are where elaboration is necessary or desirable:
    • to avoid uncertainty or ambiguity
    • in textual amendment of an Act, for consistency within the Act
  • (but this is less important in the case of provisions with internal cross-references being inserted at the same time).

exceptions and elaborations

To note:

  • try to rely on context where possible to avoid referring back or forward to a numbered provision containing the general rule or category, for example:
    • instead of referring to 'X mentioned in subsection (1)', you could refer to the X by a suitable description or defined label (but do not use 'first-mentioned' to distinguish between two persons or things)
    • instead of saying that 'subsection (1) does not apply to X', you could say positively that X is exempt from the relevant requirement
  • never use the old-fashioned style of proviso (i.e. in an un-numbered free-standing block starting 'Provided that' immediately following the main provision that it qualifies).

subject to & without prejudice to

To note:

  • if possible, do not delay the main proposition by starting a sentence with 'subject to'
  • try to do without 'subject to' altogether by relying where possible on the natural context (but a flag to the conflicting provision may be useful)
  • if useful in order to reconcile competing provisions, try to explain the relationship between them instead of merely saying that 'X is subject to Y'
  • similar considerations arise with 'without prejudice to'.

Definitions

purposes
Use definitions in line with their recognised purposes:

  • expressing key concepts (for example, the types of domestic or protected animal to which animal welfare rules apply)
  • clarifying, adjusting, extending or restricting meaning (for example, a reference to animal includes or excludes fish or bird)
  • drafting convenience (for example, in creating a label such as 'the 2010 Act').

form of words

To note:

  • most definitions take the following form:
    "the 2010 Act" is/means…
  • it is perfectly acceptable in some contexts to narrate things in the following ways:
    'For the purposes of this Part, the regulatory objectives are the objectives of…'
    'In this Part, the references to being responsible for an animal include being in charge of it'.

where to put them

To note:

  • where the defined term is used only once or twice, keep the definition in the same provision (for example, the same section)
  • where the defined term is used more than once, place the definition as prominently as is useful to the reader, for example:
    • if detailed, in its own section
    • if fundamental, possibly even at the start
    • ordinarily, in a definitions section towards the end
  • bear in mind the implications of section 24 of ILRA in relation to the meaning of Act-defined terms when used in subordinate legislation made under the Act.

definitions section or index

To note:

  • a traditional interpretation section often includes:
    • index entries for definitions that have already been given
    • the only definition for a widely-used term
  • a full index of defined expressions may sometimes be helpful to the reader where there is a large number of defined expressions (and, if used, should be placed in the last schedule).

operative material

To note:

  • it is bad practice to include operative material in a definition. For example, it may be permissible to say that 'regulations' means regulations made by the Scottish Ministers but it would be going too far to include the Parliamentary procedure in the definition.

borrowing v stating

To note:

  • if a required term has already been defined in the way desired in another Act, it may be useful to borrow the definition from that Act
  • for example:
    'X has the same meaning as in Y Act (see section 00)'
    'X has the meaning given/is as defined by section 00 of Y Act'

    (but note: 'within the meaning of section 00' is to be avoided)
  • style varies, for example, 'X is to be construed in accordance with Y Act'
  • a set of definitions in the same Act may be attracted at once along the following lines (taking care not to include something unwanted):
    • 'an undefined expression used in this Act (but defined in section X of Y Act) is to be construed in accordance with section X of Y Act'
    • 'an expression used in this Act and in Y Act is to be construed in accordance with section X of that Act'
  • always consider whether it would be better to restate the definition in full
  • try at least to point the reader exactly to the definitional provision
  • there may be logical reasons for opting for a particular approach, for example, for narrow concision or to capture jurisprudence.

relying on natural context

To note:

  • do not define a term artificially if you may safely rely on context to give meaning:
    • for example, a person who is allowed to apply for something may simply be referred to thereafter as 'the applicant'
  • do not clutter provisions with unnecessary explanation:
    • for example, an exception to an offence along the lines of 'A person who does X commits an offence' could be 'But the person does not commit an offence if X is done in accordance with a licence'.
  • here:
    • in each of the preceding examples, it is obvious that it is the same person throughout (without being labelled),
    • in the second example, the first proposition is clearly subject to the second (without needing a cross reference etc).

context otherwise requiring

To note:

  • this sort of wording is often useful to allow the general definition to cede gently to the particular elsewhere
  • take care to:
    • avoid saying 'unless the context otherwise requires' if there is no case where the context would otherwise require
    • consider reconciling the relationship more clearly in such a case.

listing them

To note:

  • in some cases, it may make sense to list definitions in conceptual order (for example, where each definition builds on the previous one)
  • in most cases, definitions should be listed alphabetically
  • definitions involving numbers (for example, 'the 2010 Act') should appear first
  • some drafters dislike the use of a definition only for another definition (unless that is the only way to make the other definition manageable).

punctuation etc

To note:

  • punctuate a definitional list in the usual way, i.e. linking commas, but with no conjunction
  • do not number the entries as for normal paragraphs (for example, (a), (b) etc) but where a definition is split into paragraphs, those paragraphs should be numbered in the usual way.

miscellaneous techniques

To note:

  • instead of prospective definition (say, where a global definition is not worthwhile), for example, 'in this section and [the next section], X means Y', consider repeating the definition
  • avoid labels which are misleading (and, conversely, do not give defined terms a meaning the reader would not expect), for example, 'fingerprints include footprints'
  • a defined term should ideally in itself give the reader some clue as to what it means. For example, 'the 2002 Act' or 'the FOI Act' would be a better label for the Freedom of Information (Scotland) Act 2002 than 'the Principal Act'
  • equally, colourless terms such as 'the relevant person' should where possible be replaced with something more helpful (for example, 'the entitled person')
  • using the same label to denote different things in the same Bill may confuse
  • on the use of letter labels / tag letters, see the section above on plain language.

obvious points

To note:

  • it should be made clear to which portion of the resulting Act the definition will apply
  • in most cases, 'for the purposes of this section,' has no advantage over 'in this section' (but a possible exception is where the definition is in narrative form).

Rely wherever possible on ordinary dictionary meanings or definitions in schedule 1 to ILRA.

Numbering

un-numbered provisions

To note that the usual way of numbering un-numbered provisions is as follows:
 'In section S-
    (a)the existing words from "X" to the end become paragraph (a),
    (b)after that paragraph (as so numbered) there is inserted-
        "(b) [text]."'.

re-using numbers

To note:

  • this relates to re-using for new provisions the numbering of provisions that are being replaced or have been repealed
  • when substituting a complete sub-division of text (for example, a subsection), the numbering of the old provision should generally not be used for the new provision unless (as will frequently be the case) the subject matter of the new provision corresponds to that of the old provision
  • when inserting a complete sub-division of text (for example, a subsection) in a place where a corresponding sub-division has been repealed, the numbering of the repealed provision should generally not be used for the new provision
  • occasionally the drafter may decide that there is good reason to depart from the above approaches (for example, where a repealed provision was repealed many years ago).

adding at beginning of series

To note:

  • this relates to inserting a provision at the beginning of an existing series of provisions (for example, a subsection at the beginning of a section or a schedule before the first schedule)
  • new sections inserted before the first section of an Act are preceded by a letter, starting with A
  • the same approach is taken in relation to all other divisions of text (other than lettered paragraphs)
  • a provision inserted before A1/(A1)/(ai) is ZA1/(ZA1)/(zai)
  • in the case of lettered paragraphs:
    • new paragraphs inserted before paragraph (a) are (za), (zb) etc
    • new paragraphs inserted before (za) are (zza), (zzb) etc
    • new sub-paragraphs inserted before (i) are (zi), (zii) etc.

adding at end of series

To note:

  • this relates to adding a provision at the end of an existing series of provisions of the same kind (for example, a subsection at the end of a section or a schedule at the end of the schedules)
  • the numbering should continue in sequence from the last existing number.

inserting between provisions

To note:

  • this relates to inserting whole provisions between existing provisions:
    • new provisions inserted between 1 and 2 are 1A, 1B etc
    • new provisions inserted between 1A and 1B are 1AA, 1AB etc
    • new provisions inserted between 1 and 1A are 1ZA, 1ZB etc (not 1AA etc)
    • new provisions inserted between 1A and 1AA are 1AZA, 1AZB etc (do not generate a lower level identifier unless you really have to)
    • a new provision between 1AA and 1B is 1AB (not 1AAA)
    • a new provision between 1AA and 1AB is 1AAA
  • the above points apply equally to sub-paragraphs with roman numerals and lettered paragraphs:
    • new sub-paragraphs between sub-paragraphs (i) and (ii) are (ia), (ib)
    • new paragraphs between paragraphs (a) and (b) are (aa), (ab)
    • new paragraphs between paragraphs (a) and (aa) are (aza), (azb).

more than 26 inserted blocks

To note:

  • this relates to the rare occasions when the insertion of sections/paragraphs into an Act would result in a series of more than 26 inserted sections/paragraphs
  • for sections, after Z use Z1, Z2, Z3 etc
  • for paragraphs, after (z) use (z1), (z2), (z3) etc.

Schedules

introduction

To note:

  • to introduce a schedule, do so in short terms as a signpost and to indicate its contents
  • that is:
    • there is no need to say expressly that it has effect (because this is necessarily implied)
    • just say simply what it does (for example, that it makes further provision for X, Y and Z)
  • a schedule falls to be regarded as part of the section introducing it (including for matters of definition or commencement).

To note, in an Act of the Scottish Parliament:

  • reference should be made to a schedule 'of' an Act (not 'to' an Act)
  • a schedule takes a lower case 's' (including in relation to describing or amending a schedule of a UK Act)

except where doing so would introduce ambiguity.

lists of Acts

To note:

  • the usual way of setting out amendments to various Acts is as follows:
    'Criminal Procedure (Scotland) Act 1995
      (1) In the Criminal Procedure (Scotland) Act 1995, after section [X] [...].'
  • minor points:
    • the name of the Act needs to be given in the text of the amendment as well as in the heading
    • prior to January 2015, the practice was for the asp or chapter number to be given in the heading (see the material on Citation of enactments).

Amendments and repeals

Textual amendments

operative words

This relates to the form to be used when making textual amendments by adding, removing or replacing specified words in provisions or specified blocks of provisions.

Rules:

  • use either:
    • the declaratory form 'after/for [the word] "X" there is inserted/substituted…', or
    • the imperative form 'after/for [the word] "X" insert/substitute…'

(noting that the trend seems to be towards the latter (but see the declaratory form of repeals below))

  • where several related amendments are to be made, they may be introduced by 'X is amended as follows'.

specifying blocks of provisions

To note:

  • specify the provision being amended at the appropriate level, for example:
    • 'in/after section 1(1)' or 'subsection (1) of section 1'
    • 'in/after section 1(1)(a)' or 'subsection (1)(a)' or 'paragraph (a) of subsection (1) of section 1'
  • this point:
    • may turn on how precisely the lower level needs to be identified
    • is especially important in relation to repeals.

lead-in and full-out text

To note:

  • where there is lead-in or full-out text before or after, for example, subsection paragraphs:
    • the former may be referred to as the 'opening words/text' (or 'the words/text before paragraph (a)')
    • the latter may be referred to as the 'closing words/text' (or 'the words/text after paragraph (z)')
  • this does not matter much if the relevant word appears only once in the provision.

new numbered blocks

To note:

  • this relates to insertion of a whole new section, subsection or paragraph
  • it is usual to specify that it is to be inserted 'after' another one
  • 'before' can be useful in order to ensure that:
    • a section goes in after a Part or other heading
    • a subsection goes in ahead of the first of the existing subsections
    • a paragraph goes in ahead of the existing paragraphs (including after any lead-in words).

where words occur

To note:

  • to refer to a particular occurrence of a word, the following formulations are acceptable:
    'after/for [the word] "X" in the first place where it occurs/appears'
    'after/for [the word] "X" where first occurring/appearing'
  • for multiple amendments, the following formulations are acceptable:
    'after/for [the word] "X" in each place where it occurs/appears'
    'after/for [the word] "X" wherever it occurs/appears'
  • while either formulation is acceptable, be consistent in the chosen approach throughout a Bill
  • in principle, a single amendment could be used to change a term used throughout a whole Act, but there are probably relatively few cases where this approach will be appropriate (and obviously a global amendment should only be used if the drafter is certain that it achieves the right result in every place).

inserting text at beginning or end

To note:

  • this relates to the insertion of words at the very beginning or end of the text in a provision (but not a new numbered block, as mentioned above)
  • the usual form is to say 'at the beginning/end' rather than to say that X is inserted 'before/after' particular words
  • it is correct to refer to insertion, including of such a numbered block, even where adding something at the end (but some drafters continue to prefer to refer to addition here).

adding to lists

To note:

  • when inserting an entry into a list (for example, defined terms or named bodies), where possible specify the exact entry point by reference to:
  • oexisting numbering (for example, 'after paragraph 00')
  • oan existing entry by description (for example, 'the entry relating to X')
  • refer to 'the appropriate place' only as a last resort (but even then try to guide the insertion, for example, by referring to alphabetical order).

how much text to refer to

To note:

  • the starting point when drafting an insertion is that the insertion point should be referred to by reference to a single identified word (as this is sufficiently accurate if properly described)
  • the starting point when drafting a substitution is that the minimum amount of text should be replaced (so as to avoid suggesting that more than the actual change is being made)
  • however, removal and reinstatement of the odd extra word may sometimes be useful in order to:
    • identify the right place or occurrence without needing to spell out the relevant one in detail (for example, refer to inserting after 'appropriate person' if 'person' appears unqualified several times)
    • deal at once with multiple substitutions in the same provision (especially when little of the existing text is to be left)
    • get rid of previously-glossed words (for example, where it is unclear what version to refer to)
    • add a word previously omitted in error (for example, to substitute 'court is to make' for 'court make')
    • generally, give a better sense of what is being achieved
  • note that, where a cross-reference to a paragraph expressed as 'subsection (1)(a)' is being updated or corrected, the numeric unit is '(1)(a)' not just '(a)'
  • there are some risks in fiddling with extra words, for example:
    • increasing the chance of missing a cross-reference, non-textual modification or an old saving
    • making it more difficult for the reader to work out what the substantive change is.

schedules

  • See the material on Schedules, above, for some peculiarities of amending schedules.

Non-textual amendments

This relates to 'glossing', i.e.:

  • translating a provision so that it reads in a new way for all or some specified purposes (for example, for X read Y), or
  • extending the operation of a provision to a newly stated purpose (for example, X applies also for Y).

Rules:

  • avoid textual amendment form for any modifications when glossing, so:
    • say something like 'as if the references to X were to Y'
    • do not say anything like 'for "X" there is substituted "Y"' (but some drafters still use this in an 'as if' sense)
  • often restatement will be preferable to glossing for the sake of the reader.

Formal headings and framework

Rules:

  • section titles, Part/Chapter titles and italic headings in Acts are amendable by referring to them as follows:
    • the title of section X or Part/Chapter Y
    • the italic heading immediately preceding section 00
  • additionally:
    • a title/heading should be amended only if it has been falsified by amendments to the contents of the provision in question
    • do not amend a title/heading merely because amendments have made it less than ideal.

To note that the style 'the title/heading of X… becomes…' may be preferred to substitution of quoted words so as to:

  • avoid textual amendment form (which is consistent with the approach to numbering un-numbered provisions (see also the material on Numbering, above)
  • replace the whole thing (for neatness given that a title/heading can be seen as standing as a single and complete entity).

To note also:

  • a title/heading should be formatted as it is meant to appear as amended (for example, bold font for a section title)
  • it is common practice to deal with a title/heading after the substantive changes (and to treat it as distinct from the substantive text).

Repeals

general

This relates to the different categories of repeals:

  • substantive, i.e. repeal of provisions that, while not obsolete or spent, are not replaced by positive provisions
  • consequential, i.e. repeal of provisions that are superseded (and thus impliedly repealed) by positive provisions
  • revisory, i.e. repeal of obsolete or spent provisions.

All repeals should be placed where clarity (and the interests of proper Bill debate) dictate they should appear.

To note:

  • in particular:
    • a repeal may be put in a prominent section or a schedule of modifications or repeals
    • different groups of repeals may be dealt with differently (for example, in order to distinguish substantive from minor repeals)
  • all repeals should be stated expressly and not left to implication (but noting that substitution of X for Y does not necessitate a further repeal of the over-written Y).

double repeal

Rule:

  • while a repeals schedule may be useful in some cases, never specify in it anything repealed elsewhere, i.e. avoid double repeal.

operative words

Rules:

  • refer to repeals as such, i.e. not as omissions (noting that section 15 etc ILRA refers to repeals as such)
  • use the declaratory form '[the word/provision] X is repealed' (even though 'repeal [X]' would be consistent with the imperative form of amendments).

But:

  • 'ceases to have effect' may be appropriate:
    • where the repeal is partially by reference to, for example, stated circumstances or categories
    • in the case of sunsetting provisions
  • 'Y is revoked' is technically correct for revocation of subordinate legislation.

effect of repeals - transitional and saving provisions

The relevant interpretation legislation contains default transitional and saving provision in relation to repeals. These provisions should be considered as the starting point. Specific transitional and saving provision should be made if the default provisions do not produce the right result in policy terms or if their effect is not clear in the context.

As to which relevant interpretation code applies:

  • where an Act of the Scottish Parliament (ASP) repeals a provision in an earlier ASP:
    • if the repealing ASP is post-commencement of Part 1 of ILRA, sections 15, 16, 17 and 19 of ILRA would apply
    • if the repealing ASP is pre-commencement of Part 1 of ILRA, the equivalent provisions in the Scotland Act 1998 (Transitory and Transitional Provisions) (Publication and Interpretation etc of Acts of the Scottish Parliament) Order (S.I. 1999/1379) would apply
  • where an ASP repeals provisions in an earlier UK Act, the equivalent provisions in the Interpretation Act 1978 apply (see section 23A of the 1978 Act)
  • where a UK Act repeals provisions in an earlier ASP, the equivalent provisions in the 1978 Act apply.

Specific legal expressions and terms

Referring to a Bill in another Bill

There is no rule about what can and cannot be part of the text of a Bill. (But see the material on Form and Content of Scottish Parliament Bills, above, which details the Presiding Officer's recommendations on style and content.)

A Bill could refer to a non-legislative document, such as a semi-official publication. This can raise issues however and so needs to be done with caution. If the document changes name or ceases to exist, it can render the provision defunct.

Accordingly, there is nothing to stop a Bill ('Bill A') from referring to another Bill ('Bill B') regardless of the stage that Bill B is at.

To note:

  • Scottish Parliament Bills are not generally referred to until they have had their general principles approved following the Stage 1 debate
  • it is generally the practice at Westminster for Bill A not to refer to Bill B unless Bill B has received its Second Reading in both Houses
  • there may be situations where it is appropriate for a Bill to be referred to by another Bill even though the first Bill hasn't got as far as approval of its general principles at Stage 1.

Referring to bodies corporate

Rules:

  • treat a local authority or other body corporate as a singular noun
  • the exception is where it would cause confusion when textually amending an Act that uses the plural.

Referring to the Scottish Ministers (individually and collectively)

Conferring functions on Ministers

Section 52(1) of the Scotland Act 1998 provides that statutory functions may be conferred on the Scottish Ministers by that name. Subsection (3) of the same section goes on to provide that statutory functions of the Scottish Ministers shall be exercisable by any member of the Scottish Government. This underpins collective responsibility.

In Bills, therefore, functions should be conferred on 'the Scottish Ministers'.

Allocation of functions to a particular member of the Scottish Government is an administrative matter for the First Minister.

The phrase 'member of the Scottish Government' includes the First Minister and the Lord Advocate so they could be allocated functions of the Scottish Ministers.

Bills should not attempt to confer statutory functions on a particular member of the Scottish Government (but see below in relation to the First Minister and the Lord Advocate). This is because:

  • such a provision would undermine collective responsibility
  • any such function would not be a function of the Scottish Ministers and how it would fall to be treated in terms of the Scotland Act 1998 is not clear
  • the titles (and portfolios) given to particular members of the Scottish Government are subject to administrative change from time to time and from administration to administration.

Conferring functions on the First Minister and Lord Advocate

The Scotland Act 1998 does contemplate that functions could be conferred specifically on the First Minister or the Lord Advocate (see section 52(2), (5) and (6)).

Such functions would not be 'functions of the Scottish Ministers' and so could not be exercised by any other member of the Scottish Government. Such functions are also not subject to collective responsibility.

So, in appropriate cases, a Bill can confer a function on the First Minister or the Lord Advocate.

Functions may be conferred on the Lord Advocate to reflect his or her role as head of the systems of criminal prosecution and investigation of death, to reflect his or her role as law officer (and legal representative of the Scottish Government), or to reflect a wider role as guardian of the public interest.

Conferral of functions specifically on the First Minister is rare. See, for example, Chapter 5 of Part 2 of the Judiciary and Courts (Scotland) Act 2008 (removal of judges from office) and sections 21 to 25 of the Courts Reform (Scotland) Act 2014.

Referring to Ministers as an entity

Occasionally a Bill may need to refer to the Scottish Ministers as an entity, for example, in a Bill setting out a regulatory regime that is to apply to a defined list of public bodies (for example, the Public Records (Scotland) Act 2011, which sets out provisions regulating the management of records by public bodies, or the Freedom of Information (Scotland) Act 2002, which sets out a scheme regulating the disclosure of information by public bodies).

Here, it would be appropriate to refer simply to 'the Scottish Ministers'.

The references to the Scottish Ministers would not, however, be apt to cover the First Minister or the Lord Advocate in relation to any functions conferred on them specifically. In particular, such a reference would not be apt to cover the Lord Advocate in respect of his or her Crown Office functions.

Consideration would therefore need to be given to whether the First Minister or the Lord Advocate need to be mentioned separately, in addition to the Scottish Ministers. See, for example, section 1(1) of the Judiciary and Courts (Scotland) Act 2008.

Referring to a member of the Scottish Government

Sometimes it may be appropriate in a Bill to refer to 'a member of the Scottish Government'.

This may be appropriate where the Bill is providing for a member of the Scottish Government to be a member of a committee or body. See, for example, paragraph 9 of schedule 9 of the Public Services Reform (Scotland) Act 2010 (committees of Creative Scotland).

It may also be appropriate to refer to a member of the Scottish Government in relation to things done, or in some other context not involving the actual conferral of a function. See, for example, section 7(3) of the Scottish Public Services Ombudsman Act 2002. Such a reference would be apt to cover things done by the First Minister or Lord Advocate as well as by the Scottish Ministers.

Mode of trial

Summary only

  • JP court or sheriff court

Triable summarily or on indictment

  • summary - JP court or sheriff court
  • indictment - sheriff court or High Court
  • 'either-way' offence is not a known term here (but is often used informally)

Indictment only

  • sheriff court or High Court

The mode of trial is normally implied by the terms of the penalty provisions as these will mention summary conviction and/or conviction on indictment

Solemn proceedings covers proceedings on petition as well as on indictment, but the petition is pre-trial.

Referring to 'charge' and 'proceedings'

References to 'charging'

Try to avoid an unqualified reference to charging a person with an offence.

If the provision is about charging by the police, it is often worth saying so explicitly. If the provision is about charging by the prosecutor, there may be a ready alternative (for example, a reference to initiation of criminal proceedings).

This matter is subject to the reforms contained in the Criminal Justice (Scotland) Act 2016 implementing the Carloway Report. Part 1 of that Act includes 'official accusation' as a blanket concept to cover the status of a person who has been charged by the police and/or is subject to criminal proceedings.

References to 'proceedings'

There has historically been a degree of variation in provisions referring to the initiation of proceedings by the prosecutor.

This matter is not yet resolved so consider what is most appropriate (and the possibility of differences between a general expression and something more specific). For reference, some of the specific forms of initiating criminal proceedings are:

  • serving a complaint or indictment
  • in summary cases, citation of the accused or starting proceedings by warrant
  • in solemn cases, proceedings on petition.

Even if using something general, there may be a reason to adopt particular words, for example:

  • initiation, instigation or commencement of proceedings,
  • proceedings being raised or a prosecution being brought or more broadly as to proceedings by the prosecutor or against the person.

Types of court

Sheriffs and sheriff courts

Background

  • Individual sheriffs have jurisdiction in their own right - inferred from section 38(1) of the Courts Reform (Scotland) Act 2014 and, prior to that, section 7 of the Sheriff Courts (Scotland) Act 1971
  • In civil matters, this is in contrast to the Court of Session, which acts as a collegiate body (with the Court as a body having the judicial function - sections 2(4) and (5) of the Court of Session Act 1988)
  • In criminal matters, compare to the High Court - reference may be made to the Court or a judge of it as the context requires
  • Originally there was only one sheriff per sheriffdom (others being sheriff substitutes)
  • There are now a number of sheriffs for a sheriffdom (with a sheriff principal above them)
  • But the judicial function is still that of the sheriff and not of the court as such
  • So the court may be regarded as the forum in which the sheriff's judicial function is exercised (and this is confirmed by section 1(3) of the Courts Reform (Scotland) Act 2014).

Statutory reference

  • Accordingly, legislation often refers to the sheriff (or, where appropriate, more narrowly to the sheriff principal)
  • This is most suitable where the judicial function is key (for example, referring to an application to, or a decision or order of, the sheriff)
  • We may rely on general jurisdictional provision for geographical application of a reference to the sheriff
  • Note that under ILRA as amended by the Courts Reform (Scotland) Act 2014, 'sheriff' is to be construed in accordance with section 134(2) and (3) of the 2014 Act.
    • This means that the term will cover the other various categories of judiciary in the sheriff courts (for example, sheriffs principal, summary sheriffs and part-timers etc) so far as they are exercising the jurisdiction of a sheriff.
    • So even though it may be intended that a certain judicial function conferred on a sheriff should as a matter of practice be exercised by a summary sheriff, it will still be appropriate to draft in terms of conferring the function on the 'sheriff' and rely on section 134 of the 2014 Act, provided that the summary sheriff is otherwise enabled to exercise the sheriff's function in relation to that matter - see sections 44 and 45 of the 2014 Act for the competence of a summary sheriff.

Other points

  • It may be appropriate to refer to the sheriff court where some organisational or procedural (as distinct from jurisdictional) aspect is being dealt with
  • Also, referring to the court may be useful where the sheriff/court is not the only relevant judge/court (say where other courts/similar proceedings are also being referred to (i.e. justice of the peace court, the High Court or the Court of Session))
  • But, generally, there is nothing wrong with mentioning:
    • proceedings (civil and/or criminal) in the sheriff court (rather than before the sheriff),
    • a person who has been convicted in the sheriff court (rather than by the sheriff)

The wording selected will simply depend on the context.

  • Consider section 136(3) of the Courts Reform (Scotland) Act 2014
  • It may be necessary to distinguish between criminal and civil functions (for example, the sheriff exercising criminal/civil jurisdiction).

Justice of the peace courts and relevant judicial officers

Judicial officers

A justice of the peace court may be constituted by:

  • one or more justices of the peace (see section 6(2) of the Criminal Procedure (Scotland) Act 1995), or
  • a summary sheriff (see section 129 of the Courts Reform (Scotland) Act 2014).

Proceedings in justice of the peace courts

The justice of the peace court itself should be seen as the judicial authority (as distinct from the type of judge in it).

There should be no reason to pick out the justice of the peace court constituted in a particular way, as justices of the peace and summary sheriffs have the same sentencing powers when sitting in justice of the peace courts.

Since it is the court itself that has the authority, drafting practice should therefore be to refer to the court rather than the judicial officer constituting the court.

Note the contrast between this and the common way of referring to things done by the sheriff (rather than in the sheriff court).

Although the Criminal Proceedings etc. (Reform) (Scotland) Act 2007 uses the acronym 'JP court', that use is not authorised for all purposes. Therefore, Bills should use the proper name of the court - justice of the peace court (noting lack of capitalisation) - or may use 'JP court' with an interpretative provision defining it to mean a justice of the peace court.

Stipendiary magistrates

Section 128 of the Courts Reform (Scotland) Act 2014 provides for the abolition of the office of stipendiary magistrate (effective 1 April 2016). Accordingly, references to stipendiary magistrates ought to be avoided except in a limited range of circumstances such as when the status of a person as a stipendiary magistrate at a particular point in time may have consequences (for example, Part 1 of schedule 1 to the Law Reform (Miscellaneous Provision) (Scotland) Act 1980 (ineligibility for jury service)).


Contact

Email: Gordon Scobie, gordon.scobie@gov.scot