When the negative procedure should have been affirmative.
There’s been a lovely little knot of parliamentary process under discussion recently. It popped up again on Thursday at the Standards, Procedures and Public Appointments Committee’s meeting. Perhaps it’s more one for the boffins.
The Government has inadvertently laid a Scottish Statutory Instrument using the negative procedure when the power that it has allowed it to lay it only under the affirmative procedure. Being laid under the incorrect procedure the Government considers that the order is legally incompetent and since its provisions do not, in law, exist in the first place, it is impossible to revoke
However, we are left with a situation in which, in parliamentary terms, there has been no disposal of that particular instrument. It has appeared in the Business Bulletin with nothing subsequently saying that it is no longer before Parliament and that it will not come into effect after 40 days have elapsed, as it would under the normal procedure.