Part III: Consequential modification of sections 53 and 54
Paragraphs 12 to 14 clarify the effect of Part I upon the transfer of Ministerial functions. In general, functions under enactments which are protected from modification by Part I cannot transfer to the Scottish Ministers under section 53.
Paragraph 12 ensures that this is the case by providing that a function does not transfer to the Scottish Ministers if the Schedule would prevent an ASP from transferring the function to someone else.
Paragraph 13(1) provides for some exceptions to this. An exception is made for any function conferred by the European Communities Act 1972. That Act has been protected from modification because it is not intended that the Scottish Parliament should be able to alter the mechanisms under which EC law is given effect. The present paragraph ensures that that does not prevent the Ministerial powers and duties under the 1972 Act from transferring where they would otherwise be exercisable within devolved competence.
For similar reasons, exceptions are made for most functions conferred by the Human Rights Act and the law on reserved matters so far as contained in an enactment. For example, section 12(1) of the Official Secrets Act 1989 empowers a Minister to prescribe the persons who are to be Crown servants for the purposes of that Act. The 1989 Act is part of the law on reserved matters, but the Scottish Ministers are able to exercise the function for a devolved purpose(1), for instance to change the name of a person who may already have been prescribed as a Crown servant. Paragraph 13(3) ensures that an ASP or subordinate legislation made under an ASP may provide for the transfer of such functions to somebody else.
Paragraph 14 provides that subordinate legislation under section 105 (the power to make consequential amendments) may provide that functions under enactments or prerogative instruments modified by such subordinate legislation are not transferred by virtue of section 53.
The function has also been executively devolved to the Scottish Ministers by SI 1999/1750.
