SCHEDULE 8, Paragraph 31: Requirements of Writing (Scotland) Act 1995
Purpose and Effect
This paragraph makes amendments to the Requirements of Writing (Scotland) Act 1995 so as to apply the provisions of that Act to the execution of documents for the purposes of Scots law by a member of the Scottish Executive in the same way as they apply to the execution of documents by Ministers of the Crown.
General
The Requirements of Writing (Scotland) Act 1995 makes provision with regard to the execution of documents and their formal validity for the purposes of Scots law.
Paragraph 31 amends section 12(1) of the 1995 Act (interpretation) to extend the definition of “Minister” to include a member of the Scottish Executive and the definition of “officer” to include a member of staff of the Scottish Ministers or the Lord Advocate. Section 55(4) provides that a document is validly executed by the Scottish Ministers if it is executed by any member of the Scottish Executive.
Details of Provisions
Paragraph 31 provides that in section 12(1) of the Requirements of Writing (Scotland) Act 1995 (interpretation):
in the definition of “Minister” after “1975” there is inserted “and also includes a member of the Scottish Executive”, and
in paragraph (a) of the definition of “officer”, after “Department” there is inserted “or, as the case may be, as a member of staff of the Scottish Ministers or Lord Advocate.”
Schedule 2 of the 1995 Act contains special rules relating to the execution of documents by Ministers, amongst others. Paragraph 6 of that Schedule provides that, except where an enactment expressly provides otherwise, where a granter of a document is a Minister the document is signed by the Minister if it is signed by him personally, or, in a case where by virtue of any enactment or rule of law a document by a Minister may be signed by an officer of his or by any other Minister, it is signed by that officer or by that other Minister as the case may be. It also provides that, for the purposes of signing a document under that paragraph, a person of the signing of a document under that paragraph, a person purporting to sign as an office of a Minister or as another Minister shall be presumed to be the officer or other Minister as the case maybe. It is expected that the Carltona doctrine will apply in relation to the members of the Scottish Executive as it applies to Ministers of the Crown so that any member of staff appointed by the Scottish Minister can, amongst other things, execute documents which the Scottish Minister could execute. This amendment ensures that the provisions of the 1995 Act apply to the execution of documents by a member of the Scottish Executive in the same way as they apply to the execution of documents by a Minister.
