Scotland Act 1998
1998 c. 46
C1C2C3C4C5C6C7C8C9C10C11C12C13C14An Act to provide for the establishment of a Scottish Parliament and Administration and other changes in the government of Scotland; to provide for changes in the constitution and functions of certain public authorities; to provide for the variation of the basic rate of income tax in relation to income of Scottish taxpayers in accordance with a resolution of the Scottish Parliament; to amend the law about parliamentary constituencies in Scotland; and for connected purposes.
Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—C110
Act extended (16.10.2000) by 1999 c. 18, s. 16(2); S.I. 2000/2821, art. 2
Act extended (27.7.1999) by 1999 c. 23, s. 68(2)
Act extended (1.4.2000) by 1999 c. 28, s. 18(2) (with s. 38)
Act extended (1.4.2000) by 1999 c. 28, s. 35(1) (with s. 38); S.I. 2000/1066, art. 2
Act amended (11.11.1999) by 1999 c. 30, s. 91(4)
Act modified (27.7.1999) by 1999 c. 22, s. 109(7) (with s. 107, Sch. 14 para. 7(2))
Act modified (27.7.1999) by 1999 c. 24, s. 5(3)
Act modified (25.8.2000) by 2000 c. 6, ss. 167(5), 168(1)
Act modified (20.7.2000) by 2000 c. 12, s. 19(1)(3)
Act modified by 1976 c. 74, s. 71B(1) (as substituted (2.4.2001) by 2000 c. 34, s. 2(1) (with s. 10(5))); S.I. 2001/566, art. 2(1)
Act modified (30.11.2000 for specified purposes and otherwise 16.2.2001) by 2000 c. 41, ss. 133(2), 163(2)(3)(d) (with s. 156(6)); S.I. 2001/222, art. 2, Sch. I Pt. I
Act modified (E.W.) (30.11.2000) by 2000 c. 43, s. 81(6)
Act modified (8.1.2001 for E.W.N.I. and 1.8.2003 to the extent, if any, that s. 7(2) of the amending Act is not in force already for S. at Royal Assent (30.11.2000)) by 2000 c. 44, s. 7(2)(3); S.I. 2000/3303, art. 2; S.I. 2003/1935, art. 2
Act modified (E.W.S. and, in so far as relating to importation, N.I.) (31.3.2002) by The Environmental Protection (Controls on Ozone-Depleting Substances) Regulations 2002 (S.I. 2002/528), reg. 2(3)
Act modified (20.6.2003) by Enterprise Act 2002 (c. 40), ss. 278(1), 279, Sch. 25 para. 2(3); S.I. 2003/1397, art. 2(1), Sch.
Act modified (20.6.2003) by Enterprise Act 2002 (c. 40), ss. 278(1), 279, Sch. 25 para. 10(10); S.I. 2003/1397, art. 2(1), Sch.
Act modified (20.11.2003) by Sexual Offences Act 2003 (c. 42), ss. 141(1), 142(6)
Act modified (7.6.2005) by International Organisations Act 2005 (c. 20), ss. 10, 11(3)
Act modified (1.10.2009) by The Judiciary and Courts (Scotland) Act 2008 (Consequential Provisions and Modifications) Order 2009 (S.I. 2009/2231), arts. 1(2), 3; S.S.I. 2009/318, art. 2, Sch.
Act modified (1.4.2012) by The Housing (Scotland) Act 2010 (Consequential Provisions and Modifications) Order 2012 (S.I. 2012/700), art. 3(1)
Part I The Scottish Parliament
The Scottish Parliament
1 The Scottish Parliament.
1
There shall be a Scottish Parliament.
2
One member of the Parliament shall be returned for each constituency (under the simple majority system) at an election held in the constituency.
3
Members of the Parliament for each region shall be returned at a general election under the additional member system of proportional representation provided for in this Part and vacancies among such members shall be filled in accordance with this Part.
4
The validity of any proceedings of the Parliament is not affected by any vacancy in its membership.
5
Schedule 1 (which makes provision for the constituencies and regions for the purposes of this Act and the number of regional members) shall have effect.
General elections
2 Ordinary general elections.
1
The day on which the poll at the first ordinary general election for membership of the Parliament shall be held, and the day, time and place for the meeting of the Parliament following that poll, shall be appointed by order made by the Secretary of State.
C152
The poll at subsequent ordinary general elections shall be held on the first Thursday in May in the fourth calendar year following that in which the previous ordinary general election was held, unless the day of the poll is determined by a proclamation under subsection (5).
3
If the poll is to be held on the first Thursday in May, the Parliament—
a
is dissolved by virtue of this section at the beginning of the minimum period which ends with that day, and
b
shall meet within the period of seven days beginning immediately after the day of the poll.
4
In subsection (3), “the minimum period” means the period determined in accordance with an order under section 12(1).
C165
If the Presiding Officer proposes a day for the holding of the poll which is not more than one month earlier, nor more than one month later, than the first Thursday in May, Her Majesty may by proclamation under the Scottish Seal—
a
dissolve the Parliament,
b
require the poll at the election to be held on the day proposed, and
c
require the Parliament to meet within the period of seven days beginning immediately after the day of the poll.
6
In this Act “the Scottish Seal” means Her Majesty’s Seal appointed by the Treaty of Union to be kept and used in Scotland in place of the Great Seal of Scotland.
3 Extraordinary general elections.
1
The Presiding Officer shall propose a day for the holding of a poll if—
a
the Parliament resolves that it should be dissolved and, if the resolution is passed on a division, the number of members voting in favour of it is not less than two-thirds of the total number of seats for members of the Parliament, or
b
any period during which the Parliament is required under section 46 to nominate one of its members for appointment as First Minister ends without such a nomination being made.
2
If the Presiding Officer makes such a proposal, Her Majesty may by proclamation under the Scottish Seal—
a
dissolve the Parliament and require an extraordinary general election to be held,
b
require the poll at the election to be held on the day proposed, and
c
require the Parliament to meet within the period of seven days beginning immediately after the day of the poll.
3
If a poll is held under this section within the period of six months ending with the day on which the poll at the next ordinary general election would be held (disregarding section 2(5)), that ordinary general election shall not be held.
4
Subsection (3) does not affect the year in which the subsequent ordinary general election is to be held.
4 Calculating time for meeting of the Parliament.
In calculating any period of days for the purposes of section 2(3)(b) or (5)(c) or section 3(2)(c), Saturday, Sunday, Christmas Eve, Christmas Day, Good Friday, a bank holiday in Scotland or a day appointed for public thanksgiving or mourning shall be disregarded.
5 Candidates.
1
At a general election, the candidates may stand for return as constituency members or regional members.
C172
A person may not be a candidate to be a constituency member for more than one constituency.
3
The candidates to be regional members shall be those included in a list submitted under subsection (4) or individual candidates.
4
Any registered political party may submit to the regional returning officer a list of candidates to be regional members for a particular region (referred to in this Act, in relation to the region, as the party’s “regional list”).
5
A registered political party’s regional list has effect in relation to the general election and any vacancy occurring among the regional members after that election and before the next general election.
6
Not more than twelve persons may be included in the list (but the list may include only one person).
C187
A registered political party’s regional list must not include a person—
a
who is included in any other list submitted under subsection (4) for the region or any list submitted under that subsection for another region,
b
who is an individual candidate to be a regional member for the region or another region,
c
who is a candidate to be a constituency member for a constituency not included in the region, or
d
who is a candidate to be a constituency member for a constituency included in the region but is not a candidate of that party.
C198
A person may not be an individual candidate to be a regional member for a particular region if he is—
a
included in a list submitted under subsection (4) for the region or another region,
b
an individual candidate to be a regional member for another region,
c
a candidate to be a constituency member for a constituency not included in the region, or
d
a candidate of any registered political party to be a constituency member for a constituency included in the region.
9
In this Act, “registered political party” means a party registered under F1Part II of the Political Parties, Elections and Referendums Act 2000 .
6 Poll for regional members.
1
This section and sections 7 and 8 are about the return of regional members at a general election.
2
In each of the constituencies for the Parliament, a poll shall be held at which each person entitled to vote as elector may give a vote (referred to in this Act as a “regional vote”) for—
a
a registered political party which has submitted a regional list, or
b
an individual candidate to be a regional member for the region.
3
The right conferred on a person by subsection (2) is in addition to any right the person may have to vote in any poll for the return of a constituency member.
7 Calculation of regional figures.
C201
The persons who are to be returned as constituency members for constituencies included in the region must be determined before the persons who are to be returned as the regional members for the region.
2
For each registered political party which has submitted a regional list, the regional figure for the purposes of section 8 is—
a
the total number of regional votes given for the party in all the constituencies included in the region,
divided by
b
the aggregate of one plus the number of candidates of the party returned as constituency members for any of those constituencies.
3
Each time a seat is allocated to the party under section 8, that figure shall be recalculated by increasing (or further increasing) the aggregate in subsection (2)(b) by one.
4
For each individual candidate to be a regional member for the region, the regional figure for the purposes of section 8 is the total number of regional votes given for him in all the constituencies included in the region.
8 Allocation of seats to regional members.
1
The first regional member seat shall be allocated to the registered political party or individual candidate with the highest regional figure.
2
The second and subsequent regional member seats shall be allocated to the registered political party or individual candidate with the highest regional figure, after any recalculation required by section 7(3) has been carried out.
3
An individual candidate already returned as a constituency or regional member shall be disregarded.
4
Seats for the region which are allocated to a registered political party shall be filled by the persons in the party’s regional list in the order in which they appear in the list.
5
For the purposes of this section and section 10, a person in a registered political party’s regional list who is returned as a member of the Parliament shall be treated as ceasing to be in the list (even if his return is void).
6
Once a party’s regional list has been exhausted (by the return of persons included in it as constituency members or by the previous application of subsection (1) or (2)) the party shall be disregarded.
7
If (on the application of subsection (1) or any application of subsection (2)) the highest regional figure is the regional figure of two or more parties or individual candidates,
F2 a
the subsection in question shall apply to each of them; or
b
if paragraph (a) would result in more than the correct number of seats for the region being allocated, the subsection in question shall apply as if the regional figure for each of those parties or candidates had been adjusted in accordance with subsection (8).
8
The regional figure for a party or candidate is adjusted in accordance with this subsection by—
a
adding one vote to the total number of regional votes given for the party or candidate in all the constituencies included in the region; and
b
(in the case of a party) recalculating the regional figure accordingly.
9
If, on the application of the subsection in question in accordance with subsection (7)(b), seats would be allocated to two or more parties or individual candidates and that would result in more than the correct number of seats for the region being allocated, the regional returning officer shall decide between them by lot.
Vacancies
C219 Constituency vacancies.
1
Where the seat of a constituency member is vacant, an election shall be held to fill the vacancy (subject to subsection (4)).
2
The date of the poll shall be fixed by the Presiding Officer.
3
The date shall fall within the period of three months—
a
beginning with the occurrence of the vacancy, or
b
if the vacancy does not come to the notice of the Presiding Officer within the period of one month beginning with its occurrence, beginning when it does come to his notice.
4
The election shall not be held if the latest date for holding the poll would fall within the period of three months ending with the day on which the poll at the next ordinary general election would be held (disregarding section 2(5)).
5
For the purposes of this section, the date on which a vacancy is to be treated as occurring shall be determined under standing orders.
C226
A person may not be a candidate at such an election if he is a member of the Parliament or a candidate in another election to fill a vacancy.
10 Regional vacancies.
1
This section applies where the seat of a regional member is vacant.
2
If the regional member was returned as an individual candidate, or the vacancy is not filled in accordance with the following provisions, the seat shall remain vacant until the next general election.
3
If the regional member was returned (under section 8 or this section) from a registered political party’s regional list, the regional returning officer shall notify the Presiding Officer of the name of the person who is to fill the vacancy.
F34
The regional returning officer shall ascertain from that party's regional list the name and address of the person whose name appears highest on that list (“ the first choice ”) and shall take such steps as appear to him to be reasonable to contact the first choice to ask whether he will—
a
state in writing that he is willing and able to serve as a regional member for that region; and
b
deliver a certificate signed by or on behalf of the nominating officer of the registered party which submitted that regional list stating that the first choice may be returned as a regional member from that list.
4A
Where—
a
within such period as the regional returning officer considers reasonable—
i
he decides that the steps he has taken to contact the first choice have been unsuccessful; or
ii
he has not received from that person the statement and certificate referred to in subsection (4); or
b
the first choice has—
i
stated in writing that he is not willing to serve as a regional member for that region; or
ii
failed to deliver the certificate referred to in subsection (4)(b),
the regional returning officer shall repeat the procedure required by subsection (4) in respect of the person (if any) whose name appears next in that list (“ the second choice ”) or, where paragraph (a) or (b) of this subsection applies in respect of that person, in respect of the person (if any) whose name appears next highest after the second choice in that list; and the regional returning officer shall continue to repeat the procedure until the regional returning officer has notified the Presiding Officer of the name of the person who is to fill the vacancy or the names in the list are exhausted.
5
Where a person whose name appears on that list provides the statement and certificate referred to in subsection (4), the regional returning officer shall notify to the Presiding Officer the name of that person.
5A
Where—
a
under subsection (4A), the regional returning officer has asked the second choice or a subsequent choice the questions referred to in subsection (4); and
b
the person who was asked those questions on an earlier occasion then provides the statement and certificate referred to in that subsection,
that statement and certificate shall have no effect unless and until the circumstances described in paragraph (a) or (b) of subsection (4A) apply in respect of the second choice or, as the case may be, of the subsequent choice.
6
Where a person’s name has been notified under subsection (3), this Act shall apply as if he had been declared to be returned as a regional member for the region on the day on which notification of his name was received by the Presiding Officer.
7
For the purposes of this section, the date on which a vacancy is to be treated as occurring shall be determined under standing orders.
Franchise and conduct of elections
11 Electors.
1
The persons entitled to vote as electors at an election for membership of the Parliament held in any constituency are those who on the day of the poll—
a
would be entitled to vote as electors at a local government election in an electoral area falling wholly or partly within the constituency, and
b
are registered in the register of local government electors at an address within the constituency.
2
A person is not entitled to vote as elector in any constituency—
a
more than once at a poll for the return of a constituency member, or
b
more than once at a poll for the return of regional members,
or to vote as elector in more than one constituency at a general election.
C2312 Power to make provision about elections.
C241
The Secretary of State may by order make provision as to—
a
the conduct of elections for membership of the Parliament,
b
the questioning of such an election and the consequences of irregularities, and
c
the return of members of the Parliament otherwise than at an election.
2
The provision that may be made under subsection (1)(a) includes, in particular, provision—
a
about the registration of electors,
b
for disregarding alterations in a register of electors,
c
about the limitation of the election expenses of candidates F4. . .,
d
for the combination of polls at elections for membership of the Parliament with polls at other elections,
e
for modifying the application of section 7(1) where the poll at an election for the return of a constituency member is abandoned (or notice of it is countermanded), and
f
for modifying section 8(7) to ensure the allocation of the correct number of seats for the region.
3
The provision that may be made under subsection (1)(c) includes, in particular, provision modifying section 10(4) and (5).
4
An order under subsection (1) may—
a
apply, with or without modifications or exceptions, any provision made by or under the Representation of the People Acts or F5the European Parliamentary Elections Act 2002 or by any other enactment relating to parliamentary elections, European Parliamentary elections or local government elections,
b
modify any form contained in, or in regulations or rules made under, the Representation of the People Acts so far as may be necessary to enable it to be used both for the original purpose and in relation to elections for membership of the Parliament, and
c
so far as may be necessary in consequence of any provision made by this Act or an order under subsection (1), modify any provision made by any enactment relating to the registration of parliamentary electors or local government electors.
5
The return of a member of the Parliament at an election may be questioned only under Part III of the Representation of the M1People Act 1983 as applied by an order under subsection (1).
C246
For the purposes of this Act, the regional returning officer for any region is the person designated as such in accordance with an order made by the Secretary of State under this subsection.
Duration of membership
13 Term of office of members.
The term of office of a member of the Parliament begins on the day on which the member is declared to be returned and ends with the dissolution of the Parliament.
14 Resignation of members.
A member of the Parliament may at any time resign his seat by giving notice in writing to the Presiding Officer.
Disqualification
C2515 Disqualification from membership of the Parliament.
1
A person is disqualified from being a member of the Parliament (subject to section 16) if—
a
he is disqualified from being a member of the House of Commons under paragraphs (a) to (e) of section 1(1) of the M2House of Commons Disqualification Act 1975 (judges, civil servants, members of the armed forces, members of police forces and members of foreign legislatures),
b
he is disqualified otherwise than under that Act (either generally or in relation to a particular parliamentary constituency) from being a member of the House of Commons or from sitting and voting in it,
c
F6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
d
he is an office-holder of a description specified in an Order in Council made by Her Majesty under this subsection.
2
An office-holder of a description specified in an Order in Council made by Her Majesty under this subsection is disqualified from being a member of the Parliament for any constituency or region of a description specified in the Order in relation to the office-holder.
3
In this section “office-holder” includes employee or other post-holder.
C2616 Exceptions and relief from disqualification.
1
A person is not disqualified from being a member of the Parliament merely because—
a
he is a peer (whether of the United Kingdom, Great Britain, England or Scotland), or
F7b
he is a Lord Spiritual.
2
A citizen of the European Union who is resident in the United Kingdom is not disqualified from being a member of the Parliament merely because of section 3 of the M3Act of Settlement (disqualification of persons born outside the United Kingdom other than F8certain Commonwealth citizens and citizens of the Republic of Ireland).
3
Subsection (4) applies where a person was, or is alleged to have been, disqualified from being a member of the Parliament (either generally or in relation to a particular constituency or region) on any ground other than one falling within section 15(1)(b).
4
The Parliament may resolve to disregard any disqualification incurred by that person on the ground in question if it considers that—
a
the ground has been removed, and
b
it is proper to disregard any disqualification so incurred.
5
A resolution under this section shall not—
a
affect any proceedings under Part III of the Representation of the M4People Act 1983 as applied by an order under section 12, or
b
enable the Parliament to disregard any disqualification which has been established in such proceedings or in proceedings under section 18.
C2717 Effect of disqualification.
1
If a person who is disqualified from being a member of the Parliament or from being a member for a particular constituency or region is returned as a member of the Parliament or (as the case may be) as a member for the constituency or region, his return shall be void and his seat vacant.
2
If a member of the Parliament becomes disqualified from being a member of the Parliament or from being a member for the particular constituency or region for which he is sitting, he shall cease to be a member of the Parliament (so that his seat is vacant).
3
Subsections (1) and (2) have effect subject to any resolution of the Parliament under section 16.
4
Subsection (2) also has effect subject to section 141 of the M5Mental Health Act 1983 (mental illness) and section 427 of the M6Insolvency Act 1986 (sequestration etc); and where, in consequence of either of those sections, the seat of a disqualified member of the Parliament is not vacant he shall not cease to be a member of the Parliament until his seat becomes vacant but—
a
he shall not participate in any proceedings of the Parliament, and
b
any of his other rights and privileges as a member of the Parliament may be withdrawn by a resolution of the Parliament.
5
The validity of any proceedings of the Parliament is not affected by the disqualification of any person from being a member of the Parliament or from being a member for the constituency or region for which he purports to sit.
C2818 Judicial proceedings as to disqualification.
1
Any person who claims that a person purporting to be a member of the Parliament is disqualified or has been disqualified at any time since being returned may apply to the Court of Session for a declarator to that effect.
2
An application in respect of any person may be made whether the grounds on which it is made are alleged to have subsisted when the person was returned or to have arisen subsequently.
3
No declarator shall be made—
a
on grounds which subsisted when the person was returned, if an election petition is pending or has been tried in which the disqualification on those grounds of the person concerned is or was in issue, or
b
on any ground, if a resolution under section 16 requires that any disqualification incurred on that ground by the person concerned is to be disregarded.
4
The person in respect of whom an application is made shall be the defender.
5
The applicant shall give such caution for the expenses of the proceedings as the Court of Session may direct; but any such caution shall not exceed £5,000 or such other sum as the Scottish Ministers may by order specify.
6
The decision of the court on an application under this section shall be final.
7
In this section “disqualified” means disqualified from being a member of the Parliament or from being a member for the constituency or region for which the person concerned purports to sit.
Presiding Officer and administration
19 Presiding Officer.
1
The Parliament shall, F149... following a general election, elect from among its members a Presiding Officer and two deputies.
F1471A
The Parliament must do so—
a
before it conducts any other proceedings, except the taking by its members of the oath of allegiance (see section 84), and
b
in any event, within the period of 14 days beginning immediately after the day of the poll at the election.
1B
The Parliament may, at any time, elect from among its members one or more additional deputies.
2
A person elected Presiding Officer or deputy shall hold office until the conclusion of the next election for Presiding Officer under subsection (1) unless he previously resigns, ceases to be a member of the Parliament otherwise than by virtue of a dissolution or is removed from office by resolution of the Parliament.
F1482A
But standing orders may make provision for additional deputies to hold office for a shorter time than provided by subsection (2).
3
If the Presiding Officer or a deputy F150elected under subsection (1) ceases to hold office before the Parliament is dissolved, the Parliament shall elect another from among its members to fill his place.
4
The Presiding Officer’s functions may be exercised by a deputy if the office of Presiding Officer is vacant or the Presiding Officer is for any reason unable to act.
5
The Presiding Officer may (subject to standing orders) authorise any deputy to exercise functions on his behalf.
6
Standing orders may include provision as to the participation (including voting) of the Presiding Officer and deputies in the proceedings of the Parliament.
7
The validity of any act of the Presiding Officer or a deputy is not affected by any defect in his election.
20 Clerk of the Parliament.
1
There shall be a Clerk of the Parliament.
2
The Clerk shall be appointed by the Scottish Parliamentary Corporate Body (established under section 21).
C293
The Clerk’s functions may be exercised by any Assistant Clerk if the office of Clerk is vacant or the Clerk is for any reason unable to act.
4
The Clerk may authorise any Assistant Clerk or other member of the staff of the Parliament to exercise functions on his behalf.
I121 Scottish Parliamentary Corporate Body.
1
There shall be a body corporate to be known as “The Scottish Parliamentary Corporate Body” (referred to in this Act as the Parliamentary corporation) to perform the functions conferred on the corporation by virtue of this Act or any other enactment.
2
The members of the corporation shall be—
a
the Presiding Officer, and
b
F151at least four members of the Parliament appointed in accordance with standing orders.
3
The corporation shall provide the Parliament, or ensure that the Parliament is provided, with the property, staff and services required for the Parliament’s purposes.
4
The Parliament may give special or general directions to the corporation for the purpose of or in connection with the exercise of the corporation’s functions.
5
Any property or liabilities acquired or incurred in relation to matters within the general responsibility of the corporation to which (apart from this subsection) the Parliament would be entitled or subject shall be treated for all purposes as property or (as the case may be) liabilities of the corporation.
C306
Any expenses of the corporation shall be payable out of the Scottish Consolidated Fund.
C317
Any sums received by the corporation shall be paid into that Fund, subject to any provision made by or under an Act of the Scottish Parliament for the disposal of or accounting for such sums.
8
Schedule 2 (which makes further provision about the corporation) shall have effect.
Proceedings etc.
22 Standing orders.
1
The proceedings of the Parliament shall be regulated by standing orders.
2
Schedule 3 (which makes provision as to how certain matters are to be dealt with by standing orders) shall have effect.
I223 Power to call for witnesses and documents.
1
The Parliament may require any person—
a
to attend its proceedings for the purpose of giving evidence, or
b
to produce documents in his custody or under his control,
concerning any subject for which any member of the F142Scottish Government has general responsibility.
2
Subject to subsection (3), the Parliament may impose such a requirement on a person outside Scotland only in connection with the discharge by him of—
a
functions of the Scottish Administration, or
3
In relation to the exercise of functions of a Minister of the Crown, the Parliament may not impose such a requirement on—
a
him (whether or not he continues to be a Minister of the Crown), or
b
a person who is or has been in Crown employment, within the meaning of section 191(3) of the M7Employment Rights Act 1996,
unless the exercise concerns a subject for which any member of the F142Scottish Government has general responsibility.
4
But the Parliament may not impose such a requirement in pursuance of subsection (3) in connection with the exercise of functions which are exercisable—
a
by the Scottish Ministers as well as by a Minister of the Crown, or
b
by a Minister of the Crown only with the agreement of, or after consultation with, the Scottish Ministers.
5
Subsection (4)(b) does not prevent the Parliament imposing such a requirement in connection with the exercise of functions which do not relate to reserved matters.
6
Where all the functions of a body relate to reserved matters, the Parliament may not impose such a requirement on any person in connection with the discharge by him of those functions.
7
The Parliament may not impose such a requirement on—
a
a judge of any court, or
b
a member of any tribunal in connection with the discharge by him of his functions as such.
8
Such a requirement may be imposed by a committee or sub-committee of the Parliament only if the committee or sub-committee is expressly authorised to do so (whether by standing orders or otherwise).
9
A person is not obliged under this section to answer any question or produce any document which he would be entitled to refuse to answer or produce in proceedings in a court in Scotland.
10
A procurator fiscal is not obliged under this section to answer any question or produce any document concerning the operation of the system of criminal prosecution in any particular case if the Lord Advocate—
a
considers that answering the question or producing the document might prejudice criminal proceedings in that case or would otherwise be contrary to the public interest, and
b
has authorised the procurator fiscal to decline to answer the question or produce the document on that ground.
24 Witnesses and documents: notice.
1
A requirement under section 23 shall be imposed by the Clerk giving the person in question notice in writing specifying—
a
the time and place at which the person is to attend and the particular subjects concerning which he is required to give evidence, or
b
the documents, or types of documents, which he is to produce, the date by which he is to produce them and the particular subjects concerning which they are required.
2
Such notice shall be given—
a
in the case of an individual, by sending it, by registered post or the recorded delivery service, addressed to him at his usual or last known address or, where he has given an address for service, at that address,
b
in any other case, by sending it, by registered post or the recorded delivery service, addressed to the person at the person’s registered or principal office.
25 Witnesses and documents: offences.
1
Any person to whom a notice under section 24(1) has been given who—
a
refuses or fails to attend proceedings as required by the notice,
b
refuses or fails, when attending proceedings as required by the notice, to answer any question concerning the subjects specified in the notice,
c
deliberately alters, suppresses, conceals or destroys any document which he is required to produce by the notice, or
d
refuses or fails to produce any such document,
is guilty of an offence.
2
Subsection (1) is subject to sections 23(9) and (10) and 27(3).
3
It is a defence for a person charged with an offence under subsection (1)(a), (b) or (d) to prove that he had a reasonable excuse for the refusal or failure.
4
A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 5 on the standard scale or to imprisonment for a period not exceeding three months.
5
Where an offence under this section which has been committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of—
a
a director, manager, secretary or other similar officer of the body corporate, or
b
any person who was purporting to act in any such capacity,
he, as well as the body corporate, is guilty of that offence and liable to be proceeded against accordingly.
26 Witnesses and documents: general.
1
The Presiding Officer or such other person as may be authorised by standing orders may—
a
administer an oath to any person giving evidence in proceedings of the Parliament, and
b
require him to take the oath.
2
Any person who refuses to take an oath when required to do so under subsection (1)(b) is guilty of an offence.
3
Subsection (4) of section 25 applies to an offence under subsection (2) as it applies to an offence under that section.
4
Standing orders may provide for the payment of allowances and expenses to persons—
a
attending proceedings of the Parliament to give evidence, or
b
producing documents which they have been required or requested to produce,
whether or not in pursuance of a notice under section 24(1).
5
For the purposes of sections 23 to 25 and this section, a person shall be taken to comply with a requirement to produce a document if he produces a copy of, or an extract of the relevant part of, the document.
27 Participation of the Scottish Law Officers.
1
If the Lord Advocate or the Solicitor General for Scotland is not a member of the Parliament—
a
he may participate in the proceedings of the Parliament to the extent permitted by standing orders, but may not vote, and
b
standing orders may in other respects provide that they are to apply to him as if he were such a member.
2
Subsection (1) is without prejudice to section 39.
3
The Lord Advocate or the Solicitor General for Scotland may, in any proceedings of the Parliament, decline to answer any question or produce any document relating to the operation of the system of criminal prosecution in any particular case if he considers that answering the question or producing the document—
a
might prejudice criminal proceedings in that case, or
b
would otherwise be contrary to the public interest.
Legislation
28 Acts of the Scottish Parliament.
1
Subject to section 29, the Parliament may make laws, to be known as Acts of the Scottish Parliament.
2
Proposed Acts of the Scottish Parliament shall be known as Bills; and a Bill shall become an Act of the Scottish Parliament when it has been passed by the Parliament and has received Royal Assent.
3
A Bill receives Royal Assent at the beginning of the day on which Letters Patent under the Scottish Seal signed with Her Majesty’s own hand signifying Her Assent are recorded in the Register of the Great Seal.
4
The date of Royal Assent shall be written on the Act of the Scottish Parliament by the Clerk, and shall form part of the Act.
5
The validity of an Act of the Scottish Parliament is not affected by any invalidity in the proceedings of the Parliament leading to its enactment.
6
Every Act of the Scottish Parliament shall be judicially noticed.
7
This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland.
29 Legislative competence.
1
An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament.
2
A provision is outside that competence so far as any of the following paragraphs apply—
a
it would form part of the law of a country or territory other than Scotland, or confer or remove functions exercisable otherwise than in or as regards Scotland,
b
it relates to reserved matters,
c
it is in breach of the restrictions in Schedule 4,
d
it is incompatible with any of the Convention rights or with F9EU law,
e
it would remove the Lord Advocate from his position as head of the systems of criminal prosecution and investigation of deaths in Scotland.
3
For the purposes of this section, the question whether a provision of an Act of the Scottish Parliament relates to a reserved matter is to be determined, subject to subsection (4), by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances.
4
A provision which—
a
would otherwise not relate to reserved matters, but
b
makes modifications of Scots private law, or Scots criminal law, as it applies to reserved matters,
is to be treated as relating to reserved matters unless the purpose of the provision is to make the law in question apply consistently to reserved matters and otherwise.
F1525
Subsection (1) is subject to section 30(6).
30 Legislative competence: supplementary.
1
Schedule 5 (which defines reserved matters) shall have effect.
2
Her Majesty may by Order in Council make any modifications of Schedule 4 or 5 which She considers necessary or expedient.
3
Her Majesty may by Order in Council specify functions which are to be treated, for such purposes of this Act as may be specified, as being, or as not being, functions which are exercisable in or as regards Scotland.
4
An Order in Council under this section may also make such modifications of—
a
any enactment or prerogative instrument (including any enactment comprised in or made under this Act), or
b
any other instrument or document,
as Her Majesty considers necessary or expedient in connection with other provision made by the Order.
F1535
Subsection (6) applies where any alteration is made—
a
to the matters which are reserved matters, or
b
to Schedule 4,
(whether by virtue of the making, revocation or expiry of an Order in Council under this section or otherwise).
6
Where the effect of the alteration is that a provision of an Act of the Scottish Parliament ceases to be within the legislative competence of the Parliament, the provision does not for that reason cease to have effect (unless an enactment provides otherwise).
31 Scrutiny of Bills before introduction.
1
F164A person in charge of a Bill shall, on or before introduction of the Bill in the Parliament, state that in his view the provisions of the Bill would be within the legislative competence of the Parliament.
2
The Presiding Officer shall, on or before the introduction of a Bill in the Parliament, decide whether or not in his view the provisions of the Bill would be within the legislative competence of the Parliament and state his decision.
3
The form of any statement, and the manner in which it is to be made, shall be determined under standing orders, and standing orders may provide for any statement to be published.
32 Submission of Bills for Royal Assent.
1
It is for the Presiding Officer to submit Bills for Royal Assent.
2
The Presiding Officer shall not submit a Bill for Royal Assent at any time when—
a
the Advocate General, the Lord Advocate or the Attorney General is entitled to make a reference in relation to the Bill under section 33,
b
any such reference has been made but has not been decided or otherwise disposed of by the F10Supreme Court, or
c
an order may be made in relation to the Bill under section 35.
3
The Presiding Officer shall not submit a Bill in its unamended form for Royal Assent if—
a
the F11Supreme Court has decided that the Bill or any provision of it would not be within the legislative competence of the Parliament, or
b
a reference made in relation to the Bill under section 33 has been withdrawn following a request for withdrawal of the reference under section 34(2)(b).
4
In this Act—
“Advocate General” means the Advocate General for Scotland,
F12. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
33 Scrutiny of Bills by the F13Supreme Court.
1
The Advocate General, the Lord Advocate or the Attorney General may refer the question of whether a Bill or any provision of a Bill would be within the legislative competence of the Parliament to the F14Supreme Court for decision.
2
Subject to subsection (3), he may make a reference in relation to a Bill at any time during—
a
the period of four weeks beginning with the passing of the Bill, and
b
any period of four weeks beginning with any subsequent approval of the Bill in accordance with standing orders made by virtue of section 36(5).
3
He shall not make a reference in relation to a Bill if he has notified the Presiding Officer that he does not intend to make a reference in relation to the Bill, unless the Bill has been approved as mentioned in subsection (2)(b) since the notification.
34ECJ references.
1
This section applies where—
a
a reference has been made in relation to a Bill under section 33,
b
a reference for a preliminary ruling has been made by the F15Supreme Court in connection with that reference, and
c
neither of those references has been decided or otherwise disposed of.
2
If the Parliament resolves that it wishes to reconsider the Bill—
a
the Presiding Officer shall notify the Advocate General, the Lord Advocate and the Attorney General of that fact, and
b
the person who made the reference in relation to the Bill under section 33 shall request the withdrawal of the reference.
3
In this section “a reference for a preliminary ruling” means a reference of a question to the European Court under F163Article 267 of the Treaty on the Functioning of the European Union or Article 150 of the Treaty establishing the European Atomic Energy Community.
35 Power to intervene in certain cases.
1
If a Bill contains provisions—
a
which the Secretary of State has reasonable grounds to believe would be incompatible with any international obligations or the interests of defence or national security, or
b
which make modifications of the law as it applies to reserved matters and which the Secretary of State has reasonable grounds to believe would have an adverse effect on the operation of the law as it applies to reserved matters,
he may make an order prohibiting the Presiding Officer from submitting the Bill for Royal Assent.
2
The order must identify the Bill and the provisions in question and state the reasons for making the order.
3
The order may be made at any time during—
a
the period of four weeks beginning with the passing of the Bill,
b
any period of four weeks beginning with any subsequent approval of the Bill in accordance with standing orders made by virtue of section 36(5),
c
if a reference is made in relation to the Bill under section 33, the period of four weeks beginning with the reference being decided or otherwise disposed of by the F16Supreme Court.
4
The Secretary of State shall not make an order in relation to a Bill if he has notified the Presiding Officer that he does not intend to do so, unless the Bill has been approved as mentioned in subsection (3)(b) since the notification.
5
An order in force under this section at a time when such approval is given shall cease to have effect.
36 Stages of Bills.
1
Standing orders shall include provision—
a
for general debate on a Bill with an opportunity for members to vote on its general principles,
b
for the consideration of, and an opportunity for members to vote on, the details of a Bill, and
c
for a final stage at which a Bill can be passed or rejected.
2
Subsection (1) does not prevent standing orders making provision to enable the Parliament to expedite proceedings in relation to a particular Bill.
3
Standing orders may make provision different from that required by subsection (1) for the procedure applicable to Bills of any of the following kinds—
a
Bills which restate the law,
b
Bills which repeal spent enactments,
c
private Bills.
4
Standing orders shall provide for an opportunity for the reconsideration of a Bill after its passing if (and only if)—
a
the F17Supreme Court decides that the Bill or any provision of it would not be within the legislative competence of the Parliament,
b
a reference made in relation to the Bill under section 33 is withdrawn following a request for withdrawal of the reference under section 34(2)(b), or
c
an order is made in relation to the Bill under section 35.
5
Standing orders shall, in particular, ensure that any Bill amended on reconsideration is subject to a final stage at which it can be approved or rejected.
6
References in subsection (4), sections 28(2) and 38(1)(a) and paragraph 7 of Schedule 3 to the passing of a Bill shall, in the case of a Bill which has been amended on reconsideration, be read as references to the approval of the Bill.
Other provisions
37 Acts of Union.
I338 Letters Patent and proclamations.
1
The Keeper of the Registers of Scotland shall record in the Register of the Great Seal—
a
all Letters Patent signed with Her Majesty’s own hand signifying Her Assent to a Bill passed by the Parliament, and
b
all royal proclamations under sections 2(5) and 3(2),
which have passed under the Scottish Seal.
2
On recording such Letters Patent he shall intimate the date of recording to the Clerk.
3
Her Majesty may by Order in Council make provision as to—
a
the form and manner of preparation, and
b
the publication,
of such Letters Patent and proclamations.
4
If the First Minister so directs, impressions with the same device as the Scottish Seal shall be taken in such manner, of such size and on such material as is specified in the direction.
5
Each such impression—
a
shall be known as a Wafer Scottish Seal, and
b
shall be kept in accordance with directions of the First Minister.
6
If a Wafer Scottish Seal has been applied to Letters Patent or a proclamation mentioned in subsection (1), the document has the same validity as if it had passed under the Scottish Seal.
39 Members’ interests.
1
Provision shall be made for a register of interests of members of the Parliament and for the register to be published and made available for public inspection.
2
Provision shall be made—
a
requiring members of the Parliament to register in that register financial interests (including benefits in kind), as defined for the purposes of this paragraph,
C37b
requiring that any member of the Parliament who has a financial interest (including benefits in kind), as defined for the purposes of this paragraph, in any matter declares that interest before taking part in any proceedings of the Parliament relating to that matter.
3
Provision made in pursuance of subsection (2) shall include any provision which the Parliament considers appropriate for preventing or restricting the participation in proceedings of the Parliament of a member with an interest defined for the purposes of subsection (2)(a) or (b) in a matter to which the proceedings relate.
4
Provision shall be made prohibiting a member of the Parliament from—
a
advocating or initiating any cause or matter on behalf of any person, by any means specified in the provision, in consideration of any payment or benefit in kind of a description so specified, or
b
urging, in consideration of any such payment or benefit in kind, any other member of the Parliament to advocate or initiate any cause or matter on behalf of any person by any such means.
F1544A
Any requirement or prohibition (however expressed) imposed by provision made in pursuance of subsections (2) to (4) may be subject to such exceptions as are specified in the provision.
5
Provision may be made for—
a
excluding a member from the proceedings of the Parliament,
b
imposing on a member such other sanctions as the Parliament considers appropriate,
if the member fails to comply with, or contravenes, any provision made in pursuance of subsections (2) to (4) or this subsection.
5A
Provision made under subsection (5) may include provision that a sanction is not to be imposed in such circumstances as are specified in the provision.
6
Provision made under subsection (5) may include provision that the member is guilty of an offence.
7
A person guilty of such an offence is liable on summary conviction to a fine not exceeding level 5 on the standard scale.
8
In this section—
a
“provision” means provision made by or under an Act of the Scottish Parliament,
b
references to members of the Parliament include references to the Lord Advocate and the Solicitor General for Scotland, whether or not they are such members.
Legal issues
40 Proceedings by or against the Parliament etc.
1
Proceedings by or against the Parliament shall be instituted by or (as the case may be) against the Parliamentary corporation on behalf of the Parliament.
2
Proceedings by or against—
a
the Presiding Officer or a deputy, or
b
any member of the staff of the Parliament,
shall be instituted by or (as the case may be) against the corporation on his behalf.
3
In any proceedings against the Parliament, the court shall not make an order for suspension, interdict, reduction or specific performance (or other like order) but may instead make a declarator.
4
In any proceedings against—
a
any member of the Parliament,
b
the Presiding Officer or a deputy,
c
any member of the staff of the Parliament, or
d
the Parliamentary corporation,
the court shall not make an order for suspension, interdict, reduction or specific performance (or other like order) if the effect of doing so would be to give any relief against the Parliament which could not have been given in proceedings against the Parliament.
5
References in this section to an order include an interim order.
41 Defamatory statements.
1
For the purposes of the law of defamation—
a
any statement made in proceedings of the Parliament, and
b
the publication under the authority of the Parliament of any statement,
shall be absolutely privileged.
2
In subsection (1), “statement” has the same meaning as in the M10Defamation Act 1996.
42 Contempt of court.
1
The strict liability rule shall not apply in relation to any publication—
a
made in proceedings of the Parliament in relation to a Bill or subordinate legislation, or
b
to the extent that it consists of a fair and accurate report of such proceedings made in good faith.
2
In subsection (1), “the strict liability rule” and “publication” have the same meanings as in the M11Contempt of Court Act 1981.
43 Corrupt practices.
F18. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Part II The Scottish Administration
Ministers and their staff
I444 The F142Scottish Government.
1
There shall be a F142Scottish Government, whose members shall be—
a
the First Minister,
b
such Ministers as the First Minister may appoint under section 47, and
c
the Lord Advocate and the Solicitor General for Scotland.
2
The members of the F142Scottish Government are referred to collectively as the Scottish Ministers.
3
4
45 The First Minister.
1
The First Minister shall be appointed by Her Majesty from among the members of the Parliament and shall hold office at Her Majesty’s pleasure.
2
The First Minister may at any time tender his resignation to Her Majesty and shall do so if the Parliament resolves that the F142Scottish Government no longer enjoys the confidence of the Parliament.
3
The First Minister shall cease to hold office if a person is appointed in his place.
4
If the office of First Minister is vacant or he is for any reason unable to act, the functions exercisable by him shall be exercisable by a person designated by the Presiding Officer.
5
A person shall be so designated only if—
a
he is a member of the Parliament, or
b
if the Parliament has been dissolved, he is a person who ceased to be a member by virtue of the dissolution.
6
Functions exercisable by a person by virtue of subsection (5)(a) shall continue to be exercisable by him even if the Parliament is dissolved.
7
The First Minister shall be the Keeper of the Scottish Seal.
46 Choice of the First Minister.
1
If one of the following events occurs, the Parliament shall within the period allowed nominate one of its members for appointment as First Minister.
2
The events are—
a
the holding of a poll at a general election,
b
the First Minister tendering his resignation to Her Majesty,
c
the office of First Minister becoming vacant (otherwise than in consequence of his so tendering his resignation),
d
the First Minister ceasing to be a member of the Parliament otherwise than by virtue of a dissolution.
3
The period allowed is the period of 28 days which begins with the day on which the event in question occurs; but—
a
if another of those events occurs within the period allowed, that period shall be extended (subject to paragraph (b)) so that it ends with the period of 28 days beginning with the day on which that other event occurred, and
b
the period shall end if the Parliament passes a resolution under section 3(1)(a) or when Her Majesty appoints a person as First Minister.
4
The Presiding Officer shall recommend to Her Majesty the appointment of any member of the Parliament who is nominated by the Parliament under this section.
47 Ministers.
1
The First Minister may, with the approval of Her Majesty, appoint Ministers from among the members of the Parliament.
2
The First Minister shall not seek Her Majesty’s approval for any appointment under this section without the agreement of the Parliament.
3
A Minister appointed under this section—
a
shall hold office at Her Majesty’s pleasure,
b
may be removed from office by the First Minister,
c
may at any time resign and shall do so if the Parliament resolves that the F142Scottish Government no longer enjoys the confidence of the Parliament,
d
if he resigns, shall cease to hold office immediately, and
e
shall cease to hold office if he ceases to be a member of the Parliament otherwise than by virtue of a dissolution.
I548 The Scottish Law Officers.
1
It is for the First Minister to recommend to Her Majesty the appointment or removal of a person as Lord Advocate or Solicitor General for Scotland; but he shall not do so without the agreement of the Parliament.
2
The Lord Advocate and the Solicitor General for Scotland may at any time resign and shall do so if the Parliament resolves that the F142Scottish Government no longer enjoys the confidence of the Parliament.
3
Where the Lord Advocate resigns in consequence of such a resolution, he shall be deemed to continue in office until the warrant of appointment of the person succeeding to the office of Lord Advocate is granted, but only for the purpose of exercising his retained functions.
4
Subsection (3) is without prejudice to section 287 of the M13Criminal Procedure (Scotland) Act 1995 (demission of office by Lord Advocate).
5
Any decision of the Lord Advocate in his capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland shall continue to be taken by him independently of any other person.
6
49 Junior Scottish Ministers.
1
The First Minister may, with the approval of Her Majesty, appoint persons from among the members of the Parliament to assist the Scottish Ministers in the exercise of their functions.
2
They shall be known as junior Scottish Ministers.
3
The First Minister shall not seek Her Majesty’s approval for any appointment under this section without the agreement of the Parliament.
4
A junior Scottish Minister—
a
shall hold office at Her Majesty’s pleasure,
b
may be removed from office by the First Minister,
c
may at any time resign and shall do so if the Parliament resolves that the F142Scottish Government no longer enjoys the confidence of the Parliament,
d
if he resigns, shall cease to hold office immediately, and
e
shall cease to hold office if he ceases to be a member of the Parliament otherwise than by virtue of a dissolution.
50 Validity of acts of Scottish Ministers etc.
The validity of any act of a member of the F142Scottish Government or junior Scottish Minister is not affected by any defect in his nomination by the Parliament or (as the case may be) in the Parliament’s agreement to his appointment.
I651 The Civil Service.
1
The Scottish Ministers may appoint persons to be members of the staff of the Scottish Administration.
C382
Service as—
a
the holder of any office in the Scottish Administration which is not a ministerial office, or
b
a member of the staff of the Scottish Administration,
shall be service in the F19civil service of the State.
F203
See Part 1 of the Constitutional Reform and Governance Act 2010 (in particular, sections 3 and 4) for provision affecting—
a
subsection (1), and
b
any other enactment about the appointment of persons mentioned in subsection (2).
F214
See also section 1 of the Civil Service (Management Functions) Act 1992 under which functions conferred on the Minister for the Civil Service by section 3 of the Constitutional Reform and Governance Act 2010 may be delegated to the Scottish Ministers etc.
C395
Any salary or allowances payable to or in respect of the persons mentioned in subsection (2) (including contributions to any pension scheme) shall be payable out of the Scottish Consolidated Fund.
6
Section 1(2) and (3) of the M16Superannuation Act 1972 (delegation of functions relating to civil service superannuation schemes etc.) shall have effect as if references to a Minister of the Crown (other than the Minister for the Civil Service) included the Scottish Ministers.
7
The Scottish Ministers shall make payments to the Minister for the Civil Service, at such times as he may determine, of such amounts as he may determine in respect of—
a
the provision of pensions, allowances or gratuities by virtue of section 1 of the M17Superannuation Act 1972 to or in respect of persons who are or have been in such service as is mentioned in subsection (2), and
b
any expenses to be incurred in administering those pensions, allowances or gratuities.
8
Amounts required for payments under subsection (7) shall be charged on the Scottish Consolidated Fund.
9
F22. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Ministerial functions
I752 Exercise of functions.
1
Statutory functions may be conferred on the Scottish Ministers by that name.
2
Statutory functions of the Scottish Ministers, the First Minister or the Lord Advocate shall be exercisable on behalf of Her Majesty.
3
Statutory functions of the Scottish Ministers shall be exercisable by any member of the F142Scottish Government.
4
5
Subsection (4) does not apply in relation to the exercise of—
a
functions conferred on the First Minister alone, or
b
retained functions of the Lord Advocate.
6
In this Act, “retained functions” in relation to the Lord Advocate means—
a
any functions exercisable by him immediately before he ceases to be a Minister of the Crown, and
b
other statutory functions conferred on him alone after he ceases to be a Minister of the Crown.
7
In this section, “statutory functions” means functions conferred by virtue of any enactment.
C40C41C42C43C4453 General transfer of functions.
1
The functions mentioned in subsection (2) shall, so far as they are exercisable within devolved competence, be exercisable by the Scottish Ministers instead of by a Minister of the Crown.
2
Those functions are—
C45a
those of Her Majesty’s prerogative and other executive functions which are exercisable on behalf of Her Majesty by a Minister of the Crown,
b
other functions conferred on a Minister of the Crown by a prerogative instrument, and
c
functions conferred on a Minister of the Crown by any pre-commencement enactment,
but do not include any retained functions of the Lord Advocate.
3
In this Act, “pre-commencement enactment” means—
a
an Act passed before or in the same session as this Act and any other enactment made before the passing of this Act,
b
an enactment made, before the commencement of this section, under such an Act or such other enactment,
c
subordinate legislation under section 106, to the extent that the legislation states that it is to be treated as a pre-commencement enactment.
4
This section and section 54 are modified by Part III of Schedule 4.
C4654 Devolved competence.
1
References in this Act to the exercise of a function being within or outside devolved competence are to be read in accordance with this section.
2
It is outside devolved competence—
a
to make any provision by subordinate legislation which would be outside the legislative competence of the Parliament if it were included in an Act of the Scottish Parliament, or
b
to confirm or approve any subordinate legislation containing such provision.
3
In the case of any function other than a function of making, confirming or approving subordinate legislation, it is outside devolved competence to exercise the function (or exercise it in any way) so far as a provision of an Act of the Scottish Parliament conferring the function (or, as the case may be, conferring it so as to be exercisable in that way) would be outside the legislative competence of the Parliament.
55 Functions exercisable with agreement.
1
A statutory provision, or any provision not contained in an enactment, which provides for a Minister of the Crown to exercise a function with the agreement of, or after consultation with, any other Minister of the Crown shall cease to have effect in relation to the exercise of the function by a member of the F142Scottish Government by virtue of section 53.
2
In subsection (1) “statutory provision” means any provision in a pre-commencement enactment other than paragraph 5 or 15 of Schedule 32 to the M18Local Government, Planning and Land Act 1980 (designation of enterprise zones).
I856 Shared powers.
1
Despite the transfer by virtue of section 53 of any function under—
a
section 17(1) of the M19Ministry of Transport Act 1919 (power to make advances for certain purposes),
b
any Order in Council under section 1 of the M20United Nations Act 1946 (measures to give effect to Security Council decisions),
c
section 9 of the M21Industrial Organisation and Development Act 1947 (levies for scientific research, promotion of exports, etc.),
d
section 5 of the M22Science and Technology Act 1965 (funding of scientific research),
e
section 1 of the M23Mineral Exploration and Investment Grants Act 1972 (contributions in respect of mineral exploration),
f
sections 10 to 12 of the M24Industry Act 1972 (credits and grants for construction of ships and offshore installations),
g
sections 2, 11(3) and 12(4) of the M25Employment and Training Act 1973 (power to make arrangements for employment and training etc. and to make certain payments),
h
sections 7 to 9 and 11 to 13 of the M26Industrial Development Act 1982 (financial and other assistance for industry), and
i
sections 39 and 40 of the M27Road Traffic Act 1988 (road safety information and training),
the function shall be exercisable by a Minister of the Crown as well as by the Scottish Ministers.
2
Despite the transfer of any other function by virtue of section 53, the function shall, if subordinate legislation so provides, be exercisable (or be exercisable so far as the legislation provides) by a Minister of the Crown as well as by the Scottish Ministers.
3
Subordinate legislation under subsection (2) may not be made so as to come into force at any time after the function in question has become exercisable by the Scottish Ministers.
4
Any power referred to in section 53(2)(a) to establish, maintain or abolish a body, office or office-holder having functions which include both—
a
functions which are exercisable in or as regards Scotland and do not relate to reserved matters, and
b
other functions,
shall, despite that section, be exercisable jointly by the Minister of the Crown and the Scottish Ministers.
5
In subsection (4), “office-holder” includes employee or other post-holder.
I957F23EU law and Convention rights.
1
Despite the transfer to the Scottish Ministers by virtue of section 53 of functions in relation to observing and implementing obligations under F23EU law, any function of a Minister of the Crown in relation to any matter shall continue to be exercisable by him as regards Scotland for the purposes specified in section 2(2) of the M28European Communities Act 1972.
2
3
Subsection (2) does not apply to an act of the Lord Advocate—
a
in prosecuting any offence, or
b
in his capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland,
F193...
58 Power to prevent or require action.
1
If the Secretary of State has reasonable grounds to believe that any action proposed to be taken by a member of the F142Scottish Government would be incompatible with any international obligations, he may by order direct that the proposed action shall not be taken.
2
If the Secretary of State has reasonable grounds to believe that any action capable of being taken by a member of the F142Scottish Government is required for the purpose of giving effect to any such obligations, he may by order direct that the action shall be taken.
3
In subsections (1) and (2), “action” includes making, confirming or approving subordinate legislation and, in subsection (2), includes introducing a Bill in the Parliament.
4
If any subordinate legislation made or which could be revoked by a member of the F142Scottish Government contains provisions—
a
which the Secretary of State has reasonable grounds to believe to be incompatible with any international obligations or the interests of defence or national security, or
b
which make modifications of the law as it applies to reserved matters and which the Secretary of State has reasonable grounds to believe to have an adverse effect on the operation of the law as it applies to reserved matters,
the Secretary of State may by order revoke the legislation.
5
An order under this section must state the reasons for making the order.
Property and liabilities
59 Property and liabilities of the Scottish Ministers.
1
Property may be held by the Scottish Ministers by that name.
2
Property acquired by or transferred to the Scottish Ministers shall belong to, and liabilities incurred by the Scottish Ministers shall be liabilities of, the Scottish Ministers for the time being.
3
In relation to property to be acquired by or transferred to, or belonging to, the Scottish Ministers or liabilities incurred by the Scottish Ministers, references to the Scottish Ministers—
a
in any title recorded in the Register of Sasines or registered in the Land Register of Scotland, or
b
in any other document,
shall be read in accordance with subsection (2).
4
A document shall be validly executed by the Scottish Ministers if it is executed by any member of the F142Scottish Government.
I1060 Transfers to the Scottish Ministers.
1
Subordinate legislation may provide—
a
for the transfer to the Scottish Ministers of any property belonging to a Minister of the Crown or government department, or
b
for the Scottish Ministers to have such rights or interests in relation to any property belonging to a Minister of the Crown or government department as the person making the legislation considers appropriate (whether in connection with a transfer or otherwise).
2
Subordinate legislation may provide for the transfer to the Scottish Ministers of any liabilities to which a Minister of the Crown or government department is subject.
3
Subordinate legislation under this section may only be made in connection with any transfer or sharing of functions of a Minister of the Crown by virtue of section 53, 63 or 89 or in any other circumstances in which the person making the legislation considers it appropriate to do so for the purposes of this Act.
I1161 Property and liabilities of the Lord Advocate and the First Minister.
1
Property may be held by the Lord Advocate by that name.
2
Property acquired by or transferred to the Lord Advocate shall belong to, and liabilities incurred by the Lord Advocate shall be liabilities of, the Lord Advocate for the time being.
3
In relation to property to be acquired by or transferred to, or belonging to, the Lord Advocate or liabilities incurred by the Lord Advocate, references to the Lord Advocate—
a
in any title recorded in the Register of Sasines or registered in the Land Register of Scotland, or
b
in any other document,
shall be read in accordance with subsection (2).
4
Any rights and liabilities acquired or incurred by the First Minister shall be rights or (as the case may be) liabilities of the First Minister for the time being.
I1262 Transfers to the Lord Advocate.
1
Subordinate legislation may provide—
a
for the transfer to the Lord Advocate of any property belonging to a Minister of the Crown or government department, or
b
for the Lord Advocate to have such rights or interests in relation to any property belonging to a Minister of the Crown or government department as the person making the legislation considers appropriate (whether in connection with a transfer or otherwise).
2
Subordinate legislation may provide for the transfer to the Lord Advocate of any liabilities to which a Minister of the Crown or government department is subject.
3
Subordinate legislation under this section may only be made in connection with the Lord Advocate becoming a member of the F142Scottish Government or having any retained functions or in any other circumstances in which the person making the legislation considers it appropriate to do so for the purposes of this Act.
Transfer of additional functions
I13C47C48C4963 Power to transfer functions.
1
Her Majesty may by Order in Council provide for any functions, so far as they are exercisable by a Minister of the Crown in or as regards Scotland, to be exercisable—
a
by the Scottish Ministers instead of by the Minister of the Crown,
b
by the Scottish Ministers concurrently with the Minister of the Crown, or
c
by the Minister of the Crown only with the agreement of, or after consultation with, the Scottish Ministers.
2
Where an Order is made under subsection (1)(a) or (b) in relation to a function of a Minister of the Crown which is exercisable only with the agreement of, or after consultation with, another Minister of the Crown, the function shall, unless the Order provides otherwise, be exercisable by the Scottish Ministers free from any such requirement.
3
An Order under this section may, in particular, provide for any function exercisable by the Scottish Ministers by virtue of an Order under subsection (1)(a) or (b) to be exercisable subject to a requirement for the function to be exercised with the agreement of, or after consultation with, a Minister of the Crown or other person.
Part III Financial Provisions
I1464 Scottish Consolidated Fund.
1
There shall be a Scottish Consolidated Fund.
2
The Secretary of State shall from time to time make payments into the Fund out of money provided by Parliament of such amounts as he may determine.
3
Sums received by an office-holder in the Scottish Administration shall be paid into the Fund.
C504
Subsection (3) is subject to any provision made by or under an Act of the Scottish Parliament for the disposal of or accounting for such sums.
C51C525
The Treasury may, after consulting with the Scottish Ministers, by order designate receipts of any description specified in the order which are payable into the Fund (or would be but for any provision made by or under an Act of the Scottish Parliament).
C516
The Scottish Ministers shall make payments to the Secretary of State, at such times and by such methods as the Treasury may from time to time determine, of sums equal to the total amount outstanding in respect of designated receipts.
C517
Amounts required for the payment of sums under subsection (6) shall be charged on the Fund.
8
The Fund shall be held with the Paymaster General.
65 Payments out of the Fund.
1
A sum may only be paid out of the Scottish Consolidated Fund if—
a
it has been charged on the Fund by any enactment,
b
it is payable out of the Fund without further approval by virtue of this Act, or
C53c
it is paid out for or in connection with any of the purposes mentioned in subsection (2) in accordance with rules made by or under an Act of the Scottish Parliament.
2
Those purposes are—
a
meeting expenditure of the Scottish Administration,
b
meeting expenditure payable out of the Fund under any enactment.
3
A sum paid out of the Fund shall not be applied for any purpose other than that for which it was charged or (as the case may be) paid out.
66 Borrowing by the Scottish Ministers etc.
1
The Scottish Ministers may borrow from the Secretary of State any sums required by them for the purpose of—
a
meeting a temporary excess of sums paid out of the Scottish Consolidated Fund over sums paid into that Fund, or
b
providing a working balance in the Fund.
2
Amounts required for the repayment of, or the payment of interest on, sums borrowed under this section shall be charged on the Fund.
3
Sums borrowed under this section shall be repaid to the Secretary of State at such times and by such methods, and interest on them shall be paid to him at such rates and at such times, as the Treasury may from time to time determine.
4
A member of the F142Scottish Government may borrow money only under this section or under any power conferred by any other Act of Parliament.
67 Lending by the Secretary of State.
1
The Treasury may issue to the Secretary of State out of the National Loans Fund such sums as are required by him for making loans under section 66.
2
The aggregate at any time outstanding in respect of the principal of sums borrowed under that section shall not exceed £500 million.
3
The Secretary of State may by order made with the consent of the Treasury substitute for the amount (or substituted amount) specified in subsection (2) such increased amount as may be specified in the order.
4
Sums received by the Secretary of State under section 66(3) shall be paid into the National Loans Fund.
68 Borrowing by statutory bodies.
1
If a member of the F142Scottish Government lends money to a body established under any enactment, the rate of interest on the loan shall not be less than the lowest rate determined by the Treasury under section 5 of the M29National Loans Act 1968 in respect of similar loans made out of the National Loans Fund on the day the loan is made.
2
A body established under any enactment shall not, in pursuance of a power conferred by virtue of an Act of the Scottish Parliament, borrow money in a currency other than sterling except with the consent of the Scottish Ministers given with the approval of the Treasury.
69 The Auditor General for Scotland.
1
There shall be an Auditor General for Scotland who shall be an individual appointed by Her Majesty on the nomination of the Parliament.
2
A recommendation shall not be made to Her Majesty for the removal from office of the Auditor General for Scotland unless the Parliament so resolves and, if the resolution is passed on a division, the number of members voting in favour is not less than two-thirds of the total number of seats for members of the Parliament.
3
The validity of any act of the Auditor General for Scotland is not affected by any defect in his nomination by the Parliament.
4
The Auditor General for Scotland shall not, in the exercise of any of his functions, be subject to the direction or control of any member of the F142Scottish Government or of the Parliament.
5
Subsection (4) does not apply in relation to any function conferred on him of preparing accounts.
70 Financial control, accounts and audit.
1
Scottish legislation shall provide—
a
for proper accounts to be prepared by the Scottish Ministers, by the Lord Advocate and by other persons to whom sums are paid out of the Scottish Consolidated Fund, of their expenditure and receipts,
b
for the Scottish Ministers to prepare an account of payments into and out of the Fund,
c
for the Auditor General for Scotland to exercise, or ensure the exercise by other persons of, the functions mentioned in subsection (2),
d
for access by persons exercising those functions to such documents as they may reasonably require,
e
for members of the staff of the Scottish Administration designated for the purpose to be answerable to the Parliament in respect of the expenditure and receipts of each part of the Scottish Administration, and
f
for the publication of parliamentary accounts and of reports on such accounts and for the laying of such accounts and reports before the Parliament.
2
The functions referred to in subsection (1)(c) are—
a
issuing credits for the payment of sums out of the Fund,
b
examining parliamentary accounts (which includes determining whether sums paid out of the Fund have been paid out and applied in accordance with section 65), and certifying and reporting on them,
c
carrying out examinations into the economy, efficiency and effectiveness with which the Scottish Ministers and the Lord Advocate have used their resources in discharging their functions, and
d
carrying out examinations into the economy, efficiency and effectiveness with which other persons determined under Scottish legislation to whom sums are paid out of the Fund have used those sums in discharging their functions.
3
Standing orders shall provide for the consideration by the Parliament of accounts and reports laid before it in pursuance of subsection (1)(f).
4
Scottish legislation may make further provision for the purpose of ensuring that persons who receive sums derived from the Fund are accountable including, in particular, provision for any person to whom subsection (1)(a) does not apply to be accountable for his expenditure and receipts in respect of functions for which he receives sums derived from the Fund.
5
Persons (other than the Auditor General for Scotland) charged with the exercise of any function mentioned in subsection (2) or other like function conferred by Scottish legislation shall not, in the exercise of that or any ancillary function, be subject to the direction or control of any member of the F142Scottish Government or of the Parliament.
C54C55C56C57C586
Scottish legislation may not require any cross-border public authority to prepare accounts if any other legislation requires—
a
the authority to prepare accounts of its expenditure and receipts, and
b
the accounts to be examined, certified and reported on by the Auditor General for Scotland, the Comptroller and Auditor General or a person appointed by either of them.
7
Subsection (2)(b) does not apply to accounts prepared by the Auditor General for Scotland.
8
This section does not require Scottish legislation to impose any requirement which is imposed by any other legislation.
9
In this section—
“parliamentary accounts” means—
- a
any accounts prepared in pursuance of subsection (1)(a) or (b), and
- b
any accounts referred to in subsection (6) which are required to be examined, certified and reported on by the Auditor General for Scotland or any person appointed by him,
- a
“Scottish legislation” means provision made by or under an Act of the Scottish Parliament and “other legislation” means provision made by any other enactment.
I1571 Existing debt.
1
Subsections (2) to (4) apply where—
a
power to lend money under a provision of a pre-commencement enactment was exercised by the Secretary of State,
b
the sums required by him for the exercise of the power were issued by the Treasury out of the National Loans Fund, and
c
the power is exercisable by the Scottish Ministers by virtue of section 53, or would have been so exercisable but for the repeal of the pre-commencement enactment.
2
Any amount payable by way of repayment of or interest on the loan shall be paid to the Scottish Ministers and into the Scottish Consolidated Fund (instead of to the Secretary of State and into the National Loans Fund).
3
Amounts equal to those which are to be received by the Scottish Ministers in repayment of principal shall be treated as being amounts of advances made on the commencement of this section to the Scottish Ministers by the Secretary of State.
4
Such advances shall be repaid to the Secretary of State at such times and by such methods, and interest on them shall be paid to him at such rates and at such times, as the Treasury may from time to time determine.
5
Subsection (6) applies to any amount outstanding immediately before the commencement of this subsection in respect of the principal of the sum treated by virtue of section 2(3) of the M30Government Trading Funds Act 1973 as issued to the Registers of Scotland Executive Agency Trading Fund on the day on which the order establishing that fund came into force (“the issue date”).
6
The Secretary of State may, with the agreement of the Treasury, by order provide—
a
for the amount to be treated as an advance made by him to the Scottish Ministers on the issue date, and
b
for the advance to be repaid to him at such times and by such methods, and for interest on the advance to be paid to him at such rates and at such times, as were determined by the Treasury under section 2B(3) of that Act in respect of the sum referred to in subsection (5).
7
Sums required to be paid under subsection (4) or (6) shall be charged on the Scottish Consolidated Fund.
8
Sums received under subsection (4) or (6) shall be paid into the National Loans Fund.
72 Accounts of loans to the Scottish Ministers.
The Secretary of State shall, for each financial year—
a
prepare, in such form and manner as the Treasury may direct, an account of sums paid and received by him under sections 66, 67 and 71, and
b
send the account to the Comptroller and Auditor General not later than the end of November in the following financial year,
and the Comptroller and Auditor General shall examine, certify and report on the account and shall lay copies of it and of his report before each House of Parliament.
F131Part IV The tax-varying power
Pt. IV omitted (with effect in accordance with s. 25(4)(6) of the amending Act) and s. 75 amended (temp. until the end of the last year for which Pt. IV has effect, see s. 27(2) of the amending Act) by virtue of Scotland Act 2012 (c. 11), ss. 25(2), 44(2)(b)(3)(a)
F13173 Power to fix basic rate for Scottish taxpayers.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F13174 Supplemental provision with respect to resolutions.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F13175 Scottish taxpayers.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F13176 Changes to income tax structure.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F13177 Accounting for additional Scottish tax.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F13178 Effect of tax reduction for Scottish taxpayers.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F13179 Supplemental powers to modify enactments.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F13180 Reimbursement of expenses.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F132Part 4ATaxation
Pt. 4A inserted (1.7.2012) by Scotland Act 2012 (c. 11), ss. 23(2), 44(2)(b)
CHAPTER 1Introductory
80AOverview of Part 4A
1
In this Part—
a
Chapter 2 confers on the Scottish Parliament power to set a rate of income tax to be paid by Scottish taxpayers, and
b
Chapters 3 and 4 specify the taxes about which the Scottish Parliament may make provision in the exercise of the power conferred by section 28(1).
2
The power to make provision about a devolved tax is subject to the restrictions imposed by—
a
subsection (3), and
b
the other provisions of this Part.
3
A devolved tax may not be imposed where to do so would be incompatible with any international obligations.
4
In this Act “ devolved tax ” means a tax specified in this Part as a devolved tax.
80BPower to add new devolved taxes
1
Her Majesty may by Order in Council amend this Part so as to—
a
specify, as an additional devolved tax, a tax of any description, or
b
make any other modifications of the provisions relating to devolved taxes which She considers necessary or expedient.
2
An Order in Council under this section may also make such modifications of—
a
any enactment or prerogative instrument (including any enactment comprised in or made under this Act), or
b
any other instrument or document,
as Her Majesty considers necessary or expedient in connection with other provision made by the Order.
F133CHAPTER 2Income Tax
Pt. 4A Ch. 2 inserted (1.7.2012 with effect in accordance with s. 44(3)(a) of the amending Act) by Scotland Act 2012 (c. 11), ss. 25(3), 44(2)(b), (3)(a); S.I. 2015/2000, art. 3
80CPower to set Scottish rate for Scottish taxpayers
1
The Scottish Parliament may by resolution (a “Scottish rate resolution”) set the Scottish rate for the purpose of calculating the rates of income tax to be paid by Scottish taxpayers.
2
Section 6(2B) of the Income Tax Act 2007 provides for the calculation of those rates.
3
A Scottish rate resolution applies—
a
for only one tax year, and
b
for the whole of that year.
4
A Scottish rate resolution may specify only one rate.
5
The Scottish rate must be a whole number or half a whole number.
6
A Scottish rate resolution—
a
must specify the tax year for which it applies,
b
must be made before the start of that tax year, and
c
must not be made more than 12 months before the start of that year.
7
If a Scottish rate resolution is cancelled before the start of the tax year for which it is to apply—
a
the Income Tax Acts have effect for that year as if the resolution had never been passed, and
b
the resolution may be replaced by another Scottish rate resolution.
8
Standing orders must provide that only a member of the Scottish Government may move a motion for a Scottish rate resolution.
80DScottish taxpayers
1
In any tax year, a Scottish taxpayer is an individual (T)—
a
who is resident in the UK for income tax purposes, and
b
who, for that year, meets condition A, B or C.
2
T meets condition A if T has a close connection with Scotland (see section 80E).
3
T meets condition B if—
a
T does not have a close connection with any part of the UK other than Scotland (see section 80E), and
b
T spends more days of that year in Scotland than in any other part of the UK (see section 80F).
4
T meets condition C if, for the whole or any part of the year, T is—
a
a member of Parliament for a constituency in Scotland,
b
a member of the European Parliament for Scotland, or
c
a member of the Scottish Parliament.
5
In this Chapter “ the UK ” means the United Kingdom.
80E Close connection with Scotland or another part of the UK
1
To find whether, for any year, T has a close connection with any part of the UK see—
a
subsection (2) (where T has only one place of residence in the UK ), or
b
subsection (3) (where T has 2 or more places of residence in the UK ).
2
T has a close connection with a part of the UK if in that year—
a
T has only one place of residence in the UK ,
b
that place of residence is in that part of the UK , and
c
for at least part of the year, T lives at that place.
3
T has a close connection with a part of the UK if in that year—
a
T has 2 or more places of residence in the UK ,
b
for at least part of the year, T's main place of residence in the UK is in that part of the UK ,
c
the times in the year when T's main place of residence is in that part of the UK comprise (in aggregate) at least as much of the year as the times when T's main place of residence is in any one other part of the UK , and
d
for at least part of the year, T lives at a place of residence in that part of the UK.
4
In this section “ place ” includes a place on board a vessel or other means of transport.
80F Days spent in Scotland or another part of the UK
1
T spends more days of a year in Scotland than in any other part of the UK if (and only if)—
a
the number of days in the year on which T is in Scotland at the end of the day
equals or exceeds
b
the number of days in the year on which T is in any other part of the UK at the end of the day.
2
But T is not to be treated as being in the UK at the end of a day if—
a
on that day T arrives in the UK as a passenger,
b
T departs from the UK on the next day, and
c
during the time between arrival and departure T does not engage in activities which are to a substantial extent unrelated to T's passage through the UK.
80GSupplemental powers to modify enactments
1
The Treasury may by order provide that subsections (2A) to (2C) of section 6 of the Income Tax Act 2007 are to be disapplied, or that their effect is to be modified, in relation to any enactment.
2
The Treasury may by order make such modifications of any enactment as they consider necessary or expedient in consequence of or in connection with—
a
the power of the Parliament to set a rate under section 80C;
b
the making of a Scottish rate resolution;
c
an order under subsection (1).
3
An order under subsection (2) may, in particular, provide that a Scottish rate resolution does not require any change in the amounts repayable or deductible under PAYE regulations between—
a
the beginning of the tax year for which the resolution has effect, and
b
such date (falling after the date of the resolution) as may be specified in the order.
4
An order under this section may, to the extent that the Treasury consider it to be appropriate, take effect retrospectively from the beginning of the tax year in which the order is made.
80HReimbursement of expenses
The Scottish Ministers may reimburse any Minister of the Crown or government department for administrative expenses incurred by virtue of this Chapter at any time after the passing of the Scotland Act 2012 by the Minister or department.
F134CHAPTER 3Tax on transactions involving interests in land
Pt. 4A Ch. 3 inserted (1.7.2012) by Scotland Act 2012 (c. 11), ss. 28, 44(2)(b), 44(3)(b) (with s. 28(2))
80ITax on transactions involving interests in land
1
A tax charged on any of the following transactions is a devolved tax—
a
the acquisition of an estate, interest, right or power in or over land in Scotland;
b
the acquisition of the benefit of an obligation, restriction or condition affecting the value of any such estate, interest, right or power.
2
The tax may be chargeable—
a
whether or not there is any instrument effecting the transaction,
b
if there is such an instrument, regardless of where it is executed, and
c
regardless of where any party to the transaction is or is resident.
80JCertain transactions not taxable
1
Tax may not be imposed under section 80I on so much of a transaction as relates to land below mean low water mark.
2
The following persons are not to be liable to pay a tax imposed under section 80I—
Government
A Minister of the Crown
The Scottish Ministers
A Northern Ireland department
The Welsh Ministers, the First Minister for Wales and the Counsel General to the Welsh Assembly Government
Parliament etc
The Corporate Officer of the House of Lords
The Corporate Officer of the House of Commons
The Scottish Parliamentary Corporate Body
The Northern Ireland Assembly Commission
The National Assembly for Wales Commission
The National Assembly for Wales.
F135CHAPTER 4Tax on disposals to landfill
Pt. 4A Ch. 4 inserted (1.7.2012 with effect in accordance with s. 44(3)(c) of the amending Act) by Scotland Act 2012 (c. 11), ss. 30(1), 44(2)(b), (3)(c); S.I. 2015/638, art 2.
80KTax on disposals to landfill
1
A tax charged on disposals to landfill made in Scotland is a devolved tax.
2
A disposal is a disposal to landfill if—
a
it is a disposal of material as waste, and
b
it is made by way of landfill.
Part V Miscellaneous and general
Remuneration of members of the Parliament and F143Government
Word in Pt. V(crossheading)(remuneration)(of)(members)(of)(the)(parliament)(and)(executive) substituted (3.7.2012) by Scotland Act 2012 (c. 11), ss. 12(2)(b), 44(5) (with s. 12(3)); S.I. 2012/1710, art. 2(f)
81 Remuneration of members of the Parliament and F144Government.
1
The Parliament shall make provision for the payment of salaries to members of the Parliament and members of the F142Scottish Government.
2
The Parliament may make provision for the payment of allowances to members of the Parliament or members of the F142Scottish Government.
C593
The Parliament may make provision for the payment of pensions, gratuities or allowances to, or in respect of, any person who—
a
has ceased to be a member of the Parliament or the F142Scottish Government, or
4
Such provision may, in particular, include provision for—
a
contributions or payments towards provision for such pensions, gratuities or allowances,
b
the establishment and administration (whether by the Parliamentary corporation or otherwise) of one or more pension schemes.
5
In this section “provision” includes provision—
a
by an Act of the Scottish Parliament, or
b
by a resolution of the Parliament conferring functions on the Parliamentary corporation;
and references to a member of the F142Scottish Government include a junior Scottish Minister.
82 Limits on salaries of members of the Parliament.
1
The Parliament shall ensure that the amount of salary payable to a member of the Parliament in accordance with section 81 is reduced if any salary is payable to him—
F24za
under section 4 of the Parliamentary Standards Act 2009 (salaries of members of the House of Commons),
a
pursuant to a resolution (or combination of resolutions) of F25the House of Lords relating to the remuneration of members of that House, or
b
under section 1 of the M31European Parliament (Pay and Pensions) Act 1979 (remuneration of United Kingdom MEPs).
2
The Parliament shall ensure that the amount of salary is reduced—
a
to a particular proportion of what it would otherwise be or to a particular amount, or
b
by the amount of any salary payable to the member as mentioned in subsection (F26(1)(za), (a) or (b), by a particular proportion of that amount or by some other particular amount.
83 Remuneration: supplementary.
1
The Parliament shall ensure that information concerning sums paid as salaries, allowances, pensions or gratuities of the kind mentioned in section 81 is published for each financial year.
2
No payment of salary or allowances of the kind mentioned in section 81(1) or (2) shall be made to a person who is required by section 84 to take an oath unless he has done so.
3
Subsection (2) does not affect any entitlement to payments in respect of the period before the person concerned took the oath once he has done so.
4
For the purposes of sections 81 and 82, a person who is a member of the Parliament immediately before the Parliament is dissolved shall be treated—
a
if he continues to hold office by virtue of section 19(2) or paragraph 1 of Schedule 2, as if he were such a member until the end of the day on which he ceases to hold such office, and
b
if he does not fall within paragraph (a) but is nominated as a candidate at the subsequent general election, as if he were such a member until the end of the day on which the election is held.
5
Different provision may be made under section 81 or 82 for different cases.
Other provision about members of the Parliament etc.
84 Oaths.
1
A person who is returned as a member of the Parliament shall take the oath of allegiance (whether or not he has taken the oath after being returned on a previous occasion or otherwise than as a member of the Parliament).
2
He shall do so at a meeting of the Parliament and shall not take part in any other proceedings of the Parliament until he has done so.
3
If he has not done so within the period of two months beginning with the day on which he was returned, or such longer period as the Parliament may have allowed before the end of that period, he shall cease to be a member of the Parliament (so that his seat is vacant).
4
Each member of the F142Scottish Government shall on appointment—
a
take the official oath in the form provided by the M32Promissory Oaths Act 1868, and
b
take the oath of allegiance.
5
Each junior Scottish Minister shall on appointment take the oath of allegiance.
6
Subsections (4) and (5) do not require a member of the Parliament to take the oath of allegiance again if he has already done so in compliance with his duty as a member.
7
In this section, references to taking the oath of allegiance are to taking it in the form provided by the Promissory Oaths Act 1868.
85 Exemption from jury service.
1
F27. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2
In Part III of Schedule 1 to the M33Law Reform (Miscellaneous Provisions) (Scotland) Act 1980 (persons excusable as of right from jury service), after the entries in Group A there is inserted—
Arrangements at Westminster
86 Scottish representation at Westminster.
F28. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
87 The Advocate General for Scotland.
1
2
The validity of anything done in relation to the Advocate General is not affected by a vacancy in that office.
3
If that office is vacant or the Advocate General is for any reason unable to act, his functions shall be exercisable by such other Minister of the Crown as the Prime Minister may determine in writing.
Cross-border public authorities
I1688 Cross-border public authorities: initial status.
C601
Sections 53 and 118 to 121 shall not apply in relation to any function which is specifically exercisable in relation to a cross-border public authority; and section 118 shall not apply in relation to any function of such an authority.
C612
A Minister of the Crown shall consult the Scottish Ministers before he exercises, in relation to a cross-border public authority, any specific function—
C62a
which relates to any appointment or removal of the cross-border public authority concerned or of any members or office-holders of the cross-border public authority concerned, or
b
whose exercise might affect Scotland otherwise than wholly in relation to reserved matters.
C633
Any cross-border public authority or other person which is required by a pre-commencement enactment or a prerogative instrument to lay any report relating to a cross-border public authority before Parliament or either House of Parliament shall also lay the report before the Scottish Parliament.
4
Subsections (1) to (3) are subject to any Order in Council made under section 89.
5
In this Act “cross-border public authority” means any body, government department, office or office-holder specified in an Order in Council made by Her Majesty under this section.
6
Such an Order may only specify a body, government department, office or office-holder which (at the time when the Order is made) has, in addition to other functions, functions which are exercisable in or as regards Scotland and do not relate to reserved matters.
7
In this section—
“office-holder” includes employee or other post-holder,
“report” includes accounts and any statement.
I1789 Power to adapt etc. cross-border public authorities.
1
Her Majesty may by Order in Council make such provision in relation to a cross-border public authority as She considers necessary or expedient in consequence of this Act.
2
Such provision may, in particular, include provision—
a
modifying any function of a cross-border public authority or of a Minister of the Crown in relation to such an authority,
b
conferring any function on a cross-border public authority or on a Minister of the Crown or the Scottish Ministers in relation to such an authority,
c
modifying the constitution of a cross-border public authority,
d
modifying the application of section 56(4) or 88(1), (2) or (3),
e
for any function to be exercisable by the Scottish Ministers instead of by a Minister of the Crown, or by the one concurrently with the other, or by both jointly or by either with the agreement of or after consultation with the other,
f
apportioning any assets or liabilities,
g
imposing, or enabling the imposition of, any limits or other restrictions in addition to or in substitution for existing limits or restrictions,
h
providing for sums to be charged on or payable out of, or paid into, the Scottish Consolidated Fund (instead of or in addition to payments into or out of the Consolidated Fund or the National Loans Fund or out of money provided by Parliament),
i
requiring payments, with or without interest, to a Minister of the Crown or into the Consolidated Fund or National Loans Fund.
3
No recommendation shall be made to Her Majesty in Council to make an Order under this section unless the cross-border public authority concerned has been consulted.
90 Power to transfer property of cross-border public authorities.
1
This section applies if an Act of the Scottish Parliament provides for any functions of a cross-border public authority to be no longer exercisable in or as regards Scotland.
2
Her Majesty may by Order in Council provide—
a
for the transfer of any property to which this section applies, or
b
for any person to have such rights or interests in relation to any property to which this section applies as Her Majesty considers appropriate (whether in connection with a transfer or otherwise).
3
This section applies to property belonging to the cross-border public authority concerned which appears to Her Majesty—
a
to be held or used wholly or partly for or in connection with the exercise of any of the functions concerned, or
b
not to be within paragraph (a) but, when last held or used for or in connection with the exercise of any function, to have been so held or used for or in connection with the exercise of any of the functions concerned.
4
Her Majesty may by Order in Council provide for the transfer of any liabilities—
a
to which the cross-border public authority concerned is subject, and
b
which appear to Her Majesty to have been incurred wholly or partly for or in connection with the exercise of any of the functions concerned.
5
No recommendation shall be made to Her Majesty in Council to make an Order under this section unless the cross-border public authority concerned has been consulted.
F145The BBC
S. 90A and cross-heading inserted (3.7.2012) by Scotland Act 2012 (c. 11), ss. 16, 44(5); S.I. 2012/1710, art. 2(i)
90ABBC Trust member for Scotland
1
A Minister of the Crown must not exercise without the agreement of the Scottish Ministers functions relating to selection for a particular appointment by which—
a
a person is to become a member of the BBC Trust and hold a Scottish post, or
b
an existing member of the Trust is to hold a Scottish post.
2
“Scottish post” means a position, held as a member of the Trust, with specific reference to Scotland.
Miscellaneous
91 Maladministration.
1
The Parliament shall make provision for the investigation of relevant complaints made to its members in respect of any action taken by or on behalf of—
a
a member of the F142Scottish Government in the exercise of functions conferred on the Scottish Ministers, or
b
any other office-holder in the Scottish Administration.
2
For the purposes of subsection (1), a complaint is a relevant complaint if it is a complaint of a kind which could be investigated under the M36Parliamentary Commissioner Act 1967 if it were made to a member of the House of Commons in respect of a government department or other authority to which that Act applies.
3
The Parliament may make provision for the investigation of complaints in respect of—
a
any action taken by or on behalf of an office-holder in the Scottish Administration,
b
any action taken by or on behalf of the Parliamentary corporation,
c
any action taken by or on behalf of a Scottish public authority with mixed functions or no reserved functions, or
4
In making provision of the kind required by subsection (1), the Parliament shall have regard (among other things) to the Act of 1967.
5
Sections 53 and 117 to 121 shall not apply in relation to functions conferred by or under the Act of 1967.
6
In this section—
“action” includes failure to act (and related expressions shall be read accordingly),
“provision” means provision by an Act of the Scottish Parliament;
and the references to the Act of 1967 are to that Act as it has effect on the commencement of this section.
92 Queen’s Printer for Scotland.
1
There shall be a Queen’s Printer for Scotland who shall—
a
exercise the Queen’s Printer functions in relation to Acts of the Scottish Parliament and subordinate legislation F29(other than Scottish statutory instruments) to which this section applies, and
b
exercise any other functions conferred on her by this Act or any other enactment.
2
In subsection (1), “the Queen’s Printer functions” means the printing functions in relation to Acts of Parliament and subordinate legislation of the Queen’s Printer of Acts of Parliament.
3
The Queen’s Printer for Scotland shall also on behalf of Her Majesty exercise Her rights and privileges in connection with—
a
Crown copyright in Acts of the Scottish Parliament,
b
Crown copyright in subordinate legislation to which this section applies,
c
Crown copyright in any existing or future works (other than subordinate legislation) made in the exercise of a function which is exercisable by any office-holder in, or member of the staff of, the Scottish Administration (or would be so exercisable if the function had not ceased to exist),
d
other copyright assigned to Her Majesty in works made in connection with the exercise of functions by any such office-holder or member.
4
This section applies to subordinate legislation made, confirmed or approved—
a
by a member of the F142Scottish Government,
b
by a Scottish public authority with mixed functions or no reserved functions, or
c
within devolved competence by a person other than a Minister of the Crown or such a member or authority.
F1674A
For the purposes of subsection (4)(c), the function of Her Majesty of making an Order in Council under section 15(1) or (2) (power to specify persons disqualified from membership of the Parliament) is to be regarded as being exercisable within devolved competence.
F1554B
If, following an alteration such as is mentioned in section 30(5)—
a
subordinate legislation is made, confirmed or approved under a provision which continues to have effect by virtue of section 30(6), and
b
the making, confirmation or approval would be within devolved competence but for the alteration,
the subordinate legislation is to be regarded for the purposes of this section as being made, confirmed or approved within devolved competence.
5
The Queen’s Printer of Acts of Parliament shall hold the office of Queen’s Printer for Scotland.
6
References in this Act to a Scottish public authority include the Queen’s Printer for Scotland.
I18C6693 Agency arrangements.
1
A Minister of the Crown may make arrangements for any of his specified functions to be exercised on his behalf by the Scottish Ministers; and the Scottish Ministers may make arrangements for any of their specified functions to be exercised on their behalf by a Minister of the Crown.
2
An arrangement under this section does not affect a person’s responsibility for the exercise of his functions.
F1382A
The collection and management of a devolved tax is a specified function of the Scottish Ministers.
3
In this section—
“functions” does not include a function of making, confirming or approving subordinate legislation,
“Minister of the Crown” includes government department,
“specified” F139(subject to subsection (2A) means specified in an Order in Council made by Her Majesty under this subsection;
and this section applies to the Lord Advocate as it applies to the Scottish Ministers.
C6794 Private legislation.
1
This section applies where a pre-commencement enactment makes provision which has the effect of—
a
requiring any order to be confirmed by Act of Parliament, or
b
requiring any order (within the meaning of the M37Statutory Orders (Special Procedure) Act 1945) to be subject to special parliamentary procedure,
and power to make, confirm or approve the order in question is exercisable by the Scottish Ministers by virtue of section 53.
2
The provision shall have effect, so far as it relates to the exercise of the power to make, confirm or approve the order by virtue of section 53, as if it required the order—
a
to be confirmed by an Act of the Scottish Parliament, or
C68b
(as the case may be) to be subject to such special procedure as may be provided by or under such an Act.
95 Appointment and removal of judges.
1
It shall continue to be for the Prime Minister to recommend to Her Majesty the appointment of a person as Lord President of the Court of Session or Lord Justice Clerk.
2
The Prime Minister shall not recommend to Her Majesty the appointment of any person who has not been nominated by the First Minister for such appointment.
3
Before nominating persons for such appointment the First Minister shall consult the Lord President and the Lord Justice Clerk (unless, in either case, the office is vacant).
4
It is for the First Minister, after consulting the Lord President, to recommend to Her Majesty the appointment of a person as—
a
a judge of the Court of Session (other than the Lord President or the Lord Justice Clerk), or
b
a sheriff principal or a sheriff.
5
The First Minister shall comply with any requirement in relation to—
a
a nomination under subsection (2), or
b
a recommendation under subsection (4),
imposed by virtue of any enactment.
6
A judge of the Court of Session and the Chairman of the Scottish Land Court may be removed from office only by Her Majesty; and any recommendation to Her Majesty for such removal shall be made by the First Minister.
7
The First Minister shall make such a recommendation if (and only if) the Parliament, on a motion made by the First Minister, resolves that such a recommendation should be made.
8
Provision shall be made for a tribunal constituted by the First Minister to investigate and report on whether a judge of the Court of Session or the Chairman of the Scottish Land Court is unfit for office by reason of inability, neglect of duty or misbehaviour and for the report to be laid before the Parliament.
9
Such provision shall include provision—
a
for the constitution of the tribunal by the First Minister when requested by the Lord President to do so and in such other circumstances as the First Minister thinks fit, and
F30b
for the appointment to chair the tribunal of a member of the Judicial Committee of the Privy Council who holds or has held high judicial office,
and may include provision for suspension from office.
10
The First Minister may make a motion under subsection (7) only if—
a
he has received from a tribunal constituted in pursuance of subsection (8) a written report concluding that the person in question is unfit for office by reason of inability, neglect of duty or misbehaviour and giving reasons for that conclusion,
b
where the person in question is the Lord President or the Lord Justice Clerk, he has consulted the Prime Minister, and
c
he has complied with any other requirement imposed by virtue of any enactment.
11
In subsections (8) to (10)—
F31 “ high judicial office ” has the meaning given by section 60 of the Constitutional Reform Act 2005,
“provision” means provision by or under an Act of the Scottish Parliament,
“tribunal” means a tribunal of at least three persons.
96 Provision of information to the Treasury.
1
The Treasury may require the Scottish Ministers to provide, within such period as the Treasury may reasonably specify, such information, in such form and prepared in such manner, as the Treasury may reasonably specify.
2
If the information is not in their possession or under their control, their duty under subsection (1) is to take all reasonable steps to comply with the requirement.
I1997 Assistance for opposition parties.
1
Her Majesty may by Order in Council provide for the Parliamentary corporation to make payments to registered political parties for the purpose of assisting members of the Parliament who are connected with such parties to perform their Parliamentary duties.
2
The corporation shall not make any payment to a party in pursuance of such an Order if any of the members of the Parliament who are connected with the party are also members of the F142Scottish Government or junior Scottish Ministers.
3
But such an Order may, in any circumstances specified in the Order, require the fact that any members who are connected with a party are also members of the F142Scottish Government or junior Scottish Ministers to be disregarded.
4
Such an Order may determine the circumstances in which a member of the Parliament and a registered political party are to be regarded for the purposes of this section as connected.
Juridical
98 Devolution issues.
Schedule 6 (which makes provision in relation to devolution issues) shall have effect.
99 Rights and liabilities of the Crown in different capacities.
1
Rights and liabilities may arise between the Crown in right of Her Majesty’s Government in the United Kingdom and the Crown in right of the Scottish Administration by virtue of a contract, by operation of law or by virtue of an enactment as they may arise between subjects.
2
Property and liabilities may be transferred between the Crown in one of those capacities and the Crown in the other capacity as they may be transferred between subjects; and they may together create, vary or extinguish any property or liability as subjects may.
3
Proceedings in respect of—
a
any property or liabilities to which the Crown in one of those capacities is entitled or subject under subsection (1) or (2), or
b
the exercise of, or failure to exercise, any function exercisable by an office-holder of the Crown in one of those capacities,
may be instituted by the Crown in either capacity; and the Crown in the other capacity may be a separate party in the proceedings.
4
This section applies to a unilateral obligation as it applies to a contract.
5
In this section—
“office-holder”, in relation to the Crown in right of Her Majesty’s Government in the United Kingdom, means any Minister of the Crown or other office-holder under the Crown in that capacity and, in relation to the Crown in right of the Scottish Administration, means any office-holder in the Scottish Administration,
“subject” means a person not acting on behalf of the Crown.
100 Human rights.
1
This Act does not enable a person—
a
to bring any proceedings in a court or tribunal on the ground that an act is incompatible with the Convention rights, or
b
to rely on any of the Convention rights in any such proceedings,
unless he would be a victim for the purposes of Article 34 of the Convention (within the meaning of the M38Human Rights Act 1998) if proceedings in respect of the act were brought in the European Court of Human Rights.
2
Subsection (1) does not apply to the Lord Advocate, the Advocate General, the Attorney General F32, the Advocate General for Northern Ireland or the Attorney General for Northern Ireland.
3
This Act does not enable a court or tribunal to award any damages in respect of an act which is incompatible with any of the Convention rights which it could not award if section 8(3) and (4) of the Human Rights Act 1998 applied.
F1583A
Subsection (3B) applies to any proceedings brought by virtue of this Act against the Scottish Ministers or a member of the Scottish Government in a court or tribunal on the ground that an act of the Scottish Ministers or a member of the Scottish Government is incompatible with the Convention rights.
3B
Proceedings to which this subsection applies must be brought before the end of—
a
the period of one year beginning with the date on which the act complained of took place, or
b
such longer period as the court or tribunal considers equitable having regard to all the circumstances,
but that is subject to any rule imposing a stricter time limit in relation to the procedure in question.
3C
Subsection (3B) does not apply to proceedings brought by the Lord Advocate, the Advocate General, the Attorney General, the Attorney General for Northern Ireland or the Advocate General for Northern Ireland.
3D
In subsections (3A) and (3B) “ act ” does not include the making of any legislation but it does include any other act or failure to act (including a failure to make legislation).
3E
In subsection (3B) “ rule ” has the same meaning as it has in section 7(5) of the Human Rights Act 1998.
F157...
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F157...
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F157...
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F157...
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F157...
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4
a
making any legislation,
b
any other act or failure to act, if it is the act or failure of a member of the F142Scottish Government.
101 Interpretation of Acts of the Scottish Parliament etc.
1
This section applies to—
a
any provision of an Act of the Scottish Parliament, or of a Bill for such an Act, and
b
any provision of subordinate legislation made, confirmed or approved, or purporting to be made, confirmed or approved, by a member of the F142Scottish Government,
which could be read in such a way as to be outside competence.
2
Such a provision is to be read as narrowly as is required for it to be within competence, if such a reading is possible, and is to have effect accordingly.
3
In this section “competence”—
a
in relation to an Act of the Scottish Parliament, or a Bill for such an Act, means the legislative competence of the Parliament, and
b
in relation to subordinate legislation, means the powers conferred by virtue of this Act.
C69102 Powers of courts or tribunals to vary retrospective decisions.
1
This section applies where any court or tribunal decides that—
a
an Act of the Scottish Parliament or any provision of such an Act is not within the legislative competence of the Parliament, or
b
c
any other purported exercise of a function by a member of the Scottish Government was outside devolved competence.
2
The court or tribunal may make an order—
a
removing or limiting any retrospective effect of the decision, or
b
suspending the effect of the decision for any period and on any conditions to allow the defect to be corrected.
3
In deciding whether to make an order under this section, the court or tribunal shall (among other things) have regard to the extent to which persons who are not parties to the proceedings would otherwise be adversely affected.
4
Where a court or tribunal is considering whether to make an order under this section, it shall order intimation of that fact to be given to—
a
the Lord Advocate, and
b
the appropriate law officer, where the decision mentioned in subsection (1) relates to a devolution issue (within the meaning of Schedule 6), F189or to a compatibility issue,
unless the person to whom the intimation would be given is a party to the proceedings.
5
A person to whom intimation is given under subsection (4) may take part as a party in the proceedings so far as they relate to the making of the order.
F1905A
Where the decision mentioned in subsection (1) is a decision of the Supreme Court on a compatibility issue, the power to make an order under this section is exercisable by the High Court of Justiciary instead of the Supreme Court.
6
Paragraphs 36 and 37 of Schedule 6 apply with necessary modifications for the purposes of subsections (4) and (5) as they apply for the purposes of that Schedule.
7
In this section—
F191“compatibility issue” has the meaning given by section 288ZA of the Criminal Procedure (Scotland) Act 1995,
“intimation” includes notice,
“the appropriate law officer” means—
- a
in relation to proceedings in Scotland, the Advocate General,
- b
in relation to proceedings in England and Wales, the Attorney General,
- c
in relation to proceedings in Northern Ireland, the F33Advocate General for Northern Ireland.
- a
103 The Judicial Committee.
F34. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Supplementary powers
104 Power to make provision consequential on legislation of, or scrutinised by, the Parliament.
1
Subordinate legislation may make such provision as the person making the legislation considers necessary or expedient in consequence of any provision made by or under any Act of the Scottish Parliament or made by legislation mentioned in subsection (2).
2
The legislation is subordinate legislation under an Act of Parliament made by—
a
a member of the F142Scottish Government,
b
a Scottish public authority with mixed functions or no reserved functions, or
c
any other person (not being a Minister of the Crown) if the function of making the legislation is exercisable within devolved competence.
F1683
For the purposes of subsection (2)(c), the function of Her Majesty of making an Order in Council under section 15(1) or (2) (power to specify persons disqualified from membership of the Parliament) is to be regarded as being exercisable within devolved competence.
105 Power to make provision consequential on this Act.
Subordinate legislation may make such modifications in any pre-commencement enactment or prerogative instrument or any other instrument or document as appear to the person making the legislation necessary or expedient in consequence of this Act.
106 Power to adapt functions.
1
Subordinate legislation may make such provision (including, in particular, provision modifying a function exercisable by a Minister of the Crown) as the person making the legislation considers appropriate for the purpose of enabling or otherwise facilitating the transfer of a function to the Scottish Ministers by virtue of section 53 or 63.
2
Subordinate legislation under subsection (1) may, in particular, provide for any function which—
a
is not exercisable separately in or as regards Scotland to be so exercisable, or
b
is not otherwise exercisable separately within devolved competence to be so exercisable.
3
The reference in subsection (1) to the transfer of a function to the Scottish Ministers shall be read as including the sharing of a function with the Scottish Ministers or its other adaptation.
4
No recommendation shall be made to Her Majesty in Council to make, and no Minister of the Crown shall make, subordinate legislation under this section which modifies a function of observing or implementing an obligation mentioned in subsection (5) unless the Scottish Ministers have been consulted about the modification.
5
The obligation is an international obligation, or an obligation under F35EU law, to achieve a result defined by reference to a quantity (whether expressed as an amount, proportion or ratio or otherwise), where the quantity relates to the United Kingdom (or to an area including the United Kingdom or to an area consisting of a part of the United Kingdom which includes the whole or part of Scotland).
6
If subordinate legislation under this section modifies a function of observing or implementing such an international obligation so that the function to be transferred to the Scottish Ministers relates only to achieving so much of the result to be achieved under the obligation as is specified in the legislation, references in section 58 to the international obligation are to be read as references to the requirement to achieve that much of the result.
7
If subordinate legislation under this section modifies a function of observing or implementing such an obligation under F35EU law so that the function to be transferred to the Scottish Ministers relates only to achieving so much of the result to be achieved under the obligation as is specified in the legislation, references in sections 29(2)(d) and 57(2) and paragraph 1 of Schedule 6 to F35EU law are to be read as including references to the requirement to achieve that much of the result.
107 Legislative power to remedy ultra vires acts.
Subordinate legislation may make such provision as the person making the legislation considers necessary or expedient in consequence of—
a
an Act of the Scottish Parliament or any provision of an Act of the Scottish Parliament which is not, or may not be, within the legislative competence of the Parliament, or
b
any purported exercise by a member of the F142Scottish Government of his functions which is not, or may not be, an exercise or a proper exercise of those functions.
C70108 Agreed redistribution of functions exercisable by the Scottish Ministers etc.
1
Her Majesty may by Order in Council provide for any functions exercisable by a member of the F142Scottish Government to be exercisable—
a
by a Minister of the Crown instead of by the member of the F142Scottish Government,
b
by a Minister of the Crown concurrently with the member of the F142Scottish Government, or
c
by the member of the F142Scottish Government only with the agreement of, or after consultation with, a Minister of the Crown.
2
Where an Order is made under subsection (1)(a) or (b) in relation to a function of the Scottish Ministers, the First Minister or the Lord Advocate which is exercisable only with the agreement of, or after consultation with, any other of those persons, the function shall, unless the Order provides otherwise, be exercisable by the Minister of the Crown free from any such requirement.
3
An Order under this section may, in particular, provide for any function exercisable by a Minister of the Crown by virtue of an Order under subsection (1)(a) or (b) to be exercisable subject to a requirement for the function to be exercised with the agreement of, or after consultation with, another person.
4
This section does not apply to any retained functions of the Lord Advocate which fall within section 52(6)(a).
109 Agreed redistribution of property and liabilities.
1
Her Majesty may by Order in Council provide—
a
for the transfer to a Minister of the Crown or government department of any property belonging to the Scottish Ministers or the Lord Advocate, or
b
for a Minister of the Crown or government department to have such rights or interests in relation to any property belonging to the Scottish Ministers or the Lord Advocate as Her Majesty considers appropriate (whether in connection with a transfer or otherwise).
2
Her Majesty may by Order in Council provide for the transfer to a Minister of the Crown or government department of any liabilities to which the Scottish Ministers or the Lord Advocate are subject.
3
An Order in Council under this section may only be made in connection with any transfer or sharing of functions of a member of the F142Scottish Government by virtue of section 108 or in any other circumstances in which Her Majesty considers it appropriate to do so for the purposes of this Act.
110 Scottish taxpayers for social security purposes.
1
The Secretary of State may by order provide for individuals of any description specified in the order to be treated for the purposes of any of the matters that are reserved matters by virtue of Head F of Part II of Schedule 5 as if they were, or were not, Scottish taxpayers.
2
The Secretary of State may by order provide in relation to any year of assessment that, for those purposes, the basic rate in relation to the income of Scottish taxpayers shall be treated as being such rate as is specified in the order (instead of the rate increased or reduced for that year by virtue of any resolution of the Parliament in pursuance of section 73 passed after the beginning of the year).
3
An order under this section may apply in respect of any individuals whether Scotland is the part of the United Kingdom with which they have the closest connection or not.
4
In this section “Scottish taxpayer” has the same meaning as in Part IV.
111 Regulation of Tweed and Esk fisheries.
1
Her Majesty may by Order in Council make provision for or in connection with the conservation, management and exploitation of F36salmon, trout, eels, lampreys, smelt, shad and freshwater fish in the Border rivers.
2
An Order under subsection (1) may—
a
exclude the application of section 53 in relation to any Border rivers function,
b
confer power to make subordinate legislation.
3
In particular, provision may be made by such an Order—
a
conferring any function on a Minister of the Crown, the Scottish Ministers or a public body in relation to the Border rivers,
b
for any Border rivers function exercisable by any person to be exercisable instead by a person (or another person) mentioned in paragraph (a),
c
for any Border rivers function exercisable by any person to be exercisable concurrently or jointly with, or with the agreement of or after consultation with, a person (or another person) mentioned in paragraph (a).
4
In this section—
“the Border rivers” means the Rivers Tweed and Esk,
“Border rivers function” means a function conferred by any enactment, so far as exercisable in relation to the Border rivers,
“conservation”, in relation to F37salmon, trout, eels, lampreys, smelt, shad and freshwater fish, includes the protection of their environment,
“eels”, F38“fish”, “freshwater fish”, “salmon”F39, “smelt” and “trout” have the same meanings as in the M39Salmon and Freshwater Fisheries Act 1975 F40(as amended by the Marine and Coastal Access Act 2009),
“the River Tweed” F41means the Tweed district (as defined in article 2(1) of the Scotland Act 1998 (River Tweed) Order 2006 (S.I. 2006/2913)).
“the River Esk” means the river of that name which, for part of its length, constitutes the border between England and Scotland including—
- a
its tributary streams (which for this purpose include the River Sark and its tributary streams), and
- b
such waters on the landward side of its estuary limits as are determined by an Order under subsection (1),
together with its banks;
- a
and references to the Border rivers include any part of the Border rivers.
5
An Order under subsection (1) may modify the definitions in subsection (4) of the River Tweed and the River Esk.
F426
An Order under subsection (1) may amend that subsection so as to—
a
add any description of fish to it, or
b
remove any description of fish from it.
Part VI Supplementary
Subordinate legislation
112 Subordinate legislation: general.
1
Any power to make subordinate legislation conferred by this Act shall, if no other provision is made as to the person by whom the power is exercisable, be exercisable by Her Majesty by Order in Council or by a Minister of the Crown by order.
2
But the power to make subordinate legislation under section 129(1) providing—
a
for the appropriation of sums forming part of the Scottish Consolidated Fund, or
b
for sums received by any person to be appropriated in aid of sums appropriated as mentioned in paragraph (a),
shall be exercisable only by Her Majesty by Order in Council.
3
References in this Act to an open power are to a power to which subsection (1) applies (and include a power to make subordinate legislation under section 129(1) whether or not the legislation makes provision as mentioned in subsection (2)).
4
An Order in Council under an open power may revoke, amend or re-enact an order, as well as an Order in Council, under the power; and an order under an open power may revoke, amend or re-enact an Order in Council, as well as an order, under the power.
5
Any power to make subordinate legislation conferred by this Act shall, in relation to its exercise by a Minister of the Crown or a member of the F142Scottish Government, be exercisable by statutory instrument.
F1696
Section 27 of the Interpretation and Legislative Reform (Scotland) Act 2010 (asp 10) (functions exercisable by Scottish statutory instrument) applies to the function of making an Order in Council under section 15(1) or (2).
C111113 Subordinate legislation: scope of powers.
1
References in this section to a power are to an open power and to any other power to make subordinate legislation conferred by this Act which is exercisable by Her Majesty in Council or by a Minister of the Crown, and include a power as extended by this section.
2
A power may be exercised so as to make different provision for different purposes.
3
A power (as well as being exercisable in relation to all cases to which it extends) may be exercised in relation to—
a
those cases subject to specified exceptions, or
b
any particular case or class of case.
4
A power includes power to make—
a
any supplementary, incidental or consequential provision, and
b
any transitory, transitional or saving provision,
which the person making the legislation considers necessary or expedient.
5
A power may be exercised by modifying—
a
any enactment or prerogative instrument,
b
any other instrument or document,
if the subordinate legislation (or a statutory instrument containing it) would be subject to any of the types of procedure referred to in Schedule 7.
6
But a power to modify enactments does not (unless otherwise stated) extend to making modifications of this Act or subordinate legislation under it.
7
A power may be exercised so as to make provision for the delegation of functions.
8
A power includes power to make provision for sums to be payable out of the Scottish Consolidated Fund or charged on the Fund.
9
A power includes power to make provision for the payment of sums out of money provided by Parliament or for sums to be charged on and paid out of the Consolidated Fund.
F1709A
A power may not be exercised so as to create any criminal offence punishable with any of the penalties specified for the offence in subsection (9B) or (10).
9B
In relation to Scotland, the specified penalties are—
a
where the offence is triable on summary complaint only, imprisonment for a period exceeding 12 months and a fine exceeding level 5 on the standard scale,
b
where an offence triable either on indictment or on summary complaint is tried on summary complaint, imprisonment for a period exceeding 12 months and a fine exceeding the statutory maximum,
c
where the offence is tried on indictment, imprisonment for a period exceeding two years.
10
In relation to England and Wales and Northern Ireland, the specified penalties are—
a
where the offence is tried summarily, imprisonment for a period exceeding three months and a fine exceeding—
i
in the case of a summary offence, level 5 on the standard scale,
ii
in the case of an offence triable either way, the statutory maximum,
b
where the offence is tried on indictment, imprisonment for a period exceeding two years.
11
The fact that a power is conferred does not prejudice the extent of any other power.
F17112
Her Majesty may by Order in Council amend subsection (9B) or (10) so as to change—
a
any period of imprisonment specified there, or
b
the amount of any fine so specified.
114 Subordinate legislation: particular provisions.
1
A power to make subordinate legislation conferred by any of the following provisions of this Act may be exercised by modifying any enactment comprised in or made under this Act (except Schedules 4 and 5): sections 89, 104, 107, 108 and 129(1).
2
The reference in subsection (1) to a power to make subordinate legislation includes a power as extended by section 113.
3
A power to make subordinate legislation conferred by any of the following provisions of this Act may be exercised so as to make provision having retrospective effect: sections 30, 58(4), 104 and 107.
115 Subordinate legislation: procedure.
1
Schedule 7 (which determines the procedure which is to apply to subordinate legislation under this Act in relation to each House of Parliament and the Scottish Parliament) shall have effect.
P12
In spite of the fact that that Schedule provides for subordinate legislation under a particular provision of this Act (or the statutory instrument containing it) to be subject to any type of procedure in relation to the Parliament, the provision conferring the power to make that legislation may be brought into force at any time after the passing of this Act.
3
Accordingly, any subordinate legislation (or the statutory instrument containing it) made in the exercise of the power in the period beginning with that time and ending immediately before the principal appointed day is to be subject to such other type of procedure (if any) as may be specified in subordinate legislation made under section 129(1).
116 Transfer of property: supplementary.
1
This section applies in relation to subordinate legislation under section 60, 62, 90 or 109 or paragraph 2 of Schedule 2.
2
Any such subordinate legislation may, in particular—
a
provide for the creation of rights or interests, or the imposition of liabilities or conditions, in relation to property transferred, or rights or interests acquired, by virtue of such legislation,
b
provide for any property, liabilities or conditions to be determined under such legislation,
c
make provision (other than provision imposing a charge to tax) as to the tax treatment of anything done by virtue of such legislation.
3
No order shall be made by a Minister of the Crown by virtue of subsection (2)(c), and no recommendation shall be made to Her Majesty in Council to make an Order in Council by virtue of subsection (2)(c), without the agreement of the Treasury.
4
Subordinate legislation to which this section applies shall have effect in relation to any property or liabilities to which it applies despite any provision (of whatever nature) which would otherwise prevent, penalise or restrict the transfer of the property or liabilities.
5
A right of pre-emption, right of irritancy, right of return or other similar right shall not operate or become exercisable as a result of any transfer of property by virtue of any subordinate legislation to which this section applies.
6
Any such right shall have effect in the case of any such transfer as if the transferee were the same person in law as the transferor and as if no transfer of the property had taken place.
7
Such compensation as is just shall be paid to any person in respect of any such right which would, apart from subsection (5), have operated in favour of, or become exercisable by, that person but which, in consequence of the operation of that subsection, cannot subsequently operate in his favour or (as the case may be) become exercisable by him.
8
Any compensation payable by virtue of subsection (7) shall be paid by the transferor or by the transferee or by both.
9
Subordinate legislation under this subsection may provide for the determination of any disputes as to whether and, if so, how much, compensation is payable by virtue of subsection (7) and as to the person to whom or by whom it shall be paid.
10
Subsections (4) to (9) apply in relation to the creation of rights or interests, or the doing of anything else, in relation to property as they apply in relation to a transfer of property; and references to the transferor and transferee shall be read accordingly.
11
A certificate issued by the Secretary of State that any property or liability has, or has not, been transferred by virtue of subordinate legislation under section 60 or 62 or paragraph 2 of Schedule 2 shall be conclusive evidence of the transfer or (as the case may be) the fact that there has not been a transfer.
12
A certificate issued by the Secretary of State and the Scottish Ministers that any property or liability has, or has not, been transferred by virtue of an Order in Council under section 90 or 109 shall be conclusive evidence of the transfer or (as the case may be) the fact that there has not been a transfer.
13
In this section “right of return” means any right under a provision for the return or reversion of property in specified circumstances.
General modification of enactments
C71C72C73C74C75C76C77C78C79C80C81C82117 Ministers of the Crown.
So far as may be necessary for the purpose or in consequence of the exercise of a function by a member of the F142Scottish Government within devolved competence, any pre-commencement enactment or prerogative instrument, and any other instrument or document, shall be read as if references to a Minister of the Crown (however described) were or included references to the Scottish Ministers.
C83C84C85C86C87C88C89C90C91118 Subordinate instruments.
1
Subsection (2) applies in relation to the exercise by a member of the F142Scottish Government within devolved competence of a function to make, confirm or approve subordinate legislation.
2
If a pre-commencement enactment makes provision—
a
for any instrument or the draft of any instrument made in the exercise of such a function to be laid before Parliament or either House of Parliament,
b
for the annulment or approval of any such instrument or draft by or in pursuance of a resolution of either or both Houses of Parliament, or
c
prohibiting the making of such an instrument without that approval,
the provision shall have effect, so far as it relates to the exercise of the function by a member of the F142Scottish Government within devolved competence, as if any reference in it to Parliament or either House of Parliament were a reference to the Scottish Parliament.
3
Where—
a
a function of making, confirming or approving subordinate legislation conferred by a pre-commencement enactment is exercisable by a Scottish public authority with mixed functions or no reserved functions, and
b
a pre-commencement enactment makes such provision in relation to the exercise of the function as is mentioned in subsection (2),
the provision shall have effect, so far as it relates to the exercise of the function by that authority, as if any reference in it to Parliament or either House of Parliament were a reference to the Scottish Parliament.
4
Where—
a
a function of making, confirming or approving subordinate legislation conferred by a pre-commencement enactment is exercisable within devolved competence by a person other than a Minister of the Crown, a member of the F142Scottish Government or a Scottish public authority with mixed functions or no reserved functions, and
b
a pre-commencement enactment makes such provision in relation to the exercise of the function as is mentioned in subsection (2),
the provision shall have effect, so far as it relates to the exercise of the function by that person within devolved competence, as if any reference in it to Parliament or either House of Parliament were a reference to the Scottish Parliament.
C925
If a pre-commencement enactment applies the M40Statutory Instruments Act 1946 as if a function of the kind mentioned in subsection (3) or (4) were exercisable by a Minister of the Crown, that Act shall apply, so far as the function is exercisable as mentioned in paragraph (a) of subsection (3) or (as the case may be) (4), as if the function were exercisable by the Scottish Ministers.
C93C94C95C96C97C98C99119 Consolidated Fund etc.
1
In this section “Scottish functions” means—
a
functions of the Scottish Ministers, the First Minister or the Lord Advocate which are exercisable within devolved competence,
b
functions of any Scottish public authority with mixed functions or no reserved functions.
2
Subject to subsections (3) and (5), a provision of a pre-commencement enactment which—
a
requires or authorises the payment of any sum out of the Consolidated Fund or money provided by Parliament, or
b
requires or authorises the payment of any sum into the Consolidated Fund,
shall cease to have effect in relation to any Scottish functions.
3
A provision of a pre-commencement enactment which—
a
charges any sum on the Consolidated Fund,
b
requires the payment of any sum out of the Consolidated Fund without further appropriation, or
c
requires or authorises the payment of any sum into the Consolidated Fund by a person other than a Minister of the Crown,
shall have effect in relation to any Scottish functions as if it provided for the sum to be charged on the Scottish Consolidated Fund or required it to be paid out of that Fund without further approval or required or authorised it to be paid into that Fund (as the case may be).
4
Subsections (2) and (3) do not apply to the words from the beginning of section 2(3) of the M41European Communities Act 1972 (general implementation of Treaties) to “such Community obligation”.
5
A provision of a pre-commencement enactment which authorises any sums to be applied as money provided by Parliament instead of being paid into the Consolidated Fund shall have effect in relation to any Scottish functions as if it authorised those sums to be applied as if they had been paid out of the Scottish Consolidated Fund in accordance with rules under section 65(1)(c) instead of being paid into that Fund.
6
Where a power to lend money under a pre-commencement enactment is exercisable by the Scottish Ministers, subsection (7) applies to any sums which, for the purpose or as the result of the exercise of the power, would be required (apart from that subsection)—
a
to be issued by the Treasury out of the National Loans Fund, or
b
to be paid into that Fund.
7
Those sums shall instead—
a
be paid out of the Scottish Consolidated Fund without further approval, or
b
be paid into that Fund,
(as the case may be).
C100C101120 Accounts and audit.
A provision of a pre-commencement enactment which—
a
requires any account to be examined, certified and reported on by, or to be open to the inspection of, the Comptroller and Auditor General, or
b
requires him to have access to any other document for carrying out any such examination,
shall have effect in relation to any Scottish functions (within the meaning of section 119) as if the references to the Comptroller and Auditor General were to the Auditor General for Scotland.
C102C103121 Requirements to lay reports etc. before Parliament.
1
This section applies where—
a
a pre-commencement enactment makes provision for any report to be laid before Parliament or either House of Parliament, and
b
the report concerns Scottish functions.
2
If the report only concerns Scottish functions, it shall be laid instead before the Scottish Parliament.
3
In any other case, it shall be laid before the Scottish Parliament as well as before Parliament or (as the case may be) either House of Parliament.
4
In this section—
“report” includes accounts and any statement,
“Scottish functions” has the same meaning as in section 119.
122 Crown land.
1
In any provision about the application of any pre-commencement enactment to Crown land—
a
references to a Minister of the Crown or government department shall be read as including the Scottish Ministers and the Lord Advocate, and
b
references to a Minister of the Crown or government department having the management of the land shall be read as including any member of the F142Scottish Government having the management of the land.
2
In this section, “Crown land” has the meaning given by section 242 of the M42Town and Country Planning (Scotland) Act 1997.
I20123 Stamp duty.
In section 55 of the M43Finance Act 1987 (Crown exemption from stamp duty) references to a Minister of the Crown shall be read as including the Scottish Ministers, the Lord Advocate and the Parliamentary corporation.
124 Modification of sections 94 and 117 to 122.
1
Subordinate legislation may provide for any provision of sections 94 and 117 to 122 not to apply, or to apply with modifications, in such cases as the person making the legislation considers appropriate.
2
Subordinate legislation made by Her Majesty in Council or a Minister of the Crown under this Act may, in connection with any other provision made by the legislation, also provide for any provision of sections 94 and 117 to 122 not to apply, or to apply with modifications.
Amendments and repeals
I21125 Amendments and repeals.
1
Schedule 8 (which makes modifications of enactments) shall have effect.
2
The enactments mentioned in Schedule 9 are repealed to the extent specified in that Schedule.
Final provisions
126 Interpretation.
P21
In this Act—
“body” includes unincorporated association,
“constituencies” and “regions”, in relation to the Parliament, mean the constituencies and regions provided for by Schedule 1,
“constituency member” means a member of the Parliament for a constituency,
“the Convention rights” has the same meaning as in the M44Human Rights Act 1998,
“document” means anything in which information is recorded in any form (and references to producing a document are to be read accordingly),
“enactment” includes an Act of the Scottish Parliament, Northern Ireland legislation (within the meaning of the M45Northern Ireland Act 1998) and an enactment comprised in subordinate legislation, and includes an enactment comprised in, or in subordinate legislation under, an Act of Parliament, whenever passed or made,
“financial year” means a year ending with 31st March,
“functions” includes powers and duties, and “confer”, in relation to functions, includes impose,
“government department” means any department of the Government of the United Kingdom,
“the Human Rights Convention” means—
- a
the Convention for the Protection of Human Rights and Fundamental Freedoms, agreed by the Council of Europe at Rome on 4th November 1950, and
- b
the Protocols to the Convention,
as they have effect for the time being in relation to the United Kingdom,
- a
“Minister of the Crown” includes the Treasury,
“modify” includes amend or repeal,
“occupational pension scheme”, “personal pension scheme” and “public service pension scheme” have the meanings given by section 1 of the M46Pension Schemes Act 1993, F43. . .
“the Parliament” means the Scottish Parliament,
“parliamentary”, in relation to constituencies, elections and electors, is to be taken to refer to the Parliament of the United Kingdom,
“prerogative instrument” means an Order in Council, warrant, charter or other instrument made under the prerogative,
“the principal appointed day” means the day appointed by an order under section 130 which is designated by the order as the principal appointed day,
“proceedings”, in relation to the Parliament, includes proceedings of any committee or sub-committee,
“property” includes rights and interests of any description,
“regional member” means a member of the Parliament for a region,
“Scotland” includes so much of the internal waters and territorial sea of the United Kingdom as are adjacent to Scotland,
“Scottish public authority” means any public body (except the Parliamentary corporation), public office or holder of such an office whose functions (in each case) are exercisable only in or as regards Scotland,
“the Scottish zone” means the sea within British fishery limits (that is, the limits set by or under section 1 of the M47Fishery Limits Act 1976) which is adjacent to Scotland,
“standing orders” means standing orders of the Parliament,
“subordinate legislation” has the same meaning as in the M48Interpretation Act 1978 and also includes an instrument made under an Act of the Scottish Parliament,
“tribunal” means any tribunal in which legal proceedings may be brought.
2
Her Majesty may by Order in Council determine, or make provision for determining, for the purposes of this Act any boundary between waters which are to be treated as internal waters or territorial sea of the United Kingdom, or sea within British fishery limits, adjacent to Scotland and those which are not.
3
For the purposes of this Act—
a
the question whether any function of a body, government department, office or office-holder relates to reserved matters is to be determined by reference to the purpose for which the function is exercisable, having regard (among other things) to the likely effects in all the circumstances of any exercise of the function, but
b
bodies to which paragraph 3 of Part III of Schedule 5 applies are to be treated as if all their functions were functions which relate to reserved matters.
4
References in this Act to Scots private law are to the following areas of the civil law of Scotland—
a
the general principles of private law (including private international law),
b
the law of persons (including natural persons, legal persons and unincorporated bodies),
c
the law of obligations (including obligations arising from contract, unilateral promise, delict, unjustified enrichment and negotiorum gestio),
d
the law of property (including heritable and moveable property, trusts and succession), and
e
the law of actions (including jurisdiction, remedies, evidence, procedure, diligence, recognition and enforcement of court orders, limitation of actions and arbitration),
and include references to judicial review of administrative action.
5
References in this Act to Scots criminal law include criminal offences, jurisdiction, evidence, procedure and penalties and the treatment of offenders.
6
References in this Act and in any other enactment to the Scottish Administration are to the office-holders in the Scottish Administration and the members of the staff of the Scottish Administration.
7
For the purposes of this Act—
a
references to office-holders in the Scottish Administration are to—
i
members of the F142Scottish Government and junior Scottish Ministers, and
ii
the holders of offices in the Scottish Administration which are not ministerial offices, and
b
references to members of the staff of the Scottish Administration are to the staff of the persons referred to in paragraph (a).
8
For the purposes of this Act, the offices in the Scottish Administration which are not ministerial offices are—
a
the Registrar General of Births, Deaths and Marriages for Scotland, the Keeper of the Registers of Scotland and the Keeper of the Records of Scotland, and
b
any other office of a description specified in an Order in Council made by Her Majesty under this subsection.
9
In this Act—
a
all those rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the F44EU Treaties, and
b
all those remedies and procedures from time to time provided for by or under the F44EU Treaties,
are referred to as “F45EU law”.
10
In this Act, “international obligations” means any international obligations of the United Kingdom other than obligations to observe and implement F45EU law or the Convention rights.
11
In this Act, “by virtue of” includes “by” and “under”.
C104127 Index of defined expressions.
In this Act, the expressions listed in the left-hand column have the meaning given by, or are to be interpreted in accordance with, the provisions listed in the right-hand column.
Expression | Provision of this Act |
|---|---|
Act of the Scottish Parliament | Section 28(1) |
Advocate General | Section 32(4) |
Auditor General for Scotland | Section 69 |
Body | Section 126(1) |
By virtue of | Section 126(11) |
Clerk, and Assistant Clerk | Section 20 and paragraph 3 of Schedule 2 |
F46EU law | Section 126(9) |
Constituencies and constituency member | Section 126(1) |
The Convention rights | Section 126(1) |
Cross-border public authority | Section 88(5) |
Devolved competence (in relation to the exercise of functions) | Section 54 |
F140Devolved tax | Section 80A(4) |
Document | Section 126(1) |
Enactment | Sections 113(6) and 126(1) |
Financial year | Section 126(1) |
Functions | Section 126(1) |
Government department | Section 126(1) |
The Human Rights Convention | Section 126(1) |
International obligations | Section 126(10) |
F47. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . | F47. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . |
Legislative competence | Section 29 |
Member of the F142Scottish Government | Section 44(1) |
Members of the staff of the Scottish Administration | Section 126(7) |
Minister of the Crown | Section 126(1) |
Modify | Section 126(1) |
Occupational pension scheme, personal pension scheme and public service pension scheme | Section 126(1) |
Office-holders in the Scottish Administration | Section 126(7) |
Offices in the Scottish Administration which are not ministerial offices | Section 126(8) |
Open power | Section 112(3) |
The Parliament | Section 126(1) |
“parliamentary” (in relation to constituencies, elections and electors) | Section 126(1) |
The Parliamentary corporation | Section 21(1) |
Pre-commencement enactment | Section 53(3) |
Prerogative instrument | Section 126(1) |
Presiding Officer | Section 19 |
Principal appointed day | Section 126(1) |
Proceedings | Section 126(1) |
Property | Section 126(1) |
Regional list (in relation to a party) | Section 5(4) |
Regional returning officer | Section 12(6) |
Regional vote | Section 6(2) |
Regions and regional member | Section 126(1) |
Registered political party | Section 5(9) |
Reserved matters | Schedule 5 |
Retained functions (in relation to the Lord Advocate) | Section 52(6) |
Scotland | Section 126(1) and (2) |
Scots criminal law | Section 126(5) |
Scots private law | Section 126(4) |
Scottish Administration | Section 126(6) |
Scottish Ministers | Section 44(2) |
Scottish public authority | Section 126(1) |
Scottish public authority with mixed functions or no reserved functions | Paragraphs 1 and 2 of Part III of Schedule 5 |
Scottish Seal | Section 2(6) |
The Scottish zone | Section 126(1) |
Staff of the Parliament | Paragraph 3 of Schedule 2 |
Standing orders | Section 126(1) |
Subordinate legislation | Section 126(1) |
Tribunal | Section 126(1) |
128 Expenses.
1
There shall be paid out of money provided by Parliament—
a
any expenditure incurred by a Minister of the Crown by virtue of this Act, and
b
any increase attributable to this Act in the sums payable out of money so provided under any other enactment.
2
There shall be paid into the Consolidated Fund any sums received by a Minister of the Crown by virtue of this Act which are not payable into the National Loans Fund.
129 Transitional provisions etc.
1
Subordinate legislation may make such provision as the person making the legislation considers necessary or expedient for transitory or transitional purposes in connection with the coming into force of any provision of this Act.
2
If any of the following provisions come into force before the M49Human Rights Act 1998 has come into force (or come fully into force), the provision shall have effect until the time when that Act is fully in force as it will have effect after that time: sections 29(2)(d), 57(2) and (3), 100 and 126(1) and Schedule 6.
P3130 Commencement.
1
Sections 19 to 43, Parts II to V, sections 117 to 124 and section 125 (except so far as relating to paragraphs 10, 11, 19 and 23(1) and (6) of Schedule 8) shall come into force on such day as the Secretary of State may by order appoint.
2
Different days may be appointed under this section for different purposes.
131 Extent.
Section 25 extends only to Scotland.
132 Short title.
This Act may be cited as the Scotland Act 1998.
SCHEDULES
F130SCHEDULE 1Constituencies, regions and regional members
Sch. 1 substituted (22.7.2004 with effect subject to transitional modifications set out in Sch. 2 of the amending Act until "the appropriate date", see s. 1(2)(3) of the amending Act) by Scottish Parliament (Constituencies) Act 2004 (c. 13), s. 1(1)-(4), Sch. 1 (however, paras. 3-14 of Sch. 1 as so substituted or as so substituted and modified (as the case may be) have no effect until 30.6.2007, see s. 1(4))
General
1
1
There are to be 73 constituencies for the purposes of this Act.
2
The constituencies are—
a
the Orkney Islands,
b
the Shetland Islands, and
F172c
the constituencies provided for by an Order in Council under paragraph 6.
F48 3
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2
1
There are to be eight regions for the purposes of this Act.
F1732
The regions are the regions provided for by an Order in Council under paragraph 6.
3
Seven regional members are to be returned for each region.
Reports of F166the Boundary Commission for Scotland
Words in Sch. 1 substituted (31.10.2012) by Scotland Act 2012 (c. 11), s. 44(5), Sch. 1 para. 2; S.I. 2012/2516, art. 2(f)
3
1
F166The Boundary Commission for Scotland must keep under review the boundaries of the constituencies (other than those mentioned in paragraph 1(2)(a) and (b)).
2
The review must be conducted in accordance with the constituency rules.
3
F166The Boundary Commission for Scotland must submit to the Secretary of State a report—
a
showing the alterations they propose to the boundaries, or
b
stating that in their opinion no alteration should be made.
4
The first report of F166the Boundary Commission for Scotland under this paragraph must be submitted to the Secretary of State not later than 30 June 2010.
5
Subsequent reports must be submitted not less than eight nor more than twelve years after the date of the submission of the last report.
6
F166The Boundary Commission for Scotland may also from time to time (but not before the submission of their first report) submit to the Secretary of State reports with respect to the area comprised in any two or more constituencies showing the constituencies into which they recommend the area should be divided in order to give effect to the constituency rules.
7
A report under sub-paragraph (6) must recommend the same number of constituencies as that in which the area is comprised.
8
A report of F166the Boundary Commission for Scotland which recommends an alteration to the boundaries of constituencies must state as respects each constituency—
a
the name by which they recommend it is to be known;
b
whether they recommend that it is to be a county or a burgh constituency.
9
As soon as practicable after F166the Boundary Commission for Scotland have submitted a report to the Secretary of State under this paragraph he must lay before Parliament—
a
the report, and
b
the draft of an Order in Council for giving effect to the recommendations contained in the report.
10
Sub-paragraph (9)(b) does not apply if the report states that no alteration is required to be made to the boundaries of the constituencies.
11
F166The Boundary Commission for Scotland must at the same time as they submit a report in accordance with sub-paragraph (3) or (6) lay any report recommending an alteration in the constituencies before the Parliament.
4
1
This paragraph applies if F166the Boundary Commission for Scotland submit a report to the Secretary of State recommending an alteration in a constituency.
2
In the report F166the Boundary Commission for Scotland must recommend any alteration in any of the regions which they think is necessary to give effect to the regional rules.
3
A report making a recommendation for an alteration in a region must recommend the name by which F166the Boundary Commission for Scotland think the region should be known.
F165...
Sch. 1 para. 5 and cross-heading omitted (31.10.2012) by virtue of Scotland Act 2012 (c. 11), s. 44(5), Sch. 1 para. 3; S.I. 2012/2516, art. 2(f)
F1655
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Orders in Council
6
1
The draft of an Order in Council laid before Parliament by the Secretary of State for giving effect to the recommendations contained in a report by F166the Boundary Commission for Scotland under paragraph 3 may make provision for any matters which he thinks are incidental to or consequential on the recommendations.
2
If the draft is approved by resolution of each House of Parliament the Secretary of State must submit it to Her Majesty in Council.
3
If a motion for the approval of the draft is rejected by either House of Parliament or withdrawn by leave of the House the Secretary of State may amend the draft and lay the amended draft before Parliament.
4
If the draft as so amended is approved by resolution of each House of Parliament the Secretary of State must submit it to Her Majesty in Council.
5
If a draft of an Order in Council is submitted to Her Majesty in Council under this Schedule, Her Majesty in Council may make an order in terms of the draft.
6
An Order in Council made as mentioned in sub-paragraph (5) comes into force on the date specified in the Order.
7
The coming into force of the Order does not affect the return of any member to the Parliament or its constitution until the Parliament is dissolved.
8
The validity of an Order in Council purporting to be made under this Schedule and reciting that a draft of the Order has been approved by a resolution of each House of Parliament must not be called in question in any legal proceedings whatsoever.
Notice of proposed report or recommendations
7
1
If F166the Boundary Commission for Scotland intend to consider making a report under this Schedule—
a
they must inform the Secretary of State by notice in writing;
b
they must publish a copy of the notice in the Edinburgh Gazette.
F1752
If the Boundary Commission for Scotland have provisionally determined to make recommendations affecting a constituency they must publish in at least one newspaper circulating in the constituency a notice stating—
a
the effect of the proposed recommendations and (except if the effect is that no alteration should be made in respect of the constituency) that a copy of the recommendations is open to inspection at a specified place in the constituency, and
b
that representations with respect to the proposed recommendations may be made to the Commission before the end of the period of one month starting the day after the notice is published.
3
F166The Boundary Commission for Scotland must take into account any representations made in accordance with the notice.
4
If F166the Boundary Commission for Scotland revise any proposed recommendations after publishing notice of them under sub-paragraph (2) they must comply again with sub-paragraphs (2) and (3) in relation to the revised recommendations as if no earlier notice had been published.
F1745
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1746
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
8
F1761
This paragraph applies if the Boundary Commission for Scotland provisionally determine to make recommendations which would involve any alteration in a constituency.
2
F166The Boundary Commission for Scotland must consider whether any alteration within paragraph 4(2) would be required in order to give effect to the regional rules.
F1773
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4
Paragraph 7 applies for the purposes of the proposed recommendations as if for any reference to a constituency there is substituted a reference to a region.
Local inquiries
9
1
F166The Boundary Commission for Scotland may if they think fit cause a local inquiry to be held in respect of any constituency or constituencies.
2
If F166the Boundary Commission for Scotland receive any relevant representations objecting to a proposed recommendation for the alteration of a constituency they must not make the recommendation unless since the publication of the notice under paragraph 7(2) a local inquiry has been held in respect of the constituency.
3
If a local inquiry was held in respect of the constituency before the publication of the notice under paragraph 7(2), sub-paragraph (2) above does not apply if F166the Boundary Commission for Scotland after considering—
a
the matters discussed at the inquiry,
b
the nature of the relevant representations received, and
c
any other relevant circumstances,
think that a further local inquiry is not justified.
4
A relevant representation is a representation made in accordance with paragraph 7(2)(b)—
a
by the council for an area which is wholly or partly comprised in the constituency;
b
by a body of not less than 100 persons entitled to vote as electors at an election for membership of the Parliament held in the constituency.
10
1
F166The Boundary Commission for Scotland may if they think fit cause a local inquiry to be held in respect of any region or regions.
2
If F166the Boundary Commission for Scotland receive any relevant representations objecting to a proposed recommendation for the alteration of a region they must not make the recommendation unless since the publication of the notice under paragraph 7(2) a local inquiry has been held in respect of the region.
3
If a local inquiry was held in respect of the region before the publication of the notice under paragraph 7(2), sub-paragraph (2) above does not apply if F166the Boundary Commission for Scotland after considering—
a
the matters discussed at the inquiry,
b
the nature of the relevant representations received, and
c
any other relevant circumstances,
think that a further local inquiry is not justified.
4
A relevant representation is a representation made in accordance with paragraph 7(2)(b)—
a
by the council for an area which is wholly or partly included in the region;
b
by a body of not less than 500 persons entitled to vote as electors at an election for membership of the Parliament held in any one or more of the constituencies included in the region.
11
Section 210(4) and (5) of the Local Government (Scotland) Act 1973 (c. 69) (attendance of witnesses at inquiries) applies in relation to a local inquiry held under paragraph 9 or 10.
The constituency rules
12
These are the constituency rules.
Rule 1
Rule 2
(1) The electorate of a constituency must be as near the electoral quota as is practicable, having regard to Rule 1.
(2) F178The Boundary Commission for Scotland may depart from the strict application of Rule 1 if they think that it is desirable to do so to avoid an excessive disparity between the electorate of a constituency and the electoral quota or between the electorate of a constituency and that of neighbouring constituencies.
(3) The electoral quota is the number obtained by dividing the total electorate by 71.
(4) The electorate of a constituency is the aggregate of the persons falling within paragraphs (5) and (6) below.
(5) A person falls within this paragraph if his name appears on the register of local government electors in force on the enumeration date under the Representation of the People Acts for a local government area which is situated wholly in the constituency.
(6) A person falls within this paragraph if his name appears on the register of local government electors in force on the enumeration date under the Representation of the People Acts for a local government area which is situated partly in the constituency and his qualifying address is situated in the constituency.
(7) The total electorate is the total number of persons whose names appear on the registers of local government electors in force on the enumeration date under the Representation of the People Acts for all of the local government areas in Scotland (except the local government areas of Orkney and Shetland).
(8) The enumeration date is, in relation to a report of F166the Boundary Commission for ScotlandF179..., the date on which notice with respect to the report is published in the Edinburgh Gazette in accordance with paragraph 7(1) above.
(9) “ Qualifying address ” and “ local government area ” have the same meanings as in the Representation of the People Act 1983 (c. 2).
Rule 3
F178The Boundary Commission for Scotland may depart from the strict application of Rules 1 and 2 if they think that special geographical considerations (including in particular the size, shape and accessibility of a constituency) render it desirable to do so.
Rule 4
F178The Boundary Commission for Scotland need not aim at giving full effect in all circumstances to Rules 1 to 3 but they must take account (so far as they reasonably can)—
(a) of the inconveniences attendant on alterations of constituencies other than alterations made for the purposes of Rule 1, and
(b) of any local ties which would be broken by such alterations.
The regional rules
13
These are the regional rules.
Rule 1
A constituency must fall wholly within a region.
Rule 2
The regional electorate of a region must be as near the regional electorate of each of the other regions as is practicable, having regard (where appropriate) to special geographical considerations.
14
1
This paragraph applies for the purposes of the regional rules.
2
For the purposes of a report of F166the Boundary Commission for Scotland in relation to a region, the regional electorate is the number of persons—
a
whose names appear on the enumeration date on the registers of local government electors in the region, and
b
who are registered at addresses within a constituency included in the region.
3
The enumeration date is the date on which notice with respect to the report is published in the Edinburgh Gazette in accordance with paragraph 7(1) above.
F1824
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SCHEDULE 2 Scottish Parliamentary Corporate Body
Membership
1
A person appointed under section 21(2)(b) shall hold office until another member of the Parliament is appointed in his place unless he previously resigns, ceases to be a member of the Parliament otherwise than by virtue of a dissolution or is removed from office by resolution of the Parliament.
Property
I222
1
The corporation may hold property.
2
Subordinate legislation may provide—
a
for the transfer to the corporation of any property belonging to a Minister of the Crown or government department, or
b
for the corporation to have such rights or interests in relation to any property belonging to a Minister of the Crown or government department as the person making the legislation considers appropriate (whether in connection with a transfer or otherwise).
3
Subordinate legislation under sub-paragraph (2) in relation to any property may provide for the transfer to the corporation of any liabilities relating to the property to which a Minister of the Crown or government department is subject and which subsist immediately before the subordinate legislation comes into force.
4
Subordinate legislation under sub-paragraph (2) may only be made if the person making the legislation considers it appropriate to do so to enable the corporation to exercise its functions or to facilitate their exercise or in connection with their exercise or proposed exercise.
Staff
3
1
The corporation shall appoint Assistant Clerks and may appoint other staff.
2
The Clerk and other persons appointed by the corporation are referred to in this Act as the staff of the Parliament.
3
It is for the corporation to determine the terms and conditions of appointment of the staff of the Parliament, including arrangements for the payment of pensions, gratuities or allowances to, or in respect of, any person who has ceased to be a member of the staff of the Parliament.
4
In particular, the corporation may—
a
make contributions or payments towards provision for such pensions, gratuities or allowances,
b
establish and administer one or more pension schemes.
Powers
4
1
Subject to sub-paragraph (4), the corporation may do anything which appears to it to be necessary or expedient for the purpose of or in connection with the discharge of its functions.
2
That includes, in particular—
a
entering into contracts,
b
charging for goods or services,
c
investing sums not immediately required in relation to the discharge of its functions, and
d
accepting gifts.
3
The corporation may sell goods or provide services, and may make arrangements for the sale of goods or provision of services, to the public.
4
The corporation may borrow sums in sterling by way of overdraft or otherwise for the purpose of meeting a temporary excess of expenditure over sums otherwise available to meet that expenditure.
5
The corporation may borrow money only under sub-paragraph (4) and may borrow under that sub-paragraph only in accordance with the special or general approval of the Parliament.
Delegation
5
The corporation may delegate any of its functions to the Presiding Officer or the Clerk.
Proceedings and business
6
1
The validity of any act of the corporation shall not be affected by any vacancy among the members, or by any defect in the appointment, or qualification for membership, of any member.
2
The corporation may determine its own procedure.
3
The Presiding Officer shall preside at meetings of the corporation, but the corporation may appoint another of its members to preside if the office of Presiding Officer is vacant or the Presiding Officer is for any reason unable to act.
Crown status
I237
1
Her Majesty may by Order in Council provide for the corporation to be treated to any extent as a Crown body for the purposes of any enactment.
2
In particular, the Order may for the purposes of any enactment provide—
a
for employment under the corporation to be treated as employment under the corporation as a Crown body,
b
for land held, used or managed by the corporation, or operations carried out by or on behalf of the corporation, to be treated (as the case may be) as land held, used or managed, or operations carried out by or on behalf of, the corporation as a Crown body.
3
For the purposes of this paragraph, “Crown body” means a body which is the servant or agent of the Crown, and includes a government department.
SCHEDULE 3 Standing orders – further provision
Preservation of order
1
1
The standing orders shall include provision for preserving order in the proceedings of the Parliament, including provision for—
a
preventing conduct which would constitute a criminal offence or contempt of court, and
b
a sub judice rule.
2
Such provision may provide for excluding a member of the Parliament from proceedings.
Withdrawal of rights and privileges
2
The standing orders may include provision for withdrawing from a member of the Parliament his rights and privileges as a member.
Proceedings to be in public
3
1
The standing orders shall include provision requiring the proceedings of the Parliament to be held in public, except in such circumstances as the standing orders may provide.
2
The standing orders may include provision as to the conditions to be complied with by any member of the public attending the proceedings, including provision for excluding from the proceedings any member of the public who does not comply with those conditions.
Reporting and publishing proceedings
4
The standing orders shall include provision for reporting the proceedings of the Parliament and for publishing the reports.
The Presiding Officer and deputies
F1615
1
The standing orders shall include provision for ensuring that the available officers do not all represent the same political party.
2
The available officers are—
a
the Presiding Officer and the deputies appointed under section 19(1), except in the case where one or more of them is unable to act and there is at least one additional deputy;
b
in that case, such of the Presiding Officer and deputies as are for the time being able to act.
Committees
6
1
Standing orders which provide for the appointment of committees may include provision for those committees to have power to appoint sub-committees.
2
The standing orders shall include provision for ensuring that, in appointing members to committees and sub-committees, regard is had to the balance of political parties in the Parliament.
3
The standing orders may include provision for excluding from the proceedings of a committee or sub-committee a member of the Parliament who is not a member of the committee or sub-committee.
Crown interests
7
The standing orders shall include provision for ensuring that a Bill containing provisions which would, if the Bill were a Bill for an Act of Parliament, require the consent of Her Majesty, the Prince and Steward of Scotland or the Duke of Cornwall shall not pass unless such consent has been signified to the Parliament.
SCHEDULE 4 Enactments etc. protected from modification
Part I The protected provisions
Particular enactments
1
1
An Act of the Scottish Parliament cannot modify, or confer power by subordinate legislation to modify, any of the following provisions.
2
The provisions are—
a
b
the M52Private Legislation Procedure (Scotland) Act 1936,
c
the following provisions of the M53European Communities Act 1972—
Section 1 and Schedule 1,
Section 2, other than subsection (2), the words following “such Community obligation” in subsection (3) and the words “subject to Schedule 2 to this Act” in subsection (4),
Section 3(1) and (2),
Section 11(2),
d
paragraphs 5(3)(b) and 15(4)(b) of Schedule 32 to the M54Local Government, Planning and Land Act 1980 (designation of enterprise zones),
e
sections 140A to 140G of the M55Social Security Administration Act 1992 (rent rebate and rent allowance subsidy and council tax benefit),
f
the M56Human Rights Act 1998.
The law on reserved matters
2
1
An Act of the Scottish Parliament cannot modify, or confer power by subordinate legislation to modify, the law on reserved matters.
2
In this paragraph, “the law on reserved matters” means—
a
any enactment the subject-matter of which is a reserved matter and which is comprised in an Act of Parliament or subordinate legislation under an Act of Parliament, and
b
any rule of law which is not contained in an enactment and the subject-matter of which is a reserved matter,
and in this sub-paragraph “Act of Parliament” does not include this Act.
3
Sub-paragraph (1) applies in relation to a rule of Scots private law or Scots criminal law (whether or not contained in an enactment) only to the extent that the rule in question is special to a reserved matter or the subject-matter of the rule is—
a
interest on sums due in respect of taxes or excise duties and refunds of such taxes or duties, or
b
the obligations, in relation to occupational or personal pension schemes, of the trustees or managers F49or
F49c
the obligations under an order made by virtue of section 12A(2) or (3) of the Family Law (Scotland) Act 1985 M57(orders relating to pensions lump sums) of the person responsible for a pension arrangement other than an occupational or personal pension scheme; or
F504
In sub paragraph (3)(c) “pension arrangement” and “person responsible for a pension arrangement” have the same meaning as in section 27(1) of the Family Law (Scotland) Act 1985.
3
1
Paragraph 2 does not apply to modifications which—
a
are incidental to, or consequential on, provision made (whether by virtue of the Act in question or another enactment) which does not relate to reserved matters, and
b
do not have a greater effect on reserved matters than is necessary to give effect to the purpose of the provision.
2
In determining for the purposes of sub-paragraph (1)(b) what is necessary to give effect to the purpose of a provision, any power to make laws other than the power of the Parliament is to be disregarded.
This Act
4
1
An Act of the Scottish Parliament cannot modify, or confer power by subordinate legislation to modify, this Act.
2
This paragraph does not apply to modifying sections 1(4), 17(5), 19(7), 21(5), 24(2), 28(5), 39(7), 40 to 43, 50, 69(3), 85 F51, 93 and 97 and paragraphs 4(1) to (3) and 6(1) of Schedule 2.
3
This paragraph does not apply to modifying any provision of this Act (other than sections 64(7), 66(2), 71(7), 77, 78 and 119) which—
a
charges any sum on the Scottish Consolidated Fund,
b
requires any sum to be paid out of that Fund without further approval, F52. . .
F53c
requires any sum to be payable out of that Fund, or
d
requires or authorises the payment of any sum into that Fund.
4
This paragraph does not apply to any modifications of Part III which are necessary or expedient for the purpose or in consequence of the establishment of a new fund, in addition to the Scottish Consolidated Fund, out of which loans may be made by the Scottish Ministers.
5
This paragraph does not apply to—
a
modifying so much of any enactment as is modified by this Act,
b
repealing so much of any provision of this Act as amends any enactment, if the provision ceases to have effect in consequence of any enactment comprised in or made under an Act of the Scottish Parliament.
F1624A
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Enactments modified by this Act
5
An Act of the Scottish Parliament cannot modify, or confer power by subordinate legislation to modify—
a
the effect of section 119(3) in relation to any provision of an Act of Parliament relating to judicial salaries,
b
so much of any enactment as—
i
is amended by paragraph 2, 7 or 32 of Schedule 8, and
ii
relates to the Advocate General,
c
so much of any enactment as is amended by paragraph 9(b) or 29 of Schedule 8.
Part II General exceptions
Restatement, etc.
7
1
Part I of this Schedule does not prevent an Act of the Scottish Parliament—
a
restating the law (or restating it with such modifications as are not prevented by that Part), or
b
repealing any spent enactment,
or conferring power by subordinate legislation to do so.
2
For the purposes of paragraph 2, the law on reserved matters includes any restatement in an Act of the Scottish Parliament, or subordinate legislation under such an Act, of the law on reserved matters if the subject-matter of the restatement is a reserved matter.
Effect of Interpretation Act 1978
8
Part I of this Schedule does not prevent the operation of any provision of the M60Interpretation Act 1978.
Change of title etc.
9
1
Part I of this Schedule does not prevent an Act of the Scottish Parliament amending, or conferring power by subordinate legislation to amend, any enactment by changing—
a
any of the titles referred to in sub-paragraph (2), or
b
any reference to a declarator,
in consequence of any provision made by or under an Act of the Scottish Parliament.
2
The titles are those of—
a
any court or tribunal or any judge, chairman or officer of a court or tribunal,
b
any holder of an office in the Scottish Administration which is not a ministerial office or any member of the staff of the Scottish Administration,
c
any register.
Accounts and audit and maladministration
10
Part I of this Schedule does not prevent an Act of the Scottish Parliament modifying, or conferring power by subordinate legislation to modify, any enactment for or in connection with the purposes of section 70 or 91.
Subordinate legislation
11
1
Part I of this Schedule does not prevent an Act of the Scottish Parliament modifying, or conferring power by subordinate legislation to modify, any enactment for or in connection with any of the following purposes.
2
Those purposes are—
a
making different provision in respect of the document by which a power to make subordinate legislation within sub-paragraph (3) is to be exercised,
b
making different provision (or no provision) for the procedure, in relation to the Parliament, to which legislation made in the exercise of such a power (or the instrument or other document in which it is contained) is to be subject,
c
applying any enactment comprised in or made under an Act of the Scottish Parliament relating to the documents by which such powers may be exercised.
3
The power to make the subordinate legislation, or a power to confirm or approve the legislation, must be exercisable by—
a
a member of the Scottish Executive,
b
any Scottish public authority with mixed functions or no reserved functions,
c
any other person (not being a Minister of the Crown) within devolved competence.
F1834
For the purposes of sub-paragraph (3)(c), the function of Her Majesty of making an Order in Council under section 15(1) or (2) (power to specify persons disqualified from membership of the Parliament) is to be regarded as being exercisable within devolved competence.
Part III Consequential modification of sections 53 and 54
12
1
This paragraph applies to a function which (apart from this Schedule) would be transferred to the Scottish Ministers by virtue of section 53(2)(c).
2
If, because of anything in Part I of this Schedule, a provision of an Act of the Scottish Parliament modifying an enactment so as to provide for the function to be exercisable by a different person would be outside the legislative competence of the Parliament, the function is not so transferred.
13
1
Paragraph 12 does not apply to any function conferred by any provision of—
a
the M61European Communities Act 1972,
b
the M62Human Rights Act 1998, except sections 1, 5, 14 to 17 and 22 of that Act,
c
the law on reserved matters (for the purposes of paragraph 2) so far as contained in an enactment.
2
For the purpose of determining—
a
whether any function under any of the provisions referred to in sub-paragraph (1) is transferred to the Scottish Ministers by virtue of section 53, and
b
the extent to which any such function (other than a function of making, confirming or approving subordinate legislation) is exercisable by them,
the references in section 54 to the legislative competence of the Parliament are to be read as if section 29(2)(c) were omitted.
3
Part I of this Schedule does not prevent an Act of the Scottish Parliament modifying, or conferring power by subordinate legislation to modify, any of the provisions mentioned in sub-paragraph (1) so as to provide for a function transferred to the Scottish Ministers by virtue of section 53 to be exercisable by a different person.
14
If any pre-commencement enactment or prerogative instrument is modified by subordinate legislation under section 105, a function under that enactment or instrument (whether as it has effect before or after the modification) is not transferred by virtue of section 53 if the subordinate legislation provides that it is not to be so transferred.
SCHEDULE 5 Reserved matters
Part I General reservations
The Constitution
1
The following aspects of the constitution are reserved matters, that is—
a
the Crown, including succession to the Crown and a regency,
b
the Union of the Kingdoms of Scotland and England,
c
the Parliament of the United Kingdom,
d
the continued existence of the High Court of Justiciary as a criminal court of first instance and of appeal,
e
the continued existence of the Court of Session as a civil court of first instance and of appeal.
2
1
Paragraph 1 does not reserve—
a
Her Majesty’s prerogative and other executive functions,
b
functions exercisable by any person acting on behalf of the Crown, or
c
any office in the Scottish Administration.
2
Sub-paragraph (1) does not affect the reservation by paragraph 1 of honours and dignities or the functions of the Lord Lyon King of Arms so far as relating to the granting of arms; but this sub-paragraph does not apply to the Lord Lyon King of Arms in his judicial capacity.
3
Sub-paragraph (1) does not affect the reservation by paragraph 1 of the management (in accordance with any enactment regulating the use of land) of the Crown Estate.
4
Sub-paragraph (1) does not affect the reservation by paragraph 1 of the functions of the Security Service, the Secret Intelligence Service and the Government Communications Headquarters.
F545
Sub-paragraph (1) does not affect the reservation by paragraph 1 of the functions exercisable through the Export Credits Guarantee Department.
3
1
Paragraph 1 does not reserve property belonging to Her Majesty in right of the Crown or belonging to any person acting on behalf of the Crown or held in trust for Her Majesty for the purposes of any person acting on behalf of the Crown.
2
Paragraph 1 does not reserve the ultimate superiority of the Crown or the superiority of the Prince and Steward of Scotland.
3
Sub-paragraph (1) does not affect the reservation by paragraph 1 of—
a
the hereditary revenues of the Crown, other than revenues from bona vacantia, ultimus haeres and treasure trove,
b
the royal arms and standard,
c
the compulsory acquisition of property held or used by a Minister of the Crown or government department.
4
1
Paragraph 1 does not reserve property held by Her Majesty in Her private capacity.
2
Sub-paragraph (1) does not affect the reservation by paragraph 1 of the subject-matter of the Crown Private Estates Acts 1800 to 1873.
5
Paragraph 1 does not reserve the use of the Scottish Seal.
F1855A
1
Paragraph 1 does not reserve a referendum on the independence of Scotland from the rest of the United Kingdom if the following requirements are met.
2
The date of the poll at the referendum must not be the date of the poll at any other referendum held under provision made by the Parliament.
3
The date of the poll at the referendum must be no later than 31st December 2014.
4
There must be only one ballot paper at the referendum, and the ballot paper must give the voter a choice between only two responses.
Political parties
6
The registration and funding of political parties is a reserved matter F55but this paragraph does not reserve making payments to any political party for the purpose of assisting members of the Parliament who are connected with the party to perform their Parliamentary duties.
Foreign affairs etc.
7
1
International relations, including relations with territories outside the United Kingdom, the F56European Union(and their institutions) and other international organisations, regulation of international trade, and international development assistance and co-operation are reserved matters.
2
Sub-paragraph (1) does not reserve—
a
observing and implementing international obligations, obligations under the Human Rights Convention and obligations under F57EU law,
b
assisting Ministers of the Crown in relation to any matter to which that sub-paragraph applies.
Public service
8
1
The Civil Service of the State is a reserved matter.
2
Sub-paragraph (1) does not reserve the subject-matter of—
a
Part I of the Sheriff Courts and Legal Officers (Scotland) Act 1927 (appointment of sheriff clerks and procurators fiscal etc.),
b
Part III of the Administration of Justice (Scotland) Act 1933 (officers of the High Court of Justiciary and of the Court of Session).
Defence
9
1
The following are reserved matters—
a
the defence of the realm,
b
the naval, military or air forces of the Crown, including reserve forces,
c
visiting forces,
d
international headquarters and defence organisations,
e
trading with the enemy and enemy property.
2
Sub-paragraph (1) does not reserve—
a
the exercise of civil defence functions by any person otherwise than as a member of any force or organisation referred to in sub-paragraph (1)(b) to (d) or any other force or organisation reserved by virtue of sub-paragraph (1)(a),
b
the conferral of enforcement powers in relation to sea fishing.
Treason
10
Treason (including constructive treason), treason felony and misprision of treason are reserved matters.
Part II Specific reservations
Preliminary
1
The matters to which any of the Sections in this Part apply are reserved matters for the purposes of this Act.
2
A Section applies to any matter described or referred to in it when read with any illustrations, exceptions or interpretation provisions in that Section.
3
Any illustrations, exceptions or interpretation provisions in a Section relate only to that Section (so that an entry under the heading “exceptions” does not affect any other Section).
Reservations
Head A – Financial and Economic Matters
A1. Fiscal, economic and monetary policy
Section A1.
Fiscal, economic and monetary policy, including the issue and circulation of money, taxes and excise duties, government borrowing and lending, control over United Kingdom public expenditure, the exchange rate and the Bank of England.
F137Exceptions
Devolved taxes, including their collection and management.
Local taxes to fund local authority expenditure (for example, council tax and non-domestic rates).
A2. The currency
Section A2.
Coinage, legal tender and bank notes.
A3. Financial services
Section A3.
Financial services, including investment business, banking and deposit-taking, collective investment schemes and insurance.
Exception
The subject-matter of section 1 of the Banking and Financial Dealings Act 1971 (bank holidays).
A4. Financial markets
Section A4.
Financial markets, including listing and public offers of securities and investments, transfer of securities and insider dealing.
A5. Money laundering
Section A5.
The subject-matter of the Money Laundering Regulations 1993, but in relation to any type of business.
Head B – Home Affairs
B1. Misuse of drugs
Section B1.
The subject-matter of—
- a
the Misuse of Drugs Act 1971,
- b
sections 12 to 14 of the Criminal Justice (International Co-operation) Act 1990 (substances useful for manufacture of controlled drugs), and
- c
Part V of the Criminal Law (Consolidation) (Scotland) Act 1995 (drug trafficking) and, so far as relating to drug trafficking, the Proceeds of Crime (Scotland) Act 1995.
B2. Data protection
Section B2.
The subject-matter of—
- a
the Data Protection Act 1998, and
- b
Council Directive 95/46/EC (protection of individuals with regard to the processing of personal data and on the free movement of such data).
Interpretation
If any provision of the Data Protection Act 1998 is not in force on the principal appointed day, it is to be treated for the purposes of this reservation as if it were.
B3. Elections
Section B3.
Elections for membership of the House of Commons, the European Parliament and the Parliament, including the subject-matter of—
- a
F58the European Parliamentary Elections Act 2002.
- b
the Representation of the People Act 1983 and the Representation of the People Act 1985, and
- c
the Parliamentary Constituencies Act 1986,
so far as those enactments apply, or may be applied, in respect of such membership.
- a
The franchise at local government elections.
F59Interpretation
Paragraph 5(1) of Part 3 of this Schedule does not apply to the subject-matter of the European Parliamentary Elections Act 2002; and the reference to the subject-matter of that Act is to be construed as a reference to it as at the date that Act received Royal Assent.
B4. Firearms
Section B4.
The subject-matter of the Firearms Acts 1968 to 1997.
F146Exception
The regulation of air weapons within the meaning given by section 1(3)(b) of the Firearms Act 1968 (which is subject to the following which remain powers of the Secretary of State—
- a
the power to make rules under section 53 of that Act for the purposes of that provision (specially dangerous weapons requiring firearms certificate), and
- b
the power to make an order under section 1(4) of the Firearms (Amendment) Act 1988 (specially dangerous weapons to be prohibited)).
B5. Entertainment
Section B5.
The subject-matter of—
- a
the Video Recordings Act 1984, and
- b
sections 1 to 3 and 5 to 16 of the Cinemas Act 1985 (control of exhibitions).
- a
The classification of films for public exhibition by reference to their suitability for viewing by persons generally or above a particular age, with or without any advice as to the desirability of parental guidance.
B6. Immigration and nationality
Section B6.
Nationality; immigration, including asylum and the status and capacity of persons in the United Kingdom who are not British citizens; free movement of persons within the European Economic Area; issue of travel documents.
B7.Scientific procedures on live animals
Section B7.
The subject-matter of the Animals (Scientific Procedures) Act 1986.
B8. National security, interception of communications, official secrets and terrorism
Section B8.
National security.
The interception of communications; but not
- a
F60the interception of any communication made to or by a person detained at a place of detention, if the communication-
- i
is a written communication and is intercepted there, or
- ii
is intercepted in the course of its transmission by means of a private telecommunication system running there,
- i
- b
the subject matter of Part III of the Police Act 1997 (authorisation to interfere with property etc.) or surveillance not involving interference with property.
- a
The subject-matter of—
- a
the Official Secrets Acts 1911 and 1920, and
- b
the Official Secrets Act 1989, except so far as relating to any information, document or other article protected against disclosure by section 4(2) (crime) and not by any other provision of sections 1 to 4.
- a
Special powers, and other special provisions, for dealing with terrorism.
F61 Interpretation
“Place of detention” means a prison, young offenders institution, remand centre or legalised police cell (as those expressions are defined for the purposes of the Prisons (Scotland) Act 1989 or a hospital (within the meaning of the F62 given in section 329(1) of the Mental Health (Care and Treatment) (Scotland) Act 2003; and “person detained”, in relation to a hospital, means a person detained thereF63 under–
- a
section 24, 25 or 70 of the Mental Health (Scotland) Act 1984;
- b
Part 6 of the Criminal Procedure (Scotland) Act 1995;
- c
the Mental Health (Care and Treatment) (Scotland) Act 2003; or
- d
regulations under–
- i
subsection (3) of section 116B of the Army Act 1955;
- ii
subsection (3) of section 116B of the Air Force Act 1955; or
- iii
section 63B of the Naval Discipline Act 1957.
- i
- a
F64 “ Private telecommunication system ” has the meaning given in section 2(1) of the Regulation of Investigatory Powers Act 2000.
B9. Betting, gaming and lotteries
Section B9.
Betting, gaming and lotteries.
B10. Emergency powers
Section B10.
Emergency powers.
B11. Extradition
Section B11.
Extradition.
B12. Lieutenancies
Section B12.
The subject-matter of the Lieutenancies Act 1997.
F65B13Access to information
Public access to information held by public bodies or holders of public offices (including government departments and persons acting on behalf of the Crown).
Exception
Information held by–
- a
the Parliament,
- b
any part of the Scottish Administration,
- c
the Parliamentary corporation,
- d
any Scottish public authority with mixed functions or no reserved functions,
unless supplied by a Minister of the Crown or government department and held in confidence.
Head C – Trade and Industry
C1. Business associations
Section C1.
The creation, operation, regulation and dissolution of types of business association.
Exceptions
The creation, operation, regulation and dissolution of—
- a
particular public bodies, or public bodies of a particular type, established by or under any enactment, and
- b
charities.
Interpretation
“Business association” means any person (other than an individual) established for the purpose of carrying on any kind of business, whether or not for profit; and “business” includes the provision of benefits to the members of an association.
C2. Insolvency
Section C2.
In relation to business associations—
- a
the modes of, the grounds for and the general legal effect of winding up, and the persons who may initiate winding up,
- b
liability to contribute to assets on winding up,
- c
powers of courts in relation to proceedings for winding up, other than the power to sist proceedings,
- d
arrangements with creditors, and
- e
procedures giving protection from creditors.
- a
Preferred or preferential debts for the purposes of the Bankruptcy (Scotland) Act 1985, the Insolvency Act 1986, and any other enactment relating to the sequestration of the estate of any person or to the winding up of business associations, the preference of such debts against other such debts and the extent of their preference over other types of debt.
Regulation of insolvency practitioners.
Co-operation of insolvency courts.
Exceptions
In relation to business associations—
- a
the process of winding up, including the person having responsibility for the conduct of a winding up or any part of it, and his conduct of it or of that part,
- b
the effect of winding up on diligence, and
- c
avoidance and adjustment of prior transactions on winding up.
- a
F66In relation to business associations which are social landlords, the following additional exceptions–
- a
the general legal effect of winding up,
- b
procedures for the initiation of winding up,
- c
powers of courts in relation to proceedings for winding up, and
- d
procedures giving protection from creditors,
but only in so far as they relate to a moratorium on the disposal of property held by a social landlord and the management and disposal of such property.
- a
Floating charges and receivers, except in relation to preferential debts, regulation of insolvency practitioners and co-operation of insolvency courts.
Interpretation
“Business association” has the meaning given in Section C1 of this Part of this Schedule, but does not include any person whose estate may be sequestrated under the Bankruptcy (Scotland) Act 1985 or any public body established by or under an enactment.
F67“Social landlord” means a body which is–
- a
a society registered under the Industrial and Provident Societies Act 1965 which has its registered office for the purposes of that Act in Scotland and satisfies the relevant conditions, or
- b
a company registered under the Companies Act 1985 which has its registered office for the purposes of that Act in Scotland and satisfies the relevant conditions.
- a
“The relevant conditions” are that the body does not trade for profit and is established for the purpose of, or has among its objects and powers, the provision, construction, improvement or management of–
- a
houses to be kept available for letting,
- b
houses for occupation by members of the body, where the rules of the body restrict membership to persons entitled or prospectively entitled (as tenants or otherwise) to occupy a house provided or managed by the body, or
- c
hostels,
- a
“house” and “hostel” having the meanings given in section 338(1) of the Housing (Scotland) Act 1987.
“Winding up”, in relation to business associations, includes winding up of solvent, as well as insolvent, business associations.
C3. Competition
Section C3.
Regulation of anti-competitive practices and agreements; abuse of dominant position; monopolies and mergers.
Exception
Regulation of particular practices in the legal profession for the purpose of regulating that profession or the provision of legal services.
Interpretation
“The legal profession” means advocates, solicitors and qualified conveyancers and executry practitioners within the meaning of Part II of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990.
C4. Intellectual property
Section C4.
Intellectual property.
Exception
The subject-matter of Parts I and II of the Plant Varieties Act 1997 (plant varieties and the Plant Varieties and Seeds Tribunal).
C5. Import and export control
Section C5.
The subject-matter of the Import, Export and Customs Powers (Defence) Act 1939.
Prohibition and regulation of the import and export of endangered species of animals and plants.
Exceptions
Prohibition and regulation of movement into and out of Scotland of—
- a
food, animals, animal products, plants and plant products for the purposes of protecting human, animal or plant health, animal welfare or the environment or observing or implementing obligations under the Common Agricultural Policy, and
- b
animal feeding stuffs, fertilisers and pesticides F68(including anything treated as if it were a pesticide by virtue of section 16(16) of the Food and Environment Protection Act 1985)for the purposes of protecting human, animal or plant health or the environment.
C6. Sea fishing
Section C6.
Regulation of sea fishing outside the Scottish zone (except in relation to Scottish fishing boats).
Interpretation
“Scottish fishing boat” means a fishing vessel which is registered in the register maintained under section 8 of the Merchant Shipping Act 1995 and whose entry in the register specifies a port in Scotland as the port to which the vessel is to be treated as belonging.
C7. Consumer protection
Section C7.
Regulation of—
- a
the sale and supply of goods and services to consumers,
- b
guarantees in relation to such goods and services,
- c
hire-purchase, including the subject-matter of Part III of the Hire-Purchase Act 1964,
- d
trade descriptions, except in relation to food,
- e
misleading and comparative advertising, except regulation specifically in relation to food, tobacco and tobacco products,
- f
price indications,
- g
trading stamps,
- h
auctions and mock auctions of goods and services, and
- i
hallmarking and gun barrel proofing.
- a
Safety of, and liability for, services supplied to consumers.
The subject-matter of—
- a
the Hearing Aid Council Act 1968,
- b
the Unsolicited Goods and Services Acts 1971 and 1975,
- c
Parts I to III and XI of the Fair Trading Act 1973,
- d
the Consumer Credit Act 1974,
- e
the Estate Agents Act 1979,
- f
the Timeshare Act 1992,
- g
the Package Travel, Package Holidays and Package Tours Regulations 1992, and
- h
the Commercial Agents (Council Directive) Regulations 1993.
- a
Exception
The subject-matter of section 16 of the Food Safety Act 1990 (food safety and consumer protection).
C8. Product standards, safety and liability
Section C8.
Technical standards and requirements in relation to products in pursuance of an obligation under F69EU law.
F70The national accreditation body and the accreditation of bodies which certify or assess conformity to technical standards in relation to products or environmental management systems.
Product safety and liability.
Product labelling.
Exceptions
Food, agricultural and horticultural produce, fish and fish products, seeds, animal feeding stuffs, fertilisers and pesticides F71(including anything treated as if it were a pesticide by virtue of section 16(16) of the Food and Environment Protection Act 1985).
In relation to food safety, materials which come into contact with food.
C9. Weights and measures
Section C9.
Units and standards of weight and measurement.
Regulation of trade so far as involving weighing, measuring and quantities.
C10. Telecommunications and wireless telegraphy
Section C10.
Telecommunications and wireless telegraphy.
Internet services.
Electronic encryption.
The subject-matter of Part II of the Wireless Telegraphy Act 1949 (electromagnetic disturbance).
Exception
The subject-matter of Part III of the Police Act 1997 (authorisation to interfere with property etc.).
F72C11 Posts
The subject matter of the Postal Services Act 2000. Exception
Financial assistance for the provision of services (other than postal services and services relating to money or postal orders) to be provided from public post offices. Interpretation
Paragraph 5(1) of Part III of this Schedule does not apply to this Section.
The reference to the subject matter of the Postal Services Act 2000 is to be read as a reference to the subject matter of that Act as at the date when it received Royal Assent.
“postal services” and “public post offices” have the same meaning as in the Postal Services Act 2000.
C12. Research Councils
Section C12.
Research Councils within the meaning of the Science and Technology Act 1965.
The subject-matter of section 5 of that Act (funding of scientific research) so far as relating to Research Councils.
F73The Arts and Humanities Research Council within the meaning of Part 1 of the Higher Education Act 2004.
The subject-matter of section 10 of that Act (research in arts and humanities) so far as relating to that Council.
Interpretation
Paragraph 5(1) of Part 3 of this Schedule does not apply to the subject-matter of section 10 of the Higher Education Act 2004; and the reference to the subject-matter of that section is to be construed as a reference to it as at the date that Act received Royal Assent.
C13. Designation of assisted areas
Section C13.
The subject-matter of section 1 of the Industrial Development Act 1982.
C14. Industrial Development Advisory Board
Section C14.
The Industrial Development Advisory Board.
C15. Protection of trading and economic interests
Section C15.
The subject-matter of—
- a
section 2 of the Emergency Laws (Re-enactments and Repeals) Act 1964 (Treasury power in relation to action damaging to economic position of United Kingdom),
- b
Part II of the Industry Act 1975 (powers in relation to transfer of control of important manufacturing undertakings), and
- c
the Protection of Trading Interests Act 1980.
Head D – Energy
D1. Electricity
Section D1.
Generation, transmission, distribution and supply of electricity.
The subject-matter of Part II of the Electricity Act 1989.
Exception
The subject-matter of Part I of the Environmental Protection Act 1990.
D2. Oil and gas
Section
Oil and gas, including—
- a
the ownership of, exploration for and exploitation of deposits of oil and natural gas,
- b
the subject-matter of section 1 of the Mineral Exploration and Investment Grants Act 1972 (contributions in connection with mineral exploration) so far as relating to exploration for oil and gas,
- c
offshore installations and pipelines,
- d
the subject-matter of the Pipe-lines Act 1962 (including section 5 (deemed planning permission)) so far as relating to pipelines within the meaning of section 65 of that Act,
- e
the application of Scots law and the jurisdiction of the Scottish courts in relation to offshore activities,
- f
pollution relating to oil and gas exploration and exploitation, but only outside controlled waters (within the meaning of section 30A(1) of the Control of Pollution Act 1974),
- g
the subject-matter of Part II of the Food and Environment Protection Act 1985 so far as relating to oil and gas exploration and exploitation, but only in relation to activities outside such controlled waters,
- h
restrictions on navigation, fishing and other activities in connection with offshore activities,
- i
liquefaction of natural gas, and
- j
the conveyance, shipping and supply of gas through pipes.
Exceptions
The subject-matter of—
- a
sections 10 to 12 of the Industry Act 1972 (credits and grants for construction of ships and offshore installations),
- b
the Offshore Petroleum Development (Scotland) Act 1975, other than sections 3 to 7, and
- c
Part I of the Environmental Protection Act 1990.
- a
The manufacture of gas.
The conveyance, shipping and supply of gas other than through pipes.
D3. Coal
Section D3.
Coal, including its ownership and exploitation, deep and opencast coal mining and coal mining subsidence.
Exceptions
The subject-matter of—
- a
Part I of the Environmental Protection Act 1990, and
- b
sections 53 (environmental duties in connection with planning) and 54 (obligation to restore land affected by coal-mining operations) of the Coal Industry Act 1994.
D4. Nuclear energy
Section D4.
Nuclear energy and nuclear installations, including—
- a
nuclear safety, security and safeguards, and
- b
liability for nuclear occurrences.
Exceptions
The subject-matter of—
- a
Part I of the Environmental Protection Act 1990, and
- b
the Radioactive Substances Act 1993.
D5. Energy conservation
Section D5.
The subject-matter of the Energy Act 1976, other than section 9.
Exception
The encouragement of energy efficiency other than by prohibition or regulation.
Head E – Transport
E1. Road transport
Section E1.
The subject-matter of—
- a
the Motor Vehicles (International Circulation) Act 1952,
- b
the Public Passenger Vehicles Act 1981 and the Transport Act 1985, so far as relating to public service vehicle operator licensing,
- c
section 17 (traffic regulation on special roads), section 25 (pedestrian crossings), Part V (traffic signs) and Part VI (speed limits) of the Road Traffic Regulation Act 1984,
- d
the Road Traffic Act 1988 and the Road Traffic Offenders Act 1988,
- e
the Vehicle Excise and Registration Act 1994,
- f
the Road Traffic (New Drivers) Act 1995, and
- g
the Goods Vehicles (Licensing of Operators) Act 1995.
- a
Regulation of proper hours or periods of work by persons engaged in the carriage of passengers or goods by road.
The conditions under which international road transport services for passengers or goods may be undertaken.
Regulation of the instruction of drivers of motor vehicles.
Exceptions
The subject-matter of sections 39 and 40 (road safety information and training) and 157 to 159 (payments for treatment of traffic casualties) of the Road Traffic Act 1988.
E2. Rail transport
Section E2.
Provision and regulation of railway services.
Rail transport security.
The subject-matter of the Channel Tunnel Act 1987.
The subject-matter of the Railway Heritage Act 1996.
Exceptions
Grants so far as relating to railway services; but this exception does not apply in relation to—
- a
the subject-matter of section 63 of the Railways Act 1993 (government financial assistance where railway administration orders made),
- b
“railway services” as defined in section 82(1)(b) of the Railways Act 1993 (carriage of goods by railway), or
- c
the subject-matter of section 136 of the Railways Act 1993 (grants and subsidies).
- a
F74Imposing requirements about the preparation and submission of strategies relating to the provision of rail services on Scottish public authorities with mixed functions relating to such services.
F75The transfer of functions of passenger transport executives or passenger transport authorities relating to the provision and regulation of rail services conferred by Part II of the Transport Act 1968 and sections 32 to 36 of the Railways Act 1993 to, and the allocation of such functions among, F76relevant authorities.
F77The promotion and construction of railways which start, end and remain in Scotland.
Interpretation
F78“railway” has the meaning given by section 67(1) of the Transport and Works Act 1992.
“Railway services” has the meaning given by section 82 of the Railways Act 1993 (excluding the wider meaning of “railway” given by section 81(2) of that Act).
F79 “ relevant authority ” means–
- a
the Scottish Ministers; or
- b
any Scottish public authority (not being a cross-border public authority or an authority exercising functions solely in relation to a reserved matter) which is set up wholly or mainly to exercise functions relating to transport.
- a
E3. Marine transport
Section E3.
The subject-matter of—
- a
the Coastguard Act 1925,
- b
the Hovercraft Act 1968, except so far as relating to the regulation of noise and vibration caused by hovercraft,
- c
the Carriage of Goods by Sea Act 1971,
- d
section 2 of the Protection of Wrecks Act 1973 (prohibition on approaching dangerous wrecks),
- e
the Merchant Shipping (Liner Conferences) Act 1982,
- f
the Dangerous Vessels Act 1985,
- g
the Aviation and Maritime Security Act 1990, other than Part I (aviation security),
- h
the Carriage of Goods by Sea Act 1992,
- i
the Merchant Shipping Act 1995,
- j
the Shipping and Trading Interests (Protection) Act 1995, and
- k
sections 24 (implementation of international agreements relating to protection of wrecks), 26 (piracy) and 27 and 28 (international bodies concerned with maritime matters) of the Merchant Shipping and Maritime Security Act 1997.
- a
Navigational rights and freedoms.
Financial assistance for shipping services which start or finish or both outside Scotland.
Exceptions
Ports, harbours, piers and boatslips, except in relation to the matters reserved by virtue of paragraph (d), (f), (g) or (i).
Regulation of works which may obstruct or endanger navigation.
The subject-matter of the Highlands and Islands Shipping Services Act 1960 in relation to financial assistance for bulk freight services.
E4. Air transport
Section E4.
Regulation of aviation and air transport, including the subject-matter of—
- a
the Carriage by Air Act 1961,
- b
the Carriage by Air (Supplementary Provisions) Act 1962,
- c
the Carriage by Air and Road Act 1979 so far as relating to carriage by air,
- d
the Civil Aviation Act 1982,
- e
the Aviation Security Act 1982,
- f
the Airports Act 1986, and
- g
sections 1 (endangering safety at aerodromes) and 48 (powers in relation to certain aircraft) of the Aviation and Maritime Security Act 1990,
and arrangements to compensate or repatriate passengers in the event of an air transport operator’s insolvency.
Exceptions
The subject-matter of the following sections of the Civil Aviation Act 1982—
- a
section 25 (Secretary of State’s power to provide aerodromes),
- b
section 30 (provision of aerodromes and facilities at aerodromes by local authorities),
- c
section 31 (power to carry on ancillary business in connection with local authority aerodromes),
- d
section 34 (financial assistance for certain aerodromes),
- e
section 35 (facilities for consultation at certain aerodromes),
- f
section 36 (health control at Secretary of State’s aerodromes and aerodromes of Civil Aviation Authority), and
- g
sections 41 to 43 and 50 (powers in relation to land exercisable in connection with civil aviation) where land is to be or was acquired for the purpose of airport development or expansion.
- a
The subject-matter of Part II (transfer of airport undertakings of local authorities), sections 63 and 64 (airport byelaws) and 66 (functions of operators of designated airports as respects abandoned vehicles) of the Airports Act 1986.
The subject-matter of sections 59 (acquisition of land and rights over land) and 60 (disposal of compulsorily acquired land) of the Airports Act 1986 where land is to be or was acquired for the purpose of airport development or expansion.
F80Imposing requirements about the preparation and submission of strategies relating to the provision of air services on Scottish public authorities with mixed functions relating to such services.
E5. Other matters
Section E5.
Transport of radioactive material.
Technical specifications for public passenger transport for disabled persons, including the subject-matter of—
- a
section 125(7) and (8) of the Transport Act 1985 (Secretary of State’s guidance and consultation with the Disabled Persons Transport Advisory Committee), and
- b
Part V of the Disability Discrimination Act 1995 (public transport).
- a
Regulation of the carriage of dangerous goods.
Interpretation
“Radioactive material” has the same meaning as in section 1(1) of the Radioactive Material (Road Transport) Act 1991.
Head F – Social Security
F1. Social security schemes
Section F1.
Schemes supported from central or local funds which provide assistance for social security purposes to or in respect of individuals by way of benefits.
Requiring persons to—
- a
establish and administer schemes providing assistance for social security purposes to or in respect of individuals, or
- b
make payments to or in respect of such schemes,
and to keep records and supply information in connection with such schemes.
- a
The circumstances in which a person is liable to maintain himself or another for the purposes of the enactments relating to social security and the Child Support Acts 1991 and 1995.
The subject-matter of the Vaccine Damage Payment Scheme.
Illustrations
National Insurance; Social Fund; F186... recovery of benefits for accident, injury or disease from persons paying damages; deductions from benefits for the purpose of meeting an individual’s debts; sharing information between government departments for the purposes of the enactments relating to social security; making decisions for the purposes of schemes mentioned in the reservation and appeals against such decisions.
Exceptions
The subject-matter of Part II of the Social Work (Scotland) Act 1968 (social welfare services), section 2 of the Chronically Sick and Disabled Persons Act 1970 (provision of welfare services), section 50 of the Children Act 1975 (payments towards maintenance of children), section 15 of the Enterprise and New Towns (Scotland) Act 1990 (industrial injuries benefit), and sections 22 (promotion of welfare of children in need), 29 and 30 (advice and assistance for young persons formerly looked after by local authorities) of the Children (Scotland) Act 1995.
F187Providing occasional financial or other assistance to or in respect of individuals for the purposes of—
- a
meeting, or helping to meet, an immediate short term need—
- i
arising out of an exceptional event or exceptional circumstances, and
- ii
that requires to be met to avoid a risk to the well-being of an individual, or
- i
- b
enabling qualifying individuals to establish or maintain a settled home, and “qualifying individuals” means individuals who have been or, without the assistance, might otherwise be—
- i
in prison, hospital, a residential care establishment or other institution, or
- ii
homeless or otherwise living an unsettled way of life.
- i
But the following are not excepted—
- a
providing financial assistance for the purposes of meeting maternity expenses, funeral expenses or expenses for heating incurred due to cold weather,
- b
the subject-matter of—
- i
section 138 of the Social Security Contributions and Benefits Act 1992 (payments out of the social fund),
- ii
section 69 of the Child Support, Pensions and Social Security Act 2000 (discretionary housing payments).
- i
Interpretation
“Benefits” includes pensions, allowances, grants, loans and any other form of financial assistance.
Providing assistance for social security purposes to or in respect of individuals includes (among other things) providing assistance to or in respect of individuals—
- a
who qualify by reason of old age, survivorship, disability, sickness, incapacity, injury, unemployment, maternity or the care of children or others needing care,
- b
who qualify by reason of low income, or
- c
in relation to their housing costs or liabilities for local taxes.
- a
F188Paragraph 5(1) of Part 3 of this Schedule does not apply to the subject-matter of—
- a
section 138 of the Social Security Contributions and Benefits Act 1992, or
- b
section 69 of the Child Support, Pensions and Social Security Act 2000.
The reference to the subject-matter of section 138 of the 1992 Act is to be construed as a reference to it as at 8th May 2012 and the reference to the subject-matter of section 69 of the 2000 Act is to be construed as a reference to it as at the date on which the Scotland Act (Modification of Schedule 5) (No. 2) Order 2013 (S.I. 2013/192) came into force; and if any amendment of section 69 of the 2000 Act made by the Welfare Reform Act 2012 is not in force on that date, it is to be treated as if it were.
F2. Child support
Section F2.
The subject-matter of the Child Support Acts 1991 and 1995.
Exception
The subject-matter of sections 1 to 7 of the Family Law (Scotland) Act 1985 (aliment).
Interpretation
If section 30(2) of the Child Support Act 1991 (collection of payments other than child support maintenance) is not in force on the principal appointed day, it is to be treated for the purposes of this reservation as if it were.
F3. Occupational and personal pensions
Section F3.
The regulation of occupational pension schemes and personal pension schemes, including the obligations of the trustees or managers of such schemes.
Provision about pensions payable to, or in respect of, any persons, except—
- a
the persons referred to in section 81(3),
- b
in relation to a Scottish public authority with mixed functions or no reserved functions, persons who are or have been a member of the public body, the holder of the public office, or a member of the staff of the body, holder or office.
- a
The subject-matter of the Pensions (Increase) Act 1971.
Schemes for the payment of pensions which are listed in Schedule 2 to that Act, except those mentioned in paragraphs 38A and 38AB.
Where pension payable to or in respect of any class of persons under a public service pension scheme is covered by this reservation, so is making provision in their case—
- a
for compensation for loss of office or employment, for their office or employment being affected by constitutional changes, or circumstances arising from such changes, in any territory or territories or for loss or diminution of emoluments, or
- b
for benefits in respect of death or incapacity resulting from injury or disease.
- a
Interpretation
“Pension” includes gratuities and allowances.
F4. War pensions
Section F4.
Schemes for the payment of pensions for or in respect of persons who have a disablement or have died in consequence of service as members of the armed forces of the Crown.
The subject-matter of any scheme under the Personal Injuries (Emergency Provisions) Act 1939, sections 3 to 5 and 7 of the Pensions (Navy, Army, Air Force and Mercantile Marine) Act 1939 or section 1 of the Polish Resettlement Act 1947
Illustration
The provision of pensions under the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 1983.
Interpretation
“Pension” includes grants, allowances, supplements and gratuities.
Head G – Regulation of the Professions
G1. Architects
Section G1.
Regulation of the profession of architect.
G2. Health professions
Section G2.
Regulation of the health professions.
Exceptions
The subject-matter of—
- a
section 21 of the National Health Service (Scotland) Act 1978 (requirement of suitable experience for medical practitioners), and
- b
section 25 of that Act (arrangements for the provision of general dental services), so far as it relates to vocational training and disciplinary proceedings.
Interpretation
“The health professions” means the professions regulated by—
- a
the Pharmacy Act 1954,
- b
the Professions Supplementary to Medicine Act 1960,
- c
the Veterinary Surgeons Act 1966,
- d
the Medical Act 1983,
- e
the Dentists Act 1984,
- f
the Opticians Act 1989,
- g
the Osteopaths Act 1993,
- h
the Chiropractors Act 1994, and
- i
the Nurses, Midwives and Health Visitors Act 1997.
G3. Auditors
Section G3.
Regulation of the profession of auditor.
Head H – Employment
H1. Employment and industrial relations
Section H1.
Employment rights and duties and industrial relations, including the subject-matter of—
- a
the Employers’ Liability (Compulsory Insurance) Act 1969,
- b
the Employment Agencies Act 1973,
- c
the Pneumoconiosis etc. (Workers’ Compensation) Act 1979,
- d
the Transfer of Undertakings (Protection of Employment) Regulations 1981,
- e
the Trade Union and Labour Relations (Consolidation) Act 1992,
- f
F81the Employment Tribunals Act 1996,
- g
the Employment Rights Act 1996, and
- h
the National Minimum Wage Act 1998.
Exception
The subject-matter of the Agricultural Wages (Scotland) Act 1949.
H2. Health and safety
Section H2.
The subject-matter of
F82 Part I of the Health and Safety at Work etc. Act 1974
The Health and Safety Commission, the Health and Safety Executive and the Employment Medical Advisory Service
Interpretation
For the purposes of the reservation of the subject-matter of Part I of the Health and Safety at Work etc. Act 1974–
a
“work” and “at work” in that Part are to be taken to have the meaning they have on the principal appointed day;
H3. Job search and support
Section H3.
The subject-matter of—
- a
the Disabled Persons (Employment) Act 1944, and
- b
the Employment and Training Act 1973, except so far as relating to training for employment.
Exception
The subject-matter of—
- a
sections 8 to 10A of the Employment and Training Act 1973 (careers services), and
- b
the following sections of Part I of the Enterprise and New Towns (Scotland) Act 1990 (Scottish Enterprise and Highlands and Islands Enterprise)—
- i
section 2(3)(c) (arrangements for the purpose of assisting persons to establish themselves as self-employed persons), and
- ii
section 12 (disclosure of information).
- i
Head J – Health and Medicines
J1. Abortion
Section J1.
Abortion.
J2. Xenotransplantation
Section J2.
Xenotransplantation.
J3. Embryology, surrogacy and genetics
Section J3.
Surrogacy arrangements, within the meaning of the Surrogacy Arrangements Act 1985, including the subject-matter of that Act.
The subject-matter of the Human Fertilisation and Embryology Act 1990.
Human genetics.
J4. Medicines, medical supplies and poisons
Section J4.
The subject-matter of—
- a
the Medicines Act 1968, the Marketing Authorisations for Veterinary Medicinal Products Regulations 1994 and the Medicines for Human Use (Marketing Authorisations Etc.) Regulations 1994,
- b
the Poisons Act 1972, and
- c
the Biological Standards Act 1975.
- a
Regulation of prices charged for medical supplies or medicinal products which (in either case) are supplied for the purposes of the health service established under section 1 of the National Health Service (Scotland) Act 1978.
Interpretation
“Medical supplies” has the same meaning as in section 49(3) of the National Health Service (Scotland) Act 1978.
“Medicinal products” has the same meaning as in section 130(1) of the Medicines Act 1968.
J5. Welfare foods
Section J5.
Schemes made by regulations under section 13 of the Social Security Act 1988 (schemes for distribution of welfare foods).
Head K – Media and Culture
K1. Broadcasting
Section K1.
The subject-matter of the Broadcasting Act 1990 and the Broadcasting Act 1996.
The British Broadcasting Corporation.
K2. Public lending right
Section K2.
The subject-matter of the Public Lending Right Act 1979.
K3. Government Indemnity Scheme
Section K3.
The subject-matter of sections 16 and 16A of the National Heritage Act 1980 (public indemnities for objects on loan to museums, art galleries, etc.).
K4. Property accepted in satisfaction of tax
Section K4.
The subject-matter of sections 8 and 9 of the National Heritage Act 1980 (payments to Inland Revenue in respect of property accepted in satisfaction of tax, and disposal of such property).
Head L – Miscellaneous
L1. Judicial remuneration
Section L1.
Determination of the remuneration of—
- a
judges of the Court of Session,
- b
sheriffs principal and sheriffs,
- c
members of the Lands Tribunal for Scotland, and
- d
the Chairman of the Scottish Land Court.
L2. Equal opportunities
Section L2.
Equal opportunities, including the subject-matter of—
- a
the Equal Pay Act 1970,
- b
the Sex Discrimination Act 1975,
- c
the Race Relations Act 1976, and
- d
the Disability Discrimination Act 1995.
Exceptions
The encouragement (other than by prohibition or regulation) of equal opportunities, and in particular of the observance of the equal opportunity requirements.
Imposing duties on—
- a
any office-holder in the Scottish Administration, or any Scottish public authority with mixed functions or no reserved functions, to make arrangements with a view to securing that the functions of the office-holder or authority are carried out with due regard to the need to meet the equal opportunity requirements, or
- b
any cross-border public authority to make arrangements with a view to securing that its Scottish functions are carried out with due regard to the need to meet the equal opportunity requirements.
- a
Interpretation
“Equal opportunities” means the prevention, elimination or regulation of discrimination between persons on grounds of sex or marital status, on racial grounds, or on grounds of disability, age, sexual orientation, language or social origin, or of other personal attributes, including beliefs or opinions, such as religious beliefs or political opinions.
“Equal opportunity requirements” means the requirements of the law for the time being relating to equal opportunities.
“Scottish functions” means functions which are exercisable in or as regards Scotland and which do not relate to reserved matters.
L3. Control of weapons
Section L3.
Control of nuclear, biological and chemical weapons and other weapons of mass destruction.
L4. Ordnance survey
Section L4.
The subject-matter of the Ordnance Survey Act 1841.
L5. Time
Section L5.
Timescales, time zones and the subject-matter of the Summer Time Act 1972.
The calendar; units of time; the date of Easter.
Exceptions
The computation of periods of time.
The subject-matter of—
- a
section 1 of the Banking and Financial Dealings Act 1971 (bank holidays), and
- b
the Term and Quarter Days (Scotland) Act 1990.
- a
L6. Outer space
Section L6.
Regulation of activities in outer space.
F136L7. Antarctica
Regulation of activities in Antarctica.
Interpretation “Antarctica” has the meaning given by section 1 of the Antarctic Act 1994.
Part III General provisions
Scottish public authorities
1
1
This Schedule does not reserve any Scottish public authority if some of its functions relate to reserved matters and some do not, unless it is a cross-border public authority.
2
Sub-paragraph (1) has effect as regards—
a
the constitution of the authority, including its establishment and dissolution, its assets and liabilities and its funding and receipts,
b
conferring or removing any functions specifically exercisable in relation to the authority.
3
Sub-paragraph (2)(b) does not apply to any function which is specifically exercisable in relation to a particular function of the authority if the particular function relates to reserved matters.
C1054
An authority to which this paragraph applies is referred to in this Act as a Scottish public authority with mixed functions.
C1062
Paragraph 1 of Part I of this Schedule does not reserve any Scottish public authority with functions none of which relate to reserved matters (referred to in this Act as a Scottish public authority with no reserved functions).
Reserved bodies
C1073
1
The reservation of any body to which this paragraph applies has effect to reserve—
a
its constitution, including its establishment and dissolution, its assets and liabilities and its funding and receipts,
b
conferring functions on it or removing functions from it,
c
conferring or removing any functions specifically exercisable in relation to it.
2
This paragraph applies to—
a
a body reserved by name by Part II of this Schedule,
b
each of the councils reserved by Section C12 of that Part,
c
the Commission for Racial Equality, the Equal Opportunities Commission and F86the Disability Rights Commission.
F87d
the Commission for Equality and Human Rights.
Financial assistance to industry
4
1
This Schedule does not reserve giving financial assistance to commercial activities for the purpose of promoting or sustaining economic development or employment.
2
Sub-paragraph (1)—
a
does not apply to giving financial assistance to any activities in pursuance of a power exercisable only in relation to activities which are reserved,
b
does not apply to Part I of this Schedule, except paragraph 9, or to a body to which paragraph 3 of this Part of this Schedule applies,
c
is without prejudice to the exceptions from the reservations in Sections F88C11, E2 and E3 of Part II of this Schedule.
3
Sub-paragraph (1) does not affect the question whether any matter other than financial assistance to which that sub-paragraph applies is reserved.
Interpretation
5
1
References in this Schedule to the subject-matter of any enactment are to be read as references to the subject-matter of that enactment as it has effect on the principal appointed day or, if it ceased to have effect at any time within the period ending with that day and beginning with the day on which this Act is passed, as it had effect immediately before that time.
2
Subordinate legislation under section 129(1) may, in relation to the operation of this Schedule at any time before the principal appointed day, modify the references to that day in sub-paragraph (1).
SCHEDULE 6 Devolution issues
Part I Preliminary
1
In this Schedule “devolution issue” means—
a
a question whether an Act of the Scottish Parliament or any provision of an Act of the Scottish Parliament is within the legislative competence of the Parliament,
b
a question whether any function (being a function which any person has purported, or is proposing, to exercise) is a function of the Scottish Ministers, the First Minister or the Lord Advocate,
c
a question whether the purported or proposed exercise of a function by a member of the F195Scottish Government is, or would be, within devolved competence,
d
e
f
any other question about whether a function is exercisable within devolved competence or in or as regards Scotland and any other question arising by virtue of this Act about reserved matters.
F192 But a question arising in criminal proceedings in Scotland that would, apart from this paragraph, be a devolution issue is not a devolution issue if (however formulated) it relates to the compatibility with any of the Convention rights or with EU law of
a
an Act of the Scottish Parliament or any provision of an Act of the Scottish Parliament,
b
a function,
c
the purported or proposed exercise of a function,
d
a failure to act.
2
A devolution issue shall not be taken to arise in any proceedings merely because of any contention of a party to the proceedings which appears to the court or tribunal before which the proceedings take place to be frivolous or vexatious.
Part II Proceedings in Scotland
Application of Part II
3
This Part of this Schedule applies in relation to devolution issues in proceedings in Scotland.
Institution of proceedings
4
1
Proceedings for the determination of a devolution issue may be instituted by the Advocate General or the Lord Advocate.
2
The Lord Advocate may defend any such proceedings instituted by the Advocate General.
3
This paragraph is without prejudice to any power to institute or defend proceedings exercisable apart from this paragraph by any person.
Intimation of devolution issue
5
Intimation of any devolution issue which arises in any proceedings before a court or tribunal shall be given to the Advocate General and the Lord Advocate (unless the person to whom the intimation would be given is a party to the proceedings).
6
A person to whom intimation is given in pursuance of paragraph 5 may take part as a party in the proceedings, so far as they relate to a devolution issue.
Reference of devolution issue to higher court
7
A court, other than the F90Supreme Court or any court consisting of three or more judges of the Court of Session, may refer any devolution issue which arises in proceedings (other than criminal proceedings) before it to the Inner House of the Court of Session.
8
A tribunal from which there is no appeal shall refer any devolution issue which arises in proceedings before it to the Inner House of the Court of Session; and any other tribunal may make such a reference.
9
A court, other than any court consisting of two or more judges of the High Court of Justiciary, may refer any devolution issue which arises in criminal proceedings before it to the High Court of Justiciary.
References from superior courts to F93Supreme Court
Words in heading before Sch. 6 para. 10 substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40(4), 148(1), Sch. 9 para. 103(3); S.I. 2009/1604, art. 2
10
Any court consisting of three or more judges of the Court of Session may refer any devolution issue which arises in proceedings before it (otherwise than on a reference under paragraph 7 or 8) to the F91Supreme Court.
11
Any court consisting of two or more judges of the High Court of Justiciary may refer any devolution issue which arises in proceedings before it (otherwise than on a reference under paragraph 9) to the F92Supreme Court.
Appeals from superior courts to F100Supreme Court
Words in heading before Sch. 6 para. 12 substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40(4), 148(1), Sch. 9 para. 103(6); S.I. 2009/1604, art. 2
12
An appeal against a determination of a devolution issue by the Inner House of the Court of Session on a reference under paragraph 7 or 8 shall lie to the F94Supreme Court.
13
An appeal against a determination of a devolution issue by—
a
a court of two or more judges of the High Court of Justiciary (whether in the ordinary course of proceedings or on a reference under paragraph 9), or
b
a court of three or more judges of the Court of Session from which there is no appeal to the F95Supreme Court apart from this paragraph,
F19413A
In criminal proceedings, an application to the High Court for permission under paragraph 13 must be made—
a
within 28 days of the date of the determination against which the appeal lies, or
b
within such longer period as the High Court considers equitable having regard to all the circumstances.
13B
In criminal proceedings, an application to the Supreme Court for permission under paragraph 13 must be made—
a
within 28 days of the date on which the High Court refused permission under that paragraph, or
b
within such longer period as the Supreme Court considers equitable having regard to all the circumstances.
Part III Proceedings in England and Wales
Application of Part III
14
This Part of this Schedule applies in relation to devolution issues in proceedings in England and Wales.
Institution of proceedings
15
1
Proceedings for the determination of a devolution issue may be instituted by the Attorney General.
2
The Lord Advocate may defend any such proceedings.
3
This paragraph is without prejudice to any power to institute or defend proceedings exercisable apart from this paragraph by any person.
Notice of devolution issue
16
A court or tribunal shall order notice of any devolution issue which arises in any proceedings before it to be given to the Attorney General and the Lord Advocate (unless the person to whom the notice would be given is a party to the proceedings).
17
A person to whom notice is given in pursuance of paragraph 16 may take part as a party in the proceedings, so far as they relate to a devolution issue.
Reference of devolution issue to High Court or Court of Appeal
18
A magistrates’ court may refer any devolution issue which arises in proceedings (other than criminal proceedings) before it to the High Court.
19
1
A court may refer any devolution issue which arises in proceedings (other than criminal proceedings) before it to the Court of Appeal.
2
Sub-paragraph (1) does not apply to—
a
a magistrates’ court, the Court of Appeal or the F101Supreme Court, or
b
the High Court if the devolution issue arises in proceedings on a reference under paragraph 18.
20
A tribunal from which there is no appeal shall refer any devolution issue which arises in proceedings before it to the Court of Appeal; and any other tribunal may make such a reference.
21
A court, other than the F102Supreme Court or the Court of Appeal, may refer any devolution issue which arises in criminal proceedings before it to—
a
the High Court (if the proceedings are summary proceedings), or
b
the Court of Appeal (if the proceedings are proceedings on indictment).
References from Court of Appeal to F104Supreme Court
Words in heading before Sch. 6 para. 22 substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40(4), 148(1), Sch. 9 para. 104(4); S.I. 2009/1604, art. 2
22
The Court of Appeal may refer any devolution issue which arises in proceedings before it (otherwise than on a reference under paragraph 19, 20 or 21) to the F103Supreme Court.
Appeals from superior courts to F108Supreme Court
Words in heading before Sch. 6 para. 23 substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40(4), 148(1), Sch. 9 para. 104(6); S.I. 2009/1604, art. 2
23
An appeal against a determination of a devolution issue by the High Court or the Court of Appeal on a reference under paragraph 18, 19, 20 or 21 shall lie to the F105Supreme Court, but only with F106permission of the High Court or (as the case may be) the Court of Appeal or, failing such F106permission, with F107permission of the F105Supreme Court.
Part IV Proceedings in Northern Ireland
Application of Part IV
24
This Part of this Schedule applies in relation to devolution issues in proceedings in Northern Ireland.
Institution of proceedings
25
1
Proceedings for the determination of a devolution issue may be instituted by the F109Advocate General for Northern Ireland.
2
The Lord Advocate may defend any such proceedings.
3
This paragraph is without prejudice to any power to institute or defend proceedings exercisable apart from this paragraph by any person.
Notice of devolution issue
26
A court or tribunal shall order notice of any devolution issue which arises in any proceedings before it to be given to the F110Advocate General for Northern Ireland and the Lord Advocate (unless the person to whom the notice would be given is a party to the proceedings).
27
A person to whom notice is given in pursuance of paragraph 26 may take part as a party in the proceedings, so far as they relate to a devolution issue.
Reference of devolution issue to Court of Appeal
28
A court, other than the F111Supreme Court or the Court of Appeal in Northern Ireland, may refer any devolution issue which arises in any proceedings before it to the Court of Appeal in Northern Ireland.
29
A tribunal from which there is no appeal shall refer any devolution issue which arises in any proceedings before it to the Court of Appeal in Northern Ireland; and any other tribunal may make such a reference.
References from Court of Appeal to F113Supreme Court
Words in heading before Sch. 6 para. 30 substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40(4), 148(1), Sch. 9 para. 105(3); S.I. 2009/1604, art. 2
30
The Court of Appeal in Northern Ireland may refer any devolution issue which arises in proceedings before it (otherwise than on a reference under paragraph 28 or 29) to the F112Supreme Court.
Appeals from Court of Appeal to F117Supreme Court
Words in heading before Sch. 6 para. 31 substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40(4), 148(1), Sch. 9 para. 105(5); S.I. 2009/1604, art. 2
31
An appeal against a determination of a devolution issue by the Court of Appeal in Northern Ireland on a reference under paragraph 28 or 29 shall lie to the F114Supreme Court, but only with F115permission of the Court of Appeal in Northern Ireland or, failing such F115permission, with F116permission of the F114Supreme Court.
Part V General
Sch. 6 para. 32 and preceding heading repealed (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40(4), 146, 148(1), Sch. 9 para. 106(2), Sch. 18 Pt. 5; S.I. 2009/1604, art. 2
F119. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
32
F118. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Direct references to F124Supreme Court
Words in heading before Sch. 6 para. 33 substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40(4), 148(1), Sch. 9 para. 106(3); S.I. 2009/1604, art. 2
33
34
35
1
This paragraph applies where a reference is made under paragraph 34 in relation to a devolution issue which relates to the proposed exercise of a function by a member of the Scottish Executive.
2
The person making the reference shall notify a member of the Scottish Executive of that fact.
3
No member of the Scottish Executive shall exercise the function in the manner proposed during the period beginning with the receipt of the notification under sub-paragraph (2) and ending with the reference being decided or otherwise disposed of.
4
Proceedings relating to any possible failure by a member of the Scottish Executive to comply with sub-paragraph (3) may be instituted by the Advocate General.
5
Sub-paragraph (4) is without prejudice to any power to institute proceedings exercisable apart from that sub-paragraph by any person.
Expenses
36
1
A court or tribunal before which any proceedings take place may take account of any additional expense of the kind mentioned in sub-paragraph (3) in deciding any question as to costs or expenses.
2
In deciding any such question, the court or tribunal may award the whole or part of the additional expense as costs or (as the case may be) expenses to the party who incurred it (whatever the decision on the devolution issue).
3
The additional expense is any additional expense which the court or tribunal considers that any party to the proceedings has incurred as a result of the participation of any person in pursuance of paragraph 6, 17 or 27.
Procedure of courts and tribunals
37
Any power to make provision for regulating the procedure before any court or tribunal shall include power to make provision for the purposes of this Schedule including, in particular, provision—
a
for prescribing the stage in the proceedings at which a devolution issue is to be raised or referred,
b
for the sisting or staying of proceedings for the purpose of any proceedings under this Schedule, and
c
for determining the manner in which and the time within which any intimation or notice is to be given.
Interpretation
38
Any duty or power conferred by this Schedule to refer a devolution issue to a court shall be construed as a duty or (as the case may be) power to refer the issue to the court for decision.
SCHEDULE 7 Procedure for subordinate legislation
General provision
1
1
Subordinate legislation (or a statutory instrument containing it) under a provision listed in the left-hand column is subject to the type of procedure in the right-hand column.
2
This paragraph is subject to paragraphs 3 and 4.
Provision of the Act | Type of procedure |
|---|---|
Section 2(1) | Type C |
Section 12(1) | Type C |
Section 15 | Type D |
Section 18(5) | Type J |
Section 30 | Type A |
Section 35 | Type I |
Section 38 | Type J |
Section 56(2) | Type G |
Section 58 | Type I |
Section 60 | Type G |
Section 62 | Type G |
Section 63 | Type A |
Section 64(5) | Type K |
Section 67(3) | Type E |
Section 71(6) | Type K |
Section 79 | Type E |
F141Section 80B | Type A |
Section 88 | Type I |
Section 89 | Type F |
Section 90 | Type F |
Section 93 | Type H |
Section 97 | Type A |
F125. . . | F125. . . |
Section 104 | Type G |
Section 105 | Type G |
Section 106 | Type G |
Section 107 | Type G |
Section 108 | Type A |
Section 109 | Type H |
Section 110(1) | Type C |
Section 110(2) | Type I |
Section 111 | Type A |
F184Section 113(12) | Type A |
Section 116(9) | Type G |
Section 124(1) | Type G |
Section 126(2) | Type B |
Section 126(8) | Type H |
Section 129(1) | Type G |
Schedule 2, paragraph 2 | Type G |
Schedule 2, paragraph 7 | Type H |
Notes
The entry for section 58 does not apply to an instrument containing an order merely revoking an order under subsection (1) of that section.
The entry for section 79, in relation to an instrument containing an order which makes only such provision as is mentioned in section 79(3), is to be read as referring to type K instead of type E.
Types of procedure
2
The types of procedure referred to in this Schedule are—
Type A: No recommendation to make the legislation is to be made to Her Majesty in Council unless a draft of the instrument —
- a
has been laid before, and approved by resolution of, each House of Parliament, and
- b
has been laid before, and approved by resolution of, the Parliament.
- a
Type B: No recommendation to make the legislation is to be made to Her Majesty in Council unless a draft of the instrument has been laid before, and approved by resolution of, each House of Parliament.
Type C: No Minister of the Crown is to make the legislation unless a draft of the instrument has been laid before, and approved by resolution of, each House of Parliament.
Type D: No recommendation to make the legislation is to be made to Her Majesty in Council unless a draft of the instrument has been laid before, and approved by resolution of, the Parliament.
Type E: No Minister of the Crown is to make the legislation unless a draft of the instrument has been laid before, and approved by resolution of, the House of Commons.
Type F: The instrument containing the legislation, if made without a draft having been approved by resolution of each House of Parliament and of the Parliament, shall be subject to annulment in pursuance of—
- a
a resolution of either House, or
- b
a resolution of the Parliament.
- a
Type G: The instrument containing the legislation, if made without a draft having been approved by resolution of each House of Parliament, shall be subject to annulment in pursuance of a resolution of either House.
Type H: The instrument containing the legislation shall be subject to annulment in pursuance of—
- a
a resolution of either House of Parliament, or
- b
a resolution of the Parliament.
- a
Type I: The instrument containing the legislation shall be subject to annulment in pursuance of a resolution of either House of Parliament.
Type J: The instrument containing the legislation shall be subject to annulment in pursuance of a resolution of the Parliament.
Type K: The instrument containing the legislation shall be subject to annulment in pursuance of a resolution of the House of Commons.
Special cases
3
1
This paragraph applies if—
a
the instrument containing the legislation would, apart from this paragraph, be subject to the type F, G, H, I or K procedure, and
b
the legislation contains provisions which add to, replace or omit any part of the text of an Act.
2
Where this paragraph applies—
a
instead of the type F procedure, the type A procedure shall apply,
b
instead of the type G procedure, the type B or (as the case may be) C procedure shall apply,
c
instead of the type H procedure, the type A procedure shall apply,
d
instead of the type I procedure, the type B or (as the case may be) C procedure shall apply,
e
instead of the type K procedure, the type E procedure shall apply.
4
If legislation under section 129(1) makes provision as mentioned in section 112(2) then, instead of the type G procedure, the type D procedure shall apply.
5
1
An instrument containing an Order in Council or order under an open power which revokes, amends or re-enacts subordinate legislation under an open power may (in spite of section 14 of the M63Interpretation Act 1978) be subject to a different procedure under this Schedule from the procedure to which the instrument containing the original legislation was subject.
2
An instrument containing an Order in Council under section 89 or 90 which revokes, amends or re-enacts an Order under either section may (in spite of section 14 of the M64Interpretation Act 1978) be subject to a different procedure under this Schedule from the procedure to which the instrument containing the original Order was subject.
I25SCHEDULE 8 Modifications of enactments
Sch. 8 wholly in force at 1.4.2000: Sch. 8 partly in force at Royal Assent see s. 130(1); specified provisions of Sch. 8 in force at 6.5.1999, 20.5.1999, 1.7.1999 and 1.4.2000 by S.I. 1998/3178, arts. 2(2), 3.
Public Revenue (Scotland) Act 1833 (c.13)
1
In section 2 of the Public Revenue (Scotland) Act 1833 (regulation of Queen’s and Lord Treasurer’s Remembrancer), for “Treasury” in both places there is substituted “
Scottish Ministers
”
.
Crown Suits (Scotland) Act 1857 (c.44)
2
1
The Crown Suits (Scotland) Act 1857 is amended as follows.
2
In section 1 (Crown suits may be brought by or against Lord Advocate)—
a
after “Crown” there is inserted “
(including the Scottish Administration)
”
, and
b
for “Her Majesty’s Advocate for the time being” there is substituted “
the appropriate Law Officer
”
.
3
In section 2 (authority of Crown required)—
a
for “Her Majesty’s Advocate” there is substituted “
the appropriate Law Officer
”
, and
b
after “Majesty” there is inserted “
of the part of the Scottish Administration
”
.
4
In section 3 (absence of authority cannot be founded upon), for “Her Majesty’s Advocate” there is substituted “
the appropriate Law Officer
”
.
5
After section 4 there is inserted—
4A Meaning of “the appropriate Law Officer”.
In this Act “the appropriate Law Officer” means—
a
the Lord Advocate, where the action, suit or proceeding is on behalf of or against any part of the Scottish Administration, and
b
the Advocate General for Scotland, in any other case.
6
In section 5 (change of Lord Advocate not to affect proceedings)—
a
for “Her Majesty’s Advocate” there is substituted “
the Lord Advocate or the Advocate General for Scotland
”
, and
b
for “the office of Her Majesty’s Advocate” there is substituted “
that office
”
.
Sheriff Courts and Legal Officers (Scotland) Act 1927 (c.35)
3
1
The Sheriff Courts and Legal Officers (Scotland) Act 1927 is amended as follows.
2
In section 1(2) (appointment etc. of procurator fiscal), “with the consent of the Treasury” is omitted.
3
In section 2 (appointment of sheriff clerk and procurator fiscal deputes), “with the consent of the Treasury as to numbers and salaries” is omitted.
4
In section 3 (whole-time sheriff clerks and procurators fiscal and deputes), “and in either case with the consent of the Treasury” is omitted.
5
In section 5 (whole-time clerks), “with the consent of the Treasury as to numbers and salaries” is omitted.
6
In section 12 (prosecutions at instance of procurator fiscal), “after consultation with the Treasury” is omitted.
Administration of Justice (Scotland) Act 1933 (c.41)
4
In the Administration of Justice (Scotland) Act 1933, in sections 24(7) and 25 (officers of Court of Session etc.), “and shall be exercised on nomination by the Lord Advocate” is omitted.
Private Legislation Procedure (Scotland) Act 1936 (c.52)
C1085
In section 1 of the Private Legislation Procedure (Scotland) Act 1936 (application for provisional order: notices), after subsection (4) there is added—
5
This section shall not apply where any public authority or any persons desire to obtain parliamentary powers the conferring of which is wholly within the legislative competence of the Scottish Parliament.
United Nations Act 1946 (c.45)
6
In section 1 of the United Nations Act 1946 (measures to give effect to decisions of Security Council), in subsection (4), for the words following “shall” there is substituted
forthwith after it is made be laid—
a
before Parliament; and
b
if any provision made by the Order would, if it were included in an Act of the Scottish Parliament, be within the legislative competence of that Parliament, before that Parliament.
Crown Proceedings Act 1947 (c.44)
7
1
The Crown Proceedings Act 1947 is amended as follows.
2
In section 38(2) (interpretation)—
a
in the definition of “His Majesty’s aircraft”, after “Kingdom” there is inserted “
or the Scottish Administration
”
,
b
in the definition of “His Majesty’s ships”, after “Kingdom” there is inserted “
or the Scottish Administration
”
and after “said Government” there is inserted “
or Administration
”
, and
c
in the definition of “officer”, after “Minister of the Crown” there is inserted “
and a member of the Scottish Executive
”
.
3
In section 40 (savings)—
a
in subsection (2), after “in the United Kingdom”, in each place where those words appear, there is inserted “
or the Scottish Administration
”
, and
b
after subsection (3) there is inserted—
3A
A certificate of the Scottish Ministers to the effect that—
a
any alleged liability of the Crown arises otherwise than in respect of the Scottish Administration,
b
any proceedings by the Crown are proceedings otherwise than in right of the Scottish Administration,
shall, for the purposes of this Act, be conclusive as to that matter.
4
In the proviso to section 44 (remit from sheriff court to Court of Session on Lord Advocate’s certificate)—
a
for “Lord Advocate” there is substituted “
appropriate Law Officer
”
, and
b
at the end there is inserted—
In this proviso, “the appropriate Law Officer” means—
a
the Lord Advocate, where the proceedings are against any part of the Scottish Administration, and
b
the Advocate General for Scotland, in any other case.
5
In section 50 (application to Scotland of section 35), subsection (2) of section 35 as substituted for Scotland is amended as follows—
a
in paragraph (d)—
i
after “Crown” there is inserted “
in right of Her Majesty’s Government in the United Kingdom
”
,
ii
for “Lord Advocate” there is substituted “
Advocate General for Scotland
”
, and
iii
after “department”, in the second place where it appears, there is inserted—
i
shall not be entitled to avail itself of any set-off or counterclaim if the subject matter thereof relates to the Scottish Administration, and
ii
b
after that paragraph there is inserted—
e
a part of the Scottish Administration, in any proceedings against that part or against the Lord Advocate on its behalf, shall not be entitled to avail itself of any set-off or counterclaim if the subject matter thereof relates to another part of the Scottish Administration or to the Crown in right of Her Majesty’s Government in the United Kingdom.
6
In section 51(2) (application to Scotland of section 38), in paragraph (ii), after “Lord Advocate” there is inserted “
or the Advocate General for Scotland
”
.
Public Registers and Records (Scotland) Act 1948 (c.57)
8
In section 1(1) of the Public Registers and Records (Scotland) Act 1948 (appointment etc. of Keeper of the Registers and Keeper of the Records), for “Secretary of State” there is substituted “
Scottish Ministers
”
.
Lands Tribunal Act 1949 (c.42)
9
In section 2 of the Lands Tribunal Act 1949 (members etc. of Lands Tribunal for Scotland)—
a
F126. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
b
after that subsection there is inserted—
10
The remuneration of members of the Lands Tribunal for Scotland shall be charged on the Scottish Consolidated Fund.
Defamation Act 1952 (c.66)
10
In section 10 of the Defamation Act 1952 (limitation on privilege at elections), after “local government authority” there is inserted “
to the Scottish Parliament
”
.
Defamation Act (Northern Ireland) 1955 (c.11 (N.I.))
11
In section 10(2) of the Defamation Act (Northern Ireland) 1955 (limitation on privilege at elections), after “Parliament of the United Kingdom” there is inserted “
or to the Scottish Parliament
”
.
Registration of Births, Deaths and Marriages (Scotland) Act 1965 (c.49)
12
In section 1(1) of the Registration of Births, Deaths and Marriages (Scotland) Act 1965 (power of Secretary of State to appoint Registrar General), for “Secretary of State” there is substituted “
Scottish Ministers
”
.
Pensions (Increase) Act 1971 (c.56)
13
In Part II of Schedule 2 to the Pensions (Increase) Act 1971 (official pensions out of local funds), before paragraph 39 there is inserted—
Scottish Parliament and Scottish Executive
38AB
A pension payable under a scheme established by virtue of section 81(4)(b) of, or paragraph 3(4)(b) of Schedule 2 to, the Scotland Act 1998.
Superannuation Act 1972 (c.11)
14
In section 1(6) of the Superannuation Act 1972 (superannuation as respects civil servants etc.), for “or the Consolidated Fund” there is substituted “
the Consolidated Fund or the Scottish Consolidated Fund
”
.
European Communities Act 1972 (c.68)
15
1
The European Communities Act 1972 is amended as follows.
2
In section 2 (general implementation of Treaties)—
a
references to a statutory power or duty include a power or duty conferred by an Act of the Scottish Parliament or an instrument made under such an Act, and
b
references to an enactment include an enactment within the meaning of this Act.
3
In relation to F127any order, rules, regulations or scheme made by the Scottish Ministers, or an Order in Council made on the recommendation of the First Minister, under section 2—
a
in subsection (2), “designated” in the first sentence, and the second sentence, shall be disregarded,
b
references to an Act of Parliament shall be read as references to an Act of the Scottish Parliament, and
C109c
paragraph 2(2) of Schedule 2 shall have effect as if the references to each, or either, House of Parliament were to the Scottish Parliament.
4
In section 3(4) (evidence), references to a government department include any part of the Scottish Administration.
Interpretation Act 1978 (c.30)
16
1
The Interpretation Act 1978 is amended as follows.
2
After section 23 there is inserted—
23A Acts of the Scottish Parliament etc.
1
This Act applies in relation to an Act of the Scottish Parliament and an instrument made under such an Act only to the extent provided in this section.
2
Except as provided in subsection (3) below, sections 15 to 18 apply to—
a
an Act of the Scottish Parliament as they apply to an Act,
b
an instrument made under an Act of the Scottish Parliament as they apply to subordinate legislation.
3
In the application of those sections to an Act and to subordinate legislation—
a
references to an enactment include an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament, and
b
the reference in section 17(2)(b) to subordinate legislation includes an instrument made under an Act of the Scottish Parliament.
4
In the application of section 20 to an Act and to subordinate legislation, references to an enactment include an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament.
3
In Schedule 1 (words and expressions defined), the following definitions are inserted in the appropriate places—
“Act” means an Act of Parliament.
“Enactment” does not include an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament.
Education (Scotland) Act 1980 (c.44)
17
In section 135(1) of the Education (Scotland) Act 1980 (interpretation), in the definition of “Her Majesty’s inspectors”, “on the recommendation of the Secretary of State” is omitted.
Civil Jurisdiction and Judgments Act 1982 (c.27)
18
1
Section 46 of the Civil Jurisdiction and Judgments Act 1982 (domicile and seat of the Crown) is amended as follows.
2
In subsection (3), after paragraph (a) there is inserted—
aa
the Crown in right of the Scottish Administration has its seat in, and in every place in, Scotland,
3
In subsection (7), after “Kingdom” there is inserted “
, the Scottish Administration
”
.
Mental Health Act 1983 (c.20)
19
In section 141 of the Mental Health Act 1983 (members of the House of Commons suffering from mental illness), after subsection (7), there is added—
8
This section also has effect in relation to members of the Scottish Parliament but as if—
a
any references to the House of Commons or the Speaker were references to the Scottish Parliament or (as the case may be) the Presiding Officer, and
b
subsection (7) were omitted.
National Audit Act 1983 (c.44)
20
Sections 6 and 7 of the National Audit Act 1983 (value for money studies) shall not apply in relation to—
a
the Scottish Administration or any part of it, or
b
any Scottish public authority with mixed functions or no reserved functions.
Tourism (Overseas Promotion) (Scotland) Act 1984 (c.4)
21
In section 1 of the Tourism (Overseas Promotion) (Scotland) Act 1984 (power of Scottish Tourist Board to promote tourism in Scotland outside UK), subsection (2) is omitted.
Bankruptcy (Scotland) Act 1985 (c.66)
22
For section 1 of the Bankruptcy (Scotland) Act 1985 there is substituted—
1 Accountant in Bankruptcy.
1
The Accountant in Bankruptcy shall be appointed by the Scottish Ministers.
2
The Scottish Ministers may appoint a member of the staff of the Accountant in Bankruptcy to be Depute Accountant in Bankruptcy to exercise all of the functions of the Accountant in Bankruptcy at any time when the Accountant in Bankruptcy is unable to do so.
Insolvency Act 1986 (c.45)
I2423
1
The Insolvency Act 1986 is amended as follows.
F1282
Anything directed to be done, or which may be done, to or by the registrar of companies in Scotland by virtue of any of the provisions mentioned in sub-paragraph (3), shall, or (as the case may be) may, also be done to or by the Accountant in Bankruptcy.
2A
In the case of a building society, friendly society or industrial and provident society which has its registered office in Scotland, anything directed to be done, or which may be done, to or by the Financial Services Authority by virtue of any of the provisions mentioned in sub-paragraph (3) as applied (with or without modifications) in relation to the society shall, or (as the case may be) may, also be done to or by the Accountant in Bankruptcy.
3
Those provisions are: sections 53(1), 54(3), 61(6), 62(5) (so far as relating to the giving of notice), 67(1), 69(2), 84(3), 94(3), 106(3) and (5), 112(3), 130(1), 147(3), 170(2) and 172(8).
F1294
Anything directed to be done, or which may be done, to or by the registrar of companies in Scotland by virtue of any of the provisions mentioned in sub-paragraph (5), shall, or (as the case may be) shall instead be done to or by the Accountant in Bankruptcy.
4A
In the case of a building society, friendly society or industrial and provident society which has its registered office in Scotland, anything directed to be done, or which may be done, to or by the Financial Services Authority by virtue of any of those provisions as applied (with or without modifications) in relation to the society shall, or (as the case may be) shall instead be done to or by the Accountant in Bankruptcy.
5
Those provisions are: sections 89(3), 109(1), 171(5) and (6), 173(2)(a) and 192(1).
6
In section 427 (members of the House of Commons whose estates are sequestrated etc.), after subsection (6) there is inserted—
6A
Subsections (4) to (6) have effect in relation to a member of the Scottish Parliament but as if—
a
references to the House of Commons were to the Parliament and references to the Speaker were to the Presiding Officer, and
b
in subsection (4), for “under this section” there were substituted “under section 15(1)(b) of the Scotland Act 1998 by virtue of this section”.
Public Order Act 1986 (c.64)
24
In section 26(1) of the Public Order Act 1986 (savings for reports of parliamentary proceedings), after “Parliament” there is inserted “
or in the Scottish Parliament
”
.
Copyright, Designs and Patents Act 1988 (c.48)
25
1
The Copyright, Designs and Patents Act 1988 is amended as follows.
2
In section 12(9) (duration of copyright in literary, dramatic, musical or artistic works), for “166” there is substituted “
166A
”
.
3
In section 153(2) (qualification for copyright protection), for “166” there is substituted “
166A
”
.
4
In section 163(6) (Crown copyright), for “and 166” there is substituted “
to 166A
”
.
5
In section 164(1) (Crown copyright in Acts of Parliament etc.), after “Parliament” there is inserted “
Act of the Scottish Parliament
”
.
6
After section 166 there is inserted—
166A Copyright in Bills of the Scottish Parliament.
1
Copyright in every Bill introduced into the Scottish Parliament belongs to the Scottish Parliamentary Corporate Body.
2
Copyright under this section subsists from the time when the text of the Bill is handed in to the Parliament for introduction—
a
until the Bill receives Royal Assent, or
b
if the Bill does not receive Royal Assent, until it is withdrawn or rejected or no further parliamentary proceedings may be taken in respect of it.
3
References in this Part to Parliamentary copyright (except in section 165) include copyright under this section; and, except as mentioned above, the provisions of this Part apply in relation to copyright under this section as to other Parliamentary copyright.
4
No other copyright, or right in the nature of copyright, subsists in a Bill after copyright has once subsisted under this section; but without prejudice to the subsequent operation of this section in relation to a Bill which, not having received Royal Assent, is later reintroduced into the Parliament.
7
In section 178 (minor definitions)—
a
in the definition of “the Crown”, after “of” there is inserted “
the Scottish Administration or of
”
, and
b
in the definition of “parliamentary proceedings”, after “Assembly” there is inserted “
of the Scottish Parliament
”
.
8
In section 179 (index of defined expressions), in column 2 of the entry for “Parliamentary copyright”, for “and 166(6)” there is substituted “
166(6) and 166A(3)
”
.
Official Secrets Act 1989 (c.6)
26
1
Section 12 of the Official Secrets Act 1989 (meaning of “Crown servant” and “government contractor” for the purposes of that Act) is amended as follows.
2
In subsection (1), after paragraph (a) there is inserted—
aa
a member of the Scottish Executive or a junior Scottish Minister;
3
In subsection (2)(a), after “above,” there is inserted “
of any office-holder in the Scottish Administration,
”
.
4
After subsection (3) there is inserted—
4
In this section “office-holder in the Scottish Administration” has the same meaning as in section 126(7)(a) of the Scotland Act 1998.
Prisons (Scotland) Act 1989 (c.45)
27
1
The Prisons (Scotland) Act 1989 is amended as follows.
2
Section 2 of that Act (appointment of officers etc.) is omitted.
3
In section 3(1) (prison officers), for the words following “Secretary of State” there is substituted—
1A
Every prison shall have a governor and such other officers as may be necessary.
4
In section 3A (medical services)—
a
in subsection (2), for “appointing” there is substituted “
providing
”
and for “appointment” there is substituted “
provision
”
, and
b
in subsection (4), for “appointed” there is substituted “
provided
”
.
European Communities (Amendment) Act 1993 (c.32)
28
In section 6 of the European Communities (Amendment) Act 1993 (persons who may be proposed for membership of the Committee of the Regions), after “he is” there is inserted “
a member of the Scottish Parliament
”
.
Scottish Land Court Act 1993 (c.45)
29
In section 1 of the Scottish Land Court Act 1993 (the Scottish Land Court)—
a
in subsection (2), for “Secretary of State” there is substituted “
First Minister
”
, and
b
after subsection (2) there is inserted—
2A
Before recommending the appointment of a person as Chairman, the First Minister shall consult the Lord President of the Court of Session.
Value Added Tax Act 1994 (c.23)
30
In section 41 of the Value Added Tax Act 1994 (application to the Crown), in subsection (6), after “includes” there is inserted “
the Scottish Administration
”
.
Requirements of Writing (Scotland) Act 1995 (c.7)
31
In section 12(1) of the Requirements of Writing (Scotland) Act 1995 (interpretation)—
a
in the definition of “Minister”, after “1975” there is inserted “
and also includes a member of the Scottish Executive
”
, and
b
in paragraph (a) of the definition of “officer”, after “Department” there is inserted “
or, as the case may be, as a member of the staff of the Scottish Ministers or the Lord Advocate
”
.
Criminal Procedure (Scotland) Act 1995 (c.46)
32
1
The Criminal Procedure (Scotland) Act 1995 is amended as follows.
2
After section 288 there is inserted—
Devolution issues
288A Rights of appeal for Advocate General: devolution issues.
1
This section applies where—
a
a person is acquitted or convicted of a charge (whether on indictment or in summary proceedings), and
b
the Advocate General for Scotland was a party to the proceedings in pursuance of paragraph 6 of Schedule 6 to the Scotland Act 1998 (devolution issues).
2
The Advocate General for Scotland may refer any devolution issue which has arisen in the proceedings to the High Court for their opinion; and the Clerk of Justiciary shall send to the person acquitted or convicted and to any solicitor who acted for that person at the trial, a copy of the reference and intimation of the date fixed by the Court for a hearing.
3
The person may, not later than seven days before the date so fixed, intimate in writing to the Clerk of Justiciary and to the Advocate General for Scotland either—
a
that he elects to appear personally at the hearing, or
b
that he elects to be represented by counsel at the hearing,
but, except by leave of the Court on cause shown, and without prejudice to his right to attend, he shall not appear or be represented at the hearing other than by and in conformity with an election under this subsection.
4
Where there is no intimation under subsection (3)(b), the High Court shall appoint counsel to act at the hearing as amicus curiae.
5
The costs of representation elected under subsection (3)(b) or of an appointment under subsection (4) shall, after being taxed by the Auditor of the Court of Session, be paid by the Advocate General for Scotland out of money provided by Parliament.
6
The opinion on the point referred under subsection (2) shall not affect the acquittal or (as the case may be) conviction in the trial.
288B Appeals to Judicial Committee of the Privy Council.
1
This section applies where the Judicial Committee of the Privy Council determines an appeal under paragraph 13(a) of Schedule 6 to the Scotland Act 1998 against a determination of a devolution issue by the High Court in the ordinary course of proceedings.
2
The determination of the appeal shall not affect any earlier acquittal or earlier quashing of any conviction in the proceedings.
3
Subject to subsection (2) above, the High Court shall have the same powers in relation to the proceedings when remitted to it by the Judicial Committee as it would have if it were considering the proceedings otherwise than as a trial court.
3
In section 307(1) (interpretation), after the definition of “crime” there is inserted—
“devolution issue” has the same meaning as in Schedule 6 to the Scotland Act 1998;
Defamation Act 1996 (c.31)
33
1
The Defamation Act 1996 is amended as follows.
2
In section 17(1) (interpretation), in the definition of “statutory provision”, after “1978” there is inserted—
aa
a provision contained in an Act of the Scottish Parliament or in an instrument made under such an Act,
3
In paragraph 11(1)(c) of Schedule 1 (qualified privilege), after “Minister of the Crown” there is inserted “
a member of the Scottish Executive
”
.
Damages Act 1996 (c.48)
34
In section 6 of the Damages Act 1996 (guarantees for public sector settlements), after subsection (8) there is inserted—
8A
In the application of subsection (3) above to Scotland, for the words from “guidelines” to the end there shall be substituted “the Minister”.
I26SCHEDULE 9 Repeals
Sch. 9 in force for certain purposes at 20.5.1999 and for all remaining purposes at 1.7.1999 by S.I. 1998/3178, arts. 2(2), 3
Chapter | Short title | Extent of repeal |
|---|---|---|
1927 c. 35. | The Sheriff Courts and Legal Officers (Scotland) Act 1927. | In section 1(2), “with the consent of the Treasury”. |
In section 2, “with the consent of the Treasury as to numbers and salaries”. | ||
In section 3, “and in either case with the consent of the Treasury”. | ||
In section 5, “with the consent of the Treasury as to numbers and salaries”. | ||
In section 12, “after consultation with the Treasury”. | ||
1933 c. 41. | The Administration of Justice (Scotland) Act 1933. | In sections 24(7) and 25, “and shall be exercised on nomination by the Lord Advocate”. |
1975 c. 24. | The House of Commons Disqualification Act 1975. | In Schedule 2, the entries for the Lord Advocate and the Solicitor General for Scotland. |
1975 c. 27. | The Ministerial and other Salaries Act 1975. | In Part III of Schedule 1, the entries for the Lord Advocate and the Solicitor General for Scotland. |
1980 c. 44. | The Education (Scotland) Act 1980. | In section 135(1), in the definition of “Her Majesty’s inspectors”, “on the recommendation of the Secretary of State”. |
1984 c. 4. | The Tourism (Overseas Promotion) (Scotland) Act 1984. | Section 1(2). |
1986 c. 56. | The Parliamentary Constituencies Act 1986. | In Schedule 2, rule 1(2). |
1989 c. 45. | The Prisons (Scotland) Act 1989. | Section 2. |
Act modified (30.6.1999) by 1999 c. 8, s. 66(1)
Act modified (E.W.S.) (30.6.1999) by 1999 c. 9, s. 14(3)