This section:
makes it clear that section 53 has the effect of transferring to Scottish Ministers any functions of Ministers of the Crown of observing and implementing Community law in relation to devolved matters in or as respects Scotland; but
provides that, notwithstanding such transfer, Ministers of the Crown shall continue to be able to exercise those functions as regards Scotland for the purposes specified in section 2(2) of the European Communities Act 1972; and
provides that members of the Scottish Executive have no power to make subordinate legislation, or to do any other act, if the subordinate legislation or act is incompatible with Community law or with rights under the European Convention of Human Rights (ECHR) which are given effect to in UK law.
ensures that the Lord Advocate is able to enjoy the protection afforded by section 6(2) of the Human Rights Act 1998 in prosecuting offences or in his capacity as the head of the systems of criminal prosecution and investigation of deaths.
This section forms part of the set dealing with the establishment of the Scottish Administration and its functions. Section 53 makes provision for the transfer to the Scottish Ministers of Ministerial functions so far as exercisable within devolved competence.
Section 56 provides for some exceptions to the general rule that any transferred functions should no longer be exercisable by a Minister of the Crown in or as regards Scotland. The present section provides for the further exception that UK Ministers are to retain functions for the purpose of observing and implementing Community obligations as respects devolved matters as regards Scotland.
This section is also one of a number of provisions which deal with Community obligations and with rights under the ECHR which are given effect to in UK law by the Human Rights Act 1998 (“the Convention rights”). Paragraph 7 of Part 1 of Schedule 5 provides that international relations, including those with the European Communities (and their institutions), are reserved matters but there is an exception for observing and implementing international obligations, obligations under the ECHR and under Community law. This has the effect that the responsibility of a Minister of the Crown for observing and implementing these obligations in or as regards Scotland transfers to Scottish Ministers under section 53 so far as they relate to devolved matters. The opening words of section 57(1) make it clear that this is the effect of section 53.
However, functions transferred by section 53 are only exercisable by Scottish Ministers within devolved competence. By virtue of section 54, this in effect means that they are only exercisable in the same way as if they had been conferred by an ASP. This in turn means that those functions can only be exercised by Scottish Ministers compatibly with the Convention rights and with Community law because an ASP can only confer a function to be exercised in that way - section 29(2)(d). However, this only applies in the case of functions transferred under section 53. It does not apply to functions conferred upon Scottish Ministers by other means, such as by an order under section 63. Section 57(2) is, therefore, a general across the board provision which makes it clear that a member of the Scottish Executive has no power (and would therefore be acting ultra vires) if he was to exercise any function incompatibly with the Convention rights or with Community law.
This means that a member of the Scottish Executive is prevented by a vires control from ever exercising any function incompatibly with the Convention rights or with Community law. Any question as to whether they may have done so (or whether any failure by them to act is incompatible) is a devolution issue in terms of paragraph 1(d) and (e) of Schedule 6.
| Stage | Date | Column |
|---|---|---|
| LC | 30-Jul-98 | 1623 |
| LR | 28-Oct-98 | 2040 |
Subsection (1) provides that, despite the transfer to the Scottish Ministers of functions in relation to observing and implementing Community law by virtue of section 53, 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 European Communities Act 1972. Section 2(2) enables Ministers to make regulations to implement any Community obligation, or for the purpose of dealing with matters arising out of any such obligation. Community law is defined in section 126(9).
The intention is that it should continue to be possible for a Minister of the Crown to exercise functions, such as to make regulations under section 2(2) of the 1972 Act or some other statutory provision, for the purpose of implementing an EC obligation as respects a devolved matter. There may be circumstances where it is convenient and sensible for European Community obligations to be implemented through a single set of regulations having effect across the whole of the UK, rather than having separate regulations for Scotland. This will be a matter for agreement between the Scottish Executive and UK Ministers.
Subsection (2) provides that a member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights or with Community law. Convention rights are defined in section 126(1) as having the same meaning as in the Human Rights Act 1998 and mean the rights which are given effect to throughout the UK by that Act.
The effect of this provision is to impose a vires control upon Scottish Ministers so that they would be acting ultra vires if they acted incompatibly with any of the Convention rights or with Community law.
The reference in this context to Community law is modified by section 106(6) in the case of an obligation under Community law which is a quantitative obligation and it is split in terms of section 106.
This provision applied to the Lord Advocate as soon as he became a member of the Scottish Executive on 20 May 1999 (see note on section 48) and to the Scottish Ministers as from 1 July 1999. There have been a number of cases raising the question of whether the Lord Advocate is acting incompatibly with Convention rights in bringing or continuing some prosecution, such as Starrs v Ruxton 2000 JC 80 (temporary sheriffs).
Subsection (3) provides that subsection (2) does not apply to an act of the Lord Advocate in prosecuting any offence or in his capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland which, because of subsection (2) of section 6 of the Human Rights Act 1998 is not unlawful under subsection (1) of that section.
Section 6(1) of the Human Rights Act 1998 provides that it is unlawful for a public authority, which includes the Lord Advocate, to act in a way which is incompatible with a Convention right. Section 6(2) provides that section 6(1) does not apply if (a) as a result of provisions in primary legislation, the public authority could not have acted differently or (b) the public authority was acting to give effect to or enforce provisions made under primary legislation. This is intended to protect a public authority where a Westminster Act required it to breach a Convention right.