General

Prior to devolution, the Secretary of State for Scotland had various different statutory powers to appoint staff in the Scottish Office, the courts and prisons and in the Department of the Registers of Scotland and the Scottish Record Office etc. The Lord Advocate appointed staff in his Department, in the Crown Office and in the Procurator Fiscal service. As the functions carried out by those departments and bodies were devolved, they became in effect part of the Scottish Administration. The Scottish Administration is defined in section 126(6)-(8) to include not only Ministers but also the holders of those non-ministerial offices (such as the Keeper of the Registers of Scotland etc.) and the staff of the Scottish Administration.

The existing powers of the Secretary of State and the Lord Advocate to appoint such staff were, so far as possible, replaced by section 51(1) which confers upon the Scottish Ministers the power to appoint staff of the Scottish Administration.

Section 51(2) makes it clear that the staff of the Scottish Administration and the holder of any non-ministerial office in the Scottish Administration are members of the Home Civil Service and section 51(3) ensures that the power to appoint such persons is subject to the Civil Service Order in Council.

Although the Scottish Ministers have therefore the power to appoint persons to be civil servants, the Civil Service itself is a reserved matter by virtue of paragraph 8 of Part I of Schedule 5. There is an exception from that reservation for various statutory provisions relating to the appointment of sheriff clerks, procurators fiscal etc. and officers of the High Court of Justiciary and the Court of Session.

Parliamentary Consideration

Details of Provisions

Subsection (1) gives the Scottish Ministers the power to appoint persons to be members of the staff of the Scottish Administration. The staff of the Scottish Administration include the staff of the Lord Advocate, such as in the Crown Office or in the Procurator Fiscal service. It also includes the staff of the various non-ministerial offices who are part of the Scottish Administration, such as the Keeper of the Registers of Scotland.

Subsection (2) provides for service as the holder of any office in the Scottish Administration which is not a ministerial office or a member of the staff of the Scottish Administration to be service in the Home Civil Service. This ensures that all these persons are civil servants in the Home Civil Service and there is no separate civil service created as in the case of Northern Ireland.

Offices in the Scottish Administration which are not ministerial offices are defined by section 126(8) and include 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. It also includes the offices specified in the Scottish Administration (Offices) Order 1999 (S.I. 1999/1127).

Subsection (3) makes the power of the Scottish Ministers to appoint staff under subsection (1) and other statutory powers to appoint such persons (e.g. that of the Registrar General of Births, Deaths and Marriages for Scotland) subject to any provisions made in relation to the Home Civil Service by or under any Order in Council.

This provision ensures, in particular, that, subject to any delegation permitted under subsection (4), the standards of entry to the Home Civil Service and the management of the service, including the terms and conditions of service, are similar throughout the UK.

The first part of subsection (4) makes it clear that any civil service management function shall be exercisable by the Minister for the Civil Service (i.e. the Prime Minister) in relation to the staff of the Scottish Administration as it is exercisable in relation to other members of the Home Civil Service.

The second part of subsection (4) makes it clear that the power which the Minister for the Civil Service has under section 1 of the Civil Service (Management Functions) Act 1992 to delegate any civil service management function also applies to any civil service management function in relation to the staff of the Scottish Administration.

Subsection (5) provides that salary and allowances payable to or in respect of the persons mentioned in subsection (2) shall be payable out of the Scottish Consolidated Fund. This includes the contributions to any pension scheme.

Subsection (6) provides that section 1(2) and (3) of the Superannuation Act 1972 shall have effect as if references to a Minister of the Crown (other than the Minister for the Civil Service) included the Scottish Ministers. This allows functions relating to civil service pensions to be delegated to the Scottish Ministers.

Subsection (7) requires the Scottish Ministers to make payments to the Minister for the Civil Service of such amounts as he may determine in respect of the pensions etc. payable to persons who are or have been in service as mentioned in subsection (2) and in respect of any expenses to be incurred in administering those pensions etc.

Subsection (8) provides that any amounts required for payments by virtue of subsection (7) shall be charged on the Scottish Consolidated Fund.

Subsection (9) provides definitions of the terms "civil service management function" and "the Home Civil Service".

SECTION 52: Exercise of functions

Purpose and Effect

Section 52 provides for statutory functions to be conferred on "the Scottish Ministers". It also provides that statutory functions of the Scottish Ministers, the First Minister and the Lord Advocate shall be exercisable on behalf of Her Majesty. It provides for functions conferred on the Scottish Ministers to be exercisable by any of them and for acts or omissions by or in relation to any of them to be treated as acts or omissions of or in relation to each of them, except for the Lord Advocate's retained functions and functions conferred on the First Minister alone.

General

This section forms part of a group of sections concerned with Ministerial functions. The section ensures that the Scottish Executive have collective responsibility for any function exercisable by any member of the Executive, other than the specific functions conferred on the First Minister or Lord Advocate.

Parliamentary Consideration

Details of Provisions

Subsection (1) provides that statutory functions may be conferred on the Scottish Ministers by that name.

Subsection (2) provides that statutory functions of the Scottish Ministers and statutory functions conferred on the First Minister or the Lord Advocate in their singular capacities, shall be exercisable on behalf of Her Majesty.

Subsection (3) provides that statutory functions conferred on the Scottish Ministers shall be exercisable by any member of the Scottish Executive. This ensures that functions conferred on the Scottish Ministers collectively may legally be exercisable by any one of them. In practice, it is for the First Minister to determine administratively which Minister is to exercise any particular statutory function by allocating the Ministerial portfolios. This provision only applies to statutory functions conferred upon the Scottish Ministers and not specifically upon the First Minister or the Lord Advocate.

Subsection (4) provides that any act or omission of, or in relation to, any member of the Scottish Executive be treated as an act or omission of, or in relation to, each of them. Similarly any property acquired or liability incurred by any member of the Scottish Executive shall be treated as if it were acquired or incurred by each of them. "Property" is defined in section 126(1) as including rights and interests of any description. This ensures that there is collective legal responsibility among the members of the Scottish Executive and, in particular, joint and several liability for any acts or omissions of any one of them. This is qualified by subsection (5).

Subsection (5) provides that subsection (4) does not apply to in relation to the exercise of functions conferred on the First Minister alone or the Lord Advocate's retained functions. This exception means that the First Minister and the Lord Advocate are solely legally responsible for how they exercise, or fail to exercise, their respective functions.

The "retained functions" of the Lord Advocate are defined in subsection (6). Functions conferred upon the Lord Advocate may, however, be exercised by the Solicitor General for Scotland under section 2(1) of the Law Officers Act 1944.

Subsection (6) defines the Lord Advocate's "retained functions" as meaning: (a) any functions exercisable by the Lord Advocate 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.

On (a), reference is made to the note on section 48 for a description of what happened to the functions of the Lord Advocate before he ceased to be a Minister of the Crown on 20 May 1999. The effect was that the only functions which were exercisable by the Lord Advocate immediately before he ceased to be a Minister of the Crown were those relating to his capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland. It was those functions which he retained when he became a member of the Scottish Executive on that date.

However (b) makes it clear that the concept of "retained functions" also includes any future statutory functions which are conferred upon the Lord Advocate alone after 20 May 1999 in a Westminster Act or an Act of the Scottish Parliament or in subordinate legislation. It would be appropriate for functions to be conferred upon him alone where they related to his capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland.

Subsection (7) provides that, in this section, "statutory functions" means functions conferred by virtue of any enactment.

SECTION 53: General transfer of functions

Purpose and Effect

This section makes provision for the transfer to the Scottish Ministers of Ministerial functions in so far as they are exercisable within devolved competence, as defined in section 54. The effect of the section is that Ministerial functions under pre-existing legislation, prerogative and other executive functions exercisable by a Minister of the Crown on behalf of Her Majesty and other functions conferred on a Minister of the Crown by a prerogative instrument, will transfer to the Scottish Ministers, so far as they are exercisable in or as regards Scotland, except so far as they are exercisable in relation to matters outside the legislative competence of the Scottish Parliament.

General

This section and section 54 forms part of the set dealing with the functions of the Scottish Executive. Section 52 provides for statutory functions conferred on the Scottish Ministers to be exercisable by any one of them.

This section is a key element in the structure of the Act. It provides for the automatic transfer of Ministerial functions to the Scottish Ministers. It describes the types of functions to be transferred and transfers them "so far as they are exercisable within devolved competence" (which is defined in section 54).

The functions to be transferred require to be exercisable "in or as regards Scotland" because this is implicit in the concept of "devolved competence" (see note on section 54). Where there is uncertainty about this, section 30(3) empowers an Order in Council to be made which would provide that specified functions are to be treated, for such purposes of this Act as may be specified (including section 53), as being, or as not being, functions which are exercisable in or as regards Scotland - see the note on section 30.

The functions to be transferred also require to be separately exercisable within devolved competence. Section 106 enables provision to be made by Order in Council modifying a function exercisable by a Minister of the Crown "for the purpose of enabling or otherwise facilitating" its transfer under section 53. The Order may in particular provide for any function which is not separately exercisable in or as regards Scotland or otherwise within devolved competence to be so exercisable - see the note on section 106.

If the function to be transferred requires to be exercised with the agreement of or after consultation with a Minister of the Crown, section 55 provides that this requirement does not apply to the exercise by the Scottish Ministers of functions transferred to them.

To the extent that a function is transferred from a Minister of the Crown to the Scottish Ministers, it ceases to be exercisable by the Minister of the Crown. However sections 56 and 57(1) provide for certain exceptions to this.

Sections 117 to 123 make general modifications to existing pre-commencement enactments in relation to the exercise by the Scottish Ministers of functions transferred to them.

Reference is also made to the Scotland Act 1998 (General Transitory, Transitional and Savings Provisions) Order 1999 (S.I. 1999/901), which includes transitional and savings provisions relating to the transfer of functions under section 53.

Section 63 provides for the transfer of additional functions to the Scottish Ministers. This enables certain functions to be transferred to the Scottish Ministers which would not transfer under section 53 because they are not within "devolved competence". Section 108 enables functions, to be transferred from the Scottish Ministers to UK Ministers. Both powers require the agreement of both the UK and Scottish Parliaments.

Parliamentary Consideration

Details of Provisions

Subsection (1) provides that 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.

This subsection has the effect of automatically transferring the functions from a Minister of the Crown to the Scottish Ministers but only "so far as they are exercisable within devolved competence". To the extent that the function is exercisable outside devolved competence, then it is not transferred and remains with the Minister of the Crown. What devolved competence means is defined in section 54.

However, a function can only transfer if it is separately exercisable within devolved competence and section 106 may be used to facilitate its transfer by making it separately exercisable.

Sections 56 and 57(1) make provision for certain functions to continue to be exercisable by a Minister of the Crown as well as by the Scottish Ministers.

Subsection (2) defines the functions which may be transferred as being:

(a)     those prerogative and other executive functions exercisable by Ministers on behalf of Her Majesty;

(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 not the retained functions of the Lord Advocate as defined in section 52(6).

The "prerogative and other executive functions exercisable by Ministers on behalf of Her Majesty" would include any non-statutory functions which are exercisable by a Minister of the Crown. These functions are not confined to functions which were possessed by a Minister of the Crown when section 53 was commenced on 1 July 1999. They would include functions acquired thereafter by a Minister of the Crown so far as they are exercisable within devolved competence, such as the function of implementing any new EC or international obligation relating to a devolved matter.

The "functions conferred on a Minister of the Crown by a prerogative instrument" are also not time limited and would therefore include any function conferred upon a Minister of the Crown by a Royal Charter made under the prerogative after 1 July 1999. "Prerogative instrument" is defined in section 126(1).

The statutory functions which are transferred are limited to functions conferred on a Minister of the Crown by any "pre-commencement enactment" which is defined in subsection (3). However a Westminster enactment which is passed after devolution may contain a provision which deems it or certain provisions in it to be a pre-commencement enactment. This would then enable functions conferred by that enactment upon a Minister of the Crown to transfer to Scottish Ministers under section 53 "so far as they are exercisable within devolved competence".

Subsection (3) defines a "pre-commencement enactment" for the purposes of the Act as:

(a)     an Act passed before or in the same session in which the Scotland Act was passed and any other enactment made before the passing of this Act;

(b)     subordinate legislation made under such an Act or other enactment before the commencement of section 53 on 1 July 1999; and

(c)     subordinate legislation made under section 106 (power to adapt functions) to the extent that the subordinate legislation states that it is to be treated as a pre-commencement enactment. This is to ensure that functions which are modified under section 106 after 1 July 1999 in order to facilitate transfer can be transferred under section 53.

Subsection (4) draws attention to the fact that this section and section 54 are modified by Part III of Schedule 4. That modifies the general effect of the devolved competence test for certain enactments and other aspects of the law which that Schedule protects from modification by the Scottish Parliament. Paragraph 12 of the Schedule has the effect that, in general, Ministerial functions conferred by such enactments which are protected from modification are not transferred. However, paragraph 13 provides for some exceptions to that in relation to, for example, the European Communities Act 1972 and the Human Rights Act 1998, so that certain Ministerial functions under those Acts are transferred to the Scottish Ministers.

SECTION 54: Devolved competence

Purpose and Effect

This section defines what is meant by a function being exercised within or outside devolved competence for the purposes of the Act. This is of particular relevance to determining what functions are transferred to the Scottish Ministers by virtue of section 53. In general, a function is exercisable within devolved competence if it could be conferred by an Act of the Scottish Parliament. The intention is to align the executive competence of the Scottish Ministers closely with the legislative competence of the Parliament.

General

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 they are exercisable within devolved competence".

Sections 117-119 modify pre-commencement enactments in connection with the exercise of a function by a member of the Scottish Executive within devolved competence.

The expression "within devolved competence" is also used in other contexts. Section 118(4) refers to the exercise of a function within devolved competence to make, confirm or approve subordinate legislation conferred by a pre-commencement enactment upon a person other than a member of the Scottish Executive etc so as to apply, for example, to a function conferred upon Her Majesty to make an Order in Council where that is exercisable within devolved competence.

The question whether a function is exercisable within devolved competence is made a devolution issue by paragraph 1(f) of Schedule 6.

Parliamentary Consideration

Details of Provisions

Subsection (1) provides that references in the Act to the exercise of a function being within or outside devolved competence should be read in accordance with this section. However, as with the definition of the legislative competence of the Parliament in section 29, it is defined negatively by defining what is meant by exercising a function outside devolved competence.

Subsection (2) indicates that it would be outside devolved competence to make a certain provision in subordinate legislation or to confirm or approve subordinate legislation containing such provision. The provision in question is one which it would be outside the legislative competence of the Parliament (which is defined by section 29) to include in an Act of the Scottish Parliament. This means that any Ministerial function to make, confirm or approve subordinate legislation in a pre-commencement enactment only transfers to the Scottish Ministers under section 53 to the extent that any provision made under it could be included in an ASP.

Section 118(1) and (2) modify the procedure contained in any pre-commencement enactment in relation to the exercise by Scottish Ministers within devolved competence of any function to make, confirm or approve subordinate legislation.

Subsection (3) applies to functions other than those relating to making, confirming or approving subordinate legislation. It provides that it is outside devolved competence to exercise such functions (or to exercise them in any way) if a provision of an Act of the Scottish Parliament conferring those functions (or conferring them so as to be exercisable in that way) would be outside the Parliament's legislative competence. This means in effect that any such Ministerial function in a pre-commencement enactment only transfers to the Scottish Ministers under section 53 to the extent that it would be within the legislative competence of the Parliament to confer it by an ASP. The Parliament can only confer a function which is exercisable within its legislative competence, for example a function which is exercisable in or as regards Scotland or compatible with Community law or any Convention rights.

SECTION 55: Functions exercisable with agreement

Purpose and Effect

This section provides that any existing requirements for a function to be exercised by a Minister of the Crown only with the agreement of, or after consultation with, another Minister of the Crown should cease to have effect in relation to the exercise of any function transferred to a member of the Scottish Executive by virtue of section 53. An exception is made for the designation of enterprise zones where a requirement for Treasury consent is maintained because of the tax privileges conferred by such status.

General

This section forms part of the set dealing with the conferral of functions upon members of the Scottish Executive. Section 53 makes provision for the transfer of Ministerial functions exercisable within devolved competence. Some of those functions can only be exercised with the consent of, or after consultation with, another Minister of the Crown, such as the Treasury.

There are two reasons for dispensing with these requirements when the functions are exercised by the Scottish Ministers. Firstly, it would in general be inappropriate for these controls to continue to apply when the Scottish Ministers are exercising those functions. Secondly, in many cases, the function of being consulted, or of giving agreement, would have itself transferred to the Scottish Ministers and it would be confusing to require Scottish Ministers to consult or agree with themselves.

This section therefore dispenses with these requirements. An exception is made for functions under the Local Government, Planning and Land Act 1980 of designating enterprise zones. This reflects the need for continuing Treasury oversight of the tax privileges conferred by the grant of enterprise zone status.

Parliamentary Consideration

Details of Provisions

Subsection (1) provides that any statutory provision, or any provision not contained in an enactment, requiring a Ministerial function to be exercised only with the agreement of, or after consultation with, another Minister of the Crown should cease to have effect when the function is exercised by a member of the Scottish Executive by virtue of section 53. Section 126(1) defines "Minister of the Crown" as including the Treasury. "Agreement" is intended to include also requirements of consent, concurrence or approval.

Subsection (2) defines "statutory provision" for the purposes of subsection (1) as any provision of any pre-commencement enactment (as defined by section 53(3)) other than paragraph 5 or paragraph 15 of Schedule 32 to the Local Government, Planning and Land Act 1980. Paragraph 5 of Schedule 32 to the 1980 Act confers a power upon the Secretary of State, with the consent of the Treasury, to make an order designating an enterprise zone. Paragraph 15 confers a power to modify such an order, again with the consent of the Treasury. This ensures that the consent requirement is not removed by subsection (1).

Paragraph 1(2)(d) of Schedule 4 lists the provisions requiring the consent of the Treasury amongst the enactments protected from modification by the Scottish Parliament. By virtue of Part III of Schedule 4, the function of giving consent in each case will not transfer to the Scottish Ministers.

SECTION 56: Shared powers

Purpose and Effect

This section provides for certain exceptions to the general rule that functions which are transferred to the Scottish Ministers by virtue of section 53 will cease to be exercisable by Ministers of the Crown in or as regards Scotland. This enables the UK Government, for example, to provide financial assistance to industry in Scotland. The section also enables the Scottish Ministers and a Minister of the Crown to exercise jointly non-statutory powers in order to establish, maintain or abolish bodies, offices and office-holders.