PART VI: SUPPLEMENTARY

SECTION 112: Subordinate legislation: general

General

The Scotland Act 1998 contains nearly 40 separate powers to make subordinate legislation. These powers vary widely in scope and importance, with some intended for single use and others forming part of the mechanism for the long-term management of the devolution arrangements. The powers are to be exercised by the UK Government, the Scottish Ministers or by Her Majesty in Council, and are generally subject to parliamentary scrutiny in the United Kingdom Parliament, the Scottish Parliament or both.

Sections 112 to 115 and Schedule 7 draw together the provisions relating to the extent of these powers, to the procedure required in the Westminster and/or Scottish Parliaments, and to the person by whom each power is exercisable. This approach avoids the need to specify these matters in each section, thus simplifying the overall structure of the Act.

Section 113, and 114 contains standard provisions commonly accorded to powers to make subordinate legislation, such as an ability to make supplementary provision, to delegate functions and to charge sums on the Consolidated Fund. In certain cases, particularly where the UK Government is empowered to take action as a result of action of the Scottish Parliament or Executive, subordinate legislation may make provision having retrospective effect.

Each of the powers conferred elsewhere in the Act require to be read together with these sections.

The table at the end of this note shows the effect of sections 112 to 115 and Schedule 7 for each power.

Details of provisions

Subsection (1) provides that where no other provision is made as to the person by whom a power is exercisable, then it is to be exercisable by Her Majesty by Order in Council or by a Minister of the Crown by order. Subsection (3) provides that such powers are to be referred to as "open powers".

Such powers are generally expressed in the form "Subordinate legislation may .." and are to be found in sections:

56(2)     concurrent exercise of functions;

60      transfer of property etc. to the Scottish Ministers;

62      transfer of property etc. to the Lord Advocate;

60      transfer of property etc. in connection with functions transferred under section 63;

107      power to remedy ultra vires acts;

104      power to make provision consequential on Acts of the Scottish Parliament;

105      power to make provision consequential on the Scotland Act;

106      power to adapt certain Ministerial and other functions;

116(9)      determination of disputes over compensation relating to transfer of property;

115(3)     power to make transitory and transitional provision;

124(1)     modification of sections 94 and 117-122;

129(1)     transitional provisions etc.

It is also found in paragraph 2 of Schedule 2 relating to the transfer of property etc. to the Scottish Parliamentary Corporate Body.

These open powers are similar to the power in section 1 of the European Communities Act 1972, which may be exercised by either a Minister of the Crown by order or by Her Majesty by Order in Council.

Powers to make subordinate legislation are normally conferred on either a Minister of the Crown (or the Treasury) by order, or on Her Majesty by Order in Council. The Act contains examples where powers are allocated in this way. For example, the powers in section 103 in connection with the Judicial Committee of the Privy Council are to be exercised by Her Majesty by Order in Council. Powers connected with the finance provisions and the tax-varying powers are generally exercisable by the Treasury. Powers which are subject only to proceedings in the Scottish Parliament are exercisable by Her Majesty by Order in Council (except section 18(5)). Powers in relation to the conduct of elections are exercisable by the Secretary of State (section 12).

This section provides a novel power for subordinate legislation to be made either by a Minister of the Crown by order or by Her Majesty by Order in Council where there is no other provision in the Act as to the person by whom the power is exercisable. This is known as an "open power". This reflects in part the wide scope of some of the powers and the fact that different uses of any power may have very different levels of importance. For example, a minor consequential provision could be made by order made by a Minister of the Crown under section 105 whereas it might be more desirable for a significant amendment of primary legislation to be made by Order in Council under that section. The section also enables affirmative resolution procedure to be used in the Parliament or Parliaments concerned in the case of the exercise of an open power, unless the Act provides expressly that subordinate legislation under a particular provision must be an affirmative instrument, and permits a statutory instrument under an open power to be combined with another order or Order in Council as appropriate. These provisions are similar to those in section 2(2) of and paragraph 2(2) of Schedule 2 to the European Communities Act 1972, which permits Community rights and obligations to be incorporated in UK law by Order in Council or in regulations made by a designated Minister, with the option of using affirmative or negative resolution procedure.

Any statutory instrument made in exercise of an open power is only subject to procedure in the Westminster Parliament.

Subsection (2) provides for an exception from the general rule about the exercise of open powers by requiring that the power under section 129(1) (transitory or transitional provision in connection with the coming into force of the Scotland Act) is to be exercisable only by Her Majesty by Order in Council where it is used to provide for appropriation of sums forming part of the Scottish Consolidated Fund or for appropriations in aid. Also of relevance in these circumstances is paragraph 4 of Schedule 7, which requires such orders to be subject to a different type of parliamentary procedure (affirmative rather than negative). Subsection (3) also provides that references to an open power include section 129 when used in this way, even though specific provision has been made as to the person who may exercise it.

The power in section 129(1) was exercised in this way in making the Scotland Act 1998 (Transitory and Transitional Provisions) (Appropriations) Order 1999 (S.I. 1999/674) which provided for appropriations and appropriations in aid for the financial year 1999-2000, for which also see S.S.I. 1999/175 and 2000/69).

Subsection (4) provides that an Order in Council under an open power may revoke, amend or re-enact an order, as well as an Order in Council, already made under that power (and vice versa). This complements section 14 of the Interpretation Act 1978, which provides for the revocation etc. of orders. This provision is necessary to ensure that the exercise of a power is not constrained by any earlier exercise of it.

Subsection (5) provides that any power to make subordinate legislation, in relation to its exercise by a Minister of the Crown or a member of the Scottish Executive, is to be exercisable by statutory instrument. This attracts provisions of enactments such as the Statutory Instruments Act 1946, which make general provision about the making of subordinate legislation.

POWERS TO MAKE SUBORDINATE LEGISLATION

This table shows:

The section under which subordinate legislation may be made, along with a brief description of the power.

The person by whom the subordinate legislation may be made, i.e.

SofS = the Secretary of State by order;

Treas. = the Treasury by order;

SM = the Scottish Ministers by order;

HM = Her Majesty by Order in Council; or

Open = either a Minister of the Crown by order or Her Majesty by Order in Council.

The procedure which applies (if any) in the Westminster and Scottish Parliaments:

Type = Type of procedure, as set out in paragraph 2 of Schedule 7 (subject to the provisions of paragraphs 3 and 4 and Schedule 7 providing for alternative procedure for certain special cases.

A = order to be laid in draft and approved by Parliament;

N = order subject to annulment in pursuance of a resolution of Parliament; or

N(A) = order made under open powers, or an Order under sections 89 or 90, which may be laid in draft and approved by Parliament or subject to annulment in pursuance of a resolution of Parliament.

"Parliament" is to be read as referring to both Houses of Parliament, the House of Commons, or the Scottish Parliament as appropriate.

Whether orders may make modifications of the Scotland Act (other than Schedules 4 and 5) or may make provision having retrospective effect.

All powers to make subordinate legislation are exercisable by statutory instrument; may make different provision for different purposes; may be exercised in relation to a particular case or class of case; may make supplementary and transitional provision; may make provision for delegation of functions; and may make provision for sums to be payable out of, or charged on, the Scottish Consolidated Fund. Subordinate legislation made by a Minister of the Crown or by Her Majesty in Council may 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. Most may make modifications of enactments, prerogative instruments etc., other than the Scotland Act and subordinate legislation under it.

¹ Requirement does not apply to an order merely revoking an order under this subsection. See note to Table in Schedule 7.

² See note to Table in Schedule 7.

³ See also paragraph 4 of Schedule 7.

SECTION 113: Subordinate legislation: scope of powers

Purpose and Effect

This section requires subordinate legislation made under powers provided by the Act to be made by statutory instrument, and permits such subordinate legislation to:

make different provision for different purposes, or for particular cases or classes of case;

include supplementary and transitional provision;

provide for delegation of functions;

in some cases modify other enactments, prerogative instruments or other instruments or documents;

provide for payment of sums out of, or for sums to be charged on, the Consolidated Fund or Scottish Consolidated Fund.

It also limits the punishment which may be imposed for any criminal offence created in subordinate legislation under the Act.

General

See note to section 112.

Details of provisions

Subsection (1) effectively provides that the rest of the provisions of the section apply to any power under the Act to make subordinate legislation which is exercisable by Her Majesty by Order in Council or by a Minister of the Crown by order (whether the power is expressed to be exercisable by these persons or it is an open power, in which case section 112(1) applies).

The only power to make subordinate legislation under the Act which is thereby excluded is the power under section 18(5) which is exercisable by the Scottish Ministers, and for which none of the remainder of this section would be relevant.

Subsection (2) permits subordinate legislation to make different provision for different purposes.

Subsection (3) provides that, as well as being exercised in relation to all cases to which it extends, a power may be exercised in relation to any particular case or class of case, or to all cases subject to exceptions. This power is likely to be of relevance to the power in section 110 to treat individuals as being, or as not being, Scottish taxpayers.

Subsection (4) provides that subordinate legislation may make such supplementary, incidental or consequential provision and such transitory, transitional or saving provision as the person making it considers necessary or expedient.

Subsections (5) and (6) provide that subordinate legislation may modify any enactment or prerogative instrument or other instrument or document, provided that the instrument is subject to one of the forms of parliamentary procedure provided in Schedule 7. This therefore excludes powers such as that in section 103(3)(c) to make rules of procedure for the Judicial Committee of the Privy Council, which are not subject to parliamentary procedure.

Subsection (6) provides that this power does not extend to modifying the Scotland Act itself or subordinate legislation made under it. Section 114, however, permits certain subordinate legislation to make such modifications.

"Modify" is defined by section 126(1) as including amendment and repeal. Where this power is used to modify primary legislation, the special provisions in paragraph 3 of Schedule 7 affect the parliamentary procedure to which the instrument is to be subject.

Section 30(4) makes its own provision about modification of enactments etc. including the Scotland Act and subordinate legislation under it.

Subsection (7) permits subordinate legislation under the Act to make provision for the delegation of functions. This makes clear that the rule against sub-delegation does not apply.

Subsection (8) provides that subordinate legislation under the Act may make provision for sums to be payable out of, or charged on, the Scottish Consolidated Fund.

Subsection (9) provides that subordinate legislation under the Act may provide for sums to be paid out of money provided by Parliament or to be charged on and paid out of the Consolidated Fund.

Subsection (10) restricts the punishment which can be imposed for criminal offences created in subordinate legislation made under the Act. The power to create offences does not need to be expressly conferred, but this provision limits its extent. The approach is similar to that in the European Communities Act 1972.

Subsection (11) ensures that powers to make subordinate legislation under the Act are not exclusive, i.e. the fact that a particular thing can be done under one power does not mean that the same thing cannot be done under another power.

SECTION 114: Subordinate legislation: particular provisions

General

See note to section 112

Details of provisions

Subsection (1) permits subordinate legislation made under certain provisions of the Act to modify the Scotland Act (except Schedules 4 and 5) and subordinate legislation made under the Act. The relevant provisions are:

section 89     adaptation of cross-border public authorities;

section 104      power to make provision consequential on Acts of the Scottish Parliament etc.;

section 107      power to remedy ultra vires acts;

section 108      agreed re-distribution of transferred functions;

section 129(1)     power to make transitory and transitional provision.

Section 30(2) and (4) permit Orders in Council under section 30 to make modifications of Schedules 4 and 5 of the Act, and of other provisions in or under the Act.

Subsection (2) provides that the reference in subsection (1) to a power to make subordinate legislation modifying the Scotland Act and subordinate legislation under that Act includes that power as extended by section 113. For example, section 113(4) extends powers so that they include power to make supplementary, consequential provision or transitional provisions, and it may be that modifications to the Scotland Act are necessitated by such supplementary etc. provisions rather than by the main power itself.

Subsection (3) permits subordinate legislation made under certain provisions of the Act to have retrospective effect. The relevant provisions are:

section 30      power to modify Schedule 5 (reserved matters);

section 58(4)      power to revoke certain subordinate legislation;

section 104      power to make provision consequential on Acts of the Scottish Parliament etc.;

section 107     power to remedy ultra vires acts.

SECTION 115: Subordinate legislation: procedure

Purpose and Effect

This section makes provision as to the procedure to which subordinate legislation made under the Scotland Act is to be subject in the UK and/or Scottish Parliaments.

General

Most orders under the Act are subject to some form of procedure in the Westminster Parliament only. Others, such as those relating to the disqualification from membership of the Scottish Parliament, and the procedures for Royal Assent to Acts of the Scottish Parliament, are subject to procedure in the Scottish Parliament only. Some orders are subject to procedure in both the Westminster and Scottish Parliaments. This is used where both Parliaments have an interest, for example in the modification of the list of reserved matters, the executive devolution of functions to the Scottish Ministers and in the adaptation of cross-border public authorities.

Some orders are expressly made subject to affirmative resolution procedure, requiring the Parliament(s) to take an active part in the making of the order. This is the case for orders which are considered to be most important, such as the provisions relating to elections, modification of the list of reserved matters; the adaptation of Ministerial functions (e.g. in relation to fisheries), and the determination of the boundary of Scottish waters. With the exception of minor orders such as orders appointing regional returning officers (section 12(5)) which require no Parliamentary procedure, all other orders are subject to negative resolution procedure and can be annulled in pursuance of a resolution of Parliament, unless for the reasons explained in the following paragraphs they are dealt with as an affirmative instrument.

Details of provisions

Subsection (1) introduces Schedule 7, which determines the Parliamentary procedure to which subordinate legislation under the Act is to be subject. See the note on Schedule 7 for further information.

Subsections (2) and (3) deal with the transitional circumstances where, by virtue of Schedule 7, a power to make subordinate legislation is subject to procedure in the Scottish Parliament but the power needs to be exercised before the Scottish Parliament itself is in existence. For example, the power in section 15 to specify office-holders who are disqualified from membership of the Scottish Parliament is to be subject to Type D procedure (laid in draft and approved by the Scottish Parliament), but a list of office-holders is clearly required for the first elections to the Parliament. Subsections (2) and (3) provide that such powers may nevertheless be brought into force at any time after the passing of the Scotland Act (although this may be before the Parliament is in existence) and that subordinate legislation under the power may be made subject to a different type of procedure for the period until the principal appointed day (1 July 1999), with this procedure being specified by subordinate legislation under section 129(1).

This power was exercised in making the Scotland Act 1998 (Transitory and Transitional Provisions) (Subordinate Legislation under the Act) Order 1998 (S.I. 1998/3216), which adjusted the procedures for orders under sections 15, 38 and 97 and paragraphs 2 and 7 of Schedule 2. In the case of orders under section 15, which were mentioned above, the first order was made subject to Type B procedure (laid in draft and approved by both Houses of the UK Parliament).

As from the principal appointed day (1st July 1999), the parliamentary procedure for all orders is as set out in Schedule 7, and the powers in subsections (2) and (3) are effectively spent.