SECTION 116: Transfer of property: supplementary

Purpose and Effect

This section makes further provision in relation to the transfer of property under sections 60, 62, 90 and 109 and paragraph 2 of Schedule 2 dealing with property held by the Scottish Parliamentary Corporate Body (SPCB).

General

This section is linked to the series of provisions dealing with the transfer of property and liabilities to the Scottish Ministers and the Lord Advocate and to the SPCB. Sections 60 and 62 enable subordinate legislation to provide for the transfer of certain property and liabilities to the Scottish Ministers in connection with the exercise of their devolved functions and to the Lord Advocate in connection with the exercise of his retained functions. Section 109 provides for the reverse mechanism to that in sections 60 and 62, allowing property to be transferred from the Scottish Ministers and Lord Advocate to UK Ministers or government departments. Section 90 provides for the transfer of property of cross-border public authorities and paragraph 2 of Schedule 2 provides for the transfer of property to the SPCB.

Details of Provisions

Subsection (1) provides that this section applies in relation to subordinate legislation transferring property and liabilities under sections 60 (Transfers to the Scottish Ministers), 62 (Transfers to the Lord Advocate), 90 (power to transfer property of cross-border public authorities), 109 (agreed redistribution of property and liabilities) and paragraph 2 of Schedule 2 which provides for the transfer of property to the SPCB.

Subsection (2) provides that any subordinate legislation under those provisions may in particular:

provide for the creation of rights or interests, or the imposition of liabilities or conditions in relation to property transferred, or rights and interests acquired under the legislation;

provide for any property, liabilities and conditions to be determined by virtue of such legislation, rather than being specified in it; and

make provision (other than provision imposing a charge to tax) as to the tax treatment of anything done by or under such legislation. An example of this would be exemption from stamp duty, in respect of the transfers of the property of cross-border public authorities.

Subsection (3) provides that the power under subsection (2)(c) to make provision as to the tax treatment of a transfer may be exercised only with the agreement of the Treasury.

Subsection (4) provides that subordinate legislation to which this section applies has effect in relation to property or liabilities to which it applies despite any provision which would otherwise prevent, penalise or restrict the transfer of the property or liabilities.

Subsection (5) provides that 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 under subordinate legislation to which this section applies.

Subsection (6) provides that the rights in subsection (5) shall have effect in the case of any transfer under subordinate legislation to which this section applies as if the transferee were the same person in law as the transferor and as if no transfer of property had taken place.

Subsection (7) provides for just compensation to be paid to any person in respect of a right which, apart from subsection (5) would have operated in favour of that person or be exercisable by him, but which in consequence of the operation of subsection (5) cannot subsequently operate in his favour or be exercisable by him.

Subsection (8) provides that any compensation payable under subsection (7) shall be paid by the transferor, transferee or both.

Subsection (9) provides that subordinate legislation under this section can provide for the determination of any disputes as to whether and to whom or by whom such compensation is to be paid and how much that compensation should be.

This power has been exercised up to September 2001 in article 12(2) of S.I. 1999/1104; article 6(2) of S.I. 1999/1105; and article 4(2) of S.I. 1999/1106.

Subsection (10) provides that subsections (4) to (9) apply in relation to the creation of rights or interests or the doing of anything else in relation to property in the same way as they apply to transfers of property.

Subsection (11) provides that 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 various powers is to be taken as conclusive evidence of the transfer (or lack thereof).

Subsection (12) makes similar provision to subsection (11) in respect of transfers under sections 90 and 109. In these cases the certificate is to be issued jointly by the Secretary of State and the Scottish Ministers.

Subsection (13) defines "right of return" as any right under a provision for the return or reversion of property in specified circumstances.

SECTION 117: Ministers of the Crown

Purpose and Effect

This section modifies references to a Minister of the Crown in any pre-commencement

enactment and in other instruments or other documents to read as, or to include, references to the Scottish Ministers so far as may be necessary for the purpose of, or in consequence of, the exercise of a function within devolved competence by a member of the Scottish Executive.

General

This section forms part of a set of sections which are concerned with making general modifications to pre-commencement enactments following devolution. The section supplements section 53 which makes provision for the transfer of ministerial functions to the Scottish Ministers.

Parliamentary Consideration

Details of Provisions

The section provides that references to a Minister of the Crown in any pre-commencement enactment or prerogative instrument, or other instrument or document should be read as being or including references to the Scottish Ministers so far as may be necessary for the purpose of or in consequence of the exercise of a function within devolved competence by a member of the Scottish Executive.

"Pre-commencement enactment" is defined in section 53(3).

This section has also been applied to those functions transferred to the Scottish Ministers by order under section 63.

SECTION 118: Subordinate instruments

Purpose and Effect

This section modifies references in any pre-commencement enactment to the procedure in the Westminster Parliament to which certain subordinate legislation is subject so that it is subject to procedures in the Scottish Parliament rather than the Westminster Parliament.

It applies to subordinate legislation made, confirmed or approved by a member of the Scottish Executive (or certain other persons) within devolved competence. It also applies to subordinate legislation made by a Scottish public authority with mixed functions or no reserved functions (whether or not within devolved competence) or by certain other persons within devolved competence, such as Her Majesty by Order in Council.

General

This section forms part of a set of sections concerned with modifying pre-commencement enactments following devolution.

Parliamentary Consideration

Details of Provisions

Subsection (1) provides that subsection (2) applies in relation to the exercise within devolved competence by a member of the Scottish Executive of a function to make, confirm or approve subordinate legislation. In other words, it applies to powers to make subordinate legislation which have transferred to the Scottish Ministers under section 53.

Subsection (2) states that, if any pre-commencement enactment makes provision for a statutory instrument or a draft of an instrument to be laid before either or both Houses of Parliament or for the annulment or approval by resolution of such an instrument, then, in relation to subordinate legislation made, confirmed or approved by a member of the Scottish Executive within devolved competence, any references to either or both Houses of Parliament shall instead be a reference to the Scottish Parliament.

Thus where a function of making regulations has transferred to the Scottish Ministers under section 53, and those regulations would previously have been subject to annulment in the UK Parliament, regulations made by the Scottish Ministers would be subject to annulment in the Scottish Parliament.

Subsection (3) makes similar provision in relation to functions of making, confirming or approving subordinate legislation exercisable by a Scottish public authority with mixed functions or no reserved functions.

A Scottish public authority with mixed functions or no reserved functions is defined in section 126(1) and paragraphs 1 and 2 of Part III of Schedule 5 (e.g. local authorities or the Registrar General for Births, Deaths and Marriages for Scotland).

Unlike subsections (2) and (4), this is not restricted to the exercise of functions within devolved competence so, for example, regulations made by the Registrar General which relate to a reserved matter such as abortion will be subject to procedure in the Scottish Parliament.

Subsection (4) makes similar provision to subsection (2) in relation to functions of making, confirming or approving subordinate legislation exercisable by a person other than a Minister of the Crown or those persons dealt within subsections (2) and (3) within devolved competence e.g. Her Majesty in Council or the Privy Council.

Subsection (5) ensures that if a pre-commencement enactment applies the Statutory Instruments Act 1946 to statutory instruments made by a person other than a Minister of the Crown as if they were made by a Minister of the Crown then the 1946 Act will apply in cases to which subsection (3) or (4) applies as if the subordinate legislation were made by Scottish Ministers.

Where the subordinate legislation which is referred to in this section is made by statutory instrument, the Scotland Act 1998 (Transitory and Transitional Provisions)(Statutory Instruments) Order 1999 (S.I. 1999/1096) includes them in the definition of Scottish Statutory Instrument, disapplies the Statutory Instruments Act 1946 to S.S.I.s and makes its own provision. The Standing Orders of the Parliament make provision for the way in which the Parliament and its committees exercise these parliamentary procedures in relation to S.S.I.s and scrutinise them.

SECTION 119: Consolidated Fund, etc.

Purpose and Effect

This section modifies references to the UK Consolidated Fund or the National Loans Fund in any pre-commencement enactment to ensure that, in relation to Scottish functions as defined in the section, sums are paid or issued out of, and paid into the Scottish Consolidated Fund rather than the UK Consolidated Fund or the National Loans Fund.

General

This section is one of three dealing with the Scottish Consolidated Fund. Section 64 establishes the Fund, provides for sums to be paid into it and, subject to provision made by the Scottish Parliament, for disposal of, or accounting for, such sums. Section 65 deals with the circumstances in which sums may be paid out of the Fund, and the purposes for which such sums may be applied.

Section 29(2)(b) and paragraph 5(a) of Schedule 4 protect section 119(3) in relation to judicial salaries from amendment by the Scottish Parliament.

Parliamentary Consideration

Details of Provisions

Subsection (1) defines the "Scottish functions" in relation to which the modifications apply as (a) functions of the Scottish Ministers, the First Minister or the Lord Advocate which are exercisable within devolved competence and (b) functions of any Scottish public authority with mixed functions or no reserved functions.

A Scottish public authority with mixed functions or no reserved functions is defined in section 126(1) and paragraphs 1 and 2 of Part III of Schedule 5 (e.g. local authorities or the Registrar General for Births, Deaths and Marriages for Scotland).

Subsection (2) provides that, subject to subsections (3) and (5), a provision of a pre-commencement enactment which requires or authorises the payment of any sum out of the Consolidated Fund or money provided by Parliament, or requires or authorises the payment of any sum into the Consolidated Fund, shall cease to have effect.

Subsection (3) states that 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 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 paid to that Fund as the case may be.

Subsection (4) restricts the application of subsections (2) and (3) in relation to section 2(3) of the European Communities Act 1972. It provides that section 107 of the Act shall not apply to the words in section 2(3) of the 1972 Act from the beginning of that subsection to "such Community obligation".

It is necessary to ensure that section 119 does not apply to the first part of section 2(3) of the 1972 Act, down to the words "such Community obligation" because that part relates to charges required to meet payments to the European institutions and payments in respect of contributions or loans to the European Investment Bank. It is not the intention that such charges should be capable of being met out of the Scottish Consolidated Fund.

Subsection (5) states that 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 apply 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 the rules under section 65(1)(c)) instead of being paid into that Fund.

Subsections (6) and (7) apply where a power to lend money is exercisable by the Scottish Ministers under a pre-commencement enactment, and for the purpose or as a result of the exercise of the power, sums would require to be issued by the Treasury out of the National Loans Fund or be paid into that Fund. Subsection (7) provides that those sums shall instead be paid out of the Scottish Consolidated Fund without further approval, or be paid into that Fund.

SECTION 120: Accounts and audit

Purpose and Effect

This section modifies certain references to the UK Comptroller and Auditor General in any pre-commencement enactment, in relation to Scottish functions (as defined in section 119) to refer to the Auditor General for Scotland.

Parliamentary Consideration

Details of Provisions

This section states that a provision of a pre-commencement enactment which requires accounts to be examined, certified or reported on by, or to be open to inspection of the Comptroller and Auditor General, or requires him to have access to other documents for such examinations shall have effect in relation to "Scottish functions" (as defined in section 119(1)) as if the references to the Comptroller and Auditor General were to the Auditor General for Scotland. This is necessary to ensure continued arrangements for independent audit of public expenditure relating to Scottish functions.

SECTION 121: Requirements to lay reports etc. before Parliament

Purpose and Effect

This section modifies any provision in a pre-commencement enactment which provides for any report to be laid before the Westminster Parliament or either House of that Parliament in the case where the report concerns Scottish functions (as defined in section 119). It makes provision to ensure that these reports are laid before the Scottish Parliament instead of or as well as the Houses of Parliament.

General

A number of pre-commencement enactments make provision for reports to be laid before the House of Commons, the House of Lords, or both. This section ensures that such reports, where they concern Scottish functions, are to be laid before the Scottish Parliament.

Parliamentary Consideration

Details of Provisions

Subsection (1) states that this section applies where a "pre-commencement enactment" makes provision for a report which concerns "Scottish functions" to be laid before one or both Houses of Parliament.

"Pre-commencement enactment" is defined in section 53(3) and "Scottish functions" is defined in section 119(1).

Subsection (2) requires the report to be laid instead before the Scottish Parliament if it concerns only Scottish functions.

Subsection (3) requires reports, in other cases, to be laid before the Scottish Parliament and one or both Houses of Parliament.

Subsection (4) provides a definition of the terms "report" and "Scottish functions".

See also the Scotland Act 1998 (Transitory and Transitional Provisions)(Laying of Reports) Order 1999 (S.I. 1999/1594).

SECTION 122: Crown land

Purpose and Effect

This section modifies references to a Minister of the Crown or a government department in

any provision about the application of any pre-commencement enactment to Crown land.

General

This section forms part of a set of sections dealing with property matters. Sections 59 and 61 make provision for the holding of property and liabilities by the Scottish Ministers and the Lord Advocate. Sections 60 and 62 enable subordinate legislation to provide for the transfer of certain property and liabilities to the Scottish Ministers in connection with the exercise of their devolved functions and to the Lord Advocate in connection with the exercise of his retained functions. Section 123 extends the exemption from payment of stamp duty to the Scottish Ministers, the Lord Advocate and the Scottish Parliamentary Composite Body.

Details of Provisions

Subsection (1) provides that any references to a Minister of the Crown or government department in any provision about the application of any pre-commencement enactment to Crown land should be read as including the Scottish Ministers and the Lord Advocate.

It also provides that references in such provisions to a Minister of the Crown or government department having the management of the land includes any member of the Scottish Executive having the management of the land. This ensures that provisions in existing enactments applying to Crown land also apply in relation to land belonging to or being managed by members of the Scottish Executive.

Subsection (2) defines "Crown land" as having the meaning given by section 242 of the Town and Country Planning (Scotland) Act 1997, that is land in which there is a Crown interest which means an interest belonging to Her Majesty in right of the Crown or to a government department or held in trust for Her Majesty for the purposes of a government department.

SECTION 123: Stamp duty

Purpose and Effect

The purpose of this section is to exempt any conveyance, transfer or lease made to the Scottish Ministers, Lord Advocate or the SPCB from liability for stamp duty in the same way that such conveyances etc. to a Minister of the Crown are exempt. This section provides for references to a Minister of the Crown in section 55 of the Finance Act 1987 (which provides for Crown exemption from stamp duty) to be read as including the Scottish Ministers, the Lord Advocate and the Scottish Parliamentary Composite Body.

Details of Provisions

Section 55 of the Finance Act 1987 provides for exemption from stamp duty under Schedule 1 of the Stamp Act 1891 in respect of any conveyance, transfer or lease made or agreed to be made to a Minister of the Crown or the Solicitor for the affairs of Her Majesty's Treasury.

This section provides that any references in section 55 of the 1987 Act to a Minister of the Crown should be read as including the Scottish Ministers, the Lord Advocate and the Scottish Parliamentary Composite Body.

SECTION 124: Modification of sections 94 and 117 to 122

Purpose and Effect

This section enables Her Majesty or a Minister of the Crown, by subordinate legislation, to provide that any the provisions of sections 94 and 117 to 122 (which contain a number of general modifications to pre-commencement enactments etc. in connection with the transfer of functions to the Scottish Ministers) should not apply, or apply with modifications, in particular cases.

Detail of Provisions

Subsection (1) enables Her Majesty or a Minister of the Crown, by subordinate legislation, to provide that any the provisions of sections 94 and 117 to 122 (which contain a number of general modifications to pre-commencement enactments etc. in connection with the transfer of functions to the Scottish Ministers) should not apply, or apply with modifications, in particular cases.

Subsection (2) enables any subordinate legislation made by Her Majesty or a Minister of the Crown, in connection with any other provision made by that legislation, also to provide that any the provisions of sections 94 and 117 to 122 should not apply, or apply with modifications.

For example, the executive devolution orders under section 63, which provide for the transfer of certain Ministerial functions to the Scottish Ministers, apply with modifications the general modification in sections 94 and 117 to 121.

SECTION 125: Amendments and repeals

Purpose and Effect

This section gives effect to Schedule 8, which makes modifications to existing legislation, and to Schedule 9, which lists the enactments which are to be repealed.

Parliamentary Consideration

Details of Provisions

The section gives effect to Schedules 8 and 9. Details of the modifications and repeals are contained in the notes on those Schedules.

SECTION 126: Interpretation

Purpose and Effect

This section provides for the interpretation of various terms used in the Act.

Parliamentary Consideration

Details of Provisions

Subsection (1) defines a number of terms used in the Act.

Subsection (2) enables Her Majesty by Order in Council to determine, or make provision for determining, for the purposes of the 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 to be treated as adjacent to other parts of the United Kingdom.

Section 126 (1) defines:

(a)      "Scotland" as including "so much of the internal waters and territorial sea of the United Kingdom as are adjacent to Scotland"; and

(b)     "the Scottish zone" as meaning the sea within British fishery limits which is adjacent to Scotland. (The Scottish zone is used in the reservation of sea fishing in section C6 of Part II of Schedule 5.)

It is therefore necessary to distinguish clearly between those parts of the internal waters and territorial sea of the UK and of British fishery limits which are in future to be treated as part of Scotland for the purpose of matters devolved to the Scottish Parliament. Such a boundary will, for example, be required in the internal waters of the Solway Firth, in the territorial sea on the East Coast, and in the west, between Scotland and England (outside the Solway Firth), between Scotland and the Isle of Man and between Scotland and Northern Ireland and, in the British fishery limits around Rockall.

The matters being devolved to the Scottish Parliament which may be affected by such boundaries include: inshore fisheries management (including salmon fisheries in the Solway Firth); control of pollution from landward sources; regulation of possible inshore developments such as aquaculture or marine dredging; licensing deposits in the sea; and enforcement of criminal law. Offshore oil activities would not be affected, since such matters are reserved.

Further provision about the making of subordinate legislation is to be found in sections 112 to 115 and Schedule 7.

This power was exercised in making the Scottish Adjacent Waters Boundaries Order 1999 (S.I. 1999/1126).

Subsection (3) makes provision for determining various questions as to whether the functions of a body etc. relate to reserved matters.

Paragraph (a) provides that any question as to 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. This purpose test echoes that which is included in section 29 (3). This ensures that a function of such a body is not deemed to relate to reserved matters merely because it incidentally affects reserved matters.

Paragraph (b) makes it clear that the bodies to which paragraph 3 of Part III of Schedule 5 applies (bodies or classes of bodies reserved by name in Schedule 5 plus the equal opportunities bodies etc.) are to be treated as if all their functions were functions which relate to reserved matters. This is to ensure that such bodies, even if they have functions which relate to devolved matters, do not fall to be treated as cross-border public authorities under section 88 or to be summonable by the Scottish Parliament under section 23. Such bodies are to remain accountable only to Whitehall and Westminster.

Subsection (4) defines what is meant by references in the Act to Scots private law - see section 29(4) and paragraph 2(3) of Schedule 4. It includes the general principles of private law (including private international law), the law of persons, the law of obligations, the law of property and the law of actions. The definition also includes judicial review of administrative action so that amendments to that law are also subject to the provisions of section 29(4).

Subsection (5) defines what is meant by references in the Act to Scots criminal law. It includes jurisdiction, criminal offences, evidence, procedure and penalties and the treatment of offenders.

Subsections (6) to (8) define the term "Scottish Administration" for the purposes of the Scotland Act and other enactments.

These subsections define references to the Scottish Administration as being to:

(a)     the office-holders in the Scottish Administration:

(i)     members of the Scottish Executive and junior Scottish Ministers; and

(ii)     holders of non-ministerial offices, as follows:

     the Registrar General of Births, Deaths and Marriages for Scotland;

     the Keeper of the Registers of Scotland;

     the Keeper of the Records of Scotland; and

     any other office of a description specified in an Order in Council; and

(b) the members of the staff of the Scottish Administration i.e. the staff of the persons referred to in (a). Those staff, together with the non-ministerial office holders, are all civil servants under section 51(2).

The power to make an Order in Council was exercised in the Scottish Administration (Offices) Order 1999 (S.I. 1999/1127).

Subsection (9) defines "Community law" for the purposes of the Act as:

(a)     all those rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Community Treaties; and

(b)      all those remedies and procedures from time to time provided for by or under the Community Treaties.

The definition of Community law thus includes all rights, powers, liabilities, obligations and restrictions from time to time created or arising under the Community Treaties as defined by section 1(2) of the European Communities Act 1972, or as specified in an order under section 1(3) of that Act. It also includes international agreements to which the Communities are party and which form part the Community legal order.

Subsection (10) defines what is meant by references in the Act to "international obligations". These include any international obligations of the United Kingdom other than obligations to observe and implement Community law or the Convention rights. "Convention rights" are defined in subsection (1) by reference to the Human Rights Act 1998.

Subsection (11) provides that the term "by virtue of" includes "by" and "under".