SECTION 127: Index of defined expressions

Purpose and Effect

This section provides a table of expressions used in the Act and the appropriate provisions of the Act in which they are defined or in accordance with which they are to be interpreted.

General

A number of expressions are used widely in the Act. This section provides a simple reference to their definitions to aid interpretation.

Parliamentary Consideration

SECTION 128: Expenses

Purpose and Effect

This section provides for Parliament to provide money to cover the expenditure of Ministers of the Crown resulting from the Scotland Act. It also requires certain sums received by Ministers of the Crown to be paid into the Consolidated Fund.

Details of Provisions

Subsection (1) provides that any expenditure:

(a)     incurred by a Minister of the Crown by virtue of the Scotland Act; and

(b)     any increase attributable to the Scotland Act in the sums payable out of money provided by Parliament under any other enactment,

shall be paid out of money provided by Parliament.

Subsection (2) provides that any sums received by a Minister of the Crown by virtue of the Scotland Act shall be paid into the Consolidated Fund, unless they are otherwise directed to be paid into the National Loans Fund (see for example sections 67(4) and 71(8)).

SECTION 129: Transitional provisions etc.

Purpose and Effect

This section provides for subordinate legislation to make transitory and transitional provision in connection with the commencement of the Act. It also provides for the interaction of the commencement of the Scotland Act and the Human Rights Act 1998.

Parliamentary Consideration

Details of Provisions

Subsection (1) enables Her Majesty by Order in Council or a Minister of the Crown by order to make such provision as is considered necessary or expedient for transitory or transitional purposes in connection with the coming into force of any provision of the Scotland Act.

As at September 2001 this power has been exercised as follows:

Subsection (2) makes provision to take account of the possibility (which occurred) that the Human Rights Act 1998 might not be brought into force until after the creation of the Scottish Executive and Parliament. In fact, the Human Rights Act did not come into force until 2 October 2000. It was, however, intended that the Scottish Executive and the Parliament should be required to observe the Convention rights from the date when they assumed their powers. The date of the assumption of powers was 1 July 1999 in the case of the Parliament and Scottish Ministers and 20 May 1999 in the case of the Lord Advocate (see the note on section 57). This subsection therefore provides that provisions of the Scotland Act, which refer to the Human Rights Act, were to have effect as they would have effect when the Human Rights Act was brought into force.

SECTION 130: Commencement

Purpose and Effect

This section provides for the commencement by order of certain of the provisions in the Act and for subordinate legislation to make transitory and transitional provision in connection with the commencement.

General

This section governs the commencement of the provisions of the Act, other than sections 1 to 18, 112 to 116 and 125 to 132, Schedule 7 and certain provisions in Schedule 8. These sections and Schedules, which mainly relate to the elections to the Scottish Parliament, the making of subordinate legislation, commencement interpretation, extent and the short title, came into force immediately on Royal Assent.

Parliamentary Consideration

Details of Provisions

Subsection (1) provides that sections 19 to 43, Parts II to V (sections 44 to 111) and sections 117 to 124 and section 125 (in relation to certain provisions in Schedule 8) are to come into force on such day as the Secretary of State may by order appoint. This order is not subject to any Parliamentary procedure. Section 126 provides for a day appointed by such an order to be designated as the principal appointed day. This is of relevance for the interpretation of references to enactments in Schedule 5, as provided for by Part III of that Schedule.

Subsection (2) provides that different days may be appointed for different purposes.

This power has been exercised by the Secretary of State in making the Scotland Act 1998 (Commencement) Order 1998 (S.I. 1998/3178).

Purpose and Effect

This section sets out the extent of the Act.

General

The Act in general extends to the whole of the United Kingdom.

Details of Provisions

This section makes an exception for section 25. That section creates an offence in connection with the power of the Parliament to summon persons or require documents and extends to Scotland only.

SECTION 132: Short title

Purpose and Effect

This section gives the short title of the Act.

General

The choice of short title reflects that of similar legislation in the past, such as the Scotland Act 1978 and the Wales Act 1978.

Parliamentary Consideration

Details of Provisions

The section provides that the Act may be cited as the Scotland Act 1998.

SCHEDULES

SCHEDULE 1: Constituencies, Regions and Regional Members

Purpose and Effect

This Schedule is given effect by section 1. It sets out the constituencies and regions for the purposes of elections to the Parliament, provides for the involvement of the Parliamentary Boundary Commission for Scotland in altering the regions and number of members to be returned from each region according to set rules, and provides for local inquiries to be held as a result of objections raised in relation to any proposed changes.

General

The section is linked to the set of sections on elections (sections 1-12) and to section 86 which removes the guaranteed minimum level of Scottish representation in the UK Parliament and prevents the amalgamation of Orkney and Shetland with another UK Parliamentary constituency.

The Parliamentary Boundary Commission for Scotland is established under section 2 of the Parliamentary Constituencies Act 1986. Its function is to keep under review the distribution of seats at elections to the UK Parliament. The Commission reports to the Secretary of State under section 3(1) and (3) of the 1986 Act and its recommendations may be given effect to by Order in Council.

These functions of the Boundary Commission were transferred to the Electoral Commission established under section 1 of the Political Parties, Elections and Referendums Act 2000 (c. 41) by virtue of section 16 and the amendments made by Schedule 3 to that Act. As a consequence the function of carrying out reviews of the seats in Scotland will be carried out by the Boundary Committee for Scotland established by the Electoral Commission under section 14 of that Act. In consequence, the provisions of paragraphs 3 to 8 of this Schedule were amended by paragraphs 17 to 24 of Schedule 3 to that Act. These notes therefore describe the position as it exists as at September 2001 under Schedule 1 to the Scotland Act, as originally enacted prior to the amendments to it come into force.

Parliamentary Consideration

Details of Provisions

Paragraph 1 provides that the constituencies of the Scottish Parliament are to be the same as the UK Parliamentary constituencies in Scotland, except that Orkney and Shetland will each have their own constituency. Thus, at the first election to the Scottish Parliament, the constituencies were Orkney, Shetland and the remaining 71 UK Parliamentary constituencies in Scotland. Each constituency returned a single member in accordance with section 1(2) and there were therefore 73 constituency members. However, any reduction in the number of UK Parliamentary constituencies as a result of the amendments made by section 86 will, by virtue of this provision, lead to a corresponding reduction in the number of constituencies for the Scottish Parliament.

Paragraph 2 provides what are the regions for the purpose of the return of regional members and what are the number of regional members to be returned. There are eight regions and seven members returned for each region (sub-paragraphs (1) and (3)). The eight regions are the same as the eight European Parliamentary constituencies which were provided for by sub-paragraph (2) of the European Parliamentary Constituencies (Scotland) Order 1996 (S.I. 1996/1926) even although those European parliamentary constituencies were superseded by the European Parliamentary Elections Act 1999 (c.1). The regions and number of members for each region may be altered by an Order in Council under the Parliamentary Constituencies Act 1986, as extended by paragraph 2(4) of this Schedule 1.

Reports of the Boundary Commission

Paragraph 3 applies where the Boundary Commission for Scotland submits a report to the Secretary of State under section 3(1) or (3) of the Parliamentary Constituencies Act 1986 making recommendations for the alteration of UK Parliamentary constituencies (sub-paragraph (1)). It effectively provides that, in such a case, the Commission must also consider whether or not changes are also required to be made to the boundaries of regions and the number of seats for those regions in order to give effect to the rules in paragraph 7 (sub-paragraph (2)).

Sub-paragraph (4) requires any report by the Boundary Commission recommending alterations to any region to state the name by which the region should be known and the number of regional members to be returned for it. Sub-paragraph (5) requires the Boundary Commission to lay before the Parliament any report recommending changes in parliamentary constituencies. This is in addition to the existing requirement of the Boundary Commission to lay its reports before the UK Parliament.

Paragraph 4(1) provides that an Order in Council under section 4 of the 1986 Act which alters any constituency or region may come into force for the purposes of elections to the Scottish Parliament on a different date from that on which it comes into force for the purposes of elections to the UK Parliament.

Paragraph 4(2) provides that the coming into force of such an Order in Council will have no effect on the return of any member, or on the constitution, of the Parliament until the Parliament is dissolved.

Notices

Paragraph 5(1)(a) and (b) requires the Boundary Commission to publish in at least one newspaper circulating in the region a notice stating the effect of any recommendations it proposes to make affecting that region, and that a copy of the proposed recommendations is open to inspection in a specified place or places within the region and that any representations concerning the proposed recommendations may be made to the Boundary Commission within one month after the notice is published. The Boundary Commission is required to take account of any such representations.

Paragraph 5(2) requires the Boundary Commission to re-publish a notice in the same way as in paragraph 5(1) where its original proposals have been revised in the light of representations received.

Local Inquiries

Paragraph 6(1) provides for the Boundary Commission to hold a local inquiry in respect of any region whenever they think fit. This inquiry can be combined with an inquiry in respect of any UK Parliamentary constituency in the region.

Paragraph 6(2) provides that the Boundary Commission must hold a local inquiry before deciding on a recommendation if, in response to a notice published under paragraph 5(1) proposing an alteration to a region or its members, objections to that proposal are received from an interested authority or from 500 electors or more.

Paragraph 6(3) relates to local inquiries held under paragraph 6(1) before the publication of a notice under paragraph 5(1). In such circumstances the Boundary Commission can decide to disregard paragraph 6(2) if, in its opinion, the matters raised at the local inquiry, the nature of the representations received in response to the published notice and other relevant factors, would not justify holding another local inquiry.

Paragraph 6(4) provides, for the purposes of paragraph 6, that an "interested authority" means the council for an area which is wholly or partly included in the region affected by the recommendations; and that an "elector" means a person who, may vote in any constituency in the region.

Paragraph 6(5) applies the provisions regarding the attendance of witnesses at inquiries in sections 210(4) and (5) of the Local Government (Scotland) Act 1973 to any local inquiry held under paragraph 6.

The Rules

Paragraph 7 sets out the rules which the Commission are required by paragraph 3(2)(b) to give effect to when considering whether or not to recommend any alteration in any region or in the number of seats for a region. These rules are intended to ensure that:

no constituency falls within more than one region;

the regional electorate of a region is more or less the same as that in each of the other regions (allowing for differences in geography);

so far as reasonably practicable, the ratio of regional seats to constituency seats remains constant at 56 to 73, which was the ratio at the first election to the Parliament. Thus, if there was a reduction in the number of constituency seats in the Parliament (as a result of a reduction in the number of UK Parliamentary constituencies in Scotland), this should lead to a reduction in the number of regional seats so as to ensure, so far as reasonably practicable, that the same balance is maintained between constituency and regional members;

a region will have approximately the same number of regional seats as each of the other regions. If the number of regional seats cannot be divided exactly by eight, paragraphs 7 and 8 provide for the distribution of the residual seats among the regions with the larger regional electorates.

Paragraph 8 defines "the regional electorate" for the purposes of any report prepared by the Boundary Commission in relation to an electoral region. It is the number of persons whose names appear, on the enumeration date, on the registers of local government electors and who are registered for that purpose at an address within any Parliament constituency within a region. The enumeration date is the date on which the Boundary Commission published a notice of intention to make a report under section 5(1) of the Parliamentary Constituencies Act 1986.

SCHEDULE 2: Scottish Parliamentary Corporate Body

Purpose and Effect

This Schedule makes further detailed provision relating to the Scottish Parliamentary Corporate Body (SPCB), which is established by section 21. This Schedule covers the membership, property, staff, powers, proceedings and Crown status of the SPCB. The SPCB will carry out the functions conferred on it by the Scotland Act and may have additional functions conferred on it by other enactments. It will carry out its functions under directions issued by the Parliament.

There were various transitional provisions made relating to the administration of the Parliament by the Scotland Act 1998 (Transitory and Transitional Provisions) (Administration of the Parliament) Order 1999 (S.I. 1999/1098). In particular, in the period from 1 June 1999 to 1 April 2002 (or such earlier date as the SPCB may notify), the Secretary of State or, after 1 July 1999, the Scottish Ministers, were required to provide the SPCB with such staff and services as the SPCB may request. Most of the staff and all of the services are now provided directly by the SPCB.

Parliamentary Consideration

Details of Provisions

Paragraph 1 provides that a member of the SPCB appointed under section 21(2)(b) will continue to hold that office until another member of the Parliament is appointed in his place unless he previously resigns, or ceases to be an MSP otherwise than by virtue of a dissolution of the Parliament, or is removed from office by resolution of the Parliament. A member of the SPCB will not therefore cease to be a member of the SPCB merely because he ceases to be an MSP because the Parliament has been dissolved. This ensures that the SPCB can continue to function during a dissolution.

Paragraph 2 gives power to the SPCB to hold property and this includes, by implication, the acquisition and disposal of property. Property is defined in section 126(1) as including rights and interests of any description. Sub-paragraph (2) confers a power to provide, by subordinate legislation for the transfer of any property belonging to a Minister of the Crown or government department to the SPCB, or for the SPCB to have rights or interests in relation to such property. Sub-paragraph (3) provides that the subordinate legislation under sub-paragraph (2) may also provide for the transfer to the SPCB of any liabilities relating to the property to which a Minister of the Crown or government department is subject, immediately prior to the Order coming into force. Sub-paragraph (4) provides that the power in sub-paragraph (2) may only be used if the person making the subordinate legislation considers it appropriate to do so to enable the SPCB to exercise its functions or to facilitate their exercise or in connection with their exercise or proposed exercise.

Further provision about the making of subordinate legislation under this power is to be found in sections 112 to 115 and Schedule 7. In particular, it is subject to Type G procedure specified in paragraph 2 of Schedule 7 which means that it is subject to either draft affirmative procedure or negative procedure in the Westminster Parliament.

This power was exercised in making the Transfer of Property (Scottish Parliamentary Corporate Body) Order 1999 (S.I. 1999/1106).

In addition, where there is Parliamentary copyright in any work, the SPCB is the first owner of any copyright in the work by virtue of the amendments made to section 165 of the Copyright, Designs and Patents Act 1988 by the Parliamentary Copyright (Scottish Parliament) Order 1999 (S.I. 1999/676).

Paragraph 3 makes provision for the appointment of the staff of the Parliament. The appointment of assistant Clerks and other staff of the Parliament is a matter for the SPCB (sub-paragraph (1)) and they, together with the Clerk, are referred to in the Act as the staff of the Parliament (sub-paragraph (2)). Under sub-paragraph (3) it is for the SPCB to determine the terms and conditions of appointment of the staff of the Parliament and this will include the payment of salaries. The SPCB will also be able to make 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. The SPCB can, in particular, make contributions or payments towards provision for such pensions, gratuities or allowances and can establish and administer one or more pension schemes (sub-paragraph (4)).

See also the Superannuation (Application of the Superannuation Act 1972, Section 1) (No.2) Order 1999 (S.I. 1999/2092) which adds employment by the SPCB to those listed in Schedule 1 to the Superannuation Act 1972. This enables the staff of the Parliament to be covered by the Principal Civil Service Scheme.

Paragraph 4 makes provision as to the powers of the SPCB. The SPCB has power to do anything which appears to it to be necessary or expedient for the purpose of or in connection with the discharge of its functions (sub-paragraph (1)). In particular, under sub-paragraph (2), this includes power to enter into contracts; to charge for goods and services, to invest sums not immediately required by the SPCB in relation to the discharge of its functions and to accept gifts. Sub-paragraph (3) provides that the corporation may sell goods or provide services and may make arrangements for the sale of goods or provision of services to the public. Sub-paragraphs (4) and (5) allow the SPCB to borrow money but only in sterling by way of an overdraft or otherwise to meet a temporary excess of expenditure over income. Such money can only be borrowed in accordance with the special or general approval of the Parliament.

Paragraph 5 allows the SPCB to delegate any of its functions to the Presiding Officer or the Clerk.

Paragraph 6 makes provision as to the proceedings and business of the SPCB. The membership of the SPCB stands at five (including the Presiding Officer), however, the validity of any proceedings of the SPCB will not be affected by any vacancy among its members or, by any defect in the appointment or qualification for membership of any member (sub-paragraph (1)). Sub-paragraph (2) gives power to the SPCB to determine its own procedure and it is for the Presiding Officer to preside over the meetings of the SPCB (sub-paragraph (3)). If the Presiding Officer's office is vacant or the Presiding Officer is unable to act, then the SPCB can appoint another of its members to preside over the meeting.

Paragraph 7 deals with Crown status. The SPCB is not a Crown body as it is exercising functions on behalf of the Parliament rather than the Scottish Executive. Sub-paragraph (1) however provides that Her Majesty may, by Order in Council, provide for the SPCB to be treated as a Crown body for the purpose of any enactment. In particular the Order in Council may provide for employment under the SPCB to be treated as Crown employment or for land held, used or managed by the SPCB or operations carried out by them to be treated as Crown land or operations. This mirrors provision made in relation to the Parliamentary corporate bodies of the House of Commons and the House of Lords. Paragraph 7(3) provides that "Crown body" means a servant or agent of the Crown and includes a government department.

This power was exercised in making the Scottish Parliamentary Corporate Body (Crown Status) Order 1999 (S.I. 1999/677), which provides for the SPCB to be treated as a Crown body for the purposes of various enactments relating to planning, building legislation, fire precautions, VAT and data protection.