Scotland Act 1998
1998 Chapter 46 - continued
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Executive Devolution and Advice to The Queen

These notes also describe, under the heading "Executive Devolution", the provision in the various orders which have been made up to September 2001 under section 63 of the Scotland Act for transferring Ministerial functions which relate to reserved matters to the Scottish Ministers, or for modifying them so that they are exercisable by the Scottish ministers, e.g. after consultation with the Scottish Ministers or with the agreement of the Scottish Ministers These orders are the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 1999 (S.I. 1999/1750), the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) (No. 2) Order 1999 (S.I. 1999/3321), the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 2000 (S.I. 2000/1563), the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc) (No.2) Order 2000 (S.I. 2000/3253, the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc) Order 2001 (S.I. 2001/954).

Where the descriptions of the functions in these entries show an asterisk beside a reference to "the Secretary of State", the function in question is one which was originally conferred on the Lord Advocate and which was transferred to the Secretary of State by the Transfer of Functions (Lord Advocate and Secretary of State) Order 1999 (S.I. 1999/678).

In some cases, special arrangements for giving advice to The Queen have been made. Such functions are exercised by the First Minister rather than the Scottish Ministers, and were described in a written answer by the Prime Minister on 30 June 1999 (WA col 215) and an associated paper deposited in the House of Commons Library. Where these functions relate to reserved matters, they are noted in the relevant section.

Agency Arrangements

Functions of a Minister of the Crown, which are specified in any order made under section 93 (agency arrangements) of the Scotland Act 1998 as at September 2001 are identified under the heading "Agency Arrangements". The only Order under that section which has in fact done so is the Scotland Act 1998 (Agency Arrangements)(Specification) Order 1999 (S.I. 1999/1512).

The other orders which have been made under that section prior to that date have specified functions which are exercisable by the Scottish Ministers, namely the Scotland Act 1998 (Agency Arrangements)(Specification) (No. 2) Order 1999 (S.I. 1999/3320), the Scotland Act 1998 (Agency Arrangements)(Specification) Order 2000 (S.I. 2000/745), the Scotland Act 1998 (Agency Arrangements) (Specification) (No.2) Order 2000 (S.I. 2000/3250). As these functions are not necessarily related to a reserved matter, they are not identified in these notes.

Residual Functions

In some cases the effect of reserving a particular area was to leave a function in the hands of the Secretary of State for Scotland, which it was no longer appropriate for him to exercise. Such functions were transferred to other UK Ministers by means of Transfer of Functions Orders under the Ministers of the Crown Act 1975 (where the particular Secretary of State for Scotland was specified in the statute) or by means of a Prime Ministerial announcement (where the function was exercisable by the Secretary of State for Scotland as a matter of convention). Entries under the heading "Residual Functions" note any relevant Transfer of Functions Orders, eg in relation to Medicines and Poisons (Section J4).

Reserved Matters

Section 30(1) provides for Schedule 5 to define the matters which are "reserved" for the purposes of the Act.

The main purposes in the Act for which the definition of reserved matters is relevant are section 29 which deals with the legislative competence of the Scottish Parliament and section 53 which deals with the transfer of Ministerial functions which are exercisable within devolved competence to the Scottish Ministers. It is also used, however, in various other contexts, such as section 88 which deals with cross-border public authorities.

General

Section 30 introduces Schedule 5 which defines the reserved matters. Schedule 5 has been amended by the following Orders in Council which have been made under section 30(2) of the Scotland Act up to September 2001, namely S.I. 1999/1749, 2000/1831, 2000/3252 and 2001/1456.

Schedule 5 is in three Parts. Part I defines general reservations. Part II sets out specific reservations arranged by Head and Section. Part III consisted of general provisions and contains general explanatory and interpretative provisions.

The Schedule must be read as a whole. Even though a matter is excepted from a reservation in one Section, it could be reserved at least in part by others.

Interpretative provisions

Part III and the "Preliminary" paragraphs at the beginning of Part II contain general explanatory and interpretative provisions. In particular:

    (a)     paragraphs 1 to 3 in Part II explain how the entries in Part II are to be construed;

    (b)     paragraphs 1 to 4 of Part II contain general provisions about Scottish public authorities, "reserved bodies" and financial assistance to industry; and

    (c)     paragraph 5 of Part III contains a general provision as to how references in the Schedule to the subject matter of an enactment are to be construed. It provides that they are to be read as references to that enactment as it had effect on 1 July 1999. Accordingly, for the purposes of this Schedule, it does not matter if that enactment is amended or even repealed after that date: the reservation will remain the same.

TABLE OF RESERVED MATTERS

The table below shows where various reserved matters are to be found in Schedule 5 to the Act. Entries in upper case correspond to Section titles.

SUBJECTPARTPARAGRAPH/
SECTION
ABORTIONIIJ1
Agricultural WagesIIH1
AIR TRANSPORTIIE4
ARCHITECTSIIG1
ASSISTED AREAS, DESIGNATION OFIIC13
AUDITORSIIG3
Bank HolidaysIIA3, L5
BanksIIA3
BETTINGIIB9
BROADCASTINGIIK1
Building societiesIIA3
BUSINESS ASSOCIATIONSIIC1
Carriage of dangerous goodsIIE5
CHARITIESIIC1
CHILD SUPPORTIIF2
CinemasIIB5
Civil DefenceI9
Civil Service, TheI8
Classification of filmsIIB5
COALIID3
COMPETITIONIIC3
CONSTITUTION, THEI1 to 5
CONSUMER PROTECTIONIIC7
CONTROL OF WEAPONSIIL3
CopyrightIIC4
Crown, TheI1
Crown Estate CommissionersI2
CURRENCY, THEIIA2
DATA PROTECTIONIIB2
DEFENCEI9
DRUGS, MISUSE OFIIB1
ELECTIONSIIB3
ELECTRICITYIID1
EMBRYOLOGYIIJ3
EMERGENCY POWERSIIB10
EMPLOYMENTIIH1
ENERGY CONSERVATIONIID5
ENTERTAINMENTIIB5
EQUAL OPPORTUNITIESIIL2
EUI7
Estate agency business, The conduct ofIIC7
EXTRADITIONIIB11
FINANCIAL MARKETSIIA4
FINANCIAL SERVICESIIA3
FIREARMSIIB4
FISCAL, ECONOMIC AND MONETARY POLICYIIA1
FishingIIC6
Food safetyIIC7
FOREIGN AFFAIRSI7
GAMINGIIB9
GENETICSIIJ3
GOVERNMENT INDEMNITY SCHEMEIIK3
HEALTH AND SAFETYIIH2
HEALTH PROFESSIONSIIG2
Honours and DignitiesI2
IMMIGRATIONIIB6
IMPORT AND EXPORT CONTROLIIC5
INDUSTRIAL DEVELOPMENT ADVISORY BOARDIIC14
INDUSTRIAL RELATIONSIIH1
Insider dealingIIA4
INSOLVENCYIIC2
Insolvency PractitionersIIC2
InsuranceIIA3
INTELLECTUAL PROPERTYIIC4
INTERCEPTION OF COMMUNICATIONSIIB8
C10
C11
International Trade (see also import & export control)I7
JOB SEARCH AND SUPPORTIIH3
JUDICIAL REMUNERATIONIIL1
Legal profession, TheIIC3
LIEUTENANCIESIIB12
Local taxesIIA1
Lord Lyon King of ArmsI2
LOTTERIESIIB9
MARINE TRANSPORTIIE3
MEDICINES AND POISONSIIJ4
MISUSE OF DRUGSIIB1
MONEY LAUNDERINGIIA5
NATIONAL SECURITYIIB8
NATIONALITYIIB6
NUCLEAR ENERGYIID4
OCCUPATIONAL AND PERSONAL PENSIONSIIF3
OFFICIAL SECRETSIIB8
OIL & GASIID2
ORDNANCE SURVEYIIL4
OUTER SPACEIIL6
PatentsIIC4
POLITICAL PARTIESI6
POST OFFICE, POSTS AND POSTAL SERVICESIIC11
PRODUCT STANDARDS, SAFETY AND LIABILITYIIC8
PROPERTY ACCEPTED IN SATISFACTION OF TAXIIK4
PROTECTION OF TRADING AND ECONOMIC INTERESTSIIC15
PUBLIC LENDING RIGHTIIK2
Public passenger transport for disabled personsIIE5
PUBLIC SERVICEI8
RAIL TRANSPORTIIE2
RESEARCH COUNCILSIIC12
ROAD TRANSPORTIIE1
SCIENTIFIC PROCEDURES ON LIVE ANIMALSIIB7
SEA FISHINGIIC6
SOCIAL SECURITY SCHEMESIIF1
SURROGACYIIJ3
TaxesIIA1
TELECOMMUNICATIONS AND WIRELESS TELEGRAPHYIIC10
TERRORISMIIB8
TIMEIIL5
Trading with the enemy and enemy propertyI9
Transport of radioactive materialIIE5
Travel documents, Issue ofIIA6
TREASONI10
Vaccine Damage Payments Scheme, TheIIF1
Veterinary surgeonsIIG2
Veterinary medicinesIIJ4
Video RecordingsIIB5
WAR PENSIONSIIF4
WEIGHTS AND MEASURESIIC9
WELFARE FOODSIIJ5
XENOTRANSPLANTATIONIIJ2

Part I: General Reservations

Paragraphs 1 to 5: The Constitution

Purpose and Effect

These paragraphs reserve aspects of the Constitution, subject to certain exceptions.

Detail of Provisions

Paragraph 1: Constitution

Paragraph 1 provides that certain aspects of the Constitution are reserved matters. These aspects are:

    (a)     the Crown, including the succession to the Crown and a regency;

    (b)     the Union of the Kingdoms of Scotland and England;

    (c)     the Parliament of the United Kingdom;

    (d)     the continued existence of the High Court of Justiciary as a criminal court of first instance and of appeal; and

    (e)     the continued existence of the Court of Session as a civil court of first instance and of appeal.

Parliamentary Consideration

StageDateColumn
CR19-May-98787

Paragraphs 2-5 provide for exceptions to be made from this basic reservation and clarify the scope of what is excepted and what is reserved.

Paragraph 2: Functions etc.

Paragraph 2(1) provides that paragraph 1 does not have the effect of reserving Her Majesty's prerogative and other executive functions, or functions exercisable by any person acting on behalf of the Crown. This enables the Scottish Parliament to legislate about those functions where they do not relate to other reserved matters and enables such functions which are exercised by a Minister of the Crown in or as regards Scotland to transfer to the Scottish Ministers under section 53. (See also the note at the end of this Section on the giving of advice to Her Majesty.)

Paragraph 2(1)(c) also makes it clear that the offices in the Scottish Administration are not reserved matters so that the Scottish Parliament has the competence to amend or abolish such offices, such as the Keeper of the Registers of Scotland. The Scottish Parliament could not, however, amend or abolish the Ministerial offices in the Scottish Administration (i.e. the members of the Scottish Executive as provided for by section 44) by virtue of paragraph 4 of Schedule 4.

Paragraph 2(2) qualifies paragraph 2(1) by providing that it does not affect the reservation by paragraph 1 of honours and dignities or the functions of the Lord Lyon King of Arms with regard to the granting of arms i.e. the right to bear and use a coat of arms in Scotland (although this does not apply to the Lord Lyon King of Arms in his judicial capacity). This is required because otherwise, by virtue of paragraph 2(1), all the functions relating to honours and dignities (e.g. peerages, knighthoods, and decorations), such as the making of recommendations to the Queen regarding the grant of honours etc., and the functions of the Lord Lyon relating to the granting of arms would not be reserved. However, the functions of the Lord Lyon in his judicial capacity are not reserved. (See also the note at the end of this Section on the giving of advice to Her Majesty.)

Paragraph 2(3) qualifies paragraph 2(1) by providing that it does not affect the reservation by paragraph 1 of the management (in accordance with any enactment regulating the use of land) of the Crown Estate. This has the effect of ensuring that the Scottish Parliament cannot legislate about the Crown Estate Commissioners or their functions of managing the Crown property, rights and interests known as the Crown Estate under the Crown Estate Act 1961. The Scottish Parliament will, however, be able to legislate to affect the Crown Estate by virtue of paragraph 3(1).

Paragraph 2(4) qualifies paragraph 2(1) by providing that it does not affect the reservation by paragraph 1 of the functions of the Security Service, the Secret Intelligence Service and the Government Communications Headquarters. This supplements the reservation of national security and interception of communications in Section B8.

Paragraph 2(5) 5 qualifies paragraph 2(1) by providing that it does not affect the reservation by paragraph 1 of the functions exercisable through the Export Credit Guarantee Department. The ECGD provides underwriting services and technical advice and assistance to exporters.

    5 This paragraph was inserted by article 3 of the Scotland Act 1998 (Modifications of Schedules 4 and 5) Order 1999 (S.I. 1999/1749).

Parliamentary Consideration

StageDateColumn
CC30-Mar-98903
CC30-Mar-98906
CC30-Mar-98907
CR19-May-98806
LR3-Nov-98142
LR3-Nov-98143

Paragraph 3: Crown Property

Paragraph 3(1) provides that paragraph 1 does not have the effect of reserving Crown property. Crown property is:

    (a)     property belonging to Her Majesty in right of the Crown. This includes property which the Crown can sell and alienate, such as the foreshore, and rights and obligations over such property which are vested in the Crown as trustee for certain public rights and which cannot be alienated, such as the right to recreational use of the foreshore or the right of public navigation in the waters over the seabed. This property forms part of the Crown Estate which is managed by the Crown Estate Commissioners; and

    (b)     property belonging to any person acting on behalf of the Crown or held in trust for Her Majesty for the purposes of any person acting on behalf of the Crown.

This will enable the Scottish Parliament, for example, to apply its planning legislation to Crown property, subject of course to any provisions in other reservations. It will also enable the Scottish Parliament, when legislating to create a new harbour or port, to extinguish any public rights over the foreshore or seabed which might be affected.

Paragraph 3(2) provides that paragraph 1 does not reserve the position of the Crown as ultimate superior of all feudal land in Scotland or the superiorities owned by the Prince and Steward of Scotland. This provision is required because it is not clear whether such property can be said to belong to the Crown "in right of the Crown". It enables the Scottish Parliament to abolish the feudal system of land tenure, as in the Abolition of Feudal Tenure etc. (Scotland) Act 2000.

Paragraph 3(3) qualifies paragraph 3(1) by providing that it does not affect the reservation by paragraph 1 of:

    (a)     the hereditary revenues of the Crown, other than revenues from bona vacantia, ultimus haeres and treasure trove. Hereditary revenues are derived from property vested in the Crown in right of the Crown and various other prerogative rights and privileges which are customarily surrendered by the Crown to the nation in exchange for a fixed annual income, known as the Civil List. Bona vacantia, ultimus haeres and treasure trove, are however devolved;

    (b)     the royal arms and standard. This is required because otherwise it could be regarded as part of the property belonging to Her Majesty in right of the Crown; and

    (c)     the compulsory acquisition of property held or used by a Minister of the Crown or government department.

Parliamentary Consideration

StageDateColumn
CC30-Mar-98904
CR19-May-98806
LC14-Jul-98242

Paragraph: 4 Crown's private property

Paragraph 4(1) provides that paragraph 1 does not have the effect of reserving property which the Queen holds in Her private capacity, such as Balmoral.

Paragraph 4(2) qualifies paragraph 4(1) by providing that it does not affect the reservation by paragraph 1 of the subject-matter of the Crown Private Estates Acts 1800 to 1873. These Acts regulate matters relating to such private estates, such as how they may be held or disposed of.

This provision enables the Scottish Parliament to legislate to affect the Queen's private estates in Scotland. Any such provision in an Act of the Scottish Parliament will, however, require the Queen's consent under standing orders made in accordance with paragraph 5 of Schedule 3.

Parliamentary Consideration

StageDateColumn
CC30-Mar-98904

Paragraph 5: Scottish Seal

Paragraph 5 provides that paragraph 1 does not reserve the use of the Scottish Seal. "Scottish Seal" is defined in section 2(6). It is the Seal which is currently used in connection with certain matters, such as appointments made under Royal Warrants (e.g. of judges and QCs) and grants of lands. The Act provides that the First Minister is to be the Keeper of the Scottish Seal (section 45(7)) and that it is to be used in connection with proclamations by the Queen regarding certain elections (sections 2(5) and 3(2)) and the Royal Assent to Scottish Bills (section 28(3)). The Scottish Parliament will be able to provide that it should have other uses.

Parliamentary Consideration

StageDateColumn
CC30-Mar-98904
CR19-May-98787
LR3-Nov-98144

Advice to The Queen

Special arrangements for giving advice to The Queen were described in a Prime Ministerial answer on 30 June 1999 (WA col 215) and an associated paper deposited in the House of Commons Library.

In cases where Her Majesty exercises a function which is exercisable within devolved competence for the purposes of the Scotland Act 1998 and She was, by convention, advised by a Minister of the Crown about the exercise of that function, then from 1 July 1999 She will be advised by the First Minister instead of by a Minister of the Crown. Examples of circumstances in which Her Majesty will in future be advised by the First Minister instead of by the Secretary of State in relation to the exercise of Her functions which relate in whole or in part to a devolved matter are shown below where they are relevant to paragraphs 1 to 5 of Schedule 5.

Her Majesty will be advised by the First Minister on:

    the appointment of the Lord Lyon and Lyon Clerk.

    use of the Royal Prerogative 6 including the use of Royal Names 7 and Royal Patronage 8;

    6 In respect of the use of the Royal Prerogative, where the advice concerns a devolved matter the First Minister will advise Her Majesty.

    7 An organisation may only call itself "Royal" if it has the authority of Her Majesty. Requests to name a street or other place after a member of the Royal Family also require approval by Her Majesty. Where the application is for something that is in Scotland, the First Minister will advise Her Majesty.

    8 This refers to patronage of an organisation by a member of the Royal Family. Where the organisation is Scottish-based and operates in devolved areas the First Minister will advise Her Majesty.

    Receipt of and response to the submission of Loyal Addresses to Her Majesty from Churches and individuals in Scotland;

    Response to a Petition submitted to Her Majesty;

    Appointment to offices in the Royal Household in Scotland, including HM Sculptor in Ordinary in Scotland; HM Painter and Limner in Scotland; the Royal Astronomer for Scotland; the Historiographer Royal in Scotland; the Keeper of Dumbarton Castle.

There are some matters in respect of which the Prime Minister gives advice to Her Majesty on the exercise of Her functions and on which it is appropriate for the Prime Minister to consult or to take advice from the First Minister. These matters include recommendations of Scottish candidates for honours and dignities, which are a reserved matter, and advice on the appointment of Lord Lieutenants in Scotland, the Lord High Commissioner to the General Assembly of the Church of Scotland and members of the Royal Commission on Environmental Pollution and the Forestry Commission.

Part I, Paragraph 6: Political Parties

Purpose and Effect

This paragraph reserves the registration and funding of political parties, except for making payments to assist MSPs in performing their Parliamentary duties.

Parliamentary Consideration

StageDateColumn
LC21-Jul-98858



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