Executive Devolution

The following functions have been included in the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 1999 (S.I. 1999/1750).

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. The Secretary of State for Scotland's role in providing advice to the Privy Council on Proclamations by Her Majesty in Council under section 1 of the Banking and Financial Dealings Act 1971 altering statutory bank holidays in Scotland etc. has passed to the First Minister.

Section A4: Financial Markets

Purpose and Effect

This Section reserves financial markets.

General

The reservation of financial markets ensures a common market across the UK in securities and other financial instruments, for investors and traders, including markets which operate for the purpose of raising capital and for dealing with financial instruments and currency, including foreign exchange.

Details of Provisions

Reservation

What is reserved are financial markets, such as investment exchanges or money markets.

The reserved matters are expressly stated to include:

(a)     the listing and public offers of securities and investments, such as the matters which have to be disclosed in the application for official or unofficial listing of securities by the Stock Exchange;

(b)     the transfer of securities e.g. on paper in the case of certificated securities or electronically in the case of uncertificated securities as in the CREST system; and

(c)     insider dealing. This reserves all matters relating to what constitutes insider dealing and its consequences.

Section A5: Money Laundering

Purpose and Effect

This Section reserves the regulation of financial and other businesses so as to require systems to be in place to prevent money laundering. It does not, however, reserve the criminal law as it relates to money laundering, competence in respect of which is, with certain exceptions, devolved as part of the general devolution of the criminal law.

     Details of Provisions

The subject-matter of the Money Laundering Regulations 1993 (S.I. 1993/1933) is reserved. Those Regulations provide a scheme of rules to regulate certain financial businesses so as to prevent money laundering. The reservation is not however limited to financial businesses.

The Scottish Parliament is able to legislate on the criminal law generally, including the criminal law relating to money laundering. The only exception to this concerns statutory offences involving money laundering the proceeds of drug trafficking which is reserved by Section B1 (Misuse of Drugs).

Head B - Home Affairs

Section B1: Misuse of Drugs

Purpose and Effect

This Section reserves the criminal law in respect of the misuse of drugs and the proceeds of drug trafficking.

General

The reservation covers matters relating to the possession, cultivation, production, supply, import and export of drugs. In addition it covers matters relating to drug trafficking, including the acquisition, possession or use of the proceeds of drug trafficking. It includes the statutory offences involving money laundering of the proceeds of drug trafficking, confiscation of the proceeds of drug trafficking, and forfeiture of things used in the commission of drug trafficking offences.

The Scottish Parliament, however, has competence in relation to other key matters which are relevant to the misuse of drugs, including education, health, social work, police and the criminal prosecution system.

The criminal law relating to the laundering of money obtained though other types of criminal activity is not reserved. However, Section A5 effectively reserves the regulation of financial and other businesses so as to require systems to be in place to prevent money laundering.

Parliamentary Consideration

Details of Provisions

Legislative competence is reserved in relation to the subject-matter of the following enactments:

(a)     the Misuse of Drugs Act 1971, which makes provision with respect to dangerous or otherwise harmful drugs and related matters. In particular, it makes provision in relation to criminal offences in respect of the cultivation, possession, production, supply, import and export of "controlled drugs" (those controlled by the Act), the authorisation of certain activities in relation to such drugs, and confers certain special powers on the police in relation to such drugs. It also provides for the establishment of an Advisory Council on the Misuse of Drugs;

(b)     Sections 12 to 14 of the Criminal Justice (International Co-operation) Act 1990, which make it an offence to manufacture or supply certain substances knowing or suspecting that the substance is to be used in or for the unlawful production of a controlled drug; enable the Secretary of State to make regulations about Scheduled substances; and make it an offence to conceal, disguise, transfer, convert or remove from the jurisdiction the proceeds of drug trafficking for the purpose of avoiding, or assisting someone to avoid, prosecution for a drug trafficking offence or the making or enforcement of a confiscation order;

(c)     Part V of the Criminal Law (Consolidation) (Scotland) Act 1995, which confer powers of search and investigation and create offences in respect of drug trafficking, in particular making it an offence for a person to acquire, use or possess property knowing that it represents the proceeds of drug trafficking; and

(d)     the Proceeds of Crime (Scotland) Act 1995, so far as relating to drug trafficking. This Act makes general provision for the forfeiture of things used in the commission of crime and special provision for the confiscation of the proceeds of crime.

Executive devolution

The following functions have been included in the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 1999 (S.I. 1999/1750).

Section B2: Data Protection

Purpose and Effect

This Section reserves matters covered by certain United Kingdom and Community legislation concerning the protection of personal data.

General

Data protection concerns obtaining, holding, processing and disclosure of personal data (i.e. information about individuals) and the free movement of such data. Provision for this is currently made in the Data Protection Act 1998. The 1998 Act, which received Royal Assent on 16 July 1998, consolidated and repealed the Data Protection Act 1984. The 1998 Act is broader than the 1984 Act in two main respects. As required by Council Directive 95/46/EC, it extends data protection legislation to cover manually-held records as well as records held on computer. It also covers "accessible records" which are certain records in the social work, housing, health and education fields. Some parts of the 1998 Act did not come into force until 1 March 2000, but all of those matters are nevertheless reserved matters.

Parliamentary Consideration

Details of Provisions

The reservation of data protection is by reference to the subject-matter of the Data Protection Act 1998 and Council Directive 95/46/EC:

(a)     The Data Protection Act 1998. This regulates certain activities involving the obtaining, holding, processing and disclosure of personal data (i.e. data relating to an individual who can be identified from that information). It is in particular concerned with "data users" (i.e. persons who hold data which have been, or which are intended to be, processed by him or on his behalf) and "computer bureaux" (i.e. persons who process data on behalf of another person or allow that other person to use their equipment). It also covers manually held records and "accessible records" mentioned above.

     The 1998 Act also deals with the office of the Data Protection Registrar. He or she is obliged to compile and maintain a register of data users and computer bureaux. This register is available for public inspection. Essentially, the entry for each data user on that register must describe, amongst other things, the personal data which he intends to hold, the purpose for which he intends to hold that data and a description of any persons to whom he intends or may wish to disclose the data. A data user may not, amongst other things, hold personal data of any description other than that specified in the entry, hold that data for any purpose other than the purpose so specified or disclose such data to any person who is not described in the entry. Similar provisions apply in respect of registered computer bureaux.

     The 1998 Act also requires the Data Protection Registrar to promote the observance of the data protection principles by data users and computer bureaux. Those principles are set out in Part 1 of Schedule 1 to that Act. The purpose of the principles is to guide the use of data by data users and computer bureaux.

     The interpretation part in the Section provides that where any provision of the 1998 Act is not in force on the principal appointed day (1 July 1999) it should be treated as if it were in force for the purpose of the reservation. This is necessary because some parts of the 1998 Act did not come into force until 1 March 2000.

(b)     Council Directive 95/46/EC. This is concerned with protection of individuals with regard to the processing of personal data and with the free movement of such data. It requires provision to be made which will:

     i.     extend to certain types of manually processed data;

     ii.     set specific conditions of processing personal data;

     iii.     set tighter conditions for processing sensitive data (for example about health, political opinions or religious beliefs);

     iv.     provide certain exemptions for journalism;

     v.     allow individuals to object to processing in some circumstances; and

     vi.     restrict some fully automated decision-making.

Most of these provisions have been implemented in the 1998 Act. However, the Directive contains some discretionary provisions which the UK has chosen to interpret in a certain way in the 1998 Act and it also sets out provisions establishing a Committee composed of representatives of the Member States. The reference to the Directive is therefore included to ensure that all of those matters are reserved matters.

Executive Devolution

The following functions have been included in the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 1999 (S.I. 1999/1750).

Section B3: Elections

Purpose and Effect

This Section reserves matters regarding Parliamentary and European Parliamentary elections. It also reserves the franchise at local government elections but other matters concerning local government elections are not caught by the reservation.

General

The reservation covers all matters concerning elections for membership of the House of Commons, the European Parliament, and the Scottish Parliament. The law concerning elections covers, in particular, who may stand or vote in any elections, procedures under which votes are counted and candidates returned, and what the constituencies and timing of elections should be.

Provision is made under sections 1-14 and Schedule 1 of the Act for elections to the Scottish Parliament. These provisions will also be outwith the legislative competence of the Scottish Parliament by virtue of section 29(2)(c) and Schedule 4.

Parliamentary Consideration

Details of Provisions

Elections for membership of the House of Commons, the European Parliament and the Scottish Parliament are reserved, including the subject-matter of:

(a)     the European Parliamentary Elections Act 1978. This Act provides for the election of representatives to the European Parliament including the determination of the United Kingdom's European Parliamentary constituencies;

(b)     the Representation of the People Act 1983 and the Representation of the People Act 1985. These Acts contain the current provisions concerning Parliamentary elections in the United Kingdom including, in particular, provision as to who may vote how they may vote, the conduct of elections and the return of members; and

(c)     the Parliamentary Constituencies Act 1986. This Act effectively provides for the distribution of seats in the House of Commons amongst constituencies. In particular, it provides for Boundary Commissions for the constituent parts of the United Kingdom to review the distribution of seats and determines the rules under which the Commission must conduct these reviews,

so far as they apply, or may be applied, in respect of such membership.

The franchise at local government elections is also a reserved matter but other matters concerning local government elections are not caught by the reservation. The Scottish Parliament is thus able to legislate on:

the frequency of elections;

the terms of office of councillors;

the division of local government areas into electoral wards and the number of councillors elected for each ward;

the procedures under which votes cast in such an election should count e.g. proportional representation or first past the post;

the separate election of specific persons to specific council offices e.g. the direct election of convenors or leaders of local authorities;

the qualifications and disqualifications for holding office as a member of such a council; and

what should happen on any vacation of office of a member of a council.

Agency Arrangements

The Scotland Act 1998 (Agency Arrangements) Order 1999 (S.I 1999/1512) specified certain functions of a Minister of the Crown in relation to UK Parliamentary, Scottish Parliamentary and European Parliamentary elections for the purpose of section 93 of the Scotland Act.

Section B4: Firearms

Purpose and Effect

This Section reserves firearms.

General

The reserved matter covers regulation of the manufacture, possession, handling, purchase or acquisition, sale, distribution and transfer of firearms.

Parliamentary Consideration

Details of Provisions

Reservation

The reservation is expressed by reference to the subject-matter of the Firearms Acts 1968 to 1997. These Acts are the Firearms Act 1968, the Firearms Act 1982, the Firearms (Amendment) Act 1988, the Firearms (Amendment) Act 1992 and the Firearms (Amendment) Act 1997. These Acts, inter alia:

make it criminal in certain circumstances and without authority to possess handle, purchase, acquire, sell, distribute or transfer certain firearms and imitation firearms;

provide for the need for, and issue of, firearms certificates in relation to certain firearms and ammunition;

make provision for the regulation of firearms dealers; and

and provide for the licensing and regulation of pistol clubs.

The Acts distinguish between different types of firearms in certain respects and make different provision for different types.

The reservation also covers subordinate legislation made under the Firearms Acts, in particular the Firearms (Scotland) Rules 1989 (S.I. 1989/889) which prescribe the forms to be used in connection with the grant of certificates under the Firearms Acts and the registration of firearms dealers, and also the form of the register of transactions to be kept by dealers.

Executive Devolution

The following functions have been included in the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 1999 (S.I. 1999/1750).

Section B5: Entertainment

Purpose and Effect

This Section reserves certain matters which relate to entertainment.

General

The reservation covers licensing of premises for film exhibition and the classification of video recordings.

The classification of films for public exhibition, which is carried out by the British Board of Film Classification, is also to be reserved. The Board is a non-statutory body established by the film industry in 1912 which certifies films as suitable for different categories of audience (or refuses a certificate).

Legislative competence in respect of the classification and supply of video recordings is also reserved. The matter of broadcasting is reserved separately by Section K1.

Parliamentary Consideration

Details of Provisions

The subject-matter of the following are reserved:

(a)     the Video Recordings Act 1984. This Act makes provision for regulating the distribution of video recordings. In particular it makes provision for the classification and labelling of recordings and the supply and possession of videos that are not classified; and

(b)     sections 1 to 3 and 5 to 16 of the Cinemas Act 1985. This Act makes provisions relating to the licensing of premises for use for film exhibition (including provision for certain exemptions from the requirements to hold a licence).

In addition, legislative competence in respect of the classification of films for public exhibition as carried out at present by the British Board of Film Classification, is reserved.

Executive Devolution

The following functions have been included in the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 1999 (S.I. 1999/1750).

Section B6: Immigration and Nationality

Purpose and Effect

This Section reserves immigration and nationality.

General

Immigration and nationality covers a range of matters, including: entry to the UK; the granting of political or other forms of asylum; the status and capacity in the UK of non-British citizens, the grant of work permits and their regulation; free movement of persons within the European Economic Area; and the issue of passports and other travel documents.

Immigration control is now largely a matter of statute, the principal controlling statute being the Immigration Act 1971 (which has been amended by a number of subsequent Immigration Acts) together with the British Nationality Act 1981 and the Immigration (Carriers' Liability) Act 1987. Passports and other travel documents are not subject to statutory provision, but are issued under the Royal Prerogative.

Parliamentary Consideration

Details of Provisions

The reservation includes the exercise of functions under the legislation described above; asylum and the status and capacity of persons in the United Kingdom who are not British citizens; free movement of persons within the European Economic Area; and the issue of travel documents.

Executive Devolution

The following functions have been included in the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 1999 (S.I. 1999/1750).