Scotland Act 1998

Scotland Act 1998

1998 Chapter 46 - continued

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 the Producer Responsibility Obligations (Packaging Waste) Regulations 1997 for the purpose of section 93 of the Scotland Act.

Section C9: Weights and Measures

Purpose and Effect

This Section reserves weights and measures.

General

The law on weights and measures is concerned with establishing units and standards of measurement and with the regulation of trade in respect of the weighing and measuring of goods and, in particular circumstances, the quantities or manner in which they may be sold. Article XVII of the Treaty of Union provided for common weights and measures to be used throughout the United Kingdom.

Details of Provisions

Legislative competence concerning units and standards of weight and measurement, and the regulation of trade so far as involving weighing, measuring and quantities is reserved.

Section C10: Telecommunications and Wireless Telegraphy

Purpose and Effect

This Section reserves telecommunications and wireless telegraphy. It also reserves internet services and electronic encryption.

General

Telecommunications includes telephone systems and all forms of data transmission conveyed through the agency of electric, magnetic, electro-magnetic, electro-chemical or electro-mechanical energy. Operation of telecommunication systems is regulated by licensing powers of the Secretary of State and the Director General of Telecommunications under the Telecommunications Act 1984.

Wireless telegraphy is defined in legislation as emitting or receiving (without wires) electromagnetic energy of a frequency not exceeding 3 million megacycles per second. The Secretary of State has the power to make regulations concerning wireless telegraphy and to licence operators. These powers extend to the use of the radio spectrum. There is an overlap with Broadcasting which is regulated under separate legislation which is also reserved.

The reservation extends also to the subject-matter of a number of EC Directives and Regulations dealing with telecommunications and wireless telegraphy which use definitions which have a similar effect to those cited in UK legislation. This includes the regulations concerned with electromagnetic disturbance which is in part concerned with the establishment and regulation of technical standards. Technical standards of goods are also reserved.

Internet services are provided over computer systems linked by national and international telephone system but the services provided go beyond ordinary telecommunications. The reservation extends to all such services provided by electronic means at a distance.

Electronic encryption covers the general use of encryption of communications or data in electronic form for the purposes of commercial confidentiality and authentication.

Parliamentary Consideration

Stage	Date	Column
LC	23-Jul-98	1125
LR	3-Nov-98	192
LR	3-Nov-98	194

Details of Provisions

The reservation covers all matters relating to telecommunications and wireless telegraphy as described above. In particular this includes the subject-matter of the following legislation:

the Telecommunications Act 1984

the Wireless Telegraphy Act 1949, the Wireless Telegraphy Act 1967 and the Marine etc. Broadcasting (offences) Act 1967

The following are also reserved:

(a) internet services; and

(b) electronic encryption.

Exception

The subject-matter of Part III of the Police Act 1997 which sets out the circumstances in which the police may be authorised to interfere with property in order to carry out surveillance and other types of investigative work is excepted from the reservation. This is consistent with the exception of the subject-matter of Part III of the 1997 Act from the reservation of National Security, Interception of Communications, Official Secrets and Terrorism - see Section B8.

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), as amended, with effect from 14 December 2000, by Article 4(3)(a) of S.I. 2000/3253

The Wireless Telegraphy Act 1949 (c.54), section 5(1) (b).

The function of the Secretary of State of authorising persons to use wireless telegraphy apparatus in order to obtain information as to the contents, sender or addressee of any message (whether sent by means of wireless telegraphy or not) and to disclose information about the same: but only so far as the function is exercisable for the purpose of preventing or detecting crime (within the meaning of the Regulation of Investigatory Powers Act 2000) or of preventing disorder

S.I. 1999/1750 also transferred non-statutory functions in relation to the management of the radio spectrum, principally in connection with police, fire and local government civil defence activities.

Section C11: Posts

Purpose and Effect

This Section reserves the subject matter of the Postal Services Act 2000 (c.26) but there is excepted financial assistance for the provision of certain services provided from public post offices. This Section was substituted, with effect from 14 December 2000, by S.I. 2000/3252.

General

Previously, this Section reserved "the Post Office, posts (including postage stamps, postal orders and postal packets) and regulation of postal services". However, the Postal Services Act 2000 abolished the statutory monopoly enjoyed by the Post Office and provided for postal services to be provided by persons holding a licence from the Postal Services Commission.

Parliamentary Consideration

Stage	Date	Column
CC	4-Mar-98	1095
LR	3-Nov-98	194

Details of Provisions

The reservation extends to the subject matter of the Postal Services Act 2000, subject to the exception mentioned below.

The interpretation part disapplies paragraph 5(1) of Part III of Schedule 5 to the Scotland Act (which provides that references to the subject matter of an enactment are to be construed as at 1 July 1999). It provides that the reference to the subject matter of the Postal Services Act 2000 is to be read as a reference to the subject matter of that Act as at the date when it received the Royal Assent (28 July 2000).

The Postal Services Act 2000 regulates the provision of postal services by means of licences from the Postal Services Commission and creates offences in relation to postal services ( e.g. providing postal services without a licence, interfering with mail etc). It reorganises, and provides for the dissolution of, the Post Office and establish public post offices top provide postal services (and other services) to the public. It also establishes a Consumer Council for Postal Services.

There is excepted from the reservation financial assistance for the provision of services (other than postal services and services relating to money or postal orders) to be provided from public post offices. The expressions "postal services" and "public post offices" have the same meaning as in the Postal Services Act 2000.

Section C12: Research Councils

Purpose and Effect

This Section reserves the Research Councils within the meaning of the Science and Technology Act 1965, including the funding of such Councils. UK Research Councils will continue to provide funds for research in Scotland, on the present basis.

General

Research Councils are established by Royal Charter and are regulated under the 1965 Act. The 1965 Act establishes certain Research Councils for purposes connected with scientific research e.g. the Natural Environment Research Council and the Medical Research Council. Apart from the Research Councils already established by Royal Charter and named in the 1965 Act, a body may be declared a Research Council for the purposes of the 1965 Act by means of an Order in Council. The Research Councils covered by the 1965 Act deal with matters related to research and development in any of the sciences (including the social sciences) and technology. The reservation extends to existing Research Councils or any others that may be established in the field of scientific research within the meaning of the 1965 Act.

The Scottish Parliament is able to legislate for the funding of research, including scientific research, generally and to establish bodies in Scotland to carry out, administer or fund such research. The Scottish Parliament has legislative competence over the Scottish Higher Education Funding Council which grants funds for research to higher education institutions. This reservation simply precludes the Scottish Parliament from establishing Research

Councils within the meaning of the 1965 Act or exercising any direct control over such Councils.

Section 5 of the 1965 Act enables the Secretary of State to fund scientific research. This power is used mainly, but not exclusively, to fund research through Research Councils. It is written in terms of a general power to fund scientific research and so relates to more than is covered by this reservation. Section 5 is reserved only as it relates to the Research Councils. In all other respects powers under section 5, so far as they relate to matters that are not reserved, were transferred to the Scottish Ministers by virtue of section 53 of the Scotland Act. However, since there are circumstances under which a UK Secretary of State or Minister may wish to fund research in Scotland other than through Research Councils, section 56(1)(d) provides that section 5 of the 1965 Act is a shared power.

Details of Provisions

The first reservation is of Research Councils within the meaning of the 1965 Act. The reservation covers the establishment of and appointments to Research Councils, the functions, powers and duties of such bodies, and the provision of expenses and funds for distribution by them.

The subject-matter of section 5 of the Act is reserved so far as it relates to Research Councils. This reservation reserves to United Kingdom Ministers the power to fund scientific research through the Research Councils.

Section C13: Designation of Assisted Areas

Purpose and Effect

This Section reserves the designation of assisted areas. It does not reserve the matter of determining what financial assistance to industry might apply in such areas.

General

Assisted areas are those areas designated as development and intermediate areas under section 1 of the Industrial Development Act 1982. This power to designate assisted areas is exercised by the Secretary of State for Trade and Industry where for economic, social or other reasons of regional policy, additional measures to promote their economic development are considered appropriate. The designation of such areas applies for the purposes of any other Act which refers to development or intermediate areas (e.g. the Derelict Land Act 1982) as well as for the purposes of the 1982 Act.

The Treaty of Rome prohibits state aids that are incompatible with the Common Market. As part of its guidelines on this the European Commission require that particular areas eligible for differing levels of regional state aid should be agreed with the Commission. As a result of the reservation of International and European relations in Part I, paragraph 7 of Schedule 5 negotiations on defining such areas throughout the UK will be a matter for the UK Government, who will, by virtue of this reservation, also be responsible for giving effect to the areas as approved by the Commission.

The 1982 Act also provides for the provision of financial assistance to industry both within assisted areas and more generally. Financial assistance to industry is not reserved, subject to compliance with European Commission guidelines on state aids. Under section 56(1), however, a Minister of the Crown will continue to be able to exercise powers to provide financial assistance to industry under the Industrial Development Act 1982 and other enactments.

Parliamentary Consideration

Stage	Date	Column
LC	23-Jul-98	1126
LC	23-Jul-98	1130

Details of Provisions

This Section reserves the subject-matter of section 1 of the Industrial Development Act 1982. This provides for the Secretary of State to designate areas within Great Britain as assisted areas including the power to prescribe different categories of areas (such as development and intermediate areas) and to provide for preferential treatment of these categories.

Section C14: Industrial Development Advisory Board

Purpose and Effect

This Section reserves the Industrial Development Advisory Board.

General

The Industrial Development Advisory Board (IDAB) is a statutory body appointed under section 10 of the Industrial Development Act 1982 which advises the Secretary of State for Trade and Industry about the exercise of certain powers to provide financial assistance to industry. There is already a separate body, the Scottish Industrial Development Board (SIDAB) which is established under section 20 of the Scottish Development Agency Act 1975 to advise in this field.

Parliamentary Consideration

Stage	Date	Column
CC	10- Feb-98	221

Details of Provisions

The Industrial Development Advisory Board is reserved.

Section C15: Protection of Trading and Economic Interests

Purpose and Effect

This Section reserves the protection of trading and economic interests.

General

The purpose of legislation on this subject is to protect individuals and businesses from the laws of other states where they purport to have effect outside the country where the laws are made. Provisions under such legislation may prohibit certain actions in the UK in compliance with objectionable foreign laws. For example, legislation may prevent the enforcement in the UK of foreign judgements or provide remedies in UK courts for persons adversely affected by the application abroad of objectionable foreign laws.

In addition, the protection of the UK's economic interests from the actions of Governments or persons resident outside the UK is reserved.

Court procedure, judicial remedies and the reciprocal enforcement of foreign judgements generally is not reserved.

Parliamentary Consideration

Stage	Date	Column
CC	10-Feb-98	205
L3	9-Nov-98	609

Details of Provisions

This Section reserves the subject-matter of the following enactments:

section 2 of the Emergency Laws (Re-enactments and Repeals) Act 1964

art II of the Industry Act 1975

the Protection of Trading Interests Act 1980

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).

The Industry Act 1975 (c.68), Schedule 3, paragraph 24

The function of the Secretary of State in making rules in relation to Scottish proceedings of an Industry Act tribunal.

Section D1: Electricity

Purpose and Effect

This Section reserves the generation, transmission, distribution and supply of electricity and the regulation of the electricity supply industry. Matters relating to the control of pollution are excepted.

General

This Section reserves the generation, transmission, distribution and supply of electricity in Scotland. The subject-matter of the legislation governing privatisation of the electricity supply industry is also reserved. This is in line with a general reservation of energy matters.

Parliamentary Consideration

Stage	Date	Column
CC	30-Mar-98	1004

Details of Provisions

Reservation

The reservation covers the generation, transmission, distribution and supply of electricity. This would include the regulation of the electricity supply industry under Part I of the Electricity Act 1989. That Part gives the Secretary of State and the Director General of Electricity Supply extensive powers to regulate the industry through a system of licensing of generation, transmission and supply, sets out the duties of public electricity suppliers, and imposes further controls for the protection of the public interest and the protection of consumers.

The reservation also covers the subject-matter of Part II of the 1989 Act, which deals with the re-organisation of the industry by privatisation.

Exception

The subject-matter of Part I of the Environmental Protection Act 1990, which makes provision for the control of pollution is excepted from the reservation.

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).

The Electricity Act 1989 (c.29): (a) section 2(2)(b) and (3)(a);	Section 2(2)(b) - The function of the Secretary of State to determine that the area for which a consumers' committee is appointed shall consist of the authorised areas of two or more public electricity suppliers. Section 2(3)(a) - The function of the Secretary of State of being consulted by the Director before appointment of the chairman of a consumers' committee.
(b) section 3;	The duties of the Secretary of State to exercise the functions assigned or transferred to him by Part I of the Act in the manner which he considers is best calculated to achieve certain ends, so far as relating to functions exercisable by the Scottish Ministers under this Order.
(c) sections 32(1) and (9), 33, 34, 35, 36, 37, 39(1)(a) and 58:	Section 32(1) - The function of the Secretary of State after consultation with the Director and the suppliers concerned by order to require each public electricity supplier to make and produce evidence of arrangements for electricity to be available to the supplier from non-fossil fuel sources. Section 32(9) - The function of the Secretary of State by regulations to provide that subsections (5) to (8) shall have effect in relation to certain types of generating station with modifications, and to provide that electricity generated outside the United Kingdom shall be treated as generated by a non-fossil fuel generating station in such circumstances and to such extent as prescribed. Section 33 (1), (6) and (7) - The function of the Secretary of State by regulations to provide for imposition of a fossil fuel levy on public electricity suppliers and others, for collection of payments in respect of it and prescribe a person to collect them, and to provide for the making to such suppliers of payments out of the payments so collected and to make ancillary provisions; requirements as to the manner of exercise of the functions. Section 34 - The function of the Secretary of State by order to vary the minimum capacity of generating stations to which the section applies; functions of the Secretary of State to give directions to persons operating generating stations as regards fuel stocks etc., and ancillary powers. Section 35 - The functions of the Secretary of State to give a direction requiring a person authorised by licence to transmit electricity to give information or advice for purposes connected with section 34; and to give a direction requiring him to operate his system in a specified manner or to achieve specified objectives; requirement to lay directions before Parliament. Section 36 - The function of the Secretary of State to consent to construction, extension or operation of a generating station; functions of the Secretary of State by order to vary the minimum capacity above which the requirement for consent applies and to grant exemptions to the requirement for consent. Section 37 - The function of the Secretary of State to consent to an electric line being installed or kept installed above ground; function to prescribe by regulations cases where the requirement for consent does not apply. Section 39(1)(a) - The functions of the Secretary of State to consent to regulations made by the Director prescribing standards of performance in electricity supply services to tariff customers in individual cases. Section 58 - The function of the Secretary of State to give to persons licensed to transmit electricity directions to secure that neither that person nor any other person obtains unfair commercial advantage from possession of information; requirement upon the Secretary of State to publish a copy of directions; function of the Secretary of State to enforce compliance with such directions by civil proceedings.
(d) section 60;	The function for regulations made by the Secretary of State to provide for certain matters.
(e) section 61;	The powers to take certain proceedings concurrently, so far as enabling the Secretary of State to exercise his functions in the proceedings concurrently.
(f) Schedule 3, Part I;	Schedule 3, paragraph 1 - The function of the Secretary of State to authorise a licence holder to purchase compulsorily land required for a purpose connected with his activities. Schedule 3, paragraph 2(3) - The function of the Secretary of State by order to amend the period specified in paragraph 2(2)(b) (which relates to the Director's duties in cases where his consent to a compulsory purchase order is required). Schedule 3, paragraph 3(2) - The function of the Secretary of State to authorise a licence holder to purchase land compulsorily for the purpose of exchange of land.
(g) Schedule 3, Part III, paragraphs 15, 16, 17 and 20, including paragraph 11 of the First Schedule to the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 (c.42) as applied by those provisions;	The function of the Secretary of State, under paragraph 11 of the First Schedule, Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 as applied by Schedule 3 paragraphs 15, 16, 17 and 20, to certify certain matters, in which case special parliamentary procedure will not apply, and procedural requirements of that paragraph as so applied.
(h) Schedule 4, paragraphs 6, 8, 9 and 10(4)(b);	Schedule 4, para 6(3), (4) & (5) - The function of the Secretary of State to grant necessary wayleaves, and ancillary powers and duties. Schedule 4, para 8(4) & (5) - The functions of the Secretary of State in connection with temporary continuation of wayleaves. Schedule 4, paragraph 9(5) and (6) - The function of the Secretary of State to make orders relating to felling and lopping of trees etc. Schedule 4, paragraph 10(4)(b) - The function of the Secretary of State to consent to works for the purpose of ascertaining the nature of the subsoil.
(i) Schedule 5;	All functions of the Secretary of State under Schedule 5 (water rights for hydro-electric generating stations in Scotland), including power by order to authorise persons to abstract and divert and use water, and ancillary powers and duties.
(j) Schedule 8; and	All functions of the Secretary of State under Schedule 8 (consents under sections 36 and 37), including functions by regulations to make provision for determining fees and to provide for various procedural matters, and ancillary powers and duties.
(k) Schedule 9, paragraphs 3 and 5.	Schedule 9, paragraph 3(2) and (3) - All functions of the Secretary of State in considering proposals under sections 36 or 37 to have regard to certain amenity considerations and to avoid, so far as possible, causing injuries to fisheries. Schedule 9, paragraph 5 - The function and duties of the Secretary of State relating to the Fisheries Committee, Scotland.

The following functions have been made concurrently exercisable by a Minister of the Crown and the Scottish Ministers by the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 1999 (S.I. 1999/1750).

The European Communities Act 1972 (c.68), section 2(2) and the European Communities (Designation) Order 1988 (S.I. 1988/785).

The function of the Minister of Agriculture, Fisheries and Food, the Treasury and any one or more Secretaries of State to make provision for the purposes specified in section 2(2) in relation to measures relating to the requirement for an assessment of the impact on the environment of projects likely to have significant effects on the environment, so far as relating to the subject matter of Part III (Electricity Applications) of the Environmental Assessment (Scotland) Regulations 1988 (S.I. 1988/1221, amended by S.I. 1990/526, 1994/2012).

The Electricity Act 1989 (c.29), section 98(1) and (2).

The function of the Secretary of State to serve a notice on a licence holder or exempted person requiring him to supply statistical information.

The following functions have been made exercisable by a Minister of the Crown subject to a requirement for agreement of or consultation with the Scottish Ministers by the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 1999 (S.I. 1999/1750).

The Electricity Act 1989 (c.29), sections 5(1) and 6(1) and (2)

Section 5(1) - The functions of the Secretary of State after consultation with the Director by order to grant exemption from paragraph (a) or (c) of section 4(1) (which prohibits unlicensed generation or supply).

Section 6(1) - The functions of the Secretary of State after consultation with the Director to grant a licence authorising generation, transmission or supply of electricity, or to consent to the granting of such a licence by the Director, or to give general authority to the Director to grant such a licence.

Section 6(2) - The functions of the Secretary of State after consultation with the Director to grant a licence authorising any person to supply electricity to any premises specified or of a description specified in the licence, or to extend such a licence, or to consent to the Director doing these things, or to give general authority to the Director to do these things.

The following functions are included in the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) (No. 2) Order 2000(S.I. 2000/3253).

Electricity Act 1989 (c. 29) sections 32 and 32A¹⁴

Section 32 - The function of the Secretary of State, by order, to impose upon an electricity supplier a renewables obligation.

Section 32A - The function of the Secretary of State to include various matters in such an order.

¹⁴ Section 32 was substituted by section 62 of the Utilities Act 2000 and section 32A was added by section 63 of the Utilities Act 2000(c.27). They will come into effect when section 62 or, as the case may be, section 63 is commenced.



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