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Exceptions
As amended by S.I. 2000/3252 there are four main exceptions from the reservation:
(a) Grants so far as relating to railway services. However, certain grant provisions noted below continue to be reserved by way of exceptions to the general exception. This means that the Scottish Parliament is able to legislate about capital and revenue grants for services relating to the carriage of passengers, stations, maintenance facilities and the rail network itself. Legislative and executive competence includes, without the need for express mention, powers in relation to special grants to local authorities under section 108A of the Local Government Finance Act 1992 and grants for public passenger transport services under section 56 of the Transport Act 1968, where the grants relate to railway services.
The matters which are not within this exception and thus continue to be reserved are:
i the subject-matter of section 63 of the Railways Act 1993. This section provides for government financial assistance where railway administration orders are made;
ii grants in relation to railway services as defined in section 82(1)(b) of the Railways Act 1993 (carriage of goods by railway); and
iii the subject-matter of section 136 of the Railways Act 1993. This section deals with compensation payable to a passenger service operator who is required to run a passenger service which would not be commercially viable in accordance with a public service obligation under Council Regulation (EEC) 1191/69 as amended.
(b) Imposing requirements about the preparation and submission of strategies relating to the provision of rail services on Scottish public authorities with mixed functions relating to such services. The purpose of this exception which was added by S.I. 2000/3252, was to enable the Scottish Parliament to legislate in the Transport (Scotland) Act 2001 (asp 2) to empower the Scottish Ministers to require Scottish public authorities with mixed functions to produce joint transport strategies specifically covering the provision of rail services.
(c) The transfer of functions of passenger transport executives or passenger transport authorities relating to the provision and regulation of rail services conferred by Part II of the Transport Act 1968(c.73) and sections 32 to 36 of the Railways Act 1993(c.43) to, and the allocation of such functions among, Scottish public authorities (other than cross-border public authorities and public authorities exercising functions solely in relation to reserved matters) which may be set up wholly or mainly to exercise functions relating to transport. The purpose of this exception, which was added by S.I. 2000/3252, was to enable the Scottish Parliament to legislate in the Transport (Scotland) Act 2001 (asp 2) to confer on, or allocate among, certain Scottish public authorities the same rail responsibilities as any other passenger transport executive. It does not, however, enable the Scottish Parliament to create new types of passenger transport executive rail functions.
Executive Devolution
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 Railways Act 1993 (c.43):(a) section 74(1) and (3); | Section 74(1) - The function of receiving from the Rail Regulator his annual report on his activities during each financial year and the activities of the Monopolies and Mergers Commission during the same year so far as relating to references made to the Commission by the Regulator.
Section 74(3) - The function of the Secretary of State to comply with the duty to lay before Parliament a copy of every report made by the Rail Regulator under section 74(1) and to arrange for publication of every such report.
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(b) section 75(1) and (2); | Section 75(1) - The function of the Secretary of State to receive from the Director of Passenger Rail Franchising his annual report of his activities during each financial year and the general performance of franchisees during that year in carrying out their functions under franchise agreements.
Section 75(2) - The function of the Secretary of State to comply with the duty to lay before each House of Parliament a copy of every report made to him by the Franchising Director under section 75(1) and to arrange for the publication of every such report.
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| The function of the Secretary of State to receive a report of the findings of the Central Rail Users' Consultative Committee where it has investigated any matter.
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| The function of the Secretary of State of receiving the annual report of the Central Rail Users Consultative Committee and the duty to lay a copy of those reports before each House of Parliament.
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| Section 137(1) - The function of the Secretary of State to enter into agreements with goods service operators for the making of payments in respect of track access charges.
Section 137(2) - The function of the Secretary of State to be satisfied that certain benefits are likely to result from the provision of services under an agreement.
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The Railways Act 1993 (c.43)(contd.): |
Section 137(3) - The function of the Secretary of State for making payments under agreements entered into under this section shall be paid out of money provided by Parliament.
Section 137(4) - The definition of "goods service operator" and "track access charge".
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(f) section 139(1), (2), (3), (5) and (6). | Section 139(1) - The function of the Secretary of State to make grants towards the provision of facilities for or in connection with the carriage of goods by railway or the loading or unloading of such goods.
Section 139(2) - The function of the Secretary of State to be satisfied as to the matters set out in paragraphs (a) to (c).
Section 139(3) - The function of the Secretary of State to take a view as to the nature and purpose of the expenditure to be grant aided.
Section 139(5) - The function of the Secretary of State to consider an application under that subsection and to require supporting evidence with respect to the matters set out in paragraphs (a) to (c).
Section 139(6) - The function of the Secretary of State to impose terms and conditions.
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Section E3: Marine Transport
Purpose and Effect
This Section reserves certain matters relating to international and UK shipping including marine safety and security, navigational rights, regulation of the British merchant fleet and all matters relating to the employment of seafarers.
Parliamentary Consideration
| Stage | Date | Column |
| CC | 31-Mar-98 | 1067 |
| LC | 23-Jul-98 | 1141 |
| LC | 23-Jul-98 | 1145 |
Details of Provisions
Reservation
In general, matters relating to marine transport are reserved where there is a need for consistent provision across the UK, for example in order to comply with international obligations or agreements (such as those relating to vessel safety or the employment of seafarers) or for practical reasons (e.g. regarding coastguards and lighthouses).
The Section provides that the subject-matter of the following Acts are reserved matters:
(a) the Coastguard Act 1925. This Act defines the activities and powers of HM Coastguard;
(b) the Hovercraft Act 1968, except so far as relating to the regulation of noise and vibration caused by hovercraft. This is to ensure that matters relating to marine safety in relation to hovercraft are reserved;
(c) the Carriage of Goods by Sea Act 1971. This Act incorporates into UK law international agreements (the Hague-Visby rules) which set out the circumstances in which the carrier or the cargo owner are liable for the loss or damage of goods at sea;
(d) section 2 of the Protection of Wrecks Act 1973 (prohibition on approaching dangerous wrecks). This deals with the designation of protected areas around dangerous wrecks;
(e) the Merchant Shipping (Liner Conferences) Act 1982. This Act makes provision for the exemption from normal competition regulations of 'liner conferences', i.e. cartels of deep sea container shipping operators concerned to prevent over-capacity and damaging price competition on certain specified routes. The Act also incorporates into UK law the United Nations Convention on a Code of Conduct for Liner Conferences;
(f) the Dangerous Vessels Act 1985. This deals with the powers of harbour masters and the Secretary of State in relation to dangerous vessels;
(g) the Aviation and Maritime Security Act 1990, other than Part I (Aviation Security). This Act covers matters of maritime security;
(h) the Carriage of Goods by Sea Act 1992. This Act makes provision about bills of lading and deals with rights and liabilities under shipping contracts;
(i) the Merchant Shipping Act 1995. This Act deals with a wide range of marine matters. It specifies what constitutes British ships, and deals with their registration. It also deals with such matters as masters and seamen in seagoing ships, marine safety, fishing vessels, marine pollution from ships, liability for oil pollution from ships, lighthouses, salvage and wreck, and enforcement officers;
(j) the Shipping and Trading Interests (Protection) Act 1995. This Act gives powers in relation to measures to be taken in response to discriminatory foreign action against UK shipping and trade interests. This reservation is consistent with the reservation of the general area of protection of trading interests (Section C15); and
(k) sections 24 and 26 to 28 of the Merchant Shipping and Maritime Security Act 1997. These sections make provision about wrecks, piracy and international maritime bodies.
The following matters are also reserved:
Navigational rights and freedoms. These derive from international law. Coastal states, such as the UK, have a duty not to impose requirements on foreign ships which would have the practical effect of denying or impairing these rights or freedoms. Uniform treatment of passing shipping traffic all around the UK is necessary to ensure compliance with the UK's international obligations.
Financial assistance for shipping services which start or finish or both outside Scotland. With one exception about bulk freight services (noted below), the Scottish Parliament is not able to legislate about financial assistance to shipping services between Scotland and other parts of the UK or Europe since differing approaches might distort the market for shipping services. The Scottish Parliament is, however, able to legislate about financial assistance to shipping services operating wholly within Scotland.
Exceptions
The following matters are excepted from the reservation:
Ports, harbours, piers and boatslips, except in relation to the matters reserved by virtue of paragraph (d), (f), (g) or (i). The Scottish Parliament therefore has legislative competence over ports, harbours, piers and boatslips in Scotland. The exception does not, however, extend to the reserved matters of maritime security and safety.
Regulation of works which may obstruct or endanger navigation. This exception gives the Scottish Parliament legislative competence over the regulation of works which may obstruct or endanger the exercise of navigational rights and freedoms. The general reservations relating to oil and gas (Section D2) and telecommunications (Section C10) mean, however, that consents for works related to those industries will be reserved matters.
The subject-matter of the Highlands and Islands Shipping Services Act 1960 in relation to financial assistance for bulk freight services. The 1960 Act allows for financial assistance to shipping services serving the Highlands and Islands from any port of embarkation. The exception allows the Scottish Parliament, to continue to subsidise bulk freight shipping services between the Highlands and Islands and locations outside Scotland which are necessary for the social and economic well-being of island communities.
Executive Devolution
The following functions were included in the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 1999 (S.I. 1999/1750), as amended by S.I. 2000/1563.
The Merchant Shipping (Formal Investigations) Rules 1985 (S.I. 1985/1001), rule 4(1) 15 |
The function of the Secretary of State to appoint assessor
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The Merchant Shipping (Section 63 inquiries) Rules 1997 ( S.I. 1997/347), rule 5(1) |
The function of the Secretary of State to appoint assessor
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15 This entry was omitted as from 16 June 2000 by Article 6 of S.I. 2000/1563.
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 Food and Environment Protection Act 1985 (c.48), sections 5, 6, 7 and 10(1) and Schedule 3.
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Section 5 - The functions of the Secretary of State as licensing authority in relation to deposits of substances or articles in the sea or under the sea bed, the scuttling of vessels, loading with a view to such deposit and towing or propelling with a view to scuttling.
Section 6 - The functions of the Secretary of State as licensing authority in relation to incineration of substances or articles at sea or loading for that purpose.
Section 7 - The function of the Ministers of making orders to exempt operations from the requirement to be licensed.
Section 10(1) - The function of carrying out operations to protect the marine environment.
Schedule 3 - The functions of the Secretary of State as licensing authority of dealing with representations concerning the refusal to grant, the variation or revocation of, or the provisions contained in, a licence.
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The Merchant Shipping Act 1995 (c.21), section 10(2)(f). |
The function of the Secretary of State, by regulation, to make provision for and in connection with the registration of a fishing vessel as British ships (section 10(2)(f), provide for regulations to be made with respect to (among other matters) the marking of ships registered or to be registered, including marks for identifying the port to which a fishing vessel is to be treated as belonging).
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The Lord Advocate and the Solicitor General for Scotland continue to be Commissioners for the Northern Lighthouse Board.
Section E4: Air Transport
Purpose and Effect
This Section reserves the regulation of aviation and air transport (including air safety and security) and the arrangements for compensation and repatriation of passengers on an operator's insolvency. It was amended by S.I. 2000/3252.
Parliamentary Consideration
| Stage | Date | Column |
| CC | 31-Mar-98 | 1067 |
Details of Provisions
Reservation
The regulation of aviation and air transport is a reserved matter. That includes the subject-matter of the following Acts:
(a)-(c) the Carriage by Air Act 1961; the Carriage by Air (Supplementary Provisions) Act 1962; the Carriage by Air and Road Act 1979 (so far as it relates to carriage by air).
These three Acts implement the provisions of the Warsaw Convention (as amended at the Hague and Montreal) which applies to all international carriage by aircraft of persons, baggage or cargo for reward;
(d) the Civil Aviation Act 1982. This Act deals with such matters as the constitution and functions of the Civil Aviation Authority, aerodromes, the regulation of civil aviation, aircraft and related matters;
(e) the Aviation Security Act 1982. This Act deals with offences against the safety of aircraft and the protection of aircraft, aerodromes and air navigation installations against acts of violence;
(f) the Airports Act 1986. This Act deals with the transfer of airport undertakings of local authorities, the regulation of the use of airports and the economic regulation of airports, the status of airport operators as statutory undertakers and related matters; and
(g) sections 1 and 48 of the Aviation and Maritime Security Act 1990. These sections relate to endangering safety at aerodromes and powers in relation to certain aircraft.
In addition, arrangements to compensate and repatriate passengers where an air transport operator becomes insolvent are reserved. At present the non-statutory Air Travel Trust Fund, which operates in conjunction with the Air Travel Organisers' Licence Scheme, provides funds for the repatriation and compensation of passengers where an air transport operator becomes insolvent.
Exceptions
The following exceptions from the reservation are made, as amended by S.I. 2000/3252:
(a) The subject-matter of the following sections of the Civil Aviation Act 1982:
i. section 25 (the power of the Secretary of State to provide aerodromes);
ii. section 30 (the provision of aerodromes and facilities at aerodromes by local authorities);
iii. section 31 (power to carry on ancillary business in connection with local authority aerodromes);
iv. section 34 (financial assistance for certain aerodromes);
v. section 35 (facilities for consultation at certain aerodromes);
vi. section 36 (health controls at certain aerodromes); and
vii. sections 41 to 43 and 50 (powers in relation to land) where land is to be or was acquired for airport development or expansion.
(b) The subject-matter of Part II and sections 63, 64 and 66 of the Airports Act 1986. These relate to the transfer of airport undertakings of local authorities, airport bylaws, and functions of operators of designated airports in respect of abandoned vehicles.
(c) The subject-matter of sections 59 and 60 (acquisition and disposal of land) of the Airports Act 1986 where land is to be or was acquired for the purpose of airport development or expansion; and
(d) Imposing requirements about the preparation and submission of strategies relating to the provision of air services on Scottish public authorities with mixed functions relating to such services. The purpose of this exception which was added by S.I. 2000/3252, was to enable the Scottish Parliament to legislate in the Transport (Scotland) Act 2001 (asp 2) to empower the Scottish Ministers to require Scottish public authorities with mixed functions to produce joint transport strategies specifically covering the provision of air services.
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 Civil Aviation Act 1982 (c.16) sections 38(2), 42(1), 50(2), 78, 79(1), 80 and 88(10) and (11). |
Section 38(2) - The function of the Secretary of State to make an order directing specified aerodrome authorities to fix charges for the use of an aerodrome by reference among other things to any fact or matter relevant to aircraft noise or the extent or nature of any inconvenience resulting from such noise; and in such order to give directions as to the manner in which charges are to be fixed.
Section 42(1) - The function of the Secretary of State to authorise the Civil Aviation Authority to acquire land compulsorily in Scotland.
Section 50(2) - The function of the Secretary of State to give written authorisation to any person to enter upon land to make a relevant survey where section 50 applies.
Section 78(1) - The function of the Secretary of State to publish a notice imposing a duty on an aircraft operator to comply with requirements specified in the notice so as to limit or mitigate the effect of noise and vibration connected with the taking off or landing of an aircraft at an aerodrome.
Section 78(2) - The function of the Secretary of State to take a view that requirements mentioned in subsection (1) have not been complied with, to afford to the aircraft operator an opportunity of making representations and to consider those representations and thereafter to give the person managing the aerodrome concerned a direction requiring that facilities for using the aerodrome are withheld to a specified extent from the aircraft operator.
Section 78(3) - The function of the Secretary of State, by publishing a notice, to prohibit specified aircraft from taking off or landing at an aerodrome, to specify the maximum number of occasions on which specified aircraft may take off or land and to determine the persons who are to be entitled to make the appropriate arrangements for aircraft of which they are the operators.
Section 78(4)(a) - The function of the Secretary of State, by notice, to specify the circumstances in which the take off or landing of an aircraft can be disregarded for the purposes of a notice under subsection (3).
Section 78(5)(a) - The function of the Secretary of State to comply with the duty to consult before making a determination in respect of an aerodrome in pursuance of subsection (3)(c).
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The Civil Aviation Act 1982 (c.16) sections 38(2), 42(1), 50(2), 78, 79(1), 80 and 88(10) and (11) (contd.). |
Section 78(5)(c) - The function of the Secretary of State to authorise any person to detain an aircraft where it appears to the Secretary of State that it is about to take off in contravention of any prohibition or restriction imposed in pursuance of subsection (3).
Section 78(5)(f) - The function of the Secretary of State, by notice to the person managing an aerodrome, to determine that a particular occasion or series of occasions on which aircraft take off or land at an aerodrome are to be disregarded for the purposes of a notice under subsection (3).
Section 78(6) - The function of the Secretary of State to give to a person managing a designated aerodrome appropriate directions so as to avoid, limit or mitigate the effect of noise and vibration connected with the take off or landing of an aircraft.
Section 78(7) - The function of the Secretary of State to apply for an order of the Court of Session under section 45(b) of the Court of Session Act 1988.
Section 78(8) - The function of the Secretary of State to make an order after consultation requiring a person managing a designated aerodrome to provide specified noise measuring equipment, to produce specified reports and to allow inspection of the equipment.
Section 78(8) - The function of the Secretary of State also under this subsection of receiving the specified reports and authorising any person to inspect noise measuring equipment.
Section 78(9) - The function of the Secretary of State to afford to a person upon whom a duty has been imposed by subsection (8) an opportunity to make representations with respect to any failure to perform that duty, to consider any such representations and thereafter to take appropriate steps to remedy the failure and to recover in court any expenses incurred by the Secretary of State.
Section 78(11) - The function of the Secretary of State after consultation to make an order repealing any provision of a local Act which he considers is unnecessary.
Section 78(12) - The function of the Secretary of State to consider what incidental or supplementary provisions may be appropriate in respect of any notice published in pursuance of subsections (1), (3) or (4) and the function also of varying or revoking an existing notice.
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The Civil Aviation Act 1982 (c.16) sections 38(2), 42(1), 50(2), 78, 79(1), 80 and 88(10) and (11) (contd.).
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Section 79(1) - The function of the Secretary of State to make a scheme requiring the person managing an aerodrome to make grants towards the insulation against noise of such classes of buildings as the Secretary of State thinks fit.
Section 80 - The function of the Secretary of State to designate an aerodrome for the purposes of sections 78 and 79.
Section 88(10) - The function of the Secretary of State to make an order designating an airport for the purposes of section 88.
Section 88(11) - The function of the Secretary of State after consultation to make an order repealing any enactment in a local Act which appears to him to be unnecessary.
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The Airports Act 1986 (c.32), sections 37(5), 65(2) and (6) and 68(1). |
Section 37(5) - The function of the Secretary of State after consultation to determine that an airport should cease to be subject to economic regulation under Part IV of the Act.
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| Section 65(2) - The function of the Secretary of State to make an order directing that the road traffic enactments (as defined in subsection (6)) shall have effect in relation to an airport subject to such modifications as appear to him necessary or expedient for the purposes set out in paragraphs (a) and (b).
Section 65(6) - The function of the Secretary of State to make an order designating an airport for the purposes of Section 65.
Section 68(1) - The function of the Secretary of State after consultation to make an order requiring an airport operator to provide maintain and operate equipment for monitoring aircraft movement and to make specified reports and to permit an authorised
person to inspect the equipment. In addition, the function of the Secretary of State under paragraph (b) to receive specified reports and to authorise any person to inspect equipment.
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