Section E5: Miscellaneous Transport Matters

Purpose and Effect

This Section reserves the transport of radioactive material, technical specifications for public passenger transport for disabled people, and regulation of the carriage of dangerous goods.

Details of Provisions

Reservation

This Section provides that the following are reserved matters:

(a)     Transport of radioactive material. Radioactive material is defined by reference to section 1(1) of the Radioactive Material (Road Transport) Act 1991 as material having a specific activity in excess of 70 kilobecquerels per kilogram or any lesser specific activity specified in an order made by the Secretary of State.

(b)     Technical specifications for public passenger transport for disabled persons including the subject-matter of:

i.     section 125(7) and (8) of the Transport Act 1985 which together require the Secretary of State to consult the Disabled Persons Transport Advisory Committee before issuing guidance as to measures with a view to making access to public transport services by road easier for disabled persons and making such transport better adapted to the needs of disabled people; and

ii.     Part V of the Disability Discrimination Act 1995 (public transport) which makes provision about standards of accessibility for the transport of disabled people by taxi, bus or train and sets out measures to require the adoption of such standards by the relevant operators;

(c)     Regulation of the carriage of dangerous goods.

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 F1: Social Security Schemes

Purpose and Effect

This Section reserves social security matters.

General

The reservation describes social security not in terms of benefits for specific purposes but in terms of the power and responsibilities which underlie any type of social security provision as follows:

(a)     the establishment and financing from central or local government expenditure of general or specific schemes of assistance to or in respect of individuals by way of benefits (which includes pensions, allowances, grants or loans) for social security purposes;

(b)     requiring persons (such as employers or individuals or local authorities) to set up or administer schemes for social security purposes or to make contributions or payments towards them and to keep records and supply information in connection with all aspects of scheme administration, including verification of claims and investigating fraud; and

(c)     the establishment of a liability for a person to maintain himself or another for social security and child support purposes.

The reservation has been cast in this way to make allowance for changes over time in the exact scope and coverage of the UK-wide social security system, and the way in which benefits are delivered. For example, in recent years some benefits previously provided directly by central government (such as sickness or maternity benefit) have been replaced by a structure of requirements on employers to make defined payments to their employees. Similarly some new benefits (such as Disability Living Allowance) have been established. The reservation, which needs to be read together with the definition of social security purposes in the interpretation paragraph, makes allowance for changes of this kind.

The provision of compensation for injury resulting from vaccination, as provided for by the Vaccine Damage Payment Scheme, which are paid through the same channels as social security, is also reserved.

The current law on social security covers the following matters, some of which are given as examples in the illustrations paragraph (which is not intended to be exhaustive of all the matters covered by the reservation):

(a)     National Insurance contributions and contributory National Insurance benefits such as the state retirement pension. The Secretary of State for Social Security has specific responsibility for the NI Fund;

(b)     other social security benefits of all kinds, including employment-related benefits (such as Job Seekers Allowance);

(c)     payments in respect of industrial accidents, injuries and diseases;

(d)     statutory sick pay and statutory maternity pay;

(e)     the liability to maintain oneself, a spouse and dependent children under 19, or any person in respect of whom an undertaking to maintain has been made under the Immigration Act 1971;

(f)     grants and loans for special needs payable through the Social Fund and the Independent Living Funds;

(g)     the administration of the social security and employment benefits system whether carried out by the Department of Social Security, other government departments or others;

(h)     decision-making and appeals arrangements;

(i)     the funding of resettlement provision for persons without a settled way of life under section 30 of the Jobseekers Act 1995;

(j)     payments under the vaccine damage payments scheme;

(k)     the recovery of benefits where compensation is paid in consequence of accident, injury or disease and the recovery of benefits from earnings, and deductions from benefits to meet an individual's debts; and

(l)     public bodies whether tribunal, executive, advisory or regulatory dealing with these issues.

Section 110 provides the Secretary of State (for Social Security) the power to take account of the implications of varied Scottish rates of income tax (as may be provided for under Part IV of the Scotland Act) for social security, child support and pensions purposes and to determine whether a person is to be treated as a Scottish taxpayer and to specify what shall be treated as the Scottish rate of tax in any year of assessment. The purpose of these provisions is primarily to ensure that benefit decisions can be made promptly without uncertainty over the appropriate tax rate to apply where tax is relevant to benefit entitlement.

Parliamentary Consideration

Details of Provisions

First Reservation

This reserves legislative competence in respect of schemes supported from central or local funds which provide assistance for social security purposes to or in respect of individuals by way of benefits. This relates to social security benefits (such as retirement pension, income support or housing and council tax benefit) which are directly administered and funded by central or local government in whole or in part. The reservation covers all aspects of the establishment, financing and administration of such benefits and activity connected with them (such as, decision-making and appeals and anti-fraud activity). The Scottish Parliament does not have competence to set up or finance benefit schemes where these are for social security purposes (for example, by seeking to provide benefits for social security purposes to people who are not entitled to claim certain social security benefits), but the reservation does not prevent it from providing benefits or allowances for other purposes within its competence, for example education maintenance grants or fosterage allowances. A non-exhaustive definition of social security purposes is in the interpretation paragraph.

Second Reservation

This reserves competence to require persons (including companies and authorities) to establish and administer schemes for social security purposes, to make payments to or in respect of those schemes and to keep records and supply information in connection with them. The reservation is intended to cover activities to do with National Insurance, such as the requirement on individuals to pay and employers to collect National Insurance contributions; and to cover those types of social security provision which operate through requirements on employers or others to make payments in accordance with a regulatory framework (such as statutory sick pay and statutory maternity pay) rather than by direct central or local government delivery. The funding of social security schemes and the requirement for others such as local authorities to provide them (e.g. housing and council tax benefit) is also reserved.

Social security legislation also imposes requirements on employers to make payments of a minimum amount of sick pay or maternity pay in prescribed circumstances. This reservation also covers such arrangements.

Third Reservation

This reserves legislative competence over the circumstances in which a person is liable to maintain himself or another for the purposes of social security legislation and the Child Support Acts 1991 to 1995. Social security legislation places a legal duty on an individual to maintain himself and his spouse and dependant children or any person in respect of whom he has given an undertaking to maintain under the Immigration Act 1971. This requirement applies generally but it only becomes relevant when a person makes a claim to an income related social security benefit. When this happens the Secretary of State may seek an order from the sheriff in Scotland for the recovery of the benefit from the liable person. So far as the maintenance of a dependant child is concerned, that legislation is largely superseded by the Child Support Acts 1991 and 1995 (the subject-matter of which is separately reserved under Section F2).

Fourth reservation

This reserves the subject-matter of the Vaccine Damage Payment Scheme. The Vaccine Damage Payment Scheme provides for compensation for injury resulting from vaccination. Vaccine damage payments are determined and paid through the same channels as social security.

Illustrations of reservation

The illustrations provide a non-exhaustive list of some of the types of matter falling within the reservation:

(a)     National Insurance. This covers National Insurance contributions as well as contributory National Insurance benefits such as the state retirement pension;

(b)     Social Fund. This covers grants and loans for special needs;

(c)     administration and funding of housing benefit and council tax benefit;

(d)     recovery of benefits paid because of accident, injury or disease from persons paying damages and deductions from benefits for the purpose of meeting an individual's debts;

(e)     sharing information between government departments for the purposes of the enactments relating to social security; and

(f)     making decisions for the purposes of schemes mentioned in the reservation and appeals against such decisions.

Exceptions from reservation

This provides for the subject-matter of following enactments which might otherwise fall within the reservation, but which relate to devolved matters, to be excepted from the reservation:

(a)     Part II of the Social Work (Scotland) Act 1968, which provides for the promotion of social welfare by local authorities. This includes provision in exceptional circumstances for payments to persons in need and other social welfare services such as the provision of home-help and residential nursing accommodation;

(b)     section 2 of the Chronically Sick and Disabled Persons Act 1970, which relates to the provision of various welfare services by local authorities to persons resident in their area;

(c)     section 50 of the Children Act 1975, which gives local authorities the power to make payments towards maintenance for children;

(d)     section 15 of the Enterprise and New Towns (Scotland) Act 1990 (industrial injuries benefit), which deals with payments to persons undergoing training who have injured themselves at work; and

(e)     sections 22, 29 and 30 of the Children (Scotland) Act 1995, which provide for payments to be made or other assistance to be provided to children or their families. Section 22 imposes a duty on local authorities to safeguard and promote the welfare of children who are in need by providing a range and level of services appropriate to their needs. In exceptional circumstances cash payments can be made. Section 29 imposes a duty on local authorities to assist young persons, who they formerly looked after, at school leaving age or subsequently through the provision of advice or other assistance including financial assistance. Section 30 authorises local authorities to give financial assistance to such young persons to meet the cost of education and training.

Interpretation

For the purposes of the reservation, "benefits" includes pensions, allowances, grants, loans and any other form of financial assistance. This ensures that all the various types of financial assistance provided as part of social security are covered.

Providing assistance for social security purposes to or in respect of individuals includes, among other things, providing assistance to or in respect of individuals:

(a)     who qualify by reason of old age, survivorship, disability, sickness, incapacity, injury, unemployment, maternity or the care of children or others needing care;

(b)     who qualify by reason of low income; or

(c)     in relation to their housing costs or liabilities for local taxes. This includes all the main purposes of social security provision. It also includes assistance in relation to housing costs or liabilities for local taxes, as described above.

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 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 following functions have been included in the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 2000 (S.I. 2000/1563).

S.I. 1999/1750 also transferred non-statutory functions in relation to the provision of premises and support staff for the purposes of carrying out the functions of the Social Security Commissioners.

Section F2: Child Support

Purpose and Effect

This Section reserves the subject-matter of the Child Support Acts 1991 and 1995.

General

The provisions of the Child Support Acts give the Secretary of State for Social Security a duty to determine whether there is a liability to pay maintenance in respect of a child not living with both parents, to require an application for maintenance to be made for the child (when benefit is claimed), to assess and collect any amounts due and to enforce payment. In order to give effect to these responsibilities, the Secretary of State is given powers where necessary to establish or assume paternity. The Acts limit the jurisdiction of the courts to make individual decisions on child maintenance in circumstances covered by the Acts. The Acts apply - and supersede Scots family law - where a person responsible for a child who is not living with both parents makes a claim to an income-related benefit and in certain other limited circumstances. In Scotland the Acts also permit an application for maintenance by the child personally, if aged 12 or more.

The Scottish Parliament is, however, able to legislate on issues concerning the maintenance of dependent children, as part of Scots family law, in circumstances or cases which are not covered by the subject-matter of the Child Support Acts. For example, aliment is excepted from the reservation because it is that part of Scots private law which deals with the obligations of one person to pay maintenance in respect of children and others. The Parliament is not able to legislate, for instance, to remove or exempt child maintenance provision from the jurisdiction of the Acts. Nor can the Parliament establish different formulae for the calculation of maintenance for child support purposes under the Acts as they apply in Scotland. But the Parliament could for example establish general criteria for the presumption of paternity, since this is a matter about which the Child Support Act provisions rest on general civil law.

Parliamentary Consideration

Details of Provisions

The reservation refers to the subject-matter of the Child Support Acts 1991 and 1995.

Exception

The subject-matter of sections 1 to 7 of the Family Law (Scotland) Act 1985, which deal with aliment, is excepted from the reservation. Without a specific exception it may have been doubtful whether or not aliment was a reserved matter. Aliment, as explained above, is that part of Scots private law which deals with the obligations of one person to pay maintenance in respect of children and others. Without the specific exception, the reservation of the Child Support Acts may have restricted unduly the Scottish Parliament's competence to legislate in relation to the law on aliment because those Acts confer powers on the Secretary of State to collect the Scottish form of maintenance such as aliment, as well as child support maintenance. However, the reservation of child support does not prevent the Scottish Parliament from having competence to legislate about aliment.

The interpretation section ensures that if section 30(2) of the Child Support Act 1991, which deals with the collection of payments other than child support maintenance, is not in force on the principal appointed day (1 July 1999), then it is nevertheless to be treated as if it were a part of the subject-matter of the 1991 Act and therefore a reserved matter. Section 30(2) was not in force on 1 July 1999.

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).

S.I. 1999/1750 also transferred non-statutory functions in relation to the provision of premises and support staff for the purposes of carrying out the functions of the Child Support Commissioners appointed under section 22 of the Child Support Act 1991.

Section F3: Occupational and Personal Pensions

Purpose and Effect

This Section reserves occupational and personal pension schemes, including public service pension schemes.

General

This Section reserves matters relating to occupational and personal pensions including public service pensions.Most of the statutory provisions concerning occupational and personal pensions are contained in the Pension Schemes Act 1993 and Part I of the Pensions Act 1995. Section 1 of the 1993 Act provides definitions of "occupational pension scheme", "personal pension scheme" and "public service pension scheme" which are applied with modifications here. Section 126(1) makes clear that these definitions apply but as if the reference to employed earners in the definition of personal pension schemes were to any earners.

Occupational pensions are usually payable under trusts set up by an employer, or more rarely a group of employers, in respect of their employees. The trust deed sets out the rules as to how the scheme is to operate, e.g. the rates of contributions and benefits, who is liable to pay the contributions and when and to whom benefits are payable. Some employers operate a number of separate schemes, some a single scheme for all their employees, while others may provide a scheme for only certain of their employees e.g. by restricting pension arrangements to executives or salaried staff or to employees who have worked for the company for at least 2 years. The occupational pension scheme will be administered by the trustees appointed under the trust deed in accordance with the rules as to the operation of the scheme. The scheme rules must, however, comply with legislative requirements and can be overridden when a conflict arises.

Public service pension schemes are a particular category of occupational pension schemes. They are generally established under legislation and cover a wide range of public service employees. A definition of public service schemes is set out in section 1 of the Pension Schemes Act 1993.There is no statutory obligation on an employer in the United Kingdom to establish an occupational pension scheme or to participate in a scheme established for an industry in which he operates. However, if an employer or group of employers sets up such a scheme then certain statutory requirements must be met. These fall into three main headings:

(a)     requirements affecting the administration of schemes, and the duties of trustees and professional advisors;

(b)     financial management of schemes, including rules on investments, contributions and solvency, and the conditions under which schemes can contract out of the State Earnings Related Pension Scheme; and

(c)     the right of individual scheme members, including preservation of the pension rights of people leaving the scheme before pension age, the transfer of rights from one non-State pension scheme to another, the indexation of rights before and after pension age, requirements for the equal treatment of men and women and rules on the disclosure of information to scheme members.

In addition, most schemes seek to comply with conditions for tax approval, which determine whether the scheme can benefit from advantageous tax treatment, particularly in relation to income and corporation taxes.

Personal pension schemes are established by financial institutions, principally insurance companies. They are essentially contracts between individuals and pensions providers, though groupings of individual pensions may be administered together for convenience. Contributions, which may also include contributions from an employer, are paid into the scheme and invested. Personal pension schemes attract a range of tax concessions and their marketing is regulated under the Financial Services Act 1986.

Provision about pensions payable to any person is also reserved except in relation to former members (and office-holders) of the Scottish Parliament and Ministers. Also excepted from the reservation is legislative competence in relation to allowing or requiring any devolved public body to provide for pensions for its members or staff. In all these cases the provision made will be subject to the general requirements of the Pensions Acts.

The reservation of matters relating to occupational and personal pensions interacts with areas of Scots private law which are being devolved, for example trust law and family law. In particular, so far as family law is concerned, Scots law has, since 1985, required pension rights accrued during the marriage to be taken into account by a court making financial provision on divorce. The law relating to what financial provision is made on divorce and the question as to whether and to what extent pension rights are taken into account by the court will in general be a matter of Scots law within the legislative competence of the Scottish Parliament.

However, although the Scottish Parliament has legislative competence over Scottish trust law and family law, its competence will be subject to the reservation in respect of pensions. In particular, the obligations of the trustees or managers of occupational and personal pension schemes are a reserved matter.

Section 12A of the Family Law (Scotland) Act 1985 (as amended by section 167 of the Pensions Act 1995) allows the court to order the trustees or managers of a pension scheme to pay the whole or part of a lump sum due to or in respect of a member to his or her divorcing spouse when it becomes due. These are known as earmarking/attachment rules. Parts III and IV of, and Schedules 3 to 6 and part of Schedule 12 to, the Welfare Reform and Pensions Act 1999 (c.30) deal with pension sharing on divorce. They also amend the earmarking provisions in section 12A of the 1985 Act. Accordingly, although the Scottish Parliament can legislate, for example, to require pension rights accrued during the marriage to be taken into account on divorce, it could not legislate to impose obligations upon trustees or managers of occupational or personal pension schemes to earmark or make provision for pension sharing.

This effect is achieved partly by this reservation and partly by paragraph 2 of Schedule 4 to the Scotland Act, as amended by the Scotland Act 1998 (Modifications of Schedule 4) Order 2000 (S.I. 2000/1831). Paragraph 2(3),as so amended, ensures that the Scottish Parliament cannot modify the obligations of trustees or managers in relation to occupational or personal pension schemes or of persons responsible for other pension arrangements in relation to the sharing of rights under pension arrangements on divorce. See that paragraph for more details.