Parliamentary Consideration

Details of Provisions

First reservation

This provides that the regulation of occupational pension schemes and personal pension schemes, including the obligations of trustees and managers of pension schemes, is a reserved matter.

"Occupational pension scheme", "personal pension scheme" and "public service pension scheme" are defined in section 126(1) as having the meanings given by section 1 of the Pension Schemes Act 1993 but as if the reference to employed earners in the definition of personal pension schemes were to any earners.

Second reservation

This reserves provision about pensions payable to, or in respect of, any persons. This covers matters such as the payment of pensions, the manner of provision and contribution in respect of pensions. This is subject to an exception which permits the Scottish Parliament to make provision about pensions payable to or in respect of:

(a)     the persons referred to in section 81(3) of the Act. That section provides that the Parliament may make provision (whether by an ASP or a resolution) for the payment of pensions to ex- members and office-holders of the Parliament or of the Scottish Executive. The reservation should not prevent the Parliament making such provision; and

(b)     in a Scottish public authority with mixed functions or no reserved functions (as defined in Part III of Schedule 5), persons who are or have been a member of the public body, the holder of a public office or a member of the staff of the body, holder or office. This would permit the Parliament, for example, when legislating to establish a new Scottish public authority, to require it to provide pensions for its members and staff. It also enables any ministerial functions in relation to the pensions of existing Scottish public authorities to transfer to the Scottish Ministers.

Third reservation

This reserves the subject-matter of the Pensions (Increase) Act 1971, which provides for index-linking of a wide range of public service pensions.

Fourth reservation

This reserves schemes for payment of pensions which are listed in Schedule 2 to the Pensions (Increase) Act 1971. This includes pension schemes for local authorities, police, fire, teachers and the NHS. Many of the functions in relation to these schemes have, however, been executively devolved to the Scottish Ministers. Two exceptions are made from the reservation of these schemes which tie in with the exceptions mentioned under the Second Reservation above. These are for pensions schemes for MSPs and members of the Scottish Executive provided by the Parliament under section 81 and the pension schemes for employees of Scottish Enterprise and Highlands and Islands Enterprise, which are the only Scottish non-departmental public bodies whose pensions are listed in the 1971 Act.

Fifth reservation

This reservation covers, as regards classes of persons to whom public service pension schemes apply, statutory provision for compensation for loss of office or employment, for loss or diminution of emoluments, or employment being affected by constitutional changes in an overseas territory, and also covers as regards these classes of persons statutory provision for death or injury benefit. The reservation will accordingly cover the statutory compensation schemes which exist for public employees such as local government employees, teachers and NHS employees who lose their employment or suffer diminution of emoluments as a result, for instance, of redundancy or reorganisation.

Interpretation

Pensions are defined as including gratuities and allowances.

Executive devolution

The Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 1999 (S.I. 1999/1750) provides for widespread executive devolution in the area of public service pensions, reflecting the former responsibility of the Secretary of State for Scotland for such pensions. The powers of the Secretary of State under the Superannuation Act 1972 to make regulations establishing and maintaining pension schemes for local government employees, teachers and NHS employees have been transferred to the Scottish Ministers, who thus have policy responsibility for the content of these schemes. In the case of teachers and NHS employees the consent of the Treasury to the making of the regulations is still required as before. The powers of the Secretary of State under the Fire Services Act 1947 and the Police Pensions Act 1976 to make subordinate legislation governing pensions of fire-fighters and police officers have similarly been transferred to the Scottish Ministers. The power of the Secretary of State under section 24 of the Superannuation Act 1972 to make regulations providing for compensation for local government employees, teachers, NHS employees, fire-fighters and police officers have also been transferred to the Scottish Ministers, who thus have policy responsibility for such compensation. The function under section 4 of the Small Landholders (Scotland) Act 1911 has also been transferred, as it is used in practice to provide for pensions. The function of paying remuneration to members of a Pensions Appeal Tribunal (para 2 of the Schedule to the Pensions Appeal Tribunals Act 1943) is also executively devolved.

Apart from these powers to make subordinate legislation, all executive powers of the Secretary of State under primary or subordinate legislation in respect of pensions or compensation for local government employees, teachers, NHS employees, fire-fighters or police officers and functions exercisable in respect of the Firemen's Pension Scheme and the Police Pensions Appeal Tribunals have been transferred to the Scottish Ministers.

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 Pensions Appeal Tribunal and of funding of payments made by a Pensions Appeal Tribunal under rules 26 to 28 of the Pensions Appeal Tribunals (Scotland) Rules 1981.

Section F4: War Pensions

Purpose and Effect

This Section reserves war pensions.

General

The current law on war pensions is contained in a mixture of statute law and a variety of Orders made under the Royal Prerogative. War pensions are payments made in respect of death or disablement of ex servicemen and a wide range of auxiliary, reserve and analogous personnel including in certain circumstances civilians. Basic entitlement to a war pension arises where disablement or death of a member of the armed forces has occurred or arisen in consequence of service at any time since the First World War. War pensions are distinct from state pensions paid from the National Insurance Fund (which are in any case reserved under Section F1 (Social Security Schemes)). Service pensions for those in the armed forces, which are analogous to public service occupational pensions, are also distinct from war pensions, but these are reserved in any case under Section F3 (Occupational and Personal Pensions). War pensions are paid by the Department of Social Security.

Schemes for the payment of war pensions also contain powers to make a variety of other payments. For example, the Secretary of State has a discretionary power under Article 26 of the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 1983 to meet necessary medical expenses arising from war disablement that are not otherwise provided for under UK legislation.

The reservation includes the provision and administration of such pensions, and the establishment and regulation of public bodies, including tribunals and advisory and executive bodies, with functions in connection with these matters. Thus the establishment and functions of the Pensions Appeal Tribunal, the Central Advisory Committee on War Pensions and the local War Pensions Committees are all reserved.

Details of Provisions

Reservation

The first part of the reservation reserves schemes for the payment of pensions, as defined, for or in respect of persons who have a disablement or who have died as a consequence of service as members of the armed forces of the Crown.

The second part of the reservation reserves the subject-matter of a number of particular schemes made under the following enactments which enable provision to be made, which is analogous to war pensions, in respect of persons other than ex-servicemen. These are:

(a)     the Personal Injuries (Emergency Provisions) Act 1939. The 1939 Act makes provision for a scheme for making payments in respect of certain personal injuries to civil defence volunteers and civilians during World War II;

(b)     the Pensions (Navy, Army, Air Force and Mercantile Marine) Act 1939, sections 3 to 5 and 7. Section 3 makes provision for the payment of awards to or in respect of mariners in British ships who have suffered war related injury or detention. Section 4 makes similar provision for pilots, crews of pilot boats, lighthouses etc., section 5 for certain persons serving on naval ships and section 7 makes general provision for these schemes; and

(c)     the Polish Resettlement Act 1947. The 1947 Act makes provision for war pensions and other payments and assistance to be given to Polish naval and armed forces under British command during the Second World War and Polish resettlement forces and their dependants.

Illustrations of reservation

The provision of pensions under the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 1983 is given as an illustration of the scope of the reservation. The 1983 Order provides the power for payment of a range of pensions, grants, allowances, supplements and gratuities in respect of persons disabled or who have died through service in HM Forces.

Interpretation

For the purposes of this Section, 'pensions' include grants, allowances, supplements and gratuities. This encompasses all of the various means by which compensation in respect of war injuries is given.

Section G1: Architects

Purpose and Effect

This Section reserves the regulation of the profession of architect.

General

This is one of several reservations in Head G which covers the regulation of certain professions.

Details of Provisions

This reserves regulation of the profession of architect. The matters reserved include professional qualifications, eligibility to practice as an architect, and control over the professional competence and conduct of architects.

Section G2: Health Professions

Purpose and Effect

This Section reserves the regulation of the health professions.

Parliamentary Consideration

Details of Provisions

Reservation

This reserves the regulation of the health professions. This includes professional qualifications, eligibility to practice and control over standards of professional competence and conduct. This does not reserve matters such as the pay and conditions of service of the health professions within the National Health Service in Scotland or their deployment and management.

Health professions are defined for the purposes of this reservation in the interpretation paragraph as meaning the professions regulated by various enactments. The professions regulated by the specified enactments include doctors, dentists, dental auxiliaries, opticians, pharmacists, nurses, midwives, health visitors, chiropodists, dieticians, physiotherapists, medical laboratory scientific officers, orthoptists, prosthetists and orthotists, arts therapists, occupational therapists, radiographers, osteopaths, chiropractors and veterinary surgeons.

Exceptions

There is excepted from the reservation, the subject matter of:

(a)      section 21 of the National Health Service (Scotland) Act 1978. This enables the Scottish Parliament to legislate about the matter of what vocational training and experience is required to be possessed by doctors before they can provide general medical services in the NHS. This is a matter which is regulated by section 21 This exception is in line with the overall devolution of Health Service matters; and

(b)     section 25 of that Act. Similarly, this section gives the Scottish Parliament legislative competence to regulate the provision of general dental services for the NHS so far as that relates to vocational training and disciplinary proceedings. This is part of the subject-matter of section 25.

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

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.

Under the Professions Supplementary to Medicine Act 1960, the Privy Council makes a determination approving courses and qualifications for state registration purposes in the fields of professions supplementary to medicine. By convention the Secretary of State for Scotland was one of the three Privy Counsellors required by the Act to approve courses run by Scottish institutions. The role of the Secretary of State for Scotland in relation to such courses has passed to the First Minister.

The Secretary of State for Scotland also had a role in relation to nominating Privy Council appointments of Scottish representatives to various statutory bodies relating to the health professions, such as the General Medical Council, the General Dental Council and the General Optical Council. The First Minister has taken over the Secretary of State for Scotland's role in nominating Privy Council appointments of Scottish representatives to these bodies. Advice and nominations for the other Privy Council appointments to these bodies comes from the Secretary of State for Health. Administrative arrangements have been put in place to provide for consultation between the Scottish Ministers and the Secretary of State for Health before either party puts forward nominations to the Privy Council.

Section G3: Auditors

Purpose and Effect

This Section reserves the regulation of the profession of auditor.

Details of Provisions

The reservation covers regulation of the profession of auditor. The reserved matter includes in particular professional qualifications, eligibility to practice and control over standards of professional competence and conduct.

Section H1: Employment and Industrial Relations

Purpose and Effect

This Section reserves employment rights and duties and industrial relations, except for the setting of wages for agricultural workers insofar as this is dealt with by the Agricultural Wages (Scotland) Act 1949.

Parliamentary Consideration

Details of Provisions

Reservation

What are reserved are employment rights and duties and industrial relations, including the subject-matter of the following:

(a)     the Employers' Liability (Compulsory Insurance) Act 1969 which requires employers to insure against liability for injury or disease sustained by employees and arising out of and in the course of their employment;

(b)     the Employment Agencies Act 1973 which regulates employment agencies and employment businesses;

(c)     the Pneumoconiosis etc. (Workers' Compensation) Act 1979 which makes provision for lump sum payments to be paid by the State to or in respect of persons disabled by industrial lung diseases caused by various kinds of noxious dust at work;

(d)     the Transfer of Undertaking (Protection of Employment) Regulations 1981 which provide for the protection of employees' rights on the transfer of an undertaking, such as the sale or disposal of a business;

(e)     the Trade Union and Labour Relations (Consolidation) Act 1992. This Act covers a wide range of matters to do with trade unions and labour relations including such matters as employers' associations, collective bargaining, procedures for handling redundancies, industrial action, and the role of ACAS, the Certification Officer, the Central Arbitration Committee and the Commissioner of Rights of Trade Union members;

(f)     the Industrial Tribunals Act 1996 ¹⁶ which is about industrial tribunals and the Employment Appeal Tribunal;

¹⁶ This Act was renamed the Employment Tribunals Act 1996 by section 1 of the Employment Rights (Dispute Resolution) Act 1998.

(g)     the Employment Rights Act 1996. This Act consolidates enactments about employment rights and covers matters such as protection of wages, suspension from work, rights to time off work and to notice, maternity rights, unfair dismissal, redundancy, and employees' rights on the insolvency of an employer; and

(h)     the National Minimum Wage Act 1998. This Act provides for the setting of minimum wages in almost all sectors of employment.

Exception

The subject-matter of the Agricultural Wages (Scotland) Act 1949 is excepted from the reservation. This Act establishes the Scottish Agricultural Wages Board which has the power to fix minimum wages, holiday entitlements and other terms and conditions of employment for agricultural workers. Apart from this exception about the wages of agricultural workers, matters relating to wages will fall within the reservation. So, for example, the Scottish Parliament is not able to legislate to set a national minimum wage.

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 H2: Health and Safety

Purpose and Effect

This Section reserves health and safety at work. It was largely replaced by article 6 of the Scotland Act 1998 (Modifications of Schedules 4 and 5) Order 1999 (S.I. 1999/1749).

General

This Section is part of Head H which reserves a number of matters relating to employment.

Details of Provisions

Reservation

The reserved matters are:

(a)     the subject-matter of Part I of the Health & Safety at Work etc. Act 1974. That Part makes provision for the general purposes of securing the health, safety and welfare of persons at work, protecting persons other than persons at work against risks to health or safety arising out of or in connection with the activities of persons at work, and controlling the keeping and use of explosive or highly flammable or otherwise dangerous substances, and generally preventing the lawful acquisition, possession and use of such substances; and

(b)     the Health and Safety Commission (HSC), the Health and Safety Executive (HSE) and the Employment Medical Advisory Service (EMAS). By virtue of paragraph 3 of Part III of Schedule 5, this has the effect of reserving the constitutions of these bodies, the conferral or removal of their functions, and the conferral or removal of any functions specifically exercisable in relation to them. HSC and HSE are primarily concerned with matters which are reserved as part of the subject-matter of Part I of the 1974 Act. However, they have certain functions which are exercisable in relation to matters which are not otherwise reserved. For example, the Commission has powers to direct investigations into fires. The reservation of the Commission by name has the effect of preventing the Scottish Parliament from modifying that function, but not from legislating about general fire safety. EMAS is established by Part II of the 1974 Act. It has functions of advising Ministers, the HSC, employers and employees on health in relation to employment. The effect of its reservation by name is that the Scottish Parliament is not able to legislate about EMAS's functions, but may, for example, legislate about promoting health in the work place.

Interpretation

The interpretation provisions provide that:

(a)     the expressions "work" and "at work" in Part I of the 1974 Act are to be taken to have the meanings they have on the principal appointed day (1 July 1999). This is consistent with paragraph 5(1) of Part III of Schedule 5 which provides that references to the subject matter of an enactment are to be read as references to the subject matter of that enactment as it has effect on the principal appointed day. However the subject-matter of Part I of the 1974 Act is not fixed because it includes a power for the Secretary of State to extend the definition of "work" for the purposes of health and safety regulations. This interpretation provision ensures that this power cannot be used to extend the scope of the reservation beyond that which it had on the principal appointed day; and

(b)     the subject matter of Part I of the 1974 Act includes certain specified aspects of fire safety but not any other aspects of fire safety. Those specified aspects are those which are, in practice, regulated under health and safety legislation.

Agency arrangements

Article 6(2) of S.I. 1999/1749 provides for certain references in section 13 of the 1974 Act to Ministers to include a reference to the Scottish Ministers. This allows the HSC and the Scottish Ministers to make arrangements for the HSC to perform functions on behalf of the Scottish Ministers (provided that the Secretary of State considers that they can appropriately be performed by the HSC). In that section, "functions" does not include the making of regulations or legislative instruments.