Details of provisions

The Table in paragraph 1 sets out the type of parliamentary procedure to which subordinate legislation under the various powers provided by the Scotland Act is to be subject. For each power specified in the left-hand column, the appropriate type of procedure is normally that in the corresponding entry in the right-hand column. The parliamentary procedure is designated by a letter from A to K, with these being explained in paragraph 2. This is subject to the special cases set out in paragraphs 3 and 4, where the procedure is altered in certain circumstances. Two other special cases are provided for in the notes at the foot of the table.

Where a power to make subordinate legislation does not appear in the table (e.g. the power in section 103(3)(c)), such subordinate legislation is not subject to any parliamentary procedure.

Paragraph 2 explains each of the types of procedure ("Type A" to "Type K"). These differ as to:

(a)     whether the instrument is to be subject to procedure in:

the Houses of Commons and Lords only (Types B, C, G and I);

the House of Commons only (Type E and K);

the Scottish Parliament only (Types D and J); or

both Parliaments (Types A, F and H).

(b)     whether the instrument is to be:

laid in draft and approved (Types A to E);

subject to annulment (unless laid in draft and approved) (Types F and G); or

subject to annulment (Types H to K).

In relation to the United Kingdom Parliament, references to orders being laid in draft and approved or being subject to annulment are to be interpreted with reference to the Statutory Instruments Act 1946 and the standing orders of each House. In relation to the Scottish Parliament, such references are to be interpreted with reference to the Scotland Act 1998 (Transitory and Transitional Provisions)(Statutory Instruments) Order 1999 (S.I. 1999/1096) and to the Standing Orders of the Parliament.

Paragraph 3 alters the procedure to which an instrument would be subject where it contains provisions which "add to, replace or omit any part of the text of an Act". In any such case,the type of procedure is changed to one which requires the instrument to be laid in draft and approved by the Parliament or Parliaments concerned. Thus, if an order under paragraph 7 of Schedule 2 (normally subject to Type H - annulment by either Parliament) were to amend primary legislation, then it would instead be subject to Type A (laid in draft and approved by both Parliaments). This paragraph gives effect to the report of the Delegated Powers and Deregulation Committee of the House of Lords (24th report 1997/98) which recommended that any "Henry VIII power" used to amend primary legislation should be subject to be affirmative resolution procedure.

Paragraph 4 provides that, where the general power to make transitory or transitional provision conferred by section 129(1) is used to appropriate sums from the Scottish Consolidated Fund or for sums to be appropriated in aid, then the instrument is to be laid in draft and approved by the Scottish Parliament. The use of the power in this way is also constrained by section 112(2), which requires it to be exercised by Her Majesty in Council. The use of section 129(1) in this way is necessary to put in place the transitional financial arrangements for the year 1999-2000. Note that the procedure for such orders was further amended by article 5 of the Scotland Act 1998 (Transitory and Transitional Provision) (Subordinate Legislation under the Act) Order 1998 (S.I. 1998/3216) for the period up to the principal appointed day.

Paragraph 5 provides that subordinate legislation made under an open power (or by Order in Council under section 89 or 90) which revokes, amends or re-enacts subordinate legislation under that power may be subject to a different procedure from the original subordinate legislation. For example, the original subordinate legislation may be made by Order in Council subject to affirmative resolution procedure, but this may be revoked by an order subject to annulment.

SCHEDULE 8, Paragraph 1: Public Revenue (Scotland) Act 1833

Purpose and Effect

Provides for the Scottish Ministers rather than the Treasury to regulate the activities of the Queen's and Lord Treasurer's Remembrancer (Q<R) in Scotland and to issue direction to him in respect of the exercise of his powers.

General

The QLTR is responsible for the collection of certain hereditary revenues of the Crown which are excepted from the general reservation of the Crown. The Crown is reserved under Schedule 5, Part I, paragraph 1(a). The hereditary revenues in question are those from bona vacantia, ultimus haeres and treasure trove which are excepted under Schedule 5, Part I, paragraph 3(3)(a).

The 1833 Act provides for the regulation of and the power to issue directions to the Q<R in respect of the performance of these duties in Scotland. The modification provides for these powers over the Q<R to be exercised by the Scottish Ministers.

Parliamentary Consideration

Details of Provisions

Substitutes the "Treasury" in both places where it appears in section 2 of the 1833 Act with the "Scottish Ministers".

SCHEDULE 8, Paragraph 2: Crown Suits (Scotland) Act 1857

Purpose and Effect

This paragraph makes amendments to the Crown Suits (Scotland) Act 1857 consequential to the establishment of the Scottish Administration and of the post of Advocate General for Scotland. It amends the 1857 Act to enable actions by or against the Scottish Administration to run in the name of the Lord Advocate while actions by or against the UK Government may be brought by or against the Advocate General.

General

The Crown Suits (Scotland) Act 1857 regulates the institution of suits at the instance of, and against, the Crown and public Departments in the Scottish courts. In particular it provides that every action, suit, or proceeding to be instituted in Scotland on the behalf of or against Her Majesty, or in the interest of the Crown, or on behalf of or against any public department, may be lawfully raised in the name and at the instance of or directed against Her Majesty's Advocate for the time being as acting under the 1857 Act, provided always, that before instituting or defending any such action, suit, or proceeding, Her Majesty's Advocate shall have the authority of Her Majesty or of the public department respectively on whose behalf or against whom such action, suit, or proceeding shall be instituted, to the institution or defence thereof.

The modifications listed in paragraph 2 of Schedule 8 add the Scottish Administration to the references to the Crown and public departments as appropriate, to extend the application of the 1857 Act to every action, suit or proceeding to be instituted in Scotland on behalf of or against the Scottish Administration. They further amend references to "Her Majesty's Advocate" to refer instead to "the appropriate Law Officer" and insert a definition of "appropriate Law Officer" to mean:

(a)     the Lord Advocate, where the action, suit or proceeding is on behalf of or against any part of the Scottish Administration; and

(b)     the Advocate General for Scotland, in any other case.

Details of Provisions

Paragraph 2(1) provides that the Crown Suits (Scotland) Act 1857 shall be amended.

Paragraph 2(2) provides that in section 1 (Crown Suits may be brought by or against the Lord Advocate):

(a)     after "Crown" there is inserted "(including the Scottish Administration)", and

(b)     for "Her Majesty's Advocate for the time being" there is substituted "the appropriate Law Officer".

Paragraph 2(3) provides that in section 2 (authority of Crown required):

(a)     for "Her Majesty's Advocate" there is substituted "the appropriate Law Officer"; and

(b)     after "Majesty" there is inserted "of the part of the Scottish Administration".

Paragraph 2(4) provides that in section 3 (absence of authority cannot be founded upon):

(a)     for "Her Majesty's Advocate" there is substituted "the appropriate Law Officer".

Paragraph 2(5) inserts into the 1857 Act a new section 4A which provides that in the 1857 Act, "the appropriate Law Officer" means:

(a)     the Lord Advocate, where the action, suit or proceeding is on behalf of or against any part of the Scottish Administration; and

(b)     the Advocate General for Scotland, in any other case.

Paragraph 2(6) provides that in section 5 of the 1857 Act (change of Lord Advocate not to affect proceedings):

(a)     for "Her Majesty's Advocate" there is substituted "the Lord Advocate or the Advocate General for Scotland"; and

(b)     for "the office of Her Majesty's Advocate" there is substituted "that office".

See also the Scotland Act 1998 (General Transitory, Transitional and Savings Provisions) Order 1999 (S.I. 1999/901), which includes transitional provisions relating to these amendments.

SCHEDULE 8, Paragraph 3: Sheriff Courts and Legal Officers (Scotland) Act 1927

Purpose and Effect

Part I of the Sheriff Courts and Legal Officers (Scotland) Act 1927 makes provision as to the appointment of sheriff clerks, procurators fiscal and their deputies.

The provisions of Part I of the 1927 are, by virtue of paragraph 8(2)(a) of Part I of Schedule 5, not reserved and some Ministerial functions conferred by Part I of that Act transferred to the Scottish Ministers under section 53, and section 55(1) of the Scotland Act will provide for Treasury consent requirements not to apply to the exercise of those functions by the Scottish Ministers.

However, this does not apply in relation the functions conferred by Part I of the 1927 Act on the Lord Advocate in relation to the appointment of procurators fiscal and their deputies. These will remain part of the retained functions of the Lord Advocate but it is not intended that the Lord Advocate should have to exercise them subject to consultation with the Treasury. Therefore, this paragraph removes the need for consultation with the Treasury on decisions about the appointment, numbers and salary levels of procurators fiscal and their deputies. The amendments will, however, as a consequence also repeal such Treasury consent requirements in relation to the appointment, numbers and salary levels of sheriff clerks and their deputies.

Parliamentary Consideration

Details of Provisions

Paragraph 3(1) provides that the Sheriff Courts and Legal Officers (Scotland) Act 1927 is to be amended.

Paragraph 3(2) provides that in section 1(2) (appointment etc. of procurator fiscal), "with the consent of the Treasury" is omitted. The effect is that Treasury consent is not required for the fixing by the Lord Advocate of the number of procurators fiscal in Scotland or the limits of the districts for which they act.

Paragraph 3(3) provides that in section 2 (appointment of sheriff clerk and procurator fiscal deputes), "with the consent of the Treasury as to numbers and salaries" is omitted. The effect is that Treasury consent is not required as to the numbers and salaries of sheriff clerk deputes appointed by the Secretary of State or of procurator fiscal deputes by the Lord Advocate.

Paragraph 3(4) provides that in section 3 (whole-time sheriff clerks and procurators fiscal and deputes), "and either case with the consent of the Treasury" is omitted. The effect is that Treasury consent is not required to determinations by the Scottish Ministers (in the case of a sheriff clerk or sheriff clerk depute) or the Lord Advocate (in the case of a procurator fiscal or a procurator fiscal depute) that such an office shall be a whole-time office, thereby preventing the person from engaging in certain other employments.

Paragraph 3(5) provides that in section 5 (whole-time clerks), "with the consent of the Treasury as to numbers and salaries" is omitted. The effect is that Treasury consent as to numbers and salaries is not required to the appointment by the Scottish Ministers or Lord Advocate of whole-time clerks or whole-time assistants to sheriff clerks or procurators fiscal.

Paragraph 3(6) provides that in section 12 (prosecution at instance of procurator fiscal), "after consultation with the Treasury" is omitted. The effect is that Treasury consent is not required to the making of an order by the Lord Advocate directing that certain proceedings in the sheriff court are to be taken by and at the instance of the procurator fiscal.

See also paragraph 14 of Schedule 2 to the Scotland Act 1998 (Consequential Modifications)(No.2) Order 1999 (S.I. 1999/1820)) which makes amendments to sections 6, 12 and 13.

SCHEDULE 8, Paragraph 4: Administration of Justice (Scotland) Act 1933

Purpose and Effect

This paragraph amends provisions which give the Secretary of State power of appointment to certain posts in the Supreme Courts on the nomination of the Lord Advocate. The amendment removes the power of the Lord Advocate to nominate candidates.

General

Section 24(7) provides for the Secretary of State to appoint to the office of Macer, on nomination by the Lord Advocate.

Section 25 provides for the Secretary of State to appoint to the offices of Principal Clerk of Justiciary, Accountant of Court and Auditor of the Court of Session on nomination of the Lord Advocate.

The provisions requiring the Lord Advocate to nominate candidates for posts in the service of the High Court, including macers, date from a period when the more senior posts in the Supreme Courts were often filled on a part-time basis by members of the legal profession and other prominent figures.

Posts in the service of the Court of Session and the High Court are now filled by members of the Scottish Court Service, who may be promoted or transferred to these posts in the course of their career. In addition, posts in the High Court and the Court of Session are frequently combined (the posts of Principal Clerk of Session and Principal Clerk of Justiciary are nowadays filled by a single appointment) or filled on rotation by Court Service officers serving for a period of time in the Supreme Courts. In the case of the Auditor of Court (who is not a member of the Scottish Court Service) the practice now is to advertise the post. In practice, such posts are filled after consultation with the Lord President/Lord Justice-General; and the requirement for the Lord Advocate formally to nominate to these posts is therefore otiose, particularly in the case of the appointment of macers.

Parliamentary Consideration

Details of Provisions

Paragraph 4 provides that, in the Administration of Justice (Scotland) Act 1933, in sections 24(7) and 25 (officers of Court of Session, etc.), "and shall be exercised on nomination by the Lord Advocate" is omitted.

SCHEDULE 8, Paragraph 5: Private Legislation Procedure (Scotland) Act 1936

Purpose and Effect

This amendment is intended to ensure that a promoter of private legislation may not apply for

a provisional order under the Private Legislation Procedure (Scotland) Act 1936 where the powers sought are wholly within the competence of the Scottish Parliament. Such powers should be sought from the Scottish Parliament under whatever private legislation procedure it provides.

General

Section 53 transfers powers to the Scottish Ministers to make, confirm or approve subordinate legislation including certain types of subordinate legislation in the nature of private legislation, namely, special procedure orders and provisional orders. Section 94 modifies existing enactments for those purposes, and also ensures that the powers to make or confirm provisional orders conferred by the 1936 Act are not transferred.

Section 28 gives the Scottish Parliament power to make laws for Scotland to be known as Acts of the Scottish Parliament. It is inherent in this power that the Scottish Parliament is able to pass private Acts as well as public and general Acts, section 36(3) allows the Parliament to provide a modified Bill procedure for private Bills and section 94(2) allows the Parliament to make provision for special procedure orders. The Scottish Parliament has now made provision for Private Bills in its Standing Orders.

Details of Provisions

The 1936 Act provides a procedure by way of provisional order, rather than a private Bill in the UK Parliament, by which any public authority or person may obtain parliamentary powers in relation to certain matters in Scotland. This paragraph amends section 1 of that Act so as to ensure that it does not apply where the powers sought are wholly within the competence of the Scottish Parliament. Such powers would have to be sought from the Scottish Parliament under its private legislation procedures, or from the UK Parliament by other means, such as the promotion of a private Bill.

The 1936 Act procedure could still be used where the powers sought relate to both devolved and reserved matters.

See also article 13 of the Scotland Act 1998 (General Transitory, Transitional and Savings Provisions) Order 1999 (S.I. 1999/901) (inserted by article 4 of S.I. 1999/1334), which provides that the amendment made by paragraph 5 of Schedule 8 to the Scotland Act does not affect the operation of the Private Legislation Procedure (Scotland) Act 1936 in relation to any petition for a Provision Order presented to the Secretary of State before the principal appointed day. This provision ensures that those applications which were already in progress on the principal appointed day were not affected by the amendment.

SCHEDULE 8, Paragraph 6: United Nations Act 1946

Purpose and Effect

This paragraph amends the wording of subsection (4) of section 1 of the United Nations Act 1946 to provide that any Order in Council made under that section will be laid before the Scottish Parliament as well as before Westminster if any provision in the Order would be within the legislative competence of the Scottish Parliament.

General

Despite the devolution of the implementation and observation of international obligations in relation to devolved matters, it should be possible for the UK Government to use section 1 of the United Nations Act 1946 to implement sanctions on a UK-wide basis. Section 56(1)(b) of the Scotland Act enables existing sanctions licensing to continue on a UK-wide basis by making the relevant Ministerial functions exercisable concurrently by the Scottish Ministers and a Minister of the Crown.

Section 1 of the 1946 Act deals with the implementation of any Security Council resolution. It is used most often to implement UN sanctions by means of licensing of exports and other trade. For the most part they make provision about reserved matters, but certain devolved matters may be covered such as limitations on the provision of training. On occasion, too, the power would be used to implement a resolution which would have a major impact upon a devolved matter. For instance, a recent Order under the 1946 Act enabled the High Court of Justiciary to sit in the Netherlands for the Lockerbie case.

Orders in Council under the 1946 Act require to be laid before Parliament. In the light of the Lockerbie order in particular, it is right that the Scottish Parliament should have a role in relation to an Order in Council under the 1946 Act which makes provision about devolved matters in Scotland. Accordingly, this paragraph amends the 1946 Act to provide that Orders in Council made under it are always to be laid before the UK Parliament even where they relate only to devolved matters, and that they are to be laid also before the Scottish Parliament except in those cases where they relate only to reserved matters.

Parliamentary Consideration

SCHEDULE 8, Paragraph 7: Crown Proceedings Act 1947

Purpose and Effect

This paragraph makes amendments to the Crown Proceedings Act 1947 consequential to the establishment of the Scottish Administration, to the inclusion of the Lord Advocate in the Scottish Executive and to the establishment of the post of Advocate General for Scotland.

Parliamentary Consideration

General

The amendments made in this paragraph should be read alongside the amendments made in paragraph 2 to the Crown Suits (Scotland) Act 1857. These Acts make provision about court actions in Scotland which involve the Crown.

The Crown Proceedings Act 1947 makes provision about the civil liabilities and rights of the Crown and about civil proceedings by and against the Crown, and related matters. Part V of the Act provides for the application of the Act in Scotland.

The amendments add the Scottish Administration to the references to the Crown and public departments as appropriate. They further amend references to "the Lord Advocate" to refer instead to the Advocate General for Scotland or to "the appropriate Law Officer" as appropriate, and insert a definition of "appropriate Law Officer" to mean:

(a)     the Lord Advocate, where the proceedings are against the Scottish Administration; and

(b)     the Advocate General for Scotland, in any other case.

The paragraph also modifies those provisions in the Crown Proceedings Act 1947 which refer to Her Majesty's Government in the United Kingdom so as to include also the Scottish Administration.

Details of Provisions

Paragraph 7(1) provides that the Crown Proceedings Act 1947 shall be amended.

Paragraph 7(2) amends section 38(2) of the 1947 Act consequential on the establishment of the Scottish Administration, which will be a new part of the Crown (the "Crown in right of the Scottish Administration") separate from the UK Government.

The phrase the "Crown in right of the Scottish Administration" draws a clear distinction between the Scottish Administration and the UK Government in Scotland.

The amendments ensure that certain provisions in the Act relating to the Crown in right of Her Majesty's Government in the United Kingdom (the UK Government) also apply to the Crown in right of the Scottish Administration.

Section 38(2) of the 1947 Act provides that the references in the Act to "Her Majesty's aircraft" do not include aircraft belonging to Her Majesty otherwise in right of Her Government in the United Kingdom. There is also a provision in the definition of "Her Majesty's ships" excepting from that expression any ship in which Her Majesty is interested in otherwise than in right of Her Government in the United Kingdom unless that ship is for the time being demised or sub-demised to Her Majesty in right of Her said Government or in the exclusive possession of Her Majesty in that right. The amendments ensure that the definitions also cover aircraft and ships belonging to the Crown or in which the Crown has an interest in right of the Scottish Administration. Sub-paragraph (c) also provides that the definition of "officer" in relation to the Crown includes a member of the Scottish Executive as well as a Minister of the Crown.

Paragraph 7(3) amends section 40(2) of the 1947 Act, which provides savings in respect of certain Crown liabilities and proceedings so that they apply to Crown liabilities in respect of, and Crown proceedings in right of, the Scottish Administration as well as the UK Government.

It also provides that the Scottish Ministers can provide a certificate to the effect that any alleged liability of the Crown arises otherwise than in respect of the Scottish Administration or that any proceedings by the Crown are otherwise than in right of the Scottish Administration. Section 40(3) already provides that the Secretary of State can issue a certificate to the effect that any alleged liability of the Crown arises otherwise than in respect of Her Majesty's Government in the UK or to the effect that any proceedings by the Crown are proceedings otherwise in right of Her Majesty's Government in the UK.

Paragraph 7(4) amends section 44 of the 1947 Act. Section 44 provides that proceedings against the Crown may be instituted in the Sheriff Court. A proviso to the section provides that the proceedings must be remitted to the Court of Session if the Lord Advocate certifies that the proceedings may involve an important question of law or may be decisive of other cases or are for other reasons more fit for trial in the Court of Session.

This amendment provides that in the proviso to section 44 (remit from sheriff court to Court of Session on Lord Advocate's certificate):

(a)     for "Lord Advocate" there is substituted "appropriate Law Officer"; and

(b)     at the end there is inserted:

"In this proviso, "the appropriate Law Officer" means:

(a)     the Lord Advocate, where proceedings are against the Scottish Administration; and

(b)     the Advocate General for Scotland, in any other case."

This has the effect that, where proceedings in the sheriff court are against the Scottish Administration, the Lord Advocate may produce a certificate that the proceedings may involve an important question of law, or may be decisive of other cases, or are for other reasons more fit for trial in the Court of Session, in which case the proceedings would be remitted to the Court of Session. In relation to proceedings in the sheriff court against the Crown but which are not against the Scottish Administration, such a certificate would be produced by the Advocate General for Scotland.

Paragraph 7(5) amends section 50 (application to Scotland of section 35). Section 35 provides that a power to make rules of court includes power to make rules for the purpose of giving effect to the provisions of the Crown Proceedings Act 1947 and that such rules may contain provisions to have effect in relation to any proceedings by or against the Crown. A different subsection (2) of section 35 is substituted for Scotland by section 50. It provides that certain provisions shall apply as regards proceedings involving the Crown in the Court of Session or the sheriff court.

Paragraph 7(5) amends section 35(2)(d) as substituted for Scotland and inserts a new subsection (e). The references to the Crown in the Scottish version of section 35(2)(a), (b) and (c) without express mention will apply to the Scottish Administration but the Scottish version of section 35(2)(d) is to be amended so that the reference to the Crown in that subsection means only the Crown in right of the UK Government. Subsection (2)(d) is concerned with the matter of set-off or counterclaim in proceedings against a Government Department. The amendment provides that:

(a)     after "Crown" there is inserted "in right of her Majesty's Government in the United Kingdom",

(b)     for "Lord Advocate" there is substituted "Advocate General for Scotland"; and

(c)     after "department", in the second place where it appears, there is inserted:

"(i)     shall not be entitled to avail itself of any set-off or counterclaim if the subject matter thereof relates to the Scottish Administration, and

     (ii)     ", and."

The new subsection (2)(e) is as follows:

"(e)      a part of the Scottish Administration, in any proceedings against that part or against the Lord Advocate on its behalf, shall not be entitled to avail itself of any set-off or counterclaim if the subject matter thereof relates to another part of the Scottish Administration or to the Crown in right of Her Majesty's Government in the United Kingdom."

These amendments to section 35(2) as it applies to Scotland provide that the Crown in any proceedings against a UK Government Department cannot avail itself of any set off or counterclaim if the subject matter relates to the Scottish Administration and vice versa. No permission from the Court will be available. The amendment also provides that the Scottish Administration is not able to avail itself of any set-off or counterclaim in respect of money owed to other parts of the Scottish Administration, such as the Registrar General or the Keeper of the Registers of Scotland without the leave of the Court.

Paragraph 7(8) amends section 51(2) of the 1947 Act. Section 51(2) makes provision for the application of section 38(4) of the Act to Scotland. Section 38 is the interpretation provision. Section 38(4) as it applies to Scotland provides that references in Parts III (judgements and executions) and IV (miscellaneous and supplemental) of the 1947 Act to civil proceedings by or against the Crown or to civil proceedings to which the Crown is a party shall be construed as including a reference to civil proceedings which the Lord Advocate, or any Government department, or any officer of the Crown as such is the party. The amendment inserts "or the Advocate General for Scotland" after "Lord Advocate".

This amendment is one of a number, in this and in the Crown Suits (Scotland) Act 1857, which reflect the fact that the Lord Advocate will act for the Crown where the court proceedings are on behalf of or against part of the Scottish Administration and that the Advocate General will act for the Crown in other Scottish cases.

See also the Scotland Act 1998 (General Transitory, Transitional and Savings Provisions) Order 1999 (S.I. 1999/901), which includes transitional provisions relating to these amendments.