Parliamentary Consideration

SCHEDULE 8, Paragraph 22: Bankruptcy (Scotland) Act 1985

Purpose and Effect

This paragraph provides that the Accountant in Bankruptcy is to be appointed by the Scottish Ministers. It further provides that the Scottish Ministers may appoint a member of staff to be his Depute and to exercise all his statutory functions when he is unable to do so. It replaces existing provision for the Secretary of State to appoint the Accountant in Bankruptcy and his staff on such terms and conditions, and to pay such remuneration and allowances as he determines, with the approval of the Treasury. This existing provision also provides for the Secretary of State to appoint a member of staff to be Depute Accountant in Bankruptcy. Powers to appoint staff are effectively replaced by section 51.

Parliamentary Consideration

Details of Provisions

Paragraph 22 replaces section 1 of the Bankruptcy (Scotland) Act 1985 (as amended by the Bankruptcy (Scotland) Act 1993 with:

"1-(1) The Accountant in Bankruptcy shall be appointed by the Scottish Ministers

(2) The Scottish Ministers may appoint a member of the staff of the Accountant in Bankruptcy to be Depute Accountant in Bankruptcy to exercise all of the functions of the Accountant in Bankruptcy at any time when the Accountant in Bankruptcy is unable to do so".

SCHEDULE 8, Paragraph 23: Insolvency Act 1986

Purpose and Effect

This paragraph amends the Insolvency Act 1986 so that certain functions of and in relation to the Registrar of Companies in Scotland and the Assistant Registrar of Friendly Societies for Scotland are transferred to the Accountant in Bankruptcy, or are to be performed also by him.

This paragraph also amends the 1986 Act to apply the requirements of section 427(4) to (6) (which require a court to notify a bankruptcy adjudication or award of sequestration of a member of Parliament to the Speaker) to members of the Scottish Parliament.

General

The Registrar of Companies in Scotland is appointed by the Secretary of State for Trade and Industry. The Assistant Registrar of Friendly Societies for Scotland is appointed by the Treasury. The bulk of the functions of these two office-holders relate to the reserved matters of business associations and financial services, but some are concerned with the registration of documents which relate to the process of the winding-up of business associations or the receivership of such associations - matters which are excepted from the reservation.

To create a divide between the reserved and devolved aspects of insolvency, the devolved functions of the Registrar and the Assistant Registrar were therefore to be transferred to a office-holder within the Scottish Administration, the Accountant in Bankruptcy, who following devolution is to be appointed and funded by the Scottish Ministers. This is achieved by the present amendments, and by consequential amendments made by the Scotland Act 1998 (Consequential Modifications) (No. 2) Order 1999 (S.I. 1999/1820).

The Accountant is already responsible for maintaining a register of the insolvency of individuals, partnerships, unincorporated bodies and certain bodies corporate, but not companies and other business associations.

Although the provisions require insolvency practitioners to submit forms to 2 officials in certain circumstances, any additional bureaucratic burden can be lessened by making the relevant forms identical, through administrative arrangements.

Section 427(1) of the 1986 Act provides that where a bankruptcy adjudication or award of sequestration is made against any person, he is disqualified from sitting and voting in the House of Commons. Section 427(4) provides that where a member of the House of Commons continues to be disqualified until the end of the 6 month period beginning with the day of adjudication or award, then his seat shall be vacated at the end of that period. By virtue of section 15(1)(b) of this Act, he would also thereby become disqualified for membership of the Scottish Parliament. It is therefore considered appropriate that notification should also be given to the Presiding Officer of the Scottish Parliament in respect of the bankruptcy or sequestration of any MSP. Section 427(5) of the Insolvency Act 1986 provides that a court must notify the Speaker of the House of Commons if a member is adjudged bankrupt or if an award of sequestration is made in respect of such a member.

Parliamentary Consideration

Details of Provisions

Paragraph 23(6) inserts a new section 427(6A), the effect of which is to apply section 427(4) to (6) in relation to a member of the Scottish Parliament so as to ensure that if a court adjudges that an MSP is bankrupt or awards sequestration of an MSP's estate the Presiding Officer must be notified and his seat will be vacated in accordance with section 427(4).

In the period before his seat is vacated, section 17(4) provides that the MSP may not take part in the proceedings of the Parliament and gives the Parliament the power to withdraw his rights and privileges.

SCHEDULE 8, Paragraph 24: Public Order Act 1986

Purpose and Effect

Part III of the Public Order Act 1986 creates certain offences in relation to the stirring up of racial hatred. Section 26(1) of the Act provides that nothing in Part III applies to a fair and accurate report of proceedings in Parliament. Paragraph 20 of the Act amends section 26(1) so that Part III does not apply to such a report of proceedings in the Scottish Parliament.

General

This amendment relates to reports of the proceedings of the Parliament. Section 21(1) provides that the proceedings shall be regulated by standing orders. Schedule 3, paragraph 1(1) provides that the standing orders shall include provision for preserving order in the proceedings of the Parliament, including provision for preventing conduct which would constitute a criminal offence.

Details of Provisions

This provision inserts in section 26(1) of the Public Order Act 1986 after the reference to proceedings in Parliament a reference to proceedings in the Scottish Parliament.

SCHEDULE 8, Paragraph 25: Copyright, Designs and Patents Act 1988

Purpose and Effect

Part I of the Copyright, Designs and Patents Act 1988 sets out the law relating to copyright. Amendments to the 1988 Act are required to make provision about copyright in Bills and Acts of the Scottish Parliament and about copying for the purposes of proceedings of the Parliament.

General

Her Majesty is entitled to copyright in every Act of the Scottish Parliament and copyright in every Bill introduced into the Scottish Parliament belongs to the Scottish Parliamentary Corporate Body.

The provisions of section 45 of the 1988 Act which provides that copyright is not infringed by anything done for the purposes of parliamentary proceedings apply to the Scottish Parliament.

In regard to Scottish parliamentary copyright, which for Westminster is dealt with in section 165 of the 1988 Act which applies to work made by or under the direction or control of the House of Commons or the House of Lords, provision was made under section 165(7) of the 1988 Act which permits an Order in Council to apply that section, with exceptions or modifications, to works of any other legislative body of a country to which the Act extends. This was done in making the Parliamentary Copyright (Scottish Parliament) Order 1999 (S.I. 1999/676).

Parliamentary Consideration

Details of Provisions

Paragraph 25(1) states that the Copyright, Designs and Patents Act 1988 shall be amended.

Paragraph 25(2) provides for a reference to 'section 166A' in place of a reference to section 166 in section 12(9) of the Act. Section 12 of the 1988 Act deals with the duration of copyright. A new section 12 was inserted by the Duration of Copyright and Rights in Performances Regulations 1995 (S.I. 1995/3297) which came into force on 1 January 1996. Subsection (9) of section 12 provides that the section does not apply to Crown copyright or Parliamentary copyright and refers to sections 163 to 166. By virtue of this amendment, the reference will instead be to sections 163 to 166A.

Paragraph 25(3) provides for a reference to "section 166A" in place of a reference to section 166 in section 153(2) of the Act. Section 153 of the 1988 Act deals with qualification for copyright protection but subsection (2) provides that subsection (1) does not apply in relation to Crown copyright or Parliamentary copyright. Again there is a reference to sections 163 to 166 which by virtue of this amendment will instead be to sections 163 to 166A.

Paragraph 25(4) provides for a reference to "to 166A" in place of a reference to "and 166" in section 163(6) of the Act. Section 163 of the 1988 Act deals with Crown copyright and subsection (6) provides that the section does not apply to a work if, or to the extent that, Parliamentary copyright subsists in the work. Again there is a reference to sections 165 and 166 which by virtue of this amendment will instead be to sections 165 to 166A.

Paragraph 25(5) provides for the insertion of a reference to Acts of the Scottish Parliament in relation to Crown copyright in section 164(1) of the Act. This means that Her Majesty is entitled to copyright in every Act of the Scottish Parliament as well as every Act of Parliament.

Paragraph 25(6) provides for the insertion after section 166 of a new section 166A which makes provision about copyright in Bills of the Scottish Parliament. Subsections (1) and (2) of subsection 166A provide that copyright in every Bill introduced to the Scottish Parliament belongs to the Scottish Parliamentary Corporate Body. That copyright subsists from the time when the text of the Bill is handed into the Parliament for introduction until the Bill receives Royal Assent or, if the Bill does not receive Royal Assent, until it is withdrawn or rejected or no further Parliamentary proceedings may be taken in respect of it. Subsection (3) of section 166A provides that references in Part I (copyright) of the 1988 Act to Parliamentary copyright include copyright under section 166A (except in section 165 which makes provision about work made by or under the direction or control of the House of Commons or the House of Lords). Subsection (4) of section 166A provides that no other copyright or right in the nature of copyright subsists in a Bill after copyright has subsisted under section 166A but without prejudice to the subsequent operation of that section in relation to a Bill which, not having received Royal Assent, is later re-introduced into the Parliament.

Paragraph 25(7) provides for the insertion of a reference to "the Scottish Parliament" in the definition of ""Parliamentary proceedings" in section 178. This will mean that "parliamentary proceedings" in the 1988 Act includes proceedings of the Scottish Parliament. So for example the provisions of section 45 of the 1988 Act (parliamentary and judicial proceedings) apply to proceedings of the Scottish Parliament. That section provides that copyright is not infringed by anything done for the purposes of parliamentary or judicial proceedings nor by anything done for the purposes of reporting such proceedings. The paragraph also amends the definition of "the Crown" in section 178 so that it includes the Crown in right of the Scottish Administration.

Paragraph 21(8) provides for the insertion of a reference to "section 166(6) and 166A(3)" in place of the reference to "section 166(6)" in section 179 of the Act (Index of defined expressions). This is to indicate that the meaning of "Parliamentary copyright" is to be found in 166A(3) as well as in the other sections of the Act already mentioned in that entry.

SCHEDULE 8, Paragraph 26: Official Secrets Act 1989

Purpose and Effect

This amendment provides that members of the Scottish Executive and junior Scottish Ministers are to be Crown servants for the purposes of the Official Secrets Act 1989. It also provides that people providing goods or services for the purpose of office holders of the Scottish Administration are government contractors for the purposes of the 1989 Act.

Parliamentary Consideration

Details of Provisions

The Official Secrets Act 1989 makes it an offence in certain circumstances, for a person who is or has been a Crown servant or a government contractor within the meaning of that Act, to disclose without lawful authority information which relates to: security and intelligence, defence; international relations; or crime and special investigation. A disclosure by a Crown servant is made with lawful authority if it is made in accordance with his official duty. A disclosure by a government contractor is made with lawful authority if it is made in accordance with an official authorisation or without contravening an official restriction. Again "official authorisation" and "official restriction" are defined in the Act.

Section 12(1) of the Official Secrets Act 1989 defines what is meant by Crown Servant for the purposes of the 1989 Act. The definition covers Ministers of the Crown and anyone employed in the civil service of the Crown, as well as members of the military forces, the police or holders of prescribed offices and members and employees of prescribed bodies. The amendment will extend the definition to cover members of the Scottish Executive and junior Scottish Ministers. This amendment is required because otherwise offences created by the 1989 Act would not catch members of the Scottish Executive but it would catch their staff by virtue of section 12(1)(c). It will ensure that the Scottish Ministers are able to receive and if necessary authorise disclosure of information covered by the 1989 Act and puts them in the same position as Ministers in the UK government.

Section 12(2) defines what is meant by a government contractor. The definition includes any person who is not a Crown servant but who provides goods or services for the purposes of any Minister or of the civil service, armed forces etc. The amendment makes clear that the definition of Government contractor includes anyone who provides goods and services for the purposes of any office-holder in the Scottish Administration.

The order-making power in section 12 has also been executively devolved to the Scottish Ministers by S.I. 1999/1750.

SCHEDULE 8, Paragraph 27: Prisons (Scotland) Act 1989

Purpose and Effect

Paragraph 27 amends the Prisons (Scotland) Act 1989 to remove or amend specific provisions for appointment of staff in relation to prisons. These powers of appointment are no longer required as a consequence of the provision in section 51 for the Scottish Ministers to appoint persons to be members of the staff of the Scottish Administration.

Details of Provisions

Paragraph 27(1) provides that the Prisons (Scotland) Act 1989 is to be amended.

Paragraph 27(2) repeals section 2 of the 1989 Act, which provides for the employment and payment of such inspectors and other officers and servants as the Secretary of State with the sanction of the Treasury as to number, may appoint.

Paragraph 27(3) removes provision in section 3(1) of the 1989 Act for the Secretary of State to appoint the governors and other officers of prisons. This is replaced by a requirement for every prison to have a governor and such other officers as may be necessary.

Section 3A of the 1989 Act requires the Secretary of State to secure the provision of appropriate medical services within prisons, and provides that he may perform this duty by appointing for a prison one or more medical officers. Paragraph 27(4) replaces the power in section 3A(2) for the Secretary of State to appoint medical officers with a power to provide medical officers. A consequential amendment is also made to section 3A(4).

SCHEDULE 8, Paragraph 28: European Communities (Amendment) Act 1993

Purpose and Effect

This paragraph amends section 6 of the European Communities (Amendment) Act 1993 to provide that a person may be proposed as a member for the UK of the Committee of the Regions if he or she is a member of the Scottish Parliament.

General

This section forms part of the set of sections and Schedules dealing with the relations between the Scottish Parliament and Executive and the European Union. Schedule 5 provides that relations with the European Communities (and their institutions) are to be reserved to the UK Parliament and Government. But the Scottish Parliament and Executive are responsible for observing and implementing obligations under Community law in relation to devolved matters.

Details of Provisions

Section 6 of the European Communities (Amendment) Act 1993 provides that a person may be proposed as a member or alternate member for the UK of the Committee of the Regions constituted under Article 198a of the Treaty establishing the European Community only if, at the time of the proposal, he is an elected member of a local authority.

This paragraph provides that in section 6 a reference to a member of the Scottish Parliament is inserted before the reference to an elected member of a local authority. The purpose of the amendment is to provide that a person may also be proposed as a member or alternate member of the Committee of the Regions if he or she is a member of the Scottish Parliament.

SCHEDULE 8, Paragraph 29: Scottish Land Court Act 1993

Purpose and Effect

This paragraph amends the Scottish Land Court Act 1993 to provide that it is for the First Minister to make recommendations to The Queen on the appointment of members of the Scottish Land Court and adds a new subsection requiring the First Minister to consult the Lord President of the Court of Session before recommending a person as Chairman of the Scottish Land Court.

General

The Scottish Land Court Act 1993 consolidates certain enactments relating to the constitution and proceedings of the Scottish Land Court. Section 1(2) of the 1993 Act provides for the appointment and number of members of the Court and for the appointment of the Chairman.

Parliamentary Consideration

Details of Provisions

Paragraph 29 provides that in section 1 of the Scottish Land Court Act 1993 (the Scottish Land Court):

(a)     in subsection (2), for Secretary of State there is substituted "First Minister", and

(b)     after subsection (2) there is inserted:

"(2A) Before recommending the appointment of a person as Chairman, the First Minister shall consult the Lord President of the Court of Session."

Paragraph 29(a) provides that the First Minister will take over from the Secretary of State the function of recommending to Her Majesty persons for the appointment as members of the Scottish Land Court and paragraph 29(b) requires him to consult the Lord President before recommending a person for appointment as Chairman of the Scottish Land Court.

SCHEDULE 8, Paragraph 30: Value Added Tax Act 1994

Purpose and Effect

To secure that the Scottish Administration is treated in the same way as a government department for VAT purposes.

General

Special rules under section 41 of the Value Added Tax Act 1994 apply to the treatment of supplies of goods and services by and to government departments for VAT purposes. In particular the section allows the Treasury to direct that VAT should be charged on any goods or services provided by a government department even though the supply of those goods or services does not amount to the carrying on of a business. It also enables refunds of VAT to be made, subject to Treasury directions, to government departments in respect of goods or services supplied to it for non-business purposes. The most significant of these is the ability of departments to reclaim VAT they pay on contracted-out services. The section will apply these rules to the Scottish Administration, in the same way that they apply to government departments and will ensure continuation of the same treatment for VAT purposes in relation to functions that are transferred to the Scottish Administration.

Details of Provisions

The definition of "government department" in section 41(6) of the Value Added Tax Act 1994 is extended to include the Scottish Administration. The Scottish Administration is defined in section 126.

SCHEDULE 8, Paragraph 31: Requirements of Writing (Scotland) Act 1995

Purpose and Effect

This paragraph makes amendments to the Requirements of Writing (Scotland) Act 1995 so as to apply the provisions of that Act to the execution of documents for the purposes of Scots law by a member of the Scottish Executive in the same way as they apply to the execution of documents by Ministers of the Crown.

General

The Requirements of Writing (Scotland) Act 1995 makes provision with regard to the execution of documents and their formal validity for the purposes of Scots law.

Paragraph 31 amends section 12(1) of the 1995 Act (interpretation) to extend the definition of "Minister" to include a member of the Scottish Executive and the definition of "officer" to include a member of staff of the Scottish Ministers or the Lord Advocate. Section 55(4) provides that a document is validly executed by the Scottish Ministers if it is executed by any member of the Scottish Executive.

Details of Provisions

Paragraph 31 provides that in section 12(1) of the Requirements of Writing (Scotland) Act 1995 (interpretation):

(a)     in the definition of "Minister" after "1975" there is inserted "and also includes a member of the Scottish Executive", and

(b)     in paragraph (a) of the definition of "officer", after "Department" there is inserted "or, as the case may be, as a member of staff of the Scottish Ministers or Lord Advocate."

Schedule 2 of the 1995 Act contains special rules relating to the execution of documents by Ministers, amongst others. Paragraph 6 of that Schedule provides that, except where an enactment expressly provides otherwise, where a granter of a document is a Minister the document is signed by the Minister if it is signed by him personally, or, in a case where by virtue of any enactment or rule of law a document by a Minister may be signed by an officer of his or by any other Minister, it is signed by that officer or by that other Minister as the case may be. It also provides that, for the purposes of signing a document under that paragraph, a person of the signing of a document under that paragraph, a person purporting to sign as an office of a Minister or as another Minister shall be presumed to be the officer or other Minister as the case maybe. It is expected that the Carltona doctrine will apply in relation to the members of the Scottish Executive as it applies to Ministers of the Crown so that any member of staff appointed by the Scottish Minister can, amongst other things, execute documents which the Scottish Minister could execute. This amendment ensures that the provisions of the 1995 Act apply to the execution of documents by a member of the Scottish Executive in the same way as they apply to the execution of documents by a Minister.

SCHEDULE 8, Paragraph 32: Criminal Procedure (Scotland) Act 1995

Purpose and Effect

This paragraph inserts a new section 288A into the Criminal Procedure (Scotland) Act 1995 to enable the Advocate General for Scotland to refer a devolution issue which may arise in criminal proceedings to the High Court of Justiciary for their opinion.

The paragraph also inserts a new section 288B into the 1995 Act. The new section makes provision for the implementation by the High Court of Justiciary of any determination by the Judicial Committee of the Privy Council following an appeal on a devolution issue from the High Court.

General

The procedures for dealing with devolution issues in Schedule 6 have implications for civil and criminal proceedings in Scotland. Where a devolution issue arises in the course of proceedings, under the provisions of paragraphs 5 and 6 of Part I of Schedule 6 to the Act the Advocate General is required to be given an opportunity of taking part in the proceedings but only so far as they relate to the devolution issue.

The Advocate General has no existing rights of appeal. In the context of criminal proceedings, the provision made by this amendment is necessary to give the Advocate General for Scotland the right to appeal against the determination of a trial judge upon a devolution issue. So far as the accused is concerned, where he is convicted, he can simply appeal against conviction or sentence in terms of sections 106 or 175 of the Criminal Procedure (Scotland) Act 1995. So far as the Lord Advocate is concerned, if the devolution issue has arisen in solemn proceedings, as the devolution issue will be a point of law, the Lord Advocate will be able to refer the issue to the High Court for their opinion under section 123 of the 1995 Act whether the accused has been acquitted or convicted. If the devolution issue has arisen in summary proceedings, under section 175(3) of the 1995 Act the Lord Advocate will be able to appeal to the High Court on a point of law against an acquittal or against a sentence passed on conviction. In addition, he will be able to appeal by way of suspension under section 191 of the 1995 Act.

The provision made by new section 288A ensures that where the Advocate General wishes to appeal against the decision of the trial court on a devolution issue then, whether the accused is tried on indictment or summarily and whether he is acquitted or convicted, the Advocate General may make a reference to the High Court for their opinion on the devolution issue in a similar way to that in which the Lord Advocate can make a reference under section 123 of the 1995 Act. The new section is in similar terms to section 123 of the 1995 Act.