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Scotland Act 1998 (c. 46)(The document as of February, 2008) Page 10 Pages: P.1 | P.2 | P.3 | P.4 | P.5 | P.6 | P.7 | P.8 | P.9 | P.10 | P.11 Reference of devolution issue to High Court or Court of Appeal18 A magistrates' court may refer any devolution issue which arises in proceedings (other than criminal proceedings) before it to the High Court. 19 (1) A court may refer any devolution issue which arises in proceedings (other than criminal proceedings) before it to the Court of Appeal. (2) Sub-paragraph (1) does not apply to-- (a) a magistrates' court, the Court of Appeal or the House of Lords, or (b) the High Court if the devolution issue arises in proceedings on a reference under paragraph 18. 20 A tribunal from which there is no appeal shall refer any devolution issue which arises in proceedings before it to the Court of Appeal; and any other tribunal may make such a reference. 21 A court, other than the House of Lords or the Court of Appeal, may refer any devolution issue which arises in criminal proceedings before it to-- (a) the High Court (if the proceedings are summary proceedings), or (b) the Court of Appeal (if the proceedings are proceedings on indictment). References from Court of Appeal to Judicial Committee22 The Court of Appeal may refer any devolution issue which arises in proceedings before it (otherwise than on a reference under paragraph 19, 20 or 21) to the Judicial Committee. Appeals from superior courts to Judicial Committee23 An appeal against a determination of a devolution issue by the High Court or the Court of Appeal on a reference under paragraph 18, 19, 20 or 21 shall lie to the Judicial Committee, but only with leave of the High Court or (as the case may be) the Court of Appeal or, failing such leave, with special leave of the Judicial Committee. Part IV Proceedings in Northern IrelandApplication of Part IV24 This Part of this Schedule applies in relation to devolution issues in proceedings in Northern Ireland. Institution of proceedings25 (1) Proceedings for the determination of a devolution issue may be instituted by the Attorney General for Northern Ireland. (2) The Lord Advocate may defend any such proceedings. (3) This paragraph is without prejudice to any power to institute or defend proceedings exercisable apart from this paragraph by any person. Notice of devolution issue26 A court or tribunal shall order notice of any devolution issue which arises in any proceedings before it to be given to the Attorney General for Northern Ireland and the Lord Advocate (unless the person to whom the notice would be given is a party to the proceedings). 27 A person to whom notice is given in pursuance of paragraph 26 may take part as a party in the proceedings, so far as they relate to a devolution issue. Reference of devolution issue to Court of Appeal28 A court, other than the House of Lords or the Court of Appeal in Northern Ireland, may refer any devolution issue which arises in any proceedings before it to the Court of Appeal in Northern Ireland. 29 A tribunal from which there is no appeal shall refer any devolution issue which arises in any proceedings before it to the Court of Appeal in Northern Ireland; and any other tribunal may make such a reference. References from Court of Appeal to Judicial Committee30 The Court of Appeal in Northern Ireland may refer any devolution issue which arises in proceedings before it (otherwise than on a reference under paragraph 28 or 29) to the Judicial Committee. Appeals from Court of Appeal to Judicial Committee31 An appeal against a determination of a devolution issue by the Court of Appeal in Northern Ireland on a reference under paragraph 28 or 29 shall lie to the Judicial Committee, but only with leave of the Court of Appeal in Northern Ireland or, failing such leave, with special leave of the Judicial Committee. Part V GeneralProceedings in the House of Lords32 Any devolution issue which arises in judicial proceedings in the House of Lords shall be referred to the Judicial Committee unless the House considers it more appropriate, having regard to all the circumstances, that it should determine the issue. Direct references to Judicial Committee33 The Lord Advocate, the Advocate General, the Attorney General or the Attorney General for Northern Ireland may require any court or tribunal to refer to the Judicial Committee any devolution issue which has arisen in proceedings before it to which he is a party. 34 The Lord Advocate, the Attorney General, the Advocate General or the Attorney General for Northern Ireland may refer to the Judicial Committee any devolution issue which is not the subject of proceedings. 35 (1) This paragraph applies where a reference is made under paragraph 34 in relation to a devolution issue which relates to the proposed exercise of a function by a member of the Scottish Executive. (2) The person making the reference shall notify a member of the Scottish Executive of that fact. (3) No member of the Scottish Executive shall exercise the function in the manner proposed during the period beginning with the receipt of the notification under sub-paragraph (2) and ending with the reference being decided or otherwise disposed of. (4) Proceedings relating to any possible failure by a member of the Scottish Executive to comply with sub-paragraph (3) may be instituted by the Advocate General. (5) Sub-paragraph (4) is without prejudice to any power to institute proceedings exercisable apart from that sub-paragraph by any person. Expenses36 (1) A court or tribunal before which any proceedings take place may take account of any additional expense of the kind mentioned in sub-paragraph (3) in deciding any question as to costs or expenses. (2) In deciding any such question, the court or tribunal may award the whole or part of the additional expense as costs or (as the case may be) expenses to the party who incurred it (whatever the decision on the devolution issue). (3) The additional expense is any additional expense which the court or tribunal considers that any party to the proceedings has incurred as a result of the participation of any person in pursuance of paragraph 6, 17 or 27. Procedure of courts and tribunals37 Any power to make provision for regulating the procedure before any court or tribunal shall include power to make provision for the purposes of this Schedule including, in particular, provision-- (a) for prescribing the stage in the proceedings at which a devolution issue is to be raised or referred, (b) for the sisting or staying of proceedings for the purpose of any proceedings under this Schedule, and (c) for determining the manner in which and the time within which any intimation or notice is to be given. Interpretation38 Any duty or power conferred by this Schedule to refer a devolution issue to a court shall be construed as a duty or (as the case may be) power to refer the issue to the court for decision. Section 115. SCHEDULE 7 Procedure for subordinate legislationGeneral provision1 (1) Subordinate legislation (or a statutory instrument containing it) under a provision listed in the left-hand column is subject to the type of procedure in the right-hand column. (2) This paragraph is subject to paragraphs 3 and 4.
NotesThe entry for section 58 does not apply to an instrument containing an order merely revoking an order under subsection (1) of that section. The entry for section 79, in relation to an instrument containing an order which makes only such provision as is mentioned in section 79(3), is to be read as referring to type K instead of type E. Types of procedure2 The types of procedure referred to in this Schedule are-- Type A: No recommendation to make the legislation is to be made to Her Majesty in Council unless a draft of the instrument -- (a) has been laid before, and approved by resolution of, each House of Parliament, and (b) has been laid before, and approved by resolution of, the Parliament. Type B: No recommendation to make the legislation is to be made to Her Majesty in Council unless a draft of the instrument has been laid before, and approved by resolution of, each House of Parliament. Type C: No Minister of the Crown is to make the legislation unless a draft of the instrument has been laid before, and approved by resolution of, each House of Parliament. Type D: No recommendation to make the legislation is to be made to Her Majesty in Council unless a draft of the instrument has been laid before, and approved by resolution of, the Parliament. Type E: No Minister of the Crown is to make the legislation unless a draft of the instrument has been laid before, and approved by resolution of, the House of Commons. Type F: The instrument containing the legislation, if made without a draft having been approved by resolution of each House of Parliament and of the Parliament, shall be subject to annulment in pursuance of-- (a) a resolution of either House, or (b) a resolution of the Parliament. Type G: The instrument containing the legislation, if made without a draft having been approved by resolution of each House of Parliament, shall be subject to annulment in pursuance of a resolution of either House. Type H: The instrument containing the legislation shall be subject to annulment in pursuance of-- (a) a resolution of either House of Parliament, or (b) a resolution of the Parliament. Type I: The instrument containing the legislation shall be subject to annulment in pursuance of a resolution of either House of Parliament. Type J: The instrument containing the legislation shall be subject to annulment in pursuance of a resolution of the Parliament. Type K: The instrument containing the legislation shall be subject to annulment in pursuance of a resolution of the House of Commons. Special cases3 (1) This paragraph applies if-- (a) the instrument containing the legislation would, apart from this paragraph, be subject to the type F, G, H, I or K procedure, and (b) the legislation contains provisions which add to, replace or omit any part of the text of an Act. (2) Where this paragraph applies-- (a) instead of the type F procedure, the type A procedure shall apply, (b) instead of the type G procedure, the type B or (as the case may be) C procedure shall apply, (c) instead of the type H procedure, the type A procedure shall apply, (d) instead of the type I procedure, the type B or (as the case may be) C procedure shall apply, (e) instead of the type K procedure, the type E procedure shall apply. 4 If legislation under section 129(1) makes provision as mentioned in section 112(2) then, instead of the type G procedure, the type D procedure shall apply. 5 (1) An instrument containing an Order in Council or order under an open power which revokes, amends or re-enacts subordinate legislation under an open power may (in spite of section 14 of the [1978 c. 30.] Interpretation Act 1978) be subject to a different procedure under this Schedule from the procedure to which the instrument containing the original legislation was subject. (2) An instrument containing an Order in Council under section 89 or 90 which revokes, amends or re-enacts an Order under either section may (in spite of section 14 of the [1978 c. 30.] Interpretation Act 1978) be subject to a different procedure under this Schedule from the procedure to which the instrument containing the original Order was subject. Section 125. SCHEDULE 8 Modifications of enactmentsPublic Revenue (Scotland) Act 1833 (c. 13)1 In section 2 of the Public Revenue (Scotland) Act 1833 (regulation of Queen's and Lord Treasurer's Remembrancer), for "Treasury" in both places there is substituted "Scottish Ministers". Crown Suits (Scotland) Act 1857 (c. 44)2 (1) The Crown Suits (Scotland) Act 1857 is amended as follows. (2) In section 1 (Crown suits may be brought by or against 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". (3) 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". (4) In section 3 (absence of authority cannot be founded upon), for "Her Majesty's Advocate" there is substituted "the appropriate Law Officer". (5) After section 4 there is inserted-- " 4A Meaning of "the appropriate Law Officer"In this 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. " (6) In section 5 (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". Sheriff Courts and Legal Officers (Scotland) Act 1927 (c. 35)3 (1) The Sheriff Courts and Legal Officers (Scotland) Act 1927 is amended as follows. (2) In section 1(2) (appointment etc. of procurator fiscal), "with the consent of the Treasury" is omitted. (3) In section 2 (appointment of sheriff clerk and procurator fiscal deputes), "with the consent of the Treasury as to numbers and salaries" is omitted. (4) In section 3 (whole-time sheriff clerks and procurators fiscal and deputes), "and in either case with the consent of the Treasury" is omitted. (5) In section 5 (whole-time clerks), "with the consent of the Treasury as to numbers and salaries" is omitted. (6) In section 12 (prosecutions at instance of procurator fiscal), "after consultation with the Treasury" is omitted. Administration of Justice (Scotland) Act 1933 (c. 41)4 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. Private Legislation Procedure (Scotland) Act 1936 (c. 52)5 In section 1 of the Private Legislation Procedure (Scotland) Act 1936 (application for provisional order: notices), after subsection (4) there is added-- " (5) This section shall not apply where any public authority or any persons desire to obtain parliamentary powers the conferring of which is wholly within the legislative competence of the Scottish Parliament. " United Nations Act 1946 (c. 45)6 In section 1 of the United Nations Act 1946 (measures to give effect to decisions of Security Council), in subsection (4), for the words following "shall" there is substituted " forthwith after it is made be laid-- (a) before Parliament; and (b) if any provision made by the Order would, if it were included in an Act of the Scottish Parliament, be within the legislative competence of that Parliament, before that Parliament. " Crown Proceedings Act 1947 (c. 44)7 (1) The Crown Proceedings Act 1947 is amended as follows. (2) In section 38(2) (interpretation)-- (a) in the definition of "His Majesty's aircraft", after "Kingdom" there is inserted "or the Scottish Administration", (b) in the definition of "His Majesty's ships", after "Kingdom" there is inserted "or the Scottish Administration" and after "said Government" there is inserted "or Administration", and (c) in the definition of "officer", after "Minister of the Crown" there is inserted "and a member of the Scottish Executive". (3) In section 40 (savings)-- (a) in subsection (2), after "in the United Kingdom", in each place where those words appear, there is inserted "or the Scottish Administration", and (b) after subsection (3) there is inserted-- " (3A) A certificate of the Scottish Ministers to the effect that-- (a) any alleged liability of the Crown arises otherwise than in respect of the Scottish Administration, (b) any proceedings by the Crown are proceedings otherwise than in right of the Scottish Administration, shall, for the purposes of this Act, be conclusive as to that matter. " (4) 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 the proceedings are against any part of the Scottish Administration, and (b) the Advocate General for Scotland, in any other case. " (5) In section 50 (application to Scotland of section 35), subsection (2) of section 35 as substituted for Scotland is amended as follows-- (a) in paragraph (d)-- (i) after "Crown" there is inserted "in right of Her Majesty's Government in the United Kingdom", (ii) for "Lord Advocate" there is substituted "Advocate General for Scotland", and (iii) 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 (b) after that paragraph there is inserted-- " (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. " (6) In section 51(2) (application to Scotland of section 38), in paragraph (ii), after "Lord Advocate" there is inserted "or the Advocate General for Scotland". Public Registers and Records (Scotland) Act 1948 (c. 57)8 In section 1(1) of the Public Registers and Records (Scotland) Act 1948 (appointment etc. of Keeper of the Registers and Keeper of the Records), for "Secretary of State" there is substituted "Scottish Ministers". Lands Tribunal Act 1949 (c. 42)9 In section 2 of the Lands Tribunal Act 1949 (members etc. of Lands Tribunal for Scotland)-- (a) in subsection (9)-- (i) after "effect" there is inserted "with the omission of subsection (8) and", and (ii) in paragraph (a), for "(8)" there is substituted "(7)", and (b) after that subsection there is inserted-- " (10) The remuneration of members of the Lands Tribunal for Scotland shall be charged on the Scottish Consolidated Fund. " Defamation Act 1952 (c. 66)10 In section 10 of the Defamation Act 1952 (limitation on privilege at elections), after "local government authority" there is inserted "to the Scottish Parliament". Defamation Act (Northern Ireland) 1955 (c. 11 (N.I.))11 In section 10(2) of the Defamation Act (Northern Ireland) 1955 (limitation on privilege at elections), after "Parliament of the United Kingdom" there is inserted "or to the Scottish Parliament". Registration of Births, Deaths and Marriages (Scotland) Act 1965 (c. 49)12 In section 1(1) of the Registration of Births, Deaths and Marriages (Scotland) Act 1965 (power of Secretary of State to appoint Registrar General), for "Secretary of State" there is substituted "Scottish Ministers". Pensions (Increase) Act 1971 (c. 56)13 In Part II of Schedule 2 to the Pensions (Increase) Act 1971 (official pensions out of local funds), before paragraph 39 there is inserted-- " Scottish Parliament and Scottish Executive38AB A pension payable under a scheme established by virtue of section 81(4)(b) of, or paragraph 3(4)(b) of Schedule 2 to, the Scotland Act 1998. " Superannuation Act 1972 (c. 11)14 In section 1(6) of the Superannuation Act 1972 (superannuation as respects civil servants etc.), for "or the Consolidated Fund" there is substituted "the Consolidated Fund or the Scottish Consolidated Fund". European Communities Act 1972 (c. 68)15 (1) The European Communities Act 1972 is amended as follows. (2) In section 2 (general implementation of Treaties)-- (a) references to a statutory power or duty include a power or duty conferred by an Act of the Scottish Parliament or an instrument made under such an Act, and (b) references to an enactment include an enactment within the meaning of this Act. (3) In relation to regulations made by the Scottish Ministers, or an Order in Council made on the recommendation of the First Minister, under section 2-- (a) in subsection (2), "designated" in the first sentence, and the second sentence, shall be disregarded, (b) references to an Act of Parliament shall be read as references to an Act of the Scottish Parliament, and (c) paragraph 2(2) of Schedule 2 shall have effect as if the references to each, or either, House of Parliament were to the Scottish Parliament. (4) In section 3(4) (evidence), references to a government department include any part of the Scottish Administration. Interpretation Act 1978 (c. 30)16 (1) The Interpretation Act 1978 is amended as follows. (2) After section 23 there is inserted-- " 23A Acts of the Scottish Parliament etc(1) This Act applies in relation to an Act of the Scottish Parliament and an instrument made under such an Act only to the extent provided in this section. (2) Except as provided in subsection (3) below, sections 15 to 18 apply to-- (a) an Act of the Scottish Parliament as they apply to an Act, (b) an instrument made under an Act of the Scottish Parliament as they apply to subordinate legislation. (3) In the application of those sections to an Act and to subordinate legislation-- (a) references to an enactment include an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament, and (b) the reference in section 17(2)(b) to subordinate legislation includes an instrument made under an Act of the Scottish Parliament. (4) In the application of section 20 to an Act and to subordinate legislation, references to an enactment include an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament. " (3) In Schedule 1 (words and expressions defined), the following definitions are inserted in the appropriate places-- " "Act" means an Act of Parliament. " " "Enactment" does not include an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament. " Education (Scotland) Act 1980 (c. 44)17 In section 135(1) of the Education (Scotland) Act 1980 (interpretation), in the definition of "Her Majesty's inspectors", "on the recommendation of the Secretary of State" is omitted. Civil Jurisdiction and Judgments Act 1982 (c. 27)18 (1) Section 46 of the Civil Jurisdiction and Judgments Act 1982 (domicile and seat of the Crown) is amended as follows. (2) In subsection (3), after paragraph (a) there is inserted-- " (aa) the Crown in right of the Scottish Administration has its seat in, and in every place in, Scotland, " . (3) In subsection (7), after "Kingdom" there is inserted ", the Scottish Administration". Mental Health Act 1983 (c. 20)Pages: P.1 | P.2 | P.3 | P.4 | P.5 | P.6 | P.7 | P.8 | P.9 | P.10 | P.11 -- Back --
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