Scotland Act 1998 (c. 46)

(The document as of February, 2008)

-- Back --

Page 7

Pages: P.1 | P.2 | P.3 | P.4 | P.5 | P.6 | P.7 | P.8 | P.9 | P.10 | P.11

(b) the [1936 c. 52.] Private Legislation Procedure (Scotland) Act 1936,

Section 1 and Schedule 1,
Section 2, other than subsection (2), the words following "such Community obligation" in subsection (3) and the words "subject to Schedule 2 to this Act" in subsection (4),
Section 3(1) and (2),
Section 11(2),

(d) paragraphs 5(3)(b) and 15(4)(b) of Schedule 32 to the [1980 c. 65.] Local Government, Planning and Land Act 1980 (designation of enterprise zones),

(e) sections 140A to 140G of the [1992 c. 5.] Social Security Administration Act 1992 (rent rebate and rent allowance subsidy and council tax benefit),

(f) the [1998 c. 42.] Human Rights Act 1998.

The law on reserved matters

2 (1) An Act of the Scottish Parliament cannot modify, or confer power by subordinate legislation to modify, the law on reserved matters.

(2) In this paragraph, "the law on reserved matters" means--

(a) any enactment the subject-matter of which is a reserved matter and which is comprised in an Act of Parliament or subordinate legislation under an Act of Parliament, and

(b) any rule of law which is not contained in an enactment and the subject-matter of which is a reserved matter,

and in this sub-paragraph "Act of Parliament" does not include this Act.

(3) Sub-paragraph (1) applies in relation to a rule of Scots private law or Scots criminal law (whether or not contained in an enactment) only to the extent that the rule in question is special to a reserved matter or the subject-matter of the rule is--

(a) interest on sums due in respect of taxes or excise duties and refunds of such taxes or duties, or

(b) the obligations, in relation to occupational or personal pension schemes, of the trustees or managers.

(4) Sub-paragraph (3)(b) extends to cases where liabilities under orders made in matrimonial proceedings, or agreements made between the parties to a marriage, are to be satisfied out of assets of the scheme.

3 (1) Paragraph 2 does not apply to modifications which--

(a) are incidental to, or consequential on, provision made (whether by virtue of the Act in question or another enactment) which does not relate to reserved matters, and

(b) do not have a greater effect on reserved matters than is necessary to give effect to the purpose of the provision.

(2) In determining for the purposes of sub-paragraph (1)(b) what is necessary to give effect to the purpose of a provision, any power to make laws other than the power of the Parliament is to be disregarded.

This Act

4 (1) An Act of the Scottish Parliament cannot modify, or confer power by subordinate legislation to modify, this Act.

(2) This paragraph does not apply to modifying sections 1(4), 17(5), 19(7), 21(5), 24(2), 28(5), 39(7), 40 to 43, 50, 69(3), 85 and 93 and paragraphs 4(1) to (3) and 6(1) of Schedule 2.

(3) This paragraph does not apply to modifying any provision of this Act (other than sections 64(7), 66(2), 71(7), 77, 78 and 119) which--

(a) charges any sum on the Scottish Consolidated Fund,

(b) requires any sum to be paid out of that Fund without further approval, or

(4) This paragraph does not apply to any modifications of Part III which are necessary or expedient for the purpose or in consequence of the establishment of a new fund, in addition to the Scottish Consolidated Fund, out of which loans may be made by the Scottish Ministers.

(5) This paragraph does not apply to--

(a) modifying so much of any enactment as is modified by this Act,

(b) repealing so much of any provision of this Act as amends any enactment, if the provision ceases to have effect in consequence of any enactment comprised in or made under an Act of the Scottish Parliament.

Enactments modified by this Act

5 An Act of the Scottish Parliament cannot modify, or confer power by subordinate legislation to modify--

(a) the effect of section 119(3) in relation to any provision of an Act of Parliament relating to judicial salaries,

(b) so much of any enactment as--

(i) is amended by paragraph 2, 7 or 32 of Schedule 8, and

(ii) relates to the Advocate General,

Shared powers

6 An Act of the Scottish Parliament cannot modify, or confer power by subordinate legislation to modify, any enactment so far as the enactment relates to powers exercisable by a Minister of the Crown by virtue of section 56.

Part II General exceptions

Restatement, etc.

7 (1) Part I of this Schedule does not prevent an Act of the Scottish Parliament--

(a) restating the law (or restating it with such modifications as are not prevented by that Part), or

(b) repealing any spent enactment,

or conferring power by subordinate legislation to do so.

(2) For the purposes of paragraph 2, the law on reserved matters includes any restatement in an Act of the Scottish Parliament, or subordinate legislation under such an Act, of the law on reserved matters if the subject-matter of the restatement is a reserved matter.

Effect of Interpretation Act 1978

8 Part I of this Schedule does not prevent the operation of any provision of the [1978 c. 30.] Interpretation Act 1978.

Change of title etc.

9 (1) Part I of this Schedule does not prevent an Act of the Scottish Parliament amending, or conferring power by subordinate legislation to amend, any enactment by changing--

(a) any of the titles referred to in sub-paragraph (2), or

(b) any reference to a declarator,

in consequence of any provision made by or under an Act of the Scottish Parliament.

(2) The titles are those of--

(a) any court or tribunal or any judge, chairman or officer of a court or tribunal,

(b) any holder of an office in the Scottish Administration which is not a ministerial office or any member of the staff of the Scottish Administration,

Accounts and audit and maladministration

10 Part I of this Schedule does not prevent an Act of the Scottish Parliament modifying, or conferring power by subordinate legislation to modify, any enactment for or in connection with the purposes of section 70 or 91.

Subordinate legislation

11 (1) Part I of this Schedule does not prevent an Act of the Scottish Parliament modifying, or conferring power by subordinate legislation to modify, any enactment for or in connection with any of the following purposes.

(2) Those purposes are--

(a) making different provision in respect of the document by which a power to make subordinate legislation within sub-paragraph (3) is to be exercised,

(b) making different provision (or no provision) for the procedure, in relation to the Parliament, to which legislation made in the exercise of such a power (or the instrument or other document in which it is contained) is to be subject,

(c) applying any enactment comprised in or made under an Act of the Scottish Parliament relating to the documents by which such powers may be exercised.

(3) The power to make the subordinate legislation, or a power to confirm or approve the legislation, must be exercisable by--

(a) a member of the Scottish Executive,

(b) any Scottish public authority with mixed functions or no reserved functions,

Part III Consequential modification of sections 53 and 54

12 (1) This paragraph applies to a function which (apart from this Schedule) would be transferred to the Scottish Ministers by virtue of section 53(2)(c).

(2) If, because of anything in Part I of this Schedule, a provision of an Act of the Scottish Parliament modifying an enactment so as to provide for the function to be exercisable by a different person would be outside the legislative competence of the Parliament, the function is not so transferred.

13 (1) Paragraph 12 does not apply to any function conferred by any provision of--

(a) the [1972 c. 68.] European Communities Act 1972,

(b) the [1998 c. 42.] Human Rights Act 1998, except sections 1, 5, 14 to 17 and 22 of that Act,

(2) For the purpose of determining--

(a) whether any function under any of the provisions referred to in sub-paragraph (1) is transferred to the Scottish Ministers by virtue of section 53, and

(b) the extent to which any such function (other than a function of making, confirming or approving subordinate legislation) is exercisable by them,

the references in section 54 to the legislative competence of the Parliament are to be read as if section 29(2)(c) were omitted.

(3) Part I of this Schedule does not prevent an Act of the Scottish Parliament modifying, or conferring power by subordinate legislation to modify, any of the provisions mentioned in sub-paragraph (1) so as to provide for a function transferred to the Scottish Ministers by virtue of section 53 to be exercisable by a different person.

14 If any pre-commencement enactment or prerogative instrument is modified by subordinate legislation under section 105, a function under that enactment or instrument (whether as it has effect before or after the modification) is not transferred by virtue of section 53 if the subordinate legislation provides that it is not to be so transferred.

Section 30.

SCHEDULE 5 Reserved matters

Part I General reservations

The Constitution

1 The following aspects of the constitution are reserved matters, that is--

(a) the Crown, including succession to the Crown and a regency,

(b) the Union of the Kingdoms of Scotland and England,

(d) the continued existence of the High Court of Justiciary as a criminal court of first instance and of appeal,

(e) the continued existence of the Court of Session as a civil court of first instance and of appeal.

2 (1) Paragraph 1 does not reserve--

(a) Her Majesty's prerogative and other executive functions,

(b) functions exercisable by any person acting on behalf of the Crown, or

(2) Sub-paragraph (1) does not affect the reservation by paragraph 1 of honours and dignities or the functions of the Lord Lyon King of Arms so far as relating to the granting of arms; but this sub-paragraph does not apply to the Lord Lyon King of Arms in his judicial capacity.

(3) Sub-paragraph (1) does not affect the reservation by paragraph 1 of the management (in accordance with any enactment regulating the use of land) of the Crown Estate.

(4) Sub-paragraph (1) does not affect the reservation by paragraph 1 of the functions of the Security Service, the Secret Intelligence Service and the Government Communications Headquarters.

3 (1) Paragraph 1 does not reserve property belonging to Her Majesty in right of the Crown or belonging to any person acting on behalf of the Crown or held in trust for Her Majesty for the purposes of any person acting on behalf of the Crown.

(2) Paragraph 1 does not reserve the ultimate superiority of the Crown or the superiority of the Prince and Steward of Scotland.

(3) Sub-paragraph (1) does not affect the reservation by paragraph 1 of--

(a) the hereditary revenues of the Crown, other than revenues from bona vacantia, ultimus haeres and treasure trove,

(b) the royal arms and standard,

4 (1) Paragraph 1 does not reserve property held by Her Majesty in Her private capacity.

(2) Sub-paragraph (1) does not affect the reservation by paragraph 1 of the subject-matter of the Crown Private Estates Acts 1800 to 1873.

5 Paragraph 1 does not reserve the use of the Scottish Seal.

Political parties

6 The registration and funding of political parties is a reserved matter.

Foreign affairs etc.

7 (1) International relations, including relations with territories outside the United Kingdom, the European Communities (and their institutions) and other international organisations, regulation of international trade, and international development assistance and co-operation are reserved matters.

(2) Sub-paragraph (1) does not reserve--

(a) observing and implementing international obligations, obligations under the Human Rights Convention and obligations under Community law,

(b) assisting Ministers of the Crown in relation to any matter to which that sub-paragraph applies.

Public service

8 (1) The Civil Service of the State is a reserved matter.

(2) Sub-paragraph (1) does not reserve the subject-matter of--

(a) Part I of the Sheriff Courts and Legal Officers (Scotland) Act 1927 (appointment of sheriff clerks and procurators fiscal etc.),

(b) Part III of the Administration of Justice (Scotland) Act 1933 (officers of the High Court of Justiciary and of the Court of Session).

Defence

9 (1) The following are reserved matters--

(a) the defence of the realm,

(b) the naval, military or air forces of the Crown, including reserve forces,

(d) international headquarters and defence organisations,

(e) trading with the enemy and enemy property.

(2) Sub-paragraph (1) does not reserve--

(a) the exercise of civil defence functions by any person otherwise than as a member of any force or organisation referred to in sub-paragraph (1)(b) to (d) or any other force or organisation reserved by virtue of sub-paragraph (1)(a),

(b) the conferral of enforcement powers in relation to sea fishing.

Treason

10 Treason (including constructive treason), treason felony and misprision of treason are reserved matters.

Part II Specific reservations

Preliminary

1 The matters to which any of the Sections in this Part apply are reserved matters for the purposes of this Act.

2 A Section applies to any matter described or referred to in it when read with any illustrations, exceptions or interpretation provisions in that Section.

3 Any illustrations, exceptions or interpretation provisions in a Section relate only to that Section (so that an entry under the heading "exceptions" does not affect any other Section).

Reservations Head A – Financial and Economic Matters [Section A1.]

A1. Fiscal, economic and monetary policy

Fiscal, economic and monetary policy, including the issue and circulation of money, taxes and excise duties, government borrowing and lending, control over United Kingdom public expenditure, the exchange rate and the Bank of England.

Exception

Local taxes to fund local authority expenditure (for example, council tax and non-domestic rates).

[Section A2.]

A2. The currency

Coinage, legal tender and bank notes.

[Section A3.]

A3. Financial services

Financial services, including investment business, banking and deposit-taking, collective investment schemes and insurance.

Exception

The subject-matter of section 1 of the Banking and Financial Dealings Act 1971 (bank holidays).

[Section A4.]

A4. Financial markets

Financial markets, including listing and public offers of securities and investments, transfer of securities and insider dealing.

[Section A5.]

A5. Money laundering

The subject-matter of the Money Laundering Regulations 1993, but in relation to any type of business.

Head B – Home Affairs [Section B1.]

B1. Misuse of drugs

The subject-matter of--

(a) the Misuse of Drugs Act 1971,

(b) sections 12 to 14 of the Criminal Justice (International Co-operation) Act 1990 (substances useful for manufacture of controlled drugs), and

(c) Part V of the Criminal Law (Consolidation) (Scotland) Act 1995 (drug trafficking) and, so far as relating to drug trafficking, the Proceeds of Crime (Scotland) Act 1995. [Section B2.]

B2. Data protection

The subject-matter of--

(a) the Data Protection Act 1998, and

(b) Council Directive 95/46/EC (protection of individuals with regard to the processing of personal data and on the free movement of such data).

Interpretation

If any provision of the Data Protection Act 1998 is not in force on the principal appointed day, it is to be treated for the purposes of this reservation as if it were.

[Section B3.]

B3. Elections

Elections for membership of the House of Commons, the European Parliament and the Parliament, including the subject-matter of--

(a) the European Parliamentary Elections Act 1978,

(b) the Representation of the People Act 1983 and the Representation of the People Act 1985, and

so far as those enactments apply, or may be applied, in respect of such membership.

The franchise at local government elections.

[Section B4.]

B4. Firearms

The subject-matter of the Firearms Acts 1968 to 1997.

[Section B5.]

B5. Entertainment

The subject-matter of--

(a) the Video Recordings Act 1984, and

(b) sections 1 to 3 and 5 to 16 of the Cinemas Act 1985 (control of exhibitions).

The classification of films for public exhibition by reference to their suitability for viewing by persons generally or above a particular age, with or without any advice as to the desirability of parental guidance.

[Section B6.]

B6. Immigration and nationality

Nationality; immigration, including asylum and the status and capacity of persons in the United Kingdom who are not British citizens; free movement of persons within the European Economic Area; issue of travel documents.

[Section B7.]

B7.Scientific procedures on live animals

The subject-matter of the Animals (Scientific Procedures) Act 1986.

[Section B8.]

B8. National security, interception of communications, official secrets and terrorism

National security.

The interception of communications; but not the subject-matter of Part III of the Police Act 1997 (authorisation to interfere with property etc.) or surveillance not involving interference with property.

The subject-matter of--

(a) the Official Secrets Acts 1911 and 1920, and

(b) the Official Secrets Act 1989, except so far as relating to any information, document or other article protected against disclosure by section 4(2) (crime) and not by any other provision of sections 1 to 4.

Special powers, and other special provisions, for dealing with terrorism.

[Section B9.]

B9. Betting, gaming and lotteries

Betting, gaming and lotteries.

[Section B10.]

B10. Emergency powers

Emergency powers.

[Section B11.]

B11. Extradition

Extradition.

[Section B12.]

B12. Lieutenancies

The subject-matter of the Lieutenancies Act 1997.

Head C – Trade and Industry [Section C1.]

C1. Business associations

The creation, operation, regulation and dissolution of types of business association.

Exceptions

The creation, operation, regulation and dissolution of--

(a) particular public bodies, or public bodies of a particular type, established by or under any enactment, and

(b) charities.

Interpretation

"Business association" means any person (other than an individual) established for the purpose of carrying on any kind of business, whether or not for profit; and "business" includes the provision of benefits to the members of an association.

[Section C2.]

C2. Insolvency

In relation to business associations--

(a) the modes of, the grounds for and the general legal effect of winding up, and the persons who may initiate winding up,

(b) liability to contribute to assets on winding up,

(d) arrangements with creditors, and

(e) procedures giving protection from creditors.

Preferred or preferential debts for the purposes of the Bankruptcy (Scotland) Act 1985, the Insolvency Act 1986, and any other enactment relating to the sequestration of the estate of any person or to the winding up of business associations, the preference of such debts against other such debts and the extent of their preference over other types of debt.

Pages: P.1 | P.2 | P.3 | P.4 | P.5 | P.6 | P.7 | P.8 | P.9 | P.10 | P.11

-- Back --

Stat