Statutory Instrument 2000 No. 3253

The Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) (No. 2) Order 2000

(The document as of February, 2008)

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STATUTORY INSTRUMENTS

2000 No. 3253

CONSTITUTIONAL LAW

DEVOLUTION, SCOTLAND

The Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) (No. 2) Order 2000

	Made	13th December 2000
	Coming into force in accordance with article 1

At the Court at Buckingham Palace, the 13th day of December 2000
Present,
The Queen's Most Excellent Majesty in Council
Whereas a draft of this Order has been laid before and approved by a resolution of each House of Parliament and of the Scottish Parliament;

    Now therefore, Her Majesty, in exercise of the powers conferred upon Her by sections 30(3), 63, 113 and 124(2) of the Scotland Act 1998[1] and of all other powers enabling Her in that behalf, is pleased, by and with the advice of Her Privy Council, to order, and it is hereby ordered, as follows:

Citation, commencement and interpretation
    1. - (1) This Order may be cited as the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) (No. 2) Order 2000 and, except as provided in paragraphs (2) and (3) below, shall come into force on the second day after the day on which it is made.

    (2) Article 2 of, and Schedule 1 to, this Order shall come into force on the day after the day on which it is made.

    (3) In Schedule 2 to this Order, the entry relating to the Electricity Act 1989[2] shall come into force-

(a) so far as relating to section 32 of that Act, when section 62 of the Utilities Act 2000[3] comes into force; and

(b) so far as relating to section 32A of the Electricity Act 1989, when section 63 of the Utilities Act 2000 comes into force.

    (4) In this Order "the 1998 Act" means the Scotland Act 1998.

    (5) In this Order, any word or expression used in referring to any enactment and which is also used in the enactment has the same meaning as it has in the enactment.

Functions to be treated as being, or not being, exercisable in or as regards Scotland
    2.Schedule 1 to this Order (which makes provision for certain functions to be treated for the purposes of section 63 of the 1998 Act as being, or as not being, functions which are exercisable in or as regards Scotland) shall have effect.

Transfer of functions to the Scottish Ministers
    3.The functions which are conferred on a Minister of the Crown by the enactments specified in column 1 of Schedule 2 to this Order shall-

(a) so far as they are exercisable by him in or as regards Scotland; and

(b) subject to any restriction in the corresponding entry in column 2 of the Schedule,

be exercisable by the Scottish Ministers instead of by the Minister of the Crown.

Modifications of particular enactments
    4. - (1) Schedule 3 to this Order (which makes modifications to the Wireless Telegraphy Act 1949[4] and the Regulation of Investigatory Powers Act 2000[5]) shall have effect.

    (2) The Scotland Act 1998 (Functions Exercisable in or as Regards Scotland) Order 1999[6] is amended as follows:-

(a) in article 2(1), the definition of "the 1985 Act" is omitted;

(b) in paragraph 1 of Schedule 1-


(i) in sub-paragraph (1), for "section 5(b)" there is substituted "section 5(1)(b)";

(ii) in sub-paragraph (2), for "section 5(b)" there is substituted "section 5(1)(b)";

(iii) in sub-paragraph (2)(a), for "which neither the person using the apparatus nor any person on whose behalf he is acting is authorised by the Secretary of State to receive" there is substituted "of which neither the person using the apparatus nor a person on whose behalf he is acting is an intended recipient"; and



(c) paragraph 6 of Schedule 1 is omitted.

    (3) The Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 1999[7] is amended as follows:-

(a) in Schedule 1 (enactments conferring functions transferred to the Scottish Ministers)-


(i) for the entry relating to the Wireless Telegraphy Act 1949 there is substituted the following:-



The Wireless Telegraphy Act 1949 (c.54), section 5(1)(b).

Only so far as the function is exercisable for the purpose of preventing or detecting crime (within the meaning of the Regulation of Investigatory Powers Act 2000) or of preventing disorder"; and


(ii) the entry relating to the Interception of Communications Act 1985 is omitted; and

(b) in Schedule 5, paragraphs 6 and 14(3) and (4) are omitted.

General modifications of enactments etc.
    5. - (1) Sections 117 and 118 of the 1998 Act shall apply in relation to the exercise of functions by the Scottish Ministers by virtue of article 3 of this Order as they apply in relation to the exercise of functions by the Scottish Ministers within devolved competence.

    (2) Sections 119 to 121 of the 1998 Act shall apply in relation to functions exercisable by the Scottish Ministers by virtue of that article as they apply in relation to functions of the Scottish Ministers exercisable within devolved competence.

    (3) In the application of those sections by virtue of this article, any reference in them to a pre commencement enactment is to be read as if it were a reference to any enactment.

    (4) Any reference in any enactment or prerogative instrument or in any other instrument or document-

(a) to government departments; or

(b) to, or to any part or officer of, any government department,

(however described) is to be read, so far as the effect of this Order makes it necessary or expedient to do so, as including or being a reference to, or to any corresponding part or member of the staff of, the Scottish Administration.

Transitional and saving provision
    6. - (1) The transfer, by virtue of this Order, of any function exercisable by a Minister of the Crown to the Scottish Ministers shall not affect the validity of anything done (or having effect as if done) by or in relation to a Minister of the Crown before the date on which the transfer takes effect.

    (2) Anything (including legal proceedings) which, at the time when that transfer takes effect, is in the process of being done by or in relation to a Minister of the Crown may, so far as it relates to any function transferred, be continued by or in relation to the Scottish Ministers.

    (3) Anything done (or having effect as if done) by or in relation to a Minister of the Crown for the purposes of or in connection with any function transferred to the Scottish Ministers by virtue of this Order shall, if in force at the time when that transfer takes effect, have effect as if done by or in relation to the Scottish Ministers in so far as that is required for continuing its effect after that time.

    (4) Despite the transfer to the Scottish Ministers of functions by virtue of this Order, any function of a Minister of the Crown in relation to any matter shall continue to be exercisable by him as regards Scotland for the purposes specified in section 2(2) of the European Communities Act 1972[8].


A. K. Galloway
Clerk of the Privy Council

SCHEDULE 1Article 2


FUNCTIONS TO BE TREATED AS BEING, OR NOT BEING, EXERCISABLE IN OR AS REGARDS SCOTLAND

Interpretation
    1.In this Schedule, "the 2000 Act" means the Regulation of Investigatory Powers Act 2000[9].

Functions under the 2000 Act
    2. - (1) The functions of the Secretary of State under section 5 of the 2000 Act (interception with a warrant) are, for the purposes of section 63 of the 1998 Act, to be treated-

(a) as being exercisable in or as regards Scotland if they are exercisable in the class of case mentioned in sub-paragraph (2) below; but

(b) as otherwise not being exercisable in or as regards Scotland.

    (2) The class of case mentioned in this sub-paragraph constitutes any case where the warrant under section 5 of the 2000 Act-

(a) authorises or requires the person to whom it is addressed to secure interception in accordance with paragraph (a) of section 5(1), or interception in accordance with that paragraph and disclosure in accordance with section 5(1)(d); and

(b) names or describes, in accordance with section 8(1), a person who is, or a set of premises which is (or, in either case, is reasonably believed by the Secretary of State to be) located in Scotland at the time when the warrant is issued.

    3. - (1) The functions of the Secretary of State under sections 9(1)(b) and (3), 10(1)(a) and (2) and 15(1) of the 2000 Act (duration, cancellation, modification and renewal of warrants etc. and general safeguards) are, for the purposes of section 63 of the 1998 Act, to be treated-

(a) as being exercisable in or as regards Scotland if they are exercisable in the class of case mentioned in sub-paragraph (2) below; but

(b) as otherwise not being exercisable in or as regards Scotland.

    (2) The class of case mentioned in this sub-paragraph constitutes any case where-

(a) the function is exercisable in relation to a warrant issued under section 5 of the 2000 Act; and

(b) the function of issuing such a warrant is, under paragraph 2 above, to be treated for the purposes of section 63 of the 1998 Act as a case where the function is, for those purposes, treated as being exercisable in or as regards Scotland.

    4. - (1) The functions of the Secretary of State under sections 32 (authorisation of intrusive surveillance) and 42 (intelligence services authorisations) of the 2000 Act are, for the purposes of section 63 of the 1998 Act, to be treated-

(a) as being exercisable in or as regards Scotland if they are exercisable in the class of case mentioned in sub-paragraph (2) below; but

(b) as otherwise not being exercisable in or as regards Scotland.

    (2) The class of case mentioned in this sub-paragraph constitutes any case where the grant by the Secretary of State of an authorisation for the carrying out of intrusive surveillance under section 32 of the 2000 Act is made by a warrant issued under section 42 of that Act and would authorise conduct that is carried out in relation to residential premises or any private vehicle which is (or, in either case, reasonably believed by the Secretary of State to be) located in Scotland at the time when the warrant is issued.

    5. - (1) The functions of the Secretary of State under sections 44(1) and (2)(b) and 45(1)(a) (special rules for issue and renewal of intelligence services authorisations, cancellation of authorisations) of the 2000 Act are, for the purposes of section 63 of the 1998 Act, to be treated-

(a) as being exercisable in or as regards Scotland if they are exercisable in the class of case mentioned in sub-paragraph (2) below; but

(b) as otherwise not being exercisable in or as regards Scotland.

    (2) The class of case mentioned in this sub-paragraph constitutes any case where-

(a) the function is exercisable in relation to the grant by the Secretary of State of an authorisation for the carrying out of intrusive surveillance under section 32 of the 2000 Act which is made by a warrant issued under section 42 of that Act; and

(b) the function of issuing such a warrant is, under paragraph 4 above, to be treated for the purposes of section 63 of the 1998 Act as a case where the function is, for those purposes, treated as being exercisable in or as regards Scotland.

Functions in relation to pipe-lines
    6. - (1) Functions under the enactments mentioned in sub-paragraph (2) below shall, for the purposes of section 63 of the 1998 Act, be treated-

(a) as being exercisable in or as regards Scotland so far as they relate to pipe-lines which begin and end in Scotland, but

(b) as otherwise not exercisable in or as regards Scotland.

    (2) Those enactments are-

(a) section 9(3)(a) of, and Parts I and III of Schedule 3 to, the Gas Act 1986[10];

(b) the Public Gas Transporter Pipe-line Works (Environmental Impact Assessment) Regulations 1999[11]; and

(c) the Pipe-line Works (Environmental Impact Assessment) Regulations 2000[12].

SCHEDULE 2Article 3


ENACTMENTS CONFERRING FUNCTIONS TRANSFERRED TO THE SCOTTISH MINISTERS

Column 1	Column 2
Enactment	Restrictions
The Gas Act 1986 (c.44), section 9(3)(a) and Schedule 3, Parts I and III[13].
The Electricity Act 1989 (c.29), sections 32 and 32A[14].
The Regulation of Investigatory Powers Act 2000 (c.23)[15]-
(a) section 5	Only so far as the functions are exercisable for the purpose of preventing or detecting serious crime.
(b) sections 9(1)(b) and (3), 10(1)(a) and (2) and 15(1)	Only so far as the functions are exercisable in relation to a warrant issued under section 5 by the Scottish Ministers by virtue of this Order.
(c) sections 32 and 42	Only so far as the function is exercisable- (a) in relation to an application made by a member of the Security Service; and (b) where the granting of an authorisation for the carrying out of intrusive surveillance is necessary for the purpose of preventing or detecting serious crime.
(d) sections 44(1) and (2)(b) and 45(1)	Only so far as the functions are exercisable in relation to the grant of an authorisation for the carrying out of intrusive surveillance under section 32 that is made by a warrant issued under section 42by the Scottish Ministers by virtue of this Order.
The Poisons Rules 1982 (S.I. 1982/218), Schedule 12, Part 1, paragraphs 4 and 5(b).
The Public Gas Transporter Pipe-line Works (Environmental Impact Assessment) Regulations 1999 (S.I. 1999/1672)[16].
The Pipe-line Works (Environmental Impact Assessment) Regulations 2000 (S.I. 2000/1928)[17].

SCHEDULE 3Article 4(1)



PART I
MODIFICATIONS OF THE WIRELESS TELEGRAPHY ACT 1949
    1.The Wireless Telegraphy Act 1949[18] is amended as follows.

    2.In section 5 (misleading messages and interception and disclosure of wireless telegraphy messages), in subsection (7)[19], after paragraph (a) there is inserted the following paragraph:-

" (aa) in the case of an authority given by the Scottish Ministers (by virtue of provision made under section 63 of the Scotland Act 1998), a member of the Scottish Executive;".

PART II
MODIFICATIONS OF THE REGULATION OF INVESTIGATORY POWERS ACT 2000
    3.The Regulation of Investigatory Powers Act 2000[20] is amended as follows.

    4.In section 7 (issue of warrants)-

(a) in paragraph (a) of subsection (1), after "Secretary of State" there is inserted "or, in the case of a warrant issued by the Scottish Ministers (by virtue of provision made under section 63 of the Scotland Act 1998), a member of the Scottish Executive";

(b) in paragraph (b) of that subsection, after "(2)" there is inserted "(a) or (b)";

(c) at the end of paragraph (b) there is inserted the following paragraph:-


    " ; or

(c) in a case falling within subsection (2)(aa), under the hand of a member of the staff of the Scottish Administration who is a member of the Senior Civil Service and who is designated by the Scottish Ministers as a person under whose hand a warrant may be issued in such a case."; and



(d) in subsection (2) after paragraph (a) there is inserted-



" (aa) an urgent case in which the Scottish Ministers have themselves (by virtue of provision made under section 63 of the Scotland Act 1998) expressly authorised the use of the warrant in that case and a statement of that fact is endorsed on the warrant; and".

    5.In section 9 (duration, cancellation and renewal of warrants), in subsection (1)(b), after "Secretary of State" there is inserted "or, in the case of a warrant issued by the Scottish Ministers (by virtue of provision made under section 63 of the Scotland Act 1998), a member of the Scottish Executive".

    6.In section 10 (modification of warrants and certificates)-

(a) after subsection (4) there is inserted the following subsection:-

    " (4A) Subject to subsections (5A), (6) and (8), a warrant issued by the Scottish Ministers (by virtue of provision made under section 63 of the Scotland Act 1998) shall not be modified under this section except by an instrument under the hand of a member of the Scottish Executive or a member of the staff of the Scottish Administration who is a member of the Senior Civil Service and is designated by the Scottish Ministers as a person under whose hand an instrument may be issued in such a case (in this section referred to as "a designated official")";

(b) after subsection (5) there is inserted the following subsection:-

    " (5A) Unscheduled parts of an interception warrant issued by the Scottish Ministers shall not be modified under the hand of a designated official except in an urgent case in which-


(a) they have themselves (by virtue of provision made under section 63 of the Scotland Act 1998) expressly authorised the modification; and

(b) a statement of that fact is endorsed on the modifying instrument";



(c) in subsection (6), after "subsection (4)" there is inserted "or (4A)"; and

(d) in subsection (9)-



(i) in paragraph (a), after "Secretary of State" there is inserted "or, as the case may be, the Scottish Ministers (by virtue of provision made under section 63 of the Scotland Act 1998)"; and

(ii) in paragraph (b), after "subsection (5)(b)" there is inserted ", (5A)(b)".

    7.In section 42 (intelligence services authorisations)-

(a) in subsection (1), after "Secretary of State" there is inserted "or, the Scottish Ministers (by virtue of provision under section 63 of the Scotland Act 1998)"; and

(b) in subsection (2), after "Secretary of State" there is inserted "or, the Scottish Ministers (by virtue of provision under section 63 of the Scotland Act 1998)";

    8.In section 44 (special rules for intelligence service authorisations)-

(a) in subsection (1), after "Secretary of State" there is inserted "or, in the case of a warrant issued by the Scottish Ministers (by virtue of provision made under section 63 of the Scotland Act 1998), a member of the Scottish Executive";

(b) in subsection (2)-


(i) in paragraph (b), after "himself" there is inserted "or the Scottish Ministers (by virtue of provision made under section 63 of the Scotland Act 1998) have themselves"; and

(ii) at the end, there is inserted-


    " or, as the case may be, a member of the staff of the Scottish Administration who is a member of the Senior Civil Service and is designated by the Scottish Ministers as a person under whose hand a warrant may be issued in such a case (in this section referred to as "a designated official")"; and



(c) in subsection (3)-



(i) in paragraph (a), after "senior official" there is inserted "or, as the case may be, a designated official"; and

(ii) in paragraph (b), after "Secretary of State" there is inserted "or, in the case of a warrant issued by the Scottish Ministers (by virtue of provision made under section 63 of the Scotland Act 1998), a member of the Scottish Executive".

    9.In section 57 (Interception of Communications Commissioner)-

(a) after subsection (2)(a) there is inserted:-


" (aa) the exercise and performance by the Scottish Ministers (by virtue of provision made under section 63 of the Scotland Act 1998) of the powers and duties conferred or imposed on them by or under sections 5, 9 and 10;"; and



(b) in subsection (2)(d)(i), after "Secretary of State" there is inserted ",or the Scottish Ministers (by virtue of provision under section 63 of the Scotland Act 1998),".

    10.In section 58 (co-operation with and reports by s.57 Commissioner)-

(a) after subsection (5), there is inserted the following subsection:-

    " (5A) The Interception of Communications Commissioner may also, at any time, make any such other report to the First Minister on any matter relating to the carrying out of the Commissioner's functions so far as they relate to the exercise by the Scottish Ministers (by virtue of provision made under section 63 of the Scotland Act 1998) of their powers under sections 5, 9(1)(b) and (3), 10(1)(a) and (2) and 15(1) of this Act, as the Commissioner thinks fit.";

(b) after subsection (6), there is inserted the following subsection:-

    " (6A) The Prime Minister shall send a copy of every annual report made by the Interception of Communications Commissioner under subsection (4) which he lays in terms of subsection (6), together with a copy of the statement referred to in subsection (6), to the First Minister who shall forthwith lay that copy report and statement before the Scottish Parliament."; and

(c) in subsection (7), after "Commissioner", there is inserted "and, if it appears relevant to do so, with the First Minister".

    11.In section 59 (Intelligence Service Commissioner)-

(a) in paragraph (a) of subsection (2), after "5 to 7 of", there is inserted ", or the Scottish Ministers (by virtue of provision made under section 63 of the Scotland Act 1998) of their powers under sections 5 and 6(3) and (4) of,"; and

(b) in paragraph (b) of subsection (2)-


(i) after "Secretary of State," there is inserted "or the Scottish Ministers (by virtue of provision made under section 63 of the Scotland Act 1998),"; and

(ii) after "of this Act" there is inserted "or on them by Part II of this Act".

    12.In section 60 (co-operation with and reports by s.59 Commissioner)-

(a) in paragraph (b) of subsection (1), after "Secretary of State" there is inserted "and every member of staff of the Scottish Administration (by virtue of provision under section 63 of the Scotland Act 1998)";

(b) after subsection (3), there is inserted the following subsection:-

    " (3A) The Intelligence Services Commissioner may also, at any time, make any such other report to the First Minister on any matter relating to the carrying out of the Commissioner's functions so far as they relate to the exercise by the Scottish Ministers (by virtue of provision made under section 63 of the Scotland Act 1998) of their powers under sections 5 and 6(3) and (4) of the Intelligence Services Act 1994[21] or under Parts I and II of this Act, as the Commissioner thinks fit.";

(c) after subsection (4), there is inserted the following subsection:-

    " (4A) The Prime Minister shall send a copy of every annual report made by the Intelligence Services Commissioner under subsection (2) which he lays in terms of subsection (4), together with a copy of the statement referred to in subsection (4), to the First Minister who shall forthwith lay that copy report and statement before the Scottish Parliament."; and

(d) in subsection (5), after "Commissioner", there is inserted "and, if it appears relevant to do so, with the First Minister".

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EXPLANATORY NOTE

(This note is not part of the Order)

This Order, made under the Scotland Act 1998 (c.46) ("the 1998 Act"), provides for certain specified functions of a Minister of the Crown, so far as they are exercisable by him in or as regards Scotland, to be exercisable by the Scottish Ministers instead of by the Minister of the Crown.

Article 2 of, and Schedule 1 to, the Order provide for certain specified functions to be treated, to the extent specified in that Schedule, as being, or as not being, exercisable in or as regards Scotland for the purposes of section 63 of the 1998 Act. This is to facilitate the transfer of functions under this Order.

Article 3 of the Order provides that the functions conferred on a Minister of the Crown by the enactments specified in Schedule 2 to the Order and set out below shall be exercisable in or as regards Scotland by the Scottish Ministers instead of a Minister of the Crown. In some cases the exercise of the function is subject to the restrictions specified in that Schedule.

In relation to the Gas Act 1986 (c.44) and the Public Gas Transporter Pipe-Line Works (Environmental Impact Assessment) Regulations 1999 (S.I. 1999/1672) the Order transfers functions to the Scottish Ministers enabling them to give consent to developers to lay certain gas pipe-lines that begin and end in Scotland, and for the Scottish Ministers to approve where necessary Compulsory Purchase Orders associated with these pipelines. In relation to the Pipe-Line Works (Environmental Impact Assessment) Regulations 2000 (S.I. 2000/1928), the Order transfers to the Scottish Ministers powers to grant consent to general pipe-lines which begin and end in Scotland. In relation to the Electricity Act 1989 (c.29), the Order transfers to the Scottish Ministers the powers contained in sections 32 and 32A, as inserted by the Utilities Act 2000, to make orders specifying the amount of electricity to be produced from renewable sources.

In relation to the Regulation of Investigatory Powers Act 2000 (c.23) ("the 2000 Act") the Order transfers to the Scottish Ministers certain functions exercisable by the Secretary of State in or as regards Scotland in relation to the issue of warrants authorising the interception of communications under section 5 of that Act. This Order also transfers the issue of warrants authorising the carrying out of intrusive surveillance under sections 32 and 42 of the 2000 Act where the application is by the Security Service for the purpose of preventing or detecting serious crime.

The Poisons Rules 1982 (S.I. 1982/218) are made under the Poisons Act 1972 (c.66), the subject matter of which is reserved. The Order executively devolves to the Scottish Ministers the powers of the Secretary of State to authorise persons to purchase the poison strychnine.

Article 4(1) of, and Schedule 3 to, the Order provide for modifications of the Wireless Telegraphy Act 1949 and the Regulation of Investigatory Powers Act 2000 in connection with provision made by the Order. Article 4(2) and (3) makes consequential modifications of the Scotland Act 1998 (Functions Exercisable in or as Regards Scotland) Order 1999 (S.I. 1999/1748) and the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 1999. Article 5 provides for certain general modifications of enactments in connection with provision made by the Order.

Article 6 makes transitional and saving provision.

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Notes:

[1] 1998 c.46.back

[2] 1989 c.29.back

[3] 2000 c.27.back

[4] 1949 c.54.back

[5] 2000 c.23.back

[6] S.I. 1999/1748.back

[7] S.I. 1999/1750.back

[8] 1972 c.68.back

[9] 2000 c.23.back

[10] 1986 c.44.back

[11] S.I. 1999/1672.back

[12] S.I. 2000/1928.back

[13] Functions under these enactments are treated as being exercisable in or as regards Scotland for the purposes of section 63 of the 1998 Act by virtue of article 2 of, and paragraph 6 of Schedule 1 to, this Order.back

[14] Section 32 of the 1989 Act is substituted, prospectively, by section 62 of the Utilities Act 2000 and section 32A of the 1989 Act is inserted, prospectively, by section 63 of the Utilities Act 2000.back

[15] Functions under these enactments are treated as being exercisable in or as regards Scotland for the purposes of section 63 of the 1998 Act by virtue of article 2 of, and paragraphs 2 to 5 of Schedule 1 to, this Order.back

[16] Functions under these enactments are treated as being exercisable in or as regards Scotland for the purposes of section 63 of the 1998 Act by virtue of article 2 of, and paragraph 6 of Schedule 1 to, this Order.back

[17] Functions under these enactments are treated as being exercisable in or as regards Scotland for the purposes of section 63 of the 1998 Act by virtue of article 2 of, and paragraph 6 of Schedule 1 to, this Order.back

[18] 1949 c.54.back

[19] Subsection (7) was inserted by the Regulation of Investigatory Powers Act 2000 (c.23), section 73(3).back

[20] 2000 c.23.back

[21] 1994 c.13.back

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ISBN 0 11 059536 X

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