Legalize / United Kingdom / Public General Act

Scotland Act 1998

Type Public General Act

Publication 1998-11-19

Last updated 2026-03-18

State In force

Department Statute Law Database

Source legislation.gov.uk

articles Not indexed

Reform history JSON API

Part I — The Scottish Parliament

The Scottish Parliament

1

(1) There shall be a Scottish Parliament.

(2) One member of the Parliament shall be returned for each constituency (under the simple majority system) at an election held in the constituency.

(3) Members of the Parliament for each region shall be returned at a general election under the additional member system of proportional representation provided for in this Part and vacancies among such members shall be filled in accordance with this Part.

(4) The validity of any proceedings of the Parliament is not affected by any vacancy in its membership.

(5) Schedule 1 (which makes provision for the constituencies and regions for the purposes of this Act and the number of regional members) shall have effect.

General elections

Ordinary general elections

2

(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) The day on which the poll at an ordinary general election for membership of the Parliament is to be held is the first Thursday in May in the fifth calendar year following that in which the previous ordinary general election was held, unless

(a) subsection (2A) prevents the poll being held on that day, or

(b) the day of the poll is determined by a proclamation under subsection (5).

(2A) The poll shall not be held on the same date as the date of the poll at—

(a) a parliamentary general election ..., ...

(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2B) Where subsection (2A) prevents the poll being held on the day specified in subsection (2), the poll shall be held on such day, subject to subsection (2A), as the Scottish Ministers may by order specify, unless the day of the poll is determined by a proclamation under subsection (5) as modified by subsection (5ZA).

(3) If the poll is to be held on the first Thursday in May, or on the day specified by an order under subsection (2B) , the Parliament—

(a) is dissolved by virtue of this section at the beginning of the minimum period which ends with that day, and

(b) shall meet within the period of seven days beginning immediately after the day of the poll.

(4) In subsection (3), “the minimum period” means the period determined in accordance with an order under section 12(1).

(5) Subject to subsection (2A), if the Presiding Officer proposes a day for the holding of the poll which is not more than 4 weeks earlier, nor more than 8 weeks later, than the first Thursday in May, Her Majesty may by proclamation under the Scottish Seal—

(a) dissolve the Parliament (unless the Parliament is already dissolved),

(b) require the poll at the election to be held on the day proposed, and

(5ZZA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5ZA) Where a day is specified by order under subsection (2B), subsection (5) applies as if the reference to the first Thursday in May were a reference to that day.

(5A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5D) Subsection (5E) applies if a proclamation is made in accordance with subsection (5).

(5E) Subject to subsection (2A), if the Presiding Officer proposes another day for the holding of the poll which is not more than 8 weeks later than the day on which the poll is required to be held under the proclamation, His Majesty may by further proclamation under the Scottish Seal—

(a) require the poll at the election to be held on the day proposed, and

(b) require the Parliament to meet as soon as reasonably practicable after the day of the poll.

(5F) Before proposing a day for the holding of the poll under subsection (5) or (as the case may be) subsection (5E), the Presiding Officer must consult—

(a) the Electoral Commission, and

(b) the convener of the Electoral Management Board for Scotland.

(5G) As soon as reasonably practicable after proposing a day for the holding of the poll under subsection (5) or (as the case may be) subsection (5E), the Presiding Officer must publish, in such manner as the Presiding Officer considers appropriate, a statement setting out—

(a) the day proposed for the holding of the poll, and

(b) the reasons for the making of the proposal.

(6) In this Act “the Scottish Seal” means Her Majesty’s Seal appointed by the Treaty of Union to be kept and used in Scotland in place of the Great Seal of Scotland.

Reimbursement of expenses

3

(1) The Presiding Officer shall propose a day for the holding of a poll if—

(a) the Parliament resolves that it should be dissolved and, if the resolution is passed on a division, the number of members voting in favour of it is not less than two-thirds of the total number of seats for members of the Parliament, or

(b) any period during which the Parliament is required under section 46 to nominate one of its members for appointment as First Minister ends without such a nomination being made.

(1A) But, despite subsection (1), the Presiding Officer may not propose a day for the holding of a poll if an event mentioned in paragraph (a) or (b) of that subsection occurs within the period of 8 weeks ending with the day on which the poll at the next ordinary general election would be held (disregarding section 2(5)).

(2) If the Presiding Officer makes such a proposal, Her Majesty may by proclamation under the Scottish Seal—

(a) dissolve the Parliament and require an extraordinary general election to be held,

(b) require the poll at the election to be held on the day proposed, and

(2A) Subsection (2B) applies if a proclamation is made under subsection (2).

(2B) If the Presiding Officer proposes another day for the holding of the poll at the extraordinary general election which is not more than 4 weeks later than the day on which the poll is required to be held under the proclamation, Her Majesty may by further proclamation under the Scottish Seal—

(a) require the poll at the election to be held instead on the day proposed under this subsection, and

(b) require the Parliament to meet within the period of seven days beginning immediately after the day of the poll.

(2C) Before proposing a day for the holding of the poll under subsection (2B), the Presiding Officer must consult the Electoral Commission.

(3) If a poll is held under this section within the period of six months ending with the day on which the poll at the next ordinary general election would be held (disregarding section 2(5)), that ordinary general election shall not be held.

(4) Subsection (3) does not affect the year in which the subsequent ordinary general election is to be held.

Calculating time for meeting of the Parliament

4

In calculating any period of days for the purposes of section 2(3)(b) or (5)(c) or section 3(2)(c), Saturday, Sunday, Christmas Eve, Christmas Day, Good Friday, a bank holiday in Scotland or a day appointed for public thanksgiving or mourning shall be disregarded.

Candidates

5

(1) The standing orders shall include provision for ensuring that the available officers do not all represent the same political party.

(2) The available officers are—

(a) the Presiding Officer and the deputies appointed under section 19(1), except in the case where one or more of them is unable to act and there is at least one additional deputy;

(b) in that case, such of the Presiding Officer and deputies as are for the time being able to act.

Accounts and audit.

6

(1) This section and sections 7 and 8 are about the return of regional members at a general election.

(2) In each of the constituencies for the Parliament, a poll shall be held at which each person entitled to vote as elector may give a vote (referred to in this Act as a “regional vote”) for—

(a) a registered political party which has submitted a regional list, or

(b) an individual candidate to be a regional member for the region.

(3) The right conferred on a person by subsection (2) is in addition to any right the person may have to vote in any poll for the return of a constituency member.

Calculation of regional figures

7

(1) The persons who are to be returned as constituency members for constituencies included in the region must be determined before the persons who are to be returned as the regional members for the region.

(2) For each registered political party which has submitted a regional list, the regional figure for the purposes of section 8 is—

(a) the total number of regional votes given for the party in all the constituencies included in the region,

divided by

(b) the aggregate of one plus the number of candidates of the party returned as constituency members for any of those constituencies.

(3) Each time a seat is allocated to the party under section 8, that figure shall be recalculated by increasing (or further increasing) the aggregate in subsection (2)(b) by one.

(4) For each individual candidate to be a regional member for the region, the regional figure for the purposes of section 8 is the total number of regional votes given for him in all the constituencies included in the region.

Allocation of seats to regional members

8

(1) The first regional member seat shall be allocated to the registered political party or individual candidate with the highest regional figure.

(2) The second and subsequent regional member seats shall be allocated to the registered political party or individual candidate with the highest regional figure, after any recalculation required by section 7(3) has been carried out.

(3) An individual candidate already returned as a constituency or regional member shall be disregarded.

(4) Seats for the region which are allocated to a registered political party shall be filled by the persons in the party’s regional list in the order in which they appear in the list.

(5) For the purposes of this section and section 10, a person in a registered political party’s regional list who is returned as a member of the Parliament shall be treated as ceasing to be in the list (even if his return is void).

(6) Once a party’s regional list has been exhausted (by the return of persons included in it as constituency members or by the previous application of subsection (1) or (2)) the party shall be disregarded.

(7) If (on the application of subsection (1) or any application of subsection (2)) the highest regional figure is the regional figure of two or more parties or individual candidates,

(a) the subsection in question shall apply to each of them; or

(b) if paragraph (a) would result in more than the correct number of seats for the region being allocated, the subsection in question shall apply as if the regional figure for each of those parties or candidates had been adjusted in accordance with subsection (8).

(8) The regional figure for a party or candidate is adjusted in accordance with this subsection by—

(a) adding one vote to the total number of regional votes given for the party or candidate in all the constituencies included in the region; and

(b) (in the case of a party) recalculating the regional figure accordingly.

(9) If, on the application of the subsection in question in accordance with subsection (7)(b), seats would be allocated to two or more parties or individual candidates and that would result in more than the correct number of seats for the region being allocated, the regional returning officer shall decide between them by lot.

Vacancies

Constituency vacancies

9

(1) Where the seat of a constituency member is vacant, an election shall be held to fill the vacancy (subject to subsection (4)).

(2) The date of the poll shall be fixed by the Presiding Officer.

(3) The date shall fall within the period of three months—

(a) beginning with the occurrence of the vacancy, or

(b) if the vacancy does not come to the notice of the Presiding Officer within the period of one month beginning with its occurrence, beginning when it does come to his notice.

(4) The election shall not be held if the latest date for holding the poll would fall within the period of three months ending with the day on which the poll at the next ordinary general election would be held (disregarding section 2(5)).

(4A) Subsection (4B) applies where—

(a) the Presiding Officer fixes a date under subsection (2), and

(b) the date fixed does not fall within the period of 6 months ending with the day on which the poll at the next ordinary general election would be held (disregarding section 2(5)).

(4B) The Presiding Officer may fix another date for the holding of the poll which is to be within the period of 3 months beginning with the date of the poll fixed by the Presiding Officer under subsection (2).

(4C) Subsection (4D) applies where—

(a) the Presiding Officer fixes a date under subsection (2) or (4B), and

(b) the date fixed falls within the period of 6 months ending with the day on which the poll at the next ordinary general election would be held (disregarding section 2(5)).

(4D) If the Presiding Officer considers it necessary or appropriate for any reason to do so, the Presiding Officer may determine that an election to fill the vacancy is not to be held.

(4E) Before fixing a date under subsection (4B) or (as the case may be) determining that an election is not to be held under subsection (4D), the Presiding Officer must consult—

(a) the Electoral Commission,

(b) the convener of the Electoral Management Board for Scotland, and

(c) the officer appointed by order in accordance with section 12(1) of the Scotland Act 1998 to act as the returning officer for the constituency in which the seat is vacant.

(4F) As soon as reasonably practicable after fixing a date under subsection (4B) or (as the case may be) determining that an election is not to be held under subsection (4D), the Presiding Officer must publish, in such manner as the Presiding Officer considers appropriate, a statement setting out—

(a) either—

(i) the date fixed for the holding of the poll, or (as the case may be)

(ii) that an election is not to be held, and

(b) the reasons for the exercise of the power.

(5) For the purposes of this section, the date on which a vacancy is to be treated as occurring shall be determined under standing orders.

(6) A person may not be a candidate at such an election if he is a member of the Parliament or a candidate in another election to fill a vacancy.

Regional vacancies

10

(1) This section applies where the seat of a regional member is vacant.

(2) If the regional member was returned as an individual candidate, or the vacancy is not filled in accordance with the following provisions, the seat shall remain vacant until the next general election.

(3) If the regional member was returned (under section 8 or this section) from a registered political party’s regional list, the regional returning officer shall notify the Presiding Officer of the name of the person who is to fill the vacancy.

(4) The regional returning officer shall ascertain from that party's regional list the name and address of the person whose name appears highest on that list (“ the first choice ”) and shall take such steps as appear to him to be reasonable to contact the first choice to ask whether he will—

(a) state in writing that he is willing and able to serve as a regional member for that region; and

(b) deliver a certificate signed by or on behalf of the nominating officer of the registered party which submitted that regional list stating that the first choice may be returned as a regional member from that list.

(4A) Where—

(a) within such period as the regional returning officer considers reasonable—

(i) he decides that the steps he has taken to contact the first choice have been unsuccessful; or

(ii) he has not received from that person the statement and certificate referred to in subsection (4); or

(b) the first choice has—

(i) stated in writing that he is not willing to serve as a regional member for that region; or

(ii) failed to deliver the certificate referred to in subsection (4)(b),

the regional returning officer shall repeat the procedure required by subsection (4) in respect of the person (if any) whose name appears next in that list (“ the second choice ”) or, where paragraph (a) or (b) of this subsection applies in respect of that person, in respect of the person (if any) whose name appears next highest after the second choice in that list; and the regional returning officer shall continue to repeat the procedure until the regional returning officer has notified the Presiding Officer of the name of the person who is to fill the vacancy or the names in the list are exhausted.

(5) Where a person whose name appears on that list provides the statement and certificate referred to in subsection (4), the regional returning officer shall notify to the Presiding Officer the name of that person.

(5A) Where—

(a) under subsection (4A), the regional returning officer has asked the second choice or a subsequent choice the questions referred to in subsection (4); and

(b) the person who was asked those questions on an earlier occasion then provides the statement and certificate referred to in that subsection,

that statement and certificate shall have no effect unless and until the circumstances described in paragraph (a) or (b) of subsection (4A) apply in respect of the second choice or, as the case may be, of the subsequent choice.

(6) Where a person’s name has been notified under subsection (3), this Act shall apply as if he had been declared to be returned as a regional member for the region on the day on which notification of his name was received by the Presiding Officer.

(7) For the purposes of this section, the date on which a vacancy is to be treated as occurring shall be determined under standing orders.

Franchise and conduct of elections

Reimbursement of expenses

11

(1) The persons entitled to vote as electors at an election for membership of the Parliament held in any constituency are those who on the day of the poll—

(a) would be entitled to vote as electors at a local government election in an electoral area falling wholly or partly within the constituency, and

(b) are registered in the register of local government electors at an address within the constituency.

(2) A person is not entitled to vote as elector in any constituency—

(a) more than once at a poll for the return of a constituency member, or

(b) more than once at a poll for the return of regional members,

or to vote as elector in more than one constituency at a general election.

Power to make provision about elections

12

(1) The Scottish Ministers may by order make any provision that would be within the legislative competence of the Parliament, if included in an Act of the Scottish Parliament, as to—

(a) the conduct of elections for membership of the Parliament,

(b) the questioning of such an election and the consequences of irregularities, and

(2) The provision that may be made under subsection (1)(a) includes, in particular, provision—

(a) about the registration of electors,

(b) for disregarding alterations in a register of electors,

(d) for the combination of polls,

(e) for modifying the application of section 7(1) where the poll at an election for the return of a constituency member is abandoned (or notice of it is countermanded), and

(f) for modifying section 8(7) to ensure the allocation of the correct number of seats for the region.

(3) The provision that may be made under subsection (1)(c) includes, in particular, provision modifying section 10(4) to (5A).

(4) An order under subsection (1) may—

(a) apply, with or without modifications or exceptions, any provision made by or under the Representation of the People Acts ... or by any other enactment relating to parliamentary elections ... or local government elections, and

(b) so far as may be necessary in consequence of any provision made by an order under subsection (1), modify any provision made by any enactment relating to the registration of parliamentary electors or local government electors.

(5) The return of a member of the Parliament at an election may be questioned only under Part 3 of the Representation of the People Act 1983 as applied by an order under subsection (1).

(6) For the purposes of this Act, the regional returning officer for any region is the person designated as such in accordance with an order made by the Scottish Ministers under this subsection.

Duration of membership

Term of office of members

13

The term of office of a member of the Parliament begins on the day on which the member is declared to be returned and ends with the dissolution of the Parliament.

Powers of courts or tribunals to vary retrospective decisions.

14

A member of the Parliament may at any time resign his seat by giving notice in writing to the Presiding Officer.

Disqualification

Disqualification from membership of the Parliament

15

(1) A person is disqualified from being a member of the Parliament (subject to section 16) if—

(a) the person would be disqualified from being a member of the House of Commons under paragraphs (a) to (e) of section 1(1) of the House of Commons Disqualification Act 1975 (judges, civil servants, members of the armed forces, members of police forces and members of foreign legislatures) as that Act had effect on 27 April 2022,

(b) the person would be disqualified (either generally or in relation to a particular parliamentary constituency) from being a member of the House of Commons or from sitting and voting in it under any other enactment or rule of law as that enactment or rule of law had effect on 27 April 2022,

(bza) the person is a member of the House of Commons,

(bzb) the person is a member of the House of Lords,

(bzc) the person is a councillor,

(ba) the person is subject to—

(i) any relevant notification requirements, or

(ii) a relevant sexual harm or risk order,

(bb) the person is subject to a Scottish disqualification order under section 8 of the Scottish Elections (Representation and Reform) Act 2025,

(bc) the person is subject to a disqualification order under section 30 of the Elections Act 2022 (disqualification of offenders from holding elective office etc),

(d) he is an office-holder of a description specified in an Order in Council made by Her Majesty under this subsection.

(2) An office-holder of a description specified in an Order in Council made by Her Majesty under this subsection is disqualified from being a member of the Parliament for any constituency or region of a description specified in the Order in relation to the office-holder.

(3) In this section “office-holder” includes employee or other post-holder.

(4) In this section and in section 16—

“councillor” means a member of a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994.

“relevant notification requirements” has the same meaning as in section 31(4) of the Local Government (Scotland) Act 1973, and

“relevant sexual harm or risk order” has the same meaning as in section 31(5) of the Local Government (Scotland) Act 1973.

Exceptions and relief from disqualification

16

(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(1ZA) A person who is a member of the House of Commons and is subsequently returned as a member of the Parliament is not disqualified from being a member of the Parliament merely because of section 15(1)(bza) (disqualification by virtue of being a member of the House of Commons) at any time in the period of 49 days beginning with the day on which the person is returned as a member of the Parliament.

(1ZB) A person who is a member of the Parliament and is subsequently returned as a member of the House of Commons is not disqualified from being a member of the Parliament merely because of section 15(1)(bza) at any time in the period of 49 days beginning with the day on which the person is returned as a member of the House of Commons.

(1ZC) A person who is a member of the House of Lords and is subsequently returned as a member of the Parliament is not disqualified from being a member of the Parliament merely because of section 15(1)(bzb) (disqualification by virtue of being a member of the House of Lords) at any time in the period of 14 days beginning with the day on which the person is returned as a member of the Parliament.

(1ZD) A person who is a member of the Parliament and subsequently becomes a member of the House of Lords is not disqualified from being a member of the Parliament merely because of section 15(1)(bzb) at any time before the end of the period of 14 days beginning with the day on which the member makes and subscribes the oath (or corresponding affirmation) required of members of the House of Lords by the Parliamentary Oaths Act 1866.

(1ZE) A person who is a member of the Parliament and is subsequently returned as a councillor is not disqualified from being a member of the Parliament merely because of section 15(1)(bzc) (disqualification by virtue of being a councillor) at any time in the period of 49 days beginning with the day on which the person is returned as a councillor.

(1ZF) Subsection (1ZG) applies if—

(a) a person who is a councillor is subsequently returned as a member of the Parliament, and

(b) on the day on which the councillor is so returned (the “return day”), the expected day of the next ordinary election of councillors is within the period of 372 days beginning with the return day.

(1ZG) The person is not disqualified from being a member of the Parliament merely because of section 15(1)(bzc) at any time in the period beginning with the day on which the person is returned as a member of the Parliament and ending on the day of the poll at the next ordinary election of councillors.

(1ZH) Otherwise, a person who is a councillor and is subsequently returned as a member of the Parliament is not disqualified from being a member of the Parliament because of section 15(1)(bzc) at any time in the period of 49 days beginning with the day on which the councillor is returned as a member of the Parliament.

(1ZI) For the purposes of subsection (1ZF) “the expected day of the next ordinary election of councillors” is the day fixed or specified for the poll at the next ordinary election of councillors by, or under, section 43 or section 43A of the Representation of the People Act 1983, which has effect at the beginning of the return day.

(1A) A person who is subject to—

(a) any relevant notification requirements,

(b) a relevant sexual harm or risk order, or

is not disqualified merely because of section 15(1)(ba), (bb) or, as the case may be, (bc) until the appropriate time.

(1B) The appropriate time is—

(a) the end of the period of 3 months beginning with the date of the imposition of the requirements or of the order date, or

(b) if earlier, the expiry of the ordinary period allowed for making—

(i) an appeal or application in respect of the conviction, finding, order or certification to which the relevant notification requirements relate,

(ii) an appeal against the relevant sexual harm or risk order, or

(iii) an appeal against the conviction or the making of the disqualification order.

(1C) But if, before the appropriate time mentioned in subsection (1B), the person makes such an appeal or application, the person is disqualified at the end of the period of 3 months beginning with the date of the imposition of the requirements or of the order date unless—

(a) the appeal or application is dismissed or abandoned at any earlier time (in which case the person is disqualified at that time), or

(b) at any time within that period of 3 months the appeal or application is upheld (in which case the person is not disqualified).

(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2A) A person is not disqualified from being a member of the Parliament merely because of section 3 of the Act of Settlement, provided the person—

(a) is resident in the United Kingdom, and

(b) meets one of the conditions mentioned in subsection (2B).

(2B) The conditions are that the person—

(a) is not a person who requires leave under the Immigration Act 1971 to enter or remain in the United Kingdom (excluding a person who does not require such leave by virtue only of section 8 of the Immigration Act 1971 (exceptions to requirement for leave in special cases)), or

(b) is such a person but for the time being has (or is, by virtue of any enactment, to be treated as having) any description of such leave.

(2C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) Subsection (4) applies where a person was, or is alleged to have been, disqualified from being a member of the Parliament (either generally or in relation to a particular constituency or region) on any ground other than one falling within section 15(1)(b), (ba), (bb) or (bc).

(4) The Parliament may resolve to disregard any disqualification incurred by that person on the ground in question if it considers that—

(a) the ground has been removed, and

(b) it is proper to disregard any disqualification so incurred.

(5) A resolution under this section shall not—

(a) affect any proceedings under Part III of the Representation of the People Act 1983 as applied by an order under section 12, or

(b) enable the Parliament to disregard any disqualification which has been established in such proceedings or in proceedings under section 18.

(6) In this section—

“order date” means the date on which the relevant sexual harm or risk order or, as the case may be, relevant disqualification order is made by the court,

“relevant disqualification order” means—a Scottish disqualification order under section 8 of the Scottish Elections (Representation and Reform) Act 2025 (Scottish disqualification orders),a disqualification order under section 30 of the Elections Act 2022 (disqualification of offenders from holding elective office etc).

Effect of disqualification

17

(1) If a person who is disqualified from being a member of the Parliament or from being a member for a particular constituency or region is returned as a member of the Parliament or (as the case may be) as a member for the constituency or region, his return shall be void and his seat vacant.

(2) If a member of the Parliament becomes disqualified from being a member of the Parliament or from being a member for the particular constituency or region for which he is sitting, he shall cease to be a member of the Parliament (so that his seat is vacant).

(3) Subsections (1) and (2) have effect subject to any resolution of the Parliament under section 16.

(4) Subsection (2) also has effect subject to section 16(1A) and ... section 427 of the Insolvency Act 1986 (sequestration etc); and where, in consequence of those sections, the seat of a disqualified member of the Parliament is not vacant he shall not cease to be a member of the Parliament until his seat becomes vacant but—

(a) he shall not participate in any proceedings of the Parliament, and

(b) any of his other rights and privileges as a member of the Parliament may be withdrawn by a resolution of the Parliament.

(5) The validity of any proceedings of the Parliament is not affected by the disqualification of any person from being a member of the Parliament or from being a member for the constituency or region for which he purports to sit.

Judicial proceedings as to disqualification

18

(1) Any person who claims that a person purporting to be a member of the Parliament is disqualified or has been disqualified at any time since being returned may apply to the Court of Session for a declarator to that effect.

(2) An application in respect of any person may be made whether the grounds on which it is made are alleged to have subsisted when the person was returned or to have arisen subsequently.

(3) No declarator shall be made—

(a) on grounds which subsisted when the person was returned, if an election petition is pending or has been tried in which the disqualification on those grounds of the person concerned is or was in issue, or

(b) on any ground, if a resolution under section 16 requires that any disqualification incurred on that ground by the person concerned is to be disregarded.

(4) The person in respect of whom an application is made shall be the defender.

(5) The applicant shall give such caution for the expenses of the proceedings as the Court of Session may direct; but any such caution shall not exceed £5,000 or such other sum as the Scottish Ministers may by order specify.

(6) The decision of the court on an application under this section shall be final.

(7) In this section “disqualified” means disqualified from being a member of the Parliament or from being a member for the constituency or region for which the person concerned purports to sit.

Presiding Officer and administration

Presiding Officer

19

(1) The Parliament shall, ... following a general election, elect from among its members a Presiding Officer and two deputies.

(1A) The Parliament must do so—

(a) before it conducts any other proceedings, except the taking by its members of the oath of allegiance (see section 84), and

(b) in any event, within the period of 14 days beginning immediately after the day of the poll at the election.

(1AA) But where a general election was held on a day proposed by the Presiding Officer in accordance with a proclamation made by His Majesty under section 2(5) or (5E), subsection (1A) has effect as if for the words “within the period of 14 days beginning immediately” there were substituted “as soon as reasonably practicable”.

(1B) The Parliament may, at any time, elect from among its members one or more additional deputies.

(2) A person elected Presiding Officer or deputy shall hold office until the conclusion of the next election for Presiding Officer under subsection (1) unless he previously resigns, ceases to be a member of the Parliament otherwise than by virtue of a dissolution or is removed from office by resolution of the Parliament.

(2A) But standing orders may make provision for additional deputies to hold office for a shorter time than provided by subsection (2).

(3) If the Presiding Officer or a deputy elected under subsection (1) ceases to hold office before the Parliament is dissolved, the Parliament shall elect another from among its members to fill his place.

(4) The Presiding Officer’s functions may be exercised by a deputy if the office of Presiding Officer is vacant or the Presiding Officer is for any reason unable to act.

(5) The Presiding Officer may (subject to standing orders) authorise any deputy to exercise functions on his behalf.

(6) Standing orders may include provision as to the participation (including voting) of the Presiding Officer and deputies in the proceedings of the Parliament.

(7) The validity of any act of the Presiding Officer or a deputy is not affected by any defect in his election.

Clerk of the Parliament

20

(1) There shall be a Clerk of the Parliament.

(2) The Clerk shall be appointed by the Scottish Parliamentary Corporate Body (established under section 21).

(3) The Clerk’s functions may be exercised by any Assistant Clerk if the office of Clerk is vacant or the Clerk is for any reason unable to act.

(4) The Clerk may authorise any Assistant Clerk or other member of the staff of the Parliament to exercise functions on his behalf.

Scottish Parliamentary Corporate Body

21

(1) There shall be a body corporate to be known as “The Scottish Parliamentary Corporate Body” (referred to in this Act as the Parliamentary corporation) to perform the functions conferred on the corporation by virtue of this Act or any other enactment.

(2) The members of the corporation shall be—

(a) the Presiding Officer, and

(b) at least four members of the Parliament appointed in accordance with standing orders.

(3) The corporation shall provide the Parliament, or ensure that the Parliament is provided, with the property, staff and services required for the Parliament’s purposes.

(4) The Parliament may give special or general directions to the corporation for the purpose of or in connection with the exercise of the corporation’s functions.

(5) Any property or liabilities acquired or incurred in relation to matters within the general responsibility of the corporation to which (apart from this subsection) the Parliament would be entitled or subject shall be treated for all purposes as property or (as the case may be) liabilities of the corporation.

(6) Any expenses of the corporation shall be payable out of the Scottish Consolidated Fund.

(7) Any sums received by the corporation shall be paid into that Fund, subject to any provision made by or under an Act of the Scottish Parliament for the disposal of or accounting for such sums.

(8) Schedule 2 (which makes further provision about the corporation) shall have effect.

Proceedings etc.

Standing orders

22

(1) The proceedings of the Parliament shall be regulated by standing orders.

(2) Schedule 3 (which makes provision as to how certain matters are to be dealt with by standing orders) shall have effect.

Power to call for witnesses and documents

23

(1) The Parliament may require any person—

(a) to attend its proceedings for the purpose of giving evidence, or

(b) to produce documents in his custody or under his control,

concerning any subject for which any member of the Scottish Government has general responsibility.

(2) Subject to subsection (3), the Parliament may impose such a requirement on a person outside Scotland only in connection with the discharge by him of—

(a) functions of the Scottish Administration, or

(b) functions of a Scottish public authority or cross-border public authority, or Border rivers functions (within the meaning of section 111(4)), which concern a subject for which any member of the Scottish Government has general responsibility.

(3) In relation to the exercise of functions of a Minister of the Crown, the Parliament may not impose such a requirement on—

(a) him (whether or not he continues to be a Minister of the Crown), or

(b) a person who is or has been in Crown employment, within the meaning of section 191(3) of the Employment Rights Act 1996,

unless the exercise concerns a subject for which any member of the Scottish Government has general responsibility.

(4) But the Parliament may not impose such a requirement in pursuance of subsection (3) in connection with the exercise of functions which are exercisable—

(a) by the Scottish Ministers as well as by a Minister of the Crown, or

(b) by a Minister of the Crown only with the agreement of, or after consultation with, the Scottish Ministers.

(5) Subsection (4)(b) does not prevent the Parliament imposing such a requirement in connection with the exercise of functions which do not relate to reserved matters.

(6) Where all the functions of a body relate to reserved matters, the Parliament may not impose such a requirement on any person in connection with the discharge by him of those functions.

(7) The Parliament may not impose such a requirement on—

(a) a judge of any court, or

(b) a member of any tribunal in connection with the discharge by him of his functions as such.

(8) Such a requirement may be imposed by a committee or sub-committee of the Parliament only if the committee or sub-committee is expressly authorised to do so (whether by standing orders or otherwise).

(9) A person is not obliged under this section to answer any question or produce any document which he would be entitled to refuse to answer or produce in proceedings in a court in Scotland.

(10) A procurator fiscal is not obliged under this section to answer any question or produce any document concerning the operation of the system of criminal prosecution in any particular case if the Lord Advocate—

(a) considers that answering the question or producing the document might prejudice criminal proceedings in that case or would otherwise be contrary to the public interest, and

(b) has authorised the procurator fiscal to decline to answer the question or produce the document on that ground.

Witnesses and documents: notice

24

(1) A requirement under section 23 shall be imposed by the Clerk giving the person in question notice in writing specifying—

(a) the time and place at which the person is to attend and the particular subjects concerning which he is required to give evidence, or

(b) the documents, or types of documents, which he is to produce, the date by which he is to produce them and the particular subjects concerning which they are required.

(2) Such notice shall be given—

(a) in the case of an individual, by sending it, by registered post or the recorded delivery service, addressed to him at his usual or last known address or, where he has given an address for service, at that address,

(b) in any other case, by sending it, by registered post or the recorded delivery service, addressed to the person at the person’s registered or principal office.

Witnesses and documents: offences

25

(1) Any person to whom a notice under section 24(1) has been given who—

(a) refuses or fails to attend proceedings as required by the notice,

(b) refuses or fails, when attending proceedings as required by the notice, to answer any question concerning the subjects specified in the notice,

(d) refuses or fails to produce any such document,

is guilty of an offence.

(2) Subsection (1) is subject to sections 23(9) and (10) and 27(3).

(3) It is a defence for a person charged with an offence under subsection (1)(a), (b) or (d) to prove that he had a reasonable excuse for the refusal or failure.

(4) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 5 on the standard scale or to imprisonment for a period not exceeding three months.

(5) Where an offence under this section which has been committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of—

(a) a director, manager, secretary or other similar officer of the body corporate, or

(b) any person who was purporting to act in any such capacity,

he, as well as the body corporate, is guilty of that offence and liable to be proceeded against accordingly.

Witnesses and documents: general

26

(1) The Presiding Officer or such other person as may be authorised by standing orders may—

(a) administer an oath to any person giving evidence in proceedings of the Parliament, and

(b) require him to take the oath.

(2) Any person who refuses to take an oath when required to do so under subsection (1)(b) is guilty of an offence.

(3) Subsection (4) of section 25 applies to an offence under subsection (2) as it applies to an offence under that section.

(4) Standing orders may provide for the payment of allowances and expenses to persons—

(a) attending proceedings of the Parliament to give evidence, or

(b) producing documents which they have been required or requested to produce,

whether or not in pursuance of a notice under section 24(1).

(5) For the purposes of sections 23 to 25 and this section, a person shall be taken to comply with a requirement to produce a document if he produces a copy of, or an extract of the relevant part of, the document.

Participation of the Scottish Law Officers

27

(1) If the Lord Advocate or the Solicitor General for Scotland is not a member of the Parliament—

(a) he may participate in the proceedings of the Parliament to the extent permitted by standing orders, but may not vote, and

(b) standing orders may in other respects provide that they are to apply to him as if he were such a member.

(2) Subsection (1) is without prejudice to section 39.

(3) The Lord Advocate or the Solicitor General for Scotland may, in any proceedings of the Parliament, decline to answer any question or produce any document relating to the operation of the system of criminal prosecution in any particular case if he considers that answering the question or producing the document—

(a) might prejudice criminal proceedings in that case, or

(b) would otherwise be contrary to the public interest.

Legislation

Acts of the Scottish Parliament

28

(1) Subject to section 29, the Parliament may make laws, to be known as Acts of the Scottish Parliament.

(2) Proposed Acts of the Scottish Parliament shall be known as Bills; and a Bill shall become an Act of the Scottish Parliament when it has been passed by the Parliament and has received Royal Assent.

(3) A Bill receives Royal Assent at the beginning of the day on which Letters Patent under the Scottish Seal signed with Her Majesty’s own hand signifying Her Assent are recorded in the Register of the Great Seal.

(4) The date of Royal Assent shall be written on the Act of the Scottish Parliament by the Clerk, and shall form part of the Act.

(5) The validity of an Act of the Scottish Parliament is not affected by any invalidity in the proceedings of the Parliament leading to its enactment.

(6) Every Act of the Scottish Parliament shall be judicially noticed.

(7) This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland.

(8) But it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.

Legislative competence

29

(1) An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament.

(2) A provision is outside that competence so far as any of the following paragraphs apply—

(a) it would form part of the law of a country or territory other than Scotland, or confer or remove functions exercisable otherwise than in or as regards Scotland,

(b) it relates to reserved matters,

(d) it is incompatible with any of the Convention rights ...,

(e) it would remove the Lord Advocate from his position as head of the systems of criminal prosecution and investigation of deaths in Scotland.

(3) For the purposes of this section, the question whether a provision of an Act of the Scottish Parliament relates to a reserved matter is to be determined, subject to subsection (4), by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances.

(4) A provision which—

(a) would otherwise not relate to reserved matters, but

(b) makes modifications of Scots private law, or Scots criminal law, as it applies to reserved matters,

is to be treated as relating to reserved matters unless the purpose of the provision is to make the law in question apply consistently to reserved matters and otherwise.

(5) Subsection (1) is subject to section 30(6).

Legislative competence: supplementary

30

(1) Schedule 5 (which defines reserved matters) shall have effect.

(2) Her Majesty may by Order in Council make any modifications of Schedule 4 or 5 which She considers necessary or expedient.

(3) Her Majesty may by Order in Council specify functions which are to be treated, for such purposes of this Act as may be specified, as being, or as not being, functions which are exercisable in or as regards Scotland.

(4) An Order in Council under this section may also make such modifications of—

(a) any enactment or prerogative instrument (including any enactment comprised in or made under this Act), or

(b) any other instrument or document,

as Her Majesty considers necessary or expedient in connection with other provision made by the Order.

(5) Subsection (6) applies where any alteration is made—

(a) to the matters which are reserved matters, or

(b) to Schedule 4,

(whether by virtue of the making, revocation or expiry of an Order in Council under this section or otherwise).

(6) Where the effect of the alteration is that a provision of an Act of the Scottish Parliament ceases to be within the legislative competence of the Parliament, the provision does not for that reason cease to have effect (unless an enactment provides otherwise).

Scrutiny of Bills before introduction

31

(1) A person in charge of a Bill shall, on or before introduction of the Bill in the Parliament, state that in his view the provisions of the Bill would be within the legislative competence of the Parliament.

(2) The Presiding Officer shall, on or before the introduction of a Bill in the Parliament, decide whether or not in his view the provisions of the Bill would be within the legislative competence of the Parliament and state his decision.

(2A) The Presiding Officer shall, after the last time when a Bill may be amended but before the decision whether to pass or reject it, decide whether or not in his view any provision of the Bill relates to a protected subject-matter and state his decision.

(3) The form of any statement, and the manner in which it is to be made, shall be determined under standing orders, and standing orders may provide for any statement to be published.

(4) For the purposes of this Part a provision of a Bill relates to a protected subject-matter if it would modify, or confer power to modify, any of the matters listed in subsection (5) (but not if the provision is incidental to or consequential on another provision of the Bill).

(5) The matters are—

(a) the persons entitled to vote as electors at an election for membership of the Parliament,

(b) the system by which members of the Parliament are returned,

(d) the number of members to be returned for each constituency, region or equivalent electoral area.

Submission of Bills for Royal Assent

32

(1) It is for the Presiding Officer to submit Bills for Royal Assent.

(2) The Presiding Officer shall not submit a Bill for Royal Assent at any time when—

(a) the Advocate General, the Lord Advocate or the Attorney General is entitled to make a reference in relation to the Bill under section 32A or 33,

(b) any such reference has been made but has not been decided or otherwise disposed of by the Supreme Court, or

(2A) The Presiding Officer shall not submit a Bill for Royal Assent if the Supreme Court has decided on a reference made in relation to the Bill under section 32A(2)(b) that any provision of the Bill relates to a protected subject-matter, unless since the decision the Bill has been approved in accordance with standing orders made by virtue of section 36(5).

(3) The Presiding Officer shall not submit a Bill in its unamended form for Royal Assent if—

(a) the Supreme Court has decided that the Bill or any provision of it would not be within the legislative competence of the Parliament. ...

(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) In this Act—

“Advocate General” means the Advocate General for Scotland,

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Scrutiny of Bills by the Judicial Committee

33

(1) The Advocate General, the Lord Advocate or the Attorney General may refer the question of whether a Bill or any provision of a Bill would be within the legislative competence of the Parliament to the Supreme Court for decision.

(2) Subject to subsection (3), he may make a reference in relation to a Bill at any time during—

(a) the period of four weeks beginning with the passing of the Bill, and

(b) any period of four weeks beginning with any ... approval of the Bill in accordance with standing orders made by virtue of section 36(5).

(3) He shall not make a reference in relation to a Bill if he has notified the Presiding Officer that he does not intend to make a reference in relation to the Bill, unless the Bill has been approved as mentioned in subsection (2)(b) since the notification.

ECJ references

34

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Power to intervene in certain cases

35

(1) If a Bill contains provisions—

(a) which the Secretary of State has reasonable grounds to believe would be incompatible with any international obligations or the interests of defence or national security, or

(b) which make modifications of the law as it applies to reserved matters and which the Secretary of State has reasonable grounds to believe would have an adverse effect on the operation of the law as it applies to reserved matters,

he may make an order prohibiting the Presiding Officer from submitting the Bill for Royal Assent.

(2) The order must identify the Bill and the provisions in question and state the reasons for making the order.

(3) The order may be made at any time during—

(a) the period of four weeks beginning with the passing of the Bill,

(b) any period of four weeks beginning with any ... approval of the Bill in accordance with standing orders made by virtue of section 36(5),

(c) if a reference is made in relation to the Bill under section 32A(2)(b) or 33, the period of four weeks beginning with the reference being decided or otherwise disposed of by the Supreme Court.

(4) The Secretary of State shall not make an order in relation to a Bill if he has notified the Presiding Officer that he does not intend to do so, unless the Bill has been approved as mentioned in subsection (3)(b) since the notification.

(5) An order in force under this section at a time when such approval is given shall cease to have effect.

Stages of Bills

36

(1) Standing orders shall include provision—

(a) for general debate on a Bill with an opportunity for members to vote on its general principles,

(b) for the consideration of, and an opportunity for members to vote on, the details of a Bill, and

(2) Subsection (1) does not prevent standing orders making provision to enable the Parliament to expedite proceedings in relation to a particular Bill.

(3) Standing orders may make provision different from that required by subsection (1) for the procedure applicable to Bills of any of the following kinds—

(a) Bills which restate the law,

(b) Bills which repeal spent enactments,

(4) Standing orders shall provide for an opportunity for the reconsideration of a Bill after its passing if (and only if)—

(a) the Supreme Court decides that the Bill or any provision of it would not be within the legislative competence of the Parliament,

(aa) the Supreme Court decides on a reference made in relation to the Bill under section 32A(2)(b) that any provision of the Bill relates to a protected subject-matter,

(b) ... or

(4A) Standing orders shall provide for an opportunity for the reconsideration of a Bill after its rejection if (and only if), on a reference made in relation to the Bill under section 32A(2)(a), the Supreme Court decides that no provision that is subject to the reference relates to a protected subject-matter.

(5) Standing orders shall, in particular, ensure that —

(a) any Bill amended on reconsideration in accordance with standing orders made by virtue of subsection (4)(a) ... or (c), and

(b) any Bill reconsidered in accordance with standing orders made by virtue of subsection (4)(aa) or (4A),

is subject to a final stage at which it can be approved or rejected.

(6) References in subsection (4), sections 28(2), 31(2A), 31A, 32A(2)(b) and 38(1)(a) and paragraph 7 of Schedule 3 to the passing of a Bill shall, in the case of a Bill to which subsection (5)(a) or (b) applies, be read as references to the approval of the Bill.

Other provisions

Acts of Union

37

The Union with Scotland Act 1706 and the Union with England Act 1707 have effect subject to this Act.

Letters Patent and proclamations

38

(1) The Keeper of the Registers of Scotland shall record in the Register of the Great Seal—

(a) all Letters Patent signed with Her Majesty’s own hand signifying Her Assent to a Bill passed by the Parliament, and

(b) all royal proclamations under sections 2(5) and 3(2),

which have passed under the Scottish Seal.

(2) On recording such Letters Patent he shall intimate the date of recording to the Clerk.

(3) Her Majesty may by Order in Council make provision as to—

(a) the form and manner of preparation, and

(b) the publication,

of such Letters Patent and proclamations.

(4) If the First Minister so directs, impressions with the same device as the Scottish Seal shall be taken in such manner, of such size and on such material as is specified in the direction.

(5) Each such impression—

(a) shall be known as a Wafer Scottish Seal, and

(b) shall be kept in accordance with directions of the First Minister.

(6) If a Wafer Scottish Seal has been applied to Letters Patent or a proclamation mentioned in subsection (1), the document has the same validity as if it had passed under the Scottish Seal.

Members' interests

39

(1) Provision shall be made for a register of interests of members of the Parliament and for the register to be published and made available for public inspection.

(2) Provision shall be made—

(a) requiring members of the Parliament to register in that register financial interests (including benefits in kind), as defined for the purposes of this paragraph,

(b) requiring that any member of the Parliament who has a financial interest (including benefits in kind), as defined for the purposes of this paragraph, in any matter declares that interest before taking part in any proceedings of the Parliament relating to that matter.

(3) Provision made in pursuance of subsection (2) shall include any provision which the Parliament considers appropriate for preventing or restricting the participation in proceedings of the Parliament of a member with an interest defined for the purposes of subsection (2)(a) or (b) in a matter to which the proceedings relate.

(4) Provision shall be made prohibiting a member of the Parliament from—

(a) advocating or initiating any cause or matter on behalf of any person, by any means specified in the provision, in consideration of any payment or benefit in kind of a description so specified, or

(b) urging, in consideration of any such payment or benefit in kind, any other member of the Parliament to advocate or initiate any cause or matter on behalf of any person by any such means.

(4A) Any requirement or prohibition (however expressed) imposed by provision made in pursuance of subsections (2) to (4) may be subject to such exceptions as are specified in the provision.

(5) Provision may be made for—

(a) excluding a member from the proceedings of the Parliament,

(b) imposing on a member such other sanctions as the Parliament considers appropriate,

if the member fails to comply with, or contravenes, any provision made in pursuance of subsections (2) to (4) or this subsection.

(5A) Provision made under subsection (5) may include provision that a sanction is not to be imposed in such circumstances as are specified in the provision.

(6) Provision made under subsection (5) may include provision that the member is guilty of an offence.

(7) A person guilty of such an offence is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(8) In this section—

(a) “provision” means provision made by or under an Act of the Scottish Parliament,

(b) references to members of the Parliament include references to the Lord Advocate and the Solicitor General for Scotland, whether or not they are such members.

Legal issues

Proceedings by or against the Parliament etc

40

(1) Proceedings by or against the Parliament shall be instituted by or (as the case may be) against the Parliamentary corporation on behalf of the Parliament.

(2) Proceedings by or against—

(a) the Presiding Officer or a deputy, or

(b) any member of the staff of the Parliament,

shall be instituted by or (as the case may be) against the corporation on his behalf.

(3) In any proceedings against the Parliament, the court shall not make an order for suspension, interdict, reduction or specific performance (or other like order) but may instead make a declarator.

(4) In any proceedings against—

(a) any member of the Parliament,

(b) the Presiding Officer or a deputy,

(d) the Parliamentary corporation,

the court shall not make an order for suspension, interdict, reduction or specific performance (or other like order) if the effect of doing so would be to give any relief against the Parliament which could not have been given in proceedings against the Parliament.

(5) References in this section to an order include an interim order.

Defamatory statements

41

(1) For the purposes of the law of defamation—

(a) any statement made in proceedings of the Parliament, and

(b) the publication under the authority of the Parliament of any statement,

shall be absolutely privileged.

(2) In subsection (1), “statement” has the same meaning as in the Defamation Act 1996.

Contempt of court

42

(1) The strict liability rule shall not apply in relation to any publication—

(a) made in proceedings of the Parliament in relation to a Bill or subordinate legislation, or

(b) to the extent that it consists of a fair and accurate report of such proceedings made in good faith.

(2) In subsection (1), “the strict liability rule” and “publication” have the same meanings as in the Contempt of Court Act 1981.

Corrupt practices

43

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Part II — The Scottish Administration

Ministers and their staff

The Scottish Executive

44

(1) There shall be a Scottish Government, whose members shall be—

(a) the First Minister,

(b) such Ministers as the First Minister may appoint under section 47, and

(2) The members of the Scottish Government are referred to collectively as the Scottish Ministers.

(3) A person who holds a Ministerial office may not be appointed a member of the Scottish Government ; and if a member of the Scottish Government is appointed to a Ministerial office he shall cease to hold office as a member of the Scottish Government.

(4) In subsection (3), references to a member of the Scottish Government include a junior Scottish Minister and “Ministerial office” has the same meaning as in section 2 of the House of Commons Disqualification Act 1975.

The First Minister

45

(1) The First Minister shall be appointed by Her Majesty from among the members of the Parliament and shall hold office at Her Majesty’s pleasure.

(2) The First Minister may at any time tender his resignation to Her Majesty and shall do so if the Parliament resolves that the Scottish Government no longer enjoys the confidence of the Parliament.

(3) The First Minister shall cease to hold office if a person is appointed in his place.

(4) If the office of First Minister is vacant or he is for any reason unable to act, the functions exercisable by him shall be exercisable by a person designated by the Presiding Officer.

(5) A person shall be so designated only if—

(a) he is a member of the Parliament, or

(b) if the Parliament has been dissolved, he is a person who ceased to be a member by virtue of the dissolution.

(6) Functions exercisable by a person by virtue of subsection (5)(a) shall continue to be exercisable by him even if the Parliament is dissolved.

(7) The First Minister shall be the Keeper of the Scottish Seal.

Choice of the First Minister

46

(1) If one of the following events occurs, the Parliament shall within the period allowed nominate one of its members for appointment as First Minister.

(2) The events are—

(a) the holding of a poll at a general election,

(b) the First Minister tendering his resignation to Her Majesty,

(d) the First Minister ceasing to be a member of the Parliament otherwise than by virtue of a dissolution.

(3) The period allowed is—

(a) the period of 28 days which begins with the day on which the event in question occurs, but—

(i) if another of those events occurs within the period allowed, that period is extended (subject to sub-paragraph (ii)) so that it ends with the period of 28 days beginning with the day on which that other event occurred, and

(ii) the period ends if the Parliament passes a resolution under section 3(1)(a) or when His Majesty appoints a person as First Minister, but

(b) if the Parliament does not meet within the period of 7 days beginning immediately after the day of the poll at a general election that was held on a day proposed by the Presiding Officer in accordance with a proclamation made by His Majesty under section 2(5) or (5E), the initial period of 28 days calculated under paragraph (a) is to be extended by disregarding any days in the period subsequent to that 7 day period and before the Parliament first meets.

(4) The Presiding Officer shall recommend to Her Majesty the appointment of any member of the Parliament who is nominated by the Parliament under this section.

Ministers

47

(1) The First Minister may, with the approval of Her Majesty, appoint Ministers from among the members of the Parliament.

(2) The First Minister shall not seek Her Majesty’s approval for any appointment under this section without the agreement of the Parliament.

(3) A Minister appointed under this section—

(a) shall hold office at Her Majesty’s pleasure,

(b) may be removed from office by the First Minister,

(c) may at any time resign and shall do so if the Parliament resolves that the Scottish Government no longer enjoys the confidence of the Parliament,

(d) if he resigns, shall cease to hold office immediately, and

(e) shall cease to hold office if he ceases to be a member of the Parliament otherwise than by virtue of a dissolution.

The Scottish Law Officers

48

(1) It is for the First Minister to recommend to Her Majesty the appointment or removal of a person as Lord Advocate or Solicitor General for Scotland; but he shall not do so without the agreement of the Parliament.

(2) The Lord Advocate and the Solicitor General for Scotland may at any time resign and shall do so if the Parliament resolves that the Scottish Government no longer enjoys the confidence of the Parliament.

(3) Where the Lord Advocate resigns in consequence of such a resolution, he shall be deemed to continue in office until the warrant of appointment of the person succeeding to the office of Lord Advocate is granted, but only for the purpose of exercising his retained functions.

(4) Subsection (3) is without prejudice to section 287 of the Criminal Procedure (Scotland) Act 1995 (demission of office by Lord Advocate).

(5) Any decision of the Lord Advocate in his capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland shall continue to be taken by him independently of any other person.

(6) In Schedule 2 to the House of Commons Disqualification Act 1975 (Ministerial offices) and Part III of Schedule 1 to the Ministerial and other Salaries Act 1975 (salaries of the Law Officers), the entries for the Lord Advocate and the Solicitor General for Scotland are omitted.

Junior Scottish Ministers

49

(1) The First Minister may, with the approval of Her Majesty, appoint persons from among the members of the Parliament to assist the Scottish Ministers in the exercise of their functions.

(2) They shall be known as junior Scottish Ministers.

(3) The First Minister shall not seek Her Majesty’s approval for any appointment under this section without the agreement of the Parliament.

(4) A junior Scottish Minister—

(a) shall hold office at Her Majesty’s pleasure,

(b) may be removed from office by the First Minister,

(c) may at any time resign and shall do so if the Parliament resolves that the Scottish Government no longer enjoys the confidence of the Parliament,

(d) if he resigns, shall cease to hold office immediately, and

(e) shall cease to hold office if he ceases to be a member of the Parliament otherwise than by virtue of a dissolution.

Validity of acts of Scottish Ministers etc

50

The validity of any act of a member of the Scottish Government or junior Scottish Minister is not affected by any defect in his nomination by the Parliament or (as the case may be) in the Parliament’s agreement to his appointment.

The Civil Service

51

(1) The Scottish Ministers may appoint persons to be members of the staff of the Scottish Administration.

(2) Service as—

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

(b) a member of the staff of the Scottish Administration,

shall be service in the civil service of the State.

(3) See Part 1 of the Constitutional Reform and Governance Act 2010 (in particular, sections 3 and 4) for provision affecting—

(a) subsection (1), and

(b) any other enactment about the appointment of persons mentioned in subsection (2).

(4) See also section 1 of the Civil Service (Management Functions) Act 1992 under which functions conferred on the Minister for the Civil Service by section 3 of the Constitutional Reform and Governance Act 2010 may be delegated to the Scottish Ministers etc.

(5) Any salary or allowances payable to or in respect of the persons mentioned in subsection (2) (including contributions to any pension scheme) shall be payable out of the Scottish Consolidated Fund.

(6) Section 1(2) and (3) of the Superannuation Act 1972 (delegation of functions relating to civil service superannuation schemes etc.) shall have effect as if references to a Minister of the Crown (other than the Minister for the Civil Service) included the Scottish Ministers.

(7) The Scottish Ministers shall make payments to the Minister for the Civil Service, at such times as he may determine, of such amounts as he may determine in respect of—

(a) the provision of pensions, allowances or gratuities by virtue of section 1 of the Superannuation Act 1972 to or in respect of persons who are or have been in such service as is mentioned in subsection (2), and

(b) any expenses to be incurred in administering those pensions, allowances or gratuities.

(8) Amounts required for payments under subsection (7) shall be charged on the Scottish Consolidated Fund.

(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Ministerial functions

Exercise of functions

52

(1) Statutory functions may be conferred on the Scottish Ministers by that name.

(2) Statutory functions of the Scottish Ministers, the First Minister or the Lord Advocate shall be exercisable on behalf of Her Majesty.

(3) Statutory functions of the Scottish Ministers shall be exercisable by any member of the Scottish Government.

(4) Any act or omission of, or in relation to, any member of the Scottish Government shall be treated as an act or omission of, or in relation to, each of them; and any property acquired, or liability incurred, by any member of the Scottish Government shall be treated accordingly.

(5) Subsection (4) does not apply in relation to the exercise of—

(a) functions conferred on the First Minister alone, or

(b) retained functions of the Lord Advocate.

(6) In this Act, “retained functions” in relation to the Lord Advocate means—

(a) any functions exercisable by him immediately before he ceases to be a Minister of the Crown, and

(b) other statutory functions conferred on him alone after he ceases to be a Minister of the Crown.

(7) In this section, “statutory functions” means functions conferred by virtue of any enactment.

General transfer of functions

53

(1) The functions mentioned in subsection (2) shall, so far as they are exercisable within devolved competence, be exercisable by the Scottish Ministers instead of by a Minister of the Crown.

(2) Those functions are—

(a) those of Her Majesty’s prerogative and other executive functions which are exercisable on behalf of Her Majesty by a Minister of the Crown,

(b) other functions conferred on a Minister of the Crown by a prerogative instrument, and

but do not include any retained functions of the Lord Advocate.

(3) In this Act, “pre-commencement enactment” means—

(a) an Act passed before or in the same session as this Act and any other enactment made before the passing of this Act,

(b) an enactment made, before the commencement of this section, under such an Act or such other enactment,

(c) subordinate legislation under section 106, to the extent that the legislation states that it is to be treated as a pre-commencement enactment.

(3A) But see sections 9, 32 and 51 of the Scotland Act 2016 (which give “pre-commencement enactment” a different meaning for functions exercisable within devolved competence by virtue of certain provisions of that Act).

(4) This section and section 54 are modified by Part III of Schedule 4.

Devolved competence

54

(1) References in this Act to the exercise of a function being within or outside devolved competence are to be read in accordance with this section.

(2) It is outside devolved competence—

(a) to make any provision by subordinate legislation which would be outside the legislative competence of the Parliament if it were included in an Act of the Scottish Parliament, or

(b) to confirm or approve any subordinate legislation containing such provision.

(3) In the case of any function other than a function of making, confirming or approving subordinate legislation, it is outside devolved competence to exercise the function (or exercise it in any way) so far as a provision of an Act of the Scottish Parliament conferring the function (or, as the case may be, conferring it so as to be exercisable in that way) would be outside the legislative competence of the Parliament.

Functions exercisable with agreement

55

(1) A statutory provision, or any provision not contained in an enactment, which provides for a Minister of the Crown to exercise a function with the agreement of, or after consultation with, any other Minister of the Crown shall cease to have effect in relation to the exercise of the function by a member of the Scottish Government by virtue of section 53.

(2) In subsection (1) “statutory provision” means any provision in a pre-commencement enactment other than paragraph 5 or 15 of Schedule 32 to the Local Government, Planning and Land Act 1980 (designation of enterprise zones).

Shared powers

56

(1) Despite the transfer by virtue of section 53 of any function under—

(a) section 17(1) of the Ministry of Transport Act 1919 (power to make advances for certain purposes),

(b) any Order in Council under section 1 of the United Nations Act 1946 (measures to give effect to Security Council decisions),

(c) section 9 of the Industrial Organisation and Development Act 1947 (levies for scientific research, promotion of exports, etc.),

(d) section 5 of the Science and Technology Act 1965 (funding of scientific research),

(e) section 1 of the Mineral Exploration and Investment Grants Act 1972 (contributions in respect of mineral exploration),

(f) sections 10 to 12 of the Industry Act 1972 (credits and grants for construction of ships and offshore installations),

(g) sections 2, 11(3) and 12(4) of the Employment and Training Act 1973 (power to make arrangements for employment and training etc. and to make certain payments),

(h) sections 7 to 9 and 11 to 13 of the Industrial Development Act 1982 (financial and other assistance for industry), and

(i) sections 39 and 40 of the Road Traffic Act 1988 (road safety information and training),

the function shall be exercisable by a Minister of the Crown as well as by the Scottish Ministers.

(2) Despite the transfer of any other function by virtue of section 53, the function shall, if subordinate legislation so provides, be exercisable (or be exercisable so far as the legislation provides) by a Minister of the Crown as well as by the Scottish Ministers.

(3) Subordinate legislation under subsection (2) may not be made so as to come into force at any time after the function in question has become exercisable by the Scottish Ministers.

(4) Any power referred to in section 53(2)(a) to establish, maintain or abolish a body, office or office-holder having functions which include both—

(a) functions which are exercisable in or as regards Scotland and do not relate to reserved matters, and

(b) other functions,

shall, despite that section, be exercisable jointly by the Minister of the Crown and the Scottish Ministers.

(5) In subsection (4), “office-holder” includes employee or other post-holder.

Community law and Convention rights

57

(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) A member of the Scottish Government has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights ....

(3) Subsection (2) does not apply to an act of the Lord Advocate—

(a) in prosecuting any offence, or

(b) in his capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland,

...

(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(12) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(13) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(14) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(15) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Power to prevent or require action

58

(1) If the Secretary of State has reasonable grounds to believe that any action proposed to be taken by a member of the Scottish Government would be incompatible with any international obligations, he may by order direct that the proposed action shall not be taken.

(2) If the Secretary of State has reasonable grounds to believe that any action capable of being taken by a member of the Scottish Government is required for the purpose of giving effect to any such obligations, he may by order direct that the action shall be taken.

(3) In subsections (1) and (2), “action” includes making, confirming or approving subordinate legislation and, in subsection (2), includes introducing a Bill in the Parliament.

(4) If any subordinate legislation made or which could be revoked by a member of the Scottish Government contains provisions—

(a) which the Secretary of State has reasonable grounds to believe to be incompatible with any international obligations or the interests of defence or national security, or

(b) which make modifications of the law as it applies to reserved matters and which the Secretary of State has reasonable grounds to believe to have an adverse effect on the operation of the law as it applies to reserved matters,

the Secretary of State may by order revoke the legislation.

(5) An order under this section must state the reasons for making the order.

Property and liabilities

Property and liabilities of the Scottish Ministers

59

(1) Property may be held by the Scottish Ministers by that name.

(2) Property acquired by or transferred to the Scottish Ministers shall belong to, and liabilities incurred by the Scottish Ministers shall be liabilities of, the Scottish Ministers for the time being.

(3) In relation to property to be acquired by or transferred to, or belonging to, the Scottish Ministers or liabilities incurred by the Scottish Ministers, references to the Scottish Ministers—

(a) in any title recorded in the Register of Sasines or registered in the Land Register of Scotland, or

(b) in any other document,

shall be read in accordance with subsection (2).

(4) A document shall be validly executed by the Scottish Ministers if it is executed by any member of the Scottish Government.

Transfers to the Scottish Ministers

60

(1) Subordinate legislation may provide—

(a) for the transfer to the Scottish Ministers of any property belonging to a Minister of the Crown or government department, or

(b) for the Scottish Ministers to have such rights or interests in relation to any property belonging to a Minister of the Crown or government department as the person making the legislation considers appropriate (whether in connection with a transfer or otherwise).

(2) Subordinate legislation may provide for the transfer to the Scottish Ministers of any liabilities to which a Minister of the Crown or government department is subject.

(3) Subordinate legislation under this section may only be made in connection with any transfer or sharing of functions of a Minister of the Crown by virtue of section 53, 63 or 89 or in any other circumstances in which the person making the legislation considers it appropriate to do so for the purposes of this Act or the Scotland Act 2016.

Property and liabilities of the Lord Advocate and the First Minister

61

(1) Property may be held by the Lord Advocate by that name.

(2) Property acquired by or transferred to the Lord Advocate shall belong to, and liabilities incurred by the Lord Advocate shall be liabilities of, the Lord Advocate for the time being.

(3) In relation to property to be acquired by or transferred to, or belonging to, the Lord Advocate or liabilities incurred by the Lord Advocate, references to the Lord Advocate—

(a) in any title recorded in the Register of Sasines or registered in the Land Register of Scotland, or

(b) in any other document,

shall be read in accordance with subsection (2).

(4) Any rights and liabilities acquired or incurred by the First Minister shall be rights or (as the case may be) liabilities of the First Minister for the time being.

Transfers to the Lord Advocate

62

(1) Subordinate legislation may provide—

(a) for the transfer to the Lord Advocate of any property belonging to a Minister of the Crown or government department, or

(b) for the Lord Advocate to have such rights or interests in relation to any property belonging to a Minister of the Crown or government department as the person making the legislation considers appropriate (whether in connection with a transfer or otherwise).

(2) Subordinate legislation may provide for the transfer to the Lord Advocate of any liabilities to which a Minister of the Crown or government department is subject.

(3) Subordinate legislation under this section may only be made in connection with the Lord Advocate becoming a member of the Scottish Government or having any retained functions or in any other circumstances in which the person making the legislation considers it appropriate to do so for the purposes of this Act.

Transfer of additional functions

Power to transfer functions

63

(1) Her Majesty may by Order in Council provide for any functions, so far as they are exercisable by a Minister of the Crown in or as regards Scotland, to be exercisable—

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