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

(a) by the Scottish Ministers instead of by the Minister of the Crown,

(b) by the Scottish Ministers concurrently with the Minister of the Crown, or

(2) Where an Order is made under subsection (1)(a) or (b) in relation to a function of a Minister of the Crown which is exercisable only with the agreement of, or after consultation with, another Minister of the Crown, the function shall, unless the Order provides otherwise, be exercisable by the Scottish Ministers free from any such requirement.

(3) An Order under this section may, in particular, provide for any function exercisable by the Scottish Ministers by virtue of an Order under subsection (1)(a) or (b) to be exercisable subject to a requirement for the function to be exercised with the agreement of, or after consultation with, a Minister of the Crown or other person.

Part III — Financial Provisions

Scottish Consolidated Fund

64

(1) There shall be a Scottish Consolidated Fund.

(2) The Secretary of State shall from time to time make payments into the Fund out of money provided by Parliament of such amounts as he may determine.

(2A) The Secretary of State shall in accordance with section 64A pay into the Fund out of money provided by Parliament any amounts payable under that section.

(3) Sums received by an office-holder in the Scottish Administration shall be paid into the Fund.

(4) Subsection (3) is subject to any provision made by or under an Act of the Scottish Parliament for the disposal of or accounting for such sums.

(5) The Treasury may, after consulting with the Scottish Ministers, by order designate receipts of any description specified in the order which are payable into the Fund (or would be but for any provision made by or under an Act of the Scottish Parliament).

(6) The Scottish Ministers shall make payments to the Secretary of State, at such times and by such methods as the Treasury may from time to time determine, of sums equal to the total amount outstanding in respect of designated receipts.

(7) Amounts required for the payment of sums under subsection (6) shall be charged on the Fund.

(8) The Fund shall be held with the Paymaster General.

Payments out of the Fund

65

(1) A sum may only be paid out of the Scottish Consolidated Fund if—

(a) it has been charged on the Fund by any enactment,

(b) it is payable out of the Fund without further approval by virtue of this Act, or

(c) it is paid out for or in connection with any of the purposes mentioned in subsection (2) in accordance with rules made by or under an Act of the Scottish Parliament.

(2) Those purposes are—

(a) meeting expenditure of the Scottish Administration,

(b) meeting expenditure payable out of the Fund under any enactment.

(3) A sum paid out of the Fund shall not be applied for any purpose other than that for which it was charged or (as the case may be) paid out.

Borrowing by the Scottish Ministers etc

66

(1) The Scottish Ministers may borrow from the Secretary of State—

(a) any sums required by them for the purpose of meeting a temporary excess of sums paid out of the Scottish Consolidated Fund over sums paid into that Fund,

(b) any sums required by them for the purpose of providing a working balance in the Scottish Consolidated Fund, ...

(c) any sums which in accordance with rules determined by the Treasury are required by them to meet current expenditure because of a shortfall in receipts from devolved taxes, ... from income tax charged by virtue of a Scottish rate resolution, or from amounts payable under section 64A, against forecast receipts.

(d) any sums which in accordance with rules determined by the Treasury are required by them to meet current expenditure because of an excess of welfare payments over forecast welfare payments, and

(e) any sums which in accordance with rules made by the Treasury are required by them to meet current expenditure because of a Scotland-specific negative economic shock.

(1ZA) In subsection (1)(d) “welfare payments” means—

(a) payments under any provision relating to matters within exceptions 1 to 10 in Section F1 of Part 2 of Schedule 5 or exception 1 in Section H3 of that Part, and

(b) payments attributable to regulations made by the Scottish Ministers by virtue of section 29 or 30 of the Scotland Act 2016 (powers in relation to universal credit).

(1A) The Scottish Ministers may, with the approval of the Treasury, borrow by way of loan or by the issue of bonds (but not bonds transferable by delivery) any sums required by them for the purpose of meeting capital expenditure.

(1B) A sum is required for the purpose of meeting capital expenditure if the expenditure would be capital expenditure for the purposes of accounts under section 70.

(2) Amounts required for the repayment of, or the payment of interest on, sums borrowed under this section shall be charged on the Fund.

(3) Sums borrowed under this section from the Secretary of State shall be repaid to the Secretary of State at such times and by such methods, and interest on them shall be paid to him at such rates and at such times, as the Treasury may from time to time determine.

(4) A member of the Scottish Government may borrow money only under this section or under any power conferred by any other Act of Parliament.

(5) The Secretary of State may by order made with the consent of the Treasury amend subsection (1A) so as to vary the means by which the Scottish Ministers may borrow money.

Lending by the Secretary of State

67

(1) The Treasury may issue to the Secretary of State out of the National Loans Fund such sums as are required by him for making loans under section 66.

(2) The aggregate at any time outstanding in respect of the principal of sums borrowed under section 66(1) shall not exceed £1,834.303 million.

(3) The Secretary of State may by order made with the consent of the Treasury substitute for the amount (or substituted amount) specified in subsection (2) such ... amount as may be specified in the order.

(3A) An amount substituted under subsection (3) may be more or less than the amount for which it is substituted but may not be less than £1.75 billion.

(4) Sums received by the Secretary of State under section 66(3) shall be paid into the National Loans Fund.

Borrowing by statutory bodies

68

(1) If a member of the Scottish Government lends money to a body established under any enactment, the rate of interest on the loan shall not be less than the lowest rate determined by the Treasury under section 5 of the National Loans Act 1968 in respect of similar loans made out of the National Loans Fund on the day the loan is made.

(2) A body established under any enactment shall not, in pursuance of a power conferred by virtue of an Act of the Scottish Parliament, borrow money in a currency other than sterling except with the consent of the Scottish Ministers given with the approval of the Treasury.

The Auditor General for Scotland

69

(1) There shall be an Auditor General for Scotland who shall be an individual appointed by Her Majesty on the nomination of the Parliament.

(2) A recommendation shall not be made to Her Majesty for the removal from office of the Auditor General for Scotland unless the Parliament so resolves and, if the resolution is passed on a division, the number of members voting in favour is not less than two-thirds of the total number of seats for members of the Parliament.

(3) The validity of any act of the Auditor General for Scotland is not affected by any defect in his nomination by the Parliament.

(4) The Auditor General for Scotland shall not, in the exercise of any of his functions, be subject to the direction or control of any member of the Scottish Government or of the Parliament.

(5) Subsection (4) does not apply in relation to any function conferred on him of preparing accounts.

Financial control, accounts and audit

70

(1) Scottish legislation shall provide—

(a) for proper accounts to be prepared by the Scottish Ministers, by the Lord Advocate and by other persons to whom sums are paid out of the Scottish Consolidated Fund, of their expenditure and receipts,

(b) for the Scottish Ministers to prepare an account of payments into and out of the Fund,

(c) for the Auditor General for Scotland to exercise, or ensure the exercise by other persons of, the functions mentioned in subsection (2),

(d) for access by persons exercising those functions to such documents as they may reasonably require,

(e) for members of the staff of the Scottish Administration designated for the purpose to be answerable to the Parliament in respect of the expenditure and receipts of each part of the Scottish Administration, and

(f) for the publication of parliamentary accounts and of reports on such accounts and for the laying of such accounts and reports before the Parliament.

(2) The functions referred to in subsection (1)(c) are—

(a) issuing credits for the payment of sums out of the Fund,

(b) examining parliamentary accounts (which includes determining whether sums paid out of the Fund have been paid out and applied in accordance with section 65), and certifying and reporting on them,

(c) carrying out examinations into the economy, efficiency and effectiveness with which the Scottish Ministers and the Lord Advocate have used their resources in discharging their functions, and

(d) carrying out examinations into the economy, efficiency and effectiveness with which other persons determined under Scottish legislation to whom sums are paid out of the Fund have used those sums in discharging their functions.

(3) Standing orders shall provide for the consideration by the Parliament of accounts and reports laid before it in pursuance of subsection (1)(f).

(4) Scottish legislation may make further provision for the purpose of ensuring that persons who receive sums derived from the Fund are accountable including, in particular, provision for any person to whom subsection (1)(a) does not apply to be accountable for his expenditure and receipts in respect of functions for which he receives sums derived from the Fund.

(5) Persons (other than the Auditor General for Scotland) charged with the exercise of any function mentioned in subsection (2) or other like function conferred by Scottish legislation shall not, in the exercise of that or any ancillary function, be subject to the direction or control of any member of the Scottish Government or of the Parliament.

(6) Scottish legislation may not require any cross-border public authority to prepare accounts if any other legislation requires—

(a) the authority to prepare accounts of its expenditure and receipts, and

(b) the accounts to be examined, certified and reported on by the Auditor General for Scotland, the Comptroller and Auditor General or a person appointed by either of them.

(7) Subsection (2)(b) does not apply to accounts prepared by the Auditor General for Scotland.

(8) This section does not require Scottish legislation to impose any requirement which is imposed by any other legislation.

(9) In this section—

“parliamentary accounts” means—any accounts prepared in pursuance of subsection (1)(a) or (b), andany accounts referred to in subsection (6) which are required to be examined, certified and reported on by the Auditor General for Scotland or any person appointed by him,

“Scottish legislation” means provision made by or under an Act of the Scottish Parliament and “other legislation” means provision made by any other enactment.

Existing debt

71

(1) Subsections (2) to (4) apply where—

(a) power to lend money under a provision of a pre-commencement enactment was exercised by the Secretary of State,

(b) the sums required by him for the exercise of the power were issued by the Treasury out of the National Loans Fund, and

(c) the power is exercisable by the Scottish Ministers by virtue of section 53, or would have been so exercisable but for the repeal of the pre-commencement enactment.

(2) Any amount payable by way of repayment of or interest on the loan shall be paid to the Scottish Ministers and into the Scottish Consolidated Fund (instead of to the Secretary of State and into the National Loans Fund).

(3) Amounts equal to those which are to be received by the Scottish Ministers in repayment of principal shall be treated as being amounts of advances made on the commencement of this section to the Scottish Ministers by the Secretary of State.

(4) Such advances shall be repaid to the Secretary of State at such times and by such methods, and interest on them shall be paid to him at such rates and at such times, as the Treasury may from time to time determine.

(5) Subsection (6) applies to any amount outstanding immediately before the commencement of this subsection in respect of the principal of the sum treated by virtue of section 2(3) of the Government Trading Funds Act 1973 as issued to the Registers of Scotland Executive Agency Trading Fund on the day on which the order establishing that fund came into force (“the issue date”).

(6) The Secretary of State may, with the agreement of the Treasury, by order provide—

(a) for the amount to be treated as an advance made by him to the Scottish Ministers on the issue date, and

(b) for the advance to be repaid to him at such times and by such methods, and for interest on the advance to be paid to him at such rates and at such times, as were determined by the Treasury under section 2B(3) of that Act in respect of the sum referred to in subsection (5).

(7) Sums required to be paid under subsection (4) or (6) shall be charged on the Scottish Consolidated Fund.

(8) Sums received under subsection (4) or (6) shall be paid into the National Loans Fund.

Accounts of loans to the Scottish Ministers

72

The Secretary of State shall, for each financial year—

(a) prepare, in such form and manner as the Treasury may direct, an account of sums paid and received by him under sections 66, 67 and 71, and

(b) send the account to the Comptroller and Auditor General not later than the end of November in the following financial year,

and the Comptroller and Auditor General shall examine, certify and report on the account and shall lay copies of it and of his report before each House of Parliament.

Part IV — The tax-varying power

Power to fix basic rate for Scottish taxpayers

73

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Supplemental provision with respect to resolutions

74

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Scottish taxpayers

75

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Changes to income tax structure

76

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Accounting for additional Scottish tax

77

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Effect of tax reduction for Scottish taxpayers

78

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Supplemental powers to modify enactments

79

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Reimbursement of expenses

80

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Part V — Miscellaneous and general

Remuneration of members of the Parliament and Government

Remuneration of members of the Parliament and Executive

81

(1) The Parliament shall make provision for the payment of salaries to members of the Parliament and members of the Scottish Government.

(2) The Parliament may make provision for the payment of allowances to members of the Parliament or members of the Scottish Government.

(3) The Parliament may make provision for the payment of pensions, gratuities or allowances to, or in respect of, any person who—

(a) has ceased to be a member of the Parliament or the Scottish Government, or

(b) has ceased to hold such office, employment or other post in connection with the Parliament or the Scottish Government as the Parliament may determine but continues to be a member of the Parliament or the Scottish Government.

(4) Such provision may, in particular, include provision for—

(a) contributions or payments towards provision for such pensions, gratuities or allowances,

(b) the establishment and administration (whether by the Parliamentary corporation or otherwise) of one or more pension schemes.

(5) In this section “provision” includes provision—

(a) by an Act of the Scottish Parliament, or

(b) by a resolution of the Parliament conferring functions on the Parliamentary corporation;

and references to a member of the Scottish Government include a junior Scottish Minister.

Limits on salaries of members of the Parliament

82

(1) The Parliament shall ensure that the amount of salary payable to a member of the Parliament in accordance with section 81 is reduced if any salary is payable to him—

(za) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(a) pursuant to a resolution (or combination of resolutions) of the House of Lords relating to the remuneration of members of that House, ...

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

(2) The Parliament shall ensure that the amount of salary is reduced—

(a) to a particular proportion of what it would otherwise be or to a particular amount, or

(b) by the amount of any salary payable to the member as mentioned in subsection (1)(a), by a particular proportion of that amount or by some other particular amount.

(2A) The Parliament is to make no payment of salary to a member of the Parliament in accordance with section 81(1) in respect of any period in which the member is or was also a member of the House of Commons.

(2B) Subsection (2A) does not apply to any salary payable to a member of the Parliament under section 81(1) in their capacity as—

(a) the First Minister,

(b) a Minister or junior Scottish Minister,

(d) the Presiding Officer or a Deputy Presiding Officer.

(2C) The Parliament must ensure that the amount of salary payable to a member of the Parliament in accordance with section 81(1) is reduced by the amount specified in subsection (2D) if remuneration is also payable to the member in respect of the same period under regulations made under section 11(1) of the Local Governance (Scotland) Act 2004 (“the 2004 Act”).

(2D) The amount of the reduction for the purposes of subsection (2C) is the amount specified as payable to a councillor (who is not designated the Leader of the Council, the Civic Head or a senior councillor) by regulations made under section 11(1) of the 2004 Act.

Remuneration: supplementary

83

(1) The Parliament shall ensure that information concerning sums paid as salaries, allowances, pensions or gratuities of the kind mentioned in section 81 is published for each financial year.

(2) No payment of salary or allowances of the kind mentioned in section 81(1) or (2) shall be made to a person who is required by section 84 to take an oath unless he has done so.

(3) Subsection (2) does not affect any entitlement to payments in respect of the period before the person concerned took the oath once he has done so.

(4) For the purposes of sections 81 and 82, a person who is a member of the Parliament immediately before the Parliament is dissolved shall be treated—

(a) if he continues to hold office by virtue of section 19(2) or paragraph 1 of Schedule 2, as if he were such a member until the end of the day on which he ceases to hold such office, and

(b) if he does not fall within paragraph (a) but is nominated as a candidate at the subsequent general election, as if he were such a member until the end of the day on which the election is held.

(5) Different provision may be made under section 81 or 82 for different cases.

Other provision about members of the Parliament etc.

Oaths

84

(1) A person who is returned as a member of the Parliament shall take the oath of allegiance (whether or not he has taken the oath after being returned on a previous occasion or otherwise than as a member of the Parliament).

(2) He shall do so at a meeting of the Parliament and shall not take part in any other proceedings of the Parliament until he has done so.

(3) If he has not done so within the period of two months beginning with the day on which he was returned, or such longer period as the Parliament may have allowed before the end of that period, he shall cease to be a member of the Parliament (so that his seat is vacant).

(4) Each member of the Scottish Government shall on appointment—

(a) take the official oath in the form provided by the Promissory Oaths Act 1868, and

(b) take the oath of allegiance.

(5) Each junior Scottish Minister shall on appointment take the oath of allegiance.

(6) Subsections (4) and (5) do not require a member of the Parliament to take the oath of allegiance again if he has already done so in compliance with his duty as a member.

(7) In this section, references to taking the oath of allegiance are to taking it in the form provided by the Promissory Oaths Act 1868.

Exemption from jury service

85

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

(2) In Part III of Schedule 1 to the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980 (persons excusable as of right from jury service), after the entries in Group A there is inserted—

(a) members of the Scottish Parliament; (b) members of the Scottish Government; and (c) junior Scottish Ministers.

Arrangements at Westminster

Scottish representation at Westminster

86

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The Advocate General for Scotland

87

(1) 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), after the entry for the Solicitor General there is inserted—

Advocate General for Scotland

(2) The validity of anything done in relation to the Advocate General is not affected by a vacancy in that office.

(3) If that office is vacant or the Advocate General is for any reason unable to act, his functions shall be exercisable by such other Minister of the Crown as the Prime Minister may determine in writing.

Cross-border public authorities

Cross-border public authorities: initial status

88

(1) Sections 53 and 118 to 121 shall not apply in relation to any function which is specifically exercisable in relation to a cross-border public authority; and section 118 shall not apply in relation to any function of such an authority.

(2) A Minister of the Crown shall consult the Scottish Ministers before he exercises, in relation to a cross-border public authority, any specific function—

(a) which relates to any appointment or removal of the cross-border public authority concerned or of any members or office-holders of the cross-border public authority concerned, or

(b) whose exercise might affect Scotland otherwise than wholly in relation to reserved matters.

(3) Any cross-border public authority or other person which is required by a pre-commencement enactment or a prerogative instrument to lay any report relating to a cross-border public authority before Parliament or either House of Parliament shall also lay the report before the Scottish Parliament.

(4) Subsections (1) to (3) are subject to any Order in Council made under section 89.

(5) In this Act “cross-border public authority” means any body, government department, office or office-holder specified in an Order in Council made by Her Majesty under this section.

(6) Such an Order may only specify a body, government department, office or office-holder which (at the time when the Order is made) has, in addition to other functions, functions which are exercisable in or as regards Scotland and do not relate to reserved matters.

(7) In this section—

“office-holder” includes employee or other post-holder,

“report” includes accounts and any statement.

Power to adapt etc. cross-border public authorities

89

(1) Her Majesty may by Order in Council make such provision in relation to a cross-border public authority as She considers necessary or expedient in consequence of this Act.

(2) Such provision may, in particular, include provision—

(a) modifying any function of a cross-border public authority or of a Minister of the Crown in relation to such an authority,

(b) conferring any function on a cross-border public authority or on a Minister of the Crown or the Scottish Ministers in relation to such an authority,

(d) modifying the application of section 56(4) or 88(1), (2) or (3),

(e) for any function to be exercisable by the Scottish Ministers instead of by a Minister of the Crown, or by the one concurrently with the other, or by both jointly or by either with the agreement of or after consultation with the other,

(f) apportioning any assets or liabilities,

(g) imposing, or enabling the imposition of, any limits or other restrictions in addition to or in substitution for existing limits or restrictions,

(h) providing for sums to be charged on or payable out of, or paid into, the Scottish Consolidated Fund (instead of or in addition to payments into or out of the Consolidated Fund or the National Loans Fund or out of money provided by Parliament),

(i) requiring payments, with or without interest, to a Minister of the Crown or into the Consolidated Fund or National Loans Fund.

(3) No recommendation shall be made to Her Majesty in Council to make an Order under this section unless the cross-border public authority concerned has been consulted.

Power to transfer property of cross-border public authorities

90

(1) This section applies if an Act of the Scottish Parliament provides for any functions of a cross-border public authority to be no longer exercisable in or as regards Scotland.

(2) Her Majesty may by Order in Council provide—

(a) for the transfer of any property to which this section applies, or

(b) for any person to have such rights or interests in relation to any property to which this section applies as Her Majesty considers appropriate (whether in connection with a transfer or otherwise).

(3) This section applies to property belonging to the cross-border public authority concerned which appears to Her Majesty—

(a) to be held or used wholly or partly for or in connection with the exercise of any of the functions concerned, or

(b) not to be within paragraph (a) but, when last held or used for or in connection with the exercise of any function, to have been so held or used for or in connection with the exercise of any of the functions concerned.

(4) Her Majesty may by Order in Council provide for the transfer of any liabilities—

(a) to which the cross-border public authority concerned is subject, and

(b) which appear to Her Majesty to have been incurred wholly or partly for or in connection with the exercise of any of the functions concerned.

(5) No recommendation shall be made to Her Majesty in Council to make an Order under this section unless the cross-border public authority concerned has been consulted.

Miscellaneous

Maladministration

91

(1) The Parliament shall make provision for the investigation of relevant complaints made to its members in respect of any action taken by or on behalf of—

(a) a member of the Scottish Government in the exercise of functions conferred on the Scottish Ministers, or

(b) any other office-holder in the Scottish Administration.

(2) For the purposes of subsection (1), a complaint is a relevant complaint if it is a complaint of a kind which could be investigated under the Parliamentary Commissioner Act 1967 if it were made to a member of the House of Commons in respect of a government department or other authority to which that Act applies.

(3) The Parliament may make provision for the investigation of complaints in respect of—

(a) any action taken by or on behalf of an office-holder in the Scottish Administration,

(b) any action taken by or on behalf of the Parliamentary corporation,

(d) any action concerning Scotland and not relating to reserved matters which is taken by or on behalf of a cross-border public authority.

(4) In making provision of the kind required by subsection (1), the Parliament shall have regard (among other things) to the Act of 1967.

(5) Sections 53 and 117 to 121 shall not apply in relation to functions conferred by or under the Act of 1967.

(6) In this section—

“action” includes failure to act (and related expressions shall be read accordingly),

“provision” means provision by an Act of the Scottish Parliament;

and the references to the Act of 1967 are to that Act as it has effect on the commencement of this section.

Queen’s Printer for Scotland

92

(1) There shall be a Queen’s Printer for Scotland who shall—

(a) exercise the Queen’s Printer functions in relation to Acts of the Scottish Parliament and subordinate legislation (other than Scottish statutory instruments) to which this section applies, and

(b) exercise any other functions conferred on her by this Act or any other enactment.

(2) In subsection (1), “the Queen’s Printer functions” means the printing functions in relation to Acts of Parliament and subordinate legislation of the Queen’s Printer of Acts of Parliament.

(3) The Queen’s Printer for Scotland shall also on behalf of Her Majesty exercise Her rights and privileges in connection with—

(a) Crown copyright in Acts of the Scottish Parliament,

(b) Crown copyright in subordinate legislation to which this section applies,

(c) Crown copyright in any existing or future works (other than subordinate legislation) made in the exercise of a function which is exercisable by any office-holder in, or member of the staff of, the Scottish Administration (or would be so exercisable if the function had not ceased to exist),

(d) other copyright assigned to Her Majesty in works made in connection with the exercise of functions by any such office-holder or member.

(4) This section applies to subordinate legislation made, confirmed or approved—

(a) by a member of the Scottish Government,

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

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

(4B) If, following an alteration such as is mentioned in section 30(5)—

(a) subordinate legislation is made, confirmed or approved under a provision which continues to have effect by virtue of section 30(6), and

(b) the making, confirmation or approval would be within devolved competence but for the alteration,

the subordinate legislation is to be regarded for the purposes of this section as being made, confirmed or approved within devolved competence.

(5) The Queen’s Printer of Acts of Parliament shall hold the office of Queen’s Printer for Scotland.

(6) References in this Act to a Scottish public authority include the Queen’s Printer for Scotland.

Agency arrangements

93

(1) A Minister of the Crown may make arrangements for any of his specified functions to be exercised on his behalf by the Scottish Ministers; and the Scottish Ministers may make arrangements for any of their specified functions to be exercised on their behalf by a Minister of the Crown.

(2) An arrangement under this section does not affect a person’s responsibility for the exercise of his functions.

(2A) The collection and management of a devolved tax is a specified function of the Scottish Ministers.

(3) In this section—

“functions” does not include a function of making, confirming or approving subordinate legislation,

“Minister of the Crown” includes government department,

“specified” (subject to subsection (2A) means specified in an Order in Council made by Her Majesty under this subsection;

and this section applies to the Lord Advocate as it applies to the Scottish Ministers.

Private legislation

94

(1) This section applies where a pre-commencement enactment makes provision which has the effect of—

(a) requiring any order to be confirmed by Act of Parliament, or

(b) requiring any order (within the meaning of the Statutory Orders (Special Procedure) Act 1945) to be subject to special parliamentary procedure,

and power to make, confirm or approve the order in question is exercisable by the Scottish Ministers by virtue of section 53.

(2) The provision shall have effect, so far as it relates to the exercise of the power to make, confirm or approve the order by virtue of section 53, as if it required the order—

(a) to be confirmed by an Act of the Scottish Parliament, or

(b) (as the case may be) to be subject to such special procedure as may be provided by or under such an Act.

Appointment and removal of judges

95

(1) It shall continue to be for the Prime Minister to recommend to Her Majesty the appointment of a person as Lord President of the Court of Session or Lord Justice Clerk.

(2) The Prime Minister shall not recommend to Her Majesty the appointment of any person who has not been nominated by the First Minister for such appointment.

(3) Before nominating persons for such appointment the First Minister shall consult the Lord President and the Lord Justice Clerk (unless, in either case, the office is vacant).

(4) It is for the First Minister, after consulting the Lord President, to recommend to Her Majesty the appointment of a person as—

(a) a judge of the Court of Session (other than the Lord President or the Lord Justice Clerk), or

(b) a sheriff principal or a sheriff.

(5) The First Minister shall comply with any requirement in relation to—

(a) a nomination under subsection (2), or

(b) a recommendation under subsection (4),

imposed by virtue of any enactment.

(6) A judge of the Court of Session and the Chairman of the Scottish Land Court may be removed from office only by Her Majesty; and any recommendation to Her Majesty for such removal shall be made by the First Minister.

(7) The First Minister shall make such a recommendation if (and only if) the Parliament, on a motion made by the First Minister, resolves that such a recommendation should be made.

(8) Provision shall be made for a tribunal constituted by the First Minister to investigate and report on whether a judge of the Court of Session or the Chairman of the Scottish Land Court is unfit for office by reason of inability, neglect of duty or misbehaviour and for the report to be laid before the Parliament.

(9) Such provision shall include provision—

(a) for the constitution of the tribunal by the First Minister when requested by the Lord President to do so and in such other circumstances as the First Minister thinks fit, and

(b) for the appointment to chair the tribunal of a member of the Judicial Committee of the Privy Council who holds or has held high judicial office,

and may include provision for suspension from office.

(10) The First Minister may make a motion under subsection (7) only if—

(a) he has received from a tribunal constituted in pursuance of subsection (8) a written report concluding that the person in question is unfit for office by reason of inability, neglect of duty or misbehaviour and giving reasons for that conclusion,

(b) where the person in question is the Lord President or the Lord Justice Clerk, he has consulted the Prime Minister, and

(11) In subsections (8) to (10)—

“ high judicial office ” has the meaning given by section 60 of the Constitutional Reform Act 2005,

“provision” means provision by or under an Act of the Scottish Parliament,

“tribunal” means a tribunal of at least three persons.

Provision of information to the Treasury

96

(1) The Treasury may require the Scottish Ministers to provide, within such period as the Treasury may reasonably specify, such information, in such form and prepared in such manner, as the Treasury may reasonably specify.

(2) If the information is not in their possession or under their control, their duty under subsection (1) is to take all reasonable steps to comply with the requirement.

Assistance for opposition parties

97

(1) The Parliament may by resolution make provision for payments to be made to registered political parties for the purpose of assisting members of the Parliament who are connected with the parties to perform their Parliamentary duties.

(2) A resolution under subsection (1) may—

(a) confer functions on the Parliamentary corporation,

(b) determine, or make provision for determining, the circumstances in which a member of the Parliament and a registered political party are to be regarded for the purposes of the resolution as connected,

Juridical

Devolution issues

98

Schedule 6 (which makes provision in relation to devolution issues) shall have effect.

Rights and liabilities of the Crown in different capacities

99

(1) Rights and liabilities may arise between the Crown in right of Her Majesty’s Government in the United Kingdom and the Crown in right of the Scottish Administration by virtue of a contract, by operation of law or by virtue of an enactment as they may arise between subjects.

(2) Property and liabilities may be transferred between the Crown in one of those capacities and the Crown in the other capacity as they may be transferred between subjects; and they may together create, vary or extinguish any property or liability as subjects may.

(3) Proceedings in respect of—

(a) any property or liabilities to which the Crown in one of those capacities is entitled or subject under subsection (1) or (2), or

(b) the exercise of, or failure to exercise, any function exercisable by an office-holder of the Crown in one of those capacities,

may be instituted by the Crown in either capacity; and the Crown in the other capacity may be a separate party in the proceedings.

(4) This section applies to a unilateral obligation as it applies to a contract.

(5) In this section—

“office-holder”, in relation to the Crown in right of Her Majesty’s Government in the United Kingdom, means any Minister of the Crown or other office-holder under the Crown in that capacity and, in relation to the Crown in right of the Scottish Administration, means any office-holder in the Scottish Administration,

“subject” means a person not acting on behalf of the Crown.

Human rights

100

(1) This Act does not enable a person—

(a) to bring any proceedings in a court or tribunal on the ground that an act is incompatible with the Convention rights, or

(b) to rely on any of the Convention rights in any such proceedings,

unless he would be a victim for the purposes of Article 34 of the Convention (within the meaning of the Human Rights Act 1998) if proceedings in respect of the act were brought in the European Court of Human Rights.

(2) Subsection (1) does not apply to the Lord Advocate, the Advocate General, the Attorney General , the Advocate General for Northern Ireland or the Attorney General for Northern Ireland.

(3) This Act does not enable a court or tribunal to award any damages in respect of an act which is incompatible with any of the Convention rights which it could not award if section 8(3) and (4) of the Human Rights Act 1998 applied.

(3A) Subsection (3B) applies to any proceedings brought by virtue of this Act against the Scottish Ministers or a member of the Scottish Government in a court or tribunal on the ground that an act of the Scottish Ministers or a member of the Scottish Government is incompatible with the Convention rights.

(3B) Proceedings to which this subsection applies must be brought before the end of—

(a) the period of one year beginning with the date on which the act complained of took place, or

(b) such longer period as the court or tribunal considers equitable having regard to all the circumstances,

but that is subject to any rule imposing a stricter time limit in relation to the procedure in question.

(3C) Subsection (3B) does not apply to proceedings brought by the Lord Advocate, the Advocate General, the Attorney General, the Attorney General for Northern Ireland or the Advocate General for Northern Ireland.

(3D) In subsections (3A) and (3B) “ act ” does not include the making of any legislation but it does include any other act or failure to act (including a failure to make legislation).

(3E) In subsection (3B) “ rule ” has the same meaning as it has in section 7(5) of the Human Rights Act 1998.

(...) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(...) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(...) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(...) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(...) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) ... Subject to subsection (3D),in this section “act” means—

(a) making any legislation,

(b) any other act or failure to act, if it is the act or failure of a member of the Scottish Government.

Interpretation of Acts of the Scottish Parliament etc

101

(1) This section applies to—

(a) any provision of an Act of the Scottish Parliament, or of a Bill for such an Act, and

(b) any provision of subordinate legislation made, confirmed or approved, or purporting to be made, confirmed or approved, by a member of the Scottish Government,

which could be read in such a way as to be outside competence.

(2) Such a provision is to be read as narrowly as is required for it to be within competence, if such a reading is possible, and is to have effect accordingly.

(3) In this section “competence”—

(a) in relation to an Act of the Scottish Parliament, or a Bill for such an Act, means the legislative competence of the Parliament, and

(b) in relation to subordinate legislation, means the powers conferred by virtue of this Act.

Powers of courts or tribunals to vary retrospective decisions

102

(1) This section applies where any court or tribunal decides that—

(a) an Act of the Scottish Parliament or any provision of such an Act is not within the legislative competence of the Parliament, or

(b) a member of the Scottish Government does not have the power to make, confirm or approve a provision of subordinate legislation that he has purported to make, confirm or approve , or

(2) The court or tribunal may make an order—

(a) removing or limiting any retrospective effect of the decision, or

(b) suspending the effect of the decision for any period and on any conditions to allow the defect to be corrected.

(3) In deciding whether to make an order under this section, the court or tribunal shall (among other things) have regard to the extent to which persons who are not parties to the proceedings would otherwise be adversely affected.

(4) Where a court or tribunal is considering whether to make an order under this section, it shall order intimation of that fact to be given to—

(a) the Lord Advocate, and

(b) the appropriate law officer, where the decision mentioned in subsection (1) relates to a devolution issue (within the meaning of Schedule 6), or to a compatibility issue,

unless the person to whom the intimation would be given is a party to the proceedings.

(5) A person to whom intimation is given under subsection (4) may take part as a party in the proceedings so far as they relate to the making of the order.

(5A) Where the decision mentioned in subsection (1) is a decision of the Supreme Court on a compatibility issue, the power to make an order under this section is exercisable by the High Court of Justiciary instead of the Supreme Court.

(6) Paragraphs 36 and 37 of Schedule 6 apply with necessary modifications for the purposes of subsections (4) and (5) as they apply for the purposes of that Schedule.

(7) In this section—

“ compatibility issue ” has the meaning given by section 288ZA of the Criminal Procedure (Scotland) Act 1995,

“intimation” includes notice,

“the appropriate law officer” means—in relation to proceedings in Scotland, the Advocate General,in relation to proceedings in England and Wales, the Attorney General,in relation to proceedings in Northern Ireland, the Advocate General for Northern Ireland.

The Judicial Committee

103

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

Supplementary powers

Power to make provision consequential on legislation of, or scrutinised by, the Parliament

104

(1) Subordinate legislation may make such provision as the person making the legislation considers necessary or expedient in consequence of any provision made by or under any Act of the Scottish Parliament or made by legislation mentioned in subsection (2).

(2) The legislation is subordinate legislation under an Act of Parliament made by—

(a) a member of the Scottish Government,

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

(c) any other person (not being a Minister of the Crown) if the function of making the legislation is exercisable within devolved competence.

(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Power to make provision consequential on this Act

105

Subordinate legislation may make such modifications in any pre-commencement enactment or prerogative instrument or any other instrument or document as appear to the person making the legislation necessary or expedient in consequence of this Act.

Power to adapt functions

106

(1) Subordinate legislation may make such provision (including, in particular, provision modifying a function exercisable by a Minister of the Crown) as the person making the legislation considers appropriate for the purpose of enabling or otherwise facilitating the transfer of a function to the Scottish Ministers by virtue of section 53 or 63.

(2) Subordinate legislation under subsection (1) may, in particular, provide for any function which—

(a) is not exercisable separately in or as regards Scotland to be so exercisable, or

(b) is not otherwise exercisable separately within devolved competence to be so exercisable.

(3) The reference in subsection (1) to the transfer of a function to the Scottish Ministers shall be read as including the sharing of a function with the Scottish Ministers or its other adaptation.

(4) No recommendation shall be made to Her Majesty in Council to make, and no Minister of the Crown shall make, subordinate legislation under this section which modifies a function of observing or implementing an obligation mentioned in subsection (5) unless the Scottish Ministers have been consulted about the modification.

(5) The obligation is an international obligation, or an assimilated obligation, to achieve a result defined by reference to a quantity (whether expressed as an amount, proportion or ratio or otherwise), where the quantity relates to the United Kingdom (or to an area including the United Kingdom or to an area consisting of a part of the United Kingdom which includes the whole or part of Scotland).

(6) If subordinate legislation under this section modifies a function of observing or implementing such an international obligation so that the function to be transferred to the Scottish Ministers relates only to achieving so much of the result to be achieved under the obligation as is specified in the legislation, references in section 58 to the international obligation are to be read as references to the requirement to achieve that much of the result.

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

Legislative power to remedy ultra vires acts

107

Subordinate legislation may make such provision as the person making the legislation considers necessary or expedient in consequence of—

(a) an Act of the Scottish Parliament or any provision of an Act of the Scottish Parliament which is not, or may not be, within the legislative competence of the Parliament, or

(b) any purported exercise by a member of the Scottish Government of his functions which is not, or may not be, an exercise or a proper exercise of those functions.

Agreed redistribution of functions exercisable by the Scottish Ministers etc

108

(1) Her Majesty may by Order in Council provide for any functions exercisable by a member of the Scottish Government to be exercisable—

(a) by a Minister of the Crown instead of by the member of the Scottish Government,

(b) by a Minister of the Crown concurrently with the member of the Scottish Government, or

(c) by the member of the Scottish Government only with the agreement of, or after consultation with, a Minister of the Crown.

(2) Where an Order is made under subsection (1)(a) or (b) in relation to a function of the Scottish Ministers, the First Minister or the Lord Advocate which is exercisable only with the agreement of, or after consultation with, any other of those persons, the function shall, unless the Order provides otherwise, be exercisable by the Minister of the Crown free from any such requirement.

(3) An Order under this section may, in particular, provide for any function exercisable by a Minister of the Crown by virtue of an Order under subsection (1)(a) or (b) to be exercisable subject to a requirement for the function to be exercised with the agreement of, or after consultation with, another person.

(4) This section does not apply to any retained functions of the Lord Advocate which fall within section 52(6)(a).

Agreed redistribution of property and liabilities

109

(1) Her Majesty may by Order in Council provide—

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

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

(2) Her Majesty may by Order in Council provide for the transfer to a Minister of the Crown or government department of any liabilities to which the Scottish Ministers or the Lord Advocate are subject.

(3) An Order in Council under this section may only be made in connection with any transfer or sharing of functions of a member of the Scottish Government by virtue of section 108 or in any other circumstances in which Her Majesty considers it appropriate to do so for the purposes of this Act.

110

(1) The Secretary of State may by order provide for individuals of any description specified in the order to be treated for the purposes of any of the matters that are reserved matters by virtue of Head F of Part II of Schedule 5 as if they were, or were not, Scottish taxpayers.

(2) The Secretary of State may by order provide in relation to any year of assessment that, for those purposes, the basic rate in relation to the income of Scottish taxpayers shall be treated as being such rate as is specified in the order (instead of the rate increased or reduced for that year by virtue of any resolution of the Parliament in pursuance of section 73 passed after the beginning of the year).

(3) An order under this section may apply in respect of any individuals whether Scotland is the part of the United Kingdom with which they have the closest connection or not.

(4) In this section “Scottish taxpayer” has the same meaning as in Part IV.

Regulation of Tweed and Esk fisheries

111

(1) Her Majesty may by Order in Council make provision for or in connection with the conservation, management and exploitation of salmon, trout, eels, lampreys, smelt, shad and freshwater fish in the Border rivers.

(2) An Order under subsection (1) may—

(a) exclude the application of section 53 in relation to any Border rivers function,

(b) confer power to make subordinate legislation.

(3) In particular, provision may be made by such an Order—

(a) conferring any function on a Minister of the Crown, the Scottish Ministers or a public body in relation to the Border rivers,

(b) for any Border rivers function exercisable by any person to be exercisable instead by a person (or another person) mentioned in paragraph (a),

(c) for any Border rivers function exercisable by any person to be exercisable concurrently or jointly with, or with the agreement of or after consultation with, a person (or another person) mentioned in paragraph (a).

(4) In this section—

“the Border rivers” means the Rivers Tweed and Esk,

“Border rivers function” means a function conferred by any enactment, so far as exercisable in relation to the Border rivers,

“conservation”, in relation to salmon, trout, eels, lampreys, smelt, shad and freshwater fish, includes the protection of their environment,

“eels”, “fish”, “freshwater fish”, “salmon”, “smelt” and “trout” have the same meanings as in the Salmon and Freshwater Fisheries Act 1975 (as amended by the Marine and Coastal Access Act 2009),

“the River Tweed” means the Tweed district (as defined in article 2(1) of the Scotland Act 1998 (River Tweed) Order 2006 (S.I. 2006/2913)).

“the River Esk” means the river of that name which, for part of its length, constitutes the border between England and Scotland including—its tributary streams (which for this purpose include the River Sark and its tributary streams), andsuch waters on the landward side of its estuary limits as are determined by an Order under subsection (1),together with its banks;

and references to the Border rivers include any part of the Border rivers.

(5) An Order under subsection (1) may modify the definitions in subsection (4) of the River Tweed and the River Esk.

(6) An Order under subsection (1) may amend that subsection so as to—

(a) add any description of fish to it, or

(b) remove any description of fish from it.

Part VI — Supplementary

Subordinate legislation

Subordinate legislation: general

112

(1) Any power to make subordinate legislation conferred by this Act shall, if no other provision is made as to the person by whom the power is exercisable, be exercisable by Her Majesty by Order in Council or by a Minister of the Crown by order.

(2) But the power to make subordinate legislation under section 129(1) providing—

(a) for the appropriation of sums forming part of the Scottish Consolidated Fund, or

(b) for sums received by any person to be appropriated in aid of sums appropriated as mentioned in paragraph (a),

shall be exercisable only by Her Majesty by Order in Council.

(3) References in this Act to an open power are to a power to which subsection (1) applies (and include a power to make subordinate legislation under section 129(1) whether or not the legislation makes provision as mentioned in subsection (2)).

(4) An Order in Council under an open power may revoke, amend or re-enact an order, as well as an Order in Council, under the power; and an order under an open power may revoke, amend or re-enact an Order in Council, as well as an order, under the power.

(5) Any power to make subordinate legislation conferred by this Act shall, in relation to its exercise by a Minister of the Crown or a member of the Scottish Government, be exercisable by statutory instrument.

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

Subordinate legislation: scope of powers

113

(1) References in this section to a power are to an open power and to any other power to make subordinate legislation conferred by this Act which is exercisable by Her Majesty in Council or by a Minister of the Crown, and include a power as extended by this section.

(1A) Subsections (2) to (11), except subsection (9), apply also to the power of the Scottish Ministers to make an order under section 12 or regulations under section 12B.

(2) A power may be exercised so as to make different provision for different purposes.

(3) A power (as well as being exercisable in relation to all cases to which it extends) may be exercised in relation to—

(a) those cases subject to specified exceptions, or

(b) any particular case or class of case.

(4) A power includes power to make—

(a) any supplementary, incidental or consequential provision, and

(b) any transitory, transitional or saving provision,

which the person making the legislation considers necessary or expedient.

(5) A power may be exercised by modifying—

(a) any enactment or prerogative instrument,

(b) any other instrument or document,

if the subordinate legislation (or a statutory instrument containing it) would be subject to any of the types of procedure referred to in Schedule 7.

(6) But a power to modify enactments does not (unless otherwise stated) extend to making modifications of this Act or subordinate legislation under it.

(7) A power may be exercised so as to make provision for the delegation of functions.

(8) A power includes power to make provision for sums to be payable out of the Scottish Consolidated Fund or charged on the Fund.

(9) A power includes power to make provision for the payment of sums out of money provided by Parliament or for sums to be charged on and paid out of the Consolidated Fund.

(9A) A power may not be exercised so as to create any criminal offence punishable with any of the penalties specified for the offence in subsection (9B) or (10).

(9B) In relation to Scotland, the specified penalties are—

(a) where the offence is triable on summary complaint only, imprisonment for a period exceeding 12 months and a fine exceeding level 5 on the standard scale,

(b) where an offence triable either on indictment or on summary complaint is tried on summary complaint, imprisonment for a period exceeding 12 months and a fine exceeding the statutory maximum,

(10) In relation to England and Wales and Northern Ireland, the specified penalties are—

(a) where the offence is tried summarily, imprisonment for a period exceeding the prescribed term and a fine exceeding—

(i) in the case of a summary offence, level 5 on the standard scale,

(ii) in the case of an offence triable either way, the statutory maximum,

(b) where the offence is tried on indictment, imprisonment for a period exceeding two years.

(10A) In subsection (10)(a), “the prescribed term” means—

(a) in relation to England and Wales, where the offence is a summary offence, 51 weeks;

(b) in relation to England and Wales, where the offence is triable either way, the general limit in a magistrates’ court;

(10AA) If a power—

(a) is exercised so as to make provision for a summary offence under the law of England and Wales to be punishable with imprisonment for more than 6 months (“the relevant provision”) and

(b) is so exercised—

(i) on or after 2 May 2022, but

(ii) before the day on which section 281(5) of the Criminal Justice Act 2003 comes into force,

the power must also be exercised so as to provide that, in relation to an offence committed before the day referred to in paragraph (b)(ii), any reference in the relevant provision to a term of imprisonment of more than 6 months is to be read as a reference to a term of imprisonment of 6 months.

(11) The fact that a power is conferred does not prejudice the extent of any other power.

(12) Her Majesty may by Order in Council amend subsection (9B) or (10) so as to change—

(a) any period of imprisonment specified there, or

(b) the amount of any fine so specified.

Subordinate legislation: particular provisions

114

(1) A power to make subordinate legislation conferred by any of the following provisions of this Act may be exercised by modifying any enactment comprised in or made under this Act (except Schedules 4 and 5): sections 12B, 66(5), 89, 104, 107, 108 and 129(1).

(2) The reference in subsection (1) to a power to make subordinate legislation includes a power as extended by section 113.

(3) A power to make subordinate legislation conferred by any of the following provisions of this Act may be exercised so as to make provision having retrospective effect: sections 30, 58(4), 104 and 107.

Subordinate legislation: procedure

115

(1) Schedule 7 (which determines the procedure which is to apply to subordinate legislation under this Act in relation to each House of Parliament and the Scottish Parliament) shall have effect.

(2) In spite of the fact that that Schedule provides for subordinate legislation under a particular provision of this Act (or the statutory instrument containing it) to be subject to any type of procedure in relation to the Parliament, the provision conferring the power to make that legislation may be brought into force at any time after the passing of this Act.

(3) Accordingly, any subordinate legislation (or the statutory instrument containing it) made in the exercise of the power in the period beginning with that time and ending immediately before the principal appointed day is to be subject to such other type of procedure (if any) as may be specified in subordinate legislation made under section 129(1).

Transfer of property: supplementary

116

(1) This section applies in relation to subordinate legislation under section 60, 62, 90 or 109 or paragraph 2 of Schedule 2.

(2) Any such subordinate legislation may, in particular—

(a) provide for the creation of rights or interests, or the imposition of liabilities or conditions, in relation to property transferred, or rights or interests acquired, by virtue of such legislation,

(b) provide for any property, liabilities or conditions to be determined under such legislation,

(c) make provision (other than provision imposing a charge to tax) as to the tax treatment of anything done by virtue of such legislation.

(3) No order shall be made by a Minister of the Crown by virtue of subsection (2)(c), and no recommendation shall be made to Her Majesty in Council to make an Order in Council by virtue of subsection (2)(c), without the agreement of the Treasury.

(4) Subordinate legislation to which this section applies shall have effect in relation to any property or liabilities to which it applies despite any provision (of whatever nature) which would otherwise prevent, penalise or restrict the transfer of the property or liabilities.

(5) A right of pre-emption, right of irritancy, right of return or other similar right shall not operate or become exercisable as a result of any transfer of property by virtue of any subordinate legislation to which this section applies.

(6) Any such right shall have effect in the case of any such transfer as if the transferee were the same person in law as the transferor and as if no transfer of the property had taken place.

(7) Such compensation as is just shall be paid to any person in respect of any such right which would, apart from subsection (5), have operated in favour of, or become exercisable by, that person but which, in consequence of the operation of that subsection, cannot subsequently operate in his favour or (as the case may be) become exercisable by him.

(8) Any compensation payable by virtue of subsection (7) shall be paid by the transferor or by the transferee or by both.

(9) Subordinate legislation under this subsection may provide for the determination of any disputes as to whether and, if so, how much, compensation is payable by virtue of subsection (7) and as to the person to whom or by whom it shall be paid.

(10) Subsections (4) to (9) apply in relation to the creation of rights or interests, or the doing of anything else, in relation to property as they apply in relation to a transfer of property; and references to the transferor and transferee shall be read accordingly.

(11) A certificate issued by the Secretary of State that any property or liability has, or has not, been transferred by virtue of subordinate legislation under section 60 or 62 or paragraph 2 of Schedule 2 shall be conclusive evidence of the transfer or (as the case may be) the fact that there has not been a transfer.

(12) A certificate issued by the Secretary of State and the Scottish Ministers that any property or liability has, or has not, been transferred by virtue of an Order in Council under section 90 or 109 shall be conclusive evidence of the transfer or (as the case may be) the fact that there has not been a transfer.

(13) In this section “right of return” means any right under a provision for the return or reversion of property in specified circumstances.

General modification of enactments

Ministers of the Crown

117

So far as may be necessary for the purpose or in consequence of the exercise of a function by a member of the Scottish Government within devolved competence, any pre-commencement enactment or prerogative instrument, and any other instrument or document, shall be read as if references to a Minister of the Crown (however described) were or included references to the Scottish Ministers.

Subordinate instruments

118

(1) Subsection (2) applies in relation to the exercise by a member of the Scottish Government within devolved competence of a function to make, confirm or approve subordinate legislation.

(2) If a pre-commencement enactment makes provision—

(a) for any instrument or the draft of any instrument made in the exercise of such a function to be laid before Parliament or either House of Parliament,

(b) for the annulment or approval of any such instrument or draft by or in pursuance of a resolution of either or both Houses of Parliament, or

the provision shall have effect, so far as it relates to the exercise of the function by a member of the Scottish Government within devolved competence, as if any reference in it to Parliament or either House of Parliament were a reference to the Scottish Parliament.

(3) Where—

(a) a function of making, confirming or approving subordinate legislation conferred by a pre-commencement enactment is exercisable by a Scottish public authority with mixed functions or no reserved functions, and

(b) a pre-commencement enactment makes such provision in relation to the exercise of the function as is mentioned in subsection (2),

the provision shall have effect, so far as it relates to the exercise of the function by that authority, as if any reference in it to Parliament or either House of Parliament were a reference to the Scottish Parliament.

(4) Where—

(a) a function of making, confirming or approving subordinate legislation conferred by a pre-commencement enactment is exercisable within devolved competence by a person other than a Minister of the Crown, a member of the Scottish Government or a Scottish public authority with mixed functions or no reserved functions, and

(b) a pre-commencement enactment makes such provision in relation to the exercise of the function as is mentioned in subsection (2),

the provision shall have effect, so far as it relates to the exercise of the function by that person within devolved competence, as if any reference in it to Parliament or either House of Parliament were a reference to the Scottish Parliament.

(5) If a pre-commencement enactment applies the Statutory Instruments Act 1946 as if a function of the kind mentioned in subsection (3) or (4) were exercisable by a Minister of the Crown, that Act shall apply, so far as the function is exercisable as mentioned in paragraph (a) of subsection (3) or (as the case may be) (4), as if the function were exercisable by the Scottish Ministers.

Consolidated Fund etc

119

(1) In this section “Scottish functions” means—

(a) functions of the Scottish Ministers, the First Minister or the Lord Advocate which are exercisable within devolved competence,

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

(2) Subject to subsections (3) and (5), a provision of a pre-commencement enactment which—

(a) requires or authorises the payment of any sum out of the Consolidated Fund or money provided by Parliament, or

(b) requires or authorises the payment of any sum into the Consolidated Fund,

shall cease to have effect in relation to any Scottish functions.

(3) A provision of a pre-commencement enactment which—

(a) charges any sum on the Consolidated Fund,

(b) requires the payment of any sum out of the Consolidated Fund without further appropriation, or

(c) requires or authorises the payment of any sum into the Consolidated Fund by a person other than a Minister of the Crown,

shall have effect in relation to any Scottish functions as if it provided for the sum to be charged on the Scottish Consolidated Fund or required it to be paid out of that Fund without further approval or required or authorised it to be paid into that Fund (as the case may be).

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

(5) A provision of a pre-commencement enactment which authorises any sums to be applied as money provided by Parliament instead of being paid into the Consolidated Fund shall have effect in relation to any Scottish functions as if it authorised those sums to be applied as if they had been paid out of the Scottish Consolidated Fund in accordance with rules under section 65(1)(c) instead of being paid into that Fund.

(6) Where a power to lend money under a pre-commencement enactment is exercisable by the Scottish Ministers, subsection (7) applies to any sums which, for the purpose or as the result of the exercise of the power, would be required (apart from that subsection)—

(a) to be issued by the Treasury out of the National Loans Fund, or

(b) to be paid into that Fund.

(7) Those sums shall instead—

(a) be paid out of the Scottish Consolidated Fund without further approval, or

(b) be paid into that Fund,

(as the case may be).

Accounts and audit

120

A provision of a pre-commencement enactment which—

(a) requires any account to be examined, certified and reported on by, or to be open to the inspection of, the Comptroller and Auditor General, or

(b) requires him to have access to any other document for carrying out any such examination,

shall have effect in relation to any Scottish functions (within the meaning of section 119) as if the references to the Comptroller and Auditor General were to the Auditor General for Scotland.

Requirements to lay reports etc. before Parliament

121

(1) This section applies where—

(a) a pre-commencement enactment makes provision for any report to be laid before Parliament or either House of Parliament, and

(b) the report concerns Scottish functions.

(2) If the report only concerns Scottish functions, it shall be laid instead before the Scottish Parliament.

(3) In any other case, it shall be laid before the Scottish Parliament as well as before Parliament or (as the case may be) either House of Parliament.

(4) In this section—

“report” includes accounts and any statement,

“Scottish functions” has the same meaning as in section 119.

Crown land

122

(1) In any provision about the application of any pre-commencement enactment to Crown land—

(a) references to a Minister of the Crown or government department shall be read as including the Scottish Ministers and the Lord Advocate, and

(b) references to a Minister of the Crown or government department having the management of the land shall be read as including any member of the Scottish Government having the management of the land.

(2) In this section, “Crown land” has the meaning given by section 242 of the Town and Country Planning (Scotland) Act 1997.

Stamp duty

123

In section 55 of the Finance Act 1987 (Crown exemption from stamp duty) references to a Minister of the Crown shall be read as including the Scottish Ministers, the Lord Advocate and the Parliamentary corporation.

Modification of sections 94 and 117 to 122

124

(1) Subordinate legislation may provide for any provision of sections 94 and 117 to 122 not to apply, or to apply with modifications, in such cases as the person making the legislation considers appropriate.

(2) Subordinate legislation made by Her Majesty in Council or a Minister of the Crown under this Act may, in connection with any other provision made by the legislation, also provide for any provision of sections 94 and 117 to 122 not to apply, or to apply with modifications.

Amendments and repeals

125

(1) Schedule 8 (which makes modifications of enactments) shall have effect.

(2) The enactments mentioned in Schedule 9 are repealed to the extent specified in that Schedule.

Final provisions

Interpretation

126

(1) In this Act—

“body” includes unincorporated association,

“constituencies” and “regions”, in relation to the Parliament, mean the constituencies and regions provided for by Schedule 1,

“constituency member” means a member of the Parliament for a constituency,

“the Convention rights” has the same meaning as in the Human Rights Act 1998,

“document” means anything in which information is recorded in any form (and references to producing a document are to be read accordingly),

“enactment” includes an Act of the Scottish Parliament, Northern Ireland legislation (within the meaning of the Northern Ireland Act 1998) and an enactment comprised in subordinate legislation, and includes an enactment comprised in, or in subordinate legislation under, an Act of Parliament, whenever passed or made,

“financial year” means a year ending with 31st March,

“functions” includes powers and duties, and “confer”, in relation to functions, includes impose,

“government department” means any department of the Government of the United Kingdom,

“the Human Rights Convention” means—the Convention for the Protection of Human Rights and Fundamental Freedoms, agreed by the Council of Europe at Rome on 4th November 1950, andthe Protocols to the Convention,as they have effect for the time being in relation to the United Kingdom,

“Minister of the Crown” includes the Treasury,

“modify” includes amend or repeal,

“occupational pension scheme”, “personal pension scheme” and “public service pension scheme” have the meanings given by section 1 of the Pension Schemes Act 1993, . . .

“the Parliament” means the Scottish Parliament,

“parliamentary”, in relation to constituencies, elections and electors, is to be taken to refer to the Parliament of the United Kingdom,

“prerogative instrument” means an Order in Council, warrant, charter or other instrument made under the prerogative,

“the principal appointed day” means the day appointed by an order under section 130 which is designated by the order as the principal appointed day,

“proceedings”, in relation to the Parliament, includes proceedings of any committee or sub-committee,

“property” includes rights and interests of any description,

“regional member” means a member of the Parliament for a region,

“Scotland” includes so much of the internal waters and territorial sea of the United Kingdom as are adjacent to Scotland,

“Scottish public authority” means any public body (except the Parliamentary corporation), public office or holder of such an office whose functions (in each case) are exercisable only in or as regards Scotland,

“the Scottish zone” means the sea within British fishery limits (that is, the limits set by or under section 1 of the Fishery Limits Act 1976) which is adjacent to Scotland,

“standing orders” means standing orders of the Parliament,

“subordinate legislation” has the same meaning as in the Interpretation Act 1978 and also includes an instrument made under an Act of the Scottish Parliament,

“tribunal” means any tribunal in which legal proceedings may be brought.

(2) Her Majesty may by Order in Council determine, or make provision for determining, for the purposes of this Act any boundary between waters which are to be treated as internal waters or territorial sea of the United Kingdom, or sea within British fishery limits, adjacent to Scotland and those which are not.

(3) For the purposes of this Act—

(a) the question whether any function of a body, government department, office or office-holder relates to reserved matters is to be determined by reference to the purpose for which the function is exercisable, having regard (among other things) to the likely effects in all the circumstances of any exercise of the function, but

(b) bodies to which paragraph 3 of Part III of Schedule 5 applies are to be treated as if all their functions were functions which relate to reserved matters.

(4) References in this Act to Scots private law are to the following areas of the civil law of Scotland—

(a) the general principles of private law (including private international law),

(b) the law of persons (including natural persons, legal persons and unincorporated bodies),

(c) the law of obligations (including obligations arising from contract, unilateral promise, delict, unjustified enrichment and negotiorum gestio),

(d) the law of property (including heritable and moveable property, trusts and succession), and

(e) the law of actions (including jurisdiction, remedies, evidence, procedure, diligence, recognition and enforcement of court orders, limitation of actions and arbitration),

and include references to judicial review of administrative action.

(5) References in this Act to Scots criminal law include criminal offences, jurisdiction, evidence, procedure and penalties and the treatment of offenders.

(6) References in this Act and in any other enactment to the Scottish Administration are to the office-holders in the Scottish Administration and the members of the staff of the Scottish Administration.

(7) For the purposes of this Act—

(a) references to office-holders in the Scottish Administration are to—

(i) members of the Scottish Government and junior Scottish Ministers, and

(ii) the holders of offices in the Scottish Administration which are not ministerial offices, and

(b) references to members of the staff of the Scottish Administration are to the staff of the persons referred to in paragraph (a).

(8) For the purposes of this Act, the offices in the Scottish Administration which are not ministerial offices are—

(a) the Registrar General of Births, Deaths and Marriages for Scotland, the Keeper of the Registers of Scotland and the Keeper of the Records of Scotland, and

(b) any other office of a description specified in an Order in Council made by Her Majesty under this subsection.

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

(10) In this Act, “international obligations” means any international obligations of the United Kingdom other than obligations to observe and implement ... the Convention rights.

(11) In this Act, “by virtue of” includes “by” and “under”.

Index of defined expressions

127

In this Act, the expressions listed in the left-hand column have the meaning given by, or are to be interpreted in accordance with, the provisions listed in the right-hand column.

Expenses

128

(1) There shall be paid out of money provided by Parliament—

(a) any expenditure incurred by a Minister of the Crown by virtue of this Act, and

(b) any increase attributable to this Act in the sums payable out of money so provided under any other enactment.

(2) There shall be paid into the Consolidated Fund any sums received by a Minister of the Crown by virtue of this Act which are not payable into the National Loans Fund.

Transitional provisions etc

129

(1) Subordinate legislation may make such provision as the person making the legislation considers necessary or expedient for transitory or transitional purposes in connection with the coming into force of any provision of this Act.

(2) If any of the following provisions come into force before the Human Rights Act 1998 has come into force (or come fully into force), the provision shall have effect until the time when that Act is fully in force as it will have effect after that time: sections 29(2)(d), 57(2) and (3), 100 and 126(1) and Schedule 6.

Commencement

130

(1) Sections 19 to 43, Parts II to V, sections 117 to 124 and section 125 (except so far as relating to paragraphs 10, 11, 19 and 23(1) and (6) of Schedule 8) shall come into force on such day as the Secretary of State may by order appoint.

(2) Different days may be appointed under this section for different purposes.

Extent

131

Section 25 extends only to Scotland.

Short title

132

This Act may be cited as the Scotland Act 1998.

SCHEDULE 1

General

1

The constituencies for the purposes of this Act are—

(a) the Orkney Islands,

(b) the Shetland Islands, and

2

(1) There shall be eight regions for the purposes of this Act.

(2) Those regions shall be the eight European Parliamentary constituencies which were provided for by the European Parliamentary Constituencies (Scotland) Order 1996.

(3) Seven regional members shall be returned for each region.

(4) Sub-paragraphs (2) and (3) are subject to any Order in Council under the Parliamentary Constituencies Act 1986 (referred to in this Schedule as the 1986 Act), as that Act is extended by this Schedule.

Reports of Boundary Commission

3

(1) This paragraph applies where the Boundary Commission for Scotland (referred to in this Schedule as the Commission) submit a report to the Secretary of State under section 3(1) or (3) of the 1986 Act recommending any alteration in any parliamentary constituencies.

(2) In the report the Commission shall recommend any alteration—

(a) in any of the regions, or

(b) in the number of regional members to be returned for any of the regions,

which, in their opinion, is required to be made in order to give effect to the rules in paragraph 7.

(3) If in the case of a report under section 3(1) or (3) of that Act the Commission do not make any recommendation within sub-paragraph (2), they shall in the report state that, in their opinion, no such alteration is required.

(4) A report making a recommendation for an alteration in any region shall state—

(a) the name by which the Commission recommend that the region should be known, and

(b) the number of regional members to be returned for the region.

(5) The Commission shall lay any report recommending any alteration in parliamentary constituencies before the Parliament.

4

(1) An Order in Council under section 4 of the 1986 Act which has the effect of making any alteration in any constituency of the Parliament, or makes any alteration within paragraph 3(2), may come into force for the purposes of any election for membership of the Parliament on a different day from the day on which it comes into force for the purposes of any parliamentary election; and paragraph 1(c) shall be read accordingly.

(2) The coming into force of such an Order, so far as it has the effect of making any alteration in any constituency of the Parliament or makes any alteration within paragraph 3(2), shall not affect the return of any member of the Parliament, or its constitution, until the Parliament is dissolved.

Notices

5

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