Statutory Instrument 1999 No. 1750

The Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 1999

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STATUTORY INSTRUMENTS

1999 No. 1750
CONSTITUTIONAL LAW
DEVOLUTION, SCOTLAND
The Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 1999

	Made	22nd June 1999
	Coming into force in accordance with article 1(1)

At the Court at Windsor Castle, the 22nd day of June 1999
Present,
The Queen's Most Excellent Majesty in Council
Whereas a draft of this Order has been-

Citation, commencement and interpretation

- (1) This Order may be cited as the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 1999 and shall come into force on the principal appointed day[

(4) A reference in article 2, 3 or 5 to a function so far as it is exercisable by a Minister of the Crown in or as regards Scotland is, if the function is treated by virtue of section 106 (power to adapt functions) as exercisable in or as regards Scotland to any extent, a reference to the function only so far as it is exercisable to that extent.

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

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

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

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

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

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

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

be exercisable by the Scottish Ministers concurrently with the Minister concerned.

Functions exercisable with agreement of, or after consultation with, the Scottish Ministers
4. The functions which are conferred on a Minister of the Crown by the enactments specified in column 1 of Schedule 3 to this Order shall-

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

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

be exercisable by him subject to the requirements as to agreement or consultation which are set out in the corresponding entry in column 2 of the Schedule.

Transfer of non-statutory functions to the Scottish Ministers
     5. The functions described in Schedule 4 to this Order shall, so far as they are exercisable by a Minister of the Crown in or as regards Scotland, be exercisable by the Scottish Ministers instead of by the Minister of the Crown.

Modifications of enactments
     6. - (1) Schedule 5 to this Order (modifications of enactments) shall have effect.

    (2) Subject to the modifications set out in Schedule 5-

(a) sections 94, 117 and 118 shall apply in relation to the exercise of functions by the Scottish Ministers by virtue of articles 2, 3 or 5 of this Order as they apply in relation to the exercise of functions by the Scottish Ministers within devolved competence; and

(b) sections 119 to 121 shall apply in relation to functions exercisable by the Scottish Ministers by virtue of those articles as they apply in relation to functions of the Scottish Ministers exercisable within devolved competence,

and as if any reference in those sections to a pre-commencement enactment were to any enactment.

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

(a) to government departments; or

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

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

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

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

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

    (4) Despite the transfer to the Scottish Ministers of functions by virtue of this Order, any function of a Minister of the Crown in relation to any matter shall continue to be exercisable by him as regards Scotland for the purposes specified in section 2(2) of the European Communities Act 1972[3]

A. K. Galloway
Clerk of the Privy Council

SCHEDULE 1

Article 2

ENACTMENTS CONFERRING FUNCTIONS TRANSFERRED TO THE SCOTTISH MINISTERS

PUBLIC GENERAL ACTS

Column 1	Column 2
Enactment	Restrictions and requirements
The Small Landholders (Scotland) Act 1911 (c.49), section 4.	Only so far as the functions are exercisable in relation to matters which are reserved by virtue of Section F3 (occupational and personal pensions) of Schedule 5 to the 1998 Act.
The Pensions Appeal Tribunals Act 1943 (c.39), paragraph 2 of the Schedule.	Functions of paying and determining remuneration only.
The Fire Services Act 1947 (c.41), sections 26 and 27A[4]
The Wireless Telegraphy Act 1949 (c.54), section 5(b)[5]	Only so far as the function is exercisable for the purpose of preventing or detecting serious crime.
The Pharmacy Act 1954 (c.61), Schedule 1C, paragraph 3(4)(b)[6]	Functions of the Secretary of State only.
The Pipe-lines Act 1962 (c.58), sections 1, 4, 5, 9, 9A, 10, 11, 12, 13 (except subsection (7)), 15, 26A, 35, 36, 38, 39(2), 43 and 44 and Schedules 1 and 2 (except paragraph 8)[7]
The Betting, Gaming and Lotteries Act 1963 (c.2), section 29(2)(b) and (4) and Schedule 1, paragraph 20(1A)[8]
The Nuclear Installations Act 1965 (c.57)[9] (a) section 2;	Functions of "the Minister" only.
(b) sections 6 and 17(1) and (4);
(c) section 19(1), (3) and (4);	The requirement in section 19(1) for the consent of the Treasury will continue to apply.
(d) section 20; and
(e) >Functions of "the Minister" only.
The Local Government (Scotland) Act 1966 (c.51), section 42(2).	Only so far as the function is exercisable in relation to the enactments mentioned in paragraph 26[10] of Part II of Schedule 4.
The Superannuation (Miscellaneous Provisions) Act 1967 (c.28), section 7.	The functions to direct under section 7(1) and (2) shall be exercised with the consent of the Treasury.
The Police (Scotland) Act 1967 (c.77)- (a) section 26; and	Only so far as the function is exercisable in relation to the matter specified in section 26(2)(k).
(b) section 27.	Only so far as the function is exercisable in relation to matters which are reserved by virtue of Section F3 (occupational and personal pensions) of Schedule 5 to the 1998 Act.
The Abortion Act 1967 (c.87), sections 1(3) and 2.
The Firearms Act 1968 (c.27), sections 5 and 12(2).
The Gaming Act 1968 (c.65)- (a) sections 22(3) and (4); and
(b) section 48(5)[11].	Only so far as the function is exercisable in relation to sub-sections (3)(a) to (c), (h) and (i) and (4) of section 48.
The Medicines Act 1968 (c.67), section 109.
The Taxes Management Act 1970 (c.9)- (a) sections 2(3)[12], 2(6)[13] and 3(4); and
(b) sections 4(1) and (4), 4A(1), 46A(1) and 56B(1)[14].	Functions of the Secretary of State only.
The Misuse of Drugs Act 1971 (c.38), Schedule 3, paragraphs 1(1)(b), 4, 13(1)(b) and 17.
The Immigration Act 1971 (c.77)- (a) Schedule 2, paragraph 1(2); and
(b) Schedule 2, paragraph 1(3).	Only the function of giving instructions to medical inspectors.
The Superannuation Act 1972 (c.11), sections 7, 8, 9, 10, 11(2), 12, 15(5), 16 and 24.	The requirements in sections 9(1) and 10(1) for consent of the Treasury will continue to apply.
The Industry Act 1975 (c.68), Schedule 3, paragraph 24[15].
The Lotteries and Amusements Act 1976 (c.32), sections 7(4), 18(1)(d) and (f).
The Police Pensions Act 1976 (c.35), sections 1, 2, 3, 4, 5, 6, 7, 8 and 8A[16].
The Race Relations Act 1976 (c.74), sections 19(5) and 57(5).
The Aircraft and Shipbuilding Industries Act 1977 (c.3), Schedule 7, paragraph 10[17].
The Insurance Brokers (Registration) Act 1977 (c.46), section 20[18].	Functions of the Secretary of State only.
The National Heritage Act 1980 (c.17), section 9(1) to (6), as read with section 9(8) and (9)(a), (b) and (c)[19], and sections 16[20] and 16A[21].
The Education (Scotland) Act 1980 (c.44), section 70 as applied by the Race Relations Act 1976 (c.74), section 19(3)[22].
The Civil Aviation Act 1982 (c.16) sections 38(2), 42(1), 50(2), 78, 79(1), 80 and 88(10) and (11).
The Civic Government (Scotland) Act 1982 (c.45), section 20[23].
The Medical Act 1983 (c.54), Schedule 4, paragraph 7[24].
The Road Traffic Regulation Act 1984 (c.27)- (a) sections 14(1), (2), (3) and (5), 15(2), (3), (5), (6) and (7), and 16(2) and (2A)[25];	Only so far as the functions are exercisable in relation to the imposition of speed limits.
(b) section 17(2) and (5);	Only the function of making regulations with respect to any particular special road.
(c) section 28(4)(a);	Only the function of giving authorisation for the use of signs of a description not prescribed by regulations under section 28(4)(a).
(d) section 64(1)(b) and (2);
(e) section 65(1);	Only the function of giving directions other than general directions.
(f) section 65(2) and (3A)(b)(ii)[26];
(g) sections 69(1), (2) and (3), 70(1), 71(1), 79(1), 82(1)(b), (2) and (3), 83(1) and 84(1), (1A) and (1B)[27];
(h) section 85(1) and (3);
(i) section 85(2); and	Only the function of giving directions other than general directions.
(j) Schedule 9, Part I, paragraphs 1, 3(1), 4, 7, 8 and 9, Part II, paragraphs 13, 15, 16(1) and (2) and 17 and Part III, paragraphs 21, 24 and 26(1) and (2).
The Data Protection Act 1984 (c.35), section 3(3)(a) and (b)[28].	Functions of the Secretary of State only.
The Inheritance Tax Act 1984 (c.51), section 230[29].
The Cinemas Act 1985 (c.13), section 6(6) and (7).
The Interception of Communications Act 1985 (c.56)[30]- (a) section 2; and	Only so far as the function is exercisable for the purpose of preventing or detecting serious crime.
(b) sections 4(3) and (4), 5(1)(a) and (2) and 6(1).	Only so far as the functions are exercisable in relation to a warrant issued under section 2 by the Scottish Ministers by virtue of this Order.
The Transport Act 1985 (c.67)- (a) section 19(7); and
(b) Schedule 4, paragraph 15[31].	Functions of the Secretary of State only.
The Airports Act 1986 (c. 32) sections 37(5), 65(2) and (6) and 68(1).
The Building Societies Act 1986 (c.53), section 47(2)(a)[32].	Functions of the Secretary of State only.
The Financial Services Act 1986 (c.60), section 96(2)(a)[33].	Functions of the Secretary of State only.
The Banking Act 1987 (c.22)- (a) section 28(2)(a)[34]; and	Functions of the Secretary of State only.
(b) section 30(4).
The Income and Corporation Taxes Act 1988 (c.1), sections 79(4) and 79(8).
The Multilateral Investment Guarantee Agency Act 1988 (c.8), section 6[35].
The Firearms (Amendment) Act 1988 (c.45), sections 15[36] and 19 and the Schedule (other than paragraph 3(1)(a)).
The Copyright, Designs and Patents Act 1988 (c.48), sections 145(2) and 150(1)[37].	Functions of being consulted by the Lord Chancellor only.
The Road Traffic Act 1988 (c.52), sections 13(2), 13A(1)[38], 27(6) and 31(2).
The Official Secrets Act 1989 (c.6), sections 7(5), 8(9) and 12.
The Electricity Act 1989 (c.29)- (a) section 2(2)(b) and (3)(a);
(b) section 3;	Only so far as the functions are exercisable in relation to functions exercisable by the Scottish Ministers.
(c) sections 32(1) and (9), 33, 34, 35, 36, 37, 39(1)(a) and 58;
(d) section 60;	Only so far as the functions are exercisable in relation to regulations made by the Scottish Ministers.
(e) section 61;
(f) Schedule 3, Part I;
(g) Schedule 3, Part III, paragraphs 15, 16, 17 and 20, including paragraph 11 of the First Schedule to the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 (c.42) as applied by those provisions;
(h) Schedule 4, paragraphs 6, 8, 9 and 10(4)(b);
(i) Schedule 5;
(j) Schedule 8; and
(k) Schedule 9, paragraphs 3 and 5.

[1] 1998 c.46.

back

[2] Article 3 of the Scotland Act 1998 (Commencement) Order 1998 (S.I. 1998/3178) appoints 1st July 1999 as the principal appointed day for the purposes of the 1998 Act.back

[3] 1972 c.68 back

[4] Section 27A was inserted by the Police and Firemen's Pensions Act 1997 (c.52), section 3.back

[5] Functions under this enactment are treated as exercisable in or as regards Scotland for the purposes of section 63 of the 1998 Act by virtue of the Scotland Act 1998 (Functions Exercisable in or as Regards Scotland) Order 1999 (S.I. 1999/1748).back

[6] Function transferred from Lord Advocate to Secretary of State by the Transfer of Functions (Lord Advocate and Secretary of State) Order 1999 (S.I. 1999/678); Functions under this enactment are treated as exercisable in or as regards Scotland for the purposes of section 63 of the 1998 Act by virtue of S.I. 1999/1748. Schedule 1C was inserted by the Pharmacists (Fitness to Practice) Act 1997 (c.19), Schedule, paragraph 4.back

[7] The functions under these enactments were modified by the Scotland Act 1998 (Modification of Functions) Order 1999 (S.I. 1999/1756). Section 26A was inserted by the Petroleum Act 1987 (c.12), section 26(1); section 9A was inserted, and sections 1, 4, 5, 9, 10, 12, 35, 36 and 43 and Schedule 1 amended, by S.I. 1999/742; the functions of the Minister of Power under the Act were transferred to the Minister of Technology by S.I. 1969/1498 and to the Secretary of State by S.I. 1970/1537.back

[8] Paragraph 20(1A) was inserted by the Betting, Gaming and Lotteries (Amendment) Act 1984 (c.25).back

[9] Section 2 was amended by the Atomic Energy Authority Act 1971 (c.11), section 17; section 6(1) was amended by S.I. 1974/2056; sections 19(1) and 20(1) were amended by the Energy Act 1983 (c.25), section 27.back

[10] Paragraph 26 was repealed in part by the Lotteries Act 1975 (c.58), section 20(3) and (4) and Schedules 4 and 5 and by the Lotteries and Amusements Act 1976 (c.32), sections 25(3) and Schedule 5.back

[11] Section 48(5) was amended by the Gaming (Amendment) Act 1990 (c.26), section 1 and the Schedule.back

[12] Section 2(3) was amended and repealed in part by the Finance Act 1975 (c.7), sections 57 and 59(5) and Schedule 13.back

[13] Section 2(6) was repealed in part by the Finance Act 1988 (c.39) section 148 and Schedule 14.back

[14] Function transferred from Lord Advocate to Secretary of State by S.I. 1999/678. Functions under this enactment are treated as exercisable in or as regards Scotland for the purposes of section 63 of the 1998 Act by virtue of S.I. 1999/1748. Sections 4 and 4A were substituted by the Finance Act 1984 (c.43), Schedule 22, and amended by the Judicial Pensions and Retirement Act 1993 (c.8), Schedule 6, paragraph 36. Section 4 was further amended by Schedule 8 to that Act and by the Courts and Legal Services Act 1990 (c.41), Schedule 10, paragraph 30. Sections 46A and 56B were inserted by the Finance (No.2) Act 1992 (c.48), Schedule 16, paragraphs 3 and 4. They are applied, with modifications, by the Schedule to the Stamp Duty Reserve Tax Regulations 1986 (S.I. 1986/1711).back

[15] Functions transferred from Lord Advocate to Secretary of State by S.I. 1999/678.back

[16] Section 8A was inserted by the Police and Firemen's Pensions Act 1997 (c.52), section 2.back

[17] Functions transferred from Lord Advocate to Secretary of State by S.I. 1999/678.back

[18] Function transferred from Lord Advocate to Secretary of State by S.I. 1999/678; section 20 was amended by the Courts and Legal Services Act 1990 (c.41), Schedule 10, paragraph 41.back

[19] The function under this section was modified by S.I. 1999/1756, which added subsections (8) and (9).back

[20] Section 16 was amended by the Museums and Galleries Act 1992 (c.44), section 10(1). The function under this section was modified by S.I. 1999/1756.back

[21] Section 16A was inserted by the Museums and Galleries Act 1992, section 10(2). The function under this section was modified by S.I. 1999/1756.back

[22] Section 19(3) of the Race Relations Act 1976 was amended by the Education (Scotland) Act 1980 (c.44), Schedule 4, paragraph 14.back

[23] Section 20 was amended by the Transport Act 1985 (c.67), Schedule 7, paragraph 23(3) and the Disability Discrimination Act 1995 (c.50), section 39(3).back

[24] Functions transferred from Lord Advocate to Secretary of State by S.I. 1999/678. Paragraph 7 of Schedule 4 was amended by the Courts and Legal Services Act 1990 (c.41), Schedule 10, paragraph 53 and the Medical (Professional Performance) Act 1995 (c.51), Schedule, paragraph 21.back

[25] Section 16(2) and (2A) was substituted by the Road Traffic (Temporary Restrictions) Act 1991 (c.26), section 1(2).back

[26] Subsection 3A was inserted by the Local Government and Housing Act 1989 (c.42) section 153(1).back

[27] Subsections (1), (1A) and (1B) were substituted by the Road Traffic Act 1991 (c.40) section 45.back

[28] Function transferred from Lord Advocate to Secretary of State by S.I. 1999/678. Functions under this enactment are treated as exercisable in or as regards Scotland for the purposes of section 63 of the 1998 Act by virtue of S.I. 1999/1748. The whole Act is repealed (prospectively) by the Data Protection Act 1998 (c.29), Schedule 16, Part I.back

[29] The function under this enactment was modified by S.I. 1999/1756.back

[30] Functions under this enactment are treated as exercisable in or as regards Scotland for the purposes of section 63 of the 1998 Act by virtue of S.I. 1999/1748.back

[31] Function transferred from Lord Advocate to Secretary of State by S.I. 1999/678. Functions under this enactment are treated as exercisable in or as regards Scotland for the purposes of section 63 of the 1998 Act by virtue of S.I. 1999/1748. Paragraph 15 of Schedule 4 was amended by S.I. 1989/495.back

[32] Function transferred from Lord Advocate to Secretary of State by S.I. 1999/678. Functions under this enactment are treated as exercisable in or as regards Scotland for the purposes of section 63 of the 1998 Act by virtue of S.I. 1999/1748.back

[33] Function transferred from Lord Advocate to Secretary of State by S.I. 1999/678. Functions under this enactment are treated as exercisable in or as regards Scotland for the purposes of section 63 of the 1998 Act by virtue of S.I. 1999/1748.back

[34] Function transferred from Lord Advocate to Secretary of State by S.I. 1999/678.back

[35] Functions transferred from Lord Advocate to Secretary of State by S.I. 1999/678. The text of section 6 as applicable to Scotland appears in section 7(g).back

[36] Section 15 was substituted by the Firearms (Amendment) Act 1997 (c.5), section 45(1).back

[37] Function transferred from Lord Advocate to Secretary of State by S.I. 1999/678. Functions under this enactment are treated as exercisable in or as regards Scotland for the purposes of section 63 of the 1998 Act by virtue of S.I. 1999/1748.back

[38] Section 13A was inserted by the Road Traffic Act 1991 (c.40), section 5.back



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Prepared 19 July 1999