SECTION 53: General transfer of functions.
Purpose and Effect
This section makes provision for the transfer to the Scottish Ministers of Ministerial functions in so far as they are exercisable within devolved competence, as defined in section 54. The effect of the section is that Ministerial functions under pre-existing legislation, prerogative and other executive functions exercisable by a Minister of the Crown on behalf of Her Majesty and other functions conferred on a Minister of the Crown by a prerogative instrument, will transfer to the Scottish Ministers, so far as they are exercisable in or as regards Scotland, except so far as they are exercisable in relation to matters outside the legislative competence of the Scottish Parliament.
General
This section and section 54 forms part of the set dealing with the functions of the Scottish Executive. Section 52 provides for statutory functions conferred on the Scottish Ministers to be exercisable by any one of them.
This section is a key element in the structure of the Act. It provides for the automatic transfer of Ministerial functions to the Scottish Ministers. It describes the types of functions to be transferred and transfers them “so far as they are exercisable within devolved competence” (which is defined in section 54).
The functions to be transferred require to be exercisable “in or as regards Scotland” because this is implicit in the concept of “devolved competence” (see note on section 54). Where there is uncertainty about this, section 30(3) empowers an Order in Council to be made which would provide that specified functions are to be treated, for such purposes of this Act as may be specified (including section 53), as being, or as not being, functions which are exercisable in or as regards Scotland - see the note on section 30.
The functions to be transferred also require to be separately exercisable within devolved competence. Section 106 enables provision to be made by Order in Council modifying a function exercisable by a Minister of the Crown “for the purpose of enabling or otherwise facilitating” its transfer under section 53. The Order may in particular provide for any function which is not separately exercisable in or as regards Scotland or otherwise within devolved competence to be so exercisable - see the note on section 106.
If the function to be transferred requires to be exercised with the agreement of or after consultation with a Minister of the Crown, section 55 provides that this requirement does not apply to the exercise by the Scottish Ministers of functions transferred to them.
To the extent that a function is transferred from a Minister of the Crown to the Scottish Ministers, it ceases to be exercisable by the Minister of the Crown. However sections 56 and 57(1) provide for certain exceptions to this.
Sections 117 to 123 make general modifications to existing pre-commencement enactments in relation to the exercise by the Scottish Ministers of functions transferred to them.
Reference is also made to the Scotland Act 1998 (General Transitory, Transitional and Savings Provisions) Order 1999 (S.I. 1999/901), which includes transitional and savings provisions relating to the transfer of functions under section 53.
Section 63 provides for the transfer of additional functions to the Scottish Ministers. This enables certain functions to be transferred to the Scottish Ministers which would not transfer under section 53 because they are not within “devolved competence”. Section 108 enables functions, to be transferred from the Scottish Ministers to UK Ministers. Both powers require the agreement of both the UK and Scottish Parliaments.
Parliamentary Consideration
| Stage | Date | Column |
|---|---|---|
| CR | 12-May-98 | 244 |
| LR | 28-Oct-98 | 2038 |
| L3 | 9-Nov-98 | 541 |
Details of Provisions
Subsection (1) provides that the functions mentioned in subsection (2) shall, so far as they are exercisable within devolved competence, be exercisable by the Scottish Ministers instead of by a Minister of the Crown.
This subsection has the effect of automatically transferring the functions from a Minister of the Crown to the Scottish Ministers but only “so far as they are exercisable within devolved competence”. To the extent that the function is exercisable outside devolved competence, then it is not transferred and remains with the Minister of the Crown. What devolved competence means is defined in section 54.
However, a function can only transfer if it is separately exercisable within devolved competence and section 106 may be used to facilitate its transfer by making it separately exercisable.
Sections 56 and 57(1) make provision for certain functions to continue to be exercisable by a Minister of the Crown as well as by the Scottish Ministers.
Subsection (2) defines the functions which may be transferred as being:
those prerogative and other executive functions exercisable by Ministers on behalf of Her Majesty;
other functions conferred on a Minister of the Crown by a prerogative instrument; and
functions conferred on a Minister of the Crown by any “pre‑commencement enactment";
but not the retained functions of the Lord Advocate as defined in section 52(6).
The “prerogative and other executive functions exercisable by Ministers on behalf of Her Majesty” would include any non-statutory functions which are exercisable by a Minister of the Crown. These functions are not confined to functions which were possessed by a Minister of the Crown when section 53 was commenced on 1 July 1999. They would include functions acquired thereafter by a Minister of the Crown so far as they are exercisable within devolved competence, such as the function of implementing any new EC or international obligation relating to a devolved matter.
The “functions conferred on a Minister of the Crown by a prerogative instrument” are also not time limited and would therefore include any function conferred upon a Minister of the Crown by a Royal Charter made under the prerogative after 1 July 1999. “Prerogative instrument” is defined in section 126(1).
The statutory functions which are transferred are limited to functions conferred on a Minister of the Crown by any “pre‑commencement enactment” which is defined in subsection (3). However a Westminster enactment which is passed after devolution may contain a provision which deems it or certain provisions in it to be a pre-commencement enactment. This would then enable functions conferred by that enactment upon a Minister of the Crown to transfer to Scottish Ministers under section 53 “so far as they are exercisable within devolved competence”.
Subsection (3) defines a “pre-commencement enactment” for the purposes of the Act as:
an Act passed before or in the same session in which the Scotland Act was passed and any other enactment made before the passing of this Act;
subordinate legislation made under such an Act or other enactment before the commencement of section 53 on 1 July 1999; and
subordinate legislation made under section 106 (power to adapt functions) to the extent that the subordinate legislation states that it is to be treated as a pre-commencement enactment. This is to ensure that functions which are modified under section 106 after 1 July 1999 in order to facilitate transfer can be transferred under section 53.
Subsection (4) draws attention to the fact that this section and section 54 are modified by Part III of Schedule 4. That modifies the general effect of the devolved competence test for certain enactments and other aspects of the law which that Schedule protects from modification by the Scottish Parliament. Paragraph 12 of the Schedule has the effect that, in general, Ministerial functions conferred by such enactments which are protected from modification are not transferred. However, paragraph 13 provides for some exceptions to that in relation to, for example, the European Communities Act 1972 and the Human Rights Act 1998, so that certain Ministerial functions under those Acts are transferred to the Scottish Ministers.