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Scotland Act 1998

SECTION 56: Shared powers.
Purpose and Effect

This section provides for certain exceptions to the general rule that functions which are transferred to the Scottish Ministers by virtue of section 53 will cease to be exercisable by Ministers of the Crown in or as regards Scotland.  This enables the UK Government, for example, to provide financial assistance to industry in Scotland.  The section also enables the Scottish Ministers and a Minister of the Crown to exercise jointly non-statutory powers in order to establish, maintain or abolish bodies, offices and office-holders.


This section forms part of the set dealing with the functions of members of the Scottish Executive. Section 53 makes provision for the transfer of functions of a Minister of the Crown so far as they are exercisable within devolved competence so that they will be exercisable by the Scottish Ministers instead of by a Minister of the Crown.

The present section provides for some exceptions to this general rule where it makes sense for the function to continue to be exercisable within devolved competence by a Minister of the Crown as well as by Scottish Ministers. Section 57(1) provides for a further exception in respect of functions exercisable for the purposes set out in section 2(2) of the European Communities Act 1972. These functions are called “shared” or “concurrent” functions - see section 63(1). They are not exercisable jointly but they are exercisable separately by a Minister of the Crown and by the Scottish Ministers.

Where functions remain exercisable by a Minister of the Crown by virtue of this section, paragraph 6 of Schedule 4 prevents an Act of the Scottish Parliament from modifying (or conferring power to modify) any enactment so far as the enactment relates to powers exercisable by a Minister of the Crown by virtue of this section.  This does not, however, prevent the Scottish Parliament from repealing or amending the enactment so far as it relates to powers exercisable by the Scottish Ministers while leaving the powers exercisable by UK Ministers untouched.

Certain other functions which are executively devolved to the Scottish Ministers by an order under section 63 are similarly made exercisable by UK Ministers as well as by the Scottish Ministers.

The section also provides for certain non-statutory functions to be exercised jointly by a Minister of the Crown and the Scottish Ministers.

Parliamentary Consideration
Details of Provisions

Subsection (1) provides that, despite the transfer by virtue of section 53 of any function under certain specified enactments, the function will be exercisable by a Minister of the Crown as well as by the Scottish Ministers.

The specified enactments are:


Section 17(1) of the Ministry of Transport Act 1919. That section empowers the Minister to make advances out of moneys provided by Parliament to any authority, company or person, either as grants or as loans, for the construction, improvement or maintenance of railways, light railways, tramways, harbours, docks, piers, canals, or inland navigations, or for the promotion and improvement of transport services by land or by water.


Any Order in Council under section 1 of the United Nations Act 1946. Such Orders in Council are made to give effect to UN Security Council resolutions. This enables pre-existing regimes for licensing exports etc in pursuance of UN sanctions to continue to operate on a UK-wide basis. By virtue of paragraph 6 of Schedule 8, Orders in Council under the 1946 Act can continue to be made with UK-wide effect but, if an Order includes any provision which would be within the legislative competence of the Scottish Parliament, it requires to be laid before the Scottish Parliament as well as before the Westminster Parliament.


Section 9 of the Industrial Organisation and Development Act 1947. That section empowers certain UK Ministers, by order, to impose levies on industry for the purposes of funding bodies concerned with scientific research, promotion of export trade, or the improvement of design.


Section 5 of the Science and Technology Act 1965. That section empowers the Secretary of State to fund scientific research, the dissemination of its results and related matters.


Section 1 of the Mineral Exploration and Investment Grants Act 1972. That section empowers the Secretary of State to contribute towards expenditure on exploration for mineral deposits in Great Britain or in UK territorial waters or continental shelf.


Sections 10 to 12 of the Industry Act 1972. These sections empower the Secretary of State to guarantee loans for the construction of ships and offshore installations and to pay grants in respect of the interest on such loans.


Sections 2, 11(3) and 12(4) of the Employment and Training Act 1973. These sections provide powers to make arrangements for employment and training and to make certain payments in relation to employment and training.


Sections 7 to 9 and 11 to 13 of the Industrial Development Act 1982. Sections 7 to 9, 11 and 12 empower the Secretary of State to provide financial assistance to industry, to provide advice to businesses, and to promote careers in industry. Section 13 empowers Ministers to make grants or loans towards the cost of improving basic services with a view to contributing to the development of industry.


Sections 39 and 40 of the Road Traffic Act 1988. These sections empower the Secretary of State to provide for promoting road safety by disseminating information or advice relating to the use of roads, and to contribute towards the costs of measures for promoting road safety.

Subsection (2) enables subordinate legislation to provide for any other function which is transferred by virtue of section 53 to be exercisable (so far as the subordinate legislation provides) by a Minister of the Crown as well as by the Scottish Ministers.  This power has been exercised in the Scotland Act 1998 (Concurrent Functions) Order 1999 (S.I. 1999/1592).

Subsection (3) provides that the power in subsection (2) may not be exercised so that subordinate legislation made under it comes into force at any time after the function in question has been transferred. That date was 1 July 1999 for the initial suite of functions transferred to the Scottish Ministers.  However, the power may also be used if, at some time in the future, further functions are transferred to the Scottish Ministers, such as in consequence of extending the legislative competence of the Scottish Parliament and therefore also the concept of devolved competence.

Subsection (4) provides that any power referred to in section 53(2)(a) (those of Her Majesty’s prerogative and other executive functions which are exercisable on Her behalf by a Minister of the Crown) to establish, maintain, or abolish a body, office, or office-holder having functions which include both:


functions which are exercisable in or as regards Scotland and do not relate to reserved matters; and


other functions,

shall, despite section 53, be exercisable jointly by the Minister of the Crown and the Scottish Ministers.  This enables the Scottish Ministers and the UK Government to establish jointly, for example, an advisory committee to advise both administrations about a matter of common interest (e.g. some environmental matter) or a company or trust to operate on a cross-border basis.

Subsection (5) provides a definition of “office-holder” for the purposes of subsection (4).

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