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Scotland Act 1998

Details of Provisions

Subsection (1) provides that statutory functions may be conferred on the Scottish Ministers by that name.

Subsection (2) provides that statutory functions of the Scottish Ministers and statutory functions conferred on the First Minister or the Lord Advocate in their singular capacities, shall be exercisable on behalf of Her Majesty.

Subsection (3) provides that statutory functions conferred on the Scottish Ministers shall be exercisable by any member of the Scottish Executive. This ensures that functions conferred on the Scottish Ministers collectively may legally be exercisable by any one of them. In practice, it is for the First Minister to determine administratively which Minister is to exercise any particular statutory function by allocating the Ministerial portfolios. This provision only applies to statutory functions conferred upon the Scottish Ministers and not specifically upon the First Minister or the Lord Advocate.

Subsection (4) provides that any act or omission of, or in relation to, any member of the Scottish Executive be treated as an act or omission of, or in relation to, each of them. Similarly any property acquired or liability incurred by any member of the Scottish Executive shall be treated as if it were acquired or incurred by each of them. “Property” is defined in section 126(1) as including rights and interests of any description. This ensures that there is collective legal responsibility among the members of the Scottish Executive and, in particular, joint and several liability for any acts or omissions of any one of them. This is qualified by subsection (5).

Subsection (5) provides that subsection  (4) does not apply to in relation to the exercise of functions conferred on the First Minister alone or the Lord Advocate’s retained functions. This exception means that the First Minister and the Lord Advocate are solely legally responsible for how they exercise, or fail to exercise, their respective functions.

The “retained functions” of the Lord Advocate are defined in subsection (6). Functions conferred upon the Lord Advocate may, however, be exercised by the Solicitor General for Scotland under section 2(1) of the Law Officers Act 1944.

Subsection (6) defines the Lord Advocate’s “retained functions” as meaning: (a) any functions exercisable by the Lord Advocate immediately before he ceases to be a Minister of the Crown; and (b) other statutory functions conferred on him alone after he ceases to be a Minister of the Crown.

On (a), reference is made to the note on section 48 for a description of what happened to the functions of the Lord Advocate before he ceased to be a Minister of the Crown on 20 May 1999. The effect was that the only functions which were exercisable by the Lord Advocate immediately before he ceased to be a Minister of the Crown were those relating to his capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland. It was those functions which he retained when he became a member of the Scottish Executive on that date.

However (b) makes it clear that the concept of “retained functions” also includes any future statutory functions which are conferred upon the Lord Advocate alone after 20 May 1999 in a Westminster Act or an Act of the Scottish Parliament or in subordinate legislation. It would be appropriate for functions to be conferred upon him alone where they related to his capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland.

Subsection (7) provides that, in this section, “statutory functions” means functions conferred by virtue of any enactment.

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