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Scotland Act 1998

SECTION 89: Power to adapt etc. cross-border public authorities.
Purpose and Effect

This section enables an Order in Council to make such provision in relation to a cross-border public authority (as defined under section 88) as is considered necessary or expedient in consequence of the Act. It allows arrangements to be tailor-made for allocating accountability and control between the UK Government and the Scottish Executive, and between the UK and Scottish Parliaments.

General

This is the second of the set of three sections dealing with ”cross-border public authorities”. Section 88 provides for such cross-border public authorities to be designated by Order in Council, and for certain requirements to apply unless and until alternative provision is made under the present section, including a requirement on Ministers of the Crown to consult the Scottish Ministers before exercising certain statutory functions in relation to them and for reports to be laid before the Scottish Parliament as well as Westminster. Section 90 enables the transfer by Order in Council of property and liabilities of such an authority where an Act of the Scottish Parliament has provided for any of its functions to be no longer exercisable in or as regards Scotland.

Parliamentary Consideration
StageDateColumn
CC4-Mar-981135
CR12-May-98197
LC6-Oct-98388
LR28-Oct-982071
LR28-Oct-982072
Details of Provisions

Subsection (1) confers a power for Her Majesty, by Order in Council, to make such provision in relation to a cross-border public authority as She considers necessary or expedient in consequence of the Act.

Subsection (2) provides that the Order in Council under subsection (1) can, in particular, provide for:

  • modifying any function of a cross-border public authority or of a Minister of the Crown in relation to such an authority. This can be used, for example, to provide for an authority’s functions to be separately exercisable in or as regards Scotland, so that it can be separately accountable to the Scottish Ministers and the Parliament;

  • 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;

  • modifying the constitution of such an authority;

  • modifying the application of:

    • section 88(1), which disapplies sections 53 (transfer of functions) and 118 to 121(subordinate instruments; Consolidated Fund; Accounts & Audit; Laying of Reports) in relation to functions specifically exercisable in relation to a cross-border public authority, and disapplies section 118 in relation to any function of a cross-border public authority;

    • section 88(2), which requires consultation with the Scottish Ministers before the exercise of certain functions;

    • section 88(3), which provides for the laying of reports relating to a cross-border public authority before the Scottish Parliament; and

    • section 56(4), which allows a Minister of the Crown and the Scottish Ministers to exercise certain non-statutory powers jointly to establish, maintain or abolish bodies, offices and office-holders;

  • functions to be transferred from a Minister of the Crown to the Scottish Ministers, 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. This can be used, for example, to provide that appointment or decision-making powers are transferred to the Scottish Ministers;

  • apportioning assets or liabilities;

  • imposing or enabling the imposition of, new limits or restrictions (for example on the size of grants payable by a body); and

  • alteration of financial arrangements, by providing for sums to be charged on or payable out of, or paid into, the Scottish Consolidated Fund and requiring payments to a Minister of the Crown or into the Consolidated Fund or the National Loans Fund.

Further provision about the making of subordinate legislation is to be found in sections 112 to 115 and Schedule 7. In particular, an Order in Council under section 89 is subject to procedure in both the Scottish and United Kingdom Parliaments.  It is subject to negative procedure unless it contains provisions which amend the text of an Act, in which case it is subject to affirmative procedure.

Subsection (3) requires the cross-border public authority concerned to be consulted before a recommendation is made to Her Majesty in Council to make an Order under this section.

This power has been exercised up to September 2001 as follows:

  • The Scotland Act 1998 (Cross-Border Public Authorities)(Adaptation of Functions etc.) Order 1999 (S.I. 1999/1747);

  • The Scotland Act 1998 (Cross-Border Public Authorities)(Forestry Commissioners) Order 12000 (S.I. 2000/746);

  • The Scotland Act 1998 (Cross-Border Public Authorities)(Adaptation of Functions etc.) Order 2000 (S.I. 2000/1102);

  • The Scotland Act 1998 (Cross-Border Public Authorities)(British Wool Marketing Board) Order 2000 (S.I. 2000/1113);

  • The Scotland Act 1998 (Cross-Border Public Authorities) (Adaptation of Functions etc.) (No.2) Order 2000 (S.I. 2000/3251).

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