Head C: Trade and Industry
Section C1: Business Associations
Purpose and Effect
This Section reserves business associations, subject to certain exceptions.
General
This reservation is designed to ensure the reservation of a common United Kingdom system for the regulation of companies and other business organisations in order to preserve a level playing field for business within the United Kingdom.
Parliamentary Consideration
| Stage | Date | Column |
|---|---|---|
| CC | 30-Mar-98 | 982 |
| LC | 23-Jul-98 | 1089 |
Details of Provisions
Reservation
This Section reserves the creation, operation, regulation and dissolution of types of business association.
Business association is defined in the interpretation part as any person (other than an individual) established for the purpose of carrying on any kind of business, whether or not for profit; and “business” is defined as including the provision of benefits to the members of an association. Accordingly, types of business associations will therefore include companies, whether or not registered under the companies legislation, partnerships, building societies, friendly societies, industrial and provident societies, European economic interest groupings (in terms of Article 1 of Council Regulation (EEC) No. 2137/85). This is not an exclusive list: any other type of business association which fell within this definition would be covered by the reservation.
The reserved matters are:
the creation of types of business associations, such as the manner in which limited liability companies are incorporated by registration under the Companies Act 1985 and matters relating to their constitution and membership;
the operation of types of business associations. This includes matters relating to the operation of the internal structure and organs of the type of business association, such as the appointment and powers of officers or boards of directors. It also includes matters such as the liability of members and officers of the association to the association and to its creditors;
the regulation of types of business association. This includes matters such as the authorisation, registration, supervision and investigation of business associations and their relationships and disqualification of persons from involvement in business associations and other civil or criminal sanctions; and
the dissolution of types of business associations. This includes the circumstances or procedures giving rise to the dissolution of a business association.
The reservation does not, of course, prevent the Scottish Ministers from establishing any business association, such as a company, for devolved purposes but any such company would require to comply with the relevant Act of the UK Parliament. What is reserved is the legislative competence to provide how companies can be created, operated and regulated.
The reservation also does not prevent the Scottish Parliament from legislating on Scots private law matters which apply to business associations, such as applying some provision about contract or liability for damages to companies, as long as the law concerned affects devolved and reserved matters consistently, as provided in section 29(4) of the Act. If the Secretary of State considered that any such legislation would have an adverse effect on the operation of the law as it applies to reserved matters, such as companies legislation, he could make an order under section 35(1) preventing the Bill from being submitted for Royal Assent.
Exceptions
What is excepted from the reservation is the creation, operation, regulation and dissolution of:
particular public bodies or public bodies of a particular type established by or under any enactment. This is to ensure that the Scottish Parliament is able by or under any enactment to create and provide for the operation, regulation and dissolution of any public bodies for devolved purposes. These might include a particular statutory body, or types of statutory bodies, such as local authorities or other bodies required to carry on activities within a devolved area such as in the fields of health, education, the environment, legal aid, arts, sport, urban regeneration. This exception therefore permits the Parliament to establish public bodies for devolved purposes only: it would not permit the Parliament to establish bodies for purposes relating to any of the reserved matters; and
charities. This exception is required because business associations are defined in such a way as to catch any association carrying on a business, whether or not for profit. It would therefore catch charities. However, it is intended that the Scottish Parliament should be able to legislate to provide for how charities may be created, operated, regulated and dissolved under Scots law.
Section C2: Insolvency
Purpose and Effect
This Section reserves aspects of insolvency and winding up. It has been amended by S.I. 2001/1456.
General
Most matters relating to the insolvency and winding up of business associations are reserved. However, where there are substantial differences in insolvency law and practice between England and Wales on the one hand and Scotland on the other affecting certain matters (as for example, in the case of matters relating to receiverships or the process of winding up), these matters are excepted from the general reservation.
A limited number of matters relating to the insolvency of all persons (and not only to the insolvency of business associations) are also reserved under this Section. These are the reservations relating to preferred or preferential debts, regulation of insolvency practitioners and co-operation of insolvency courts.
Paragraph 23 of Schedule 8 also provides for certain non-reserved functions of the Registrar of Companies in Scotland and the Assistant Registrar of Friendly Societies for Scotland to be transferred to the Accountant in Bankruptcy who is an office-holder in the Scottish Administration. This means that functions relating to the devolved aspects of insolvency in Scotland are concentrated in a single office-holder appointed by and accountable to the Scottish Ministers. The Registrar of Companies and Assistant Registrar of Friendly Societies will be left with their functions and will be accountable only to the UK Government and Parliament.
Details of Provisions
The reserved matters are:
Winding up of business associations. In general, matters relating to the winding up of business associations are reserved, subject to certain exceptions.
For this purpose “business association” is defined as having the same meaning as in Section C1 (Business associations), subject to the qualification that it does not include any person whose estate may be sequestrated under the Bankruptcy (Scotland) Act 1985, such as a partnership, or any public body established by or under an enactment. Sequestration or winding up of those bodies will not be reserved.
The expression “winding up” is also defined, in relation to business associations, as including the winding up of solvent, as well as insolvent, business associations.
The matters which are reserved, in relation to business associations, are:
the modes of, the grounds for and the general legal effect of winding up, and the persons who may initiate winding up;
liability to contribute to assets on winding up;
powers of courts in relation to proceedings for winding up, other than the power to sist proceedings;
arrangements with creditors; and
procedures giving protection from creditors.
These reservations have the effect that all matters leading to the commencement of the winding up of business associations, and matters relating to the commencement itself of the winding up, are reserved. Thus, the circumstances in which a business association may be wound up voluntarily or by the courts; the grounds on which a petition for winding up may be presented; the persons who may initiate a winding up; the powers of the courts on hearing a petition for winding up; the definition of the commencement of the winding up; and the liability of persons (such as shareholders) to contribute to the assets on a winding up, are all reserved. This ensures that, so far as possible, the law relating to the winding up of business associations will be similar in England and Wales and Scotland.
Furthermore, matters relating to arrangements with creditors entered into by business associations (such as company voluntary arrangements) or procedures which give such associations protection from creditors (such as administration orders) are also reserved.
However, there is excepted from these reservations, in relation to business associations:
the process of winding up. In other words, matters relating to the winding up process itself after it has commenced are not reserved. This includes the person having responsibility for the conduct of a winding up or any part of it, and his conduct of it or that part;
the effect of winding up on diligence. Diligence is the process under Scots law whereby court judgements are enforced against a debtor’s assets. Under Scots law, diligences done within a certain time of the commencement of winding up are equalised so that all creditors are treated equally in the ranking of their claims; and
the avoidance and adjustment of prior transactions on winding up. Thus, it is open to the Scottish Parliament to legislate in respect of transactions concluded before the winding up of a business association, to provide for them to be rendered void, or for some other appropriate remedy. The need for that could arise, for instance, where such a transaction has been concluded for less than full value, or has the effect of giving a preference to a particular creditor, to the prejudice of the general body of creditors. Such matters would be dealt with in the course of a winding up and are excluded from the reservation.
S.I. 2001/1456 also added further exceptions in relation to business associations which are social landlords, namely:
the general legal effect of winding up;
procedures for the initiation of winding up;
powers of courts in relation to proceedings for winding up; and
procedures giving protection from creditors,
but only in so far as they relate to a moratorium on the disposal of property held by a social landlord and the management and disposal of such property. Social landlords are defined as being registered companies or industrial and provident societies which have their registered office in Scotland and which satisfy certain conditions, namely that they do not trade for profit and are established for the purpose of, or have among their objects and powers, the provision, construction, improvement or management of houses for letting or for occupation by members of the body or hostels. This exception was made for the purpose of enabling the Scottish Parliament to legislate about such matters in Schedule 8 to the Housing (Scotland) Act 2001 (asp 10).
Preferred or Preferential Debts. There are also reserved matters relating to preferred or preferential debts for the purpose of the Bankruptcy (Scotland) Act 1985, the Insolvency Act 1986 and any other enactment relating to the sequestration of the estate of any person or to the winding up of business associations, the preference of such debts against other such debts and the extent of their preference over other types of debt.
Certain types of debts, such as taxes which the debtor has collected on behalf of the Crown and sums due to employees, are given a special priority in the bankruptcy or sequestration of individuals and other persons, and in the winding up of business associations, in the sense that they are paid in advance of other debts. What is reserved are matters relating to such debts and the extent of their priority over other debts.
Regulation of insolvency practitioners. Matters relating to the regulation of insolvency practitioners are reserved.
Under Part XIII of the Insolvency Act 1986, which applies to Great Britain, a person who acts, for example, as a liquidator in a winding up or as trustee in the sequestration of a person’s estate or as a trustee under a trust deed for an individual’s creditors is required to be qualified to act as an insolvency practitioner.
These matters are reserved, even although the Scottish Parliament has legislative competence over the appointment and powers of liquidators or a person having responsibility for the conduct of a winding up.
Co-operation of insolvency courts. Matters relating to the co-operation of insolvency courts are reserved.
Floating Charges and Receivers. Matters relating to floating charges and receivers are not reserved, except in relation to preferential debts, regulation of insolvency practitioners and co-operation of insolvency courts.
The circumstances in which receivers may be appointed and the effect of their appointment, are not reserved. However, matters relating to the qualifications which a receiver must have before he may act as such are reserved under the reservation relating to the regulation of insolvency practitioners.
Section C3: Competition
Purpose and Effect
This Section reserves the regulation of anti-competitive practices and agreements; abuse of dominant position, and monopolies and mergers. It does not, however, prevent the Scottish Parliament from legislating to regulate particular practices in the legal profession for the purpose of regulating the profession or the provision of legal services, although the Scottish legal profession will still be subject to general UK competition law.
General
This reservation is designed to ensure the continuation of a common United Kingdom system for the regulation of competition matters. Responsibility for competition policy rests with the Secretary of State for Trade and Industry.
Competition matters are currently regulated by the Competition Act 1998 which introduced a prohibition approach to anti-competitive agreements and abuse of a dominant position. The Director General of Fair Trading is responsible for enforcement of the prohibitions with rights of appeal to a new tribunal within a new Competition Commission. The Competition Commission will also take over the existing functions of the Monopolies and Merger Commission. Existing merger and monopoly legislation under the Fair Trading Act 1973 will remain in force.
Parliamentary Consideration
| Stage | Date | Column |
|---|---|---|
| LC | 23-Jul-98 | 1070 |
| Stage | Date | Column |
| LC | 23-Jul-98 | 1091 |
| L3 | 9-Nov-98 | 607 |
| L3 | 9-Nov-98 | 609 |
Details of Provisions
Reservation
What is reserved is the regulation of anti-competitive practices and agreements; abuse of dominant position; monopolies and mergers. This includes all matters relating to that regulation, including:
the powers to investigate any body or person for the purposes of enforcing competition law;
the administration of competition law through the respective powers of the Secretary of State for Trade and Industry, the Director General of Fair Trading and any other authority exercising competition functions.
Exception
What is excepted from the reservation is the regulation of particular practices in the legal profession for the purpose of regulating that profession or the provision of legal services. What constitutes the legal profession for this purpose is expressly defined.
This is intended to reflect the former position in terms of which the Secretary of State for Scotland had policy responsibility for regulating the legal profession and the provision of legal services in Scotland. This is mainly for the purpose of the protection of the public (or, in other words, consumer protection) but also includes regulating the rules and organisations of the legal profession, where the regulation may affect competition in the provision of legal services. For example, provisions increasing the provision of court services by permitting certain solicitor advocates to have a right of audience in the Court of Session and High Court requires, in order to be effective, to be accompanied by provisions which regulate rules of conduct by advocates which, by being anti-competitive, might thwart that policy objective - see, for example, section 31 of the Law Reform (Miscellaneous Provisions)(Scotland) Act 1990 (“the 1990 Act”) which requires the Faculty of Advocates to submit certain rules for the approval of the Secretary of State for Scotland who, in turn, is required to consult the Director General of Fair Trading. One of the effects of this exception is that the functions exercisable by the Secretary of State for Scotland were, upon devolution, transferred to the Scottish Ministers under section 53. However the Scottish Ministers are still required to consult the DGFT before exercising those functions.
The exception does not, however, enable the Scottish Parliament to legislate generally about the regulation of anti-competitive practices concerning the legal profession in Scotland. This remains a matter for the UK Parliament. Nor does the exception limit the ability of the UK competition authorities to investigate anti-competitive practices concerning the Scottish legal profession and apply to the members of that profession the provisions of general competition legislation.
Interpretation
The expression “legal profession” is defined as meaning not only advocates and solicitors but also qualified conveyancers and executry practitioners who are authorised under the 1990 Act to provide conveyancing and executry services respectively.
Executive Devolution
The following functions have been included in the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 1999 (S.I. 1999/1750).
| The Competition Act 1998 (c.41), Schedule 7, paragraphs 2(4) and 4(4). | The functions of the Secretary of State of being consulted by the Secretary of State on appointments to the panel of chairmen of the Competition Commission and on appointment of the President of the Competition Commission Appeal Tribunals. |
Section C4: Intellectual Property
Purpose and Effect
This Section reserves intellectual property, subject to an exception for plant breeders’ rights.
Parliamentary Consideration
| Stage | Date | Column |
|---|---|---|
| CR | 19-May-98 | 815 |
| LC | 23-Jul-98 | 1097 |
Details of Provisions
Reservation
Intellectual property is reserved.
This reservation covers all matters relating to existing and future intellectual property and ancillary matters, including registration of patent and trademark agents. This includes patents, design right, trade marks and copyright and all other existing and future analogous rights and matters, such as design registration, publication rights, rights in performances and semi-conductor topographies, technical measures for protection of works and rights management information, moral rights, and the law on passing-off, trade secrets and database rights.
Exception
There is excepted from this reservation the subject-matter of Parts I and II of the Plant Varieties Act 1997. These Parts deal with the proprietary rights of plant breeders, the licensing of the use of the plant varieties, and with the establishment of an appeals tribunal and related matters. The Scottish Parliament has legislative competence to legislate about plant breeders’ rights in view of the devolution of agricultural matters generally.
The purpose and scope of the reservation of intellectual property was explained in a Written answer by Henry McLeish on 17 November 1998 (WA Col 466). The same question was also answered by Lord Sewel on the same day (WA Col 152). The text is as follows:
“Intellectual Property
Mr. David Stewart: To ask the Secretary of State for Scotland what is the purpose and scope of the reservation of intellectual property in the Scotland Bill. [60441]
Mr. McLeish: The purpose of the reservation is to ensure the continuation of uniform intellectual property laws across the UK. This will avoid difficulties for owners of intellectual property rights arising from, for example, difference in what can be protected, the extent of the protection and remedies for breach of rights. Indeed, the benefits of harmonisation in this area are becoming increasingly recognised with the ever wider harmonisation of intellectual property rights and related matters across Europe and the rest of the world.
Patents, designs, registered trade marks and copyright are well known examples of intellectual property rights and are reserved. The reservation also embraces all other existing and future analogous rights and matters, such as rights in performances and semi-conductor topographies, moral rights, the law of passing off and trade secrets, and the new database right. Moreover, rights such as those in utility models and matters such as technical measures for the protection of copyright works and information relating to the management of rights, all of which are included in recent draft EC Directives on intellectual property, fall within the scope of the reservation. Furthermore, all matters relating to the Patent Office are reserved, as are current and future ancillary matters.
The existing major legislation on intellectual property, namely the Copyright, Designs and Patents Act 1988, the Patents Act 1977, the Trade Marks Act 1994 and the Registered Designs Act 1949, exemplifies but does not limit the range of provisions relating to 'intellectual property' which falls or may in the future fall within the reservation.
There is just one exception from the reservation, that is UK plant breeders' rights within the meaning of the Plant Varieties Act 1997. Agricultural Ministers, that is the Minister of Agriculture, Fisheries and Food and the Secretaries of State for Scotland, Wales and Northern Ireland, are jointly responsible for UK plant breeders' rights. Devolution in this one area of intellectual property is therefore consistent with the joint responsibility which already exists for plant breeders' rights.”
Executive devolution
The following functions have been included in the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 1999 (S.I. 1999/1750).
The Copyright, Designs and Patents Act 1988 (c.48), sections 145(2) and 150(1). | Section 145(2) - The function of the Secretary of State of being consulted by the Lord Chancellor on appointment of chairman and 2 deputy chairmen of the Copyright Tribunal. |
Section 150(1) - The function of the Secretary of State of being consulted by the Lord Chancellor on procedural rules for the Copyright Tribunal. | |
| The Trade Marks Act 1994 (c.26), section 77(4). | The function of the Secretary of State of being consulted by the Lord Chancellor on appointing a person to hear appeals under the Act and on removing such a person from office. |
Residual Functions
The functions of the Secretary of State for Scotland under the Plant Varieties and Seeds Act 1964 and the Plant Varieties Act 1997 were transferred to the Minister for Agriculture, Fisheries and Food, as appropriate, by the Transfer of Functions (Agriculture and Food) Order 1999 (S.I. 1999/3141).
Section C5: Import and Export Control
Purpose and Effect
This Section reserves the control of import and export of goods and of endangered species of animals or plants to and from any part of the United Kingdom. It has been amended by S.I. 2000/3252.
The control of movement of food, animals, plants and other items into and out of Scotland for the purposes of protecting human, animal or plant health, or to safeguard animal welfare, to protect the environment or to meet EU obligations under the Common Agricultural Policy is not reserved.
General
This reservation is intended to ensure that in all parts of the UK common rules will continue to govern the import and export of goods. It will preserve a level playing field for business within the framework of European law and international trade agreements, which are reserved matters under paragraph 7 of Part I of Schedule 5. It also covers, inter alia, the import and export of works of art and the international trade in endangered species under the Convention on International Trade in Endangered Species (CITES).
Reservation in this Section of control of the import and export of goods is supplemented by reservations for product standards, safety & liability (Section C8), protection of trading and economic interests (Section C15), and control of weapons (Section L3).
The work of Scottish Trade International - a joint bureau of the Scottish Executive and Scottish Enterprise - in promoting exports from Scotland is not, however, reserved by this Section.
Details of Provisions
The reserved matters are:
the subject-matter of the Import, Export and Customs Powers (Defence) Act 1939. This Act provides for controlling the import, export and carriage coastwise of goods and for the enforcement of the law relating to these matters. It empowers the Secretary of State to prohibit or regulate the movement of goods to or from the UK, or specified parts of the country; and to make provision to enforce such regulations including penal sanctions and seizure of goods. The Treasury is given power to impose charges in connection with the regulation of trade in goods; and
the prohibition and regulation of the import and export of endangered species of animals and plants.
Originally enacted in emergency powers legislation in September 1939, the 1939 Act is now part of the body of legislation governing controls over trade. It also includes certain provisions relating to trading with the enemy, also a reserved matter under Defence at paragraph 9(1)(e) of Part I of Schedule 5.
Responsibility for operating import and export controls lies primarily with the Secretary of State for Trade and Industry. The control over imports is comprehensive but most types of goods are released from control by an open general import licence. But, particular controls are applied under the Act on, at present, imports of: certain steel and textile products from certain countries; certain other non-textile products from China; firearms and ammunition; radioactive materials; goods falling within the scope of the chemical weapons convention; and goods from areas subject to comprehensive UN sanctions.
The prohibition and regulation of the import and export of endangered species is also reserved because animals and plants do not otherwise fall within the controls on “goods”. The basis for current law at a British and EC level is the Convention on International Trade in Endangered Species (CITES), although the Regulations which give effect to CITES at the EC and UK levels in some respects go beyond the Convention’s requirements and involve ancillary controls e.g. over advertising or transport for sale. The great majority of species to which CITES applies are exotic, but some are indigenous to the UK, e.g. the golden eagle.
Exceptions
In line with the general devolution of agriculture, fisheries, food and related matters, the prohibition and regulation of movement into and out of Scotland of the following are excepted from the reservation:
food, animals, animal products, plants and plant products but only for the purposes of protecting human, animal or plant health, animal welfare or the environment or observing or implementing obligations under the Common Agriculture Policy; and
animal feeding stuffs, fertilisers and pesticides (including anything treated as if it were a pesticide by virtue of section 16(16) of the Food and Environment Protection Act 1985)(1) but only for the purposes of protecting human, animal or plant health or the environment.
Section C6: Sea Fishing
Purpose and Effect
This Section reserves the regulation of sea fishing outwith the Scottish zone, except in relation to Scottish fishing boats. By so doing, it clarifies the extent to which the Scottish Parliament can legislate about sea fishing outwith Scotland.
Details of Provisions
This Section reserves the regulation of sea fishing outwith the Scottish zone.
The Scottish zone is defined in section 126(1) as meaning the sea within British fishery limits (that is, the limits set by or under section 1 of the Fishery Limits Act 1976) which is adjacent to Scotland. Section 1(1) of the 1976 Act provides that the British fishery limits extend 200 miles from the baselines from which the territorial sea of the United Kingdom is measured. Section 126(2) enables Her Majesty by Order in Council to make provision for determining (among other things) any boundary between waters which are to treated as sea within the British fisher limits which are adjacent to Scotland and those which are not. Such provision has been made in the Scottish Adjacent Waters Boundary Order 1999 (S.I. 1999/1126).
This has the effect of providing that the Scottish Parliament can legislate to regulate sea fishing within the Scottish zone, even although it may be outwith Scotland (including the territorial seas adjacent to Scotland).
Exception
There is an exception from the reservation which would enable the Scottish Parliament to regulate sea fishing by Scottish fishing boats even outwith the Scottish zone.
The interpretation part defines “Scottish fishing boat” as meaning a fishing vessel which is registered in the register maintained under section 8 of the Merchant Shipping Act 1995 and whose entry in that register specifies a port in Scotland as the port to which the vessel is to be treated as belonging.
Parliamentary Consideration
| Stage | Date | Column |
|---|---|---|
| LC | 23-Jul-98 | 1100 |
Executive Devolution
The following functions have been made exercisable by a Minister of the Crown subject to a requirement for agreement of or consultation with the Scottish Ministers by the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 1999 (S.I. 1999/1750).
| The Merchant Shipping Act 1995 (c.21), section 10(2)(f). | The function of the Secretary of State, by regulation, to make provision for and in connection with the registration of a fishing vessel as British ships (section 10(2)(f), provide for regulations to be made with respect to (among other matters) the marking of ships registered or to be registered, including marks for identifying the port to which a fishing vessel is to be treated as belonging). |
Agency Arrangements
The Scotland Act 1998 (Agency Arrangements) Order 1999 (S.I. 1999/1512) specified functions under section 4 of the Sea Fish (Conservation) Act 1967 and the Sea Fish Licensing Order 1992 (functions in relation to licensing of fishing boats) for the purpose of section 93 of the Scotland Act.
Section C7: Consumer Protection
Purpose and Effect
This Section reserves various consumer protection and related matters, subject to certain exceptions.
General
This reservation is designed to ensure the reservation of a common United Kingdom system for the regulation of consumer protection and related matters in order to preserve a level playing field for consumers and business.
The DTI is responsible throughout the UK for consumer protection matters such as the sale and supply of goods and services to consumers, and related matters, which may not be restricted to consumers, such as trade descriptions, misleading advertising price indications etc. So that the interests of consumers across the whole UK market can best be protected, the current UK-wide arrangements will be maintained. The Scottish Office was formerly consulted on a non-statutory basis in connection with relevant work programme proposals and various other matters to do with Scottish consumer bodies, which receive funding from, and in some cases are appointed by, the DTI e.g. Scottish Consumer Council and Citizens Advice Scotland. The Scottish Consumer Council, National Consumer Council and the Scottish Association of Citizens Advice Bureaux have been specified as cross-border public authorities.
The Scottish Parliament has legislative power in this area in respect of food safety, because this is integral to the policy areas of agriculture and food which are not reserved, and in respect of advertising which is specific to tobacco and tobacco products in view of its similar linkage to health.
Parliamentary Consideration
| Stage | Date | Column |
|---|---|---|
| CC | 30-Mar-98 | 982 |
| Stage | Date | Column |
| CR | 19-May-98 | 815 |
| LC | 23-Jul-98 | 1121 |
| L3 | 9-Nov-98 | 609 |
Details of Provisions
Reservation
There are three main groups of reserved matters: the regulation of various matters, the safety of consumer services, and the subject-matter of various enactments.
First Group
The regulation of the following are reserved matters:
the sale and supply of goods and services to consumers. This covers the terms on which goods and services are sold and supplied to consumers. There are currently a number of pieces of legislation falling under this heading including the Sale of Goods Act 1979, the Supply of Goods and Services Act 1982, the Unfair Contract Terms Act 1977 and the Unfair Terms in Consumer Contracts Regulations 1999. The scope of most of this legislation goes beyond the reserved matter of protection of consumers. The reservation does not prevent the Scottish Parliament from legislating about these wider matters;
guarantees in relation to such goods and services. Statutory implied terms in relation to the sale and supply of goods and services to consumers are covered by the reservation at (a) above;
hire purchase, including the subject-matter of Part III of the Hire Purchase Act 1964. This currently includes the provisions of the Supply of Goods (Implied Terms) Act 1973. Part III of the Hire Purchase Act 1964 deals with title to motor vehicles which are disposed of while subject to hire purchase agreements;
trade descriptions, except in relation to food. This deals with all matters related to false trade descriptions and is not limited to the protection of consumers. It currently includes the subject-matter of the Trade Descriptions Act 1968. There is an exception made for trade descriptions for food;
misleading and comparative advertising, except regulation specifically in relation to food, tobacco and tobacco products. This deals with all matters related to misleading advertising and other regulation of advertising, apart from the specific exemptions. This currently includes the subject-matter of the Control of Misleading Advertisements Regulations 1988 and of the Comparative Advertising Directive 1997;
price indications. This deals with all matters related to the regulation of price indications. This currently includes relevant provisions in the Consumer Protection Act 1987 and the EC Directive on Price Indications;
trading stamps. This deals with all matters regulating the issue, use and redemption of trading stamps and similar tokens and the right of holders of such stamps. It currently includes the Trading Stamps Act 1964;
auctions and mock auctions of goods and services. This relates to all matters related to sale of goods and services by auction and the prohibition of mock auctions i.e. sales which purport to be auctions, but in which the right to bid is restricted, goods are sold below the bid price or are given away, and similar trading practices intended to put undue pressure on customers. This currently includes the Auctioneers Act 1845, the Auctions (Bidding Agreements) Act 1969 and the Mock Auctions Act 1961; and
hall-marking and gun barrel proofing. This covers the regulation of hallmarks applied to articles of precious metal. Gun barrel proofing is the process of testing a gun for safety in order to disclose any fault or weakness and is a statutory requirement for all small arms.
Second Group
Matters relating to the safety of, and liability for, services to consumers are reserved. This covers any matters related to the supply of services which reflect similar provisions as those relating to product safety and liability in Section C8.
Third Group
The subject-matter of the following enactments are reserved:
the Hearing Aid Council Act 1968. This provides for the establishment of the Hearing Aid Council and its function of ensuring that hearing aid dispensers maintain adequate standards of competence and conduct;
the Unsolicited Goods and Services Acts 1971 and 1975. This provides for protection of people, whether consumers or others who receive unsolicited goods. The Act also provides measures of protection of people who are charged for unsolicited directory entries;
Parts I to III and XI of the Fair Trading Act 1973. Part I of the Fair Trading Act (FTA) deals with the role and functions of the Director General of Fair Trading (DGFT);
Part II of the FTA provides for the establishment of a Consumer Protection Advisory Committee and deals with its functions and the Orders which may be made following its recommendations;
Part III of the FTA sets out the powers of the DGFT to deal with traders who follow a course of conduct which is unfair and detrimental to the interests of consumers;
Part XI of the FTA contains provisions for regulations to be made setting out requirements which the organisers of pyramid selling and similar trading schemes must observe in relation to participants and prospective participants and creates offences related to some pyramid selling activities. While a participant acts in a trading rather than a consumer role, this issue has formed part of the consumer policy area because participants are seen to need protection of a similar nature to that needed by consumers;
the Consumer Credit Act 1974. This regulates the advertising and provision of credit and hire arrangements to individuals (consumers and unincorporated entities) and provides for the licensing of credit providers and hirers;
the Estate Agents Act 1979. This regulates the activities of estate agents. The 1979 Act does not apply to things done in the course of his profession by a practising solicitor or person employed by him;
the Timeshare Act 1992. This provides for the minimum information which must be given to consumers prior to contract, the minimum contents of contracts and for the cancellation of agreements without penalty within a cooling off period. The Act was amended by the Timeshare Regulations 1997 which implemented the EC Timeshare Directive;
the Package Travel, Package Holiday and Package Tours Regulations 1992. This covers requirements on information given to consumers, in brochures and otherwise, content and form of contracts, provisions which traders must make for the protection of consumers’ pre-payments, other obligations of traders and related offences and civil rights of consumers; and
the Commercial Agents (Council Directive) Regulations 1993. This provides for the rights and duties of principals and their agents in relation to each other, the remuneration and commission to which agents are entitled, the right of an agent to a contract and provisions on the termination of contract. While the regulations do not deal with consumers, the issue has been dealt with as part of the consumer policy agenda because of the imbalance of power which often exists between the agent and the principal.
Exceptions
What is excepted from all of these reservations is the subject-matter of section 16 of the Food Safety Act 1990. This is an enabling Act to regulate the safety of food in Great Britain, covering a broad range of commercial activities relating to food. Section 16 provides for regulations to be made which include powers to secure the fitness of food, hygiene conditions and practices in food premises and provision for imposing requirements or prohibitions on the composition, labelling and advertising of food.
There are also specific exceptions mentioned above in relation to:
the regulation of trade descriptions in relation to food; and
regulation specific to the advertising of food, tobacco and tobacco products.
Section C8: Product Standards, Safety and Liability
Purpose and Effect
This Section reserves technical standards, safety and labelling of products, and product liability, subject to certain exceptions. It has been amended by S.I. 2000/3252.
General
This reservation covers the regulation and control of the standards of products which are put on the market or into service so as to observe and implement the relevant EC law, notably the European Single Market Harmonisation Directives which have as their purpose the smooth functioning of the single market by removing potential barriers to trade. Also reserved under this heading are product safety and liability and product labelling. These matters too are reserved in order to ensure that a single market is maintained within the UK.
Exceptions from these reservations are made for food, agricultural produce, fish products and certain agricultural products in line with the general devolution of food standards, agriculture and fisheries.
Details of Provisions
Reservation
What is reserved are:
technical standards and requirements in relation to products in pursuance of an obligation under Community law. This includes the imposition of specified requirements (both minimum and absolute) and technical standards relating to goods. Examples of relevant EC laws include directives concerned with single market harmonisation and with the suitability of packaging for reuse or recycling;
the national accreditation body and the accreditation of bodies which certify or assess conformity to technical standards in relation to products or environmental management systems(2);
product safety and product liability; and
product labelling.
Exceptions
The following are excepted from the reserved matters:
food (which includes drink) and, in relation to food safety, materials which come into contact with food (e.g. packaging);
agricultural and horticultural produce;
fish and fish products; and
seeds, animal feeding stuffs, fertilisers and pesticides (including anything treated as if it were a pesticide by virtue of section 16(16) of the Food and Environment Protection Act 1985)(3) .
These exceptions are necessary for the devolution of agriculture, fisheries and food.
Agency Arrangements
The Scotland Act 1998 (Agency Arrangements) Order 1999 (S.I. 1999/1512) specified certain functions of a Minister of the Crown in relation to the Producer Responsibility Obligations (Packaging Waste) Regulations 1997 for the purpose of section 93 of the Scotland Act.
Section C9: Weights and Measures
Purpose and Effect
This Section reserves weights and measures.
General
The law on weights and measures is concerned with establishing units and standards of measurement and with the regulation of trade in respect of the weighing and measuring of goods and, in particular circumstances, the quantities or manner in which they may be sold. Article XVII of the Treaty of Union provided for common weights and measures to be used throughout the United Kingdom.
Details of Provisions
Legislative competence concerning units and standards of weight and measurement, and the regulation of trade so far as involving weighing, measuring and quantities is reserved.
Section C10: Telecommunications and Wireless Telegraphy
Purpose and Effect
This Section reserves telecommunications and wireless telegraphy. It also reserves internet services and electronic encryption.
General
Telecommunications includes telephone systems and all forms of data transmission conveyed through the agency of electric, magnetic, electro-magnetic, electro-chemical or electro-mechanical energy. Operation of telecommunication systems is regulated by licensing powers of the Secretary of State and the Director General of Telecommunications under the Telecommunications Act 1984.
Wireless telegraphy is defined in legislation as emitting or receiving (without wires) electromagnetic energy of a frequency not exceeding 3 million megacycles per second. The Secretary of State has the power to make regulations concerning wireless telegraphy and to licence operators. These powers extend to the use of the radio spectrum. There is an overlap with Broadcasting which is regulated under separate legislation which is also reserved.
The reservation extends also to the subject-matter of a number of EC Directives and Regulations dealing with telecommunications and wireless telegraphy which use definitions which have a similar effect to those cited in UK legislation. This includes the regulations concerned with electromagnetic disturbance which is in part concerned with the establishment and regulation of technical standards. Technical standards of goods are also reserved.
Internet services are provided over computer systems linked by national and international telephone system but the services provided go beyond ordinary telecommunications. The reservation extends to all such services provided by electronic means at a distance.
Electronic encryption covers the general use of encryption of communications or data in electronic form for the purposes of commercial confidentiality and authentication.
Parliamentary Consideration
| Stage | Date | Column |
|---|---|---|
| LC | 23-Jul-98 | 1125 |
| LR | 3-Nov-98 | 192 |
| LR | 3-Nov-98 | 194 |
Details of Provisions
The reservation covers all matters relating to telecommunications and wireless telegraphy as described above. In particular this includes the subject-matter of the following legislation:
the Telecommunications Act 1984. This covers the regulatory and licensing regime for telecommunications systems as described above; and
the Wireless Telegraphy Act 1949, the Wireless Telegraphy Act 1967 and the Marine etc. Broadcasting (offences) Act 1967. These cover the regulatory and licensing regime for wireless telegraphy. Part II of the 1949 Act regulates the prevention of interference.
The following are also reserved:
internet services; and
electronic encryption.
Exception
The subject-matter of Part III of the Police Act 1997 which sets out the circumstances in which the police may be authorised to interfere with property in order to carry out surveillance and other types of investigative work is excepted from the reservation. This is consistent with the exception of the subject-matter of Part III of the 1997 Act from the reservation of National Security, Interception of Communications, Official Secrets and Terrorism - see Section B8.
Executive Devolution
The following functions have been included in the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 1999 (S.I. 1999/1750), as amended, with effect from 14 December 2000, by Article 4(3)(a) of S.I. 2000/3253
| The Wireless Telegraphy Act 1949 (c.54), section 5(1) (b). | The function of the Secretary of State of authorising persons to use wireless telegraphy apparatus in order to obtain information as to the contents, sender or addressee of any message (whether sent by means of wireless telegraphy or not) and to disclose information about the same: but only so far as the function is exercisable for the purpose of preventing or detecting crime (within the meaning of the Regulation of Investigatory Powers Act 2000) or of preventing disorder |
S.I. 1999/1750 also transferred non-statutory functions in relation to the management of the radio spectrum, principally in connection with police, fire and local government civil defence activities.
Section C11: Posts
Purpose and Effect
This Section reserves the subject matter of the Postal Services Act 2000 (c.26) but there is excepted financial assistance for the provision of certain services provided from public post offices. This Section was substituted, with effect from 14 December 2000, by S.I. 2000/3252.
General
Previously, this Section reserved “the Post Office, posts (including postage stamps, postal orders and postal packets) and regulation of postal services”. However, the Postal Services Act 2000 abolished the statutory monopoly enjoyed by the Post Office and provided for postal services to be provided by persons holding a licence from the Postal Services Commission.
Parliamentary Consideration
| Stage | Date | Column |
|---|---|---|
| CC | 4-Mar-98 | 1095 |
| LR | 3-Nov-98 | 194 |
Details of Provisions
The reservation extends to the subject matter of the Postal Services Act 2000, subject to the exception mentioned below.
The interpretation part disapplies paragraph 5(1) of Part III of Schedule 5 to the Scotland Act (which provides that references to the subject matter of an enactment are to be construed as at 1 July 1999). It provides that the reference to the subject matter of the Postal Services Act 2000 is to be read as a reference to the subject matter of that Act as at the date when it received the Royal Assent (28 July 2000).
The Postal Services Act 2000 regulates the provision of postal services by means of licences from the Postal Services Commission and creates offences in relation to postal services ( e.g. providing postal services without a licence, interfering with mail etc). It reorganises, and provides for the dissolution of, the Post Office and establish public post offices top provide postal services (and other services) to the public. It also establishes a Consumer Council for Postal Services.
There is excepted from the reservation financial assistance for the provision of services (other than postal services and services relating to money or postal orders) to be provided from public post offices. The expressions “postal services” and “public post offices” have the same meaning as in the Postal Services Act 2000.
Section C12: Research Councils
Purpose and Effect
This Section reserves the Research Councils within the meaning of the Science and Technology Act 1965, including the funding of such Councils. UK Research Councils will continue to provide funds for research in Scotland, on the present basis.
General
Research Councils are established by Royal Charter and are regulated under the 1965 Act. The 1965 Act establishes certain Research Councils for purposes connected with scientific research e.g. the Natural Environment Research Council and the Medical Research Council. Apart from the Research Councils already established by Royal Charter and named in the 1965 Act, a body may be declared a Research Council for the purposes of the 1965 Act by means of an Order in Council. The Research Councils covered by the 1965 Act deal with matters related to research and development in any of the sciences (including the social sciences) and technology. The reservation extends to existing Research Councils or any others that may be established in the field of scientific research within the meaning of the 1965 Act.
The Scottish Parliament is able to legislate for the funding of research, including scientific research, generally and to establish bodies in Scotland to carry out, administer or fund such research. The Scottish Parliament has legislative competence over the Scottish Higher Education Funding Council which grants funds for research to higher education institutions. This reservation simply precludes the Scottish Parliament from establishing Research
Councils within the meaning of the 1965 Act or exercising any direct control over such Councils.
Section 5 of the 1965 Act enables the Secretary of State to fund scientific research. This power is used mainly, but not exclusively, to fund research through Research Councils. It is written in terms of a general power to fund scientific research and so relates to more than is covered by this reservation. Section 5 is reserved only as it relates to the Research Councils. In all other respects powers under section 5, so far as they relate to matters that are not reserved, were transferred to the Scottish Ministers by virtue of section 53 of the Scotland Act. However, since there are circumstances under which a UK Secretary of State or Minister may wish to fund research in Scotland other than through Research Councils, section 56(1)(d) provides that section 5 of the 1965 Act is a shared power.
Details of Provisions
The first reservation is of Research Councils within the meaning of the 1965 Act. The reservation covers the establishment of and appointments to Research Councils, the functions, powers and duties of such bodies, and the provision of expenses and funds for distribution by them.
The subject-matter of section 5 of the Act is reserved so far as it relates to Research Councils. This reservation reserves to United Kingdom Ministers the power to fund scientific research through the Research Councils.
Section C13: Designation of Assisted Areas
Purpose and Effect
This Section reserves the designation of assisted areas. It does not reserve the matter of determining what financial assistance to industry might apply in such areas.
General
Assisted areas are those areas designated as development and intermediate areas under section 1 of the Industrial Development Act 1982. This power to designate assisted areas is exercised by the Secretary of State for Trade and Industry where for economic, social or other reasons of regional policy, additional measures to promote their economic development are considered appropriate. The designation of such areas applies for the purposes of any other Act which refers to development or intermediate areas (e.g. the Derelict Land Act 1982) as well as for the purposes of the 1982 Act.
The Treaty of Rome prohibits state aids that are incompatible with the Common Market. As part of its guidelines on this the European Commission require that particular areas eligible for differing levels of regional state aid should be agreed with the Commission. As a result of the reservation of International and European relations in Part I, paragraph 7 of Schedule 5 negotiations on defining such areas throughout the UK will be a matter for the UK Government, who will, by virtue of this reservation, also be responsible for giving effect to the areas as approved by the Commission.
The 1982 Act also provides for the provision of financial assistance to industry both within assisted areas and more generally. Financial assistance to industry is not reserved, subject to compliance with European Commission guidelines on state aids. Under section 56(1), however, a Minister of the Crown will continue to be able to exercise powers to provide financial assistance to industry under the Industrial Development Act 1982 and other enactments.
Parliamentary Consideration
| Stage | Date | Column |
|---|---|---|
| LC | 23-Jul-98 | 1126 |
| LC | 23-Jul-98 | 1130 |
Details of Provisions
This Section reserves the subject-matter of section 1 of the Industrial Development Act 1982. This provides for the Secretary of State to designate areas within Great Britain as assisted areas including the power to prescribe different categories of areas (such as development and intermediate areas) and to provide for preferential treatment of these categories.
Section C14: Industrial Development Advisory Board
Purpose and Effect
This Section reserves the Industrial Development Advisory Board.
General
The Industrial Development Advisory Board (IDAB) is a statutory body appointed under section 10 of the Industrial Development Act 1982 which advises the Secretary of State for Trade and Industry about the exercise of certain powers to provide financial assistance to industry. There is already a separate body, the Scottish Industrial Development Board (SIDAB) which is established under section 20 of the Scottish Development Agency Act 1975 to advise in this field.
Parliamentary Consideration
| Stage | Date | Column |
|---|---|---|
| CC | Feb-98 | 221 |
Details of Provisions
The Industrial Development Advisory Board is reserved.
Section C15: Protection of Trading and Economic Interests
Purpose and Effect
This Section reserves the protection of trading and economic interests.
General
The purpose of legislation on this subject is to protect individuals and businesses from the laws of other states where they purport to have effect outside the country where the laws are made. Provisions under such legislation may prohibit certain actions in the UK in compliance with objectionable foreign laws. For example, legislation may prevent the enforcement in the UK of foreign judgements or provide remedies in UK courts for persons adversely affected by the application abroad of objectionable foreign laws.
In addition, the protection of the UK’s economic interests from the actions of Governments or persons resident outside the UK is reserved.
Court procedure, judicial remedies and the reciprocal enforcement of foreign judgements generally is not reserved.
Parliamentary Consideration
| Stage | Date | Column |
|---|---|---|
| CC | 10-Feb-98 | 205 |
| L3 | 9-Nov-98 | 609 |
Details of Provisions
This Section reserves the subject-matter of the following enactments:
section 2 of the Emergency Laws (Re‑enactments and Repeals) Act 1964. This section gives the Treasury power to block the transfer of funds, gold or securities where that action is likely to be taken by a person or Government outside the UK to the detriment of the economic position of the UK.
part II of the Industry Act 1975. This deals with powers relating to the transfer of control of important manufacturing undertakings and is intended to cover cases where it is undesirable on wider policy grounds for assets of wider national importance to fall into the hands of non-residents. The Secretary of State for Trade and Industry can prohibit or restrict such change in control of manufacturing operations which appear to be of special importance to the United Kingdom or to any substantial part of the United Kingdom.
the Protection of Trading Interests Act 1980. This Act sets out the main provisions concerning protection of trading or other business interests of persons in the UK from requirements, prohibitions or judgements imposed or made under the laws of other states.
Executive Devolution
The following functions have been included in the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 1999 (S.I. 1999/1750).
| The Industry Act 1975 (c.68), Schedule 3, paragraph 24 | The function of the Secretary of State in making rules in relation to Scottish proceedings of an Industry Act tribunal. |
Section D1: Electricity
Purpose and Effect
This Section reserves the generation, transmission, distribution and supply of electricity and the regulation of the electricity supply industry. Matters relating to the control of pollution are excepted.
General
This Section reserves the generation, transmission, distribution and supply of electricity in Scotland. The subject-matter of the legislation governing privatisation of the electricity supply industry is also reserved. This is in line with a general reservation of energy matters.
Parliamentary Consideration
| Stage | Date | Column |
|---|---|---|
| CC | 30-Mar-98 | 1004 |
Details of Provisions
Reservation
The reservation covers the generation, transmission, distribution and supply of electricity. This would include the regulation of the electricity supply industry under Part I of the Electricity Act 1989. That Part gives the Secretary of State and the Director General of Electricity Supply extensive powers to regulate the industry through a system of licensing of generation, transmission and supply, sets out the duties of public electricity suppliers, and imposes further controls for the protection of the public interest and the protection of consumers.
The reservation also covers the subject-matter of Part II of the 1989 Act, which deals with the re-organisation of the industry by privatisation.
Exception
The subject-matter of Part I of the Environmental Protection Act 1990, which makes provision for the control of pollution is excepted from the reservation.
Executive devolution
The following functions have been included in the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 1999 (S.I. 1999/1750).
(a) section 2(2)(b) and (3)(a); | Section 2(2)(b) - The function of the Secretary of State to determine that the area for which a consumers’ committee is appointed shall consist of the authorised areas of two or more public electricity suppliers. Section 2(3)(a) - The function of the Secretary of State of being consulted by the Director before appointment of the chairman of a consumers’ committee. |
(b) section 3; | The duties of the Secretary of State to exercise the functions assigned or transferred to him by Part I of the Act in the manner which he considers is best calculated to achieve certain ends, so far as relating to functions exercisable by the Scottish Ministers under this Order. |
(c) sections 32(1) and (9), 33, 34, 35, 36, 37, 39(1)(a) and 58: | Section 32(1) - The function of the Secretary of State after consultation with the Director and the suppliers concerned by order to require each public electricity supplier to make and produce evidence of arrangements for electricity to be available to the supplier from non-fossil fuel sources. Section 32(9) - The function of the Secretary of State by regulations to provide that subsections (5) to (8) shall have effect in relation to certain types of generating station with modifications, and to provide that electricity generated outside the United Kingdom shall be treated as generated by a non-fossil fuel generating station in such circumstances and to such extent as prescribed. Section 33 (1), (6) and (7) - The function of the Secretary of State by regulations to provide for imposition of a fossil fuel levy on public electricity suppliers and others, for collection of payments in respect of it and prescribe a person to collect them, and to provide for the making to such suppliers of payments out of the payments so collected and to make ancillary provisions; requirements as to the manner of exercise of the functions. Section 34 - The function of the Secretary of State by order to vary the minimum capacity of generating stations to which the section applies; functions of the Secretary of State to give directions to persons operating generating stations as regards fuel stocks etc., and ancillary powers. Section 35 - The functions of the Secretary of State to give a direction requiring a person authorised by licence to transmit electricity to give information or advice for purposes connected with section 34; and to give a direction requiring him to operate his system in a specified manner or to achieve specified objectives; requirement to lay directions before Parliament. |
Section 36 - The function of the Secretary of State to consent to construction, extension or operation of a generating station; functions of the Secretary of State by order to vary the minimum capacity above which the requirement for consent applies and to grant exemptions to the requirement for consent. Section 37 - The function of the Secretary of State to consent to an electric line being installed or kept installed above ground; function to prescribe by regulations cases where the requirement for consent does not apply. Section 39(1)(a) - The functions of the Secretary of State to consent to regulations made by the Director prescribing standards of performance in electricity supply services to tariff customers in individual cases. Section 58 - The function of the Secretary of State to give to persons licensed to transmit electricity directions to secure that neither that person nor any other person obtains unfair commercial advantage from possession of information; requirement upon the Secretary of State to publish a copy of directions; function of the Secretary of State to enforce compliance with such directions by civil proceedings. | |
(d) section 60; | The function for regulations made by the Secretary of State to provide for certain matters. |
(e) section 61; | The powers to take certain proceedings concurrently, so far as enabling the Secretary of State to exercise his functions in the proceedings concurrently. |
(f) Schedule 3, Part I; | Schedule 3, paragraph 1 - The function of the Secretary of State to authorise a licence holder to purchase compulsorily land required for a purpose connected with his activities. Schedule 3, paragraph 2(3) - The function of the Secretary of State by order to amend the period specified in paragraph 2(2)(b) (which relates to the Director’s duties in cases where his consent to a compulsory purchase order is required). Schedule 3, paragraph 3(2) - The function of the Secretary of State to authorise a licence holder to purchase land compulsorily for the purpose of exchange of land. |
(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; | The function of the Secretary of State, under paragraph 11 of the First Schedule, Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 as applied by Schedule 3 paragraphs 15, 16, 17 and 20, to certify certain matters, in which case special parliamentary procedure will not apply, and procedural requirements of that paragraph as so applied. |
(h) Schedule 4, paragraphs 6, 8, 9 and 10(4)(b); | Schedule 4, para 6(3), (4) & (5) - The function of the Secretary of State to grant necessary wayleaves, and ancillary powers and duties. Schedule 4, para 8(4) & (5) - The functions of the Secretary of State in connection with temporary continuation of wayleaves. Schedule 4, paragraph 9(5) and (6) - The function of the Secretary of State to make orders relating to felling and lopping of trees etc. Schedule 4, paragraph 10(4)(b) - The function of the Secretary of State to consent to works for the purpose of ascertaining the nature of the subsoil. |
(i) Schedule 5; | All functions of the Secretary of State under Schedule 5 (water rights for hydro-electric generating stations in Scotland), including power by order to authorise persons to abstract and divert and use water, and ancillary powers and duties. |
(j) Schedule 8; and | All functions of the Secretary of State under Schedule 8 (consents under sections 36 and 37), including functions by regulations to make provision for determining fees and to provide for various procedural matters, and ancillary powers and duties. |
(k) Schedule 9, paragraphs 3 and 5. | Schedule 9, paragraph 3(2) and (3) - All functions of the Secretary of State in considering proposals under sections 36 or 37 to have regard to certain amenity considerations and to avoid, so far as possible, causing injuries to fisheries. Schedule 9, paragraph 5 - The function and duties of the Secretary of State relating to the Fisheries Committee, Scotland. |
The following functions have been made concurrently exercisable by a Minister of the Crown and the Scottish Ministers by the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 1999 (S.I. 1999/1750).
| The European Communities Act 1972 (c.68), section 2(2) and the European Communities (Designation) Order 1988 (S.I. 1988/785). | The function of the Minister of Agriculture, Fisheries and Food, the Treasury and any one or more Secretaries of State to make provision for the purposes specified in section 2(2) in relation to measures relating to the requirement for an assessment of the impact on the environment of projects likely to have significant effects on the environment, so far as relating to the subject matter of Part III (Electricity Applications) of the Environmental Assessment (Scotland) Regulations 1988 (S.I. 1988/1221, amended by S.I. 1990/526, 1994/2012). |
| The Electricity Act 1989 (c.29), section 98(1) and (2). | The function of the Secretary of State to serve a notice on a licence holder or exempted person requiring him to supply statistical information. |
The following functions have been made exercisable by a Minister of the Crown subject to a requirement for agreement of or consultation with the Scottish Ministers by the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 1999 (S.I. 1999/1750).
| The Electricity Act 1989 (c.29), sections 5(1) and 6(1) and (2) | Section 5(1) - The functions of the Secretary of State after consultation with the Director by order to grant exemption from paragraph (a) or (c) of section 4(1) (which prohibits unlicensed generation or supply). Section 6(1) - The functions of the Secretary of State after consultation with the Director to grant a licence authorising generation, transmission or supply of electricity, or to consent to the granting of such a licence by the Director, or to give general authority to the Director to grant such a licence. Section 6(2) - The functions of the Secretary of State after consultation with the Director to grant a licence authorising any person to supply electricity to any premises specified or of a description specified in the licence, or to extend such a licence, or to consent to the Director doing these things, or to give general authority to the Director to do these things. |
The following functions are included in the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) (No. 2) Order 2000(S.I. 2000/3253).
| Electricity Act 1989 (c. 29) sections 32 and 32A(4) | Section 32 - The function of the Secretary of State, by order, to impose upon an electricity supplier a renewables obligation. Section 32A - The function of the Secretary of State to include various matters in such an order. |
Section D2: Oil and Gas
Purpose and Effect
This Section reserves oil and gas and the regulation of the UK oil and gas industry, subject to certain exceptions.
General
Legislative competence to make provision regarding the oil and gas industry is reserved. This covers all the UK Government’s current powers and functions in relation to the oil and gas industry, subject to express exceptions. The manufacture of gas and the conveyance and shipping and supply of gas other than through pipes are not reserved. Land based operations in support of off-shore exploration for, and exploitation of, oil and natural gas are also not reserved. This overall reservation is in line with a general reservation of energy matters.
Parliamentary Consideration
| Stage | Date | Column |
|---|---|---|
| CC | 30-Mar-98 | 1004 |
| CC | 30-Mar-98 | 1005 |
| LC | 23-Jul-98 | 1133 |
| LR | 3-Nov-98 | 194 |
| LR | 3-Nov-98 | 195 |
Details of Provisions
Reservation
Competence to legislate about oil and gas is reserved. The specific list of subjects included in the reservation indicates its scope in more detail. The specific subjects listed are:
the ownership of, exploration for and exploitation of deposits of oil and natural gas. This covers the subject-matter of the Petroleum (Production) Act 1934 and related legislation, which vests ownership of oil and gas deposits in the Crown and provides for a system of licensing persons to explore for and exploit such deposits;
the subject-matter of section 1 of the Mineral Exploration and Investment Grants Act 1972 (contributions in connection with mineral exploration) so far as relating to exploration for oil and gas. This covers the giving of financial assistance relating to exploration for oil and gas. Financial assistance is generally a devolved matter except for financial assistance specifically in relation to a reserved commercial activity such as oil and gas exploration. Financial assistance in respect of other types of mineral exploration is not reserved. This power is also a “shared power” under section 56 which means that a UK Minister can also exercise this power in or as regards Scotland;
offshore installations and pipelines. This covers generally the regulation of such installations and pipelines, including the construction or laying and dismantling of them;
the subject-matter of the Pipe-lines Act 1962 (including section 5 (deemed planning permission)) so far as relating to pipelines within the meaning of section 65 of that Act. The 1962 Act provides for authorisation of the laying of pipelines on land. In practice it applies mainly to oil and gas pipelines, since section 65 excludes many types of pipe, including water and air pipes and sewers. Section 5 of the Pipelines Act has been mentioned for the avoidance of doubt since deemed planning permission for other types of development is granted under planning legislation and is therefore not reserved;
the application of Scots law and the jurisdiction of the Scottish courts in relation to offshore activities. Part IV of the Oil and Gas (Enterprise) Act 1982 provides for the application in relation to oil and gas installations on the Continental Shelf of the civil and criminal laws of the different parts of the United Kingdom, and the jurisdiction of their courts;
pollution relating to oil and gas exploration and exploitation, but only outside controlled waters (within the meaning of the Control of Pollution Act 1974). This is the subject-matter of the Prevention of Oil Pollution Act 1971. Pollution from ships, as opposed to installation and pipelines, is now governed by the Merchant Shipping Act 1995, which is also reserved. Pollution in controlled waters - relevant territorial, coastal, inland and ground waters - is not reserved. The marine environment apart from this reservation is generally not reserved;
the subject-matter of Part II of the Food and Environment Protection Act 1985 so far as relating to oil and gas exploration and exploitation, but only in relation to activities outside such controlled waters. This is necessary to ensure that the reservation of matters relating to the oil and gas industry covers the regulation under the 1985 Act of activities in the sea, such as the deposit of substances or articles in the sea and incineration and flaring of gas, so far as those activities relate to oil and gas exploration and exploitation. It ensures that the Ministerial powers under the 1985 Act to exempt from the licensing regime under the Food and Environment Protection Act 1985 “operational discharges” from oil and gas installations and, where compatible with international obligations and where safe to do so, to license the deposit in the sea of oil-related articles such as redundant oil installations are reserved to the UK Government. “Marine dumping” not relating to oil and gas exploration and exploitation is not a reserved matter and to that extent the Scottish Ministers exercise the licensing powers under the Food and Environment Protection Act 1985 within Scottish waters and for operations commencing in Scotland;
restrictions on navigation, fishing and other activities in connection with offshore activities. Sections 3 to 7 of the Offshore Petroleum Development (Scotland) Act 1975 provide for the designation by the Secretary of State of sea areas within territorial waters where certain activities are restricted. Part III of the Petroleum Act 1987 provides for safety zones where navigation is restricted in the immediate vicinity of installations in territorial waters or the Continental Shelf;
liquefaction of natural gas. This covers the subject-matter of section 9 of the Energy Act 1976, which regulates the liquefaction of natural gas; and
the conveyance, shipping and supply of gas through pipes. This covers the subject-matter of the Gas Acts 1986 and 1995, which regulate the industry of conveying, shipping and supplying gas through pipes.
Exceptions from Reservation
The following are excepted from the reservation:
the subject-matter of sections 10 to 12 of the Industry Act 1972 (credits and grants for construction of ships and offshore installations). This makes it clear that the giving of financial assistance, in the form of credits and grants, for the construction of ships and offshore installations is not a reserved matter. Paragraph 4 of Part III of Schedule 5 provides that the giving of financial assistance to industry for the purposes of promoting or sustaining economic development or employment is not a reserved matter. This means that the Parliament can make provision of a general nature for assistance to industry including those which operate in reserved areas, but it does not have competence to legislate for such assistance specifically in relation to a reserved commercial activity such as oil and gas exploration. Section 56 also provides for certain powers, including this one, relating to the giving of financial assistance to industry which are not reserved to be “shared powers”, so that a UK Minister can continue to exercise those powers in or as regards Scotland. For example, the power to give financial assistance in relation to mineral exploration (other than for oil and gas which is a reserved matter as explained above) is a shared power under section 56(1)(e);
the subject-matter of the Offshore Petroleum Development (Scotland) Act 1975, other than sections 3 to 7. This ensures that the provision of financial assistance under the 1975 Act for onshore activities in support of offshore activities, for instance construction of installations, are not reserved. This is in line with the fact that assistance to industry generally is not reserved;
the subject-matter of Part I of the Environmental Protection Act 1990, which makes provision for the control of pollution.
the manufacture of gas. The production of combustible gas other than natural gas is thus not reserved; and
the conveyance, shipping and supply of gas other than through pipes.
Executive devolution
The following functions have been included in the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 1999 (S.I. 1999/1750).
The Pipelines 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). | Sections 1, 4 & 5 - All functions of the Secretary of State as “the Minister” under the sections (control of construction of pipe-lines), so far as relating to pipe-lines beginning and ending in Scotland. Sections 9, 9A & 10 - All functions of the Secretary of State as “the Minister” under the sections (avoidance of construction of superfluous pipe-lines), so far as relating to pipe-lines beginning and ending in Scotland. Section 11 - All functions of the Secretary of State as “the Minister” under the section (compulsory acquisition of land for construction of pipe-lines), so far as relating to pipe-lines beginning and ending in Scotland. Sections 12 & 13 - All functions of the Secretary of State as “the Minister” under the sections (compulsory acquisition of rights over land for construction of pipe-lines), so far as relating to pipe-lines beginning and ending in Scotland. Section 15 - All functions of the Secretary of State as “the Minister” under the section (power to place pipe-lines in streets), so far as relating to pipe-lines beginning and ending in Scotland. Section 26A - All functions of the Secretary of State under the section (availability of funds) so far as relating to pipe-lines beginning and ending in Scotland. Sections 35, 36 & 38 - All functions of the Secretary of State as “the Minister” to receive notices under the sections (information), so far as relating to pipe-lines beginning and ending in Scotland. Section 39(2) - The function of the Secretary of State to determine certain disputes, so far as relating to pipe-lines beginning and ending in Scotland. Section 43 - All functions of the Secretary of State as “the Minister” under the section (preservation of amenity), so far as relating to pipe-lines beginning and ending in Scotland. Section 44 - The duty of the Secretary of State as “the Minister” to have constant regard to the need of protecting certain water against pollution, so far as relating to pipe-lines beginning and ending in Scotland. Schedule 1 - All functions of the Secretary of State as “the Minister” under the Schedule (applications for grant of pipe-line construction authorisation), so far as relating to pipe-lines beginning and ending in Scotland. Schedule 2 - All functions of the Secretary of State as “the Minister” under the Schedule (applications for grant of compulsory purchase orders and compulsory rights orders), so far as relating to pipe-lines beginning and ending in Scotland. |
The following functions have been made exercisable by a Minister of the Crown subject to a requirement for agreement of or consultation with the Scottish Ministers by the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 1999 (S.I. 1999/1750).
| The Offshore Petroleum Development (Scotland) Act 1975 (c.8), section 3. | The function of the Secretary of State by order to declare a part of the sea surrounding Scotland which is within United Kingdom waters to be designated area. |
The Food and Environment Protection Act 1985 (c.48), sections 5, 6, 7 and 10(1) and Schedule 3. | Section 5 - The functions of the Secretary of State as licensing authority in relation to deposits of substances or articles in the sea or under the sea bed, the scuttling of vessels, loading with a view to such deposit and towing or propelling with a view to scuttling. Section 6 - The functions of the Secretary of State as licensing authority in relation to incineration of substances or articles at sea or loading for that purpose. Section 7 - The function of the Ministers of making orders to exempt operations from the requirement to be licensed. Section 10(1) - The function of carrying out operations to protect the marine environment. Schedule 3 - The functions of the Secretary of State as licensing authority of dealing with representations concerning the refusal to grant, the variation or revocation of, or the provisions contained in, a licence. |
The Petroleum Act 1998 (c.17), sections 32(1), 33(1), 34(7), 35(1), 37(1) and 39(1). | Section 32(1) - The function of the Secretary of State of approving an abandonment programme. Section 33(1) - The function of the Secretary of State of preparing his own abandonment programme. Section 34(7) - The functions of the Secretary of State of determining whether a change to an abandonment programme shall be made and of giving notice of his determination. Section 35(1) - The function of the Secretary of State of withdrawing approval for an abandonment programme. Section 37(1) - The function of the Secretary of State of requiring remedial action to be taken where an abandonment programme has not been carried out or where a condition has not been complied with. Section 39(1) - The function of the Secretary of State of making regulations relating to the abandonment of offshore installations and submarine pipelines. |
The following functions have been included in the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) (No. 2) Order 2000 (S.I. 2000/3253).
| The Gas Act 1986 (c.44), section 9(3)(a) and Schedule 3, Parts I and III | The functions of the Secretary of State in relation to authorising the compulsory purchase of land by a public gas supplier so far as relating to pie-lines beginning and ending in Scotland. |
| The Public Gas Transporter Pipe-line Works (Environmental Impact Assessment) Regulations 1999 (S.I. 1999/1672) | The functions of the Secretary of State in connection with the making of an environmental determination in relation to pipe-line works proposed to be carried out by a public gas transporter so far as relating to pie-lines beginning and ending in Scotland. |
| The Pipe-line Works (Environmental Impact Assessment) Regulations 2000 (S.I. 2000/1928) | The functions of the Secretary of State to consider environmental impact before granting a pipe-line construction authorisation so far as relating to pipe-lines beginning and ending in Scotland. |
Section D3: Coal
Purpose and Effect
This Section reserves coal, including the regulation of the UK coal industry. The control of pollution and certain other matters are excepted.
General
General legislative and executive competence is reserved in relation to the UK coal industry, including the ownership of coal reserves, regulation of deep and opencast mining, subsidence, the provision of concessionary coal, and the residual responsibilities of British Coal. This overall reservation is in line with a general reservation of energy matters.
Parliamentary Consideration
| Stage | Date | Column |
|---|---|---|
| CC | 30-Mar-98 | 1006 |
Details of Provisions
Reservation
The reservation covers all legislation relating to coal, including in particular ownership and exploitation, deep and opencast mining and subsidence. Policy towards the UK coal industry continues to be dealt with on a UK basis by DTI Ministers, in consultation with the Scottish Ministers when appropriate. Operational matters in relation to coal reserves and the issue of mining licences are for the Coal Authority, which is a GB body and which receives grant in aid from DTI.
Exceptions from Reservation
The exceptions to the reservation relate to the subject-matter of:
Part I of the Environmental Protection Act 1990, which makes provision for the control of pollution;
sections 53 and 54 of the Coal Industry Act 1994 which cover environmental duties in relation to planning approval and obligations to restore land affected by coal-mining operations.
Section D4: Nuclear Energy
Purpose and Effect
This Section reserves nuclear energy and nuclear installations, including the regulation of the nuclear energy industry. This does not include certain environmental responsibilities as they affect nuclear installations.
General
This Section reserves all matters relating to the production and use of nuclear energy and related research. Certain administrative functions in relation to civil nuclear site licences and permits, certain functions regarding liability for nuclear incidents and cover for compensation, and inspection of nuclear sites, which were responsibilities of the Secretary of State for Scotland, are the subject of executive devolution to the Scottish Ministers. Planning for emergencies at civil nuclear sites is also the responsibility of the Scottish Ministers, but is not governed by legislation. The reservation is in line with a general reservation of energy matters.
For the avoidance of doubt the current duties of the Scottish Environment Protection Agency in relation to the keeping and use of radioactive material other than at licensed nuclear sites, the disposal of radioactive waste and the regulation of non-nuclear activities at nuclear installations, are not reserved.
Parliamentary Consideration
| Stage | Date | Column |
|---|---|---|
| CR | 19-May-98 | 815 |
| LC | 23-Jul-98 | 1138 |
Details of Provisions
Reservation
The reservation is of all matters relating to nuclear energy and nuclear installations, including nuclear safety, nuclear security and safeguards, and liability for nuclear occurrences.
The areas covered by the reservation include the development, production and use of nuclear energy, nuclear site licensing, nuclear safety, nuclear security, liability for nuclear occurrences and insurances in respect of such liability, nuclear safeguards required by international treaties, and the United Kingdom Atomic Energy Authority.
Exceptions
The subject-matter of:
Part I of the Environmental Protection Act 1990;
the Radioactive Substances Act 1993.
These enactments deal with the duties of the Scottish Environment Protection Agency and (formerly) the Secretary of State for Scotland in relation to the keeping and use of radioactive material other than at licensed nuclear sites, the disposal of radioactive waste and the regulation of non-nuclear activities at nuclear installations.
Executive devolution
The following functions have been included in the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 1999 (S.I. 1999/1750).
(a) section 2; | The function of the Secretary of State as “the Minister” to grant permits, and ancillary powers. |
(b) sections 6 and 17(1) and (4); | The function of the Secretary of State as “the Minister” to maintain a list of licensed sites. The functions of the Secretary of State as “the Minister” to certify certain matters relating to jurisdiction, shared liability and foreign judgements. |
(c) section 19(1), (3) and (4); | The functions of the Secretary of State as “the Minister” in relation to special cover for the licensee’s liability. |
(d) section 20; and | The functions of the Secretary of State as “the Minister” in relation to furnishing of information relating to the licensee’s cover. |
(e) section 23. | The function of the Secretary of State as “the Minister” to order registration of particulars of a person. |
The following functions have been made exercisable by a Minister of the Crown subject to a requirement for agreement of or consultation with the Scottish Ministers by the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 1999 (S.I. 1999/1750).
The Nuclear Installations Act 1965 (c.57), sections 1(1)(b) and (2), 16(1) and (1A), 18(1B), 21(1A) and (3) and 22(1) and (2), and in section 26(1) the definitions of “excepted matter” and “nuclear matter”. | Section 1(1)(b) - The function of the Secretary of State to prescribe a class or description of installation. Section 16(1A) - The function of the Secretary of State with the approval of the Treasury by order to increase or further increase either or both of the amounts specified in section 16(1) (limits on the aggregate amount of compensation). |
The Nuclear Installations Act 1965 (c.57), sections 1(1)(b) and (2), 16(1) and (1A), 18(1B), 21(1A) and (3) and 22(1) and (2), and in section 26(1) the definitions of “excepted matter” and “nuclear matter” (contd.). | Section 18(1B) - The function of the Secretary of State with the approval of the Treasury by order to increase or further increase the sum expressed in special drawing rights in section 18(1A). Section 21(1A) - The function of the Secretary of State with the approval of the Treasury by order to increase or further increase the sum expressed in special drawing rights in section 21(1). Section 22(1) - The function of the Secretary of State to prescribe a class or description of occurrence. Section 22(2) - The function of the Secretary of State to prescribe persons to whom an occurrence is to be reported. Section 26(1) - The function of the Secretary of State to prescribe exemptions, and to prescribe other fissile material. |
Residual Functions
The functions of the Secretary of State for Scotland under the Nuclear Installations Act 1965 were transferred to the Secretary of State by the Transfer of Functions (Nuclear Installations) Order 1999 (S.I. 1999/2786).
Section D5: Energy Conservation
Purpose and Effect
This Section reserves certain matters relating to the use of energy. This does not, however, preclude the Scottish Parliament from legislating about and/or promoting energy efficiency.
General
The Department of the Environment, Transport and the Regions promotes energy efficiency throughout the United Kingdom, and the Scottish Energy Efficiency Office acts on its behalf in Scotland. The Energy Act 1976 allows measures for control and conservation of energy resources. The reservation of this Act is not meant to prevent the Scottish Parliament from legislating for, or the Scottish Ministers promoting, the efficient use of energy by advice, encouragement, grants and loans. The overall reservation of energy conservation is in line with a general reservation of energy matters.
Details of Provisions
Reservation
The reservation covers the subject-matter of the Energy Act 1976, other than section 9.
The 1976 Act enables the Secretary of State to make orders regulating or prohibiting the use of various fuels, or electricity, where that appears to him desirable for the purpose of conserving energy. It also enables him to make orders regulating or prohibiting the production, supply or acquisition of these things while an Order in Council is in force. When an Order in Council is in force the Secretary of State may also give directions to producers, suppliers and users. An Order in Council may be made where the fuller powers it allows are needed to implement an international obligation or to deal with an actual or threatened emergency. The Act also allows for exemptions from certain legal requirements while an Order in Council is in force. The 1976 Act also enables the Secretary of State to give directions for conserving fuel stocks, and provides for other measures for controlling energy sources and promoting economy.
Section 9 of the 1976 Act covers the use and liquefaction of offshore natural gas and is reserved under the reservation of Oil and Gas at Section D2.
Exception
The exception allows the Scottish Parliament to legislate regarding encouragement of energy efficiency other than by prohibition or regulation. This covers encouragement by advice, publicity, grants and loans, or other positive incentives. The Scottish Ministers are, accordingly, responsible for such encouragement.
Section E1: Road Transport
Purpose and Effect
This Section reserves certain matters relating to road traffic and transport.
Parliamentary Consideration
| Stage | Date | Column |
|---|---|---|
| CC | 31-Mar-98 | 1052 |
| CC | 31-Mar-98 | 1067 |
| LC | 23-Jul-98 | 1139 |
| LR | 3-Nov-98 | 195 |
| LR | 3-Nov-98 | 196 |
Details of Provisions
In general, matters relating to road traffic and road transport are reserved where there is a need to ensure consistency of treatment and approach between Scotland and the rest of the United Kingdom.
The Scottish Parliament has competence to legislate about the promotion of road safety and about payments for hospital treatment of road traffic accident casualties. Bus fuel duty rebate is also not a reserved matter, in line with other aspects of bus policy.
Reservation
This Section provides that the subject-matter of the following Acts are reserved matters:
the Motor Vehicles (International Circulation) Act 1952. This Act deals with the issue of international driving permits and the recognition of foreign permits;
the Public Passenger Vehicles Act 1981 and the Transport Act 1985, so far as relating to the system of public service vehicle operator licensing. The licensing system is administered by the Traffic Commissioner for the Scottish Traffic Area constituted under the 1981 Act;
sections 17 and 25 and Parts V and VI of the Road Traffic Regulation Act 1984. These deal respectively with:
what traffic can use special roads (which are defined in section 151 of the Roads (Scotland) Act 1984 and can include motorways);
the design, layout and operation of pedestrian crossings;
the regulation of traffic signs; and
speed limits.
the Road Traffic Act 1988 and the Road Traffic Offenders Act 1988. The Road Traffic Offenders Act 1988 deals with the prosecution and punishment of offenders for a range of road traffic offences. The Road Traffic Act 1988 covers a range of matters:
road safety provisions (Part I), such as the main criminal offences relating to road safety. However, as indicated below, the Scottish Parliament has legislative competence in relation to the promotion of road safety;
construction and use of vehicles and equipment (Part II);
licensing of drivers of vehicles, including drivers of large goods vehicles and passenger carrying vehicles (Parts III and IV);
driving instruction (Part V). As the provision in the 1988 Act is about paid instruction in the driving of a motor car on a road, this reservation is supplemented by a general reservation for the regulation of the instruction of drivers of other types of motor vehicles;
third party liabilities (Part VI) - the compulsory insurance of motor vehicles.
the Vehicle Excise and Registration Act 1994. This Act deals with the licensing and registration of vehicles;
the Road Traffic (New Drivers) Act 1995. This Act deals with the revocation of driving licences during the licence-holder’s probationary period; and
the Goods Vehicle (Licensing of Operators) Act 1995. This Act provides for the system of licensing of operators of goods vehicles. The licensing system is administered by the Traffic Commissioner for the Scottish Traffic Area constituted under the Public Passenger Vehicles Act 1981.
Various other matters are also reserved:
regulation of proper hours or periods of work by persons engaged in the carriage of passengers or goods by road;
the conditions under which international road transport services for passengers or goods may be undertaken; and
regulation of the instruction of drivers of motor vehicles. As indicated above this provision supplements the reservation of the subject-matter of Part V of the Road Traffic Act 1988 which deals with instruction of motor car drivers to ensure that the reservation covers the paid instruction of drivers of all types of motor vehicles.
Exceptions
The subject-matter of:
sections 39 and 40 of the Road Traffic Act 1988 (road safety information and training). This means that the Scottish Parliament is able to legislate about matters concerned with the promotion of road safety by local authorities or other bodies and to subsidise bodies other than local authorities to give road safety advice and training. Both the Scottish Ministers and UK Government Ministers will have functions exercisable in or as regards Scotland in relation to the promotion of road safety. This is because section 52(1)(h) of the Act gives them concurrent powers; and
sections 157 to 159 of the Road Traffic Act 1988 (payment for treatment of traffic casualties). The Scottish Parliament is able to legislate about payments for hospital treatment of road traffic accident casualties. This is consistent with the devolution of other health matters. The National Health Service in Scotland, through Health Boards and NHS Trusts, can recover the costs incurred in treating road traffic casualties from insurance companies.
Executive Devolution
The following functions have been included in the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 1999 (S.I. 1999/1750).
(a) sections 14(1), (2), (3) and (5), 15(2), (3), (5), (6) and (7); and 16(2) and (2A); | Section 14(1) - The function of the Secretary of State as traffic authority by order to restrict or prohibit temporarily the use of a road, or any part of it, to such extent and subject to such conditions or exceptions as he may consider necessary. Section 14(2) - The function of the Secretary of State as traffic authority by notice to restrict or prohibit temporarily the use of a road where it appears to him that the restriction or prohibition should come into force without delay. Section 14(3) - The function of the Secretary of State as traffic authority, when considering the making of an order under section 14(1) or the issue of a notice under section 14(2), to have regard to the existence of alternative routes suitable for the traffic which will be affected by the order or notice. Section 14(5) - The function of the Secretary of State as traffic authority to make provision in any order made or issued by him any such provision as is mentioned in subsection (4) as respects any alternative road for which he is the traffic authority or to consent to provisions as respects any alternative road for which he is the traffic authority in an order made by a different traffic authority. Section 15(2) - The function of the Secretary of State as traffic authority, if he is satisfied, and it is stated in the order that he is satisfied, that the execution of the works in question will take longer than eighteen months, to disapply the time-limit of eighteen months; and in any such case to revoke the order as soon as the works are completed. Section 15(3) - The function of the Secretary of State, where an order subject to the time-limit of eighteen months has not ceased to be in force, from time to time to direct that the order shall continue in force for a further period not exceeding 6 months from the date on which it would otherwise cease to be in force. Section 15(5) - The function of the Secretary of State, at the request of an authority that has made an order subject to the time-limit of six months in subsection (1), from time to time to direct that the order shall continue in force for a further period from the date on which it would otherwise cease to be in force. Section 15(6) - The function of the Secretary of State, where he refuses a request under subsection (5) in respect of an order, to consent to the making of a further order. Section 15(7) - The function of the Secretary of State by regulations to alter the number of days for the time being specified in this subsection. Section 16(2) - The function of the Secretary of State to make regulations with respect to the procedure to be followed in connection with the making of orders and the issue of notices under section 14 including provision for notifying the public of the exercise, or proposed exercise, of the powers conferred by that section and of the effect of orders and notices made or issued in the exercise of those powers, and all functions conferred on him by the Road Traffic (Temporary Restrictions) Procedure Regulations 1992 SI 1992/1215. Section 16(2A) - The function of the Secretary of State by regulations under subsection (2) to make, in relation to such orders as he thinks appropriate, provision: (a) for the making and consideration of objections to a proposed order; and (b) for any of the matters mentioned in paragraph 22(1) of Schedule 9. |
(b) section 17(2) and (5); | Section 17(2) - The function of the Secretary of State to make regulations with respect to the use of special roads but only to the extent that such regulations can apply to special roads specified in the regulations and not to special roads generally or to all special roads of a particular class. Section 17(5) - The function of the Secretary of State as traffic authority to declare the date on which a special road or part of that road is open for use as a special road. |
(c) section 28(4)(a); | Section 28(4)(a) - The function of the Secretary of State to authorise the use by a school crossing patrol of signs of a description not prescribed by regulations. |
(d) section 64(1)(b) and (2); | Section 64(1)(b) and (2) - (a) The function of the Secretary of State to authorise any object or device so that it becomes a traffic sign within the meaning of subsection (1); (b) The function of the Secretary of State to authorise the size, colour and type of a traffic sign which is not prescribed. |
(e) section 65(1); | Section 65(1) - The function of the Secretary of State as Traffic Authority to cause or permit traffic signs to be placed on or near a road. |
(f) section 65(2) and (3A)(b)(ii); | Section 65(2) - The function of the Secretary of State to give directions (but not general directions) to a local traffic authority as to the placing, replacing or converting of a traffic sign of a prescribed type or authorised character. Section 65(3A)(b)(ii) - The function of the Secretary of State to prescribe a body appearing to him to be representative of the interests of road users or any class of road users in relation to the placing of a temporary traffic sign. |
(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); | Section 69(1) - The function of the Secretary of State as traffic authority to give written notice requiring the removal of an object or device for the guidance or direction of persons using the road. Section 69(2) - The function of the Secretary of State as traffic authority to effect the removal required in terms of subsection (1) in the event of default and to recover expenses incurred. Section 69(3) - The function of the Secretary of State to give directions to a local traffic authority requiring the removal of any traffic sign or any object or device mentioned in subsection (1). Section 70(1) - The function of the Secretary of State to be able to carry out work required to comply with any direction given under section 65(2) or section 69 and to recover the expenses incurred. Section 71(1) - The function of the Secretary of State to be able to enter any land and exercise such powers as may be necessary for the purpose of placing, replacing, converting and removing traffic signs or generally for the purposes of the exercise of powers and duties under section 69. Section 79(1) - The function of the Secretary of State to make advances towards expenses incurred by a council in the discharge of any obligations imposed on them by the relevant provisions of the Act in relation to the erection, maintenance, alteration or removal of traffic signs. Section 82(1)(b) - The function of the Secretary of State to make regulations to specify a classification or type of road so as to make it a restricted road for the purposes of section 81. Section 82(2) - The function of the Secretary of State as traffic authority to direct that a road which is a restricted road for the purposes of section 81 shall cease to be a restricted road or that a road which is not a restricted road for those purposes shall become a restricted road. Section 82(3) - The function of the Secretary of State as traffic authority to declare the date on which a special road or part of that road is open for use as a special road. Section 83(1) - The function of the Secretary of State to make an order so as to give the direction under section 82(2). Section 84(1) - The function of the Secretary of State to make an order as respects any road (except a special road) for which he is the traffic authority to prohibit the driving of motor vehicles at a speed exceeding that specified in the order either generally or during periods specified in the order or for the time being indicated by traffic signs in accordance with the order. |
(h) section 85(1) and (3); | Section 85(1) - The function of the Secretary of State to comply with the duty in relation to a road for which he is the traffic authority to erect and maintain traffic signs to secure that adequate guidance is given to drivers of motor vehicles as to the speed limit to be observed on that road. Section 85(3) - The function of the Secretary of State to execute works in the event of default by the local traffic authority to erect, maintain, alter or remove traffic signs and to recover the expense incurred in doing so. |
(i) section 85(2); and | Section 85(2) - The function of the Secretary of State to give directions (but not general directions) for the purpose of securing that adequate guidance is given to drivers of motor vehicles as to whether any, and if so what, limit of speed is to be observed on any road. |
(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). | Schedule 9, para 1 - The function of the Secretary of State to give a local authority a direction in relation to specified provisions of the Act. Schedule 9, para 3(1) - The function of the Secretary of State to exercise the power to make an order under any of the provisions specified in paragraph 1 in addition to those powers still being capable of being exercised by the authorised authority. Schedule 9, para 4 - The function of the Secretary of State to do anything to make effective any order which he has made under paragraph 3 and to recover from the authorised authority any expenses incurred by him in doing so. Schedule 9, para 7 - The function of the Secretary of State to hold a public inquiry as necessary and to vary or revoke any order made or having effect as if made under or by virtue of any of the provisions of the Act referred to in paragraph 1. Schedule 9, para 8 - The function of the Secretary of State before giving any direction under paragraph 2 or making any order under paragraph 7 to be satisfied that the duty under section 122(1) is not being satisfactorily discharged by the authorised authority and that the direction or order is necessary to secure compliance. Schedule 9, para 9 - The function of the Secretary of State to be satisfied that there are special circumstances which make it expedient that an order under paragraph 7 should be made notwithstanding that he is not satisfied in terms of paragraph 8. Schedule 9, para 13 - The function of the Secretary of State to consent to the inclusion of certain provisions in an order proposed to be made by a local authority under or by virtue of certain provisions of the Act. Schedule 9, para 15 - The function of the Secretary of State to make an order adding or removing from the orders for which his consent is required by paragraph 13 certain other specified orders made by local authorities for specified purposes and specified circumstances. Schedule 9, para 16(1) - The function of the Secretary of State to give his consent to an order either in the form submitted or with such modifications as he thinks fit. Schedule 9, para 16(2) - The function of the Secretary of State to comply with a duty to take sufficient and reasonably practical steps to inform the local authority and other persons likely to be concerned where consent to an order is proposed to be given with modifications which appear to him substantially to affect the character of the order. Schedule 9, para 17 - The function of the Secretary of State to make an order granting a general consent for the making of orders requiring that consent under this part of the Schedule. Schedule 9, para 21 - The function of the Secretary of State to make regulations for providing the procedure to be followed by a local authority in relation to the making of orders and any functions conferred on him by the Local Authorities’ Traffic Orders (Procedure) (Scotland) Regulations 1999 S.I. 1999/614. Schedule 9, para 24 - The function of the Secretary of State to make regulations with respect to the procedure in connection with the making by him of any order made by virtue of paragraph 3 or made under paragraph 7 of Schedule 9 or of any order which he is authorised to make with respect to roads for which he is the traffic authority under any of the provisions referred to in paragraph 20(1) and any functions conferred on him by the Secretary of State’s Traffic Orders (Procedure) (Scotland) Regulations 1987 S.I. 1987/2244. Schedule 9, para 26(1) - The function of the Secretary of State to consider any objections made to an order under any of the provisions referred to in paragraph 20(1) of the Schedule before giving a direction under paragraph 2. Schedule 9, para 26(2) - The function of the Secretary of State in complying with the duty to take such steps as appear to him to be sufficient and reasonably practical for informing any local authority and any other person likely to be concerned of any modifications which appear to him to affect substantially the character of the order. |
(a) section 19(7); and | Section 19(7) - The function of the Secretary of State to make an order designating bodies appearing to him to be eligible in accordance with subsection (8) for the purposes of the granting of permits for the use of a small bus in terms of subsection (3) for educational and other bodies; and to make provision for the issues referred to in paragraph (a) to (c) in subsection (7). |
(b) Schedule 4, paragraph 15. | Schedule 4, paragraph 15 - The function of the Secretary of State* of being consulted by the Lord Chancellor on appointment of judicial members of the tribunal, retention of a judicial member beyond normal retirement age, removal of a judicial member, and the terms and conditions of service. |
The Road Traffic Act 1988 (c.52), sections 13(2), 13A(1), 27(6) and 31(2). | Section 13(2) - The function of the Secretary of State to make regulations (generally or as regards any area, class or description of competition or trial or any particular competition or trial) to authorise or provide for authorising the holding on a public way of competitions or trials (other than races or trials of speed) involving the use of motor vehicles; and to impose conditions. |
The Road Traffic Act 1988 (c.52), sections 13(2), 13A(1), 27(6) and 31(2). | Section 13A(1) - The function of the Secretary of State to make regulations to authorise a motoring event in a public place other than a road. Section 27(6) - The function of the Secretary of State to make regulations prescribing the procedure to be followed in connection with the making of orders by a local authority dealing with the control of dogs on roads and requiring the publication in a prescribed manner of a notice of the making and effect of the order. Section 31(2) - The function of the Secretary of State to make regulations to authorise or provide for authorising the holding on a public way (other than a bridle way) of races or trials of speed of any class or description or of a particular race or trial of speed involving cycles; and to impose conditions. |
The following functions have been made exercisable by a Minister of the Crown subject to a requirement for agreement of or consultation with the Scottish Ministers by the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 1999 (S.I. 1999/1750).
(a) section 17(2); | The function of the Secretary of State to make regulations with respect to the use of special roads but only to the extent that such regulations can apply to special roads specified in the regulations and not to special roads generally or to all special roads of a particular class. |
(b) section 25(1) and 64(1)(a); | Section 25(1) - The function of the Secretary of State to make regulations with respect to the precedence of vehicles and pedestrians respectively, and generally with respect to the movement of traffic (including pedestrians), at and in the vicinity of crossings. Section 64(1)(a) - The function of the Ministers acting jointly to specify by regulations as a traffic sign an object or device for conveying to traffic on roads or any specified class of traffic, warnings, information, requirements, restrictions or prohibitions of any description. |
(c) section 65(1); | The function of the Secretary of State as Traffic Authority to cause or permit traffic signs to be placed on or near a road. |
(d) section 81(2); | Section 81(2) - The function of the Ministers acting jointly by order made by statutory instrument and approved by a resolution of each House of Parliament, to increase or reduce the rate of speed which applies on a restricted road. |
(e) section 85(2)(a); and | The function of the Secretary of State to give general directions for the purpose of securing that adequate guidance is given to drivers of motor vehicles as to whether any, and if so what, limit of speed is to be observed on any road. |
(f) sections 86(2) and 88(1) and (4). | Section 86(2) - The function of the Secretary of State by regulations to vary the speed limits which apply to specified classes of traffic. Section 88(1) and (4) - The function of the Secretary of State in the interests of safety or for the purpose of facilitating the movement of traffic, by order to set speed limits for a period not exceeding 18 months and of continuing such limits either indefinitely or for a specified period. |
| The Road Traffic Act 1988 (c.52), section 36(5). | The function of the Secretary of State for Scotland, acting with the Secretary of State for Transport and the Secretary of State for Wales, by regulations to specify any traffic sign, failure to comply with which carries the penalty of discretionary disqualification. |
| The Road Traffic Act 1988 (c.52), section 36(5). | The function of the Secretary of State for Scotland, acting with the Secretary of State for Transport and the Secretary of State for Wales, by regulations to specify any traffic sign, failure to comply with which carries the penalty of discretionary disqualification. |
The following functions have been included in the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 2000 (S.I. 2000/1563).
The Road Traffic Regulation Act 1984 (c.27), section 881)(a) and (4) | Section 88(1)(a) and (4) of the 1984 Act concern temporary speed limits.. Under section 88(1)(a), the Secretary of State can make an Order imposing a maximum speed limit, for periods up to 18 months, on:
Under section 88(4) such Orders can be continued in force for further periods or indefinitely. This Order transfers the functions under sections 88(1)(a) and (4) in respect of temporary speed limits but only in relation to making orders applying to specified roads. |
Residual Functions
The functions of the Secretary of State for Scotland under sections 64, 65 and 81 of the Road Traffic Regulation Act 1984 and section 36(5) of the Road Traffic Act 1988 (regulations specifying objects or devices as traffic signs; directions as to the placing of traffic signs; orders to increase or reduce speed limit on restricted roads; specifying traffic signs for certain purposes of the 1988 Act) were transferred to the Secretary of State by the Transfer of Functions (Road Traffic) Order 1999 (S.I. 1999/3143).
The words in brackets were added by Article 4 of SI 2000/3252.
This was added by Article 5 of SI 2000/3252.
The words in brackets were added by Article 4 of SI 2000/3252.
Section 32 was substituted by section 62 of the Utilities Act 2000 and section 32A was added by section 63 of the Utilities Act 2000(c.27). They will come into effect when section 62 or, as the case may be, section 63 is commenced.
