SECTIONS
Section E2: Rail Transport
Purpose and Effect
This Section reserves the provision and regulation of railway services, including rail safety, rail transport security, the subject-matter of the Channel Tunnel Act 1987 and the Railway Heritage Act 1996. Certain matters are excepted. This section was amended by S.I. 2000/3252.
Parliamentary Consideration
| Stage | Date | Column |
|---|---|---|
| CC | 31-Mar-98 | 1052 |
Details of Provision
Reservation
The provision and regulation of railway services is a reserved matter. This includes rail safety. The interpretation provision at the end of the Section provides that railway services are those defined in section 82 of the Railways Act 1993 but excluding the wider meaning of railway given by section 81(2) of that Act. This means that railway services for the purposes of the reservation include services in relation to the carriage of passengers (including luggage, parcels and mail) and of goods and services in relation to stations, maintenance facilities and the provision and operation of the rail network itself. As the wider meaning of “railway” does not apply (“railway” having the meaning given by section 67(1) of the Transport and Works Act 1992), tramways and guided transport systems are not included, therefore the Scottish Parliament has legislative competence in regard to those matters.
The following are also reserved:
rail transport security;
the subject-matter of the Channel Tunnel Act 1987; and
the subject-matter of the Railway Heritage Act 1996 which provides powers to make a railway heritage scheme.
Exceptions
As amended by S.I. 2000/3252 there are four main exceptions from the reservation:
Grants so far as relating to railway services. However, certain grant provisions noted below continue to be reserved by way of exceptions to the general exception. This means that the Scottish Parliament is able to legislate about capital and revenue grants for services relating to the carriage of passengers, stations, maintenance facilities and the rail network itself. Legislative and executive competence includes, without the need for express mention, powers in relation to special grants to local authorities under section 108A of the Local Government Finance Act 1992 and grants for public passenger transport services under section 56 of the Transport Act 1968, where the grants relate to railway services.
The matters which are not within this exception and thus continue to be reserved are:
the subject-matter of section 63 of the Railways Act 1993. This section provides for government financial assistance where railway administration orders are made;
grants in relation to railway services as defined in section 82(1)(b) of the Railways Act 1993 (carriage of goods by railway); and
the subject-matter of section 136 of the Railways Act 1993. This section deals with compensation payable to a passenger service operator who is required to run a passenger service which would not be commercially viable in accordance with a public service obligation under Council Regulation (EEC) 1191/69 as amended.
Imposing requirements about the preparation and submission of strategies relating to the provision of rail services on Scottish public authorities with mixed functions relating to such services. The purpose of this exception which was added by S.I. 2000/3252, was to enable the Scottish Parliament to legislate in the Transport (Scotland) Act 2001 (asp 2) to empower the Scottish Ministers to require Scottish public authorities with mixed functions to produce joint transport strategies specifically covering the provision of rail services.
The transfer of functions of passenger transport executives or passenger transport authorities relating to the provision and regulation of rail services conferred by Part II of the Transport Act 1968(c.73) and sections 32 to 36 of the Railways Act 1993(c.43) to, and the allocation of such functions among, Scottish public authorities (other than cross-border public authorities and public authorities exercising functions solely in relation to reserved matters) which may be set up wholly or mainly to exercise functions relating to transport. The purpose of this exception, which was added by S.I. 2000/3252, was to enable the Scottish Parliament to legislate in the Transport (Scotland) Act 2001 (asp 2) to confer on, or allocate among, certain Scottish public authorities the same rail responsibilities as any other passenger transport executive. It does not, however, enable the Scottish Parliament to create new types of passenger transport executive rail functions.
Executive Devolution
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).
(a) section 74(1) and (3); | Section 74(1) - The function of receiving from the Rail Regulator his annual report on his activities during each financial year and the activities of the Monopolies and Mergers Commission during the same year so far as relating to references made to the Commission by the Regulator. Section 74(3) - The function of the Secretary of State to comply with the duty to lay before Parliament a copy of every report made by the Rail Regulator under section 74(1) and to arrange for publication of every such report. |
(b) section 75(1) and (2); | Section 75(1) - The function of the Secretary of State to receive from the Director of Passenger Rail Franchising his annual report of his activities during each financial year and the general performance of franchisees during that year in carrying out their functions under franchise agreements. Section 75(2) - The function of the Secretary of State to comply with the duty to lay before each House of Parliament a copy of every report made to him by the Franchising Director under section 75(1) and to arrange for the publication of every such report. |
(c) section 76(6)(a); | The function of the Secretary of State to receive a report of the findings of the Central Rail Users’ Consultative Committee where it has investigated any matter. |
(d) section 79(1); | The function of the Secretary of State of receiving the annual report of the Central Rail Users Consultative Committee and the duty to lay a copy of those reports before each House of Parliament. |
(e) section 137; and | Section 137(1) - The function of the Secretary of State to enter into agreements with goods service operators for the making of payments in respect of track access charges. Section 137(2) - The function of the Secretary of State to be satisfied that certain benefits are likely to result from the provision of services under an agreement. Section 137(3) - The function of the Secretary of State for making payments under agreements entered into under this section shall be paid out of money provided by Parliament. Section 137(4) - The definition of “goods service operator” and “track access charge”. |
(f) section 139(1), (2), (3), (5) and (6). | Section 139(1) - The function of the Secretary of State to make grants towards the provision of facilities for or in connection with the carriage of goods by railway or the loading or unloading of such goods. Section 139(2) - The function of the Secretary of State to be satisfied as to the matters set out in paragraphs (a) to (c). Section 139(3) - The function of the Secretary of State to take a view as to the nature and purpose of the expenditure to be grant aided. Section 139(5) - The function of the Secretary of State to consider an application under that subsection and to require supporting evidence with respect to the matters set out in paragraphs (a) to (c). Section 139(6) - The function of the Secretary of State to impose terms and conditions. |
Section E3: Marine Transport
Purpose and Effect
This Section reserves certain matters relating to international and UK shipping including marine safety and security, navigational rights, regulation of the British merchant fleet and all matters relating to the employment of seafarers.
Parliamentary Consideration
| Stage | Date | Column |
|---|---|---|
| CC | 31-Mar-98 | 1067 |
| LC | 23-Jul-98 | 1141 |
| LC | 23-Jul-98 | 1145 |
Details of Provisions
Reservation
In general, matters relating to marine transport are reserved where there is a need for consistent provision across the UK, for example in order to comply with international obligations or agreements (such as those relating to vessel safety or the employment of seafarers) or for practical reasons (e.g. regarding coastguards and lighthouses).
The Section provides that the subject-matter of the following Acts are reserved matters:
the Coastguard Act 1925. This Act defines the activities and powers of HM Coastguard;
the Hovercraft Act 1968, except so far as relating to the regulation of noise and vibration caused by hovercraft. This is to ensure that matters relating to marine safety in relation to hovercraft are reserved;
the Carriage of Goods by Sea Act 1971. This Act incorporates into UK law international agreements (the Hague-Visby rules) which set out the circumstances in which the carrier or the cargo owner are liable for the loss or damage of goods at sea;
section 2 of the Protection of Wrecks Act 1973 (prohibition on approaching dangerous wrecks). This deals with the designation of protected areas around dangerous wrecks;
the Merchant Shipping (Liner Conferences) Act 1982. This Act makes provision for the exemption from normal competition regulations of ‘liner conferences’, i.e. cartels of deep sea container shipping operators concerned to prevent over-capacity and damaging price competition on certain specified routes. The Act also incorporates into UK law the United Nations Convention on a Code of Conduct for Liner Conferences;
the Dangerous Vessels Act 1985. This deals with the powers of harbour masters and the Secretary of State in relation to dangerous vessels;
the Aviation and Maritime Security Act 1990, other than Part I (Aviation Security). This Act covers matters of maritime security;
the Carriage of Goods by Sea Act 1992. This Act makes provision about bills of lading and deals with rights and liabilities under shipping contracts;
the Merchant Shipping Act 1995. This Act deals with a wide range of marine matters. It specifies what constitutes British ships, and deals with their registration. It also deals with such matters as masters and seamen in seagoing ships, marine safety, fishing vessels, marine pollution from ships, liability for oil pollution from ships, lighthouses, salvage and wreck, and enforcement officers;
the Shipping and Trading Interests (Protection) Act 1995. This Act gives powers in relation to measures to be taken in response to discriminatory foreign action against UK shipping and trade interests. This reservation is consistent with the reservation of the general area of protection of trading interests (Section C15); and
sections 24 and 26 to 28 of the Merchant Shipping and Maritime Security Act 1997. These sections make provision about wrecks, piracy and international maritime bodies.
The following matters are also reserved:
Navigational rights and freedoms. These derive from international law. Coastal states, such as the UK, have a duty not to impose requirements on foreign ships which would have the practical effect of denying or impairing these rights or freedoms. Uniform treatment of passing shipping traffic all around the UK is necessary to ensure compliance with the UK’s international obligations.
Financial assistance for shipping services which start or finish or both outside Scotland. With one exception about bulk freight services (noted below), the Scottish Parliament is not able to legislate about financial assistance to shipping services between Scotland and other parts of the UK or Europe since differing approaches might distort the market for shipping services. The Scottish Parliament is, however, able to legislate about financial assistance to shipping services operating wholly within Scotland.
Exceptions
The following matters are excepted from the reservation:
Ports, harbours, piers and boatslips, except in relation to the matters reserved by virtue of paragraph (d), (f), (g) or (i). The Scottish Parliament therefore has legislative competence over ports, harbours, piers and boatslips in Scotland. The exception does not, however, extend to the reserved matters of maritime security and safety.
Regulation of works which may obstruct or endanger navigation. This exception gives the Scottish Parliament legislative competence over the regulation of works which may obstruct or endanger the exercise of navigational rights and freedoms. The general reservations relating to oil and gas (Section D2) and telecommunications (Section C10) mean, however, that consents for works related to those industries will be reserved matters.
The subject-matter of the Highlands and Islands Shipping Services Act 1960 in relation to financial assistance for bulk freight services. The 1960 Act allows for financial assistance to shipping services serving the Highlands and Islands from any port of embarkation. The exception allows the Scottish Parliament, to continue to subsidise bulk freight shipping services between the Highlands and Islands and locations outside Scotland which are necessary for the social and economic well-being of island communities.
Executive Devolution
The following functions were included in the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 1999 (S.I. 1999/1750), as amended by S.I. 2000/1563.
The Merchant Shipping (Formal Investigations) Rules 1985 (S.I. 1985/1001), rule 4(1)(1) | The function of the Secretary of State to appoint assessor |
The Merchant Shipping (Section 63 inquiries) Rules 1997 ( S.I. 1997/347), rule 5(1) | The function of the Secretary of State to appoint assessor |
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 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 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). |
The Lord Advocate and the Solicitor General for Scotland continue to be Commissioners for the Northern Lighthouse Board.
Section E4: Air Transport
Purpose and Effect
This Section reserves the regulation of aviation and air transport (including air safety and security) and the arrangements for compensation and repatriation of passengers on an operator’s insolvency. It was amended by S.I. 2000/3252.
Parliamentary Consideration
| Stage | Date | Column |
|---|---|---|
| CC | 31-Mar-98 | 1067 |
Details of Provisions
Reservation
The regulation of aviation and air transport is a reserved matter. That includes the subject-matter of the following Acts:
the Carriage by Air Act 1961; the Carriage by Air (Supplementary Provisions) Act 1962; the Carriage by Air and Road Act 1979 (so far as it relates to carriage by air).
These three Acts implement the provisions of the Warsaw Convention (as amended at the Hague and Montreal) which applies to all international carriage by aircraft of persons, baggage or cargo for reward;
the Civil Aviation Act 1982. This Act deals with such matters as the constitution and functions of the Civil Aviation Authority, aerodromes, the regulation of civil aviation, aircraft and related matters;
the Aviation Security Act 1982. This Act deals with offences against the safety of aircraft and the protection of aircraft, aerodromes and air navigation installations against acts of violence;
the Airports Act 1986. This Act deals with the transfer of airport undertakings of local authorities, the regulation of the use of airports and the economic regulation of airports, the status of airport operators as statutory undertakers and related matters; and
sections 1 and 48 of the Aviation and Maritime Security Act 1990. These sections relate to endangering safety at aerodromes and powers in relation to certain aircraft.
In addition, arrangements to compensate and repatriate passengers where an air transport operator becomes insolvent are reserved. At present the non-statutory Air Travel Trust Fund, which operates in conjunction with the Air Travel Organisers’ Licence Scheme, provides funds for the repatriation and compensation of passengers where an air transport operator becomes insolvent.
Exceptions
The following exceptions from the reservation are made, as amended by S.I. 2000/3252:
The subject-matter of the following sections of the Civil Aviation Act 1982:
section 25 (the power of the Secretary of State to provide aerodromes);
section 30 (the provision of aerodromes and facilities at aerodromes by local authorities);
section 31 (power to carry on ancillary business in connection with local authority aerodromes);
section 34 (financial assistance for certain aerodromes);
section 35 (facilities for consultation at certain aerodromes);
section 36 (health controls at certain aerodromes); and
sections 41 to 43 and 50 (powers in relation to land) where land is to be or was acquired for airport development or expansion.
The subject-matter of Part II and sections 63, 64 and 66 of the Airports Act 1986. These relate to the transfer of airport undertakings of local authorities, airport bylaws, and functions of operators of designated airports in respect of abandoned vehicles.
The subject-matter of sections 59 and 60 (acquisition and disposal of land) of the Airports Act 1986 where land is to be or was acquired for the purpose of airport development or expansion; and
Imposing requirements about the preparation and submission of strategies relating to the provision of air services on Scottish public authorities with mixed functions relating to such services. The purpose of this exception which was added by S.I. 2000/3252, was to enable the Scottish Parliament to legislate in the Transport (Scotland) Act 2001 (asp 2) to empower the Scottish Ministers to require Scottish public authorities with mixed functions to produce joint transport strategies specifically covering the provision of air services.
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 Civil Aviation Act 1982 (c.16) sections 38(2), 42(1), 50(2), 78, 79(1), 80 and 88(10) and (11). | Section 38(2) - The function of the Secretary of State to make an order directing specified aerodrome authorities to fix charges for the use of an aerodrome by reference among other things to any fact or matter relevant to aircraft noise or the extent or nature of any inconvenience resulting from such noise; and in such order to give directions as to the manner in which charges are to be fixed. Section 42(1) - The function of the Secretary of State to authorise the Civil Aviation Authority to acquire land compulsorily in Scotland. Section 50(2) - The function of the Secretary of State to give written authorisation to any person to enter upon land to make a relevant survey where section 50 applies. Section 78(1) - The function of the Secretary of State to publish a notice imposing a duty on an aircraft operator to comply with requirements specified in the notice so as to limit or mitigate the effect of noise and vibration connected with the taking off or landing of an aircraft at an aerodrome. Section 78(2) - The function of the Secretary of State to take a view that requirements mentioned in subsection (1) have not been complied with, to afford to the aircraft operator an opportunity of making representations and to consider those representations and thereafter to give the person managing the aerodrome concerned a direction requiring that facilities for using the aerodrome are withheld to a specified extent from the aircraft operator. Section 78(3) - The function of the Secretary of State, by publishing a notice, to prohibit specified aircraft from taking off or landing at an aerodrome, to specify the maximum number of occasions on which specified aircraft may take off or land and to determine the persons who are to be entitled to make the appropriate arrangements for aircraft of which they are the operators. Section 78(4)(a) - The function of the Secretary of State, by notice, to specify the circumstances in which the take off or landing of an aircraft can be disregarded for the purposes of a notice under subsection (3). Section 78(5)(a) - The function of the Secretary of State to comply with the duty to consult before making a determination in respect of an aerodrome in pursuance of subsection (3)(c). |
The Civil Aviation Act 1982 (c.16) sections 38(2), 42(1), 50(2), 78, 79(1), 80 and 88(10) and (11) (contd.). | Section 78(5)(c) - The function of the Secretary of State to authorise any person to detain an aircraft where it appears to the Secretary of State that it is about to take off in contravention of any prohibition or restriction imposed in pursuance of subsection (3). Section 78(5)(f) - The function of the Secretary of State, by notice to the person managing an aerodrome, to determine that a particular occasion or series of occasions on which aircraft take off or land at an aerodrome are to be disregarded for the purposes of a notice under subsection (3). Section 78(6) - The function of the Secretary of State to give to a person managing a designated aerodrome appropriate directions so as to avoid, limit or mitigate the effect of noise and vibration connected with the take off or landing of an aircraft. Section 78(7) - The function of the Secretary of State to apply for an order of the Court of Session under section 45(b) of the Court of Session Act 1988. Section 78(8) - The function of the Secretary of State to make an order after consultation requiring a person managing a designated aerodrome to provide specified noise measuring equipment, to produce specified reports and to allow inspection of the equipment. Section 78(8) - The function of the Secretary of State also under this subsection of receiving the specified reports and authorising any person to inspect noise measuring equipment. Section 78(9) - The function of the Secretary of State to afford to a person upon whom a duty has been imposed by subsection (8) an opportunity to make representations with respect to any failure to perform that duty, to consider any such representations and thereafter to take appropriate steps to remedy the failure and to recover in court any expenses incurred by the Secretary of State. Section 78(11) - The function of the Secretary of State after consultation to make an order repealing any provision of a local Act which he considers is unnecessary. Section 78(12) - The function of the Secretary of State to consider what incidental or supplementary provisions may be appropriate in respect of any notice published in pursuance of subsections (1), (3) or (4) and the function also of varying or revoking an existing notice. |
The Civil Aviation Act 1982 (c.16) sections 38(2), 42(1), 50(2), 78, 79(1), 80 and 88(10) and (11) (contd.). | Section 79(1) - The function of the Secretary of State to make a scheme requiring the person managing an aerodrome to make grants towards the insulation against noise of such classes of buildings as the Secretary of State thinks fit. Section 80 - The function of the Secretary of State to designate an aerodrome for the purposes of sections 78 and 79. Section 88(10) - The function of the Secretary of State to make an order designating an airport for the purposes of section 88. Section 88(11) - The function of the Secretary of State after consultation to make an order repealing any enactment in a local Act which appears to him to be unnecessary. |
The Airports Act 1986 (c.32), sections 37(5), 65(2) and (6) and 68(1). | Section 37(5) - The function of the Secretary of State after consultation to determine that an airport should cease to be subject to economic regulation under Part IV of the Act. Section 65(2) - The function of the Secretary of State to make an order directing that the road traffic enactments (as defined in subsection (6)) shall have effect in relation to an airport subject to such modifications as appear to him necessary or expedient for the purposes set out in paragraphs (a) and (b). Section 65(6) - The function of the Secretary of State to make an order designating an airport for the purposes of Section 65. Section 68(1) - The function of the Secretary of State after consultation to make an order requiring an airport operator to provide maintain and operate equipment for monitoring aircraft movement and to make specified reports and to permit an authorised person to inspect the equipment. In addition, the function of the Secretary of State under paragraph (b) to receive specified reports and to authorise any person to inspect equipment. |
Section E5: Miscellaneous Transport Matters
Purpose and Effect
This Section reserves the transport of radioactive material, technical specifications for public passenger transport for disabled people, and regulation of the carriage of dangerous goods.
Details of Provisions
Reservation
This Section provides that the following are reserved matters:
Transport of radioactive material. Radioactive material is defined by reference to section 1(1) of the Radioactive Material (Road Transport) Act 1991 as material having a specific activity in excess of 70 kilobecquerels per kilogram or any lesser specific activity specified in an order made by the Secretary of State.
Technical specifications for public passenger transport for disabled persons including the subject-matter of:
section 125(7) and (8) of the Transport Act 1985 which together require the Secretary of State to consult the Disabled Persons Transport Advisory Committee before issuing guidance as to measures with a view to making access to public transport services by road easier for disabled persons and making such transport better adapted to the needs of disabled people; and
Part V of the Disability Discrimination Act 1995 (public transport) which makes provision about standards of accessibility for the transport of disabled people by taxi, bus or train and sets out measures to require the adoption of such standards by the relevant operators;
Regulation of the carriage of dangerous goods.
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 Civic Government (Scotland) Act 1982 (c.45), section 20. | Section 20(1) - The function of the Secretary of State to make regulations to prescribe conditions which are to be imposed or not imposed by licensing authorities in relation to taxi and private hire car licences and driver licences but only in so far as necessary to implement in Scotland any relevant requirements of Part V of the Disability Discrimination Act 1995. Section 20(2) - The function of the Secretary of State to make regulations to prescribe types, sizes and designs of vehicles for the purposes of section 10(4) of the 1982 Act but only in so far as necessary to implement in Scotland any relevant requirements of Part V of the Disability Discrimination Act 1995. |
The Civic Government (Scotland) Act 1982 (c.45), section 20. | Section 20(2A) - The function of the Secretary of State to consider what provisions may be necessary or expedient in regulations made under sub-section (1) or (2) in relation to the carrying in taxis of disabled persons and the function of prescribing such other categories of dog trained to assist disabled persons together with the function of prescribing kinds of disabilities in relation to such disabled persons. |
| The Disability Discrimination Act 1995 (c.50), section 33. | Section 33(2) - The function of the Secretary of State to make regulations to provide for the application of any taxi provision (as defined in sub-section (4)) in relation to certain vehicles or drivers. Section 33(3) - The function of the Secretary of State to consider what modifications may be appropriate in the application of any taxi provision by regulations made under sub-section (2). Section 33(4) - The function of the Secretary of State to make an order designating certain transport facilities forming part of any port, airport, railway station or bus station for the purposes of section 33. |
Section F1: Social Security Schemes
Purpose and Effect
This Section reserves social security matters.
General
The reservation describes social security not in terms of benefits for specific purposes but in terms of the power and responsibilities which underlie any type of social security provision as follows:
the establishment and financing from central or local government expenditure of general or specific schemes of assistance to or in respect of individuals by way of benefits (which includes pensions, allowances, grants or loans) for social security purposes;
requiring persons (such as employers or individuals or local authorities) to set up or administer schemes for social security purposes or to make contributions or payments towards them and to keep records and supply information in connection with all aspects of scheme administration, including verification of claims and investigating fraud; and
the establishment of a liability for a person to maintain himself or another for social security and child support purposes.
The reservation has been cast in this way to make allowance for changes over time in the exact scope and coverage of the UK-wide social security system, and the way in which benefits are delivered. For example, in recent years some benefits previously provided directly by central government (such as sickness or maternity benefit) have been replaced by a structure of requirements on employers to make defined payments to their employees. Similarly some new benefits (such as Disability Living Allowance) have been established. The reservation, which needs to be read together with the definition of social security purposes in the interpretation paragraph, makes allowance for changes of this kind.
The provision of compensation for injury resulting from vaccination, as provided for by the Vaccine Damage Payment Scheme, which are paid through the same channels as social security, is also reserved.
The current law on social security covers the following matters, some of which are given as examples in the illustrations paragraph (which is not intended to be exhaustive of all the matters covered by the reservation):
National Insurance contributions and contributory National Insurance benefits such as the state retirement pension. The Secretary of State for Social Security has specific responsibility for the NI Fund;
other social security benefits of all kinds, including employment-related benefits (such as Job Seekers Allowance);
payments in respect of industrial accidents, injuries and diseases;
statutory sick pay and statutory maternity pay;
the liability to maintain oneself, a spouse and dependent children under 19, or any person in respect of whom an undertaking to maintain has been made under the Immigration Act 1971;
grants and loans for special needs payable through the Social Fund and the Independent Living Funds;
the administration of the social security and employment benefits system whether carried out by the Department of Social Security, other government departments or others;
decision-making and appeals arrangements;
the funding of resettlement provision for persons without a settled way of life under section 30 of the Jobseekers Act 1995;
payments under the vaccine damage payments scheme;
the recovery of benefits where compensation is paid in consequence of accident, injury or disease and the recovery of benefits from earnings, and deductions from benefits to meet an individual’s debts; and
public bodies whether tribunal, executive, advisory or regulatory dealing with these issues.
Section 110 provides the Secretary of State (for Social Security) the power to take account of the implications of varied Scottish rates of income tax (as may be provided for under Part IV of the Scotland Act) for social security, child support and pensions purposes and to determine whether a person is to be treated as a Scottish taxpayer and to specify what shall be treated as the Scottish rate of tax in any year of assessment. The purpose of these provisions is primarily to ensure that benefit decisions can be made promptly without uncertainty over the appropriate tax rate to apply where tax is relevant to benefit entitlement.
Parliamentary Consideration
| Stage | Date | Column |
|---|---|---|
| CC | 31-Mar-98 | 1068 |
| LC | 23-Jul-98 | 1070 |
| LC | 23-Jul-98 | 1145 |
| LR | 3-Nov-98 | 200 |
| LR | 3-Nov-98 | 201 |
Details of Provisions
First Reservation
This reserves legislative competence in respect of schemes supported from central or local funds which provide assistance for social security purposes to or in respect of individuals by way of benefits. This relates to social security benefits (such as retirement pension, income support or housing and council tax benefit) which are directly administered and funded by central or local government in whole or in part. The reservation covers all aspects of the establishment, financing and administration of such benefits and activity connected with them (such as, decision-making and appeals and anti-fraud activity). The Scottish Parliament does not have competence to set up or finance benefit schemes where these are for social security purposes (for example, by seeking to provide benefits for social security purposes to people who are not entitled to claim certain social security benefits), but the reservation does not prevent it from providing benefits or allowances for other purposes within its competence, for example education maintenance grants or fosterage allowances. A non-exhaustive definition of social security purposes is in the interpretation paragraph.
Second Reservation
This reserves competence to require persons (including companies and authorities) to establish and administer schemes for social security purposes, to make payments to or in respect of those schemes and to keep records and supply information in connection with them. The reservation is intended to cover activities to do with National Insurance, such as the requirement on individuals to pay and employers to collect National Insurance contributions; and to cover those types of social security provision which operate through requirements on employers or others to make payments in accordance with a regulatory framework (such as statutory sick pay and statutory maternity pay) rather than by direct central or local government delivery. The funding of social security schemes and the requirement for others such as local authorities to provide them (e.g. housing and council tax benefit) is also reserved.
Social security legislation also imposes requirements on employers to make payments of a minimum amount of sick pay or maternity pay in prescribed circumstances. This reservation also covers such arrangements.
Third Reservation
This reserves legislative competence over the circumstances in which a person is liable to maintain himself or another for the purposes of social security legislation and the Child Support Acts 1991 to 1995. Social security legislation places a legal duty on an individual to maintain himself and his spouse and dependant children or any person in respect of whom he has given an undertaking to maintain under the Immigration Act 1971. This requirement applies generally but it only becomes relevant when a person makes a claim to an income related social security benefit. When this happens the Secretary of State may seek an order from the sheriff in Scotland for the recovery of the benefit from the liable person. So far as the maintenance of a dependant child is concerned, that legislation is largely superseded by the Child Support Acts 1991 and 1995 (the subject-matter of which is separately reserved under Section F2).
Fourth reservation
This reserves the subject-matter of the Vaccine Damage Payment Scheme. The Vaccine Damage Payment Scheme provides for compensation for injury resulting from vaccination. Vaccine damage payments are determined and paid through the same channels as social security.
Illustrations of reservation
The illustrations provide a non-exhaustive list of some of the types of matter falling within the reservation:
National Insurance. This covers National Insurance contributions as well as contributory National Insurance benefits such as the state retirement pension;
Social Fund. This covers grants and loans for special needs;
administration and funding of housing benefit and council tax benefit;
recovery of benefits paid because of accident, injury or disease from persons paying damages and deductions from benefits for the purpose of meeting an individual’s debts;
sharing information between government departments for the purposes of the enactments relating to social security; and
making decisions for the purposes of schemes mentioned in the reservation and appeals against such decisions.
Exceptions from reservation
This provides for the subject-matter of following enactments which might otherwise fall within the reservation, but which relate to devolved matters, to be excepted from the reservation:
Part II of the Social Work (Scotland) Act 1968, which provides for the promotion of social welfare by local authorities. This includes provision in exceptional circumstances for payments to persons in need and other social welfare services such as the provision of home-help and residential nursing accommodation;
section 2 of the Chronically Sick and Disabled Persons Act 1970, which relates to the provision of various welfare services by local authorities to persons resident in their area;
section 50 of the Children Act 1975, which gives local authorities the power to make payments towards maintenance for children;
section 15 of the Enterprise and New Towns (Scotland) Act 1990 (industrial injuries benefit), which deals with payments to persons undergoing training who have injured themselves at work; and
sections 22, 29 and 30 of the Children (Scotland) Act 1995, which provide for payments to be made or other assistance to be provided to children or their families. Section 22 imposes a duty on local authorities to safeguard and promote the welfare of children who are in need by providing a range and level of services appropriate to their needs. In exceptional circumstances cash payments can be made. Section 29 imposes a duty on local authorities to assist young persons, who they formerly looked after, at school leaving age or subsequently through the provision of advice or other assistance including financial assistance. Section 30 authorises local authorities to give financial assistance to such young persons to meet the cost of education and training.
Interpretation
For the purposes of the reservation, “benefits” includes pensions, allowances, grants, loans and any other form of financial assistance. This ensures that all the various types of financial assistance provided as part of social security are covered.
Providing assistance for social security purposes to or in respect of individuals includes, among other things, providing assistance to or in respect of individuals:
who qualify by reason of old age, survivorship, disability, sickness, incapacity, injury, unemployment, maternity or the care of children or others needing care;
who qualify by reason of low income; or
in relation to their housing costs or liabilities for local taxes. This includes all the main purposes of social security provision. It also includes assistance in relation to housing costs or liabilities for local taxes, as described above.
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 Social Security Administration Act 1992 (c.5), sections 51(1), 52(3) and 189(10) and Schedule 2, paragraph 1(5). | The functions of the Secretary of State of being consulted by the Lord Chancellor on appointments of the President or a chairman of tribunals and deputy Social Security Commissioners; on regulations under the Act generally; and on removal of Social Security Commissioners or the President or a chairman of tribunals. |
The Social Security Act 1998 (c.14), sections 5(1) and 79(2), Schedule 1, paragraph 1(4) and Schedule 4, paragraph 8. | Section 5(1) - The function of the Secretary of State of being consulted by the Lord Chancellor regarding appointment of a President of appeal tribunals. Section 79(2) - The function of the Secretary of State of being consulted by the Lord Chancellor regarding regulations with respect to proceeding before the Commissioners. Schedule 1, paragraph 1(4) - The function of the Secretary of State of being consulted by the Lord Chancellor regarding removal of the President of appeal tribunals. Schedule 4, paragraph 8 - The function of the Secretary of State of being consulted by the Lord Chancellor regarding exercise of powers under paragraphs 1(2), 5(1) or 6 of Schedule 4. |
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 Social Security Administration Act 1992 (c.5), paragraph 7(1)(b) of Schedule 2. | The function of the Secretary of State to pay allowances to persons attending proceedings under the Act. |
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 Tax Credits Act 1999 (c.10) section 15 | The function of the Secretary of State under section 15 of the Tax Credits Act 1999 to make regulations, so far as it is exercisable by him in or as regards Scotland, is to be exercisable by him only with the agreement of the Scottish Ministers. Section 15 provides for these regulations to put in place a scheme establishing a new category of persons whose charges for providing child care are to be taken into account for the purposes of eligibility for the childcare element of the Working Families Tax Credit and Disabled Persons Tax Credit. |
The Tax Credits Act 1999 (c.10) section 15 (contd.). | The scheme is to provide that a person shall not fall within the new category unless he is approved by an accredited organisation in accordance with such criteria as may be determined by or under the scheme. The scheme is also to authorise the making of grants or loans to, and the charging of reasonable fees by, accredited organisations. Section 15(3) enables the Secretary of State to accredit organisations who may approve childcare providers for the purposes of eligibility for the childcare element of the Working Families Tax Credit and Disabled Persons Tax Credit. S.I. 2000/1563 provides that the function of accrediting organisations is to be treated as exercisable in or as regards Scotland in so far as accreditation is for the purpose of the application of a scheme in relation to child care providers in Scotland. The function is then executively devolved to the Scottish Ministers to that extent by article 3 and the Schedule. |
S.I. 1999/1750 also transferred non-statutory functions in relation to the provision of premises and support staff for the purposes of carrying out the functions of the Social Security Commissioners.
Section F2: Child Support
Purpose and Effect
This Section reserves the subject-matter of the Child Support Acts 1991 and 1995.
General
The provisions of the Child Support Acts give the Secretary of State for Social Security a duty to determine whether there is a liability to pay maintenance in respect of a child not living with both parents, to require an application for maintenance to be made for the child (when benefit is claimed), to assess and collect any amounts due and to enforce payment. In order to give effect to these responsibilities, the Secretary of State is given powers where necessary to establish or assume paternity. The Acts limit the jurisdiction of the courts to make individual decisions on child maintenance in circumstances covered by the Acts. The Acts apply - and supersede Scots family law - where a person responsible for a child who is not living with both parents makes a claim to an income-related benefit and in certain other limited circumstances. In Scotland the Acts also permit an application for maintenance by the child personally, if aged 12 or more.
The Scottish Parliament is, however, able to legislate on issues concerning the maintenance of dependent children, as part of Scots family law, in circumstances or cases which are not covered by the subject-matter of the Child Support Acts. For example, aliment is excepted from the reservation because it is that part of Scots private law which deals with the obligations of one person to pay maintenance in respect of children and others. The Parliament is not able to legislate, for instance, to remove or exempt child maintenance provision from the jurisdiction of the Acts. Nor can the Parliament establish different formulae for the calculation of maintenance for child support purposes under the Acts as they apply in Scotland. But the Parliament could for example establish general criteria for the presumption of paternity, since this is a matter about which the Child Support Act provisions rest on general civil law.
Parliamentary Consideration
| Stage | Date | Column |
|---|---|---|
| LR | 3-Nov-98 | 201 |
Details of Provisions
The reservation refers to the subject-matter of the Child Support Acts 1991 and 1995.
Exception
The subject-matter of sections 1 to 7 of the Family Law (Scotland) Act 1985, which deal with aliment, is excepted from the reservation. Without a specific exception it may have been doubtful whether or not aliment was a reserved matter. Aliment, as explained above, is that part of Scots private law which deals with the obligations of one person to pay maintenance in respect of children and others. Without the specific exception, the reservation of the Child Support Acts may have restricted unduly the Scottish Parliament’s competence to legislate in relation to the law on aliment because those Acts confer powers on the Secretary of State to collect the Scottish form of maintenance such as aliment, as well as child support maintenance. However, the reservation of child support does not prevent the Scottish Parliament from having competence to legislate about aliment.
The interpretation section ensures that if section 30(2) of the Child Support Act 1991, which deals with the collection of payments other than child support maintenance, is not in force on the principal appointed day (1 July 1999), then it is nevertheless to be treated as if it were a part of the subject-matter of the 1991 Act and therefore a reserved matter. Section 30(2) was not in force on 1 July 1999.
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 22(3), 24(9), 25(6) and 45(1) and (6) and Schedule 4, paragraph 7; and | Section 22(3) and Schedule 4 paragraph 7 - The function of the Secretary of State of being consulted by the Lord Chancellor on regulations with respect to proceedings before Child Support Commissioners and in respect of the exercise of functions under paragraphs 1(2), 4(1) or (2)(b) of Schedule 4. Section 24(9) - The function of the Secretary of State of being consulted by the Lord Chancellor on regulations under section 24(6) or (7). Section 25(6) - The function of the Secretary of State of being consulted by the Lord Chancellor on regulations under section 25(2), (3) or (5). |
The Child Support Act 1991 (c.48) (contd.): | Section 45(1) and (6) - The functions of the Secretary of State* to make orders sending specified appeals to courts rather than appeal tribunals and of being consulted by the Lord Chancellor as to the abolition of such tribunals. |
(b) Schedule 4, paragraph 2A. | The function of the Secretary of State to pay allowances to persons attending any proceedings before a Child Support Commissioner. |
S.I. 1999/1750 also transferred non-statutory functions in relation to the provision of premises and support staff for the purposes of carrying out the functions of the Child Support Commissioners appointed under section 22 of the Child Support Act 1991.
Section F3: Occupational and Personal Pensions
Purpose and Effect
This Section reserves occupational and personal pension schemes, including public service pension schemes.
General
This Section reserves matters relating to occupational and personal pensions including public service pensions.Most of the statutory provisions concerning occupational and personal pensions are contained in the Pension Schemes Act 1993 and Part I of the Pensions Act 1995. Section 1 of the 1993 Act provides definitions of “occupational pension scheme”, “personal pension scheme” and “public service pension scheme” which are applied with modifications here. Section 126(1) makes clear that these definitions apply but as if the reference to employed earners in the definition of personal pension schemes were to any earners.
Occupational pensions are usually payable under trusts set up by an employer, or more rarely a group of employers, in respect of their employees. The trust deed sets out the rules as to how the scheme is to operate, e.g. the rates of contributions and benefits, who is liable to pay the contributions and when and to whom benefits are payable. Some employers operate a number of separate schemes, some a single scheme for all their employees, while others may provide a scheme for only certain of their employees e.g. by restricting pension arrangements to executives or salaried staff or to employees who have worked for the company for at least 2 years. The occupational pension scheme will be administered by the trustees appointed under the trust deed in accordance with the rules as to the operation of the scheme. The scheme rules must, however, comply with legislative requirements and can be overridden when a conflict arises.
Public service pension schemes are a particular category of occupational pension schemes. They are generally established under legislation and cover a wide range of public service employees. A definition of public service schemes is set out in section 1 of the Pension Schemes Act 1993.There is no statutory obligation on an employer in the United Kingdom to establish an occupational pension scheme or to participate in a scheme established for an industry in which he operates. However, if an employer or group of employers sets up such a scheme then certain statutory requirements must be met. These fall into three main headings:
requirements affecting the administration of schemes, and the duties of trustees and professional advisors;
financial management of schemes, including rules on investments, contributions and solvency, and the conditions under which schemes can contract out of the State Earnings Related Pension Scheme; and
the right of individual scheme members, including preservation of the pension rights of people leaving the scheme before pension age, the transfer of rights from one non-State pension scheme to another, the indexation of rights before and after pension age, requirements for the equal treatment of men and women and rules on the disclosure of information to scheme members.
In addition, most schemes seek to comply with conditions for tax approval, which determine whether the scheme can benefit from advantageous tax treatment, particularly in relation to income and corporation taxes.
Personal pension schemes are established by financial institutions, principally insurance companies. They are essentially contracts between individuals and pensions providers, though groupings of individual pensions may be administered together for convenience. Contributions, which may also include contributions from an employer, are paid into the scheme and invested. Personal pension schemes attract a range of tax concessions and their marketing is regulated under the Financial Services Act 1986.
Provision about pensions payable to any person is also reserved except in relation to former members (and office-holders) of the Scottish Parliament and Ministers. Also excepted from the reservation is legislative competence in relation to allowing or requiring any devolved public body to provide for pensions for its members or staff. In all these cases the provision made will be subject to the general requirements of the Pensions Acts.
The reservation of matters relating to occupational and personal pensions interacts with areas of Scots private law which are being devolved, for example trust law and family law. In particular, so far as family law is concerned, Scots law has, since 1985, required pension rights accrued during the marriage to be taken into account by a court making financial provision on divorce. The law relating to what financial provision is made on divorce and the question as to whether and to what extent pension rights are taken into account by the court will in general be a matter of Scots law within the legislative competence of the Scottish Parliament.
However, although the Scottish Parliament has legislative competence over Scottish trust law and family law, its competence will be subject to the reservation in respect of pensions. In particular, the obligations of the trustees or managers of occupational and personal pension schemes are a reserved matter.
Section 12A of the Family Law (Scotland) Act 1985 (as amended by section 167 of the Pensions Act 1995) allows the court to order the trustees or managers of a pension scheme to pay the whole or part of a lump sum due to or in respect of a member to his or her divorcing spouse when it becomes due. These are known as earmarking/attachment rules. Parts III and IV of, and Schedules 3 to 6 and part of Schedule 12 to, the Welfare Reform and Pensions Act 1999 (c.30) deal with pension sharing on divorce. They also amend the earmarking provisions in section 12A of the 1985 Act. Accordingly, although the Scottish Parliament can legislate, for example, to require pension rights accrued during the marriage to be taken into account on divorce, it could not legislate to impose obligations upon trustees or managers of occupational or personal pension schemes to earmark or make provision for pension sharing.
This effect is achieved partly by this reservation and partly by paragraph 2 of Schedule 4 to the Scotland Act, as amended by the Scotland Act 1998 (Modifications of Schedule 4) Order 2000 (S.I. 2000/1831). Paragraph 2(3),as so amended, ensures that the Scottish Parliament cannot modify the obligations of trustees or managers in relation to occupational or personal pension schemes or of persons responsible for other pension arrangements in relation to the sharing of rights under pension arrangements on divorce. See that paragraph for more details.
Parliamentary Consideration
| Stage | Date | Column |
|---|---|---|
| CC | 31-Mar-98 | 1068 |
| LC | 23-Jul-98 | 1146 |
| LC | 23-Jul-98 | 1147 |
| LC | 23-Jul-98 | 1148 |
| LR | 2-Nov-98 | 11 |
Details of Provisions
First reservation
This provides that the regulation of occupational pension schemes and personal pension schemes, including the obligations of trustees and managers of pension schemes, is a reserved matter.
“Occupational pension scheme”, “personal pension scheme” and “public service pension scheme” are defined in section 126(1) as having the meanings given by section 1 of the Pension Schemes Act 1993 but as if the reference to employed earners in the definition of personal pension schemes were to any earners.
Second reservation
This reserves provision about pensions payable to, or in respect of, any persons. This covers matters such as the payment of pensions, the manner of provision and contribution in respect of pensions. This is subject to an exception which permits the Scottish Parliament to make provision about pensions payable to or in respect of:
the persons referred to in section 81(3) of the Act. That section provides that the Parliament may make provision (whether by an ASP or a resolution) for the payment of pensions to ex- members and office-holders of the Parliament or of the Scottish Executive. The reservation should not prevent the Parliament making such provision; and
in a Scottish public authority with mixed functions or no reserved functions (as defined in Part III of Schedule 5), persons who are or have been a member of the public body, the holder of a public office or a member of the staff of the body, holder or office. This would permit the Parliament, for example, when legislating to establish a new Scottish public authority, to require it to provide pensions for its members and staff. It also enables any ministerial functions in relation to the pensions of existing Scottish public authorities to transfer to the Scottish Ministers.
Third reservation
This reserves the subject-matter of the Pensions (Increase) Act 1971, which provides for index-linking of a wide range of public service pensions.
Fourth reservation
This reserves schemes for payment of pensions which are listed in Schedule 2 to the Pensions (Increase) Act 1971. This includes pension schemes for local authorities, police, fire, teachers and the NHS. Many of the functions in relation to these schemes have, however, been executively devolved to the Scottish Ministers. Two exceptions are made from the reservation of these schemes which tie in with the exceptions mentioned under the Second Reservation above. These are for pensions schemes for MSPs and members of the Scottish Executive provided by the Parliament under section 81 and the pension schemes for employees of Scottish Enterprise and Highlands and Islands Enterprise, which are the only Scottish non-departmental public bodies whose pensions are listed in the 1971 Act.
Fifth reservation
This reservation covers, as regards classes of persons to whom public service pension schemes apply, statutory provision for compensation for loss of office or employment, for loss or diminution of emoluments, or employment being affected by constitutional changes in an overseas territory, and also covers as regards these classes of persons statutory provision for death or injury benefit. The reservation will accordingly cover the statutory compensation schemes which exist for public employees such as local government employees, teachers and NHS employees who lose their employment or suffer diminution of emoluments as a result, for instance, of redundancy or reorganisation.
Interpretation
Pensions are defined as including gratuities and allowances.
Executive Devolution
The Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 1999 (S.I. 1999/1750) provides for widespread executive devolution in the area of public service pensions, reflecting the former responsibility of the Secretary of State for Scotland for such pensions. The powers of the Secretary of State under the Superannuation Act 1972 to make regulations establishing and maintaining pension schemes for local government employees, teachers and NHS employees have been transferred to the Scottish Ministers, who thus have policy responsibility for the content of these schemes. In the case of teachers and NHS employees the consent of the Treasury to the making of the regulations is still required as before. The powers of the Secretary of State under the Fire Services Act 1947 and the Police Pensions Act 1976 to make subordinate legislation governing pensions of fire-fighters and police officers have similarly been transferred to the Scottish Ministers. The power of the Secretary of State under section 24 of the Superannuation Act 1972 to make regulations providing for compensation for local government employees, teachers, NHS employees, fire-fighters and police officers have also been transferred to the Scottish Ministers, who thus have policy responsibility for such compensation. The function under section 4 of the Small Landholders (Scotland) Act 1911 has also been transferred, as it is used in practice to provide for pensions. The function of paying remuneration to members of a Pensions Appeal Tribunal (para 2 of the Schedule to the Pensions Appeal Tribunals Act 1943) is also executively devolved.
Apart from these powers to make subordinate legislation, all executive powers of the Secretary of State under primary or subordinate legislation in respect of pensions or compensation for local government employees, teachers, NHS employees, fire-fighters or police officers and functions exercisable in respect of the Firemen’s Pension Scheme and the Police Pensions Appeal Tribunals have been transferred to the Scottish Ministers.
S.I. 1999/1750 also transferred non-statutory functions in relation to the provision of premises and support staff for the purposes of carrying out the functions of the Pensions Appeal Tribunal and of funding of payments made by a Pensions Appeal Tribunal under rules 26 to 28 of the Pensions Appeal Tribunals (Scotland) Rules 1981.
Section F4: War Pensions
Purpose and Effect
This Section reserves war pensions.
General
The current law on war pensions is contained in a mixture of statute law and a variety of Orders made under the Royal Prerogative. War pensions are payments made in respect of death or disablement of ex servicemen and a wide range of auxiliary, reserve and analogous personnel including in certain circumstances civilians. Basic entitlement to a war pension arises where disablement or death of a member of the armed forces has occurred or arisen in consequence of service at any time since the First World War. War pensions are distinct from state pensions paid from the National Insurance Fund (which are in any case reserved under Section F1 (Social Security Schemes)). Service pensions for those in the armed forces, which are analogous to public service occupational pensions, are also distinct from war pensions, but these are reserved in any case under Section F3 (Occupational and Personal Pensions). War pensions are paid by the Department of Social Security.
Schemes for the payment of war pensions also contain powers to make a variety of other payments. For example, the Secretary of State has a discretionary power under Article 26 of the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 1983 to meet necessary medical expenses arising from war disablement that are not otherwise provided for under UK legislation.
The reservation includes the provision and administration of such pensions, and the establishment and regulation of public bodies, including tribunals and advisory and executive bodies, with functions in connection with these matters. Thus the establishment and functions of the Pensions Appeal Tribunal, the Central Advisory Committee on War Pensions and the local War Pensions Committees are all reserved.
Details of Provisions
Reservation
The first part of the reservation reserves schemes for the payment of pensions, as defined, for or in respect of persons who have a disablement or who have died as a consequence of service as members of the armed forces of the Crown.
The second part of the reservation reserves the subject-matter of a number of particular schemes made under the following enactments which enable provision to be made, which is analogous to war pensions, in respect of persons other than ex-servicemen. These are:
the Personal Injuries (Emergency Provisions) Act 1939. The 1939 Act makes provision for a scheme for making payments in respect of certain personal injuries to civil defence volunteers and civilians during World War II;
the Pensions (Navy, Army, Air Force and Mercantile Marine) Act 1939, sections 3 to 5 and 7. Section 3 makes provision for the payment of awards to or in respect of mariners in British ships who have suffered war related injury or detention. Section 4 makes similar provision for pilots, crews of pilot boats, lighthouses etc., section 5 for certain persons serving on naval ships and section 7 makes general provision for these schemes; and
the Polish Resettlement Act 1947. The 1947 Act makes provision for war pensions and other payments and assistance to be given to Polish naval and armed forces under British command during the Second World War and Polish resettlement forces and their dependants.
Illustrations of reservation
The provision of pensions under the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 1983 is given as an illustration of the scope of the reservation. The 1983 Order provides the power for payment of a range of pensions, grants, allowances, supplements and gratuities in respect of persons disabled or who have died through service in HM Forces.
Interpretation
For the purposes of this Section, ‘pensions’ include grants, allowances, supplements and gratuities. This encompasses all of the various means by which compensation in respect of war injuries is given.
Section G1: Architects
Purpose and Effect
This Section reserves the regulation of the profession of architect.
General
This is one of several reservations in Head G which covers the regulation of certain professions.
Details of Provisions
This reserves regulation of the profession of architect. The matters reserved include professional qualifications, eligibility to practice as an architect, and control over the professional competence and conduct of architects.
Section G2: Health Professions
Purpose and Effect
This Section reserves the regulation of the health professions.
Parliamentary Consideration
| Stage | Date | Column |
|---|---|---|
| LR | 2-Nov-98 | 11 |
| CC | 31-Mar-98 | 1080 |
Details of Provisions
Reservation
This reserves the regulation of the health professions. This includes professional qualifications, eligibility to practice and control over standards of professional competence and conduct. This does not reserve matters such as the pay and conditions of service of the health professions within the National Health Service in Scotland or their deployment and management.
Health professions are defined for the purposes of this reservation in the interpretation paragraph as meaning the professions regulated by various enactments. The professions regulated by the specified enactments include doctors, dentists, dental auxiliaries, opticians, pharmacists, nurses, midwives, health visitors, chiropodists, dieticians, physiotherapists, medical laboratory scientific officers, orthoptists, prosthetists and orthotists, arts therapists, occupational therapists, radiographers, osteopaths, chiropractors and veterinary surgeons.
Exceptions
There is excepted from the reservation, the subject matter of:
section 21 of the National Health Service (Scotland) Act 1978. This enables the Scottish Parliament to legislate about the matter of what vocational training and experience is required to be possessed by doctors before they can provide general medical services in the NHS. This is a matter which is regulated by section 21 This exception is in line with the overall devolution of Health Service matters; and
section 25 of that Act. Similarly, this section gives the Scottish Parliament legislative competence to regulate the provision of general dental services for the NHS so far as that relates to vocational training and disciplinary proceedings. This is part of the subject-matter of section 25.
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 Medical Act 1983 (c.54), Schedule 4, paragraph 7. | The function of the Secretary of State of making rules as to the functions of assessors appointed to advise the Professional Conduct Committee, the Health Committee and the Preliminary Proceedings Committee. |
(a) section 19(5); and | The function of the Secretary of State* and the Lord Chancellor to approve, by order, rules under section 10 which apply to proceedings in Scotland. |
(b) Schedule 2, paragraph 4. | The function of the Secretary of State and the Lord Chancellor to make, by order, provision with regard to the functions of assessors relative to proceedings in Scotland. |
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 Nurses, Midwives and Health Visitors Act 1997 (c.24). Sections 5(2), (3), (5), (6), (7), (8) and (9), 6(1)(e), 17(1) and (3), 18(1) and (6) and 24(4). | All Ministerial functions under the Nurses, Midwives and Health Visitors Act 1997 in relation to the National Board for Nursing, Midwifery and Health Visiting for Scotland are transferred. The functions concerned are:-
Audit arrangements were also amended by article 8 of S.I. 2000/1563 |
Advice to The Queen
Special arrangements for giving advice to The Queen were described in a Prime Ministerial answer on 30 June 1999 (WA col 215) and an associated paper deposited in the House of Commons Library.
Under the Professions Supplementary to Medicine Act 1960, the Privy Council makes a determination approving courses and qualifications for state registration purposes in the fields of professions supplementary to medicine. By convention the Secretary of State for Scotland was one of the three Privy Counsellors required by the Act to approve courses run by Scottish institutions. The role of the Secretary of State for Scotland in relation to such courses has passed to the First Minister.
The Secretary of State for Scotland also had a role in relation to nominating Privy Council appointments of Scottish representatives to various statutory bodies relating to the health professions, such as the General Medical Council, the General Dental Council and the General Optical Council. The First Minister has taken over the Secretary of State for Scotland’s role in nominating Privy Council appointments of Scottish representatives to these bodies. Advice and nominations for the other Privy Council appointments to these bodies comes from the Secretary of State for Health. Administrative arrangements have been put in place to provide for consultation between the Scottish Ministers and the Secretary of State for Health before either party puts forward nominations to the Privy Council.
Section G3: Auditors
Purpose and Effect
This Section reserves the regulation of the profession of auditor.
Details of Provisions
The reservation covers regulation of the profession of auditor. The reserved matter includes in particular professional qualifications, eligibility to practice and control over standards of professional competence and conduct.
Section H1: Employment and Industrial Relations
Purpose and Effect
This Section reserves employment rights and duties and industrial relations, except for the setting of wages for agricultural workers insofar as this is dealt with by the Agricultural Wages (Scotland) Act 1949.
Parliamentary Consideration
| Stage | Date | Column |
|---|---|---|
| CC | 31-Mar-98 | 1082 |
| LC | 23-Jul-98 | 1070 |
| LC | 27-Jul-98 | 1277 |
Details of Provisions
Reservation
What are reserved are employment rights and duties and industrial relations, including the subject-matter of the following:
the Employers’ Liability (Compulsory Insurance) Act 1969 which requires employers to insure against liability for injury or disease sustained by employees and arising out of and in the course of their employment;
the Employment Agencies Act 1973 which regulates employment agencies and employment businesses;
the Pneumoconiosis etc. (Workers’ Compensation) Act 1979 which makes provision for lump sum payments to be paid by the State to or in respect of persons disabled by industrial lung diseases caused by various kinds of noxious dust at work;
the Transfer of Undertaking (Protection of Employment) Regulations 1981 which provide for the protection of employees’ rights on the transfer of an undertaking, such as the sale or disposal of a business;
the Trade Union and Labour Relations (Consolidation) Act 1992. This Act covers a wide range of matters to do with trade unions and labour relations including such matters as employers’ associations, collective bargaining, procedures for handling redundancies, industrial action, and the role of ACAS, the Certification Officer, the Central Arbitration Committee and the Commissioner of Rights of Trade Union members;
the Industrial Tribunals Act 1996(2) which is about industrial tribunals and the Employment Appeal Tribunal;
the Employment Rights Act 1996. This Act consolidates enactments about employment rights and covers matters such as protection of wages, suspension from work, rights to time off work and to notice, maternity rights, unfair dismissal, redundancy, and employees’ rights on the insolvency of an employer; and
the National Minimum Wage Act 1998. This Act provides for the setting of minimum wages in almost all sectors of employment.
Exception
The subject-matter of the Agricultural Wages (Scotland) Act 1949 is excepted from the reservation. This Act establishes the Scottish Agricultural Wages Board which has the power to fix minimum wages, holiday entitlements and other terms and conditions of employment for agricultural workers. Apart from this exception about the wages of agricultural workers, matters relating to wages will fall within the reservation. So, for example, the Scottish Parliament is not able to legislate to set a national minimum wage.
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 Criminal Justice and Public Order Act 1994 (c.33), section 128. | The function of the Secretary of State of making regulations for the establishment, maintenance and operation of procedures for the determination of rates of pay and allowances to prison officers in Scotland and such other terms and conditions of employment as the Secretary of State considers fall to be determined in association with the determination of rates of pay and allowances. |
The Employment Tribunals Act 1996 (c.17), section 3. | The function of the Secretary of State* to provide, by order, that certain proceedings may be brought before an employment tribunal. |
The Employment Rights Act 1996 (c.18), section 63A(1)(c) and (2) | The functions of the Secretary of State to prescribe a standard of achievement and specify qualification awarding bodies for the purpose of an employee’s who ordinarily work in Scotland. |
Section H2: Health and Safety
Purpose and Effect
This Section reserves health and safety at work. It was largely replaced by article 6 of the Scotland Act 1998 (Modifications of Schedules 4 and 5) Order 1999 (S.I. 1999/1749).
General
This Section is part of Head H which reserves a number of matters relating to employment.
Details of Provisions
Reservation
The reserved matters are:
the subject-matter of Part I of the Health & Safety at Work etc. Act 1974. That Part makes provision for the general purposes of securing the health, safety and welfare of persons at work, protecting persons other than persons at work against risks to health or safety arising out of or in connection with the activities of persons at work, and controlling the keeping and use of explosive or highly flammable or otherwise dangerous substances, and generally preventing the lawful acquisition, possession and use of such substances; and
the Health and Safety Commission (HSC), the Health and Safety Executive (HSE) and the Employment Medical Advisory Service (EMAS). By virtue of paragraph 3 of Part III of Schedule 5, this has the effect of reserving the constitutions of these bodies, the conferral or removal of their functions, and the conferral or removal of any functions specifically exercisable in relation to them. HSC and HSE are primarily concerned with matters which are reserved as part of the subject-matter of Part I of the 1974 Act. However, they have certain functions which are exercisable in relation to matters which are not otherwise reserved. For example, the Commission has powers to direct investigations into fires. The reservation of the Commission by name has the effect of preventing the Scottish Parliament from modifying that function, but not from legislating about general fire safety. EMAS is established by Part II of the 1974 Act. It has functions of advising Ministers, the HSC, employers and employees on health in relation to employment. The effect of its reservation by name is that the Scottish Parliament is not able to legislate about EMAS’s functions, but may, for example, legislate about promoting health in the work place.
Interpretation
The interpretation provisions provide that:
the expressions “work” and “at work” in Part I of the 1974 Act are to be taken to have the meanings they have on the principal appointed day (1 July 1999). This is consistent with paragraph 5(1) of Part III of Schedule 5 which provides that references to the subject matter of an enactment are to be read as references to the subject matter of that enactment as it has effect on the principal appointed day. However the subject-matter of Part I of the 1974 Act is not fixed because it includes a power for the Secretary of State to extend the definition of “work” for the purposes of health and safety regulations. This interpretation provision ensures that this power cannot be used to extend the scope of the reservation beyond that which it had on the principal appointed day; and
the subject matter of Part I of the 1974 Act includes certain specified aspects of fire safety but not any other aspects of fire safety. Those specified aspects are those which are, in practice, regulated under health and safety legislation.
Agency arrangements
Article 6(2) of S.I. 1999/1749 provides for certain references in section 13 of the 1974 Act to Ministers to include a reference to the Scottish Ministers. This allows the HSC and the Scottish Ministers to make arrangements for the HSC to perform functions on behalf of the Scottish Ministers (provided that the Secretary of State considers that they can appropriately be performed by the HSC). In that section, “functions” does not include the making of regulations or legislative instruments.
Section H3: Job Search and Support
Purpose and Effect
This Section reserves the provision of advice and support to assist people to select, obtain and retain employment or to assist people to obtain suitable employees, including such assistance for disabled persons. Excepted from the reservation is legislative competence in respect of training for employment. Matters relating to careers services are also excepted from the reservation.
General
The intention behind this reservation is to reserve the matters for which the Employment Service is currently responsible under the Disabled Persons (Employment) Act 1944 and the Employment and Training Act 1973.
Section 56(1)(g) provides for certain devolved functions under the 1973 Act to be shared powers so that the UK Ministers can continue after 1 July 1999 to provide, through the Employment Service, the kind of programmes of employment training assistance being provided by the Employment Service in Scotland prior to 1 July 1999.
Scottish Enterprise (SE) and Highlands and Islands Enterprise (HIE) also have duties to assist people seeking work to obtain training for work which to some extent run parallel with the activities of the Employment Service. In order to allow the Scottish Parliament to have legislative competence over these activities of SE and HIE, and to accord with the general devolution of matters relating to economic development and training, training for employment is excepted from the reservation of the Employment and Training Act 1973.
The Scottish Parliament is able to legislate about careers guidance services. Provision for these services is made in sections 8-10A of the Employment and Training Act 1973, as inserted by sections 45 and 46 of the Trade Union Reform and Employment Rights Act 1993. These sections confer a duty on the Secretary of State to secure the provision of careers services for school and certain college students and a power to arrange provision of such services for other persons. The duty also extends to assisting such persons ceasing to undergo education to obtain appropriate employment, training or additional education. That duty, so far as extends to Scotland, has transferred to the Scottish Ministers by virtue of section 53 of the Act.
Parliamentary Consideration
| Stage | Date | Column |
|---|---|---|
| CC | 31-Mar-98 | 1082 |
| LR | 3-Nov-98 | 201 |
Details of Provisions
This Section reserves the subject matter of:
the Disabled Persons (Employment) Act 1944. Under this Act the Secretary of State for Education and Employment through the Employment Service makes arrangements to facilitate disabled people to obtain employment or work on their own account and to train for such employment or work; and
the Employment and Training Act 1973, except so far as relating to training for employment. The main provisions of this Act enable the Secretary of State to make arrangements for the purpose of assisting persons to select, obtain training for, obtain and retain employment or for the purposes of assisting persons to obtain suitable employees. The subject-matter of the Act so far as relating to training for employment is not reserved.
Exceptions
There is also excepted from the reservation, the subject-matter of:
sections 8 to 10A of the Employment and Training Act 1973. These sections concern the provision of careers guidance services, as indicated above; and
sections 2(3)(c) and 12 of Enterprise and New Towns (Scotland) Act 1990. They deal with the provision of assistance by the provision of Scottish Enterprise and Highlands and Islands Enterprise to persons seeking to establish themselves as self-employed persons. The net result of this part of the exception is that it ensures that matters relating to the activities of Scottish Enterprise and Highlands and Islands Enterprise to assist people to obtain training for employment and also assist people to establish their own businesses, are within the competence of the Scottish Parliament.
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 Employment and Training Act 1973 (c.50), section 2(3A). | The function of the Secretary of State to authorise or direct Scottish Enterprise or Highlands and Islands Enterprise to act on his behalf in making arrangements under section 2. |
The Enterprise and New Towns (Scotland) Act 1990 (c.35), section 14A. | The functions of a Minister of the Crown to confer powers or impose duties on Scottish Enterprise and Highlands and Islands Enterprise to do anything in connection with unemployment, training for employment or unemployment. |
Section 60 of the Welfare Reform and Pensions Act 1999 contains provisions for implementing Employment Zones. Prototype Employment Zones have been operating under earlier legislation. The new powers in the Act enable schemes to be set up in designated areas where special benefit rules can apply. In order to help participants back to work, the schemes allow them to anticipate funding for up to 6 months' worth of spending on training and jobsearch, combined with money equivalent to the payments they would normally receive from the jobseeker’s allowance. The powers in the Act also enable the Secretary of State to provide a wider range of support for activities within the Zones which help people to get and keep work, including support for unemployed people who are seeking to become self-employed. Section 60(5)(c)(i) enables the Secretary of State to make payments to persons providing facilities which are designed to assist claimants for jobseeker’s allowance to obtain sustainable employment. S.I. 2000/1563 enables the Scottish Ministers to make payments under section 60(5)(c)(i), if they wish to do so, in so far as they consider that the facilities are capable of supporting training of persons for employment. If that criterion is satisfied, the Scottish Ministers will be able to fund any eligible activity within an employment zone in Scotland. This function is to be exercisable by the Scottish Ministers concurrently with the Secretary of State for Education and Employment. |
Section J1: Abortion
Purpose and Effect
This Section reserves matters relating to abortion.
General
In Scotland the law relating to abortion, both civil and criminal, is mostly common law, with the exception of the Abortion Act 1967 (as amended). At common law in Scotland it is a crime to procure or attempt to procure an abortion. Certain exceptions or defences were provided by the common law but these are now superseded by the 1967 Act which sets out the circumstances in which it is lawful, for the purposes of the law relating to abortion, to carry out an abortion. The 1967 Act introduces in effect a similar regime for the whole of Great Britain.
The 1967 Act also makes provision for the approval of places where terminations of pregnancies may lawfully be carried out and for the making of regulations to require certification and notification of doctors opinions before a termination is carried out.
Attempts have been made to seek civil law remedies in Scotland to prevent abortions being carried out under the 1967 Act but these were unsuccessful.
Parliamentary Consideration
| Stage | Date | Column |
|---|---|---|
| CC | 31-Mar-98 | 1093 |
| LC | 27-Jul-98 | 1284 |
| LR | 3-Nov-98 | 202 |
Details of Provisions
Legislative competence relating to abortion is reserved. This means that the Scottish Parliament cannot make statutory provisions to alter the criminal law relating to abortion in Scotland or provision in the Abortion Act 1967, such as to alter the circumstances in which an abortion may be lawfully carried out. Subject to what is said below, it also could not legislate to modify any other provision, whether of the civil or criminal law, which relates to the matter of abortion.
The effect of sections 29(4) and 35 of the Act is that, while the Parliament could legislate to modify a provision of Scots private law (concerning, say, the date of acquisition of human personality, and its consequences, for the purposes of Scots private law) which affected abortion, it could only do so in order to achieve consistency in the application of Scots private law in relation to devolved and reserved matters; and if such a provision were adversely to affect the operation of the law as it applies to abortion the Secretary of State would have the power to intervene.
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 Abortion Act 1967 (c.87), sections 1(3) and 2. | Section 1(3) - The function of the Secretary of State to approve places where a termination of pregnancy may be carried out. Section 2(1) - The function of the Secretary of State to make regulations to prescribe the arrangements for certifying of medical opinions; the related confidentiality provisions. Section 2(2) - a requirement to notify terminations to the Chief Medical Officer in Scotland. |
Section J2: Xenotransplantation
Purpose and Effect
This Section reserves matters relating to xenotransplantation.
General
Xenotransplantation is the transplantation of viable organs or other tissues (e.g. bone or cells) from animals to humans, or the use of viable animal tissue extra-corporeally, perhaps as part of a medical device.
There is currently no legislation which specifically regulates xenotransplantation, but there are other statutory provisions which touch upon it. For example, the welfare of animals which have been genetically modified for xenotransplantation purposes is covered by the Animals (Scientific Procedures) Act 1986. The subject-matter of that Act, which regulates the use of animals for experimental or scientific purposes (including vivisection), is reserved by Section B7. A non‑statutory body, the UK Xenotransplantation Interim Regulatory Authority (UKXIRA) exists to monitor and regulate developments in the xenotransplantation field.
The Scottish Parliament has legislative competence over the regulation of other types of transplantation, notably the removal and therapeutic use of human organs and tissues for the purposes of transplantation into other humans, and in dealing in such organs and tissues.
Parliamentary Consideration
| Stage | Date | Column |
|---|---|---|
| CC | 31-Mar-98 | 1093 |
| LC | 27-Jul-98 | 1284 |
Details of Provisions
The whole area of xenotransplantation is reserved including the regulation of any activities connected with xenotransplantation.
Section J3: Embryology, Surrogacy and Genetics
Purpose and Effect
This Section reserves surrogacy arrangements, human fertilisation and embryology and genetics.
General
Certain other matters in the health field which raise major ethical issues and/or which require expertise to be pooled at a United Kingdom level for them to be satisfactorily regulated (abortion, xenotransplantation) are also reserved. With the exception of the matters which are reserved in this Head, the Scottish Parliament has legislative competence over matters of sexual behaviour, whether as a health or social issue, involving civil or criminal law.
Parliamentary Consideration
| Stage | Date | Column |
|---|---|---|
| CC | 31-Mar-98 | 1093 |
Details of Provisions
First reservation
This reserves surrogacy arrangements, as defined by the Surrogacy Arrangements Act 1985, including the subject-matter of the 1985 Act.
The 1985 Act defines surrogacy arrangements by reference to a ‘surrogate mother’ who is a woman who carries a child in pursuance of an arrangement made before she began to carry the child and made with a view to that child being handed over to, and the parental rights being exercised by, another person. The arrangement is a surrogacy arrangement if, were a woman to whom the arrangement relates to carry a child in pursuance of it, she would be a surrogate mother.
The Act makes provision prohibiting third parties from initiating or negotiating any surrogacy arrangements on a commercial basis, receiving any payments from the surrogate mother or the person for whom she is carrying the child and advertising in connection with surrogacy arrangements.
The Act does not however deal with the legality under the common law of surrogacy arrangements. It is not an offence in the criminal law of Scotland to enter into a surrogacy arrangement and it is not an offence under the common law or the 1985 Act for persons to enter into a private arrangement. Section 36(1) of the Human Fertilisation and Embryology Act 1990 amended the 1985 Act to the effect that no surrogacy arrangement is enforceable and the 1990 Act also makes provision as to the parentage of children born as the result of surrogacy arrangements.
The Scottish Parliament is not able to legislate in respect of any matter relating to surrogacy arrangements within the meaning of the 1985 Act, including the legality of surrogacy arrangements for the purposes of the criminal law or the enforceability of any such arrangements for the purposes of the civil law nor will it be able to amend the provisions of the 1985 Act, except as permitted by paragraph 3 of Schedule 4.
Second reservation
This reserves the subject-matter of the Human Fertilisation and Embryology Act 1990 which deals principally with:
the regulation of the creation, keeping or using of human embryos or gametes outside the body;
the regulation or prohibition of any activities involving the creation, keeping or using of human embryos or gametes outside the body, including research and the provision of infertility treatment services; and
the definition of the parents of any child being or having been carried by a woman as the result of the placing in her of an embryo or of eggs and sperm or her artificial insemination.
The Act also established the Human Fertilisation and Embryology Authority which regulates research or treatment which involves the creation, keeping and using of human embryos outside the body, or the storage or donation of human eggs and sperm.
The 1990 Act also makes provision regarding the parentage of children born as a result of surrogacy arrangements and confers a power on the Courts to make an Order providing for a child born as a result of a surrogacy arrangement to be treated in law as the child of the couple who commissioned the surrogate mother to carry the child. Whilst parentage is usually a matter for Scots private law, the Scottish Parliament is not able to make provision amending section 30 in relation to surrogacy arrangements or the other matters covered by the 1990 Act.
Third reservation
All matters relating to human genetics not already reserved by the reservation of the subject-matter of the Human Fertilisation and Embryology Act 1990 will be reserved. This includes research, testing or treatment concerning the human genome or genetic disorders including gene therapy research and all matters relating to the social, ethical and economic consequences of human genetics, such as providing genetic tests for insurance or employment purposes or patenting genetic material.
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 Human Fertilisation and Embryology Act 1990 (c.37), section 30(9). | The function of the Secretary of State to make regulations under section 30(9), as read with section 45 to provide (a) for any provision of the enactments about adoption to have effect with or without modifications in relation to orders under section 30 and applications for such orders as it has effect in relation to adoption, and applications for adoption orders, and (b) for references to adoption in any enactment to be read in the way specified in section 30(9). These orders are considered to have effect similar to adoption orders. |
Section J4: Medicines and Poisons
Purpose and Effect
This Section reserves legislative competence over matters relating to the regulation and control of medicines (for both humans and animals), medicinal products, poisons and biological substances and the regulation of prices of medicines supplied to the National Health Service.
General
The reservation of the control and safety of medicines is intended to cover medicines for both human and animal use.
Parliamentary Consideration
| Stage | Date | Column |
|---|---|---|
| CC | 31-Mar-98 | 1113 |
Details of Provisions
First reservation
This reserves the subject-matter of the following enactments:
The Medicines Act 1968. This regulates the manufacture, distribution and importation of medicines for human use, medicines for administration to animals and medicated animal feeding stuffs. It establishes the Medicines Commission and provides for committees to be established to assist Ministers; those established include the Committee on Safety of Medicines and the Veterinary Products Committee. The Commission and the Committees advise Ministers on matters under the Act and on other matters relating to medicinal products. The 1968 Act also provides for the regulation of the sale and supply of medicinal products, the registration of pharmacies in the community and the conduct of these businesses, the advertising and promotion of sales of medicinal products, establishment of the British Pharmacopoeia and other compendia, and powers of enforcement.
The Medicines for Human Use (Marketing Authorisations etc.) Regulations 1994 and the Marketing Authorisations for Veterinary Medicinal Products Regulations 1994. These regulations govern the licensing of the marketing of medicines for human and veterinary use respectively.
The Poisons Act 1972. This Act is concerned with the regulation of the sale and storage of non-medicinal poisons within Great Britain. It makes provision for the categorisation of poisons and determination of the persons (either pharmacists only or pharmacists and others on a local authority list) who may sell different categories of non-medicinal poisons. The Secretary of State determines how a poison is categorised for the purposes of the Act, acting on the recommendation of the Poisons Board. The 1972 Act also provides for inspection and enforcement to be carried out by the Pharmaceutical Society of Great Britain.
The Biological Standards Act 1975. This Act provides for the establishment of the National Biological Standards Board whose main duties are to set standards for and to test the purity and potency of biological substances such as vaccines, antibodies, hormones and blood products.
Second reservation
This reserves the regulation of prices charged for medical supplies or medicinal products supplied for the purposes of the National Health Service in Scotland, which is the health service established under section 1 of the National Health Service (Scotland) Act 1978.
The existing statutory powers to control the maximum prices to be charged for medical supplies and medicinal products required by the National Health Service in the National Health Service Act 1977 (for England and Wales) and the National Health Service (Scotland) Act 1978 (for Scotland) have never been used. Instead there is a voluntary agreement made with the pharmaceutical industry known as the Pharmaceutical Price Regulation Scheme (the PPRS) which is wider than the statutory powers. The reservation of this matter is not therefore restricted to the subject-matter of the existing statutory provisions but is intended to cover the matter as regulated in the PPRS.
Under section 27 of the 1978 Act the Secretary of State for Scotland has a power to make regulations regarding the provision of pharmaceutical services. As part of those regulations he sets a drug tariff which is used for the purposes of reimbursing pharmacists for the cost of supplying medicines. The reservation of the regulation of prices charged for medicines supplied to the Health Service does not cover the regulation of provision of pharmaceutical services (including the drug tariff) except in respect of the price of supplying medicines by way of providing those services.
“Medical supplies” and “medicinal products” are defined by reference to section 49(3) of the National Health Service (Scotland) 1978 and section 130(1) of the Medicines Act 1968 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 Pharmacy Act 1954 (c.61), Schedule 1C, paragraph 3(4)(b). | The function of the Secretary of State* to approve appointment of persons as chairman or deputy chairman of panel of persons eligible for membership of appeals tribunals. |
The Medicines Act 1968 (c.67), section 109. | Section 109(1) and (2) - The function of the Secretary of State to enforce in Scotland, or to secure the enforcement in Scotland of, the provisions of the Act and of any regulation or orders made under it. Section 109(3) - The function of the Secretary of State to make regulations providing for the Pharmaceutical Society of Great Britain to have a power to enforce any regulations made under Section 66 of the Act relating to medicinal products. |
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 Medicines Act 1968 (c.67), sections 2(2) and (4) and 4(5). | Section 2(2) and (4) - the function of appointing the members and chairman of the Medicines Commission. Section 4(5) - the function of appointing members of committees. |
Residual Functions
The functions of the Secretary of State for Scotland (as “Secretary of State concerned with health in Scotland” or as “Secretary of State concerned with agriculture in Scotland”) under the Medicines Act 1968, the Medicines Act 1971, the Marketing Authorisations for Veterinary Medicinal Products Regulations 1994 and the Registration of Homeopathic Veterinary Medicinal Products Regulations 1997, and the Poisons Act 1972 were transferred to the Secretary of State for Health, the Secretary of State for the Home Department and the Minister for Agriculture, Fisheries and Food, as appropriate, by the Transfer of Functions (Medicines and Poisons) Order 1999 (S.I. 1999/3142).
Section J5: Welfare Foods
Purpose and Effect
This Section reserves schemes for the distribution of welfare foods made under regulations under section 13 of the Social Security Act 1988.
General
Schemes for the distribution of welfare foods made by regulations under section 13 of the
Social Security Act 1988 provide nutritional supplements for expectant and breast-feeding mothers and children under the age of five. This is done by providing, free or at a reduced rate, liquid cow’s milk, dried milk, vitamin tablets and vitamin drops. Eligibility for this part of the scheme is dependent upon entitlement to certain income-related benefits and so is closely linked to social security schemes, which are reserved under Section F1. There is also provision for children under the age of 5 years and in day care for two hours or more per day to receive, free of charge, liquid cow’s milk or dried milk, and other children aged 5 and over but under the age of 16 who are unable because of a physical or mental disability to attend school, to receive liquid cow’s milk.
Parliamentary Consideration
| Stage | Date | Column |
|---|---|---|
| LC | 27-Jul-98 | 1284 |
| LR | 3-Nov-98 | 202 |
Details of Provisions
This reservation ensures that the Scottish Parliament has no legislative competence to make provision about the matters which are or could be covered by welfare food schemes as described above. The 1988 Act amends the law relating to social security in a number of ways; section 13 is only concerned with making provision for welfare food schemes.
Executive Devolution
The Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 1999 (S.I. 1999/1750) transferred non-statutory functions in relation to the welfare foods scheme.
Agency Arrangements
The Scotland Act 1998 (Agency Arrangements) Order 1999 (S.I. 1999/1512) specified certain functions exercisable by the Scottish Ministers in relation to the welfare foods scheme for the purpose of section 93 of the Scotland Act.
Section K1: Broadcasting
Purpose and Effect
This Section reserves broadcasting. All regulatory responsibilities relating to television and radio broadcasting will be reserved including the functions of the regulatory bodies. The functions and regulation of the BBC will also be a reserved matter.
Parliamentary Consideration
| Stage | Date | Column |
|---|---|---|
| CC | 4-Mar-98 | 1095 |
| CC | 4-Mar-98 | 1096 |
| LC | 27-Jul-98 | 1308 |
| LR | 3-Nov-98 | 234 |
Details of Provisions
Reservation
The subject-matter of the Broadcasting Acts 1990 and 1996 and the BBC, are reserved matters.
The regulatory framework for broadcasting is an important aspect of the single market in the UK. The management of the airwaves and of competition in the independent television sector will therefore continue to be carried out on a UK-wide basis.
The Broadcasting Acts 1990 and 1996 broadly cover:
the Independent Television Commission and the Radio Authority, the regulation of the provision of television and sound programme services and related services, including provision by means of broadcasting, telecommunications systems, satellite or any other means, the issue of licences to independent television companies and control of the activities of licence holders;
the control of material in television and sound programmes and related services; and
the regulation of standards in the provision of such services including the functions of the Broadcasting Standards Commission.
The BBC operates under its Royal Charter, and is also subject to some of the provisions of the Broadcasting Acts.
The reservation does not prevent the Scottish Parliament from discussing broadcasting in Scotland. It is able (without any special provision in the Act) to invite the BBC, the ITC and other broadcasting bodies to attend hearings of its committees and to discuss broadcasting priorities but it cannot require them to attend or give evidence.
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 Broadcasting Act 1990 (c.42), section 183. | The function of the Secretary of State to pay to the Independent Television Commission for each financial year such amount as he may, with the approval of the Treasury, determine to be appropriate for the purposes of the section which is the financing of television and sound programmes in Gaelic out of the Gaelic Broadcasting Fund. |
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 Broadcasting Act 1990 (c.42), Schedule 1, paragraph 15(1), Schedule 8, paragraph 15(1) and Schedule 19, paragraph 12(3). | Schedule 1, paragraph 15(1) - The functions of the Secretary of State: (a) of receiving from the Independent Television Commission a general report of their proceedings during each financial year; and (b) of laying copies of each such report before each House of Parliament. Schedule 8, paragraph 15(1) - The functions of the Secretary of State: (a) of receiving from the Radio Authority a general report of their proceedings during each financial year; and (b) of laying copies of each such report before each House of Parliament. Schedule 19, paragraph 12(3) The functions of the Secretary of State of receiving the Gaelic Television Committee’s annual report and of laying a copy of the report before Parliament. |
The Broadcasting Act 1996 (c.55), section 125(1). | The functions of the Secretary of State: (a) of receiving from the Broadcasting Standards Commission a report of their proceedings during each financial year; and (b) of laying copies of each such report before each House of Parliament. |
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 1(2)(b), as read with paragraph 2(3) of Schedule 1; | Section 1(2)(b), as read with paragraph 2(3) of Schedule 1 - the function of the Secretary of State of appointing a member of the Independent Television Commission suited to make the interest of Scotland his special care. |
(b) section 83(2)(b), as read with paragraph 2(1A) of Schedule 8. | Section 83(2)(b) as read with paragraph 2(1A) of Schedule 8 - The function of the Secretary of State, in appointing members of the Radio Authority under section 83, to appoint a member who appears to him to be suited to make the interests of Scotland his special care. |
The Broadcasting Act 1996 (c.55), section 106(2)(c), as read with paragraph 3(1A) of Schedule 3. | Section 106(2)(c), as read with paragraph 3(1A) of Schedule 3 - the function of the Secretary of State of appointing members of the Broadcasting Standards Commission, but only so far as relating to appointment of a member suited to make the interests of Scotland his special care. |
Advice to The Queen
Special arrangements for giving advice to The Queen were described in a written answer by the Prime Minister on 30 June 1999 (WA col 215) and an associated paper deposited in the House of Commons Library.
The National Governor for Scotland of the BBC is appointed under the provisions of the Royal Charter. The Secretary of State for Culture, Media and Sport will consult the Scottish Ministers about the appointment of the National Governor for Scotland
Section K2: Public Lending Right
Purpose and Effect
This Section reserves the public lending right.
General
The Public Lending Right Scheme is a scheme for payments to authors in respect of copies of their books which are lent out to the public by public libraries. Annual payments to authors are based on loans of their books in a sample of UK library authorities. The scheme and the central fund provided by Parliament to pay for it are administered by a Registrar of Public Lending Right.
Details of Provisions
Reservation
Legislative competence in regard to the public lending right is reserved by reference to the subject-matter of the Public Lending Right Act 1979. The 1979 Act establishes the framework for the scheme, the details of which are set out in rules made under sections 1 and 3 of the Act, and provides for the appointment of the Registrar of Public Lending Right.
Section K3: Government Indemnity Scheme
Purpose and Effect
This Section reserves the Government Scheme under which libraries, museums, art galleries and other bodies or person may be indemnified in respect of loss of or damage to works of art lent to other institutions, bodies or persons.
General
In order to encourage public access to works of art and other objects on loan, the Government encourages loans of works to museums, galleries, libraries etc. by relieving them of the cost of commercial insurance by undertaking to indemnify the lender for the loss of, or damage to, the object loaned. This is known as the “Government Indemnity Scheme”, which is established under powers conferred on Ministers by the National Heritage Act 1980.
Details of Provisions
Legislative competence in respect of the subject-matter of sections 16 and 16A of the National Heritage Act 1980 is reserved. Section 16 sets out the conditions under which Ministers may undertake to give indemnities and section 16A requires them to make reports to Parliament.
Section K4: Property Accepted in Satisfaction of Tax
Purpose and Effect
This Section reserves the acceptance of property and works of art in satisfaction of tax.
General
This Section concerns the ability of the Commissioners of Inland Revenue under the Inheritance Tax Act 1984 to accept land, books, works of art and certain other items in satisfaction of liability to inheritance tax or interest thereon. That matter is reserved by the general reservation of fiscal matters, with certain exceptions, by Section A1. The present Section reserves legislative competence in respect of the ability of Ministers to direct how the property accepted by the Inland Revenue should be disposed of, and to pay the Commissioners sums equal to the amounts of tax concerned.
Details of Provisions
Reservation
The subject-matter of the following is reserved:
section 8 of the National Heritage Act 1980, which covers Ministerial powers to pay the Commissioners of the Inland Revenue; and
section 9 of the same Act, which empowers Ministers to direct how the property accepted by the Inland Revenue should be disposed of.
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 National Heritage Act 1980 (c.17), section 9(1) to (6), as read with section 9(8) and (9)(a), (b) and (c), and sections 16 and 16A. | Section 9: (a) The functions conferred on Secretary of State to direct the disposal of property accepted in satisfaction of tax, so far as concerns certain property in which there is a Scottish interest. (b) The function of the Secretary of State to lay before Parliament an annual statement giving particulars of any disposal or transfer made in pursuance of directions given under this section., so far as concerns any disposal or transfer of property in which there is a Scottish interest. Section 16 - The functions of the Secretary of State (as “Minister” under the Act) to undertake to indemnify any institution, body or person for the loss of, or damage to, any object belonging to that institution, body or person while on loan to any other institution, body or person in Scotland falling within section 16(2). (Note: the Secretary of State is the sole remaining Minister for the purposes of the 1980 Act by virtue of a Transfer of Functions Order - S.I. 1992/1311). Section 16A - The function of the Secretary of State to lay before Parliament a report under section 16A(1) on undertakings given by him (and on outstanding contingent liabilities in respect of such undertakings) in respect of objects loaned to institutions, bodies or persons in Scotland. |
| The Inheritance Tax Act 1984 (c.51), section 230. | The function conferred on the Secretary of State to agree to the Commissioners’ accepting in satisfaction of tax or interest payable under section 233 any property to which section 230 applies, so far as relates to property in which there is a Scottish interest. |
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 National Heritage Act 1980 (c.17), section 9(1) to (5), as read with section 9(8) and (9)(d). | The functions of the Secretary of State to direct the disposal of property accepted in satisfaction of tax, so far as concerns property which an institution in Scotland and an institution elsewhere have both expressed an interest in acquiring. |
Section L1: Judicial Remuneration
Purpose and Effect
This Section reserves the determination of the salaries of certain senior judicial posts in Scotland. The payment of judicial salaries, however, is a matter for the Scottish Ministers as are recommendations on judicial appointments.
General
This Section reserves only the determination of the level of the salaries of the holders of certain specified judicial posts in Scotland. The responsibility for determining their level rests with the UK Government. Payment of salaries is not covered by the reservation. The Scottish Ministers are therefore responsible for paying the salaries, which are charged on the Scottish Consolidated Fund. The determination of judicial pensions is a reserved matter as a consequence of the reservation of occupational and personal pensions at Section F3 and the UK Ministers will therefore retain their current statutory responsibilities for pensions in respect of the specified posts as well as others.
The reservation should be read with section 95 of the Act which provides for the appointment and dismissal of judges of the Court of Session.
Parliamentary Consideration
| Stage | Date | Column |
|---|---|---|
| CC | 31-Mar-98 | 1113 |
| CC | 31-Mar-98 | 1114 |
| LC | 27-Jul-98 | 1318 |
Details of Provisions
Reservation
This Section reserves the determination of the salaries of the following:
Judges of the Court of Session. This covers all the judges of the Court of Session including the Lord President of the Court of Session and the Lord Justice Clerk. The salaries of judges of the Court of Session are currently determined by the Secretary of State with the consent of the Treasury under section 9(1) of the Administration of Justice Act 1973. The salaries were formerly charged on the UK Consolidated Fund. This was modified by virtue of section 119(3) of the Scotland Act so that these salaries are charged on the Scottish Consolidated Fund, thus allowing them to be paid without requiring the prior annual approval of the Scottish Parliament. This maintains the previous position whereby they were paid without requiring Parliamentary approval;
Sheriffs Principal and Sheriffs. Again these salaries are determined by the Treasury under the Sheriff Courts (Scotland) Act 1907. They are now charged on the Scottish Consolidated Fund by virtue of section 119(3);
Members of the Lands Tribunal for Scotland. These are determined by the Secretary of State with the approval of the Treasury under the Lands Tribunal Act 1949, sections 2(6) and (9). Paragraph 9 of Schedule 8 to the Act provides for the remuneration of members of the Lands Tribunal to be charged on the Scottish Consolidated Fund (prior to devolution they were paid out of monies provided by Parliament). Travel and subsistence allowances for members of the Lands Tribunals for Scotland, which are also determined under section 2(6) of the 1949 Act, are not a reserved matter and are now determined by the Scottish Ministers; and
The Chairman of the Scottish Land Court. Paragraph 3 of Schedule 1 to the Scottish Land Court Act 1993 provides for the determination of the salary payable to the Chairman and members of the Land Court by the Treasury and for the salary to be paid out of the Consolidated Fund. Only the salary of the Chairman of the Land Court is to be a reserved matter. Accordingly, his salary continues to be determined by the Treasury while the salary payable to the other members is a devolved matter determined by the Scottish Ministers. The salaries of both the Chairman and the other members are charged on and paid out of the Scottish Consolidated Fund by virtue of section 119(3).
Paragraph 5(a) of Schedule 4 to the Act prevents the Scottish Parliament from modifying the effect of section 119(3) in relation to any provision of an Act of Parliament relating to judicial salaries, namely the effect of section 119(3) upon those provisions mentioned above which provide for the judicial salaries to be charged on the Scottish Consolidated Fund.
Section L2: Equal Opportunities
Purpose and Effect
The Section reserves equal opportunities, subject to certain exceptions.
Parliamentary Consideration
| Stage | Date | Column |
|---|---|---|
| CC | 31-Mar-98 | 1114 |
| LC | 27-Jul-98 | 1322 |
| LC | 27-Jul-98 | 1324 |
| LR | 2-Nov-98 | 11 |
Reservation
There is no current statutory definition of “equal opportunities”. For the purposes of this reservation, the interpretation provision at the end of the Section states that “equal opportunities” means the prevention, elimination or regulation of discrimination between persons on grounds of sex or marital status, on racial grounds, or on grounds of disability, age, sexual orientation, language or social origin or of other personal attributes, including beliefs or opinions, such as religious beliefs or political opinions.
Current legislation makes provision in relation to the prevention or elimination of discrimination on grounds of sex, marital status, race or disability. There is no current domestic legislation dealing with discrimination on grounds such as age or sexual orientation. All these matters are, however, reserved.
The reservation refers to equal opportunities, including the subject-matter of:
the Equal Pay Act 1970. This makes provision for the elimination of discrimination on the grounds of sex in relation to the terms and conditions of employment, including pay;
the Sex Discrimination Act 1975. This makes provision for the prevention or elimination of discrimination on the grounds of sex or marital status. It covers sex discrimination against women, sex discrimination against men and also sex discrimination against transsexuals in relation to employment, training, education and the provision of goods, facilities, or services to the public or a sector of the public. The Act established the Equal Opportunities Commission which is charged with working towards the elimination of discrimination, the promotion of equality of opportunity between men and women generally, and the enforcement of its provisions. It is also required to keep under review the workings of the 1970 Act and the 1975 Act;
the Race Relations Act 1976. This makes provision for the elimination of discrimination on racial grounds. It made provision in relation to administration and enforcement similar to that provided in relation to sex discrimination by the 1975 Act. The 1976 Act also established the Commission for Racial Equality which has duties similar to those of the Equal Opportunities Commission; and
the Disability Discrimination Act 1995. This makes provision for the elimination of discrimination against disabled persons in connection with employment and the provision of goods, facilities and services and the disposal or management of premises. Part V of this Act, the subject-matter of which is expressly reserved under Section E5, is about standards for public passenger transport of disabled people. The Act covers persons suffering either physical or mental disability. The 1995 Act also established the National Disability Council which advised the Secretary of State on matters relevant to the elimination of discrimination against disabled persons. The NDC has now been replaced by the Disability Rights Commission, which was established by the Disability Rights Commission Act 1999.
The reservation of the subject matter of these enactments also includes the bodies established by them, namely the Equal Opportunities Commission, the Commission for Racial Equality and the Disability Rights Commission. However, in view of the existence of the exceptions to the equal opportunities reservation, it may be questionable whether or to what extent the Scottish Parliament might have been able to legislate with respect to them, such a to confer functions upon them, Paragraph 3(2)(c) of Part III of Schedule 5 also provides that these 3 bodies are included among the “reserved bodies” for the purposes of paragraph 3(1) of Part III of Schedule 5. That paragraph makes it clear that the Scottish Parliament cannot legislate about the constitution of such bodies or to confer functions on it or functions which are specifically exercisable in relation to them.
Exceptions
The exceptions from the reservation mean that the Scottish Parliament has competence over:
The encouragement (other than by prohibition or regulation) of equal opportunities, and in particular of the observance of the equal opportunity requirements. “Equal opportunity requirements” are defined in the interpretation section as the requirements of the law for the time being relating to equal opportunities so that it can expand to include any new categories of prohibited anti-discriminatory behaviour. This allows the Parliament to exhort public authorities and others to adopt equal opportunity policies, and to allocate financial and other resources to the encouragement of equal opportunities; and
Imposing duties on:
any office-holder in the Scottish Administration, or any Scottish public authority with mixed functions or no reserved functions, to make arrangements with a view to securing that the functions of the office-holder or authority are carried out with due regard to the need to meet the equal opportunity requirements; or
any cross-border public authority to make arrangements with a view to securing that its Scottish functions are carried out with due regard to the need to meet the equal opportunity requirements.
These exceptions from the reservation will allow the Scottish Parliament for example to develop schemes to secure better provision of services to groups who may be the subject of discrimination or to legislate to require certain public authorities and office-holders to have due regard to equal opportunity requirements. “Scottish functions” are defined in the interpretation paragraph as meaning functions which are exercisable in or as regards Scotland and which do not relate to reserved matters.
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 Race Relations Act 1976 (c.74), sections 19(5) and 57(5). | Section 19(5) - The function of the Secretary of State to cause a local inquiry to be held under section 67 of the Education (Scotland) Act 1980 into any matter arising form section 19(3) of the 1976 Act. Section 57(5) - Where a person has given notice to the Secretary of State of a claim that he has been discriminated against in contravention of section 17 or 18 of the 1976 Act by a body to which section 19(1) of the Act applies, the function of the Secretary of State to give notice informing the claimant that the does not require further time to consider the matter. |
The Education (Scotland) Act 1980 (c.44), section 70 as applied by the Race Relations Act 1976 (c.74), section 19(3). | Section 70 - The functions of the Secretary of State under section 70 of the Education (Scotland) Act 1980, as applied by section 19(3) of the 1976 Act, to enforce the duties imposed by sections 17, 18 and 19(1) of the 1976 Act on a body to which section 19(1) of the 1976 Act applies. |
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 Sex Discrimination Act 1975 (c.65), section 53(1), as read with section 53(1A). | The function of the Secretary of State of appointing commissioners of the Equal Opportunities Commission, but only so far as relating to appointment of a commissioner with special knowledge of Scotland. |
The Race Relations Act 1976 (c.74), section 43(1), as read with section 43(1A). | The function of the Secretary of State of appointing commissioners of the Commission for Racial Equality, but only so far as relating to appointment of a commissioner with special knowledge of Scotland. |
The Disability Discrimination Act 1995 (c.50), paragraph 3(3), as read with paragraph 3(3A) of Schedule 5. | The function of the Secretary of State of appointing members of the National Disability Council, but only so far as relating to the appointment of a member with special knowledge of Scotland. |
Section L3: Control of Weapons
Purpose and Effect
This Section reserves the control of weapons of mass destruction.
General
There are three existing enactments dealing with matters covered by this reservation: the Biological Weapons Act 1974, which prohibits the development, production, acquisition and possession of certain biological agents and toxins and of biological weapons; the Chemical Weapons Act 1996, which is concerned with the control of chemical weapons and certain toxic chemicals; and the Nuclear Explosions (Prohibition and Inspections) Act 1998. Certain matters relating to firearms are also reserved.
Details of Provisions
This reserves the control of nuclear, biological, chemical and any other weapon of mass destruction, as distinct from other weapons, such as firearms.
Section L4: Ordnance Survey
Purpose and Effect
This Section reserves the Ordnance Survey.
General
The Ordnance Survey (OS) is the national mapping organisation for Great Britain and the Isle of Man. The Ordnance Survey Department is currently responsible to the Secretary of State for the Environment, Transport and the Regions.
Details of Provisions
This reserves the subject-matter of the Ordnance Survey Act 1841, which confers functions on the Secretary of State in respect of the survey of Great Britain and the Isle of Man by virtue of which the OS Department prepares the OS maps.
Section L5: Time
Purpose and Effect
This Section reserves the establishment of timescales and time-zones, the calendar and other matters related to time.
General
The reservation covers certain matters relating to the determination of time and dates generally. It does not, extend to the calculation of periods of time for the purposes of the civil law such as the expiry of obligations, or for any other purpose related to devolved matters.
Parliamentary Consideration
| Stage | Date | Column |
|---|---|---|
| CC | 31-Mar-98 | 1132 |
| CC | 31-Mar-98 | 1133 |
| LC | 27-Jul-98 | 1326 |
| LR | 3-Nov-98 | 242 |
| L3 | 9-Nov-98 | 580 |
Details of Provisions
The reservation covers the designation of the timescale and time zones used in the UK and matters related to them, such as Greenwich Mean Time or Co-ordinated Universal Time; the determination of units of time such as minutes, hours, days, months and years and the calendar generally; the determination of the date of Easter, such as, by the Easter Act 1928; and the determination of summer time, under the Summer Time Act 1972.
Exception from Reservation
There are two exceptions from this reservation:
the computation of periods of time for any purpose such as whether particular days are to be included when periods of time are calculated and determining when obligations expire or become unenforceable for the purposes of the civil law; and
the subject-matter of:
section 1 of the Banking and Financial Dealings Act 1971. The dates for bank holidays are determined under this section. The Scottish Parliament is thus able to determine the dates of bank holidays in Scotland and also any public and local holidays in Scotland; and
the Term and Quarter Days (Scotland) Act 1990. This sets out for Scotland the dates of term days, Whitsunday and Martinmas: 28 May and 28 November respectively, and the other quarter days, Candlemas and Lammas: 28 February and 28 August. These days are used in various legal documents made under Scots law, such as leases, agreements and undertakings.
Advice to The Queen
Special arrangements for giving advice to The Queen were described in a Prime Ministerial answer on 30 June 1999 (WA col 215) and an associated paper deposited in the House of Commons Library. The Secretary of State for Scotland’s role in providing advice to the Privy Council on Proclamations by Her Majesty in Council under section 1 of the Banking and Financial Dealings Act 1971 altering statutory bank holidays in Scotland etc. has passed to the First Minister.
Section L6: Outer Space
Purpose and Effect
This reserves activities in outer space.
General
Under the Outer Space Act 1986 the Secretary of State is responsible for the granting of licences to any UK body or person intending to engage in activities in outer space. This relates to the fact that the UK Government has potential liability under international law for damage caused through such activities. The licensing of such activities, and all other matters relating to the regulation of such activities is reserved.
Parliamentary Consideration
| Stage | Date | Column |
|---|---|---|
| LC | 27-Jul-98 | 1333 |
| LR | 3-Nov-98 | 247 |
Details of Provisions
The reservation extends to all matters related to the regulation of activities in outer space. In addition the negotiation of international agreements relating to outer space would fall within the reservation of foreign affairs under Paragraph 7 of Part I of Schedule 5.
This entry was omitted as from 16 June 2000 by Article 6 of S.I. 2000/1563.
This Act was renamed the Employment Tribunals Act 1996 by section 1 of the Employment Rights (Dispute Resolution) Act 1998.