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Scotland Act 1998

Schedule 5, Part I, Paragraph 9: Defence.
Purpose and Effect

This paragraph reserves all matters relating to defence and the armed forces; but it does not reserve responsibility for civil defence or the right to confer enforcement powers on the armed forces in relation to sea fisheries matters.


Defence includes matters relating to the armed forces (including for example, their equipment, resources and deployment), defence policy, strategy, planning and intelligence and plans for the maintenance of essential supplies and services in case of war.

The reservation will not however prevent the Scottish Parliament from legislating about civil defence or conferring powers on the armed forces, notably the Navy or the Air Force, in relation to sea fishing, in particular to enforce offences created under Scottish sea fisheries legislation.

Parliamentary Consideration
Details of Provisions

The reserved matters set out in paragraph 9(1) are as follows:

  • paragraph 9(1)(a): The Defence of the Realm.  This provision is intended to ensure that any matters related to the defence of the realm are reserved.  It is a supplementary concept to that of the armed forces (which are identified separately, see below) designed to cover all the matters for which the Ministry of Defence are responsible, for defence purposes.  These matters include the various defence establishments and contractors carrying out work for defence purposes; the Ministry of Defence Police and the services cadet forces (which do not form part of the armed forces but serve defence purposes); and special provisions for the acquisition, use or disposal of land and property for defence purposes.

  • paragraph 9(1)(b):  The Naval, Military or Air Forces of the Crown, including reserve forces.  This is the second main leg of the reservation.  It makes clear that all matters concerned with the armed forces themselves are reserved.  This includes their command, establishment, maintenance, organisation, staffing and funding and all matters connected with the enlistment, management, disciplining and pay and allowances of both the military and civilian components of the armed forces.  This reservation also covers the creation of offences relating particularly to the armed forces (for example, the unauthorised wearing of military uniforms), matters concerned with the territorial, auxiliary and volunteer reserve associations, special provisions relating to the status of members of the armed forces and the disclosure of information on military activities.  The reservation also covers benefits to members and former members of the armed forces and their dependants and the matter of war graves.  Equipment and explosives research for the purposes of the armed forces are also covered.

  • paragraph 9(1)(c): Visiting Forces.  A separate reservation is required in order to ensure that all matters relating to visiting forces are covered.  These are the armed forces of other countries visiting or based in the UK, including both their military and civilian components.

  • paragraph 9(1)(d): International Headquarters and Defence Organisations.  This is simply to make clear that matters concerned with headquarters or organisations designated for the purposes of the International Headquarters and Defence Organisations Act 1964 are reserved.

  • paragraph 9(1)(e): Trading with the Enemy and Enemy Property.  This reservation covers matters relating to the control of trade with the enemy and the confiscation, control or administration of enemy property.  These matters are all aspects of the conduct of war and the conclusion of peace.  This provision is not intended in any way to restrict the competence of the Scottish Parliament to legislate generally about the law of property in Scotland.

Paragraph 9(2) provides that paragraph 9(1) does not reserve the following:

  • paragraph 9(2)(a): Civil Defence, in particular planning, organisation and preparation by civilian authorities.  The provision of non-combative defence against hostile attack is not reserved.  The exercise of civil defence functions by a member of the armed forces, visiting forces or other defence force or organisation is, however, reserved.

  • paragraph 9(2)(b): The Conferral of Enforcement Powers in relation to Sea Fishing.  It is necessary also to make clear that the Scottish Parliament has competence to confer powers to enforce obligations in relation to sea fishing (in particular powers usually exercisable by British Sea Fisheries Officers) on members of the armed forces.  This is because the Royal Navy in particular carries out certain enforcement duties on behalf of the Fisheries Departments.

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 Reserve Forces Act 1996 (c.14), Schedule 5, paragraphs 10 and 12.

The functions of the Secretary of State to give directions relative to the charitable property of a disbanded unit and to apply by petition to the Court of Session concerning such property.

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 Reserve Forces Act 1996 (c.14), sections 90(1) and (3) and 91(1) and (3).

Section 90(1) and (3) - The function of  the Secretary of State and the Lord Chancellor to appoint a panel of chairmen of reserve forces appeal tribunals and determine their term of appointment.

Section 91(1) and (3) - The function of the Secretary of State and the Lord Chancellor to appoint a panel of ordinary members of reserve forces appeal tribunals and determine their  term of appointment.

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