Section 60: Meaning of “retained functions” etc.
198.This section provides that, unless a function falls into one of three categories set out in subsection (1)(a) to (e), it is a retained function.
199.The first category consists of functions exercisable by Ministers in the devolved administrations or by Northern Ireland departments (see subsections (1)(a) to (c) and (2)). These functions include functions which are exercisable concurrently or jointly with the Secretary of State insofar as they are in fact exercised by those Ministers or departments. (To the extent that such functions are exercised by the Secretary of State, they are retained functions.)
200.The second category consists of “secondary devolved functions” (see subsections (1)(d), (3) and (4)). This category consists of functions exercisable in relation to each devolved marine planning region by public authorities other than the policy authorities or other ‘government-level’ bodies (hence secondary). These public authorities are collectively labelled “non-departmental public authorities”.
201.The definition of “secondary devolved functions” is slightly different for each devolved administration, reflecting the variations in the devolution settlements (subsection (4)). In particular, it needs to take account of executively devolved functions, where the power to exercise a function may have been devolved but the relevant devolved legislature does not have the power to legislate in respect of it. For example, Scottish Ministers have the power under the Marine and Coastal Access Act to prepare marine plans for the Scottish offshore region, but the Scottish Parliament cannot legislate for marine planning in the offshore area.
202.When a non-departmental public authority is carrying out functions under the oversight or control of the relevant devolved Ministers (or NI department), it becomes a “Scottish”, “Northern Ireland” or “Welsh non-departmental public authority” (defined in subsection (10)). For example, when exercising functions in relation to the Welsh marine region, the Environment Agency would be a “Welsh non-departmental public authority” to the extent that its exercise of those functions is subject to direction by the Welsh Ministers.
203.“Secondary devolved functions” are therefore defined for each region by reference to:
Functions carried out under the control of the devolved administration (whether or not the relevant legislature would have competence); and
Functions relating to matters which are within the competence of the relevant devolved legislature.
204.The final category of functions which are not retained functions are “relevant ancillary functions” (see subsections (1)(e) and (5)).
205.This final category covers functions exercised by non-departmental public authorities in relation to other devolved functions. These are predominantly advisory functions (for example many public authorities have functions of giving advice to ministers and other public authorities on how to carry out their functions). This provision ensures that any such advice is given on the same basis as the actual substantive function to which it relates. For example, when the Environment Agency provides advice to the Welsh Ministers in relation to their functions, the Environment Agency will be a “Welsh non-departmental public authority”.
206.However, functions will not be treated either as secondary devolved functions or as ancillary functions if the UK government has substantive functions in relation to them (subsection (6)). Where the UK government only has relatively minor functions (for example giving consent to, or being consulted about, the exercise of a devolved function – subsections (7) and (8)) then that is not sufficient to stop it being devolved – insofar as it is exercised by the devolved public authority. (The UK function of giving that consent, or responding to the consultation is of course not devolved.)
207.Subsection (9) contains additional definitions of some of the terms used in this section.
