Meaning of “relevant function”
24.Subsection (2) defines “relevant function”. It sets out two tests, both of which need to be satisfied in order for a function to be a “relevant function”.
25.The first test, set out in subsection (2)(a), is that the function could competently be conferred on the public authority in question by the Scottish Parliament (the limits of the Parliament’s legislative competence are set out in section 29 of the Scotland Act 1998). So, for example, functions (whether statutory or common law1) relating to reserved matters (as set out in schedule 5 of the Scotland Act 1998) are not relevant functions.
26.The second test is that the function must be conferred by legislation or a rule of law of a type mentioned in subsection (2)(b)(i) to (iv) (legislation being the more usual way in which functions are conferred on public authorities). Essentially, the types of legislation listed in subsection (2)(b)(i) to (iii) are those enacted by the Scottish Parliament, or enacted by virtue of the Scottish Parliament delegating its power to make legislation – so Acts of the Scottish Parliament, Scottish statutory instruments made entirely under a power conferred by an Act of the Scottish Parliament, and Scottish statutory instruments made partly under a power conferred by an Act of the Scottish Parliament and partly under a power conferred by an Act of the UK Parliament. In the latter case, only functions conferred by provisions in the instrument which were made solely by virtue of the power conferred by the Act of the Scottish Parliament, plus provisions subsequently inserted directly into the instrument by an Act of the Scottish Parliament (or other subordinate legislation made under a power conferred by an Act of the Scottish Parliament), are subject to the subsection (1) compatibility duty.
27.This means that functions conferred by the following are not subject to the subsection (1) compatibility duty:
Acts of the UK Parliament,
statutory instruments made (including by the Scottish Ministers) by virtue of powers conferred by Acts of the UK Parliament,
those provisions of Scottish statutory instruments made partly under a power conferred by an Act of the Scottish Parliament and partly under a power conferred by an Act of the UK Parliament which are made wholly or partly by virtue of the power conferred the Act of the UK Parliament (or subsequently inserted by an Act of the UK Parliament or by virtue of a power conferred by such an Act).
28.As functions relating to reserved matters are already excluded by subsection (2)(a), subsection (2)(b)(i) to (iii) mainly serves, in practice, to exclude functions relating to devolved matters created by or under the authority of the UK Parliament. This means, for example, that functions conferred by pre-devolution Acts of the UK Parliament are not subject to the subsection (1) compatibility duty, even where the subject matter of such Acts is devolved. Examples of such functions include, at the time of publication of these Notes, functions conferred by the Education (Scotland) Act 1980, the Children (Scotland) Act 1995 and the Criminal Procedure (Scotland) Act 1995. The coverage of the subsection (1) compatibility duty may expand over time, however, if such Acts are repealed and replaced with new provision enacted by the Scottish Parliament in the types of legislation mentioned in paragraph 26 above.
29.Section 42(2) makes provision in relation to the situation where one enactment inserts words into another enactment (which is very common) and the inserted words confer a function. The function is to be regarded as conferred only by the enactment which has been modified (and not by the enactment which inserted the new words into the modified enactment). The effect of this is that (for example) a function conferred by words inserted, by an Act of the Scottish Parliament, into an Act of the UK Parliament is not a relevant function under subsection (2)(b) (as the modified enactment – an Act of the UK Parliament – is not of a type listed in that subsection). The subsection (1) compatibility duty therefore does not apply in relation to such a function.
30.Another example of the operation of section 42(2) is where a function is conferred by words inserted, by an Act of the UK Parliament, into an Act of the Scottish Parliament. Such a function is (unless excluded by subsection (2)(a) due to relating to a reserved matter) a relevant function, and so the subsection (1) compatibility duty applies. However, the further provision made by subsection (4)(b) may also be relevant in such cases and this is explained further below.
Common law functions relating to devolved matters, in contrast, are “relevant functions” by virtue of subsection (2)(b)(iv).
