Scotland Act 1998
1998 Chapter 46 - continued
GROUP AB, MISCELLANEOUS AND GENERAL - continued
Miscellaneous - continued
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Provision of information to the Treasury. | 96. - (1) The Treasury may require the Scottish Ministers to provide, within such period as the Treasury may reasonably specify, such information, in such form and prepared in such manner, as the Treasury may reasonably specify.
| (2) If the information is not in their possession or under their control, their duty under subsection (1) is to take all reasonable steps to comply with the requirement.
Assistance for opposition parties. | 97. - (1) Her Majesty may by Order in Council provide for the Parliamentary corporation to make payments to registered political parties for the purpose of assisting members of the Parliament who are connected with such parties to perform their Parliamentary duties.
| (2) The corporation shall not make any payment to a party in pursuance of such an Order if any of the members of the Parliament who are connected with the party are also members of the Scottish Executive or junior Scottish Ministers.
| (3) But such an Order may, in any circumstances specified in the Order, require the fact that any members who are connected with a party are also members of the Scottish Executive or junior Scottish Ministers to be disregarded.
| (4) Such an Order may determine the circumstances in which a member of the Parliament and a registered political party are to be regarded for the purposes of this section as connected.
| Juridical
Devolution issues. | 98. Schedule 6 (which makes provision in relation to devolution issues) shall have effect.
Rights and liabilities of the Crown in different capacities. | 99. - (1) Rights and liabilities may arise between the Crown in right of Her Majesty's Government in the United Kingdom and the Crown in right of the Scottish Administration by virtue of a contract, by operation of law or by virtue of an enactment as they may arise between subjects.
| (2) Property and liabilities may be transferred between the Crown in one of those capacities and the Crown in the other capacity as they may be transferred between subjects; and they may together create, vary or extinguish any property or liability as subjects may.
| (3) Proceedings in respect of-
| (a) any property or liabilities to which the Crown in one of those capacities is entitled or subject under subsection (1) or (2), or
| (b) the exercise of, or failure to exercise, any function exercisable by an office-holder of the Crown in one of those capacities,
| may be instituted by the Crown in either capacity; and the Crown in the other capacity may be a separate party in the proceedings.
| (4) This section applies to a unilateral obligation as it applies to a contract.
| (5) In this section-
| "office-holder", in relation to the Crown in right of Her Majesty's Government in the United Kingdom, means any Minister of the Crown or other office-holder under the Crown in that capacity and, in relation to the Crown in right of the Scottish Administration, means any office-holder in the Scottish Administration,
| "subject" means a person not acting on behalf of the Crown.
Human rights. | 100. - (1) This Act does not enable a person-
| (a) to bring any proceedings in a court or tribunal on the ground that an act is incompatible with the Convention rights, or
| (b) to rely on any of the Convention rights in any such proceedings,
| unless he would be a victim for the purposes of Article 34 of the Convention (within the meaning of the Human Rights Act 1998) if proceedings in respect of the act were brought in the European Court of Human Rights.
| (2) Subsection (1) does not apply to the Lord Advocate, the Advocate General, the Attorney General or the Attorney General for Northern Ireland.
| (3) This Act does not enable a court or tribunal to award any damages in respect of an act which is incompatible with any of the Convention rights which it could not award if section 8(3) and (4) of the Human Rights Act 1998 applied.
| (4) In this section "act" means-
| (a) making any legislation,
| (b) any other act or failure to act, if it is the act or failure of a member of the Scottish Executive.
Interpretation of Acts of the Scottish Parliament etc. | 101. - (1) This section applies to-
| (a) any provision of an Act of the Scottish Parliament, or of a Bill for such an Act, and
| (b) any provision of subordinate legislation made, confirmed or approved, or purporting to be made, confirmed or approved, by a member of the Scottish Executive,
| which could be read in such a way as to be outside competence.
| (2) Such a provision is to be read as narrowly as is required for it to be within competence, if such a reading is possible, and is to have effect accordingly.
| (3) In this section "competence"-
| (a) in relation to an Act of the Scottish Parliament, or a Bill for such an Act, means the legislative competence of the Parliament, and
| (b) in relation to subordinate legislation, means the powers conferred by virtue of this Act.
Powers of courts or tribunals to vary retrospective decisions. | 102. - (1) This section applies where any court or tribunal decides that-
| (a) an Act of the Scottish Parliament or any provision of such an Act is not within the legislative competence of the Parliament, or
| (b) a member of the Scottish Executive does not have the power to make, confirm or approve a provision of subordinate legislation that he has purported to make, confirm or approve.
| (2) The court or tribunal may make an order-
| (a) removing or limiting any retrospective effect of the decision, or
| (b) suspending the effect of the decision for any period and on any conditions to allow the defect to be corrected.
| (3) In deciding whether to make an order under this section, the court or tribunal shall (among other things) have regard to the extent to which persons who are not parties to the proceedings would otherwise be adversely affected.
| (4) Where a court or tribunal is considering whether to make an order under this section, it shall order intimation of that fact to be given to-
| (a) the Lord Advocate, and
| (b) the appropriate law officer, where the decision mentioned in subsection (1) relates to a devolution issue (within the meaning of Schedule 6),
| unless the person to whom the intimation would be given is a party to the proceedings.
| (5) A person to whom intimation is given under subsection (4) may take part as a party in the proceedings so far as they relate to the making of the order.
| (6) Paragraphs 36 and 37 of Schedule 6 apply with necessary modifications for the purposes of subsections (4) and (5) as they apply for the purposes of that Schedule.
| (7) In this section-
| "intimation" includes notice,
| "the appropriate law officer" means-
| (a) in relation to proceedings in Scotland, the Advocate General,
| (b) in relation to proceedings in England and Wales, the Attorney General,
| (c) in relation to proceedings in Northern Ireland, the Attorney General for Northern Ireland.
The Judicial Committee. | 103. - (1) Any decision of the Judicial Committee in proceedings under this Act shall be stated in open court and shall be binding in all legal proceedings (other than proceedings before the Committee).
| (2) No member of the Judicial Committee shall sit and act as a member of the Committee in proceedings under this Act unless he holds or has held-
| (a) the office of a Lord of Appeal in Ordinary, or
| (b) high judicial office as defined in section 25 of the Appellate Jurisdiction Act 1876 (ignoring for this purpose section 5 of the Appellate Jurisdiction Act 1887).
| (3) Her Majesty may by Order in Council-
| (a) confer on the Judicial Committee in relation to proceedings under this Act such powers as Her Majesty considers necessary or expedient,
| (b) apply the Judicial Committee Act 1833 in relation to proceedings under this Act with exceptions or modifications,
| (c) make rules for regulating the procedure in relation to proceedings under this Act before the Judicial Committee.
| (4) In this section "proceedings under this Act" means proceedings on a question referred to the Judicial Committee under section 33 or proceedings under Schedule 6.
| Supplementary powers
Power to make provision consequential on legislation of, or scrutinised by, the Parliament. | 104. - (1) Subordinate legislation may make such provision as the person making the legislation considers necessary or expedient in consequence of any provision made by or under any Act of the Scottish Parliament or made by legislation mentioned in subsection (2).
| (2) The legislation is subordinate legislation under an Act of Parliament made by-
| (a) a member of the Scottish Executive,
| (b) a Scottish public authority with mixed functions or no reserved functions, or
| (c) any other person (not being a Minister of the Crown) if the function of making the legislation is exercisable within devolved competence.
Power to make provision consequential on this Act. | 105. Subordinate legislation may make such modifications in any pre-commencement enactment or prerogative instrument or any other instrument or document as appear to the person making the legislation necessary or expedient in consequence of this Act.
Power to adapt functions. | 106. - (1) Subordinate legislation may make such provision (including, in particular, provision modifying a function exercisable by a Minister of the Crown) as the person making the legislation considers appropriate for the purpose of enabling or otherwise facilitating the transfer of a function to the Scottish Ministers by virtue of section 53 or 63.
| (2) Subordinate legislation under subsection (1) may, in particular, provide for any function which-
| (a) is not exercisable separately in or as regards Scotland to be so exercisable, or
| (b) is not otherwise exercisable separately within devolved competence to be so exercisable.
| (3) The reference in subsection (1) to the transfer of a function to the Scottish Ministers shall be read as including the sharing of a function with the Scottish Ministers or its other adaptation.
| (4) No recommendation shall be made to Her Majesty in Council to make, and no Minister of the Crown shall make, subordinate legislation under this section which modifies a function of observing or implementing an obligation mentioned in subsection (5) unless the Scottish Ministers have been consulted about the modification.
| (5) The obligation is an international obligation, or an obligation under Community law, to achieve a result defined by reference to a quantity (whether expressed as an amount, proportion or ratio or otherwise), where the quantity relates to the United Kingdom (or to an area including the United Kingdom or to an area consisting of a part of the United Kingdom which includes the whole or part of Scotland).
| (6) If subordinate legislation under this section modifies a function of observing or implementing such an international obligation so that the function to be transferred to the Scottish Ministers relates only to achieving so much of the result to be achieved under the obligation as is specified in the legislation, references in section 58 to the international obligation are to be read as references to the requirement to achieve that much of the result.
| (7) If subordinate legislation under this section modifies a function of observing or implementing such an obligation under Community law so that the function to be transferred to the Scottish Ministers relates only to achieving so much of the result to be achieved under the obligation as is specified in the legislation, references in sections 29(2)(d) and 57(2) and paragraph 1 of Schedule 6 to Community law are to be read as including references to the requirement to achieve that much of the result.
Legislative power to remedy ultra vires acts. | 107. Subordinate legislation may make such provision as the person making the legislation considers necessary or expedient in consequence of-
| (a) an Act of the Scottish Parliament or any provision of an Act of the Scottish Parliament which is not, or may not be, within the legislative competence of the Parliament, or
| (b) any purported exercise by a member of the Scottish Executive of his functions which is not, or may not be, an exercise or a proper exercise of those functions.
Agreed redistribution of functions exercisable by the Scottish Ministers etc. | 108. - (1) Her Majesty may by Order in Council provide for any functions exercisable by a member of the Scottish Executive to be exercisable-
| (a) by a Minister of the Crown instead of by the member of the Scottish Executive,
| (b) by a Minister of the Crown concurrently with the member of the Scottish Executive, or
| (c) by the member of the Scottish Executive only with the agreement of, or after consultation with, a Minister of the Crown.
| (2) Where an Order is made under subsection (1)(a) or (b) in relation to a function of the Scottish Ministers, the First Minister or the Lord Advocate which is exercisable only with the agreement of, or after consultation with, any other of those persons, the function shall, unless the Order provides otherwise, be exercisable by the Minister of the Crown free from any such requirement.
| (3) An Order under this section may, in particular, provide for any function exercisable by a Minister of the Crown by virtue of an Order under subsection (1)(a) or (b) to be exercisable subject to a requirement for the function to be exercised with the agreement of, or after consultation with, another person.
| (4) This section does not apply to any retained functions of the Lord Advocate which fall within section 52(6)(a).
Agreed redistribution of property and liabilities. | 109. - (1) Her Majesty may by Order in Council provide-
| (a) for the transfer to a Minister of the Crown or government department of any property belonging to the Scottish Ministers or the Lord Advocate, or
| (b) for a Minister of the Crown or government department to have such rights or interests in relation to any property belonging to the Scottish Ministers or the Lord Advocate as Her Majesty considers appropriate (whether in connection with a transfer or otherwise).
| (2) Her Majesty may by Order in Council provide for the transfer to a Minister of the Crown or government department of any liabilities to which the Scottish Ministers or the Lord Advocate are subject.
| (3) An Order in Council under this section may only be made in connection with any transfer or sharing of functions of a member of the Scottish Executive by virtue of section 108 or in any other circumstances in which Her Majesty considers it appropriate to do so for the purposes of this Act.
Scottish taxpayers for social security purposes. | 110. - (1) The Secretary of State may by order provide for individuals of any description specified in the order to be treated for the purposes of any of the matters that are reserved matters by virtue of Head F of Part II of Schedule 5 as if they were, or were not, Scottish taxpayers.
| (2) The Secretary of State may by order provide in relation to any year of assessment that, for those purposes, the basic rate in relation to the income of Scottish taxpayers shall be treated as being such rate as is specified in the order (instead of the rate increased or reduced for that year by virtue of any resolution of the Parliament in pursuance of section 73 passed after the beginning of the year).
| (3) An order under this section may apply in respect of any individuals whether Scotland is the part of the United Kingdom with which they have the closest connection or not.
| (4) In this section "Scottish taxpayer" has the same meaning as in Part IV.
Regulation of Tweed and Esk fisheries. | 111. - (1) Her Majesty may by Order in Council make provision for or in connection with the conservation, management and exploitation of salmon, trout, eels and freshwater fish in the Border rivers.
| (2) An Order under subsection (1) may-
| (a) exclude the application of section 53 in relation to any Border rivers function,
| (b) confer power to make subordinate legislation.
| (3) In particular, provision may be made by such an Order-
| (a) conferring any function on a Minister of the Crown, the Scottish Ministers or a public body in relation to the Border rivers,
| (b) for any Border rivers function exercisable by any person to be exercisable instead by a person (or another person) mentioned in paragraph (a),
| (c) for any Border rivers function exercisable by any person to be exercisable concurrently or jointly with, or with the agreement of or after consultation with, a person (or another person) mentioned in paragraph (a).
| (4) In this section-
| "the Border rivers" means the Rivers Tweed and Esk,
| "Border rivers function" means a function conferred by any enactment, so far as exercisable in relation to the Border rivers,
| "conservation", in relation to salmon, trout, eels and freshwater fish, includes the protection of their environment,
| "eels", "freshwater fish", "salmon" and "trout" have the same meanings as in the Salmon and Freshwater Fisheries Act 1975,
| "the River Tweed" has the same meaning as in section 39 of the Salmon and Freshwater Fisheries Act 1975,
| "the River Esk" means the river of that name which, for part of its length, constitutes the border between England and Scotland including-
| (a) its tributary streams (which for this purpose include the River Sark and its tributary streams), and
| (b) such waters on the landward side of its estuary limits as are determined by an Order under subsection (1),
| together with its banks;
| and references to the Border rivers include any part of the Border rivers.
| (5) An Order under subsection (1) may modify the definitions in subsection (4) of the River Tweed and the River Esk.
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