Scotland Bill (HL Bill 79)

17 The Lord Advocate: Convention rights and Community law

(1) The 1998 Act is amended as follows.

(2) In section 57(3) (Community law and Convention rights: excepted acts of the

Lord Advocate), omit the words after paragraph (b).

(3) 5After section 98 insert—

“98A The Lord Advocate and Convention rights etc: criminal appeals

(1) This section applies to an act or failure to act of the Lord Advocate—

(a) in prosecuting any offence, or

(b) in the capacity of head of the system of criminal prosecution in

10Scotland.

(2) In this section “compatibility” means the compatibility of such an act or

failure to act with any of the Convention rights or with Community

law.

(3) For the purpose of determining any question relating to compatibility,

15an appeal shall lie to the Supreme Court against a determination by a

court of two or more judges of the High Court of Justiciary.

(4) An appeal under this section lies from such a court only with the

permission of that court or, failing such permission, with permission of

the Supreme Court.

(5) 20Where the High Court’s determination was on an appeal under section

106 of the Criminal Procedure (Scotland) Act 1995 (appeal from solemn

proceedings), subsections (3) to (3D) of that section apply in accordance

with subsections (7) and (8) below.

(6) Where the High Court’s determination was on an appeal under

25subsection (2) of section 175 of that Act (appeal from summary

proceedings), subsections (5) to (5D) of that section apply in accordance

with subsection (7) and (8) below.

(7) The subsections of the 1995 Act referred to in subsections (5) and (6)

above (appeal to be on grounds of miscarriage of justice) apply to the

30Supreme Court in relation to an appeal under this section as they apply

to the High Court in relation to any appeal.

(8) But an alleged miscarriage of justice may not be brought under review

of the Supreme Court by virtue of subsection (7) except for the purpose

of determining a question relating to compatibility.

(9) 35In relation to an appeal under this section, the Supreme Court has all

the powers of the court below and may (in consequence of determining

a question relating to compatibility)—

(a) affirm, set aside or vary any order or judgment made or given

by that court;

(b) 40remit any issue for determination by that court;

(c) order a new trial or hearing.”

(4) In paragraph 1 of Schedule 6 (devolution issues), after sub-paragraph (f)

insert—

“But a question whether an act or failure to act is, or would be,

45incompatible with any of the Convention rights or with Community

law is not a devolution issue if it is an act or failure to act of the Lord

Advocate in prosecuting any offence or in the capacity of head of the

systems of criminal prosecution and investigation of deaths in

Scotland.”

(5) 5The Criminal Procedure (Scotland) Act 1995 is amended as follows.

(6) In sections 112(6), 121(5)(a), 121A(5), 122(4) and (5) and 177(8), for “paragraph

13(a) of Schedule 6 to the Scotland Act 1998” substitute “section 98A of the

Scotland Act 1998 or paragraph 13(a) of Schedule 6 to that Act”.

(7) In section 124(2)—

(a) 10for “and paragraph 13(a) of Schedule 6 to the Scotland Act 1998”

substitute “, section 98A of the Scotland Act 1998 and paragraph 13(a)

of Schedule 6 to that Act”;

(b) after “appeal under” insert “section 98A of that Act or”.

(8) In section 288A—

(a) 15in subsection (1) omit “in pursuance of paragraph 6 of Schedule 6 to the

Scotland Act 1998 (devolution issues)”;

(b) for subsection (2) substitute—

“(2) Where the Advocate General for Scotland was a party in

pursuance of paragraph 6 of Schedule 6 to the Scotland Act 1998

20(devolution issues), the Advocate General may refer to the High

Court for their opinion any devolution issue which has arisen in

the proceedings.

(2A) Whether or not subsection (2) applies, the Advocate General for

Scotland may refer to the High Court for their opinion any

25question which has arisen in the proceedings as to whether an

act or failure to act of the Lord Advocate in prosecuting in the

proceedings or in the capacity of head of the system of criminal

prosecution in Scotland was incompatible with any of the

Convention rights or with Community law.

(2B) 30If a reference is made under subsection (2) or (2A) the Clerk of

Justiciary shall send to the person acquitted or convicted and to

any solicitor who acted for that person at the trial a copy of the

reference and intimation of the date fixed by the Court for a

hearing.”;

(c) 35in subsection (6) after “(2)” insert “or (2A)”.

(9) In section 288B(1)—

(a) for “paragraph 13(a) of Schedule 6 to the Scotland Act 1998” substitute

“section 98A of the Scotland Act 1998 or paragraph 13(a) of Schedule 6

to that Act”;

(b) 40omit “of a devolution issue”.

18 Time limit for human rights actions against Scottish Ministers etc

(1) In section 100 of the 1998 Act the following (as inserted by the Convention

Rights Proceedings (Amendment) (Scotland) Act 2009) (asp 11) are omitted—

(a) subsections (3A) to (3E);

(b) 45in subsection (4), the words “Subject to subsection (3D),”.

(2) The Convention Rights Proceedings (Amendment) (Scotland) Act 2009 (asp 11)2009 (asp 11)

is repealed.

(3) Omit paragraph 4A of Schedule 4 to the 1998 Act.

(4) The Scotland Act 1998 (Modification of Schedule 4) Order 2009 (S.I. 2009/1380S.I. 2009/1380)

5is revoked.

(5) Subsections (1) to (4) above do not apply to any proceedings brought before

this section comes into force.

(6) After subsection (3) of section 100 of the 1998 Act insert—

“(3A) Subsection (3B) applies to any proceedings brought by virtue of this Act

10against the Scottish Ministers or a member of the Scottish Government

in a court or tribunal on the ground that an act of the Scottish Ministers

or a member of the Scottish Government is incompatible with the

Convention rights.

(3B) Proceedings to which this subsection applies must be brought before

15the end of—

(a) the period of one year beginning with the date on which the act

complained of took place, or

(b) such longer period as the court or tribunal considers equitable

having regard to all the circumstances,

20but that is subject to any rule imposing a stricter time limit in relation

to the procedure in question.

(3C) Subsection (3B) does not apply to proceedings brought by the Lord

Advocate, the Advocate General, the Attorney General, the Attorney

General for Northern Ireland or the Advocate General for Northern

25Ireland.

(3D) In subsections (3A) and (3B) “act” does not include the making of any

legislation but it does include any other act or failure to act (including

a failure to make legislation).

(3E) In subsection (3B) “rule” has the same meaning as it has in section 7(5)

30of the Human Rights Act 1998.”

(7) In subsection (4) of that section at the beginning insert “Subject to subsection

(3D),”.

(8) Subsections (6) and (7) above apply to any proceedings brought after this

section comes into force (including proceedings in respect of an act taking

35place before this section comes into force).

19 Power to vary retrospective decisions about non-legislative acts

In section 102 of the 1998 Act (powers of courts or tribunals to vary

retrospective decisions), in subsection (1) at the end add “, or

“(c) any other purported exercise of a function by a member of the

40Scottish Government was outside devolved competence.”

Executive competence

20 BBC Trust member for Scotland

In the 1998 Act, after section 90 insert—

“The BBC

90A 5BBC Trust member for Scotland

(1) A Minister of the Crown must not exercise without the agreement of

the Scottish Ministers functions relating to selection for a particular

appointment by which—

(a) a person is to become a member of the BBC Trust and hold a

10Scottish post, or

(b) an existing member of the Trust is to hold a Scottish post.

(2) “Scottish post” means a position, held as a member of the Trust, with

specific reference to Scotland.”

21 Exercise of functions relating to Seirbheis nam Meadhanan Gàidhlig

(1) 15The Broadcasting Act 1990 is amended as follows.

(2) In section 183 (financing of programmes in Gaelic out of Gaelic Television

Fund) for subsection (1) substitute—

“(1) The Scottish Ministers must, for each financial year, pay to OFCOM

such amount as they may determine to be appropriate for the purposes

20of this section.”

(3) Omit subsection (8) of that section.

(4) Section 183A (membership of the Gaelic Media Service) is amended as follows.

(5) In subsection (4) after “the Secretary of State” insert “and the Scottish

Ministers”.

(6) 25In subsection (6)(b) after “the Secretary of State” insert “with the agreement of

the Scottish Ministers”.

(7) In Schedule 19 (Gaelic Media Service: supplementary provisions), paragraph

12 (annual reports) is amended as follows.

(8) In sub-paragraph (3) for the words from “the Secretary of State” to the end

30substitute—

“(a) the Secretary of State, who must lay copies of it before each

House of Parliament, and

(b) the Scottish Ministers, who must lay a copy of it before the

Scottish Parliament.”

(9) 35Sub-paragraph (4) is omitted.

(10) In the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc)

Order 1999 (S.I. 1999/1750S.I. 1999/1750)—

(a) in Schedule 1 (functions transferred to the Scottish Ministers), omit the

entry relating to section 183 of the Broadcasting Act 1990;

(b) in Schedule 2 (functions made exercisable concurrently), omit the

reference to paragraph 12(3) of Schedule 19 to that Act;

(c) in Schedule 5 (modification of enactments), omit paragraph 10(4).

22 Scottish Crown Estate Commissioner

(1) 5In Schedule 1 to the Crown Estate Act 1961 (constitution etc of Crown Estate

Commissioners), paragraph 1 is amended as follows.

(2) After sub-paragraph (3) insert—

“(3A) One of the Commissioners shall be appointed as the Scottish Crown

Estate Commissioner, who must be a person who knows about

10conditions in Scotland as they relate to the functions of the

Commissioners.”

(3) After sub-paragraph (4) insert—

“(4A) The Scottish Crown Estate Commissioner shall be appointed on the

recommendation of the Chancellor of the Exchequer, who shall

15consult the Scottish Ministers before making that recommendation.”

23 Misuse of drugs

(1) The Misuse of Drugs Act 1971 is amended as follows.

(2) In section 10 (power to make regulations for preventing misuse of controlled

drugs)—

(a) 20in subsection (2)(i) for “Secretary of State” substitute “appropriate

authority”;

(b) after subsection (2) insert—

“(3) Regulations made in pursuance of subsection (2)(i) must secure

that under any licence a doctor may—

(a) 25administer, supply or prescribe a controlled drug, or

(b) authorise the administration or supply of a controlled

drug,

only while at an address specified in the licence.

(4) The appropriate authority for the purposes of subsection (2)(i)

30is—

(a) where the specified address for the purposes of

subsection (3) is in Scotland, the Scottish Ministers;

(b) otherwise, the Secretary of State.”

(3) In section 13 (directions where regulations or licence contravened) after

35subsection (1) insert—

“(1A) In relation to regulations made in pursuance of section 10(2)(i) or to a

licence under those regulations, the reference in subsection (1) to the

Secretary of State is to be read as a reference to the appropriate

authority.

(1B) 40The appropriate authority for the purposes of subsection (1A) is—

(a) in relation to a contravention taking place in Scotland, the

Scottish Ministers;

(b) otherwise, the Secretary of State.”

(4) In section 14 (investigation where grounds for direction under section 13 are

considered to exist) after subsection (1) insert—

“(1A) In relation to section 13(1), references in this section to the Secretary of

5State are to be read in accordance with section 13(1A).”

(5) In section 16 (provisions supplementary to sections 14 and 15) after subsection

(1) insert—

“(1A) Where in accordance with section 14(1A) a case is referred to a tribunal

or advisory body by the Scottish Ministers—

(a) 10references in this section and Schedule 3 to the Secretary of State

are to be read as references to the Scottish Ministers, and

(b) references in that Schedule to the approval of the Treasury do

not apply.”

(6) In section 30 (licences and authorities)—

(a) 15at the beginning insert “(1)”;

(b) at the end insert—

“(2) Subsection (1) applies to a licence issued by the Scottish

Ministers under regulations made in pursuance of section

10(2)(i) as if references in that subsection to the Secretary of

20State were references to the Scottish Ministers.”

(7) In paragraph 4 of Schedule 3 (tribunal rules) at the end add—

“(4) Where the Scottish Ministers have power to make rules under this

paragraph (by virtue of section 16(1A) or otherwise)—

(a) sub-paragraph (3) does not apply, and

(b) 25the rules are subject to the negative procedure.”

24 Power to prescribe drink-driving limits

(1) The Road Traffic Act 1988 is amended as follows.

(2) Section 8 (choice of specimens of breath) is amended as follows.

(3) In subsection (3), for “The Secretary of State may by regulations” substitute

30“Regulations may”.

(4) After subsection (3) insert—

“(4) Regulations under subsection (3) may be made—

(a) by the Secretary of State, in relation to cases where the

suspected offence is an offence committed in England and

35Wales;

(b) by the Scottish Ministers, in relation to cases where the

suspected offence is an offence committed in Scotland.”

(5) Section 11 (interpretation of sections 3A to 10) is amended as follows.

(6) In the definition of “the prescribed limit” in subsection (2), omit “made by the

40Secretary of State”.

(7) After subsection (2) insert—

“(2ZA) Regulations under subsection (2) may be made—

(a) by the Secretary of State, in relation to driving or attempting to

drive, or being in charge of a vehicle, in England and Wales;

(b) 5by the Scottish Ministers, in relation to driving or attempting to

drive, or being in charge of a vehicle, in Scotland.”

(8) Section 195 (provisions as to regulations) is amended as follows.

(9) After subsection (2) insert—

“(2A) Before making any regulations under this Act the Scottish Ministers

10must consult with such representative organisations as they think fit.”

(10) After subsection (4) insert—

“(4A) Regulations made by the Scottish Ministers under section 8(3) or 11(2)

are subject to the affirmative procedure.”

25 Speed limits

(1) 15The Road Traffic Regulation Act 1984 is amended as follows.

(2) Section 17 (traffic regulation on special roads) is amended as follows.

(3) In subsection (2) for “The Secretary of State may make regulations” substitute

“Regulations may make provision”.

(4) After subsection (3) insert—

“(3ZA) 20The power to make provision of the following kinds by regulations

under subsection (2) is exercisable by the Scottish Ministers—

(a) provision with respect to a particular special road in Scotland;

(b) provision for regulating the speed of vehicles on special roads

in Scotland.

(3ZB) 25The power to make provision of any other kind by regulations under

subsection (2) is exercisable by the Secretary of State.

(3ZC) In relation to special roads in Scotland that power of the Secretary of

State is exercisable only after consultation with the Scottish Ministers.

(3ZD) Regulations made by the Scottish Ministers under subsection (2) are

30subject to the negative procedure.”

(5) In subsection (3A)—

(a) the words from “the National Park Authority” to the end become

paragraph (a), and

(b) after that paragraph insert “, and

(b) 35such representative organisations as they think fit.”

(6) Section 64 (general provision as to traffic signs) is amended as follows.

(7) After subsection (2) insert—

“(2A) The functions under this section that are exercisable by the Scottish

Ministers instead of the Secretary of State include the function of

making regulations under subsection (1)(a) specifying signs for a

Scottish national speed limit.

(2B) The function of making such regulations is exercisable only with the

agreement of the Secretary of State.

(2C) 5“Scottish national speed limit” means any of these—

(a) a speed limit that, by virtue of regulations under section 17(2)

made by the Scottish Ministers, is to be observed—

(i) on all special roads,

(ii) on all special roads provided for the use of particular

10classes of traffic,

(iii) on all special roads other than special roads of such

description as may be specified in the regulations, or

(iv) as mentioned in sub-paragraph (i), (ii) or (iii) except for

such lengths of special road as may be specified in the

15regulations;

(b) a speed limit that, by virtue of an order under section 88 made

by the Scottish Ministers, is to be observed on all roads, on all

roads of any class specified in the order or on all roads other

than roads of any class so specified.”

(8) 20After subsection (6) insert—

“(7) Regulations made by the Scottish Ministers under subsection (1)(a) are

subject to the negative procedure.

(8) Before making any regulations under subsection (1)(a) the Scottish

Ministers must consult with such representative organisations as they

25think fit.”

(9) Section 88 (temporary speed limits with power to continue indefinitely) is

amended as follows.

(10) For “the Secretary of State” in each place substitute “the national authority”.

(11) In subsection (1)—

(a) 30for “he” substitute “the authority”;

(b) for “his” substitute “the”.

(12) In subsection (4) omit the words from “made by statutory instrument” to the

end.

(13) After subsection (7) insert—

“(7A) 35The national authority in this section—

(a) in relation to roads in England and Wales, is the Secretary of

State;

(b) in relation to roads in Scotland, is the Scottish Ministers.”

(14) In subsection (8) after “subsection (1)(b)” insert “by the Secretary of State”.

(15) 40After subsection (8) insert—

“(9) The power of the Scottish Ministers to make an order under subsection

(1) is not to be exercisable by Scottish statutory instrument.

(10) The first order to be made under subsection (1)(b) by the Scottish

Ministers shall not be made until a draft of the order has been laid

before the Scottish Parliament and approved by it.

(11) The power of the Secretary of State to make an order under subsection

5(4) is exercisable by statutory instrument which shall be subject to

annulment in pursuance of a resolution of either House of Parliament.

(12) An order made by the Scottish Ministers under subsection (4) is subject

to the negative procedure.”

26 Speed limits: supplementary

(1) 10The Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc)

Order 1999 (S.I. 1999/1750S.I. 1999/1750) is amended as follows.

(2) In Schedule 3 (functions exercisable after consultation), in the entry for the

Road Traffic Regulation Act 1984—

(a) omit paragraph (a) (section 17(2));

(b) 15in paragraph (f), omit “and 88(1) and (4)”.

(3) In the Schedule to the Scotland Act 1998 (Transfer of Functions to the Scottish

Ministers etc) Order 2000 (S.I. 2000/1563S.I. 2000/1563) omit the entry for the Road Traffic

Regulation Act 1984 (section 88(1)(a) and (4)).

(4) The transfer by virtue of section 25 of a function exercisable by the Secretary of

20State to the Scottish Ministers (a “transferred function”) does not affect the

validity of anything done (or which has effect as if done) by or in relation to the

Secretary of State before the commencement of that section.

(5) Anything (including legal proceedings) which, at that commencement, is in the

process of being done by or in relation to the Secretary of State may, so far as it

25relates to a transferred function, be continued by or in relation to the Scottish

Ministers.

(6) Anything done (or which has effect as if done) by or in relation to the Secretary

of State for the purposes of or in connection with a transferred function has

effect, if it is in force at that commencement, as if done by or in relation to the

30Scottish Ministers, so far as that is required for continuing its effect.

(7) But an instrument containing regulations or an order made by the Secretary of

State is not to be treated as if made by the Scottish Ministers for the purposes

of section 64(2C)(a) or (b) of the Road Traffic Regulation Act 1984.

27 Implementation of international obligations

(1) 35The 1998 Act is amended as follows.

(2) After section 57 insert—

“57A International obligations

Despite the transfer to the Scottish Ministers by virtue of section 53 of

functions in relation to observing and implementing international

40obligations, a function in relation to those matters which is exercisable

by the Scottish Ministers is also exercisable by a Minister of the Crown

as regards Scotland if it was exercisable by that Minister as regards

Scotland immediately before that transfer.”

(3) In section 118 (subordinate instruments) after subsection (4) insert—

“(4A) But, for the purposes of the exercise of a function in relation to

observing or implementing international obligations, a provision to

which subsection (4) applies is to be treated as complied with if it is

5complied with either—

(a) as it has effect with the modifications made by that subsection,

or

(b) as it would have effect without those modifications.”

Part 3 10Finance

Introductory

28 Taxation: introductory

(1) The 1998 Act is amended as follows.

(2) Before Part 5 insert—

15“ Part 4A Taxation

CHAPTER 1 Introductory

80A Overview of Part 4A