Subordinate
legislation made by Scottish Ministers
(a) General
6.1 The Ministers in the Scottish Administration
will be known as Scottish Ministers which is the collective name
given to members of the Scottish Executive.
6.2 Under clause 49, existing statutory
and nonstatutory functions of the Ministers of the Crown
will be transferred to Scottish Ministers, so far as they are
exercisable within devolved competence. In terms of clause 50,
this broadly means that the Ministerial functions will transfer
to the extent that the Scottish Parliament would have the competence
to confer such functions on Scottish Ministers in an ASP to be
exercised in that way. In particular, this means that the functions
which will transfer will be functions which are exercisable in
or as regards Scotland and are not in relation to a reserved matter
listed in Schedule 5. The functions which will transfer will
include powers to make subordinate legislation.
6.3 When the functions transfer to Scottish
Ministers under clause 49, any existing statutory provision requiring
the consent of any Ministers (including the Treasury) will cease
to apply by virtue of clause 51.
6.4 In certain cases, functions which have
been transferred may continue to be exercised by Ministers of
the Crown as well as by Scottish Ministers - see clauses 52 and
53(1). In particular clause 53(1) provides that any functions
in relation to observing and implementing Community law which
are transferred to Scottish Ministers under clause 49 will continue
to be exercisable by a Minister of the Crown.
6.5 Clause 59 enables additional Ministerial
functions to be transferred from Ministers of the Crown to Scottish
Ministers by Order in Council. This will be used to transfer to
Scottish Ministers functions in relation to reserved matters,
including powers to make subordinate legislation. These powers
are described in more detail below.
6.6 Apart from the existing statutory functions
to make subordinate legislation which will be transferred to Scottish
Ministers from Ministers of the Crown, the Scottish Parliament
will be able to confer upon them powers to make subordinate legislation
in ASPs.
(b) Procedures for subordinate legislation
made by Scottish Ministers
7.1 Clause 106 (subordinate legislation)
provides that where a function of making, confirming or approving
subordinate legislation is transferred to the Scottish Ministers
under clause 49, any requirement for the instrument or draft instrument
to be laid before Parliament and for the annulment or approval
of the instrument by Parliament are transferred to the Scottish
Parliament. In other words, such subordinate legislation will
cease to be subject to scrutiny in the Westminster Parliament.
7.2 Similar provision is made in the case
of powers to make subordinate legislation within devolved competence
which are conferred upon a person other than a Minister of the
Crown, such as Her Majesty in Council or the Registrar General
of Births, Deaths and Marriages for Scotland or the Court of Session.
Such subordinate legislation will also no longer be subject to
scrutiny in the Westminster Parliament.
7.3 Where a power to make subordinate legislation
is transferred to Scottish Ministers in a clause 59 order,
the clause 59 order will make provision, similar to that in clause 106,
providing that the subordinate legislation will no longer be subject
to scrutiny by the Westminster Parliament but will instead be
subject to scrutiny in the Scottish Parliament.
7.4 It will be a matter for the Scottish
Parliament to establish procedures for scrutinising statutory
instruments laid before it, as was made clear in paragraphs 9.1
and 9.8 of the White Paper Scotland's Parliament. Work
has begun to devise detailed procedures, but until the Parliament
is fully established the exact procedures will not be known. Under
the powers to make transitional provisions interim standing orders
will be provided for the Parliament. These will include arrangements
for the scrutiny of subordinate legislation by the Scottish Parliament.
Paragraph 8 of Schedule 4 ensures that the Parliament has full
legislative competence over its procedures for the making of subordinate
legislation, including that made under powers contained in the
Scotland Bill.
Proposals
for Subordinate Legislation under the Bill
(a) General
8.1 The Scotland Bill provides for a very
significant change to the government of Scotland. It would be
impractical for every aspect of this change to be contained in
the Bill itself, and therefore a number of powers to make subordinate
legislation have been included. As the settlement is intended
to be long-lasting, it is essential to build in a degree of flexibility.
For example, there is provision in clause 29 for the list of reserved
matters in Schedule 5 to be amended by Order in Council with the
agreement of the Westminster and Scottish Parliaments. This might
be required in the future to deal with issues which cannot be
foreseen in the Bill itself. Similarly, there is a power in clause
95 to modify enactments in consequence of an Act of the Scottish
Parliament, the exercise of which will depend on the nature of
the provision made in that Act. Other examples where powers have
been taken because of dependence on future events include clauses
92 (remedy of ultra vires acts) and 98 (agreed redistribution
of functions). There are a number of procedural matters, such
as the prescription of the form of Letters Patent signifying Royal
Assent to a Bill, which are more appropriately dealt with in subordinate
legislation.
8.2 There are more than 30 provisions in
the Bill which permit the making of subordinate legislation. These
vary considerably in scope and importance. Clauses 101 to 103
draw together the provisions which are supplementary to these
powers and the provisions about the procedure required in the
Westminster and/or Scottish Parliaments and the person by whom
each power is exercisable. This approach avoids the need to specify
these matters in each clause, thus simplifying the overall structure
of the Bill.
8.3 The following paragraphs describe in
general terms the provisions of clauses 101-103. Clause 104,
which makes supplementary provision about orders concerning the
transfer of property, is described in a separate entry in the
section on each of the particular powers.
8.4 The table shows the effect of clauses
101-103 for each power to make subordinate legislation.
