House of Lords - Delegated Powers and Deregulation - Twenty-Fourth Report

Select Committee on Delegated Powers and Deregulation Twenty-Fourth Report

SCOTLAND BILL

Memorandum by the Scottish Office

(b) Clause 101

9.1 Clause 101 contains supplementary provisions regarding the powers to make subordinate legislation under the Bill.

9.2 Clause 101(1) makes it clear that any power to make subordinate legislation which is conferred upon a Minister of the Crown or a member of the Scottish Executive should be exercisable by statutory instrument. Any power conferred upon Her Majesty by the Bill to make an Order in Council would also be exercisable by statutory instrument by virtue of the Statutory Instruments Act 1946.

9.3 Clause 101(2)-(4) and (10) confer various supplemental powers upon all subordinate legislation made under the Bill, namely

(a) to make different provision for different purposes;

(b) to make supplementary, incidental or consequential provisions;

(c) to make transitory, transitional or saving provisions;

(d) to make provision for the delegation of functions; and

(e) to make provision for sums to be payable out of the Scottish Consolidated Fund or charged on that Fund.

9.4 Clause 101(9) restricts the punishment which can be imposed for offences created by subordinate legislation under the Bill whether on summary conviction or on indictment.

9.5 The other provisions of clause 101 apply to particular powers under various provisions of the Bill and will be explained below in the notes which relate to those provisions.

10.1 Clause 102 makes provisions as to the procedure to which statutory instruments made under the Bill are to be subject in the Westminster and/or Scottish Parliaments.

10.2 Clause 102(1)-(3) specify the more important statutory instruments which are declared to be an affirmative instrument in relation to both Houses of the Westminster Parliament (or the House of Commons) and/or the Scottish Parliament.

10.3 Clause 102(4) and (5) explain what is meant by a statutory instrument being an affirmative instrument. It provides that a Minister of the Crown cannot make any such instrument until a draft of it has been laid before and approved by resolution of, each House of Parliament or the House of Commons, as the case may be. Any instrument made by a Minister of the Crown cannot be an affirmative instrument in relation to the Scottish Parliament. In the case of Orders in Council however, they may be subject to affirmative resolution in relation to both Parliaments or either Parliament. Clause 102(5) provides that no recommendation should be made to Her Majesty in Council to make such an Order unless a draft has been laid before, and approved by resolution of, each House of Parliament and/or the Scottish Parliament.

10.4 Clause 101(6)-(9) specify which statutory instruments are subject to annulment in pursuance of a resolution of either House of Parliament or, as the case may be, the Scottish Parliament. These instruments are subject to negative resolution unless they are combined with another instrument which is an affirmative instrument.

11.1 Clause 103 mainly makes provision about open powers. Open powers are powers to make subordinate legislation under the Bill where it is not specified who is to make such an instrument. Clause 103(1) provides that such a power may be exercisable either by Her Majesty by Order in Council or by a Minister of the Crown by order.

11.2 The inclusion of these open powers is intended to provide the flexibility to deal in appropriate ways with the subordinate legislation which will be needed under the Bill. Different uses of these particular powers may be very different in terms of scale and importance. These provisions are similar to those in the European Communities Act 1972, which permit Community rights and obligations to be incorporated into UK law by Order in Council or in regulations made by a designated Minister.

11.3 Any statutory instrument made in exercise of an open power is only subject to procedure in the Westminster Parliament. Clause 103(3) provides that such a statutory instrument may be subject to either affirmative resolution in each House of Parliament or, if it is not, it is subject to annulment in pursuance of a resolution of either House of Parliament.

11.4 Clause 103(4) provides that an Order in Council under an open power may revoke, amend or re-enact an order, as well as an Order in Council, under the power and vice versa.

11.5 Clause 103(6) and (7) do not relate to open powers but to Orders in Council under clauses 84 or 85. They give a choice of either affirmative or negative resolution procedure for such Orders in Council in the Westminster and the Scottish Parliaments.

POWERS TO MAKE SUBORDINATE LEGISLATION

This table shows -

The clause under which subordinate legislation may be made, along with a brief description of the power.

The person by whom the subordinate legislation may be made, i.e.

SofS = the Secretary of State by order;

Treas. = the Treasury by order;

SM = the Scottish Ministers by order;

HM = Her Majesty by Order in Council; or

Open = either a Minister of the Crown by order or Her Majesty by Order in Council.

The procedure which applies (if any) in the Westminster and Scottish Parliaments -

A = order to be laid in draft and approved by Parliament;

N = order subject to annulment in pursuance of a resolution of Parliament; or

N(A) = order made under open powers, or an order under clauses 84 or 85, which may be laid in draft and approved by Parliament or subject to annulment in pursuance of a resolution of Parliament.

Here, "Parliament" is to be read as referring to both Houses, the House of Commons, or the Scottish Parliament as appropriate.

Whether orders may make modifications of other enactments, prerogative instruments or documents or may make provision having retrospective effect.

All powers to make subordinate legislation are exercisable by statutory instrument; may make different provision for different purposes; may make supplementary and transitional provision; may make provision for delegation of functions; and may make provision for sums to be payable out of, or charged on, the Scottish Consolidated Fund. Subordinate legislation made by a Minister of the Crown or by Her Majesty in Council may make provision for the payment of sums out of money provided by Parliament or for sums to be charged on and paid out of the Consolidated Fund.

Power Procedure

Clause Description Made by W'minster Scot. Parlt. Mod. enactments Retrospective

2(1) Specification of date of first ordinary general election etc. SofS A

11(1) Conduct of elections SofS A See 11

11(6) Designation of regional returning officers SofS

14(1)(d) and (2) Disqualification of office holders from membership of the Parliament HM A

17(5) Alteration of maximum amount of caution SM N

29 Modification of Schedule 5 HM A A Yes Yes

33 Prohibition of submission of Bill for Royal Assent in certain circumstances SofS N

36 Form etc. of Letters Patent and royal proclamations HM N

54(1) Prohibition of action incompatible with international obligations SofS [5]N

54(2) Requiring action to give effect to international obligations SofS N

54(4) Revocation of subordinate legislation in certain circumstances SofS N Yes

56 Transfer of property etc. to the Scottish Ministers Open N(A)

58 Transfer of property etc. to the Lord Advocate Open N(A)

59 Transfer of functions to the Scottish Ministers HM A A Yes

60 Transfer of property etc. in connection with functions transferred under clause 59 Open N(A)

61(5) Designation of receipts payable into Scottish Consolidated Fund Treas. N (HofC)

64(3) Increase of maximum sum which may be lent to Scottish Ministers SofS A

(HofC)

75(1) Provision in consequence of tax-varying power Treas. A

(HofC) See 75(1) See 75(4)

75(2) Exclusion of tax-varying power in respect of particular enactments Treas. A

(HofC) See 75(1) See 75(4)

75(3) Effect of tax-varying resolution on operation of PAYE Treas. N (HofC) See 75(4)

83 Cross-border public authorities: initial status HM N

84 Adaptation of cross-border public authorities HM N(A) N(A) Yes

85 Transfer of property etc. of cross-border public authorities HM N(A) N(A)

92 Remedying ultra vires acts Open N(A) Yes Yes

94(3)(a) Conferral of powers on Judicial Committee of Privy Council HM N Yes

94(3)(b) Application of Judicial Committee Act 1833 HM N Yes

94(3)(c) Making rules of procedure for JCPC HM

95 Provision consequential on Acts of the Scottish Parliament Open N(A) Yes Yes

96 Provision consequential on Scotland Act Open N(A) Yes

97 Adaptation of certain Ministerial and other functions Open A Yes

98 Agreed redistribution of functions HM A A Yes

99(1) Treatment of individuals as Scottish taxpayers for social security purposes SofS A Yes

99(2) Determination of basic rate of tax for social security purposes SofS N Yes

100 Regulation of Tweed and Esk fisheries HM A A Yes

104(9) Determination of disputes over compensation relating to transfer of property Open N(A)

112(2) Determination of boundary of Scottish waters HM A

112(8) Variation of definition of Scottish Administration HM N N See 112(8)

115(1) Commencement SofS

115(3) Transitory & Transitional Provisions Open N(A) Yes

Schd. 2 Para. 2 Transfer of property etc. to SPCB Open N(A)

Schd. 2
Para. 7
Crown status for SPCB HM N N Yes

Particular Powers

Clause 2(1) : Power to specify the date of first ordinary general election and date, time and place of the first meeting of the Parliament

Clause 2 provides for the holding of ordinary general elections of members of the Scottish Parliament. In particular it provides for

- elections on the first Thursday in May every 4 years

- variation of the date of the election within prescribed limits

- dissolution of the Parliament prior to an election

- meeting of the Parliament following an election

- appointing the day of the poll at the first general election and the day, time and place for the first meeting of the Parliament

Clause 2(1) empowers the Secretary of State to appoint the day on which the poll at the first ordinary general election for membership of the Parliament should be held and the day, time and place for the meeting of the Parliament following the poll.

This power is required as the timetable for implementation of the Bill depends on the Bill's progress, and the dates for the first elections and meeting of the Parliament cannot reasonably be written into the Bill. It is intended that the first elections will be held on 6 May 1999.

This order will be made by statutory instrument and, under the provisions of clause 102(1) and (4), is subject to affirmative resolution procedure in both Houses of Parliament. Affirmative resolution procedure has been chosen to reflect the importance of the order in fixing the date of the Parliament's first elections and meeting.

Clause 11(1) : Power to make provision for the conduct of elections

Clause 11 enables the Secretary of State to make by order provisions about elections to the Parliament, in particular about the general conduct of elections, return of members, registration of electors, limitation of election expenses and combining Scottish Parliament elections with other elections. It also enables provision to be made about the questioning of elections and the return of members otherwise than at an election (e.g. when there is a vacancy in the seat of a regional member).

Clause 11(1) empowers the Secretary of State, by order, to make provision as to the conduct of elections for membership of the Parliament, the questioning of such an election and the consequences of irregularities, and the return of members of the Parliament otherwise than at an election. Clause 11(2) specifies certain particular matters for which provision may be made in such an order. Clause 11(4) provides that the order may apply existing provisions of the electoral legislation with or without modifications. Clause 11(5) provides that the return of a member at an election may be questioned only under Part III of the Representation of the People Act 1983 as applied by the order.

Clause 11(3) provides that the order can modify clause 9(4) and (5) of the Bill, which deal with the filling of regional vacancies. This will enable provision to be made in such an order to deal with the situation where a regional vacancy arises which is due to be filled from a party's list at a time when the next eligible person on that list is no longer associated with the party concerned. This ensures that the different potential cases can be addressed in an appropriate way.

This order will be made by statutory instrument and, under the provisions of clause 102(1) and (4), is subject to affirmative resolution procedure in both Houses of Parliament. This reflects the fact that, although the matters to be dealt with in the order are essentially technical and procedural, they are nonetheless sufficiently important to merit the scrutiny which will follow in consequence of them being debated in both Houses.

Clause 11(6) : Power to designate regional returning officers

Clause 11 enables the Secretary of State to make by order provisions about elections to the Scottish Parliament.

Clause 11(6) empowers the Secretary of State, by order, to designate a person as regional returning officer for an election. Each region encompasses a number of constituencies. Each constituency will have its own returning officer. To operate the regional member system, it is necessary to have a regional returning officer to perform the functions described in clauses 5, 6, 7 and 9. In practice it is expected that the regional returning officer will be one of the returning officers for a constituency within the region.

As the boundaries of the constituencies and regions may change, it would be too inflexible to designate the regional returning officers in primary legislation.

This order will be made by statutory instrument, but is not subject to any parliamentary procedure. The order will simply designate a returning officer and it is not therefore thought sufficiently important to require Parliamentary control.

Clause 14(1)(d) and (2) : Power to disqualify office-holders from membership of the Parliament

Clause 14 sets out the grounds on which a person will be disqualified from becoming a member or continuing to be a member of the Scottish Parliament. The general approach is that, subject to the exceptions described in clause 15, a person is disqualified from membership of the Scottish Parliament if he is disqualified from membership of the House of Commons under the various statutory and common law grounds that apply to that House. However disqualification from membership of the House of Commons by virtue of holding any of the offices set out in Part II to Part IV of Schedule 1 to the House of Commons Disqualification Act 1975 is not applied, but clause 14 confers two powers to make special provision for disqualification of officeholders in relation to the Scottish Parliament.

Clause 14(1)(d) empowers Her Majesty, by Order in Council, to specify descriptions of office-holders who are disqualified from being a member of the Parliament. Clause 14(2) empowers Her Majesty, by Order in Council, to specify officeholders who are disqualified from being a member for any constituency or region of a description specified in the Order. These disqualifications are in addition to those provided for by clause 14(1)(a) to (c). It is intended that the list of officeholders specified in the Orders will be based on that listed in Parts II to IV of Schedule 1 of the House to Commons Disqualification Act 1975, with exceptions and additions as appropriate.

There is precedent for disqualifying offices to be specified by Order. Section 5 of the House of Commons Disqualification Act 1975 provides for Schedule 1 of that Act to be amended by Order in Council pursuant to a resolution of the House of Commons.

Under the provisions of clause 102(3) and (5), an Order in Council under these powers is subject to affirmative resolution procedure in the Scottish Parliament. The Order is not subject to any procedure in the Westminster Parliament.

Clause 17(5) : Power to alter the maximum amount of caution in judicial proceedings as to disqualification

Clause 17 provides for a procedure before the Court of Session for establishing whether a member of the Parliament is disqualified or has been disqualified from membership. It is similar to the procedure before the Judicial Committee of the Privy Council provided in relation to disqualification from membership of the House of Commons by section 7 of the House of Commons Disqualification Act 1975.

Clause 17(5) empowers the Court of Session to require any person who applies to the court for a declarator to give such caution for the expenses of the proceedings as the court may direct, up to a maximum of £5000. Clause 17(5) also empowers the Scottish Ministers, by order, to vary the maximum amount. This is the only power to make subordinate legislation under the Act which is conferred on the Scottish Ministers. It is expected that this power will be used to take account of inflation.

This order will be made by statutory instrument and, under the provisions of clause 102(8), is subject to negative resolution procedure in the Scottish Parliament. The order is not subject to any procedure in the Westminster Parliament.

5 Requirement does not apply to an orde rmerely revoking an order under this subsection. See clause 102(9) Back

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