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

Clause 100 : Power to regulate Tweed and Esk fisheries

Power

This clause enables provision to be made by Order in Council for regulating fishing for salmon, trout, eels and freshwater fish in the two cross-border rivers, the Tweed and the Esk - thus enabling continuation of whole river fisheries management following the devolution of fisheries matters in Scotland. It provides a means to ensure continuation of a coherent legislative framework for the 2 border rivers, applying consistently on both sides of the border. This is considered necessary in order to ensure effective fisheries management for the river systems, including their tributaries.

Under clause 101(6), this Order may modify any enactment (except Schedule 5), prerogative instrument or document.

Procedure

Under the provisions of clause 102(3) and (5), an Order in Council under this power is subject to affirmative resolution procedure in the Scottish Parliament. Under the provisions of clause 102(1) and (5), it is also subject to affirmative resolution procedure in the Westminster Parliament.

Clause 104(2) : Transfer of property - supplementary

Clause 104 makes further supplementary provision in relation to the transfer of property and liabilities under a number of powers in the Bill.

Clause 104(2) does not provide a separate power as such, but supplements the powers provided by clauses 56, 58, 60 and 85 and paragraph 2 of Schedule 2. It provides that such subordinate legislation may, in particular

(a) provide for the creation of rights or interests, or the imposition of liabilities or conditions, in relation to property transferred or rights or interests acquired under the legislation

(b) provide for any property, liabilities or conditions to be determined under the legislation

(c) make provision (other than provision imposing a charge to tax) as to the tax treatment of anything done by or under the legislation.

Where such subordinate legislation contains provision under (c), the agreement of the Treasury is required. Under clause 101(7), it may modify any enactment, prerogative instrument or other document. It is intended that this provision will be used, for example, to provide exemption from stamp duty for transfers between public authorities under clause 85.

See also the entries for clauses 56, 58, 60 and 85 and paragraph 2 of Schedule 2.

Clause 104(9) : Power to determine disputes over compensation relating to transfer of property

Clause 104 makes further supplementary provision in relation to the transfer of property and liabilities under a number of powers in the Bill.

In particular :

Subsection (5) provides that a right of pre-emption, right of irritancy, right of return or other similar right shall not operate or become exercisable as a result of any transfer under the property transfer powers to which this clause applies;

Subsection (6) provides that the right should have effect as if the transferee were the same person as the transferor and as if the transfer had not taken place;

Subsection (7) provides for just compensation to be paid to any person in respect of a right which, apart from subsection (5) would have operated in favour of that person or be exercisable by him, but which in consequence of the operation of subsection (5) cannot subsequently operate in his favour or be exercisable by him; and

Subsection (8) provides that any compensation payable under subsection (7) shall be paid by the transferor, transferee or both.

See also the entries for clauses 56, 58, 60 and 85 and paragraph 2 of Schedule 2.

Clause 104(9) provides that subordinate legislation may provide for the determination of any disputes as to whether and to whom or by whom such compensation is to be paid and how much that compensation should be. It is thought that there would be very few, if any cases, where compensation will be payable. This power enables detailed provision to be set out in subordinate legislation.

This is an open power. It may be exercised by Her Majesty by Order in Council or by a Minister of the Crown by order.

This subordinate legislation will be made by statutory instrument and, under the provisions of clause 102(6) is subject to negative resolution procedure in the Westminster Parliament. Under clause 103(3), the subordinate legislation is not subject to annulment if it has been laid in draft before and approved by each House. It is not subject to any procedure in the Scottish Parliament.

Clause 112(2) : Power to determine the boundary of Scottish adjacent waters

This clause provides for the interpretation of various terms used in the Bill and for determining the boundary between waters adjacent to Scotland and those adjacent to other parts of the UK for the purposes of the Scotland Act.

Clause 112(2) enables any boundary between the waters adjacent to Scotland and those adjacent to other parts of the UK, required for the purposes of the definition of Scotland, to be determined by means of an Order in Council. Such a boundary may apply within internal waters or the territorial sea of the UK, but not beyond the 12-mile limit of the territorial sea.

Under the provisions of clause 102(1) and (5), an Order under this power is subject to affirmative resolution procedure in the Westminster Parliament. The Order is not subject to any procedure in the Scottish Parliament.

Clause 112(8) : Variation of Definition of Scottish Administration

The concept of the Scottish Administration is used throughout the Bill. It describes what is effectively Her Majesty's Government in Scotland. Clause 112 provides the definition of "Scottish Administration" for the purposes of the Scotland Act and other enactments.

Clause 112(5)-(7) defines references to the Scottish Administration as being to

the office-holders in the Scottish Administration, i.e.

members of the Scottish Executive and junior Scottish Ministers

holders of non-ministerial offices i.e.

the Registrar General of Births, Deaths and Marriages for Scotland;

the Keeper of the Registers of Scotland;

the Keeper of the Records of Scotland; and

those who exercise functions conferred by an enactment and the power of appointment to which is exercisable by a member of the Scottish Executive

the members of the staff of the Scottish Administration.

Clause 112(8) provides a power for Her Majesty, by Order in Council, to make any modifications of the definition which She considers necessary or expedient. This ensures that the definition can be amended to take into account any changes made to the Scottish Administration, for example if any additional non-ministerial posts are created.

Under the provisions of clause 102(6), an Order in Council under this power is subject to negative resolution procedure in the Westminster Parliament. Under the provisions of clause 102(8), the Order is also subject to negative resolution procedure in the Scottish Parliament.

Clause 115(1) : Power to commence provisions of the Scotland Act

Clause 115(1) empowers the Secretary of State to appoint, by order, the date on which most provisions of the Act will come into force. Sections 101 to 104 and 112 to 117 come into force immediately on Royal Assent.

It will be appropriate for different provisions of the Bill to come into force at different times. It is therefore appropriate that the dates should be set out by order of the Secretary of State.

As is usual for commencement orders, orders under this clause are to be made by statutory instrument, but are not subject to any Parliamentary procedure.

Clause 115(3) : Transitory and Transitional Provisions

Clause 101(3)(b) provides a general power for subordinate legislation made under the Act to make such transitory, transitional or saving provision as the person making the legislation considers necessary or expedient. Transitory and transitional provisions are often included in Commencement Orders.

Clause 115(3) is a freestanding power for subordinate legislation to make such provision as the person making the subordinate legislation considers necessary or expedient for transitory or transitional purposes in connection with the coming into force of any provision of the Scotland Act.

This is an open power. It may be exercised by Her Majesty by Order in Council or by a Minister of the Crown by order.

It is considered appropriate to have a separate power for two main reasons -

(a) the transitional arrangements will be varied and complicated. If they need to be adjusted that can be done by making an amending order. If the arrangements were included in a commencement order it would have to be revoked;

(b) the transitional order, unlike a commencement order, will be subject to Parliamentary procedure.

Under clause 101(6) a transitional order may modify any enactment (including the Scotland Act except Schedule 5), prerogative instrument or other document. In a number of cases for example the provision made in a transitional order will modify, or apply with modifications, a provision in the Scotland Act.

It is intended to use the clause 115(3) power in a number of ways, including

specifying office-holders who are to be disqualified from membership of the Parliament. providing initial standing orders for the Parliament, and a Presiding Officer for the first sitting of Parliament

providing staff and services for the Parliament

providing salaries, allowances and pensions for MSPs and Scottish Ministers

Many of these will have effect until the Parliament makes its own arrangements.

The power will also be used to provide for the financial arrangements for the year 1999-2000, during which the Scottish Executive will take over responsibility for the budget. These will include accounting and audit and a version of Supply procedure which the Parliament will be able to use. From 2000-01 onwards, the Parliament will have its own financial arrangements in place.

This subordinate legislation will be made by statutory instrument and, under the provisions of clause 102(6) is subject to negative resolution procedure in the Westminster Parliament. Under clause 103(3), the subordinate legislation is not subject to annulment if it has been laid in draft before and approved by both Houses. It is not subject to any procedure in the Scottish Parliament.

Schedule 2, paragraph 2 : Power to transfer property etc. to the Scottish Parliamentary Corporate Body

Schedule 2 makes further detailed provision relating to the Scottish Parliamentary Corporate Body (SPCB), which is established by clause 20. This Schedule covers the membership, property, staff, powers, proceedings and Crown status of the SPCB. The SPCB will carry out the functions conferred on it by the Scotland Bill and may have additional functions conferred on it by other enactments. The Parliament may issue directions to the SPCB in connection with the exercise of its functions.

Paragraph 2 of Schedule 2 gives power to the SPCB to hold property. Sub-paragraph (2) confers a power to provide, by subordinate legislation, for the transfer of any property covered by sub-paragraph (3) to the SPCB or for the SPCB to have rights or interests in relation to such property. Sub-paragraph (3) covers property belonging to a Minister of the Crown which appears to the person making the subordinate legislation to be property which is or may be required for the functions of the SPCB. Sub-paragraph (4) provides that the subordinate legislation under sub-paragraph (2) may also provide for the transfer to the SPCB of any liabilities relating to the property to which a Minister of the Crown is subject and which subsist, immediately prior to the subordinate legislation being made.

This is an open power. It may be exercised by Her Majesty by Order in Council or by a Minister of the Crown by order.

This subordinate legislation will be made by statutory instrument and, under the provisions of clause 102(6) is subject to negative resolution procedure in the Westminster Parliament. Under clause 103(3), the subordinate legislation is not subject to annulment if it has been laid in draft before and approved by both Houses. It is not subject to any procedure in the Scottish Parliament.

There are many examples of similar powers to transfer property in connection with a transfer of functions which have also been subject to negative resolution procedure, e.g. section 15 of the Local Government etc. (Scotland) Act 1994, section 36D of the New Towns (Scotland) Act 1968 and section 16 of the Further and Higher Education (Scotland) Act 1992.

Schedule 2, paragraph 7 : Power to provide for the Scottish Parliamentary Corporate Body to be treated as a Crown body

Schedule 2 makes further detailed provision relating to the Scottish Parliamentary Corporate Body (SPCB), which is established by clause 20. This Schedule covers the membership, property, staff, powers, proceedings and Crown status of the SPCB. The SPCB will carry out the functions conferred on it by the Scotland Bill and may have additional functions conferred on it by other enactments. The Parliament may issue directions to the SPCB in connection with the exercise of its functions.

Paragraph 7 of Schedule 2 deals with Crown status of the SPCB. The SPCB will not be a Crown body as it will be exercising functions on behalf of the Parliament rather than the Scottish Executive. Subparagraph (2) however provides that Her Majesty may, by Order in Council, provide for the SPCB to be treated as a Crown body for the purpose of any enactment. In particular the Order in Council may provide for employment under the SPCB to be treated as Crown employment or for land held, used or managed by the SPCB or operations carried out by them to be treated as Crown land or operations. This power broadly mirrors provision made in relation to the Parliamentary corporate bodies of the House of Commons and the House of Lords by sections 1(6) and 2(6) of the Parliamentary Corporate Bodies Act 1992.

Under clause 101(6), this Order may modify any enactment (except Schedule 5), prerogative instrument or document.

An Order in Council under this power will, under the provisions of clause 102(8), be subject to negative resolution procedure in the Scottish Parliament. Under the provisions of clause 102(6) it is also to be subject to negative resolution procedure in the Westminster Parliament.

Orders in Council made under the powers conferred by the Parliamentary Corporate Bodies Act 1992 are subject to negative resolution procedure in the Westminster Parliament.

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