Legalize / United Kingdom / Public General Act

Scotland Act 1998

Type Public General Act

Publication 1998-11-19

Last updated 2026-03-18

State In force

Department Statute Law Database

Source legislation.gov.uk

articles Not indexed

Reform history JSON API

(b) a member of the staff of the Scottish Administration,

shall be service in the civil service of the State.

(3) See Part 1 of the Constitutional Reform and Governance Act 2010 (in particular, sections 3 and 4) for provision affecting—

(a) subsection (1), and

(b) any other enactment about the appointment of persons mentioned in subsection (2).

(4) See also section 1 of the Civil Service (Management Functions) Act 1992 under which functions conferred on the Minister for the Civil Service by section 3 of the Constitutional Reform and Governance Act 2010 may be delegated to the Scottish Ministers etc.

(5) Any salary or allowances payable to or in respect of the persons mentioned in subsection (2) (including contributions to any pension scheme) shall be payable out of the Scottish Consolidated Fund.

(6) Section 1(2) and (3) of the Superannuation Act 1972 (delegation of functions relating to civil service superannuation schemes etc.) shall have effect as if references to a Minister of the Crown (other than the Minister for the Civil Service) included the Scottish Ministers.

(7) The Scottish Ministers shall make payments to the Minister for the Civil Service, at such times as he may determine, of such amounts as he may determine in respect of—

(a) the provision of pensions, allowances or gratuities by virtue of section 1 of the Superannuation Act 1972 to or in respect of persons who are or have been in such service as is mentioned in subsection (2), and

(b) any expenses to be incurred in administering those pensions, allowances or gratuities.

(8) Amounts required for payments under subsection (7) shall be charged on the Scottish Consolidated Fund.

(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Ministerial functions

Exercise of functions

52

(1) Statutory functions may be conferred on the Scottish Ministers by that name.

(2) Statutory functions of the Scottish Ministers, the First Minister or the Lord Advocate shall be exercisable on behalf of Her Majesty.

(3) Statutory functions of the Scottish Ministers shall be exercisable by any member of the Scottish Government.

(4) Any act or omission of, or in relation to, any member of the Scottish Government shall be treated as an act or omission of, or in relation to, each of them; and any property acquired, or liability incurred, by any member of the Scottish Government shall be treated accordingly.

(5) Subsection (4) does not apply in relation to the exercise of—

(a) functions conferred on the First Minister alone, or

(b) retained functions of the Lord Advocate.

(6) In this Act, “retained functions” in relation to the Lord Advocate means—

(a) any functions exercisable by him immediately before he ceases to be a Minister of the Crown, and

(b) other statutory functions conferred on him alone after he ceases to be a Minister of the Crown.

(7) In this section, “statutory functions” means functions conferred by virtue of any enactment.

General transfer of functions

53

(1) The functions mentioned in subsection (2) shall, so far as they are exercisable within devolved competence, be exercisable by the Scottish Ministers instead of by a Minister of the Crown.

(2) Those functions are—

(a) those of Her Majesty’s prerogative and other executive functions which are exercisable on behalf of Her Majesty by a Minister of the Crown,

(b) other functions conferred on a Minister of the Crown by a prerogative instrument, and

but do not include any retained functions of the Lord Advocate.

(3) In this Act, “pre-commencement enactment” means—

(a) an Act passed before or in the same session as this Act and any other enactment made before the passing of this Act,

(b) an enactment made, before the commencement of this section, under such an Act or such other enactment,

(c) subordinate legislation under section 106, to the extent that the legislation states that it is to be treated as a pre-commencement enactment.

(3A) But see sections 9, 32 and 51 of the Scotland Act 2016 (which give “pre-commencement enactment” a different meaning for functions exercisable within devolved competence by virtue of certain provisions of that Act).

(4) This section and section 54 are modified by Part III of Schedule 4.

Devolved competence

54

(1) References in this Act to the exercise of a function being within or outside devolved competence are to be read in accordance with this section.

(2) It is outside devolved competence—

(a) to make any provision by subordinate legislation which would be outside the legislative competence of the Parliament if it were included in an Act of the Scottish Parliament, or

(b) to confirm or approve any subordinate legislation containing such provision.

(3) In the case of any function other than a function of making, confirming or approving subordinate legislation, it is outside devolved competence to exercise the function (or exercise it in any way) so far as a provision of an Act of the Scottish Parliament conferring the function (or, as the case may be, conferring it so as to be exercisable in that way) would be outside the legislative competence of the Parliament.

Functions exercisable with agreement

55

(1) A statutory provision, or any provision not contained in an enactment, which provides for a Minister of the Crown to exercise a function with the agreement of, or after consultation with, any other Minister of the Crown shall cease to have effect in relation to the exercise of the function by a member of the Scottish Government by virtue of section 53.

(2) In subsection (1) “statutory provision” means any provision in a pre-commencement enactment other than paragraph 5 or 15 of Schedule 32 to the Local Government, Planning and Land Act 1980 (designation of enterprise zones).

Shared powers

56

(1) Despite the transfer by virtue of section 53 of any function under—

(a) section 17(1) of the Ministry of Transport Act 1919 (power to make advances for certain purposes),

(b) any Order in Council under section 1 of the United Nations Act 1946 (measures to give effect to Security Council decisions),

(c) section 9 of the Industrial Organisation and Development Act 1947 (levies for scientific research, promotion of exports, etc.),

(d) section 5 of the Science and Technology Act 1965 (funding of scientific research),

(e) section 1 of the Mineral Exploration and Investment Grants Act 1972 (contributions in respect of mineral exploration),

(f) sections 10 to 12 of the Industry Act 1972 (credits and grants for construction of ships and offshore installations),

(g) sections 2, 11(3) and 12(4) of the Employment and Training Act 1973 (power to make arrangements for employment and training etc. and to make certain payments),

(h) sections 7 to 9 and 11 to 13 of the Industrial Development Act 1982 (financial and other assistance for industry), and

(i) sections 39 and 40 of the Road Traffic Act 1988 (road safety information and training),

the function shall be exercisable by a Minister of the Crown as well as by the Scottish Ministers.

(2) Despite the transfer of any other function by virtue of section 53, the function shall, if subordinate legislation so provides, be exercisable (or be exercisable so far as the legislation provides) by a Minister of the Crown as well as by the Scottish Ministers.

(3) Subordinate legislation under subsection (2) may not be made so as to come into force at any time after the function in question has become exercisable by the Scottish Ministers.

(4) Any power referred to in section 53(2)(a) to establish, maintain or abolish a body, office or office-holder having functions which include both—

(a) functions which are exercisable in or as regards Scotland and do not relate to reserved matters, and

(b) other functions,

shall, despite that section, be exercisable jointly by the Minister of the Crown and the Scottish Ministers.

(5) In subsection (4), “office-holder” includes employee or other post-holder.

Community law and Convention rights

57

(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) A member of the Scottish Government has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights ....

(3) Subsection (2) does not apply to an act of the Lord Advocate—

(a) in prosecuting any offence, or

(b) in his capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland,

...

(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(12) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(13) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(14) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(15) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Power to prevent or require action

58

(1) If the Secretary of State has reasonable grounds to believe that any action proposed to be taken by a member of the Scottish Government would be incompatible with any international obligations, he may by order direct that the proposed action shall not be taken.

(2) If the Secretary of State has reasonable grounds to believe that any action capable of being taken by a member of the Scottish Government is required for the purpose of giving effect to any such obligations, he may by order direct that the action shall be taken.

(3) In subsections (1) and (2), “action” includes making, confirming or approving subordinate legislation and, in subsection (2), includes introducing a Bill in the Parliament.

(4) If any subordinate legislation made or which could be revoked by a member of the Scottish Government contains provisions—

(a) which the Secretary of State has reasonable grounds to believe to be incompatible with any international obligations or the interests of defence or national security, or

(b) which make modifications of the law as it applies to reserved matters and which the Secretary of State has reasonable grounds to believe to have an adverse effect on the operation of the law as it applies to reserved matters,

the Secretary of State may by order revoke the legislation.

(5) An order under this section must state the reasons for making the order.

Property and liabilities

Property and liabilities of the Scottish Ministers

59

(1) Property may be held by the Scottish Ministers by that name.

(2) Property acquired by or transferred to the Scottish Ministers shall belong to, and liabilities incurred by the Scottish Ministers shall be liabilities of, the Scottish Ministers for the time being.

(3) In relation to property to be acquired by or transferred to, or belonging to, the Scottish Ministers or liabilities incurred by the Scottish Ministers, references to the Scottish Ministers—

(a) in any title recorded in the Register of Sasines or registered in the Land Register of Scotland, or

(b) in any other document,

shall be read in accordance with subsection (2).

(4) A document shall be validly executed by the Scottish Ministers if it is executed by any member of the Scottish Government.

Transfers to the Scottish Ministers

60

(1) Subordinate legislation may provide—

(a) for the transfer to the Scottish Ministers of any property belonging to a Minister of the Crown or government department, or

(b) for the Scottish Ministers to have such rights or interests in relation to any property belonging to a Minister of the Crown or government department as the person making the legislation considers appropriate (whether in connection with a transfer or otherwise).

(2) Subordinate legislation may provide for the transfer to the Scottish Ministers of any liabilities to which a Minister of the Crown or government department is subject.

(3) Subordinate legislation under this section may only be made in connection with any transfer or sharing of functions of a Minister of the Crown by virtue of section 53, 63 or 89 or in any other circumstances in which the person making the legislation considers it appropriate to do so for the purposes of this Act or the Scotland Act 2016.

Property and liabilities of the Lord Advocate and the First Minister

61

(1) Property may be held by the Lord Advocate by that name.

(2) Property acquired by or transferred to the Lord Advocate shall belong to, and liabilities incurred by the Lord Advocate shall be liabilities of, the Lord Advocate for the time being.

(3) In relation to property to be acquired by or transferred to, or belonging to, the Lord Advocate or liabilities incurred by the Lord Advocate, references to the Lord Advocate—

(a) in any title recorded in the Register of Sasines or registered in the Land Register of Scotland, or

(b) in any other document,

shall be read in accordance with subsection (2).

(4) Any rights and liabilities acquired or incurred by the First Minister shall be rights or (as the case may be) liabilities of the First Minister for the time being.

Transfers to the Lord Advocate

62

(1) Subordinate legislation may provide—

(a) for the transfer to the Lord Advocate of any property belonging to a Minister of the Crown or government department, or

(b) for the Lord Advocate to have such rights or interests in relation to any property belonging to a Minister of the Crown or government department as the person making the legislation considers appropriate (whether in connection with a transfer or otherwise).

(2) Subordinate legislation may provide for the transfer to the Lord Advocate of any liabilities to which a Minister of the Crown or government department is subject.

(3) Subordinate legislation under this section may only be made in connection with the Lord Advocate becoming a member of the Scottish Government or having any retained functions or in any other circumstances in which the person making the legislation considers it appropriate to do so for the purposes of this Act.

Transfer of additional functions

Power to transfer functions

63

(1) Her Majesty may by Order in Council provide for any functions, so far as they are exercisable by a Minister of the Crown in or as regards Scotland, to be exercisable—

(a) by the Scottish Ministers instead of by the Minister of the Crown,

(b) by the Scottish Ministers concurrently with the Minister of the Crown, or

(2) Where an Order is made under subsection (1)(a) or (b) in relation to a function of a Minister of the Crown which is exercisable only with the agreement of, or after consultation with, another Minister of the Crown, the function shall, unless the Order provides otherwise, be exercisable by the Scottish Ministers free from any such requirement.

(3) An Order under this section may, in particular, provide for any function exercisable by the Scottish Ministers 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, a Minister of the Crown or other person.

Part III — Financial Provisions

Scottish Consolidated Fund

64

(1) There shall be a Scottish Consolidated Fund.

(2) The Secretary of State shall from time to time make payments into the Fund out of money provided by Parliament of such amounts as he may determine.

(2A) The Secretary of State shall in accordance with section 64A pay into the Fund out of money provided by Parliament any amounts payable under that section.

(3) Sums received by an office-holder in the Scottish Administration shall be paid into the Fund.

(4) Subsection (3) is subject to any provision made by or under an Act of the Scottish Parliament for the disposal of or accounting for such sums.

(5) The Treasury may, after consulting with the Scottish Ministers, by order designate receipts of any description specified in the order which are payable into the Fund (or would be but for any provision made by or under an Act of the Scottish Parliament).

(6) The Scottish Ministers shall make payments to the Secretary of State, at such times and by such methods as the Treasury may from time to time determine, of sums equal to the total amount outstanding in respect of designated receipts.

(7) Amounts required for the payment of sums under subsection (6) shall be charged on the Fund.

(8) The Fund shall be held with the Paymaster General.

Payments out of the Fund

65

(1) A sum may only be paid out of the Scottish Consolidated Fund if—

(a) it has been charged on the Fund by any enactment,

(b) it is payable out of the Fund without further approval by virtue of this Act, or

(c) it is paid out for or in connection with any of the purposes mentioned in subsection (2) in accordance with rules made by or under an Act of the Scottish Parliament.

(2) Those purposes are—

(a) meeting expenditure of the Scottish Administration,

(b) meeting expenditure payable out of the Fund under any enactment.

(3) A sum paid out of the Fund shall not be applied for any purpose other than that for which it was charged or (as the case may be) paid out.

Borrowing by the Scottish Ministers etc

66

(1) The Scottish Ministers may borrow from the Secretary of State—

(a) any sums required by them for the purpose of meeting a temporary excess of sums paid out of the Scottish Consolidated Fund over sums paid into that Fund,

(b) any sums required by them for the purpose of providing a working balance in the Scottish Consolidated Fund, ...

(c) any sums which in accordance with rules determined by the Treasury are required by them to meet current expenditure because of a shortfall in receipts from devolved taxes, ... from income tax charged by virtue of a Scottish rate resolution, or from amounts payable under section 64A, against forecast receipts.

(d) any sums which in accordance with rules determined by the Treasury are required by them to meet current expenditure because of an excess of welfare payments over forecast welfare payments, and

(e) any sums which in accordance with rules made by the Treasury are required by them to meet current expenditure because of a Scotland-specific negative economic shock.

(1ZA) In subsection (1)(d) “welfare payments” means—

(a) payments under any provision relating to matters within exceptions 1 to 10 in Section F1 of Part 2 of Schedule 5 or exception 1 in Section H3 of that Part, and

(b) payments attributable to regulations made by the Scottish Ministers by virtue of section 29 or 30 of the Scotland Act 2016 (powers in relation to universal credit).

(1A) The Scottish Ministers may, with the approval of the Treasury, borrow by way of loan or by the issue of bonds (but not bonds transferable by delivery) any sums required by them for the purpose of meeting capital expenditure.

(1B) A sum is required for the purpose of meeting capital expenditure if the expenditure would be capital expenditure for the purposes of accounts under section 70.

(2) Amounts required for the repayment of, or the payment of interest on, sums borrowed under this section shall be charged on the Fund.

(3) Sums borrowed under this section from the Secretary of State shall be repaid to the Secretary of State at such times and by such methods, and interest on them shall be paid to him at such rates and at such times, as the Treasury may from time to time determine.

(4) A member of the Scottish Government may borrow money only under this section or under any power conferred by any other Act of Parliament.

(5) The Secretary of State may by order made with the consent of the Treasury amend subsection (1A) so as to vary the means by which the Scottish Ministers may borrow money.

Lending by the Secretary of State

67

(1) The Treasury may issue to the Secretary of State out of the National Loans Fund such sums as are required by him for making loans under section 66.

(2) The aggregate at any time outstanding in respect of the principal of sums borrowed under section 66(1) shall not exceed £1,834.303 million.

(3) The Secretary of State may by order made with the consent of the Treasury substitute for the amount (or substituted amount) specified in subsection (2) such ... amount as may be specified in the order.

(3A) An amount substituted under subsection (3) may be more or less than the amount for which it is substituted but may not be less than £1.75 billion.

(4) Sums received by the Secretary of State under section 66(3) shall be paid into the National Loans Fund.

Borrowing by statutory bodies

68

(1) If a member of the Scottish Government lends money to a body established under any enactment, the rate of interest on the loan shall not be less than the lowest rate determined by the Treasury under section 5 of the National Loans Act 1968 in respect of similar loans made out of the National Loans Fund on the day the loan is made.

(2) A body established under any enactment shall not, in pursuance of a power conferred by virtue of an Act of the Scottish Parliament, borrow money in a currency other than sterling except with the consent of the Scottish Ministers given with the approval of the Treasury.

The Auditor General for Scotland

69

(1) There shall be an Auditor General for Scotland who shall be an individual appointed by Her Majesty on the nomination of the Parliament.

(2) A recommendation shall not be made to Her Majesty for the removal from office of the Auditor General for Scotland unless the Parliament so resolves and, if the resolution is passed on a division, the number of members voting in favour is not less than two-thirds of the total number of seats for members of the Parliament.

(3) The validity of any act of the Auditor General for Scotland is not affected by any defect in his nomination by the Parliament.

(4) The Auditor General for Scotland shall not, in the exercise of any of his functions, be subject to the direction or control of any member of the Scottish Government or of the Parliament.

(5) Subsection (4) does not apply in relation to any function conferred on him of preparing accounts.

Financial control, accounts and audit

70

(1) Scottish legislation shall provide—

(a) for proper accounts to be prepared by the Scottish Ministers, by the Lord Advocate and by other persons to whom sums are paid out of the Scottish Consolidated Fund, of their expenditure and receipts,

(b) for the Scottish Ministers to prepare an account of payments into and out of the Fund,

(c) for the Auditor General for Scotland to exercise, or ensure the exercise by other persons of, the functions mentioned in subsection (2),

(d) for access by persons exercising those functions to such documents as they may reasonably require,

(e) for members of the staff of the Scottish Administration designated for the purpose to be answerable to the Parliament in respect of the expenditure and receipts of each part of the Scottish Administration, and

(f) for the publication of parliamentary accounts and of reports on such accounts and for the laying of such accounts and reports before the Parliament.

(2) The functions referred to in subsection (1)(c) are—

(a) issuing credits for the payment of sums out of the Fund,

(b) examining parliamentary accounts (which includes determining whether sums paid out of the Fund have been paid out and applied in accordance with section 65), and certifying and reporting on them,

(c) carrying out examinations into the economy, efficiency and effectiveness with which the Scottish Ministers and the Lord Advocate have used their resources in discharging their functions, and

(d) carrying out examinations into the economy, efficiency and effectiveness with which other persons determined under Scottish legislation to whom sums are paid out of the Fund have used those sums in discharging their functions.

(3) Standing orders shall provide for the consideration by the Parliament of accounts and reports laid before it in pursuance of subsection (1)(f).

(4) Scottish legislation may make further provision for the purpose of ensuring that persons who receive sums derived from the Fund are accountable including, in particular, provision for any person to whom subsection (1)(a) does not apply to be accountable for his expenditure and receipts in respect of functions for which he receives sums derived from the Fund.

(5) Persons (other than the Auditor General for Scotland) charged with the exercise of any function mentioned in subsection (2) or other like function conferred by Scottish legislation shall not, in the exercise of that or any ancillary function, be subject to the direction or control of any member of the Scottish Government or of the Parliament.

(6) Scottish legislation may not require any cross-border public authority to prepare accounts if any other legislation requires—

(a) the authority to prepare accounts of its expenditure and receipts, and

(b) the accounts to be examined, certified and reported on by the Auditor General for Scotland, the Comptroller and Auditor General or a person appointed by either of them.

(7) Subsection (2)(b) does not apply to accounts prepared by the Auditor General for Scotland.

(8) This section does not require Scottish legislation to impose any requirement which is imposed by any other legislation.

(9) In this section—

“parliamentary accounts” means—any accounts prepared in pursuance of subsection (1)(a) or (b), andany accounts referred to in subsection (6) which are required to be examined, certified and reported on by the Auditor General for Scotland or any person appointed by him,

“Scottish legislation” means provision made by or under an Act of the Scottish Parliament and “other legislation” means provision made by any other enactment.

Existing debt

71

(1) Subsections (2) to (4) apply where—

(a) power to lend money under a provision of a pre-commencement enactment was exercised by the Secretary of State,

(b) the sums required by him for the exercise of the power were issued by the Treasury out of the National Loans Fund, and

(c) the power is exercisable by the Scottish Ministers by virtue of section 53, or would have been so exercisable but for the repeal of the pre-commencement enactment.

(2) Any amount payable by way of repayment of or interest on the loan shall be paid to the Scottish Ministers and into the Scottish Consolidated Fund (instead of to the Secretary of State and into the National Loans Fund).

(3) Amounts equal to those which are to be received by the Scottish Ministers in repayment of principal shall be treated as being amounts of advances made on the commencement of this section to the Scottish Ministers by the Secretary of State.

(4) Such advances shall be repaid to the Secretary of State at such times and by such methods, and interest on them shall be paid to him at such rates and at such times, as the Treasury may from time to time determine.

(5) Subsection (6) applies to any amount outstanding immediately before the commencement of this subsection in respect of the principal of the sum treated by virtue of section 2(3) of the Government Trading Funds Act 1973 as issued to the Registers of Scotland Executive Agency Trading Fund on the day on which the order establishing that fund came into force (“the issue date”).

(6) The Secretary of State may, with the agreement of the Treasury, by order provide—

(a) for the amount to be treated as an advance made by him to the Scottish Ministers on the issue date, and

(b) for the advance to be repaid to him at such times and by such methods, and for interest on the advance to be paid to him at such rates and at such times, as were determined by the Treasury under section 2B(3) of that Act in respect of the sum referred to in subsection (5).

(7) Sums required to be paid under subsection (4) or (6) shall be charged on the Scottish Consolidated Fund.

(8) Sums received under subsection (4) or (6) shall be paid into the National Loans Fund.

Accounts of loans to the Scottish Ministers

72

The Secretary of State shall, for each financial year—

(a) prepare, in such form and manner as the Treasury may direct, an account of sums paid and received by him under sections 66, 67 and 71, and

(b) send the account to the Comptroller and Auditor General not later than the end of November in the following financial year,

and the Comptroller and Auditor General shall examine, certify and report on the account and shall lay copies of it and of his report before each House of Parliament.

Part IV — The tax-varying power

Power to fix basic rate for Scottish taxpayers

73

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Supplemental provision with respect to resolutions

74

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Scottish taxpayers

75

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Changes to income tax structure

76

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Accounting for additional Scottish tax

77

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Effect of tax reduction for Scottish taxpayers

78

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Supplemental powers to modify enactments

79

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Reimbursement of expenses

80

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Part V — Miscellaneous and general

Remuneration of members of the Parliament and Government

Remuneration of members of the Parliament and Executive

81

(1) The Parliament shall make provision for the payment of salaries to members of the Parliament and members of the Scottish Government.

(2) The Parliament may make provision for the payment of allowances to members of the Parliament or members of the Scottish Government.

(3) The Parliament may make provision for the payment of pensions, gratuities or allowances to, or in respect of, any person who—

(a) has ceased to be a member of the Parliament or the Scottish Government, or

(b) has ceased to hold such office, employment or other post in connection with the Parliament or the Scottish Government as the Parliament may determine but continues to be a member of the Parliament or the Scottish Government.

(4) Such provision may, in particular, include provision for—

(a) contributions or payments towards provision for such pensions, gratuities or allowances,

(b) the establishment and administration (whether by the Parliamentary corporation or otherwise) of one or more pension schemes.

(5) In this section “provision” includes provision—

(a) by an Act of the Scottish Parliament, or

(b) by a resolution of the Parliament conferring functions on the Parliamentary corporation;

and references to a member of the Scottish Government include a junior Scottish Minister.

Limits on salaries of members of the Parliament

82

(1) The Parliament shall ensure that the amount of salary payable to a member of the Parliament in accordance with section 81 is reduced if any salary is payable to him—

(za) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(a) pursuant to a resolution (or combination of resolutions) of the House of Lords relating to the remuneration of members of that House, ...

(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) The Parliament shall ensure that the amount of salary is reduced—

(a) to a particular proportion of what it would otherwise be or to a particular amount, or

(b) by the amount of any salary payable to the member as mentioned in subsection (1)(a), by a particular proportion of that amount or by some other particular amount.

(2A) The Parliament is to make no payment of salary to a member of the Parliament in accordance with section 81(1) in respect of any period in which the member is or was also a member of the House of Commons.

(2B) Subsection (2A) does not apply to any salary payable to a member of the Parliament under section 81(1) in their capacity as—

(a) the First Minister,

(b) a Minister or junior Scottish Minister,

(d) the Presiding Officer or a Deputy Presiding Officer.

(2C) The Parliament must ensure that the amount of salary payable to a member of the Parliament in accordance with section 81(1) is reduced by the amount specified in subsection (2D) if remuneration is also payable to the member in respect of the same period under regulations made under section 11(1) of the Local Governance (Scotland) Act 2004 (“the 2004 Act”).

(2D) The amount of the reduction for the purposes of subsection (2C) is the amount specified as payable to a councillor (who is not designated the Leader of the Council, the Civic Head or a senior councillor) by regulations made under section 11(1) of the 2004 Act.

Remuneration: supplementary

83

(1) The Parliament shall ensure that information concerning sums paid as salaries, allowances, pensions or gratuities of the kind mentioned in section 81 is published for each financial year.

(2) No payment of salary or allowances of the kind mentioned in section 81(1) or (2) shall be made to a person who is required by section 84 to take an oath unless he has done so.

(3) Subsection (2) does not affect any entitlement to payments in respect of the period before the person concerned took the oath once he has done so.

(4) For the purposes of sections 81 and 82, a person who is a member of the Parliament immediately before the Parliament is dissolved shall be treated—

(a) if he continues to hold office by virtue of section 19(2) or paragraph 1 of Schedule 2, as if he were such a member until the end of the day on which he ceases to hold such office, and

(b) if he does not fall within paragraph (a) but is nominated as a candidate at the subsequent general election, as if he were such a member until the end of the day on which the election is held.

(5) Different provision may be made under section 81 or 82 for different cases.

Other provision about members of the Parliament etc.

Oaths

84

(1) A person who is returned as a member of the Parliament shall take the oath of allegiance (whether or not he has taken the oath after being returned on a previous occasion or otherwise than as a member of the Parliament).

(2) He shall do so at a meeting of the Parliament and shall not take part in any other proceedings of the Parliament until he has done so.

(3) If he has not done so within the period of two months beginning with the day on which he was returned, or such longer period as the Parliament may have allowed before the end of that period, he shall cease to be a member of the Parliament (so that his seat is vacant).

(4) Each member of the Scottish Government shall on appointment—

(a) take the official oath in the form provided by the Promissory Oaths Act 1868, and

(b) take the oath of allegiance.

(5) Each junior Scottish Minister shall on appointment take the oath of allegiance.

(6) Subsections (4) and (5) do not require a member of the Parliament to take the oath of allegiance again if he has already done so in compliance with his duty as a member.

(7) In this section, references to taking the oath of allegiance are to taking it in the form provided by the Promissory Oaths Act 1868.

Exemption from jury service

85

(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) In Part III of Schedule 1 to the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980 (persons excusable as of right from jury service), after the entries in Group A there is inserted—

(a) members of the Scottish Parliament; (b) members of the Scottish Government; and (c) junior Scottish Ministers.

Arrangements at Westminster

Scottish representation at Westminster

86

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

The Advocate General for Scotland

87

(1) In Schedule 2 to the House of Commons Disqualification Act 1975 (Ministerial offices) and Part III of Schedule 1 to the Ministerial and other Salaries Act 1975 (salaries of the Law Officers), after the entry for the Solicitor General there is inserted—

Advocate General for Scotland

(2) The validity of anything done in relation to the Advocate General is not affected by a vacancy in that office.

(3) If that office is vacant or the Advocate General is for any reason unable to act, his functions shall be exercisable by such other Minister of the Crown as the Prime Minister may determine in writing.

Cross-border public authorities

Cross-border public authorities: initial status

88

(1) Sections 53 and 118 to 121 shall not apply in relation to any function which is specifically exercisable in relation to a cross-border public authority; and section 118 shall not apply in relation to any function of such an authority.

(2) A Minister of the Crown shall consult the Scottish Ministers before he exercises, in relation to a cross-border public authority, any specific function—

(a) which relates to any appointment or removal of the cross-border public authority concerned or of any members or office-holders of the cross-border public authority concerned, or

(b) whose exercise might affect Scotland otherwise than wholly in relation to reserved matters.

(3) Any cross-border public authority or other person which is required by a pre-commencement enactment or a prerogative instrument to lay any report relating to a cross-border public authority before Parliament or either House of Parliament shall also lay the report before the Scottish Parliament.

(4) Subsections (1) to (3) are subject to any Order in Council made under section 89.

(5) In this Act “cross-border public authority” means any body, government department, office or office-holder specified in an Order in Council made by Her Majesty under this section.

(6) Such an Order may only specify a body, government department, office or office-holder which (at the time when the Order is made) has, in addition to other functions, functions which are exercisable in or as regards Scotland and do not relate to reserved matters.

(7) In this section—

“office-holder” includes employee or other post-holder,

“report” includes accounts and any statement.

Power to adapt etc. cross-border public authorities

89

(1) Her Majesty may by Order in Council make such provision in relation to a cross-border public authority as She considers necessary or expedient in consequence of this Act.

(2) Such provision may, in particular, include provision—

(a) modifying any function of a cross-border public authority or of a Minister of the Crown in relation to such an authority,

(b) conferring any function on a cross-border public authority or on a Minister of the Crown or the Scottish Ministers in relation to such an authority,

(d) modifying the application of section 56(4) or 88(1), (2) or (3),

(e) for any function to be exercisable by the Scottish Ministers instead of by a Minister of the Crown, or by the one concurrently with the other, or by both jointly or by either with the agreement of or after consultation with the other,

(f) apportioning any assets or liabilities,

(g) imposing, or enabling the imposition of, any limits or other restrictions in addition to or in substitution for existing limits or restrictions,

(h) providing for sums to be charged on or payable out of, or paid into, the Scottish Consolidated Fund (instead of or in addition to payments into or out of the Consolidated Fund or the National Loans Fund or out of money provided by Parliament),

(i) requiring payments, with or without interest, to a Minister of the Crown or into the Consolidated Fund or National Loans Fund.

(3) No recommendation shall be made to Her Majesty in Council to make an Order under this section unless the cross-border public authority concerned has been consulted.

Power to transfer property of cross-border public authorities

90

(1) This section applies if an Act of the Scottish Parliament provides for any functions of a cross-border public authority to be no longer exercisable in or as regards Scotland.

(2) Her Majesty may by Order in Council provide—

(a) for the transfer of any property to which this section applies, or

(b) for any person to have such rights or interests in relation to any property to which this section applies as Her Majesty considers appropriate (whether in connection with a transfer or otherwise).

(3) This section applies to property belonging to the cross-border public authority concerned which appears to Her Majesty—

(a) to be held or used wholly or partly for or in connection with the exercise of any of the functions concerned, or

(b) not to be within paragraph (a) but, when last held or used for or in connection with the exercise of any function, to have been so held or used for or in connection with the exercise of any of the functions concerned.

(4) Her Majesty may by Order in Council provide for the transfer of any liabilities—

(a) to which the cross-border public authority concerned is subject, and

(b) which appear to Her Majesty to have been incurred wholly or partly for or in connection with the exercise of any of the functions concerned.

(5) No recommendation shall be made to Her Majesty in Council to make an Order under this section unless the cross-border public authority concerned has been consulted.

Miscellaneous

Maladministration

91

(1) The Parliament shall make provision for the investigation of relevant complaints made to its members in respect of any action taken by or on behalf of—

(a) a member of the Scottish Government in the exercise of functions conferred on the Scottish Ministers, or

(b) any other office-holder in the Scottish Administration.

(2) For the purposes of subsection (1), a complaint is a relevant complaint if it is a complaint of a kind which could be investigated under the Parliamentary Commissioner Act 1967 if it were made to a member of the House of Commons in respect of a government department or other authority to which that Act applies.

(3) The Parliament may make provision for the investigation of complaints in respect of—

(a) any action taken by or on behalf of an office-holder in the Scottish Administration,

(b) any action taken by or on behalf of the Parliamentary corporation,

(d) any action concerning Scotland and not relating to reserved matters which is taken by or on behalf of a cross-border public authority.

(4) In making provision of the kind required by subsection (1), the Parliament shall have regard (among other things) to the Act of 1967.

(5) Sections 53 and 117 to 121 shall not apply in relation to functions conferred by or under the Act of 1967.

(6) In this section—

“action” includes failure to act (and related expressions shall be read accordingly),

“provision” means provision by an Act of the Scottish Parliament;

and the references to the Act of 1967 are to that Act as it has effect on the commencement of this section.

Queen’s Printer for Scotland

92

(1) There shall be a Queen’s Printer for Scotland who shall—

(a) exercise the Queen’s Printer functions in relation to Acts of the Scottish Parliament and subordinate legislation (other than Scottish statutory instruments) to which this section applies, and

(b) exercise any other functions conferred on her by this Act or any other enactment.

(2) In subsection (1), “the Queen’s Printer functions” means the printing functions in relation to Acts of Parliament and subordinate legislation of the Queen’s Printer of Acts of Parliament.

(3) The Queen’s Printer for Scotland shall also on behalf of Her Majesty exercise Her rights and privileges in connection with—

(a) Crown copyright in Acts of the Scottish Parliament,

(b) Crown copyright in subordinate legislation to which this section applies,

(c) Crown copyright in any existing or future works (other than subordinate legislation) made in the exercise of a function which is exercisable by any office-holder in, or member of the staff of, the Scottish Administration (or would be so exercisable if the function had not ceased to exist),

(d) other copyright assigned to Her Majesty in works made in connection with the exercise of functions by any such office-holder or member.

(4) This section applies to subordinate legislation made, confirmed or approved—

(a) by a member of the Scottish Government,

(b) by a Scottish public authority with mixed functions or no reserved functions, or

(4A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4B) If, following an alteration such as is mentioned in section 30(5)—

(a) subordinate legislation is made, confirmed or approved under a provision which continues to have effect by virtue of section 30(6), and

(b) the making, confirmation or approval would be within devolved competence but for the alteration,

the subordinate legislation is to be regarded for the purposes of this section as being made, confirmed or approved within devolved competence.

(5) The Queen’s Printer of Acts of Parliament shall hold the office of Queen’s Printer for Scotland.

(6) References in this Act to a Scottish public authority include the Queen’s Printer for Scotland.

Agency arrangements

93

(1) A Minister of the Crown may make arrangements for any of his specified functions to be exercised on his behalf by the Scottish Ministers; and the Scottish Ministers may make arrangements for any of their specified functions to be exercised on their behalf by a Minister of the Crown.

(2) An arrangement under this section does not affect a person’s responsibility for the exercise of his functions.

(2A) The collection and management of a devolved tax is a specified function of the Scottish Ministers.

(3) In this section—

“functions” does not include a function of making, confirming or approving subordinate legislation,

“Minister of the Crown” includes government department,

“specified” (subject to subsection (2A) means specified in an Order in Council made by Her Majesty under this subsection;

and this section applies to the Lord Advocate as it applies to the Scottish Ministers.

Private legislation

94

(1) This section applies where a pre-commencement enactment makes provision which has the effect of—

(a) requiring any order to be confirmed by Act of Parliament, or

(b) requiring any order (within the meaning of the Statutory Orders (Special Procedure) Act 1945) to be subject to special parliamentary procedure,

and power to make, confirm or approve the order in question is exercisable by the Scottish Ministers by virtue of section 53.

(2) The provision shall have effect, so far as it relates to the exercise of the power to make, confirm or approve the order by virtue of section 53, as if it required the order—

(a) to be confirmed by an Act of the Scottish Parliament, or

(b) (as the case may be) to be subject to such special procedure as may be provided by or under such an Act.

Appointment and removal of judges

95

(1) It shall continue to be for the Prime Minister to recommend to Her Majesty the appointment of a person as Lord President of the Court of Session or Lord Justice Clerk.

(2) The Prime Minister shall not recommend to Her Majesty the appointment of any person who has not been nominated by the First Minister for such appointment.

(3) Before nominating persons for such appointment the First Minister shall consult the Lord President and the Lord Justice Clerk (unless, in either case, the office is vacant).

(4) It is for the First Minister, after consulting the Lord President, to recommend to Her Majesty the appointment of a person as—

(a) a judge of the Court of Session (other than the Lord President or the Lord Justice Clerk), or

(b) a sheriff principal or a sheriff.

(5) The First Minister shall comply with any requirement in relation to—

(a) a nomination under subsection (2), or

(b) a recommendation under subsection (4),

imposed by virtue of any enactment.

(6) A judge of the Court of Session and the Chairman of the Scottish Land Court may be removed from office only by Her Majesty; and any recommendation to Her Majesty for such removal shall be made by the First Minister.

(7) The First Minister shall make such a recommendation if (and only if) the Parliament, on a motion made by the First Minister, resolves that such a recommendation should be made.

(8) Provision shall be made for a tribunal constituted by the First Minister to investigate and report on whether a judge of the Court of Session or the Chairman of the Scottish Land Court is unfit for office by reason of inability, neglect of duty or misbehaviour and for the report to be laid before the Parliament.

(9) Such provision shall include provision—

(a) for the constitution of the tribunal by the First Minister when requested by the Lord President to do so and in such other circumstances as the First Minister thinks fit, and

(b) for the appointment to chair the tribunal of a member of the Judicial Committee of the Privy Council who holds or has held high judicial office,

and may include provision for suspension from office.

(10) The First Minister may make a motion under subsection (7) only if—

(a) he has received from a tribunal constituted in pursuance of subsection (8) a written report concluding that the person in question is unfit for office by reason of inability, neglect of duty or misbehaviour and giving reasons for that conclusion,

(b) where the person in question is the Lord President or the Lord Justice Clerk, he has consulted the Prime Minister, and

(11) In subsections (8) to (10)—

“ high judicial office ” has the meaning given by section 60 of the Constitutional Reform Act 2005,

“provision” means provision by or under an Act of the Scottish Parliament,

“tribunal” means a tribunal of at least three persons.

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) The Parliament may by resolution make provision for payments to be made to registered political parties for the purpose of assisting members of the Parliament who are connected with the parties to perform their Parliamentary duties.

(2) A resolution under subsection (1) may—

(a) confer functions on the Parliamentary corporation,

(b) determine, or make provision for determining, the circumstances in which a member of the Parliament and a registered political party are to be regarded for the purposes of the resolution 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 , the Advocate General for Northern Ireland 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.

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

but 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 Ireland.

(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) of the Human Rights Act 1998.

(...) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(...) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(...) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(...) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(...) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) ... Subject to subsection (3D),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 Government.

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 Government,

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 Government does not have the power to make, confirm or approve a provision of subordinate legislation that he has purported to make, confirm or approve , or

(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), or to a compatibility issue,

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.

(5A) Where the decision mentioned in subsection (1) is a decision of the Supreme Court on a compatibility issue, the power to make an order under this section is exercisable by the High Court of Justiciary instead of the Supreme Court.

(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—

“ compatibility issue ” has the meaning given by section 288ZA of the Criminal Procedure (Scotland) Act 1995,

“intimation” includes notice,

“the appropriate law officer” means—in relation to proceedings in Scotland, the Advocate General,in relation to proceedings in England and Wales, the Attorney General,in relation to proceedings in Northern Ireland, the Advocate General for Northern Ireland.

The Judicial Committee

103

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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 Government,

(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.

(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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 assimilated obligation, 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) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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 Government 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 Government to be exercisable—

(a) by a Minister of the Crown instead of by the member of the Scottish Government,

(b) by a Minister of the Crown concurrently with the member of the Scottish Government, or

(c) by the member of the Scottish Government 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 Government 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.

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, lampreys, smelt, shad 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, lampreys, smelt, shad and freshwater fish, includes the protection of their environment,

“eels”, “fish”, “freshwater fish”, “salmon”, “smelt” and “trout” have the same meanings as in the Salmon and Freshwater Fisheries Act 1975 (as amended by the Marine and Coastal Access Act 2009),

“the River Tweed” means the Tweed district (as defined in article 2(1) of the Scotland Act 1998 (River Tweed) Order 2006 (S.I. 2006/2913)).

“the River Esk” means the river of that name which, for part of its length, constitutes the border between England and Scotland including—its tributary streams (which for this purpose include the River Sark and its tributary streams), andsuch 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.

(6) An Order under subsection (1) may amend that subsection so as to—

(a) add any description of fish to it, or

(b) remove any description of fish from it.

Part VI — Supplementary

Subordinate legislation

Subordinate legislation: general

112

(1) Any power to make subordinate legislation conferred by this Act shall, if no other provision is made as to the person by whom the power is exercisable, be exercisable by Her Majesty by Order in Council or by a Minister of the Crown by order.

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