The Scotland Act 1998 (Functions Exercisable in or as Regards Scotland) Order 1999

Made: 22nd June 1999

Coming into force: 30th June 1999

At the Court at Windsor Castle, the 22nd day of June 1999 Present, The Queen’s Most Excellent Majesty in Council

Now, therefore, Her Majesty, in exercise of the powers conferred upon Her by sections 30(3) and 113 of the Scotland Act 1998[^f00001] and of all other powers enabling Her in that behalf, is pleased, by and with the advice of Her Privy Council, to order, and it is hereby ordered, as follows:

Citation and commencement

1

This Order may be cited as the Scotland Act 1998 (Functions Exercisable in or as Regards Scotland) Order 1999 and shall come into force on 30th June 1999.

Interpretation

2

• (1) In this Order–

• “the 1949 Act” means the Wireless Telegraphy Act 1949[^f00002]

• “the 1984 Act” means the Repatriation of Prisoners Act 1984[^f00003]

• ...

• “the 1989 Act” means the Prisons (Scotland) Act 1989[^f00005]

• “the 1991 Act” means the Criminal Justice Act 1991[^f00006]

• “the 1993 Act” means the Prisoners and Criminal Proceedings (Scotland) Act 1993[^f00007]

• “the 1997 Act” means the Crime (Sentences) Act 1997[^f00008]

• “the 1998 Act” means the Scotland Act 1998;

• “the 1998 Order” means the Transfer of Prisoners (Restricted Transfers) (Channel Islands and Isle of Man) Order 1998[^f00009]

• “existing provisions” has the same meaning as in Schedule 6 to the 1993 Act;

• “Scottish fishing boat” means a fishing vessel which is registered in the register maintained under section 8 of the Merchant Shipping Act 1995[^f00010] and whose entry in the register specifies a port in Scotland as the port to which the vessel is to be treated as belonging;

• “the Guernsey enactments” means the Prison Administration (Guernsey) Law, 1949, the Parole Review Committee (Guernsey) Law, 1989, the Criminal Justice (Youth Detention) (Bailiwick of Guernsey) Law, 1990, the Parole Review Committee Ordinance, 1991 and the Prison Administration (Guernsey) Ordinance, 1998;

• “the Isle of Man enactments” means the Custody Act 1995 (an Act of Tynwald);

• “the Jersey enactments” means the Prison (Jersey) Law, 1957, the Prison (Jersey) Rules 1957, the Criminal Justice (Jersey) Law, 1957, the Court of Appeal (Jersey) Law, 1961, the Criminal Proceedings (Computation of Sentences) (Jersey) Rules, 1968 and the Criminal Justice (Young Offenders) (Jersey) Law 1994;

• “the Northern Ireland enactments” means the Prison Act (Northern Ireland) 1953[^f00011], the Treatment of Offenders (Northern Ireland) Order 1976, the Northern Ireland (Remission of Sentences) Act 1995[^f00012], the Criminal Justice (Northern Ireland) Order 1996 and the Northern Ireland (Sentences) Act 1998[^f00013];

• “restricted transfer” has the meaning given in paragraph 6(1)(a) of Schedule 1 to the 1997 Act.

• (2) Any word or expression used in this Order in referring to any enactment and also used in the enactment has the same meaning as it has in the enactment.

General

3

The functions specified in Schedule 1 to this Order are to be treated, for such purposes of the 1998 Act as may be so specified in relation to that function, as being or, as the case may be, not being functions which are exercisable in or as regards Scotland.

Prisoners etc.

4

• (1) Any function under the 1984 Act, the 1993 Act, the 1997 Act or the 1998 Order which is specified in Schedule 2 to this Order is to be treated for the purposes of section 53 of the 1998 Act as being a function exercisable in or as regards Scotland if the function is exercisable in the case mentioned in relation to that function.

• (2) Any function under the 1989 Act or the 1993 Act which is specified in Schedule 3 to this Order is to be treated for the purposes of section 53 of the 1998 Act as being a function exercisable in or as regards Scotland if the function is exercisable in the case mentioned in relation to that function.

Fisheries and aquaculture

5

So far as a function under assimilated law, or to which section 53(2)(a) of the 1998 Act applies, is exercisable–

• (a) in relation to fishing or aquaculture in the Scottish zone;

• (b) in relation to fishing outside that zone by Scottish fishing boats;

• (c) in relation to any fish or aquaculture organisation applying for recognition as a producers' organisation, or recognised as such in accordance with assimilated law, whose area covered by the application for recognition, in so far as within the United Kingdom or British fishery limits, is wholly or mainly within Scotland or the Scottish zone,

it shall be treated for all purposes of the 1998 Act as exercisable in or as regards Scotland.

Agriculture

6

• (1) So far as a specified function under EU law, or a function to which section 53(2)(a) of the 1998 Act applies, is exercisable in relation to a Scottish farmer it shall be treated for all purposes of the 1998 Act as exercisable in or as regards Scotland.

• (2) In this article–

• “Scottish farmer” means a farmer whose holding is situated wholly or partly in Scotland and “farmer” and “holding” shall have the same meaning as in Article 1.4 of Council Regulation 3508/92 establishing an integrated administration and control system for certain Community aid schemes; and

• “specified function under EU law” means any function related to the implementation of any legislative instrument of the European Union adopted in pursuance of its common agricultural policy, which applies in relation to agricultural activities by reference to a holding.

Marine dredging

7

So far as a function under assimilated law, or to which section 53(2)(a) of the 1998 Act applies, is exercisable in relation to the extraction of minerals by dredging in the Scottish zone, it shall be treated for all purposes of the 1998 Act as exercisable in or as regards Scotland.

Functions not exercisable in or as regards Scotland: prisoners etc.

8

• (1) Where a function under a particular provision of the 1984 Act, the 1993 Act the 1997 Act or the 1998 Order is specified in Schedule 2 to this Order, any further function under that provision is to be treated for the purposes of section 53 of the 1998 Act as not being a function exercisable in or as regards Scotland.

• (2) Any function under any provision of the 1991 Act, the 1997 Act, the Crime and Disorder Act 1998[^f00014], the Guernsey enactments, the Isle of Man enactments, the Jersey enactments or the Northern Ireland enactments which is specified in Schedule 4 to this Order is to be treated for the purposes of section 53 of the 1998 Act as not being a function exercisable in or as regards Scotland.

SCHEDULE 1 — FUNCTIONS EXERCISABLE IN OR AS REGARDS SCOTLAND: GENERAL

Wireless Telegraphy Act 1949 (c. 54)

1

• (1) The function of the Secretary of State under section 5(1)(b) of the 1949 Act (misleading messages and interception and disclosure of messages) is, for the purposes of section 63 of the 1998 Act, to be treated–

• (a) as a function exercisable in or as regards Scotland if it is exercisable in the class of case mentioned in sub-paragraph (2) below; but

• (b) as otherwise not being exercisable in or as regards Scotland.

• (2) The class of case mentioned in this sub-paragraph constitutes any case where an authorisation of the Secretary of State under section 5(1)(b) of the 1949 Act would authorise a person–

• (a) to use any wireless telegraphy apparatus with intent to obtain information as to the contents, sender or addressee of any message (whether sent by means of wireless telegraphy or not) of which neither the person using the apparatus nor a person on whose behalf he is acting is an intended recipient where–

• (i) the person authorised to use the wireless telegraphy apparatus is in Scotland; and

• (ii) the person who is the sender or addressee of any such message is, or is reasonably believed by the person authorised to use the wireless telegraphy apparatus to be, located in Scotland when the apparatus is used with intent to obtain information as to the contents, sender or addressee of the message; and

• (b) to disclose any information as to the contents, sender or addressee of any such message.

Pharmacy Act 1954 (c. 61)

2

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Medicines Act 1968 (c. 67)

3

• (1) The function of the Ministers under section 2 of the Medicines Act 1968 of appointing members of the Medicines Commission is to be treated, for the purposes of section 63 of the 1998 Act, as exercisable in or as regards Scotland.

• (2) The function of the Ministers, the Health Ministers or the Agriculture Ministers under section 4(1) and (5) of the Medicines Act 1968 of establishing committees and appointing the members and chairmen of such committees is to be treated, for the purposes of section 63 of the 1998 Act, as exercisable in or as regards Scotland.

Taxes Management Act 1970 (c. 9)

4

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

Data Protection Act 1984 (c. 35)

5

The Secretary of State’s functions under section 3(3)(a) and (b) of the Data Protection Act 1984 (c. 35)[^f00017] (functions of being consulted by the Lord Chancellor on appointments of chairman and deputy chairman of the Data Protection Tribunal) are to be treated, for the purposes of section 63 of the 1998 Act, as being exercisable in or as regards Scotland.

Interception of Communications Act 1985 (c. 56)

6

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

Transport Act 1985 (c. 67)

7

The Secretary of State’s functions under paragraph 15 of Schedule 4[^f00019] to the Transport Act 1985 (function of being consulted by the Lord Chancellor on appointments of president and chairman of the Transport Tribunals removal of such persons from office and determining their terms and conditions) are to be treated, for the purposes of section 63 of the 1998 Act, as being functions which are exercisable in or as regards Scotland.

Building Societies Act 1986 (c. 53)

8

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Financial Services Act 1986 (c. 60)

9

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Copyright, Designs and Patents Act 1988 (c. 48)

10

The Secretary of State’s functions under sections 145 and 150 of the Copyright, Designs and Patents Act 1988 (c. 48)[^f00020] (functions of being consulted by the Lord Chancellor on appointments of chairman and deputy chairman of the Copyright Tribunal and on rules for regulating proceedings before that Tribunal) are to be treated, for the purposes of section 63 of the 1998 Act, as being exercisable in or as regards Scotland.

Education (Student Loans) Act 1990 (c. 6)

11

The Secretary of State’s functions under the Education (Student Loans) Act 1990[^f00021] are to be treated, for the purposes of section 53 of the 1998 Act, as exercisable in or as regards Scotland only where they relate to a loan–

• (a) to a student whose earliest available home address in the computer records of the Student Loans Company Limited as at 1st July 1999 is in Scotland; or

• (b) to a student who obtains a loan for the first time after 1st July 1999 and who gives an address in Scotland as the home address in the first application for a loan.

Child Support Act 1991 (c. 48)

12

The Secretary of State’s functions under sections 22(3), 24(9), 25(6) and 45(6) of and paragraph 7 of Schedule 4 to, the Child Support Act 1991 (c. 48) (functions of being consulted by the Lord Chancellor on regulations about proceedings before the Child Support Commissioners, and about appeals to and from those Commissioners; on orders abolishing appeal tribunals, and on removal of those Commissioners and appointments of deputy Child Support Commissioners), are to be treated, for the purposes of section 63 of the 1998 Act, as being exercisable in or as regards Scotland.

Social Security Administration Act 1992 (c. 5)

13

The Secretary of State’s functions under sections 51, 52 and 189(10) of, and paragraph 1 of Schedule 2 to, the Social Security Administration Act 1992 (c. 5)[^f00022] (functions of being consulted by the Lord Chancellor on appointments of President and chairman of tribunals and deputy Social Security Commissioners; on regulations under the Act generally; and on removal of Social Security Commissioners or the President or a chairman of tribunals) are to be treated, for the purposes of section 63 of the 1998 Act, as being exercisable in or as regards Scotland.

Finance (No.2) Act 1992 (c. 48)

14

The function of the Secretary of State under section 75(1) of the Finance (No.2) Act 1992 (c. 48) (function of consenting to regulations by the Lord Chancellor providing for Commissioners to hold office by a different name) is to be treated, for the purposes of section 63 of the 1998 Act, as being exercisable in or as regards Scotland.

Intelligence Services Act 1994 (c. 13)

15

• (1) The function of the Secretary of State under section 5 of the Intelligence Services Act 1994 (warrants: general) is, for the purposes of section 63 of the 1998 Act, to be treated–

• (a) as being exercisable in or as regards Scotland if it is exercisable in the class of case mentioned in sub-paragraph (2) below; but

• (b) as otherwise not being exercisable in or as regards Scotland.

• (2) The class of case mentioned in this sub-paragraph constitutes any case where the warrant under section 5 of the said Act of 1994 would authorise–

• (a) the taking of action in respect of heritable property situated in Scotland or any moveable property which is located, or is reasonably believed by the Secretary of State to be located, in Scotland at the time when the warrant is issued; or

• (b) the taking of action in respect of interference with wireless telegraphy where the action amounting to interference takes place in Scotland.

• (3) Any function of the Secretary of State under section 6(3) or (4) of the said Act of 1994 (warrants: procedure and duration, etc.) is, for the purposes of section 63 of the 1998 Act, to be treated–

• (a) as being exercisable in or as regards Scotland if it is exercisable in the class of case mentioned in sub-paragraph (4) below; but

• (b) as otherwise not being exercisable in or as regards Scotland.

• (4) The class of case mentioned in this sub-paragraph constitutes any case where–

• (a) the function is exercisable in relation to a warrant issued under section 5 of the said Act of 1994; and

• (b) the function of issuing such a warrant is, under sub-paragraphs (1) and (2) above, to be treated for the purposes of section 63 of the 1998 Act as a case where the function is, for those purposes, treated as being exercisable in or as regards Scotland.

Value Added Tax Act 1994 (c. 23)

16

The Secretary of State’s functions under paragraphs 2, 3 and 9 of Schedule 12 to the Value Added Tax Act 1994 (c. 23) (functions of being consulted by the Lord Chancellor on appointment of President of VAT tribunals, on his continuation in, or removal from, office and on rules for procedure before VAT tribunals) are to be treated, for the purposes of section 63 of the 1998 Act, as being exercisable in or as regards Scotland.

Trade Marks Act 1994 (c. 26)

17

The Secretary of State’s functions under section 77(4) of the Trade Marks Act 1994 (c. 26) (function of being consulted by the Lord Chancellor on appointments as persons to hear appeals under the Act and removal of such persons from office) are to be treated for the purposes of section 63 of the 1998 Act, as being exercisable in or as regards Scotland.

Reserve Forces Act 1996 (c. 14)

18

The functions of the Lord Chancellor and the Secretary of State under sections 90(1) and (3) and 91(1) and (3) of the Reserve Forces Act 1996 (c. 14) (functions of appointing panels of chairmen and ordinary members of reserve forces appeal tribunals and determining their terms of office) are to be treated for the purposes of section 63 of the 1998 Act, as being exercisable in or as regards Scotland.

Social Security Act 1998 (c. 14)

19

The Secretary of State’s functions under sections 5(1) and 79(2) of, and paragraph 1(4) of Schedule 1 and paragraph 8 of Schedule 4 to, the Social Security Act 1998 (c. 14) (functions of being consulted by the Lord Chancellor on appointment and removal of President of appeal tribunals, appointments of deputy Commissioners, removal of Commissioners and on regulations under the Act generally) are to be treated, for the purposes of section 63 of the 1998 Act, as being exercisable in or as regards Scotland.

Data Protection Act 1998 (c. 29)

20

The Secretary of State’s functions under section 6(4)(a) and (b) of the Data Protection Act 1998 (c. 29) (functions of being consulted by the Lord Chancellor on appointments of chairman and deputy chairmen of the Data Protection Tribunal) are to be treated, for the purposes of section 63 of the 1998 Act, as being exercisable in or as regards Scotland.

Competition Act 1998 (c. 41)

21

The Secretary of State’s functions under paragraphs 2(4) and 4(4) of Schedule 7 to the Competition Act 1998 (c. 41) (function of being consulted by the Secretary of State on appointments to the panel of chairmen of the Competition Commission and on appointment of the President of the Competition Commission Appeal Tribunals) are to be treated, for the purposes of section 63 of the 1998 Act, as being exercisable in or as regards Scotland.

Social Security Contributions (Transfer of Functions, etc.) Act 1999 (c. 2)

22