Joint Committee on Statutory Instruments Twenty-Seventh Report

 
 

 
APPENDIX I (continued)

ANNEX: POWERS TO MAKE SUBORDINATE LEGISLATION IN SCOTLAND

This table shows -

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

The person by whom the subordinate legislation may be made, i.e.
SofS =the Secretary of State by order;
Treas =the Treasury by order;
SM= the Scottish Ministers by order;
HM= Her Majesty by Order in Council; or
Open =either a Minister of the Crown by order or Her Majesty by Order in Council.

The procedure which applies (if any) in the Westminster and Scottish Parliaments -
A= order to be laid in draft and approved by Parliament;
N= order subject to annulment in pursuance of a resolution of Parliament; or
N(A) =order made under open powers which may be laid in draft and approved by Parliament or subject to annulment in pursuance of a resolution of Parliament.

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

      NB in certain circumstances an order which would otherwise be subject to annulment is not to be so - see clause 101(6) to (8).

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

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

Power
 
Procedure
 
Clause
Description
Made by
W'minster
Scot. Parlt.
Mod. enactments
Retrospective
2(1) Specification of date of first ordinary general election
SofS
A
   
11(1) Conduct of elections
SofS
A
   
11(5) Designation of regional returning officers
SofS
    
14Disqualification of office holders from membership of Parliament
HM
 
A
  
17(5) Alteration of maximum amount of caution
SM
 
N
  
29Modification of Schedule 5
HM
A
A
See 29(3)
Yes
33Prohibition of submission of Bill for Royal Assent in certain circumstances
SofS
N
   
36Form etc. of Letters Patent and royal proclamations
HM
 
N
  
54(1) Prohibition of action incompatible with international obligations
SofS
N[2]
   
54(2) Requiring action to give effect to international obligations
SofS
N
   
54(4) Revocation of subordinate legislation in certain circumstances
SofS
N
  
Yes
56Transfer of property etc. to the Scottish Ministers
Open
N(A)
   
58Transfer of property etc. to the Lord Advocate
Open
N(A)
   
59Transfer of functions to the Scottish Ministers
HM
A
A
Yes
 
60Transfer of property etc. in connection with functions transferred under clause 59
Open
N(A)
   
61(5) Designation of receipts payable into Scot Consolidated Fund
Treas.
N (HofC)
   
64Increase of maximum sum which may be lent to Scottish Ministers
SofS
A

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

(HofC)
  
See 75(4)
75(2) Exclusion of tax-varying power in respect of particular enactments
Treas.
A

(HofC)
  
See 75(4)
75(3) Effect of tax-varying resolution on operation of PAYE
Treas.
N (HofC)
  
See 75(4)
83Cross-border public bodies: initial status
Open
N(A)
   
84Adaptation of cross-border public bodies
Open
N(A)
N(A)
Yes
 
85Transfer of property etc. of cross-border public bodies
Open
N(A)
N(A)
  
Power
 
Procedure
  
Clause
Description
Made by
W'minster
Scot. Parlt.
Mod. enactments
Retrospective
92Remedying ultra vires acts Open N(A) Yes Yes
94(3)a Conferral of powers on Judicial Committee of Privy Council HMN  Yes  
94(3)b Application of Judicial Committee Act 1833 HMN  Yes  
94(3)c Making rules of procedure for JCPC HM     
95Provision consequential on Acts of the Scottish Parliament Open N(A)  Yes Yes
96Provision consequential on Scotland Act Open N(A)  Yes  
97Adaptation of certain Ministerial and other functions Open A  Yes  
98(1) Treatment of individuals as Scottish taxpayers for social security purposes SofS A  Yes  
98(2) Determination of basic rate of tax for social security purposes SofS N  Yes  
99Regulation of Tweed and Esk fisheries HMA AYes  
103(8) Determination of disputes over compensation relating to transfer of property Open N(A)    
111(2) Determination of boundary of Scottish waters HMA    
114Commencement SofS     
Schd.2 Paragraph. 2 Transfer of property etc. to SPCB Open N(A)    
Schd. 2

Paragraph 7

Crown status for SPCB HM  NYes  



2  Requirement does not apply to an order merely revoking an order under this subsection. See clause 101(9) Back


 
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