Joint Committee on Statutory Instruments Eleventh Report


Further memorandum by the Scotland Office

LOCAL GOVERNMENT ETC (SCOTLAND) ACT 1994
(EXEMPTION FROM REPEAL) (SCOTLAND) ORDER 1999 (S.I. 1999/3274)

  1. The Committee further considered the above instrument at its meeting on 8 February and asked for a further memorandum on the following points:

    The Department's Memorandum states that the power of the Secretary of State to make (exemption) orders under Section 59(6)(a) of the Local Government etc (Scotland) Act 1994 is exercisable by him in relation to matters which are reserved matters for the purposes of the Scotland Act 1998.

    Explain -

      (1 )which provision of Schedule 5 to the Scotland Act makes the exemption from repeal of Scottish Byelaws under the power of Section 59(6)(a) of the 1994 Act a reserved matter; and

      (2) why, given that the 1994 Act is law only in Scotland, Section 53 of the Scotland Act does not have the effect of making that power exercisable only by the Scottish Ministers instead of the Secretary of State.

  2. As to the Committee's first point, which is the relevant provision of Schedule 5 to the Scotland Act will depend on the subject matter of the byelaws which are exempted from repeal. Particular examples which were in mind in relation to the present order were those made by the Secretary of State for Defence under the Military Lands Act 1892 (c.43); in relation to such byelaws the relevant reservation would be the general reservation for defence of the realm in paragraph 9 of Part I of Schedule 5. The provisions of the present Order are, however, general and would exempt from repeal byelaws relating to any of the reserved matters specified in Schedule 5. The Committee may care to know that a Scottish Statutory Instrument, made by the Scottish Ministers (SSI 1999/157) and operating within the area of devolved competence, has made similar provisions in relation (inter alia) to byelaws made other than by local authorities and relating to devolved matters. The effect of the two instruments taken together, therefore, is that all such byelaws have been exempted from repeal.

  3. As to the second issue raised by the Committee, it does not of course follow from the fact that the 1994 Act applies only to Scotland that the functions conferred by it all fall within devolved competence. As will be seen from section 54(3) of the Scotland Act 1998, a function will only be within devolved competence, and therefore be exercisable by the Scottish Ministers instead of the relevant Minister of the Crown, if a provision conferring that function would be within the competence of the Scottish Parliament. A provision conferring the power given by section 59(6)(a) of the 1994 Act would in general only be within the competence of the Scottish Parliament insofar as it did not intrude into any of the matters reserved by Schedule 5 to the Scotland Act. It follows that, in the example referred to earlier, it would not be within the competence of Scottish Ministers to exercise the power given by section 59(6)(a) in relation to byelaws made by the Secretary of State for Defence under the Military Lands Act 1892; the same would be true of any other byelaws relating to reserved matters; in all such cases the power conferred by section 59(6) remains exercisable by the Secretary of State.

  4. The Department hope that the foregoing clarifies matters.

15th February 2000


 
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