Scotland Act Orders

The Scotland Office and its Ministers are responsible for the management of the devolution settlement and work to ensure that the settlement continues to deliver results for the people of Scotland and to maintain Scotland's place in the Union.

The Scotland Act provides UK Ministers with a series of Order making powers to manage the devolution settlement. Scotland Office Ministers lead on parliamentary proceedings on these orders - which often cover wide policy areas and involve lengthy discussion between the Scotland Office, UK Departments and the Scottish Government before they can be made.

In the first ten years since the Scotland Act received Royal Assent, 168 orders were made under the Scotland Act to actively manage the devolution settlement by updating statute, assigning executive responsibility for functions and altering the competence of the Scottish Parliament. Some Orders are subject to consideration by both the UK and Scottish Parliaments.

The most common Order making powers used under the Scotland Act are outlined below with examples of how these powers have been used. Link opens in new windowView a list of all the Orders made under the Scotland Act since 1999 (.doc, 415k).

Link opens in new windowThis fact sheet provides a quick explanation of Scotland Act Orders (.doc, 53k).

Some specific examples of Scotland Act Orders taken forward by the Scotland Office are provided below:

Section 30(2)

Orders made under Section 30(2) of the Scotland Act 1998 allow for modifications to be made to Schedule 5 to the Scotland Act which lists those matters that are reserved to the UK Parliament, and as such defines the competence of the Scottish Parliament. The Order making power allows the Scottish Parliament's legislative competence to be altered by removing or updating existing reservations in, or by adding new ones.

Examples: Where there has been a clear case to devolve further powers to the Scottish Parliament the Government has agreed to do so. An example of this was an Order taken forward in 2002 under section 30(2) which gave the Scottish Parliament legislative competence over the promotion and construction of railways that are wholly within Scotland.

Link opens in new windowS.I. 2002/1629-The Scotland Act 1998 (Modifications of Schedule 5) Order 2002

An Order made under section 30(2) may also amend the list of reserved matters to reflect changes in legislation or the creation of new bodies. One such Order was S.I. 2004/3329, which added the Arts and Humanities Research Council to the list of reserved matters.

Link opens in new windowS.I. 2004/3329-The Scotland Act 1998 (Modifications of Schedule 5) Order 2004

Section 63

Orders made under section 63 allows certain functions of UK Ministers to be exercised by Scottish Ministers. Whilst those functions are then exercised by Scottish Ministers, the subject matter remains reserved. This is known as 'executive devolution' and is distinct from legislative devolution which gives Holyrood legislative competence (complete devolution of an issue).

Example: An Order was taken forward that transferred functions to the Scottish Ministers in relation to the interception of communications. This is governed by the Regulation on Investigatory Powers Act 2000 (RIPA), a reserved Act. An Order taken forward in 2003 allowed the Scottish Ministers to issue interception warrants to the police in Scotland for the purpose of combating serious crime under RIPA 2000. Given that the Scottish Ministers have day-to-day responsibility for most criminal justice issues in Scotland, it is only sensible that they exercise this function on behalf of UK Ministers with legal framework governed by UK legislation.

Link opens in new windowS.I. 2003/2617- The Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) (No. 2) Order 2003

Section 104

Orders taken forward under section 104 of the Scotland Act allow for consequential modifications to be made to reserved law in consequence of legislation passed by the Scottish Parliament. This Order making power allows for amendments to be made to reserved law to reflect changes in legislation in Scotland. This is key to ensuring that reserved law is up-to-date and to making devolution work. Orders made Orders section 104 have also been used to facilitate devolved policies by making provisions in statute that relate to reserved matters. All section 104 Order are laid before the UK Parliament, those which amend primary legislation are debated in both houses.

Example: An Order taken forward by the Scotland Office in 2008 facilitated the introduction of the 'Single Survey' in Scotland by allowing perspective buyers to rely on a survey commissioned by the seller. This Order was necessary as consumer protection is a reserved matter under the Scotland Act.

Link opens in new windowS.I. 2008/1889-The Housing (Scotland) Act 2006 (Consequential Provisions) Order 2008

Further details of these and other Orders can be found on the website of the Link opens in new windowOffice of Public Sector Information.