Subsection (1) provides that, despite the transfer to the Scottish Ministers of functions in relation to observing and implementing Community law by virtue of section 53, any function of a Minister of the Crown in relation to any matter shall continue to be exercisable by him as regards Scotland for the purposes specified in section 2(2) of the European Communities Act 1972. Section 2(2) enables Ministers to make regulations to implement any Community obligation, or for the purpose of dealing with matters arising out of any such obligation. Community law is defined in section 126(9).
The intention is that it should continue to be possible for a Minister of the Crown to exercise functions, such as to make regulations under section 2(2) of the 1972 Act or some other statutory provision, for the purpose of implementing an EC obligation as respects a devolved matter. There may be circumstances where it is convenient and sensible for European Community obligations to be implemented through a single set of regulations having effect across the whole of the UK, rather than having separate regulations for Scotland. This will be a matter for agreement between the Scottish Executive and UK Ministers.
Subsection (2) provides that a member of the Scottish Executive 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 or with Community law. Convention rights are defined in section 126(1) as having the same meaning as in the Human Rights Act 1998 and mean the rights which are given effect to throughout the UK by that Act.
The effect of this provision is to impose a vires control upon Scottish Ministers so that they would be acting ultra vires if they acted incompatibly with any of the Convention rights or with Community law.
The reference in this context to Community law is modified by section 106(6) in the case of an obligation under Community law which is a quantitative obligation and it is split in terms of section 106.
This provision applied to the Lord Advocate as soon as he became a member of the Scottish Executive on 20 May 1999 (see note on section 48) and to the Scottish Ministers as from 1 July 1999. There have been a number of cases raising the question of whether the Lord Advocate is acting incompatibly with Convention rights in bringing or continuing some prosecution, such as Starrs v Ruxton 2000 JC 80 (temporary sheriffs).
Subsection (3) provides that subsection (2) does not apply to an act of the Lord Advocate in prosecuting any offence or in his capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland which, because of subsection (2) of section 6 of the Human Rights Act 1998 is not unlawful under subsection (1) of that section.
Section 6(1) of the Human Rights Act 1998 provides that it is unlawful for a public authority, which includes the Lord Advocate, to act in a way which is incompatible with a Convention right. Section 6(2) provides that section 6(1) does not apply if (a) as a result of provisions in primary legislation, the public authority could not have acted differently or (b) the public authority was acting to give effect to or enforce provisions made under primary legislation. This is intended to protect a public authority where a Westminster Act required it to breach a Convention right.
Commentary Part II: the Scottish Administration Details of Provisions