This section and section 54 forms part of the set dealing with the functions of the Scottish Executive. Section 52 provides for statutory functions conferred on the Scottish Ministers to be exercisable by any one of them.
This section is a key element in the structure of the Act. It provides for the automatic transfer of Ministerial functions to the Scottish Ministers. It describes the types of functions to be transferred and transfers them “so far as they are exercisable within devolved competence” (which is defined in section 54).
The functions to be transferred require to be exercisable “in or as regards Scotland” because this is implicit in the concept of “devolved competence” (see note on section 54). Where there is uncertainty about this, section 30(3) empowers an Order in Council to be made which would provide that specified functions are to be treated, for such purposes of this Act as may be specified (including section 53), as being, or as not being, functions which are exercisable in or as regards Scotland - see the note on section 30.
The functions to be transferred also require to be separately exercisable within devolved competence. Section 106 enables provision to be made by Order in Council modifying a function exercisable by a Minister of the Crown “for the purpose of enabling or otherwise facilitating” its transfer under section 53. The Order may in particular provide for any function which is not separately exercisable in or as regards Scotland or otherwise within devolved competence to be so exercisable - see the note on section 106.
If the function to be transferred requires to be exercised with the agreement of or after consultation with a Minister of the Crown, section 55 provides that this requirement does not apply to the exercise by the Scottish Ministers of functions transferred to them.
To the extent that a function is transferred from a Minister of the Crown to the Scottish Ministers, it ceases to be exercisable by the Minister of the Crown. However sections 56 and 57(1) provide for certain exceptions to this.
Sections 117 to 123 make general modifications to existing pre-commencement enactments in relation to the exercise by the Scottish Ministers of functions transferred to them.
Reference is also made to the Scotland Act 1998 (General Transitory, Transitional and Savings Provisions) Order 1999 (S.I. 1999/901), which includes transitional and savings provisions relating to the transfer of functions under section 53.
Section 63 provides for the transfer of additional functions to the Scottish Ministers. This enables certain functions to be transferred to the Scottish Ministers which would not transfer under section 53 because they are not within “devolved competence”. Section 108 enables functions, to be transferred from the Scottish Ministers to UK Ministers. Both powers require the agreement of both the UK and Scottish Parliaments.
Commentary Part II: the Scottish Administration General