Part 3: Secretary of State’s Powers to Transfer or Delegate Functions Section 108: Consent and Consultation
Subsection (1) sets out the circumstances whereby the Secretary of State must obtain the consent of the Devolved Governments before making regulations under sections 103 and 104. This would be to:
obtain the consent of the Scottish Ministers in relation to any provision which would be within the legislative competence of the Scottish Parliament, if contained in an Act of that Parliament, and is not merely incidental to, or consequential on, provision which would be outside that legislative competence, or to any provision which modifies the functions of the Scottish Ministers;
obtain the consent of the Welsh Ministers in relation to any provision which would be within the legislative competence of Senedd Cymru, if contained in an Act of the Senedd, and is not merely incidental to, or consequential on, provision which would be outside that legislative competence, or to any provision which modifies the functions of the Welsh Ministers;
obtain the consent of a Northern Ireland department in relation to any provision which would be within the legislative competence of the Northern Ireland Assembly, if contained in an Act of that Assembly, and is not merely incidental to, or consequential on, provision which would be outside that legislative competence, or to any provision which modifies the functions of a Northern Ireland department.
Subsection (2) makes further provision clarifying the circumstances in which the consent of the relevant Northern Ireland department must be obtained under subsection (1). Consent will not be required in relation to a matter which would only be within the legislative competence of the Northern Ireland Assembly if the Assembly obtained the consent of the Secretary of State under section 8 of the Northern Ireland Act 1998 to legislate in respect of it, and which does not affect, other than incidentally, a transferred matter (within the meaning of the Northern Ireland Act 1998).
	Subsection (3) sets out that, before making regulations under section 103 or 104, the Secretary of State must consult:
any body to which draft regulations relate, and
any other persons that the Secretary of State considers appropriate.
	Subsection (4) sets out the requirement for the Secretary of State to carry out a further consultation should it appear appropriate to the Secretary of State, following a change to the draft regulations as a result of the initial consultation.
	Subsection (5) states that for the purposes of this section it is immaterial whether the consultation is carried out before or after the commencement of the section.