Publication - FOI/EIR release

"Prerogative Powers" bestowed upon Scottish Ministers: FOI release

Published: 16 Jul 2019

Information request and response under the Freedom of Information (Scotland) Act 2002.

Published:
16 Jul 2019
"Prerogative Powers" bestowed upon Scottish Ministers: FOI release
FOI reference: FOI/19/01567
Date received: 1 Jul 2019
Date responded: 15 Jul 2019
Information requested

You asked the Scottish Government to confirm:

  • What "Prerogative Powers" are bestowed upon Scottish Ministers? 
  • What "Prerogative Powers" have been used by Scottish Ministers in the previous ten fiscal periods? 
  • The exact date when the last "Prerogative Powers" were used by Scottish Ministers, and in what context was it used.
Response

By way of context, the precise scope of prerogative powers has never been determined, making the courts the final arbiter of whether or not a prerogative power exists.  However, it is commonly accepted that Her Majesty and Ministers of the Crown (i.e. Ministers of the United Kingdom Government) may, for example, deploy the armed forces, make and unmake international treaties and grant honours.  Where statute has not displaced provision, government also has certain powers to do what a natural person can do.

The Scottish Government had transferred to it at devolution the powers of the Ministers of the Crown pre-devolution under the prerogative in relation to devolved functions.  No list of all cases in which the prerogative can be exercised is held.  Examples of areas where Scottish Ministers could be deemed to exercise prerogative power in the devolved context would be the powers and duties to observe and implement international and EC obligations, or in terms of drawing the attention of the Scottish Parliament to losses or special payments, by appropriate notation of the relevant account as authorised under the Budget Act.

In a number of situations advice is, by convention, given by a Minister of the Crown to Her Majesty in respect of the exercise of Her functions.  The majority of Her Majesty's functions in respect of which she receives advice from a Minister of the Crown in this way relate to the making of appointments and the use of the Royal prerogative.

Since 1 July 1999, where Her Majesty exercises a function which is exercisable within devolved competence for the purposes of the Scotland Act 1998 and She was, by convention, previously advised by a Minister of the Crown about the exercise of that function, She will be advised by the First Minister instead of by a Minister of the Crown.  For example, Her Majesty exercises the Royal prerogative of mercy and also appoints regius professors of the ancient Scottish universities in this way. A list of examples published at the time of devolution is provided in the Annex to this response.

About FOI
The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at http://www.gov.scot/foi-responses.

Contact

Please quote the FOI reference
Central Enquiry Unit
Email: ceu@gov.scot
Phone: 0300 244 4000

The Scottish Government
St Andrews House
Regent Road
Edinburgh
EH1 3DG