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Acts of the Scottish Parliament |
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You are here: BAILII >> Databases >> Acts of the Scottish Parliament >> Public Appointments and Public Bodies etc (Scotland) URL: http://www.bailii.org/scot/legis/num_act/2003/en/2003en04.html |
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Explanatory Notes to Public Appointments and Public Bodies etc (Scotland)
2003 Chapter 4 | |
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© Crown Copyright 2003 | |
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EXPLANATORY NOTES INTRODUCTION 1. These Explanatory Notes have been prepared by the Scottish Executive in order to assist the reader of the Act. They do not form part of the Act and have not been endorsed by the Parliament. 2. The Notes should be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section or schedule, or a part of a section or schedule, does not seem to require any explanation or comment, none is given. THE ACT - AN OVERVIEW 3. The purpose of the Act is to establish a Commissioner for Public Appointments in Scotland, to abolish 5 Non-Departmental Public Bodies (the Ancient Monuments Board for Scotland, the Historic Buildings Council for Scotland, the Scottish Hospital Trust, the Scottish Medical Practices Committee and the Scottish Conveyancing and Executry Services Board), to give certain notarial powers to independent qualified conveyancers and to conveyancing and executry practitioners, and to create a new statutory Non Departmental Public Body to succeed the Ancient Monuments Board for Scotland and Historic Buildings Council for Scotland. This body will be known as the Historic Environment Advisory Council for Scotland. COMMENTARY ON SECTIONS The Commissioner for Public Appointments in Scotland Section 1 - The Commissioner for Public Appointments in Scotland 4. This section creates the office of the Commissioner for Public Appointments in Scotland; provides for the making of the appointment; and provides the basis on which this appointment is held. 5. Subsection (1) provides for the appointment of the Commissioner for Public Appointments in Scotland by Her Majesty on the nomination of Parliament. 6. Subsection (2) introduces schedule 1 which makes detailed provisions concerning the appointment, status and the administration of the office of Commissioner. Section 2 - The Commissioner's functions 7. This section and schedule 2 sets out the scope of the Commissioner for Public Appointments' functions and powers. 8. Subsection (1) provides for the Commissioner to prepare a Code of Practice which regulates the process for making appointments and recommendations for appointments by the Scottish Ministers to the "specified authorities" which are the office and bodies listed in Schedule 2. The Commissioner's remit applies to ministerial appointments and ministerial recommendations for appointment (in practice, Crown appointments), but not to the appointment of staff of the specified authorities. 9. Subsections (2) and (3) provide for the scope of the Code of Practice, which is to be prepared, amended and promulgated by the Commissioner. 10. Subsection (4) requires that the preparation of and revisions to the Code must be undertaken in consultation with the Scottish Ministers, the Parliament and the public. 11. In addition to preparing (and amending) a Code of Practice, subsection (5) provides that the Commissioner shall examine the methods and practices employed by the Scottish Ministers in making appointments and recommendations for appointments, including any particular appointment to those specified authorities listed in schedule 2. It also provides for the Commissioner to investigate complaints arising from any appointment to a specified authority. 12. Subsection (6) provides that the Commissioner can issue guidance on compliance with the Code of Practice to the Scottish Ministers, both generally or in specific cases where there is a breach of the Code. 13. Following this, subsection (7) provides that, in any case where it appears to the Commissioner that the Code of Practice has not been complied with in a material regard (i.e. if there has been a serious breach of the Code), the Commissioner has intimated that fact to the Scottish Ministers, and the Commissioner considers that the Code is unlikely to be complied with, or has not been complied with, within a reasonable time, action must be taken under subsection (8). 14. Subsection (8) provides that the Commissioner must report breaches of the Code by the Scottish Ministers which meet the criteria set out in subsection (7) to the Parliament. If the appointment has not been made, the Commissioner may direct the Scottish Ministers to delay making the appointment until consideration of the case has been concluded by the Parliament. 15. Subsections (9) and (10) provide that the Commissioner is to exercise functions with a view to ensuring that the appointments and recommendations for appointments to the specified authorities are made in a fair and open manner and that as far as possible all categories of people are given the opportunity to apply. In doing so, the Commissioner is to prepare a strategy in consultation with the Scottish Ministers and the Parliament which may include targets for ensuring diversity in the membership of public bodies. Section 3 - The Commissioner's functions: further provision 16. Subsection (1) requires that the Scottish Ministers provide the Commissioner with any information that he or she reasonably requires. 17. Subsection (2) provides that the Scottish Ministers may by order amend schedule 2. This power allows Ministers to add further offices or bodies to the list of "specified authorities" or to remove existing offices or bodies from that list. Section 18 provides that this order will be made under the "affirmative resolution" procedure in the Scottish Parliament. The Scottish Ministers will also have power to give the Commissioner additional functions or remove existing functions by order. This order will be made under the "affirmative resolution" procedure. 18. Subsection (3) brings appointments to bodies not yet existing in law within the remit of the Commissioner. That is, if an appointment round is started during the establishment period for a new body, the Commissioner will have the power to regulate the appointments process. Dissolution of certain bodies Section 4 - Dissolution of certain bodies 19. The Act provides for the abolition of certain bodies, specified in paragraphs (a) - (e) as:
Health Service Bodies Section 5 - Property of the Scottish Hospital Trust 20. This section relates to the transfer of the endowments of the Scottish Hospital Trust to the fifteen Health Boards. 21. Subsection (1) provides for the transfer of all the property held by the Scottish Hospital Trust, endowments held by statute and other endowments transferred to the Scottish Hospital Trust (by, for example, Boards of Management, Regional Hospital Boards, Health Boards and NHS trusts) and any accumulated income thereof to be transferred to the Health Boards. 22. Subsection (2) enables the Scottish Ministers to make regulations providing for the division of property transferred from the Scottish Hospital Trust between different Health Boards and provides for any of the Scottish Hospital Trust property to be realised for value and for that value to be transferred. 23. Subsection (3) requires there to be consultation with the Scottish Hospital Trust and all the Health Boards and NHS trusts before regulations are made. 24. Subsection (4) provides for a Health Board to transfer property which has been transferred to it from the Scottish Hospital Trust on to another Health Board subject to conditions of transfer which the Scottish Ministers may provide for through regulations. 25. Subsection (5) provides for endowments transferred under subsection (4) to be transferred back to the Health Board within a reasonable time, if the relevant Health Board requires this. 26. Subsection (6) defines the expression 'NHS trust'. Section 6 - Transfer of certain property between Health Boards and NHS trusts 27. This section relates to the movement of endowments between Health Boards and NHS trusts. 28. Subsection (1) enables a Health Board to transfer property which has been transferred to it from the Scottish Hospital Trust, and which is attributable to a NHS trust, on to that trust. Such transfers will only be made following a request from the trust. 29. Subsection (2) provides for a NHS trust to transfer endowment property held by it (not limited to endowments transferred from the Scottish Hospital Trust) to any Health Board. 30. Subsection (3) provides for transferred endowments to be transferred back to the NHS trust within a reasonable time of the NHS trust requiring such a transfer. Section 7 - Investment and borrowing 31. The provisions in section 7 relate to the powers of investment and borrowing by Health Boards and NHS trusts in respect of endowments. 32. The Scottish Hospital Trust was given specific powers of investment. Subsection (1) confers upon Health Boards like powers of investment and borrowing. 33. Subsection (2) requires Health Boards to seek financial advice with regard to such investments. 34. Subsection (3) permits a Health Board to borrow from any endowment which is attributable to it, subject to certain provisos. 35. Subsections (4) and (5) permit a Health Board to make loans to Health Boards and NHS trusts from endowments held by that Health Board but attributable to those other Health Boards or NHS trusts. 36. Subsection (6) permits NHS trusts to borrow from any endowment which it holds. 37. Subsection (7) requires Health Boards and NHS trusts to seek the consent of the Scottish Ministers to any loans or borrowing, under subsections (3) to (6). 38. Subsection (8) allows the Scottish Ministers to make provisions by regulations as to the terms and conditions to apply to any loans or borrowing. Section 8 - Endowment schemes 39. Section 8 relates to endowment schemes. The Scottish Hospital Trust had a scheme which provided for the distribution of income from endowments, the resolution of disputes and the application of income by recipients. 40. Subsection (1) requires the Scottish Ministers to make regulations providing for the distribution of income where Health Boards and NHS trusts hold endowments attributable to other Health Boards and NHS trusts. 41. Subsection (2) requires the Scottish Ministers to consult all Health Boards and NHS trusts on such a scheme, and 42. Subsection (3) requires the scheme to include the permitted purposes for which income from endowments may be used. Section 9 - Directions in relation to endowments 43. Section 9 relates to the giving of directions in relation to endowments and enables the Scottish Ministers to direct Health Boards and NHS trusts as to the manner in which endowments are held and or managed. Section 10 - Holding of certain property by NHS trusts and Health Boards 44. The provisions in section 10 relate to the holding of endowments by Health Boards and NHS trusts. 45. Subsection (1) amends section 12G(3) of the 1978 Act to apply the terms of section 82 of that Act to the holding by a NHS trust of endowments transferred by virtue of the provisions of this Act. This therefore requires NHS trusts holding such endowments, so far as reasonably practicable, to meet the objects of the original endowment in the holding and use of endowments so transferred. 46. Subsection (2) amends section 82 of the 1978 Act to extend the application of that section to Health Boards holding endowments transferred by virtue of this Act. 47. Subsection (3) amends section 83 of the 1978 Act by adding a power for Health Boards to hold and administer property on trust for NHS trusts. Law Society functions etc. as to certain legal services Section 11 - Property etc. of the Scottish Conveyancing and Executry Services Board 48. This section provides for the property, rights and liabilities of the Board to transfer to, and vest in the Scottish Ministers and enables the Scottish Ministers to transfer any such property or rights to the Law Society of Scotland. Section 12 - Regulation by the Law Society of conveyancing and executry services 49. The Law Society of Scotland and its Council already exercise functions in relation to solicitors under the Solicitors (Scotland) Act 1980. This section extends those responsibilities to include functions in relation to the provision of executry and conveyancing services by executry practitioners and qualified conveyancers (renamed "conveyancing practitioners" in this Act) under Part II of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (see paragraphs 14(3) and 14(4) of schedule 4). Section 13 - Scottish Solicitors' Discipline Tribunal and certain practitioners 50. The Scottish Conveyancing and Executry Services Board has to date handled all complaints against conveyancing and executry practitioners. By virtue of amendments in schedule 4 to section 20 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990), complaints against practitioners will now be handled on the same basis as complaints against solicitors, so that the Law Society of Scotland will deal with complaints against practitioners, and the Scottish Solicitors' Discipline Tribunal will deal with more serious complaints. This section accordingly:
Section 14 - Exercise by certain practitioners of notarial and other functions 51. This section provides practitioners with a limited range of notarial powers of direct relevance to their conveyancing duties with effect from the date of transfer of regulatory responsibility. The intention is that independent conveyancing practitioners, in particular, should be able to compete with solicitors on a level playing field. As independent conveyancing practitioners have not had the notarial powers required for certain conveyancing transactions, they have been obliged to date to engage the services of a notary in certain circumstances. Such action has been needed for example in cases where it has been necessary to notarise renunciations by a non-entitled spouse of occupancy rights under the Matrimonial Homes (Family Protection) (Scotland) Act 1981 or the execution of a discharge of a burdens certificate under the Abolition of Feudal Tenure (Scotland) Act 2000. 52. This section also permits conveyancing practitioners to subscribe dispositions and standard securities, and executry practitioners to subscribe testamentary documents, on behalf of people who are blind or unable to write. Section 15 - The Historic Environment Advisory Council for Scotland 53. This section provides for the creation of the Historic Environment Advisory Council for Scotland, a new advisory Non-Departmental Public Body. 54. Subsection (1) provides for the establishment of a body to be known as "the Historic Environment Advisory Council for Scotland". 55. Subsection (2) introduces schedule 3 which makes detailed provisions concerning the constitution, status, and administration of such a body. Section 16 - The Advisory Council's Functions 56. This section and schedule 3 sets out the scope of the functions of the new body. 57. Subsections (1) and (2) provide for the new body to provide advice to the Scottish Ministers on (a) issues affecting the historic environment and (b) how the functions of the Scottish Ministers exercisable in relation to the historic environment may be exercised effectively for the benefit of the historic environment. 58. Subsection (3) defines the historic environment to mean any or all structures and places in Scotland of historical, archaeological or architectural interest or importance 59. Subsection (4) provides that the new body provides advice whenever requested by Scottish Ministers or whenever the new body considers it appropriate to do so. Miscellaneous provision Section 17 - Miscellaneous provision 60. This section introduces schedule 4 which makes provision in connection with the dissolution of the bodies mentioned in section 4. General provisions Sections 18 and 19 - Orders and regulations, Ancillary provision 61. Sections 18 and 19 provide that, where the Act gives the Scottish Ministers power to make an order or regulations, such power will be exercisable by statutory instrument. Some of the orders and regulations will be made under the negative resolution procedure and the remainder under the affirmative resolution procedure. Schedule 1 - The Commissioner Paragraph 1 - Disqualification 62. Sub-paragraph (1) sets out various persons who are disqualified from appointment, or from holding office, as Commissioner for Public Appointments in Scotland. 63. Sub-paragraph (2) sets out various offices and appointments which a person is disqualified from while holding office as the Commissioner for Public Appointments in Scotland. 64. Sub-paragraph (3) continues that disqualification for a period of 3 years after the Commissioner has ceased to hold that office unless the Parliament determines otherwise. Paragraph 2 - Status 65. Provision is made under this paragraph as to the status of the Commissioner for Public Appointments in Scotland and staff of the Commissioner's office. Specific provision is made for the Commissioner for Public Appointments not to be subject to the control or direction of any member of the Parliament, of any member of the Scottish Executive or of the Parliamentary Corporation, unless otherwise indicated in the Act. Paragraph 3 - Validity of actings 66. This provision ensures that the exercise by the Commissioner of his/her functions cannot be challenged on the grounds that there was a defect in the appointment, or the eligibility for appointment, of the Commissioner. Paragraph 4 - Term of office and tenure 67. This provides that the Commissioner for Public Appointments in Scotland will hold office for a term determined by the Parliament which will not exceed 5 years, and for no more than 3 periods of office, with, as sub-paragraph (2)(b) states, appointment for a third term only if it is desirable in the public interest. The Commissioner may resign and may be removed from office. The Parliamentary corporation will determine the Commissioner for Public Appointments' other terms and conditions. Paragraph 5 - Vacancy in the office of the Commissioner 68. Provision is made for the Parliamentary corporation to appoint an acting Commissioner for Public Appointments where the office of the Commissioner is vacant. Paragraph 6 - Remuneration 69. The Commissioner will receive a salary and allowances, the amount of which will be determined by the Parliament. Paragraph 7 - Pensions etc 70. The Parliament may make arrangements for the payments of a pension, allowances or gratuity to a Commissioner on ceasing to hold office. Paragraph 8 - Staff 71. The Commissioner has power, with the approval of the Parliament, to appoint staff. The Commissioner determines the terms and conditions of employment and may with the approval of the Parliament, make arrangements for the payment of pensions, allowances and gratuities to such staff when they cease to hold office. Paragraph 9 - Assessors 72. Sub-paragraph (1) The Commissioner may appoint assessors to assist in the exercise of his/her functions. 73. Sub-paragraph (2) makes provisions that these assessors may be paid, with the approval of the Parliamentary Corporation. Paragraph 10 - Delegation 74. This provides that any function of the Commissioner for Public Appointments may be exercised by another person (for example an assessor) with the authorisation of the Commissioner. Paragraph 11 - Financial provision 75. This provides that the Parliamentary corporation pays the salary, allowances and expenses of the Commissioner for Public Appointments or Acting Commissioner. Paragraph 12 - Accountable officer 76. Provision is made for the Parliamentary corporation to designate an accountable officer. This paragraph also describes the functions and duties of the accountable officer. Paragraph 13 - Accounts and reports 77. This paragraph sets out the accounts and reports which should be prepared by the Commissioner. Paragraph 14 - Functions: supplementary provision 78. Paragraph 14 gives the Commissioner powers to enter into contracts and acquire or dispose of land or property in connection with his/her functions. Schedule 2 - The Specified Authorities 79. This schedule lists those public authorities which come under the Commissioner for Public Appointments' remit. Schedule 3 -The Advisory Council Paragraphs 1 and 2 - Status 80. Paragraphs 1 and 2 give the status of the new body. The new body will be a body corporate and as such will have legal personality. Paragraph 3 - Membership 81. Paragraph 3 sets out the essential elements of the constitution of the new body. The new body will consist of such members as the Scottish Ministers may appoint. The Scottish Ministers will appoint one member as a chair. All appointments will be subject to the appropriate terms and conditions, including length of appointment. Paragraph 4 - Allowances etc. 82. Paragraph 4 provides for allowances to be paid to the chair and members of the new body and for remuneration to be paid to the chair. Paragraph 5 - Proceedings 83. Paragraph 5 lays down a framework for the proceedings of the new body. The new body will, within these limits, be able to set down its own procedures. Paragraph 6 - Reports 84. Paragraph 6 sets out the annual report which should be prepared by the new body. Paragraph 7 - Functions: supplementary provision 85. Paragraph 7 gives the new body powers to enter into contracts and other commercial arrangements in connection with its functions. | |
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| © Crown Copyright 2003 | Prepared: 19 March 2003 |
