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Scottish Parliamentary Commissions and Commissioners etc. Act 2010

Type Act of the Scottish Parliament

Publication 2010-07-19

State In force

Jurisdiction Scotland

Department Statute Law Database

Source legislation.gov.uk

Reform history JSON API

Part 1 — THE COMMISSIONER FOR ETHICAL STANDARDS IN PUBLIC LIFE IN SCOTLAND

The Commissioner

Establishment, members and functions of the Commission for Ethical Standards in Public Life in Scotland

1

(1) There is to be a Commissioner for Ethical Standards in Public Life in Scotland (the “Commissioner”).

(2) The Commissioner is to be an individual appointed by the Parliamentary corporation with the agreement of the Parliament.

(3) The functions of the Commissioner are those conferred on the Commissioner by the following enactments—

(a) the Ethical Standards in Public Life etc. (Scotland) Act 2000 (asp 7) ,

(b) the Scottish Parliamentary Standards Commissioner Act 2002 (asp 16) , and

Functions of the Commissioners

2

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Status of Commission and Commissioners

3

(1) Neither the Commissioner nor any member of the Commissioner’s staff—

(a) is a servant or agent of the Crown,

(b) has any status, immunity or privilege of the Crown.

(2) The Commissioner’s property is not to be regarded as property of, or property held on behalf of, the Crown.

(3) The Commissioner is, as such, to be regarded as a juristic person distinct from the natural person holding the office.

Independence of Commissioners

4

In the performance of the Commissioner’s functions, the Commissioner is not subject to the direction or control of—

(a) any member of the Parliament,

(b) any member of the Scottish Government, or

Protection of Commission from actions for defamation

5

(1) For the purposes of the law of defamation—

(a) any statement made by the Commissioner or a member of the Commissioner’s staff in pursuance of the Commissioner’s functions under the Ethical Standards Act or the Parliamentary Standards Act is absolutely privileged,

(b) any statement made by the Commissioner or a member of the Commissioner’s staff in pursuance of the Commissioner’s other functions has qualified privilege, and

(c) any statement made to the Commissioner or any member of the Commissioner’s staff in pursuance of the purposes of the Ethical Standards Act, the Parliamentary Standards Act or the Public Appointments Act has qualified privilege.

(2) In subsection (1), “statement” has the same meaning as in the Defamation Act 1996 (c.31) .

Designation of Chief Commissioner

6

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Appointment of acting Commissioner

7

(1) If the office of the Commissioner is vacant or the Commissioner is, for any reason and to any extent, unable to act, the Parliamentary corporation may appoint a person (an “acting Commissioner”) to perform the functions of the Commissioner, either generally or in relation to such matters or class of matter as is specified in the terms and conditions of the appointment.

(2) An appointment of an acting Commissioner is for, or until, such time as is specified in the terms and conditions of appointment.

(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) Subject to subsection (5), a person who is not eligible for appointment as the Commissioner is not eligible for appointment as an acting Commissioner.

(5) Members of the Commissioner’s staff are eligible for appointment as an acting Commissioner.

(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7) An acting Commissioner—

(a) may at any time resign by notice given to the Parliamentary corporation,

(b) may at any time be removed from office by the Parliamentary corporation,

(d) is to be regarded for all purposes, except those of sections 9(1) to (4) and 10, as having the same status, functions and rights and being subject to the same restrictions as the Commissioner ....

(8) The Parliamentary corporation may, in the terms and conditions of appointment of an acting Commissioner, specify the minimum period of notice for the purposes of subsection (7)(a).

Office of Commissioner

Disqualification

8

(1) A person is disqualified from appointment and from holding office as the Commissioner if the person—

(a) is a member of the Parliament or its staff,

(b) was a member of the Parliament at any time within two years before the date when the appointment might otherwise have been made,

(d) is a member of the House of Commons,

(e) is a member of the House of Lords entitled to vote there,

(f) is employed, or appointed in any other capacity, by the Commissioner,

(g) is a member, employee or appointee of—

(i) the Standards Commission for Scotland,

(ii) a specified authority, or

(iii) a devolved public body,

(h) is a specified authority (where the authority is an individual),

(i) is, or is an employee or appointee of, the Scottish Public Services Ombudsman,

(j) is a member of a council or any committee of a council,

(k) is disqualified from being a member of a council, or

(l) is a member of a joint board or joint committee.

(2) In this section—

(a) the following expressions have the following meanings—

“specified authority” means any of the specified authorities referred to in section 2(1) of the Public Appointments Act,

“council” means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 (c. 39),

“joint board” and “joint committee” have, respectively, the meanings given by section 235(1) of the Local Government (Scotland) Act 1973 (c. 65),

“devolved public body” has the meaning given by section 28(1) of the Ethical Standards Act,

(b) the reference to a member of a specified authority includes a reference to—

(i) a member, by co-option, of any committee of a specified authority,

(ii) a holder of a paid office appointed by a specified authority, and

(c) a paid office is one where the holder is entitled to remuneration, allowances or expenses or any combination of them.

Terms of office and remuneration

9

(1) The Commissioner—

(a) holds office for such period, not exceeding eight years, as the Parliamentary corporation, at the time of appointment, determines, but

(b) is ineligible for reappointment at any time.

(2) The Commissioner may, at any time, resign by notice given to the Parliamentary corporation.

(3) The Commissioner may be removed from office by the Parliamentary corporation if subsection (4) applies.

(4) This subsection applies if—

(a) the Parliamentary corporation is satisfied that the Commissioner has breached the Commissioner's terms and conditions of office and the Parliament resolves that the Commissioner should be removed from office for that breach, or

(b) the Parliament resolves that it has lost confidence in the Commissioner's willingness, suitability or ability to perform that Commissioner's functions,

and, in either case, the resolution is voted for by a number of members not fewer than two thirds of the total number of seats for members of the Parliament.

(5) The Commissioner is entitled to such remuneration and allowances as the Parliamentary corporation determines.

(6) In other respects, the Commissioner holds office on such terms and conditions as the Parliamentary corporation determines.

(7) Those terms and conditions may, without prejudice to section 8—

(a) prohibit the Commissioner from holding any other specified office, employment or appointment or engaging in any other specified occupation,

(b) provide that the Commissioner's holding of any such office, employment or appointment or engagement in any such occupation is subject to the approval of the Parliamentary corporation.

(8) In subsection (7), “specified” means specified in the terms and conditions of office or within a description so specified.

(9) The Parliamentary corporation may, in the terms and conditions of office of the Commissioner, specify the minimum period of notice for the purposes of subsection (2).

Pensions etc.

10

(1) The Parliamentary corporation may make arrangements for the payment of pensions, allowances or gratuities to, or in respect of, any person who has ceased to be the Commissioner.

(2) Those arrangements may include—

(a) the making of contributions or payments towards provision for such pensions, allowances or gratuities,

(b) the establishment and administration of one or more pension schemes.

(3) References in subsections (1) and (2) to pensions, allowances and gratuities include, respectively, references to pensions, allowances and gratuities by way of compensation for loss of office.

Subsequent appointments etc. of former Commissioner

11

(1) A person who has ceased to be the Commissioner may not, without the approval of the Parliamentary corporation—

(a) be employed, or appointed in any other capacity, by the Commissioner,

(b) be a member, employee or appointee of—

(i) the Standards Commission for Scotland,

(ii) a specified authority, or

(iii) a devolved public body,

(d) be, or be an employee or appointee of, the Scottish Public Services Ombudsman, or

(e) hold any other office, employment or appointment or engage in any other occupation, being an office, employment, appointment or occupation which, by virtue of section 9(7)(a), that person could not have held or, as the case may be, engaged in when the Commissioner.

(2) The restriction in subsection (1)—

(a) starts when the person ceases to be the Commissioner, and

(b) ends on the expiry of the financial year following the one in which it started.

(3) In this section—

(a) the following expressions have the following meanings—

“specified authority” means any of the specified authorities referred to in section 2(1) of the Public Appointments Act,

“devolved public body” has the meaning given by section 28(1) of the Ethical Standards Act,

(b) the reference to a member of a specified authority includes a reference to—

(i) a member, by co-option, of any committee of a specified authority,

(ii) a holder of a paid office appointed by a specified authority, and

(c) a paid office is one where the holder is entitled to remuneration, allowances or expenses or any combination of them.

General functions, procedures etc. of Commissioner

General powers

12

(1) The Commissioner may do anything which appears—

(a) necessary or expedient for the purpose of or in connection with, or

(b) conducive to,

the performance of the Commissioner’s functions or the efficiency of the Commissioner’s administration.

(2) In particular, the Commissioner may—

(a) enter into contracts,

(b) acquire and dispose of land and other property.

(3) The exercise of the power to acquire or dispose of land is subject to the approval of the Parliamentary corporation.

(4) The Commissioner may determine and charge reasonable sums for anything done or provided by , or on behalf of, the Commissioner in the performance of, or in connection with, the Commissioner’s functions.

(5) The Commissioner must retain any sums received ... by virtue of subsection (4) and apply them to meet expenditure incurred in doing or providing whatever is charged for.

Payment of witnesses' expenses

13

The Commissioner may pay to persons giving evidence, producing documents or providing information under section 13 of the Ethical Standards Act or section 13 of the Parliamentary Standards Act such allowances or expenses as the Commissioner may, with the approval of the Parliamentary corporation, determine.

Strategic plans

14

(1) The Commissioner must, in respect of each 4 year period, lay before the Parliament a plan (referred to in this section as a “strategic plan”) setting out how the Commissioner proposes to perform the Commissioner’s functions during the 4 year period.

(2) A strategic plan must, in particular, set out—

(a) the ... Commissioner's objectives and priorities during the 4 year period,

(b) how the Commissioner proposes to achieve them,

(d) estimates of the costs of doing so.

(3) Before laying a strategic plan before the Parliament, the Commissioner must provide a draft of it to and invite, and (if any are given) consider, comments on it from—

(a) the Parliamentary corporation, and

(b) such other persons as the Commissioner thinks appropriate.

(4) The reference in subsection (3)(b) to other persons includes a reference to a committee of the Parliament.

(5) The Commissioner must lay each strategic plan before the Parliament not later than the beginning of the 4 year period to which the plan relates.

(6) The Commissioner must arrange for the publication of each strategic plan laid before the Parliament.

(7) The Commissioner may, at any time during a 4 year period, review the strategic plan for the period and lay a revised strategic plan before the Parliament.

(8) Subsections (2) to (7) apply to a revised strategic plan as they apply to a strategic plan.

(9) In that application, the reference in subsection (5) to the 4 year period is a reference to the period to which the revised strategic plan relates.

(10) In this section, “4 year period” means the period of four years beginning on 1 April next following the coming into force of this section and each subsequent period of four years.

Procedure and validity of acts

15

(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) The validity of acts of the Commissioner is not affected by—

(a) any defect in the appointment of the Commissioner, or

(b) any disqualification from appointment as the Commissioner of the person bearing to be the Commissioner.

(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Delegation

16

(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) Any function of the Commissioner may be performed on the Commissioner's behalf by any person (whether or not ... a member of the Commissioner’s staff) authorised by the Commissioner to do so, and to the extent so authorised.

(4) Subsection (3) does not affect the responsibility of the Commissioner for the performance of the Commissioner's functions.

Staff, advisers etc.

Staff

17

(1) The Commissioner may... appoint staff on such terms and conditions as the Commissioner determines.

(2) The Commissioner may make arrangements for the payment of pensions, allowances or gratuities to, or in respect of, any person who has ceased to be a member of the Commissioner’s staff.

(3) Those arrangements may include—

(a) the making of contributions or payments towards provision for such pensions, allowances or gratuities, and

(b) the establishment and administration of one or more pension schemes.

(4) References in subsections (2) and (3) to pensions, allowances or gratuities include, respectively, references to pensions, allowances or gratuities by way of compensation for loss of employment.

(5) The exercise of a power in this section is subject to the approval of the Parliamentary corporation.

Advisers, assessors and other services

18

(1) The Commissioner may obtain advice, assistance or any other service from any person who, in the opinion of the Commissioner, is qualified to give it.

(2) The Commissioner may pay to that person such fees and allowances as the Commissioner determines.

(3) Any payment under subsection (2) is subject to the approval of the Parliamentary corporation.

Finance

Accountable officer

19

(1) The Parliamentary corporation must designate the Commissioner or a member of the Commissioner’s staff as the accountable officer for the purposes of this section.

(2) The functions of the accountable officer are—

(a) signing the accounts of the expenditure and receipts of the Commissioner,

(b) ensuring the propriety and regularity of the finances of the Commissioner,

(d) the duty in subsection (3).

(3) Where the accountable officeris not the Commissioner and is required to act in some way but considers that to do so would be inconsistent with the proper performance of a function set out in subsection (2)(a) to (c), the accountable officer must—

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