Part 1F1THE COMMISSIONER FOR ETHICAL STANDARDS IN PUBLIC LIFE IN SCOTLAND
F5The Commissioner
Cross-heading preceding s. 1 substituted (1.7.2013) by The Public Services Reform (Commissioner for Ethical Standards in Public Life in Scotland etc.) Order 2013 (S.S.I. 2013/197), art. 1, Sch. 1 para. 8
1F2The Commissioner for Ethical Standards in Public Life in Scotland
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) , F106...
c
the Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4)F107, and
d
the Lobbying (Scotland) Act 2016.
F32Functions of the Commissioners
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3F4Status of Commissioner and Commissioner’s staff
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.
4Independence of F9Commissioner
In the performance of F7the 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 F8Government, or
c
the Parliamentary corporation.
5F10Protection from actions for defamation
1
For the purposes of the law of defamation—
a
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
2
In subsection (1), “statement” has the same meaning as in the Defamation Act 1996 (c.31) .
F116Designation of Chief Commissioner
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7Appointment of acting Commissioner
1
If the office of F12the Commissioner is vacant or F12the 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.
F133
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4
Subject to subsection (5), a person who is not eligible for appointment as F14the Commissioner is not eligible for appointment as an acting Commissioner.
5
Members of the F15Commissioner’s staff are eligible for appointment as an acting Commissioner.
F166
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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,
c
subject to this section, holds office on such terms and conditions as the Parliamentary corporation determines, and
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 F17....
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
8Disqualification
1
A person is disqualified from appointment and from holding office as F18the 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,
c
is disqualified from being a member of the Parliament,
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 F19Commissioner,
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.
9Terms of office and remuneration
1
F20The 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
F21The Commissioner may, at any time, resign by notice given to the Parliamentary corporation.
3
F22The 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
F23The Commissioner is entitled to such remuneration and allowances as the Parliamentary corporation determines.
6
In other respects, F24the 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 F25the Commissioner, specify the minimum period of notice for the purposes of subsection (2).
10Pensions etc.
1
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.
11Subsequent appointments etc. of former Commissioner
1
A person who has ceased to be F28the Commissioner may not, without the approval of the Parliamentary corporation—
a
be employed, or appointed in any other capacity, by the F29Commissioner,
b
be a member, employee or appointee of—
i
the Standards Commission for Scotland,
ii
a specified authority, or
iii
a devolved public body,
c
be a specified authority (where the authority is an individual),
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 F30the Commissioner.
2
The restriction in subsection (1)—
a
starts when the person ceases to be F31the 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 F6Commissioner
Word in cross-heading preceding s. 12 substituted (1.7.2013) by The Public Services Reform (Commissioner for Ethical Standards in Public Life in Scotland etc.) Order 2013 (S.S.I. 2013/197), art. 1, Sch. 1 para. 18
12General powers
1
The F32Commissioner may do anything which appears—
a
necessary or expedient for the purpose of or in connection with, or
b
conducive to,
2
In particular, the F34Commissioner 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
5
13Payment of witnesses' expenses
The F39Commissioner 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 F40the Commissioner may, with the approval of the Parliamentary corporation, determine.
14Strategic plans
1
2
A strategic plan must, in particular, set out—
a
the F42... Commissioner's objectives and priorities during the 4 year period,
b
how the F44Commissioner proposes to achieve them,
c
timetables for doing so, and
d
estimates of the costs of doing so.
3
Before laying a strategic plan before the Parliament, the F45Commissioner 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 F46Commissioner thinks appropriate.
4
The reference in subsection (3)(b) to other persons includes a reference to a committee of the Parliament.
5
The F47Commissioner 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 F48Commissioner must arrange for the publication of each strategic plan laid before the Parliament.
7
The F49Commissioner 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.
15F54Validity of acts
F501
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F512
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3
The validity of acts of F53the Commissioner is not affected by—
a
any defect in the appointment of the Commissioner, or
b
any disqualification from appointment as F53the Commissioner of the person bearing to be the Commissioner.
F524
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16Delegation
F551
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F552
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3
4
Staff, advisers etc.
17Staff
1
2
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.
18Advisers, assessors and other services
1
2
3
Any payment under subsection (2) is subject to the approval of the Parliamentary corporation.
Finance
19Accountable officer
1
2
The functions of the accountable officer are—
a
signing the accounts of the expenditure and receipts of the F72Commissioner,
b
ensuring the propriety and regularity of the finances of the F72Commissioner,
c
ensuring that the resources of the F72Commissioner are used economically, efficiently and effectively, and
d
the duty in subsection (3).
3
Where the accountable officerF73is 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—
a
obtain written authority from the F74Commissioner before taking the action, and
b
as soon as possible, send a copy of the authority to the Auditor General for Scotland.
4
The accountable officer is answerable to the Parliament for the performance of the functions in subsection (2).
20Budget
C11
2
The F77Commissioner may, in the course of a financial year, prepare a revised budget for the remainder of the year and send it to the Parliamentary corporation for approval.
3
4
A budget or revised budget must contain a statement that the F79Commissioner has complied with the duty under subsection (3).
21Funding
1
The Parliamentary corporation is to—
a
pay the remuneration and allowances of F80the Commissioner,
b
2
Subsection (1)(b) does not require the Parliamentary corporation to pay any expenses incurred by the F87Commissioner which exceed or are otherwise not covered by a budget or, as the case may be, a revised budget approved under section 20.
3
However, the Parliamentary corporation may pay those expenses.
22Accounts and audit
1
The F88Commissioner must, in accordance with any directions in that regard given by the Scottish Ministers—
a
keep proper accounts and accounting records,
b
prepare annual accounts in respect of each financial year, and
c
send a copy of the annual accounts to the Auditor General for Scotland for auditing.
2
If requested by any person, the F88Commissioner must make the audited accounts available, at any reasonable time, without charge and in printed or electronic form, so that they may be inspected by that person.
Location of office and sharing of resources
23Location of office
24Sharing of premises, staff, services and other resources
The F91Commissioner must comply with any direction given by the Parliamentary corporation as to the sharing of premises, staff, services or other resources with any other public body or any officeholder.
Annual reports
25Annual reports
1
2
The report must include, in relation to the performance of the F94Commissioner’s functions under the Ethical Standards Act and the Parliamentary Standards Act—
a
the numbers of complaints made to F95the Commissioner during the reporting year about, respectively—
i
members of the Parliament,
ii
councillors, and
iii
members of devolved public bodies,
b
the number of complaints made for the purposes of investigation under the Ethical Standards Act or the Parliamentary Standards Act which were withdrawn during the reporting year, broken down according to the stage of the investigation at which they were withdrawn,
c
the numbers of investigations under the Ethical Standards Act—
i
begun,
ii
not proceeded with,
iii
completed,
during the reporting year,
d
the number of outcome reports submitted to the Standards Commission for Scotland under section 14 of that Act during the reporting year,
e
the number of further investigations that the Commissioner has, during the reporting year, been directed under section 16 of that Act to carry out,
f
in relation to Stage 1 investigations—
i
the number completed,
ii
the number of complaints dismissed, and
iii
the number of complaints considered admissible or treated, under section 7(7)(b) of the Parliamentary Standards Act, as meeting all the specified requirements,
during the reporting year,
g
in relation to Stage 2 investigations—
i
the number completed,
ii
the number of outcome reports made under section 9 of the Parliamentary Standards Act,
during the reporting year, and
h
the number of further investigations that the Commissioner has been directed to carry out under section 10(2) of that Act during the reporting year.
3
The report must include, in relation to the performance of the F96Commissioner’s functions under the Public Appointments Act—
a
a summary of any revisals made under section 2(3)(b) of the Public Appointments Act to the code of practice,
b
a summary of any section 2(5)(b) complaints received by F97the Commissioner,
c
a summary of any guidance to the Scottish Ministers issued under section 2(6) of the Public Appointments Act,
d
the number of section 2(8)(a) reports made, and
e
the number of section 2(8)(b) directions made,
during the reporting year.
F1083A
The report must include, in relation to the performance of the Commissioner's functions under the Lobbying (Scotland) Act 2016—
a
the numbers of complaints made to the Commissioner during the reporting year,
b
the number of complaints which were withdrawn during the reporting year, broken down according to the stage of the investigation at which they were withdrawn,
c
in relation to assessments of admissibility under section 22(2)(a) of that Act—
i
the number completed,
ii
the number of complaints dismissed, and
iii
the number of complaints considered admissible,
during the reporting year,
d
in relation to investigations under section 22(2)(b)(i) of that Act—
i
the number completed,
ii
the number of reports made under section 22(2)(b)(ii) of that Act,
during the reporting year, and
e
the number of further investigations that the Commissioner has been directed to carry out under section 27(2) of that Act during the reporting year.
F984
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5
The report must be laid before the Parliament within seven months after the end of the reporting year.
6
The F99Commissioner must arrange for the publication of each report laid before the Parliament under this section.
7
In preparing a report under this section, the F100Commissioner must comply with any direction given by the Parliamentary corporation as to the form and content of the report.
8
In this section—
“reporting year” means the year beginning on 1 April,
“devolved public bodies” has the meaning given by section 28(1) of the Ethical Standards Act,
“Stage 1” and “Stage 2” are to be construed in accordance with section 5(1) of the Parliamentary Standards Act,
“section 2(5)(b) complaints” are complaints to which section 2(5)(b) of the Public Appointments Act applies (those arising from certain appointments, or recommendations for appointments, made by Scottish Ministers),
“section 2(8)(a) reports” are reports made under section 2(8)(a) of that Act (about continued non-compliance with the code of practice on appointments),
“section 2(8)(b) directions” are directions to Scottish Ministers under section 2(8)(b) of that Act (to delay appointment or recommendation pending consideration by the Parliament).
Ombudsman's investigations and freedom of information
F10126Commission and Commissioners to be subject to investigations by Scottish Public Services Ombudsman
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F10227Commission and Public Appointments Commissioner for Scotland to be subject to Freedom of Information (Scotland) Act
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Interpretation
28Interpretation of Part 1
In this Part, except where the context otherwise requires—
F103...
F104“Commissioner” means the Commissioner for Ethical Standards in Public Life in Scotland,
“the Ethical Standards Act” means the Ethical Standards in Public Life etc. (Scotland) Act 2000 (asp 7),
“the Parliament” means the Scottish Parliament,
“Parliamentary corporation” means the Scottish Parliamentary Corporate Body.
F105 “the Parliamentary Standards Act” means the Scottish Parliamentary Standards Commissioner Act 2002 (asp 16) , and
“the Public Appointments Act” means the Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4) .
Pt. 1 heading substituted (1.7.2013) by The Public Services Reform (Commissioner for Ethical Standards in Public Life in Scotland etc.) Order 2013 (S.S.I. 2013/197), art. 1, Sch. 1 para. 31