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Scottish Parliamentary Commissions and Commissioners etc. Act 2010

Schedule 5

229.Schedule 5 is introduced by section 29(10) of the Act and contains amendments to the SCCYP Act.

230.Paragraph 1 amends section 2 (appointment of Commissioner) to provide for the SCCYP to hold office for a single term of up to a period of 8 years and replaces subsection (4) to make clear that a person who has ceased to be a SCCYP is not eligible for reappointment at any time.

231.Paragraph 2 amends section 3 (removal of Commissioner). The SCCYP can be removed from office by the Parliamentary corporation under subsection (1) only in 2 circumstances as set out in subsection (2).

232.New subsection 2(a) states that the SCCYP may be removed from office if the Parliamentary corporation is satisfied that the office holder has breached their terms of appointment. Having come to a view the Parliamentary corporation then ask the Parliament to resolve that the SCCYP should be removed from office for the breach.

233.Alternatively, under subsection 2(b), the SCCYP may be removed from office if the Parliament resolves that it has lost confidence in the SCCYP’s willingness, suitability or ability to perform their functions.

234.In both circumstances, a resolution must be voted for by at least 86 members of the Parliament, being a number not less than two thirds of the total number of seats of members of the Parliament.

235.Paragraph 3 amends section 10 (annual reports). Section 10 is amended to require the annual report to be laid before the Scottish Parliament within 7 months of the end of the reporting year (subsection (3)). Subsection (4) obliges the SCCYP to comply with any directions given by the Parliamentary corporation regarding the form and content of the report. Subsection (5) defines the reporting year as beginning 1 April.

236.Paragraph 4 inserts new section 14A (strategic plans). Section 14A requires the SCCYP to produce a strategic plan and details arrangements for timing, content, consultation and review. Under sub-paragraph (1) the plan covers a four year period and sets out how the SCCYP proposes to perform its functions during the period.

237.Subsection (2) sets out broad details of what a plan must contain. In particular it is required to provide the objectives and the priorities during the period and state proposals for achieving them. In addition the plan must provide timetables and cost estimates.

238.Subsection (3) requires the SCCYP to consult on the plan before laying it before Parliament. Comment on a draft must be sought from the Parliamentary corporation and any other person the SCCYP thinks appropriate, which includes a Committee of the Parliament (subsection (4)).

239.Subsection (5) requires the SCCYP to lay each strategic plan before Parliament prior to the start of the four year period which is defined in sub-section (10) as beginning on the next 1 April after commencement and each subsequent period of four years. Subsection (6) requires the SCCYP to publish each plan.

240.Under subsection (7) the SCCYP can review its strategic plan at any time during the four year period and lay a revised plan before the Parliament. Subsection (8) provides that, in that event, the provisions in subsections (2) to (7) about content, consultation and publication apply. Subsection (9) clarifies that a revised plan must be laid before the Parliament not later than the beginning of the period to which the revised strategic plan relates.

241.Paragraph 5 explains that paragraph 6 onwards relates to Schedule 1 to the SCCYP Act.

242.Paragraph 6 amends paragraph 1 (legal status of the Commissioner) to provide that the status of the SCCYP is that of a juristic person distinct from the natural person holding the office of SCCYP.

243.Paragraph 7 updates the list of powers at paragraph 2(2) (independence) where the SCCYP is subject to direction or control to take account of the changes to the supervisory regime made by this Act.

244.Paragraph 8 amends paragraph 4 (Disqualification). New paragraph 8(1A) sets out the circumstances which disqualify a person from continuing to hold the post of SCCYP. A person cannot continue to be a SCCYP if that person becomes a member of the Scottish Parliament, the House of Commons or a Member of the European Parliament. Should a SCCYP be elected to the Parliament, for example, the person would immediately be disqualified from holding office as a SCCYP and would be required to relinquish office. Under sub-paragraph (3) the Parliamentary corporation may determine as part of the terms and conditions of appointment of the SCCYP, whether the SCCYP should be permitted to hold any other office, employment or appointment or engagement.

245.Paragraph 9 inserts paragraph 5A (Subsequent appointments etc) which makes similar restrictions on subsequent appointments once a SCCYP has left office to those that applied to the original appointment under paragraph 4(3) (see para 245 of these notes). As well as a restriction on employment with the SCCYP, a former SCCYP cannot be: an employee or appointee of any person or body into which an investigation had been carried out or continued by the former SCCYP when in office; or hold any other office, employment or appointment or engage in any other occupation which that person could not hold when appointed as the SCCYP under paragraph 4(3)(a).

246.Under sub-paragraph (2) the restrictions run from the date of leaving office until the end of the financial year following the one in which the person ceased to be a SCCYP. Thus if a SCCYP leaves on 1 November 2010 the restriction would subsist until 1 April 2012.

247.Paragraph 10 amends paragraph 6(2) (Commissioner’s general powers to include power to acquire and dispose of property) and adds a new sub-paragraph (2A) so that the SCCYP may only acquire and dispose of land with the consent of the Parliamentary corporation. This paragraph also amends paragraph 6(3) (charges for certain services specified by order by Scottish Ministers) to remove the involvement of Scottish Ministers. A new sub-paragraph (3A) is added to enable the SCCYP to charge reasonable sums for services it provides. Paragraph 10(e) repeals the Scottish Ministers order making powers under paragraph 6(4) which are no longer appropriate as a consequence of the above change. For example, this section would allow the SCCYP to organise training events or seminars and charge attendance fees. Any sums received must be retained by the SCCYP and used to meet the costs of the services provided and charged for, for example the training event.

248.Paragraph 11 inserts new paragraph 6A (location of office) to provide that the SCCYP is required to comply with any directions by the Parliamentary corporation as to the location of the SCCYP’s office.

249.Paragraph 13 inserts paragraph 7A (Sharing of premises, staff, services and other resources) which provides for the Parliamentary corporation to direct the SCCYP as to the sharing of premises, staff, services or other resources with any public body or any officeholder. The Parliamentary corporation could use this power to rationalise the number of premises occupied by the officeholders and bodies or to direct that the provision of services such as human resources, payroll, finance or procurement should be carried out centrally.

250.Furthermore paragraph 13 also inserts new paragraph (7B) (advisers and other services). Under paragraph 7B the SCCYP can obtain advice, assistance or any other service for use by the SCCYP. There may be circumstances where the SCCYP might want to secure advice for example, in relation to legal issues. This advice or services can be procured from anyone whom the SCCYP considers is qualified to provide it. Payment of fees and allowances is determined by the SCCYP. Any payment in respect of that advice, assistance or service provided, is subject to approval by the Parliamentary corporation.

251.Paragraph 14 amends paragraph 9 (payment of Commissioner’s salary, expenses etc). New sub-paragraph (2) requires the Parliamentary corporation to pay the SCCYP’s expenses where properly incurred in achieving its functions less any sums the SCCYP has received in payment for services provided under paragraph 6(3A) of the SCCYP Act for example, in providing training or holding seminars. The Parliamentary corporation is not compelled under sub-paragraph (2) to pay expenses which exceed or were not included in the agreed budget (see new paragraph 9A). It is anticipated in this situation that the Parliamentary corporation will take a decision in light of the relevant circumstances. Should the Parliamentary corporation wish to pay these expenses the power is provided for in sub-paragraph (3). Sub-paragraph (4) provides that the Parliamentary corporation will indemnify the SCCYP in respect of any liabilities incurred by the SCCYP while undertaking its functions.

252.Paragraph 15 inserts new paragraph 9A (Budget). Paragraph 9A enacts the recommendations of the Finance Committee’s report and implements existing administrative budgetary arrangements between the officeholder and the Parliamentary corporation designed to ensure accountability for the use of public funds.

253.Sub-paragraph (1) requires the SCCYP to prepare budget proposals for each financial year, in advance of that year, for approval by the Parliamentary corporation. The Parliamentary corporation is given power to set a timetable for submission and approval of the budget which will allow it to be integrated within wider budgetary arrangements.

254.Under sub-paragraph (2) the SCCYP may seek to revise the budget during the year by submitting revised proposals to the Parliamentary corporation for approval.

255.Under sub-paragraph (3), in preparing a budget or a revised budget, the SCCYP is required to ensure that resources will be used economically, efficiently and effectively and must under sub-paragraph (4) so certify in any budget or revised budget proposal.

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