PART 3 SOversight and enforcement

Information noticesS

20Power to make further provision about information noticesS

(1)The Parliament may by resolution make further provision about information notices.

(2)A resolution under subsection (1) may in particular make provision (or further provision)—

(a)specifying descriptions of information which the Clerk may not require a person to supply in response to an information notice,

(b)about the minimum period between the date on which an information notice is served and the date which must be specified under section 17(3)(b),

(c)about other matters which must be specified in an information notice.

Investigation of complaintsS

Prospective

24Procedure for assessing admissibility of complaintS

(1)This section applies where the Commissioner receives a complaint that a person has or might have failed to comply with a requirement mentioned in section 22(1)(a) to (d).

(2)The Commissioner must—

(a)notify the person who is the subject of the complaint that the complaint has been received,

(b)inform that person of the nature of the complaint, and

(c)except where the Commissioner considers that it would not be appropriate to do so, inform that person of the name of the individual who made the complaint.

(3)If the Commissioner considers that the complaint is inadmissible due to being irrelevant, the Commissioner must dismiss the complaint.

(4)Subsections (5) to (7) apply where the Commissioner considers that the complaint is relevant but fails to meet one or more of the conditions mentioned in section 23(3).

(5)The Commissioner must—

(a)if the complaint is of a kind specified in a direction by the Parliament, make a report to the Parliament,

(b)if the complaint is not of such kind and the Commissioner considers that the complaint warrants further investigation, make a report to the Parliament,

(c)in any other case, dismiss the complaint.

(6)A report under subsection (5)(a) or (b) must include—

(a)the reasons why the Commissioner considers that the complaint fails to meet one or more of the conditions mentioned in section 23(3),

(b)the reasons for that failure (if known),

(c)if the report is made under subsection (5)(b), a statement that the complaint warrants further investigation,

(d)the recommendation of the Commissioner as to whether, having regard to all the circumstances of the case, the complaint should be dismissed as inadmissible for failing to meet one or more of the conditions mentioned in section 23(3) or should be treated as if it had met all of those conditions, and

(e)any other matters which the Commissioner considers appropriate.

(7)After receiving a report under subsection (5)(a) or (b), the Parliament must give the Commissioner a direction—

(a)to dismiss the complaint as inadmissible for failing to meet one or more of the conditions mentioned in section 23(3), or

(b)to treat the complaint as if it had met all of those conditions.

(8)If the Commissioner considers that the complaint is admissible, the Commissioner must inform—

(a)the Parliament, by making a report to the Parliament,

(b)the individual who made the complaint, and

(c)the person who is the subject of the complaint.

(9)If the Commissioner considers that the complaint is inadmissible and has not already dismissed the complaint under subsection (3) or (5)(c) or in pursuance of subsection (7)(a), the Commissioner must dismiss the complaint.

(10)In dismissing a complaint, the Commissioner must inform the individual who made the complaint and the person who is the subject of the complaint of the dismissal together with the reasons why the complaint is inadmissible.

(11)Subsections (2), (8) and (10) apply only to the extent that they are capable of applying where—

(a)the person to whom the complaint relates has not been named in the complaint, or

(b)the individual who made the complaint is anonymous.

(12)If the Commissioner has not assessed whether a complaint is admissible before the end of the period of 2 months beginning on the date the complaint is received, the Commissioner must, as soon as possible thereafter, make a report to the Parliament on the progress of the assessment of admissibility.

Prospective

28Withdrawal of complaintS

(1)At any time after a complaint has been made to the Commissioner and before a report is made to the Parliament under section 22(2)(b)(ii), the individual who made the complaint may withdraw the complaint by notifying the Commissioner.

(2)A notification under subsection (1) must be—

(a)in writing, and

(b)signed by the individual who made the complaint.

(3)When a complaint is withdrawn during an assessment under section 22(2)(a), the Commissioner must—

(a)cease to investigate the complaint, and

(b)inform the person who is the subject of the complaint—

(i)that the complaint has been withdrawn,

(ii)that the investigation into the complaint has ceased, and

(iii)of any reason given by the individual who made the complaint for withdrawing it.

(4)When a complaint is withdrawn during an investigation under section 22(2)(b)(i), the Commissioner must—

(a)inform the person who is the subject of the complaint—

(i)that the complaint has been withdrawn, and

(ii)of any reason given by the individual who made the complaint for withdrawing it,

(b)invite that person to give the Commissioner views on whether the investigation should nevertheless continue, and

(c)after taking into account any relevant information, determine whether to recommend to the Parliament that the investigation should continue.

(5)For the purposes of subsection (4)(c), “relevant information” includes—

(a)any reason given by the individual who made the complaint for withdrawing it, and

(b)any views expressed by the person who is the subject of the complaint on whether the investigation should continue.

(6)If the Commissioner determines to recommend to the Parliament that the investigation should cease, the Commissioner must—

(a)cease to investigate the complaint,

(b)inform the individual who made the complaint that the investigation has ceased,

(c)inform the person who is the subject of the complaint that the investigation has ceased, and

(d)report to the Parliament—

(i)that the complaint has been withdrawn,

(ii)that the investigation has ceased, and

(iii)on any reason given by the individual who made the complaint for withdrawing it.

(7)If the Commissioner determines to recommend to the Parliament that the investigation should continue, the Commissioner must report to the Parliament—

(a)that the complaint has been withdrawn,

(b)on any reason given by the individual who made the complaint for withdrawing it,

(c)on any views on the matter expressed by the person who is the subject of the complaint on whether the investigation should continue,

(d)that the Commissioner recommends that the investigation should continue, and

(e)on the reasons for the Commissioner's recommendation.

(8)After receiving a report under subsection (7), the Parliament must direct the Commissioner to—

(a)continue the investigation, or

(b)cease the investigation.

(9)After receiving a direction under subsection (8), the Commissioner must inform the individual who made the complaint and the person who is the subject of the complaint whether the investigation will continue or cease.

(10)Where the Commissioner is required under this section to provide reasons given by the individual who made the complaint for withdrawing it, the Commissioner may provide a summary of those reasons.

31Directions to the CommissionerS

(1)The Commissioner must, in carrying out the Commissioner's functions conferred by or under this Act, comply with any direction given by the Parliament.

(2)A direction under subsection (1) may, in particular—

(a)make provision as to the procedure to be followed by the Commissioner when conducting an assessment or investigation mentioned in section 22,

(b)set out circumstances where, despite receiving a complaint mentioned in section 22(1), the Commissioner—

(i)may decide not to conduct an assessment under section 22(2)(a) or an investigation under section 22(2)(b)(i) or, if started, may suspend or stop such an assessment or investigation before it is concluded,

(ii)must not conduct an assessment or an investigation referred to in sub-paragraph (i) or, if started, must suspend or stop such an assessment or investigation before it is concluded,

(iii)is not required to report to the Parliament under section 22(2)(b)(ii), 24(5)(a) or (b), (8)(a) or (12), 25(4) or 28(7),

(c)require the Commissioner to report to the Parliament upon such matter relating to the carrying out of the Commissioner's functions as may be specified in the direction.

(3)A direction under subsection (1) may not direct the Commissioner as to how a particular investigation is to be carried out.

Prospective

Investigations: witnesses and documentsS

32Power to call for witnesses and documents etc.S

(1)The Commissioner may for the purposes of an investigation under section 22(2)(b)(i) require any person, whether in or outwith Scotland—

(a)to attend the Commissioner's proceedings for the purpose of giving evidence,

(b)to produce documents in the person's custody or under the person's control.

(2)For the purposes of subsection (1), a person is to be taken to comply with a requirement to produce a document if that person produces a copy of, or an extract of the relevant part of, the document.

(3)The Commissioner may not impose such a requirement on any person who the Parliament could not require, under section 23 of the Scotland Act 1998, to attend its proceedings for the purpose of giving evidence or to produce documents.

(4)A statement made by a person in answer to a question which that person was obliged under this section to answer is not admissible in any criminal proceedings against that person, except where the proceedings are in respect of perjury relating to that statement.

33NoticeS

A requirement under section 32(1) must be imposed by giving notice to the person specifying—

(a)where the person is required to give evidence—

(i)the time and place at which the person is to attend, and

(ii)the particular matters about which the person is required to give evidence,

(b)where the person is required to produce a document—

(i)the document, or types of document, which the person is to produce,

(ii)the date by which the document must be produced, and

(iii)the particular matters in connection with which the document is required.

34Exceptions to requirement to answer question or produce documentS

(1)A person is not obliged under section 32 to answer a question or to produce a document which that person would be entitled to refuse to answer or produce in proceedings in a court in Scotland.

(2)The Lord Advocate, the Solicitor General for Scotland or a procurator fiscal is not obliged under section 32 to answer any question or produce any document which that person would be entitled to decline to answer or to produce in accordance with section 27(3) or, as the case may be, 23(10) of the Scotland Act 1998.

35Evidence under oathS

(1)The Commissioner may—

(a)administer an oath to any person giving evidence to the Commissioner, and

(b)require that person to take an oath.

(2)A person who refuses to take an oath when required to do so under subsection (1) commits an offence.

(3)A person who commits an offence under subsection (2) is liable on summary conviction to imprisonment for a period not exceeding 3 months or a fine not exceeding level 5 on the standard scale (but not both).

36Offences relating to Commissioner's investigationS

(1)A person to whom a notice under section 33 has been given commits an offence if the person—

(a)refuses or fails to attend before the Commissioner as required by the notice,

(b)refuses or fails, when attending before the Commissioner, to answer any question concerning the matters specified in the notice,

(c)deliberately alters, suppresses, conceals or destroys any document which that person is required to produce by the notice, or

(d)refuses or fails to produce any such document.

(2)It is a defence for a person charged with an offence under subsection (1)(a), (b) or (d) to show that there was a reasonable excuse for the refusal or failure.

(3)A person who commits an offence under subsection (1) is liable on summary conviction to imprisonment for a period not exceeding 3 months or a fine not exceeding level 5 on the standard scale (but not both).

37Restriction on disclosure of informationS

(1)A person mentioned in subsection (2) must not disclose information which is—

(a)contained in a complaint,

(b)provided to or obtained by the person in the course of, or for the purposes of, an assessment under section 22(2)(a), or

(c)provided to or obtained by the person in the course of, or for the purposes of, an investigation under section 22(2)(b)(i).

(2)The persons are—

(a)the Commissioner,

(b)a member of the Commissioner's staff, or

(c)any other person appointed by the Commissioner.

(3)Subsection (1) does not prevent disclosure of information for the purpose of—

(a)enabling or assisting the Commissioner to discharge the Commissioner's functions—

(i)conferred by or under this Act (including by a resolution of the Parliament under section 41),

(ii)conferred by or under any other enactment, or

(iii)in the standing orders of the Scottish Parliament, or

(b)the investigation or prosecution of any offence or suspected offence.

Prospective

Commissioner's functionsS

38Commissioner's functions etc.S

(1)The Scottish Parliamentary Commissions and Commissioners etc. Act 2010 is modified as follows.

(2)In section 1(3) (functions of the Commissioner)—

(a)the word “and” after paragraph (b) is repealed,

(b)after paragraph (c) insert , and

(d)the Lobbying (Scotland) Act 2016..

(3)In section 5(1) (protection from actions for defamation)—

(a)in paragraph (a)—

(i)the word “or” in the second place where it occurs is repealed,

(ii)after “Parliamentary Standards Act” insert “ or the Lobbying (Scotland) Act 2016 ”,

(b)in paragraph (c)—

(i)the word “or” in the second place where it occurs is repealed,

(ii)after “Public Appointments Act” insert “ or the Lobbying (Scotland) Act 2016 ”.

(4)In section 25 (annual reports), after subsection (3) insert—

(3A)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..

39Investigation of performance of Commissioner's functionsS

In paragraph 21ZA of schedule 2 of the Scottish Public Services Ombudsman Act 2002—

(a)the word “and” is repealed,

(b)at the end insert “ and the Lobbying (Scotland) Act 2016 ”.

Prospective

Further provisionS

41Power to make further provision about Parliament's procedures etc.S

(1)The Parliament must by resolution make provision about procedures to be followed when the Commissioner submits a report to the Parliament under this Part.

(2)A resolution under subsection (1) may in particular make provision—

(a)on how the Commissioner is to make a report to the Parliament,

(b)in connection with the Parliament's consideration of a report made under this Part (including the carrying out of further investigation),

(c)on the giving of a direction under this Part,

(d)about the review of, or appeal to a court against, a decision by the Parliament under section 40 to censure a person.