Part 2: Appointment, termination and terms and conditions
68.Paragraph 4 provides that the Commissioner will be appointed by the King on the nomination of the Scottish Parliament and that when considering nominating a person for appointment to the office of the Commissioner the Scottish Parliament must make arrangements to inquire into whether the person is, or has been within the year preceding the date on which the appointment is to take effect, an individual with a financial interest in a health care provider, a body constituted by virtue of the National Health Service (Scotland) Act 1978 or a supplier or manufacturer of medicines or medical devices. A financial interest for the purposes of this paragraph includes by reason of being remunerated by such a person. Paragraph 4 also provides that a Commissioner may serve only one term of office.
69.Paragraph 5 provides that a person is disqualified from being appointed Commissioner if at the time of the appointment or in the year preceding the appointment, the person is or has been a member of the Scottish Parliament, of the House of Commons or of the House of Lords. It should be noted that “person” is defined widely in schedule 1 of the Interpretation and Legislative Reform (Scotland) Act 2010 and includes bodies as well as individuals, whether or not incorporated.
70.The list of disqualifications is to ensure that the Commissioner is free from political influences, given that the role will involve scrutinising laws, rules and safety regulations over which these institutions have influence or control. These disqualification criteria continue to apply during the Commissioner’s time in office (see paragraph 7(1)(b) of schedule 1).
71.Under paragraph 6, a Commissioner may hold office for a single term of up to eight years, as determined by the SPCB at the time of appointment. This is consistent with the tenure arrangements set out in the Scottish Parliamentary Commissions and Commissioners etc. (Scotland) Act 2010.
72.Paragraph 7 sets out the circumstances under which a Commissioner’s appointment may terminate early. A Commissioner may resign, or may become disqualified from holding office under paragraph 5. The Commissioner can also be removed from office where either the SPCB is satisfied that the Commissioner has breached their terms and conditions of appointment and the Parliament resolves to remove the Commissioner as a result, or where the Parliament resolves that it has lost confidence in a Commissioner’s willingness, suitability or ability to perform the Commissioner’s functions. A resolution in either scenario requires the support of at least two thirds of (normally) the total number of members of the Parliament. However, the number of votes required is based on the number of seats, so the percentage does not reduce if a seat is temporarily vacant pending a by-election.
73.Paragraph 8 provides that the validity of any acts of the Commissioner is unaffected by any procedural defects in the Parliament’s nomination or by the Commissioner subsequently becoming disqualified from acting as the Commissioner.
74.Paragraph 9 enables the SPCB to set and pay such remuneration, allowances, pension and gratuities to the Commissioner as it determines. It will be for the SPCB to decide whether payments are made and the amounts of any payments. The SPCB must indemnify the Commissioner for liabilities incurred by the Commissioner in the exercise of their functions.
75.Paragraph 10 sets out restrictions on subsequent appointments held by a Commissioner once they have left office. Unless permission is granted by the SPCB, a former Commissioner may not, within the specified period, subsequently be any of the following: be employed or appointed in any capacity by the Patient Safety Commissioner; be an employee or appointee of any person or body which has been or is being investigated by the Commissioner or hold office in such a body; hold any other office, employment or appointment or engage in any other occupation which that person could not have held or engaged in under paragraph 11(2)(a) when they were the Commissioner. Paragraph 11(2)(a) covers any specific absolute prohibitions on simultaneous appointments which are contained in the Commissioner’s terms and conditions. The restrictions under paragraph 10 run from the date of leaving office until the end of the financial year following the one in which the person ceased to be the Commissioner. Therefore, if the Commissioner left office on 1 December 2023, the restriction would subsist until 31 March 2025. The restriction in paragraph 10(1) is in place to avoid a subsequent appointment being seen to compromise the independence of the Commissioner. For example, this could arise if a former Commissioner were to become an office-holder of an authority which they would have been able to investigate when in post as the Commissioner.
76.Under paragraph 11, the SPCB may determine the terms and conditions of the Commissioner’s appointment insofar as not already set out in the Act, including prohibiting the Commissioner from holding any other office, employment or appointment – or requiring that the Commissioner first obtain the approval of the SPCB before holding any other office, employment or appointment. Again, this is to avoid an appointment being seen to compromise the independence of the Commissioner.
77.Paragraph 12 makes provision for the appointment of a temporary or acting Commissioner to hold the office either during a period when the post is vacant or where the Commissioner is unable to perform their functions. During that period, the SPCB may appoint as temporary Commissioner a member of the Commissioner’s staff or another person who is not disqualified from holding the post under paragraph 5 of this schedule. However, staff are exempted from the normal disqualification provisions to allow for greater flexibility and in recognition of the short-term nature of the appointment. The SPCB will determine the terms, conditions and duration of the appointment and may relieve the individual from the post at its discretion (by notice in writing), or at the request of the individual.
