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Scottish Parliamentary Commissions and Commissioners etc. Act 2010

Schedule 3

160.Schedule 3 is introduced by section 29(3) and primarily amends the SPSO Act to standardise the SPSO’s terms and conditions and standardise the accountability and governance arrangements with those of the other officeholders and bodies supported by the Parliamentary corporation. Other amendments are made to assist the SPSO in its operations. The Schedule also includes provisions to enable the transfer of the functions of the Scottish Prison Complaints Commission to the SPSO.

161.Paragraph 1 makes an amendment to section 5(1)(a) (matters which may be investigated) to correct a minor grammatical error in the section .

162.Paragraph 2 amends section 11 (decisions not to investigate). This paragraph extends the requirement placed upon the SPSO to send a statement of reasons for not investigating a complaint to cases where the investigation is discontinued. That requirement is extended by new paragraph (3A) to also require such a statement to be sent to any listed authority as covered by paragraphs (b), (f) and (g) of subsection (2) whose action was investigated by the SPSO in connection with the investigation despite the fact that it was not mentioned in the complaint.

163.Paragraph 3 amends section 12 (investigation procedure). Subsection (7) is inserted to allow a public authority which was not the original public body complained about but who is being investigated similar rights in the investigation as the named body. These are the opportunity to comment on any allegations contained in the complaint and the assurance that the investigation does not affect any action taken by that body or any power or duty of that body to take further action with respect to any matter being investigated.

164.Paragraph 4 amends section 13 (evidence). Subsection (10) is inserted to allow the SPSO to require evidence from a public authority which was not the original public body complained about but where the investigation of matters following a complaint leads to another authority.

165.Paragraph 5 amends section 15 (reports on investigations). Subsection (1A) provides the SPSO with the option to send a report to Scottish Ministers and lay a copy of the report before the Parliament where the SPSO has decided to discontinue an investigation under section 2(3) of the SPSO Act. Subsection (4)(a)(i) of the SPSO Act is amended to clarify that the duty of a listed authority to publicise a report only applies to any reports that have been sent to it by the SPSO. In addition, this paragraph also inserts section 15(8) which allows the SPSO to identify in any report on an investigation any authority investigated following a complaint, where that authority was not mentioned in the complaint.

166.Paragraph 6 amends section 17 (Annual reports). Section 17 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 (2A) and to be published (subsection 3A). Subsection (3) is amended to oblige the SPSO to comply with any directions given by the Parliamentary corporation regarding the form and content of the report. New subsection (5) defines the reporting year as beginning 1 April.

167.Paragraph 7 inserts new section 17A (strategic plans). Section 17A requires the SPSO 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 SPSO proposes to perform its functions during the period.

168.Sub-paragraph (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.

169.Sub-paragraph (3) requires the SPSO 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 SPSO thinks appropriate, which includes a Committee of the Parliament (sub-paragraph (4)).

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

171.Under sub-paragraph (7) the SPSO can review its strategic plan at any time during the four year period and lay a revised plan before the Parliament. Sub-paragraph (8) provides that, in that event, the provisions in sub-paragraph (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.

172.Paragraph 8 amends section 19 (confidentiality of information) to permit the SPSO to disclose information when it considers that it is of the effect that any person is likely to constitute a threat to the health or safety of an individual(s). Under the existing provisions, disclosure is only justified where information is of the effect that any person is likely to constitute a threat to the health or safety of patients. In conducting an investigation it is possible that the SPSO may come into possession of information that suggests there may be a threat to the health or safety of other persons, for example a child, who is not a patient. In these circumstances disclosure of the threat may be justified, but is not allowed under existing provisions. As a consequence of this amendment, paragraph 9 repeals the definition of “patient” at section 23.

173.Paragraph 10 explains that paragraphs 11 to 19 relate to Schedule 1 to the SPSO Act.

174.Paragraph 11 replaces paragraph 1(3) (disqualification of SPSO from certain posts). Paragraph 11 makes similar restrictions on subsequent appointments once the SPSO or Deputy SPSO has left office to those that applied to the original appointment under paragraph 1(1) of Schedule 1 to the SPSO Act. The restrictions apply to being appointed or elected as: the holder any office which is a listed authority; a member, officer or employee of such an authority; or being appointed to a paid post by a listed authority. Restrictions are applied to the holding of any other office, employment, appointment or occupation which that person could not have held when they were in post (see paragraph 178).

175.Under sub-paragraph (3A) the restrictions run from the date of leaving office until the end of the financial year following the one in which the person left office. Thus if the SPSO leaves on 1 November 2010 the restriction would subsist until 1 April 2012.

176.Paragraph 12 amends paragraph 2 (status of SPSO) to clarify the legal status of the SPSO. The paragraph provides that the SPSO is a juristic person distinct from the natural person holding the office of SPSO. This paragraph also updates the list of provisions under paragraph 2(3) of Schedule 1 to the SPSO Act where the SPSO is subject to direction or control.

177.Paragraph 13 amends paragraph 4 (period of office, tenure etc) to provide for an SPSO or deputy SPSO to hold office for a single term of up to a period of 8 years and clarifies that a person who has ceased to hold such office is not eligible for reappointment. However, a Deputy SPSO may hold the office of SPSO and vice versa as long as the appointments in total do not exceed the period of 8 years from when the person was first appointed (sub-paragraph (2B)).

178.Paragraph 13 also inserts sub-paragraphs (2C) and (2D) which provide for an SPSO or Deputy SPSO (sub-paragraph (2D)) to be removed from office. Sub-paragraph (2C)(a) states that an SPSO 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 would then have to ask the Parliament to resolve that the member should be removed from office for the breach.

179.Alternatively, under sub-paragraph (2C)(b), an SPSO may be removed from office if the Parliament resolves that it has lost confidence in the SPSO’s willingness, suitability or ability to perform their functions.

180.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.

181.Furthermore paragraph 13 inserts new sub-paragraph (2E). Under sub-paragraph (2E) the Parliamentary corporation may determine in the SPSO’s terms and conditions of office whether the SPSO or Deputy SPSO should be permitted to hold any other office, employment or appointment or engagement in addition to those from which the officeholder is already specifically disqualified.

182.Paragraph 14 substitutes a new paragraph 10 (Advisers and other services). Under new paragraph 10 the SPSO can secure advice, assistance or any other service. There may be circumstances where the SPSO might want to secure advice for example, in relation to legal issues. This advice or services can be procured from anyone whom the SPSO considers is qualified to provide it. Payment of fees and allowances is determined by the SPSO. Any payment for providing services and payment in respect of that advice, assistance or service provided, is subject to approval by the Parliamentary corporation.

183.Paragraph 15 amends paragraph 12 (Ombudsman’s general powers) so that the SPSO may only acquire and dispose of land with the consent of the Parliamentary corporation.

184.Paragraph 16 inserts paragraph 12A (Location of office) which provides that the SPSO is required to comply with any directions by the Parliamentary corporation as to the location of the SPSO’s office. This paragraph also inserts paragraph 12B (Sharing of premises, staff, services and other resources) which allows the Parliamentary corporation to direct the SPSO 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 bodies or to direct that the provision of services such as human resources, payroll, finance or procurement should be carried out centrally.

185.Paragraph 16 also inserts 12C (charges for services). This provision allows the SPSO to charge reasonable sums for anything done by it, or on its behalf in the performance of, or in connection with, the SPSO’s functions. For example, this section would allow the SPSO to organise training events or seminars and charge attendance fees. Any sums received must be retained by the SPSO and used to meet the costs of the services provided and charged for, for example the training event.

186.Paragraph 17 inserts paragraph 12D (Budget). Paragraph 12D implements the recommendations of the Finance Committee’s report and enacts existing administrative budgetary arrangements between the SPSO and the Parliamentary corporation designed to ensure accountability for the use of public funds.

187.Sub-paragraph (1) requires the SPSO 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.

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

189.Under sub-paragraph (3), in preparing a budget or a revised budget, the SPSO 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.

190.Paragraph 18 amends paragraph 13(b) (Parliamentary corporation to pay Ombudsman’s expenses) Under paragraph 13(b) the Parliamentary corporation must pay the SPSO’s expenses where properly incurred in achieving its functions less any sums the SPSO has received in payment for services provided under paragraph 12(C), for example, in providing training or holding seminars.

191.Paragraph 19 further amends paragraph 13 inserting sub-paragraph (2) which clarifies that the Parliamentary corporation is not compelled to pay expenses which exceed or were not included in the agreed budget (see paragraph 187 above). 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 must indemnify the SPSO in respect of any liability incurred by the SPSO while performing its functions.

192.Paragraph 20 amends Part 1 of schedule 2 to the SPSO Act (list of persons liable to investigation) by inserting paragraph 17A (Prisons). This provision enables the SPSO to investigate complaints in respect of governors or prisons, medical officers and the equivalent persons in respect of contracted-out prisons. This provision ensures the transfer of the functions currently performed by the Scottish Prison Complaints Commission to the SPSO.

193.The Scottish Ministers are already a listed authority under the SPSO Act (paragraph 2 of schedule 2 to that Act) so to the extent that the SPSO is able to consider complaints by prisoners in respect of administrative functions and service failure in respect of the Scottish Ministers then these are matters that the SPSO can already investigate. Currently, the SPSO Act does not specifically list Governors of prisons as persons in respect of whom the SPSO can investigate complaints. The issue as to whether Governors act independently or on behalf of the Scottish Ministers was considered in the case of Somerville and other v Scottish Ministers (2007 UKHL 44). The Court in that case decided that the person exercising the power of the Governor was exercising an independent function as he or she was not subject to direction or control of the Scottish Ministers. Therefore the amendment to schedule 2 to the SPSO Act provides that the Governor is a listed authority, but only when acting in a capacity independent of Scottish Ministers. In terms of medical officers, they also appear to exercise independent functions, not functions of the Scottish Ministers, therefore their actions cannot currently be investigated by the SPSO. The amendment to schedule 2 to the SPSO provides that a medical officer is a listed authority where they are not exercising functions of the Scottish Ministers.

194.Paragraph 21 amends paragraph 2 of schedule 4 to the SPSO Act (Matters which the Ombudsman must not investigate). This amendment resolves existing doubts by clarifying that the SPSO cannot investigate inquiries under the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 (c.14) as civil proceedings are excluded from the SPSO’s jurisdiction and civil proceedings include a reference to such inquiries.

195.Paragraph 21 also amends paragraph 7(1) of schedule 4 to make it clear that the SPSO cannot investigate matters arising from concluded contracts but that it can investigate matters relating to the process leading up to the conclusion of a contract.

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