Part 1

Regulatory framework
Chapter 2

regulators

Powers of the Lord President in relation to regulators

Review of regulatory performance by the Lord President
18
1
If the condition in subsection (2) is met, the Lord President may review the performance of a category 1 or category 2 regulator’s regulatory functions—
a
on the Lord President’s own initiative, or
b
if the Lord President is requested to do so by—
i
the Scottish Parliament following a resolution of the Parliament that the request should be made (whether or not following consideration of the regulator’s annual report),
ii
the independent advisory panel of the Commission, or
iii
Consumer Scotland.
2
The condition is that the Lord President is concerned that the regulator is failing or is likely to fail—
a
to exercise its regulatory functions in a manner that is compatible with the regulatory objectives, or
b
to comply with the requirements imposed on the regulator under this Act or any other enactment.
3
A request for a review may be made under subsection (1)(b) by a requesting body only where the requesting body—
a
is concerned that the regulator may be failing, or may be likely to fail—
i
to exercise its regulatory functions in a manner that is compatible with the regulatory objectives, or
ii
to comply with the requirements imposed on the regulator under this Act or any other enactment, and
b
has—
i
given notice to the regulator of its reasons for proposing to make the request based on its concerns, and
ii
given the regulator a reasonable opportunity (which must be no fewer than 28 days from the date of the notice) to respond to the notice and address the requesting body’s concerns (or commit to addressing those concerns).
4
A request for a review made under subsection (1)(b)—
a
must specify each regulatory function or other function of the regulator to which the request relates, and
b
must be accompanied by—
i
a copy of the requesting body’s notice sent to the regulator under subsection (3), and
ii
either—
A
a copy of any written response (or a written summary of any verbal response) by the regulator to the notice given under subsection (3) which the requesting body considers to be insufficient to address its reasons for proposing to make a request for a review, or
B
written confirmation from the requesting body that the regulator has failed to respond to its notice given under subsection (3) within the required period for a response.
5
Reviewing the performance of a category 1 or category 2 regulator includes (in particular) doing so by reference to—
a
its compliance with the regulatory objectives,
b
the exercise of its regulatory functions,
c
its compliance with the requirements imposed on it under this Act or any other enactment,
d
the operation of its regulatory committee (if any) or other internal governance arrangements,
e
its compliance with—
i
any direction to it by the Commission under the 2007 Act, or
ii
any measures applying to it by virtue of section 19(4).
6
A category 1 or 2 regulator must—
a
provide such information about its performance of its regulatory functions as the Lord President may reasonably request (whether in connection with a review under subsection (1) or a decision as to whether to conduct such a review), and
b
do so within the period of 28 days beginning with the date of the request (or such longer period as the Lord President may allow).
7
Subsection (8) applies if—
a
the Lord President requests information from a category 1 or category 2 regulator in connection with an existing review under subsection (1) relating to the regulator, and
b
the regulator fails, without a reasonable excuse, to provide some or all of the requested information within the 28 day period mentioned in subsection (6) (or within such longer period allowed by the Lord President to respond).
8
The Lord President may add the failure to the matter (or matters) being considered as part of the existing review but, before doing so, the Lord President must notify the regulator in writing of the proposal and give the regulator an opportunity to respond within the period specified in the notice (which must be no fewer than 14 days from the date of the notice) to—
a
provide all of the information requested under subsection (6), or
b
provide a reasonable excuse for the failure to provide all of the requested information within the period specified in that subsection (or within such longer period allowed by the Lord President to respond to the notice under that subsection).
9
If the Lord President considers that any person other than a category 1 or category 2 regulator may hold information relating to the performance of a category 1 or category 2 regulator’s regulatory functions—
a
the Lord President may ask the person to confirm whether they hold such information as the Lord President may specify in the request, and
b
the person must respond to the request as soon as practicable and the response must include—
i
confirmation of whether or not the person holds the information specified in the request, and
ii
if any such information is held by the person, details of the nature of the information that is held.
10
Any person other than a category 1 or category 2 regulator who holds information relating to the performance of a category 1 or category 2 regulator’s regulatory functions must—
a
provide such of that information as the Lord President may reasonably request, and
b
do so within the period of 28 days beginning with the date of the request (or such longer period as the Lord President may allow).
11
In conducting a review under subsection (1), the Lord President must consult such persons or bodies as the Lord President considers appropriate.
12
Following a review under subsection (1), the Lord President must—
a
prepare a report detailing the Lord President’s findings and any measures the Lord President intends to take under section 19,
b
publish the report in such manner as the Lord President considers appropriate (having regard to the desirability of it being accessible to those likely to have an interest in the report), and
c
send a copy of the report to—
i
the regulator to which the review relates, and
ii
if the review was conducted following a request under subsection (1)(b), the requesting body.
13
If a request for a review is made under subsection (1)(b) and the Lord President decides not to conduct a review under subsection (1), the Lord President must inform the requesting body in writing of the reasons for the Lord President’s decision.
S. 18 not in force at Royal Assent, see s. 103(3)