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South of Scotland Enterprise Act 2019

Schedule 2

Ethical Standards in Public Life etc. (Scotland) Act 2000

69.Paragraph 1 of schedule 2 adds South of Scotland Enterprise to the list of devolved public bodies in schedule 3 of the Ethical Standards in Public Life etc. (Scotland) Act 2000. This means that South of Scotland Enterprise will need to:

  • have a code of conduct for its members, whose compliance with the code will be policed by the Standards Commission for Scotland, and

  • maintain a public register of its members’ interests.

Scottish Public Services Ombudsman Act 2002

70.Paragraph 2 of schedule 2 adds South of Scotland Enterprise to the list of authorities in schedule 2 of the Scottish Public Services Ombudsman Act 2002 (“the 2002 Act”). The effect is to:

  • make South of Scotland Enterprise amenable to investigation by the ombudsman (see section 5 of the 2002 Act),

  • oblige South of Scotland Enterprise to have its own complaints handling procedure that complies with the statement of principles published by the ombudsman under section 16A of the 2002 Act,

  • pave the way for South of Scotland Enterprise being subject to the further requirement to have a complaints handling procedure that complies with a model complaints handling procedure prepared by the ombudsman (see sections 16B and 16C of the 2002 Act).

Freedom of Information (Scotland) Act 2002

71.Paragraph 3 of schedule 2 adds South of Scotland Enterprise to the list of Scottish public authorities in schedule 1 of the Freedom of Information (Scotland) Act 2002. This means that South of Scotland Enterprise will be subject to the requirements that Act places on public bodies, including requirements to provide information to the public on request and to have in place a scheme for the pro-active publication of information it holds.

72.Being a public authority within the meaning of the Freedom of Information Act also makes South of Scotland Enterprise a “Scottish public authority” to which the Environmental Information (Scotland) Regulations 2004 apply.

73.In addition, as a public authority within the meaning of the Freedom of Information Act, South of Scotland Enterprise is a “public authority” or “public body” for the purposes of the General Data Protection Regulation by virtue of section 7 of the Data Protection Act 2018 (subject to the Secretary of State not making regulations under that section to remove its “public authority” status). The General Data Protection Regulation (also commonly referred to by the acronym “GDPR”) is Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data. There are particular rules applied to bodies classified as “public authorities” (over and above those applied to all data processors) in the GDPR and the Data Protection Act 2018. An analysis of those rules is beyond the scope of these Notes.

74.In addition, being a public authority within the meaning of the Freedom of Information Act makes South of Scotland Enterprise subject to the duties imposed by section 44 of the Climate Change (Scotland) Act 2009, and as such liable to monitoring and investigation under Part 4 of that Act.

Public Appointments and Public Bodies etc. (Scotland) Act 2003

75.Paragraph 4 of schedule 2 adds South of Scotland Enterprise to the list of specified authorities in schedule 2 of the Public Appointments and Public Bodies etc. (Scotland) Act 2003. This means that the Scottish Ministers, when appointing South of Scotland Enterprise’s members and first chief executive, will need to comply with the code of practice on public appointments produced by the Commissioner for Ethical Standards in Public Life in Scotland.

Further and Higher Education (Scotland) Act 2005

76.Paragraph 5 of schedule 2 adds South of Scotland Enterprise to several lists of persons in the Further and Higher Education (Scotland) Act 2005 (the “2005 Act”). The effect is to make South of Scotland Enterprise one of the persons with which certain bodies identified in that Act must (where appropriate) consult and seek to collaborate in exercising their functions.

77.The amended sections of the 2005 Act are as follows:

  • Section 22, which establishes the relevant consultation and collaboration duty of the Scottish Further and Higher Education Funding Council.

  • Section 23B, which establishes the relevant consultation and collaboration duty of regional colleges. Regional colleges are colleges of further education designated as regional colleges by the Scottish Ministers under section 7A of the 2005 Act.

  • Section 23M, which establishes the relevant consultation and collaboration duty of regional strategic bodies. Extant regional strategic bodies, within the meaning of the 2005 Act, are identified in schedule 2A of that Act.

Public Services Reform (Scotland) Act 2010

78.Paragraph 6(2) of schedule 2 adds South of Scotland Enterprise to the list of bodies in schedule 5 of the Public Services Reform (Scotland) Act 2010 (“the 2010 Act”). This means that it is a body in relation to which an order can be made under section 14 of the 2010 Act. Such an order can (subject to restrictions, and only after the Scottish Parliament has approved a draft of the order):

  • modify, confer, abolish, transfer or provide for the delegation of any function of a public body,

  • amend the constitution of a public body.

79.Paragraph 6(3) of schedule 2 adds South of Scotland Enterprise to the list of bodies in schedule 8 of the 2010 Act. This means that South of Scotland Enterprise will be subject to the duties to report after each financial year on:

  • expenditure (see section 31 of the 2010 Act), and

  • the steps it has taken to promote and increase sustainable growth and improve its efficiency, effectiveness and economy (see section 32 of the 2010 Act).

Public Records (Scotland) Act 2011

80.Paragraph 7 of schedule 2 makes South of Scotland Enterprise subject to the duties created by the Public Records (Scotland) Act 2011 to produce, implement and keep under review a records management plan.

Water Resources (Scotland) Act 2013

81.Paragraph 8 of schedule 2 adds South of Scotland Enterprise to the list of bodies to which the Scottish Ministers can give directions under section 2 of the Water Resources (Scotland) Act 2013. A direction to South of Scotland Enterprise under section 2 would be for the purpose of securing its participation in a project to develop the value of Scotland’s water resources.

Community Empowerment (Scotland) Act 2015

82.Paragraph 9(2) of schedule 2 adds South of Scotland Enterprise to the list of persons in section 13 of the Community Empowerment (Scotland) Act 2015 (“the 2015 Act “) who have a duty to facilitate community planning and take reasonable steps to ensure that community planning partnerships (established under that Act) carry out their functions efficiently and effectively.

83.The community planning partnerships that South of Scotland Enterprise has duties in relation to are the partnerships that include the Scottish Borders Council and Dumfries and Galloway Council as South of Scotland Enterprise’s area of operation covers the areas of both of those local authorities (see section 20).

84.Paragraph 9(3) of schedule 2 adds South of Scotland Enterprise to the list of persons in schedule 1 of the 2015 Act. This makes South of Scotland Enterprise a community planning partner for the purposes of Part 2 of the 2015 Act. As mentioned, South of Scotland Enterprise’s area of operation covers the areas of the Scottish Borders Council and Dumfries and Galloway Council and so it will be a community planning partner to both of those local authorities.

85.Paragraph 9(4) of schedule 2 adds South of Scotland Enterprise to the list of persons in schedule 3 of the 2015 Act. This makes South of Scotland Enterprise a “relevant authority” for the purposes of Part 5 of the 2015 Act, which means that its assets may fall to be transferred under that Part to a community transfer body as defined in section 77 of that Act.

Climate Change (Duties of Public Bodies: Reporting Requirements) (Scotland) Order 2015

86.Paragraph 10 of schedule 2 adds South of Scotland Enterprise to the list of bodies in schedule 1 of the Climate Change (Duties of Public Bodies: Reporting Requirements) (Scotland) Order 2015 The bodies listed in schedule 1 of the Order are required to report annually on their compliance with the climate change duties imposed on them by section 44 of the Climate Change (Scotland) Act 2009.

Gender Representation on Public Boards (Scotland) Act 2018

87.Paragraph 11 of schedule 2 adds South of Scotland Enterprise to the list of bodies in schedule 1 of the Gender Representation on Public Boards (Scotland) Act 2018 (“the 2018 Act”). This means that in appointing members to South of Scotland Enterprise, the Scottish Ministers must give preference to a woman if there are equally qualified candidates of either gender and appointing a woman would result in, or be a step towards, 50% of the membership being women (see section 4 of the 2018 Act). In addition, the 2018 Act requires that steps be taken to encourage women to apply to be members of South of Scotland Enterprise (see section 5), and further steps to be taken to promote gender balance in the membership if the 50% target has not been reached by particular dates (see section 6).

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