Introduction
1.These Explanatory Notes have been prepared by the Scottish Government in order to assist the reader of the Scottish National Investment Bank Act 2020. They do not form part of the Act and have not been endorsed by the Parliament.
2.These Notes should be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section or schedule, or a part of a section or schedule, does not seem to require any explanation or comment, none is given.
Overview
3.The Act places a duty on the Scottish Ministers to establish the Scottish National Investment Bank (the “Bank”) as a public limited company (“p.l.c.”) and gives the Scottish Ministers the necessary powers to capitalise the Bank. Scottish Ministers will also be given the power to set the strategic direction of the Bank by the setting of Missions.
4.The Act also places a duty on the Scottish Ministers to provide the Bank with its Articles of Association (that is to say the constitution of the Bank as a p.l.c.) and mandates what is to be in the Articles and the circumstances in which certain provisions can be modified. The Act also makes provision for the annual reporting and performance review (every five years) of the Bank.
5.The schedule of the Act makes provision for the application of public bodies legislation to the Bank.
The Act
Part 1 - Establishment of the Bank
Chapter 1 – Scottish Minister’s Duty to Establish the Bank
6.Section 1 (Duty to Establish the Bank)Section 1 places a duty on the Scottish Ministers to establish the Bank as a public company limited by shares. The Scottish National Investment Bank p.l.c is to have its registered office in Scotland and be owned solely by the Scottish Ministers. The Bank’s Articles of Association are to be framed in accordance with Chapter 2 (the Bank’s Articles of Association on establishment).
Chapter 2 - The Bank’s articles of association on establishment
Section 2 (The Bank’s vision)
7.Section 2 makes provision requiring that the Bank’s articles of association include a statement of the vision for the Bank.
Section 3 (The Bank’s objects)
8.Section 3 makes provision, for inclusion in Articles, about the Bank’s main object and ancillary objects (or objectives). The Bank’s main object situates the role of the Bank within the economic development powers devolved to the Scottish Government. The ancillary objects direct the Bank’s investment towards delivering against a broad range of outcomes which include creating and shaping new markets, promoting both environmental and social wellbeing, advancing equality and promoting fair work.
Section 4 (Ethical investment standards)
9.Section 4 provides that the Bank’s Board is responsible for instituting and implementing ethical standards that are aligned to the Bank’s objects and strategic missions, and for putting in place processes to ensure that the Bank adheres to those standards when making investment decisions. It further provides that responsibility for implementing these standards can be delegated to an appropriate body within the Bank’s governance structures or retained at Board level.
Section 5 (Balanced scorecard)
10.Section 5 makes provision, for inclusion in the Articles, for the preparation of a balanced scorecard to assist in the Bank’s preparation of reports. The balanced scorecard approach is a recognised performance management strategy that enables organisations to track performance against a range of outcomes. In preparing the balanced scorecard document, the Bank must consider the economic, social, environmental, or any other (financial or non-financial) impacts of its investments.
Section 6 (General powers)
11.Section 6 makes provision, for inclusion in the Articles, about the general powers of the Bank.
Section 7 (Borrowing powers)
12.Section 7 makes provision, for inclusion in the Articles, about the borrowing powers of the Bank. Under the fiscal framework agreement between the Scottish and UK governments(1), the Scottish Government has limited powers to borrow finance. Borrowing by the Bank from parties other than the Scottish Ministers would be counted towards the Scottish Government’s borrowing limit. Restrictions are therefore placed on the Bank’s ability to borrow to ensure it does not impact upon the Scottish Government’s fiscal position.
Section 8 (Ownership)
13.Section 8 makes provision, for inclusion in the Articles, about the ownership of the Bank, namely, that it can only be owned by the Scottish Ministers.
Section 9 (Directors: appointment)
14.Section 9 makes provision, for inclusion in the Articles, about the composition of the Board and sets out parameters for the appointment of Directors to the Board of the Bank.
Section 10 (Directors: tenure)
15.Section 10 makes provision, for inclusion in the Articles, about the tenure of Directors appointed to the Board of the Bank.
Section 11 (Remuneration)
16.Section 11 makes provision, for inclusion in the Articles, about the remuneration of the Bank’s directors and staff, namely that this is to be determined by the directors subject to any direction from the Scottish Ministers.
Section 12 (Committees)
17.Section 12 makes provision, for inclusion in the Articles, for the establishment of separate audit and risk committees and their respective functions.
Section 13 (Gender equality strategy)
18.Section 13 places a duty on the Bank to prepare and publish a gender equality strategy. The strategy must be developed in consultation with relevant persons and updated periodically. It also sets out specific requirements for what must be included in the strategy.
Section 14 (Entrenched provisions)
19.Section 14 makes provision, for inclusion in the Articles, that the Articles mentioned in Chapter 2 can only be amended or repealed in accordance with section 31 (procedure for modifying entrenched provisions).
Part 2 – Operational matters
Strategic missions
Section 15 (Setting missions)
20.Section 15 provides that the Scottish Ministers are to set strategic missions for the Bank. When setting these missions Scottish Ministers are required to issue the Bank with documentation detailing the socio-economic challenges that the Bank is to seek to address through its investments. Investments made under the missions should reflect and be aligned with the Bank’s object and ancillary objects.
Section 16 (Requirement to consult in relation to missions)
21.Section 16 requires that, before setting a new mission for the Bank, or modifying or bringing to an end an existing mission, the Scottish Ministers must conduct a public consultation lasting a minimum period of 40 days. This provision is, however, disapplied for the first set of missions to be set for the Bank.
Section 17 (Proposals from the Bank about its missions)
22.Provision is also made in section 17 to allow the Bank’s board to submit proposals to Scottish Ministers to set new missions or modify or end existing missions. A copy of any mission (or modification of any mission under the section) is to be laid before the Scottish Parliament and published.
Accountability
Section 18 (Reporting on Missions)
23.Section 18 provides that within three months of receiving a document from the Scottish Ministers under section 15 (setting missions) the Bank will report to the Scottish Minsters explaining how the Bank intends to respond to the mission. Section 18 also makes provision for similar reporting each financial year.
Section 19 (Report on investment performance)
24.Section 19 provides that at the end of each financial year the Bank must report to the Scottish Ministers on the performance of its investments. Scottish Ministers may also request performance reports at any other time during the financial year. Performance in this case includes both financial and non-financial performance such as the delivery of social, environmental and wider economic value.
Section 20 (Report on gender equality strategy)
25.Section 20 requires the Bank to prepare a report at least every two years on progress in delivering against its gender equality strategy (see section 13). It further provides that this report must then be laid in Parliament.
Section 21 (Review of performance)
26.Section 21 provides that a strategic review of the performance of the Bank and any subsidiaries of the Bank must take place at least every five years and that it is for the Scottish Ministers to appoint a person to carry out this review. A copy of the review will be laid before the Scottish Parliament and published. Section 21 requires that the Bank’s delivery against its objects, missions and relevant national performance indicators must be considered as part of the strategic review of performance.
Section 22 (Equal pay review)
27.Section 22 requires the Bank to periodically carry out an equal pay review and to report the outcomes this review to the Scottish Ministers. It further provides what this report should contain.
Fair Work
Section 23 (Fair work direction)
28.Section 23 requires the Scottish Ministers to issue a direction about fair work to the Bank and requires the Bank to comply with the direction. The direction is to set out that the Bank must seek to promote fair work. Furthermore, in issuing a direction, the Scottish Ministers are to define what “fair work” is for the purposes of that direction. The Scottish Ministers are required to consult persons who appear to them to represent the interests of workers and employers in Scotland, and the Bank itself, before issuing the direction.
Scottish Government financing of the Bank
Section 24 (Power to capitalise)
29.Section 24 gives the Scottish Ministers a power to capitalise the Bank by providing equity or loan capital.
30.Section 25 (Requirement to get State aid approval before significant capitalisation)
31.Section 25 provides that the Scottish Ministers may not spend more than the authorised minimum on capitalising the Bank unless any approvals necessary under State aid rules have been obtained. (Section 28 defines State aid rules.)
32.Under section 763 of the Companies Act 2006, the minimum share capital needed to establish a public limited company is £50,000. Section 16 permits sufficient capitalisation to allow the Scottish Ministers to establish the Bank as a public limited company. However, State aid approval is required to capitalise the Bank to the level which would enable it to fulfil its object and ancillary objects. This approach allows for sufficient flexibility to allow the Bank to be established and resourced so that it is able to undertake the entirety of its functions once State aid approval is given.
Section 26 (Power to finance)
33.Section 26 provides that the Scottish Ministers may provide such finance to the Bank as they consider necessary and that this includes taking and paying for shares in the Bank as well as the giving of grants, loans and guarantees.
Section 27 (Requirement to get State approval for financing)
34.Section 27 provides that the Scottish Ministers may not provide finance to the Bank by means of a grant unless any approvals necessary under State aid rules have been obtained. (Section 28 defines State aid rules.)
Section 28 (Meaning of State aid rules)
35.Section 28 makes provision as to the meaning of State aid rules and ensures that these align with domestic State aid rules following the UK’s exit from the European Union.
Miscellaneous provisions
Section 29 (Advisory group)
36.Section 29 provides that the Scottish Ministers must establish an advisory group to provide them with advice on the objectives, conduct and performance of the Bank.
Section 30 (Exercise of power to appoint non-executive directors)
37.Section 30 requires Ministers to consider the desirability of non-executive directors, across the Board as a whole, having experience or knowledge of the issues facing both workers and businesses in Scotland.
Section 31 (Procedure for modifying entrenched provisions)
38.Section 31 sets out the procedure for modifying entrenched Articles. It provides that those entrenched Articles of Association mentioned in Chapter 2 of Part 1 (the Bank’s Articles of Association on establishment) may only be made by a special resolution of the Bank’s members (the Scottish Ministers) and only if that special resolution has been laid before and approved by resolution of the Scottish Parliament.
Part 3 – Final Provisions
Section 32 (Application of public bodies legislation)
39.Section 32 introduces the schedule (see paragraphs 42 to 50 below).
Sections 33, 35 and 36 (Meaning of references to the Bank and subsidiaries, Commencement and Short title)
40.Sections 33, 35 and 36 make provision as to references to the Bank and its subsidiaries, commencement of the Act and its short title (i.e. the Scottish National Investment Bank Act 2020) respectively.
Section 34 (Ancillary provision)
41.Section 34 provides the Scottish Ministers with powers to make any ancillary provisions which are appropriate for the purposes of, or in connection with, or for giving full effect to the Act or any provision made under it.
The Schedule
Ethical Standards in Public Life etc. (Scotland) Act 2000
42.Paragraph 1(3) of the schedule adds the Bank to the list of devolved public bodies in schedule 3 of the Ethical Standards in Public Life etc. (Scotland) Act 2000. This means that the Bank 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.
43.The Ethical Standards in Public Life etc. (Scotland) Act 2000 imposes requirements in respect of a body’s members, by which that Act means the body’s office holders. Unlike most of the other bodies that the 2000 Act applies to, the Bank will be a public limited company. In company law the members of a limited company are its shareholders, rather than its office holders. Paragraph 1(2) of the schedule therefore amends the 2000 Act to make clear that where that Act’s provisions refer to the Bank’s members they are to be understood as referring to the Bank’s directors (i.e. its office holders) rather than its shareholders.
Freedom of Information (Scotland) Act 2002
44.Paragraph 2 of the schedule adds the Bank to the list of Scottish public authorities in schedule 1 of the Freedom of Information (Scotland) Act 2002. This means that the Bank 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.
45.Being a public authority within the meaning of the Freedom of Information Act also makes the Bank a “Scottish public authority” to which the Environmental Information (Scotland) Regulations 2004 apply.
46.In addition, as a public authority within the meaning of the Freedom of Information Act, the Bank is a “public authority” or “
Public Appointments and Public Bodies (Scotland) Act 2003
47.Paragraph 3 of the schedule adds the office of non-executive director of the Bank to the list of specified offices in schedule 2 of the Public Appointments and Public Bodies etc. (Scotland) Act 2003. This means that the Scottish Ministers, when appointing non-executive directors to the Bank’s Board, will need to comply with the code of practice on public appointments produced by the Commissioner for Ethical Standards in Public Life in Scotland.
Public Services Reform (Scotland) Act 2010
48.Paragraph 4(2) of the schedule adds the Bank to the list of bodies in schedule 5 of the Public Services Reform (Scotland) Act 2010. This means that it is a body in relation to which an order can be made under section 14 of that Act. An order under section 14 of the Public Services Reform Act 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.
49.Paragraph 4(3) of the schedule adds the Bank to the list of bodies in schedule 8 of the Public Services Reform Act. This means that the Bank will be subject to the duties to report after each financial year on:
expenditure (see section 31 of the Public Services Reform 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 Public Services Reform Act).
Gender Representation on Public Boards (Scotland) Act 2018
50.Paragraph 5 of the schedule adds the Bank to the list of bodies in schedule 1 of the Gender Representation on Public Boards (Scotland) Act 2018. This means that in appointing the Bank’s non-executive directors, 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 directors being women (see section 4 of the Gender Representation Act). In addition, the Gender Representation Act requires that steps be taken to encourage women to apply to be non-executive directors of the Bank (see section 5), and further steps to be taken to promote gender balance amongst the Bank’s directors if the 50% target has not been reached by particular dates (see section 6).
Parliamentary History
51.The following is a list of the proceedings in the Scottish Parliament on the Bill for the Act and significant documents connected to the Bill published by the Parliament during the Bill’s parliamentary passage.
- Blaenorol
- Nodiadau Esboniadol Tabl o’r Cynnwys
- Nesaf
