Scottish Parliamentary Commissions and Commissioners etc. Act 2010 Part 1 THE COMMISSIONER FOR ETHICAL STANDARDS IN PUBLIC LIFE IN SCOTLAND The Commissioner The Commissioner for Ethical Standards in Public Life in Scotland 1 1 There is to be a Commissioner for Ethical Standards in Public Life in Scotland (the “Commissioner”). 2 The Commissioner is to be an individual appointed by the Parliamentary corporation with the agreement of the Parliament. 3 The functions of the Commissioner are those conferred on the Commissioner by the following enactments— a the Ethical Standards in Public Life etc. (Scotland) Act 2000 (asp 7) , b the Scottish Parliamentary Standards Commissioner Act 2002 (asp 16) , ... c the Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4) , and d the Lobbying (Scotland) Act 2016. Functions of the Commissioners 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Status of Commissioner and Commissioner’s staff 3 1 Neither the Commissioner nor any member of the Commissioner’s staff— a is a servant or agent of the Crown, b has any status, immunity or privilege of the Crown. 2 The Commissioner’s property is not to be regarded as property of, or property held on behalf of, the Crown. 3 The Commissioner is, as such, to be regarded as a juristic person distinct from the natural person holding the office. Independence of Commissioner 4 In the performance of the Commissioner’s functions, the Commissioner is not subject to the direction or control of— a any member of the Parliament, b any member of the Scottish Government , or c the Parliamentary corporation. Protection from actions for defamation 5 1 For the purposes of the law of defamation— a any statement made by the Commissioner or a member of the Commissioner’s staff in pursuance of the Commissioner’s functions under the Ethical Standards Act ... the Parliamentary Standards Act or the Lobbying (Scotland) Act 2016 is absolutely privileged, b any statement made by the Commissioner or a member of the Commissioner’s staff in pursuance of the Commissioner’s other functions has qualified privilege, and c any statement made to the Commissioner or any member of the Commissioner’s staff in pursuance of the purposes of the Ethical Standards Act, the Parliamentary Standards Act ... the Public Appointments Act or the Lobbying (Scotland) Act 2016 has qualified privilege. 2 In subsection (1), “statement” has the same meaning as in the Defamation Act 1996 (c.31) . Designation of Chief Commissioner 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appointment of acting Commissioner 7 1 If the office of the Commissioner is vacant or the Commissioner is, for any reason and to any extent, unable to act, the Parliamentary corporation may appoint a person (an “acting Commissioner”) to perform the functions of the Commissioner, either generally or in relation to such matters or class of matter as is specified in the terms and conditions of the appointment. 2 An appointment of an acting Commissioner is for, or until, such time as is specified in the terms and conditions of appointment. 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Subject to subsection (5), a person who is not eligible for appointment as the Commissioner is not eligible for appointment as an acting Commissioner. 5 Members of the Commissioner’s staff are eligible for appointment as an acting Commissioner. 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 An acting Commissioner— a may at any time resign by notice given to the Parliamentary corporation, b may at any time be removed from office by the Parliamentary corporation, c subject to this section, holds office on such terms and conditions as the Parliamentary corporation determines, and d is to be regarded for all purposes, except those of sections 9(1) to (4) and 10, as having the same status, functions and rights and being subject to the same restrictions as the Commissioner .... 8 The Parliamentary corporation may, in the terms and conditions of appointment of an acting Commissioner, specify the minimum period of notice for the purposes of subsection (7)(a). Office of Commissioner Disqualification 8 1 A person is disqualified from appointment and from holding office as the Commissioner if the person— a is a member of the Parliament or its staff, b was a member of the Parliament at any time within two years before the date when the appointment might otherwise have been made, c is disqualified from being a member of the Parliament, d is a member of the House of Commons, e is a member of the House of Lords entitled to vote there, f is employed, or appointed in any other capacity, by the Commissioner , g is a member, employee or appointee of— i the Standards Commission for Scotland, ii a specified authority, or iii a devolved public body, h is a specified authority (where the authority is an individual), i is, or is an employee or appointee of, the Scottish Public Services Ombudsman, j is a member of a council or any committee of a council, k is disqualified from being a member of a council, or l is a member of a joint board or joint committee. 2 In this section— a the following expressions have the following meanings— “ specified authority ” means any of the specified authorities referred to in section 2(1) of the Public Appointments Act, “ council ” means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 (c. 39), “joint board” and “joint committee” have, respectively, the meanings given by section 235(1) of the Local Government (Scotland) Act 1973 (c. 65), “ devolved public body ” has the meaning given by section 28(1) of the Ethical Standards Act, b the reference to a member of a specified authority includes a reference to— i a member, by co-option, of any committee of a specified authority, ii a holder of a paid office appointed by a specified authority, and c a paid office is one where the holder is entitled to remuneration, allowances or expenses or any combination of them. Terms of office and remuneration 9 1 The Commissioner— a holds office for such period, not exceeding eight years, as the Parliamentary corporation, at the time of appointment, determines, but b is ineligible for reappointment at any time. 2 The Commissioner may, at any time, resign by notice given to the Parliamentary corporation. 3 The Commissioner may be removed from office by the Parliamentary corporation if subsection (4) applies. 4 This subsection applies if— a the Parliamentary corporation is satisfied that the Commissioner has breached the Commissioner's terms and conditions of office and the Parliament resolves that the Commissioner should be removed from office for that breach, or b the Parliament resolves that it has lost confidence in the Commissioner's willingness, suitability or ability to perform that Commissioner's functions, and, in either case, the resolution is voted for by a number of members not fewer than two thirds of the total number of seats for members of the Parliament. 5 The Commissioner is entitled to such remuneration and allowances as the Parliamentary corporation determines. 6 In other respects, the Commissioner holds office on such terms and conditions as the Parliamentary corporation determines. 7 Those terms and conditions may, without prejudice to section 8— a prohibit the Commissioner from holding any other specified office, employment or appointment or engaging in any other specified occupation, b provide that the Commissioner's holding of any such office, employment or appointment or engagement in any such occupation is subject to the approval of the Parliamentary corporation. 8 In subsection (7), “ specified ” means specified in the terms and conditions of office or within a description so specified. 9 The Parliamentary corporation may, in the terms and conditions of office of the Commissioner, specify the minimum period of notice for the purposes of subsection (2). Pensions etc. 10 1 The Parliamentary corporation may make arrangements for the payment of pensions, allowances or gratuities to, or in respect of, any person who has ceased to be the Commissioner. 2 Those arrangements may include— a the making of contributions or payments towards provision for such pensions, allowances or gratuities, b the establishment and administration of one or more pension schemes. 3 References in subsections (1) and (2) to pensions, allowances and gratuities include, respectively, references to pensions, allowances and gratuities by way of compensation for loss of office. Subsequent appointments etc. of former Commissioner 11 1 A person who has ceased to be the Commissioner may not, without the approval of the Parliamentary corporation— a be employed, or appointed in any other capacity, by the Commissioner , b be a member, employee or appointee of— i the Standards Commission for Scotland, ii a specified authority, or iii a devolved public body, c be a specified authority (where the authority is an individual), d be, or be an employee or appointee of, the Scottish Public Services Ombudsman, or e hold any other office, employment or appointment or engage in any other occupation, being an office, employment, appointment or occupation which, by virtue of section 9(7)(a), that person could not have held or, as the case may be, engaged in when the Commissioner. 2 The restriction in subsection (1)— a starts when the person ceases to be the Commissioner, and b ends on the expiry of the financial year following the one in which it started. 3 In this section— a the following expressions have the following meanings— “ specified authority ” means any of the specified authorities referred to in section 2(1) of the Public Appointments Act, “ devolved public body ” has the meaning given by section 28(1) of the Ethical Standards Act, b the reference to a member of a specified authority includes a reference to— i a member, by co-option, of any committee of a specified authority, ii a holder of a paid office appointed by a specified authority, and c a paid office is one where the holder is entitled to remuneration, allowances or expenses or any combination of them. General functions, procedures etc. of Commissioner General powers 12 1 The Commissioner may do anything which appears— a necessary or expedient for the purpose of or in connection with, or b conducive to, the performance of the Commissioner’s functions or the efficiency of the Commissioner’s administration. 2 In particular, the Commissioner may— a enter into contracts, b acquire and dispose of land and other property. 3 The exercise of the power to acquire or dispose of land is subject to the approval of the Parliamentary corporation. 4 The Commissioner may determine and charge reasonable sums for anything done or provided by , or on behalf of, the Commissioner in the performance of, or in connection with, the Commissioner’s functions. 5 The Commissioner must retain any sums received ... by virtue of subsection (4) and apply them to meet expenditure incurred in doing or providing whatever is charged for. Payment of witnesses' expenses 13 The Commissioner may pay to persons giving evidence, producing documents or providing information under section 13 of the Ethical Standards Act or section 13 of the Parliamentary Standards Act such allowances or expenses as the Commissioner may, with the approval of the Parliamentary corporation, determine. Strategic plans 14 1 The Commissioner must, in respect of each 4 year period, lay before the Parliament a plan (referred to in this section as a “ strategic plan ”) setting out how the Commissioner proposes to perform the Commissioner’s functions during the 4 year period. 2 A strategic plan must, in particular, set out— a the ... Commissioner's objectives and priorities during the 4 year period, b how the Commissioner proposes to achieve them, c timetables for doing so, and d estimates of the costs of doing so. 3 Before laying a strategic plan before the Parliament, the Commissioner must provide a draft of it to and invite, and (if any are given) consider, comments on it from— a the Parliamentary corporation, and b such other persons as the Commissioner thinks appropriate. 4 The reference in subsection (3)(b) to other persons includes a reference to a committee of the Parliament. 5 The Commissioner must lay each strategic plan before the Parliament not later than the beginning of the 4 year period to which the plan relates. 6 The Commissioner must arrange for the publication of each strategic plan laid before the Parliament. 7 The Commissioner may, at any time during a 4 year period, review the strategic plan for the period and lay a revised strategic plan before the Parliament. 8 Subsections (2) to (7) apply to a revised strategic plan as they apply to a strategic plan. 9 In that application, the reference in subsection (5) to the 4 year period is a reference to the period to which the revised strategic plan relates. 10 In this section, “ 4 year period ” means the period of four years beginning on 1 April next following the coming into force of this section and each subsequent period of four years. Validity of acts 15 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 The validity of acts of the Commissioner is not affected by— a any defect in the appointment of the Commissioner, or b any disqualification from appointment as the Commissioner of the person bearing to be the Commissioner. 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Delegation 16 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Any function of the Commissioner may be performed on the Commissioner's behalf by any person (whether or not ... a member of the Commissioner’s staff) authorised by the Commissioner to do so, and to the extent so authorised. 4 Subsection (3) does not affect the responsibility of the Commissioner for the performance of the Commissioner's functions. Staff, advisers etc. Staff 17 1 The Commissioner may ... appoint staff on such terms and conditions as the Commissioner determines. 2 The Commissioner may make arrangements for the payment of pensions, allowances or gratuities to, or in respect of, any person who has ceased to be a member of the Commissioner’s staff. 3 Those arrangements may include— a the making of contributions or payments towards provision for such pensions, allowances or gratuities, and b the establishment and administration of one or more pension schemes. 4 References in subsections (2) and (3) to pensions, allowances or gratuities include, respectively, references to pensions, allowances or gratuities by way of compensation for loss of employment. 5 The exercise of a power in this section is subject to the approval of the Parliamentary corporation. Advisers, assessors and other services 18 1 The Commissioner may obtain advice, assistance or any other service from any person who, in the opinion of the Commissioner , is qualified to give it. 2 The Commissioner may pay to that person such fees and allowances as the Commissioner determines. 3 Any payment under subsection (2) is subject to the approval of the Parliamentary corporation. Finance Accountable officer 19 1 The Parliamentary corporation must designate the Commissioner or a member of the Commissioner’s staff as the accountable officer for the purposes of this section. 2 The functions of the accountable officer are— a signing the accounts of the expenditure and receipts of the Commissioner , b ensuring the propriety and regularity of the finances of the Commissioner , c ensuring that the resources of the Commissioner are used economically, efficiently and effectively, and d the duty in subsection (3). 3 Where the accountable officer is not the Commissioner and is required to act in some way but considers that to do so would be inconsistent with the proper performance of a function set out in subsection (2)(a) to (c), the accountable officer must— a obtain written authority from the Commissioner before taking the action, and b as soon as possible, send a copy of the authority to the Auditor General for Scotland. 4 The accountable officer is answerable to the Parliament for the performance of the functions in subsection (2). Budget 20 1 The Commissioner must, before the start of each financial year, prepare proposals for the Commissioner’s use of resources and expenditure during the year (a “budget”) and, by such date as the Parliamentary corporation determines, send the budget to the Parliamentary corporation for approval. 2 The Commissioner may, in the course of a financial year, prepare a revised budget for the remainder of the year and send it to the Parliamentary corporation for approval. 3 In preparing a budget or a revised budget, the Commissioner must ensure that the resources of the Commissioner will be used economically, efficiently and effectively. 4 A budget or revised budget must contain a statement that the Commissioner has complied with the duty under subsection (3). Funding 21 1 The Parliamentary corporation is to— a pay the remuneration and allowances of the Commissioner, b pay any expenses properly incurred by the Commissioner in the performance of the Commissioner’s functions, so far as not met out of sums received and applied by the Commissioner under section 12(5), c indemnify the ... Commissioner in respect of any liabilities incurred by the Commissioner in the performance of the Commissioner's functions. 2 Subsection (1)(b) does not require the Parliamentary corporation to pay any expenses incurred by the Commissioner which exceed or are otherwise not covered by a budget or, as the case may be, a revised budget approved under section 20. 3 However, the Parliamentary corporation may pay those expenses. Accounts and audit 22 1 The Commissioner must, in accordance with any directions in that regard given by the Scottish Ministers— a keep proper accounts and accounting records, b prepare annual accounts in respect of each financial year, and c send a copy of the annual accounts to the Auditor General for Scotland for auditing. 2 If requested by any person, the Commissioner must make the audited accounts available, at any reasonable time, without charge and in printed or electronic form, so that they may be inspected by that person. Location of office and sharing of resources Location of office 23 The Commissioner must comply with any direction given by the Parliamentary corporation as to the location of the Commissioner’s office. Sharing of premises, staff, services and other resources 24 The Commissioner must comply with any direction given by the Parliamentary corporation as to the sharing of premises, staff, services or other resources with any other public body or any officeholder. Annual reports Annual reports 25 1 The Commissioner must lay before the Parliament annually a general report on the performance of the Commissioner’s functions during the reporting year. 2 The report must include, in relation to the performance of the Commissioner’s functions under the Ethical Standards Act and the Parliamentary Standards Act — a the numbers of complaints made to the Commissioner during the reporting year about, respectively— i members of the Parliament, ii councillors, and iii members of devolved public bodies, b the number of complaints made for the purposes of investigation under the Ethical Standards Act or the Parliamentary Standards Act which were withdrawn during the reporting year, broken down according to the stage of the investigation at which they were withdrawn, c the numbers of investigations under the Ethical Standards Act— i begun, ii not proceeded with, iii completed, during the reporting year, d the number of outcome reports submitted to the Standards Commission for Scotland under section 14 of that Act during the reporting year, e the number of further investigations that the Commissioner has, during the reporting year, been directed under section 16 of that Act to carry out, f in relation to Stage 1 investigations— i the number completed, ii the number of complaints dismissed, and iii the number of complaints considered admissible or treated, under section 7(7)(b) of the Parliamentary Standards Act, as meeting all the specified requirements, during the reporting year, g in relation to Stage 2 investigations— i the number completed, ii the number of outcome reports made under section 9 of the Parliamentary Standards Act, during the reporting year, and h the number of further investigations that the Commissioner has been directed to carry out under section 10(2) of that Act during the reporting year. 3 The report must include, in relation to the performance of the Commissioner’s functions under the Public Appointments Act — a a summary of any revisals made under section 2(3)(b) of the Public Appointments Act to the code of practice, b a summary of any section 2(5)(b) complaints received by the Commissioner, c a summary of any guidance to the Scottish Ministers issued under section 2(6) of the Public Appointments Act, d the number of section 2(8)(a) reports made, and e the number of section 2(8)(b) directions made, during the reporting year. 3A The report must include, in relation to the performance of the Commissioner's functions under the Lobbying (Scotland) Act 2016— a the numbers of complaints made to the Commissioner during the reporting year, b the number of complaints which were withdrawn during the reporting year, broken down according to the stage of the investigation at which they were withdrawn, c in relation to assessments of admissibility under section 22(2)(a) of that Act— i the number completed, ii the number of complaints dismissed, and iii the number of complaints considered admissible, during the reporting year, d in relation to investigations under section 22(2)(b)(i) of that Act— i the number completed, ii the number of reports made under section 22(2)(b)(ii) of that Act, during the reporting year, and e the number of further investigations that the Commissioner has been directed to carry out under section 27(2) of that Act during the reporting year. 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 The report must be laid before the Parliament within seven months after the end of the reporting year. 6 The Commissioner must arrange for the publication of each report laid before the Parliament under this section. 7 In preparing a report under this section, the Commissioner must comply with any direction given by the Parliamentary corporation as to the form and content of the report. 8 In this section— “ reporting year ” means the year beginning on 1 April, “ devolved public bodies ” has the meaning given by section 28(1) of the Ethical Standards Act, “Stage 1” and “Stage 2” are to be construed in accordance with section 5(1) of the Parliamentary Standards Act, “section 2(5)(b) complaints” are complaints to which section 2(5)(b) of the Public Appointments Act applies (those arising from certain appointments, or recommendations for appointments, made by Scottish Ministers), “section 2(8)(a) reports” are reports made under section 2(8)(a) of that Act (about continued non-compliance with the code of practice on appointments), “section 2(8)(b) directions” are directions to Scottish Ministers under section 2(8)(b) of that Act (to delay appointment or recommendation pending consideration by the Parliament). Ombudsman's investigations and freedom of information Commission and Commissioners to be subject to investigations by Scottish Public Services Ombudsman 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Commission and Public Appointments Commissioner for Scotland to be subject to Freedom of Information (Scotland) Act 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Interpretation Interpretation of Part 1 28 In this Part, except where the context otherwise requires— ... “Commissioner” means the Commissioner for Ethical Standards in Public Life in Scotland, “the Ethical Standards Act” means the Ethical Standards in Public Life etc. (Scotland) Act 2000 (asp 7) , “ the Parliament ” means the Scottish Parliament, “ Parliamentary corporation ” means the Scottish Parliamentary Corporate Body. “the Parliamentary Standards Act” means the Scottish Parliamentary Standards Commissioner Act 2002 (asp 16) , and “the Public Appointments Act” means the Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4) . Part 2 Amendments of provisions relating to other commissions and officeholders Standardising and other amendments 29 1 The enactments referred to in subsections (2) to (11) have effect subject to the amendments there provided for, being amendments which— a standardise certain provisions in those enactments, b extend and qualify the functions of the Scottish Public Services Ombudsman, but c are not limited to amendments for those purposes. 2 The Ethical Standards Act is amended in accordance with schedule 2. 3 The Scottish Public Services Ombudsman Act 2002 (asp 11) is amended in accordance with schedule 3. 4 The Freedom of Information (Scotland) Act 2002 (asp 13) is amended in accordance with schedule 4. 5 The Parliamentary Standards Act is amended in accordance with subsections (6) and (7). 6 Sections 13(8) (payment of witnesses' allowances and expenses) and 18 (annual report) are repealed. 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 The Public Appointments Act is amended in accordance with subsection (9). 9 After section 3(2) (paragraph (b) of which gives Scottish Ministers power to confer functions on or remove them from the Public Appointments Commissioner for Scotland) there is inserted— 2A Before making an order under subsection (2)(b), the Scottish Ministers must consult the Parliamentary corporation. 10 The Commissioner for Children and Young People (Scotland) Act 2003 (asp 17) is amended in accordance with schedule 5. 11 The Scottish Commission for Human Rights Act 2006 (asp 16) is amended in accordance with schedule 6. 12 In this section, “the Ethical Standards Act”, “the Parliamentary Standards Act” and “the Public Appointments Act” have the same meanings given by section 28. Part 3 General Interpretation 30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Short title, commencement, transfers and transitionals 31 1 This Act may be cited as the Scottish Parliamentary Commissions and Commissioners etc. Act 2010. 2 Section 30 and subsections (1) to (5) of this section come into force on Royal Assent. 3 Paragraph 14 of schedule 2, to the extent that it inserts paragraph 10C (budget) into schedule 1 to the Ethical Standards Act, comes into force on 1 August 2010. 4 Paragraph 20 of schedule 3 comes into force on 1 October 2010. 5 The rest of this Act comes into force on 1 April 2011. 6 The provisions relating to the transfer of staff, property and liabilities and transitional and saving provisions set out in schedule 7 have effect.