Legalize / United Kingdom / Scotland / Act of the Scottish Parliament

Public Services Reform (Scotland) Act 2010

Type Act of the Scottish Parliament

Publication 2010-04-28

Last updated 2027-04-01

State In force

Jurisdiction Scotland

Department Statute Law Database

Source legislation.gov.uk

articles Not indexed

Reform history JSON API

Part 1 — Simplification of public bodies

Transfer of functions

Transfer to Scottish Natural Heritage of functions of Deer Commission for Scotland

1

(1) The functions conferred on the Deer Commission for Scotland by or under the Deer (Scotland) Act 1996 (c. 58) or any other enactment are transferred to Scottish Natural Heritage.

(2) All property, rights, liabilities and obligations of the Deer Commission for Scotland are transferred to Scottish Natural Heritage.

(3) The Deer Commission for Scotland is dissolved.

(4) Anything done by or in relation to the Deer Commission for Scotland has effect, in relation to any time after this section comes into force, as if done by or in relation to Scottish Natural Heritage.

(5) Schedule 1 (which makes modifications of enactments in consequence of this section) has effect.

Transfer to Scottish Natural Heritage of functions of Advisory Committee on sites of special scientific interest

2

(1) The committee referred to in section 21(1) of the Nature Conservation (Scotland) Act 2004 (asp 6) is dissolved.

(2) All property, rights, liabilities and obligations of the committee referred to in subsection (1) are transferred to Scottish Natural Heritage.

(3) In the Nature Conservation (Scotland) Act 2004—

(a) in section 21 (Advisory Committee on sites of special scientific interest), subsections (1) to (5) are repealed,

(b) in subsection (8) of that section, for paragraphs (a) to (c) substitute—

(a) consider the matter, and (b) take such action as it thinks fit.

(d) in section 58(1) (interpretation), the definition “Advisory Committee” is repealed,

(e) in schedule 1 (notification relating to sites of special scientific interest: procedure)—

(i) in paragraph 9(b), for “refer the matter to the Advisory Committee” substitute “ consider the matter, ”,

(ii) in paragraph 9, for “paragraphs (a) and (b)” substitute “ paragraph (a) ”,

(iii) for the title to paragraph 9, substitute “ Representations to SNH on sites of special scientific interest ”,

(iv) paragraph 11 is repealed,

(v) in paragraph 12(a), for “a matter has been referred to the Advisory Committee” substitute “ SNH is required by subsection (8) of section 21 to consider a matter, ”.

(4) In the Freedom of Information (Scotland) Act 2002 (asp 13), in Part 7 of schedule 1 (Scottish public authorities), the paragraph relating to the Advisory Committee on Sites of Special Scientific Interest is repealed.

(5) In the Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), in schedule 2 (the specified authorities), the entry relating to the Advisory Committee on Sites of Special Scientific Interest is repealed.

Transfer to certain bodies of functions of Waterwatch Scotland

3

(1) The position of the Convener of the Water Customer Consultation Panels is abolished.

(2) In schedule 2 to the Scottish Public Services Ombudsman Act 2002 (asp 11) (listed authorities), after paragraph 16 insert—

(16A) Scottish Water.

(3) The Water Customer Consultation Panels are dissolved.

(4) Consumer Scotland is to exercise its functions under the Consumers, Estate Agents and Redress Act 2007 (c. 17) in relation to services provided by Scottish Water.

(5) But nothing in this section is to be taken as restricting in any way the exercise of functions by Consumer Scotland.

(6) Schedule 2 (which makes modification of enactments in consequence of this section) has effect.

(7) Schedule 3 (which makes provision for the transfer of staff, property, liabilities and ongoing matters) has effect.

(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Dissolution of bodies etc.

Dissolution of Scottish Records Advisory Council

4

(1) The Scottish Records Advisory Council is dissolved.

(2) All property, rights, liabilities and obligations of the Scottish Records Advisory Council are transferred to the Scottish Ministers.

(3) Section 7 of the Public Records (Scotland) Act 1937 (c. 43) (Advisory Council) is repealed.

(4) Section 19(1) of the National Heritage (Scotland) Act 1985 (c. 16) (amendment of the Public Records (Scotland) Act 1937) is repealed.

(5) In the Freedom of Information (Scotland) Act 2002 the following provisions are repealed—

(a) section 70(2) (amendment of the Public Records (Scotland) Act 1937),

(b) in Part 7 of schedule 1 (Scottish public authorities), the paragraph relating to the Scottish Records Advisory Council.

(6) In the Public Appointments and Public Bodies etc. (Scotland) Act 2003, in schedule 2 (the specified authorities), the entry relating to the Scottish Records Advisory Council is repealed.

(7) Section 15 of the Scottish Register of Tartans Act 2008 (asp 7) (amendment of section 7 of the Public Records (Scotland) Act 1937) is repealed.

Dissolution of Scottish Industrial Development Advisory Board

5

(1) The Scottish Industrial Development Advisory Board is dissolved.

(2) Section 20 of the Scottish Development Agency Act 1975 (c. 69) (Scottish Industrial Development Advisory Board) is repealed.

(3) In the Enterprise and New Towns (Scotland) Act 1990 (c. 35), in Schedule 4 (minor and consequential amendments), paragraph 8 is repealed.

(4) In the Freedom of Information (Scotland) Act 2002, in Part 7 of schedule 1 (Scottish public authorities), the paragraph relating to the Scottish Industrial Development Advisory Board is repealed.

(5) In the Public Appointments and Public Bodies etc. (Scotland) Act 2003, in schedule 2 (the specified authorities), the entry relating to the Scottish Industrial Development Advisory Board is repealed.

Dissolution of Building Standards Advisory Committee

6

(1) The Building Standards Advisory Committee is dissolved.

(2) In the Building (Scotland) Act 2003 (asp 8) the following provisions are repealed—

(a) in section 1(2) (building regulations)—

(i) paragraph (a) and the word “and” immediately following it,

(ii) in paragraph (b), the word “other”,

(b) in section 3(5) (relaxation of building regulations)—

(i) paragraph (a) and the word “and” immediately following it,

(ii) in paragraph (b), the word “other”,

(d) in section 56(1) (interpretation), the definition “Building Standards Advisory Committee”.

(3) In the Public Appointments and Public Bodies etc. (Scotland) Act 2003, in schedule 2 (the specified authorities), the entry relating to the Building Standards Advisory Committee is repealed.

Dissolution of Historic Environment Advisory Council for Scotland

7

(1) The Historic Environment Advisory Council for Scotland is dissolved.

(2) All property, rights, liabilities and obligations of the Historic Environment Advisory Council for Scotland are transferred to the Scottish Ministers.

(3) In the Public Appointments and Public Bodies etc. (Scotland) Act 2003 the following provisions are repealed—

(a) section 15 (the Historic Environment Advisory Council for Scotland),

(b) section 16 (the Advisory Council's functions),

(d) in schedule 2 (the specified authorities), the entry relating to the Historic Environment Advisory Council for Scotland,

(e) schedule 3 (the Advisory Council).

(4) In the Freedom of Information (Scotland) Act 2002, in Part 7 of schedule 1 (Scottish public authorities), the paragraph relating to the Historic Environment Advisory Council for Scotland is repealed.

Dissolution of Regional Boards of Scottish Environment Protection Agency

8

(1) The Regional Boards of the Scottish Environment Protection Agency are dissolved.

(2) In the Environment Act 1995 (c. 25), in Schedule 6 (the Scottish Environment Protection Agency), paragraph 16 is repealed.

Delegation of functions etc.

Delegation of Ministerial functions under section 7 of Industrial Development Act 1982

9

In section 7 of the Industrial Development Act 1982 (c. 52) (selective financial assistance for industry in assisted areas), after subsection (4) insert—

(4A) The Scottish Ministers may, to such extent and subject to such conditions as they think appropriate, delegate their function under subsection (1) to such persons as they may determine. (4B) Where the Scottish Ministers make a delegation under subsection (4A) to a person, they may also delegate to that person their function of being satisfied as mentioned in subsection (4). (4C) Where the Scottish Ministers make a delegation under subsection (4A), the reference in subsection (3)(a) to a company formed for the purpose of giving financial assistance is to be construed as a reference to a company formed by the person to whom the function is delegated under subsection (4A). (4D) A delegation under subsection (4A) or (4B) does not affect the ability of the Scottish Ministers to carry out the function delegated. (4E) A delegation under subsection (4A) or (4B) may be varied or revoked at any time.

Delegation of Ministerial functions under section 5 of Science and Technology Act 1965

10

After subsection (1) of section 5 of the Science and Technology Act 1965 (c. 4) (further powers of the Scottish Ministers) insert—

(1A) The Scottish Ministers may, to such extent and subject to such conditions as they think appropriate, delegate their power to undertake any activity as mentioned in paragraphs (a) to (c) of subsection (1) above to such persons as they consider appropriate; and any expenses which such persons incur in undertaking such activities are to be met out of the expenses the Scottish Ministers may defray by virtue of subsection (1) above. (1B) Where power to undertake the activity as mentioned in paragraph (c) of subsection (1) above is delegated under subsection (1A), that paragraph applies as if for the words “Secretary of State” there were substituted “ person to whom the power is delegated under subsection (1A) below ”. (1C) A delegation under subsection (1A) does not affect the ability of the Scottish Ministers to exercise the power delegated. (1D) A person to whom a function is delegated under subsection (1A) may, subject to any conditions as mentioned in that subsection, exercise the function in the same way and to the same extent as the Scottish Ministers notwithstanding any restrictions or limitations on the exercise of the person's functions which would, apart from this subsection, prevent them from exercising the function in that way or to that extent.

Delegation of certain functions of Forestry Commissioners under Forestry Act 1967

11

In the Forestry Act 1967 (c. 10), after section 7A insert—

(7B) (1) The Commissioners may, to such extent and subject to such conditions as they think appropriate, delegate their functions under section 3(1) and (3) of this Act to such community bodies as they consider appropriate. (2) A delegation under subsection (1) may only be made in relation to land in Scotland— (a) placed at the disposal of the Commissioners by the Scottish Ministers under this Act, and (b) which is let to the community body to which the delegation is made. (3) A delegation under subsection (1) does not affect the ability of the Commissioners to carry out the function delegated. (4) A delegation under subsection (1) does not affect the ability of the Scottish Ministers to— (a) determine which land in Scotland is placed at the disposal of the Forestry Commissioners, (b) give directions under section 1 to the Commissioners in relation to the land in question. (5) A delegation under subsection (1) may be varied or revoked at any time. (6) In this section, “community body” has the meaning given in section 7C. (7C) (1) A community body is, subject to subsection (3), a company limited by guarantee the articles of association of which include the following— (a) a definition of the community to which the company relates, (b) provision that the company must have not fewer than 20 members, (c) provision that the majority of the members of the company is to consist of members of the community, (d) provision by which the members of the company who consist of members of the community have control of the company, (e) provision ensuring proper arrangements for the financial management of the company and the auditing of its accounts. (2) The Commissioners may, if they think it in the public interest to do so, disapply such requirements specified in paragraphs (b) to (d) in subsection (1) in relation to any body they may specify. (3) A body is not a community body unless the Commissioners have given it written confirmation that they are satisfied that the main purpose of the body is consistent with furthering the achievement of sustainable development. (4) Unless the Scottish Ministers otherwise direct, a community— (a) must be defined for the purposes of subsection (1)(a) by reference to a postcode unit or postcode units, and (b) must comprise the persons from time to time— (i) resident in that postcode unit or in one of those postcode units, and (ii) entitled to vote, at a local government election, in a polling district which includes that postcode unit or those postcode units (or part of it or them). (5) In subsection (4) above, “postcode unit” means an area in relation to which a single postcode is used to facilitate the identification of postal service delivery points within the area. (6) In subsection (1), “company limited by guarantee” has the meaning given by section 3(3) of the Companies Act 2006 (c. 46).

Forestry Commissioners: joint ventures etc.

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(1) In the Forestry Act 1967, in section 7A (incidental powers of Commissioners), after the word “to” insert “ land in Scotland or ”.

(2) In the Countryside (Scotland) Act 1967 (c. 86), in section 58 (powers of the Forestry Commissioners), after subsection (2) insert—

(2A) For the purposes of the exercise of their functions under subsection (2), the Commissioners may— (a) form, or participate in the forming of, a body corporate, (b) invest in a body corporate, (c) provide loans, (d) establish a charitable trust, (e) act, or appoint a person to act, as an officer of a body corporate or as a trustee of a charitable trust.

Regulation of officers of court

13

Schedule 4, which—

(a) makes modifications of Part 5 of the Debtors (Scotland) Act 1987 (c. 18) relating to the regulation of officers of court,

(b) makes modifications of Part 3 of the Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3) relating to such regulation, and

(c) makes further minor and consequential modifications of that Act and the Debt Arrangement and Attachment (Scotland) Act 2002 (asp 17),

has effect.

Part 2 — Order-making powers

Improving the exercise of public functions

Public functions: efficiency, effectiveness and economy

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(1) The Scottish Ministers may by order make any provision which they consider would improve the exercise of public functions, having regard to—

(a) efficiency,

(b) effectiveness, and

(2) In subsection (1), “public functions” are functions of the persons, bodies and office-holders listed in schedule 5, subject to any limitations specified in that schedule.

(3) The provision that may be made under subsection (1) includes provision—

(a) modifying, conferring, abolishing, transferring, or providing for the delegation of, any function,

(b) amending the constitution of a person, body or office-holder listed in schedule 5 other than—

(i) the Scottish Ministers,

(ii) the Scottish Court Service,

(iii) a cross-border public authority,

(iv) a person listed by virtue of section 15(5)(e), or

(v) a company (within the meaning of the Companies Act 2006 (c. 46)),

(i) a person, body or office-holder on which functions are conferred,

(ii) a person, body or office-holder to which functions (modified or otherwise) are transferred or may be delegated.

(4) For the purposes of subsection (3)(b)(ii), the constitution of the Scottish Court Service is as set out in schedule 3 to the Judiciary and Courts (Scotland) Act 2008 (asp 6).

(5) The transfer or delegation referred to in subsection (3)(a) must be a transfer or delegation to—

(a) a person, body or office-holder listed in schedule 5,

(b) a person, body or office-holder created in pursuance of subsection (3)(c), or

(c) a local authority (meaning a council constituted by section 2 of the Local Government etc. (Scotland) Act 1994 (c. 39)).

(6) An order under this section containing provision creating a person, body or office-holder in pursuance of subsection (3)(c)—

(a) must include provision adding that person, body or office-holder to schedule 5,

(b) may include provision adding that person, body or office-holder to schedule 6,

(7) An order under this section may—

(a) modify any enactment, instrument or other document,

(b) contain such consequential, incidental, transitional, transitory or saving provision as the Scottish Ministers consider appropriate.

(8) An order under this section may include provision dissolving any person, body or office-holder listed in schedule 5, other than those listed in subsection (3)(b)(i) to (v), but only if the person, body or office-holder has, or will have by virtue of the order, no exercisable functions.

(9) An order under this section may bind the Crown.

(10) An order under this section must be made in accordance with this Part.

Public functions: further provision

15

(1) Schedule 5, which lists persons, bodies and office-holders for the purposes of section 14, has effect.

(2) The Scottish Ministers may by order modify schedule 5 by—

(a) adding an entry for any person, body or office-holder falling within subsection (5),

(b) removing any entry.

(3) An order under subsection (2)(a) containing provision adding an entry to schedule 5 may include provision adding a corresponding entry to schedule 6.

(4) An order under subsection (2)(b) containing provision removing an entry from schedule 5 must include provision removing any corresponding entry from schedule 6.

(5) Those persons, bodies and office-holders are—

(a) an office-holder in the Scottish Administration,

(b) a Scottish public authority with mixed functions or no reserved functions,

(d) a publicly-owned company,

(e) any other person, not being a public body or the holder of a public office, who either—

(i) appears to the Scottish Ministers to exercise functions of a public nature, or

(ii) is providing, under a contract made with a person, body or office-holder listed in schedule 5, any service the provision of which is the function of that person, body or office-holder.

(6) A company is publicly-owned for the purposes of subsection (5)(d) if it is wholly owned—

(a) by the Scottish Ministers, or

(b) by any other person, body or office-holder listed in schedule 5 except a person, body or office-holder listed—

(i) by virtue of subsection (5)(e)(i) in relation only to some of its functions, or

(ii) by virtue of subsection (5)(e)(ii).

(7) For the purposes of subsection (6) a company is wholly owned—

(a) by the Scottish Ministers if it has no members except—

(i) the Scottish Ministers or companies wholly owned by the Scottish Ministers, or

(ii) persons acting on behalf of the Scottish Ministers or of such companies,

(b) by any other person, body or office-holder if it has no members except—

(i) the person, body or office-holder or companies wholly owned by the person, body or office-holder, or

(ii) persons acting on behalf of the person, body or office-holder or of such companies.

(8) An entry added to schedule 5 by an order under subsection (2)(a) made by virtue of subsection (5)(e) must specify the functions of a public nature or, as the case may be, the service being provided; and only those functions or that service are public functions of the person in question for the purposes of section 14(1).

(9) In this section—

“company” includes any body corporate;

“local authority” means a council constituted by section 2 of the Local Government etc. (Scotland) Act 1994 (c. 39);

“Scottish public authority with mixed functions or no reserved functions” is to be construed in accordance with paragraphs 1(4) and 2 of Part 3 of Schedule 5 to the Scotland Act 1998 (c. 46); but does not include a local authority.

Preconditions

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(1) The Scottish Ministers may not make provision under section 14, other than provision which merely restates an enactment, unless they consider that the conditions in subsection (2), where relevant, are satisfied in relation to that provision.

(2) Those conditions are that—

(a) the effect of the provision is proportionate to the policy objective,

(b) the provision does not remove any necessary protection,

(c) any public function which is to be modified will, as modified, be broadly consistent with the general objects or purpose of the person, body or office-holder concerned,

(d) any function which is conferred on a person, body or office-holder listed in schedule 5 (other than a function being transferred without substantial modification from another such person, body or office-holder) is broadly consistent with the general objects or purpose of the person, body or office-holder concerned,

(e) any function which is conferred on a person, body or office-holder created by virtue of section 14 is broadly consistent with—

(i) the general objects or purpose of a person, body or office-holder listed in schedule 5 which is abolished, or whose functions are modified, by virtue of section 14 or otherwise, or

(ii) public functions abolished or modified by virtue of that section or otherwise.

(3) Examples of protections for the purposes of subsection (2)(b) are (without prejudice to the generality of that provision) protections in relation to—

(a) the independence of judicial decision-making, or decision-making of a judicial nature, by a person occupying a judicial office,

(b) civil liberties,

(d) the environment,

(e) cultural heritage (including access, through display, exhibition or otherwise, to cultural heritage).

(4) For the purposes of subsection (2)(b), the continued independence of the judiciary as mentioned in section 1 of the Judiciary and Courts (Scotland) Act 2008 (asp 6) is a necessary protection.

(5) For the purposes of subsection (2)(b), the holding, care or preservation of property which is cultural heritage by persons separate from the Scottish Ministers and any statutory restrictions on the disposal of such property are necessary protections where the property is vested in such persons as trustees for the public under statute.

(6) For the purposes of subsection (2)(b), the provision in paragraph 7(4) of schedule 2 to the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) as to who the convener shall be in relation to certain proceedings before the Mental Health Tribunal for Scotland is a necessary protection.

(7) For the purposes of subsection (2)(b), a provision is not to be treated as removing a necessary protection if provision is made that delivers the same or similar protection in an alternative manner.

(8) For the purposes of the application of subsection (2)(c), (d) and (e) to functions exercised, or to be exercised, by the Scottish Ministers, references to their general objects or purpose are to the broad remit of the part of the Scottish Administration through which the functions are, or are to be, exercised.

(9) For the purposes of subsection (2)(d), a modification of a function being transferred is not to be treated as substantial if it is necessary to enable the effective exercise of the function by the person, body or office-holder to which it is transferred.

(10) The Scottish Ministers may not make provision under section 14 which merely restates an enactment unless they consider that the provision made would make the law more accessible or more easily understood.

(11) In subsection (3)(a) “judicial office” means—

(a) the office of judge of any court,

(b) the office of member of any tribunal,

Removing and reducing burdens

Power to remove or reduce burdens

17

(1) The Scottish Ministers may by order make any provision which they consider would remove or reduce any burden, or the overall burdens, resulting directly or indirectly for any person from any legislation.

(2) In this section “burden” means any of the following—

(a) a financial cost,

(b) an administrative inconvenience,

(d) an obstacle to efficiency, productivity or profitability, or

(e) a sanction, criminal or otherwise, which affects the carrying on of any lawful activity.

(3) For the purposes of subsection (1), a financial cost or administrative inconvenience may result from the form of any legislation (for example, where the legislation is hard to understand).

(4) For the purposes of subsection (2)(c), “best regulatory practice” means practice under which (in particular) regulatory activities should be—

(a) carried out in a way that is transparent, accountable, proportionate and consistent,

(b) targeted only at such cases as require action.

(5) In this section “legislation” means any of the following or a provision of any of the following—

(a) a public general or local Act of Parliament (whenever passed) or an Act of the Scottish Parliament (whenever passed), or

(b) any Order in Council, order, rules, regulations, scheme, warrant, byelaw or other subordinate instrument made at any time under an Act referred to in paragraph (a).

(6) The provision that may be made under subsection (1) includes provision—

(a) abolishing, conferring or transferring, or providing for the delegation of, functions of any description,

(b) creating a body or office.

(7) An order under this section may not amend the constitution of the Scottish Court Service.

(8) For the purposes of subsection (7), the constitution of the Scottish Court Service is as set out in schedule 3 to the Judiciary and Courts (Scotland) Act 2008.

(9) An order under this section may—

(a) modify any enactment,

(b) contain such consequential, incidental, transitional, transitory or saving provision as the Scottish Ministers consider appropriate.

(10) An order under this section may include provision dissolving any body or office, other than those listed in section 14(3)(b)(i) to (v), but only if the body or office has, or will have by virtue of the order, no exercisable functions.

(11) An order under this section may bind the Crown.

(12) An order under this section must be made in accordance with this Part.

Preconditions

18

(1) The Scottish Ministers may not make provision under section 17(1), other than provision which merely restates an enactment, unless they consider that the conditions in subsection (2), where relevant, are satisfied in relation to that provision.

(2) Those conditions are that—

(a) the policy objective intended to be secured by the provision could not be satisfactorily secured by non-legislative means,

(b) the effect of the provision is proportionate to the policy objective,

(c) the provision, taken as a whole, strikes a fair balance between the public interest and the interests of any person adversely affected by it,

(d) the provision does not remove any necessary protection,

(e) the provision does not prevent any person from continuing to exercise any right or freedom which that person might reasonably expect to continue to exercise.

(3) Examples of protections for the purposes of subsection (2)(d) are (without prejudice to the generality of that provision) protections in relation to—

(a) the independence of judicial decision-making, or decision-making of a judicial nature, by a person occupying a judicial office,

(b) civil liberties,

(d) the environment,

(e) cultural heritage (including access, through display, exhibition or otherwise, to cultural heritage).

(4) For the purposes of subsection (2)(d), the continued independence of the judiciary as mentioned in section 1 of the Judiciary and Courts (Scotland) Act 2008 is a necessary protection.

(5) For the purposes of subsection (2)(d), the holding, care or preservation of property which is cultural heritage by persons separate from the Scottish Ministers and any statutory restrictions on the disposal of such property are necessary protections where the property is vested in such persons as trustees for the public under statute.

(6) For the purposes of subsection (2)(d), the provision in paragraph 7(4) of schedule 2 to the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) as to who the convener shall be in relation to certain proceedings before the Mental Health Tribunal for Scotland is a necessary protection.

(7) For the purposes of subsection (2)(d) a provision is not to be treated as removing a necessary protection if provision is also made that delivers the same or similar protection in an alternative manner.

(8) The Scottish Ministers may not make provision under section 17(1) which merely restates an enactment unless they consider that the provision made would make the law more accessible or more easily understood.

(9) In subsection (3)(a) “judicial office” means—

(a) the office of judge of any court,

(b) the office of member of any tribunal,

Specific restrictions

19

(1) The Scottish Ministers may not propose to make provision under section 14 or 17(1) which relates to any of the persons, bodies or office-holders listed in schedule 6 unless requested to do so in writing by the Scottish Parliamentary Corporate Body.

(2) The Scottish Ministers may not lay a draft order containing such provision before the Scottish Parliament in accordance with section 25(2)(b)(i) unless the Scottish Parliamentary Corporate Body consents.

General restrictions

20

(1) An order under section 14 or 17(1) may confer or transfer a function of legislating only on or to the Scottish Ministers, the First Minister or the Lord Advocate.

(2) An order under section 14 or 17(1) may not make provision for the delegation of any function of legislating.

(3) An order under section 14 or 17(1) may not make provision to confer a function of legislating on the Scottish Ministers, the First Minister or the Lord Advocate unless the conditions in subsections (4) and (5) are satisfied.

(4) The condition in this subsection is that the function is exercisable by statutory instrument.

(5) The condition in this subsection is that such a statutory instrument—

(a) is subject to annulment in pursuance of a resolution of the Scottish Parliament, or

(b) is not to be made unless a draft of the statutory instrument has been laid before and approved by a resolution of the Parliament.

(6) Subsections (1) to (3) do not apply to provision which merely restates an enactment.

(7) An order under section 14 or 17(1) may not make provision which has the effect of transferring to a person other than the Scottish Ministers, the First Minister or the Lord Advocate any function to which subsection (8) applies.

(8) This subsection applies to any function of—

(a) giving directions,

(b) appointing a person to any office or position, or

conferred by any enactment on the Scottish Ministers, the First Minister or the Lord Advocate.

Local taxation

21

An order under section 14 or 17(1) may not make provision to impose, abolish or vary any local tax to fund local authority expenditure.

Criminal penalties

22

(1) An order under section 14 or 17(1) may not make provision to create a new offence that is punishable, or increase the penalty for an existing offence so that it is punishable—

(a) on indictment, with imprisonment for a term exceeding two years, or

(b) on summary conviction, with—

(i) imprisonment for a term exceeding 12 months, or

(ii) a fine exceeding level 5 on the standard scale.

(2) In the case of an offence which is triable either on indictment or summarily and is not an offence triable on indictment only by virtue of section 292(6) and (7) of the Criminal Procedure (Scotland) Act 1995 (c. 46), the reference in subsection (1)(b)(ii) to a fine exceeding level 5 on the standard scale is to be construed as a reference to the statutory maximum.

(3) Subsection (1) does not apply to provision which merely restates an enactment.

Forcible entry etc.

23

(1) An order under section 14 or 17(1) may not make provision to—

(a) authorise any forcible entry, search or seizure, or

(b) compel the giving of evidence.

(2) Subsection (1) does not prevent an order from extending any power for purposes similar to those to which the power applied before the order was made.

(3) Subsection (1) does not apply to provision which merely restates an enactment.

Prohibition on modification of this Part

24

An order under section 14 or 17(1) may not make provision modifying any provision of this Part other than schedule 5.

Procedure

25

(1) An order under this Part must be made by statutory instrument.

(2) The Scottish Ministers may not make an order under section 14 or 17(1) unless—

(a) they have consulted in accordance with section 26,

(b) following that consultation, they have laid before the Scottish Parliament—

(i) a draft order, and

(ii) an explanatory document prepared in accordance with section 27, and

(3) Except as mentioned in subsection (7), the Scottish Ministers may not make an order under section 15 unless—

(a) they have consulted in accordance with subsection (4),

(b) following that consultation, they have laid before the Parliament—

(i) a draft order, and

(ii) an explanatory document prepared in accordance with subsection (5), and

(4) The Scottish Ministers must consult any person, body or office-holder in respect of which they propose to add an entry to schedule 5.

(5) The explanatory document must give details of—

(a) any consultation undertaken under subsection (4),

(b) any representations received as a result of the consultation,

(6) Subsections (2) to (4) of section 27 apply to consultation under subsection (4) of this section as those subsections of section 27 apply to consultation under section 26; and references to subsection (1)(f)(ii) in section 27(2) and (3) are to be read as references to subsection (5)(b) of this section.

(7) Where an order under section 15 contains only a provision mentioned in subsection (2)(b) of that section and, if applicable, a provision mentioned in subsection (4) of that section, the order is subject to annulment in pursuance of a resolution of the Parliament.

Consultation

26

(1) If the Scottish Ministers propose to make an order under section 14 or 17(1) they must—

(a) consult such organisations as appear to them to be representative of interests substantially affected by the proposals,

(b) where the proposals relate to the functions of one or more persons, bodies or office-holders, consult those persons, bodies or office-holders, or persons appearing to them to be representative of those persons, bodies or office-holders,

(d) consult such other persons as they consider appropriate.

(2) For the purposes of any consultation required by subsection (1), the Scottish Ministers must—

(a) lay before the Parliament—

(i) a copy of the proposed draft order, and

(ii) a copy of the proposed explanatory document referred to in section 25(2)(b)(ii) (excepting the details required by section 27(1)(f)),

(b) send a copy of the proposed draft order and proposed explanatory document to any person to be consulted under subsection (1), and

(c) have regard to any representations about the proposed draft order that are made to them within 60 days of the date on which the copy of the proposed draft order is laid before the Parliament under paragraph (a).

(3) In calculating any period of 60 days for the purposes of subsection (2)(c), no account is to be taken of any time during which the Parliament is dissolved or is in recess for more than 4 days.

(4) If, as a result of any consultation required by subsection (1), it appears to the Scottish Ministers that it is appropriate to change the whole or any part of their proposals, they must undertake such further consultation with respect to the changes as they consider appropriate.

(5) If, before the day on which this section comes into force, any consultation was undertaken which, had it been undertaken after that day, would to any extent have satisfied the requirements of this section, those requirements are to that extent to be taken to have been satisfied.

Explanatory document laid before the Scottish Parliament

27

(1) The explanatory document referred to in section 25(2)(b)(ii) must—

(a) explain under which power (or powers) in this Part the provision contained in the draft order is made,

(b) introduce and give reasons for the provision,

(i) explain why the Scottish Ministers consider that the conditions in section 16(2) (where relevant) are satisfied or the condition in section 16(10) is satisfied,

(ii) explain how the provision made by the order would improve the exercise of public functions, and

(iii) if the order relates to the functions of the Scottish Ministers, or confers functions on or transfers or delegates functions to, the Scottish Ministers, describe the functions and identify the part of the Scottish Administration through which the functions are, or are to be, exercised,

(d) in the case of an order under section 17(1)—

(i) explain why the Scottish Ministers consider that the conditions in section 18(2) (where relevant) are satisfied or the condition in section 18(8) is satisfied, and

(ii) include, so far as appropriate, an assessment of the extent to which the provision made by the order would remove or reduce any burden or burdens (within the meaning of that section),

(e) identify and give reasons for—

(i) any functions of legislating conferred by the order, and

(ii) the procedural requirements attaching to the exercise of those functions, and

(f) give details of—

(i) any consultation undertaken under section 26,

(ii) any representations received as a result of the consultation,

(iii) the changes (if any) made to the proposed draft order as a result of those representations.

(2) Where a person making representations in response to consultation under section 26 has requested the Scottish Ministers not to disclose them, the Scottish Ministers must not disclose them under subsection (1)(f)(ii) if or to the extent that to do so would (disregarding any connection with proceedings in the Scottish Parliament) constitute a breach of confidence actionable by any person.

(3) If information in representations made by a person in response to consultation under section 26 relates to another person, the Scottish Ministers need not disclose the information under subsection (1)(f)(ii) if or to the extent that—

(a) it appears to the Scottish Ministers that the disclosure of that information could adversely affect the interests of that other person, and

(b) the Scottish Ministers have been unable to obtain the consent of that other person to the disclosure.

(4) Subsections (2) and (3) do not affect any disclosure that is requested by, and made to, a committee of the Parliament charged with reporting on the draft order.

Combination with powers under European Communities Act 1972

28

(1) The power to make an order under section 14 or 17(1) may be exercised together with, and by the same instrument as, the power to make an order under section 2(2) of the European Communities Act 1972 (c. 68).

(2) Where the powers referred to in subsection (1) are so exercised—

(a) sections 25 to 27 apply to the order under section 2(2) of the European Communities Act 1972 as they apply to the order under section 14 or 17(1) of this Act, and

(b) paragraph 2(2) of Schedule 2 to the European Communities Act 1972 does not apply.

General

Order-making powers: modifications of enactments

29

Schedule 7 (which contains minor amendments and amendments consequential on this Part) has effect.

Interpretation of Part 2

30

In this Part—

“cultural heritage” includes objects, structures and other things (in whatever form) resulting from human activity of all periods, traditions, ways of life and the historic, scientific, artistic and literary associations of people, places and landscapes;

“restate an enactment” means to replace it with alterations only of form or arrangement (and for these purposes to remove an ambiguity is to make an alteration other than one of form or arrangement);

“function of legislating” is a function of legislating by order, rules, regulations or other subordinate instrument.

Part 3 — Information on exercise of public functions

Public functions: duties to provide information on certain expenditure etc.

31

(1) As soon as is reasonably practicable after the end of each financial year each listed public body must publish a statement of any expenditure that it has incurred during that financial year on or in connection with the matters described in subsection (2).

(2) Those matters are—

(a) public relations,

(b) overseas travel,

(d) external consultancy.

(3) As soon as is reasonably practicable after the end of each financial year each listed public body must publish a statement specifying the amount, date, payee and subject-matter of any payment made during that financial year which has a value in excess of £25,000.

(4) As soon as is reasonably practicable after the end of each financial year each listed public body must publish a statement specifying the number of individuals (if any) who, during that financial year, received remuneration in excess of £150,000 in relation to service as a member of the listed public body or a member of its staff.

(5) No information is to be provided under subsection (3) about the remuneration of, or other payments made to or in respect of, any individual in relation to that individual's service as a member of the listed public body or a member of its staff.

(6) In subsections (4) and (5), the references to a member of a listed public body—

(a) where the body is an office-holder which is not a body corporate, are to that office-holder,

(b) where the body is a company (within the meaning of the Companies Act 2006 (c. 46)), are to a director or a secretary of that company.

(7) Each listed public body must have regard to any guidance issued by the Scottish Ministers about the duties imposed by this section.

(8) The Scottish Ministers must lay a copy of any such guidance before the Parliament as soon as is reasonably practicable.

Public functions: duty to provide information on exercise of functions

32

(1) As soon as is reasonably practicable after the end of each financial year each listed public body must publish a statement of the steps that it has taken during that financial year—

(a) to promote and increase sustainable growth through the exercise of its functions,

(b) to improve efficiency, effectiveness and economy in the exercise of its functions.

(2) Each listed public body must have regard to any guidance issued by the Scottish Ministers about the duty imposed by subsection (1).

(3) The Scottish Ministers must lay a copy of any such guidance before the Parliament as soon as is reasonably practicable.

Public functions: duty to provide information on special advisers

33

(1) As soon as is reasonably practicable after the end of each financial year the Scottish Ministers must publish a statement of the total amount of remuneration paid to special advisers during that financial year.

(2) In subsection (1), “special advisers” means a person appointed by virtue of article 3(4) of the Civil Service Order in Council 1995.

Public functions: duties to provide information: further provision

34

(1) The Scottish Ministers may by order—

(a) modify subsection (1), (3) or (4) of section 31 by varying the periods to which for the time being statements are to relate and the frequency with which for the time being statements are to be published,

(b) modify subsection (2) of that section by—

(i) adding a matter,

(ii) removing a matter,

(iii) amending the description of a matter,

(2) Any power to make an order conferred by this Part on the Scottish Ministers must be exercised by statutory instrument.

(3) An order under subsection (1) or under section 35 may make different provision in relation to different listed public bodies.

(4) No order is to be made under subsection (1) unless a draft of the statutory instrument containing the order has been laid before, and approved by resolution of, the Parliament.

(5) A statutory instrument containing an order under section 35 is subject to annulment in pursuance of a resolution of the Parliament.

Interpretation of Part 3

35

In this Part—

“financial year” means a year ending with 31 March or such other date as the Scottish Ministers may by order specify;

“listed public body” is a person, body or office-holder listed in schedule 8.

Part 4 — Creative Scotland

Creative Scotland

Establishment of Creative Scotland

36

(1) There is established a body to be known as Creative Scotland or Alba Chruthachail.

(2) Schedule 9 (which makes further provision about the status, constitution, proceedings etc. of Creative Scotland) has effect.

General functions of Creative Scotland

37

(1) Creative Scotland has the general functions of—

(a) identifying, supporting and developing quality and excellence in the arts and culture from those engaged in artistic and other creative endeavours,

(b) promoting understanding, appreciation and enjoyment of the arts and culture,

(d) realising, as far as reasonably practicable to do so, the value and benefits (in particular, the national and international value and benefits) of the arts and culture,

(e) encouraging and supporting artistic and other creative endeavours which contribute to an understanding of Scotland's national culture in its broad sense as a way of life,

(f) promoting and supporting industries and other commercial activity the primary focus of which is the application of creative skills.

(2) In exercising the function mentioned in subsection (1)(c), Creative Scotland must do so with a view to increasing the diversity of people who access and participate in the arts and culture.

(3) Creative Scotland may encourage and support such persons as it considers appropriate in the exercise by those persons of any of the functions mentioned in paragraphs (a) to (f) of subsection (1) (or functions similar to those).

(4) In subsection (3), “persons” includes groups of persons.

Advisory and other functions

38

(1) Creative Scotland must provide the Scottish Ministers with such advice, information and assistance as they may reasonably require in relation to—

(a) the arts and culture,

(b) industries and other commercial activity the primary focus of which is the application of creative skills,

(2) Creative Scotland may provide the Scottish Ministers with such other advice and information as it considers appropriate in relation to the matters mentioned in subsection (1)(a), (b) and (c).

(3) Creative Scotland may provide such other persons as it considers appropriate with such advice, information and assistance as it considers appropriate in relation to—

(a) the arts and culture,

(b) industries and other commercial activity the primary focus of which is the application of creative skills.

(4) Any advice, information or assistance under subsection (1) or (2) must be provided in such manner as the Scottish Ministers may determine.

(5) In this section, “assistance” does not include financial assistance.

(6) In subsection (3), “persons” includes groups of persons.

Grants and loans

39

(1) The Scottish Ministers may make grants to Creative Scotland.

(2) In addition to any grants made under subsection (1), the Scottish Ministers may make grants to Creative Scotland for particular purposes.

(3) A grant under subsection (1) or (2) is subject to such terms and conditions (including conditions as to repayment) as the Scottish Ministers may determine.

(4) Creative Scotland may make grants and loans to such persons as it considers appropriate for the purpose of, in connection with, or where it appears conducive to, the exercise of its functions.

(5) A grant or loan under subsection (4) is subject to such terms and conditions (including conditions as to repayment) as Creative Scotland may determine.

Directions and guidance

40

(1) The Scottish Ministers may give Creative Scotland directions (of a general or specific nature) as to the exercise of its functions.

(2) But the Scottish Ministers may not give directions so far as relating to artistic or cultural judgement in respect of the exercise of Creative Scotland's functions under section 37(1) or (3), 38(3) or 39(4).

(3) Creative Scotland must—

(a) comply with any directions given to it by the Scottish Ministers under this Part,

(b) have regard to any guidance issued by the Scottish Ministers in relation to the exercise of its functions.

(4) Subject to subsection (2), the Scottish Ministers may vary or revoke any direction given under this Part.

Miscellaneous and general

Dissolution of Scottish Arts Council

41

(1) The Scottish Arts Council is dissolved and the charter constituting that body is revoked.

(2) In subsection (1), the “charter” is the Royal Charter granted by Her Majesty on 8 February 1994.

Transfer of staff etc.

42

(1) With effect from the date on which section 41 comes into force—

(a) any person employed by—

(i) the Scottish Arts Council immediately before that date, or

(ii) Scottish Screen immediately before that date,

is transferred into the employment of Creative Scotland,

(b) all property (including rights) and liabilities of—

(i) the Scottish Arts Council subsisting immediately before that date,

(ii) Scottish Screen subsisting immediately before that date,

are transferred to, and vest in, Creative Scotland.

(2) The contract of employment of a person transferred by virtue of subsection (1)(a)—

(a) is not terminated by the transfer, and

(b) has effect from the date of transfer as if originally made between the person and Creative Scotland.

(3) Without prejudice to subsection (2), where a person is transferred by virtue of subsection (1)(a)—

(a) all the rights, powers, duties and liabilities of the Scottish Arts Council or, as the case may be, Scottish Screen, under or in connection with the person's contract of employment are transferred to Creative Scotland on the date of transfer, and

(b) anything done before that date by or in relation to the Scottish Arts Council or, as the case may be, Scottish Screen, in respect of the person or the contract is to be treated from that date as having been done by or in relation to Creative Scotland.

(4) Subsections (1) to (3) do not affect any right of any person so transferred to terminate the person's contract of employment if the terms and conditions of employment are changed substantially to the detriment of the person; but any such change is not to be taken to have occurred by reason only that the identity of the person's employer changes by virtue of those subsections.

Creative Scotland: modifications of enactments

43

Schedule 10 (which contains modifications of enactments consequential on this Part) has effect.

44

(1) There is established a body to be known as Social Care and Social Work Improvement Scotland (in this Part referred to as “SCSWIS”), which—

(a) is to exercise the functions conferred on it by this Act or any other enactment, and

(b) has the general duty of furthering improvement in the quality of social services.

(2) SCSWIS must, in the exercise of its functions, act—

(a) in accordance with any directions given to it by the Scottish Ministers, and

(b) under the general guidance of the Scottish Ministers.

(3) The Scottish Ministers may vary or revoke any direction given under subsection (2)(a).

(4) Schedule 11 (which makes further provision about the status, constitution, proceedings etc. of Social Care and Social Work Improvement Scotland) has effect.

General principles

45

(1) SCSWIS must exercise its functions in accordance with the principles set out in the following subsections.

(2) The safety and wellbeing of all persons who use, or are eligible to use, any social service are to be protected and enhanced.

(3) The independence of those persons is to be promoted.

(4) Diversity in the provision of social services is to be promoted with a view to those persons being afforded choice.

(5) Good practice in the provision of social services is to be identified, promulgated and promoted.

Key definitions

46

(1) In this Part, “social services” means—

(a) care services, and

(b) social work services.

(2) Any reference to a “social service” in this Part means any care service or social work service.

Care services

47

(1) In this Part, a “care service” is any of the following—

(a) a support service,

(b) a care home service,

(d) a nurse agency,

(e) a child care agency,

(f) a secure accommodation service,

(g) an offender accommodation service,

(h) an adoption service,

(i) a fostering service,

(j) an adult placement service,

(k) child minding,

(l) day care of children,

(m) a housing support service,

(n) a child contact service.

(2) Schedule 12 (which provides definitions for the purposes of subsection (1)) has effect.

48

In this Part—

“social work services” means—services which are provided by a local authority in the exercise of any of its social work services functions, orservices which are provided by another person pursuant to arrangements made by a local authority in the exercise of its social work services functions;

“social work services functions” means functions under the enactments specified in schedule 13.

Power to modify key definitions

49

The Scottish Ministers, after consulting such persons (or groups of persons) as they consider appropriate, may by order—

(a) modify—

(i) section 47(1),

(ii) schedule 12,

(b) modify—

(i) the definition of social work services in section 48,

(ii) the definition of social work services functions by adding an entry to or removing any entry from schedule 13.

Miscellaneous

Standards and outcomes

50

(1) The Scottish Ministers must prepare and publish standards and outcomes applicable to—

(a) care services,

(b) social work services.

(2) The Scottish Ministers must keep any standards and outcomes so published under review and may under subsection (1) publish amended standards and outcomes whenever they consider it appropriate to do so.

(3) Before publishing under subsection (1) any—

(a) standards and outcomes,

(b) amended standards and outcomes which in the opinion of the Scottish Ministers are substantially different from the standards and outcomes (or amended standards and outcomes) last so published,

the Scottish Ministers must consult such persons, or groups of persons, as they consider appropriate.

(4) In relation to a care service other than one mentioned in subsection (5), any applicable standards and outcomes published under subsection (1) and the Scottish Social Services Council's codes of practice (that is to say, the codes of practice published by the Council under section 53 of Regulation of Care (Scotland) Act 2001 (asp 8)) must be taken into account—

(a) by SCSWIS in making any decision under this Chapter or Chapter 2 or 3,

(b) in any proceedings on an appeal under section 75(1), and

(5) In relation to an adoption service mentioned in paragraph 8(1)(a) of schedule 12, a fostering service mentioned in paragraph 9(a) or (c) of that schedule or any other care service registered under Chapter 4, any applicable standards and outcomes published under subsection (1) and the codes of practice mentioned in subsection (4) must be taken into account—

(a) by SCSWIS in making any decision under this Chapter or Chapter 2, 3 or 4,

(b) in any proceedings on an appeal under section 89,

(6) In relation to a social work service, any applicable standards and outcomes published under subsection (1) and the codes of practice mentioned in subsection (4) must be taken into account by SCSWIS in making any decision under this Chapter or Chapter 2.

(7) The Scottish Ministers may make different provision for different services under subsection (1).

(8) The Scottish Ministers may delegate their functions under subsections (1) to (3) to SCSWIS or such other persons as they consider appropriate.

Information and advice

51

(1) SCSWIS must provide information to the public about the availability and quality of social services.

(2) A person requesting from SCSWIS information to be provided under subsection (1) is entitled to receive it in such form as that person may reasonably request.

(3) SCSWIS—

(a) may at any time, and must when asked to do so, provide advice to the Scottish Ministers,

(b) must when asked to do so provide advice to—

(i) persons who provide, seek to provide or may seek to provide social services,

(ii) persons, or groups of persons, representing those who use, or are eligible to use, social services,

(iii) persons, or groups of persons, representing those who care for those who use, or are eligible to use, social services,

(iv) local authorities,

(v) health bodies, ...

(va) integration joint boards established under section 9(2) of the Public Bodies (Joint Working) (Scotland) Act 2014, and

(vi) such other persons, or groups of persons, as may be prescribed,

about any matter relevant to the functions of SCSWIS,

(c) may disseminate such information as it considers relevant of general or specific application arising out of or in connection with the discharge of its functions.

(4) SCSWIS may charge a reasonable fee determined by it for any advice, forms or documents provided for the assistance of any person, authority or body mentioned in subsection (3)(b).

Dissolution of Scottish Commission for the Regulation of Care

52

The Scottish Commission for the Regulation of Care is dissolved.

Inspections

53

(1) SCSWIS may inspect—

(a) any social service,

(b) the organisation or co-ordination of any social services.

(c) where social services, services provided under the health service or services provided by an independent health care service are provided in pursuance of an integration scheme approved under section 7 of the Public Bodies (Joint Working) (Scotland) Act 2014 (“the 2014 Act”), the planning, organisation or co-ordination of those services.

(2) The purposes of an inspection under subsection (1)(a) or (b) may include—

(a) reviewing and evaluating the effectiveness of the provision of the services which are the subject of the inspection,

(b) encouraging improvement in the provision of those services,

(c) enabling consideration as to the need for any recommendations to be prepared as to any such improvement to be included in the report prepared under section 57,

(d) investigating any incident, event or cause for concern,

(e) in the case of care services, enabling consideration as to the need for—

(i) an improvement notice under section 62,

(ii) a condition notice under section 66 or a local authority condition notice under section 85.

(f) reviewing and evaluating the extent to which the social service is complying with the integration delivery principles and contributing to achieving the national health and wellbeing outcomes,

(g) reviewing and evaluating the extent to which the planning, organisation or co-ordination of social services, services provided under the health service and services provided by an independent health care service is complying with the integration delivery principles and contributing to achieving the national health and wellbeing outcomes,

(h) reviewing and evaluating the effectiveness of a strategic plan prepared under section 29 of the 2014 Act in complying with the integration delivery principles and contributing to achieving the national health and wellbeing outcomes,

(i) encouraging improvement in the extent to which implementation of a strategic plan prepared under section 29 of the 2014 Act complies with the integration delivery principles and contributes to achieving the national health and wellbeing outcomes, and

(j) enabling consideration as to the need for any recommendations to be prepared as to any such improvement to be included in the report prepared under section 57.

(2A) The purposes of an inspection under subsection (1)(c) may include any of those mentioned in subsection (2)(f) to (j).

(3) An inspection under this section may be in relation to—

(a) any social service or combination of social services,

(b) such of the services concerned provided to a particular child or other person or particular children or other persons,

(4) An inspection under this section must be conducted in accordance with a plan—

(a) prepared in accordance with section 54, and

(b) approved by the Scottish Ministers.

(5) An inspection under this section may, subject to any regulations made under section 58, take such form as SCSWIS considers appropriate.

(6) SCSWIS may at any time require a person providing any social service to supply it with any information relating to the service which it considers necessary or expedient to have for the purposes of its functions under this Part.

(7) In this section—

“independent health care service” has the meaning given by section 10F(1) of the National Health Service (Scotland) Act 1978;

“integration delivery principles” has the meaning given by section 31 of the 2014 Act;

“national health and wellbeing outcomes” has the same meaning as in section 5(1) of the 2014 Act.

Inspections under section 53: best regulatory practice

54

(1) SCSWIS must prepare a plan for carrying out inspections in accordance with best regulatory practice.

(2) The plan—

(a) must set out arrangements for inspections to be so carried out (including inspections of those services subject to self evaluation),

(b) may make different provision for different purposes.

(3) For the purposes of subsection (1), “best regulatory practice” means practice under which (in particular) inspections should be carried out in a way that is transparent, accountable, proportionate and consistent.

(4) In preparing a plan under subsection (1), SCSWIS must have regard to any guidance issued by the Scottish Ministers about those matters.

(5) SCSWIS—

(a) must keep the plan under review, and

(b) may from time to time revise, with the approval of the Scottish Ministers, the plan.

(6) SCSWIS must, in preparing a plan (or any revisal), consult such persons as it considers appropriate.

Inspections at request of Scottish Ministers

55

(1) SCSWIS must, at the request of the Scottish Ministers inspect—

(a) any social service that they may specify,

(b) the organisation or co-ordination of any social services that they may specify.

(2) The Scottish Ministers may specify purposes for any inspection under this section.

(3) An inspection under this section must be conducted in accordance with a timetable approved by the Scottish Ministers.

(4) The Scottish Ministers may request under subsection (1) that there be conducted an inspection of—

(a) any services concerned in the relevant area,

(b) such of the services concerned provided in the relevant area as they may specify, or

(c) such of the services concerned provided to a particular child or other person or particular children or other persons as they may specify.

(5) In paragraphs (a) and (b) of subsection (4), the “relevant area” is the whole of Scotland or such part of Scotland as the Scottish Ministers specify in their request.

Inspections: authorised persons

56

(1) Any inspection under this Part must be carried out by a person authorised by SCSWIS (an “authorised person”).

(2) A person may be authorised by SCSWIS to carry out inspections in relation to any social service or all of them.

(3) An authorised person may at any time enter and inspect premises which are used, or which the person has reasonable cause to believe are used, for the purpose of providing the social service which is subject to inspection.

(4) Where an authorised person is in possession of confidential information which has been obtained for the purposes of an inspection under this Part, the authorised person must not use or disclose that information other than—

(a) for the purposes of that inspection,

(b) so as to comply with an enactment or court order requiring disclosure,

(i) any child,

(ii) any adult at risk (within the meaning of section 3 of the Adult Support and Protection (Scotland) Act 2007 (asp 10)), ...

(d) to the extent considered necessary by the authorised person for the purpose of the prevention or detection of crime or the apprehension or prosecution of offenders, or

(e) to the extent considered necessary by the authorised person for the purpose of assisting the Scottish Public Services Ombudsman in connection with the Ombudsman’s investigatory functions under the Scottish Public Services Ombudsman Act 2002.

Inspections: reports

57

(1) Where an inspection under this Part has been completed, SCSWIS—

(a) must prepare a report on the matters inspected, and

(b) must without delay send a copy of that report to the person providing the service which has been inspected.

(2) Before finalising the report, SCSWIS must give the person providing the service an opportunity of commenting on a draft of the report.

(3) SCSWIS must make copies of the report available for inspection at its offices by any person at any reasonable time; and it must take such other steps as it considers appropriate for publicising the report.

(4) Regulations may make further provision about the preparation, content and effect of reports under this section and in particular may make—

(a) provision (including provision modifying any duties under this section) specifying circumstances in which—

(i) any right to receive,

(ii) access to,

(iii) availability of,

copies of reports (or of parts of such reports) may be restricted, refused or withheld,

(b) provision requiring copies of reports to be sent to the Scottish Ministers (or such other persons as may be specified in regulations) in such circumstances as may be so specified.

Regulations

Regulations: inspections

58

(1) Regulations may make further provision concerning inspections under this Part.

(2) Regulations under subsection (1) may, in particular, make provision—

(a) as to types of inspection which may be conducted,

(b) as to timing and frequency of inspections,

(d) as to persons who may be authorised to carry out inspections,

(e) requiring or facilitating the sharing or production of information (including health records) for the purposes of an inspection under this Part,

(f) as to interviews and examinations (including physical and mental examinations) which may be carried out in connection with the inspections,

(g) requiring any person to provide to an authorised person an explanation of information produced to an authorised person,

(h) requiring information produced to an authorised person to be held in compliance with prescribed conditions and further disclosures to be made in compliance with such conditions,

(i) empowering an authorised person to disclose to a person prescribed for the purposes of this paragraph any information of a prescribed nature which the authorised person holds in consequence of such an inspection,

(j) creating offences punishable on summary conviction by a fine not exceeding level 4 on the standard scale for the purpose of enforcing any provision of the regulations.

(3) In subsection (2), “prescribed” means prescribed by regulations under subsection (1).

Chapter 3 — Care services

Registration of care services

59

(1) A person who seeks to provide a care service must apply to SCSWIS for registration of the service.

(2) An application must—

(a) give such information as may be prescribed about prescribed matters,

(b) identify an individual (who may be the applicant) who is to manage the service,

(d) without prejudice to subsection (1)(b) of section 76, be accompanied by the fee imposed under subsection (2)(a) of that section.

(3) A person who provides an adoption service or a fostering service must be a voluntary organisation.

(4) Subsections (1) to (3) do not apply to a local authority—

(a) seeking to provide—

(i) an adoption service mentioned in paragraph 8(1)(a) of schedule 12, or

(ii) a fostering service mentioned in paragraph 9(a) or (c) of that schedule, or

(b) seeking to provide a care service in respect of which it has made such determination as is mentioned in section 83(1)(c).

(5) Subsection (4)(b) is subject to section 83(3).

Grant or refusal of registration

60

(1) SCSWIS may grant or refuse registration of a care service under section 59.

(2) A grant of registration may be subject to such conditions as SCSWIS thinks fit.

(3) If SCSWIS is satisfied, in relation to an application, that the requirements of—

(a) such regulations as are applicable under section 78 or 82B(1) to the care service, and

(b) any other enactment which appears to SCSWIS to be relevant,

will be complied with in relation to that service, it must give notice under section 71(1), or as the case may be section 73(1); otherwise it must give notice under section 71(2).

(4) On granting a registration, SCSWIS must issue a certificate of registration to the applicant.

(5) The person for the time being providing the service must ensure that the certificate (or a copy of it) is, while the certificate is current, kept affixed in a conspicuous place in each of the premises in or from which that service is provided and, if different, the principal (or only) office of the service.

Limited registration

61

(1) For the purposes of Part 4 of the Adults with Incapacity (Scotland) Act 2000 (asp 4) (management of resident's finances), a person who provides, or seeks to provide, a service which provides accommodation but is not a care service may make an application to SCSWIS for registration of the service.

(2) Subsection (2) of section 59 applies in relation to an application under subsection (1) as it applies in relation to an application under subsection (1) of that section.

(3) Sections 60, 76 and 77 apply in relation to a service in respect of which an application is made under subsection (1) as they apply in relation to a care service.

(4) Sections 53 to 58, 62 to 79 and 101 apply in relation to a service registered under section 60 by virtue of subsection (3) as they apply in relation to a registered care service.

(5) A service so registered is, in this Part, referred to as a limited registration service.

Improvement notices

Improvement notices: care services

62

(1) SCSWIS may at any time give a notice (in this Part referred to as an “improvement notice”) to the person for the time being providing a care service registered under this Part that, unless within such reasonable period as may be specified in the notice, there is a significant improvement, of such a nature as may be so specified, in the provision of that service, SCSWIS intends—

(a) in the case other than that mentioned in paragraph (b), to make a proposal under section 64 to cancel the registration, or

(b) in the case of a local authority providing an adoption service mentioned in paragraph 8(1)(a) of schedule 12, a fostering service mentioned in paragraph 9(a) or (c) of that schedule or any other care service registered under Chapter 4, to make a report to the Scottish Ministers under section 91.

(2) Where a notice under subsection (1)(a) is given to a person other than a local authority, SCSWIS must send without delay a copy of that notice to the local authority within whose area the service is provided.

Special provision for certain care services provided by local authorities

63

(1) Where—

(a) SCSWIS has given an improvement notice to a local authority in respect of a care service provided by it and registered under this Chapter, and

(b) the authority determines that the service is one which it must provide in order to fulfil a statutory duty,

the authority must within 14 days after receiving the notice notify that determination to SCSWIS together with a statement of its reasons.

(2) On receiving notification under subsection (1), SCSWIS must as soon as practicable send a copy of the improvement notice to the Scottish Ministers together with a copy of the notification, of the statement of reasons and of a note of any reason SCSWIS has for not agreeing with the authority's determination.

(3) On receiving an improvement notice sent under subsection (2) the Scottish Ministers must state whether or not, in their opinion, the determination of the authority is justified.

(4) If their statement is that the determination is justified—

(a) the improvement notice is to be taken as duly given under subsection (1)(b) (and not subsection (1)(a)) of section 62, and

(b) the care service is to be taken, for the purposes of any application of the provisions of this Part which follows on from the giving of an improvement notice, to be a care service duly registered under Chapter 4 (and not Chapter 3).

Proposals and applications in relation to registered care services

Cancellation of registration

64

(1) SCSWIS may... propose to cancel the registration, under this Chapter, of a care service—

(a) on the ground that any person has been convicted of a relevant offence in relation to the service,

(b) on the ground that the service is being, or has at any time been, carried on other than in accordance with the relevant requirements, or

(1A) The power in subsection (1) may be exercised—

(a) at any time after the expiry of the period specified in an improvement notice given in respect of the care service, or

(b) at any time in circumstances which may be prescribed.

(2) For the purposes of subsection (1)(a), the following are relevant offences—

(a) an offence under this Part,

(b) an offence under regulations made under this Part, or

(3) For the purposes of subsection (1)(b), the following are relevant requirements—

(a) any requirements or conditions imposed by or under this Part, or

(b) the requirements of regulations made under this Part.

(4) Where a person providing a registered care service ceases to provide the service, SCSWIS may cancel the registration of the service.

Emergency cancellation of registration

65

(1) SCSWIS may apply to the sheriff for an order cancelling the registration, under this Chapter, of a care service.

(2) The application may be granted if it appears to the sheriff that, unless the order is made, there will be a serious risk to the life, health or wellbeing of persons.

(3) The sheriff may make such interim order as the sheriff thinks fit.

(4) As soon as practicable after SCSWIS has applied for an order under subsection (1), it must notify the appropriate authorities.

(5) Where the order applied for is made (or an interim order is made), SCSWIS must as soon as reasonably practicable give a copy of it to the person who provides the care service.

(6) The sheriff may determine an application under this section in the absence of the person providing the care service to which the application relates.

(7) An order under this section has effect—

(a) from the time at which it is made, or

(b) from such other time as the sheriff considers appropriate.

(8) Within 14 days of the day on which an order under this section is made, an appeal may be made to the sheriff principal against the making of the order.

(9) On an appeal under subsection (8), the sheriff principal may—

(a) confirm the order,

(b) revoke the order,

(d) make such other order as the sheriff principal thinks fit.

(10) The decision of the sheriff principal on an appeal under subsection (8) is final.

(11) An order under this section has effect notwithstanding the making of an appeal in relation to the order.

(12) For the purposes of this section, the appropriate authorities are—

(a) each—

(i) local authority, and

(ii) health board,

within whose area the care service is provided, and

(b) any other body established by or under an enactment whom SCSWIS thinks it appropriate to notify.

Condition notices

66

SCSWIS may at any time give notice (in this Part referred to as a “condition notice”) to the person for the time being providing a service registered under this Chapter that it proposes to—

(a) vary or remove a condition for the time being in force, or

(b) impose an additional condition,

in relation to the registration.

Emergency condition notices

67

(1) Subsection (2) applies where—

(a) a person is providing a care service registered under this Chapter, and

(b) SCSWIS believes that the absence of a condition in relation to the registration of that service poses a serious risk to the life, health or wellbeing of persons.

(2) SCSWIS may at any time give notice (an “emergency condition notice”) to the person providing the service specifying a condition, in relation to registration, in respect of that risk.

(3) The condition so specified takes effect immediately on receipt of the emergency condition notice.

(4) An emergency condition notice must—

(a) state that, within 14 days after service of the notice, the person to whom it is given may make written representations to SCSWIS concerning any matter which that person wishes to dispute, and

(b) explain the right of appeal conferred by section 69(1).

(5) SCSWIS must consider any representations made under subsection (4)(a) and, following such consideration, must—

(a) give the person providing the service a condition notice stating that SCSWIS proposes to vary or remove the condition specified in the emergency condition notice, or

(b) notify the person that it does not intend to give such a condition notice.

(6) When notifying a person under subsection (5)(b), SCSWIS must explain the right of appeal conferred by section 69(1).

(7) Where a condition notice has been given by virtue of subsection (5)(a) containing a proposal to remove the condition, SCSWIS must implement the proposal unless it appears to it that it would be inappropriate to do so.

Application of Part to condition notices following emergency condition notices

68

(1) Section 72 does not apply to a condition notice given by virtue of section 67(5)(a).

(2) The reference in section 73(5) to a proposal in relation to which a condition notice has been given does not include a reference to a proposal contained in a condition notice given by virtue of section 67(5)(a) to remove the condition mentioned in that provision.

(3) The reference to a proposal in section 75(1) does not include a reference to a proposal contained in a condition notice given by virtue of section 67(5)(a) to remove the condition mentioned in that provision.

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Public Services Reform (Scotland) Act 2010

Part 1 — Simplification of public bodies

Transfer of functions

Transfer to Scottish Natural Heritage of functions of Deer Commission for Scotland

1

Transfer to Scottish Natural Heritage of functions of Advisory Committee on sites of special scientific interest

2

Transfer to certain bodies of functions of Waterwatch Scotland

3

Dissolution of bodies etc.

Dissolution of Scottish Records Advisory Council

4

Dissolution of Scottish Industrial Development Advisory Board

5

Dissolution of Building Standards Advisory Committee

6

Dissolution of Historic Environment Advisory Council for Scotland

7

Dissolution of Regional Boards of Scottish Environment Protection Agency

8

Delegation of functions etc.

Delegation of Ministerial functions under section 7 of Industrial Development Act 1982

9

Delegation of Ministerial functions under section 5 of Science and Technology Act 1965

10

Delegation of certain functions of Forestry Commissioners under Forestry Act 1967

11

Forestry Commissioners: joint ventures etc.

12

Regulation of officers of court

Regulation of officers of court

13

Part 2 — Order-making powers

Improving the exercise of public functions

Public functions: efficiency, effectiveness and economy

14

Public functions: further provision

15

Preconditions

16

Removing and reducing burdens

Power to remove or reduce burdens

17

Preconditions

18

Specific restrictions

Order in relation to certain bodies: requirement for request and consent

19

General restrictions

Subordinate legislation and powers of direction, appointment and consent

20

Local taxation

21

Criminal penalties

22

Forcible entry etc.

23

Prohibition on modification of this Part

24

Procedure

Procedure

25

Consultation

26

Explanatory document laid before the Scottish Parliament

27

Combination with powers under European Communities Act 1972

28

General

Order-making powers: modifications of enactments

29

Interpretation of Part 2

30

Part 3 — Information on exercise of public functions

Public functions: duties to provide information on certain expenditure etc.

31

Public functions: duty to provide information on exercise of functions

32

Public functions: duty to provide information on special advisers

33