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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

(43A) (1) OSCR may, on the application of a charity, approve a restricted funds reorganisation scheme proposed by the charity if— (a) it considers— (i) that any of the conditions specified in subsection (2) is satisfied in relation to the restricted funds, and (ii) that the proposed reorganisation will enable the resources of the restricted funds to be applied to better effect for charitable purposes consistently with the charity's constitution, and (b) it is satisfied that the charity is unable to ascertain the wishes of the donor. (2) The conditions are— (a) that some or all of the purposes of the restricted funds— (i) have been fulfilled as far as possible or adequately provided for by other means, (ii) can no longer be given effect to (whether or not in accordance with the directions or spirit of the restricted funds' purposes), (iii) have ceased to be charitable purposes, (iv) have ceased in any other way to provide a suitable and effective method of using the funds, having regard to the spirit of the restricted funds' purposes, (b) that the purposes of the restricted funds provide a use for only part of its property. (3) The Scottish Ministers may by regulations make such provision as they think fit in relation to making and determining applications under this section. (4) Such regulations may in particular make provision about— (a) the form and manner in which applications must be made, (b) the period within which OSCR must make a decision on an application, (c) publication of proposed restricted funds reorganisation schemes, (d) the action a charity may take in order to satisfy OSCR of the matters described in subsection (1)(b), and may make different provision in relation to different types of charity. (43B) (1) Where OSCR— (a) considers— (i) that any of the conditions specified in section 43A(2) is satisfied in relation to a charity, and (ii) that a restricted funds reorganisation scheme proposed by it or by the charity trustees of the charity will enable the resources of the restricted funds to be applied to better effect for charitable purposes consistently with the charity's constitution, and (b) is satisfied that it is not possible to ascertain the wishes of the donor, OSCR may, of its own accord or on the application of the charity trustees of the charity, apply to the Court of Session for approval of the scheme. (2) The Court of Session may, on an application under subsection (1), approve the proposed restricted funds reorganisation scheme if it considers that the matters set out in paragraphs (a) and (b) of that subsection are satisfied in relation to the restricted funds to which the application relates. (3) The charity trustees of a charity may enter appearance as a party in proceedings on an application under subsection (1) in relation to the charity. (4) OSCR must, not less than 28 days before making an application under subsection (1), notify the charity in question of its intention to do so. (5) The Scottish Ministers may by regulations make such provision as they think fit in relation to action which may be taken to satisfy OSCR of the matter described in subsection (1)(b). (6) Nothing in this section affects the power of the Court of Session to approve a cy près scheme in relation to a charity. (43C) A charity may, despite any condition relating to restricted funds having contrary effect, use the restricted funds in such manner as permitted by an approved restricted funds reorganisation scheme. (43D) In this chapter— - “donor” means such person or body who may vary the purpose of, or any conditions imposed in relation to, restricted funds as may be specified by regulations made by the Scottish Ministers as they think fit, - “restricted funds” means property (including money) given to a charity for a specific purpose and in respect of which conditions have been imposed as to its use, - a “restricted funds reorganisation scheme” is a scheme for— 1. the variation of the purpose for which restricted funds may be used, 2. the variation or removal of any condition imposed on the charity in relation to the use of restricted funds.

(2) In section 71 of that Act (decisions), after paragraph (m) insert—

(ma) refuse an application made for the purposes of section 43A,

(3) In section 106 of that Act (general interpretation), after the entry for “reorganisation scheme” insert—

“restricted funds reorganisation scheme” has the meaning given in section 43D and references to “approved restricted funds reorganisation schemes” are references to schemes approved under section 43A or 43B,

Appointment of charity trustees

126

After section 70 of the 2005 Act, insert—

(70A) (1) Subsection (2) applies where— (a) a charity has an insufficient number of charity trustees to be able to appoint a charity trustee under its constitution, and (b) the constitution does not provide a mechanism for appointing a charity trustee in such circumstances. (2) OSCR may, upon the request of— (a) the majority of the charity trustees of a charity, (b) if there are only two charity trustees, either of them, appoint a person as an acting charity trustee for the charity. (3) OSCR may appoint more than one acting charity trustee under subsection (2), but only as many as is necessary for the charity to be able to appoint charity trustees under its constitution. (4) A person appointed as an acting charity trustee under subsection (2)— (a) is appointed for the period of 12 months (or such shorter period as OSCR thinks fit) starting with the date of appointment, and (b) has the same functions as a charity trustee appointed under the charity's constitution. (5) Despite subsection (4)(a), if— (a) at the end of the period mentioned in that subsection, the charity is still not (but for the acting charity trustee) able to appoint a charity trustee under its constitution, and (b) OSCR, the majority of the charity trustees (or if only two trustees, either of them) and the acting charity trustee agree to an extension, an acting charity trustee's period of appointment may be extended by one period of up to three months starting with the expiry of the original period of appointment. (6) Nothing in subsections (1) to (5) prevents a person appointed as an acting charity trustee by OSCR under subsection (2) from being appointed as a charity trustee by the charity under its constitution. (7) But the acting charity trustee may not vote on whether to make such an appointment. (8) Where an acting charity trustee is appointed as a charity trustee under the charity's constitution, the person's appointment as an acting charity trustee comes to an end on the date of that subsequent appointment.

Charity trustees' indemnity insurance

127

(1) In section 67(5)(c) of the 2005 Act (remuneration for services), for “any” substitute “ this Act or any other ”.

(2) After section 68 of that Act insert—

(68A) (1) The charity trustees of a charity may arrange for the purchase, from the charity's funds, of insurance designed to indemnify the charity trustees against personal liability in respect of any negligence, default or breach of duty committed by them in their capacity as— (a) charity trustees, or (b) directors or officers of any body corporate carrying on any activities on behalf of the charity. (2) The terms of such insurance must, however, be framed to exclude the provision of any indemnity for a charity trustee in respect of any liability incurred by the charity trustee— (a) to pay— (i) a fine imposed in criminal proceedings, (ii) a sum payable to a regulatory authority by way of a penalty in respect of non-compliance with any requirement of a regulatory nature, (b) in respect of representation in any criminal proceedings in which the charity trustee is convicted of an offence arising out of any fraud or dishonesty, or wilful or reckless misconduct, by the charity trustee, (c) to the charity that arises out of any conduct which the charity trustee knew (or must reasonably be assumed to have known) was not in the interests of the charity or in the case of which the charity trustee did not care whether it was in the interests of the charity or not. (3) For the purposes of subsection (2)(b) the reference to conviction does not include a conviction— (a) quashed by an order under section 118(1)(b) or 183(1)(c) of the Criminal Procedure (Scotland) Act 1995 (c. 46), (b) quashed by an order under section 118(1)(c) of that Act and which order has the effect of an acquittal by virtue of section 119(9) of that Act or otherwise, (c) in relation to which the verdict is set aside by an order under section 183(1)(d) of that Act and which order has the effect of an acquittal by virtue of section 185(9) of that Act or otherwise. (4) This section— (a) does not authorise the purchase of any insurance whose purchase is expressly prohibited by the charity's constitution, (b) has effect despite any provision prohibiting the charity trustees receiving any personal benefit from the charity's funds.

Interpretation of Part 9

128

For the purposes of this Part, the “2005 Act” is the Charities and Trustee Investment (Scotland) Act 2005 (asp 10).

Part 10 — Miscellaneous and general

Miscellaneous

Local Government (Scotland) Act 1973: minor amendment

129

In section 102(2A) of the Local Government (Scotland) Act 1973 (c. 65) (reports to Accounts Commission for Scotland by Controller of Audit), the words “(1) or” are repealed.

Consultation by water and sewerage services providers

130

(1) The Water Industry (Scotland) Act 2002 (asp 3) is amended in accordance with this section (but see also schedule 2 which makes other amendments to that Act).

(2) In section 27 (approval of customer standards code)—

(a) in subsection (1), after “consulting” insert “ every water services provider and sewerage services provider and ”,

(b) in subsection (4), after “consulting” insert “ every water services provider and sewerage services provider and ”.

(3) In section 28 (consultation code), in subsection (3)(a)—

(a) after “consult” insert “ every water services provider and sewerage services provider and ”,

(b) after “by” insert “ any such provider or ”.

(4) In section 29B (determination of maximum charges), in subsection (4)(a)—

(a) the word “and” immediately following sub-paragraph (ii) is repealed,

(b) after sub-paragraph (ii) insert—

(iia) every water services provider and sewerage services provider, and

(5) In section 29D(5) (statements regarding charges), after paragraph (a) insert—

(aa) every water services provider and sewerage services provider,

(6) In section 56A(4) (directions may set objectives), after “consult” insert “ every water services provider and sewerage services provider and ”.

(7) In section 57(6) (information and reports), after “Commission” insert “ , every water services provider and sewerage services provider ”.

(8) In section 70 (interpretation), after the entry for “the Parliament” insert—

“sewerage services provider” has the meaning given in section 6(4) of Water Services etc. (Scotland) Act 2005 (asp 3), “water services provider” has the meaning given in section 6(2) of the Water Services etc. (Scotland) Act 2005.

Complaints about water services and sewerage services providers

131

In the Water Services etc. (Scotland) Act 2005 (asp 3), after section 11 insert—

(11A) (1) Subsections (2) to (4) apply where a water services provider or, as the case may be, a sewerage services provider (“the provider”) has requested (in writing) that the Scottish Public Services Ombudsman (“the Ombudsman”) investigate complaints made about the provider by occupiers of premises served by the provider. (2) Subject to subsection (4), the Scottish Public Services Ombudsman Act 2002 applies to such complaints as it applies to complaints made under that Act about a listed authority. (3) For the purposes of subsection (2), the provider is to be treated as a listed authority and the complainer as the person aggrieved. (4) Paragraph 7 of schedule 4 to the Scottish Public Services Ombudsman Act 2002 (Ombudsman not to investigate contractual or commercial transactions relating to a listed authority) does not apply. (5) Subsections (6) to (9) apply where— (a) the provider has— (i) requested (in writing) that the Ombudsman may not investigate any new complaints relating to the provider, (ii) sent a copy of that request to the Commission, and (b) the Commission has agreed to that request and notified the Ombudsman accordingly. (6) The Ombudsman may not investigate any new complaints relating to the provider from the date that the Ombudsman receives notification under subsection (5)(b). (7) The Ombudsman is to continue investigating any undetermined complaints about the provider which have been made to the Ombudsman prior to the Ombudsman's receipt of notification under subsection (5)(b). (8) For the purpose of enabling an undetermined complaint to continue to be dealt with, subsections (2) and (3) continue to apply and have effect as they applied and had effect immediately before the Ombudsman received notification under subsection (5)(b). (9) For the purpose of subsection (7), a complaint is determined by the Ombudsman if the Ombudsman— (a) has decided to conduct an investigation in relation to the complaint and that investigation is concluded, or (b) has decided not to conduct an investigation in relation to the complaint.

General

Ancillary provision

132

(1) The Scottish Ministers may by order make such consequential, supplemental, incidental, transitional, transitory or saving provision as they consider necessary or expedient for the purposes of, or in consequence of, or for the purposes of giving full effect to, any provision of this Act.

(2) An order under this section may modify any enactment, instrument or document.

Orders and regulations: Parts 8 and 10

133

(1) Any power conferred by Part 8 or this Part on the Scottish Ministers to make an order or regulations—

(a) must be exercised by statutory instrument,

(b) except an order under section 134(7), includes power to make such consequential, supplemental, incidental, transitional, transitory or saving provision as the Scottish Ministers think necessary or expedient,

(2) No—

(a) order is to be made under section 115(9),

(b) regulations are to be made under section 117,

(c) order is to be made under section 132 containing provisions which add to, omit or replace any part of the text of an Act,

(d) order is to be made under section 134(4),

unless a draft of the statutory instrument containing the order or regulations has been laid before, and approved by resolution of, the Parliament.

(3) Any other statutory instrument containing an order under Part 8 or this Part (except an order under section 134(7)) is subject to annulment in pursuance of a resolution of the Parliament.

Short title and commencement

134

(1) This Act may be cited as the Public Services Reform (Scotland) Act 2010.

(2) Sections 103, 109, 132 and 133 and this section come into force on Royal Assent.

(3) Sections 14 to 30 and schedules 5, 6 and 7 cease to have effect 5 years after the date on which those sections and schedules (or the last of them) come into force.

(4) But the Scottish Ministers may by order extend, or (on one or more occasion) further extend, the period for which those sections and schedules have effect.

(5) An order made under subsection (4)—

(a) must be made before the end of the period referred to in that subsection, and

(b) has the effect of extending, or further extending, that period for the period of 5 years beginning with the day the order is made.

(6) Where, by virtue of subsection (3) (or that subsection read with subsection (4)) sections 14 to 30 and schedules 5 to 7 cease to have effect, that repeal does not affect any order made under section 14 or 17(1).

(7) The remaining provisions of this Act come into force on such day as the Scottish Ministers may by order appoint.

(8) An order bringing into force section 3, 130 or 131 or schedule 2 or 3 may not be made before the expiry of the period of 12 months beginning with Royal Assent.

SCHEDULE 1

Natural Heritage (Scotland) Act 1991 (c. 28)

1

The Natural Heritage (Scotland) Act 1991 is amended as follows.

2

In section 1 (establishment of Scottish Natural Heritage)—

(a) in subsection (1), after “be” where it third occurs insert—

(a) in relation to natural heritage, those specified in subsection (1A) below, (b) in relation to deer, those specified in section 1(1) of the Deer (Scotland) Act 1996 (c. 58). (1A) SNH's general aims and purposes in relation to natural heritage are—

(b) after subsection (3) insert—

(4) In this Act, “natural heritage functions”, in relation to SNH, does not include the functions in relation to deer conferred on it by or under the Deer (Scotland) Act 1996 (c. 58) or any other enactment other than one in this Act.

3

In section 2 (general functions of SNH), in subsection (1)—

(a) in paragraph (b), after “its” where it second occurs insert “ natural heritage ”,

(b) in paragraph (c)—

(i) for “research”, where it first and second occurs, substitute “ any research, inquiry or investigation ”,

(ii) after “its” where it second and third occurs insert “ natural heritage ”,

(iii) for “itself” substitute “ , inquiry or investigation itself or in collaboration with any other person ”.

4

In section 3 (duty to take account of certain matters), in subsection (1), after “its” insert “ natural heritage ”.

Deer (Scotland) Act 1996 (c. 58)

5

The Deer (Scotland) Act 1996 is amended as follows.

6

For “the Commission” and “the Commission's”, wherever those words occur (except in sections 24 and 27 and in the entry relating to section 24(b) in Schedule 3), substitute respectively “ SNH ” and “ SNH's ”.

7

For the title of Part 1 substitute “ Scottish Natural Heritage's deer functions ”.

8

(1) Section 1 (the Deer Commission for Scotland) is amended as follows.

(2) In subsection (1)—

(a) for the words from the beginning to “shall” where it second occurs substitute “ Scottish Natural Heritage (in this Act referred to as “SNH”) has the following general aims and purposes in relation to deer ”,

(b) in paragraph (a), after “Act,” insert “ to ”,

(3) After subsection (1) insert—

(1A) In this Act references to SNH's deer functions are to the functions relating to deer conferred on it by or under this Act or any other enactment.

(4) In subsection (2), for “their” substitute “ its deer ”.

(5) Subsections (3) to (7) are repealed.

9

In section 2 (advice and annual reports)—

(a) in subsection (1)(a), for “them” substitute “ it ”,

(b) subsections (2) and (3) are repealed.

10

In section 3 (power to facilitate exercise of functions)—

(a) in subsection (1), before “functions” insert “ deer ”,

(b) in subsection (2), for “their” substitute “ its ”.

11

In section 4 (appointment of panels)—

(a) in subsection (1), for “they consider” insert “ it considers ”,

(b) in subsection (2)—

(i) for “they think” substitute “ it thinks ”,

(ii) for “their” substitute “ its ”,

(i) for “have” substitute “ has ”,

(ii) for “they” substitute “ it ”,

(d) in subsection (6), before “functions” insert “ deer ”.

12

In section 5 (close seasons)—

(a) in subsection (3), for “they” in both places substitute “ it ”,

(b) in subsection (4), for “have” substitute “ has ”,

13

In section 7 (control agreements)—

(a) in subsection (1)—

(i) for “are” where it first occurs substitute “ is ”,

(ii) for “they” substitute “ it ”,

(b) in subsection (3), for “they” substitute “ it ”,

(i) for “they have” substitute “ it has ”,

(ii) for “consider” substitute “ considers ”.

14

In section 8 (control schemes)—

(a) in subsection (1)—

(i) for “are” where it first occurs substitute “ is ”,

(ii) for “they” where it first occurs substitute “ it ”,

(iii) for “they consider” substitute “ it considers ”,

(b) in subsection (8)—

(i) for “are” in both places substitute “ is ”,

(ii) for “they” in both places substitute “ it ”.

15

In section 9 (recovery of control scheme expenses)—

(a) in subsection (1)—

(i) for “their” substitute “ its ”,

(ii) for “them” substitute “ it ”,

(b) in subsections (2) and (5), for “their” substitute “ its ”.

16

In section 10 (emergency measures)—

(a) in subsection (1)—

(i) for “are” where it first occurs substitute “ is ”,

(ii) in paragraph (b), for “their” substitute “ its ”,

(b) in subsection (2), for “are” substitute “ is ”,

(d) in subsection (4), for “their” substitute “ its ”,

(e) in subsection (5), for “them” substitute “ it ”,

(f) in subsection (7)—

(i) for “intend” substitute “ intends ”,

(ii) for “are” substitute “ is ”,

(iii) for “they” where it first occurs substitute “ it ”,

(iv) for “their” substitute “ its ”,

(v) for “they consider” substitute “ it considers ”,

(g) in subsection (8), for “their” insert “ its ”.

17

In section 11 (application of section 10 in relation to natural heritage), for “are” where it first and third occurs substitute “ is ”.

18

In section 12 (power to provide services and equipment etc.)—

(a) in subsection (3), for “decide” substitute “ decides ”,

(b) in subsection (4), for “them” substitute “ it ”.

19

In section 15 (power to enter on land), in subsection (3)(b), for “their” substitute “ its ”.

20

In section 16 (service of notices), in subsection (5), for “their” substitute “ its ”.

21

In section 18 (taking or killing deer at night), in subsection (2), for “they are” substitute “ it is ”.

22

In section 37 (restrictions on granting certain authorisations)—

(a) in subsection (1), for “they are” substitute “ it is ”,

(b) in subsection (4), for “think” substitute “ thinks ”,

23

In section 39 (disposal of deer killed under authority), for “their” substitute “ its ”.

24

In section 40 (returns of number of deer killed), in subsection (1), for “their” substitute “ its deer ”.

25

Section 46 (financial provisions) is repealed.

26

(1) Schedule 1 (Deer Commission for Scotland: supplementary provisions) is repealed.

(2) Despite the repeal of paragraph 4 of Schedule 1, that paragraph continues to have effect in relation to the persons who were members of the Commission immediately before the date when section 1 comes into force.

27

In Schedule 2 (control schemes), in paragraph 1—

(a) for “decide” substitute “ decides ”,

(b) for “they” substitute “ it ”.

Ethical Standards in Public Life etc. (Scotland) Act 2000 (asp 7)

28

In schedule 3 to the Ethical Standards in Public Life etc. (Scotland) Act 2000 (devolved public bodies), the entry relating to the Deer Commission for Scotland is repealed.

Scottish Public Services Ombudsman Act 2002 (asp 11)

29

In schedule 2 to the Scottish Public Services Ombudsman Act 2002 (listed authorities), in Part 2, the entry relating to the Deer Commission for Scotland is repealed.

Freedom of Information (Scotland) Act 2002 (asp 13)

30

In schedule 1 to the Freedom of Information (Scotland) Act 2002 (Scottish public authorities), in Part 7, the entry relating to the Deer Commission for Scotland is repealed.

Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4)

31

In schedule 2 to the Public Appointments and Public Bodies etc. (Scotland) Act 2003 (the specified authorities), the entry relating to the Deer Commission for Scotland is repealed.

SCHEDULE 2

Part 1 — Amendments

Water Industry (Scotland) Act 2002 (asp 3)

1

The Water Industry (Scotland) Act 2002 is amended as follows.

2

After section 2 (Water Customer Consultation Panels) insert—

(2A) (1) This section applies where the National Consumer Council (“the Council”) has exercised a function under section 8(1) of the Consumers, Estate Agents and Redress Act 2007 (c. 17) (representative functions) in relation to the activities of Scottish Water. (2) The persons listed in subsection (4) must have regard to any advice, information, proposal or representation made to them by the Council under section 8(1) of that Act. (3) Any persons listed in subsection (4) to whom a proposal is made under section 8(1)(b) of that Act must, within 6 months of receipt, publish a summary of their responses to the proposal. (4) The persons are— (a) the Scottish Ministers, (b) Scottish Water, (c) the Water Industry Commission, (d) the Drinking Water Quality Regulator for Scotland, (e) the Scottish Environment Protection Agency.

3

In section 4 (power of the Commission to require information) after subsection (3) insert—

(4) Scottish Water must comply with any direction given to it by the Commission under section 25(5) of the Consumers, Estate Agents and Redress Act 2007 (enforcement by regulator of notice to provide the National Consumer Council with information).

4

In section 5 (annual reports by, and information from, the Commission), in subsection (2)—

(a) in paragraph (a)(i), for “representations made to it by a Customer Panel” substitute “ advice, information or representation made to it by the National Consumer Council under section 8(1)(a) or (c) of the Consumers, Estate Agents and Redress Act 2007 (representative functions) ”,

(b) in paragraph (a)(ii), for “recommendations made to it under section 2(4)” substitute “ proposals made to it under section 8(1)(b) of that Act ”,

(i) after “such” insert “ advice, information, proposal or ”,

(ii) the words “or recommendation” are repealed.

5

In section 6 (funding of the Commission), after subsection (2) insert—

(2A) Scottish Water must make to the National Consumer Council, in respect of the Council's expenses (as respects its activities relating to Scottish Water), payments of such amounts, and at such times, as the Scottish Ministers may direct. (2B) Before making a direction under subsection (2A), the Scottish Ministers must consult the Council.

6

In the title to section 6 (funding of the Commission), after “Commission” insert “ and the National Consumer Council ”.

7

In the title to Part 1 (Water Industry Commission and Customer Panels), for “Customer Panels” substitute “ the representation of consumers ”.

8

In section 27 (approval of customer standards code)—

(a) in subsection (1), for “each Water Customer Consultation Panel” substitute “ the National Consumer Council ”,

(b) in subsection (4), for “each Water Customer Consultation Panel” substitute “ the National Consumer Council ”.

9

In section 28 (consultation code), in subsection (3)(a)—

(a) for “each Water Customer Consultation Panel” substitute “ the National Consumer Council ”,

(b) for “any Panel” substitute “ the Council ”.

10

In section 29B (determination of maximum charges), in subsection (4)(a), for sub-paragraph (iii) substitute—

(iii) the National Consumer Council,

11

In section 29D(5) (statements regarding charges), for paragraph (b) substitute—

(b) the National Consumer Council,

12

In section 56A (directions may set objectives), in subsection (4), for the words “Convener” to “whole)” substitute “ National Consumer Council ”.

13

In section 57 (information and reports), in subsection (6)(a), for “Convener of the Water Customer Consultation Panels” substitute “ National Consumer Council ”.

Water Services etc. (Scotland) Act 2005 (asp 3)

14

In section 19 of the Water Services etc. (Scotland) Act 2005 (disconnections code), in subsection (4), for paragraph (c) substitute—

(c) the National Consumer Council;

Consumers, Estate Agents and Redress Act 2007 (c. 17)

15

The Consumers, Estate Agents and Redress Act 2007 is amended as follows.

16

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

17

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

18

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

19

In section 24(9) (provision of information to the Council), after paragraph (c) insert—

(ca) the Water Industry Commission for Scotland;

20

In section 25 (enforcement by regulator of Council notice requiring the provision of information), at the appropriate place in the table in subsection (3) insert—

Scottish Water.	The Water Industry Commission for Scotland.

Part 2 — Repeals

21

The enactments referred to in the first column of the following table are repealed to the extent specified in the second column.

SCHEDULE 3

Transfer of staff

1

With effect from the date on which section 3 comes into force, any person—

(a) employed by Waterwatch Scotland Limited, and

(b) who is, in the opinion of the Convener of the Water Customer Consultation Panels (in this schedule referred to as “the Convener”), primarily involved in assisting with the exercise of the functions of the Convener described in section 6A of the Water Industry (Scotland) Act 2002 (Convener to investigate complaints),

is transferred to the employment of the Scottish Public Services Ombudsman.

2

(1) With effect from the date on which section 3 comes into force, any person—

(a) employed by Waterwatch Scotland Limited, and

(b) who is, in the opinion of the Convener, primarily involved in assisting with the exercise of the representative functions of the Convener,

is transferred to the employment of the National Consumer Council.

(2) For the purposes of sub-paragraph (1), the “representative functions” of the Convener are those functions relating to the representation of the views and interests of persons whose premises—

(a) are connected to the public water supply system or the public sewerage system (within the meaning of Part 2 of the Water Services etc. (Scotland) Act 2005 (asp 3)) or both, or

(b) might reasonably become connected to either or both of those systems.

3

(1) This paragraph applies to any person who—

(a) is (immediately before section 3 comes into force) employed by Waterwatch Scotland Limited, and

(b) in the opinion of the Convener, does not fall within the description of a person whose employment is to be transferred by virtue of paragraph 1 or 2(1).

(2) The Convener must specify whether the person's employment is to transfer to the Scottish Public Services Ombudsman or to the National Consumer Council.

(3) With effect from the date on which section 3 comes into force, the person is transferred to the employment of the employer specified by the Convener under sub-paragraph (2).

(4) For the purposes of paragraphs 4 to 6—

(a) a person who is transferred to the employment of the Scottish Public Service Ombudsman by virtue of this paragraph is to be treated as though the transfer was by virtue of paragraph 1, and

(b) a person who is transferred to the employment of the National Consumer Council by virtue of this paragraph is to be treated as though the transfer was by virtue of paragraph 2(1).

4

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

(a) is not terminated by the transfer, and

(b) has effect from the date of transfer as if originally made between the transferred person and the Scottish Public Services Ombudsman or, as the case may be, the National Consumer Council.

5

Without prejudice to paragraph 4, where a person is transferred—

(a) by virtue of paragraph 1—

(i) all the rights, powers, duties and liabilities of Waterwatch Scotland Limited under or in connection with the person's contract of employment are transferred to the Scottish Public Services Ombudsman on the date of the transfer, and

(ii) anything done before that date by or in relation to Waterwatch Scotland Limited in respect of the person or the contract is to be treated from that date as having been done by or in relation to the Scottish Public Services Ombudsman,

(b) by virtue of paragraph 2(1)—

(i) all the rights, powers, duties and liabilities of Waterwatch Scotland Limited under or in connection with the person's contract of employment are transferred to the National Consumer Council on the date of the transfer, and

(ii) anything done before that date by or in relation to Waterwatch Scotland Limited in respect of the person or the contract is to be treated from that date as having been done by or in relation to the National Consumer Council.

6

Paragraphs 1 to 5 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 paragraphs.

Transfer of property etc.

7

(1) With effect from the date on which section 3(1) comes into force all property (including rights) and liabilities of Waterwatch Scotland Limited held, used or, as the case may be, incurred by Waterwatch Scotland Limited for the purposes of or in connection with the exercise of the Convener's functions under section 6A of the Water Industry (Scotland) Act 2002, are transferred to and vest in the Scottish Public Services Ombudsman.

(2) With effect from the date on which section 3(3) comes into force all property (including rights) and liabilities of Waterwatch Scotland Limited held, used or, as the case may be, incurred by Waterwatch Scotland Limited for the purposes of or in connection with the exercise of functions other than those of the Convener mentioned in sub-paragraph (1) are transferred to and vest in the National Consumer Council.

Transfer of undetermined complaints

8

(1) This paragraph applies in relation to any complaint (“an undetermined complaint”)—

(a) made or referred to the Convener under section 6A of the Water Industry (Scotland) Act 2002,

(b) which has not been determined by the Convener before the date on which section 3(1) comes into force, and

(c) which cannot otherwise be determined (but for sub-paragraph (2)) by the Scottish Public Services Ombudsman (“the Ombudsman”) under the Scottish Public Services Ombudsman Act 2002.

(2) For the purpose of enabling an undetermined complaint to continue to be dealt with, section 6A of the Water Industry (Scotland) Act 2002 continues in force despite its repeal and has effect as it had effect immediately before its repeal but—

(a) as if any reference in it to the Convener were a reference to the Ombudsman, and

(b) subject to such further modifications (if any) as may be made by virtue of section 132.

(3) For the purposes of this paragraph a complaint is determined by the Convener if the Convener—

(a) has decided to conduct an investigation in relation to the complaint and that investigation is concluded, or

(b) has decided not to investigate in relation to the complaint.

(4) Nothing in this paragraph affects the validity of anything done (or having effect as if done) by or in relation to an undetermined complaint by the Convener under the Water Industry (Scotland) Act 2002 before the repeal of section 6A of that Act by this Act.

(5) Anything (including legal proceedings) which, at that time, is in the process of being done by or in relation to the Convener may, so far as it relates to an undetermined complaint, be continued by or in relation to the Ombudsman.

(6) Anything done (or having effect as if done) by or in relation to the Convener in relation to an undetermined complaint has effect as if done by or in relation to the Ombudsman in so far as that is required for continuing its effect on or after that time.

SCHEDULE 4

Part 1 — Amendments

Debtors (Scotland) Act 1987 (c. 18)

1

Part 5 of the Debtors (Scotland) Act 1987 is amended as follows.

2

In section 75 (regulation of organisation, training, conduct and procedure of officers of court)—

(a) in subsection (1)—

(i) after paragraph (f) insert—

(fa) regulate their conduct in exercising their extra-official functions;

(ii) after paragraph (h) insert—

(ha) prescribe the procedure in relation to an appeal under section 82 of this Act;

(iii) in paragraph (j) for the words “for the keeping of accounts by them and the” substitute “ about their accounts and finances including the keeping and ”,

(iv) in paragraph (m) for “necessary or proper” substitute “ appropriate ”,

(b) in subsection (3) after “to” insert “ , or revoke, ”.

3

In section 76 (Advisory Council on Messengers-at Arms and Sheriff Officers)—

(a) in subsection (2)(a)—

(i) the word “and” immediately following sub-paragraph (iii) is repealed,

(ii) after sub-paragraph (iv) add

; and (v) such other persons (not falling within sub-paragraphs (i) to (iv) above) as the Lord President considers appropriate.

(b) in subsection (5)—

(i) after “under” insert “ sub-paragraphs (i) to (iv) of ”,

(ii) for “that paragraph” substitute “ those sub-paragraphs. ”,

4

In section 79 (investigation of alleged misconduct)—

(a) in subsection (1)—

(i) in paragraph (a) for “78(3) of this Act” substitute “ 66(3) of the Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3) (in this Part “the 2007 Act”) ”,

(ii) the word “or” immediately following paragraph (b) is repealed,

(iii) after that paragraph insert—

(ba) details of a complaint about an officer of court are sent to the Lord President of the Court of Session or a sheriff principal under section 64 of the 2007 Act;

(iv) after paragraph (c) add

; or (d) any judge of the Court of Session, or a sheriff principal— (i) becomes aware (whether by notification under subsection (1) of section 62 of the 2007 Act or otherwise) that an event mentioned in subsection (2) of that section has occurred in respect of an officer of court; and (ii) considers that the occurrence of that event or the circumstances surrounding it, although falling short of misconduct and not involving the commission of an offence, gives rise to concerns about the officer, the officer's exercise of official functions or the officer's undertaking of extra-official activities.

(b) subsection (7) is repealed,

(i) the words from “conduct” to the end of that subsection become paragraph (a) of the subsection,

(ii) after that paragraph add—

(b) failure to notify the Lord President of the Court of Session or the sheriff principal under subsection (1) of section 62 of the 2007 Act of the occurrence of an event mentioned in subsection (2) of that section; (c) failure to provide information mentioned in subsection (1A) of section 63 of that Act required by virtue of regulations made under subsection (1) of that section; (d) failure to comply with any code of practice or revised code of practice published under section 63A of that Act; and (e) where a fee is due by virtue of rules made under subsection (1) of section 65A of that Act and a date as mentioned in subsection (2)(a) of that section has been specified by the rules, failure to pay the fee within 3 months of that date.

5

In section 80 (courts' powers in relation to offences or misconduct)—

(a) in subsection (1)—

(i) the words from “an” to the end of that subsection become paragraph (a) of the subsection,

(ii) after that paragraph add—

(b) an order mentioned in paragraph (aa) or (c) of subsection (5) below.

(b) in subsection (2)—

(i) the words from “an” to the end of that subsection become paragraph (a) of the subsection,

(ii) after that paragraph add—

(b) an order in relation to the sheriff officer of a kind mentioned in paragraph (aa) or (c) of subsection (5) below.

(3A) Where— (a) a solicitor is appointed to investigate a matter in respect of a messenger-at-arms under section 79(2) of this Act; or (b) the Court of Session becomes aware that a messenger-at-arms has been charged with an offence, the Court of Session may make an order finding that the messenger-at-arms should be suspended from practice for such period as may be specified in the order or in an order extending such period. (3B) Where— (a) a solicitor is appointed to investigate a matter in respect of a sheriff officer under section 79(2) of this Act; or (b) the sheriff principal from whom a sheriff officer holds a commission becomes aware that the sheriff officer has been charged with an offence, the sheriff principal may make an order suspending the officer from practice for such period as may be specified in the order or in an order extending such period in that sheriffdom.

(d) after subsection (4) insert—

(4A) Where the Court of Session at the end of disciplinary proceedings brought under subsection (3) of section 79 of this Act is satisfied that a concern mentioned in subsection (1)(d)(ii) of that section in relation to a messenger-at-arms is founded, the Court of Session may make an order under paragraph (a) or (aa) of subsection (5) below.

(e) in subsection (5) after paragraph (a) insert—

(aa) an order restricting— (i) the functions which the messenger-at-arms may exercise; or (ii) the activities which the messenger-at-arms may undertake, for such period as may be specified in the order;

(f) after subsection (6) insert—

(6A) Where the sheriff principal at the end of disciplinary proceedings brought under subsection (3) of section 79 of this Act is satisfied that a concern mentioned in subsection (1)(d)(ii) of that section in relation to a sheriff officer is founded, the sheriff principal may make, in relation to the sheriff officer, an order— (a) of a kind mentioned in paragraph (aa) of subsection (5) above; or (b) under paragraph (a) of subsection (7) below.

(g) in subsection (7)(b) for “subsection (5)(b)” substitute “ subsection (5)(aa), (b), ”.

6

In section 81 (provisions supplementary to section 80)—

(a) in subsection (1)—

(i) for “section 80(1), (4)” substitute “ section 80(1)(a), (3A), (4), (4A) ”,

(ii) after paragraph (b) add—

(c) the professional association designated under section 63(1) of the 2007 Act.

(b) in subsection (2)—

(i) for “section 80(2), (6)” substitute “ section 80(2)(a), (3B), (6), (6A) ”,

(ii) the word “and” immediately following paragraph (a) is repealed,

(iii) after paragraph (b) add

, and (c) the professional association designated under section 63(1) of the 2007 Act.

(i) for “section 80(1), (2)” substitute “ section 80(1)(a), (2)(a), (3A), (3B) ”,

(ii) after “thereof” insert “ or of an order under subsection (4A) or (6A) of that section specified respectively in subsection (5)(a) or (7)(a) thereof ”.

7

(1) In section 82 (appeals from certain decisions)—

(a) the words from “An” to “Act” become subsection (1) of that section,

(b) after “under” insert “ section 77(1), ”,

(d) the words from “but” to the end of the section are repealed,

(e) after subsection (1) (created under paragraph (a)) insert—

(2) The decision of the Inner House on an appeal under subsection (1) shall be final.

(2) In the sidenote to section 82, for “79(5) and 80” substitute “ 77, 79 and 80 ”.

8

After section 86 insert—

(86A) In this Part, any reference to an admission in writing includes a reference to that admission being an electronic communication (within the meaning given by section 15(1) of the Electronic Communications Act 2000 (c. 7)).

Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3)

9

The Bankruptcy and Diligence etc. (Scotland) Act 2007 is amended as follows.

10

For the title of Part 3 (“Enforcement”) substitute “ Officers of court ”.

11

(1) In section 51 (information and annual report)—

(a) subsection (1) is repealed,

(b) in subsection (2) for “The Commission” substitute “ The Advisory Council on Messengers-at-Arms and Sheriff Officers (the “Advisory Council”) ”,

(i) paragraph (a) is repealed,

(ii) in paragraph (b) for “judicial officers” substitute “ officers of court ”,

(iii) in that paragraph for “Commission” substitute “ Advisory Council ”,

(d) in subsection (4)—

(i) for “Commission” substitute “ Advisory Council ”,

(ii) for “a judicial officer” substitute “ the professional association designated by regulations under section 63(1)(a) ”,

(iii) for “it” substitute “ provided by virtue of regulations under section 63(1A) which the Advisory Council ”,

(e) in subsection (5) for “Commission” substitute “ Advisory Council ”,

(f) subsection (6) is repealed.

(2) In the title to section 51 for the words “Information and” substitute “ Advisory Council's ”.

(3) Immediately above section 51 insert the italic heading “ Advisory Council on Messengers-at-Arms and Sheriff Officers ”.

12

In section 53 (published information not to enable identification)—

(a) paragraph (b) and the word “or” immediately preceding it are repealed,

(b) for “judicial officers” substitute “ officers of court ”.

13

(1) In section 61 (regulation of judicial officers)—

(a) in subsections (1) and (2)(a) for “judicial officers” substitute “ officers of court ”,

(b) in subsection (2) paragraph (d) is repealed,

— (a) the Lord President of the Court of Session; and (b) each sheriff principal.

(2) In the title to section 61 and the italic heading immediately preceding it for “judicial officers” substitute “ officers of court ”.

14

(1) In section 62 (duty to notify Commission of bankruptcy etc.)—

(a) in subsection (1)—

(i) for “a judicial officer” substitute “ an officer of court ”,

(ii) for “notify the Commission in writing of it” substitute—

(a) in the case of a messenger-at-arms, notify the Lord President of the Court of Session in writing of the event; (b) in the case of a sheriff officer, notify the sheriff principal from whom the officer holds a commission in writing of the event.

(b) in subsection (2)(a), (f) and (g) for “judicial officer” substitute “ officer of court ”.

(2) In the title to section 62 for “Commission” substitute “ Lord President and sheriff principal ”.

15

(1) In section 63 (judicial officers' professional association)—

(a) in paragraph (a) of subsection (1)—

(i) after “association”, where it first occurs, insert “ (in this Part, the “professional association”) ”,

(ii) for “judicial officers” substitute “ officers of court ”,

(b) after subsection (1) insert—

(1A) Regulations under subsection (1) may require an officer of court to provide such information as the professional association reasonably considers necessary.

(a) the Lord President of the Court of Session; (aa) each sheriff principal;

(d) in subsection (3) for “a judicial officer” substitute “ an officer of court ”.

(2) In the title to section 63 and the italic heading immediately preceding it for “Judicial officers'” substitute “ Officers of court's ”.

16

After section 63 insert—

(63A) (1) The professional association— (a) must prepare and publish a code of practice in relation to the functions of officers of court; and (b) may prepare and publish such a code in relation to the undertaking of activities by such officers. (2) The professional association may revise the whole or any part of a code published under this section. (3) Where a code or any part of a code is revised under subsection (2), the professional association— (a) in a case where the revision results in substantial changes, must publish the revised code; (b) in any other case, may publish the revised code. (4) The professional association must not publish a code of practice or a revised code of practice under this section without the prior approval of the Lord President of the Court of Session. (5) The professional association must send a copy of each code of practice published under this section to— (a) the Scottish Ministers; (b) the Lord President of the Court of Session; (c) each sheriff principal; and (d) each officer of court.

17

(1) In section 64 (duty of professional association to forward complaints to Commission)—

(a) for “a judicial officer” substitute “ an officer of court ”,

(b) for “to the Commission” substitute—

(a) to the Lord President of the Court of Session; (b) in the case of a complaint about a messenger-at-arms, to the sheriff principal from whom the messenger-at-arms holds a commission as a sheriff officer; and (c) in the case of a complaint about a sheriff officer, to the sheriff principal from whom the sheriff officer holds a commission.

(2) In the title to section 64 the words “to Commission” are repealed.

18

In section 65 (information from professional association)—

(a) for “Commission”, where it first occurs, substitute “ Lord President of the Court of Session or any sheriff principal ”,

(b) for “Commission”, where it second occurs, substitute “ Lord President or, as the case may be, sheriff principal ”,

(d) for paragraph (c) substitute—

(c) any disciplinary proceedings brought under section 79(3) of that Act.

19

After section 65 insert—

(65A) (1) The professional association may make rules requiring every officer of court holding a commission to pay an annual fee to the association. (2) Rules made under subsection (1) above may include provision— (a) specifying the date by which the fee must be paid each year; (b) specifying the manner in which it must be paid; and (c) about any other matters in relation to the fee that the professional association considers appropriate. (3) Rules under this section may be made only with the approval of the Lord President of the Court of Session.

20

(1) In section 66 (inspection of judicial officer)—

(a) in subsection (1)—

(i) for “Commission” substitute “ Lord President of the Court of Session or any sheriff principal ”,

(ii) for “a judicial officer” substitute “ an officer of court ”,

(b) in subsection (2)—

(i) for “Commission” substitute “ Lord President or, as the case may be, the sheriff principal ”,

(ii) for “judicial officer” substitute “ officer of court ”,

(d) in subsection (4) for “Commission” substitute “ Scottish Ministers ”.

(2) In the title to section 66 for “judicial officer” substitute “ officer of court ”.

(3) In the italic heading immediately preceding section 66 for “judicial officers” substitute “ officers of court ”.

21

(1) In section 75 (judicial officer's action void where officer has interest)—

(a) in subsections (1), (4)(a) and (7) for “a judicial officer” substitute “ an officer of court ”,

(b) in subsection (2), for “A judicial officer” substitute “ An officer of court ”,

(d) in subsection (5), for “a judicial officer's” substitute “ an officer of court's ”.

(2) In the title to section 75 for “Judicial officer's” substitute “ Officer of court's ”.

22

In section 77 (effect of code of practice)—

(a) in subsection (1)—

(i) for “A judicial officer” substitute “ An officer of court ”,

(ii) for the words “55 or 56” substitute “ 63A ”,

(b) in subsection (2), for “a judicial officer” substitute “ an officer of court ”,

(b) a relevant court (within the meaning of subsection (8) of section 79 of the 1987 Act (investigation of alleged misconduct)) in disciplinary proceedings under that section;

23

In section 78 (electronic publications and communications) the words “admission or representation”, in both places where they occur, are repealed.

24

(1) In the provisions listed in sub-paragraph (2) for “judicial officer” substitute “ officer of court ”.

(2) The provisions referred to in sub-paragraph (1) are sections 83(5), 176(2), 177(1) and (3) to (8), 178(1) to (4), 179(1) to (4), 180(1), 181(1)(b) and (4), 182(1), (2), (4) and (6)(b), 183(4)(b), (11)(b) and (12)(b), 184(1), (2), (4) and (5)(c), 185(2)(b), (4)(b), (5) and (7), 186(2)(b), (3)(b) and (5)(c), 187(1)(b), (2)(a)(ii) and (3), 188(4), 189(1), (2)(a), (3)(b), (5) and (6), 191(2)(b)(i) and (4), 216(3) and 217(2).

25

In—

(a) sections 117(4), 121(1), 139(1)(c), 157(1)(b) and 183(1)(a), and

(b) paragraph 1(j) of schedule 3,

for “a judicial officer” substitute “ an officer of court ”.

26

In section 128(1) (interpretation of Chapter 2 of Part 4), after the definition of “notice of land attachment” insert—

“officer of court” means the officer of court appointed by the creditor;

27

In section 145(1) (interpretation of Chapter 3 of Part 4), after the definition of “dwellinghouse” insert—

“officer of court” means the officer of court appointed by the creditor;

28

In section 178(1) (presumption of ownership), for “A judicial officer” substitute “ An officer of court ”.

29

In section 198(1) (interpretation of Part 8), after the definition of “money” insert—

“officer of court” means the officer of court appointed by the creditor;

30

In section 221 (interpretation), after the definition of “electronic communication” insert—

“officer of court” means a messenger-at-arms or a sheriff officer;

31

In schedule 5 (minor and consequential amendments), in sub-sub-paragraph (c) of paragraph 7(2), for the words from “for” to the end of the sub-sub-paragraph, substitute “for “law agent” substitute “ solicitor ””.

32

In Part 1 of schedule 6 (repeals and revocations), in the entry relating to the Debt Arrangement and Attachment (Scotland) Act 2002 (asp 17), before the word “Schedule” in the second column, insert “ In ”.

Part 2 — Repeals

33

The enactments mentioned in the first column of the following table are repealed to the extent specified in the second column.

SCHEDULE 5

Scottish Administration

Scottish public authorities with mixed functions or no reserved functions

Cross-border public authorities

SCHEDULE 6

SCHEDULE 7

Deregulation and Contracting Out Act 1994 (c. 40)

1

(1) The Deregulation and Contracting Out Act 1994 is amended as follows.

(2) Sections 1 to 5 and Schedule 1 are repealed.

(3) In section 6 (model provisions with respect to appeals), in subsection (7)—

(a) in the definition of “enactment”—

(i) the word “and” is omitted,

(ii) at the end insert “ , an enactment contained in an Act of the Scottish Parliament (whenever passed) and an enactment contained in an instrument made under an Act of the Scottish Parliament (whenever made) ”,

(b) for the definition of “enforcement action” substitute—

“enforcement action” means— (a) in relation to any restriction, requirement or condition, any action taken with a view to or in connection with imposing any sanction (whether criminal or otherwise) for failure to observe or comply with it; and (b) in relation to a restriction, requirement or condition relating to the grant or renewal of licences, includes any refusal to grant, renew or vary a licence, the imposition of any condition on the grant or renewal of a licence and any variation or revocation of a licence;

“interested person” means— (a) the person against whom enforcement action may be or has been taken; (b) any other person who will or may be required to meet, or to make a significant contribution towards, the cost of observing the restriction or complying with the requirement or condition; or (c) where the enforcement action which may be or has been taken relates specifically to goods or services which are to be or have been supplied by a person other than the one against whom enforcement action may be or has been taken, that person;

(4) Sub-paragraph (2) does not affect the continuation in force of any order under section 1 of that Act which was made on or before the day on which that sub-paragraph comes into force.

Criminal Procedure (Consequential Provisions) (Scotland) Act 1995 (c. 40)

2

In Schedule 4 to the Criminal Procedure (Consequential Provisions) (Scotland) Act 1995 (minor and consequential amendments), paragraph 96 is repealed.

SCHEDULE 8

SCHEDULE 9

Status

1

(1) Creative Scotland is a body corporate.

(2) Creative Scotland is not to be regarded as a servant or agent of the Crown, or as having any status, immunity or privilege of the Crown, nor are its members or its employees to be regarded as civil servants.

(3) Creative Scotland's property is not to be regarded as property of, or held on behalf of, the Crown.

Membership of Creative Scotland

2

(1) Creative Scotland is to consist of the following members—

(a) a person appointed by the Scottish Ministers to chair Creative Scotland, and

(b) no fewer than 8 nor more than 14 other members appointed by the Scottish Ministers.

(2) The Scottish Ministers may by order made by statutory instrument amend sub-paragraph (1)(b) by substituting for the minimum or maximum number of members for the time being specified there such other number as they think fit.

(3) A statutory instrument containing an order under sub-paragraph (2) is subject to annulment in pursuance of a resolution of the Scottish Parliament.

Terms of appointment etc.

3

(1) Each member of Creative Scotland is to be appointed for such period as the Scottish Ministers think fit.

(2) A member—

(a) holds and vacates office in accordance with the terms and conditions of appointment, but

(b) may, by written notice to the Scottish Ministers, resign office as a member.

(3) A person is, on ceasing to be a member, eligible for reappointment.

Removal of members

4

The Scottish Ministers may, by written notice, remove a member from office if they are satisfied that—

(a) the member—

(i) has been adjudged bankrupt,

(ii) has granted a trust deed for creditors or a composition contract,

(iii) has proposed a voluntary arrangement which has been approved,

(b) the member's estate has been sequestrated,

(c) the member has been absent from 3 consecutive meetings of Creative Scotland without the permission of Creative Scotland,

(d) the member is otherwise unfit or unable to discharge the functions of a member.

Disqualification from membership

5

A person is disqualified from appointment, and from holding office, as a member of Creative Scotland if that person is—

(a) a member of the Scottish Parliament,

(b) a member of the House of Commons,

Remuneration and allowances for members

6

Creative Scotland must pay to each of its members such—

(a) remuneration, and

(b) allowances and expenses,

as the Scottish Ministers may determine.

Chief executive and other employees

7

(1) Creative Scotland is to employ a chief executive.

(2) The chief executive may not be a member of Creative Scotland.

(3) The first chief executive employed by Creative Scotland is to be the person who, immediately before the coming into force of this paragraph, is the chief executive designate employed by Creative Scotland 2009 Limited; and that person is employed as chief executive until the term of appointment as chief executive designate of Creative Scotland 2009 Limited would have ended.

(4) But if there is no person employed by Creative Scotland 2009 Limited as chief executive designate immediately before the coming into force of this paragraph, the Scottish Ministers are to make the first appointment of the chief executive of Creative Scotland on such terms and conditions as the Scottish Ministers may determine.

(5) Each subsequent chief executive is, with the approval of the Scottish Ministers, to be appointed by Creative Scotland on such terms and conditions as Creative Scotland may, with such approval, determine.

(6) Creative Scotland may (subject to any directions given under sub-paragraph (7)) appoint such other employees on such terms and conditions as Creative Scotland may determine.

(7) The Scottish Ministers may give directions to Creative Scotland as regards—

(a) the appointment of employees under sub-paragraph (6), and

(b) the terms and conditions of their employment.

(8) Creative Scotland may, with the approval of the Scottish Ministers—

(a) pay or make arrangements for the payment,

(b) make payments or contributions towards the provision,

of such pensions, allowances or gratuities to or in respect of any person who is or has ceased to be an employee of Creative Scotland, as it may determine.

(9) The reference in sub-paragraph (8) to pensions, allowances and gratuities includes a reference to pensions, allowances and gratuities by way of compensation for loss of employment.

Committees

8

(1) Creative Scotland may establish committees for any purpose relating to its functions.

(2) Creative Scotland is to determine the composition of its committees.

(3) Creative Scotland may appoint persons who are not members of Creative Scotland to be members of a committee; but such persons are not entitled to vote at meetings of the committee.

(4) A committee of Creative Scotland is to comply with any directions given to it by Creative Scotland.

Procedure and meetings

9

(1) Creative Scotland may determine its own procedure and that of its committees, including a quorum for meetings.

(2) The validity of any proceedings of Creative Scotland, or any of its committees, is not affected by a vacancy in membership nor by any defect in the appointment of a member.

(3) Members of the Scottish Executive and persons authorised by the Scottish Ministers may attend and take part in meetings of Creative Scotland or any of its committees, but are not entitled to vote at such meetings.

General powers

10

(1) Creative Scotland may do anything which appears to be necessary or expedient for the purpose of, or in connection with, or which appears conducive to, the exercise of its functions.

(2) In particular, Creative Scotland may—

(a) engage in any business or undertaking,

(b) form, promote or acquire (whether alone or with others) companies (within the meaning of the Companies Act 2006 (c. 46)),

(d) enter into contracts,

(e) accept gifts of money and other property,

(f) invest sums not immediately required in relation to the exercise of its functions,

(g) undertake or execute any charitable trust,

(h) obtain advice or assistance from any person who, in Creative Scotland's opinion, is qualified to give it,

(i) commission research,

(j) with the consent of the Scottish Ministers—

(i) borrow money,

(ii) acquire and dispose of land,

(iii) establish or take part in the setting up of organisations having functions similar to those of Creative Scotland,

(iv) make charges for the provision of goods or advice or other services in such circumstances and of such amounts as Creative Scotland may determine.

(3) For the purposes of paragraph (g) of sub-paragraph (2), a trust is a charitable trust if all its purposes are within section 7(2) of the Charities and Trustee Investment (Scotland) Act 2005 (asp 10).

Delegation of functions

11

(1) Creative Scotland may, subject to sub-paragraphs (2) and (3), authorise—

(a) the chief executive,

(b) any other employee,

to exercise such of its functions, and to such extent, as it may determine.

(2) Creative Scotland may not authorise any of the following functions to be exercised by any other person—

(a) the approval of annual reports and accounts,

(b) the approval of any budget or other financial plan.

(3) Sub-paragraph (1) does not affect the responsibility of Creative Scotland for the exercise of its functions.

Location of office

12

Creative Scotland's determination of the location of its office premises is subject to the approval of the Scottish Ministers.

Accounts

13

(1) Creative Scotland must—

(a) keep proper accounts and accounting records,

(b) prepare in respect of each financial year a statement of accounts, and

and must do so in accordance with any directions the Scottish Ministers may give.

(2) Creative Scotland must send the statement of accounts to the Auditor General for Scotland for auditing.

Reports

14

(1) As soon as practicable after the end of each financial year, Creative Scotland must prepare a report which is—

(a) to provide information on the discharge of Creative Scotland's functions during that year, and

(b) to include a copy of the statement of accounts for that year audited by the Auditor General for Scotland.

(2) Creative Scotland must—

(a) publish the report,

(b) lay a copy of the report before the Scottish Parliament,

(3) Creative Scotland may publish such other reports and information on matters relevant to the functions of Creative Scotland as it considers appropriate.

SCHEDULE 10

Ethical Standards in Public Life etc. (Scotland) Act 2000 (asp 7)

1

In the Ethical Standards in Public Life etc. (Scotland) Act 2000, in schedule 3 (devolved public bodies)—

(a) after the entry relating to a community justice authority insert— “ Creative Scotland ”,

(b) the entry relating to the Scottish Arts Council is repealed.

Scottish Public Services Ombudsman Act 2002 (asp 11)

2

In the Scottish Public Services Ombudsman Act 2002, in schedule 2 (listed authorities)—

(a) after paragraph 21B insert—

(21C) Creative Scotland.

(b) paragraphs 36 and 50 are repealed.

Freedom of Information (Scotland) Act 2002 (asp 13)

3

In the Freedom of Information (Scotland) Act 2002, in schedule 1 (Scottish public authorities)—

(a) after paragraph 62B insert—

(62C) Creative Scotland.

(b) paragraphs 78 and 98 are repealed.

Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4)

4

In the Public Appointments and Public Bodies etc. (Scotland) Act 2003, in schedule 2 (specified authorities)—

(a) after the entry relating to the Bòrd na Gàidhlig insert— “ Creative Scotland ”,

(b) the entries relating to—

(i) the Scottish Arts Council, and

(ii) Scottish Screen,

are repealed.

SCHEDULE 11

Status

1

(1) Social Care and Social Work Improvement Scotland is a body corporate.

(2) SCSWIS is not to be regarded as a servant or agent of the Crown, or as having any status, immunity or privilege of the Crown, nor are its members or its employees to be regarded as civil servants.

(3) SCSWIS's property is not to be regarded as property of, or held on behalf of, the Crown.

Membership of SCSWIS

2

(1) SCSWIS is to consist of the following members—

(a) a person appointed by the Scottish Ministers to chair SCSWIS,

(b) the person appointed under paragraph 2(1)(a) of Schedule 5A to the National Health Service (Scotland) Act 1978 (c. 29) to chair Healthcare Improvement Scotland,

(c) the person appointed under paragraph 2 of schedule 2 to the Regulation of Care (Scotland) Act 2001 (asp 8) as convener of the Scottish Social Services Council, and

(d) no fewer than 9 nor more than 12 other members appointed by the Scottish Ministers.

(2) The Scottish Ministers may by order amend sub-paragraph (1)(d) by substituting for the minimum or maximum number of members for the time being specified there such other number as they think fit.

3

(1) In appointing members, the Scottish Ministers are to have regard to the desirability of including—

(a) persons who have experience of, and have shown capacity and capability in, the provision of any social service,

(b) persons who—

(i) use, or have used, any social service or services which prospectively are to become social services,

(ii) care for, or have cared for, such persons as are mentioned in sub-paragraph (i),

(c) persons who have such other skills, knowledge or experience as the Scottish Ministers consider to be relevant in relation to the exercise of SCSWIS's functions.

(2) In appointing members under paragraph 2(1)(d), the Scottish Ministers must appoint at least two persons—

(a) one of whom falls within sub-paragraph (i), and one of whom falls within sub-paragraph (ii), of sub-paragraph (1)(b) of this paragraph, or

(b) both of whom fall within either sub-paragraph (i), or sub-paragraph (ii), of sub-paragraph (1)(b) of this paragraph.

Terms of appointment etc.

4

(1) Each member of SCSWIS is to be appointed for such period as the Scottish Ministers think fit.

(2) A member—

(a) holds and vacates office in accordance with the terms and conditions of appointment, but

(b) may, by written notice to the Scottish Ministers, resign office as a member.

(3) A person is, on ceasing to be a member, eligible for reappointment.

Removal of members

5

The Scottish Ministers may, by written notice, remove a member from office if they are satisfied that—

(a) the member—

(i) has been adjudged bankrupt,

(ii) has granted a trust deed for creditors or a composition contract,

(iii) has proposed a voluntary arrangement which has been approved,

(b) the member's estate has been sequestrated,

(d) the member is otherwise unfit or unable to discharge the functions of a member.

Disqualification from membership

6

A person is disqualified from appointment, and from holding office, as a member of SCSWIS if that person is—

(a) a member of the Scottish Parliament,

(b) a member of the House of Commons,

Remuneration and allowances for members

7

SCSWIS must pay to each of its members such—

(a) remuneration, and

(b) allowances and expenses,

as the Scottish Ministers may determine.

Chief executive and other employees

8

(1) SCSWIS is to employ a chief executive.

(2) The chief executive may not be a member of SCSWIS.

(3) The Scottish Ministers are to make the first appointment of the chief executive on such terms and conditions as the Scottish Ministers may determine.

(4) Each subsequent chief executive is, with the approval of the Scottish Ministers, to be appointed by SCSWIS on such terms and conditions as SCSWIS may, with such approval, determine.

(5) SCSWIS may (subject to any directions given under sub-paragraph (6)) appoint such other employees on such terms and conditions as SCSWIS may determine.

(6) The Scottish Ministers may give directions to SCSWIS as regards—

(a) the appointment of employees under sub-paragraph (5), and

(b) the terms and conditions of their employment.

(7) SCSWIS may, with the approval of the Scottish Ministers—

(a) pay or make arrangements for the payment,

(b) make payments or contributions towards the provision,

of such pensions, allowances or gratuities to or in respect of any person who is or has ceased to be an employee of SCSWIS, as it may determine.

(8) The reference in sub-paragraph (7) to pensions, allowances and gratuities includes a reference to pensions, allowances and gratuities by way of compensation for loss of employment.

Committees

9

(1) SCSWIS may establish committees for any purpose relating to its functions.

(2) SCSWIS is to determine the composition of its committees.

(3) SCSWIS may appoint persons who are not members of SCSWIS to be members of a committee; but such persons are not entitled to vote at meetings of the committee.

(4) A committee of SCSWIS is to comply with any directions given to it by SCSWIS.

Procedure and meetings

10

(1) SCSWIS may determine its own procedure and that of its committees, including a quorum for meetings.

(2) The validity of any proceedings of SCSWIS, or any of its committees, is not affected by a vacancy in membership nor by any defect in the appointment of a member.

(3) Members of—

(a) the Scottish Executive and persons authorised by the Scottish Ministers,

(b) Healthcare Improvement Scotland and persons authorised by it,

may attend and take part in meetings of SCSWIS or any of its committees, but are not entitled to vote at such meetings.

General powers

11

(1) SCSWIS may do anything which appears to be necessary or expedient for the purpose of, or in connection with, or which appears conducive to, the exercise of its functions.

(2) In particular, SCSWIS may—

(a) enter into contracts,

(b) with the consent of the Scottish Ministers—

(i) borrow money,

(ii) acquire and dispose of land,

(iii) borrow sums in sterling by way of overdraft for the purpose of meeting a temporary excess of expenditure over sums otherwise available to meet that expenditure.

Delegation of functions

12

(1) SCSWIS may, subject to sub-paragraphs (2) and (3), authorise—

(a) the chief executive,

(b) any other employee,

to exercise such of its functions, and to such extent, as it may determine.

(2) SCSWIS may not authorise any of the following functions to be exercised by any other person—

(a) the approval of annual reports and accounts,

(b) the approval of any budget or other financial plan.

(3) Sub-paragraph (1) does not affect the responsibility of SCSWIS for the exercise of its functions.

Location of office

13

SCSWIS's determination of the location of its office premises is subject to the approval of the Scottish Ministers.

Accounts

14

(1) SCSWIS must—

(a) keep proper accounts and accounting records,

(b) prepare in respect of each financial year a statement of accounts, and

and must do so in accordance with any directions the Scottish Ministers may give.

(2) SCSWIS must send the statement of accounts to the Auditor General for Scotland for auditing.

Reports

15

(1) As soon as practicable after the end of each financial year, SCSWIS must prepare a report which is—

(a) to provide information on the discharge of SCSWIS's functions during that year, and

(b) to include a copy of the statement of accounts for that year audited by the Auditor General for Scotland.

(2) SCSWIS must—

(a) publish the report,

(b) lay a copy of the report before the Scottish Parliament,

(3) SCSWIS may publish such other reports and information on matters relevant to the functions of SCSWIS as it considers appropriate.

SCHEDULE 12

1

(1) A “support service” is a service provided, by reason of a person's vulnerability or need (other than vulnerability or need arising by reason only of that person being of a young age), to that person or to someone who cares for that person by—

(a) a local authority;

(b) any person under arrangements made by a local authority;

(d) any person if it includes personal care or personal support.

(2) But—

(a) the expression does not include a care home service, an independent health care service (within the meaning of section 10F of the National Health Service (Scotland) Act 1978 (c. 29)), a service which provides overnight accommodation, an adoption service, a fostering service or a service excepted from this definition by regulations;

(b) paragraphs (c) and (d) do not apply where the provider is a health body acting in exercise of functions conferred by the National Health Service (Scotland) Act 1978 (c. 29);

(c) paragraph (d) does not apply if the provider is an individual who personally and solely gives the care or support in question.

2

A “care home service” is a service which provides accommodation, together with nursing, personal care or personal support, for persons by reason of their vulnerability or need; but the expression does not include—

(a) a hospital;

(b) a public, independent or grant-aided school; or

3

(1) A “school care accommodation service” is a service which—

(a) consists of the provision of residential accommodation to a pupil in a place in or outwith a public, independent or grant-aided school;

(b) is provided (whether or not during term-time) for the purpose of or in connection with the pupil's attendance at the school (whether current or otherwise); and

(i) an education authority or the managers of an independent or grant-aided school; or

(ii) any person under arrangements made between that person and any such authority or managers.

(2) For the purposes of sub-paragraph (1)(c)(i), a service which—

(a) falls within the description given by sub-paragraph (1)(a), (b) and (c)(ii); and

(b) is provided to the pupil in domestic premises,

is to be regarded as being provided by that authority or (as the case may be) those managers.

(3) A service may be excepted from the definition in sub-paragraph (1) by regulations.

4

A “nurse agency” is a service which consists of or includes supplying, or introducing to persons who use the service, registered nurses, registered midwives or registered health visitors; but a service may be excepted from this definition by regulations.

5

(1) A “child care agency” is a service which consists of or includes supplying, or introducing to persons who use the service, child carers; but the expression does not include a nurse agency and a service may be excepted from this definition by regulations.

(2) In sub-paragraph (1), “child carer” means a person who—

(a) whether or not for reward; and

(b) whether on a day-to-day or on an occasional basis,

looks after a child wholly or mainly in the home of the child's parents.

6

A “secure accommodation service” is a service which—

(a) provides accommodation for the purpose of restricting the liberty of children in residential premises where care services are provided; and

(b) is approved by the Scottish Ministers for that purpose.

7

An “offender accommodation service” is a service which consists of giving advice, guidance or assistance to persons who have been provided with accommodation under subsection (1)(b) or (c) of section 27 of the Social Work (Scotland) Act 1968 (c. 49) (supervision and care of persons put on probation or released from prison etc.); but the expression does not include a support service.

8

(1) An “adoption service” is any service which is—

(a) provided by a local authority under subsection (1) of section 1 of the Adoption and Children (Scotland) Act 2007 (asp 4); or

(b) provided by a person other than a local authority and which consists of, or includes, services mentioned in subsection (4) of that section (the reference in subsection (5) of that section to a local authority being taken, for the purposes of this paragraph, to be a reference to a person other than a local authority), (whether the person functions generally or in relation to a service provided, under that section).

(2) For the purpose of sub-paragraph (1)(b)—

(a) the making by a person of arrangements for the adoption of a child by a relevant person; or

(b) the placing by a person of a child for adoption with a relevant person,

is not an adoption service.

(3) In sub-paragraph (2), “relevant person” means—

(a) a parent of the child;

(b) any other relative of the child; or

(4) In sub-paragraph (3)—

“relative” has the meaning given by section 119(1) of the Adoption and Children (Scotland) Act 2007 (asp 4);

“relevant couple” is to be construed in accordance with section 29(3) of that Act.

9

A “fostering service” is a service which is provided by—

(a) a local authority under paragraph (a) of section 26(1) of the Children (Scotland) Act 1995 (c. 36) (fostering of children looked after by a local authority);

(b) a person other than a local authority and which consists of, or includes, the making of arrangements for or in connection with the performance of functions assigned to a local authority—

(i) under that paragraph; or

(ii) by virtue of section 5(2) to (4) of the Social Work (Scotland) Act 1968 (c. 49) (regulations relating to performance of functions assigned to a local authority under that Act); or

(c) a local authority and which consists of, or includes, the functions assigned to the authority by sections 3 and 8 to 10 of the Foster Children (Scotland) Act 1984 (c. 56) (ensuring well-being etc. of certain privately fostered children).

10

The services mentioned—

(a) in paragraph 9(a) and (b) and registered under this Part may be collectively referred to as the “Scottish public fostering service”;

(b) in paragraph 9(c) and so registered may be collectively referred to as the “Scottish private fostering service”.

11

An “adult placement service” is a service which consists of, or includes, arranging for the provision of accommodation for an adult (that is to say for a person who has attained the age of sixteen years), together with—

(a) personal care;

(b) personal support; or

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