Scotland Act 1998 (Transitory and Transitional Provisions) (Complaints of Maladministration) Order 1999
| Jurisdiction | UK Non-devolved |
| Citation | SI 1999/1351 |
| Year | 1999 |
1999 No. 1351
CONSTITUTIONAL LAW
DEVOLUTION, SCOTLAND
The Scotland Act 1998 (Transitory and Transitional Provisions) (Complaints of Maladministration) Order 1999
Made 12th May 1999
Laid before Parliament 13th May 1999
Coming into force in accordance with article 1
The Secretary of State, in exercise of the powers conferred on him by section 112(1), 113, 114(1) and 129(1) of the Scotland Act 1998(1and of all other powers enabling him in that behalf, hereby makes the following Order:
Citation and commencement
1. This Order may be cited as the Scotland Act 1998 (Transitory and Transitional Provisions) (Complaints of Maladministration) Order 1999 and shall come into force on the principal appointed day(2
Interpretation
2.—(1) In this Order–
“the 1967 Act” means the Parliamentary Commissioner Act 1967(3
“the Act” means the Scotland Act 1998;
“action” includes failure to act and related expressions shall be construed accordingly;
“authority subject to investigation” shall be construed in accordance with article 8;
“listed tribunal” means a tribunal which is either a Scottish public authority which is listed in Schedule 1 or a cross-border public authority which is listed in Schedule 2;
“officer” includes employee;
“Parliamentary Commissioner” means the Parliamentary Commissioner for Administration;
“person aggrieved” shall be construed in accordance with article 9(1)(b);
“the Scottish Commissioner” means the Scottish Parliamentary Commissioner for Administration appointed in accordance with article 4,
and action taken in the exercise of functions of an authority subject to investigation includes a reference to action taken by any of its members or officers or any members of its staff.
(2) Unless otherwise provided, any reference in this Order to a numbered article or Schedule is a reference to an article or Schedule bearing that number in or to this Order and any reference in an article to a numbered paragraph is to a paragraph bearing that number in that article.
Duration of this Order
3. This Order, unless previously revoked by the Secretary of State, shall cease to have effect on the day appointed by or under an Act of the Scottish Parliament, and different days may be appointed for different purposes.
Scottish Commissioner
4.—(1) For the purpose of conducting investigations in accordance with the following provisions of this Order, there shall be appointed a Scottish Commissioner.
(2) Her Majesty may from time to time appoint a person to be the Scottish Commissioner.
(3) Subject to the following paragraphs, the Scottish Commissioner shall hold office during good behaviour.
(4) A person appointed to be the Scottish Commissioner may be relieved of office by Her Majesty at his own request, or may be removed from office by Her Majesty in consequence of a resolution of the Parliament that he should be removed from office on the ground of misbehaviour, and shall in any case vacate office on completing the year of service in which he attains the age of 65 years.
(5) Her Majesty may declare the office of Scottish Commissioner to have been vacated if Her Majesty is satisfied that the person appointed to be the Scottish Commissioner is incapable for medical reasons of performing the duties of the office and of requesting to be relieved of it.
Status
5.—(1) The Scottish Commissioner shall be regarded as holding office under Her Majesty and as exercising his functions on behalf of the Crown.
(2) Service as the Scottish Commissioner or as a member of staff of the Scottish Commissioner shall not be service in the Home Civil Service.
Remuneration, allowances and pension
6.—(1) Subject to paragraphs (2) and (3), there shall be payable to the Scottish Commissioner–
(a)
(a) such salary; and
(b)
(b) such allowances in respect of his expenses under this Order (including his expenses under articles 7 and 11(3)),
as the Parliament may, by resolution, from time to time determine and a resolution under this paragraph may take effect from the date on which it is passed or from such other date as may be specified in the resolution.
(2) Where a person is both Parliamentary Commissioner and Scottish Commissioner, he shall not be entitled to any salary as Scottish Commissioner.
(3) The salary payable to a holder of the office of Scottish Commissioner shall be abated by the amount of any pension payable to him in respect of any public office in the United Kingdom or elsewhere to which he had previously been appointed or elected.
(4) The Parliament may make provision for the payment of pensions, gratuities or allowances to, or in respect of, any person who has ceased to hold the office of Scottish Commissioner and such provision may, in particular, include provision for–
(a)
(a) contributions or payments towards provision for such pensions, gratuities or allowances; and
(b)
(b) the establishment and administration (whether by the Parliamentary corporation or otherwise) of a pension scheme.
(5) The Parliamentary corporation shall determine the other terms and conditions of appointment of the Scottish Commissioner.
(6) The amounts payable to the Scottish Commissioner under paragraph (1) and any amounts payable by virtue of paragraph (4) shall be paid by the Parliamentary corporation.
Staff
7.—(1) The Scottish Commissioner may appoint such staff as he considers necessary to assist him in the exercise of his functions.
(2) It is for the Scottish Commissioner to determine the terms and conditions of appointment of his staff, including arrangements for the payment of pensions, gratuities or allowances to, or in respect of, any person who has ceased to be a member of his staff.
(3) In particular, the Scottish Commissioner may make provision for–
(a)
(a) contributions or payments towards the provision for such pensions, gratuities or allowances; and
(b)
(b) the establishment and administration (whether by the Parliamentary corporation or otherwise) of a pension scheme.
(4) Any function of the Scottish Commissioner may be exercised by–
(a)
(a) a member of his staff;
(b)
(b) an officer of the Parliamentary Commissioner; or
(c)
(c) an officer of the Health Service Commissioner for Scotland, of the Health Service Commissioner for England or of the Health Service Commissioner for Wales,
if authorised by the Scottish Commissioner for that purpose; and references in any enactment (including this Order) to a member of the staff of the Scottish Commissioner include any person exercising any function of his by virtue of sub-paragraph (b) or (c).
Authorities subject to investigation
8. The persons, bodies and authorities subject to investigation by the Scottish Commissioner are–
(a) any member of the Scottish Executive;
(b) any other office-holder in the Scottish Administration;
(c) the Parliamentary corporation;
(d) any Scottish public authority with mixed functions or no reserved functions which is listed in Schedule 1;
(e) any cross-border public authority(4which is listed in Schedule 2,
and references in this Order to an authority subject to investigation are references to any such person, body or authority.
Matters which may be investigated
9.—(1) Subject to the provisions of this article, the Scottish Commissioner may investigate any action taken by or on behalf of an authority subject to investigation if–
(a)
(a) the action was taken in the exercise of administrative functions of that authority;
(b)
(b) a written complaint is duly made to a member of the Parliament by a member of the public who claims to have sustained injustice in consequence of maladministration in connection with the action so taken (“the person aggrieved”); and
(c)
(c) the complaint is referred to the Scottish Commissioner, with the consent of the person who made it, by a member of the Parliament with a request to conduct an investigation thereon.
(2) The Scottish Commissioner may not question the merits of a decision taken without maladministration by an authority subject to investigation in the exercise of a discretion vested in that authority.
(3) A member of the Scottish Executive is subject to investigation by the Scottish Commissioner only in respect of any action taken by or on behalf of that member in the exercise of functions conferred on the Scottish Ministers or of functions conferred upon the First Minister alone.
(4) A cross-border public authority which is listed in Schedule 2 is subject to investigation by the Scottish Commissioner only in connection with any action concerning Scotland and not relating to reserved matters taken by or on behalf of that authority.
(5) The Scottish Commissioner shall not conduct an investigation in respect of any action in respect of which the person aggrieved has or had–
(a)
(a) a right of appeal, reference or review to or before a tribunal constituted by or under any enactment or by virtue of Her Majesty’s prerogative; or
(b)
(b) a remedy by way of proceedings in any court of law,
unless the Scottish Commissioner is satisfied that, in the particular circumstances, it is not reasonable to expect the person aggrieved to resort or have resorted to it.
(6) The Scottish Commissioner shall not conduct an investigation in respect of any matter mentioned in Schedule 3 to the 1967 Act and, for this purpose–
(a)
(a) the references in paragraphs 5, 7 and 8 of that Schedule to the Secretary of State shall be read as if they included a reference to a member of the Scottish Executive;
(b)
(b) the definition in paragraph 6B(2) of that Schedule(5of “relevant tribunal” shall be read as including a listed tribunal; and
(c)
(c) the references in paragraphs 9 and 10 of that Schedule to a government department or authority to which the 1967 Act applies shall be read as if they included references to an...
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