D RAFT EXPLANATORY NOTES FOR PART I
INTRODUCTION
1. These Explanatory Notes have been prepared by the Scottish Government in order to assist the reader of Part I of the draft Bill and to help inform debate on it. They do not form part of the draft Bill and have not been endorsed by the Parliament.
2. The Notes should be read in conjunction with Part I of the draft Bill. They are not, and are not meant to be, a comprehensive description of Part I of the draft Bill. So where a section or schedule, or a part of a section or schedule, does not seem to require any explanation or comment, none is given.
THE DRAFT BILL - PART I - OVERVIEW
3. Part I of draft Bill is organised as follows:
- Chapter 1 - The Children's Panel
- Chapter 2 - Scottish Children's Hearings Tribunal
- Chapter 3 - President of the Tribunal
- Chapter 4 - Scottish Children's Reporter Administration
- Chapter 5 - Principal Reporter
- Chapter 6 - Other supporting bodies
- Chapter 7 - Mutual assistance obligation
COMMENTARY ON SECTIONS
PART 1 - ADMINISTRATION
CHAPTER 1 - THE CHILDREN'S PANEL
Section 1 - The Children's Panel
4. Section 1 makes provision to establish a national children's panel (the tribunal) and introduces schedule 1 which makes detailed provision concerning the appointment, recruitment, training and payment of expenses of the panel members.
Section 2 - Children's Hearings
5. The Children (Scotland) Act 1995 ("the 1995 Act"), schedule 1, provides for the establishment of children's panels for each local government area. The draft Bill transfers the functions of 32 local children's panels to the President of the Tribunal
6. Section 2 (1) relates to the constitution of children's hearings and provides for the President to ensure that hearings are conducted in accordance with the hearing's purpose.
7. Sections 2 (2) and 2 (3) provide for the President to give directions to local area support teams on the selection of panel members and a chairing member at individual hearings. Area support teams are obliged to comply with a direction of the President.
8. Section 2 (4) provides for the President select panel membership and a chairing member regardless of any direction the President may give to area support teams.
9. Section 2 (5) provides for the children's hearings to continue to be constituted of three local panel members of mixed gender, as far as is practicable. The draft Bill introduces flexibility so that panel members may cross local authority boundaries to serve on local panels with a minimum requirement that at least one panel member must live or work in the child's local authority area. Hearings will continue to comprise of panel members who have most knowledge of the child's local authority area but where this is not practical for logistical reasons, for example, where the child resides in secure accommodation, the President may select one or two panel members from the community near to the secure accommodation. Alternatively, panel members may wish to serve on a number of panels within easy commuting distance.
CHAPTER 2 - SCOTTISH CHILDREN'S HEARINGS TRIBUNAL
Section 3 - Establishment
10. Section 3 provides for the setting up of a dedicated national body to support the Children's Hearings System to be known as the Scottish Children's Hearings Tribunal. Schedule 2 sets out the provisions for status, membership, committees, procedures and employees of the Tribunal.
Section 4 - Functions
11. Section 4 (1) deals with the functions of the Tribunal to support the work of the Children's Hearing System and the President of the Tribunal.
12. Section 4 (2) places a duty on the Tribunal to ensure that children's hearings will continue to have access to local accommodation and facilities across Scotland.
13. Section 4 (3) places a duty on the Tribunal to ensure that accommodation and facilities will continue to be distinct from criminal courts and police stations in keeping with the quasi-judicial nature of the children's hearings system. The draft Bill transfers this duty from the Scottish Reporters Administration and repeals s132 of the Local Government (Scotland) Act 1994 ("the 1994 Act").
Section 5 - Powers
14. Section 5 provides the Tribunal with the necessary general powers that are incidental or conducive to the achievement of its functions, including research and publicity, contracting and asset management. ..
Section 6 - Restriction on powers
15. Section 6 relates to the clear separation of functions between the Tribunal and the President and prevents the Tribunal from directing the President in carrying out the President's functions.
Section 7 - Directions
16. Section 7 provides for the Scottish Ministers to give directions on the functions of the organisation, for example, to set the strategic direction of the Tribunal and to agree organisational objectives and outcomes. The Tribunal must comply with directions that may also be varied or revoked.
Section 8 - Grants
17. Section 8 concerns the funding of the Tribunal. The Scottish Ministers may determine the level of funding and make payment by grant ward with terms and conditions as Scottish Ministers see fit.
Section 9 - Annual Reports
18. Section 9 places a duty on the Tribunal to prepare an annual report and submit to Scottish Ministers at the end of each financial year for the purpose of laying before Parliament. The annual report must include information as to how the Tribunal has fulfilled its functions during the year along with any other information that the Tribunal considers appropriate.
19. The report must include a copy of the annual report submitted separately to the Tribunal by the President under Section 16 of this draft Bill. Separate reports are required in the first instance to preserve the independence of functions between the Tribunal and the President.
Section 10 - Accounts
20. Section 10 places a duty on the Tribunal to keep proper accounts and prepare an annual statement of accounts for each financial year which must be sent to the Auditor General for Scotland for auditing purposes.
21. Section 10 (2) provides for the Scottish Ministers to direct the Tribunal with regard to the information to be contained in the statement of accounts, and in the ways in which the information is prepared and presented.
Section 11 - Provision of returns etc. to Scottish Ministers
22. Section 11 provides for the Scottish Ministers to direct the Tribunal to give them any returns, accounts or other information in relation to the Tribunal's property and activities or proposed activities. The Tribunal must comply with any direction and co-operate with the requirements of any related audit and inspection.
CHAPTER 3 - PRESIDENT OF THE TRIBUNAL
Section 12 - Office of President
23. Section 12 provides for the President to hold the office of chief executive officer of the Scottish Children's Hearings Tribunal and to refrain from membership of the Tribunal. Schedule 3 deals with the terms and conditions of appointment and delegation of functions of the President.
Section 13 - Functions of the President
24. Section 13 sets out the functions of the President of the Tribunal. It is for the President to ensure that administration of the children's hearings system is efficiently and effectively supported.
25. Section 13 transfers existing functions from the Children's Panels Advisory Committees to the President of the Tribunal. It makes provision for the President to recruit panel members nationally and to make arrangements for associated training, local rota management and monitoring of performance of panel members.
26. Section 13 (1) (c) deals with arranging the children's hearings and provides for local rota management of panel members, notification of hearings and provision of documents to children and relevant people.
27. Section 13 (1) (d) provides for the role of the President at the children's hearing. The President may advise panel members on procedural and legal matters and on orders and warrants available to the children's hearing.
28. Section 13 (1) (e) places a duty on the President to take the official record of business meetings and children's hearings.
29. Section 13 (1) (f) provides for the President to support local authorities in their duties under s19 of the 1995 Act to prepare plans for children's services. Area support teams established under section 32 of the draft Bill will assist the President in the President's consideration of the relevant local authority's plans.
30. Section 13 (2) makes clear that the President may provide advice at the request of a panel member or on the President's own volition, for example, the President may wish to offer guidance to panel members in an attempt to avoid procedural irregularities. Such advice may be provided at the hearing or outside the hearing. Section 2 (3) ensures that all relevant parties are privy to such advice provided by the President.
Section 14 - Power of Scottish Ministers to change President's functions
31. This section provides for Scottish Ministers to specify further functions for the President, either by creating entirely new functions or through transferring functions from existing bodies or persons. The functions may also be altered or removed from the President and transferred to another body or person should Ministers consider this to be appropriate. Any such change to the functions of the President will require to be made through a statutory instrument subject to the affirmative procedure.
Section 15 - Powers of the President
32. The draft Bill provides for the President to have the power to do all such things that are incidental or conducive to the performance of the President's functions.
Section 16 - Annual Reports
33. Section 16 places a duty on the President to prepare an annual report each year and submit to the Scottish Children's Hearings Tribunal as soon as practicable after the end of the financial year for which it is prepared.
34. The annual report must include information as to how the President has fulfilled the President's functions during the year. The President may include other information that the President considers appropriate.
CHAPTER 4 - SCOTTISH CHILDREN'S REPORTERS ADMINISTRATION
Section 17 - Continuing the Scottish Children's Reporter Administration
35. Section 17 transfers provisions currently under s.128(1) of the 1994 Act to the draft Bill and provides for the Administration to continue to exist as part of the Children's Hearings Reforms without change to name. Schedule 4 makes further provisions relating to the status and governance arrangements.
Section 18 - Functions of the Administration
36. Section 18 is based on s128 (3) of the 1994 Act and relates to the core functions of the Administration to support the functions of the Principal Reporter to deliver the Scottish Children's Reporter Service. The core functions of the Principal Reporter are defined at Section 27 of the draft Bill.
Section 19 - Powers of the Administration
37. Section 19 is based on s133 of the 1994 Act and gives the Administration provisions to do all such things as are incidental or conducive to the achievement of its core function, including research and publicity, contracting and asset management.
Section 20 - Restriction on powers
38. Section 20 is based on s128(8) of the 1994 Act and makes it clear that the Administration cannot interfere with the professional functions of the Principal Reporter following the enactment of the draft Bill.
Section 21 - Directions by Scottish Ministers
39. Section 21 is based on s133 of the 1994 Act and provides for the Scottish Government to give written directions on the functions and purpose of the Administration, for example, to set the strategic direction of the children's reporter service or to agree organisational objectives and outcomes.
Section 22 - Grants
40. Section 22 is based on s135 of the 1995 Act and concerns funding of the Administration. The Scottish Ministers may determine the level of funding and make payment by grant award with terms and conditions as Scottish Ministers see fit.
Section 23 - Annual Reports
41. Sections 23 is based on s136(2) of the 1994 Act and places a duty on the Administration to prepare an annual report and submit to Scottish Ministers at the end of each financial year for the purpose of laying before Parliament. The annual report must include information as to how the Administration has fulfilled its functions during the year along with any other information that the Administration considers appropriate.
42. The report must include a copy of the annual report submitted separately to the Administration by the Principal Reporter under section 31 of this draft Bill. Separate reports are required in the first instance to preserve the independence of functions between the Administration and the Principal Reporter.
Section 24 - Accounts
43. Section 24 is based on s136(3) of the 1994 Act but requires the Administration to send the accounts directly to the Auditor-General for Scotland and includes more specific details about the power of the Scottish Ministers to make directions about the form, content and preparation of accounts.
Section 25 - Provision of returns etc. to Scottish Ministers
44. Section 25 is based on s136(1) of the 1994 Act and provides for the Scottish Ministers to direct the Administration to give them any returns, accounts or other information in relation to the Administration property and activities or proposed activities. The Administration must comply with any direction and co-operate with the requirements of any related audit and inspection.
CHAPTER 5 - PRINCIPAL REPORTER
Section 26 - Office of Principal Reporter
45. This is based on s127(1) and s128(2) of the 1994 Act and provides for the Principal Reporter to remain in office under the terms of the Principal Reporter's existing appointment. The Principal Reporter will continue to hold the office of chief executive officer of the Administration. Section 26 (4) is a change from the position in the 1994 Act, the Principal Reporter is not permitted to be a member of the Administration. Schedule 5 deals with the terms and conditions of appointment and delegation of functions of the Principal Reporter.
Section 27 - Functions of Principal Reporter
46. Section 27 sets out the core functions of the Principal Reporter. The reporter is the gatekeeper to the children's hearings system receiving referrals, assessing whether grounds exist under section 40 of the draft Bill and investigating whether or not a child needs compulsory measures of supervision.
47. Section 27 (a) to (d) deals with the role of the reporter during the pre-hearing stages. Where the reporter considers that grounds exist and a child requires compulsory measures of supervision, the reporter must refer the case to the President of the Tribunal to make arrangements to convene a children's hearing.
48. Section 27 (e) and (f) deals with the role of the reporter at the preliminary stages of a children's hearing and applies where the children's hearing directs the reporter to apply to the sheriff for a finding as to whether the grounds of referral are established.
Section 28 - Power of Scottish Ministers to change Principal Reporter's functions
49. This is based on s40(3) of the 1995 Act and gives Scottish Ministers power to vary the functions of the Principal Reporter. Scottish Ministers may specify further functions for the Principal Reporter, either by creating entirely new functions or through transferring functions from existing bodies or persons. The functions may also be altered or removed from the Principal Reporter and transferred to another body or person should Ministers consider this to be appropriate. Any such change to the functions of the President will require to be made through a statutory instrument subject to Parliamentary scrutiny by the affirmative procedure.
Section 29 - Powers of the Principal Reporter
50. This is based on s133 of the 1994 which relates to the Scottish Children's Reporters Administration. Section 29 provides for the Principal Reporter to do all such things that are incidental or conducive to the performance of the President's functions.
Section 30 - Rights of audience
51. This is based on s40 of the 1995 Act. The Scottish Ministers may empower the Principal reporter to conduct any proceedings before the sheriff in relation to the children's hearings system. The reporter need not be an advocate or solicitor to fulfil this role. Scottish Ministers may prescribe any qualification, training or experience for the Principal Reporter to conduct proceedings before the sheriff.
Section 31 - Annual Reports
52. This is based on s130 of the 1994 Act and places a duty on the Principal Reporter to prepare an annual report each year and submit to the Administration as soon as practicable after the end of the financial year for which it is prepared.
53. The annual report must include information as to how the Principal Reporter has fulfilled the Principal Reporter's functions during the year. The Principal Reporter may include other information that the Principal Reporter considers appropriate.
CHAPTER 6 - OTHER SUPPORTING BODIES
Area support teams
Section 32 - Area support teams
54. The draft Bill transfers the functions of the Panel Chairs and Children's Panels Advisory Committees. Section 32 gives the President powers to set up area support teams to provide support to the children's hearings system within such areas of Scotland as the President may determine. Area support team members may be appointed to a local area support team and may assist the President to support the work of the children's hearings system locally. The teams may work with other area support teams in relation to any of their duties.
55. Section 32 (2) (a) and (b) provides for the area support teams to assist the President in relation to any recruitment campaigns, the identification of training requirements and the making of arrangements to train members in the area covered by the area support team. This may involve attendance at hearings to monitor the performance of panel members and recommending the re-appointment of panel members.
56. Section 32 (2) (c) provides for the area support teams to maintain local rotas of panel members to provide support at the hearings.
57. Section 32(d) provides for the area support teams to assist the President in the President's consideration of the relevant local authority's plans for services for children which the local authority is required under section 19 of the 1995 Act to prepare.
58. Section 32 gives the President discretion to use volunteers from the local communities in the performance of the functions of the area support teams. The President may set the level of expenses and make arrangements for such payment .
59. Section 32 (4) provides for the President to vary or revoke the geographical boundaries of the area support teams, the appointment of area support team members, and the delegation of the President's functions to any member of the area support teams.
Section 33 - Children's hearings to consider appointing safeguarder
60. Section 33 is based on s41 of the 1995 Act and places a duty on children's hearings to consider whether the interests of the child make it necessary to appoint a safeguarder.
61. Section 33 (2) requires the children's hearing to state the reasons for appointing a safeguarder.
Section 34 - Sheriff to consider appointing a safeguarder
62. Section 34 is based on s41 of the 1995 Act and places a duty on the sheriff to consider whether the interests of the child make it necessary to appoint a safeguarder. The requirement of the sheriff to consider the appointment of a safeguarder also applies to other proceedings such as appeals, child assessment proceedings and review of establishment of grounds. It does not apply to proceedings for a child protection order.
63. Section 34 (2) requires the sheriff to state the reasons for appointing a safeguarder.
64. Section 34 (3) provides that the sheriff cannot appoint a curator ad litem for the child.
Section 35 -Functions of safeguarders
65. Section 35 is based on s41(1)(a) of the 1995 Act and Rule 14 of the 1996 Rules and sets out the purpose and functions of safeguarders.
Section 36 - Appointment ceases
66. Section 36 provides that if the appointment of a safeguarder is not continued at a children's hearing (other than the children's hearing at which the original appointment is made), the appointment ceases at the end of that hearing.
Section 37 - Regulations about safeguarders
67. Section 37 provides regulation-making powers for Scottish Ministers in relation to safeguarders, including the establishment of panels, and the appointment qualifications and training of persons who may be appointed to panels.
CHAPTER 7 - MUTUAL ASSISTANCE OBLIGATION
Section 38 - Mutual assistance obligation
68. Section 38 places an obligation on the Tribunal, the President, the Administration and the Principal Reporter to cooperate with each other in relation to the performance of their statutory duties under the Bill.
69. Section 38 (3) is based on s21 of the 1995 Act and places a similar obligation on local authorities to cooperate with each other in relation to the performance of their statutory duties under the Bill.
70. Section 38 (4) makes clear that the obligation to cooperate extends only as far as is compatible with each body's statutory or other duties and obligations.
Schedule 1 - Children's Panel
Appointment
71. Paragraphs 1 to 4 deals with appointment of panel members and provides a duty on the President to appoint sufficient number of panel members to the national panel to cover local communities across Scotland. The President may specify periods of appointment and re-appoint eligible panel members for consecutive terms of office.
Recruitment and training
72. Paragraph 5 provides for the President to make arrangements for the recruitment and training of panel members including induction training of potential panel members.
Expenses of panel members
73. Paragraphs 6 to 8 give the President the power to set the level of expenses for panel members and to make such payments.
Publication of list of members of the Children's Panel
74. Paragraph 9 places a duty on the President to keep a list of panel members names alongside their local authority in the interests of public accountability.
Removal of panel members
75. Paragraph 11 provides for the President to remove panel members. This can only be done with the approval of the Lord President of the Court of Session.
Schedule 2 - Scottish Children's Hearings Tribunal
76. Schedule 2 is based on Schedule 12 of the 1994 Act and makes provision concerning the status, governance, constitution and proceedings of the Tribunal and other administrative matters in relation to members and employees.
The Tribunal
77. Paragraphs 1 and 2 relate to the status of the Tribunal. It makes clear that the Tribunal is a body corporate and not to be regarded as a servant or agent of the Crown and that the Tribunal's property is not to be regarded as property of the Crown. This has legal implications in relation to immunities which are applied to servants or agents of the Crown and also in relation to particular statutory provisions which relate to Crown property.
Membership of the Tribunal
78. Paragraph 3 makes provision for Scottish Ministers to appoint members to the Tribunal and to re-appoint members for a further term of office.
79. The membership of the Tribunal is to consist of between 5 and 8 members. Scottish Ministers may substitute, by order made by statutory instrument, different numbers of minimum or maximum members. Such order is subject to the negative procedure.
80. Paragraph 5 provides for the appointment of members based on their individual knowledge and experience relative to the functions of the Tribunal.
81. Paragraph 6 provides for further investigation where it appears that a conflict of interest may exist. Scottish Ministers must satisfy themselves that members have no financial or other interest that conflicts with their role as a member of the Tribunal. Scottish Ministers may request information from a member in relation to conflicts of interest and the member is obliged to comply with any such request.
82. Paragraph 7(1), provides that members of the Scottish Parliament, members of the House of Commons and members of the European Parliament are disqualified from appointment and from holding office as members of the Tribunal. This disqualification extends to such membership in the preceding 12 month period.
83. Paragraph 7(2) provides for disqualification of a member of the Tribunal from holding office if he subsequently becomes a member of the Scottish Parliament, the House of Commons or a member of the European Parliament.
84. Paragraph 8 provides for a member of the Tribunal to hold and vacate office in accordance with the terms and conditions of member's appointment as determined by Scottish Ministers.
85. Paragraph 9 sets out the circumstances in which Scottish Ministers may revoke the appointment of a member of the Tribunal and clarifies the definition of insolvency where this may apply to a termination of appointment.
86. Paragraph 10 provides for members to resign office by giving written notice to Scottish Ministers.
87. Paragraph 11 provides for the remuneration, allowances or gratuities, and pensions of members and former members of the Tribunal to be determined by Scottish Ministers and for such payments to be made by the Tribunal. Former members may only receive compensation where Scottish Ministers determine there are special circumstances.
88. Paragraph 12 provides for Scottish Ministers to appoint a chairing member from the membership of the Tribunal.
Procedure of the Tribunal
89. Paragraph 13 and 14 provides for the Tribunal to determine its own procedures and makes clear that the validity of proceedings remains unaffected by any irregularities associated with vacancies, disqualifications or the process of appointments.
Committees
90. Paragraph 15 provides for the Tribunal to set up committees comprising members and non-members, to determine proceedings and to pay remuneration and allowances to non-members.
Employees of the Tribunal
91. Paragraph 16 gives the Tribunal the necessary powers to make appropriate staffing arrangements to ensure the proper functioning of the Tribunal. These powers can be exercised only with the approval of the Scottish Ministers because the Tribunal, as a non-departmental public body, will be funded by the Scottish Government.
92. Paragraph 17 provides for the Tribunal to appoint employees and determine terms and conditions of employment. Such terms and conditions of employment will be subject to the approval of Scottish Ministers.
93. Paragraph 18, provides for the Tribunal to arrange, with the approval of the Scottish Ministers, for pensions, allowances or gratuities in relation to employees of the Tribunal and by way of compensation for loss of employment. The Tribunal may treat the service of a member of the Tribunal and an employee of the Tribunal as similar in terms of any remuneration scheme. Any discretion as to payable benefits must meet with the approval of the Scottish Ministers.
94. Paragraph 19 provides a right of appeal for employees of the Tribunal against dismissal. Scottish Ministers may prescribe the procedure, the effect of making an appeal and powers of disposal.
95. Paragraph 20 gives the Tribunal powers to authorise any employee, member or any of its committees to exercise its function. Any delegation does not affect the entitlement of the Tribunal from exercising any of its functions.
Schedule 3 - President of the Tribunal
96. Schedule 3 is introduced by Section 12 and deals with the terms and conditions of appointment, delegation of functions and date of transfer of functions.
97. Paragraph 1 provides for the Scottish Ministers to appoint the first President of the Scottish Children's Hearings Tribunal. Subsequent appointments are to be made by the Tribunal with the approval of Scottish Ministers
98. Paragraph 2 provides flexibility for Scottish Ministers to prescribe qualifications to be held by the President as they see fit.
99. Paragraph 3 (1) provides that members of the Scottish Parliament, members of the House of Commons, members of the European Parliament, and civil servants are disqualified from appointment and from holding office as President. This disqualification extends to such membership in the preceding 12 month period.
100. Paragraph 3 (2) disqualifies the President from holding office if he subsequently becomes a member of the Scottish Parliament, the House of Commons, the European Parliament or a civil servant.
101. Paragraph 4 provides for the Tribunal to determine the terms and conditions of the appointment of the President with the approval of the Scottish Ministers.
102. Paragraph 5 entitles the President to appeal against dismissal to Scottish Ministers should the President be dismissed by the Tribunal. Scottish Ministers may prescribe the procedure for the making of an appeal, the effect of making an appeal, the powers of Scottish Ministers to dispose of an appeal and the effect of exercising the appeal. Such procedures may be prescribed by negative statutory instrument.
103. Paragraph 6 provides for the President to delegate the President's functions to authorised members of staff of the Tribunal. There are no restrictions on the President to prevent the President from carrying out any of the President's delegated functions. If the President delegates a function to a member of a local area support team established under section 32 of the draft Bill, the function must not be delegated to Tribunal staff who do not form part of the local area support teams.
Schedule 4 - Scottish Children's Reporter Administration
104. Schedule 4 is introduced by section 17 and is based on Schedule 12 of the 1994 Act. It makes provisions concerning the status, governance, constitution and proceedings of the Administration and other administrative matters in relation to members and employees. Paragraph 7 introduces a new provision relating to Disqualification.
The Administration
105. Paragraphs 1 and 2 are based on paragraphs 1 and 2 of Schedule 12 and relate to the status of the Tribunal. It makes clear that the Administration is not to be regarded as a servant or agent of the Crown and that the Administration's property is not to be regarded as property of the Crown. This has legal implications in relation to immunities which are applied to servants or agents of the Crown and also in relation to particular statutory provisions which relate to Crown property.
Membership of the Administration
106. Paragraph 3 is based on paragraph 3 and 5 (c) of Schedule 12. Scottish Ministers may appoint new members to the Administration and may re-appoint eligible members for a further term of office. The draft Bill provides for continuity of membership in the transition of this enactment.
107. Paragraph 4 is based on paragraph 3 of Schedule 12. The membership of the Administration is to consist of between 5 and 8 members. Scottish Ministers may substitute, by order made by statutory instrument, different numbers of minimum or maximum members. Such an order is subject to negative procedure.
108. Paragraph 5 is based on paragraph 3(2) of Schedule 12. Members may be appointed based on the member's individual knowledge and experience relative to the functions of the Administration and of the Principal Reporter.
109. Paragraph 6 is based on paragraph 4 of Schedule 12. Scottish Ministers must satisfy themselves that members have no financial or other interest that conflicts with the member's role as a member of the Administration. Scottish Ministers may request information from a member in relation to conflicts of interest and the member is obliged to comply with any such request.
110. Paragraph 7 is a new provision which relates to the Scottish Parliament (Disqualification) Order 2007. Paragraph 7 (1) provides that members of the Scottish Parliament, members of the House of Commons and members of the European Parliament are disqualified from appointment and from holding office as members of the Administration. This disqualification extends to such membership in the preceding 12 month period.
111. Paragraph 7 (2) disqualifies a member of the Administration from holding office if he subsequently becomes a member of the Scottish Parliament, the House of Commons or a member of the European Parliament.
112. Paragraph 8 is based on paragraph 5(b) of Schedule 12 and provides for members to resign office by giving written notice to Scottish Ministers
113. Paragraph 9 is based on paragraph 8 of Schedule 12 and provides for the remuneration, allowances or gratuities, and pensions of members and former members of the Administration to be determined by Scottish Ministers and paid by the Administration. Paragraph 9 (1)(e) provide for the Scottish Ministers to determine any compensation arrangements for any former member of the Administration and for the Administration to make such payments.
114. Paragraph 10 is based on paragraph 7 of Schedule 12 and provides for Scottish Ministers to appoint a chairing member from the membership of the Administration and for Scottish Ministers to determine the terms and conditions of appointment. Paragraph 10 (3) provides for an adjustment of a member's appointment so that the member may continue in office until the expiry of the chairing membership.
Procedure of the Administration
115. Paragraphs 11 and 12 are based on paragraph 10 of Schedule 12 and provides for the Administration to determine its own procedures and makes clear that the validity of proceedings remains unaffected by any irregularities associated with vacancies, disqualification or the process of appointments.
Committees
116. Paragraph 13 is based on paragraph 11 of Schedule 12 and provides for the Administration to set up committees comprising members and non-members, to determine proceedings and to pay remuneration and allowances to non-members.
Employees of the Administration
117. Paragraph 14 is based on s128(5) of 1994 Act and gives the Administration the necessary powers to make appropriate staffing arrangements to assist the Principal Reporter in the performance of the Principal Reporter's Functions.
118. Paragraph 15 is based on s128(5) of the 1994 Act. The Administration may appoint employees and determine terms and conditions of employment. Such terms and conditions of employment will be subject to the approval of Scottish Ministers.
119. Paragraph 16 is based on paragraph 9 of Schedule 12 to the 1994 Act. It provides for the Administration to pay or contribute to payments for pensions, allowances or gratuities, including compensation for loss of employment to eligible employees. The Administration may also provide and maintain schemes such remuneration.
120. Paragraph 16 (2) provides for the Administration, with the approval of Scottish Ministers to determine the eligibility of employees and former employees and the amount of payments due.
121. Paragraph 16 (4) and 16 (5) relate to reckonable service where a former employee who has participated in the Administration's pension later becomes a member of the Administration and provides for members to be treated as employees for the purpose of any remuneration scheme. Any discretion as to payable benefits and eligibility must meet with the approval of the Scottish Ministers.
122. Paragraph 17 is based on s129 of the 1994 Act and provides a right of appeal for employees of the Administration against dismissal. Scottish Ministers may prescribe the procedure, the effect of making an appeal and powers of disposal.
123. Paragraph 18 is based on s131 of the 1994 Act. The Administration may authorise any employee, member or any of its committees to exercise its function. Any delegation does not affect the entitlement of the Administration from exercising any of its functions.
Schedule 5 - Principal Reporter
124. Schedule 5 is introduced by section 26 and deals with the terms and conditions of appointment and delegation of functions of the Principal Reporter.
125. Paragraph 1 is based on s128(4) of the 1994 Act and provides for the Administration to appoint the Principal Reporter with the approval of the Scottish Ministers.
126. Paragraph 2 provides flexibility for Scottish Ministers to prescribe qualifications to be held by the President as they see fit.
127. Paragraph 3 is a new provision which relates to the Scottish Parliament (Disqualification) Order 2007. Paragraph 3 (1) provides that members of the Scottish Parliament, members of the House of Commons, members of the European Parliament and civil servants are disqualified from appointment and from holding office as President. This disqualification extends to such membership in the preceding 12 month period.
128. Paragraph 3 (2) disqualifies the President from holding office if the President subsequently becomes a member of the Scottish Parliament, the House of Commons, a member of the European Parliament or a civil servant.
129. Paragraph 4 provides for the Administration to determine the terms and conditions of the appointment of the Principal Reporter with the approval of the Scottish Ministers.
130. Paragraph 5 entitles the Principal Reporter to appeal against dismissal to Scottish Ministers should the Principal Reporter be dismissed by the Administration. Scottish Ministers may prescribe the procedure for the making of an appeal, the effect of making an appeal, the powers of Scottish Ministers to dispose of an appeal and the effect of exercising the appeal. Such procedures may be prescribed by negative statutory instrument.
131. Paragraph 6 is based on s131 of the 1994 Act and provides for the Principal Reporter to delegate the Principal Reporter's functions to authorised members of staff of the Administration. There are no restrictions on the Principal Reporter to prevent the Principal Reporter from carrying out any of the Principal Reporter delegated functions. Paragraph 6 (4) prevents the Principal Reporter from delegating any functions to a person who may be employed jointly by the Administration and a local authority without the approval of the Administration.