SECTION 43: Corrupt practices

Purpose and Effect

This section makes members and staff of the Parliament subject to liability for criminal offences under the Prevention of Corruption Acts 1889 to 1916 by making the Parliament a public body for the purposes of those Acts.

General

The Public Bodies Corrupt Practices Act 1889, the Prevention of Corruption Act 1906 and the Prevention of Corruption Act 1916 are known together as the Prevention of Corruption Acts 1889 to 1916. The Acts create certain offences related to bribery and corruption of and by members, officers or servants of local authorities, government departments and other public bodies in connection with that body's business.

This section ensures that the Parliament is a public body for the purposes of the Prevention of Corruption Acts 1889 to 1916, thus ensuring that the existing law in this area applies to members and staff of the Scottish Parliament.

It is possible for the Parliament to modify sections 40-43 and to make its own provision about such matters (see paragraph 4(2) of Schedule 4).

PART II: THE SCOTTISH ADMINISTRATION

SECTION 44: The Scottish Executive

Purpose and Effect

This section provides for the establishment of the Scottish Executive. In particular it provides for:

the composition of the Scottish Executive; and

the members of the Scottish Executive to be referred to collectively as the Scottish Ministers.

It also provides that a person may not hold Ministerial office in the UK Government and also be a member of the Scottish Executive.

General

Section 44 is the first section of Part II providing for the establishment of the Scottish Administration. The Scottish Administration (as defined in section 126(6)) comprises the First Minister and other members of the Scottish Executive, junior Scottish Ministers, holders of certain offices such as the Keeper of the Registers of Scotland, and the staff of the Scottish Administration.

Section 44 provides for the creation of the Scottish Executive. Sections 45 and 46 provide for the appointment of the First Minister. Section 47 provides for the appointment of Ministers, section 48 provides for the appointment of the Scottish Law Officers, and section 49 provides for the appointment of junior Scottish Ministers.

Parliamentary Consideration

Details of Provisions

Subsection (1) establishes the Scottish Executive and provides that its members are to be the First Minister, such Ministers as the First Minister may appoint under section 47, the Lord Advocate and the Solicitor General for Scotland.

Junior Scottish Ministers are not members of the Scottish Executive nor are the staff included in it. However, in practice, the name of the Scottish Executive is used to describe not only its statutory members but the whole organisation, including those members, junior Scottish Ministers and the staff.

Subsection (2) provides that the members of the Scottish Executive should be referred to collectively as the Scottish Ministers.

Subsection (3) provides that a person who holds a Ministerial office (which as defined means a Ministerial office in the UK Government) may not be appointed a member of the Scottish Executive and, if a member of the Scottish Executive is appointed to a Ministerial office, he has to cease to hold office as a member of the Scottish Executive. The effect is that a person cannot be a Minister in both the UK Government and in the Scottish Executive at the same time.

Subsection (4) provides that references in subsection (3) to:

(a)     members of the Scottish Executive are to include junior Scottish Ministers; and

(b)     "Ministerial office" is to have the same meaning as in section 2 of the House of Commons Disqualification Act 1975. Section 2 of that Act defines "ministerial office" by reference to the offices specified in Schedule 2 to the Act and refers to a ministerial office in the UK Government.

SECTION 45: The First Minister

Purpose and Effect

This section provides for the appointment of the First Minister by Her Majesty. It makes provision for his term of office, for his resignation, and for his functions to be undertaken by a member of the Scottish Parliament if the office of the First Minister is vacant or if he is unable to act.

The section also provides that the First Minister shall be Keeper of the Scottish Seal.

General

Section 45 is the second of a group of sections about the Scottish Administration.

Section 44 provides for the Scottish Executive. Section 45 and 46 provide for the appointment of the First Minister. Section 47 provides for the appointment of Ministers and section 49 provides for the appointment of junior Scottish Ministers.

Parliamentary Consideration

Details of Provisions

Subsection (1) provides for the First Minister to be appointed by Her Majesty from among members of the Scottish Parliament. It further provides that he shall hold office at Her Majesty's pleasure. In terms of section 46, it is for the Parliament to nominate one of its members for appointment as First Minister and for the Presiding Officer to recommend to Her Majesty the appointment of that nominated person.

Subsection (2) provides that the First Minister may tender his resignation at any time. It also requires the First Minister to resign if the Scottish Parliament resolves that the Scottish Executive no longer enjoys the confidence of the Parliament.

Subsection (3) provides that the First Minister shall cease to hold office on the appointment of his successor.

Subsections (4) and (5) provide that, if the office of the First Minister is vacant, or if he is for any reason unable to act, his functions will be exercisable by a member of the Scottish Parliament, designated by the Presiding Officer. If the Parliament has been dissolved, the Presiding Officer may designate a person who ceased to be a member by virtue of the dissolution. The Standing Orders of the Parliament require the Presiding Officer to notify the Parliament of the name of any person whom he has designated.

Subsection (6) provides that a member designated under subsection (4) shall be capable of exercising the functions of the First Minister even if the Parliament is subsequently dissolved.

Subsection (7) provides that the First Minister shall be Keeper of the Scottish Seal. "The Scottish Seal" is defined in section 2(6) as being "Her Majesty's Seal appointed by the Treaty of Union to be kept and used in Scotland in place of the Great Seal of Scotland". The First Minister became the Keeper on 6 May 1999 when this subsection was commenced. Previously, the Secretary of State for Scotland was the Keeper of this Seal in terms of section 8 of the Secretary of State for Scotland Act 1885.

SECTION 46: Choice of the First Minister

Purpose and Effect

Section 45 provides for the First Minister to be appointed by Her Majesty. This section makes provision about the way in which a person is chosen for such appointment. It provides for the Parliament to nominate one of its members for appointment as First Minister and for the Presiding Officer to recommend to Her Majesty the appointment of the person nominated by the Parliament.

Parliamentary Consideration

Details of Provisions

Subsection (1) requires the Parliament, within the period allowed in subsection (3), to nominate one of its members for appointment as First Minister if one of the events mentioned in subsection (2) occurs. The Standing Orders of the Parliament set out the procedure and system of voting for the nomination of a person as First Minister.

The period allowed for nomination is normally 28 days after the occurrence of the event in question. If the Parliament fails to make a nomination within that period, then the Presiding Officer is required by section 3(1)(b) to propose a day for the holding of an extraordinary general election.

Subsection (2) specifies four events which trigger the procedure for the nomination of the First Minister, namely:

(a)      the holding of a poll at a general election;

(b)      the First Minister tendering his resignation to Her Majesty;

(c)      the office of First Minister becoming vacant (other than in consequence of his resignation; or

(d)      the First Minister ceasing to be a member of the Parliament, other than on a dissolution (e.g. by resigning his seat under section 14).

Subsection (3) provides that the period within which the Parliament must nominate a First Minister is 28 days from the date of the relevant event.

However, that period may be extended under subsection (3)(a) if another of the specified events occurs within that period of 28 days, in which case the period is extended so that it ends 28 days after the occurrence of the second event.

Subsection (3)(b) provides that the 28 day period shall end if the Parliament resolves to dissolve itself under section 3(1)(a) in which case an extraordinary general election requires to be held and a new 28 day period begins to run from the day of the holding of the poll. The period also ends when Her Majesty appoints a First Minister. This prevents the Parliament from seeking to change its nomination after the person has been appointed.

Subsection (4) requires the Presiding Officer to recommend to Her Majesty the appointment of any member of the Scottish Parliament nominated for First Minister under this section.

SECTION 47: Ministers

Purpose and Effect

This section provides for the appointment of Ministers by the First Minister from among members of the Parliament. Appointments require the approval of the Parliament and Her Majesty. The section also makes provision about the tenure of office of such Ministers.

Background

This section forms part of a group of sections about the Scottish Administration. Section 44 provides for the Scottish Executive whose members are known as Scottish Ministers. Scottish Ministers include Ministers appointed under this section as well as the First Minister (see sections 45 and 46) and the Scottish Law Officers (see section 48).

Parliamentary Consideration

Details of Provisions

Subsection (1) provides that the First Minister may, with the approval of Her Majesty, appoint Ministers from among the members of the Scottish Parliament. These Ministers must, therefore, be MSPs.

Subsection (2) provides that the First Minister shall not seek Her Majesty's approval for any appointment under this section without obtaining the Parliament's agreement. The Standing Orders of the Parliament make provision for the agreement of the Parliament to be sought, by motion, to the appointment of either an individual MSP to be a Minister or for a slate of 2 or more MSPs to be Ministers. A slate may be amended by the Parliament to delete the name of a particular member or members.

Subsection (3) makes provision about the tenure of office of a Minister appointed under this section. It provides that he shall hold office at Her Majesty's pleasure, may be removed from office by the First Minister, may resign at any time and must do so if the Scottish Parliament resolves that the Scottish Executive no longer enjoys the confidence of the Parliament. Subsection (3) further provides that a Minister shall cease to hold office immediately on resigning and shall cease to hold office if he ceases to be a member of Parliament other than by virtue of a dissolution (e.g. by resigning from his seat).

There is no requirement in the Act for the Parliament to be notified when a Minister ceases to hold office except where he resigns. Provision for this is made in the Standing Orders of the Parliament.

SECTION 48: The Scottish Law Officers

Purpose and Effect

This section makes provision about the Law Officers to the Scottish Executive. In particular, it makes provision about the appointment of the Lord Advocate and the Solicitor General for Scotland and their removal from office; about the independence of the Lord Advocate in his capacity as the head of the systems of criminal prosecution and investigation of deaths in Scotland; and about the removal of references to the Lord Advocate and Solicitor General from the House of Commons Disqualification Act 1975 and the Ministerial and other Salaries Act 1975 consequential on them ceasing to be Ministers of the Crown.

General

Prior to devolution, the Lord Advocate and Solicitor General for Scotland were Ministers in the UK Government. Apart from his Law Officer function of advising the Government on matters of Scots law and representing it in civil proceedings, the prime responsibility of the Lord Advocate was for the prosecution of crimes and for the investigation of deaths in Scotland. As a Departmental Minister in charge of part of the Scottish Courts Administration, he was also responsible for the policy on certain matters concerned with the administration of justice, such as civil jurisdiction and procedure, evidence, diligence etc. The Solicitor General acted as his deputy under section 2(1) of the Law Officers Act 1944.

As none of these matters are reserved, the White Paper on Scotland's Parliament stated that it was "appropriate that the Law Officers of the Scottish Executive should be the Lord Advocate and the Solicitor General for Scotland" (para. 4.8). It was therefore necessary to provide for their transfer into the Scottish Executive. This is effected by section 44 providing that the Lord Advocate and the Solicitor General are members of the Scottish Executive and that they, together with the First Minister and the Ministers appointed under section 47, are to be known collectively as the Scottish Ministers. It is also effected by this section making provision as to how they are to be appointed within the Scottish Executive and by ensuring that amendments are made consequential upon them ceasing to be Ministers of the Crown in the UK Government.

The Scottish Law Officers ceased to be members of the UK Government and became members of the Scottish Executive on 20 May 1999 by virtue of Article 2(2) of and Schedule 4 to the Scotland Act 1998 (Commencement) Order 1998 (S.I. 1998/3216). Although there was no change in the persons who were Lord Advocate and the Solicitor General, it was still necessary for them to be appointed in terms of section 48.

When he became a member of the Scottish Executive on 20 May 1999, the Lord Advocate carried with him his existing functions as head of the systems of prosecution and investigation of deaths in Scotland. These are part of his "retained functions" under section 52(6).

Amendments were also made to the Crown Suits (Scotland) Act 1856 by Schedule 8 paragraph 2 to enable civil proceedings, which are being brought by or against any part of the Scottish Administration (e.g. the Scottish Ministers), to be brought by or against the Lord Advocate on its behalf.

However the functions of the Lord Advocate connected with the administration of justice were transferred to the Secretary of State just before the Lord Advocate ceased to be a member of the UK Government - see the Transfer of Functions (Lord Advocate and Secretary of State) Order 1999 (S.I. 1999/678) and a written answer to a Parliamentary Question given by the Prime Minister on 22 March 1999 (H.C. Deb vol. 328 col. 9w). These functions were then transferred on 1 July 1999 to the Scottish Ministers either under section 53 or in the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 1999 (S.I. 1999/1750) made under section 63 of the Act.

Certain of the functions of the Lord Advocate in relation to reserved matters were transferred to the Advocate General for Scotland, who was appointed under section 87 to provide legal advice to the UK Government on matters of Scots law under the Transfer of Functions (Lord Advocate and Advocate General for Scotland) Order 1999 (S.I. 1999/679).

Subsection (5) of the present section is one of a number of provisions which safeguard the independence of the Lord Advocate and the Solicitor General in exercising their prosecution functions. Section 29 provides that it would be outside the competence of the Parliament to legislate to remove the Lord Advocate from his position as head of the systems of criminal prosecution and investigation of deaths in Scotland. Section 27 deals with the participation of the Law Officers in the proceedings of the Parliament and includes provision for either of them to decline to provide documents or to answer questions about particular criminal cases if he considers that doing so might prejudice the proceedings in that case or would otherwise be contrary to the public interest.

Parliamentary Consideration

Details of Provisions

Subsection (1) provides that the First Minister is responsible for recommending to Her Majesty the appointment of a person as Lord Advocate or Solicitor General for Scotland and for recommending the removal of either but prohibits him from doing so without the agreement of the Scottish Parliament.

The Standing Orders of the Parliament make provision for the agreement of the Parliament to be sought, by motion, to the recommendation to be made by the First Minister about the appointment of the Scottish Law Officers and the motion may relate to either or both of the Scottish Law Officers. Where it relates to both, the motion may be amended by the Parliament to delete the name of one of them.

There is no requirement that the Lord Advocate or the Solicitor General has to be a member of the Parliament. Where they are not, there are special provisions regarding their participation in the proceedings of the Parliament under section 27 and the Standing Orders.

Unlike the case of the other members of the Scottish Executive, the Scottish Law Officers can only be removed from office by Her Majesty and after the agreement of the Parliament. This adds to their security of tenure.

Subsection (2) provides that the Lord Advocate and the Solicitor General may at any time resign and shall do so if the Parliament resolves that the Scottish Executive no longer enjoys the confidence of the Parliament.

The Standing Orders of the Parliament require the Presiding Officer to notify the resignation to the Parliament.

Subsection (3) provides that where the Lord Advocate has resigned in consequence of a vote of no confidence, he shall be deemed to continue in office until the warrant of appointment for his successor is granted, but only for the purpose of exercising his retained functions. Retained functions are defined in section 52(6) and refers in particular to his functions as head of the systems of criminal prosecution and investigation of deaths in Scotland. This provision is required to ensure that there is continuity in criminal proceedings.

Subsection (4) provides that subsection (3) is without prejudice to section 287 of the Criminal Procedure (Scotland) Act 1995 providing for the demission of office by Lord Advocate. Section 287 provides for indictments raised by a Lord Advocate to remain effective even although he has demitted office and for indictments to run in the name of the Solicitor General for Scotland if the office of Lord Advocate is vacant. Section 287(5) provides that, where both the Lord Advocate and Solicitor General demit office on the same day (as would happen in the event of a vote of no confidence - see subsection (2) above), the Lord Advocate is deemed to continue in office for the purposes of the 1995 Act until the appointment of his successor.

Subsection (5) protects the independence of the Lord Advocate in his capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland by providing that any decision made by him in that capacity is to continue to be taken by him independently of any other person. This is intended to ensure that the traditional independence of the Lord Advocate in taking those decisions when he was a member of the UK Government continues now that he is a member of the Scottish Executive.

The provisions in subsection (6) are necessary to disengage the offices of Lord Advocate and Solicitor General for Scotland from the UK Government. This subsection removes them from the list of Ministerial offices in Schedule 2 to the House of Commons Disqualification Act 1975. Section 2 of that Act limits the number of holders of Ministerial offices who are entitled to sit in the House of Commons at any one time. Subsection (6) also removes the two offices from Part III of Schedule 1 to the Ministerial and other Salaries Act 1975. That Part lists the Law Officers to the UK Government and specifies their salaries. See also the Scotland Act 1998 (General Transitory, Transitional and Savings Provisions) Order 1999 (S.I. 1999/901), which includes transitional provisions relating to these amendments.

SECTION 49: Junior Scottish Ministers

Purpose and Effect

This section provides for the appointment of junior Scottish Ministers by the First Minister from among members of the Parliament. Junior Scottish Ministers (JSMs) assist the Scottish Ministers in the exercise of their functions. Appointments require the approval of Her Majesty following the agreement of the Parliament. The section also makes provision about the tenure of office of junior Scottish Ministers.

Parliamentary Consideration

Details of Provisions

Subsections (1) and (2) provide that the First Minister may, with the approval of Her Majesty, appoint junior Scottish Ministers from among members of the Scottish Parliament to assist the Scottish Ministers in the exercise of their functions.

This terminology is intended to reflect the Carltona doctrine, by which civil servants are able to act for Ministers, so that junior Scottish Ministers are able to act for the Scottish Ministers. This is also reflected in the fact that, in practice, those appointed as junior Scottish Ministers are known as "deputy Minister".

Subsection (3) provides that the First Minister shall not seek Her Majesty's approval for any appointment under this section without obtaining the Parliament's agreement. The Standing Orders of the Parliament make provision for the agreement of the Parliament to be sought, by motion, to the appointment of either an individual MSP to be a JSM or for a slate of 2 or more MSPs to be JSMs. A slate may be amended by the Parliament to delete the name of a particular member or members.

Subsection (4) provides that a junior Scottish Minister so appointed shall hold office at Her Majesty's pleasure, may be removed from office by the First Minister, may resign at any time and must do so if the Scottish Parliament resolves that the Scottish Executive no longer enjoys the confidence of the Parliament. Subsection (4) further provides that a junior Scottish Minister shall cease to hold office immediately on resigning, and shall cease to hold office on ceasing to be a member of the Parliament other than on a dissolution.

SECTION 50: Validity of acts of Scottish Ministers etc.

Purpose and Effect

This section ensures that the validity of acts of members of the Scottish Executive or junior Scottish Ministers are not affected by any defect in the way in which the Parliament has either nominated or agreed to their appointment.

General

This section ensures that the validity of the acts of Ministers cannot be questioned because of any defect in any parliamentary proceedings which have to be followed with regard to their appointment. Similar protection is given to the Presiding Officer and deputies (section 19), members of the Scottish Parliamentary Corporate Body (Schedule 2), and the Auditor General for Scotland (section 69).

Details of Provisions

Section 50 provides that the validity of any act of a member of the Scottish Executive or junior Scottish Minister is not affected by any defect in his nomination by the Parliament or in the Parliament's agreement to his appointment. It would not, therefore, be possible to challenge the acts of a Minister on the basis, for example, that his or her nomination or appointment was not made in accordance with the Scotland Act or Standing Orders.

SECTION 51: The Civil Service

Purpose and Effect

This section makes provision as respects the staff of the Scottish Administration. In particular it provides that:

the Scottish Ministers may appoint persons to be members of the staff of the Scottish Administration;

the staff of, and the holders of any non-ministerial office in, the Scottish Administration are members of the Home Civil Service and, accordingly, their appointment is subject to the provisions of the Civil Service Order in Council; and

responsibility for the management of such staff will ultimately remain with the Minister for the Civil Service (i.e. the Prime Minister) but provision is made enabling responsibility for the day to day management of such staff to be delegated to the Scottish Ministers in the same way as happens for government departments in the UK Government.