Section 31: application in relation to marine areas

76. This section enables the Scottish Ministers by order to modify the provisions of the Act listed in subsection (1) in their application to areas that includes the sea. Such an order would be subject to affirmative resolution, under section 34(5).

77. When an order under subsection (1) modifies any provision relating to consultation with bodies representative of those who live, work or carry on business in the area, subsections (2) and (3) ensure that the provision for consultation must include consultation with the representatives of those organisations who carry on commercial fishing activities in the proposed area of a marine National Park.

Section 32: Crown application

78. This section makes clear the extent to which the Act applies to the Crown.

Section 33: Ancillary provision

79. This section allows the Scottish Ministers to make orders dealing with various kinds of incidental provisions as a consequence of the Act. Such orders are subject to affirmative resolution where they make textual amendments of Acts, and negative resolution in any other case.

Section 34: Orders

80. This section sets out the procedures under which the powers to make orders under the Act are to be exercised. Under subsection (1), orders under the Act are to be made by statutory instrument. Subsection (2) makes clear that power to make an order includes power to make incidental provisions as the Scottish Ministers consider necessary or expedient. This is in addition to the power in section 33 - in other words, incidental provisions can be included in a designation order or in a free-standing order under section 33.

81. Subsection (4) makes clear that the powers in sections 6(1), 30(1) and 33 or paragraph 4 of schedule 1 include power to modify enactments, instruments and documents. Subsection (5) requires any order made under section 6(1) (a designation order setting up a National Park), 30(1) (an order modifying or revoking a designation order) or 31 (an order relating to marine National Parks) or paragraph 4 of schedule 1 to be considered and approved in draft by affirmative resolution of the Parliament before it is made. Subsection (6) applies the same procedure to any order made under section 33 which provides for textual amendment of an Act.

82. Subsection (7) provides that certain orders made under the Act are to be subject to negative resolution procedure (i.e. laid before the Parliament and having effect unless a motion to annul the order is agreed to). These are orders made under section 30(4) (modifying the procedure to be followed for publication/consultation on modifications to, or revocation of, a designation order) or orders made under section 33 (unless textually amending other Acts, in which case they are subject to the affirmative procedure).

Section 35: Interpretation

83. This defines certain terms used in the Act.

Section 36: Modification of enactments

84. This section introduces schedule 5, which makes modifications of various enactments in respect of National Parks.

Section 37: Commencement and short title

85. This provides for the Scottish Ministers to set by order when the provisions of the Act are to come into force, and gives the short title by which the Act is to be referred.

Schedule 1: Constitution etc. of National Park authorities

86. Paragraphs 1 and 2 explain the status of National Park authorities. They are to be bodies corporate; they will not be Crown bodies and will therefore not have Crown immunity or be exempt from taxation, their staff will not be Crown servants (and therefore not civil servants), and their property will not belong to the Crown.

87. Paragraphs 3 to 10 set out how membership of a National Park authority is to be determined. Paragraph 3(1) sets a maximum of 25 members with the exact number to be set in the designation order for the Park.

88. Paragraph 3(2) requires the designation order to specify the number of members, which must be at least one fifth of the total, to be directly elected by poll of those entitled to vote as electors in a local government election. These are people in an electoral ward which is wholly or partly in the area of the National Park, and are registered in the register of local government electors at an address within the Park.

89. Paragraph 3(3) specifies that the remaining members are to be appointed by the Scottish Ministers, with half of those members being appointed on the nomination of relevant local authorities whose areas are wholly or partly within the Park. The number of members to be appointed on the nomination of each local authority is to be specified in the designation order (paragraph 3(4)).

90. Paragraph 3(5) requires the designation order to state the number of members who are to be appointed as local members, and how many of these will come from nominations of each local authority.

91. Paragraph 3(6) defines "local members" as follows: that the person's sole or main residence is within the National Park or the person is a councillor for an electoral ward, or member of a community council, whose area is wholly or partly within the National Park.

92. Paragraph 4 enables the Scottish Ministers to make an order to make provisions for matters associated with the elections, under paragraph 3(2), the period of office (as mentioned in mentioned in paragraphs 8(a) and (b)), and rules of disqualification and the procedure for holding the elections.

93. Paragraph 5 requires the Scottish Ministers, before making appointments of directly appointed members, to consult with those who are representative of people living and working in the Park, the local authorities, community councils and anyone else they think appropriate.

94. Paragraph 6 requires all appointments to be made on the basis of the individuals having knowledge or experience relevant to what the National Park authority does or to the area of the Park (including particular interests as the designation order may specify). It also requires local authorities to nominate only people with relevant experience or knowledge. It requires the Scottish Ministers to satisfy themselves that those to be appointed have no financial or other interests which might compromise their ability to act as a member of the National Park authority (although this does not apply in respect of elected members).

95. Paragraph 7 enables the Scottish Ministers to seek information from people in order to satisfy themselves in relation to the criteria for "local" appointments, or in relation to a person's financial or other interests which might compromise their ability to act as a member.

96. Paragraphs 8 to 10 deal with the holding and vacating of membership. The basis of appointments will be set out in the terms of appointment issued when a member is appointed, but shall not exceed five years (for a single term). For elected members, the terms of their office are determined under paragraph 4 (which provides for these matters to be covered in an election order). A member may resign by writing to the Scottish Ministers. A member who ceases to hold office (whether by resignation or through expiry of their term of office) will be eligible to be re-appointed or re-elected. The Scottish Ministers may remove an appointed member from office if they are satisfied that any of the conditions set out in paragraph 9 is met. Where a vacancy arises, the appointment of a replacement will be in accordance with the provisions set out in paragraph 10.

97. Paragraph 11 deals with the appointment of convener and deputy convener. Both positions are to be filled by election by members of one of their number. As with a term of membership, at the end of a term of appointment, a convener or deputy convener may be re-elected to that position. However, a convener or deputy convener who ceases to be member, for whatever reason, will also cease to hold the position of convener or deputy convener. When a member (other than an elected member) either takes up or ceases to hold the position of convener or deputy convener, the Scottish Ministers may vary the terms of that member's appointment in order to alter the date on which his or her membership comes to an end.

98. Paragraph 12 deals with payment of members. The Scottish Ministers will determine the amounts which a National Park may pay its members (either as remuneration or as allowances), and they can direct a National Park authority, in special circumstances, to pay compensation when someone ceases membership other than on the normal expiry of their term. The Scottish Ministers may also direct an authority to pay a member, in respect of an office held (as convener, deputy convener, or other office) a pension, allowance or gratuity.

99. Paragraphs 13 to 15 set out a National Park authority's powers and duties in respect of their staff. Paragraph 11 requires an authority to appoint a chief executive, and the Scottish Ministers to approve the appointment and its terms and conditions. Approval of the Scottish Ministers is similarly required for any variation of those terms and conditions. Paragraph 14 makes clear that the authority may decide, without the need for approval, all other appointments of staff and their terms and conditions. Paragraph 15 requires an authority to make arrangements for paying pensions, allowances and gratuities to its staff (including compensation for loss of office or employment) and to obtain approval from the Scottish Ministers for these arrangements.

100. Paragraphs 16 and 17 cover an authority's ability to set up committees to deal with business. Paragraph 16 enables an authority to appoint people to a committee who are not members of the authority, provided a majority of members of the committee are authority members. This provision is subject to further specification in the designation order about particular committees. This would allow, for example, a requirement that a committee dealing with planning matters must include a sufficient proportion of local authority councillors. Committee members can be paid remuneration or allowances as determined by the Scottish Ministers. Committees set up by an authority require to act in accordance with directions given by the authority. Paragraph 17 allows an authority to authorise a committee, employee or member to act on its behalf (although this does not prevent the authority acting itself on the same matter).

101. Paragraph 18 deals with members' interests. Under sub-paragraph (1) a member must declare any interest in a matter which is considered by a meeting of the National Park authority, and shall not take part in discussion or decision on the matter. The declaration of interest shall be recorded in the minutes of the meeting. Sub-paragraph (2) sets out the terms in which a notification of interest will be considered sufficient. Sub-paragraph (3) makes clear that provided a member has taken reasonable steps to ensure that his or her disclosure is notified in writing to the meeting, he or she need not attend in person.

102. Sub-paragraphs (4) and (5) enable the Scottish Ministers to decide to override the effects of the provisions of this paragraph. Under sub-paragraph (4) this can happen if the provisions lead to so many of the members being prevented from taking part in discussion that the authority's ability to transact its business is severely impaired. Sub-paragraph (5) makes clear that the Scottish Ministers may also more generally override the effects of this paragraph, either indefinitely or for a period for reasons they specify. However, under sub-paragraph (6) nothing in this paragraph prevents a member from taking part in the authority's consideration and discussion of whether to ask the Scottish Ministers to use their override powers. The provisions of this paragraph apply to meetings of committees as well as authorities, and to members of committees as well as members of the authority (sub-paragraph (7)).

103. Paragraph 19 deals with procedures of meetings. Each National Park authority is able to determine its own procedures. A vacancy on the authority or on a committee of the authority, or the fact of a defect in the appointment or election of a member, will not make proceedings invalid.

Schedule 2: General powers of National Park authorities

104. Paragraph 1 enables an authority to make a charge for any goods, services and facilities it provides.

105. Paragraph 2 enables an authority to provide advice, assistance or training facilities in matters in which it has skill or experience, but if this is to be provided outside Scotland, the consent of the Scottish Ministers must be obtained.

106. Paragraph 3 enables an authority to conduct research, or arrange for others to do this on their behalf, on matters connected with its functions.

107. Paragraph 4 enables an authority to pay grants or loans, with conditions (including repayment), for activities which will help to further its purpose (as set out in section 9(1)). Such financial assistance requires the consent of the Scottish Ministers.

108. Paragraph 5 enables an authority to acquire land which is within the National Park, either by agreement or compulsorily with the authorisation of the Scottish Ministers. In the latter case this excludes Crown land and is subject to any other legislation which gives a National Park authority powers of compulsory purchase, and to the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947.

109. Paragraph 6 prevents an authority from disposing of land for less than a reasonable market value unless it has the consent of the Scottish Ministers.

110. Paragraph 7 sets out the circumstances in which a National Park authority can promote or oppose private legislation in the Scottish Parliament.

111. Paragraph 8 sets out an authority's powers to make byelaws. The general purposes for which it can make byelaws are set out in sub-paragraph (1). Sub-paragraph (2) sets out some particular examples of matters which byelaws might deal with.

112. Paragraph 9 sets out the rules which apply to the making of byelaws by National Park authorities under paragraph 8. These provide for a transparent and consultative process and require the National Park authority to publicise proposed bylaws; make copies of them available for public inspection for such a period (which must be at least 12 weeks) as it determines, and consult every relevant local authority and community council and such persons as appear to it to be representative of the interests of those who live, work, carry on business, or engage in recreational activities in the byelaw area.

113. Sub-paragraph (2) places a requirement on a National Park authority to take account of any views and comments received during the consultation and enables it to make any alterations to the byelaws in light of these views and comments.

114. Sub-paragraph (3) sets out the process for the confirmation of byelaws under the Act by the Scottish Ministers as being that provided for in the Local Government (Scotland) Act 1973.

115. Paragraph 10 sets out the authority's powers to make and enforce management rules. These are rules to regulate the use of, and conduct of persons while on or in, land or premises owned, occupied or otherwise under the control of the authority, and to which the public have access. Sections 112 to 118 of the Civic Government (Scotland) Act 1982, which set out the processes governing the making of these rules by local government, will apply to the making of management rules by National Park authorities with minor modifications.

116. Paragraph 11 provides for a National Park authority to be treated, for the purposes of the Local Authorities (Goods and Services) Act 1970 (c.39), as if it is both a local authority and a public body. The effect is to allow local authorities to provide goods and services to a National Park authority and vice versa, and to allow National Park authorities to provide goods and services to each other.

117. Paragraph 12 applies Part IIIA of the Local Government (Scotland) Act 1973, which provides for access to meetings and documents, to a National Park authority and its committees and any joint committee as it applies to local authorities. Sub-paragraph (2) modifies that Part to make appropriate application to National Park authorities. Sub-paragraph (3) requires a National Park authority to appoint a proper officer from among its staff for the purposes of Part IIIA of the Local Government (Scotland) Act 1973.

118. Paragraph 13 applies Part III of the Housing (Scotland) Act 1988 to National Park authorities as if they were public sector landlords. That Act provides that tenants of local authorities, on meeting certain conditions, are entitled to purchase their property.

119. Paragraph 14 ensures that Part II of the Deregulation and Contracting Out Act 1994 has effect for a National Park authority in the same way as for a local authority. That Act allows Ministers by order to provide for delegation of functions as appropriate to permit contracting out.

120. Paragraph 15 sets out a range of other functions a National Park is entitled to undertake.

Schedule 3: Miscellaneous functions

121. This schedule confers on National Park authorities various functions, some of which are provided for by reference to other Acts.

122. Paragraph 1 lists three enactments which will apply to National Park authorities as they apply to local authorities as referred to in those Acts. This means that National Park authorities have the equivalent power to develop land for the benefit or improvement of the area (with the prior approval of the Scottish Ministers); they may pay subscription in respect of corporate membership of any body formed to maintain or improve rights of way; and they may acquire land for the purpose of preserving or improving the amenity of land.

123. Paragraph 2 applies section 21 and 22 of the National Parks and Access to the Countryside Act 1949 to National Park authorities in the same way as these sections apply to local authorities. These sections enable local authorities to provide, or secure provision of, nature reserves on any land in their area, and allow for works to be carried out on nature reserves by drainage authorities.

124. Paragraph 3 enables a National Park authority to provide, or arrange for someone else to provide, information and educational services and facilities in order to promote the understanding and enjoyment of the special qualities of the National Park.

125. Paragraph 4 enables a National Park authority to provide facilities and encourage visitors to the National Park for leisure purposes.

126. Paragraph 5 provides for sections 49 and 50 of the Countryside (Scotland) Act 1967 to apply to National Park authorities in the same way as it applies to local authorities. This means that National Park authorities may provide camping sites for recreational purposes, may do anything desirable in connection with providing these sites, and can provide for accommodation, meals and refreshments where existing facilities are inadequate.

127. Paragraph 6 applies certain sections of the Local Government and Planning (Scotland) Act 1982 to National Park authorities in the same way as to local authorities, enabling them to do anything necessary or desirable towards ensuring that there are facilities in the Park for recreational, sporting, cultural or social activities as they consider appropriate.

128. Paragraph 7 makes amendments to Part II of the Countryside (Scotland) Act 1967 to allow National Park authorities the same powers as local authorities and Scottish Natural Heritage for facilitating access to the countryside.

129. Paragraph 8 enables National Park authorities to carry out improvement works on waterways in the countryside for purposes of open-air recreation.

Schedule 4: Transfer of staff, property and liabilities

130. Paragraph 1 enables the Scottish Ministers to require a local authority whose area is at least partly within a National Park to make schemes for the transfer of employees or property and liabilities to a National Park authority or another local authority, as necessary in consequence of the setting up or operation of the National Park authority. A National Park authority may also be required to make transfer schemes for transfers from the National Park authority to another National Park authority or a local authority where a National Park is wound up or modified or in connection with the operation of the National Park authority. Before making such schemes, the Scottish Ministers must consult the transferring and receiving authorities and any local authority with part of its area within the National Park.

131. Paragraph 2 sets out the procedure to be followed by a local authority or a National Park authority which is required to prepare a transfer scheme under paragraph 1. The authority must consult certain specified bodies before making a scheme including, in the case of a staff transfer scheme, staff associations. The authority must take into account any guidance on transfer schemes from the Scottish Ministers. Such a scheme has effect from a specified date, which would normally be the effective operational date of the new authority.

132. Paragraph 3 enables the Scottish Ministers to approve or reject the scheme, or approve it with modifications; but if the latter, they must send a copy of the proposed modifications to the organisations mentioned, and take account of any comments.

133. Paragraph 4 enables the Scottish Ministers to make a scheme themselves if the local authority or National Park authority does not prepare and submit a scheme, or if they reject the scheme submitted to them. The Scottish Ministers may if they wish approve a scheme submitted to them after the specified date.

134. Paragraph 5 enables the Scottish Ministers to modify a transfer scheme which they have already approved, at any time before the transfer date, provided they have consulted the receiving authority and the other relevant authorities.

135. Paragraph 6 sets out the effects of a transfer scheme for staff. It results in the relevant employees becoming employees of the receiving authority on the transfer date (sub-paragraph (1)), on terms and conditions set by the receiving authority but which must be no less favourable (sub-paragraph (2)) than those applying immediately prior to the transfer. The employee's continuity of employment will not be broken by the transfer to the receiving authority (sub-paragraph (3)), and the ending of their employment with the transferring authority will not be treated as redundancy (sub-paragraph (4)).

136. Paragraph 7 makes provision for the effect of the transfer of property and liabilities between authorities. Sub-paragraph (2) provides for the Scottish Ministers to issue a certificate confirming conclusively that a transfer has or has not occurred.

Schedule 5: Modification of enactments

137. This schedule makes modifications of other enactments.

138. Paragraphs 1 and 3 enable National Parks authorities to second staff to local authorities (and vice versa).

139. Paragraph 2 makes amendments to the Countryside (Scotland) Act 1967 in respect of country and regional parks and byelaws. Sub-paragraphs (1) and (2) allow National Park authorities to carry out work relating to rights of way, similar to that undertaken by local authorities. Sub-paragraphs (3) and (4) have the effect that new country and regional parks may not be created within areas after their designation as National Parks, although the provisions relating to existing country and regional parks will continue in force. In other words, the designation of a National Park will not in itself nullify the existence of a country or regional park - it will be for the National Park and relevant local authority to agree what arrangements to make in this respect. Sub-paragraphs (5) and (6) apply the same principle to byelaws made in respect of country or regional parks. Sub-paragraph (7) includes a National Park as a consultee on byelaws made by local authorities or Scottish Ministers where those byelaws would apply within area of the National Park.

140. Paragraph 4 adds National Park authorities to the list of consultees for the purposes of nitrate sensitive areas under the Control of Pollution Act 1974.

141. Paragraph 5 amends relevant parts of the Local Government (Scotland) Act 1975 with the effect that National Park authorities are included in the list of bodies subject to investigation by the local government ombudsman under Part II of that Act.

142. Paragraph 6 gives powers (but not duties) to National Park authorities to deal with abandoned and removed vehicles, equivalent to those of local authorities.

143. Paragraph 7 allows National Park authorities to acquire an ancient monument by agreement or by gift for its preservation or maintenance.

144. Paragraph 8 adds National Park authorities to the list of statutory consultees in respect of areas of special scientific interest and adds National Parks to the areas in respect of which Ministers have duties in relation to certain grants (provided for under the Wildlife and Countryside Act 1981).

145. Paragraph 9 adds National Park authorities to the list of consultees in respect of notification of public processions held under the provisions of the Civic Government (Scotland) Act 1982.

146. Paragraph 10 adds the National Park authorities to the list of consultees in relation to the provisions for the abatement of litter under the Litter Act 1983.

147. Paragraph 11 adds National Park authorities to the list of "consultation bodies" in respect of road traffic regulation orders under the Road Traffic Regulation Act 1984. It also allows a National Park authority to make submissions to the Scottish Ministers on the desirability of these orders in relation to a National Park.

148. Paragraph 12 adds National Park authorities to the list of "consultation bodies" in respect of roads projects for the purposes of Environmental Impact Assessments as provided for under the Roads (Scotland) Act 1984.

149. Paragraph 13 adds National Park authorities to the bodies covered by Part II of the Local Government Act 1988 dealing with fairness and letting of contracts.

150. Paragraph 14 adds National Park authorities to the statutory consultees in respect of hydro-electric generating stations and the preservation of amenity when carrying out works connected with the generation, transmission or supply of electricity.

151. Paragraph 15 applies section 5 of the Local Government and Housing Act 1989 to a National Park authority with appropriate modifications. A National Park authority is required to appoint a monitoring officer whose duty is to report to the authority and its members on anything in the operation of the authority which contravenes the law or amounts to maladministration.

152. Paragraph 16 amends the Enterprise and New Towns (Scotland) Act 1990 so that the consultations by Scottish Enterprise and Highlands and Islands Enterprise in relation to certain functions include National Park authorities.

153. Paragraph 17 adds National Park authorities to the bodies that must be consulted when local authorities undertake air quality reviews.

153.     Paragraph 18 provides that with respect to any land within a National Park, in the exercise of powers under the Town and Country Planning (Scotland) Act 1997 and the other planning Acts, special attention shall be paid to the desirability of exercising the power consistently with the National Park Plan.

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