Statutory Instrument 1999 No. 1351

The Scotland Act 1998 (Transitory and Transitional Provisions) (Complaints of Maladministration) Order 1999

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STATUTORY INSTRUMENTS

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([1] and 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([

"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,

(a) such salary; and

(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) contributions or payments towards provision for such pensions, gratuities or allowances; and

(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) contributions or payments towards the provision for such pensions, gratuities or allowances; and

(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 member of his staff;

(b) an officer of the Parliamentary Commissioner; or

(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([

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) the action was taken in the exercise of administrative functions of that authority;

(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) 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 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) 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) 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) the definition in paragraph 6B(2) of that Schedule([

(7) The Scottish Commissioner shall not conduct an investigation in respect of any action taken by or on behalf of Scottish Homes in respect of any of its actions as a landlord.

(8) For the purposes of this article, administrative functions exercisable by any person appointed as a member of the administrative staff of a listed tribunal-

shall be taken to be administrative functions of that authority.

(9) In determining whether to initiate, continue or discontinue an investigation, the Scottish Commissioner shall, subject to the preceding provisions of this article, act in accordance with his discretion.

Complaints
10. - (1) A complaint may be made under article 9(1)(b) by any individual or body of persons (whether or not incorporated) except-

(a) the Parliamentary corporation;

(b) a local authority or other authority or body constituted for purposes of the public service or of local government;

(c) a body constituted for the purposes of carrying on under national ownership an industry or undertaking or part of an industry or undertaking;

(d) any other authority or body whose members are appointed by Her Majesty or by any Minister of the Crown or government department or by a member of the Scottish Executive, or whose revenues consist wholly or mainly of money provided by Parliament or sums payable out of the Scottish Consolidated Fund (whether directly or indirectly).

(2) A complaint shall not be entertained by the Scottish Commissioner unless made by the person aggrieved himself, except that-

(a) where an individual by whom a complaint might have been made has died, or is for any reason unable to act for himself, the complaint may be made by his personal representatives or a member of his family or any other individual or any body suitable to represent him; and

(b) where a body by whom a complaint might have been made is for any reason unable to act for itself, the complaint may be made by an individual, or another body, suitable to represent it.

(3) A complaint shall not be entertained by the Scottish Commissioner unless-

(a) it is made to a member of the Parliament not later than 12 months after the day on which the person aggrieved first had notice of the matters alleged in the complaint, but the Scottish Commissioner may conduct an investigation pursuant to a complaint not made within that period if he considers that there are special circumstances which make it proper to do so; and

(b) the person aggrieved is resident in the United Kingdom (or, if he is dead, was so resident at the time of his death) or the complaint relates to action taken in relation to him while he was present in the United Kingdom or on an installation in a designated area within the meaning of the Continental Shelf Act 1964([

(4) Any question whether a complaint is duly made or referred to the Scottish Commissioner shall be determined by him.

Investigation procedure
11. - (1) Where the Scottish Commissioner proposes to conduct an investigation pursuant to a complaint referred to him, he shall afford to-

(a) the particular authority subject to investigation; and

(b) any person who is alleged in the complaint to have taken or authorised the action complained of,

an opportunity to comment on any allegations contained in the complaint.

(2) The investigation shall be conducted in private but in other respects the procedure for conducting the investigation shall be such as the Scottish Commissioner considers appropriate in the circumstances of the case, and, in particular, the Scottish Commissioner-

(a) may obtain information from such persons and in such manner, and make such inquiries, as he thinks fit; and

(b) may determine whether any person may be represented, by counsel or solicitor or otherwise, in the investigation.

(3) The Scottish Commissioner may, if he thinks fit, pay to the person by whom the complaint was made and to any other person who attends or supplies information for the purposes of an investigation such sums in respect of expenses properly incurred by them, and such allowances by way of compensation for the loss of their time, in accordance with such scales and subject to such conditions as may be determined by the Parliamentary corporation.

(4) The conduct of an investigation shall not affect-

(a) any action taken by the authority concerned; or

(b) any power or duty of that authority to take further action with respect to any matter subject to the investigation.

Evidence
12. - (1) For the purposes of an investigation, the Scottish Commissioner may require any of the following persons to supply information or produce documents relevant to the investigation-

(a) any member, or officer or member of the staff, of the authority subject to investigation, including, in particular, where that authority is an authority mentioned in article 8(a) or (b), any office-holder in the Scottish Administration or member of the staff of the part of the Scottish Administration concerned; or

(b) any other person,

who in his opinion is able to supply such information or produce such documents.

(2) For the purposes of any investigation the Scottish Commissioner shall have the same powers as the Court of Session in respect of-

(a) the attendance and examination of witnesses (including the administration of oaths and affirmations and the examination of witnesses abroad); and

(b) the production of documents.

    (3) No obligation to maintain secrecy or other restriction on the disclosure of information obtained by or supplied to persons in Her Majesty's service, whether imposed by any enactment or by any rule of law, shall apply to the disclosure of information for the purposes of an investigation by the Scottish Commissioner.

    (4) The Crown (whether in right of Her Majesty's Government in the United Kingdom or in right of the Scottish Administration) shall not be entitled in relation to any investigation by the Scottish Commissioner to any such privilege in respect of the production of documents or the giving of evidence as is allowed by law in legal proceedings.

    (5) No person shall be required or authorised by virtue of this Order to supply any information or answer any question relating to proceedings of the Cabinet or of any committee of the Cabinet, or to produce so much of any document as relates to such proceedings; and for the purposes of this paragraph a certificate issued by the Secretary of the Cabinet with the approval of the Prime Minister and certifying that any information, question, document or part of a document so relates shall be conclusive.

    (6) Subject to paragraphs (3) to (5), no person shall be compelled for the purposes of an investigation by the Scottish Commissioner to give any evidence or produce any document which he could not be compelled to give or to produce in civil proceedings before the Court of Session.

Obstruction and contempt
     13. - (1) Where-

(a) a person, without lawful excuse, obstructs the Scottish Commissioner or any member of his staff in the performance of his functions; or

(b) a person does any act or fails to take any action in relation to an investigation which, if that investigation were a proceeding in the Court of Session, would constitute contempt of court,

the Scottish Commissioner may apply by petition to the Court of Session for that person to be dealt with for contempt.

(2) Where such a petition is presented, the Court of Session may inquire into the matter and after hearing-

(a) any witnesses who may be produced against or on behalf of the person alleged to have committed the contempt; and

(b) any statement that may be offered in defence,

may, if satisfied that a contempt has been committed, deal with that person in any manner in which it would deal with him if he had committed the same contempt in relation to the Court of Session.

    (3) Nothing in this article shall be construed as applying to the taking of any such action as is mentioned in article 11(4).

Reports
     14. - (1) Where the Scottish Commissioner conducts an investigation or decides not to conduct an investigation, he shall send to the member of the Parliament by whom the request for investigation was made (or, if he is no longer a member of the Parliament, to such member as the Scottish Commissioner thinks appropriate) a report of the investigation or, as the case may be, a statement of his reasons for not conducting an investigation.

    (2) Where the Scottish Commissioner conducts an investigation, he shall also send a report of the investigation to the authority subject to investigation and to any other person who is alleged in the complaint to have taken or authorised the action complained of.

    (3) If, after conducting an investigation, it appears to the Scottish Commissioner that injustice has been caused to the person aggrieved in consequence of maladministration and that the injustice has not been, or will not be, remedied, he may, if he thinks fit, lay before the Parliament a special report on the case.

    (4) The Scottish Commissioner shall annually lay before the Parliament a general report on the performance of his functions and may from time to time lay before the Parliament such other reports with respect to those functions as he thinks fit.

    (5) For the purposes of the law of defamation, the following are absolutely privileged-

(a) the publication of any matter by the Scottish Commissioner in making a report to the Parliament for the purposes of this Order;

(b) the publication of any matter by a member of the Parliament in communicating with the Scottish Commissioner or any member of his staff for those purposes or by the Scottish Commissioner or any member of his staff in communicating with such a member for those purposes;

(c) the publication by the Scottish Commissioner to a member of the Parliament or by that member to the person by whom a complaint was made of a report or statement under paragraph (1); and

(d) the publication by the Scottish Commissioner to the authority or other person mentioned in paragraph (2) of a report sent to that authority or that person under that paragraph.

Confidentiality of information
15. - (1) Information obtained by the Scottish Commissioner or a member of his staff in the course of or for the purposes of an investigation shall not be disclosed except-

(a) for the purposes of the investigation and of any report of it under this Order;

(b) for the purposes of any proceedings for-

(c) for the purposes of an inquiry with a view to the taking of any of the proceedings mentioned in sub-paragraph (b);

(d) for the purposes of any proceedings under article 13.

(2) Neither the Scottish Commissioner nor any member of his staff shall be called upon to give evidence in any proceedings (other than proceedings referred to in paragraph (1)) of matters coming to his or their knowledge in the course of an investigation.

(3) A member of the Scottish Executive or, as the case may be, a Minister of the Crown may give notice in writing to the Scottish Commissioner with respect to-

(a) any document or information specified in the notice; or

(b) any class of document or information so specified,

that, in the opinion of that member of the Scottish Executive or of that Minister, the disclosure of that document or information, or of documents or information of that class, would be prejudicial to the safety of the State or otherwise contrary to the public interest. In this paragraph references to a Minister of the Crown include references to the Treasury, the Commissioners of Customs and Excise and the Commissioners of Inland Revenue.

(4) Where such a notice is given neither the Scottish Commissioner nor any member of his staff shall be authorised or required to communicate to any person or for any purpose any document or information specified in the notice, or any document or information of a class so specified.

(5) Where-

(a) the Scottish Commissioner also holds office as the Parliamentary Commissioner or as a Health Service Commissioner ("a Commissioner"); and

(b) a person initiates a complaint to him in his capacity as a Commissioner which relates partly to a matter with respect to which that person has previously initiated, or subsequently initiates, a complaint to him in his capacity as the Scottish Commissioner,

information obtained by the Scottish Commissioner or a member of his staff in the course of, or for the purposes of, investigating a complaint to him in his capacity as Scottish Commissioner may be disclosed for the purposes of his carrying out his functions in relation to the other complaint.

Notes:

[1] 1998 c.46.back

[2] Article 3 of the Scotland Act 1998 (Commencement) Order 1998 (S.I. 1998/3178) specifies 1st July 1999 as the principal appointed day for the purposes of the Act.back

[3] 1967 c.13.back

[4] A "cross border public authority" means any body, government department, office or office-holder specified in an Order in Council made by Her Majesty under section 88(5) of the Scotland Act 1998, namely the Scotland Act 1998 (Cross-Border Public Authorities) (Specification) Order 1999 (S.I. 1999/ ).back

[5] Paragraph 6B was inserted by the Parliamentary Commissioner Act 1994 (c.14), section 1(2).back

[6] 1964 c.29.back



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Prepared 14 June 1999