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The Scottish Public Services Ombudsman Act 2002 (Consequential Provisions and Modifications) Order 2004

S.I. 2004/1823 · Made 13 July 2004

Original text. legislation.gov.uk does not revise statutory instruments, so later amendments are not shown here. Changes made to it are listed under each provision when known.

CONSTITUTIONAL LAW

DEVOLUTION, SCOTLAND

SCOTTISH PUBLIC SERVICES OMBUDSMAN

Made 13th July 2004

Coming into force 14th July 2004

Whereas a draft of this Order has been laid before and approved by a resolution of each House of Parliament in accordance with section 115 of, and paragraphs 1, 2 and 3 of Schedule 7 to, the Scotland Act 1998(f1);

Now, therefore, the Secretary of State, in exercise of the powers conferred upon him by sections 104, 112(1) and 113 of that Act and of all other powers enabling him in that behalf, hereby makes the following Order:

Annotations to the whole text

Footnotes

f1

1998 c. 46.

Contents

  1. 1Citation and commencement
  2. 2Interpretation
  3. 3Evidence
  4. 4Confidentiality of information
  5. 5Parliamentary Commissioner Act 1967 (c. 13)
  6. 6Local Government Act 1974 (c. 7)
  7. 7House of Commons Disqualification Act 1975 (c. 24)
  8. 8Northern Ireland Assembly Disqualification Act 1975 (c. 25)
  9. 9Mental Health Act 1983 (c. 20)
  10. 10Finance Act 1989 (c. 26)
  11. 11Official Secrets Act 1989 (Prescription) Order 1990 (S.I. 1990/200)
  12. 12Social Security Administration Act 1992 (c. 5)
  13. 13Social Security Administration (Northern Ireland) Act 1992 (c. 8)
  14. 14Tribunals and Inquiries Act 1992 (c. 53)
  15. 15Judicial Pensions and Retirement Act 1993 (c. 8)
  16. 16Child Support (Information, Evidence and Disclosure) Regulations (S.I. 1992/1812)
  17. 17Health Service Commissioners Act 1993 (c. 46)
  18. 18Deregulation and Contracting Out Act 1994 (c. 40)
  19. 19Data Protection Act 1998 (c. 29)
  20. 20Government of Wales Act 1998 (c. 38)
  21. Signature
  22. Explanatory note

1Citation and commencement

This Order may be cited as the Scottish Public Services Ombudsman Act 2002 (Consequential Provisions and Modifications) Order 2004 and shall come into force on the day after the day on which it is made.

2Interpretation

In this Order–

  • “the Act” means the Scottish Public Services Ombudsman Act 2002(f1);

  • “the Cabinet” means the Cabinet of the UK Government; and

  • “Ombudsman” means the Scottish Public Services Ombudsman appointed under section 1 of the Act.

3Evidence

(1)

No person shall be required or authorised by virtue of the Act to furnish any information or answer any questions relating to the proceedings of the Cabinet or any committee of the Cabinet or to produce so much of any document as relates to such proceedings.

(2)

For the purposes of paragraph (1), 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.

4Confidentiality of information

(1)

A Minister of the Crown may give notice in writing to the Ombudsman with respect to–

(a)

any document or information specified in the notice, requested by virtue of an investigation under the Act; or

(b)

any class of documents or information so specified,

that, in the opinion of the Minister, the disclosure of the 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.

(2)

Where such a notice is given nothing in the Act shall be construed as authorising or requiring the Ombudsman or any of the Ombudsman’s advisers to communicate to any person for any purpose any document or information specified in the notice, or any document or information of a class so specified.

5Parliamentary Commissioner Act 1967 (c. 13)

(1)

The Parliamentary Commissioner Act 1967 is amended as follows.

(2)

In section 3(2) (administrative provisions)(f1) omit “or of the Health Service Commissioner for Scotland”.

(3)

In section 11A (consultations between the Parliamentary Commissioner and Welsh Administration Ombudsman or Health Service Commissioners)(f2)–

(a)

in subsection (1)–

(i)

after the words “Welsh Administration Ombudsman”, insert “, the Scottish Public Services Ombudsman”;

(ii)

for “, Wales or Scotland” substitute “or Wales”; and

(iii)

in paragraph (b) after “1998”, insert, “,” and after “1993”, insert “, or the Scottish Public Services Ombudsman Act 2002”;”;

(b)

in subsection (2) after “Ombudsman” insert “, the Scottish Public Services Ombudsman”; and

(c)

after that subsection insert–

“(2A)

Where an authority to which this Act applies is also a listed authority to which the Scottish Public Services Ombudsman Act 2002 applies, the Commissioner must co-operate with the Scottish Public Services Ombudsman to such an extent as appears appropriate when exercising any function in relation to that authority.”.

6Local Government Act 1974 (c. 7)

In section 33 of the Local Government Act 1974 (consultation between Local Commissioner, the Parliamentary Commissioner and the Health Service Commissioner)(f1)–

(a)

in subsection (1)–

(i)

in paragraph (aa) omit “or”;

(ii)

after paragraph (b), insert–

“or

(c)

by the Scottish Public Services Ombudsman in accordance with the Act of 2002,”;

(iii)

after “appropriate Commissioner or” omit “the”; and

(iv)

for “or under the Act of 1993” substitute “, the Act of 1993 or under the Act of 2002”;

(b)

in subsection (2)–

(i)

after “Welsh Administration Ombudsman” insert “, the Scottish Public Services Ombudsman”; and

(ii)

for “the Ombudsman”, substitute “that Ombudsman”;

(c)

in subsection (5) after “the Government of Wales Act 1998” insert “, in section 19 of the Act of 2002”; and

(d)

in subsection (6) after “Act 1993” insert “and the Act of 2002” means the Scottish Public Services Ombudsman Act 2002”.

7House of Commons Disqualification Act 1975 (c. 24)

In Part 3 of Schedule 1 to the House of Commons Disqualification Act 1975 (other disqualifying offices)(f1) omit “Commissioner for Local Administration in Scotland.” and “Health Service Commissioner for Scotland.” and insert at the appropriate place “Scottish Public Services Ombudsman.”.

8Northern Ireland Assembly Disqualification Act 1975 (c. 25)

In Part 3 of Schedule 1 to the Northern Ireland Assembly Disqualification Act 1975 (other disqualifying offices)(f1) omit “Commissioner for Local Administration in Scotland” and “Health Service Commissioner for Scotland”, and insert at the appropriate place “Scottish Public Services Ombudsman”.

9Mental Health Act 1983 (c. 20)

In section 134(3)(c) of the Mental Health Act 1983 (correspondence of patients)(f1), after “the Parliamentary Commissioner for Administration,” insert “the Scottish Public Services Ombudsman,”.

10Finance Act 1989 (c. 26)

In section 182 of the Finance Act 1989 (disclosure of information)(f1)–

(a)

in subsection (4)(a)(iii) omit “or”;

(b)

after subsection (4)(a)(iv) insert–

“or

(v)

of the Scottish Public Services Ombudsman and any member of his staff,”;

(c)

in subsection (6) for “or the Welsh Administration Ombudsman” substitute “, the Welsh Administration Ombudsman or the Scottish Public Services Ombudsman”; and

(d)

in subsection (11)(c) omit “the Health Service Commissioner for Scotland,”.

11Official Secrets Act 1989 (Prescription) Order 1990 (S.I. 1990/200)

InSchedule 2 to the Official Secrets Act 1989 (Prescription) Order 1990 (prescriptions)(f1)–

(a)

in column 2 omit “or Scotland” where it occurs in the reference to the Parliamentary Commissioner for Administration;

(b)

in column 1 insert “Scottish Public Services Ombudsman” after the reference to Northern Ireland Parliamentary Commissioner for Administration; and

(c)

in column 2 opposite the entry inserted by paragraph (b) above, insert–

“

The officers of the Ombudsman who are not otherwise Crown servants

”.

12Social Security Administration Act 1992 (c. 5)

In section 123(8) of the Social Security Administration Act 1992 (unauthorised disclosure of information relating to particular persons)(f1)–

(a)

in paragraph (g) for “the Health Service Commissioner for Scotland” substitute “the Scottish Public Services Ombudsman”;

(b)

paragraph (hc) is omitted in its entirety; and

(c)

in paragraph (k)–

(i)

after “the Commissioners” insert “, Ombudsman”; and

(ii)

for “(hc)” substitute “(hb)”.

13Social Security Administration (Northern Ireland) Act 1992 (c. 8)

In section 117(8) of the Social Security Administration (Northern Ireland) Act 1992 (unauthorised disclosure of information relating to particular persons)(f1)–

(a)

in paragraph (h) for “, Wales or Scotland” substitute “or Wales”;

(b)

in paragraph (hc) for “the Commissioner for Local Administration in Scotland” substitute “the Scottish Public Services Ombudsman”; and

(c)

in paragraph (i)–

(i)

for “(hc)” substitute “(hb)”; and

(ii)

after “above” where it first occurs insert “, or of the Scottish Public Services Ombudsman”.

14Tribunals and Inquiries Act 1992 (c. 53)

In section 2(3) of the Tribunals and Inquiries Act 1992 (composition of the Council and the Scottish Committee)(f1) for “shall, by virtue of his office, be a member” substitute “and the Scottish Public Services Ombudsman shall by virtue of their offices be members”.

15Judicial Pensions and Retirement Act 1993 (c. 8)

In section 25 of the Judicial Pensions and Retirement Act 1993 (the Comptroller and Auditor General and the Parliamentary and Health Service Commissioners etc.)(f1) omit paragraph (d).

16Child Support (Information, Evidence and Disclosure) Regulations (S.I. 1992/1812)

In regulation 11(e) of the Child Support (Information, Evidence and Disclosure) Regulations 1992 (employment to which section 50 of the Act applies)–

(a)

in paragraph (e) for “the Health Service Commissioner for Scotland” substitute “the Scottish Public Services Ombudsman”; and

(b)

in paragraph (h) after “Commissioners” insert “or of the Ombudsman”.

17Health Service Commissioners Act 1993 (c. 46)

(1)

The Health Service Commissioners Act 1993(f1) is amended as follows.

(2)

In section 1 (the Commissioners)(f2)–

(a)

in subsection (1)–

(i)

after “England,” insert “and”; and

(ii)

omit “, and (c) a Health Service Commissioner for Scotland”; and

(b)

in subsection (3) omit “and the Health Service Commissioner for Scotland”.

(3)

In section 2 (bodies subject to investigation)(f3) omit subsection (3).

(4)

In section 2A (health service providers subject to investigation)(f4)–

(a)

omit subsection (3); and

(b)

in subsection (4)(a) for “, (2) or (3)” substitute “or (2)”.

(5)

In section 2B (independent providers subject to investigation)(f5)–

(a)

omit subsection (3);

(b)

in subsection (4) for “, (2)(a) or (3)(a)” substitute “or (2)(a)”; and

(c)

in subsection (5), for “, (2) or (3)” substitute “or (2)”.

(6)

In section 7(2)(a) (personnel, contracts etc)(f6) omit “and, in relation to Scotland, by section 17A of the National Health Service (Scotland) Act 1978”.

(7)

In section 11(4) (procedure in respect of investigations)(f7) omit “or the Health Service Commissioner for Scotland”.

(8)

In section 14 (reports by English and Scottish Commissioners)(f8)–

(a)

in subsections (1), (2), (2A), (2B), (2C), (2D), (3) and (5), omit “or the Health Service Commissioner for Scotland”;

(b)

in subsections (1)(b), (2)(b), (2A)(b), (2B)(b), (2C)(b) and (2D)(b) omit “or member of the Scottish Parliament”;

(c)

in subsection (4)–

(i)

omit “and the Health Service Commissioner for Scotland”; and

(ii)

in paragraphs (a) and (b) omit “each” where it first occurs; and

(d)

in the heading omit “and Scottish”, and for “Commissioners” substitute “Commissioner”.

(9)

In section 18 (consultation during investigations)(f9)–

(a)

in subsection (1)–

(i)

in paragraph (a) for “by either of the other Health Service Commissioners” substitute “by the other Health Service Commissioner”;

(ii)

in paragraph (d) for “by the Commissioner for Local Administration in Scotland under Part II of the Local Government (Scotland) Act 1975” substitute “by the Scottish Public Services Ombudsman under the Scottish Public Services Ombudsman Act 2002”; and

(iii)

after paragraph (d) omit “the” where it occurs after “appropriate Commissioner or” and where it occurs after “that Commissioner or”; and

(b)

in subsection (2) after “another Commissioner” insert “, the Scottish Public Services Ombudsman”.

(10)

In section 19 (interpretation)(f10) in the definition of “the Court”, omit “in relation to Scotland, the Court of Session,”.

(11)

In Schedule 1 (the English and Scottish Commissioners)–

(a)

in the heading(f11) omit “and Scottish”, and for “Commissioners” substitute “Commissioner”;

(b)

in paragraph A1 (introductory)(f12) omit the words from “or” to the end of the paragraph;

(c)

in paragraph 1 (appointment of Commissioners)(f13)–

(i)

in sub-paragraph (2)(b) omit “except in the case of the Health Service Commissioner for Scotland” and “or”; and

(ii)

omit sub-paragraph (2)(c);

(d)

in the heading to paragraph 2, for “Commissioners” substitute “Commissioner”;

(e)

in paragraph 2(1) (appointment of acting Commissioners)(f14)–

(i)

for “either of the offices” substitute “the office”; and

(ii)

for “that” substitute “the”;

(f)

in paragraph 3(2) (ineligibility of certain persons for appointment)(f15)–

(i)

after “means” omit “(a) in relation to the Health service Commissioner for England or a person appointed to act as such,”;

(ii)

omit “, and” at the end of head (a); and

(iii)

omit head (b);

(g)

in paragraph (3A)(2) (ineligibility of certain persons for appointment)(f16)–

(i)

after “means” omit “(a) in relation to the Health Service Commissioner for England or a person appointed to act as such,”;

(ii)

omit “, and” to the end of head (a); and

(iii)

omit head (b);

(h)

in paragraph 4 (salaries)(f17) omit head (b);

(i)

in paragraph 6(f18)–

(i)

in sub-paragraph (1)(b) for “either or both of the offices” substitute “the office”; and

(ii)

omit sub-paragraph (2);

(j)

in paragraph 9(1) (pensions and other benefits) for “any of the offices” substitute “the office”;

(k)

in paragraph 12 (staff and advisers)(f19) omit “the other Commissioner,”; and

(l)

in paragraph 14 (financial provisions) omit “except the Health Service Commissioner for Scotland”.

(12)

In Schedule 1A (the Welsh Commissioner)(f20)–

(a)

in paragraph 5(3) (remuneration) for “either or both of the other offices” substitute “the other office”; and

(b)

in paragraph 6(5)(c) (staff and advisers) for “another” substitute “the other”.

(13)

In Schedule 2 (consequential amendments) omit paragraphs 5 and 6.

18Deregulation and Contracting Out Act 1994 (c. 40)

In section 79(1) of the Deregulation and Contracting Out Act 1994 (interpretation of Part 2)(f1) in the definition of “office-holder” omit from “or” where it first occurs to “Scotland” where it first occurs and substitute “, the Health Service Commissioner for England or for Wales or the Scottish Public Services Ombudsman”.

19Data Protection Act 1998 (c. 29)

In paragraph (a) of section 31(4) of the Data Protection Act 1998 (regulatory activity)(f1)–

(a)

in subsection (ii)–

(i)

after “England” insert “or”; and

(ii)

omit “or the Commissioner for Local Administration in Scotland”;

(b)

in subsection (iii)–

(i)

after “England” insert “or”; and

(ii)

omit “or the Health Service Commissioner for Scotland”;

(c)

in subsection (v) omit “or”;

(d)

in subsection (vi) for “and” substitute “or”; and

(e)

after that paragraph insert “(vii) the Scottish Public Services Ombudsman, and”.

20Government of Wales Act 1998 (c. 38)

In paragraph 27 of Schedule 9 to the Government of Wales Act 1998 (consultation and co-operation with other Ombudsmen)–

(a)

in sub-paragraph (1)–

(i)

in paragraph (b) omit “or”;

(ii)

after paragraph (c) insert

“or

(d)

by the Scottish Public Services Ombudsman under the Scottish Public Services Ombudsman Act 2002,”;

(iii)

after “appropriate Commissioner” insert “or Scottish Public Services Ombudsman as the case may require”; and

(iv)

after “that Commissioner” insert “or the Scottish Public Services Ombudsman”; and

(b)

in sub-paragraph (2) after “Commissioner” insert “or the Scottish Public Services Ombudsman”.

Signature

ANNE C McGUIRE

Parliamentary Under Secretary of State,

Scotland Office, Department for Constitutional Affairs Dover House, London

13th July 2004

Explanatory note

(This note is not part of the Order)

This Order makes provision consequential on the Scottish Public Services Ombudsman Act 2002 (“the 2002 Act”).

Section 13(7) and (8) of the 2002 Act ensure that the Ombudsman cannot require any person to supply information, or answer questions, relating to proceedings of the Scottish Cabinet. Article 3 of the Order makes the same provision in respect of the UK Cabinet.

Section 19(6) and (7) of the 2002 Act provides that where a member of the Scottish Executive gives the Ombudsman notice that disclosure of any document or information would be contrary to the public interest, the Ombudsman is prevented from communicating such documents or information for any purpose. Article 4 of the Order makes equivalent provision for Ministers of the Crown.

Section 21 of the 2002 Act makes provision for the Scottish Public Services Ombudsman to consult with other national Ombudsmen, Parliamentary and Health Commissioners. Articles 5, 6, 17 and 20 accordingly update references and existing legislation to take account of section 21 of the 2002 Act.

Articles 7 to 19 make other consequential modifications required as a result of the 2002 Act.