Acts of the Scottish Parliament

Part 4 - Enforcement and Scrutiny

Section 23 - Enforcement: preliminary notice

68.     Section 23 sets out the circumstances in which the Scottish Ministers are allowed to act to enforce a local authority's obligations under sections 1, 13, 15, and 17 and the preliminary procedure that must be followed.

69.     Subsection (1) specifies the procedure to be followed after a recommendation has been made to the Scottish Ministers by the Accounts Commission under the powers provided under section 103D of the 1973 Act. In such circumstances, before issuing a preliminary notice, the Scottish Ministers must take the view that that a local authority is failing to comply with its obligations under sections 1, 13, 15, or 17, and that giving the local authority an enforcement direction is justified in such circumstances.

70.     Subsection (2) specifies the procedure to be followed by the Scottish Ministers in circumstances where no recommendation has been made by the Accounts Commission. In such circumstances, before issuing a preliminary notice, the Scottish Ministers must satisfy themselves that a local authority is failing to comply with its duty under section 1 (best value), and that giving the local authority an enforcement notice is justified to protect the public interest from substantial harm.

71.     If the conditions in subsections (1) and (2) are met, the Scottish Ministers may serve a preliminary written notice on that authority. Subsection (3) provides that this notice should inform the authority that in the Scottish Ministers' opinion the criteria set out above apply and asks for a response. The response may be to argue that the case does not meet the criteria, or that although the preliminary notice is accurate, there are persuasive reasons why further intervention is not appropriate.

Section 24 - Enforcement directions

72.     Section 24 provides the Scottish Ministers with the power to direct a local authority to take action to ensure that it complies with its obligations under sections 1, 13, 15 and 17. Subsection (1) provides that it is only after considering the local authority's response to the preliminary notice, or after the deadline for offering such a response has expired that the Scottish Ministers will have the power to issue an enforcement direction. Such a direction must be subsequent to the preliminary notice described in section 23, but does not have to be made. Subsection (2) provides that the Scottish Ministers may specify in the direction the action required of the local authority to remedy or prevent the recurrence of its failure to comply with its obligations. Subsection (3) allows the Scottish Ministers to place conditions on the continued exercise of certain of the local authority's functions. The Scottish Ministers may subsequently amend the direction without having to repeat the preliminary notice procedure described in section 23, and may revoke the direction at any time. Subsection (4) provides that the direction may include a direction for the local authority to rectify inaccuracies in its financial accounts.

73.     Subsection (8) places local authorities under a duty to follow any direction made to them by the Scottish Ministers.

74.     Subsection (9) provides that in addition to or in place of any enforcement direction the Scottish Ministers may make recommendations to any persons they think appropriate. Such recommendations could be made, for example, to the local authority or to any inspection or regulatory body who may have an interest.

75.     Subsection (10) provides that if the Scottish Ministers use their power to direct (or to vary or revoke an enforcement direction) then they must prepare a report on that use and lay any such report before the Scottish Parliament.

Section 25 - Scrutiny of local authorities' police and fire functions

76.     This section provides that inspectors of both constabulary and fire services may inspect police and fire authorities and joint boards respectively for their compliance with the duties set out in sections 1, 13, 15, 16, 17 and 20 (duties under best value, Community Planning and power of well-being). In addition inspectors may report to the Scottish Ministers on any matter arising out of such inspections.

Section 26 - Excess of power: preliminary notice

77.     Section 26 sets out the circumstances in which the Scottish Ministers are allowed to act to enforce action after they are satisfied that a local authority has significantly exceeded its power to advance well-being and where they consider that enforcement is justified.

78.     In such circumstances, the Scottish Ministers may serve a preliminary written notice on that authority. Subsection (2) provides that this notice should inform the authority that in the Scottish Ministers' opinion the circumstances set out in subsection (1) have occurred. The Scottish Ministers will require a response, which may be to argue that the case does not meet the criteria, and in this case such a response will need to be justified. Alternatively the response will need to give reasons why, even though the preliminary notice is accurate, the local authority considers further intervention is not appropriate. Subsection (3) provides that it is only after considering this response, or after the deadline for offering such a response has expired, that the Scottish Ministers will have the power to issue an enforcement direction as provided in section 27.

Section 27 - Excess of power: enforcement

79.     Section 25 provides the Scottish Ministers with the power to direct a local authority to take specified action to remedy or prevent the recurrence of its significant excess of the power. Such a direction must be subsequent to the preliminary notice described in section 24, but does not have to be made. Subsection (2) provides that the Scottish Ministers may place conditions on the continued exercise of certain of the local authority's functions. The Scottish Ministers may subsequently amend the direction without having to repeat the preliminary notice procedure described in section 24, and may revoke the direction at any time.

80.     Subsection (7) placed local authorities under a duty to follow any direction made to them by the Scottish Ministers.

81.     Subsection (8) provides that if the Scottish Ministers use their power to direct (or to vary or revoke an enforcement direction) then they must prepare a report on that use and lay any such report before the Scottish Parliament.

Part 5 - Rating and council tax

Section 28 - Rate Relief on former agricultural premises

82.     This section establishes, with effect from 1 April 2003, a 50 per cent mandatory rate relief scheme for lands and buildings used for non-agricultural purposes on what had previously been agricultural lands and buildings. The section also gives local authorities a discretionary power to increase the relief to 100 per cent. This section sets out the conditions that the lands and heritages must meet if they are to qualify for the 50 per cent mandatory rate relief.

83.     This section also places a 5 year limit on the relief from the date the provision comes into effect. It also gives the Scottish Ministers power to extend the life of the scheme for a further period or periods and if the period is extended, limits the mandatory relief for lands and heritages that include land and buildings already qualifying for relief, to a 5 year period from the date this provision comes into effect.

84.     The mandatory relief described above will not be available to stud farms, which already benefit from an existing concession that reduces their rateable value. Under existing legislation, local authorities have a discretionary power to increase rate relief to 100 per cent. Stud farms newly established on or after 1 April 2003 will be able to qualify for this discretionary relief by virtue of section 28. However, this will be subject to the rateable value of the lands and heritages occupied by the stud farm, shown in the valuation roll at the beginning of the financial year, not being more than the amount prescribed by the Scottish Ministers.

Section 29 - Rate relief for food stores in rural settlements

85.     This section extends 50 per cent mandatory rate relief, currently only available to the sole village general store and post office under the rural (village shop) rate relief scheme, to qualifying food stores. This section defines a qualifying food store as one that wholly or mainly sells food on a retail basis for human consumption. The supply of confectionery and of hot food in the course of catering is excluded. The amendments made by this section have effect from 1 April 2003.

Section 30 - Derating of automatic telling machine sites

86.     This section provides that for any financial year beginning on or after 1 April 2003, the sites of automatic telling machine which are within a settlement identified in a rating authority's rural settlement list shall not be entered in the valuation roll. This provision does not apply to the sites of automatic telling machines which are located within buildings occupied by a bank or a building society which provides other services.

Section 31 - Derating of certain buildings used in connection with agricultural operations

87.     This section amends section 14 of the Local Government (Financial Provisions) (Scotland) Act 1963 (c.12) to further extend the current exemption from rates available to certain buildings used in connection with agricultural operations to reflect modern farming practices so that where farmers work on other agricultural land, perhaps on a share or contract basis, or through the pooling of resources or machinery, the exemption will apply. This amendments made by this section will have effect from 1 April 2003.

Section 32 - Power to combine lands and heritages situated in more than one valuation area

88.     This section provides the Scottish Ministers with new order making powers to put in place procedures which will assist the Scottish Assessors in carrying out a conventional valuation of those industries which currently have their rateable value prescribed by order in as efficient and effective a manner as possible. This would be at the next revaluation in 2005 should the Scottish Ministers decide to return the prescribed industries to conventional valuation. The 'prescribed' industries are electricity, gas, water, rail, train operating companies and large docks and harbours. These industries currently have no right of appeal against the valuation. The intention to return the prescribed industries to conventional valuation is currently the subject of a consultation exercise. "Non-domestic rates: Returning Prescribed Industries to Conventional Valuation - A consultation paper" was issued on 18 December 2002 and the closing date for comments is 13 March 2003.

89.     The Scottish Ministers may provide by order that a single Assessor can be appointed to value an industry as a whole. This "designated" Assessor would have the same powers of entry and right to request information throughout Scotland as the Assessor currently has within the Assessor's own valuation authority area. The Scottish Ministers may also provide by order that the valuation figure for each industry can be entered in one valuation roll or apportioned amongst valuation rolls. The Scottish Ministers may also provide by order that the Valuation Appeal Committee within the "designated "Assessor's own valuation authority area can hear and determine appeal and complaints under the Valuation Acts in relation to the valuation of these industries. Before making any such orders the Scottish Ministers are required to consult with such association of local authorities and other such persons, as they think appropriate.

Section 33 - Council tax: discount for unoccupied dwellings

90.     This section provides the Scottish Ministers with regulation making powers in relation to the setting of the council tax on second and long-term empty homes. The powers will enable the regulations, which must be approved in draft by a resolution of the Scottish Parliament, to cover a wide number of outcomes.

Part 6 - Waste Management

Section 34 - Integrated waste management plans

91.     Section 34 inserts several new sections after section 44 of the Environmental Protection Act 1990 (c.43). References to section numbers below are to the new sections of the 1990 Act.

44ZA - Duty to prepare integrated waste management plan

92.     This section outlines the duty of the local authorities to prepare an integrated waste management plan and submit it to the Scottish Ministers for approval. It describes the role of the integrated waste management plans, and gives the Scottish Ministers the power to issue directions as to their content, including the setting of performance targets and the requirement to set out plans for co-operation with other local authorities. The Scottish Ministers are given the power to direct the timescale by which the integrated waste management plans have to be prepared and submitted and the period they will cover. Local authorities, when preparing the integrated waste management plan, will have regard to such matters as the Scottish Ministers may direct. National Waste Strategy in this context incorporates associated documents such as Area Waste Plans and National Waste Plans.

44ZB - Approval of integrated waste management plan

93.     This section sets out the procedures for the approval of integrated waste management plans by the Scottish Ministers. When approval is not given to a plan the Scottish Ministers shall notify the local authority in writing and request them to outline and submit a new plan. The Scottish Ministers may also make modifications to the submitted plans and provide written approval and copies of any approved plan and send a copy to SEPA. The local authority shall make arrangements to allow any person to inspect their integrated waste management plan or request copies of it.

44ZC - Implementation of integrated waste management plan

94.     This section gives local authorities the duty to endeavour to carry out their waste management functions in accordance with its approved integrated waste management plan, and if requested to do so by the Scottish Ministers, to provide a statement of whether they are doing so. The Scottish Ministers are given the power to direct local authorities as to the information to be provided in that statement, and in particular on progress towards meeting performance targets. The Scottish Ministers may also require explanations as to why performance targets have not been met.

44ZD - Modification of integrated waste management plan

95.     This section sets out provisions for modifications to integrated waste management plans. Modifications can be proposed by the local authority, or required by the Scottish Ministers. The provisions of section 44ZA to 44ZD apply to modified plans as they do to the original plan prepared under section 44AZ(1).

Part 7 - Finance

Section 35 - Capital expenditure limits

96.     This section places local authorities under a duty to manage their own capital expenditure. Subsection (2) provides that in so doing local authorities should comply with any regulations issued by the Scottish Ministers. Subsection (3) describes what such regulations might cover, such as requirements to determine, review, report on and publish information about capital expenditure. Subsection (4) ensures that local authorities are obliged to comply with any relevant codes of practice referred to in the regulations.

Section 36 - Imposition of capital expenditure limits

97.     This section provides that the Scottish Ministers may by order determine maximum limits on how much local authorities (and, by direction, a particular local authority) can allocate to capital expenditure in a specified period. Such orders or directions can be used to specify different limits for different kinds of capital expenditure.

98.     Subsection (4) provides that as soon as practicable after making any order or direction under this section the Scottish Ministers must make a report to the Scottish Parliament on why they issued such an order (or direction) and the predicted effect of any such order (or direction).

Section 37 - Capital grants

99.     Section 37 provides that the Scottish Ministers may also make grants to local authorities for use as capital expenditure and that in doing so, they may attach conditions to the grants (including conditions on repayment of such grants).

Section 38 - Scottish Ministers' power to pay off loans made by local authorities

100.     Section 38 provides that the Scottish Ministers may make payments direct to the Public Works Loans Board or any other person to reduce or extinguish a loan previously made to a local authority for the purposes of capital expenditure.

101.     Subsection (2) provides that after making any such payment under this section the Scottish Ministers must lay a report before the Scottish Parliament outlining their reasons for doing so.

Section 39 - Provisions supplementary to section 35 to 38

102.     This section provides a definition of capital expenditure, which includes a reference to the definition of "proper accounting practice" in section 12. It provides that the new arrangements in sections 35 to 38 apply to those bodies within the audit remit of the Accounts Commission (as specified by section 106 (1)(b) of the 1973 Act). The Scottish Ministers may also apply sections 35 to 38 by order to any other persons they think fit, if it is on the grounds that such persons have functions similar to those of local authorities.

103.     Subsections (5) and (6) provide that regulations and orders under sections 35 or 39, shall be made after consultation and subject to Parliamentary approval. Section 40 - Power of local authorities to invest money

Section 40 Power of local authorities to invest money

104.     This section provides that local authorities may invest money in accordance with regulations made by the Scottish Ministers. Such regulations will specify the nature and scope of investment by local authorities; for example, by specifying the type of investment that both can and cannot be made by local authorities and specifying any relevant code of practice or other document that should be followed in relation to such investment. These regulations are expected to disapply such investment from previous statutory ties such as to the Trustee Investments Act 1961 (c.62).

Section 41 - Establishment of further local authority funds other than general fund: setting of council tax

105.     Section 41 amends section 93 of the 1973 Act to enable the Scottish Ministers to define financial liabilities and provisions that local authorities can identify in reserves, separate from their General Fund accounts. It also amends section 93 of the Local Government Finance Act 1992 (c.14) to allow the Scottish Ministers to require that these liabilities and provisions are ignored by local authorities in setting their annual council tax levels.

Part 8 - Miscellaneous

Section 42 - Paid time off for councillors not to be a political donation

106.     Where any salary is paid to an employee by an employer in respect of time off taken in order to undertake duties as a local councillor, this section ensures that the value of the salary is not classified as a political donation under Schedule 7 to the Political Parties, Elections and Referendums Act 2000 (c.41).

107.     The time off for which pay will not count as a political donation is time off for a widely defined range of duties, including the doing of anything for carrying out the functions of the council to which a councillor has been elected and the doing of anything for carrying out any functions of another council where that other council has delegated the discharge of those functions to the councillor's council.

108.     The section will apply retrospectively, so that any pay for time off which may have been granted to councillors since 16^th February 2001, when the requirements of Schedule 7 to the 2000 Act came into force, will no longer be considered a political donation.

109.     The Electoral Commission is required by this section to remove from the register of recordable donations any entry they would not have had to make had this section been in force on 16 February 2001.

Section 43 - Remote participation in and calling of local authority meetings

110.     This section provides that in addition to the traditional form of meeting with members being present in one place, meetings of a local authority may be conducted in any way in which each member can communicate with each other, for example by video-conference. Subsection (2) provides that such meetings shall be conducted only on the direction of the convenor (or deputy convenor in the absence of the convenor) of the authority, committee, or sub-committee concerned. Subsection (4) allows summons to meetings to be delivered by means other than post or hand-delivery, for example, by e-mail.

Section 44 - Travel concessions

111.     This section equalises for both men and women the age of eligibility for concessionary travel at age 60. This ensures that men and women aged 60 and over will be entitled to the same concession travel arrangements within their local transport area. This section amends section 93(7) of the Transport Act 1985 (c.67) to remove the differential in eligibility for concessionary travel between men and woman. Similarly, it amends the definition of "eligible persons" under section 68(7) of the Transport (Scotland) Act 2001 (asp 2) and gives the Scottish Ministers power to make an order providing for the age of eligibility for concessionary travel to rise in due course in line with Schedule 4 to the Pensions Act 1995 (c.26).

Section 45 - Power to charge for vacant places on school buses

112.     This section amends section 51 of the Education (Scotland) Act 1980 (c.44) to allow a local authority to charge a sum it considers appropriate for the use by pupils of vacant places on school buses.

Section 46 - Power to provide funds for speed cameras etc.

113.     This section enables the Scottish Ministers to provide funding to local authorities in whatever capacity (e.g. local roads authority, district court, police authority) and also joint police boards specifically for purposes connected to the prevention, detection and enforcement of speeding and red light offences.

114.     The payments can be made either direct to the local authority or joint police board, or to another local authority (or board) on their behalf. This provision is required because many safety camera partnerships involve several local authorities, with the payments on behalf of the whole partnership being directed to a lead authority.

115.     The Scottish Ministers are entitled to determine the timing, manner and any conditions under which the payments are made. This will enable the Scottish Ministers to set requirements for safety camera partnerships, for example, on the location and signing of speed cameras.

Section 47 - Power to provide funds for private water supplies

116.     This section places a duty on local authorities to pay grants towards the improvement of private water supplies in accordance with conditions to be prescribed in regulations. It also places a duty on the Scottish Ministers to provide grants to local authorities in respect of their reasonable expenditure under this section.

Section 48 - Delegation of Strathclyde Passenger Transport Authority functions to officials

117.     This section widens the powers of delegation afforded to Strathclyde Passenger Transport Authority. At present it may only delegate to is Chairman or to a sub-group of the Authority. The section will also give it powers to delegate as it may see fit to its Secretary, or to other officials appointed by the Authority.

Section 49 - Parliamentary procedure for regulations about vehicles used as taxis and private hire cars

118.     This section requires all regulations made by the Scottish Ministers under sections 20(1) and 20(2) of the Civic Government (Scotland) Act 1982 (c.45) to be subject to scrutiny by the Scottish Parliament.

Section 50 - Suspension of requirement to advertise principal teacher posts

119.     This section amends the Education (Scotland) Act 1980 (c.40) in connection with the advertising of principal teacher posts. To enable the introduction of a new career structure for the teaching profession without following the advertisement and appointment procedures required by that Act, the provisions in that Act requiring Principal Teacher posts to be advertised are suspended for 1 year.

Section 51 - Arrangements and agreements with bodies corporate

120.     Section 51 provides that where a local authority enters into any arrangement or agreement with a body corporate, it must comply with any code of practice or document which the Scottish Ministers specify by direction is appropriate. Subsection (2) provides that such a direction may include requirements relating to the duty of Best Value described in section 1.

Section 52 - Guidance on contractual matters

121.     Section 52 provides that the Scottish Ministers may issue guidance on contractual matters to which local authorities must have regard when entering into contracts.

Section 53 - Qualification of and assistance for Accounts Commission auditors

122.     This section amends the provisions in the 1973 Act relating to appointment of local authority auditors to allow a wider group of qualified persons from within the UK or European Economic Area to undertake this role. In addition this section provides for a scheme of delegation whereby auditors approved by the Accounts Commission for Scotland may delegate some or all of their functions to another individual or group where approval from the Accounts Commission has been sought.

Section 54 - Accounts Commission's and auditor's powers to obtain information from persons other than local authorities etc.

123.     Section 54 extends the audit arrangements for local authorities (as provided by the 1973 Act) to ensure that they cover any involvement by a local authority in a body corporate, for example, a company.

124.     Subsection (1) amends section 97B (power of the Accounts Commission to require the furnishing of information and documents) of the 1973 Act to ensure that, where deemed necessary, the Accounts Commission have the authority to obtain relevant information from any body corporate which is discharging functions on behalf of the local authority.

125.     Subsection (2) amends section 100 (auditor's right of access to documents) of the 1973 Act to ensure that those charged with the responsibility for auditing a local authority's accounts have a right of access to the accounts of any body corporate which, by arrangement or agreement, is discharging any of the local authority's functions on its behalf.

Section 55 - Auditor's duty in relation to aspects of best value and community planning

126.     Section 55 amends the 1973 Act to widen the existing duty of local authority auditors so that they can audit the arrangements local authorities have made to secure Best Value and to initiate, maintain and facilitate the process of community planning.

Section 56 - Extension of Controller of Audit's reporting functions to best value and community planning: amendment of section 102 of 1973 Act

127.     This section restates certain of the Controller of Audit's reporting functions, originally provided by the 1973 Act, and extends them so that they include reports about a local authority's performance in discharging any of its obligations under Parts 1 (Best Value and Accountability) and 2 (Community Planning).