Acts of the Scottish Parliament

2003 asp 1

The Bill for this Act of the Scottish Parliament was passed by the Parliament on 8th January 2003 and received Royal Assent on 11th February 2003

An Act of the Scottish Parliament to provide anew about the way in which local authorities discharge their functions and about the local provision of certain public services; to give local authorities power to do things which they consider will advance well-being; to provide exemptions and reliefs from non-domestic rates in relation to certain lands and heritages; to confer power on the Scottish Ministers to combine certain lands and heritages for the purposes of assessing rateable value; to require local authorities to prepare, and endeavour to implement, a plan relating to the carrying out of their waste disposal and collection functions; to make new provision about the capital expenditure of those authorities and about the making of capital grants to them; to make some miscellaneous provisions connected with the functions of local authorities; and for connected purposes.

(a) the quality of its performance of its functions;

(b) the cost to the authority of that performance; and

(c) the cost to persons of any service provided by it for them on a wholly or partly rechargeable basis.

(a) efficiency;

(b) effectiveness;

(c) economy; and

(d) the need to meet the equal opportunity requirements.

(a) to any guidance provided by the Scottish Ministers for local authorities on the performance of those duties; and such guidance may include guidance on-

(i) how to make and what is to be included in the arrangements referred to in subsection (1) of that section;

(ii) how to implement the duty imposed by that subsection; and

(b) to what are, whether by reference to any generally recognised, published code or otherwise, regarded as proper arrangements for the purposes of section 1(1) above (or purposes which include those purposes).

(a) direct the Controller of Audit to carry out further investigations;

(b) hold a hearing;

(c) state its findings.

(a) sections 103C(2) and (5) and 103D(a) of the 1973 Act shall be ignored; and

(b) the other provisions of section 103D shall be taken to extend to findings which do not follow a hearing.

(a) any local authority likely to be affected by any findings made; and

(b) any person likely to be so affected (or the representative of such a person),

(a) after "for", where first occurring, there is inserted-

(b) for "for", where second occurring, there is inserted-

paragraph (a) (which provides that the terms and conditions of employment of, and certain other arrangements affecting, contractors' workers are to be disregarded by authorities when exercising certain functions relating to public supply or works contracts);

paragraph (b) (which provides that the question whether contractors sub-contract to self-employed individuals on a services-only basis is to be likewise disregarded); and

paragraph (d) so far as relating to the conduct of contractors or their workers in industrial disputes between them (which paragraph provides that such conduct is to be likewise disregarded).
 

(a) where the local authority reasonably seeks to ensure that a contractor with the authority will comply with the contractor's obligations under the contract;

(b) where the local authority reasonably seeks to ensure that a contractor with the authority will perform the contractor's obligations under the contract in a way which will not prevent the authority from securing best value or hinder it in doing so; and

(c) where the local authority has reasonable grounds for believing that the trade contractor's implementation of the contract with the authority would entail a relevant transfer within the meaning of the Transfer of Undertakings (Protection of Employment) Regulations 1981 (S.I. 1981/1794) or any regulations replacing those regulations, as from time to time amended.

(a) in subsection (1)-

(i) for "public body within the meaning of this section" and "body", wherever subsequently occurring, there is, in each case, substituted "person";

(ii) after "may", where it first occurs, there is inserted ", in relation to any relevant trading operation carried on by the authority,";

(iii) in paragraph (b), the words "administrative, professional or technical" are repealed;

(iv) in paragraph (c), for "vehicle, plant or apparatus belonging to" there is substituted "property belonging to or facilities under the control of" and for "vehicle or other property" there is substituted "property or facility"; and

(v) paragraph (d) and the words which follow it are repealed;

(b) after that subsection there is inserted-

(c) in subsection (2)-

(i) for the words "preceding subsection" there is substituted "subsection (1) above";

(ii) paragraph (a) and the word "or" which immediately follows it are repealed;

(iii) after "property" there is inserted ", goods or materials"; and

(iv) after "except" there is inserted "(i)" and at the end there is inserted";

(d) in subsection (4)-

(i) the definitions of "public body" and "works of maintenance" are repealed; and

(ii) in their place there is inserted-

"property" includes land, accommodation, vehicles, plant and apparatus;”; and

(e) subsections (5) and (6) are repealed.

(a) in subsection (1) for "public body" there is substituted "person"; and

(b) subsections (4) and (5) are repealed.

(a) restricting the exercise of the power under subsection (1) above by reference to the likely gross expenditure of the local authority in any financial year occasioned by its exercise of the power when taken together with the likely gross expenditure of the authority in that year on-

(i) all other construction of building or works; and

(ii) all works of maintenance of land or buildings,

undertaken by the authority, and

(b) otherwise prescribing how local authorities are to exercise the power.

(a) in relation to every three year period; and

(b) taking every year with the two previous years,

(a) in subsection (2) (prohibition of disposal of land for less than best consideration reasonably obtainable except with consent) for the words "with the consent of the Secretary of State," there is substituted "in accordance with regulations under subsection (2C) below,";

(b) after subsection (2) there are inserted the following subsections-

(a) those which the local authority is required to observe by virtue of any enactment;

(b) those which have been specified in guidance issued for the purposes of this section and that section by the Scottish Ministers;

(c) those which, whether by reference to any generally recognised, published code or otherwise, are regarded as proper accounting practices to be observed in the preparation and publication of accounts of local authorities.

(a) for a summary of the local authority's assets and their value, its sources of income, the amounts derived from those sources, and its expenditures to be included in that which is to be reported under subsection (1) above;

(b) for the local authority's trading accounts or a summary thereof to be included in that which is to be reported under subsection (1) above;

(c) for a summary of the authority's expenditure under such works contracts as may be specified in the regulations to be included in that which is to be reported under subsection (1) above;

(d) for the publication of the information which is to be provided under section 1 (power of Accounts Commission to direct publication of information about standards of performance) of the Local Government Act 1992 (c.19), to be included in that which is to be reported under subsection (1) above; and

(e) for-

(i) a statement setting out the arrangements the local authority had in place under section 1 above during the financial year immediately preceding that in which the statement is made and describing what it did under those arrangements and to what effect, including an account of how what it did contributed to the achievement of sustainable development;

(ii) a statement specifying by what means and when the local authority proposes to carry out its duties under this section during the remainder of the year in which the statement is made; and

(iii) a statement specifying any unimplemented recommendations about the performance of the authority's functions made to the authority by any person discharging a power or duty under an enactment to make the recommendation,

to be included in that which is to be reported under subsection (1) above.

(a) in subsection (1)-

(i) after "year", where first occurring, there is inserted "or such other period as is specified in the direction being a period beginning not less than 3 months after the giving of the direction";

(ii) after "effectiveness" there is inserted "and of securing best value in accordance with section 1 of the Local Government in Scotland Act 2003 (asp 1)";

(iii) after "year", where secondly occurring, there is inserted "or other period";

(iv) after "years", there is inserted "or, as the case may be, other periods";

(b) in subsection (2), after "year", in each place where that word occurs, there is inserted "or other period".

(a) in subsection (1)(a), after "years" there is inserted "or other periods"; and

(b) in subsection (4) there is inserted at the end "or, where another period has, under section 1(1) above, been specified in the direction, than such date as is there specified for the purposes of this subsection.".

(a) after consultation-

(i) among all the public bodies (including the local authority) responsible for providing those services; and

(ii) with such community bodies and other bodies or persons as is appropriate; and

(b) after and by way of such co-operation among those bodies and persons as is appropriate.

(a) invite; and

(b) take suitable action to encourage,

"community bodies", in relation to a local authority, are bodies or other groupings, whether or not formally constituted, established for purposes which consist of or include that of promoting or improving the interests of any communities (howsoever described) resident or otherwise present in the area of the local authority; and

"other public bodies" means-

(a) public authorities or bodies;

(b) bodies which, not being public bodies, have functions of a public nature or engage in activities of that nature;

(c) persons or office-holders who have such functions or engage in such activities,

but does not include any of the bodies referred to in section 16(1) below.

(a) a local authority;

(b) a Health Board;

(c) a joint police board for the purposes of the Police (Scotland) Act 1967 (c.77);

(d) a joint board for the purposes of the Fire Services Act 1947 (c.41);

(e) the chief constable of a police force;

(f) Scottish Enterprise;

(g) Highlands and Islands Enterprise;

(h) Strathclyde Passenger Transport Authority,

(a) a public authority or body;

(b) a body which, not being a public body, has functions of a public nature or engages in activities of that nature; or

(c) a person or office-holder who has such functions or engages in such activities.

(a) specify the area or areas in respect of which the duty imposed by subsection (1) above is to be performed;

(b) modify that duty.

(a) the body to be referred to; and

(b) each local authority in the area of which the body provides public services.

(a) community planning; or

(b) any authority or body which or office-holder or person who must or might participate or is participating in it,

(a) after "opinion" there is inserted"-

(b) paragraphs (a) and (b) become respectively sub-paragraphs (i) and (ii);

(c) at the end there is inserted-

(a) on the application of the local authority together with one or more of the bodies, office-holders and other persons participating in community planning in the area of the local authority; and

(b) after considering a report on the matters specified in subsection (2) below made to them by one or more of all the persons mentioned in paragraph (a) above,

(a) what consultations were conducted on the question whether to apply for an order under that subsection;

(b) what were the views on that question of the persons participating in community planning in the area of the local authority;

(c) what were the views of persons (other than those referred to in paragraph (b) above) consulted on that question;

(d) what functions should be specified in the order made under that subsection; and

(e) such other matters as may by regulations be prescribed by the Scottish Ministers.

(a) the membership of the body established under it;

(b) the proceedings of the body;

(c) the transfer of property, rights and liabilities to and from the body;

(d) the appointment and employment by the body of staff;

(e) the supply by other authorities, bodies, office-holders and persons of services for the body;

(f) the audit of the accounts of the body;

(g) the dissolution of the body; and

(h) such other matters as the Scottish Ministers think fit.

(a) the absence of any enactment or rule of law providing for the discharge of that function otherwise than by the authority, body, office-holder or other person having that function; or

(b) any enactment or rule of law preventing the discharge of that function in that way.

(a) its area and persons within that area; or

(b) either of those.

(a) incur expenditure,

(b) give financial assistance to any person,

(c) enter into arrangements or agreements with any person,

(d) co-operate with, or facilitate or co-ordinate the activities of, any person,

(e) exercise on behalf of any person any functions of that person, and

(f) provide staff, goods, materials, facilities, services or property to any person.

(a) the whole or any part of the area of the local authority;

(b) all or some of the persons within that area.

(a) in relation to, or for the benefit of, any persons or place outwith the area of the local authority; or

(b) in any such place,

(a) prohibits or prevents the local authority from doing anything or limits its powers in that respect; and

(b) is expressed in an enactment (whenever passed or made).

(a) setting and determining amounts of council tax; or

(b) subject to subsection (9) below, imposing reasonable charges for anything done by the authority under section 20 above.

(a) functions relating to education in schools;

(b) functions relating to the provision of a public library service;

(c) functions relating to fire fighting, that is, putting out fires and protecting life and property when fire occurs;

(d) functions relating to the registration of elections;

(e) functions relating to the conduct of elections;

(f) such other functions as may by order be prescribed for the purposes of this subsection by the Scottish Ministers.

(a) that a local authority is not complying or has not complied with its duties under section 1, 13, 15 or, as the case may be, 17 above; and

(b) that an enforcement notice is justified,

(a) that a local authority is not complying or has not complied with section 1; and

(b) that giving the local authority an enforcement direction is justified in order to protect the public interest from substantial harm,

(a) informs the authority of its apparent failure to comply with its duties under sections 1, 13, 15 or, as the case may be, 17 above; and

(b) requires the authority to submit to the Scottish Ministers, within such time as is specified in the notice, a written response which-

(i) states that it has not failed to comply with its duties under section 1, 13, 15 or, as the case may be, 17 above in the respects described in the notice and justifies the statement; or

(ii) states it has so failed but gives reasons why they should not give it an enforcement direction.

(a) prepare a report on their exercise of that power; and

(b) lay that report before the Scottish Parliament.

(a) whether a local authority is carrying out its functions as police authority so as to comply with its duties under section 1, 13, 15, or as the case may be, 17 above; and

(b) whether a joint police board is carrying out its functions so as to comply with its duties under section 1, 13, 16 or, as the case may be, 17 above.

(a) whether the local authority is carrying out its functions as fire authority so as to comply with its duties under sections 1, 13, 15 or, as the case may be, 17 above; and

(b) whether a joint fire board is carrying out its functions so as to comply with its duties under section 1, 13, 16 or, as the case may be, 17 above.

(a) a local authority (in carrying out its functions as police authority or, as the case may be, fire authority); or

(b) a joint police board or, as the case may be, a joint fire board,

(a) that a local authority has significantly exceeded its power under section 20 above; and

(b) that giving the local authority an enforcement direction is justified,

(a) informs the authority of the apparent excess of power; and

(b) requires the authority to submit to the Scottish Ministers, within such time as is specified in the notice, a written response which-

(i) states that it has not significantly exceeded the power in the respects described in the notice and justifies the statement; or

(ii) states it has so exceeded the power but gives reasons why they should not give a direction under subsection (3) below.

(a) prepare a report on their exercise of that power; and

(b) lay that report before the Scottish Parliament.

(a) in sub-paragraph (1), for the words "the condition mentioned in sub-paragraph (2) applies to the lands and heritages" there is substituted "any of the conditions mentioned in sub-paragraphs (2) to (2B) applies";

(b) in sub-paragraph (2), for the words "The condition" there is substituted "The first of those conditions";

(c) after that sub-paragraph there is inserted-

(d) after sub-paragraph (3) there is inserted-

(a) in sub-paragraph (2)(c)(i), after the word "store" there is inserted ", qualifying food store";

(b) after sub-paragraph (3) there is inserted-

(c) after sub-paragraph (5) there is inserted-

(a) in subsection (1)(a), the words "being agricultural land occupied by that person," are repealed;

(b) in subsection (2)(b)-

(i) the word "for" is repealed; and

(ii) for the words from "occupied", where it first occurs, to "land", where it second occurs, there is substituted "is to be treated as a reference to such land only so far as it is";

(c) in subsection (3), the words "not more than twenty" are repealed; and

(d) after subsection (4) there is inserted-

(a) in subsection (1)(a), after the word "entry" there is inserted-

(b) after subsection (1A) there is inserted-

(a) after subsection (6) there is inserted-

(b) for the words "this section", where they appear in subsections (8), (9) and (10), there is substituted "subsection (7) above".

(a) repeal paragraph (a) (daily discount from council tax of twice the "appropriate percentage" for chargeable dwellings of which there is no resident) of subsection (2) of section 79 of the Local Government Finance Act 1992 (c.14); and

(b) provide (whether by amendment of that section or otherwise) that the amount of council tax payable in respect of a chargeable dwelling and any day is to be subject to a discount if, on that day, there is no resident of the dwelling and for the calculation of the amount of that discount.

(a) provide in relation to some circumstances in which there is no resident of a chargeable dwelling but not in relation to others;

(b) confer on local authorities powers-

(i) to disapply the regulations from their respective areas or from such parts of those areas as are specified in the instrument of disapplication;

(ii) to modify the application of the regulations within their respective areas so that they make provision in relation to some circumstances in which there is no resident of a chargeable dwelling but not in relation to others (and to make different modifications for different cases or different classes of case, including for different areas);

(c) make different provision for different cases or different classes of case, including different provision for different areas or for different local authorities.

(a) those deriving from the use to which a chargeable dwelling is put; and

(b) the personal circumstances of the owner of the dwelling.

(a) prescribing when and in respect of what period determinations under subsection (1) above are to be made;

(b) prescribing how those determinations are to be arrived at and any considerations to which regard is to be had in arriving at them;

(c) prescribing how local authorities are to keep those determinations under review under subsection (1) above and any considerations to which they must have regard in doing so;

(d) requiring local authorities to make to the Scottish Ministers such reports containing such information as is prescribed by the regulations;

(e) requiring the amount determined under subsection (1) above and factors on which the determination was based to be subjected to such process of audit as is prescribed by the regulations;

(f) requiring information about that amount and those factors to be published,

(a) by order, set the maximum amounts which local authorities may allocate to capital expenditure;

(b) by direction, set the maximum amounts which a particular local authority may allocate to capital expenditure.

(a) prepare a report on their reasons for making that payment; and

(b) lay that report before the Scottish Parliament.

(a) specifying (by reference or otherwise) the investments or kinds of investments which a local authority may, or may not, make;

(b) providing that any code or other document containing guidance or advice specified or referred to in the regulations is to have effect for the purpose of regulating the investments or kinds of investments which a local authority may, or may not, make;

(c) providing for the amendment, disapplication or repeal of any enactment relating to the subject matter of the regulations.

(a) for investments for different purposes;

(b) for different local authorities or classes of local authority.

(a) in subsection (2) (sums which need not be paid into or out of a local authority's general fund) there is inserted at the end-

(b) after that subsection there is inserted-

(a) in subsection (4) (calculation of the part of a local authority's expenses falling to be met out of council tax) there is inserted at the end "but not of any amounts in such fund (other than the local authority's general fund) as is established by the authority under regulations made for the purposes of this subsection."; and

(b) after that subsection there is inserted-

(a) after sub-paragraph (1)(a) there is inserted-

(b) after sub-paragraph (3) there is inserted-

(a) paragraph 1(3) (place of meetings) and the reference in paragraph 2(1)(a) to the place of an intended meeting were omitted; and

(b) the references in paragraphs 3 to 7 and 10 to the presence of members were references to their participation in a meeting so conducted.

(a) in the case of a woman, her pensionable age;

(b) in the case of a man, the pensionable age of a woman born on the same day,

(a) the prevention or detection of offences to which subsection (2) below applies; or

(b) any enforcement action or proceedings in respect of such offences or any alleged such offences.

(a) section 16 of the Road Traffic Regulation Act 1984 (c.27) which consist of contraventions of restrictions on the speed of vehicles imposed under section 14 (temporary restrictions) of that Act;

(b) subsection (4) of section 17 (traffic regulation on special roads) of that Act which consist of contraventions of restrictions on the speed of vehicles imposed in regulations made under subsection (2) of that section;

(c) section 88(7) (temporary minimum speed limits) of that Act;

(d) section 89(1) (speeding offences generally) of that Act;

(e) section 36(1) (compliance with traffic signs) of the Road Traffic Act 1988 (c.52) which consist of failure to comply with an indication given by a light signal that vehicular traffic is not to proceed.

(a) the authority or, as the case may be, board in respect of whose expenditure the payments are being made; or

(b) any other authority or board for payment, in accordance with arrangements agreed with the Scottish Ministers, to, or on behalf of, the authority or, as the case may be, board in respect of whose expenditure the payments are being made.

"eligible persons" are such persons as are or persons of such class as is prescribed by regulations; and

"private water supply" means a supply of water (including an abstraction of water from a source situated on the premises in which it is used or consumed) other than a supply provided by Scottish Water in pursuance of its core functions (within the meaning of section 70(2) of the Water Industry (Scotland) Act 2002 (asp 3)).

(a) prescribe the conditions which may, must, or must not be imposed in relation to grants made under this section;

(b) prescribe the procedures which must be followed by eligible persons in making applications for those grants and by local authorities when considering such applications and making payments of those grants;

(c) provide for the payment of those grants, in such cases as are specified in the regulations, to persons other than the applicants;

(d) provide for the calculation of those grants;

(e) fix, or provide for the fixing of, maximum amounts for those grants;

(f) provide for the delegation of any function of a local authority under this section to any person specified , or referred to, in the regulations;

(g) repeal, or suspend the effect of, subsection (1) above;

(h) make provision incidental or supplemental to that made under paragraphs (a) to (g) above.

(a) in subsection (2), the words "made by statutory instrument" are repealed; and

(b) in subsection (3), for "subsection (1) above" there is substituted "subsection (1) or (2) above".

(a) in entering any arrangement or agreement with a body corporate; and

(b) in implementing any such arrangement or agreement,

(a) after "require", where first occurring, there is inserted "(a)"; and

(b) after "body", where secondly occurring, there is inserted";

(a) in subsection (1B)-

(i) after "Act" there is inserted "and any person who, by arrangement or agreement with the authority or body, is discharging any function of the authority or body"; and

(ii) at the end there is inserted "or, where that person is a body corporate, to require that person to appoint a representative to attend before the auditor for that purpose.";

(b) in subsection (2), at the end, there is inserted "and every person who, by arrangement or agreement with a local authority, is discharging any function of the authority shall make that provision for the purpose of the auditing of the authority's accounts.".

(a) any enactment which the Scottish Ministers consider prevents local authorities from discharging their duty under section 1(1), 13(1) or 15(1) above or hinders them in that discharge;

(b) any enactment which the Scottish Ministers consider prevents any participant in community planning from implementing a duty or exercising a power under sections 15 and 16 above or hinders a participant in that implementation or exercise;

(c) any enactment which the Scottish Ministers consider prevents local authorities from exercising their power under section 20(1) above.

(a) all authorities, bodies or other persons as respects which and whom it may be exercised;

(b) any class or classes of such authorities, bodies or persons; or

(c) a particular such authority, body or person.

(a) in section 83 (general power of local authorities to incur expenditure) of the 1973 Act, subsections (1), (2), (2C), (2D) and (4) to (7) and, in subsection (3), the words "subject as aforesaid";

(b) section 94 (capital expenses of local authorities) of that Act;

(c) section 122A (duty of local authorities to use resources efficiently) of that Act;

(d) sections 171A, 171B and 171C (promotion by local authorities of economic development of its area) of that Act;

(e) Part III (direct labour organisations) of the Local Government, Planning and Land Act 1980 (c.65);

(f) Part I (competition in certain local authority activities) and sections 32 (direct labour organisations) and 33 (local authority companies) of and Schedule 6 to the Local Government Act 1988 (c.9);

(g) section 31 (National Code of Local Government Conduct) of the Local Government and Housing Act 1989 (c.42);

(h) sections 1A (permitted methods of publishing information about performance) and 8 to 11 (competition and competitive tendering) of and Schedule 1 to the Local Government Act 1992 (c.19);

(i) in section 188 (acquisition of land by planning authority by agreement) of the Town and Country Planning (Scotland) Act 1997 (c.8), subsection (3);

(j) in section 189 (compulsory acquisition of land by local authority) of that Act, subsection (8).

(a) in section 63(5)(b) (limitations on agreements for service subsidies), for the words "sections 89 to" there is substituted "section";

(b) in section 88(1) (limitations on agreements for service subsidies), for the words "sections 89 to" there is substituted "section"; and

(c) sections 89 to 91 (obligation on local authorities to invite tenders for subsidised transport services) are repealed.

(a) "joint fire board" means a joint fire board constituted by an administration scheme under section 36 of the Fire Services Act 1947 (c.41) or section 147 of the 1973 Act;

(b) "joint police board" means a joint police board constituted by an amalgamation scheme made or approved under the Police (Scotland) Act 1967 (c.77);

(c) "local authority" means-

(i) in Part 1, a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 (c.39) and the Strathclyde Passenger Transport Authority;

(ii) in Parts 2, 5 and 8 (other than sections 51 and 52 above) and section 25 above, a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 (c.39);

(iii) in Part 3 and sections 51 and 52 above, a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 (c.39), a joint fire board and a joint police board;

(iv) in Parts 4 (other than section 25 above) and 7, a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 (c.39), a joint fire board, a joint police board and the Strathclyde Passenger Transport Authority;

(v) in each of those provisions of this Part which refer to provisions of other Parts, the same meaning as it has in those respective provisions of those other Parts;

(d) the "1973 Act" means the Local Government (Scotland) Act 1973 (c.65).