Acts of the Scottish Parliament

Section 13: Anonymity for children and young people

62.     This section requires the Commissioner to ensure, so far as reasonable and practicable, that children or young people referred to in a report have their anonymity preserved. The Commissioner might decide not to preserve anonymity where, for example, naming a group of children or young people in a report would be beneficial in highlighting their views. The Act does not make specific provision in relation to the disclosure of the identity of individuals who are not children or young people. This gives the Commissioner a discretion about whether to identify them. In practice, the Commissioner might preserve the anonymity of an adult where, for example, information has been given in confidence.

Section 14: Publication

63.     Subsection (1) requires the Commissioner to publish all reports laid before the Parliament. Publication in either electronic format or hard copy would meet this requirement.

64.     Subsection (2) enables the Commissioner to publish any other report relating to his or her functions. This provision is to cover reports that it may not be necessary or appropriate for the Commissioner to lay before the Parliament but which the Commissioner may still wish to publish. For example, the Commissioner may wish to lay before the Parliament results of major research projects, or a key annual conference. However, smaller scale projects would still merit publication but may not merit being laid before the Parliament.

65.     Subsection (3) requires the Commissioner to publish a "child friendly version" of all reports published by him or her unless a report is already written in such a style. "Child friendly version" is defined in section 16. This gives the Commissioner a discretion about how he or she approaches putting reports into a wording, style and format most accessible to children and young people.

Section 15: Protection from actions of defamation

66.     Subsection (1)(a) provides the Commissioner and staff with absolute privilege for all reports, statements and communications related to conducting investigations under the Act. The provision of absolute privilege effectively places a bar on a person's right to pursue an action of defamation in respect of statements made by the Commissioner. This allows the Commissioner to carry out investigations without being fettered in relation to the repetition of any defamatory material received. Subsection (1)(b) gives the Commissioner and staff qualified privilege for statements made in pursuance of all other purposes of the Act.

67.     Subsection (1)(c) provides individuals who make statements to the Commissioner or the Commissioner's staff with qualified privilege. Under qualified privilege individuals can make statements and can assist in investigations without fear of an action for defamation provided statements are not motivated by malice or intent to injure. "Statement" has the same meaning as in the Defamation Act 1996 (c.31) and therefore includes words, pictures, visual images, gestures or any other method of signifying meaning.

Section 17: Commencement and short title

68.     This section provides for certain provisions of the Act to come into force automatically six months after the granting of Royal Assent. The period of six months is required so as to enable the Scottish Executive and the Parliament to put in place the required structures, procedures, staffing and resources. The provisions of the Act which do not come into force six months after Royal Assent come into force on Royal Assent. Those provisions enable the Commissioner to be appointed prior to the Act coming fully into force.

Schedule 1: The Commissioner for Children and Young People in Scotland

69.     Schedule 1 makes detailed provision concerning the status, independence, remuneration, terms of appointment and general powers of the Commissioner. It also makes detailed provision in relation to various matters of an administrative nature.

70.     Paragraph 1 of the schedule makes it clear that the Commissioner is not to be regarded as a servant or agent of the Crown and that the Commissioner's property is not to be regarded as property of the Crown. This is necessary because the Commissioner is appointed by the Queen. This has legal implications in relation to immunities which are applied to servants or agents of the Crown and also in relation to particular statutory provisions which relate to Crown property.

71.     Under paragraph 4, the Scottish Parliamentary Corporate Body (SPCB) sets the salary and allowances of the Commissioner, and any other terms of the appointment. It will be for the SPCB alone to decide whether the Commissioner should hold any other office or appointment. For example, the SPCB may consider a situation where an appointment would prevent the Commissioner from fulfilling what is expected to be a full time post as being inappropriate for the Commissioner. There may also be instances when an appointment might be seen to compromise the independence of the Commissioner. For example, this could arise if the Commissioner were to become an office-holder of a service provider which he or she would be able to investigate.

72.     Paragraph 6 vests a general power in the Commissioner that is ancillary to the Commissioner's main functions, which are detailed from section 4 onwards. This is to ensure that the Commissioner is able to carry out his or her functions effectively.

73.     Under paragraph 7, the Commissioner can appoint any number of staff and determine the terms of their appointment with the approval of the SPCB.

74.     Paragraph 12 allows for the appointment of an acting Commissioner where the office of Commissioner is vacant or where the Commissioner is unable to act for whatever reason. The same eligibility requirements must be met as for the Commissioner.

Schedule 2: Investigations: supplementary provisions on witnesses and documents

75.     Paragraph 1 makes provision for the Commissioner to give notice to a person who is required to give information or produce documents in line with the equivalent notice provision for the Parliament that is contained in section 24 of the Scotland Act. The notice must set out the subjects to which the required evidence will relate. In addition, in the case of the attendance of a person to give evidence, the time and place at which attendance is required must be given. In the case of documents, the date by which they are to be produced must also be given. A notice must be sent by registered or recorded delivery post. In the case of an individual it has to be sent to their last known address and in any other case to the person's registered or principal office.

76.     Paragraph 2 sets out restrictions to the Commissioner's powers to require evidence and documents. The power extends to the limits applicable to court proceedings in Scotland. This is in line with the provision that applies to the Parliament's own powers in section 23(9) of the Scotland Act. These cover various privileges such as the privilege against self-incrimination and privileges in connection with litigation.

77.     Sub-paragraph (2) provides a similar restriction to that of the Scotland Act in relation to a Scottish Law Officer or a procurator fiscal declining to answer a question or produce a document in relation to the operation of the system of criminal prosecution in any particular case. Under the Scotland Act this applies to the fiscal if the Lord Advocate considers that answering or producing it might prejudice criminal proceedings in the case in question or would otherwise be contrary to the public interest and the Lord Advocate has authorised the fiscal to decline to answer the question or produce the document on that ground. Similarly, this applies to the Lord Advocate and the Solicitor General if he or she considers that answering the question or producing the document might prejudice criminal proceedings in the case in question or would otherwise be contrary to the public interest.

78.     Paragraph 3 provides that a person giving evidence can be required to do so under oath and sub-paragraph (1)(a) authorises the Commissioner to administer such an oath. A person will be able to affirm, as an alternative to taking an oath, as this is expressly provided for in the Oaths Act 1978 (c.19). Paragraph 3 makes it an offence for a person who has been required to take an oath by the Commissioner to fail to do so. The penalties for that offence are the same as for the offence created by paragraph 5 of this schedule and are detailed in paragraph 81 below.

79.     Where a person makes a statement in answer to any question by the Commissioner which the person was obliged to answer, paragraph 4 provides that any such statement would be inadmissible in any proceedings in a criminal court. The effect of this is that a person cannot incriminate him or herself during the investigation process. The one exception to this provision is in the event that perjury proceedings are initiated in respect of the statement made to the Commissioner.

80.     Paragraph 5 creates offences which are equivalent to those set out in section 25 of the Scotland Act in relation to failures to comply with requirements imposed by the Parliament as to the giving of evidence or the production of documents. For instance, this section makes it an offence for a person who is required by the Commissioner to give information or produce documents to fail to do so unless they have a reasonable excuse. A person found guilty by a summary criminal court of an offence under this section is liable to a fine not exceeding level 5 on the standard scale (currently £5,000) (section 225 of the Criminal Procedure (Scotland) Act 1995 (c.46)) or to imprisonment for a maximum period of three months.

81.     Paragraph 6 allows for individuals who exercise control within an organisation, as well as the organisation itself, to be proceeded against and punished where the organisation commits an offence under the Act.

82.     Paragraph 8 makes provision for the payment of allowances and expenses to persons giving evidence or producing documents. The level of those allowances and expenses will be a matter to be determined by the Commissioner who must first seek agreement from the SPCB. The SPCB will be asked to agree a scheme for paying allowances and expenses (rather than agreeing each individual payment to those giving evidence or producing documents).

PARLIAMENTARY HISTORY OF COMMISSIONER FOR CHILDREN AND YOUNG PEOPLE (SCOTLAND) ACT 2003

83.     The following table sets out, for each Stage of the proceedings in the Scottish Parliament on the Bill for this Act, the dates on which proceedings at that Stage took place, the references to the Official Report of those proceedings and the dates on which Committee Reports were published and the references to those Reports.