6.Subsection (1) of section 1 establishes the office of Victims and Witnesses Commissioner for Scotland. Subsection (2) introduces schedule 1, which makes provision about various administrative matters including the status, remuneration, and terms of appointment of the Commissioner, and about the Commissioner’s staff.
7.Paragraph 1 of schedule 1 provides that the Commissioner’s status is that of a juristic person distinct from the natural person holding the office of Commissioner. In addition, the Commissioner is not to be regarded as being a servant or agent of the Crown. The Commissioner’s property belongs to the Commissioner and not to the Crown, and the Commissioner’s staff are not civil servants.
8.Paragraph 2 of schedule 1 provides that, except in certain specified provisions of the Act, the Commissioner is not bound to follow orders or directions from members of the Scottish Parliament, the Scottish Ministers, or the Scottish Parliamentary Corporate Body (“SPCB”).
9.Paragraphs 3 and 4 of schedule 1 provide for the appointment, and disqualification from appointment, of the Commissioner. The Commissioner will be appointed by the King, following their nomination by the Scottish Parliament. The Commissioner may only serve one term of office, and a person is disqualified from being appointed Commissioner if at the time of the appointment, or in the year preceding the appointment, the person is or has been a member of the Scottish Parliament, the House of Commons, or the House of Lords, or a member, employee, or appointee of one of the criminal justice bodies defined in section 25 of the Act. This is to ensure that the Commissioner is free from political influence, given that the role will involve scrutiny of the operation of the criminal justice system.
10.Under paragraph 5 of schedule 1, the Commissioner may hold office for a single term of up to 8 years, as determined by the SPCB at the time of appointment. This is consistent with the tenure arrangements set out in the Scottish Parliamentary Commissions and Commissioners etc. (Scotland) Act 2010.
11.Paragraph 6 of schedule 1 sets out the circumstances under which a Commissioner’s appointment may terminate early. A Commissioner may resign or may become disqualified from holding office under paragraph 4. The Commissioner can also be removed from office where either the SPCB is satisfied that the Commissioner has breached their terms and conditions of appointment and the Parliament resolves to remove the Commissioner as a result, or where the Parliament resolves that it has lost confidence in a Commissioner’s willingness, suitability or ability to perform the Commissioner’s functions. A resolution in either scenario requires the support of at least two thirds of (normally) the total number of members of the Scottish Parliament. However, the number of votes required is based on the number of seats, so the percentage does not reduce if a seat is temporarily vacant pending a by-election.
12.Paragraph 7 of schedule 1 provides that the validity of any acts of the Commissioner is unaffected by any procedural defects in the Parliament’s nomination or by the Commissioner subsequently becoming disqualified from acting as the Commissioner.
13.Paragraph 8 of schedule 1 enables the SPCB to set and pay such remuneration, allowances, pension and gratuities to the Commissioner as it determines. It will be for the SPCB to decide whether payments are made and the amounts of any payments. The SPCB must indemnify the Commissioner for liabilities incurred by the Commissioner in the exercise of their functions. This means that when the Commissioner incurs costs in carrying out their functions, they are entitled to recover those costs from the SPCB.
14.Under paragraph 9 of schedule 1, the SPCB may determine the terms and conditions of the Commissioner’s appointment insofar as not already set out in the Act, including prohibiting the Commissioner from holding any other office, employment or appointment, or requiring that the Commissioner first obtain the approval of the SPCB before holding any other office, employment or appointment. This is to avoid any appointment being seen to compromise the independence of the Commissioner.
15.Paragraph 10 of schedule 1 makes provision for the appointment of a temporary Commissioner to hold the office either during a period when the post is vacant or where the Commissioner is unable to perform their functions. During that period, the SPCB may appoint as temporary Commissioner a person who has not previously held the position and who is not disqualified from holding the post under paragraph 4 of this schedule. The SPCB will determine the terms, conditions and duration of the appointment and may relieve the individual from the post at its discretion (by notice in writing), or at the request of the individual.
16.Paragraphs 11 and 12 of schedule 1 allow the Commissioner to appoint staff, subject to the consent of the SPCB as to the numbers, and to determine their terms and conditions subject to the approval of the SPCB.
17.Paragraph 13 of schedule 1 allows the Commissioner to pay pensions, allowances and gratuities to current or former members of staff, including the establishment of one or more pensions schemes and pay allowances and gratuities by way of compensation for loss of employment. Approval for such arrangements must be obtained from the SPCB.
18.Under paragraph 14 of schedule 1, while the Commissioner can delegate any function to any person, ultimately the Commissioner remains responsible for the performance of those delegated functions. Having delegated functions, the Commissioner is still able to decide to perform those functions personally.
19.Paragraph 15 of schedule 1 places an obligation on the Commissioner to comply with directions from SPCB in relation to the location of the Commissioner’s office, and the sharing of any resources with any other public office or body.
20.Paragraph 16 of schedule 1 requires the Commissioner to prepare a budget for approval by the SPCB before each financial year. The Commissioner may revise the budget during the year, with the SPCB’s approval again being required. The Commissioner is placed under a duty to ensure the economical, efficient, and effective use of the Commissioner’s resources.
21.Paragraph 17 of schedule 1 makes provision for the SPCB to designate an accountable officer for the Commissioner – either the Commissioner or a member of the Commissioner’s staff. The accountable officer’s responsibilities include the signature of accounts and ensuring the propriety and regularity of finances and the economical, efficient, and effective use of resources. If the accountable officer is not the Commissioner, then the accountable officer requires to send to the Auditor General for Scotland a copy of the Commissioner’s written authority in respect of any action which the accountable officer has been required to take which the accountable officer considers to be inconsistent with the proper performance of their functions.
22.Paragraph 18 of schedule 1 requires the Commissioner to keep proper accounts and records and prepare and send to the Auditor General for Scotland an annual statement of accounts. The Commissioner is bound to comply with directions from the Scottish Ministers about those accounts, records, and statement, and following audit, to make the statement of accounts available for inspection on request, to any person and without charge.
Crown Application Establishment Section 1 and schedule 1 – Victims and Witnesses Commissioner for Scotland