Commentary on Provisions Deposit and return schemes Section 25: Deposit and return schemes: power to direct scheme administrator
129.Section 85(1) of the Climate Change (Scotland) Act 2009 (the “2009 Act”) provides that the Scottish Ministers may, by order, designate either a body established under section 86 of the 2009 Act or an existing body as a scheme administrator for a deposit and return scheme established by virtue of section 84 of the 2009 Act. Sections 85(2) and (3) make provision about what the order may include.
130.Section 85(4) of the 2009 Act allowed the Scottish Ministers to give directions to a scheme administrator and required a scheme administrator to comply with any such directions. This was a power on the face of the 2009 Act, rather than a provision about what the order may include as in subsections (2) and (3).
131.Section 25 of the Act replaces section 85(4) of the 2009 Act with a new subsection (4), which provides that an order under subsection (1) may include provision about the giving of directions by the Scottish Ministers to a scheme administrator. This means that whilst an order may make provision about the giving of directions where that is appropriate, Scottish Ministers will not automatically have the power to direct a scheme administrator.
132.This would allow a private body to be designated by order as a scheme administrator (without a direction-making power for Ministers), without the risk that it would be classified by the Office for National Statistics as a public sector organisation due to the potential Ministerial control which a direction-making power represents.