Miscellaneous provisions
Section 16: Advisory group
41.Section 16 requires the Commissioner to establish and maintain an advisory group. The purpose of the group is to give the Commissioner advice and information about matters relating to the Commissioner’s functions.
42.Subsection (3) provides that the members of the group are to be chosen by the Commissioner. However, this is subject to the provisos set out in subsection (4), namely that the appointment has been approved by the SPCB, will not result in the maximum number of members (to be set by the SPCB) being exceeded and is consistent with the principle that at least half of the group’s members are persons who appear to the Commissioner to be representative of patients.
43.Subsection (5) allows the Commissioner to pay members of the group such remuneration and allowances as the Commissioner, with the approval of the SPCB, determines.
44.Subsection (6) makes it clear that the procedure of, terms of appointment to and membership of the group is to be determined by the Commissioner.
45.The establishment and operation of the advisory group does not prevent the Commissioner from obtaining advice from other people it considers appropriate to consult (subsection (7)).
Section 17: Reports
46.Aside from the reports which the Commissioner has a duty to lay before the Scottish Parliament, section 17(1) permits the Commissioner to lay before the Parliament any other report prepared by the Commissioner if the Commissioner considers it appropriate to do so.
47.Subsection (2) provides that the Commissioner must ensure any report prepared which is to be laid before the Parliament does not name or otherwise identify an individual who has given information to the Commissioner but who has not consented to being named in the report.
Section 18: Protection from actions of defamation
48.Certain statements made to or by the Commissioner or a member of the Commissioner’s staff are to have absolute privilege (meaning they cannot form the basis of an action of defamation for any person referred to in those statements) (subsection (1)(a) and (b)). The statements which will benefit from absolute privilege are any made to the Commissioner and any which appear in the Commissioner’s report on an investigation.
49.Any other statement made by the Commissioner or any of its staff (in connection with the Commissioner’s functions) have 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. What is meant by a statement is “words, pictures, visual images, gestures or any other method of signifying meaning”. This definition is set out in section 36(b) of the Defamation and Malicious Publication (Scotland) Act 2021.
Section 19: Directions about premises and sharing of resources
50.Section 19 requires the Commissioner to comply with any direction given by the SPCB in respect of: the location of the Commissioner’s office and the sharing of staff, premises, resources or services with other public bodies. Any such direction is to be published by the SPCB.
51.However, the Commissioner is only subject to possible control by the SPCB to the extent explicitly specified in this provision or in paragraph 3(2) of schedule 1. Aside from these specified matters (which do not infringe upon the core work of the Commissioner), the Commissioner is not an agent of the Crown and there is no general obligation to comply with directions. The Commissioner is therefore independent and is not subject to the general control of the Parliament, the Government, or the SPCB.
