Good Food Nation (Scotland) Act 2022

Schedule

Scottish Food Commission: Constitution and Operation

62. The schedule makes further provision about the Scottish Food Commission.

63. Paragraph 1 states that the Scottish Food Commission is a body corporate. This means that it has a legal personality separate from that of the people who comprise it.

64. Paragraph 2 states that the Commission is not to be regarded as a servant or agent of the Crown, or having any status, immunity or privilege of the Crown. Neither its members nor its staff are to be regarded as civil servants.

65. Paragraph 3 (Part 2 of the schedule) sets out the Commission’s general powers which are broad in nature.

66. Paragraphs 4 to 8 of the schedule provide that the Commission may establish committees and sub-committees, regulate its own procedure and that of its committees and sub-committees and may authorise any of its members, committees, sub-committees or staff to carry out some of its functions (and to the extent) the Commission decides. Paragraph 8 provides that the validity of anything done by the Committee or a person authorised to do something on behalf of the Commission is not affected by a vacancy in its membership, a defect in the appointment of a member or the disqualification of a member after they have been appointed.

67. Paragraphs 9 to 11 make provision about how the Commission is to be held accountable. The Commission is required by paragraph 9 to produce a corporate plan, which is to be submitted to the Scottish Ministers for approval, modification as they consider appropriate or rejection. The Commission must comply with the corporate plan once it has been submitted to and approved by the Scottish Ministers. The plan can be revised either on the voluntary decision of the Commission itself or when required to do so by the Scottish Ministers.

68. The Commission must prepare and keep proper accounts and accounting records and produce a financial statement of accounts each year, a copy of which is to be sent to the Auditor General for Scotland for auditing (paragraph 10).

69. The Commission must also produce an annual report as soon as reasonably practicable after each financial year. This report is to be made publicly available and copies are to be sent to the Scottish Ministers and laid before the Scottish Parliament, respectively.

70. Paragraphs 12 to 17 make provision about the membership of the Commission including how members are appointed, the duration of their tenure in office, their remuneration, allowances and pensions, the circumstances in which a member’s tenure may be terminated early and grounds for disqualification as members.

71. The Commission is to consist of a chairing member and at least 2 but no more than 4 other members (paragraph 12(1)). Paragraph 12(2) confers a powers on the Scottish Ministers to alter the maximum number of members by regulations.

72. Paragraphs 18 to 20 make provision for the Commission to be able to appoint staff, on terms and conditions approved by the Scottish Ministers.

73. With the approval of the Scottish Ministers, the Commission may pay or make arrangements to pay pensions, allowances and gratuities to or in respect of anyone who is or has been a member of its staff.

Application of public bodies legislation

Ethical Standards in Public Life etc. (Scotland) Act 2000

74. Paragraph 21(1) of the schedule adds the Scottish Food Commission to the list of devolved public bodies in schedule 3 of the Ethical Standards in Public Life etc. (Scotland) Act 2000 (“the Ethical Standards Act”). This means that the Scottish Food Commission will need to:

• have a code of conduct for its members, whose compliance with the code will be policed by the Standards Commission for Scotland (see sections 3 and 9 of the Ethical Standards Act), and

• maintain a public register of its members’ interests (see section 7 of the Ethical Standards Act).

Freedom of Information (Scotland) Act 2002

75. Paragraph 21(2) of the schedule adds the Scottish Food Commission to the list of Scottish public authorities in schedule 1 of the Freedom of Information (Scotland) Act 2002 (“FOISA”). This means that the Commission will be subject to the requirements that Act places on public bodies, including requirements to provide certain information to the public on request and to have in place a scheme for the pro-active publication of information it holds.

76. Being a public authority within the meaning of FOISA also makes the Commission a “Scottish public authority” to which the Environmental Information (Scotland) Regulations 2004 apply.

77. In addition, as a public authority within the meaning of FOISA, the Commission is a “public authority” or “public body” for the purposes of the General Data Protection Regulation by virtue of section 7 of the Data Protection Act 2018 (subject to the Secretary of State not making regulations under that section to remove its “public authority” status). The General Data Protection Regulation (also commonly referred to by the acronym “GDPR”) is Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data. There are particular rules applied to bodies classified as “public authorities” (over and above those applied to all data processors) in the GDPR and the Data Protection Act 2018. An analysis of those rules is beyond the scope of these Notes.

78. Further, being a public authority within the meaning of FOISA makes the Commission subject to the duties imposed by section 44 of the Climate Change (Scotland) Act 2009 and, as such, liable to monitoring and investigation under Part 4 of that Act.

Public Appointments and Public Bodies etc. (Scotland) Act 2003

79. Paragraph 21(3) of the schedule adds the Commission to the list of specified authorities in schedule 2 of the Public Appointments and Public Bodies etc. (Scotland) Act 2003 (the “2003 Act”). This means that the Scottish Ministers, when appointing the Commission’s members, will need (under section 2 of the 2003 Act) to comply with the code of practice on public appointments produced by the Commissioner for Ethical Standards in Public Life in Scotland.

Public Services Reform (Scotland) Act 2010

80. Paragraph 21(4) of the schedule adds the Commission to the list of bodies in schedule 8 of the Public Services Reform (Scotland) Act 2010 (“the 2010 Act”). This means that the Commission will be subject to the duties to report after each financial year on:

• expenditure (see section 31 of the 2010 Act), and

• the steps it has taken to promote and increase sustainable growth and improve its efficiency, effectiveness and economy (see section 32 of the 2010 Act).

Public Records (Scotland) Act 2011

81. Paragraph 21(5) of the schedule adds the Commission to the schedule of the Public Records (Scotland) Act 2011 and thereby makes it subject to the duties created by that Act to produce, implement and keep under review a records management plan.

Procurement Reform (Scotland) Act 2014

82. Paragraph 21(6) of the schedule makes the Commission subject to the procurement rules applicable to contracting authorities in the Procurement Reform (Scotland) Act 2014.