http://www.legislation.gov.uk/asp/2010/8/part/2Public Services Reform (Scotland) Act 2010An Act of the Scottish Parliament to make provision for the purpose of simplifying public bodies, including the transfer and delegation of certain functions, the dissolution of certain bodies and provision in relation to the regulation of officers of court; to enable provision to be made for the purpose of improving the exercise of public functions and for removing and reducing burdens resulting from legislation; to make provision for the publication of information on expenditure and certain other matters by certain public bodies; to establish Creative Scotland with functions in relation to the arts and culture and industries and other activity the focus of which is the application of creative skills; to establish Social Care and Social Work Improvement Scotland with scrutiny functions in relation to care services and social work services; to establish Healthcare Improvement Scotland with scrutiny and other functions in relation to services provided under the National Health Service and independent health care services; to amend the Mental Health (Care and Treatment) (Scotland) Act 2003 to make provision in relation to the Mental Welfare Commission for Scotland; to make provision about the exercise of scrutiny functions by certain bodies, including provision in respect of the involvement of users of scrutinised services, co-operation and joint inspections; to amend Part 2 of the Public Finance and Accountability (Scotland) Act 2000 in relation to audit authorities and audit reports and examinations under that Part; to amend the Scottish Public Services Ombudsman Act 2002 to make provision in relation to complaints handling procedures of listed authorities; to amend the Charities and Trustee Investment (Scotland) Act 2005 in relation to the regulation of charities and charity trustees; and for connected purposes.texttext/xmlenStatute Law Database2022-10-31Expert Participation2022-10-01 Public Services Reform (Scotland) Act 2010Blanket amendmentThe Treaty of Lisbon (Changes in Terminology) Order 2011art. 3 4art. 3(2)art. 3(3) 4(2) 6(4)(5)art. 2Public Services Reform (Scotland) Act 2010Pt. 5 Ch. 3AHealth and Care (Staffing) (Scotland) Act 2019s. 12(2)s. 15(2) Part 2141The Scottish Ministers may by order make any provision which they consider would improve the exercise of public functions, having regard to—aefficiency,beffectiveness, andceconomy.2In subsection (1), “public functions” are functions of the persons, bodies and office-holders listed in schedule 5, subject to any limitations specified in that schedule.3The provision that may be made under subsection (1) includes provision—amodifying, conferring, abolishing, transferring, or providing for the delegation of, any function,bamending the constitution of a person, body or office-holder listed in schedule 5 other than—ithe Scottish Ministers,iithe Scottish Court Service,iiia cross-border public authority,iva person listed by virtue of section 15(5)(e), orva company (within the meaning of the Companies Act 2006 (c. 46)),ccreating—ia person, body or office-holder on which functions are conferred,iia person, body or office-holder to which functions (modified or otherwise) are transferred or may be delegated.4For the purposes of subsection (3)(b)(ii), the constitution of the Scottish Court Service is as set out in schedule 3 to the Judiciary and Courts (Scotland) Act 2008 (asp 6).5The transfer or delegation referred to in subsection (3)(a) must be a transfer or delegation to—aa person, body or office-holder listed in schedule 5,ba person, body or office-holder created in pursuance of subsection (3)(c), orc a local authority (meaning a council constituted by section 2 of the Local Government etc. (Scotland) Act 1994 (c. 39)). 6An order under this section containing provision creating a person, body or office-holder in pursuance of subsection (3)(c)—amust include provision adding that person, body or office-holder to schedule 5,bmay include provision adding that person, body or office-holder to schedule 6,cmay specify the extent to which any functions are to be public functions for the purposes of subsection (1).7An order under this section may—amodify any enactment, instrument or other document,bcontain such consequential, incidental, transitional, transitory or saving provision as the Scottish Ministers consider appropriate.8An order under this section may include provision dissolving any person, body or office-holder listed in schedule 5, other than those listed in subsection (3)(b)(i) to (v), but only if the person, body or office-holder has, or will have by virtue of the order, no exercisable functions.9An order under this section may bind the Crown.10An order under this section must be made in accordance with this Part.151Schedule 5, which lists persons, bodies and office-holders for the purposes of section 14, has effect.2The Scottish Ministers may by order modify schedule 5 by—aadding an entry for any person, body or office-holder falling within subsection (5),bremoving any entry.3An order under subsection (2)(a) containing provision adding an entry to schedule 5 may include provision adding a corresponding entry to schedule 6.4An order under subsection (2)(b) containing provision removing an entry from schedule 5 must include provision removing any corresponding entry from schedule 6.5Those persons, bodies and office-holders are—aan office-holder in the Scottish Administration,ba Scottish public authority with mixed functions or no reserved functions,ca cross-border public authority,da publicly-owned company,eany other person, not being a public body or the holder of a public office, who either—iappears to the Scottish Ministers to exercise functions of a public nature, oriiis providing, under a contract made with a person, body or office-holder listed in schedule 5, any service the provision of which is the function of that person, body or office-holder.6A company is publicly-owned for the purposes of subsection (5)(d) if it is wholly owned—aby the Scottish Ministers, orbby any other person, body or office-holder listed in schedule 5 except a person, body or office-holder listed—iby virtue of subsection (5)(e)(i) in relation only to some of its functions, oriiby virtue of subsection (5)(e)(ii).7For the purposes of subsection (6) a company is wholly owned—aby the Scottish Ministers if it has no members except—ithe Scottish Ministers or companies wholly owned by the Scottish Ministers, oriipersons acting on behalf of the Scottish Ministers or of such companies,bby any other person, body or office-holder if it has no members except—ithe person, body or office-holder or companies wholly owned by the person, body or office-holder, oriipersons acting on behalf of the person, body or office-holder or of such companies.8An entry added to schedule 5 by an order under subsection (2)(a) made by virtue of subsection (5)(e) must specify the functions of a public nature or, as the case may be, the service being provided; and only those functions or that service are public functions of the person in question for the purposes of section 14(1).9In this section—“company” includes any body corporate;“local authority” means a council constituted by section 2 of the Local Government etc. (Scotland) Act 1994 (c. 39);“Scottish public authority with mixed functions or no reserved functions” is to be construed in accordance with paragraphs 1(4) and 2 of Part 3 of Schedule 5 to the Scotland Act 1998 (c. 46); but does not include a local authority.161The Scottish Ministers may not make provision under section 14, other than provision which merely restates an enactment, unless they consider that the conditions in subsection (2), where relevant, are satisfied in relation to that provision.2Those conditions are that—athe effect of the provision is proportionate to the policy objective,bthe provision does not remove any necessary protection,cany public function which is to be modified will, as modified, be broadly consistent with the general objects or purpose of the person, body or office-holder concerned,dany function which is conferred on a person, body or office-holder listed in schedule 5 (other than a function being transferred without substantial modification from another such person, body or office-holder) is broadly consistent with the general objects or purpose of the person, body or office-holder concerned,eany function which is conferred on a person, body or office-holder created by virtue of section 14 is broadly consistent with—ithe general objects or purpose of a person, body or office-holder listed in schedule 5 which is abolished, or whose functions are modified, by virtue of section 14 or otherwise, oriipublic functions abolished or modified by virtue of that section or otherwise.3Examples of protections for the purposes of subsection (2)(b) are (without prejudice to the generality of that provision) protections in relation to—athe independence of judicial decision-making, or decision-making of a judicial nature, by a person occupying a judicial office,bcivil liberties,chealth and safety of persons,dthe environment,ecultural heritage (including access, through display, exhibition or otherwise, to cultural heritage).4For the purposes of subsection (2)(b), the continued independence of the judiciary as mentioned in section 1 of the Judiciary and Courts (Scotland) Act 2008 (asp 6) is a necessary protection.5For the purposes of subsection (2)(b), the holding, care or preservation of property which is cultural heritage by persons separate from the Scottish Ministers and any statutory restrictions on the disposal of such property are necessary protections where the property is vested in such persons as trustees for the public under statute.6For the purposes of subsection (2)(b), the provision in paragraph 7(4) of schedule 2 to the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) as to who the convener shall be in relation to certain proceedings before the Mental Health Tribunal for Scotland is a necessary protection.7For the purposes of subsection (2)(b), a provision is not to be treated as removing a necessary protection if provision is made that delivers the same or similar protection in an alternative manner.8For the purposes of the application of subsection (2)(c), (d) and (e) to functions exercised, or to be exercised, by the Scottish Ministers, references to their general objects or purpose are to the broad remit of the part of the Scottish Administration through which the functions are, or are to be, exercised.9For the purposes of subsection (2)(d), a modification of a function being transferred is not to be treated as substantial if it is necessary to enable the effective exercise of the function by the person, body or office-holder to which it is transferred.10The Scottish Ministers may not make provision under section 14 which merely restates an enactment unless they consider that the provision made would make the law more accessible or more easily understood.11In subsection (3)(a) “judicial office” means—athe office of judge of any court,bthe office of member of any tribunal,cany other office, or appointment, consisting of functions of a judicial nature.171The Scottish Ministers may by order make any provision which they consider would remove or reduce any burden, or the overall burdens, resulting directly or indirectly for any person from any legislation.2In this section “burden” means any of the following—aa financial cost,ban administrative inconvenience,can obstacle to best regulatory practice,dan obstacle to efficiency, productivity or profitability, orea sanction, criminal or otherwise, which affects the carrying on of any lawful activity.3For the purposes of subsection (1), a financial cost or administrative inconvenience may result from the form of any legislation (for example, where the legislation is hard to understand).4For the purposes of subsection (2)(c), “best regulatory practice” means practice under which (in particular) regulatory activities should be—acarried out in a way that is transparent, accountable, proportionate and consistent,btargeted only at such cases as require action.5In this section “legislation” means any of the following or a provision of any of the following—aa public general or local Act of Parliament (whenever passed) or an Act of the Scottish Parliament (whenever passed), orbany Order in Council, order, rules, regulations, scheme, warrant, byelaw or other subordinate instrument made at any time under an Act referred to in paragraph (a).6The provision that may be made under subsection (1) includes provision—aabolishing, conferring or transferring, or providing for the delegation of, functions of any description,bcreating a body or office.7An order under this section may not amend the constitution of the Scottish Court Service.8For the purposes of subsection (7), the constitution of the Scottish Court Service is as set out in schedule 3 to the Judiciary and Courts (Scotland) Act 2008.9An order under this section may—amodify any enactment,bcontain such consequential, incidental, transitional, transitory or saving provision as the Scottish Ministers consider appropriate.10An order under this section may include provision dissolving any body or office, other than those listed in section 14(3)(b)(i) to (v), but only if the body or office has, or will have by virtue of the order, no exercisable functions.11An order under this section may bind the Crown.12An order under this section must be made in accordance with this Part.181The Scottish Ministers may not make provision under section 17(1), other than provision which merely restates an enactment, unless they consider that the conditions in subsection (2), where relevant, are satisfied in relation to that provision.2Those conditions are that—athe policy objective intended to be secured by the provision could not be satisfactorily secured by non-legislative means,bthe effect of the provision is proportionate to the policy objective,cthe provision, taken as a whole, strikes a fair balance between the public interest and the interests of any person adversely affected by it,dthe provision does not remove any necessary protection,ethe provision does not prevent any person from continuing to exercise any right or freedom which that person might reasonably expect to continue to exercise.3Examples of protections for the purposes of subsection (2)(d) are (without prejudice to the generality of that provision) protections in relation to—athe independence of judicial decision-making, or decision-making of a judicial nature, by a person occupying a judicial office,bcivil liberties,chealth and safety of persons,dthe environment,ecultural heritage (including access, through display, exhibition or otherwise, to cultural heritage).4For the purposes of subsection (2)(d), the continued independence of the judiciary as mentioned in section 1 of the Judiciary and Courts (Scotland) Act 2008 is a necessary protection.5For the purposes of subsection (2)(d), the holding, care or preservation of property which is cultural heritage by persons separate from the Scottish Ministers and any statutory restrictions on the disposal of such property are necessary protections where the property is vested in such persons as trustees for the public under statute.6For the purposes of subsection (2)(d), the provision in paragraph 7(4) of schedule 2 to the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) as to who the convener shall be in relation to certain proceedings before the Mental Health Tribunal for Scotland is a necessary protection.7For the purposes of subsection (2)(d) a provision is not to be treated as removing a necessary protection if provision is also made that delivers the same or similar protection in an alternative manner.8The Scottish Ministers may not make provision under section 17(1) which merely restates an enactment unless they consider that the provision made would make the law more accessible or more easily understood.9In subsection (3)(a) “judicial office” means—athe office of judge of any court,bthe office of member of any tribunal,cany other office, or appointment, consisting of functions of a judicial nature.191The Scottish Ministers may not propose to make provision under section 14 or 17(1) which relates to any of the persons, bodies or office-holders listed in schedule 6 unless requested to do so in writing by the Scottish Parliamentary Corporate Body.2The Scottish Ministers may not lay a draft order containing such provision before the Scottish Parliament in accordance with section 25(2)(b)(i) unless the Scottish Parliamentary Corporate Body consents.201An order under section 14 or 17(1) may confer or transfer a function of legislating only on or to the Scottish Ministers, the First Minister or the Lord Advocate.2An order under section 14 or 17(1) may not make provision for the delegation of any function of legislating.3An order under section 14 or 17(1) may not make provision to confer a function of legislating on the Scottish Ministers, the First Minister or the Lord Advocate unless the conditions in subsections (4) and (5) are satisfied.4The condition in this subsection is that the function is exercisable by statutory instrument.5The condition in this subsection is that such a statutory instrument—ais subject to annulment in pursuance of a resolution of the Scottish Parliament, orbis not to be made unless a draft of the statutory instrument has been laid before and approved by a resolution of the Parliament.6Subsections (1) to (3) do not apply to provision which merely restates an enactment.7An order under section 14 or 17(1) may not make provision which has the effect of transferring to a person other than the Scottish Ministers, the First Minister or the Lord Advocate any function to which subsection (8) applies.8This subsection applies to any function of—agiving directions,bappointing a person to any office or position, orcconsenting to any thing,conferred by any enactment on the Scottish Ministers, the First Minister or the Lord Advocate.21An order under section 14 or 17(1) may not make provision to impose, abolish or vary any local tax to fund local authority expenditure.221An order under section 14 or 17(1) may not make provision to create a new offence that is punishable, or increase the penalty for an existing offence so that it is punishable—aon indictment, with imprisonment for a term exceeding two years, orbon summary conviction, with—iimprisonment for a term exceeding 12 months, oriia fine exceeding level 5 on the standard scale.2In the case of an offence which is triable either on indictment or summarily and is not an offence triable on indictment only by virtue of section 292(6) and (7) of the Criminal Procedure (Scotland) Act 1995 (c. 46), the reference in subsection (1)(b)(ii) to a fine exceeding level 5 on the standard scale is to be construed as a reference to the statutory maximum.3Subsection (1) does not apply to provision which merely restates an enactment.231An order under section 14 or 17(1) may not make provision to—aauthorise any forcible entry, search or seizure, orbcompel the giving of evidence.2Subsection (1) does not prevent an order from extending any power for purposes similar to those to which the power applied before the order was made.3Subsection (1) does not apply to provision which merely restates an enactment.24An order under section 14 or 17(1) may not make provision modifying any provision of this Part other than schedule 5.251An order under this Part must be made by statutory instrument.2The Scottish Ministers may not make an order under section 14 or 17(1) unless—athey have consulted in accordance with section 26,bfollowing that consultation, they have laid before the Scottish Parliament—ia draft order, andiian explanatory document prepared in accordance with section 27, andcthe draft order has been approved by resolution of the Parliament.3Except as mentioned in subsection (7), the Scottish Ministers may not make an order under section 15 unless—athey have consulted in accordance with subsection (4),bfollowing that consultation, they have laid before the Parliament—ia draft order, andiian explanatory document prepared in accordance with subsection (5), andcthe draft order has been approved by resolution of the Parliament.4The Scottish Ministers must consult any person, body or office-holder in respect of which they propose to add an entry to schedule 5.5The explanatory document must give details of—aany consultation undertaken under subsection (4),bany representations received as a result of the consultation,cthe changes (if any) made to the proposals mentioned in subsection (4) as a result of those representations.6Subsections (2) to (4) of section 27 apply to consultation under subsection (4) of this section as those subsections of section 27 apply to consultation under section 26; and references to subsection (1)(f)(ii) in section 27(2) and (3) are to be read as references to subsection (5)(b) of this section.7Where an order under section 15 contains only a provision mentioned in subsection (2)(b) of that section and, if applicable, a provision mentioned in subsection (4) of that section, the order is subject to annulment in pursuance of a resolution of the Parliament.261If the Scottish Ministers propose to make an order under section 14 or 17(1) they must—aconsult such organisations as appear to them to be representative of interests substantially affected by the proposals,bwhere the proposals relate to the functions of one or more persons, bodies or office-holders, consult those persons, bodies or office-holders, or persons appearing to them to be representative of those persons, bodies or office-holders,cin such cases as they consider appropriate, consult the Scottish Law Commission, anddconsult such other persons as they consider appropriate.2For the purposes of any consultation required by subsection (1), the Scottish Ministers must—alay before the Parliament—ia copy of the proposed draft order, andiia copy of the proposed explanatory document referred to in section 25(2)(b)(ii) (excepting the details required by section 27(1)(f)),bsend a copy of the proposed draft order and proposed explanatory document to any person to be consulted under subsection (1), andchave regard to any representations about the proposed draft order that are made to them within 60 days of the date on which the copy of the proposed draft order is laid before the Parliament under paragraph (a).3In calculating any period of 60 days for the purposes of subsection (2)(c), no account is to be taken of any time during which the Parliament is dissolved or is in recess for more than 4 days.4If, as a result of any consultation required by subsection (1), it appears to the Scottish Ministers that it is appropriate to change the whole or any part of their proposals, they must undertake such further consultation with respect to the changes as they consider appropriate.5If, before the day on which this section comes into force, any consultation was undertaken which, had it been undertaken after that day, would to any extent have satisfied the requirements of this section, those requirements are to that extent to be taken to have been satisfied.271The explanatory document referred to in section 25(2)(b)(ii) must—aexplain under which power (or powers) in this Part the provision contained in the draft order is made,bintroduce and give reasons for the provision,cin the case of an order under section 14—iexplain why the Scottish Ministers consider that the conditions in section 16(2) (where relevant) are satisfied or the condition in section 16(10) is satisfied,iiexplain how the provision made by the order would improve the exercise of public functions, andiiiif the order relates to the functions of the Scottish Ministers, or confers functions on or transfers or delegates functions to, the Scottish Ministers, describe the functions and identify the part of the Scottish Administration through which the functions are, or are to be, exercised,din the case of an order under section 17(1)—iexplain why the Scottish Ministers consider that the conditions in section 18(2) (where relevant) are satisfied or the condition in section 18(8) is satisfied, andiiinclude, so far as appropriate, an assessment of the extent to which the provision made by the order would remove or reduce any burden or burdens (within the meaning of that section),eidentify and give reasons for—iany functions of legislating conferred by the order, andiithe procedural requirements attaching to the exercise of those functions, andfgive details of—iany consultation undertaken under section 26,iiany representations received as a result of the consultation,iiithe changes (if any) made to the proposed draft order as a result of those representations.2Where a person making representations in response to consultation under section 26 has requested the Scottish Ministers not to disclose them, the Scottish Ministers must not disclose them under subsection (1)(f)(ii) if or to the extent that to do so would (disregarding any connection with proceedings in the Scottish Parliament) constitute a breach of confidence actionable by any person.3If information in representations made by a person in response to consultation under section 26 relates to another person, the Scottish Ministers need not disclose the information under subsection (1)(f)(ii) if or to the extent that—ait appears to the Scottish Ministers that the disclosure of that information could adversely affect the interests of that other person, andbthe Scottish Ministers have been unable to obtain the consent of that other person to the disclosure.4Subsections (2) and (3) do not affect any disclosure that is requested by, and made to, a committee of the Parliament charged with reporting on the draft order.281The power to make an order under section 14 or 17(1) may be exercised together with, and by the same instrument as, the power to make an order under section 2(2) of the European Communities Act 1972 (c. 68).2Where the powers referred to in subsection (1) are so exercised—asections 25 to 27 apply to the order under section 2(2) of the European Communities Act 1972 as they apply to the order under section 14 or 17(1) of this Act, andbparagraph 2(2) of Schedule 2 to the European Communities Act 1972 does not apply.29Schedule 7 (which contains minor amendments and amendments consequential on this Part) has effect.30In this Part—“cultural heritage” includes objects, structures and other things (in whatever form) resulting from human activity of all periods, traditions, ways of life and the historic, scientific, artistic and literary associations of people, places and landscapes;“restate an enactment” means to replace it with alterations only of form or arrangement (and for these purposes to remove an ambiguity is to make an alteration other than one of form or arrangement);“function of legislating” is a function of legislating by order, rules, regulations or other subordinate instrument.S. 14 in force at 1.8.2010 by S.S.I. 2010/221, art. 3(2), Sch.S. 15 in force at 1.8.2010 by S.S.I. 2010/221, art. 3(2), Sch.S. 16 in force at 1.8.2010 by S.S.I. 2010/221, art. 3(2), Sch.S. 17 in force at 1.8.2010 by S.S.I. 2010/221, art. 3(2), Sch.S. 18 in force at 1.8.2010 by S.S.I. 2010/221, art. 3(2), Sch.S. 19 in force at 1.8.2010 by S.S.I. 2010/221, art. 3(2), Sch.S. 20 in force at 1.8.2010 by S.S.I. 2010/221, art. 3(2), Sch.S. 21 in force at 1.8.2010 by S.S.I. 2010/221, art. 3(2), Sch.S. 22 in force at 1.8.2010 by S.S.I. 2010/221, art. 3(2), Sch.S. 23 in force at 1.8.2010 by S.S.I. 2010/221, art. 3(2), Sch.S. 24 in force at 1.8.2010 by S.S.I. 2010/221, art. 3(2), Sch.S. 25 in force at 1.8.2010 by S.S.I. 2010/221, art. 3(2), Sch.S. 26 in force at 1.8.2010 by S.S.I. 2010/221, art. 3(2), Sch.S. 27 in force at 1.8.2010 by S.S.I. 2010/221, art. 3(2), Sch.S. 28 in force at 1.8.2010 by S.S.I. 2010/221, art. 3(2), Sch.S. 29 in force at 1.8.2010 by S.S.I. 2010/221, art. 3(2), Sch.S. 30 in force at 1.8.2010 by S.S.I. 2010/221, art. 3(2), Sch.Ss. 14-30 cease to have effect (2.8.2015) by virtue of Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(2)(3) (with s. 134(4)(5)); however, ss. 14-30 continue to have effect until 4.6.2020 by virtue of The Public Services Reform (Scotland) Act 2010 (Part 2 Extension) Order 2015 (S.S.I. 2015/234), arts. 1, 2; which continuation is further extended until 5.5.2025 by The Public Services Reform (Scotland) Act 2010 (Part 2 Further Extension) Order 2020 (S.S.I. 2020/140), arts. 1, 2