Crown Estate interim body establishment consultation: responses summary report

6. The Proposals

6.1. Type of body

• Detail is requested on what 'certain specified functions' may cover with regards to: 'It is possible that the interim body will be retained on a more long-term basis for certain specified functions'; and what criteria may be used to establish whether any continuation of the interim body may be justified.

RESPONSE 7: Scottish Ministers have committed to a consultation on the long-term management of the assets and no decisions have been taken on the long-term arrangements in advance of this consultation.

6.2. Membership

• The board should be subject to Parliamentary scrutiny.
• Membership should be an odd number to avoid deadlock; minimum of two members is too small. Will all members will be non-executive.

RESPONSE 8: There will be Parliamentary scrutiny. The affirmative procedure will apply to the draft Order to set up the interim body. This means that the draft Order cannot be made unless it is approved by the Scottish Parliament. In addition, an Order has been made under section 3(3) of the Public Appointments and Public Bodies etc. (Scotland) Act 2003 which will allow appointments to Crown Estate Scotland (Interim Management) to be regulated by the Commissioner for Ethical Standards in Public Life in Scotland. A draft of this Order was laid in Parliament on 30 June 2016 and approved on 28 September 2016. The intention is for an annual report will be provided to the Scottish Parliament.

RESPONSE 9: The draft Order will provide for a maximum number of nine members, including a Chair. We decided not to legislate for a deputy Chair. It will be for the Board to set its own procedures, including specifying the quorum and what the procedures are in the event of a tied vote on a matter.

6.3. Eligibility criteria

• Several respondents suggest eligibility criteria to include experience in:
  • local government, local communities
  • direct prior involvement with The Crown Estate
  • experience in management of marine, rural and commercial assets
  • community empowerment
  • law, finance, planning, land use, development and environmental issues.
• Some request a definition of how the board will provide new opportunities for community interests to be represented. One suggests half of board members should be community representatives. Another that board members should be part of the community of tenants or those who have an understanding of agriculture and land management.
• One suggests that councillors and employees of any local authority and office holders of the Scottish Administration should be added to the list for disqualification - and this disqualification should precede to the 12 months before appointment.
• One respondent is looking for a definition of how a 'conflict of interests' is defined; another respondent commented that the 'conflict of interests' proposal is too stringent.

RESPONSE 10: The eligibility criteria for board members to be included in the order, in terms of experience, skills and expertise, will be at an appropriate level of detail for legislation and additional criteria for the public appointments process will best ensure the Board has a good range of skills and experience- also see RESPONSE 2.

RESPONSE 11: There is overwhelming agreement with the proposed list of exclusions and there is no proposal to add further categories to ensure a wide range of appropriate candidates may apply. It is not usual to add that a disqualification should precede 12 months prior to an appointment to legislation.

RESPONSE 12: On reflection, we have removed the 'conflict of interests' provision. Any potential conflict of interests will be covered through the body's Code of Conduct.

6.4. Members' terms of appointment etc.

• One respondent wonders whether the proposal on removal of members includes those who are incapacitated, either physically or mentally, also those who are unsuitable through conviction of an 'imprisonable' criminal offence.

RESPONSE 13: The proposals on removal of members will include those who are incapacitated and also those who are unsuited through conviction for an imprisonable criminal offence. As currently drafted, the Order in Council enables Scottish Ministers to remove a Member for various reasons. These include that the Scottish Ministers consider that the person is unable to perform their functions or that they are unsuitable or continue as a member. This would cover scenarios where a person is incapacitated or if they are convicted. In all scenarios a decision to remove would have to be reasoned and rational in the circumstances.

6.5. Chief Executive and staff

• One respondent says that the person employed as Chief Executive should not be a member, although that person may sit on the board.

RESPONSE 14: The proposal is that the Chief Executive will not be a member of the board of the interim body. As a member of staff, the Chief Executive would be eligible to sit on committees and sub-committees - but it is for the interim body to decide such matters.

We also propose to extend the disqualification of members from becoming MPs, MEPs and MSPs to staff.

6.6. Committees and meetings

• One respondent suggests a specific rural committee.
• Another recommends that meetings of the interim body's board should be recorded and a written record of meetings of its Committee published in full; and another that board meeting papers should be published in accessible form
• Someone else says committees must comply with any directions given to it by the board and appointments to a committee or sub-committee should follow the rules of eligibility for members.

RESPONSE 15: It will be up to the interim body to establish any committees or sub-committees as appropriate. We do not feel this should be determined by legislation.

RESPONSE 16: The draft Order stipulates that the interim body must operate in a way which is transparent and accountable; and is consistent with any other principle of good governance which appears to it to constitute best practice.

RESPONSE 17: The proposal is for committees to consist of board members but that they may also include staff, as appropriate. The criteria for committee membership are to be set by the interim body, rather than through legislation.

6.7. Grants and loans

• One respondent requests further detail on the loan making powers for Scottish Ministers.

RESPONSE 18: The loan (and grant) making power by the Scottish Ministers to the interim body proposed in the draft Order is subject to any conditions as the Scottish Ministers may determine, including repayment. The purpose of providing for this is to offer the interim body additional flexibility, for example, to assist with land purchases or business start-ups. In addition, we are proposing a provision to allow the interim body to invest sums in interest-bearing accounts.

6.8. Corporate plan

• The Interim body should engage with local authorities in shaping corporate plan.
• The corporate plan should include financial elements and targets should be considered.

RESPONSE 19: The corporate plan will include targets and an investment strategy and it is anticipated that the new interim manager will seek input from other organisations where appropriate when developing the corporate plan.

6.9. General powers and Ministerial guidance

• While one respondent questions the need for a Ministerial direction power; another says there should be greater clarity over the nature and scope of the direction-making power; and one that the new body should be obliged to submit an annual report to Scottish Parliament which should include detailed statement on environmental, social and economic performance.
• Provision for a pilot could be included in the general power and Ministerial direction section.

RESPONSE 20: A general Ministerial direction making power is normally available as part of the legal framework for public bodies reporting to Ministers and is required, for example, in relation to the board appointments and terms and conditions of employment. The intention is to require an annual report to be laid in the Scottish Parliament.

• One respondent wants to see Crown exemption waived to statute unless overriding opposing statutory requirement and refer any asset transfer from Crown to another government department / community body to the District Valuer; and to waive the Crown exemption to the Roads (Scotland) Act 1984 in regards to 'assumed' adopted roads listed in Register of Public Roads which are not adoptable without The Crown Estate's agreement.

RESPONSE 21: Crown Status in part runs through the Scotland Act 1998, section 90B(5) which we cannot change. As for exploring whether it should be waived in certain circumstances, such as the Roads (Scotland) Act 1984, this is not something we have considered as part of establishing the interim body and it would require time to determine if this is (a) possible and (b) desirable. The intention is for the interim body to be treated similarly as to The Crown Estate at the point of transfer for reasons of continuity.