NEW SERVICES
Contents:
Scope
Key Points
Background
Preliminary Expenditure
Implementation Expenditure under Enabling
Legislation and Budget Act Authority
Implementation Expenditure under Ministers' Common
Law Powers and Budget Act Authority
Implementation Expenditure under Ministers' Common
Law Powers and Ministers' Contingency Powers
Appointments to New Sponsored Bodies
Scope
1. This section gives guidance on what constitutes a new
service and on the undertaking of expenditure associated with a
new service.
Key Points
2. A new service is one where there is no specific statutory
authority to undertake the activity giving rise to the
expenditure and where the activity giving rise to the
expenditure is not already being undertaken using Ministers'
common law powers in conjunction with the authority in a Budget
Act.
3. The guiding principles should be that the wishes of the
Parliament should not be anticipated and that the Parliament
should not be misled.
4. Expenditure on preliminary work for a new service which
could be considered to be covered by existing statutory and
parliamentary authority may be met out of existing provision.
Finance Teams should be consulted where there is any doubt as
to whether expenditure is preliminary to or part of a new
service.
5. Expenditure on activities forming part of a new service -
implementation expenditure - should not normally be committed
or undertaken until after enabling legislation has received
Royal Assent and Budget Act authority has been secured. Budget
Act authority should not normally be sought until after
enabling legislation has received Royal Assent.
6. In certain circumstances it may be possible to undertake
implementation expenditure in advance of Royal Assent using
Ministers' common law powers in conjunction with the authority
in a Budget Act. Where it is not practicable, for reasons of
urgency, to secure Budget Act authority it may still be
possible to undertake implementation expenditure in advance of
Royal Assent using Ministers' common law powers in conjunction
with Ministers' contingency powers.
7. Any proposals to undertake expenditure before the
enabling legislation has received Royal Assent must be cleared
by Finance Teams.
Background
8. A new service is one where there is no specific statutory
authority to undertake the activity giving rise to the
expenditure and where the activity giving rise to the
expenditure is not already being undertaken using Ministers'
common law powers in conjunction with the authority in a Budget
Act. (Ministers' common law powers are described in the section
on
Expenditure without Statutory Authority) There are some cases where this is less clear-cut than
others e.g. a new service could include an existing service
which was to be carried out in a different way from that which
the Parliament had approved and where new or additional
legislation was to be enacted. The guiding principles should be
that the wishes of the Parliament should not be anticipated and
that the Parliament should not be misled. In case of doubt,
Departments should always consult Finance Teams.
Preliminary Expenditure
9. The implementation of new services usually involves a
number of stages, some of which may be regarded as preliminary
to the new service rather than part of it. The formulation and
evaluation of alternative policy options through pilot studies,
scoping studies designed to identify in detail the implications
of a proposal in terms of staff numbers, accommodation costs
and other related expenditure, and work which informs the
legislative process associated with a new service, are examples
which would satisfy the criteria. Expenditure on preliminary
work for a new service may, where the preliminary work is of a
nature which could be considered to be covered by existing
statutory authority, be met out of existing funds subject to
Budget Act authority and does not depend on the enactment of
legislation.
10. It may not always be clear whether particular types of
expenditure are preliminary to or part of a new service. A key
test is whether the expenditure would be cost-effective even if
the legislation for the new service failed e.g. work on
assessing likely staff requirements could be expected to pass
the test, whereas actual recruitment of staff would lead to
nugatory expenditure in the event of legislation failing.
Finance Teams should be consulted where there is any doubt as
to whether expenditure is preliminary to or part of a new
service.
Implementation Expenditure under Enabling
Legislation and Budget Act Authority
11. Making the necessary arrangements for a new service to
be performed e.g. activities such as recruitment of staff,
acquisition of accommodation and development of IT systems
should generally be regarded as part of the new service itself.
Expenditure on work that is part of the new service should
normally only be committed or undertaken after the enabling
legislation has received Royal Assent and Budget Act authority
has been secured.
12. Departments should not normally seek Budget Act
authority for expenditure where the activity giving rise to the
expenditure is to be covered by enabling legislation until
after the enabling legislation has received Royal Assent.
However, in cases of urgency Budget Act authority may be sought
via Finance Teams in advance of Royal Assent provided that
there is a reasonable expectation of the legislation eventually
being approved. In seeking such Budget Act authority the
relevant budget documents should be footnoted to the effect
that expenditure of the provision is "subject to the passage of
legislation which [has been / is to be] laid before the
Parliament". No expenditure can be undertaken under Budget Act
authority which is subject to the passage of legislation until
after the enabling legislation has received Royal Assent.
Implementation Expenditure under Ministers' Common
Law Powers and Budget Act Authority
13. In cases where it would clearly be contrary to the
public interest to delay expenditure until after the enabling
legislation has received Royal Assent it may be possible,
subject to the provisos set out in paragraphs 14 and 15, to
undertake limited implementation expenditure using Ministers'
common law powers - provided that these are available - in
conjunction with the authority in a Budget Act. However, the
criterion must always be urgency in the public interest and not
administrative convenience. Budget Act authority may be secured
(and implementation expenditure undertaken) in advance of Royal
Assent where the activity giving rise to the expenditure is
being undertaken using Ministers' common law powers. However,
in seeking such Budget Act authority the relevant budget
documents should be footnoted to that effect.
After Stage 1
14. Budget Act authority for implementation expenditure to
be undertaken in conjunction with Ministers' common law powers
in advance of Royal Assent may be sought and the expenditure
undertaken after Stage 1 of the relevant Bill has been
successfully completed providing that:
14.1 there is a reasonable expectation of the legislation
being eventually approved;
14.2 the level of expenditure is modest and proportionate;
and
14.3 the benefits of incurring the expenditure are
considered to outweigh the scale of the loss if for any reason
the legislation were to fail.
Before Stage 1
15. Budget Act authority for implementation expenditure to
be undertaken in conjunction with Ministers' common law powers
in advance of Royal Assent may also be sought and the
expenditure undertaken before Stage 1 of the relevant Bill has
been successfully completed providing that:
15.1 there is a reasonable expectation of the legislation
being eventually approved;
15.2 the level of expenditure is modest and
proportionate;
15.3 the benefits of incurring the expenditure are
considered to outweigh the scale of the loss if for any reason
the legislation were to fail; and
15.4 the Conveners of the relevant subject Committee and the
Finance Committee of the Scottish Parliament are informed in
advance by the responsible Minister.
Implementation Expenditure under Ministers' Common
Law Powers and Ministers' Contingency Powers
16. Where it is not practicable, for reasons of urgency, to
secure Budget Act authority for implementation expenditure to
be undertaken in conjunction with Ministers' common law powers
in advance of Royal Assent it may still be possible to
undertake the expenditure using Ministers' common law powers in
conjunction with Ministers' contingency powers. Ministers'
contingency powers are described in the section on
Expenditure without Parliamentary
Authority. The provisos for undertaking expenditure after and before
Stage 1 of the relevant Bill has been successfully completed
set out in paragraphs 14 and 15 are equally applicable in such
circumstances. Where expenditure is to be undertaken before
Stage 1 the Conveners of the relevant subject Committee and the
Finance Committee of the Scottish Parliament should be informed
by the responsible Minister no later than the necessary report
on the use of contingency powers is laid before the Parliament
i.e. at least 14 calendar days before any expenditure is
undertaken.
Appointments to New Sponsored Bodies
17. Departments wishing to make appointments to new
sponsored bodies being set up under specific legislation should
normally wait until the legislation has received Royal Assent.
However, expenditure on appointments, which includes
advertising costs, is possible in advance of Royal Assent
subject to the guidance in paragraphs 13-16. In addition it
should be made clear to the appointees concerned that the
appointments would be cancelled if for any reason the
legislation were to fail. Any proposals to make appointments
before the enabling legislation has received Royal Assent must
be cleared by Finance Teams.
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Page Published/ Updated on: 21st December 2001