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Draft Scheme of Delegated Powers

Summary

Agency board report number: SEPA 52/23 - November 2023

The purpose of the Scheme of Delegated Powers is to set out the powers or duties retained and reserved to the Agency Board and/or delegated to the Chief Executive.

The General Scheme of Delegation (SoD) to the Chief Executive (incorporating matters reserved to the Board) was last approved by the Board on 26 July 2011. SEPA’s Specific SoD was last reviewed in 2013. As notified to the Board in February 2023 in the “Official documents and procedures” paper, both schemes were to be reviewed this year.

A full review has now been completed and this paper presents a revised Scheme of Delegated Powers for approval; see Appendix A.

This document combines both former SoDs and is part of a set of documents making up SEPA’s “Governance Framework” describing how SEPA operates and makes decisions to meet its statutory purpose. The wider framework was noted by the Audit & Risk Committee at its meeting on 21 March 2023.

The Scheme of Delegated Powers incorporates two schedules:

Schedule A specifies SEPA duties and powers which have been retained and reserved to the Board. A list of those express matters which also need to be reported to the Board is included. Text here is adapted from Section 5 of the General SoD July 2011.

Schedule B lists the specific powers delegated to SEPA’s Chief Executive by the Board. Text here is based on Schedule Part A from the 2013 Specific SoD.

Significant additional text or changes are highlighted in bold.

The document will be reviewed again when SEPA’s Framework document with Scottish Government is reviewed, and as part of the annual review of the Board’s official documents and procedures each February. Further work will be required, particularly in respect of Schedule B, following the Corporate Leadership team (CLT) restructure.

Schedule A - Board Powers

Reservations to the Board

The Board has overall responsibility for the delivery of the functions of SEPA in accordance with the aims, policies and priorities of the Scottish Ministers.

Subject to the operation of law, the powers, including decisions, listed below are reserved by the Agency Board.

The Board may, at any time, delegate further powers, reserve matters that have been previously delegated or remove delegated powers for a specific decision or action.

Also refer to the Framework document and Schedule 6 of the Environment Act 1995 for other responsibilities of individual Board Members and the Chair.

Relating to the Chief Executive

Appointing, with the approval of the Scottish Ministers, the Chief Executive;

The specific duties of the Chief Executive will be set out in a job description, and annual objectives will be agreed with the Chair and approved by the People & Remuneration Committee and used in appraisal of the Chief Executive’s performance;

Where the Chief Executive is absent from duty and has not made any sub-delegation (for example due to sick leave or other unplanned absence), any appropriate Corporate Leadership Team (CLT) member will be deemed to have the necessary sub-delegation during the first seven calendar days of such an absence, but the Chief Executive shall remain as Accountable Officer. The CLT will agree amongst themselves who is the Acting Chief Executive. After seven calendar days has elapsed, the Chair of the Agency Board, acting on behalf of the Agency Board and in consultation with Scottish Government Sponsor Unit, shall put in place appropriate sub-delegation and appoint an (acting) Chief Executive. That postholder shall be recorded as being appointed on an ‘acting’ basis and any decision made by an Acting Chief Executive will be noted as made in an ‘acting’ capacity. All such arrangements shall be reported at the next meeting of the Agency Board;

Where there is no Chief Executive in office (for example pending recruitment) or the Board determines that the Chief Executive may be absent for an extended period (in the Board’s discretionary estimation), the Scottish Government Sponsor Unit shall put in place appropriate sub-delegation and ensure the appointment of an Accountable Officer for the appropriate period.

Other recruitment and organisational decisions

Approving the selection panel for all Corporate Leadership Team level appointments;

Approving a structure for the proper discharge of SEPA’s functions;

Approving significant variations in the permanent workforce outwith the approved establishment;

Through regular reports, considering and, if appropriate, approving organisational performance against plans.

Corporate Governance

Approval on behalf of SEPA any amendments or variations to the SEPA Framework document;

Approval of Standing Orders;

Approval of the Code of Conduct for Members of the Board (for submitting to the Scottish Government) and the process for sanctions;

Appoint a Standards Officer, as required by the Standards Commission for Scotland, with responsibility for the Code of Conduct, maintaining the register of interests and providing advice, support, and appropriate training on matters of interests or conduct. Noting that the Register of Members Interests is a public document. SEPA’s Standards Officer is currently the Clerk to the Board and Corporate Solicitor (sole employee);

Approving the SEPA Annual Report and accounts and ensure these are provided to the Scottish Ministers to be laid before the Scottish Parliament;

Approving SEPA’s Corporate Plan and other strategic plans to deliver the functions of SEPA, focusing on how the work of SEPA can most effectively contribute to achievement of the outcomes in the National Performance Framework and the Programme for Government in collaboration with the Scottish Government and other public bodies;

Approving new policy documents of major significance to SEPA (such documents to be determined by the Chair in consultation with the Chief Executive);

Approving changes in policies which:

• may significantly impact on the resources of SEPA (as agreed by the Chair and the Chief Executive); or
• fall within the responsibility of more than one Committee and where the Committees fail to agree on the matter (should more than one Agency Board Committee be in operation);

Approval of Audit & Risk Committee and People & Remuneration Committee terms of reference and approval of terms of reference for any other committee to be set up by the Board;

Suspending Standing Orders, Standing Financial Instructions (SFIs), SEPA Schemes of Delegation and any other SEPA-wide corporate governance guidance.

Financial Powers

Approving the SEPA annual budget;

Set a date for the production of a draft annual budget (February by default otherwise);

Approving the SEPA annual accounts (also see Corporate Governance above);

Authorising any loans, borrowings and requests for Government Guarantees, prior to seeking Ministerial approval;

Approving any proposed Charging Scheme made in accordance with Statute, prior to seeking Ministerial approval in accordance with s.42 of the 1995 Act;

Through regular reports, considering and, if appropriate, approving financial performance against plans.

Legislative Powers

Power to approve, promote and make any by-law;

Power to promote, petition for, or oppose any private legislation in accordance with s.28 of the 1995 Act;

Power to resolve to make a Compulsory Purchase Order in accordance with s.26 of the 1995 Act and the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947;

Power to approve any agreement authorising SEPA to undertake further/additional duties on behalf of any Minister of the Crown per s.38 of the 1995 Act;

Power to approve or represent SEPA in connection with any statutory inquiry or other hearing, per s.53 of the 1995 Act.

Matters which must be reported to the Board

Legislative

Any guidance issued to SEPA in terms of s.31 of the 1995 Act;

Details of any ministerial direction issued to SEPA in accordance with s.40 of the 1995 Act;

Details of any intention of SEPA to exercise its incidental powers to make and recover charges in accordance with s.43 of the 1995 Act;

Any guidance issued to SEPA by the Secretary of State or Scottish Ministers in relation to SEPA’s general purpose, sustainable development and other aims and objectives.

Financial

Any yearly statement of accounts prepared in accordance with s.45(1)(b) of the 1995 Act;

Confirmation that the statement of accounts for the accounting year has been sent to the Scottish Ministers for audit purposes by such time as they may direct in accordance with s.46A of the 1995 Act;

The details of any grants issued to SEPA in accordance with s.47 of the 1995 Act;

The details of any general financial duties on which SEPA is consulted by the appropriate Ministers in accordance with s.44 of the 1995 Act.

Legal

Details of any investigation, report or findings in respect of SEPA by Environmental Standards Scotland, the Scottish Public Services Ombudsman, Scottish Information Commissioner (OSIC) or the Information Commissioner (ICO);

Any approval of an environmental licence on a major application of national significance;

A summary at each Board meeting of all appeals and any legal proceedings commenced by or against SEPA;

Any Section 22 process on SEPA’s accounts (under the Public Finance and Accountability (Scotland) Act 2000) or Scottish Parliament enquiry on SEPA’s performance as a public body.

Other

Any other matters as may be determined from time to time by the Chair in consultation with the Chief Executive as requiring to be reported to the Board.

Schedule B - Specific Powers delegated to SEPA’s Chief Executive by the Board

As indicated above, the Board of the Scottish Environment Protection Agency (SEPA), with the exception of the powers retained by it, delegates the remainder of its powers to the Chief Executive. The powers delegated to the Chief Executive may be sub-delegated as appropriate with any delegation clearly documented and recorded. The specific powers delegated to the Chief Executive by the Board are presented in this section.

1. Approval of all Memorandum of Understanding
2. Execution of all formal legal deeds and any written document for the purposes of the Requirements of Writing (Scotland) Act 1995, save as otherwise delegated.
3. Compliance with the SEPA Framework document, in so far as it sets out responsibilities for SEPA (as Accountable Officer).
4. Monitoring compliance with all other SEPA statutory and prescribed functions.
5. Providing such monitoring assistance as may be required in support of general SEPA regulatory role.
6. Acting as Principal Officer in respect of all dealings with the Scottish Public Services Ombudsman and notifications to Departmental Accountable Officer.
7. Preparation of SEPA’s Corporate Plan and annual operating plans;
8. Provision of such Codes, Guides and Assessments to Chair/Board, as prescribed from time to time.
9. Responsibility for all Scottish Ministerial referrals of Scottish Parliamentary or other enquiries or representations.
10. To ensure adequate Schemes of Delegation are in place.
11. Keeping of all SEPA records, to conform to s.30 of the 1995 Act.
12. Preparations, as appropriate, of all SEPA Charging Schemes, to conform to s.41 of the 1995 Act.
13. Provide advice and assistance as may be requested by the Secretary of State or Scottish Minister, to conform to s.37(2) of the 1995 Act.
14. Provide such other advice and assistance, as permitted by s.37(3) and s.37(4) of the 1995 Act.
15. Complying with, on behalf of SEPA, its general financial duties, as provided for in s.44 of the 1995 Act.
16. Keeping of Accounts and Records, as required by s.45(1)(a) of the 1995 Act, and, as Accountable Officer, signing the accounts.
17. Complying with SEPA’s audit requirements as specified in s.46A of the 1995 Act.
18. Furnish to the appropriate Minister such information they may reasonably request in terms of s.51 of the 1995 Act.
19. Preparation of an annual report, to conform to s.52 of the 1995 Act.
20. Developing the agendas for Board meetings (assisted by the Clerk to the Board and in consultation with the Chair); approval and oversight of the preparation of Board papers by members of the Corporate Leadership Team.

Emergencies

There is delegated to the Chief Executive all the powers of SEPA which it is necessary or expedient to exercise in an emergency.