You are here: | Capital and Facilities | Property Transactions | A: Management | Section 2: Statutory Background and Delegation
General
2.1 NHSScotland was created by statute and must operate within the terms of the relevant statutory basis for its existence and operation. In addition to the statutes, there are a large number of forms of subordinate legislation and SGHSC instruction letters. Amongst the many matters controlled in this way is the legal basis for the conduct of property transactions and Holding Bodies must be aware of and operate within the limits of their powers. This system provides the basis for the delegation of powers from the Scottish Ministers through the Accountable Officer to individual Holding Bodies.Updates to legislation should be reviewed regularly through CLO. The most recent and important legislative changes include the Public Bodies (Joint Working) (Scotland) Act 2014.
2.2 The detail of the relationship and the powers delegated to Holding Bodies requires to be considered in each instance. The terms of the relevant provisions should be considered with the Legal Adviser as CLO have full access to the relevant provisions for each type of transaction. The provisions are too lengthy to detail in this Handbook. Main themes are as follows:-
2.2.1 Ownership of NHSScotland property rests with the Scottish Ministers not with Holding Bodies;
2.2.2 Holding Bodies buy, manage and sell property on behalf of the Scottish Ministers in terms of delegated authority;
2.2.3 Not all of the Scottish Ministers’ powers re. NHSScotland property matters have been delegated to Holding Bodies, e.g. compulsory purchase powers are retained by the Scottish Ministers alone as are powers in relation to any proposed disposal of property that would continue to be used for the purposes of NHSScotland by another party following disposal.
2.2.4 Holding Bodies acting as Trustees for endowment property must manage the property in accordance with the terms of each endowment. Legal advice should be sought where required in this regard. (Endowment property is deemed to be private property of the Holding Body, subject to the endowment terms and is not NHSScotland property and therefore not subject to this Handbook).
Nevertheless subject to the terms of each specific endowment such transactions should be managed in accordance with terms of the NHSS Property Transactions Handbook as far as this is possible.
2.3 Any legal documents or instruments which require to be signed at the conclusion of any property transaction may, in the case of property owned by Scottish Ministers, be signed on behalf of the Scottish Ministers by the Chief Executive of the Holding Body or by the Director of Finance. These provisions exclude:
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