Official Report 695KB pdf
Our next agenda item is to hear from the Ethical Standards Commissioner. Good morning, Ian Bruce. I welcome you to the meeting, and I am happy to hand over to you for an introduction.
Thank you for the invitation and for the opportunity to talk to you about the work of my office. I always appreciate such opportunities. They are not that frequent, so it is helpful for me to be able to give you an update.
I trust that committee members have reviewed our annual report and accounts and the briefing paper that the clerk doubtless provided and that those have given you an indication of the continuing progress that we have made as an office since I last gave evidence to the committee, last March.
As the committee will be aware from the evidence that I have provided previously, I prefer to rely on external, independent validation of the work of my office. That being the case, the missing piece of the jigsaw, potentially, is Audit Scotland’s 2023-24 annual audit report, which was published in November. I hope that members have had an opportunity to review that. I have provided a copy to the clerks, in case the details are of interest.
Audit Scotland conducted a wider-scope review to provide assurance that our governance and other aspects of our work that had previously been of concern had been addressed. Its headline findings were as follows:
“The Ethical Standards Commissioner’s office operated within its approved budget for 2023/24 ... Appropriate medium-term financial planning arrangements are in place which demonstrate how services will continue to be delivered ... A new strategic plan with clear objectives for improvement and a more strategic looking senior management team are in place ... Open and transparent governance arrangements are operating effectively ... Vacancies have been filled and increased capacity is making a difference ... Complaints handling performance is improving and positive developments have been implemented to tackle the waiting list.”
Additionally, Audit Scotland found
“good evidence that the Commissioner’s arrangements demonstrate Best Value as required by the Ministerial Guidance to Accountable Officers for public bodies and the Scottish Public Finance Manual”.
For the second year running, the auditors had no recommendations whatsoever for me.
I was also provided with additional assurance by our internal auditors during the course of that year. They reviewed our cybersecurity arrangements and assessed our controls as substantial. We have obtained cyber essentials plus reaccreditation. Our financial arrangements were also rated as strong this year. The auditors also reported positively on our work on implementing their prior recommendations.
We have successfully identified and tendered for a contractor called Leading Kind to assist the office with the refresh of “Diversity Delivers”, which is the strategy for improving the diversity of Scotland’s public body boards. I have already written to the responsible cabinet secretary, the Cabinet Secretary for Finance and Local Government, to seek support with the initiative. The refresh of the strategy is well overdue—it was published in 2008—and I am particularly keen to have cross-party support for that, which is why I raise it with the committee today.
We are currently conducting research in order to produce what we are calling a state of the nation report, which will look at diversity across all public boards in Scotland. That will be followed by our practical recommendations for change. Support for that work from the committee and each of the parties can only enhance it, so I would welcome your views both today and following this meeting. I intend to write to the convener to formally seek that support following today’s meeting. I would genuinely appreciate support for that work from you and your fellow MSPs.
Public appointments often go under the radar, even though public bodies spend well over a third of all public money in Scotland. It is important that the right people are in those roles in order to oversee the governance of those bodies and their spend. I trust that that is of interest to committee members, and I am more than happy to answer any questions that you might have.
Thank you very much for that. We look forward to receiving your correspondence, and we will continue to aid and assist, which is the committee’s responsibility.
I will kick off with a few questions and then throw you to the lion’s den in the usual way. However, before I start, I want to pick up on something that happened at the tail end of last year, so that it is on the public record. It relates to the Standards Commission for Scotland and the section 10 direction on the outcome of investigations. As you said in your opening words, your office is in a very different position from that which it has been in in the past, which is absolutely to be welcomed.
Do you want to take the opportunity to explain what the section 10 direction was and, more important, why the Standards Commission for Scotland is happy for that direction now to fall by the wayside rather than be renewed?
Certainly. Three sets of directions were issued by the Standards Commission for Scotland to my predecessor, which related to concerns that, I am sure, I do not need to repeat today. However, the last of them to lapse is the outcome direction, which requires me to report to the Standards Commission for Scotland on the outcomes of all complaints that I investigate.
That direction has been withdrawn, similarly to the other directions that I had, on the basis that I have built reporting into the procedures that we operate as an office. The Standards Commission has concluded that it is more than happy to let the direction lapse at the end of January because I have given a clear undertaking to continue to report to the commission, whether or not the direction is in place.
The fact that it is lapsing is an indication not only that it has come to the end of its usefulness but that the purpose that sat behind it—in this case, the reporting of each investigation—is now hardwired into the system so that it cannot—
As was the case with the other directions, that is correct.
I am very grateful for that clarification. That leads me to my first question, which is about public confidence and trust and your public profile as the commissioner. To what extent do you think that that has increased, deepened and strengthened as time has gone on?
The public trust of our stakeholder organisations has definitely increased. I say that because I regularly meet stakeholders and I operate an open-door policy, which can be for public sessions such as this one or for private sessions or conversations about the work in my office.
I think that I have been able to demonstrate not only that I listen but that I change policies and practices in response to legitimate and constructive concerns that are raised with me. The strategic plan consultation is an example of that. Over a three-month period, I consulted on the strategic plan with an extensive range of stakeholders. I had an awful lot of constructive commentary, including from members of this committee, about the ways that I might adapt the plan in order to better meet the needs of stakeholders, including the public. I made quite significant changes to the plan following that consultation.
I feel that I can do more to increase public confidence. It is difficult to identify the indicators for public confidence, but it is apparent to me that people are—how does one put this?—far more comfortable complaining than they perhaps were in the previous reporting year. We have seen an increase in the number of complaints. I think that people feel that, if they complain, the matter will be taken seriously and, if it has any merit, it will be investigated. Numbers are a good indicator of that, but I feel that I can do more on public engagement. In order to do so, alongside the strategic plan, I produced a draft of a communication strategy. I also took constructive feedback on that and republished it in November, and the committee will be able to access that. It identifies all our stakeholders, including members of the public, and the range of activities that I have planned for the next four-year period in order to increase public confidence.
The strategic plan 2024-28 seems to very much underpin the route that you want to take, and you have explained how it was developed with stakeholders. I was looking back at the evidence that you gave last year, when the strategic plan was still being formulated, and one of the questions that former committee member Stephen Kerr asked was about stakeholder surveys. You said then that you had not surveyed stakeholders and that
“that is not something that I currently have planned.”—[Official Report, Standards, Procedures and Public Appointments Committee, 14 March 2024; c 18.]
Is it not the case that it was, in effect, a stakeholder survey that led to the design of the 2024-28 plan?
That is fair comment. The plan is how my office will operate for four years, so it was very important to me that I reached out to everyone who had a stake in my work, in order to give them an opportunity to suggest ways in which I might improve things.
I remember that it was Mr Kerr who made those constructive comments. I built them into the strategic plan, so stakeholder surveys are now absolutely included in my business plan. He also suggested that—how does one put this?—the order of my strategic objectives suggested an order of priority and that perhaps I was inward gazing too much. Those objectives were completely reordered, and public engagement and confidence rose to the top of what was not an ordered list. Both of his suggestions were incorporated into the final plan.
That is very helpful. There seems to be substantial evidence that the values that are contained in the strategic document very much underpin your office’s values and how work is being progressed. We are at the start of 2025, so it is still early days, but do you have any preliminary subjective or objective research findings about the factors that are influencing the fluctuations in matters such as complaints around public appointments? Is that strategic document starting to produce results?
Absolutely. There is a range of objectives in there, but they are quite high level, and a business plan sits below that. I operate a rolling biennial business plan, which sets out, at a much more granular level, the activities that the office needs to engage in in order to meet those strategic objectives. We publish our business plans and progress against them online at the end of each financial year, so, at the end of this financial year, the committee and anyone else with an interest will be able to see what we have established in order to meet those strategic objectives.
Because time is limited, I will pick just a few examples. One of our stakeholders was the convener of the Mobility and Access Committee for Scotland, and they made observations about the strategic plan in relation to our accessibility as an office. Since then, we have established an accessibility working group that operates cross-office, which is rolling out things such as easy-read material on our website and is currently working on our British Sign Language plan. We are also working with other office-holders on such activities. The investigations manual is now embedded and will be reviewed quarterly and updated. We now have a framework in place that provides much more assurance of the quality of the work that we do.
Those are just a few examples of the specific things that we are doing to meet the higher-level objectives in the strategic plan.
09:45
That is very helpful. Another thing that is commented on in the strategic plan—those of us who sit on this committee and other members are certainly aware of this—is the increase in complaints related to discourtesy or the disrespect that is frequently articulated. You see the consequences of that. What can you do, as commissioner, in collaboration with the Scottish Parliament, the Scottish Government and the Standards Commission for Scotland, to deal with those aspects?
I have discussed that with the Local Government, Housing and Planning Committee, and I am now in communication with the Convention of Scottish Local Authorities with the same end in mind.
You will know my commitment to diversity. I have been working in one iteration or another of the office for almost 20 years, and I have always had an absolute commitment to diversity, not for its own sake but because of the difference that it makes to governance. That applies to public bodies but, to be honest with you, it applies to the Parliament and to local authorities as well. Each of those bodies should reflect the communities that it serves. When such bodies are properly diverse, they are far better at decision making, policy formulation and so on.
Disrespectful and discourteous commentary and behaviour discourage people from entering public life—I mean all aspects of public life—and they are problematic. I am sorry to say that they are on the rise. I agree that I have a responsibility in this space; equally, however, we all do. When I was last before the committee, I quoted Professor Adam Tomkins. He was found not to be in breach of the code because he was not engaged in parliamentary duties, but he conceded that he had played the man and not the ball. It is incumbent on me to make it clear to everyone who comes into my office—the framework was set up so that this is done—that it is absolutely fine to be critical of another politician’s policy position but not to be personal about that. I have, on occasion, seen the latter, and I am sorry to say that it is on the rise.
I did a simple thing that may have helped. In the run-up to the previous election, I and the Standards Commission for Scotland wrote to the leaders of all the political parties to remind them of the provisions of the code and ask them to be very clear with their members that, notwithstanding the fact that an election was on the horizon, criticism should be levelled at policy and not at people—political opponents—in order to undermine them. We did not see the spike that we anticipated in the run-up to that election, so perhaps there is hope.
Yes—we want robust discourse without the discourtesy.
As one of the commissioners, you are, of course, aware of the Scottish Parliament’s new SPCB Supported Bodies Landscape Review Committee. Would you like to make any initial comments on its work? I have a few questions about what the commissioners have done to support one another and share resource, and about the challenges. You mentioned your cybersecurity certification, which is much to the credit of those who have worked on it. Do you have any comments on, first, the new committee’s inquiry and, secondly, the approach that you have taken, as a commissioner, with regard to your responsibilities, given the use of what is, at the end of the day, public money?
Yes. I suppose that I am unusual in as much as my office was established following the previous review of office-holders. If it was not for that, you would potentially be speaking to three commissioners instead of one today. The function to investigate complaints about members of the Parliament was separate from the functions of the Public Appointments Commissioner for Scotland, which were separate again from the functions of what was known as the senior investigating officer, who investigated complaints about councillors and board members of public bodies.
Those three posts were, in effect, merged to create mine following the previous review. I am very familiar with reviews of that nature and what can come out of them. There was some synergy between those different posts, and I certainly feel that it has been beneficial to the public more generally to have a single port of call for complaints about, for example, members of the Scottish Parliament, councillors and members of public bodies. That makes sense to the public.
As for my engagement with the Finance and Public Administration Committee and the SPCB Supported Bodies Landscape Review Committee, I have already made my submission to the latter committee. The deadline was today, I think, but I put mine in a couple of days ago. I would be more than happy to provide a copy to your committee, because all the details are in there.
In general terms, office-holders already work together. There are two strands to that. Our corporate services team meets its equivalents from all the other office-holders’ offices on a quarterly basis. The office-holder shared services network does what it says on the tin. It was put in place before the Finance and Public Administration Committee started its work and before the new committee was established.
We are trying to reduce duplication of work. I will give you an example. We have 100 or so policies in a register, which all need to be updated regularly. They cover everything from information technology security to human resource matters such as discipline and grievance—you name it. Updating them requires us to be across case law and any changes to legislation.
Each of the different offices is doing bits of that work. Pooling our resources and sharing the results of our research means that, for example, anyone who is tasked with HR-related work in an office-holder’s office has access to research that somebody else has done, which reduces duplication of effort. In addition, we look at what we can do to tender jointly.
That is going on at the corporate services level. I also meet my fellow office-holders and we have similar discussions about what we could work on together. The committee will be aware that I did a workforce planning exercise that identified all the activities that my office must engage in to acquit its statutory functions. Recently, having stripped out extraneous information, I shared that report with all the other office-holders. That helped to identify what I was accountable for and what I was responsible for. Things that I am responsible for might be delegated but, equally, that could be a pooled or shared service or something that could be outsourced. That is organised by function, with functions such as finance, HR and IT shown separately. That approach gives us an opportunity to look collectively, particularly when vacancies arise, at whether there is scope for us to share more. We are already in discussions about those things.
On what I said to the SPCB Supported Bodies Landscape Review Committee in my submission, that committee asked whether there should be additional criteria for establishing new commissioners. Given that the report on the commissioner landscape came from the Finance and Public Administration Committee, the glaring omission is affordability. Let us be honest. If there was a pot of endless money and you wanted to establish new advocacy bodies, it would be quite difficult to say, for example, that you were not going to do that. However, if you look at the issue through an affordability lens—I also suggested looking at it from the perspective of adding value or best value—that will help you to make decisions.
Another really important thing is that we should look at the issue from the perspective of a member of the public. They do not need to know whether a specific person advocates for them. Let us remember that people are complex, so intersectionality is an issue. Someone might be a disabled person or an older person, or they might be both. If you have an older persons commissioner and a disabled persons commissioner, who is advocating for such people? Is it both of them? Where do people go if they have an issue?
I do not think that members of the public are necessarily concerned about that. They want to be able to identify quickly who to go to if they are unhappy about a public service or their local councillor; they want to be able to make a complaint easily and have it properly addressed; and they want people who have acted inappropriately or who have not delivered the service appropriately to be held to account—and they want things to improve as a consequence.
That is a really good lens for all of us—I do not mean only the SPCB Supported Bodies Landscape Review Committee; I mean all of us—to look through. If the current system does not meet the public’s needs in that way, we need to look for ways to ensure that it does.
I am talking to my fellow office-holders about whether there is scope for us to have a public portal, so that people do not need to do the research to find out who deals with which complaints. Another thing that is particularly important—I have no doubt that we have all had experience of this and found it frustrating—is ensuring that people do not get sent from pillar to post.
Thank you. I have no intention of impinging on another committee’s remit any further than that. Rona Mackay will ask the next set of questions.
Good morning, commissioner. I really like your idea of the public portal—it is a super idea.
I want to ask you a wee bit about funding and governance. I am intrigued to know the reasons for your handing back £50,000 to the Scottish Parliamentary Corporate Body in February 2024. I am sure that the SPCB was very grateful. Will you expand on that decision?
Yes. As I explained earlier, I conducted a workforce planning exercise. The increase in staffing numbers was not huge, but it was absolutely needed for the statutory functions that we need to acquit. The bid was for a total headcount of 7.4 staff, and in it was a bid for a public appointments manager, which is a grade 4 officer. Their role would have been to assist us with the “Diversity Delivers” refresh.
Public money is tight. Every month, my senior management team and I look at our current financial situation and projections for the year end. We look at ways of saving money all the time, where we can. Even though the bid was accepted, in discussions with the public appointments team, we established that that post did not need to be a medium to longer-term one. Once someone is in post, there is a no redundancy policy in place—that is it. In discussions with the public appointments team, we concluded that, instead of filling a full-time post, we could probably get the work done in a year or two by getting a contractor in to do it, as I mentioned in my opening statement.
In effect, I have not filled a vacancy that I was carrying. I am going to dedicate some money to the contractor, but there are no oncosts for that, so that saves money already. In the medium to longer term, that saves quite a lot of money for the public purse, but we will still get the project over the line. That is where the money came from.
That leads on to my next question, which is about the contractor—I think that you said that it was called Leading Kind. It was contracted to assist with diversity policies—is that correct?
The project is to produce a strategy to improve the diversity of public body boards. I have a statutory obligation to produce such a strategy under the Public Appointments and Public Bodies etc (Scotland) Act 2003—that is its Sunday name.
The first strategy was produced in 2008 and, clearly, it is well out of date. Currently, to improve diversity on boards, we work alongside the Scottish Government and its officials on a round-by-round basis for appointments. That has had an incremental impact over the years—members will have seen from the annual report that there are increases in the reflection of people with disabilities on boards, for example.
That is good, but we think that we could do more—and do it faster—through regional and national activities. The strategy is intended to have a look at the state of the nation and—with the committee’s assistance, I hope—devise strategies for things that we could do better to improve diversity and make the process quicker.
10:00
Is the contractor on a fixed-term contract?
It is not a fixed-term contract per se, but the contractor has key deliverables and a set budget, so there is no possibility of us having to pay it more than we have already agreed to pay. Those involved know that they have to get the work done. We recognise that it might take a year or two, but there is no more money—that is it.
Are you overseeing that?
Yes—absolutely.
That is interesting, and it answers that question.
Will you expand on what effect the recent IT improvements will have on the efficiency in, and the accessibility of, your office? Are more IT operations planned?
Yes—again, that was included in the strategic plan. As one example, we have cyber essentials plus accreditation, which is great. That is about our safety and the safety of people who come into contact with us.
Over and above that, we recently migrated to SharePoint, which was not straightforward. There were some niggles, but we had planned for it really well and it is operating really well. In practical terms, our use of SharePoint means that we do not need to operate with servers any more—it is all cloud based.
We currently have office accommodation, which is not that expensive. The footprint is smaller than we would require if all the staff were working in the office; we work in a hybrid way, so we have quite a small footprint. If we had to move to smaller accommodation still—that is potentially on the cards, because we could save money—we would not need to worry about having space for a physical server any more. Digitally, the system is more secure than what we had in place previously, so that is an improvement.
This week, we are moving to multifactor authentication on the website, which is to increase the safety of people who make complaints online. That is another measure that we have taken, and many more are set out in the business plan.
Do you have an IT contractor that deals with all of that for you?
We have a contractor, and we also have an information and communication technology person in the office, who has made a massive difference. It was very difficult to move into the space that we felt that we needed without that level of support.
I presume that they assessed how user friendly the system was for people. It is all very well being super technical but, if people do not understand the website or cannot access it, that is a problem. I am sure that that would have gone into the evaluation.
Absolutely. When the website was originally designed, it exceeded all the accessibility standards. Last year, we did an accessibility audit, which picked up any number of issues. That is a moving target as well—accessibility requirements change over time—but we are now in a space where the website is considered very accessible on the technical side of things.
Over and above that, we have an accessibility working group rolling things out, so the material on the website is also more accessible. It is written in formats that allow a wider range of people to understand the work that we do.
Does that take in formats for the visually impaired, BSL and translation?
Yes. The group is working on BSL at the moment; it is in the course of producing a new BSL plan. We are having a chat with fellow office-holders about that, because we think that we could pool resources. Some of our functions are shared. If a BSL user wants to make a freedom of information request, I do not think that it matters necessarily whether they want to make that request of me or of the ombudsman, for example. That is why we are talking about that together.
That is great.
I forgot to ask one thing about recruitment. For context, how many staff do you have?
Nineteen.
Nineteen?
Yes, 19.
Sorry—did you say 19 or 90?
Nineteen.
Nineteen?
One nine.
One nine—sorry.
Goodness me. [Laughter.]
Thank you very much.
Not at all.
Thank you, Rona. Over to you, Joe.
I will ask about complaints in the round. There was a significant reduction specifically in MSP complaints in this reporting period. There were 98 MSP complaints in this reporting period, compared to 572 in 2022-23. Can you say anything about why that reduction has come about?
You may be talking about live complaints, because quite a few were carried forward in 2022-23. That relates back to what we, in the office, call the super-complaint, which is noted in a footnote in the annual report and accounts. I described that as a blip the last time that I was in front of the committee.
There were some activities going on in the Parliament—I am not permitted to go into detail, because the Public Appointments and Public Bodies etc (Scotland) Act 2003 precludes me from talking about it—that generated an awful lot of unhappiness among members of the public. That is why there were so many complaints over a four-month period in a single year. Those complaints took a long time to investigate because there were so many of them, because they were multifaceted and because we were required to interview and obtain material from so many people.
It was a blip, though, which I think is behind us. MSP complaint numbers are now lower. I checked the figures before coming to the committee today, because I felt that they were likely to be of interest, and they are lower again this year. I do not think that we have a particular problem with MSP complaints and conduct. Far and away the majority of my business comes from the local authority councillor side of things.
Would you say that the figures are now generally stable?
Yes.
There was one particular situation.
Yes.
Is there any suggestion that election cycles and those kinds of things increase the number of complaints that you receive and have to deal with?
Anecdotally, they do. I am still very keen to conduct research on that, and it is included in my business plan. As the committee will be aware, I was running with a backlog of complaints because I had so few staff to deal with them. There is no backlog any more; we are now just talking about a queue. Reducing waiting times to a level that is acceptable to me and to stakeholders is my number 1 priority. Once we have a wee bit of spare capacity, we will do some more research. Anecdotally, I think that, yes, the election cycle has an impact.
The SPCB, which I met relatively recently—towards the end of last year—had expressed an interest in trends, and we were able to put together some statistics for it on the complaint numbers over the past 10 years. If those statistics are of interest to the committee, I would be more than happy to provide them, but the trend is upwards in general terms. The trend is also an increase in discourtesy and disrespect-type complaints.
You have said that there is no backlog in complaints, which is good, but anyone who has made a complaint has an interest in seeing it resolved. Anyone who has been complained about also has an interest in having what they sometimes see as an unfair or vexatious complaint resolved. Based on the number of complaints that you are seeing this year, what confidence do you have that folk will not have to wait excessively long to have a resolution one way or the other?
We have introduced three measures specifically to address that issue. They are all based on the strategic plan, but they trickle down to the business plan.
Reducing waiting times is an absolute priority—I said as much to the committee last year, and it remains the case. The reality is that we have no control over fluctuating complaint numbers, and there has been a big rise this year. We have been up against it, but, equally, I have received additional resource, which has made a difference. Audit Scotland identified the same thing—that the resource is making a difference. We now have a complaint allocation plan in place, which means that cases and case types are evenly distributed across the entire team.
We also have a duty investigating officer in place now, and they have a formal role in triaging all incoming complaints. For example, service complaints that have nothing to do with us—the complaint might be about a councillor not responding to emails or about an MSP not doing what one of their constituents wants them to do—are triaged and dismissed as quickly as possible, almost straight away. That leaves us with the complaints that require investigation.
Over and above those two measures—I will not go into all the detail—we have dedicated much more additional resource to the initial assessment stage. That means that I am presenting at more hearings, but the two most senior members of the team in the office go through everything that is in the queue—everything that is waiting to be assessed—conduct the initial assessments, pass the complaints that require investigation to team members and ensure that the ones that require dismissal are dismissed as quickly as possible.
The net effect of that is that, at this point in time, the oldest complaints that are waiting in the queue for assessment are from December, and we are in January. By the end of this year, waiting times will be at a level that I hope will be acceptable to everyone, regardless of whether they are a complainer, a respondent or anyone else, for that matter.
As the minister who took what became the Lobbying (Scotland) Act 2016 through the Parliament, in collaboration with this committee, I have a particular interest in that subject. I see that there was only one complaint regarding a failure to comply with the lobbying register and that that complaint was inadmissible. Is that the case because folk now understand and are complying with the legislation, or is it because folk do not understand the legislation and are not complaining?
That is a good question. To be honest, I do not know. I receive so few complaints about lobbying that it would probably be inappropriate for me to reach a conclusion. My understanding is that a review of the lobbying legislation is probably slated for the next session and that the Scottish Parliament information centre has done a bit of research in that area, which the committee will, doubtless, find very helpful.
The committee is also doing some work in the area, so your comments are helpful in that regard.
I would love to be able to give you a substantive answer.
Maybe we will ask you to come back. Thanks very much.
By all means.
You mentioned that a large number of the complaints relate to local authority issues. It will not be surprising that I might want to ask you about what is going on in Edinburgh, given that the council leader just resigned. As has been covered in The Herald, it has come to light that complaints were made as far back as 2018. I understand that that predates your appointment as the commissioner, but there is an allegation that the Ethical Standards Commissioner dismissed a complaint in September 2020. If something is of public interest, as appears to be the case now, and a lot of stones are being turned over, is it possible for you to go back to review what might have happened at that point and to reopen inquiries into complaints?
Before the commissioner answers, I note that the matter is live and on-going and that there are statutory requirements in relation to what the commissioner, as an individual and as an office, can disclose about closed complaints—complaints that have been through the process.
My question is more about the process for reopening inquiries.
In a more generic sense, what pathways exist for reviewing previous decisions?
I am very happy to answer not in relation to a specific case but in general terms. The issue has come up in this committee, in every subject committee that I have attended and in the Public Audit Committee, so I have been questioned on it previously. I took legal advice on it, so I am in a position to answer the question on the basis of that legal advice.
A legal principle called functus officio is at play here. It is certainly not my intention to baffle anyone with that, and I am not a lawyer. The nearest equivalent legal principle to which I can point, to aid with understanding, is double jeopardy. If someone has been found innocent, for want of a better expression, a case cannot be opened again by a public authority except in very narrow circumstances. There could be scope for reopening a complaint if, for example, additional evidence had come to light, and I have been able to reopen complaints in such circumstances previously. It would have to be a situation like that.
10:15However, if the facts and circumstances were exactly the same as they were when a prior office-holder—my predecessor—closed the complaint, there would be no scope for me to reopen it. That would be the case even if I felt that it was appropriate to reopen the complaint and that it was in the public interest to do so. I took legal advice on the matter and, if I were to do so—this is an important point to make—I would almost certainly be legally challenged and I would almost certainly lose. In effect, I would be using public money to undertake an exercise that I knew would result in the loss of public money.
Okay. Thank you.
I want to follow up on the process for complaints about elected members. If someone complains about an MSP—me, say—and they write to the Presiding Officer, what happens at that point? Do you become involved? Does that complaint get passed on? Is it the case that, if the Presiding Officer says that there is no case to answer, you will not know about it, but if the Presiding Officer says that there is a case to answer, the complaint gets passed on to you?
We do not get referrals from the Presiding Officer in that sense. The issue that is probably at play here is that of people’s information rights. Based on the types of complaints that we get, I would guess that, very occasionally, the Presiding Officer will have had to say to someone, “This is not actually something for my office; it is something for the commissioner to look at.” What happens more frequently is that people write to me in the first instance with a complaint that is actually for the Presiding Officer, because it is excluded from my remit. We always let them know.
But if someone complained, for example, that their MSP did not answer their emails and the MSP had proof that they did, would that go to the Presiding Officer rather than to your office?
That is correct. There are a range of what are known in the code as excluded complaints. We have an extensive database of organisations that can help someone with their complaint if we cannot, and we always signpost—we do not just say to people, “We can’t help you.” Earlier, I made a point about what the public need.
Yes—a public portal. Thank you.
Not at all.
I have a couple of points for clarification. You have said that the queue of MSP complaints that are waiting for assessment goes back to December, but your website—although this relates to the position in October 2024—makes reference to cases that go back to June, August and September. I presume that that will change at the end of the next quarter to show the figures that you have given today.
Yes.
That is helpful.
I will turn to the second of my three points for clarification. The report gives a breakdown of where councillor complaints came from. There is the interesting issue of councillors complaining about councillors, as well as that of the public complaining about councillors, but there is no such breakdown for complaints about MSPs. Is that simply because the number of such complaints is very small, or is it because there is no interesting information that can be gathered from the sources?
I would suggest that there is probably not much interesting information. From memory, far and away the majority of complaints about members come from the public. If the committee would find it helpful, I would be more than happy to provide a breakdown of that sort. It would be straightforward for us to do that.
I simply found it interesting that an opinion was derived from the evidence on councillor complaints but not from that for complaints about MSPs.
My final question is on something that you will fully expect me to ask about, because we have discussed it at length: support for people who are complained about. We have had some reference to that already today. During your tenure, there have been amendments to clarify the obligations on individuals who are complained about. Are you getting any further forward, or are you sensing any support being available for people who are complained about? Are we anywhere other than where we were almost two years ago when we discussed this?
I have been asking for that support for three years, and I still think that it is important. It is a bit like having policies in place—you need to refer to them when things go wrong. If you have been complained about, or if you have been subject to certain conduct, or if you have been a witness to certain conduct, that has an emotional impact—it genuinely does. We spoke earlier about barriers to participation in public life, and the lack of support for people in those situations is one of those barriers.
The question is timely, because, towards the end of last year, we finally got a response from the responsible cabinet secretary in respect of complaints about councillors, and I met the Standards Commission for Scotland just before the turn of the year. I plan to write to the Local Government, Housing and Planning Committee quite soon about this, and I am happy to send this committee a copy of the letter from the cabinet secretary.
Please do.
We need to hand this back to the committees to look at what the Government is doing in this area. Basically, we have been told that it is the responsibility of local authorities and political parties. The Local Government, Housing and Planning Committee did its own research in this area, and it wrote to all the political parties, asking them what arrangements were in place. I have looked at all that correspondence and I know from discussions with the monitoring officers that there is no consistent picture of what support local authorities provide. Some provide support, but some do not—it is patchy. The position of the Scottish ministers is that it is a local issue that needs to be resolved locally, so I will be writing to the local government committee about that.
I understand that the Parliament set up a working group to look at the issue and that it came up with some recommendations. I think that current members have access to support, but the other parties do not necessarily have access to it, unless the person is a member of staff or something like that, so there is still a lacuna there and I will persist.
I am grateful to hear that. We will assist and also persist.
In your opening remarks, you mentioned your diversity programme and things that you are looking at doing in that programme in relation to the code of practice. How is the implementation of the 2022 code of practice impacting the fairness and openness of the public appointments process?
I think that it is going well. Of course, I would say that. However, as I indicated earlier, I do not like to mark my own homework, so we have had our internal auditors look at the public appointments side of the office. Their review, which has not yet been completed, is about the consistency of our decision making and the advice and guidance that we give to people.
You will have seen from the annual report that we get very few complaints about public appointments. There was one significant complaint that came in that provided me with a great deal of assurance about the way in which the system is operating. In effect, someone was saying, “I think I’m being discriminated against and it’s happened in respect of these 15 appointment rounds.” We conducted an extensive investigation into that and found absolutely no evidence to support the allegation. That provides me with a great deal of assurance. It was the most comprehensive investigation that we had ever conducted.
The code of practice is still bedding in. I think that some of the changes that we have made are helping to make a difference. Traditionally, the process tended to be run along tram lines, taking a risk-averse approach—the idea was that it was better to repeat the process in the same way we always had. However, I feel that, because we have empowered panel chairs to do more on behalf of ministers, they are taking revised approaches, which are bearing fruit. That is certainly the view of the public appointments advisers I allocate to sit and oversee appointment rounds.
As for transparency, we now publish much more material ourselves, because we have additional resource in place. On our website, you will find things such as reports on applicant surveys—which cover how applicants feel about the fairness of the process, which is very important—and additional new good practice case studies. We are seeing the proliferation of good practice as well.
There was a lot of concern, shall I say, around one appointment, which was quite public and made quite a noise in here. That was the appointment of the Scottish land commissioner.
Yes.
There was concern about the impartiality of that public appointment. What actions did you, your office and your team take to address that?
How does one put this? I am going to lapse into the vernacular: we were all over it. I allocated a public appointments adviser to that entire appointment round.
That process is often misunderstood, and perhaps I could do more to raise awareness of it. Our public appointments advisers are consultants I contract with: they are on service level agreements, and they are entirely independent of the Scottish Government. I am the one who tenders for them and trains them. After this meeting, I am going to a meeting with the entire cohort of public appointments advisers. I am there to keep them right, and they keep me up to date with each and every appointment round to which they are allocated.
I understand why there were concerns and why people felt that the process was somehow politicised. I seek to avoid that. We all need to ensure, and to be assured, that the best people for such roles are the ones who are appointed to them.
We run a fit and proper person test, which is on the face of the code, as part of every appointment round. That includes exploring whether there are any unmanageable conflicts of interest. I understand that, in the case that you mentioned, the individual in question advised the panel that they were going to relinquish a particular role that they held, in order to be considered suitable for the role for which they had applied. That was explored.
The panels also explore whether an applicant’s previous conduct is compatible with the role for which they have applied. I understand that the individual in question had made some public criticism of fellow politicians, which had been raised as an issue. To be honest, it is not unusual for politicians to criticise fellow politicians on occasion—that was a topic of conversation earlier today—but whether that renders them unsuitable is a different question. All of that was explored.
The other point to bear in mind is that ministers can appoint only from the pool of people who apply for roles. The hope and the ambition of our “Diversity Delivers” strategy is to get more people applying for such roles, so that we are fishing in a wider pool.
I will come on to the diversity thread. You spoke earlier about the commissioner landscape and the evidence that you gave to the Finance and Public Administration Committee. Have you a view on the number of public appointees in Scotland in general? Is there a mechanism for you to ensure that there is no duplication in those public functions? Have you a role in that?
I have no role at all in that. Those matters are entirely for the Scottish ministers. That also relates to the criteria for selection, which I see as being important. I do not determine what a body needs. My people are there to ensure that, once ministers have determined the requirement, the process delivers it.
It is just that there are 100 public bodies and 770 posts.
Exactly.
Going back to diversity, you spoke about ensuring that we have the best people for roles. How do you square that circle when you have targets? How do you come up with the target percentages for each of the groups, which are noted in our papers? What role does the new organisation Leading Kind have in navigating what can be challenging decision making, given all the factors that link to that? That is quite vague, but you will know what I am trying to ask.
I am sorry, but could I trouble you to repeat the first part of your question?
Yes. You spoke about ensuring that the best people for the roles get the jobs, and you mentioned that it all depends on who actually applies. However, you have target percentages for various groups, so how do you square off all those competing factors? What role will Leading Kind have in helping you to navigate through that stormy sea?
10:30
I am sorry to have asked you to repeat yourself.
No, that is fine—it actually helped me, to be fair.
I do not want to get overly technical about how we ensure that the best people get the roles, but our public appointments advisers all have backgrounds in recruitment and selection—that is their area of expertise—with a particular focus on diversity and inclusion. That is the basis on which we tender for our advisers. They are there to give advice.
As an office, I also provide advice and guidance to officials who are tasked with filling such roles. The ministers determine, in general terms, what they require at the outset of an open competition. That includes skills, knowledge, experience and other relevant attributes, which could be things such as geographical location, lived experience—you name it. The latest version of the code is much clearer about the range of things that ministers can consider when they are looking to fill posts. That is the ministers’ responsibility.
The panel is then tasked with putting together a very clear and specific person specification. Over and above that, the panel is tasked with designing a range of what we call indicators. In human resources circles, those are also known as BARS, which stands for behaviourally anchored rating scales. The indicators explain in very clear terms, “In order to meet this criterion for selection, this is what good looks like.” There are normally five or six indicators. Therefore, when they apply for the role, people know that they need to meet that criterion and that, in order to demonstrate their merit, they need to be able to meet as many of those indicators as possible.
That is how the panel assesses candidates. The panel assesses each and every candidate against each and every criterion using a range of methods. There is usually an initial written application, but the code is not prescriptive about what that should be. For example, it could be a form, a letter or a statement of intent. However, the entire process has to be designed to assess all the criteria for selection. There are different scoring systems in place, but, basically, that is how the most able people are identified.
The target percentages were set in 2008. When we consulted on the most recent “Diversity Delivers” strategy, we agreed those targets with the Scottish ministers, and they have been in place since then. They were based on Scotland’s demographics at the time.
Obviously, those have changed.
Yes, we include the demographic data so that everyone can make that comparison.
On Leading Kind, if the committee is interested, I am more than happy to provide the tender documentation, which set out what we expected any consultant who came into this space to be able to deliver and the abilities that they needed to have and to demonstrate to our satisfaction so that we knew that they would be able to deliver against what we required. All the detail is in the documentation; it was an extensive tendering process. Some really impressive organisations and individuals tendered for the work, and we are delighted with the result.
If you would like to find out, in person, exactly how Leading Kind intends to deliver, I hope that you and your fellow committee members will invite the organisation to the Parliament and take the opportunity to have a chat about how it intends to deliver and about what you think it should be doing, because we really want to know that.
Thank you. I have no doubt that the convener will discuss your suggestion with us later.
Good.
Thank you, Ian, for coming and facing the questions and for the report. Over the time that I have had the privilege of sitting at this end of the table, there has been a sea change in the annual report and its contents, as well as in the confidence of external stakeholders and internal staff. I thank you and your staff for that.
I want to steal your words by reiterating the final part of your statement in the report, where you say that it is a privilege to lead the team that you lead. The committee can see that they are a talented and dedicated group of professionals. Your very last sentence,
“We know that day in and day out our work makes a difference to people’s lives and we don’t take that responsibility lightly”,
is a powerful statement for a lot of people within and outwith your organisation.
Thank you for your attendance.
Thank you, convener.
I suspend the meeting briefly before we move on to the next agenda item.
10:35 Meeting suspended.Air adhart
Cross-Party Group