Seòmar agus comataidhean

No, I do not think that it sounds like “not proven”.

We are in different language here, convener. It is about whether a complaint has been upheld—yes or no. If it has not been upheld, it does not have validity.

It will be handled by the Scottish Government’s propriety and ethics directorate, which was established in autumn 2021 to ensure that we have in place all the proper procedures and processes that members of the public would reasonably expect the Government to have for the handling of such matters.

The Government will do so.

I will be corrected if I am wrong, but that would not register as a complaint, because it would not pass the threshold for consideration. As Mr Lumsden will recall, an initial consideration is undertaken to judge whether what has been presented is a substantive complaint that passes the threshold for consideration. If the material did not pass that threshold, it would not be considered a complaint and would not be reported.

I am grateful for the opportunity to give evidence to the committee on the progress of the procedure for handling complaints by civil servants about a current or former minister’s behaviour and the continuous improvement programme to promote the culture and behaviours that we want to see in the Scottish Government.

When I appeared before the committee on this subject in April, the procedure had been operational from 24 February, following a period of wide engagement with Scottish Government staff, trade unions and the committee. The procedure is founded on a grievance process that has to balance employment law with public law and is consistent with the Advisory, Conciliation and Arbitration Service codes and guidance. Since it is a grievance procedure for staff, it rightly emphasises the need for privacy and confidentiality, with outcomes restricted to only those who are closely involved.

As the First Minister set out in Parliament, and as I have said in correspondence to the committee, given the legitimate public interest issues that are at play, it is appropriate for us to balance the expectations of confidentiality with the public role of a minister if a complaint is made about them. We have been working to make proposals to change the procedure and the Scottish ministerial code to allow for greater transparency in the reporting of the subject of a complaint. I see that as a natural development of the procedure.

Having trust and confidence in the process is fundamental to getting people who feel that they have a legitimate complaint to come forward. It is important for me to set out that the public disclosure of the outcome would not affect the confidentiality of the process with respect to the complainer or others who are involved in the case, such as witnesses. I cannot stress that point strongly enough. On the confidence of ministers, they should be assured that the process will be fair and that expectations will be set out and clearly communicated.

Therefore, after careful consideration, we propose to update the procedure and the Scottish ministerial code to reflect that, after the conclusion of an investigation, including any appeal, the name of the minister who is the subject of a complaint will be publicly disclosed as well as the outcome of the complaint. In addition, a redacted decision report for upheld or partially upheld cases will be published. Complaints that are not upheld are a different scenario, and it is proposed that more limited reporting would be fair. As such, the minister’s name and the outcome will be published for a period of six months. Changes will not be made retrospectively to investigations that have already been completed.

Under the changes that I am discussing with the committee today, the publication of the outcomes of future complaints about former ministers will be reported in the same way as complaints about current ministers. On a six-monthly basis, we will proactively report on the Scottish Government website the number of cases that are under investigation and any that concluded in the previous period. The proposals mean that ministers past and present will work to a more transparent set of reporting principles for upholding standards of behaviour in public life. We will publish those figures for the first time in December after a short period of reflection on the changes with the committee, staff, ministers and trade unions.

We have worked in tandem with our trade unions and staff and taken soundings and advice from others with experience in complaints handling. Should there be complaints in the future, in publicly reporting the information that I am setting out today, I believe that we are striking the right balance between the public interest and maintaining the privacy and confidentiality of the complainant. I look forward to discussing the updates with the committee.

In addition to the updates to the procedure, I am pleased that the continuous improvement programme has successfully completed the activity that was scheduled for the end of each quarter. A programme update was submitted to the committee at the end of July, and another one will be completed to reflect the activity scheduled for the end of December. The programme has made good progress. The measures of success have been identified from the Scottish Government’s people survey and will be supplemented by the engagement that the propriety and ethics directorate has started throughout the organisation.

The measures attempt to assess the degree to which the continuous improvement programme has contributed to an improved culture of openness and inclusion in the workplace. It is a workplace where bullying and harassment is not tolerated and where early intervention and mediation continue to have a key role in addressing the majority of issues that arise before they become problematic. However, it is also a workplace where—if needed—our staff feel able and willing to speak out against unacceptable behaviours and understand and have confidence in the processes that are in place.

I look forward to discussing the programme with the committee.

There is a very difficult judgment here, convener. I assure the committee that, in coming to that judgment, I have wrestled with the issue significantly, because I understand exactly the points that you raise. As I set out in my opening statement, there is a careful balance to be struck between the nature of a due process to be undertaken and the need for there to be transparency about the way in which the issues are handled. You will note in the information that I have shared with the committee that there is a difference between the approach that will be taken should a complaint be upheld or partially upheld and the one that will be taken should a complaint not be upheld. No details will be shared about the substance of a complaint if it is not upheld.

I recognise that it is a careful balance. As I have indicated, we are setting out proposals to the committee. They have been the subject of dialogue with our trade unions and our staff. If the committee is minded to give me feedback on that question or other questions, I will of course consider it before we come to final decisions about the application of the proposals for changes to the procedure and the ministerial code.

It would have to be an objective assessment. In these circumstances, we are putting in place a set of arrangements to try to address any such experiences. The whole approach goes back to part of what I said in my introductory remarks: we aim to create a working environment in which there is no place for bullying. We will set out in the advice and guidance what we consider to be examples of bullying. We cannot be precise about absolutely everything, but all organisations are able to set out their reasonable expectation of what bullying might look like. There are proactive efforts to create a climate and culture that mean that such behaviour is not in any way present in the working experience of members of staff. Should concerns be raised, there is, as I said earlier, a keenness to ensure that those issues are resolved as early and as proactively as possible. Ultimately, if members of staff feel that they have the basis on which to make a complaint, and if they feel that the issues have not been satisfactorily resolved, they can do so, and we have a procedure that enables that to be addressed.

The best way to answer that is by reference to the standards of behaviour that we have set out in the guidance to members of staff and ministers. That guidance will be set out in the ministerial code and in the standards of behaviour that are expected for the undertaking of Scottish Government business. I am happy to make those available so that the committee can cast its eye over them. The approaches give a clear distillation of our expectations of what the workforce will be like and what the experiences of members of staff should be like. If they are not of that order, conduct can be resolved through the various means that I have set out.

Nothing will be shown in the report in December, as things stand. There are no complaints with the Government, so we will have none to report on in December.