Standards, Procedures and Public Appointments Committee

Meeting date: Thursday, March 9, 2023

Official Report 570KB pdf

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Commissioner for Ethical Standards in Public Life in Scotland

For our second agenda item, I welcome Ian Bruce, the Commissioner for Ethical Standards in Public Life in Scotland, and Angela Glen, the senior investigating officer in the commissioner’s office. I formally recognise Ian Bruce’s appointment as commissioner—he was acting commissioner during the process of the annual report that we will consider today. Would you like to make opening comments before we move to questions?

Thank you, convener, and members of the committee for the invitation and the opportunity to talk to you about the work of our office. I will keep this statement brief, as I am sure that you will have a number of questions for me. As the convener observed, I am joined by Ms Glen, who will be happy to provide more detail on our work on complaint handling in response to any detailed questions that you have in that area. As usual, we are keen to ensure that the committee is fully informed about our performance.

I trust that you have reviewed the previous two annual reports and that that will have given you a flavour of the challenges that our organisation has faced since I took up office as acting commissioner almost two years ago. I have now been formally in post as commissioner, following approval by the Scottish Parliament, since 1 March, so relatively recently. I do not plan to rehearse all of those challenges here, although we will be happy to respond to any questions that you may have on any of them.

It might instead be more helpful to briefly bring the committee up to speed on the current circumstances and our plans for the future. Clearly, our most recent annual report is historical in nature. You will be aware that Audit Scotland laid another section 22 report in January to follow up on our progress in the usual way. That report reflected positively on the work that we have done to rebuild our office and the services that we provide, and to restore confidence in the ethical standards framework. However, the report also made it clear that more work has to be done to embed the good practice that we have adopted since the previous section 22 report was laid by the Auditor General for Scotland. I expect to give evidence to the Public Audit Committee on that prior to the end of this month.

On our website, and in summary in our annual report, we have included all the details of the progress made. In brief, we have now fully implemented 16 of our auditor’s recommendations and we have partially implemented the remainder that we are able to. We can provide more detail during this session. We have concentrated on re-establishing our governance, our systems of assurance, our relationships with stakeholders and our staffing levels. On that front, we are in the midst of recruitment to fill roles that were approved by the Scottish Parliamentary Corporate Body in October, with the first new staff member joining us just last Monday and currently going through her induction.

On my plans for the immediate future, I intend to complete additional recruitment followed by induction to clear our investigations backlog and to process complaints much more quickly in the future. I also plan to introduce a communications strategy and develop and measure progress against key performance indicators. I expect all of that to be in place by the end of the financial year, or shortly thereafter.

On public appointments, the revised code of practice—on which I previously consulted the committee and all our stakeholders—came into effect last October. We have worked alongside the Scottish Government to assist with its implementation, and the early signs are very positive. Good practice reports continue to be at higher than previous levels, which is heartening. The revised code is intended to embed the learning of lessons on an on-going basis. I will monitor that aspect of the code’s implementation and report to the committee on progress against it, particularly in respect of appointment rounds that fail to deliver a successful outcome.

I trust that that is of interest to the committee. My colleague and I are happy to answer any questions that you may have.

Thank you. With the usual fun and games as convener, I will go first and steal all the best questions.

Before we start, I say that the continuing honesty in the annual report about the challenges that you, as the commissioner, and your office have faced is very welcome. A number of external comments have pointed to failings in the commissioner’s office in the recent past. All the evidence that was given at the Public Audit Committee last week and the various reports on the issue contain comments to the effect that there has been great change, but there is still change to come and that it will be some time before confidence in your office—and, indeed, in you—is rebuilt.

What do you feel about seeing those comments, as commissioner? Do they resonate with you? Do you understand them, and are you committed to continue to reach for the higher standards that you have spoken about in your report?

I am absolutely committed to continuing improvement for our office. More than that, now that I have been appointed as commissioner for a six-year term, I am looking six years ahead. As I have already communicated to the entire office, we are looking to staff up, and I think that we will be in a much better position as an office than we have ever been historically. I have ambitions not only to be a really good public sector employer but to be really effective at what we do, and in particular the most effective complaint handling organisation across the Administrations and further afield. That is my ambition, and it is shared.

Those are welcome comments. Rather than say, “I hope that they don’t come back to haunt you,” I will say that I hope that they give you and others around you the confidence to carry on and achieve that.

I want to get into some of the detail and in particular something that I know that you are aware has interested me significantly, which is the relationship with your staff when they have concerns. We have previously taken evidence, as have other committees, about the formalised whistleblowing provisions that exist. However, interestingly, in the evidence that was given to the Public Audit Committee last week—I will quote from it, as I would like your comments on it—Pat Kenny said:

“The routes that staff can use if they are concerned about the office holder in the future have been re-emphasised within the organisation. For example, one route that has been emphasised involves going to Audit Scotland to raise certain concerns. The accountable officer of the ethical standards commissioner can also go to the accountable officer of the corporate body, and it has been clarified that there is a reporting route to the chair of the audit advisory board if there are concerns within the organisation.”

He gave a little bit more evidence and then said:

“I would be keeping a very close eye on that process to ensure that it beds in and is implemented effectively, because it is key that that be put right. Progress has certainly been made in that respect, but it is very important that the audit function continues to look at that issue.”—[Official Report, Public Audit Committee, 2 March 2023; c 7.]

The issue is not just about financial audit; it is about the first green to amber warning signs that something is going wrong. Will you comment on that and, I hope, give confirmation to the committee that you agree with that evidence? Also, what are the challenges with regard to that issue going forward?

I certainly agree with that evidence, although we are in a transitional phase at the moment, in as much as we have just drafted the terms of reference—they are in draft—for the advisory audit board. We reached agreement with the chair of the advisory audit board that he would be the route for staff to report concerns.

To take the committee back, part of the reason why things went south—for want of a better expression—in the organisation was that the concerns were about the accountable officer. The threshold for whistleblowing relates to criminal activity, and the activity that is of concern has to overreach that particular threshold. When concerns are below that threshold, the reporting route is less clear.

We are making arrangements so that, if staff have concerns that do not necessarily qualify as whistleblowing, they can raise those with the chair of the advisory audit board. There is then scope for the chair of the advisory audit board to consider the reporting route that they might use. That cuts out of the process any commissioner who is not engaging and who is perhaps not operating in the way that they should.

We also now have internal audit arrangements firmly embedded, and those will continue. For example, we have already had auditors look at our governance arrangements, including our whistleblowing policy, and they will continue to do follow-ups. There is much more independent assessment of the way in which I operate, and there are many more routes for staff to take, depending on the nature of their concerns.

That is helpful. I can see the formal route that has been charted, but the reality is that all of this is based on relationships and confidence. Somebody who, to use a slightly archaic term, perceives that they have less power than the person whom they are concerned about and, indeed, less power than the person whom they are speaking to, needs to have strong relationships that allow them to raise issues. On a practical level, do you have confidence that such relationships exist, in the sense that someone could approach an individual and say, “Can I just have a word?”

You have spoken about the considerable change and increase in staffing. Such processes always present challenges in keeping the confidence or the identity, but they are also an opportunity to build the identity that you want.

Are you confident that the relationships are strong enough and exist for the process to work? Do you see the opportunity, with the changing personnel, to build an identity that you are happy with and that your staff are happy to be part of?

Absolutely. I have spoken at the committee previously about the fact that one of the first things that I felt it was important to do was to establish a set of values for the office. All existing staff were introduced to those values, and part and parcel of that was the need for them to be able to constructively challenge my thinking in any given area. I do not operate autocratically or believe that I always have all the answers, although the buck certainly stops with me. All staff are encouraged—required even, to an extent—to constructively challenge me in circumstances in which they feel that I am not operating effectively or if my judgment is not sound.

Yesterday, I ran a training session on precisely that topic for the entire staff team, which Ms Glen will be able to testify to. We have also made that part of our recruitment process. I reiterated to everyone who applied for the several roles that we advertised prior to the Christmas holidays that these values are fundamental to the way in which the office operates.

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Going further than that, notwithstanding that I am a parliamentary office holder and I do not have a board of governance—there are no provisions for that in statute—I, alongside my colleague Karen Elder, who is the head of corporate services and was the accountable officer until my appointment as commissioner, have developed terms of reference for the senior management team. Included in those terms of reference is that it is not just about supporting the commissioner to fulfil the statutory function but about challenging the commissioner in circumstances in which they feel that the commissioner’s judgment is flawed.

So, we have reporting routes, but all the staff are empowered to challenge me and, in the event that they feel that that challenge is not being taken cognisance of, they understand that they have other routes that they can go down.

That is very helpful. My final question is, unfortunately, an incredibly specific one but, again, it is about something that I have had an interest in for a while.

The Deloitte audit report included a list of recommendations, which now sit in the public domain. One of them was:

“The Commissioner’s Office should engage with the SPCB and Parliament to determine the reporting route for concerns about a Commissioner”.

The management update on that is worrying in the sense that there is no revised target date because input seems to be required from the SPCB. Given that we are looking at the annual report for last year, can you bring the committee up to date on engagement with the SPCB, particularly on that point, with regard to the structures that you have already described?

Yes. Talks with the SPCB have been on-going for some while and they are wider than just involving my office. The SPCB is now talking to all office-holders on a more regular basis and there is an exchange of information. I am not entirely convinced that that reporting route has been established yet. As I have just explained, one thing that I am working on, for my own part, is the senior management team terms of reference. We are also writing terms of reference for the advisory audit board, but it has made it clear that it is just an advisory audit board. It cannot fulfil the role of non-executives for our particular body.

We will go to the SPCB with a governance framework document that clarifies the new role that the senior management team will have in respect of the commissioner. It will discuss the fact that they are capable of reporting to the Parliament in the event that they have concerns about me. In that way, I think that we will provide that additional level of assurance that the auditors were looking for but did not come up with a solution for. Those are the proposals that we will bring forward to the SPCB.

It is difficult. The SPCB clearly has the independence of the office holders in mind and it does not want to direct me in the exercise of my functions, but I think that the solution that we are positing should give both it and the subject committees a level of assurance about what I am putting in place.

Do you envisage that, in that process, the reporting would be to the SPCB or to somewhere else? I know that that is a difficult question because you have not had a lot of discussion with the SPCB.

There are two options. As you said, Pat Kenny mentioned both of them. With the SPCB, we are basically talking about the accountable officer for the Parliament, because that individual will also be the accountable officer for our budgetary spend and Audit Scotland.

I am still of the view that, potentially, there is more that Audit Scotland could do to focus on the governance of bodies that are similar to ours, as opposed to simply focusing on financial issues. I observe, because I have kept an eye on this for a long time with my public appointments hat on, that the majority of section 22 reports that end up in front of the Public Audit Committee tend not to be about failures in financial management; they tend to be about failures in governance. I would certainly encourage Audit Scotland and the SPCB to continue discussions about the way in which they provide oversight of all office holders.

That is very helpful. Thank you. As promised, that was my last question.

Good morning, and welcome back, Ian. You touched on your progress with recruitment in your opening comments, and it is heartening to hear that you have managed to take on another member of staff. Will you address the progress that you have made with staffing and recruitment and the plans that you have in place to manage the existing capacity concerns? I know that that was highlighted by the external auditors as well.

Yes. We have moved as quickly as we could. We put in a bid to the SPCB last May, because we brought workforce planning forward. We knew that we had a lot going on. We have a statutory function to fulfil, and the senior management team was very stretched but, notwithstanding that, we felt that this was a priority. It is one of those chicken-and-egg situations. If you do not bite the bullet and get on and do the workforce planning, you cannot recruit staff, and if you cannot recruit staff, people will remain on that hamster wheel.

That was done, and the earliest opportunity that the SPCB had to meet me in person to discuss that bid was October. It was agreed shortly thereafter, and I and the management team then began planning in November. We advertised all the new post vacancies prior to the Christmas holidays and recruitment is well under way. As I mentioned, one new member of staff started on Monday, and we have another starting on 20 May. That is on the corporate services side, and it is due to their notice periods. We have another starting later that month.

On the investigations side of the office, we have already made two offers. One is for an additional investigations officer and it has been accepted. I think that the person’s notice period is about a month, so they will be starting in roughly a month’s time. The other is for a hearings and investigations officer, and I think that their notice period is two months—Angela Glen will keep me right on that—so we are looking at them starting towards the end of May. We also have a support officer for the investigations team. Angela, perhaps you can remind me of their start date.

Their start date is 23 March, which is in two weeks’ time.

We are filling all the posts at the moment. We have full induction timetables for each and every one of them, involving every part of the office.

One of the other recommendations from the auditors, which I happily agreed with, was that we needed to build resilience across the office so that every team member becomes familiar with the work of every part of the office and we have fail-safes in place for all our work. That perhaps responds to the other part of your question. Clearly, we are still stretched and we will be until such time as all those people are up and running. We have had roughly 50 per cent of the pre-existing workforce, so inevitably we were—and we continue to be—stretched. However, I am more than confident that, once all those people are in place, we will be handling things in the way that we ought to be.

That is excellent. It is great that you have made progress on that.

What progress have you made on meeting the three strategic objectives that are set out in the ESC’s revised strategic plan for 2021-24?

It is all going very well, from my perspective. We are underresourced, but bringing on board that additional resource will allow us to achieve all the objectives with no difficulty, in my view. I can go into considerably more detail, but we are very transparent about the progress that we are making. We have the strategic plan and those objectives, which are quite broad in nature, but sitting below them is a rolling biennial business plan, which is new for the office. It is now run on a two-yearly basis, and it has a whole range of objectives that sit within it—specific actions that each part of the office needs to undertake in order to meet the objectives that are set out in the strategic plan.

Below that, as part of our performance framework, each section has an individual action plan, and each member of staff has an individual action plan that is discussed with their line manager at the start of each year. The line manager will say, “These are the things that you need to do. What support, training and development do you need in order to successfully achieve them?”

Okay. Thanks. Another recommendation from the external auditor was that the investigations manual be published. Has any progress been made on finalising the manual? When will the final version be made public?

The investigations manual has been in place. I am not having a go at the auditors, but this has been a bit of a moving target in that they asked us to produce an investigations manual, we did so, and it has been in place since November 2021. It represents a significant amount of work on the part of Ms Glen. We are now on version 8 and we have been working to that since 2021.

We went further than the recommendation. We decided that it was appropriate to consult all our stakeholders, including this committee, on the provisions in the manual. It is quite technical, but we wanted to get people’s views on some things, such as how quickly we should be able to progress investigations. The public consultation finished at the end of last year, in November, and we are on track. Angela Glen has done all the analysis of the consultation responses.

We introduced some new measures ourselves, based on things that people were telling us. When someone has been the subject of a complaint or they have been a complainer and they did not like the way that we handled something, we think about that collectively, and we have updated the manual to reflect what we feel is better practice in that area. We are on track to publish by the end of March.

That is great. Thanks very much. I have no further questions, convener.

I have a follow-up question that is about the manual, but is also about the whole process. It is interesting that, on the website, there is a single point of entry to a complaint regardless of whether it is about an MSP, a councillor or another person. On my reading of it, that would tend to indicate to people who use the website that the process is the same in all those cases. That is my own entirely subjective view, but the person will know whether they are going to complain about an MSP, a lobbyist or a councillor, and I wonder about the thinking behind having a single point of entry.

Why not allow people to see the differentiation that exists? We have seen evidence that the approach can cause confusion further down the line. Why was that approach chosen? Would you reconsider it—or, indeed, are you reconsidering it?

The single point of entry is perhaps about making it as easy as possible for people to make a complaint if they wish to. Once they get beyond that single point of entry—this is all about website design, basically—there is an accordion and people are taken down the appropriate route on the basis of their first choice. It says, “I would like to complain about” and the options are an MSP, a councillor, a lobbyist or us. On the procedure, the questions that people are asked and what they say to us, they do not need to know what is behind those particular choices after the initial point of entry. They are funnelled to respond to the questions that we need answers to, so that we can investigate their particular concern appropriately.

We do not expect people to understand what is in the manual, but complainers and respondents with a particular interest in how it is going to work out can refer to that. Equally, we do not expect people to know what the relevant provisions for MSPs are or what the code of conduct says. They can just come to us and say, “I don’t like what this person has done,” and we will then apply the code or the relevant provisions to that conduct. We certainly do not expect people to understand those things.

The final version of the manual will be in Word and PDF. Our ambition is to chunk it up in due course so that it is accessible as individual web pages. At that point, someone with a particular interest, such as someone who has made a complaint about an MSP, will be able to see separate individual pages on the website that say, for example, how long their complaint will take to be investigated and what we will and will not take into account. I hope that that answers your question fully.

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Do you have confidence that the complainer will not misunderstand the different processes that are involved? I will turn that round. Do you have confidence that your website will show the route that will apply to the complainer, depending on who they are complaining about, and what is needed for their complaint to be registered, investigated and concluded?

Yes. Even as things stand, I think that that clarity is there. On the investigatory process, which is more technical in nature, do they need to know? It depends on their level of interest. I suppose that, if I was being complained about, I would like to know the detail. It is available, but we are planning to make it more accessible in due course.

That is helpful.

You will not be surprised that I am asking this question, because I have pushed on it before. Whether or not a complaint meets the requirements to be investigated is quite formulaic under the legislation. I would like some assurance that, when a complaint comes in, the simple tests of admissibility are ticked off on a spreadsheet or a covering sheet and that there is no delay in doing that, because it appears to me that that might have been a failing under the previous system. Is that covered in the manual that is referred to in recommendation 3.4 in the Deloitte report?

Yes—that is the short answer to your question. We now have admissibility forms for all types of complaints. You asked about tick boxes, and—yes—the forms do include tick boxes. The entire investigatory team has been trained in complaint handling across the board, and they do need to go through these tick boxes—a checklist, in effect—to establish whether a complaint is admissible. There are several tests in the manual, and we would be happy to provide a copy if that is of interest to you.

It would be helpful for me to see it. This is one of the things that I feel very strongly about. I do not want to discourage anyone from making complaints, but a speedy and fair resolution is absolutely critical for the person who has received the complaint against them. If someone is informed that there is a complaint against them, I believe that it goes against natural justice if it then takes months to sort it out. The pressure on that individual is huge. I am keen to see that that procedure form is there and there are review dates so that, if a complaint sits there for more than a set period of time, that is flagged up to the next level of management until eventually it lands on your desk with a flag saying, “If I don’t resolve this tomorrow, it might be my job on the line as well.” Is that procedure in place?

Yes. It is probably more robust than you might anticipate. The entire investigatory team meets every week to look at all live cases and complaints sitting at the admissibility stage, and I sit in on those meetings every second week. The senior management team receives a full report on all complaints in respect of all the work of the office every month, and the senior management team—including myself—looks at those and discusses how we are getting on with, for example, the backlog. I wholly agree with you, and I have said quite candidly to the committee previously that I do not think that we are doing well enough at the moment. I still hold that view, because we still have a backlog, which is wholly unfair to individuals.

In respect of MSP complaints, simply because of their nature and the admissibility criteria, they are completely up to date at the moment. There is no MSP complaint backlog.

I am sure that that is good news. I stress that I am not trying to discourage people from complaining, but I am thinking about the pressures on individuals with a complaint against them.

Convener, I have a question about the advice that is given to people who have a complaint against them. It may be appropriate to put that later in the session.

Yes, we can come back to that.

We will move on to questions from Alexander Stewart. As we have raised the question of complaints about MSPs, let us have a look at the report from that point of view.

Good morning. It is very obvious from the discussion already that things are moving forward. You have made some very positive remarks about confidence, ability and ambition, and those are all good to have in the process. It would be useful to unpick more of where we are with the complaints backlog.

You have touched on the backlog and where we found ourselves. There was a massive increase in complaints in 2021-22 in comparison to the previous year. Where are we now with the backlog? How many complaints are you managing at this time, and how well are you reducing that backlog? We have touched on staffing and staff training, and I think it is vitally important to make sure that those things are lined up, so that you can perform and progress. It would be good to get an idea of where we are sitting with that situation now, so that we can compare and contrast with where we were.

I have already addressed where we are with complaints against MSPs: we are completely up to date. We still have a backlog in relation to councillor and member complaints, but it is reducing. I will bring in Angela Glen, because she is across all the detail.

Good morning. Your question relates to an update of where we are with the backlog. As Mr Bruce has already covered, there is no backlog in relation to MSP complaints—none are currently outstanding. The update from 1 April 2022 to where we are now, in the world of MSP complaints, is that a large number of those cases have been closed. For instance, from April to December 2022, we assessed a total of 37 cases comprising 556 complaints at stage 1. That was the figure at December 2022. Currently, there are two MSP complaints at stage 1 and one MSP complaint at stage 2 where the report is awaiting the committee’s consideration. That is why the focus, in relation to the backlog, is on the number of councillor and member complaints that we have outstanding at stage 1.

Taking the councillor cases as an example, we began the financial year with 60 councillor cases at the admissibility stage, and, throughout the year until October 2022, the number hovered between 50 and 60 councillor cases at any given time. However, we currently have about 30 cases at the assessment stage. The oldest case is from June 2022, and it comprises three complaints. The next case up is from August 2022, and thereafter the cases are from October 2022.

Members will note that there are already a lower number of cases at stage 1 compared to when we began the financial year. Also, the website banner previously showed a wait time of nine months for completion of a stage 1 assessment, but that was recently revised to eight months because of the progress that we have made, and we have every intention to revise it to seven months very shortly. I highlight that those numbers are set on the basis of the furthest outlier cases and represent the worst-case scenario. In reality, the assessment of councillor and member cases would not take that amount of time.

Members will recognise that progress has been made and there is an on-going effort. The progress that we have already made is, by and large, due to the investigations team committing themselves to backlog cases and having a triage system in place so that, when a complaint can be closed at an earlier stage, it is closed at that earlier stage.

There is a clear and express effort to assign ourselves to those cases and to work through them as fast as we can, but we also bear in mind that, when we pick up a councillor or member case for a stage 1 assessment, we are always required to keep in line with the Standards Commission for Scotland’s eligibility direction, and we are required to investigate and report on every case that matches it. So, although we are picking up as many cases as we can, that does not change the rate of assessment or the rate of acceptance for investigation, because, for every case that matches the direction, we are required to investigate and report, which will inevitably mean a decrease in the capacity to take up other assessments.

I should add that, against that backdrop, there is a very high number of active, on-going investigations per month. That remains at its highest level compared to all previous years, and it reflects in the sense of having the highest number of reports being referred to the Standards Commission compared with all previous years combined.

You have identified that there is a sea of information coming towards you in the form of a number of complaint capacities. In the past, your organisation has struggled to recruit and retain staff, and funding has been crucial for what you have required. I know that additional funding has been granted by the SPCB. It would be good to get a flavour of whether that is enough to enable you to manage the situation or whether you feel that other pressures will come forward that are financially orientated.

We acknowledge your ambitions, but, if you do not have the capacity and resources behind those, you will not be able to achieve what you want to. We all want to see the process progress to the level where we do not have to wait for nine, eight or seven months for a situation to progress. You should have a much more effective and efficient role. You are going to have these new people and you have had some extra funding, but is that enough to enable you to manage the situation and the crisis that you find yourselves in today?

Yes. I would not necessarily describe us as being “in crisis”. As Ms Glen eloquently pointed out, the backlog is reducing even without those additional investigatory staff in place. If the committee has an interest in it, I would be very happy to share the workforce plan that we put together, which is very comprehensive. I am content that it is exceptionally robust. Clearly, the SPCB was content, otherwise it would not have released the additional resources in a time of financial constraint. It is my firm view that the plan is sufficiently robust and evidence based to provide assurance to anyone who cares to cast an eye over it that we will be in a position not only to clear the backlog relatively quickly with the new staff in place but to get through complaints with much more celerity than we ever have, as an office, in the past.

You touched on performance, and I know that performance indicators have been introduced into the complaint-handling process. It might be useful to tease out how that is progressing, as assessing performance using those indicators will inevitably support you not only to get rid of the backlog but to manage the complaints that come through on a regular basis.

I agree whole-heartedly. The performance indicators were published in the manual, we have consulted on them and, yes, we will measure our progress against those indicators. To be clear, they are not vague and fuzzy, and they apply to every stage of every investigation. For example, going back to Mr Mountain’s question, we will measure how long it takes us to assess the admissibility of a complaint and either dismiss it or carry it forward to the next stage. That is just one indicator. We will measure our progress at every stage of an investigation that goes forward, and we have times set out all the way up to 100 per cent. So, yes, performance indicators will inform me and the senior management team, but we will also publish progress against them at least annually, so we will be very transparent about where we are in relation to them.

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The performance indicators are about timing, but we are going further. The next senior management team meeting will look at a survey that I have produced, which we plan to send to respondents and complainers, asking how the process felt to them, whether they were treated with dignity and respect, and whether we demonstrated our values. People will be able to complete it anonymously. We are moving our survey provider quite shortly, but we expect to roll out the survey in the next couple of months, alongside the one on timing.

You have indicated that many of the complaints that you receive are inadmissible, so there is a need to promote understanding so that individuals know what areas they can complain about and what capacity you have to deal with a complaint of that nature. How do you manage to get that information out so that people understand that you can investigate only certain aspects in relation to the code of conduct? It would be good to know what your ambition is for that, as that may help you to manage the number of complaints that you receive.

That is a fair point, and, to be honest, it is one that I struggle with a little. We need to split complaints about MSPs from complaints about councillors and members. The act that I work to in relation to MSP complaints makes it pretty clear that I am not supposed to provide an in-principle view on whether or not conduct might constitute a breach of the code. That makes it difficult for me, because I cannot say on the website whether an MSP behaving in a certain way is or is not a breach; I need to look at every complaint on its merit. It is not that I have not thought about it—I have.

I think that there is scope for us to do more in terms of public education. One of our internal auditors’ recommendations was a communication strategy, so that is certainly something that I will take on board.

As you identify, managing that communication is vitally important so that there is no misunderstanding of the complexity—it might not be black or white; there are still grey areas in all of this. As members, we acknowledge that and think about how we fit into the process, but we and others must have confidence that your organisation will not only manage and support but investigate and be able to show, at the end, that you have gone through the process fairly and without favour. That is what we need to see in order to have confidence in the organisation. There might have been a slight lack of confidence in the past, but we all want to get to that place—I have no doubt that you do, and your report itemises that very clearly. We need to be sure that the steps that you are taking are making progress and that we are seeing that resolution for the future.

Absolutely. I have said this previously, but I will reiterate it. I already have plans to publish progress in all these areas, including key performance indicators, on our website. I mentioned the business plan, which is a simple example. Progress against our business plan is published every year at the year end.

My general approach—and not just in relation to committees—is that, if the committee wants anything else from me at any time, you merely need to ask. I am very transparent about what our organisation is engaged in and about where we are doing well and where we are not doing so well. Even at the level of the individual complainer and respondent, everyone gets a full explanation for a decision that I have come to. That is the level of transparency that is required, and I think it is the level of transparency that can give people confidence that, although their complaint may not have been upheld, there are very clear reasons for that and they have all been explained to them fully.

Can I start by welcoming you to your permanent position and thank you and Ms Glen for the hard work that you have clearly been doing to turn the organisation around? We should put on record what you say in your report about “rebuilding a plane in flight”. You have had to do the day-to-day job and the bigger-picture stuff at the same time, so I think that the committee would agree that thanks are required.

That said, I will now scrutinise various aspects of current performance. Your website says:

“Current initial review time: 8 months.”

We know that that might come down to seven months. Then it says:

“We are very sorry that it can take up to 8 months to conduct an initial assessment of your complaint. We are doing everything we can to reduce this time.”

However, we heard from Ms Glen that that is not the case for complaints about MSPs. That is not clear on the website, nor does the website give an average time for an initial complaint to be assessed as admissible, so it gives a misleading picture of the performance of the organisation. That is unfair to the organisation, but it is also misleading to members of the public, who may be deterred from making a complaint about an MSP. I would welcome some reflection on that before I move to my next question.

Those are—as usual—very fair and astute points, Mr Doris, and we will certainly take them on board. We had a full discussion at the SMT before we even thought about putting up a banner, but we felt that it would be fair. We tried to keep it as simple as possible, but those are very reasonable points. I think that we will make the distinction between councillor and member complaints and MSP complaints, and we can think about putting something up about average times. I do not have a great deal else to add. As Ms Glen said, the wait times refer to the outlier cases and we did not want to give those who were in that position the impression that it was taking much less time for everyone else. I think that those are good points.

I am pleased to accept that as a relevant matter that should be addressed.

I would like to move on to the complaints about MSPs: 738 in 2020-21 and 760 in 2021-22. Those have melted away, and I think that we all know about the reality there. Let me give you an example, rather than talk about specific cases. If I were to err somehow—not that I would do that, you understand, Mr Bruce—and a complaint came in, that would be one complaint. However, if 30 people complained about me slightly differently, that would be logged as 30 complaints. If 100 people complained about me slightly differently, that would be 100 complaints. Could you say a little bit more about the numbers for 2020-21 and 2021-22 and why they have melted away? An outsider looking in might think about those numbers, “Oh, my goodness, what on earth is going on with those MSPs? The place is an absolute riot. Look at all those complaints.” It is a wee bit unfair on MSPs. They absolutely should be held to high standards, but the data that is given by your office needs to reflect the reality, not just the raw data. Any information that you can give on that would be very helpful.

That is an interesting question. We have committed to reporting on MSP complaints and cases on a like-for-like basis. Some of that had fallen away under my immediate predecessor, but we continue to do that and we include an explanation in the annual report about what constitutes a complaint and what constitutes a case. Again, I am happy to take views from the committee on this, either today or in due course. If you think that we should take an alternative approach, I would be happy to consider it, but, as things stand, because we are reporting like for like, people can identify trends over time. I know that those are very high numbers compared with previous years, but the reality is that, like for like, they represent the number of complaints that we received over that period, when a significant number of complaints were received.

The committee will know my obligations under section 16 of the Ethical Standards in Public Life etc (Scotland) Act 2000 and the fact that I am not able to provide any detail on the nature of the complaints. If circumstances were otherwise, I would like to be able to share that information, but fundamentally I cannot. That is the reality. We had that number of complaints and we dealt with them.

I hear what you are saying about whether showing those numbers would raise a question or concern in the minds of the public about MSP conduct. However, when it comes to disposal, the reality is that many of those complaints were dismissed as inadmissible, and that is what will be in the annual report. The fact that X number of complaints were made does not necessarily mean that they were legitimate, and the annual report does not suggest that they were.

I agree with that, but anyone looking at that snapshot in time could go, “Oh, my goodness, there were 700 complaints. What on earth is going on?” I also accept that you are bound by very clear rules in statute and guidance about how you can interpret the data and what you can say publicly about it. Without dwelling on the matter—there are other matters that I want to move on to—would you take on board that, if one MSP were to allegedly err in some way and 200 complaints came in about it, all a wee bit different, the consistent way you report that, which is to say that there are 200 complaints, might give a false impression to members of the public, given that you are bound by confidentiality and cannot say that it is in effect one complaint about one MSP? Seeing that snapshot, members of the public might think, “What on earth is going on here?” Is that a reasonable point and would you look at ways in which you could say more about the number publicly and report more clearly? Where there are constraints, perhaps you could share with the committee how we could overcome those constraints.

I would be happy to discuss that issue with the committee, but I need to reiterate that I am bound by the statute in this area and, fundamentally, that is a matter for Parliament. The act was created very early in Parliament’s existence, and you may feel that there is scope for my office to be more open about aspects of the complaint investigations that I conduct, but I would have to throw that back to the committee.

It is right to say that, although the act itself was from very early on in the Parliament, it was a very—I will not say unique—unusual set of circumstances that led to it. Perhaps engagement at a later date about data and what can be deduced from it, the difference between complaints and cases, and the number of MSPs involved would be beneficial. I am grateful for your indication that you would be happy to have that engagement.

Of course.

I appreciate that.

I think that Mr Mountain alluded to the welfare of MSPs so, keeping time constraints in mind, convener, I will hold back on that and ask a supplementary question later. At this stage, I will ask about the process for complaints about MSPs. If someone complains today—and I know that some unique cases can be complex—should they expect admissibility to be established within weeks?

Oh yes, more quickly than that.

That is very helpful.

If I am reading my scribbled notes right, I think that you report the number of active cases. If you cannot give me this information now, do not, Mr Bruce, but I am trying to be clear about what can and cannot be provided. How would the committee monitor the number of active cases relating to MSPS, if that is in the public domain? It might not be our job to do so—I do not know.

In terms of business planning, I would be happy to provide the committee with an update at any time on the number of active cases.

I am not trying to undermine confidentiality and privacy arrangements. Once admissibility has been accepted, if it is—and I know every case is different, so it will be difficult for you to answer—how long should a complainant or the individual complained about imagine it might take for a report to be forthcoming from your office? How do you get a baseline for that and how do you measure performance?

Again, the KPIs for every stage of an investigation are in the manual. However, having said that, we may not meet those KPIs on occasion, in which case, fine, people can say, “We would have expected you to have investigated this more quickly,” but the reality is that every case turns on its merits and there are lots of factors, which Ms Glen and her team are aware of, that can have an impact on things.

I will give you a very simple example, because it is quite a common one. If we need to interview complainers, respondents and witnesses, or if we need a response from them in writing, we provide timescales for that. It might be, “Please could you respond in two weeks?” Quite frequently people will say, “That is not good for me, because of my personal circumstances. I need a month.” Those sorts of things can accumulate and make the process longer than it would be in an ideal world.

10:30  

I think that what you are saying is that the KPIs are tailored to each circumstance, so you cannot give a baseline report about whether performance on the time that it takes to investigate each case is improving or deteriorating, because each case is so specific and unique—or can you? What baseline data about the speed that the office is operating at to make a determination on a complaint could the committee look at?

The KPIs that we are measuring all complaints against are based on all the cases. There will be some on which we meet all the KPIs and some in the margins—perhaps the very complex ones. We will be publishing all the data, so people will have a general expectation that in, say, 75 per cent of cases the investigation will completed and reported within the given timeframe but they might be one of the 5 per cent whose case takes 12 months to determine.

That is helpful. It gives me some assurance that you do some modelling on that, although there will always be some outliers.

I know that we are not looking at councillor complaints, convener, but there is a direct connection between them and MSP complaints—a positive one, I think. I read that the entire investigatory team is now trained to handle MSP complaints, whereas there was more of a silo arrangement previously, in which not all investigators were trained in MSP complaints. Clearly, then, any backlog of councillor complaints could theoretically have a knock-on impact on the disposal of MSP complaints. Could you say a little bit more about whether that makes your organisation more fleet of foot? Or are you content that the backlog in councillor complaints will not compromise your performance in MSP complaints?

The senior management team and I need to take a view on all the work of the office, and we do not intend to rob Peter to pay Paul. I am putting this quite simplistically, but, if we had backlogs in councillor and member complaints and MSP complaints, in the normal run of things, we would be getting through them in parallel. No type of complaint takes priority over others. I may have touched on this earlier but, because the admissibility requirements for MSP complaints differ from those for councillor and member complaints, we do not have a backlog of MSP complaints, because the majority by far of them are simply not admissible and we can rule them out at an early stage, just as we would do with councillor and member complaints.

I am not sure whether I have answered the second part of your question.

What I am doing is flagging up that, although it is not for us to scrutinise councillor complaints, given that your team can investigate both types of complaint, there are direct consequences—including some positive ones—and we may have to look at that in a bit more detail.

My final question is not about welfare, as I will let Mr Mountain lead on that. As performance and corporate governance are improving dramatically, we should look at the risk register. Perhaps due to my incompetence on the internet, I was able to find the risk register policy but not the risk register itself. Is that a public document? If it is, what are your top two risks for the organisation?

The risk register is not currently published, perhaps because we review it regularly. I can certainly provide the committee with a copy if it is of interest, but it is updated regularly and the risks to the organisation changed. Override of governance controls was sitting quite high on the risk register. You will be aware from the annual report and accounts that we publish all our top risks in there, but they vary. The override risk fell away simply because I have now been appointed as commissioner and the senior management team feel confident that I do not intend to override management controls.

A risk that we face at the moment is that we are onboarding new staff and there is perhaps scope for that to destabilise the organisation, which means that, in mitigation, we need to make sure that staff induction is appropriate and that staff are all trained fully to be able to fulfil their roles. Another risk is public confidence, because we still have an issue there. I have spoken about the communication strategy that I am planning to put in place. The organisation is still being discussed publicly. We have just had another section 22 report and the last thing that we want is for people not to make complaints because they feel that they will not be progressed appropriately. Those are a couple of the top risks. We have about 16 on the register at the moment.

I may come back in after Edward Mountain’s line of questioning about welfare, but I will end for now as I started, by thanking you and your team for the improvements that you have made to the organisation so far in a relatively short time. It is important to put that on the record.

Thank you, Mr Doris. Coming back to your previous question, the other advantage of having everyone able to investigate everything is resilience.

For clarification, there are not 16 elements sitting at red on your risk register, are there?

Certainly not, no.

There are 16 elements in total.

Yes, there are 16 risks.

The whole point of the system is to be fair to all parties: to the person who makes a complaint and to the person who is complained about. You have outlined the procedure that you have gone through for the person who is making the complaint and how they can find out about and in due course see the progress of their complaint through the system. That is very important, because it gives you a certain amount of strength to argue your case that you are taking each complaint seriously—I know that you do that, but it lets you prove it.

Although you have to be impartial in how you investigate a case, are you happy that you are giving advice to the person at the sharp end of the complaint about what they can do? After all, it is quite nerve wracking. I had a complaint against me. It was struck off, as it happens, but I can tell you that it is a nerve-wracking procedure because most—I would say all—MSPs want to do the best they can. It is quite daunting when you get a letter, especially if you are a new MSP, which in my case I was. Do you feel that you are doing as much as you can for the person the complaint is being made about and that you are giving them the correct advice on where they can seek support and help.

No, I do not think that I am, and I think that we could go further. However, I need to be super-cautious because of what the act says. What I think we require to do—and, in general, it is what the office tries to do—is signpost areas of support, particularly in cases where we are not able to provide support ourselves. Clearly, we cannot be seen to be partial in our investigations. My role is set out in statute. I investigate conduct and try to assess whether it is compatible with the relevant provisions. I have no role to provide anything even equivalent to pastoral care and I have nowhere to signpost respondents to if they have concerns, which is of concern to me.

I raised this with the Scottish Parliament about a year and a half ago and, as I understand it, it is still work in progress. I spoke to our equivalent organisation in Westminster, the independent complaints and grievance scheme, which you may be aware of. I understand that it has a separate contract with a totally independent body—I think that it is Victim Support—which provides support to complainants, respondents, witnesses and anyone involved in a complaint. I think that it would be great to see something equivalent for the Scottish Parliament so that, in every letter that I sign off, I could say, “You can seek support from X organisation.” I am still in dialogue with the Parliament about that. I am not sure that it is my role, but I think that there should be somewhere for MSPs to go.

I will perhaps leave it there, convener. I am sure that it is work in progress that everyone considers to be important, because the process should be fair for all—not just the complainer but the person who is complained about. I welcome your comment that you think that more could be done.

Bob Doris has a follow-up question.

I will be brief, because Mr Mountain made the points that I was hoping to make. I want to take a slight step back to consider all MSP cases—not just cases such as Mr Mountain’s, in which there is no admissibility, but those in which the most significant breaches are found. Breaches can be incredibly minor—there have been a few of those already in this parliamentary session—or they can be really significant and attract a lot of media attention. It is, of course, for your independent investigation to rule on them and for this committee to agree to those rulings, as appropriate, and decide what sanctions might look like.

Within all of that, there still has to be a duty of care for the individual who is complained about, irrespective of what they have or have not done. I would welcome your general reflections about where that duty of care sits, Mr Bruce, because the committee is grappling with that. It is not your primary role, so where does the duty sit, even in those cases in which an individual has quite clearly done wrong and is sanctioned deservedly? Does the duty of care sit with the commission? The Parliament has to reflect on that. Do you have any thoughts about it?

I think that it is vital, actually. Very soon after taking up office as acting commissioner, I noticed a clear lacuna there. For our part, we introduced the values and we absolutely work to them and treat everyone who comes into contact with us—it does not matter whether they are a complainer or a respondent—with kindness, empathy and respect. We can provide procedural advice on how things might go or how an investigation will progress, but, if someone needs to speak to someone about how they are feeling, I genuinely do not view that as the role of the investigatory office.

There is a lacuna there—there is no doubt in my mind about that—and it should be filled. That should apply equally to respondents, complainers and witnesses, particularly in cases in which the conduct concerns bullying or harassment complaints. Everyone in the process should receive support. For our own part, we have provided training to our staff from, for instance, Rape Crisis Scotland, and we have had legal training on progressing complaints of that nature. We have gone as far as I think we are able to, but there is still a gap and I would like to see it filled.

There are a couple of things to say in conclusion. I would like to turn to the public appointments side because, although it does not get as much airplay as other matters, it is a crucial role that sits with you. Some serious questions have been raised about how diversification in public appointments has gone or not gone. Will you comment on the changes? There is a full account in the annual report, but perhaps you would talk about how it has changed since the tail end of last year—since the report that we are looking at—and what your hopes are for it in the future.

10:45  

We are seeing progress. It is incremental, but, as long as we see progress, I am relatively happy. I think it could be going more quickly, which will not be news to the committee—I would not have introduced a new code of practice if that were not the case.

I will return to something that I said earlier. One of the purposes of the new code of practice is to embed learning lessons within the process. What it now requires is the selection panel chair, at the conclusion of every appointment round, if it has not delivered exactly what the minister had asked for, telling the minister—and me—why. We will share that information with the committee. Lessons need to be learned when things have not gone precisely as they should have done.

To repeat what I said earlier and what is said in the annual report, the improvements that have happened have not happened by accident. We have definitely seen an increase in the number of reports of good practice from my representatives who are out there in the field, looking at what panels do. As long as that continues, we will continue to see progress.

That gives us hope for the future. As you say, it is far from a concluded effort; perhaps it is an effort that should be on-going and never concluded. It is becoming apparent that the age of appointees is an issue. Would you like to comment on the lack of younger people putting themselves forward for such roles, which are very important for the communities that the various public appointments interact with?

That is a slightly more complex question, and the answer is perhaps harder to identify. We have made it clear in the revised code that ministers can ask for much more. They cannot select on the basis of a protected characteristic alone—that would be unlawful, apart from anything else. Equally, when it comes to the sorts of skills and knowledge sets that ministers might look for currently for boards—I will use digital as an example—the age demographic of those who are at the cutting edge of digital would tend to be in the sort of age bracket that is currently underreflected on boards.

On learning lessons, if ministers ask for that—I do see examples of it; for instance, in health boards that are looking to deliver services digitally—and they have not managed to attract people in that age group and seen them appointed, the panel chair needs to explain why that has or has not happened, as the case may be, with a view to improving their practices the next time around.

The minister can say, “I would like this round to achieve more diversity in protected characteristics.” It is not part of merit, but, if a minister says, “There should be more younger people on this board and I want you to make that happen,” it is down to the minister’s officials to make that happen. That is about positive action. There could be a public campaign or greater use of social media, and there is a demographic element to that in finding ways to encourage younger people to apply—people who might not have thought about doing so previously. If ministers are ambitious about diversity in all its senses, they should be making that ask now. It is really up to officials to say whether they have managed to achieve it and, if they have not, why not.

That explanation is helpful. I echo your words about ambition—it would be good for there to be ambition about what can be achieved in a number of different areas.

I have a short technical question. A criticism that has been levelled with regard to the financial reports from auditors is that the next 12 months is fine but planning for the medium and long term leaves a little to be desired, if I can put it that way. Obviously, you are cognisant of that criticism. Do you hope to improve that in the very near future, either before the next report or perhaps even sooner?

It is something that we are looking at and struggling with a little. We have asked Audit Scotland for examples of medium-term financial reports for organisations similar to our own, but we have still to see any. We have looked at the medium-term financial plans of all sorts of organisations—local authorities and so on—to find something equivalent. We are due to meet Audit Scotland to have a chat about what a plan for us—and perhaps for office holders more generally—might look like. However, the reality is that our only source of income is what is approved for us by the SPCB. We do not have any other income streams. The SPCB has already approved our budget, and I cannot see that changing in any significant sense for years to come, given the additional resource that we have already had. What might a medium-term financial plan look like for our circumstances? I am not saying that we do not want to implement a recommendation if it is well founded, but—I am being frank about this—we are not entirely clear what that might look like.

But you are not saying no.

Certainly not—no.

That is helpful. I think that you have offered to share the staff planning document, which would be useful—

By all means.

—and, in due course, the communications strategy, which would also be useful.

I want to end with something that I did last time. In the final paragraph of your statement in the report, you rightly extend your gratitude

“to each and every one of the staff in the office for their unwavering dedication, their remarkable resilience”—

we have spoken about that today—

“and their support during this challenging period”

and say that you

“remain immensely proud to belong to this team.”

On behalf of the committee, I echo those words to you and your team. When we last discussed these matters, it was in an “exceptionally” challenging period, whereas we are now in just a challenging period. That does not mean that it is easy or that it is solved, but I thank you for your frank and honest evidence, and I thank Angela Glen for her assistance.

Thank you, convener, and thank you again, members, for taking the time to listen to us.

10:51 Meeting suspended.  

10:54 On resuming—