Seòmar agus comataidhean

Before I throw you to the lions of the rest of the committee and their questions, you will be aware of the substantial number of CPGs that exist and you will also be aware of the obligation that Clare Adamson and you will take on as co-conveners. I know that you have had an offer of secretariat support from outwith the Parliament, which is good to hear, so I will phrase this as carefully as I can. You do understand the personal and individual responsibilities of an MSP as a co-convener to comply with the rules, standing orders and expectations. I know that some members have found the time commitment to be challenging.

Excellent. As there are no further questions, I thank you for attending the committee this morning. We will consider whether to approve the application for recognition at agenda item 2, and the clerks will inform you of the committee’s decision in due course.

I welcome everyone to this meeting of the Standards, Procedures and Public Appointments Committee. We have a number of agenda items, but the first is a cross-party group application. We are invited to consider an application for recognition of a proposed cross-party group on the Scottish games ecosystem. I welcome Michael Marra MSP to the meeting. Michael is a proposed co-convener of the proposed group on the Scottish games ecosystem.

Good morning, Michael. I invite you to make an opening statement about the intentions of the group.

Excellent. That brings an end to the public part of this meeting.

That goes back to the challenge of commissioners straddling committees. Apart from the statutory committees, the committee system loosely reflects the Government, which makes commissioners problematic. It would help with any commissioner if a specific committee were assigned to do the oversight. That would be all the oversight. Otherwise, stuff will shift between the two and, rightly, committees will take what interests them and a level of scrutiny will be lost.

I go back to the interesting question about the use of the word “commissioners”. What role do they fulfil? If we understand what the problem is, we can find a solution. Sometimes we struggle to understand what the problem is, and we perhaps impose a solution. I will leave it at that.

Absolutely. It is always worth saying happy birthday to any institution but particularly a Parliament.

It is not just about the capacity of the MSPs or a simple numbers game. Structures exist within the Parliament. People who were here and are no longer here seem to level criticism against the committee system. That debate is always welcome.

The challenge with commissioners boils down to the level of responsibility in that the budget comes from one legal entity and the scrutiny of the role of the commissioner rests with the Parliament and its committees. I am not suggesting that we put the functions together, but the oversight committee’s responsibility has to be specific and the vehicles have to exist for it to be able to see into the whole thing and hold it to account.

Earlier, I talked about blockages. When management goes from green to amber, the oversight committee’s role is to ask questions. Because of the independence of commissioners, it is a difficult area to get into, but the independence of the commissioners who answer to my committee is in how they conduct their investigations, in their conclusions and in their reports, but not necessarily in how their organisation operates.

Thank you to the committee for the opportunity to talk about such crucial roles within Scottish society.

An interesting aspect of the committee that I have the pleasure of convening is that our commissioners are the oldest commissioners in Scotland. They were established by legislation at the outset of the Parliament. They fulfil a distinctly different role to some of the other commissioners because, in essence, they have a quasi-judicial position. My committee has another advantage, in that the commissioners’ remits are tightly drawn and sit only with my committee, rather than crossing a number of committees. Looking from the outside—I will just comment, rather than go into this in depth—one challenge for some of the other commissioners is that they answer to a number of different bodies.

The commissioners that answer to my committee are the Scottish Information Commissioner and the Ethical Standards Commissioner. Of the two, the Scottish Information Commissioner is perhaps easier to understand. We get an annual report that shows the work in and the work out. We can scrutinise how successful the work has been over a period of time. As with so many institutions across Scotland, Covid threw up real challenges in both the number of complaints made regarding freedom of information requests and the response that the commissioner was able make. As to how we monitor the work, although we do not have direct input on the budget, which sits elsewhere, we can interrogate and investigate the blockages that have led to delays.

I will pause there for one moment and speak about the other commissioner, then I will come back to that interesting point about blockages.

The Ethical Standards Commissioner reports to us in a number of ways, because the commissioner has a number of roles. One role relates to complaints that are made about MSPs. The SPPA Committee sits as part of that process, which was set up under the Ethical Standards in Public Life (Scotland) Act 2000 and the Scottish Parliamentary Standards Commissioner Act 2002. Again, we get an annual report of complaints in, complaints out, time taken and process. We talk about where blockages occurred. Again, Covid caused problems.

Also, in the previous session, a distinct series of complaints against a member at the time caused huge problems simply because of the volume of complaints and the complexity of the available information. The then commissioner and the current commissioner, who was an acting commissioner towards the end of that period, spent a lot of time scrutinising exactly what the legislation allowed them to do. The circumstance was unfortunate, but it led to that profitable exercise, which in turn led to a request to those who budget the commissioner for additional funding, with explanations for why it was needed. That analysis was incredibly worth while because, in the discussions in the annual reports and when the commissioner comes before us, the understanding of where challenges occur is clear.

The Ethical Standards Commissioner also deals in part with councillors. That does not come to my committee. That is separate, but it takes up some of the work.

I come to the blockages. There is a challenge in the relationship between the Parliament and the commissioners, and the corporate body and the commissioners. It is sometimes difficult to identify who is responsible for certain aspects. For example, guidelines set out how a whistleblower within a commissioner’s wider department can be dealt with. However, before you get to whistleblowing, there is a challenge about who takes responsibility for how a discomfort or a challenge in the culture is managed and dealt with, be that by the department, the corporate body or, indeed, the independent commissioner. It is important to remember that, underpinning this, is the commissioners’ independence from the Government and independence from but accountability to the Parliament. There are employment conflicts and other mundane things that happen within organisations that, if they are not dealt with, become more intrinsic problems. It is difficult to see how those within commissioners’ departments can share those things with either the Parliament, to whom they are accountable or, indeed, the corporate body. There are challenges.

There are benefits to looking at the two commissioners who answer to my committee simply because of the time that they have existed. They have been around the circle a few times. Also, it is important to remember that they fulfil distinct quasi-judicial roles in assessing freedom of information complaints, assessing complaints against elected officials and overseeing public appointments. They are different, but the same. That environmental challenge of signposting concerns early on probably applies to all commissioners. I will leave it at that.

That is a relatively easy one because, at the end of the day, a number of commissioners fulfil the role of being a critical friend of the Government. They are independent, but accountable to the Parliament because, at the end of the day, commissioners are accountable to the people of Scotland. It would be worthy of the Parliament to take on the responsibility. The vehicles that we have within the Parliament make that challenging to do at the moment. I will not sit here and say what the magic solution is because I do not know what it is. The committees are challenged by the time available to do the analysis—even just looking at the annual reports can be a problem—but the Parliament should take on board the responsibility for ensuring a solution.

That is an interesting question. I go back to the choice that was made at the turn of the millennium of having commissioners for ethical standards and freedom of information. Commissioners were seen as being independent of the Government, much more than independent of Parliament, and that requirement was to give them a level of authority that would allow them to act in their quasi-judicial role.

The Ethical Standards Commissioner’s involvement with MSPs meant that they had to be independent of the Parliament but they also had to be seen to be distinctly independent of the Parliament. That needed a phrase to carry a weight.

At the time, the concept of a commissioner was perhaps different to what it is now. In the intervening period, the public’s view of commissioners and indeed commissions has changed so substantially as to undervalue or perhaps reinforce the value of someone who is independent of Government and of Parliament undertaking the roles that we have given them by statute.

In respect of those who answer to my committee, the annual reports, conversations with the commissioners and the interaction with people who interact with the commissioners is such that those who apply for FOI adjudication or who come through the Ethical Standards Commissioner understand the commissioner’s role, importance, significance and independence much more than the general public does.