Seòmar agus comataidhean

You need first to take a step back and talk about the transparency of funding of the Parliament’s responsibilities. If you speak to most people about the Scottish Parliament’s budget, they would basically say that it is for this building and the people and the support that sit around this table. In reality, it is far wider than that. I am not sure that the importance of where that funding goes is genuinely understood

To come specifically to the question of the commissioners, it is an old adage that if you ask people, they will always say that they want more money. The challenges that Covid threw up required, particularly in relation to the two commissioners that answer to my committee, a thorough look at how the work was done. The Ethical Standards Commissioner had an explosion of cases that had to be dealt with and processed properly following the requirements of statute and following the obligations that sit on the commissioner. That led to them reviewing the personnel who sit behind that. Rather than, say, cap the costs or set a minimum—and this goes back to who takes responsibility for this—the commissioners should have a real deep dive into what they are required to do, how to do it and how to make that more efficient.

It is an interesting proposal because we need scrutiny outwith the existing scrutiny. If we put aside the current resource implications, if such scrutiny had occurred and had been conducted enthusiastically, some of the challenges that have occurred with commissioners in the past would have been spotted earlier, if I am honest. They would have come out. As well as the formal scrutiny that takes place, there is interaction between commissioners and committees at different levels and in different ways that could allow concerns to be raised and then explored.

One of the challenges is the compartmentalising everything that we do. We miss bringing together the overview. At the end of the day, committee scrutiny is about having a level of oversight, looking at the whole picture and picking up on the alarm bells as well as what works well.

You are now drifting out of the area that my committee covers, but there is a question to be answered about the elements of the process. First, there is an investigation to collect the facts on the basis of which a decision will be made. The next step is a matter of human rights and natural justice, whereby an institution outwith that process looks at it to make sure that it has been done correctly.

Is there a need for more than one body in that area? Yes, there is, because if we take away one of those, we will end up with people going to court. At the end of the day, that option is open to almost anybody who goes through any of these processes. Once you go to court, there are no winners. It is a case of ensuring that the process is as robust as possible.

Do we need two separate bodies? If we did not have two separate bodies, we would still need to have a process that reflected the rules of natural justice for the individuals concerned, whether we are talking about councillors or colleagues who sit in this place.

I am talking specifically about the commissioners who report to my committee or who are overseen by my committee. The independence of those commissioners is crucial because of the questions that come in front of them and what they do.

In the area of freedom of information, a series of steps has to be gone through before an issue goes to the Scottish Information Commissioner. If someone puts in an FOI and the organisation looks at it and provides an insufficient answer, an appeal can be made. There is a structured process for how a constituent goes from submitting a letter to find out about, for example, the outflow of rubbish into a bay all the way through to when they feel that they need to go to the commissioner. That process is clearly articulated. The number that come to the commissioner for a decision represent a tiny minority of those that come into the system.

The commissioner’s role in that quasi-judicial process is different from their role as an advocate. The advocacy role is about giving voice to a group who otherwise could not participate in a system or to individuals who feel that they are being stopped from participating in that system. There is a lot to be said for articulating the value of what it is that a certain group of people—regardless of whether they have a vote—are not able to contribute to in the system.

An issue that has constantly been raised, including by a number of commissioners, is the fact that the children’s commissioner knows how to engage with young people so that they can contribute to a discussion, which rarely happens in the formal setting of a committee room. That advocacy role is massively important, because it allows for the individualisation of access.

The commissioners who answer to my committee have a set process to go through that involves a vast amount of work. That means that, when you get to the commissioner, you are at the top of the pyramid. The cases that go there go there for a reason, and that leads to an investigation. What becomes important is the learning circle about how we avoid getting into that position. In that regard, the code of conduct and the guidance for MSPs sit with my committee.

My sense is that the commissioners who come before my committee understand that they are working within an envelope. However, the experiences that they have had show, in essence, that the vehicle that was expected to work within that envelope was perhaps not as fit for purpose as it should have been. There have been proposals from both commissioners about how they can streamline, not by cutting corners but by making their organisation more efficient. There is an obligation on them to do that.

As for the risk of the exponential spread of commissioners’ costs, you need to look at what the commissioners do. For example, freedom of information is important in Scotland, and FOI requests are used a lot. There is a criticism whereby people suggest that it is the same group of people who constantly do it, but the FOI legislation is about moving to a period of transparency at the point of delivery, to actually reduce the number of FOI requests. So, there is a route map, but it requires a change in groupthink in certain organisations.

The Ethical Standards Commissioner is the backstop for the ethical standards that we, along with councillors and various public appointments, should be acting to. You have to ask whether we need someone to judge that, and historically, sadly, it is useful to have someone to be that judge or assessor. A funding requirement goes with that, because the cases are becoming more complex with the existence of social media platforms and things like that.

Again, the easy answer is that there is a set budget and that is it. The real answer is to ask what we want them to do and to empower the committees not to step on their independence but to provide that critical oversight to see where there is value for money. That then goes back to the blockage point that I was talking about. In a sense, there are aspects that are falling between the paving stones, which we have seen can cause massive problems. If they were avoided and had been avoided for a period of time, maybe we would be in a different position with regard to the outlay.

In some ways, there has been a frustration with the freedom of information and the Information Commissioner because an expectation has been created of an entitlement to information that is perhaps not accurate.

This goes back to whether the Information Commissioner can do themselves out of the freedom of information job. A substantial part of their work is shifting that fundamental balance, in essence, to publish and open up so that the information is there and constituents—and I am thinking here about my own case load—and others have the best understanding possible of a decision.

The Ethical Standards Commissioner’s role is slightly different. On one level, it is for elected members to get it right and to understand the importance, the privilege and the Nolan principles that we talk about. The Commissioner was to be the independent guardian of those for the people of Scotland.

If we look purely at the responsibility for the standards of elected members, the Ethical Standards Commissioner would be more than happy to do themselves out of a job. However, that onus rests elsewhere.

I will not suggest any wording.

The word “wee” is doing a lot of lifting there.

I welcome Graham Simpson to the meeting. We have been taking evidence from the minister. I understand that you have some short questions on issues that you would like to explore, so I give you the floor.

I will move on to the EMB—in particular, the evidence that we have that significant work is continuing on how it should be constituted and what the legal entity should be. There is a suggestion that the schedule for that will come at stage 2. Can you give us an update on where you are on that, and on what the legal entity will look like?

That is excellent—I am grateful. Welcome to the committee.