Seòmar agus comataidhean

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.

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.

Absolutely, and that has been my understanding of the Scottish Government’s commitment to the Parliament on the bill, from day 1. We have seen much work at that level, and my expectation is that that will continue.

My final concern relates to correspondence of 15 March that you sent on behalf of the Deputy First Minister to the convener of the Local Government, Housing and Planning Committee, following its own letter to the DFM, seeking answers to various points. I became aware of that only by accident, and I am slightly disappointed that we were not copied into it, given that we were copied into the original correspondence by our colleague committee. We thought that an answer was still pending.

So, as happens at the moment, the electoral administrators will just accept what is written on the paper as an assertion of what is correct.

They will not have the responsibility, and there will not be an expectation on them to look into it beyond that.

Will we have an indication of the thinking on that?