Seòmar agus comataidhean

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.

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.