Local Government and Communities Committee

Meeting date: Wednesday, November 2, 2016

Official Report 495KB pdf

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Commissioner for Ethical Standards in Public Life in Scotland (Annual Report and Accounts 2015-16)

Good morning and welcome to the ninth meeting in 2016 in session 5 of the Local Government and Communities Committee. I remind everyone present to turn off mobile phones. As meeting papers are provided in digital format, members may use tablets during the meeting. If members are using their phones or tablets, they are looking at briefing papers, but if others present could put their phones off, that would be welcome. Yet again, we have a full house of members—no apologies have been received.

Agenda item 1 is evidence on the annual report and accounts for 2015-16 of the Commissioner for Ethical Standards in Public Life in Scotland. I welcome Bill Thomson, the Commissioner for Ethical Standards in Public Life in Scotland, who is accompanied by Ruth Hogg, investigations manager with the office of the commissioner. Good morning and thank you for coming. I believe that the commissioner has some brief opening remarks to make before we move to questions.

Thank you, convener—they are very brief.

I thank the committee for the opportunity to appear before you to discuss last year’s annual report and answer any questions that you may have on it. As you will be aware from your papers, I have submitted updates to several of the tables in the annual report. They cover the first half of the current year to the end of September. I picked the ones that relate to complaints that my office dealt with in relation to councillors and members of public bodies because I presumed—perhaps incorrectly—that that would be the main area of interest. I am obviously happy to answer questions on those and on any other parts of the annual report that are of interest to the committee.

Thank you, Mr Thomson. We move to questions. Graham Simpson has indicated that he would like to open the questioning.

I declare an interest, in that I am still a councillor on South Lanarkshire Council. Over the years, I have also been the victim of two complaints to the Standards Commission for Scotland, both of which were spurious.

Mr Thomson, your budget is £862,000 a year. According to a report that we have from the Scottish Parliament information centre, only seven cases in one year involved a breach. By my reckoning, that is more than £123,000 a case. Does that represent value for money?

That is a nice positive opening question.

Yes—thanks.

First, the complaints that I deal with are only part of my remit. Approximately one third of my office’s expenditure goes on the public appointments work. I am the successor to two previous commissioners—in fact, three—one of whom was the Commissioner for Public Appointments in Scotland. Therefore, I am afraid that the calculation that Mr Simpson has made, which is interesting, is inaccurate.

I also think that the premise behind the question is curious, in as much as the implication is that only complaints that result in a breach are worth while. I am not sure that I am minded to agree with that. Actually, hundreds of complaints are dealt with every year, and I assume that they are important to the people who submit them. Therefore, it is not just about complaints that end up with a breach report and a hearing. It is important that all the complaints are investigated as fairly and as proportionately as possible.

So you have hundreds of cases that come before you.

It is hundreds of complaints.

You are telling us that all of them are genuine and worthy of investigation.

With respect, I do not think that I said that. Until I have made some inquiries, I am not in a position to take a view as to whether a complaint that comes in is genuine and worthy of investigation.

I assume that you look at the veracity of a complaint as you investigate, rather than before you investigate it. Will you say a little more about the process that you go through? Mr Simpson might then want to come back in and ask a supplementary.

Certainly. Some of the complaints that we receive are entirely outside my jurisdiction, so they do not receive much attention at all. Some of them relate to quite old circumstances and in general we do not investigate complaints that relate to matters that occurred more than 12 months previously, although there are some exceptions to that. Other complaints relate purely to the key principles that are set out in the councillors’ code of conduct or in the code of conduct for the members of the public body concerned. Because of the way that those codes are drafted, those complaints cannot constitute a breach even if I agreed that councillor X had been dishonest or had failed to be properly open or whatever, depending on the key principle at issue.

We are in the process of introducing a new approach under which, if it is not clear that a complaint relates to, or could relate to, a provision of the relevant code, we engage with the complainer before we start the process so that we find out whether the issue is within my remit and is therefore worth investigating. If it is not, we will not proceed any further. In very broad terms, around half the complaints that I receive do not proceed to any detailed investigation.

To go back to Mr Simpson’s question, I am not yet convinced that it is a waste of time to go through that process and reach the determination that those complaints are not worth investigating further. I appreciate that some complaints are vexatious or frivolous, although it is difficult to tell that when they come in. We have to go through the process to at least do the best that we can to determine whether they are worth investigating.

10:45  

If only seven of the hundreds of cases that come before you every year ultimately amount to a breach, that tells you something, does it not?

A number of conclusions could be drawn from that. I would be interested to know which conclusion Mr Simpson thinks should be drawn.

I am asking you what conclusion you draw.

That is fine, Mr Simpson. Mr Thomson can finish giving his thoughts on the matter and you can come back in after that.

I am at risk of sounding facetious here, but this is a serious point. My conclusion is that seven of those cases—if the number is seven; it varies from year to year and is nearer double that this year—disclose a breach of the code.

Do you want to explore the matter further, Mr Simpson?

Thank you, convener—I may well come back on the issue, but I do not want to hog the discussion as other members may have questions.

Absolutely. Before we move on, I make the casual observation that a number of things could be happening. Perhaps members of the public are unclear about when they should or should not approach the office of the commissioner, and are therefore complaining not vexatiously or inappropriately but for genuine reasons.

Mr Thomson, are you able to tease out how many of the people who make a complaint are simply not sufficiently informed about the appropriate process to go through if they are dissatisfied with how a councillor has dealt with a case or has interacted with them at a surgery, or if they have read something about a councillor in the newspaper? Is there an information gap out there?

Last year, I made the point to your predecessor committee that approximately one fifth of the complaints that we received related purely to the key principles. I am not criticising people who put in those complaints, because it is not obvious from the councillors’ code—unless people happen to read one sentence at paragraph 2.1—that one cannot breach the key principles. I think that those people genuinely felt that they had an issue to raise. I also think that they were probably not sufficiently clear about what my remit is and what I can investigate.

I am pleased to say that, in the first six months of this year, the percentage of complaints that relate purely to the key principles is significantly lower, so it seems that some progress has been made. As I said, when such complaints come in, we try to tease out with the complainer whether there is something else under the code that could be relevant, even though they might have referred to only one of the key principles. I am not trying to generate complaints; I am trying to ensure that people who complain are not sent away and dismissed without the issues that they have raised being properly addressed.

So you would not automatically exclude the one fifth of complaints—we are talking about figures from two years ago—that came in under a criterion that you could not possibly look at in greater detail and make a ruling on. You would still interrogate those to a degree in case there was something else going on that would constitute a valid complaint.

Indeed. I will give you one example, without mentioning any names. We had a complaint this year from an individual who was unhappy about a comment that was attributed to someone in a newspaper article—the article purported to repeat something that a councillor had said on social media. The information was insufficient for me to take the complaint forward, but I endeavoured to trace the social media issue to which the person referred. I failed, so my office wrote back and asked for further clarification, indicating that if we did not hear anything within a certain period we would simply close the file. That is where we are now, as the individual did not come back. I suspect that their complaint was prompted by something they saw in the newspaper that they thought was shocking—this may be Mr Simpson’s point—so they decided to make a complaint, but there was no substance to it.

I am a serving councillor on Perth and Kinross Council.

In my view, the code was brought in as a safeguard, but in practice it has become an opportunity to challenge, attack and condemn individuals. When we read of allegations against individuals where the code has been used, we can see that that may well be the case sometimes.

Planning seems to be one of the main areas in that regard. From my 18 years as a councillor I know there are a lot of grey areas in planning—the situation with a planning application is not always black and white. People can have an impression of the planning process and of enforcement that councillors have more information than the general public. That can cause difficulties if someone believes that, when an authority is managing their application, some individuals have more power or influence and things are being breached. I can understand why people get a bit excited about how planning applications are processed and how the information for councillors and the applicants themselves are received.

I perceive that to be a challenge—it is an area where people can condemn individuals. As the person who manages the whole process, do you believe that it is becoming more prevalent for individuals or organisations to choose to challenge, attack or condemn?

The short answer is yes. Let me give a bit more detail. We report separately on complaints that relate to planning issues—there is a table in the report on the number of such complaints. Until recently, planning was the biggest area, although I think that it is now in danger of being overtaken by complaints of disrespect—some of those cases may relate to planning, but most do not. It is good news that the percentage of complaints relating to failure to declare or register an interest is going down. That, of course, is an area that can be brought up in relation to planning applications.

I agree that the opportunity to complain to my office is tempting to people who are dissatisfied with planning decisions or with the way in which the planning process has proceeded. Quite a number of complaints have been prompted by dissatisfaction with the planning process. In some cases, I think that the people who complained wrongly assumed that, were I to reach a decision that there had been a breach, that would allow them some way of clawing back the planning decision. That is not the case.

I agree that individuals often do not like the answer when it comes to planning so they go to you as a way of challenging the process. As you have rightly indicated, it is not your role or remit to change planning decisions. However, that does not stop people complaining. Their perception is that, by doing that, they can make progress.

You mentioned respect. Whether people do or do not respect the process is a very fluid question. Over the years, I have been at many meetings at which individuals have got a bit heated and words have been said or actions carried out that were perceived as a breach. How an individual manages that entirely depends on them. Your view on that issue would be useful.

My decision on such things is not the end of the story, because if I consider that there has been a breach, I report the case the Standards Commission. Ultimately, it is the commission’s decision.

Respect—or the lack of it—is a very difficult issue. It is—quite correctly, I think—a key principle: it would be a sorry state of affairs if we were to conduct public business without respect. However, it is difficult to determine whether something is or is not disrespect. The context, as I think you are suggesting, is often critical. It is a growing area for my office.

As I mentioned when I appeared before your predecessor committee, when we are considering whether something is a breach in terms of respect, a further complication is that article 10 of the European convention on human rights protects freedom of speech, and the European court has made it very clear that statements made in a political context are given much wider latitude than statements made in other contexts. That is quite a live issue.

Let us move things on a little bit.

Good morning, Bill. Thanks for joining us today. I, too, am interested in the whole issue of respect. Having chaired the Parliament in the previous session, I know that the level of respect is quite difficult to judge in the chamber, but it is a big part of proceedings there. I am interested in the answer that you gave on that.

I see from the Official Report that, the last time you were before the previous committee, you said:

“If the code could be simplified and made clearer, that would make everybody’s lives better.”

Those were the words that you used. You went on to say that

“ministers would have to agree that there was a reason to review it.”—[Official Report, Local Government and Regeneration Committee, 2 March 2016; c 5.]

Could you tell us a bit more about that? Has anything moved on that? Is it something that we need to look at?

From my point of view, it would be very welcome if you were to look at it. The Standards Commission for Scotland, to which I report, as I have mentioned, has a list of areas of the code that it would like to be revised and improved. I believe that the Government is due to consult soon on possible changes to a particular aspect of the code. My understanding is that the Standards Commission will take that opportunity to submit its wish list of areas requiring improvement.

I was asked by the convener of the previous committee to submit a note of points that I thought required attention. I did that around the time of dissolution, in March this year. I certainly hold to the points that I made in that letter, which, if the convener wishes, I am happy to repeat now.

There is one point that is plainly wrong and not at all helpful. It relates to the registration and declaration of interests, which are governed in part by a statutory instrument that requires registration within a month, in essence, of the interest being acquired or changing. Paragraph 4.2 of the councillors’ code of conduct refers to the need to check and review entries at least annually, which is not helpful. Someone can be familiar with the code yet not appreciate that they could be in breach of it if they leave it for three or four months before registering something. That is just a blatant error.

There are other things that are complex. Going back to Mr Stewart’s point, planning is difficult in itself. Part 5 of the councillors’ code of conduct applies to planning, and it has several different iterations of the same test. That is difficult for anybody to get their head around. Part 7 also applies, but the same test is not referred to in one of the provisions in part 7 that also applies to planning.

I think that it is difficult for councillors, who are advised to know where they stand, and that it is particularly difficult for members of the public to know what a proper complaint is.

That is very helpful. Thanks for sharing that with us again.

As a new committee, we will look at the letter that you sent to the previous convener and we will take stock of it. Thank you for flagging that up for our attention.

Mr Simpson has a supplementary question on some of the points that have been raised.

11:00  

You will be aware that one of the rules for councillors is that they are not allowed to comment publicly on a planning application if they are subsequently part of the decision-making process around it. That has always struck me as quite a bizarre thing, because we are elected to form views, take decisions and represent people. We can express views on any other issue that we like, but not on planning. That rule was scrapped in England, I believe. I wonder whether you think that should happen here and whether that would be helpful.

That is a policy issue on which I am wary of commenting, partly because I may have to deal with complaints about breaches of that rule and that could put me in a slightly odd position.

The rule is even more complex than that. As I am sure you are well aware, convener, councillors can comment at the policy development stage but they cannot then comment on specific applications if they are going to deal with them. That puts councillors in a very difficult position at times—I readily appreciate that.

Okay. Alexander Stewart wants to follow up on that.

Can I tease that out slightly further? When complaints are submitted and an investigation takes place involving all the processes that you go through, it appears that a number of them do not then progress, perhaps because of a lack of evidence. How do they end up not being progressed further in your process?

That is correct. It may be that the evidence is not there; it may be that it is completely contradictory. The worst situation is the classic “he said, she said” situation that arises when nobody else was involved, in which case I have no basis for making a determination. More often than not, it is down to interpretation and people saying things differently.

As a general rule, given that penalties are possible under that process in the seven or more cases that are found to be breaches, the code must be interpreted relatively strictly. That rule would apply if we were talking about the criminal law and I think that it is fair to take the same approach here. That tends to mean that the people against whom a complaint has been made will be given the benefit of the doubt if there is any real doubt. Of course, that is not satisfactory to the people who have complained, and I receive comments to that effect. Nevertheless, I think that that is the correct way of going about it.

Thank you. I give a heads up to the one or two members who asked to come in on social media—you know who you are—that I am going to bring you in in a second. However, I would like to make a more general point first.

I am starting to get a taste of what has happened in the past year. In the year 2014-15, there were 680 complaints against councillors; in the year 2015-16, there were 202 such complaints. I am sorry if this is trivialising the issue, but have councillors been better behaved in the past year than they were before, or are they getting their act together? Are they boxing more cleverly? What is going on? We have some councillors on our committee. Have they all been better behaved in the past year?

I make no comment on individuals in the room, convener. The previous year’s figures were distorted by multiple complaints in relation to one issue in the city of Aberdeen. Because of the way in which we are required to record and report on complaints, there were 524 complaints relating to the one issue, so the actual overall number in that year was significantly less than the 600-odd that were reported. Unfortunately, I do not think that you can deduce from that fact that behaviour has improved to the point at which there are significantly fewer complaints. The number of complaints is not necessarily an indicator of behaviour at all; it is just the number of people who have been motivated to submit a complaint.

That was just a more light-hearted way of asking why there is such variation in the numbers. It is helpful to have that on the record.

I am pleased to report that the volume of complaints was on a downward trend in the first half of 2016. That is very welcome from my point of view.

Thank you for that. We have mentioned social media, and our clerking team tells me that you have previously contacted the committee about guidance on the use of social media in section 3 of the code. Before the start of the meeting, Andy Wightman indicated that he is particularly interested in looking at some issues around social media, and now might be a good time for him to raise those points.

In the evidence that you gave earlier in the year, you said:

“at the top of my list is the way in which the code applies to statements that are made on social media.”—[Official Report, Local Government and Regeneration Committee, 2 March 2016; c 6.]

Given that social media are becoming more prevalent and widespread, and given that they are used more frequently by elected officials and many others in society, has anything changed since you made that statement? In particular, what do you think that the impact of social media might be on your potential workload? You say that the number of complaints is dropping and that it goes up and down, but I am thinking more strategically.

The one thing that has changed is that the Standards Commission has issued revised guidance in relation to social media, which I think is helpful. However, it has limits in as much as I can assess complaints only against the code itself. Whether someone has had regard to the guidance is a factor, but my decision must be based on whether someone has or has not been involved in something that is a breach of the code. The guidance is helpful but is not a determinant of the issue.

The difficulty that I raised is that the code was drafted before social media were so prevalent, so it makes no reference to them. The code correctly applies to the actions of councillors and members of public bodies only when they are acting in that capacity, and one of the real difficulties with social media is in working out whether the person who has said whatever they have said was saying it as an individual or as a councillor. If they said it as an individual, the code does not apply; if they said it as a councillor, at least arguably, the code applies and the question is then whether they were commenting in a way that would be covered by the freedoms that are conferred under article 10 of the European convention on human rights.

The last time that you came here, an interesting discussion arose on that question. It is partly the nature of the media that blurs the boundaries between when a councillor is acting in their capacity as a councillor and when they are not. That may be rather more difficult to determine than it was in the past, when councillors were acting in their public capacity only when they were in council chambers, on council business, speaking in meetings and all the rest of it. When they were at home, they were not acting in that capacity. Now, when they are at home they have greater opportunities to speak to the world than they had previously. Are you any further forward in being able to draw that line a little more clearly, partly to assist councillors in their interaction with the public?

Regrettably, I am not. I wish that I were. I suppose that, over time, there will be some clarity in as much as, when I find breaches, the complaints will be considered by the Standards Commission at public hearings and the commission will make decisions. Assuming that those are related to each other in some way and consistent, the picture will become clearer. However, we will still have the problem of how the code is applied and the question of when a councillor is not a councillor. It is an impossible question to answer, unfortunately.

I have a brief follow-up question before we move on to our final area of questioning.

Does that leave a murky area for you, Mr Thomson? When you look at a Twitter account, the biography can say that someone is tweeting in a personal capacity and that the views are their own, not their employer’s. Does that give the individual who is running the account a blank cheque to say what they like without running the risk of breaching the code? Or is the issue that there is a total lack of clarity in relation to that?

“Murky” is a good word. Someone saying that they are doing something as an individual is not necessarily a defence, if that is the right word. If a person comments on a matter of public concern—which can, in technical terms, be considered to be political expression—even the protection that is given by article 10 is not complete. There are things that are just beyond the pale, if I can use that phrase. The difficulty is in knowing on which side of the fence the comments fall.

lt is helpful to have that on the record.

I want to turn to the public appointments part of your role, if you do not mind. For the first time, more women were appointed than men. How was that achieved? Your report says:

“A range of outreach activities, to encourage applications from under-represented groups”

were undertaken. Can you give a bit more detail about that? How can you approach and address the poor representation of other sectors?

I welcome the opportunity to comment on that. The topic is quite big, but I will try to be brief.

My office now works in a different way with the staff in the Government who are responsible for the administration of the public appointments process. That is partly thanks to the Government giving priority and prominence at a political level to the issue of diversity on public boards and specifically to gender imbalance as a first priority. The political climate has changed helpfully, which has made it easier for the staff who are directly involved to apply themselves at an earlier stage when public appointments are to be made.

We now have a process of early engagement with Scottish Government staff who will be involved in a public appointment, including at a fairly senior level. Thinking about the matter in advance allows the process to be undertaken in a way in which it is less likely that the same questions will be asked and the same answers will be received. The way in which the board looks at succession planning is improving, as that is being encouraged and supported, and the way in which the public appointments advisers from my office engage with the appointment panel, which is different from time to time, allows better preparation. Sometimes, just the way in which the questions are asked makes a difference. The way in which the requirements are specified certainly makes a difference.

As Elaine Smith mentioned, there is active outreach. It does not happen in all cases, but there has been some very effective outreach. For example, there was a public meeting in Maryhill that was held jointly with Greater Glasgow and Clyde NHS Board when it was trying to involve people in the board who had experience of community involvement. That was a successful exercise, and there have been a number of those.

Although some areas require even more thought, the overall position is improving. I have figures that, if the convener allows, I can give to the committee to indicate the progress that has been made in the course of this year.

Table 25 in the report shows the demographic profile of board membership at the end of 2015. At the end of October this year, female board membership was at 44.3 per cent, which is an increase. I accept that that is still below the Scottish population census figure, but it is an improvement. However, the percentage of people on boards who had disclosed a disability was down to 9.7 per cent, and there is a significant gap between that and the Scottish population census figure of 19.6 per cent. The proportion of black and minority ethnic people who are represented on boards has gone up from 3.5 to 4 per cent—that matches the Scottish population census figures—and the figure for those aged 49 and under on boards has gone up from 17.6 to 19.7 per cent. That is still way below 54.3 per cent, but it is a move in the right direction. The number of those on boards who have recorded that they are lesbian, gay or bisexual has gone up from 3 to 3.7 per cent, which is still below our 6 per cent target but is a move in the right direction.

Do you want to follow up on that, Elaine?

No. That is very interesting. If you wish to send in any further comments on that, I am sure that we would be happy to receive them.

Those figures give the committee an anchor for subsequent annual evidence on how the figures are changing. Where does the responsibility sit for making further progress on that in the year ahead? Does it sit with the Government or with you? We are almost out of time but, if you could say anything about that, it would allow us to undertake more effective scrutiny in next year’s evidence session.

11:15  

The primary responsibility sits with the Government, and ministers make the appointments. I have set out to work in partnership with the Government on that while retaining my regulatory position. We have a very open working relationship—in fact, two of the Government staff who are involved in that are in the public gallery today to hear what is being said. That is because there is openness and interest, and priority is being given to the matter.

A number of initiatives are under way. If the committee is short of time, it might be better for me to submit a letter to the clerk after the meeting, if the convener is comfortable with that. I can give members a bit more detail and will supply the figures that I have read out. I apologise for doing that, but I received them only fairly recently.

That is very helpful.

That takes us to the end of the evidence session—time has defeated us—and I thank Mr Thomson and Ms Hogg for coming to the meeting.

I suspend the meeting briefly to allow us to prepare for agenda item 2.

11:16 Meeting suspended.  

11:27 On resuming—