Finance and Public Administration Committee

Meeting date: Tuesday, November 22, 2022

Official Report 602KB pdf

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Scottish Government’s Continuous Improvement Programme and Updated Complaints Policy

Item 3 is consideration of evidence on the Scottish Government’s continuous improvement programme and its updated complaints policy. On Friday, members received a letter from the Deputy First Minister containing additional information to inform today’s discussion. The letter and our meeting papers are available on the committee’s web pages.

We will take evidence from John Swinney, Deputy First Minister and Cabinet Secretary for Covid Recovery. Mr Swinney is supported today by Ian Mitchell and Ashleigh Gray, who are Scottish Government officials. I welcome our witnesses to the meeting and invite Mr Swinney to make a short opening statement.

I am grateful for the opportunity to give evidence to the committee on the progress of the procedure for handling complaints by civil servants about a current or former minister’s behaviour and the continuous improvement programme to promote the culture and behaviours that we want to see in the Scottish Government.

When I appeared before the committee on this subject in April, the procedure had been operational from 24 February, following a period of wide engagement with Scottish Government staff, trade unions and the committee. The procedure is founded on a grievance process that has to balance employment law with public law and is consistent with the Advisory, Conciliation and Arbitration Service codes and guidance. Since it is a grievance procedure for staff, it rightly emphasises the need for privacy and confidentiality, with outcomes restricted to only those who are closely involved.

As the First Minister set out in Parliament, and as I have said in correspondence to the committee, given the legitimate public interest issues that are at play, it is appropriate for us to balance the expectations of confidentiality with the public role of a minister if a complaint is made about them. We have been working to make proposals to change the procedure and the Scottish ministerial code to allow for greater transparency in the reporting of the subject of a complaint. I see that as a natural development of the procedure.

Having trust and confidence in the process is fundamental to getting people who feel that they have a legitimate complaint to come forward. It is important for me to set out that the public disclosure of the outcome would not affect the confidentiality of the process with respect to the complainer or others who are involved in the case, such as witnesses. I cannot stress that point strongly enough. On the confidence of ministers, they should be assured that the process will be fair and that expectations will be set out and clearly communicated.

Therefore, after careful consideration, we propose to update the procedure and the Scottish ministerial code to reflect that, after the conclusion of an investigation, including any appeal, the name of the minister who is the subject of a complaint will be publicly disclosed as well as the outcome of the complaint. In addition, a redacted decision report for upheld or partially upheld cases will be published. Complaints that are not upheld are a different scenario, and it is proposed that more limited reporting would be fair. As such, the minister’s name and the outcome will be published for a period of six months. Changes will not be made retrospectively to investigations that have already been completed.

Under the changes that I am discussing with the committee today, the publication of the outcomes of future complaints about former ministers will be reported in the same way as complaints about current ministers. On a six-monthly basis, we will proactively report on the Scottish Government website the number of cases that are under investigation and any that concluded in the previous period. The proposals mean that ministers past and present will work to a more transparent set of reporting principles for upholding standards of behaviour in public life. We will publish those figures for the first time in December after a short period of reflection on the changes with the committee, staff, ministers and trade unions.

We have worked in tandem with our trade unions and staff and taken soundings and advice from others with experience in complaints handling. Should there be complaints in the future, in publicly reporting the information that I am setting out today, I believe that we are striking the right balance between the public interest and maintaining the privacy and confidentiality of the complainant. I look forward to discussing the updates with the committee.

In addition to the updates to the procedure, I am pleased that the continuous improvement programme has successfully completed the activity that was scheduled for the end of each quarter. A programme update was submitted to the committee at the end of July, and another one will be completed to reflect the activity scheduled for the end of December. The programme has made good progress. The measures of success have been identified from the Scottish Government’s people survey and will be supplemented by the engagement that the propriety and ethics directorate has started throughout the organisation.

The measures attempt to assess the degree to which the continuous improvement programme has contributed to an improved culture of openness and inclusion in the workplace. It is a workplace where bullying and harassment is not tolerated and where early intervention and mediation continue to have a key role in addressing the majority of issues that arise before they become problematic. However, it is also a workplace where—if needed—our staff feel able and willing to speak out against unacceptable behaviours and understand and have confidence in the processes that are in place.

I look forward to discussing the programme with the committee.

Thank you. Initially, I will touch on the comments that you have made in your opening statement. You said that there is a need for privacy and confidentiality and that the process has to be fair to both ministers and complainants, and you spoke of the importance of striking the right balance. To a large extent, that seems to be the case with regard to ministers when a minister is found against. However, I am astonished to hear that, if complaints are not upheld, the minister will still be named and the information will be published for a fixed period of six months—that is nonsense, of course, because it will be on social media for ever. How is that fair to someone? If a complaint is made about someone and it is not upheld, why should the person be named? The complainant will not be named. How is that fair to both sides if the minister is named for something that they have not done? How is that natural justice?

There is a very difficult judgment here, convener. I assure the committee that, in coming to that judgment, I have wrestled with the issue significantly, because I understand exactly the points that you raise. As I set out in my opening statement, there is a careful balance to be struck between the nature of a due process to be undertaken and the need for there to be transparency about the way in which the issues are handled. You will note in the information that I have shared with the committee that there is a difference between the approach that will be taken should a complaint be upheld or partially upheld and the one that will be taken should a complaint not be upheld. No details will be shared about the substance of a complaint if it is not upheld.

I recognise that it is a careful balance. As I have indicated, we are setting out proposals to the committee. They have been the subject of dialogue with our trade unions and our staff. If the committee is minded to give me feedback on that question or other questions, I will of course consider it before we come to final decisions about the application of the proposals for changes to the procedure and the ministerial code.

I could have understood such an approach 20 years ago, perhaps, but we now live in a fetid environment on social media, and the fact that a minister is named will mean that he or she will continue to be vilified. “No smoke without fire”, and all that kind of stuff, will still be said. Is that fair to a minister and his or her family? The complainant will not be named, so they will be able to continue with their work, even though they have made a complaint that is not upheld, but there will still be murk around the minister, will there not? That cannot possibly be fair and it is not balanced. That also assumes that their privacy will be protected throughout the process, but I would be shocked if it were, because leaks happen in such instances.

The key thing is the question of transparency, because I regularly hear calls for the Government to be transparent about absolutely everything, and, obviously, we have statutory and legislative provisions in place that require us to act in such a fashion. The judgment that I have come to on the matter is that this is the right balance to strike, given that, to ensure that we provide an entirely transparent picture, we will report on the fact that we have had a certain number of complaints. It is a matter of dialogue and scrutiny. The Government is trying to respond to legitimate calls for transparency. As I indicated in my earlier answer, if the committee judges that that is a step too far, I will of course listen to that feedback.

That is a fair comment. Who will publish the report every six months?

The Government will do so.

Who specifically in the Government?

It will be handled by the Scottish Government’s propriety and ethics directorate, which was established in autumn 2021 to ensure that we have in place all the proper procedures and processes that members of the public would reasonably expect the Government to have for the handling of such matters.

If such matters will be published, it is important that the public know what the parameter is. How does the Scottish Government currently define bullying? Is it subjective, or is it objective, as it should be?

It would have to be an objective assessment. In these circumstances, we are putting in place a set of arrangements to try to address any such experiences. The whole approach goes back to part of what I said in my introductory remarks: we aim to create a working environment in which there is no place for bullying. We will set out in the advice and guidance what we consider to be examples of bullying. We cannot be precise about absolutely everything, but all organisations are able to set out their reasonable expectation of what bullying might look like. There are proactive efforts to create a climate and culture that mean that such behaviour is not in any way present in the working experience of members of staff. Should concerns be raised, there is, as I said earlier, a keenness to ensure that those issues are resolved as early and as proactively as possible. Ultimately, if members of staff feel that they have the basis on which to make a complaint, and if they feel that the issues have not been satisfactorily resolved, they can do so, and we have a procedure that enables that to be addressed.

It is important to have objective criteria. You are absolutely right: you cannot encompass everything, but it is important to have that, because the public’s view of bullying might not be the same as that of the Scottish Government, particularly depending on how old someone is. In my younger days, bullying was only about violence and intimidation; now, of course, the perception of bullying has changed quite considerably. It has a much broader meaning, because there is a much greater understanding of psychological bullying. Of course, if someone is threatened with violence and intimidation, that is obviously psychological as well. There are other forms of bullying—for example, psychological bullying and passive aggression, which is an issue that might or might not be covered by the criteria—I would be interested in finding out whether it is. Can you give us some examples of objective criteria? I would appreciate that so that the public have a greater understanding of what you mean if you say, “Bullying was upheld because of the minister’s actions in terms of X, Y and Z.”

The best way to answer that is by reference to the standards of behaviour that we have set out in the guidance to members of staff and ministers. That guidance will be set out in the ministerial code and in the standards of behaviour that are expected for the undertaking of Scottish Government business. I am happy to make those available so that the committee can cast its eye over them. The approaches give a clear distillation of our expectations of what the workforce will be like and what the experiences of members of staff should be like. If they are not of that order, conduct can be resolved through the various means that I have set out.

11:45  

No one on the committee has been a minister, but I imagine that it can be a stressful and wearying job at times. In this entire scenario, will ministers be allowed to occasionally display the normal human traits of annoyance, frustration and impatience without potentially being denounced?

There is a careful balance to be struck between legitimate expectations of performance and support and inappropriate conduct. I am mindful of that a great deal. There are times when I am frustrated by things that are put in front of me, but I always express my frustration in an appropriate and courteous fashion. I need to be supplied with accurate information—if I do not use accurate information, people complain about that. If I do not think that I am getting accurate information, I will press to get it, but I will do so in an appropriate fashion. There is a careful balance between setting out legitimate expectations of performance and behaving in a fashion in which your conduct is not acceptable. Ministers have to be very careful to calibrate that balance in the right fashion.

Thank you very much for that. A number of colleagues want to come in.

How will complaints that are already in progress be dealt with? Will they follow the new process, or will they continue to work through the old process? What will be shown in the report in December? Will there be anything at all?

Nothing will be shown in the report in December, as things stand. There are no complaints with the Government, so we will have none to report on in December.

Is that because there are none in progress or none in progress that would—

There are none, full stop. Our complaints handling process has been in place since February. That is the process as it stands. For total completeness, I set out that we have had no complaints submitted on the basis of the procedure that was put in place in February. The changes that I am explaining today will potentially give rise to further change to the procedure in due course. At that moment, the points that I am raising today will be included in the procedure. As I said in response to the convener’s points, if the committee thinks that we are not getting this right, I will be interested to hear that from the committee. Notwithstanding that, with any complaints that are received after that moment of application, we will reflect any changes in the procedures.

I slightly disagree with the convener. Even if somebody is cleared, the information should be published, just as happens for councillors with the Standards Commission for Scotland, where the findings are always published.

There was a suggestion that, previously, you could not publish the findings, or even say whether a complaint was upheld or not without getting into the details. Is that correct?

Yes.

What was the legality that prevented the Government from publishing the outcome of a case?

Essentially, we need to have procedural arrangements in place that enable that to happen. Those arrangements did not exist prior to the changes that I am putting to the committee this morning.

Is that because the procedure did not explicitly say that you would report on the outcome of cases?

That is correct.

You cannot even report on the number of cases that you have had, or on how many were upheld or rejected, just so that we can try to understand whether there is an issue here or not.

In relation to the detail of previous issues, in June 2022, we responded to two freedom of information requests confirming that two investigations had been carried out in respect of three complaints since 2007. Our judgment was that that was the information that it was appropriate for us to disclose, given the points that I have already made to Mr Lumsden.

So you do not think that it is appropriate to share information about whether a complaint was upheld.

The issue is not that I judge that not to be appropriate; it is that we do not have a basis for so doing.

Okay.

Mr Swinney, I think that the Scottish Government and the ethics directorate have gone a long way to improving transparency. I very much welcome the progress that you have made since you first came to the committee, particularly in relation to complaints that are upheld or partially upheld. That is very good news.

Partly from listening to what the convener said, I have slight concerns about circumstances in which a case has not been upheld and about ensuring that all the information comes out to the public. There has to be a categorical assurance to the person, who potentially could be vilified through social media, as the convener mentioned, or otherwise—it should be very clear exactly what the reasons are for not upholding the complaint.

We all know that, especially if there is a bit of a time delay between a complaint being made and the investigation process, there is scope for individuals in any political party to be vilified by members of the public unfairly. I am slightly concerned that that could have an implication for those who might be attracted into politics, who might feel that the system will name and shame them even when they have not done anything wrong. I am a bit concerned about that process, so could I have your reflections on that?

Secondly, when you mentioned that former ministers could be included in the procedure, I take it that that is all former ministers and that there is no time bar for ministers who have not been in office for 10 years or whatever. Does it apply to all ministers?

On that last point, yes, it is all former ministers.

In relation to cases where a complaint is not upheld, just to be absolutely clear, we would not publish any details about the case, other than the name of the minister and the fact that a complaint had not been upheld.

I will not say to the committee that I think that that is an absolutely certain judgment. I hope that I have left enough scope for the committee to consider the point. Indeed, Mr Lumsden, in his question, presented a different argument from the one that the convener and Liz Smith potentially present to me. I understand the arguments that are made. I have wrestled with those very questions, and I came down on the side of the preference for absolute transparency. However, I accept that there is an alternative argument that could be applied in these circumstances, and I will, of course, consider it should the committee make that point to me.

It is just that, if somebody genuinely has not engaged in the activities of which they have been accused, it is good for the public to know why it was a wrong accusation. It helps that person to move on, rather than just to be named and it stated that a complaint was made against them but was not upheld. That leaves just a bit of doubt in the mind of that person.

I accept that, if any complaints are received, it has to be acknowledged that there have been complaints—I do not think that there is any issue with that; indeed, it has been part of the demand that has been made of us in terms of transparency, and it is the point that lies at the heart of Mr Lumsden’s question. In a scenario in which we receive a complaint and it is not upheld, we would disclose that a complaint has been received. If we were to say that the complaint had not been upheld but it was not clear whom it was against, there would be a question mark across all current and previous ministers in that process.

There is a very careful balance to be calibrated here in deciding what information should be available in such circumstances. I do not think that there is any dispute about the fact that, if a complaint has been made and upheld, a certain amount of detail should be disclosed, but with protection of the names of complainants and witnesses. The committee is alighting on an issue for which there is no absolutely certain answer.

I will go back to the point that Liz Smith raised, to which I did not respond in my earlier answer, about what the approach says to people who might think about becoming involved in politics. We are of course all familiar with the degree of public commentary that can go with the work that all of us are involved in, and that adds to the mix.

I completely understand what you say about making available information that a complaint has been made and the name of the person. If I were that person, I would like the public to know that the complaint was turned down for certain specific reasons, to clear my name. I would not want a scenario in which there was on-going doubt and confusion. I completely understand why you say that, if the person is not named, all ministers are potentially involved in the speculation but, if someone is cleared of any wrongdoing, it is important to make clear why.

Deputy First Minister, do you not feel that the phrase “not upheld” sounds more like “not proven” than “not guilty”?

No, I do not think that it sounds like “not proven”.

I am thinking about public perception and the media perception.

We are in different language here, convener. It is about whether a complaint has been upheld—yes or no. If it has not been upheld, it does not have validity.

At what stage would a minister be reported? I do not mean “reported” in a bad way. Is it at the initial contact and assessment stage, or is it at the investigation stage? I imagine that it would be a bit unfair on a minister if there was initial contact and assessment and then it was ruled by the ethics people that it was not a complaint. I do not feel that it would be right for that to be reported.

I will be corrected if I am wrong, but that would not register as a complaint, because it would not pass the threshold for consideration. As Mr Lumsden will recall, an initial consideration is undertaken to judge whether what has been presented is a substantive complaint that passes the threshold for consideration. If the material did not pass that threshold, it would not be considered a complaint and would not be reported.

Thanks for that clarification.

On that same point, am I right that the procedure that would be followed is very similar to that of the Ethical Standards Commissioner in that, if a complaint is made about somebody, the commissioner is duty bound to find out whether the complaint should proceed by contacting the person and asking for evidence and by asking for evidence from the complainant? It is then the commissioner’s judgment whether it should become a formal complaint. Is that pretty much the same procedure that you are asking for?

It is about an initial consideration of the substance of the issue and whether it should be considered as a complaint. Some voices will say that that provision should not exist and that every issue should be considered fully but, in my judgment, it is appropriate that we have that initial consideration, given the context that Liz Smith puts about other scenarios.

As colleagues have no further comments or questions, without further ado, I thank the cabinet secretary and his officials for their evidence. That concludes today’s meeting of the Finance and Public Administration Committee. Thank you all for your contributions.

Meeting closed at 12:00.