Official Report 586KB pdf
Our next agenda item is taking evidence on the duty of candour provisions in the supplementary legislative consent memorandum on the Public Office (Accountability) Bill, which is United Kingdom legislation.
I welcome our witnesses: Carolyn Low, finance director at Public Services Delivery Scotland; and John Sturrock KC, of Core Solutions Group Ltd. Before we begin, I remind our witnesses that they do not need to turn on their microphones, as those will be operated by our broadcasting colleagues. If you want to come in during a discussion, please just raise your hand or indicate to the clerks.
We will move straight to questions. Will you outline for the committee what difference the proposed legislation will make to strengthening accountability in Scotland’s public services?
In my view, the proposed legislation presents a real opportunity to change culture in the public services, and we welcome that opportunity. That should absolutely be championed in Scotland.
The duty of candour that applies in our health services currently applies only for patients and their families, but it requires the holding of open and honest conversations where harm has occurred. The bill compels authorities to be proactive when there is an incident—not to wait until there has been a call to give evidence at an inquiry or any other investigation, but instead to consider how they might have contributed to the incident.
The bill builds on what we are trying to do in our health services, and should aspire to do throughout public services, which is to bring about a culture that is psychologically safe and encourages people to speak up. This week is speak up week, during which we are encouraging people who see harm or events that are of concern to draw attention to them without fear or favour. That is a really important principle. However, when such events have happened and we have to conduct an investigation, we also have to be open and honest in our evidence before inquiries. That strengthens the intent around culture.
I welcome the bill’s provisions, but it is important to consider how the underlying systems and processes in public bodies support them. Therefore, we need to consider how information is gathered, held and retained. Are we able to flag instances where we suspect that sufficient harm or wrongdoing has taken place that an event further down the line could require us to give evidence to an inquiry? It is important that we can retain such information in the longer term.
Notwithstanding that, we should be tackling such incidents as they occur and should be open, honest and up front with those involved so that our citizens can understand what has gone wrong and what we are going to do about it. Ultimately, that will enhance our culture and drive culture change. We should embrace that, particularly in the context of public sector reform and how we set expectations for our public service in future.
Thank you for the opportunity to give evidence on such an important matter. I concur with everything that Carolyn Low has said, although I would take a step back and consider what has led to the bill and identify the concerns that such a bill could address. The symptoms that we see culturally are unwillingness to speak up, fear of damage or detriment if people do speak up, defensiveness and protection.
Interestingly enough, in The Times a couple of weeks ago, there were two articles about the NHS, one of which referred to Iain Kennedy, the former chair of the British Medical Association, talking about what he described as the tendency to put reputation before patient safety. The next day, Karen Titchener, the Patient Safety Commissioner for Scotland, talked about a “nothing to see here” culture. There is something here for all of us in Scotland to consider. In my experience and observation, running through the public sector generally there is a sense of defensiveness, perhaps of fear, and a worry about being blamed, shamed, gaslit and so forth. The bill gives us an opportunity to address all that.
I suggest to the committee that, just as Carolyn Low said, this is really about culture change. It is all very well having something written down in legislation, and even passing a new bill and turning it into an act, but quite deliberate steps will be required by those who are charged with taking forward culture change. That applies to the Scottish Government and other public sector bodies, and perhaps would, could and should lead to a much better culture of openness and candour. However, that will require leadership from the top. Although I do not want to draw, in any political sense, on what the Prime Minister said yesterday, it also applies to members of the Scottish Parliament, because, so often, politics is about point scoring, grandstanding, perpetuating a blame culture and making criticism for criticism’s sake.
11:15
Carolyn Low talked about a speak-up culture. If this is going to work, people must be able genuinely, candidly, frankly and openly to talk about things that have gone wrong, or are going wrong. Even here, the culture must change, so we need a top-down approach, too.
Carolyn also made a point about public service reform. This morning’s discussion with the previous panel was about pre-budget scrutiny. I submitted a paper to the committee on that topic, in which I said that much could be achieved by preventing adverse events from occurring through the early identification of disputes and the use of good negotiation and mediation techniques, which is my field of work. I see the possibility of the general approach that we use here changing from a defensive one towards public spending to a far more preventative one where problems are identified and lessons are learned early, where people can talk about what has not worked as well as what has worked, and where we can all move forward in a far more learning-based context.
I say again to you all that that would require a shift in the way in which you all approach politics and the way in which we approach public service delivery in general.
Is it possible that the introduction of the legislation might prevent the need for public inquiries?
I think that is the ultimate aim. If there is a culture of openness and transparency, there are no questions to answer.
The issue is that public inquiries often happen long after the event, which is difficult for all involved. Those who participate have to relive events that happened many years previously and so also have to revisit the harm that they experienced, but we should be trying to prevent that at all costs.
Is there a possibility of an increase in litigation? Some people believe that, if culture change does not happen, cases might be taken against public bodies or the individuals within them who have not met the duty of candour.
I am now seeing an increase in litigation in the health area. That is often seen as the only recourse, but I believe that what people are actually looking for is an understanding of what went wrong and a guarantee that it will not happen again. If they do not get that information their other route is to raise a claim, and we are seeing evidence that the number of claims is rising. That has become a culture. We need to cut through all that and recognise that we are talking about people who have been harmed by a public service. We must ensure that, on principle, that does not happen, while recognising that, if it does, we must treat people well.
I will bring in Mr Sturrock. Given that the duty will exist, would that enable different forms of public inquiry? During the previous session of Parliament, this committee heard evidence that there was a tendency towards a gold standard of statutory powers, with evidence being given under oath in front of a judge. There was a question about whether different models might be possible. If the provision we are talking about today were to be in place, would that open up different models of inquiry that might be less adversarial or cheaper or that might make it easier to deliver justice?
One would certainly hope that that would be one of the possible benefits, subject to your earlier point about the possible risk that things would not be followed through and that litigation would therefore occur.
The earlier and more open availability of evidence should make even normal public inquiries more effective and, one would hope, less adversarial, so that should be a goal even for statutory public inquiries. I previously gave evidence to the committee about my experience of carrying out the NHS Highland review, which took a much less formal, non-statutory approach.
In that context, people were able to provide me with information that I regarded as being candid, frank, honest and open. It was an example of a more informal and less structured approach to inquiry. Earlier, greater and more open availability of information could, and perhaps should, enable such an approach to be taken.
You mentioned a “nothing to see here” culture in public bodies and public services. Yesterday, I was looking at some of the Eljamel inquiry evidence, in which somebody at NHS Tayside had plotted a graph of the number of complaints that have come in versus media events. It is a clear attempt to construct a “nothing to see here” narrative. That was done at corporate level, and that information was presented to Lord Weir yesterday. The kind of culture that we see coming through the Eljamel inquiry is endemic across public services in Scotland, is it not, with people in the defensive mode that you are describing?
I will defer to Carolyn on the detail of Eljamel. I regret to say that I fear that you are correct, but it is really important for us to understand why that is the case. It is so easy to blame people for such a culture existing. However, it exists because of the way in which we go about things, with an expectation that there will always be somebody to be found at fault for something. There is a failure to see public inquiries as an opportunity to learn what happened, what did not work, what could have been done differently and how things could be improved in the future. The focus is much more on attack and defence. We discussed last time the adversarial nature of public inquiries and the extent of lawyering in those inquiries, which, as we were discussing before we came into the room, simply reinforces the adversarial and litigious approach. If the bill were applied, adhered to and followed through, it could change all that.
Ms Low, on that evidence to the Eljamel inquiry, it is not a question of individuals; it is down to corporate culture, in which they are producing documents to create a narrative and gaslight the public through a corporate policy. Do you believe that that is endemic, as Mr Sturrock does?
I would like to believe that we have moved on quite a bit from that, and the reason that I give—
I am sorry, Ms Low. The graph was produced very recently and tabled in evidence. I do not think that we have moved on at all. That astonishes me. How do you think that we have moved on?
I believe that there is almost a culture of defensiveness when it comes to what is disclosed and what is not disclosed. At Public Services Delivery Scotland, we are working hard to change that, which you can see in how we deal with the press and press inquiries and how we respond to freedom of information requests. The number of FOIs that we have had in recent years has increased significantly, and we are quite proud of how we respond to those in a timely way and as openly as possible. That culture needs to extend across health and the public sector more widely.
Part of your job is already to deliver against culture change. What would you say to the people at NHS Tayside who ordered the production of a graph—and those who produced it—that indicates that people made up complaints because they saw it on the telly? That is happening now. We see it at Queen Elizabeth university hospital, as well. Do you have evidence that the culture has changed?
I cannot comment directly on what is happening in Tayside or Glasgow. It would be wrong of me to do that. However, if that is the type of practice that exists, it definitely needs to change.
I can talk personally about what we are doing at PSD Scotland. We are taking a more transparent approach. We have had in-house sessions with the Scottish Information Commissioner to provide learning across our organisation so that everyone who deals with inquiries from the press and responds to FOIs is supported. How do we do that in a transparent way? These things have to be done with intent, and it has to happen across the system.
It would be wrong of me to ignore what is playing out in the inquiry. I cannot comment directly on it, but that is exactly the culture that needs to change.
The Scottish Information Commissioner has also reported on NHS Tayside’s atrocious record of responding to freedom of information requests. That is absolutely appalling, and this is part of that broader culture.
It is. We need to be honest about that and say that it is not acceptable and that our citizens do not expect that. Being more transparent and open, particularly when things go wrong, goes to the heart of the purpose of the legislation.
It is about culture, and it must start at the top. It must start by accepting that that is not the way we should work. I know that we have done that in our organisation. We are proactively taking steps on that. I am responsible for the central legal office, and we are working with it to be more open in terms of the public inquiries because of the work that it does.
It is a balancing act in that environment, because we have to balance legal privilege with what we can say. However, we have to remember that we are public servants and we work for citizens. It is our responsibility to be as transparent as possible.
All we can do is look at what has happened and what is playing out in public inquiries and reflect on whether that is good enough—and it is not good enough. As leaders in public service, we need to accept that, make changes and drive that culture.
As John Sturrock said, a system-wide effort needs to be made. The legislation will help, but if we have to use the ultimate sanction that is proposed in the legislation, we have lost, have we not? It cannot be about carrots and sticks and punishing people; we need to encourage people to be transparent.
All that is entirely fair. Is the legislation, which the Parliament will be considering as the legislative consent motion, sufficient? Should we be going further as a Parliament to achieve, in legal terms, the objectives that I think you both share in respect of that culture shift? Could we do more things in law, or do you think that the legislation is sufficient?
My view is that you cannot drive culture change with legislation. It is about people and behaviours and encouraging people to do the right thing.
The Government has been trying to do exactly that for 20 years. I tend to agree with you, but do you think that the legislation goes far enough?
I share that view. I do not know whether members of the committee are familiar with the Apologies (Scotland) Act 2016. Margaret Mitchell introduced it as a private member’s bill a few years ago. Very few people have heard of it, and it is arguable that the Apologies (Scotland) Act 2016 is not actually being used as it could have been. Legislation can go so far in setting a framework and perhaps some broad expectations, but I completely agree with Carolyn Low that the issue is about how public sector leaders, public bodies and others implement that in practice culturally.
Mr Sturrock, you and I both know that the characteristics displayed by candour are not evidenced in certain people. Do you think that that will present a particular challenge for the committee chair in relation to their responsibility to draw things out in the course of any inquiry?
That is a difficult question to answer. People are generally prepared to be more candid than you might think. I might even challenge the assumption that a number of people tend not to be candid. Let us be careful about that. It is about how we go about those things.
As to whether a chair can enable or encourage candour, that is down to the skills of the chair. The legislation perhaps makes it more of a requirement that people are candid. There would be a greater understanding in the conduct of Scottish public sector life that candour is something that is expected, and so it therefore becomes more culturally acceptable. There will always be people who will be less candid, for a range of reasons.
If I understand your question correctly, I would say yes, there will be occasions when chairs will have to be skilful to draw out more candid observations. In the context of this discussion, I think that this legislation could—and again should—make that more part of the accepted norms.
I do not know whether that answers your question or not.
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Given what is in the legislation, chairs of public inquiries are going to face more challenges if candour does not come easily and the chair has to use their powers to draw certain things out.
Well, the legislation will provide the chair with more powers to do just that. That ought, in theory, to make things not necessarily easy, but easier than they are at present, given the framework that it seeks to set out of new norms to which people are expected to adhere.
The public has, rightly, been concerned about the costs of public inquiries in recent times. According to what I have read in respect of the bill, given the powers that the chair will have, they might be able to pursue certain things and get to the bottom of things faster. Is that going to make a significant difference to costs at the end of the day? For example, I know that changes are proposed in respect of legal representation by family advocates. What do you think?
I think that the key word in this piece of legislation is “expeditiously”. I asked myself yesterday what difference that will make, because although people might fulfil the obligations that are set out, they might take time to do so. However, that word “expeditiously” is there, as is, I think, the phrase
“as soon as reasonably practicable”.
It will give chairs the opportunity to speed things up if public authorities and public officials are charged with producing this evidence and data quickly, which, after all, is what “expeditiously” means.
To answer your question more directly, then, I think that the legislation should mean that public inquiries can be conducted more quickly and can get to the root of things more expeditiously and, therefore, costs should be reduced.
Perhaps another element that we have only touched on is the whole nature of adversarialism in public inquiries and the extensive use of legal representation. It is just possible that, with the requirement to disclose information without favour—that is, without taking account of the interests of the official or the authority in question—there will be a more open disclosure of information and, therefore, less need for, and less tendency to have, a defensive adversarial approach.
Interestingly, there is one little provision in the bill that, I think, would not apply to Scottish inquiries, and that is to do with parity of arms. The bill says that legal representation should be engaged only if it is “necessary and proportionate”. As I read it—and your team will tell me whether this is correct—that will apply only to inquiries that are established by UK ministers. That seems to me to be a helpful section of the bill that you might consider could be applied in Scotland, too.
Do you think that, in the fullness of time, we might not even require advocate-level representation for families? Do you think that solicitors could be used instead of advocates to keep costs down?
That is always a choice. I will have to be careful, because I might sound as though I am defending my own branch of the profession, which I left 25 years ago.
I was cautious about asking you that question.
As I have said, I have not practised law for 25 years, so I have no axe to grind at all.
As you, too, will know, there are occasions where it is helpful and appropriate for families and others to have the representation of an advocate. That might or might not be more expensive, but it might be more efficient and effective.
I would not want to see this as a binary thing: it might be possible to reduce overall legal representation costs, whether or not we are talking about counsel or solicitor, or counsel and solicitors. I would have thought that that sort of thing should be actively encouraged. There is almost—and I use the expression carefully—a legal-industrial complex around these formats. I said as much to Michelle Thomson the last time that I was here, but I do not think that that is something that suggests malice or ill will on the part of the legal profession—it is just the way the system works.
That brings me back to Mr Marra’s earlier question. That has happened, because statutory public inquiries have become so formalised and legalistic, whereas the less formal and more relaxed approach, such as that which I was privileged to conduct in the NHS Highland review, takes a lot of that away and, paradoxically, gains more information, because of the greater candour that might be achieved.
There are many different aspects to this, and we should be careful not to fall into any yes/no, right/wrong binary approaches. Complexity and variability need to be considered.
I have one more question. In the legislation there will be an opportunity for departmental review after between three and five years. I presume that you think that that will be a positive thing.
I am not sure that I was aware of that. I must have missed it. Any review or post-legislative scrutiny has to be a good thing—the more of that, the better.
I agree.
I start with the point about review—as a Parliament, we need to get better at doing that. I was struck by Ms Low’s comments about expectations. Although I certainly support the principles of the legislation, it will be important to manage expectations. I well remember the introduction of the Freedom of Information (Scotland) Act 2002 and how we were told that it was going to drive a culture of openness and of public bodies proactively putting out information. All that we have seen has been an exponential rise in the number of FOI requests and, then, complaints to the Information Commissioner.
I would love to share your optimism about the cultural shift that this bill will lead to. Do you have share my misgivings that, if we are not careful, the public’s expectations of what the bill will achieve will not match the reality? That is not to say that passing it is not the right thing to do—however, we could be setting the bill up to fail if it serves a purpose but falls short of what people expect it to be able to do.
I agree with that point. For me, there would always be a time delay. Whatever we in a public body do to respond to the act, it will need to improve our systems, processes and ways of working so that we are prepared to provide timely evidence and respond positively and with candour to any investigation—which may happen three or five years down the line. It is an opportunity to grasp the potential that the change provides to sort the issues out today, because we need to be better than we are today.
The issue is about the conduct of public officials in the course of a public inquiry—but we have got to get to that stage. I would like to think that we can avoid having so many public inquiries, although there will always be situations that need them. For example, in the case of the Covid inquiry, there was always going to be a public inquiry on such a monumental event that impacted on everybody’s lives. From day 1, when we as an organisation stood up to do what we were asked to do in response to Covid, we were conscious that there would be a public inquiry and that we would have to make sure that we had all the information we needed to be transparent and to respond properly. It still took our central team a long time to capture everything, because of the complexity of our organisation.
The issue is about what a major public inquiry means for the way in which a public body has to manage its affairs. We have to get that right. The bill will cut through how we work: as well as driving culture, it needs to shape the way in which we keep and are able to access records. It should affect the proper management of issues such as document retention and records being flagged when we think that there is a potential risk of their being investigated further down the line. When that happens, it goes beyond normal document retention needs and we need to flag it and stop the normal process. Currently, we do not have that maturity in record keeping, but we will need to have it.
It is right to have the intention to make it quicker to provide evidence, make the evidence more transparent and have a duty to be proactive in sharing relevant information. That should drive practice and improvements today, which is what we in the public service need and our citizens expect.
We must be careful that we do not make this into an industry and that we do not shift the cost of the public inquiry into the cost and burden of administration in public service, which is why I referred to public sector reform earlier. It is also about how we design our new organisations in order to do this properly. What governance arrangements will be put in place so that we are thinking first about being open and transparent with our service users? That will drive the cultural change. The UK legislation triggers all that and has to be welcomed.
I will make a quick addition to that. Research—certainly in the context of medical claims, but I suspect that it is more generally applicable—suggests that what people want when an adverse event occurs is acknowledgement that it happened; perhaps an apology, if that is appropriate; recognition of the impact that it has had on them and on others; reassurance that it will not happen again or that the problem has been addressed and that something has been done about it; and an explanation of what occurred. It is the absence of those things, particularly the lack of information, that often leads us into the territory of requiring these expensive, time consuming and often quite unproductive public inquiries.
The legislation does exactly what Carolyn Low says: it turns that on its head and presents public officials and public authorities in Scotland with the opportunity—indeed, the obligation—to provide that information candidly, frankly, openly, early and expeditiously, if the cultural change occurs to enable and allow that to happen.
I, too, was going to mention the Apologies (Scotland) Act 2016, because the intent behind that was to offer an opportunity to apologise and, I think, to provide a more empathetic response rather than circling the wagons.
I have been struck by what you said about the culture of fault-finding and the more litigious and adversarial approach. You spoke about individuals being far more aware of their rights. That, combined with those other factors, makes it hard to see how there will not still be a temptation to circle the wagons in that environment.
How do you see the provisions of the legislation encouraging a move away from what, in some instances, may feel like a natural human response for some individuals? That is not to justify the behaviour at a corporate level that Mr Marra was quite rightly amplifying and condemning earlier, but rather to consider the position at an individual level, where there may be contested facts around a particular situation.
There may always be contested facts around a particular situation. It is a perfectly healthy democracy and system that allows those facts to be presented, addressed then debated. The concern is when that defaults into an adversarial, litigious, defensive and aggressive posture.
Although that may be—I think that you used an expression along these lines—a natural tendency, human history, evolution and biology suggest that most people just want to work things out, find an answer, find a response and move forward. However, we have this system, which is represented in the litigation system and in the public inquiry system, in which the default is to claim, counterclaim, attack, and defend. That then almost becomes the behaviour, culturally, that we expect.
The legislation gives us the opportunity in Scotland to rise above that, to change, and to try, at least, to recover the territory where we operate more co-operatively and constructively with each other for most, not necessarily all, events that occur, and at least give that approach an opportunity.
However, I go back to my previous point about the research, which shows that most people want acknowledgement, reassurance and an explanation. Actually, making a claim for damages falls very far down the list of what people’s wants and needs generally are.
I entirely accept that. In a more digital age where we immediately go into written correspondence, is there a risk that people will be more guarded about what they set down than they might be in a face-to-face meeting, where there is an opportunity to have a more interactive and personalised approach to eliciting and responding to concerns? Is there now less capacity for that face-to-face engagement? Is there too much written correspondence that is more formal in its approach and therefore, perhaps, less sympathetic or empathetic?
11:45
People can do all this stuff in writing if they have the skills and competence to do so. I regularly train people in what I call better conversations and better outcomes, and we apply the same ideas to oral communication as we do to written communication. People can deal with the possibility that written communications are more formal and therefore, possibly, carry that extra risk by thinking about what they are writing and by gaining the skills and competence to communicate effectively.
Face-to-face meetings are helpful. One of the problems with our culture is not so much the default to writing, but the default to online meetings. I often use the expression “room, not Zoom”. So many public sector meetings now are held online, and my understanding is that that is often to the detriment of effective decision making. There is a discussion to be had about whether such things can be done more effectively in person. However, the general idea—of candour, frankness, openness and transparency—applies to any form of communication. People just need to think about it.
We have talked a lot about culture change. The bill represents an opportunity to recalibrate the relationship between state and citizen, but that goes two ways. We have talked about procedures and culture change within organisations but, with regard to public attitudes, is any public education needed in order to achieve the bill’s aims? What will the test of the bill’s success be?
Guidance always underpins legislation, and it is key that guidance is provided not only to public bodies but to citizens to explain to them what the legislation means to them, what additional rights it gives them and what they should expect from the public service. Being absolutely explicit about that would be really helpful.
We should also do the same on the other side so that we are absolutely clear about expectations. At the end of the day, the bill tells public service bodies and public servants across the system, “This is how we expect you to behave when you engage with citizens—we expect you to be transparent”. If we are explicit about that, there can be no dispute and no blurring of the lines. That will set the tone and help to drive the culture.
Underpinning guidance is always helpful for everybody concerned, but it will also be helpful to ensure that we have that lens from the citizen perspective.
On Pauline Stafford’s second question, the test will be whether we have fewer inquiries such as those on Eljamel or Hillsborough or hospital inquiries with evidence being produced late.
In addition, a particular test will be whether public money is saved. When I gave evidence to the previous committee, Michael Marra put forward the proposition that £230 million is a lot of money to spend on public inquiries, and my response was:
“You could build a ferry for that.”—[Official Report, Finance and Public Administration Committee, 17 June 2025; c 32.]
We are looking to have fewer occasions where such amounts are spent on public inquiries, and also fewer situations like the CalMac ferry situation. If the bill’s provisions had been in place and implemented, the public purse could well have saved, let us say, a couple of hundred million pounds.
Given that a lot of our public services are outsourced to private contractors, is there a risk that less scrupulous people will try to circumvent the duties in the bill, or do you think that it will be easy to embed them where services are outsourced?
We will need to look carefully at existing contracts to see how we will ensure compliance. There might be a requirement to consider mechanisms for that, but it is quite straightforward to embed that in the requirements so as to ensure that there is general compliance. Compliance with legislation is generally built into contracts anyway, so it should be fine.
The important thing to consider is what this will do to the price, particularly given that the bill’s provisions extend to health and safety obligations. A lot of what we do on health and safety is outsourced. Ultimately, there will be a consideration of risk. We will need to test that and see what will happen, but it is the right thing to do.
There is the public sector and there are public services. Our wider private sector partners who work with us to deliver public services need to be part of the overall duty, so it is absolutely appropriate that they are included. We need to think about the practicalities of that, but I am assured by my procurement colleagues that it can be managed.
I thank Mr Sturrock and Ms Low for their evidence. I am sure that the committee has found it helpful.
That concludes the public part of our meeting. The committee’s next meeting will be on Wednesday 7 October.
11:51
Meeting continued in private until 12:13.
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