Local Government, Housing and Planning Committee [Draft]

Meeting date: Tuesday, December 12, 2023

Official Report 725KB pdf

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Commissioner for Ethical Standards in Public Life in Scotland: “Annual Report 2022-23”

Agenda item 3 is evidence on the annual report for 2022-23 of the Commissioner for Ethical Standards in Public Life in Scotland. We will hear from Ian Bruce, who is the commissioner, and Sarah Pollock, who is a hearings and investigations officer.

I invite Ian to make a brief opening statement.

Thank you, convener and members of the committee for the invitation and the opportunity to talk to you about the work of our office. I am joined by Sarah Pollock, our relatively new hearings and investigations officer, who will be happy to provide more detail on our work on complaint handling. My focus will largely be on our governance. We are keen to ensure that the committee is fully informed about our performance, and I will keep my opening statement brief to allow as much time as possible for questions.

I trust that you have reviewed our annual report and that it has given you an indication of the significant progress that we have made in the past year in implementing the recommendations made by the Auditor General for Scotland, following his section 22 report into the work of our office.

I last gave evidence to the committee in January this year. As the annual report testifies, the intervening period has been extremely busy for us, but we are content that we are operating effectively as an organisation and we have assurance from our auditors on that. I am pleased to report to the committee that we have now implemented all the auditor’s recommendations that we were able to implement, and that we have also implemented the majority of the additional recommendations that our internal auditors had for us.

We have successfully recruited and inducted the new staff that I spoke to the committee about in January. They completed their probationary periods in the past month and they are already adding value across the work of the office, particularly in relation to reducing the number of complaints that require initial assessment. Waiting times have now reduced to four months—when I last spoke to you, they were at nine. That was not easy to achieve in the face of rising complaint and investigation numbers this year. We can give you more detail on that during this evidence session. We have included all the details on the progress that has been made on our website and in summary in our annual report. Again, we can provide more detail to you.

On my plans for the future, I have published a new draft strategic plan for 2024 to 2028, which is currently subject to extensive consultation, including with this committee. It sets out an ambitious pathway for our office in the next four-year period. Your views on the plan and my priorities would be very welcome.

I trust that that is of interest to the committee. I am happy, along with my colleague, to answer any questions that you may have.

Thank you, Ian. You have given us a broad-brush overview of things that have improved, which is great. It is good to hear that the newly recruited staff are helping you to tackle all the things that you need to do. You have highlighted what has improved, but I would be interested to hear a bit more about the challenges that remain.

I would say that very few challenges remain. We have restored our governance and we are now a well-functioning organisation. We have the staff on board that we need to not only get through the much shorter backlog but improve as an organisation in future.

You will be aware from the previous evidence session that the investigations team overall is still relatively new, so there is quite a lot in our strategic plan about development. It is about getting all the staff up to speed to become very efficient and au fait with what can be quite a complex area of civil law. For example, we have run training on article 10 of the European convention on human rights and we have had external trainers providing training on licensing and planning matters. Those are complex areas that councillors have to deal with and we need to be across them. We are due to repeat training on investigating cases of sexual harassment in the new year. There will also be training on plain-English drafting, in order to make our reports more accessible to the Standards Commission for Scotland, which is a key stakeholder and customer for us.

There are very few challenges. We have a clear path forward and it is about us improving and being the best that we possibly can be as an organisation.

It is good to hear the level of confidence that you have in the direction of travel. Are you satisfied that your office has the staff and resources required to carry out your functions effectively and efficiently?

Definitely. The committee will be aware that I conducted a workforce planning exercise in May 2022 and, on the back of that, made a bid to the Scottish Parliamentary Corporate Body for additional resources. It was a very comprehensive workforce planning exercise and the bid was entirely evidence based. I am sure that you will understand that the SPCB would not have agreed to provide those additional resources unless the case was very compelling. The SPCB agreed that we required those additional resources in order to perform our role as effectively as possible.

I can also provide you with additional assurance, because it is not always great to have a commissioner mark their own homework in front of the committee. We now have an internal audit function, which reviewed our workforce planning exercise this year—that was one of the internal audits that it ran. It gave us the highest possible rating of a very strong assurance on the workforce planning, identified a great many good practice points and benchmarked us above equivalent organisations. I am very happy that we have what we require.

It may be helpful to point out that some of the things on which we based our assumptions were that complaint volumes would remain relatively stable and that the directions would remain in place. We heard Ms Johnston say that those are there in order to provide a level of public assurance and even though one is being lifted, it remains in our manual. Basically, everything that we investigate to a conclusion is now adjudicated on by an independent body.

That sounds very positive and it is good to hear that you got the highest possible rating on your internal audit. That is tremendous.

Marie McNair is joining us online.

What factors have contributed to enabling you to reduce the backlog of cases so significantly?

There are a number of factors. We revised our approach and we now have an extensive triage system, which I may ask Sarah Pollock to provide some more detail on.

One of the first elements is that we get a lot of complaints that are not admissible and do not engage the code—for example, they may be service complaints, perhaps because a councillor is not responding to someone as quickly as they would like them to respond or is not dealing with an issue in a way that a constituent would like them to deal with it, or maybe it relates to a housing issue. We identify those complaints quickly after they come in and get back to the individuals as quickly as possible to let them know that we cannot help them. However, we also have a database of other organisations that might be in a position to assist them. That clears out many of the complaints that might previously have just been sitting there. Clearly, that brings the numbers down.

We have weekly meetings with the entire investigatory team and every second week we go through all the complaints that are sitting at the admissibility stage and consider those that represent an issue where someone might be subject to harm if we do not put it to the front of the queue. Those are taken out and prioritised for investigation. Such complaints might relate to on-going bullying and harassment and conduct of that type.

Over and above that, we now have additional staff and we have a spreadsheet of all pending complaints. In order to ensure that they are spread across the team in a fair way, they are colour coded on the level of complexity and the number of witnesses and people who would need to be contacted. In that way, the team is able to allocate to themselves a mix of different types of complaint for investigation. We monitor that situation on a fortnightly basis. The senior management team meets monthly and also monitors all the complaint numbers.

Those are some of the things that we are doing. Sarah Pollock might have something to add to that.

I have just a couple of things to add.

Our new staff came to us in May this year and we worked hard to put in place a comprehensive induction programme for them, which involved them shadowing the more experienced members of the team and undertaking the wide range of training that the commissioner has alluded to.

Triage is an important part of the process. We use it to check whether all the relevant material that we need has been submitted with the complaint. If it has not, that is the point at which we can go back and seek out additional information. When a complaint comes in to us, we do a lot of work to make sure that we are dealing with it as efficiently and effectively as possible.

Why do you think the number of complaints about councillors was so much lower in 2022-23 than it was in 2021-22, and has that trend continued into this reporting year? From the figures, it looks as if the 2022-23 number is half of what it was the year before that.

It is hard to say. Ms Johnston alluded to this and it is set out in the strategic plan that I intend to conduct research because I would like to know what drives those trends—as would the committee, I am sure—because it will assist us and the Standards Commission in our planning. The short answer is that the trend has not continued. We thought that the committee might be interested to know where we are in this reporting year. We have had more complaints and cases already, within seven months, than we did in the entirety of the previous financial year. Anecdotally, we feel that that might be attributable to what happens pre-election and post-election—2022-23 was post-election. Pre-election, we tend to see a rise in the number of complaints, particularly councillor on councillor complaints, which may be an endeavour to undermine a prospective opposition candidate. We definitely plan to do some research and see what is driving the numbers.

We will certainly be interested in those findings. That is me, convener.

Thank you very much, Marie. Pam Gosal is also joining us online.

Considering the highly divisive and frequently personal discussions that are currently taking place, when does a disagreement turn into disrespect? Does the code of conduct explicitly state what conduct on social media is and is not acceptable? What kind of training on that subject have the commissioner and his office given to council members?

The point in time at which a disagreement turns into disrespect can be quite subjective. Again, I refer to the evidence that Ms Johnston gave. She and her team have provided a considerable amount of guidance on that. There are specific bits of guidance on conduct on social media and on disrespect, and that is what I and my team follow when we are assessing conduct against the provisions of the code. We do not refer only to the code itself, we also refer to the guidance.

We also know what the commission’s views are. Every case turns on its individual facts and circumstances, but from hearings that have been held, we always take cognisance of the prior decisions that have been made on whether a breach has occurred when reaching our own decisions about whether something has been disrespectful.

You might recall that I did some research for the committee, disaggregating social media complaints. I provided that in April, as I recall. Social media is still accounting for around 20 per cent of all complaints, so it continues to be a driver for poor conduct. When I was last in front of the committee, I mentioned some other research that was done by the Local Government Association about the impact that such behaviours are having on people’s willingness to put themselves forward for positions in public life. It is problematic and it is not a new thing. It is six years since the Committee on Standards in Public Life published its own report about the way in which standards of conduct, from its perspective, were deteriorating.

The Local Government Association, prior to the report that I mentioned—it is called “Debate not Hate”—published another report called “Civility in Public Life”. All the reports tell us the same thing: standards are dropping and it is about discourtesy and disrespect. A very high proportion of complaints this year relate to those issues. Indeed, we did some research to disaggregate the proportion of complaints related to disrespect and discourtesy this year compared with prior years. In prior years, the average sat at around 40 per cent; this year, the figure is 60 per cent. It would be very helpful to us to know what is driving those numbers.

Thank you.

09:45  

Stephanie Callaghan has a supplementary.

Thank you for coming along today. I have been reading about problematic behaviour online and, anecdotally, we have heard that women councillors, in particular, are facing much more bullying and harassment. Are you looking at anything specific to address that? Are you doing any research on it?

The research will be very broad in nature. We will look at all the different types of complaint that we get and try to identify what is driving them. It will probably not surprise the committee to learn that relatively recent geopolitical events have led to a rise in complaints, because there is a debate happening in which there are two sides. However, conduct becomes problematic when it becomes personal, and that is one of the things that we are planning to look at.

Single events can sometimes drive a great number of complaints, but we will count them as a single case. What we are really interested in is case trends, as they will highlight the different types of conduct. I am thinking of conduct in council chambers, for example, when people might be saying things about each other rather than about their policies. That might be an issue, and I do not know whether it is an underlying trend, whether it relates to election cycles and so on.

I was also asked about what training we provide. Just to be clear, I will highlight the separation of functions between the two organisations. We work hand in glove with the Standards Commission for Scotland in respect of the training and guidance that it provides, but our statutory role is to investigate complaints.

Can I just follow that up?

Of course.

If, when you look at the statistics, you find that women are facing much greater bullying and harassment from colleagues on social media, will you look at putting in some training or working with the Improvement Service in that respect?

Yes. I know exactly where you are coming from now, and I apologise for not picking it up.

What will assist us in that is a survey that we have already rolled out to all complainers and respondents to give them an opportunity to provide their views on whether, having come into contact with our office, they think that we have adhered to the values that we have set out. What we are asking is: did we treat you respectfully and kindly? Did we act empathetically? We are doing that work, and those people are providing us with anonymous responses.

Over and above that, we are collecting their demographic data—and, indeed, we have explained why we are doing so. That research will help us to understand whether a disproportionate number of complaints are being made against people who share certain protected characteristics, such as women, people from the LGBTQ+ community or people from an ethnic visible minority, and/or whether individuals who share those characteristics feel the need to complain more frequently about others. We will drill down into those numbers, which will help us to understand what is driving the trend. I know for myself, anecdotally, that these are issues, because people have come to me to complain. They tell me, “Look—I’m a woman, I’m a visible minority and I feel that I am being targeted because of that.” That is not just in council activity, but online, too.

The other worrying and disturbing phenomenon is the pile on that happens to someone who might have been the subject of behaviour that is incompatible with the provisions of the code. Members of the public who see a particular exchange decide, “I want a piece of that”—for want of a better expression—and they add their own opprobrium to what is already up there. It is definitely an issue.

Thank you very much. I call Willie Coffey.

Good morning. I just want to carry on the wee discussion about the Local Government Association’s “Debate Not Hate” survey, which you mentioned. That is primarily conducted in England and Wales, is it not? Do we need to do something similar in order to pick up whether the same trends are happening in Scotland?

That is a matter for the committee, but it is certainly of interest to me. As I said, I propose to conduct some research on that. The issue is that, given my role, I am already seeing people who are unhappy. I am the one who sees complainers and respondents, who make up my dataset.

It might be of wider interest to know the public’s view. Once councillors are in, they are in, and we can find out whether they would be willing to stand again or what sort of abuse they have suffered. That is all helpful, but what about the people who do not put themselves forward? Why do they not do that? What prohibits them from doing so? Does that affect particular groups in society? You heard me say in January that I have a real commitment to diversity because of my background in public appointments. That is valuable in and of itself, but it is also good for local communities to see themselves reflected at council level and I believe that diversity contributes to better decision making.

Is COSLA actively considering such a piece of work?

It is not, that I am aware of, but I could contact COSLA to find out whether it intends to do so.

I presume that you would support that work to get a fuller picture.

I would certainly very much support that. That might be a personal issue for me and perhaps I should not express such an opinion as a commissioner, but I would certainly personally support something like that.

I have some questions relating to the Auditor General’s previous reports. You probably remember that I asked about that during several meetings of the Public Audit Committee. You have identified serious failings that occurred in the organisation, although I stress that they happened before you joined it.

We know that a number of complaints were closed without proper consideration. What are the complainants’ views on the outcome of that process? Have we tried to gather that information, or have we just said that we are sorry, but we cannot revisit those complaints? Has any attempt been made to connect with those people to find out their views on that experience?

People have been in touch with me, including, in one case, along with their constituency MSP. To be clear, as the commissioner, I am very open to that, as is the office. I have spoken about the values of the office, and transparency is one of those. Part and parcel of that is that I will meet people who are unhappy about how the office operates either one-to-one online or in person. A number of complainers have come to me to say that they are not entirely happy with how things went and I will sit down and discuss their concerns with them.

I cannot reverse the previous commissioner’s decisions. My hands are tied, but that does not mean that I do not empathise with individuals who find themselves in that position. I think I used this analogy when I spoke to the Public Audit Committee: it is like double jeopardy. Councillors who were being complained about felt exonerated—rightly or wrongly—if complaints about them were not upheld. The law precludes someone making the same complaint again and having the prior decision reversed when a different commissioner comes along two years later. That is the reality.

I am a parliamentary officeholder. I took legal advice and know that I would be legally challenged if I were to try to overturn earlier decisions. There is no way that I would win and I would end up spending public money trying to defend the indefensible. I understand that that is difficult.

One of the major failings of the process was that many complaints were not investigated at all.

Indeed.

In that sense, people felt really hard done by under the legal system in Scotland, which I would have thought was there to deliver justice, rather than thwart it. Do you have a view on that?

Yes—I agree whole-heartedly.

Where should we turn, as the Government, to remedy that? We cannot have the law thwarting the delivery of justice. We are talking about honest people who came with genuine, honest complaints that were never dealt with. They were not even considered and dismissed; they were never touched by the predecessor organisation.

I agree. They were not investigated; they were deemed to be inadmissible by that commissioner.

What would need to change to reverse that?

That I cannot assist with, I am afraid. The remedy for those individuals at the time would have been judicial review in order to overturn a commissioner’s decision.

The term for that is a functus officio determination, is it not?

Yes—functus officio is the Latin term. There are very narrow circumstances in which a public authority can return to something, and there were some complaints relating to that position. One of the narrow circumstances in which a complaint can be revisited is where a public authority had not completed its investigation. Where I was able to revisit complaints, I did; where I knew I was not able to, I simply could not.

I asked you this question previously, and I will have to ask it again. If a person whose complaint was not dealt with at all makes the complaint again, are you able to take it as a new complaint, or would there have to be some material difference?

New information would have to come to light.

Is that the case even if the complaint was never dealt with?

Yes. It was the commissioner’s position to take those decisions in law. As a parliamentary office holder, it was her prerogative to decide whether a complaint was admissible or inadmissible. That judgment having been made, I cannot revisit it. However, a complaint could come in with additional allegations. Let us say, for example, that the complaint concerns a continuing course of conduct. That could change the nature of a complaint, and that could give me a pathway to conduct an investigation in the case. If the facts and circumstances on which the prior decision had been made were precisely the same, I would have no scope to revisit it, for the reason that I have pointed out—I am exonerated because there has not been a breach of the code. I would need to see something new.

That is really clear. Thanks very much for those responses, Ian.

Not at all.

Thanks for exploring that area, Willie.

Good morning, and thanks for joining us. Last week, the Scottish Public Services Ombudsman discussed with us the demographics of people who escalate complaints to that office. Have you carried out any work yourself on those who complain, and why?

That refers to the research that I mentioned earlier, and this is something that we have recently rolled out. Come next year’s annual report, how our office is viewed is the sort of thing that we will potentially report on. Our office has never gathered the demographic data of individuals who contact it, but we are doing so now. That will cover complainers and respondents, and it will give us a much clearer picture of whether there are differences that depend on people’s protected characteristics.

That is helpful. To return to Willie Coffey’s line of questioning, I note that the Public Services Ombudsman stated last week that it would like legislation to change to grant it own-initiative investigative powers. Are you content with your powers as they currently sit? What opportunity might you have to strengthen them?

I also note that some of our conversation today has concerned unfounded or spurious complaints about elected members and whether there is an opportunity to state earlier in an investigation whether you can investigate such complaints, especially with regard to social media.

10:00  

I will start with own-initiative powers. The Ethical Standards in Public Life etc (Scotland) Act 2000 gives me a bit of discretion. It says that, to the extent that is “possible”—or wording to that effect—I will investigate only in response to a complaint that has been submitted to me. There is sufficient leeway there for me to investigate something that is not in response to a complaint. As Ms Johnston pointed out, I already have leeway during the course of an investigation. If I see additional poor conduct or conduct that I feel is incompatible with the code, which was not complained about but arises as part of the investigation, I can certainly look at that, and that is made clear to everyone in our letters.

With regard to unfounded and spurious complaints, I do not look at people’s motivation for making complaints. All I do is assess the facts against the code. An awful lot of the complaints that are made to me are unfounded and spurious and, by and large, they tend to be inadmissible. For those on which I am not clear, I will conduct an investigation, and that ends up being reported to the Standards Commission and adjudicated on there. That can be a decision to take no further action or a decision to go to hearing. If I am being honest with you, an awful lot of that snash gets dismissed, and that includes online complaints.

It is important for me that all the letters that I provide to complainers and respondents give clear reasons for my decisions. If it is apparent to me that what is going on is just a political debate and that members of the public disagree with someone’s political views, that does not constitute a breach of the code’s provisions. I do not know whether that answers your question.

That is helpful. My line of questioning was also about whether any work has been done to consider whether similar bodies in the United Kingdom and Europe have a different model or other countries are using a better set of powers to govern some of that.

It has not, but I will certainly add that to my list of things to look into.

For what it is worth, we engage with other bodies that work in that area. Angela Glen, our senior investigating officer during the course of this year, was one of a few people who gave an online talk for the Global Government Forum about conduct in public life, so it is not as though we do not have contacts there. People attended that event from all over the world, so it was very good for us to be invited to speak.

That is great. Thank you.

That concludes our questions for this morning.

Thank you for the report and all the information about the improvements and the positives around there being very few challenges. I also noted the training that you have been giving to selection panel chairs so that they can achieve effective boards. I thought that that was tremendous. You have done that piece of work to ensure that our public body boards are reflective of the communities that they represent. Thank you very much for that work, too.

Thank you so much. It was a very positive year on the board front.

Yes, it seems like it has been, and it has not really been a full year, because we saw you in January.

Indeed.

Thank you very much for that.

Not at all.

Just before we finish this section of the meeting, I will ask Stephanie Callaghan to declare an interest.

I declare that I was previously a councillor at South Lanarkshire Council.

Thank you very much.

I will briefly suspend the meeting to allow for a change of witnesses.

10:03 Meeting suspended.  

10:10 On resuming—