Standards, Procedures and Public Appointments Committee

Meeting date: Thursday, February 10, 2022

Official Report 561KB pdf

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Commissioner for Ethical Standards in Public Life in Scotland

Item 3 is for the committee to hear evidence from the acting Commissioner for Ethical Standards in Public Life in Scotland. I welcome Ian Bruce, the acting commissioner.

We move straight to questions. As convener, I will take the privilege of going first.

As acting commissioner, you have published an annual review, which has come to the committee to be addressed. Several other matters are outstanding, not least of which is a section 22 report from the Auditor General for Scotland. There is also a report from Deloitte, which I understand was produced at the request of the commissioner. We will look at some aspects of all of those and hope to clarify some issues that have come up.

Concerns about the effectiveness of the office’s statutory functions were revealed by your auditor and raised by the Auditor General. What actions have you and your senior colleagues taken to address those concerns since you took up your position as acting commissioner?

Thank you for the opportunity to talk about the work of the office.

That question gives me a lot of ground to cover. I will start with leadership and governance. It is fair to say that we found ourselves in a difficult and challenging place in March last year, just prior to my appointment—I have been in post since last April—so we did not need to wait for Deloitte to make a series of recommendations. I might clarify that Deloitte is our external auditor, appointed by Audit Scotland, and it was Deloitte’s decision to undertake a wider scope review of our office for a range of reasons.

We certainly had issues with leadership and governance. I sought to address those as soon as was practicable from March onwards, and on a more formal basis from April. The first thing that I felt I had to do and did was to engage meaningfully with the staff of the organisation to explain both our statutory role and what the public expect of us. We were not working to a set of formal values at that point. In my discussions with staff, I made it clear that I felt that we ought to operate with a set of values, including kindness and empathy towards those who come into contact with us. We discussed what other values we should have as an organisation. Those were then articulated in the form of a new strategic plan. That was not anticipated in the usual strategic planning cycle, but I redrafted our strategic plan to include that set of values. It was about meeting the public’s expectations of the way in which our office should operate. I ensured that all staff were on board with that.

In order to ensure that it would meet the expectations of our stakeholders and the public, I went on to consult on the redrafted strategic plan. I consulted everyone who comes into contact with us in one capacity or another: the Parliament, the Scottish Government, all public bodies, all councils, the Convention of Scottish Local Authorities, the Society of Local Authority Lawyers and Administrators in Scotland, the Society of Local Authority Chief Executives and Senior Managers, and so on. It was a meaningful consultation and, ultimately, all the responses that we received were incorporated into the final version of the plan. That was step 1, which allowed me to re-engage with the stakeholders. A lot of those relationships had fallen away, for any number of reasons.

On the back of that, I produced a biennial business plan, which included a range of actions. Ultimately, it was revised to include all the recommendations that Deloitte made as part of the wider scope review that it conducted. We had not had a proper performance management framework in place, so staff were all reintroduced to that over the same period. There are three sections of the office: one for governance, one for public appointments and one for handling complaints about conduct. All three sections have their own individual plans that fall out of the biennial business plan. Each and every staff member understands that they make a contribution to that, and they all have individual action plans on the back of that. That means that everyone understands that, ultimately, their contribution leads to the achievement of our strategic objectives, which have been agreed with all our stakeholders.

I could go on, but that is the big picture.

That is very helpful. It is right to say, for the record, that the Deloitte report, although it was not published until October, covers the period up to the end of March 2021, which was the point at which you became acting commissioner.

What is your current assessment of your office’s capacity to move forward?

That is a very good question. It is probably helpful if I provide some context. I have been in post—not as acting commissioner but in my prior role as public appointments manager, or incarnations of that—since the office of Public Appointments Commissioner for Scotland was set up, alongside my colleague Karen Elder, who is currently the acting accountable officer. Therefore, we have plenty of continuity in relation to the public appointments functions of the office and in relation to the office’s governance at business manager level, for want of a better expression.

Where we had issues was in relation to the complaints-handling functions of the office. At the current time, there are no staff in the office who were handling investigations or supporting the handling of investigations under the prior commissioner, Bill Thomson. He had investigating officers and a team of other staff who supported that function. They have all left the organisation. That gives you some context. Clearly, that situation has been problematic.

One of the recommendations that we had from Deloitte—although I knew that it was an issue anyway—was that we had to fill the existing vacancies as a matter of priority. During the tenure of the commissioner who is currently off, we had recruited a new senior investigating officer and investigating officers. He left, as did two of the investigating officers. It is quite a small office. Overall, there are 12 of us, including me. Prior to that, the head count had been a bit lower.

We made a business case to the Scottish Parliamentary Corporate Body more or less immediately, in which we said, “Yes, we need to fill these vacancies and we know we don’t need your blessing for that, but we really feel that we need some additional capacity as well.” We made a business case to get an additional investigating officer and a corporate services officer.

One of the things that Deloitte had remarked on was the amount of excess leave that the senior management team were carrying. That is basically because, given the size of the office, we are all engaged in operational activities. We have to do work and roll our sleeves up, along with everyone else. We needed to free up some more time, however, to dedicate to the governance of the organisation, and I think that that was right and proper.

We also got an additional corporate services officer, which has proved very helpful to us. Whether or not that provides sufficient capacity is another question. The volumes of complaints are rising quite significantly, certainly in relation to complaints about MSPs and also, to an extent, in relation to complaints about councillors and board members.

I think—and Deloitte has recommended this—that we need to do further workforce planning. We are stretched at the moment, and we are carrying a backlog, inevitably, as we had staff vacancies during a period when complaints continued to come in. As I say, the volumes have been rising. We are working our way through the complaints as quickly as we can, but I think that there is at least a distinct possibility that we are likely to require additional resource.

The other thing to bear in mind—and, again, we will consult all our stakeholders on this—is that there has traditionally been an expectation that we should be able to get through complaints faster than we have done historically. I absolutely empathise with that. We will consult on key performance indicators for the office and we will come to the committee at that point. We will then try to gauge what the expectation of the public and stakeholders is about how quickly we should be able to get through complaints. We will take that on board as part of our workforce planning, to determine how many staff we require to get through the volume of materials that come to us.

I was the public appointments manager in the office, and I had a public appointments officer, who had been working part time. She is now acting up for me as public appointments manager. We simply could not fill her post, because we could not determine for how long that person would be in post; it all depends on what is going to happen with the commissioner, who is currently off. We have been carrying that vacancy, and that means that we are short of capacity in relation to appointments, too.

So, until other matters are resolved, you are unable to deal with that, simply because of the situation. You are acting commissioner, and someone is acting up to your previous position, which leaves a vacancy that is incredibly difficult to fill as no one would know how long they would be in post.

Quite so. It is quite an arcane area of work—it is quite specialist. Applicants would certainly need human resources qualities, and they would need to know a lot about diversity and inclusion, which is fundamental to boards. Also, it is a regulated public appointments process, and it takes a bit of time to develop a proper understanding of that.

However, we are all relishing the challenge. We are all working together as a team, and I am more than content with the attitude of the staff. I could not be prouder of them.

That is helpful.

There are a few fairly specific points on which I would benefit from your opinion, relating to requests that were made in the Deloitte report. The report contains a section where Deloitte has numbered some recommendations, along with the responses both from you and from others. Towards the end of that section, the report mentions engagement

“with the SPCB and Parliament to determine the reporting route for concerns about a Commissioner.”

Would you like to take the opportunity to comment on that? The management’s response in October 2021 said:

“Agreed although all we can do is engage with the SPCB following the publication of this report.”

As you say, you “have no locus” in respect of that. How did you feel about being asked to do something that was not your locus? Other than being able to ask about it, there is nothing much that you can do about it.

I have no issue with that, frankly. I recognise, I hope—and I hope that all the stakeholders I have engaged with recognise this of me and of the office now—that we are not some stand-alone organisation; we are part of a bigger picture.

09:45  

Clearly, the commissioner has to be independent in the exercise of her or his functions. However, primarily, the expectation is that that independence applies to things such as how we handle complaints, subject to directions from this committee or from the Standards Commission for Scotland. We absolutely need to be independent but, equally, the Parliament and the public have a right to be reassured about the way in which the office operates. There should be some measures in place to address, as they arise, concerns about the way in which the office operates. I have no issue with that recommendation, and I have been engaging with the SPCB throughout my tenure about what we might do.

Most recently, we entered into more formal talks about that. Although I understood what the recommendation was and have known about it for some time, the reports themselves were published only relatively recently. The section 22 report came out in December, and it was after that point in time that we began formal discussions with the SPCB around what we can do and how we can work together to ensure that our governance has the sort of oversight that people would expect it to have in the future.

To follow up on that, point 5.3 in the Deloitte audit report refers to the

“wider governance issues identified”

and recommends that

“the SPCB, in consultation with the Commissioner and other Officeholders, review whether the governance structure in place remains sufficient and appropriate.”

Your response said that you were

“happy to contribute to any consultation.”

As an independent commissioner, and with regard to stakeholder engagement, your role lies in contributing to that discussion rather than in seeking it out or enforcing it.

Of course—absolutely. Again, part of the issue is linked to the Paris principles. Clearly, organisations such as this have to be independent and seen to be independent or the public will not necessarily have trust in them. That is written into the legislation. I am statutorily independent of the Scottish ministers and not subject to direction or control by them. The same goes with the Parliament.

However, that is in relation to the functions of the office—that is, the regulation of appointments and how we handle complaints about MSPs. Governance is a different matter, and we would all like to see appropriate oversight of governance. The wider question is whether there are sufficient checks and balances in place for parliamentary office-holders at the moment. I am more than happy to contribute to discussions in that area.

That is very helpful.

One of the criticisms, which was quite strong, was that the services of the audit advisory board were dispensed with. What is the situation now with regard to the audit advisory board. Is an arrangement with it in place, or coming into place? Where are we at the moment?

I have been doing a lot in tandem. I re-engaged with the audit advisory board as soon as I came into post. It has therefore been engaged in the work of the office from May onwards—and engaged meaningfully. I will give the committee some examples. You will have seen the recommendations, but we had to reintroduce proper risk management policy procedures and a risk register. It assisted us with that, which is all in place now. We were also advised that we should have an independent internal auditor on board, and we also had assistance from the advisory audit board with that. It also assisted us with discussions with the auditor over the wider scope review. We are fully engaged with the AAB and have been since May. Its assistance has been excellent.

Good morning, Mr Bruce. I have a specific question. I get that there is a degree of uncertainty because you are currently in an acting position and a member of your team is currently backfilling your previous post in an acting position. You outlined the difficulties in being able to fill that post because of all the uncertainties. However, the organisation does not strike me as being awash with staff and it seems that additional staff members would be of value for it. I get that such staff might have to be on a temporary position, but for how many years could a temporary post be put in place for that unfilled position?

If matters resolve themselves for the acting positions that you and your colleague are in, it does not sound as if it would be difficult to redeploy any surplus staff to other jobs and tasks in the organisation. Have you made a bid to the corporate body to say that you could do with a three-year temporary post in the unfilled position and that, although it is specialist and training would be required, should the other matters resolve themselves, you could find a particularly important job for that person in the wider office, given the constraints that you have on your time?

It is probably helpful to make it clear that we advertised the post as being for at least a year but potentially more. We also spoke to the Parliament about the possibility of secondment. None of those routes was successful for us. It is a difficult market at the moment to get new staff on board. We have also been working through a pandemic while all that has been going on.

We certainly tried to fill the post. We were successful in respect of the other ones. The new people we have onboarded—we have three new investigating officers and a corporate services officer—recognised something about our values as an office, so we have done quite well in recruitment. I understand what you are saying, but the post is specialist and I am not sure that, at this precise moment, it would be the best use of resources for us to try to fill it, train someone up and then try to redeploy them into another area, because every post in the office is specialist.

Notwithstanding that, I have said that we intend to do further workforce planning, which is currently scheduled for March and April. We are talking about relatively short timescales. We recruited and inducted the new people in October—it is that recent—and they are now all working on cases. Their probationary period ends in March, and we have no issues with them. At that point, we will do the proper workforce planning and go to the SPCB with a proper business case.

Melanie Stronach, who I mentioned earlier and who is acting up for me, has already prepared an excellent forward plan for the office’s appointments and activities. We have a good handle on the resource that we will need for that. If there is still uncertainty, I will certainly take on board the suggestion that we might look to fill a post for, say, three years. If we have the spare capacity for appointments, I will certainly make use of it over that period.

I just wanted to make sure that the committee was not missing any barrier to filling that post. I thank Mr Bruce for clarifying the position.

Hello, Mr Bruce. It is good to hear that you have business plans and a risk register in place. I realise that you are in an acting position, but you have had a lot to do since last March and April. If the staffing and the position on filling that post stay the same, when will you be able to reach full compliance?

Are we talking about compliance with the directions from the Standards Commission?

Yes.

The commission confirmed to the Parliament in, I think, November last year that I have been fully complying with the directions since I took up post. Therefore, we fully comply with the directions.

That is great.

I am sorry, but I am not sure whether we are talking about the directions from the commission or the proposals in Deloitte’s audit report.

We have made significant progress in relation to Deloitte’s audit report. I have taken some notes on some of the things that we have in place already. I should add that I gave Deloitte an update in advance of its evidence session with the Public Audit Committee, so it knows where we are up to January.

We do not just have a biennial business plan in place; we also have a tracker, so we know what progress we are making against all the recommendations, in addition to the actions that I have introduced. There are other things that we need to be getting on with. We look at the tracker at the senior management team meeting every month so that we know exactly where we are, and it is discussed with all the staff every month so that everyone knows exactly where we are.

I have mentioned engagement with our AAB and the appointment of an internal auditor. We have re-established regular and meaningful senior management team meetings. The minutes are all available on our website, so it is all transparent: everyone can see what we are up to and where we are with things. We have a stable staff contingent for the first time in a long time, other than that one unfilled vacancy that I mentioned. The updated risk management policy and register are in place. We updated all our HR-related policies, and staff wellbeing was fundamental to our recovery. All those things were updated, staff were consulted on them and they have all been rolled out.

We have an advance draft of the investigations manual that was recommended, and that is now at version 4. It covers all the investigatory functions of the office. Angela Glen, our senior investigating officer, has done an amazing job on that, as well as getting through the day-to-day work. We will approach all our stakeholders to consult on that and on all the KPIs in the manual. We have made progress on a whole raft of the recommendations.

That is helpful.

You have a risk register, and you have a performance management framework in place. What about the training programme and the continuing professional development of staff? Is that in place as well?

Yes. It is extensive. Every staff member has their own individual action plan, and it is incumbent on all the management to be aware of that. We each have direct reports, so we are all aware of what that staff member’s plan includes and what they need to do. Their training needs are discussed on the back of the activities that they need to engage in during the following year. We then arrange training for them to ensure that they have the skills that they need.

We have had an extensive amount of training, both internal and external, over the preceding four months. The induction of the new people was comprehensive and, in order to do it, we built up a suite of materials that was not in place previously. For example, we anticipate handling more cases about sexual harassment, so we got in external training from Rape Crisis Scotland to ensure that staff understand how to engage appropriately with survivors.

Where do you get your HR support from, for recruitment, training and induction?

We do all that in-house. I have been engaged in public appointments, which is fundamentally about recruitment and selection, since the office was established. I know that that is to boards, but—

Sorry, but what does it mean that you do it in-house? Does it mean that your team do it themselves, or do you get support from professionals?

We do it ourselves. Melanie Stronach is an HR professional. She is accredited with the Chartered Institute of Personnel and Development, and I have about 30 years of experience in HR-related roles.

That is fine—so, you have somebody who is CIPD accredited.

Yes.

Thank you—

I am sorry to interrupt, Tess, but Sue Webber wants to come in on one of Ian Bruce’s answers.

Thank you very much for all those answers, Mr Bruce. We have heard a lot about training and induction, and you have reintroduced the review system. You have also mentioned recognising sexual harassment and engaging with survivors. I want to ascertain what systems you have put in place to allow members of your staff to feel confident about raising issues of concern regarding current working practices, governance and issues that they may be uncomfortable with in their working practice.

10:00  

That is a good question. It is a very small office, and we have engaged with staff. As I said, we have monthly semi-formal meetings with staff that are all about the work of the organisation in general, and we have senior management team meetings at which the SMT discusses how we are getting on as an organisation. Staff can contribute things that the senior management team should be talking about, and they can comment on, or question, any decisions that the SMT makes.

It is very important for us to take account of staff preferences. One of our team-building activities has involved the Myers-Briggs type indicators; quite a lot of the staff in the office are introverts and do not like talking in public meetings about matters of concern.

You will be glad to know that I am a red type.

I am trying to drill down into whether there is a safe space—an anonymous internal whistleblowing process—for reporting concerns. There is quite a lot of change and upheaval going on in your office, so I am wondering whether there is a secure place for that.

Yes, staff can report concerns anonymously, although no staff have taken up the opportunity. By far the majority of the staff prefer to have discussions with their line managers about issues that concern them—they have made that clear to us.

We formally consult staff on pretty much everything that concerns them, as well as things that do not. Depending on what organisation you belong to, it would not necessarily be obvious to you that what we consult on concerns staff, but we engage staff on every aspect of our organisation’s work, including what happens at the senior level.

I suppose that that is possible because you have a small team of 12, as I think you said, so you get to know and trust everybody quite well.

Indeed. We updated the whistleblowing policy, and all staff were consulted on that in June.

On whistleblowing, it is worth saying, as this is perhaps not commonly understood, that there is quite a high bar for making a protected disclosure. For a staff member to make a protected disclosure is quite difficult in and of itself; we are talking about criminal activity or covering up criminal activity. Having a whistleblowing policy in place is all well and good, but reference to the legislation is not sufficient. An organisation needs to have other reporting routes. That is why we are keen to engage with the SPCB about the nature of our governance and where staff might go outside the organisation if they have concerns. There needs to be a route for issues that do not have to meet the very high bar of involving criminal activity.

At present, is your office sufficiently resourced to do the run-and-maintain work that is required? A very serious and alarming picture was painted in the annual report. How do you feel right now?

I am unsure on that, to be honest. As I said, we have been taking stock of how we are getting on throughout, but there are many variables. There is the backlog and the additional volumes, and the additional complexity. Nonetheless, workforce planning is absolutely on our agenda for March and April, and all members of the senior management team know that we have to engage in that now.

As I mentioned, Melanie Stronach has done some work on that already in respect of public appointments. I should say that she is not without support—the corporate services officer we have brought on board is dedicated largely to supporting public appointments at this point in time, so there is support in place.

Angela Glen, the senior investigating officer, meets her entire team at least once a week. They have a case huddle, but they also discuss governance, how they are getting on and how quickly they are getting through the complaint volumes. They have recently had discussions about what KPIs should be set, at least for consultation.

Workforce planning is part and parcel of our current activity. We will draw that information together, take an initial view and ask our stakeholders how quickly they think we should be getting through the work. We will then have a clearer picture of what our capacity should be to meet everyone’s expectations.

The backlog alone will require a huge amount of person hours.

Yes. We have more investigatory hours, so we have more capacity than the office has ever had in its history. It is quite a small team, so adding even one additional investigating officer has added significantly to its capacity. They are all full time. Under the prior commissioner, people were on variable-hours contracts.

Things have been changing, and they are still changing. We will certainly consider all the variables, come up with a plan, go to the SPCB and cut our coat according to our cloth and what the SPCB thinks about our proposals.

So you are not confident. I am conscious of resourcing. You have cases coming in by the day, you have a backlog and you have a small team. You say that you are not sure how you can manage what you have plus everything that is coming. Basically, you need additional support.

It is perfectly possible that we will need additional resource. Ultimately, it will be a decision for the SPCB to make and it is for me to make a proper business case. We are talking about public money and we all need to bear that in mind. The office operated with a certain budget for a number of years and, as I said, there were some historical concerns about how quickly we might have got through the work. However, what is coming into the office has been and continues to be a changing picture. We all need to recognise that as well.

You touched on the SPCB’s input and support for resourcing. I note from your annual report that resources are to be confirmed because they are contingent on SPCB agreement and funding. Has there been any movement on that since the report was produced?

Yes. The SPCB has been very supportive over the period. It approved the business case that we made to fill the additional posts and subsequently approved the budget for the year.

Obviously, the annual report is historical. Our budget for the coming year has been approved, but we have more workforce planning to do and we might need to go to the SPCB for some contingency funding in relation to the year ahead if recruitment is approved and we go ahead with it. However, that would have longer-term ramifications for our budget.

You talked about getting the investigation manual, which is in draft form, to the point at which it will be shared. In the Deloitte report and the other audit report, there is much discussion of the need for an external investigator or overseer—an external second opinion. It appears that, on the back of the handbook, you would like the opportunity to have an internal review of previous decisions before moving to external advice. Is that right?

We have that under consideration. I am not ruling anything out. For me, that is potentially one of the most problematic recommendations, which is why I have said that we need to discuss it with the SPCB. We need its agreement on some funding to implement the recommendation.

We have already conducted an internal audit of all the statistical information that was produced over the past couple of years, because we needed to satisfy ourselves—and everyone else, for that matter—that we were reporting on a like-for-like basis. We provided the Standards Commission for Scotland with all the decision letters that were issued during the period in question, so it has had an opportunity to look at those.

I do not think that the legislation anticipated us ever finding ourselves in a situation like this. You are asking someone external to review the decisions of a commissioner when it was that commissioner’s place to make those decisions. Some of those complaints and investigations are historical, which has an impact on what records are available, witness recollection and so forth. There were no set procedures in place—that is why we need a manual—and the procedures that were in place were in flux. Therefore, what would an external person use to compare what was done against what, perhaps, should have been done over that period? What happens with the results of an investigation of that nature?

It has proved to be problematic for us. Yes, the recommendation has been made; the section 22 report says what it says. Quite a number of people who had complained to the office previously—even going back to Bill Thomson’s time—have come back to us to say that they need their investigation to be reopened because they were not happy with the conclusion. By far and away the majority of those complaints were not even made during the period that the auditor has recommended be looked at.

The final point on that is the potential concern about precedent. How many commissioners back does one go in order to have their homework marked, and who will do that?

Therefore, you are not saying absolutely no to an external adviser, or whatever they would be called. However, in some sense, that is not the question that is immediately in front of you, without a manual, and there are other factors that play into that with regard to the independence of the commissioner, the independence of the commissioner when those decisions were made and the protections that are built in, in respect of councillor complaints to the commission and in respect of MSP complaints to this committee. There is a structure, and the issue is how such a review would interrelate with that structure and, indeed, the statutory requirements of independence. Is that fair?

Yes, indeed—absolutely. As I said, I do not think that any of the legislation anticipated a situation like this, and I am not sure how the legislation would handle that sort of thing.

It might be worth noting that we have one precedent—although only to an extent—in that we had quite a significant complaint about the office and I commissioned someone to review that independently. However, that was a complaint about us.

That was not a complaint about a councillor or an MSP—it was a complaint that was levelled at the office.

It was, although, ultimately, going back, it connected to a complaint about a councillor. However, as the person who conducted the review said, it is really not my place to determine whether the commissioner’s decision was appropriate. The legislation just cannot handle that.

I want to ask your opinion on the external independent review. Do you think that the disposals that you give out with regard to the findings of a complaint are fit for purpose?

I am not sure that I understand the question. Might I rephrase it?

I suppose that the disposal of censure is an example.

We do not make recommendations about sanction. The role of our office is to determine whether the relevant code has been complied with—

Okay. I am sorry.

No, not at all.

Mr Bruce, to go back to something that you just said, when there is a complaint against your office, who investigates that?

I have rewritten the procedure for that, which has now been published, so there is a route of appeal to me. In the normal run of things, a complaint against us is handled by staff and can be escalated. Eventually, it would come to me for appeal. In the event that an individual is still dissatisfied, they have recourse to the Scottish Public Services Ombudsman.

So, you and your office investigate complaints against your own office.

Yes, but we are required to do that.

Then it goes to—

10:15  

It goes to the Scottish Public Services Ombudsman if people are unhappy. There is a complaints standards authority, which sits under the ombudsman, and the CSA has brought out a set of procedures for all public authorities to follow, including us. That is what we follow.

Thank you.

Councillor complaints are not a matter for the committee. However, there is a key relationship between your office and the Standards Commission for Scotland, and it appears to have broken down. Will you please share with the committee what work you have undertaken since taking office to restore that good working relationship? What progress are you making? What did you start doing to build the relationship, and what are the key milestones?

I got in touch with the Standards Commission straight away. All this stuff is about people, fundamentally. I got in touch with the commission’s executive director and chair immediately on taking up post. We had a really productive chat about where we were and what we were going to do.

As for key milestones, I now meet the Standards Commission twice a year—we instituted that almost immediately. That is a formal meeting, at which we discuss issues of mutual concern and interest. The staff of both offices are in regular contact with one another. Over and above that, the whole investigatory team and I meet the executive director and key members of her staff fortnightly, to have a discussion about what we have in the pipeline respectively, and about guidance.

The two organisations have worked alongside each other, and we sit as part of a bigger picture—the ethical standards framework in Scotland. We all have distinct roles to play. Equally, however, we want to support each other and other organisations to improve all that. Our offices worked together to assist the Scottish Government in revising the codes of conduct for councillors and board members. That was lots of work, but it was really worth while. Under the new codes that have come out, I can make determinations, and people understand what is expected of them. The Standards Commission has been able to produce guidance on the back of that. We work together on all sorts of things, and I would describe it as an excellent relationship.

So you would say that the relationship has been mended.

It is an excellent relationship. However, that is a commissioner marking his own homework—the commission would be best placed to provide you with an independent view.

I want to ask a few questions, although you have perhaps partly answered some of them in the course of your evidence. However, this is an opportunity for you to put on the record anything else that you feel is required.

From reading the annual report and from your comments, it is clear that there has been a lack of continuity regarding responsibility for the handling of MSP complaints. You refer to that in your statement in your annual report and accounts. You have already alluded to why that might be the case, but it might be helpful for you to put on record this morning why you think there has been such a lack of continuity.

We are a relatively small office, with a set number of investigatory staff. We have a prior commissioner who had a relatively hands-on approach in respect of MSP complaints handling, although some of that was devolved within the office. Clearly, that commissioner is not in post. None of the staff who handled MSP complaints are in post, nor have they been in post for a while.

The commissioner, who is currently on leave, engaged someone from the Northern Ireland Assembly to take on that work for a period. Ultimately, he had to go back to work for the Assembly when it was operating again, and I was asked to take the work on, which I did. That was meant to be a temporary measure—I was to be replaced by a senior investigating officer, but they left the organisation, so that never happened. Basically, I have been handling MSP complaints since I took them on while I was still the public appointments manager.

That is problematic for continuity. It is a very complex area of regulation—for want of a better expression—and I have had to learn on the job. I have not done so alone—I have drawn, and continue to draw, on quite extensive legal advice to inform me.

As the situation was problematic, that work has had to be devolved. I discussed that quite early on with our senior investigating officer. She has been fully trained to take on responsibility for MSP complaints, as has the entire investigatory team. Everyone in the office who is involved in investigations now handles MSP complaints, so there is continuity going forward. They have all been provided with the same legal advice, and the investigations manual covers exactly what we need to do in relation to MSP complaints.

I mentioned backlogs, which is an area in which we are doing fairly well. The committee will know from the annual report that we have a major complaint that is still under investigation, so I cannot discuss that. However, with regard to everything new that has come into the office, I checked yesterday and saw that the most aged complaint is from 15 December. In respect of MSP complaints handling, therefore, we are more or less up to date.

Are you suggesting that issues with continuity existed with the previous team and the previous commissioner, and that those have not been replicated with the new staff? Common sense can be a dangerous thing, Mr Bruce. You referred to corporate memory. If you had people with experience in investigating complaints, even if there were issues with consistency, and you subsequently have a whole new set of people, who are new to the organisation, to investigate complaints, you might think that inconsistency becomes more, rather than less, likely.

When we are talking about a lack of continuity in investigating MSP complaints, are we talking historically about the situation under a previous set of staff? Can you say a bit more about what you have done with the current team to ensure that there is consistency and continuity in how investigations take place?

Under the commissioner who is currently on leave, we lost all investigatory staff. Everyone and anyone who may have handled MSP complaints left the organisation. I took on responsibility for MSP complaints handling, and I have been doing that for roughly two years now.

Are you leading on every case now? Are you not delegating any of that work?

No—I absolutely am. There is an entire investigatory team that now works to me. Those staff are not all new; two of them have been in post for two years, and three others are new. All of them have been trained by me in MSP complaints handling.

Is that different from how the process used to operate?

As I said, loss of corporate memory has been an issue. I had no involvement in MSP complaints handling under the prior commissioner, so I am not entirely clear on how that was handled. I know that the prior commissioner personally took part in MSP complaints handling, and I think that it was devolved to one other investigating officer, or possibly two.

I do not want to dwell on that, for obvious reasons. I am trying to look forward as much as back. You have a team of five in total—as I think that you mentioned—and you lead on all complaints, but you delegate the day-to-day operation of dealing with the processes around those complaints, and the details of investigations, to your team.

Yes.

Your role is to ensure that there is continuity of process. Is that a reasonable way of looking at it?

Yes, absolutely. The buck stops with me in terms of decisions. As I said, we have an investigations manual and a full set of procedures that cover MSP complaints handling. I will give you an example. In the legislation, there is a set of tests that need to be met in order for investigations to proceed. We have an assessment form, and every staff member who takes on a new MSP complaint needs to go through each part of the form and provide reasons for their decision making in relation to whether a complaint should proceed. That form then comes to me, and I make the final decision on whether their judgment has been appropriate and what should happen with the complaint. The work is delegated, and it will continue to be, but I make the ultimate decision.

For clarity, has the investigations manual been in operation for some time, or is it new?

It is new—we are now on version 4. The auditors recognised that we did not have anything formal in operation, so our senior investigating officer had to populate all that. It is not as though we had nothing in place previously—it is fair to say that the prior commissioner had a manual, but it was not in operation. Some of the material from that manual has been brought forward, and some of it related to MSP complaints handling.

Thank you, Mr Bruce—I wanted you to put that on record for completeness in your evidence this morning.

Of course.

I was going to ask about workforce planning. You have probably covered most of my questions, but I will ask them in case you want to fill in any gaps.

Can you say a bit more about the workforce planning that you are undertaking to address the high staff turnover? You mentioned the lack of corporate memory. You have said a lot about stabilisation and recovery, but resilience is a key issue. As with any small organisation, it only takes one or two people not to be there to present a significant challenge.

You mentioned workforce planning. Can you link that to future resilience?

You are absolutely right—that is particularly challenging in an organisation of this size. I have made it clear to every section that I want people to circulate around the office. For example, I need at least one or two of the investigating officers to become familiar with public appointments work.

We always had failsafes in the office. I mentioned Melanie Stronach. In the office, we often speak—it is a bit of a joke—about what happens if such-and-such a person goes under a bus, and what we have in place to cover them. I understand, agree with and accept your point that we need to ensure that we have cover for all the different sections of the office, including failsafes, and our workforce planning will include that.

That will chime with MSPs, as we employ staff for one thing but, in reality, the demands of the office mean that we deploy them as necessary for other business needs. I think that MSP staffers would recognise that, too.

I will move on. The auditor found that,

“based on legal advice”

that you obtained,

“the ... operation of the investigation process (as amended in August 2020) and the assessment process does not comply with the required legislation.”

What confidence do you have that the MSP complaints that were handled during that period were assessed properly? You have spoken a lot about getting continuity and consistency for the future, but, looking back slightly, what confidence do you have that investigations were assessed appropriately?

At the time in question, I was assessing them, so inevitably I am going to say to you that I have considerable confidence in the assessment. Notwithstanding that, it is fair to say that I was not trained in MSP complaints handling—I had to learn on the job. I made it quite clear to the commissioner at the time that, if I did not know something, we would need legal advice on it.

The legal advice to which you referred did not concern MSP complaints handling; I hope that that gives you some assurance. It was about the handling of complaints regarding councillors and board members.

I am not really sure how to interrogate that—well, “interrogate” is the wrong word; I do not mean it in that way. I am not sure how to probe further in that regard, because of course you would give us that reassurance. You have put on the record today that, wherever you thought that there was a lack of clarity or you were not sure, you sought external legal advice as you went along. I suppose that there is a degree of reassurance in that.

Convener, some of my colleagues might want to expand on that point, so I will not hog this line of questioning. I anticipate that there might be some further questions in this area.

10:30  

That is very kind.

Before I hand over to Collette Stevenson, I will state the obvious, because it needs to be stated. Mr Bruce, when you were talking about devolving the investigations of MSP complaints to your staff, you were talking about devolving the process. The actual decision on whether there is a breach rests with you as an independent commissioner, in your role as acting commissioner, and those final decisions are always taken by you, based on all the evidence that is presented to you following an investigation. That would be right, would it not?

Yes—there is no question about that. We have an audit trail for all the decisions that I make in the office.

Thank you—I am grateful for that confirmation.

To follow on from the deputy convener’s questions, I want to ask about the MSP complaints that were dismissed as inadmissible during the relevant period and were subject to external re-examination. Will they be looked at again? If so, what progress has been made on that?

No. The recommendation relates directly to the directions that were issued by the Standards Commission for Scotland, which relate to complaints about board members and councillors. The recommendation does not relate to reinvestigating MSP complaints. The auditor did not raise any concerns about that.

I take it, therefore, that the door is firmly closed on that aspect.

We have not had a recommendation in that area. If the committee feels that those investigations should be independently re-examined, it would be open to it to issue directions to that effect.

My concern would be that similar complaints might come forward and that we might be dropping the ball if there is a huge issue in a certain area. I do not know whether you have a feel for whether that view was coming through strongly.

We are getting into quite tricky territory here, because we are talking about judgment. I mentioned earlier the idea of a commissioner marking their own homework. You are asking me for a view on whether the recommendations that I was making to the commissioner at that point in time should be re-examined. Clearly, I am going to say that I do not think so, because I was doing my best to make the appropriate recommendations in my assessment at that time.

Ultimately, the decisions about whether and how to proceed were the commissioner’s, and there has been a recommendation in relation to complaints regarding councillors and board members and whether they should be reinvestigated. The answer, in short, is that it would be for the committee to take a view on whether it feels that assurance in that area would be helpful.

It might help to note that the position became apparent because of questions that were being asked by our equivalents in relation to councillor cases that came to them. Our predecessor committee, in the previous session of Parliament—as far as you are aware, Mr Bruce—never raised questions with the commissioner in relation to MSP complaints.

No.

That is helpful.

I seek further clarity on something that you have touched on. What progress has been made on the backlog of MSP complaints? You referred to that in your statement, and it is mentioned in the preface to your annual report and accounts.

There is the very large complaint—the super-complaint, we call it in the office. I cannot talk about it, but the numbers are available. It is still under investigation. It is very complex and there are an awful lot of moving parts.

However, if we set that aside, we have had quite a few additional MSP complaints this financial year, so it looks like the trend is that those are on the rise. We have worked our way through all of those up to 15 December, so there is no backlog in relation to them.

The annual report and accounts show a steep rise in the volume of complaints received against MSPs. How is the office coping with the workload for that? How confident are you that they will be investigated fully in line with your statutory obligations?

The super-complaint is the main one. All staff are working on that at the moment as well as everything else. We have regular meetings to discuss what progress we are making on it but, if I go into detail, I think that we will be in difficult territory. I am not sure how long it will take us to complete that investigation and how much additional resource we will need. That is part of our workforce planning as well.

How does one put this? I am not sure that the super-complaint represents regular business for us. I think that it is a relatively rare event. In general, the trend is for an increase in MSP complaints but not an astronomical one. It just so happens that that super-complaint has posed particular challenges for us at a time when we might not have wished for them. However, I absolutely understand my responsibilities, as do all the staff. We intend to investigate it fully, as well as everything else that comes into the office. We do not set things aside because we are busy. That would just not be right.

Hopefully, lessons will be learned from the super-complaint that negate the need for the volume and concentration of staff on that aspect.

Indeed.

I am sorry to get hung up on the process, Mr Bruce. You lead on all MSP complaints, but you delegate the day-to-day investigatory responsibilities to one of a team of five. They are all fully trained in a new and refreshed investigations manual and encouraged to talk to each other and draw on each other for support. All that is in place.

When you get a final report from the investigating officer on your desk, it makes a recommendation about the complaint, which will almost certainly be admissible because it has got to that point. The report will show the investigating officer’s working and lay out the evidence. You, as commissioner, have to decide whether you will agree the recommendation and ratify or sanction it as the way forward or change the decision.

When you agree with the investigating officer and the recommendation moves forward, that is fine. However, there must be situations in which you do not agree with the recommendation that the investigating officer makes. That is okay; it is an important check and balance in the system. However, when that happens, what is the process for supporting your investigating officer with continuing professional development or a review of the case? What happens at that point? Is there a supportive learning experience for your investigating officer?

I am not asking for the numbers, but do you keep track of the number of times when you agree with the investigating officer’s conclusion and when you do not agree? Clearly, if there was an increasing number of situations in which the commissioner—any commissioner, not just you as acting commissioner—did not agree with the investigating officer’s conclusion, that might point to issues, weaknesses or challenges in the investigatory process.

I thought that that was going to be a straightforward question, but it might be a little bit more complicated now. However, it would be helpful for the committee to know the answers.

I am happy to talk to you about the operation of the office. Let us start with the first part of your question. Yes, there is a formal process in place in that a written report recommendation comes to me to decide whether I agree or disagree. Everyone in the investigatory team handles all the different types of complaints. They work through those, and I get a report every week in the form of an email, so I have a summary of all the cases. Some of those involve MSP complaints, so we will talk about those.

I provide my written response to the report, any draft letters that have been prepared and the email. That is all done on a sort of formal basis in writing. As I have said, we have an audit trail. When I feel that I need to discuss a report—I may disagree with some of the conclusions—we have various options. Sometimes, I might think that it is a team learning matter. The senior investigating officer, Angela Glen, and the team meet at least once a week, so I will join them for that meeting and go through all the cases, discuss where I might disagree with a particular decision and go through my reasoning.

The buck stops with me—I get that—but, equally, I am not infallible. Therefore, we would have a proper grown-up discussion about why I reached my conclusion and I would ask them why they had reached their conclusion. We will come to a settled view together on the appropriate response. We need to learn as an organisation and every day is a school day for us. We often get things in that none of us has ever seen before, and we need to take a view by comparing those with the applicable legislation. That is how we operate.

If I think that it is a matter for me to discuss with an individual, I will do that—sometimes involving the senior investigating officer, sometimes not. Am I tracking whether I disagree with people’s decisions? I am not doing that formally but, clearly, I will have a view on how people are getting on. I have every confidence in the people we have recruited, as it was a good recruitment process. I know for a fact that they have the required skills, but we must remember that they are just coming to the end of their probationary period and all this is relatively new to them. It would not be fair for me to start reaching conclusions about who is good and who is not at this point in time. However, I can say that their judgment seems pretty sound—that goes for them all.

This is quite important because, clearly, your team will be watching this evidence session and our exchange. If I were a member of your team, I would absolutely be watching it—get back to your work if you are watching it right now; watch it later. I was not casting aspersions on your team. My questions were more about checks and balances in the system and whether, if the data flagged up something that needed to be attended to, that might be due to a lack of clarity in the investigations manual or a lack of clarity in processes more generally. Therefore, for staff who are watching this, it is important to say that I was not casting aspersions on them. I am looking at checks and balances in the system and the processes that underpin it.

I think that you are saying that it is not the case that the investigating officer goes away for three months and comes back with a conclusion to put on your desk. There is a weekly review process, so no one is going to go down a tangential path in an investigation that you are unaware of. You take a more collegiate approach to investigations. Have I captured that properly?

Yes, very much so. I will go beyond that. We are learning as an organisation, and we are adapting our procedures all the time. That is in response to issues that come to us. I will give you one simple example. Those team meetings are not just for the purpose of reviewing cases. If something comes up and we think that we can do something better for the public on that, we change the way in which we operate. The tone of all our communications has changed since I came into post, but we constantly update our letters to meet what we think are the needs of the public.

Recently, someone whose complaint had not been upheld came back to us and said, “I don’t think I have been treated fairly, because I don’t think you looked at all the bits of the code that you might have.” I am paraphrasing a wee bit. We always do that, as we do not expect members of the public to know what is in the code, what is applicable to conduct and what is not applicable, but, because they had raised that concern in the chat that we had with them, we concluded as a team that we could make things clearer in our letters. We concluded that, even though someone does not say which part of the code they are complaining has been breached, we can assure them that we have looked at the whole code in relation to the conduct concerned in order to reach a decision, and we can explain why certain bits of the code are applicable. All our letters say that now, and that is how we operate.

10:45  

I have a couple of unrelated questions; I do not know whether you want me to cover those now or not, convener.

Please move on to those, Bob.

Thank you.

These last couple of questions from me are Covid related, and they concern the need for change in working practices. You will want to know what the level of satisfaction has been with appointment rounds on the part of panel and body chairs, as maintained through new ways of working during the pandemic. Your office is heavily involved in those appointments, and the processes had to be tweaked because of the pandemic. What has the level of satisfaction been among those panel and body chairs who have had to engage in that appointments process? What are their views on how it has been handled?

I think that it has been handled relatively well. Inevitably, all organisations had to be agile during that period, and it took the Government a wee while to put things in place that it had not anticipated that bodies were going to need. We were quite fortunate in as much as we had established Microsoft Teams for that side of things, because that was in the run of our work as an organisation. All that was in place before the pandemic hit, but it was not all in place with the Scottish Government. It was an incremental process.

However, I think that people have done relatively well, and they have been relatively happy about what has been put in place, with interviews being conducted remotely and so on. I anticipate that we will be using a hybrid model going forward. Generally, I am quite positive about public appointments and about how things have gone. Our more recent discussions with the Scottish Government have been very productive, and I am hopeful about the future.

I will not explore that further, but thank you for putting that on the record.

I turn to my final question. Your annual report and accounts refer to planned activity that was suspended or postponed due to prioritisation of other work—understandably so. Can you explain more about what work was delayed and when you envisage that the delays will be addressed? I would imagine that that was unavoidable delay, but can you say a bit more about where those delays have been and when you think that the office will be able to catch up?

I think that we have more or less caught up. Certainly, we have continued to fulfil the statutory functions, which are providing oversight of appointment rounds using public appointments advisers. That has continued unabated.

We had anticipated running some audits. They were not essential, but it is helpful to do that health check separately from the direct oversight that we provide. We usually do a collated report of applicant surveys, and we have not stopped running those—we are still running them on a round-by-round basis—and we are still feeding the results into the system, but we will not have a collated annual report of applicant views this year, simply because we do not have the capacity to do it. We had stopped surveying panel chairs and body chairs for a period—the period of the annual report—about applicant views on the application process and the contribution of the adviser. All that has been reinstated.

We have other activities in our business plan. As I have said, we will potentially need more resource for the public appointments function, and we have the unfilled vacancy. We need to sort that out if we are going to fulfil all our ambitions in that area.

The code of practice has been slightly delayed, but I expect to have that with the Government either today or at some point next week for a very final consultation. We have more or less agreed everything that we need to there. I am not concerned, and I do not think that the committee should be.

I have no further questions. I thank Mr Bruce for his evidence and for answering our questions this morning.

You will perhaps be glad to know, Ian, that we are coming to the end, but I wanted to pick up on a final question, or rather statement, in your report. I will quote from the final paragraph:

“I end by expressing my gratitude to the members of the Senior Management Team and to every staff member in the office. They have shown remarkable resilience and commitment to our work during an exceptionally challenging period. I am immensely proud to belong to such a dedicated team of people and grateful for both their positive attitude and their efforts.”

We have certainly heard today and seen from your report that there were challenging times in the past.

Ian, thank you for coming today and for your full and frank answers to our questions. I wish you—and, possibly more importantly, your team—all the very best going forward.

I now close the public part of the meeting.

10:50 Meeting continued in private until 11:24.