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Good morning and welcome again to the Review of SPCB Supported Bodies Committee. First on this morning's agenda is evidence from Kevin Dunion, the Scottish Information Commissioner. Mr Dunion will speak for a few minutes; I will then invite questions from the committee.
I will be brief. The committee has received my written submission, in which I set out my view that the freedom of information laws have been successfully introduced in Scotland and that, in my view, they reflect well on the care that Parliament took in shaping the legislation.
Your written evidence states that you agree with the SPCB that your office should be a stand-alone one and that another approach would compromise your role. What advantage is there for the public in retaining the existing structure and not moving your role in with other structures?
The advantage to the public is that they have a high awareness of the Freedom of Information (Scotland) Act 2002 and of their rights and the way in which they can access those rights. I would be concerned if that was diminished in any way. The commissioner is, and was meant to be, at the heart of enforcing people's rights. As I said in my written submission, one concern relates to the fact that I receive appeals concerning other postholders. The public might find it difficult to accept the independence of the commissioner and could question his willingness to use his enforcement powers against people with whom he literally sat round the table.
You suggest that a commission with a chair would "increase costs" and
I am not yet entirely clear about the SPCB proposals regarding, for example, the proposed complaints body. The only comparisons that I can make are with bodies elsewhere in the world. Some countries have an information commission, rather than a commissioner, which involves several commissioners with either a senior commissioner or a primus inter pares. Those commissioners have to reach decisions collectively. I have observed that that occasions great delay—because the commissioners can disagree on outcomes—and that decisions that are taken on a majority basis do not engender public confidence.
Your written evidence suggests that having a single office-holder
The suggestion is a response to the notion that office-holders should carry out some kind of stakeholder engagement. My counterpart down south has a similar group.
So you are talking about stakeholders just offering advice.
Yes.
Various suggestions have been made about the re-appointment processes for the various bodies for which the SPCB has responsibility. Your submission suggests that you are quite relaxed about the subject, but that you favour a single term of seven to eight years. Why do you favour that approach?
I do not have strong views on the matter. I went through a re-appointment process that I thought was handled pretty well by the SPCB, and if that process was to continue, I would be happy. However, inevitably, office-holders are aware that they have to leave after five years or seek re-appointment. A single term of seven to eight years would give an office-holder independence and a sufficient period of time to deliver the goods without their having to look over their shoulder and worry about either the impression that they might be giving coming up to their re-appointment or overstaying their welcome. In places such as Canada, appointments are made for periods of seven to eight years.
A number of witnesses have said something similar. I want to probe your answer a bit further. Is your opinion informed by experience? Did you feel that you were looking over your shoulder, or is your suggestion just a commonsense approach?
I did not particularly feel that I was looking over my shoulder. In this job, you have to be prepared to accept that you might have to go if someone does not think that you are doing a good job, even if you think that you are. You have to stick to your guns. My role is particularly adversarial at times, not least in my contacts with the SPCB, of course, and MSPs over MSP expenses. I simply have to get on and do the job—all the office-holders recognise that.
It might be less about feeling that you have to look over your shoulder and more about the office being in limbo because it has to accommodate planning discussions that it would not otherwise have to have.
That is true. In particular, if the office-holder plans to stay on but does not, the office might not be geared up to their moving. The post would not have been advertised, and there could be a period of limbo. If the office-holder knows that they will definitely go at the end of seven or eight years, the office can plan accordingly.
My question follows on from that. The future employment of some office-holders can be restricted. What is an appropriate period for such restrictions to apply, given that the existing provisions are designed to avoid conflicts of interest or allegations of corruption once an office-holder leaves their post?
Fortunately from my point of view, such restrictions do not apply to my post. Those conflicts of interest can be overstated, although I could understand why restrictions could apply to an ombudsman who works solely with complaints about the insurance industry or legal services.
The act that establishes your office provides for removal from office. Should the grounds for removal be set out in legislation?
Jim Dyer makes useful points in setting out how the removal process could be triggered. I understand why Parliament does not want to give away its capacity to remove a postholder who is clearly failing in their role or who goes well beyond what Parliament expects of them, but ground rules for removal need to be set out. That could be done fairly generally in legislation by leaving that to the discretion of a parliamentary committee.
You suggest that such a motion should require support from two thirds of all MSPs—rather than two thirds of MSPs voting—which could make removal from office difficult, particularly if there was a concern related to a political party, which felt obliged to abstain. Do you see that conflict and accept that, in general, two thirds of MSPs voting, rather than two thirds of all MSPs, is the democratic and correct requirement?
Scotland has statutes that provide for the alternative positions. It is up to the committee to decide which it favours. That the Information Commissioner can be removed only with the support of two thirds of all MSPs, and not just those voting, is not what I favour as a hypothetical; it is enshrined in the act that established my post. Parliament set that hurdle high for two reasons. In their evidence on the bill to create my post, ministers made great play of the role of an independent commissioner who determines what is in the public interest. At times, the commissioner's view might be different from that of some MSPs. It was recognised that the commissioner should be given that function and should be protected in undertaking the sometimes unpalatable role of determining between rival authorities or rival political parties what is in the public interest.
I was slightly surprised that you said that you did not have a view on the voting threshold, because your written evidence says:
I was not saying that I have no view; my view is that the act to create my post is well framed—I followed it as it went through Parliament. However, I am not positing a hypothetical. The reality is that the act that established my post says that two thirds of all MSPs must vote for a motion to remove the postholder from office. I favour that position over that in the legislation for Scotland's Commissioner for Children and Young People and the Scottish Commission for Human Rights.
The legislation that established your position gives you a certain legal status. Will you comment on how you view it in light of your experience in the post? Are there difficulties in the way in which it was framed? The opportunity might exist to amend the legislation. What approach would you favour if you believe that some form of alternative status would be more appropriate?
There are two issues, one of which my legislation touches on and one of which it does not.
That would be helpful. We will perhaps have to park that issue to one side. It would be nice if you could get all that into one sentence, but I am not sure that resolving the difficulties with the two pieces of legislation, with which I am familiar, is quite as simple as that.
One of the difficulties is that we are office-holders, but we are appointed on an extremely sparse contractual basis. In other words, the terms of our employment, if you like, are effectively on two sides of A4. You should compare that with the contract that we give to our staff and the handbook that goes with that contract. We have none of that—we have no proper terms and conditions, and there is no clarity about how terms and conditions can be discussed or debated.
In your written evidence, you say that you support the Audit Scotland recommendation that a separate committee be established to deal with office-holders' terms and conditions. If such a committee were established, would you see it fulfilling the roles that the SPCB currently undertakes?
Yes, in part. At the moment, the SPCB has too many things on its shoulders that it was not set up to do. It recruits, or helps to recruit, a commissioner; sets out their terms and conditions; pays them; and scrutinises their budget, or even tells them what should be in their budget. In some instances, it can direct them as to where they should set up their office. I do not think that the SPCB was set up to do that.
The issue was raised not just by you but by others who have given evidence to us. You will understand that, given that we have been charged with looking at streamlining processes, the notion of creating another committee does not come naturally to us. There is a contention that, as currently constituted, the SPCB is not an appropriate body for sponsoring these offices, which I think is what you are saying. You are leaning towards the creation of a different structure, with a committee and lines of responsibility. Have you given any thought to whether there might be changes to the current constitution of the corporate body to accommodate the criticisms or suggestions that you and other office-holders have put to us? That is not quite within the remit of this committee, but it is a consideration nevertheless.
Whatever the outcome of these discussions, change will not come at no cost and with no change at the other end. I have been here from the outset and, in my view, we are the foster-children of the SPCB—and not even particularly wanted foster-children. I think that we have been forced on the SPCB, or billeted with it perhaps. The chief executive has taken on the task pragmatically, saying, "Nobody has thought this through. We'll get on and do it." He did not have a staff member who was dedicated to, or recruited for, the purpose. If the SPCB is to take on a more formal, engaged role, that has a resource implication. Who will carry out that function? What is their job description? Will there be a dedicated member of staff? What would happen if there was a dispute between the postholders and that member of staff? Will a member of the corporate body be given special responsibility to engage with the postholders and with that process?
Is it your view that the SPCB is not the appropriate body or that it is not effective in doing what it is supposed to do?
It is not clear to me that the SPCB was the appropriate body from the outset. The SPCB was tasked with getting commissioners. In my files I have correspondence with Scottish Executive civil servants that dates back to the discussions about how postholders' budgets should be approved. It was thought—given that the budgets would be relatively small—that it would be unnecessary to require the Finance Committee to consider them one by one, so it was suggested that we simply tack them on to the back of the SPCB's overall submission, so that is what was done initially.
I will be frank. There seems to be a tension between the independence of your role—I do not think that there are any circumstances in which Parliament could direct you—and your suggestion that a parliamentary committee should somehow normalise your job. We have to wrestle with that tension. Given that you have a unique job and enjoy unique privileges, it might not be reasonable to expect a committee to deal with the terms and conditions of your post. There are few posts in relation to which a two-thirds majority in Parliament is needed to get rid of the postholder. You are in a unique position. Forgive me if you answered this question in your submission; I do not remember whether you did so. Who would you envisage being on the suggested committee? Whatever the SPCB's corporate functions, it is a political body that includes MSPs. Would the membership of the committee include MSPs?
Yes. I envisage a parliamentary committee that would scrutinise our functions, as happens with the Auditor General for Scotland. The difference between a parliamentary committee and the SPCB is that by statute I have authority over the SPCB, in that I can and do adjudicate in disputes about release of information—I have ordered the SPCB to order the release of information. If the SPCB were to say to me, "You should take a lighter touch. We will not give you resources for enforcement", it would not be unnatural for people to think that there was a potential conflict of interest.
We have heard from the postholders who have given evidence so far that independence is important and that very challenging responsibilities go with it in respect of employment of staff and so on. Is that a case for having a commission, rather than commissioners? That would remove the isolation of one individual's having authority in that area—a situation in which we are at the mercy of the quality of the individual commissioner.
That model is not included in either option that has been presented to us. For a single postholder such as me, it would be cumbersome and unnecessary to create a Scottish information commission. We would, I presume, have to create a quango-type board that would need a chairperson. The commissioner would be more like a chief executive, or would chair the board, but decisions would be taken collectively. I am not clear what the role of a commission would be in relation to the current set-up in which there is a single postholder with a fairly small staff.
The committee's role is to examine the options that have been presented to it, and to consider other options in terms of effectiveness, I presume. For the sake of asking the question as devil's advocate, and given that vulnerability is a key issue, is the role of individual postholder inappropriate for the task because it makes you vulnerable in the way that you have described? Are the vulnerabilities that you have identified worth it, because you are able to maintain your independence and focus?
I think your second point is correct. The common standard around the world is to have a single independent postholder as information commissioner. Some countries, such as New Zealand, still have ombudsmen, and a few countries have a commission in which decisions are taken by majority vote or cases are parcelled out among commission members, on which they reach a collective view. That is not particularly efficient, and it is not necessary for Scotland.
You argued that the SPCB is not the appropriate body directly to approve and scrutinise your budget. Clearly, however, your budget needs to be scrutinised by someone because it is public money. You suggested that the scrutiny is being done by the SPCB so that the Finance Committee did not have to do it. Would the Finance Committee be a more appropriate body to do the scrutiny?
The current approach does not work. In reality, postholders are given an indication that, if they submit a budget that is equal to the previous year's budget plus an indicative figure of 2 per cent or 3 per cent, it is likely that it will be approved by the SPCB as being a sum that could be presented to the Finance Committee.
Would an eight-year term help, in that it would enable you to manage such capital elements over a longer period?
Yes, that would help because we would be able to set out, say, two strategic plan periods within those eight years, which would mean that the replacement of certain items from time to time over a long period would not come as a surprise to parliamentarians, who would otherwise say, "I'm sorry, but to make this happen you have to reduce costs elsewhere."
Are you concerned more with getting a process in place than you are with which body is responsible for the scrutiny?
Yes. The SPCB could still have the scrutiny role, but that role must be much more formalised and explicit; it must be properly resourced and the appropriate systems need to be put in place to allow it to operate correctly.
You seem to support the SPCB's suggestion that you should produce a strategic plan that would be laid before the SPCB and Parliament, but with the caveat that that process should not give the impression of direction or control. Could you expand on that and say what exactly you mean? Also, how could direction be avoided?
Like any manager in public service, if I am to manage the organisation well, I have to have a strategic plan to satisfy Audit Scotland and my audit advisory board, so it is something that we would have in any case. The advantage of the strategic plan is that it sets out not only the headline tasks that people think of, but all of the other responsibilities, such as the risk management programme and the operational plan. I think that as much of that as possible should be in the public domain. It is important that that sort of ambition and direction of travel are taken into consideration.
Should that parliamentary committee, as you have suggested with regard to stakeholder engagement, have an essentially advisory role?
It should, in large part. Nevertheless, if I came up with a plan that required my staff complement to be doubled, it would not be unreasonable for a committee to say to me pragmatically that although that complement might be necessary to deliver on my plan, it is simply not going to happen. Of course, I would not expect that committee then to take the matter out of my hands and write its own plan that included a smaller staff complement. The responsibility must always lie with the postholder who, one would hope, would have taken soundings before reaching that point. It would be sensible for any system that is put in place to include provision for the reference group and for stakeholder engagement to ensure that a draft plan is issued for the views of officials and that we go into the final decision-making process with a well worked-up and discussed plan.
As members have no more questions, I thank you very much for your helpful evidence. It would also be helpful if you could submit in writing your proposals on legal status. If, once we have read the Official Report, we find that we need clarification on any other issues, we will write to you.
I very much welcome this opportunity to engage with the committee on its review of SPCB-supported bodies. In my written evidence, I reflect on the justification for establishing a commissioner for children and young people—the fruit of a 10-year-long campaign by children's organisations and an extensive inquiry by a parliamentary committee—and I argue that the reasons for setting it up still exist and that reorganisation at this stage would be disruptive.
Are there overlaps between your remit and that of the Scottish Commission for Human Rights?
There are obviously areas of common interest. The legislation for my post states that the commissioner's remit is
Can you give me an example of an outcome that you hope to achieve that could not be achieved by a merged body?
All our work on involving children and young people—our taking on board of their voices—shapes everything we do in the office and is the core of what we do, so we put a lot of resources into it. One of the differences between my role and the complaints bodies' roles, for example, is that they react to complaints, whereas my role is much more proactive; it is about getting children and young people's issues on the agenda and ensuring that decision makers take them seriously. It would be difficult to maintain that focus, take it forward and give it all the resources that it wants when there are resource pressures everywhere.
What added value does your post give to children and young people in Scotland? You say in paragraph 4.3 of your written evidence:
I have addressed it in a number of different ways. For example, our responses to consultations are always couched in terms of the rights of children. All our responses have a preamble that explains the context of children's rights, what they mean and why they should be taken seriously, and they analyse matters in terms of children's rights. We produced the children's rights impact assessment tool—the CRIA—which the Scottish Government has used to analyse some of its proposals. We use it routinely to identify positives and negatives in proposals. It has also been taken on board by other children's commissioners' offices internationally. For example, I have spoken about it in Strasbourg, I will speak about it in Austria in the next couple of weeks and it is to be translated into German.
I have seen much of your work and it is very good—the cartoons that illustrate the convention's articles are particularly good. However, why would not a merged rights body be able to do exactly the same work?
We must have a body that focuses on children and young people as a priority and which can spend resources on developing and doing the fun things that I described. If a rights body were to replicate everything that we do, keep all the staff and do all the awareness-raising outreach work, it would not save any money. The same functions could be performed with the same effort under another banner, but it would not save any money. Furthermore, such a body would have to ensure that it took on the issue of the identifiable individual and the relationship.
But if there were a specific commissioner for children and young people within that body, would that not still work?
All sorts of configurations are possible. As Kevin Dunion said, the point is that there is no clarity about what is being proposed.
I feel that you have overstated the commissioner's role in order to make your case, and I am not sure that that is particularly helpful. No matter how effective they are, it is simply not possible for a commissioner to engage with all young people.
I am sorry that you feel that, in my enthusiasm, I have overstated my role. Obviously we cannot engage in an individual relationship with every child, but we can create a situation in which they recognise that someone is speaking up for them. They respond to that—and I have seen that response when, for example, I have engaged with groups of asylum-seeking children, children with disabilities and those in other situations. They like the fact that an identifiable person is speaking for them.
I recognise your enthusiasm, which I share. It is not unique to those who are committed to the current structure, with young people and children being given a voice through the commissioner post, and all bodies that work with young people recognise the power of proper engagement, as opposed to tokenism. That is true across the equalities field.
The function is recognised internationally, and by far the greater number of organisations have an identifiable or separate institution for children. The current set-up makes it possible to tackle the difficult things from a child's point of view. Our role is not just to get the things that children want on to the agenda—that is important in itself, and we have been doing that—but to tackle the difficult aspects.
They do not necessarily come from all children's voices. That is the challenge of the post, as I said when I talked about your overstating the role. I do not want to get into an argument about anonymity, but sometimes not having anonymity allows other victims to come forward.
The case has yet to be made as to how changing the present system will benefit children and save money. We are a very new organisation that links well with international children's commissioners and the other children's commissioners in the United Kingdom, all of whom have separate offices. Scotland has just been commended by the United Nations for setting up the office, so it would be strange to change it unless there was very good reason for doing so—and the case has yet to be made as to why we should change it. The organisation is new, so can we not carry on and establish ourselves, rather than have another reorganisation that will distract from the significant issues that must be dealt with?
I hear what you say about the relative newness of the position and your desire for more time, but we are faced with the slightly difficult situation that, for a variety of reasons that do not necessarily emanate from your office, the Parliament has requested us to examine all the SPCB-supported bodies.
I have examined international models and analysed them as far as possible from the information that is available in English on various websites and from my personal knowledge. I am not aware of anywhere that has a proactive commissioner role set within a wider body. As I said, there are two examples of an ombuds role that is set within a wider body, but that is a bit different.
You raise the issue of children's rights as opposed to adults' rights. That reflects your submission, which talks about tensions between those rights. In the overall human rights landscape, tensions will always exist between various groups—whether they are adults and children, the young and the old, employers and employees or asylum seekers and those who have been on our shores for longer. We accept that, but the concept of human rights is still indivisible, so when you refer to "an adult-centred body"—I presume that you mean the Scottish Commission for Human Rights—is that slightly bogus?
There are of course tensions and different voices. The difference is that children are vulnerable, have developmental needs, lack political power and do not have a vote. Their voices are the most likely to be set aside as being immature and not fully formed. Even if children are listened to, their views might not be given appropriate weight. Children are different from the rest of the population, who have rights that involve tensions.
I do not necessarily disagree with that, but where does the idea come from that the Scottish Commission for Human Rights is an adult-centred body? What is the evidence for that? If that is the perception, perhaps that is because your office provides a specific commissioner for children and younger people. If your office did not exist, perhaps the idea that the Commission for Human Rights is an adult-centred body would not be held.
I do not want what I said to be taken as a criticism in any way of the commission. I know its personnel and I worked with some of them for years. Can we take that for granted?
We take that as read.
The body is very new and is establishing its profile. The comment is more about the conceptual basis. There is a lot of work to be done on human rights and, given the calls from the different constituencies, the demands on the Scottish Human Rights Commission will be absolutely huge. The fear is that, as a result, the children's angle will be squeezed out by louder voices.
I hear what you are saying. One of your concerns is that young people and children will not be able to engage with this adult-centred body, but could not a merged rights commission engage with children quite easily? I accept your earlier point that none of us can become children again and that we cannot rely on our memories of childhood. However, with all due respect, I point out that you, too, are not going to become a child again and that you, too, cannot rely on those memories. Short of appointing a child as commissioner for children and young people—I presume that that is not what you are suggesting—we will always have to rely on adults to fill the role. Why could a merged body not do so?
Since the beginning, I have made it clear that I am not cool and that I am not trying to be cool. I know very well that I need to listen to children and young people from different constituencies. However, something that we have learned is the effort that has to be put into doing that properly. For example, we have done national consultations with and have involved young people in different projects, and our three standing groups—a reference group, a young persons health advisory group and a care action group—have taught us a huge amount about engagement. As a result, we have changed our models—
But why could the same not be achieved by a merged body?
Reflecting on what we have done, we have realised more than ever the resources that are needed and the focus that is required to do that work properly and effectively. We have followed that learning curve. There will always be a temptation to eat into resources for children to satisfy adult needs, and that is what I am afraid will happen in this case.
I am afraid that I am going to worry the same ball of wool, but I will try to ask another question, too. I speak with the natural authority of a father of two teenage sons who do not identify with anything that he says. However, their experience of dealing with adult bodies has varied, depending on the way in which those adult bodies have responded.
You asked about the evidence base for our views on the ways in which children identify with adult bodies. On the one hand, complaints bodies—ombudsbodies, for example—tend to be approached not by children, but by adults on behalf of children. It has often been said that the European Court of Human Rights—which is regarded as an adult body—is not approached by children.
I move on to the questions about governance and terms and conditions that we put to Mr Dunion. It is suggested that the independence of office-holders can be undermined by their having to apply for reappointment. In your submission, you agree that one term of seven years—the same as in Wales—is appropriate. Why have you taken that position?
There is a fairly unanimous view on the issue. An office-holder should have a term that is long enough to enable them to get through their initial learning curve and to do things, but someone who is in a relatively powerful position should not hang on too long and become tired on the job. A term of seven years gives people one year to get their feet under the table and time for two three-year plans. As Kevin Dunion said, it allows them to carry out succession planning in a constructive way, without question marks around whether there will be a second term.
A number of office-holders are subject to restrictions on their future employment; I know that you do not wish to be reappointed. What do you consider to be an appropriate period for such restrictions, given that the provisions were designed to avoid conflicts of interest? I do not know whether you have another job.
That is an interesting issue, because there are no restrictions in the legislation to which I am subject. I have told staff and other stakeholders that I will keep a low profile for six months after I have left the job, because I feel the need to let my successor establish themselves. I have a background in both the academic sector and the voluntary sector, but it would be a bit strange for me to go job hunting in organisations over which I have jurisdiction; I could investigate any service provider for children. For that reason, I have decided not to seek a job at the moment.
The Commissioner for Children and Young People (Scotland) Act 2003 provides for removal from office, includes grounds for removal and sets the voting threshold at
That is an interesting issue. I do not know whether there is a quorum for the Parliament—I assume that there must be, but perhaps there is not. I can envisage a scenario in which, if people wanted to abdicate responsibility for a difficult issue, the two thirds of members who voted would not amount to many people. Further thought needs to be given to that issue. I tend to agree with Kevin Dunion that it would be better if the threshold were two thirds of the whole Parliament, but I acknowledge that issues have been raised in that regard. If there is no quorum and the threshold were two thirds of the members who voted, there could be difficulties in some circumstances.
There are quorums in committees.
In the act that established my post, the grounds for removal are that the office-holder is not carrying out their functions or the Parliament has lost confidence in the person. For the sake of natural justice, there should be a forum in which such propositions can be put to the office-holder and they have an opportunity to respond and defend themselves. I suppose that, strictly speaking, if the Parliament makes the decision, the office-holder should be able to address the Parliament. I do not know whether that is possible; I have not thought the matter through and I have not studied the standing orders of the Parliament.
Office-holders have told us about difficulties with their legal status. Will you describe practical difficulties that arise as a result of the legal status of your appointment? Do you favour an alternative approach?
I have been raising the issue since before I started the job, because as a lawyer who is not a corporate lawyer I know what questions to ask but do not know all the answers. When I compared the Commissioner for Children and Young People (Scotland) Bill with the Children's Commissioner for Wales Act 2001 and the Commissioner for Children and Young People (Northern Ireland) Order 2003, which preceded the Scottish legislation, I noted that the approach in Wales and Northern Ireland was to make the commissioner a "corporation sole", which means that the office has corporate status but only one person is a member of the corporation. That means that when the person who entered into a contract leaves, the contract continues with the next commissioner.
Some discussion on that work has obviously been undertaken. The situation sounds similar to that of members of the Scottish Parliament, although there are obviously provisions for dealing with our staffing arrangements in the unfortunate event of our untimely demise. Is there nothing like that for commissioners?
No. We have had discussions and correspondence with the SPCB on the issue. I think that the SPCB is talking about dealing with the matter contractually and by assigning leases and contracts. However, that will not address all the issues. When we started up and tried to set up bank accounts, a few of us had to try to explain what our legal status was and what that meant for holding a bank account. It is not clear to people what our legal status is. Although some issues could be addressed on a contractual basis, that would not deal with what happens in the event of the sudden departure of the commissioner—that is very high on the risk register for our office—or the issues about the office-holder's liability and indemnity. We need a comprehensive response rather than a piecemeal approach. At the moment, there is no supporting philosophy for the office that allows people to go back to first principles in dealing with all the various eventualities that arise that—as tends to happen with human life—were never thought of previously.
I will move on to another question. The corporate body considers that the provisions in the Scottish Commission for Human Rights Act 2006 meet the necessary accountability provisions without interfering in the functions test. Do you agree with that? Do you consider that any further protections are necessary?
I have no problem at all with a transparent and robust process for scrutinising and approving budgets. I have never had a problem with that. Although questions initially were raised because my legislation requires the SPCB to pay all expenses that are properly incurred by me—obviously, that raises the blank cheque scenario—I have never asked for a blank cheque and I have never exploited that provision. I would be very happy with a process of proper and robust budgetary approval.
Are you content for that process to be conducted through the SPCB?
I do not have the tensions with the SPCB that some office-holders have. Because the SPCB is not regarded as a service provider to children, it is not a body for which I have an investigative function. If anything, the children's commissioner has interests in common with elected members. As I explained in my evidence to the Finance Committee's inquiry, there is a sense in which I am expected to be the Parliament's eyes and ears and to bring issues for the Parliament to decide on. I do not have the jurisdiction that the Parliamentary Standards Commissioner, the Scottish Public Services Ombudsman or the Information Commissioner have, so the SPCB's remit would not be a problem for me. The question would be about having consistency across the commissioners' offices.
Despite that, you refer later in your written evidence to a potential tension. You are not against being required to lay strategic plans before the SPCB, but you appear to be concerned about having to accept the SPCB's comments on the plans.
It is not so much accepting comments as having to act on them. The Scottish Commission for Human Rights Act 2006 is fine in that respect, because it refers to inviting comments but does not say that a plan must be changed because of them. If a strategic plan was subject to political control, that would certainly raise questions about the independence of the office concerned. In fact, one of the reasons why the Children's Commissioner for England does not meet the standards for membership of the European network of ombudspersons for children is because of the commissioner's lack of independence, since ministers can direct the commissioner to do certain things.
The extension of that is that you have reservations and concerns about a comment process on strategic plans that results in a direction. Nevertheless, the issue of finding the resources to meet the plans remains, so there is a second interface. Even if we accept the proposition that there are difficulties and tensions in creating the possibility of a direction in relation to strategic plans, there is nevertheless an implication that, if Parliament did not have the power to direct, you might—I put this more as a question than a statement—argue that the SPCB should not necessarily have powers to set budget limits, or you might resist that.
I reiterate that I do not think that anyone should have a blank cheque for public funds. This point is also relevant to the issue of children's vulnerability, but complaints bodies such as the SPSO and the Information Commissioner, as Kevin Dunion explained, respond to what is happening out there, so there is a quantitative issue that they do not control.
As we have no more questions, I thank you for your time this morning. If, once we read the Official Report, we decide that we need further clarification of certain issues, we will write to you.
Meeting suspended.
On resuming—
I welcome Gary Womersley, who is the chief officer of Waterwatch Scotland and Jim Black, who is its head of customer support. Thank you for your submission. I invite you to make an opening statement, after which we will move to questions from the committee.
Thank you, convener, for inviting Waterwatch Scotland to give evidence. Waterwatch Scotland is a national complaints-handling authority for all domestic and non-domestic water customers and the consumer representative body for the water industry in Scotland.
Thank you for that statement. The committee wishes to be absolutely clear about the Government's proposal. I understand that only Waterwatch Scotland's complaints-handling function would go to the ombudsman and that Consumer Focus Scotland will take over the role of representing water customers. Will you expand on that and set out the issues that may arise for the consumer if your existing functions were to be split?
We gave many examples of that in our submission. I will refer briefly to some of them. A large part of the added value that we bring as a complaints-handling or ombudsman organisation is our holistic approach. We are not concerned only with processes, systems and so forth, so we can concentrate on the substantive issues. Instead of looking at the merit of a complaint on an individual basis, we use our complaints-handling data as a robust and credible evidence base to feed information on the complaint into the processes in which we participate. We can feed that information to ministers, other stakeholders and so on. For example, following our investigations, what appears on the face of it to be a complaint about Scottish Water—or another of the organisations that we police—often turns out to be a complaint not about the organisation per se but about Government policy or the practices of other stakeholders.
What discussions have you had with the Government about its proposal?
We welcome coming to committee today. It is the first time that we have been asked to give oral evidence on the matter. Previously, we made written submissions to the Crerar review and the Sinclair fit-for-purpose complaints system action group.
Much as we would like to be the Government, we are not it. What discussions have you had with the Government on the proposal, including with officials?
The only communication that we have had has been with our sponsoring division at Victoria Quay. We also made a submission to ministers that was no different from the one that we made to the Crerar review.
In your written evidence, you refer to the "significant role" that Waterwatch Scotland plays in improving customer service and state that second-tier complaints have reduced by 65 per cent. What have you done to achieve that reduction and how would the proposed transfer affect that work?
For the sake of objectivity, I feel obliged to say that a transfer might not, in itself, have any impact on that figure provided that appropriate systems, balances, checks and safeguards were in place to ensure that that was the case. Thinking aloud, I suppose that many of those could be somewhat cumbersome. The advantage that we have at the moment is the synergy that is derived from complaints handling and consumer representation being under the umbrella of the same organisation. There has been discussion about providing a modicum of safeguards through memoranda of understanding and ensuring that any new legislation is drafted accordingly, but those mechanisms would be put in place to endeavour to maintain the synergy that currently exists within one body.
I have a question on the funding issue that you raised. You said that Waterwatch Scotland is not a taxpayer-funded body but is funded by a levy on industry. Can I take it that you mean that you are funded by Scottish Water?
Ultimately, we are funded by customers. At present, most people are customers of Scottish Water.
So you are funded by water rates. Is that correct?
Yes. Ultimately, we are funded via water charges.
In that case, would it be fair to comment that it is slightly semantic to say that you are not funded by the taxpayer?
It would be and it would not be. There is a difference; it may be subtle, but it is nonetheless worthy of being flagged up. Ultimately, we are paid for by the organisations that we police. For example, if we requested more resources because of the number of complaints or issues that were being generated in the industry, the bodies that gave rise to those issues would be the ones required to give us the additional funding.
So is there a degree of leeway within your funding?
There is a linkage, yes.
I said leeway, not linkage. Do you not have a set budget from year to year? How does it work?
Unfortunately, we cannot require the various organisations, but there are systems: balances and checks. Any budget that we propose must be approved by ministers, but it is paid for by the water industry.
I will press you on the questions that the convener and deputy convener asked. We have the Government's views and those of the Sinclair review but, from your evidence, I am not clear what benefit would arise to the consumer from splitting your functions. Will you expand on that? Do you share or have reservations about the view that a benefit would arise?
Currently, there are synergies—I would also say efficiencies, but there are certainly synergies—with the complaints-handling and customer-representation roles being in one organisation. I must respect the fact that, if those roles were split between various organisations, mechanisms could be put in place to maintain those synergies, although I dare say that we would need to watch that those mechanisms did not become overly artificial or cumbersome. Therefore, for the sake of objectivity, I feel bound to say that the same means could be achieved on paper. I would prefer others to comment on whether that would be as efficient or provide the synergies that we currently enjoy, but it might be somewhat hard to achieve the same level of efficiency.
It is not the function of this committee, but I am trying to get both sides of the argument in my head. I apologise for this, convener. Obviously, we have nothing to do with Consumer Focus Scotland, but it might be important for committee members to get your view of the other side of the coin. You appear to have some reservations about the split. Let us be blunt. Are you concerned about the other part of your function going to Consumer Focus Scotland? Is it the case that getting rid of your organisation will not necessarily benefit the consumer? What is your view about Waterwatch Scotland being merged with Consumer Focus Scotland?
Whether it is Consumer Focus Scotland or any other body, the general argument is that I remain to be satisfied that any mechanisms that are being proffered would maintain the current synergies. I accept that there are mechanisms that can be put in place, but an element of that synergy would be lost at the day-to-day level, which is where the bulk of the advantages of our being under the same umbrella are enjoyed.
I have a final question on that. If the complaints side comes within the SPSO, that will have to be funded out of the Parliament's budget. At present, you are funded by a consumer levy. Will it be tenable or practicable to continue the consumer levy if your functions are merged into an all-consumer body?
With respect, the question whether that will be tenable or acceptable is for others to decide.
I am second-guessing you, but I pick up the feeling that your concern about separating the specific complaints-investigating role from the systemic investigating role arises from the fact that that would mean that you could not share the evidence that had been gathered from the specific complaints. Perhaps Mr Black, as the head of customer support, might be better placed to answer this question. Can you think of any example of a systemic investigation that you have undertaken as a result of individual complaints?
Yes. We have published five or six "in the public interest" reports, as we call them, on issues such as those at Peterhead or Kingseat in Fife. Specific complaints had been made that raised large and generic issues. We subsequently made recommendations that were accepted in full by Scottish Water or, in one of the other cases, by Business Stream.
You suggest that you do not see how information could be shared if functions—specific individual complaints, systemic complaints and customer representation, as you call it—were separated. Would it be impossible? Or would it simply require someone—this committee, I imagine—to ensure that specific procedures were in place so that information could be shared?
We asked the SPSO and Consumer Focus Scotland how they operate, but it was unclear what information went from the SPSO to assist Consumer Focus Scotland in its operations. I am still unclear about how such things will pan out and I agree that they may be a matter for the committee.
As I said earlier, I do not think that what you suggest would be impossible. I do not want it thought that I have gone on record as saying that it would be. It would be possible, and it would certainly be practicable to put various mechanisms in place, but those mechanisms would be put in place to try to maintain the synergies that we already enjoy.
What happens when you decide to undertake a systemic investigation as a result of individual complaints? Does a pattern emerge from a number of cases? Do case workers flag that up? If so, I presume that that is one mechanism by which two separate organisations could still undertake the work.
Various things can happen, and the example that you give is a common one.
I have two final questions. You mentioned your power to make statutory recommendations. As far as you are aware, how does that power differ in its practical effects from the existing powers of—for example—the SPSO?
Some of the powers that the SPSO currently enjoys are probably not much different from ours at a practical level. However, the power to make a statutory recommendation does not involve simply that power itself, but the statutory procedure that is in place when we make such a recommendation. That relates to what ministers and various other stakeholders are required to do, and, although they could ultimately agree to disagree with a statutory recommendation, it is—dare I say it—a fairly weighty and onerous mechanism, and I suspect that many organisations that are subject to it would not take it lightly.
And the SPSO, as far as you are aware, does not have such a process?
To go back to the start of my response, I imagine that the mechanism of being able to bring individual reports before Parliament has that name and shame factor—if I dare to call it that—that I imagine many public sector organisations would be keen to avoid, so, on a practical level, it is not dissimilar.
You mentioned that you try to solve things quickly when they are brought to your attention. I see that your target for second-tier complaints is completion within 35 days. How would that target be affected by a merger with any other body—for example, with the SPSO?
Any change might not in itself encroach on that target, but that is subject to various management and micromanagement decisions. It would be remiss of me to speculate too much in that regard but, provided that our current complaints-handling role was not diluted in any way, any transfer of those to any other body would not necessarily in itself lead to a more advantageous or disadvantageous position—subject, however, to the managerial processes and systems put in place. We could be set up within any new body as a water industry division, for example, and we would still derive many of the benefits of being a fairly small, fast body, but there could be myriad other ways to operate the organisation. It is not really for me to comment on that.
The two models that the Scottish Parliamentary Corporate Body and the Scottish Government have put forward are designed to meet the Sinclair report's proposals to simplify public service complaints handling, and to make it more responsive and consumer centred and less bureaucratic. Will it benefit the consumer to have a single body for complaints?
I accept that there are possible advantages to such an approach. However, in the context of the complaints-handling landscape that was described in the Crerar review, I would have thought that making a complaint about the water industry is one of the simplest processes. We were set up to go live from 2006 as a one-stop shop for complaints handling and customer representation in the water industry in Scotland. It is for other people to determine whether there would be advantages in the proposed approach.
I think that most politicians who have been in local government have encountered constituents who went to the wrong complaints body, for whatever reason, and were told that they should have gone to the council or wherever. How often do members of the public complain to the wrong body? Can you understand how frustrating that is for people?
You asked whether there could be advantages in having a one-stop shop. Yes, there could be advantages. However, since we were set up I think that we have received two referrals from the SPSO of people who went in error to another organisation instead of to us. We are fairly well signposted. Signposting for the target audience—if I dare call it that—can create many of the advantages that could be gained from having a one-stop shop.
As you know, there are proposals to streamline the process. The SPCB has proposed the establishment of a complaints and standards body and the Government has proposed an expanded role for the Scottish Public Services Ombudsman, to include complaints about Scottish Water and complaints that currently go to the Scottish prisons complaints commission. What are your views on the two proposals?
I do not want you to think that I am making only negative comments; there could be many inherent advantages in having a single body—I would not kid anyone that it was otherwise—particularly in respect of complaints handling. The kudos or gravitas that a complaints-handling organisation is perceived to have contributes greatly to its success, so setting up a single, inherently significant body would facilitate the complaints-handling process. The body would have greater influence and clout—certainly at a political level. However, such advantages should not be secured at a cost of eroding benefits that are currently enjoyed. That is ultimately what we are flagging up. Advantages should not be secured to the detriment of other aspects, which might be lost in the transfer.
The Government has proposed that Consumer Focus Scotland take over the role of representing water consumers. In your submission, and in your answers to members' questions, you have drawn our attention to the need to retain a robust customer representative role. How would the proposed split impact on Waterwatch's complaints-handling functions and capability? You have answered the question to some extent, but will you expand on what you said? We need to be clear about how your functions would be split and about the difference that splitting your functions between Consumer Focus and the ombudsman would make.
Splitting our functions would make a difference because currently the two elements are part of one organisation and are linked by internal systems and mechanisms—they are in physical proximity to each other, if nothing else. There are potential disadvantages that would have to be considered and, hopefully, accommodated. Safeguards would have to be put in place to ensure that the synergies that are currently enjoyed were not diminished. A memorandum of understanding could require the two bodies to act in a certain way or to attend the various groups and policy forums that Waterwatch Scotland currently attends. The ultimate concern is that nothing should be lost in the transfer.
What proportion of your budget goes to the complaints side? If you cannot tell us now, can you supply us with that information in writing?
I would prefer to make a written submission on the issue. Earlier, I referred to the two parts of the organisation, which gave the impression of an artificial split that does not exist in reality—to a great extent, they have a common footprint. The bulk of our budget relates to the complaints-handling function. At this stage, it is hard for me to identify the element that goes to customer representation.
Are some of your staff responsible specifically for handling complaints, or is there more of a mix?
We have a customer support section, which deals with individual complaints on a day-to-day basis. The section and other staff who wear a customer representative hat also seek, through engagement with stakeholders, to identify and ameliorate issues and to prevent them from recurring. The boundary between the proactive aspect of complaints handling and customer representation is quite fuzzy. It is hard to put them into discrete packages or to say where one finishes and the other starts.
Can you suggest legislative changes that would improve the operation of the complaints-handling function of Waterwatch Scotland and the service that it provides to complainers?
Not necessarily, but I have been given no indication of what would happen to the post-competition private sector element of water complaints if the public sector element went to a new body. That is one lacuna of which I am aware. I hope that over time my concern about that will be assuaged.
Waterwatch Scotland consists of a convener and five regional panels; the convener is responsible for dealing with complaints. What are the benefits of that governance set-up?
We have a fairly hybridised governance structure. We work as a corporate body. Complaints are handled in the name of the convener, who has an input, in much the same way as public sector complaints are handled in the name of the Scottish Public Services Ombudsman. However, it must be recognised that the corporate entity deals with the bulk of complaints. An advantage of the set-up is that one person is accountable for the complaints-handling role. A further advantage is that the convener can draw on the advice and concerns of members. Usually, the convener will take on board the bulk of those comments but, ultimately, accountability lies with the convener. That makes it easy for politicians and others to hold the organisation to account.
Thank you for coming to the meeting and answering our questions. Once we have read the Official Report of the meeting, we will write to you if there is anything that we need more clarification on.
Thank you for inviting us to the committee. I have nothing further to add to my written submission, but I am happy to take any questions.
I will start with general questions. In the conclusion to your submission you say:
The methodology that we use at the moment is the SPSO methodology, which I believe is having a positive effect for prisoners and the Scottish Prison Service. There would therefore be a direct transfer of methodology for the investigation of complaints. The issue becomes one of capability and capacity. The SPSO has infinitely greater resources than the Scottish prisons complaints commission—it has 20 to 25 very skilled investigators. Given the commonality of process, the SPSO's additional capability and capacity justify the transfer.
On the implementation of the prison complaints function, the committee noted from your written evidence that you have accepted 111 complaints for investigation and that you have published 14 reports. How many complaints are currently being investigated? What proportion of the investigations result in a report being published?
We have 163 on-going cases, of which 40 to 50 are currently under investigation. I think that around 25 cases have now been reported and a number are at draft. We are working through them as quickly as we can. The numbers are going up; they have gone up significantly since we submitted our written evidence.
What process do complaints handlers follow in arriving at a decision whether a complaint is vexatious, trivial or without clear value? What is the process for that? I am thinking of your moving into the ombudsman's office and what process is followed there.
In simple terms, we follow the SPSO's guidance on complaints that are trivial, vexatious or without value. It comes down to the motivation of the complainer in raising the complaint. For example, I decided that I was not going to investigate a complaint about cold sweetcorn at Dumfries. A more serious issue is where, for example, a prisoner has a gripe against a particular officer and the complaint is used as a vehicle against that officer. That is where we get firm and say, "No. I own the complaint and I will decide what matters are for investigation." The commission is neutral. If we take a complaint on, it becomes our complaint and the prisoner cannot drive it; neither can the SPS take issue with the prisoner. The complaint is an inquisitorial process—it is my complaint—and, in determining what complaints are trivial, vexatious or without value, we follow the guidance that Professor Brown has issued.
The committee understands from your written submission that complaints from vulnerable prisoners are fast-tracked. Why is that necessary, given that those complaints relate to downgrades or relocation? I think that I know the answer, but I would like to hear it from you.
Obviously, because of privilege, I do not want to talk specifically about the two prisoners whose complaints we have fast-tracked. Such prisoners are accepted by the SPS as being vulnerable. They have personal issues, which are often psychological, so it is in their interest and the interest of the SPS that matters are brought to a conclusion as quickly as possible. The SPS is incredibly supportive in that process. It knows the prisoners and their issues very well, and it works with us to get a solution as fast as we can.
I suppose that, if the prisoners are moved or put into a different category, they can be worked with and supported in a different way.
Yes. My predecessors gave evidence about the importance of speed. However, most of the actions in question take place over a very short timeframe. For example, disciplinary awards usually take between three and 14 days and usually involve a loss of privileges. Prisoners are moved continually and prisoners' status is changed. What we investigate is usually the consequences of those decisions. The decision is taken and then, after the event, we review the processes and procedures that were followed to determine whether there was maladministration or service failure.
Good afternoon, Mr Smith. Could you comment on the recommendation from the fit-for-purpose complaints system action group that the prison complaints function should be transferred to the SPSO in order to improve responsiveness and consumer experience? Although, in your written submission, you state your confidence in the ability of the SPSO to absorb the function, you seem to disagree with that reasoning. Why do you disagree?
Yes. I do not recognise the picture of prison complaints that was provided to Crerar and Sinclair. It may well be to do with the fact that the inquisitorial methodology that we follow shines a different light on prison complaints. In my experience, prison complaints are quite complex issues involving some quite complex individuals. The SPS is a unique organisation and the background to these complaints is a very undeveloped legal framework.
Literally.
I was interested in the previous debate on what is and is not systemic. From my experience, properly conducted inquisitorial investigation gets to the root cause, which is, by implication, systemic. The SPS has accepted recommendations that we have made on strip searching and disciplinary practices, which have been introduced as changes to its practices and procedures. I do not wish to decry the Sinclair group's recommendations. Indeed, I think that its recommendation on the transfer of the prisons complaints function is right, but its rationale is different from ours. The SPSO is the most capable agency in Scotland for dealing with such a level of complexity, which is why I think—
In a nutshell, you do not disagree with the group's recommendation, but you disagree with its rationale.
Yes. Our rationale is different.
You have spoken a little about why it is not important that some prisoners' complaints are dealt with as rapidly as has been recommended. Do you operate to a timescale for resolving complaints? I see that you are indicating that you do not. Is doing so simply not possible?
From an assurance perspective, we should be able to track the average time that is taken to resolve complaints as a guide for those who provide resources to the SPSO, but we simply cannot operate to a timescale on a case-by-case basis. We do not have any idea how long it will take to resolve a complaint when we start to deal with it. At this stage, we are finding that a fair number of legal issues need to be resolved, as the area of law in question is very undeveloped. Complaints may be taking longer to resolve now than they will in the future when we become more knowledgeable about how the law works.
So you do not operate to a set timescale. Are you concerned that merging your functions with those of the SPSO would cause further delays in dealing with complaints?
No, I do not have concerns about that. However, as the SPSO is a parliamentary agency for which the Parliament provides funding, I caution the committee that the SPSO would be taking on a difficult task. It would need adequate resources, including access to top-quality legal advice. The message to Parliament is that we are not talking about easy complaints, but I have no doubt that the SPSO is able to deal with such complaints well.
I presume that you are suggesting that it is a matter of training and upskilling, to use a word that I hate.
The SPSO uses the basic technique of investigation that we use anyway. The methodology that we follow is the same that is followed to deal with medical complaints, planning complaints and complaints against the Government generally. However, familiarisation training would be required. We have to investigate difficult and often quite unpleasant subjects—relating to the sex offenders treatment programme, for example—but SPSO staff are used to dealing with difficult medical cases. There could be a phased handover of work during which some of my existing team could support the SPSO for a short period. However, the biggest additional expenditure may be on legal advice because of the nature of the law as it relates to prisoners.
That leads me nicely on to my next question. You said clearly that, essentially, you investigate complaints to the same standard as and using the same methodology as the SPSO. In that case, if it was proposed to merge your office's functions with those of the SPSO, would the ombudsman's operational practices require to change?
I have a small technical concern about the ombudsman's ability to deal with disciplinaries, which is raised in our written submission. I may be being overcautious, but the legislation that set up the SPSO prevents it from looking at disciplinaries. It really depends on how disciplinaries are defined.
I presume that that would be a legislative matter.
It is a matter on which to check legal opinion. In relation to disciplinary hearings, I can offer an opinion regarding verdict and sentence, but the SPSO cannot. It is in no way an appellate body, and I do not think that it should be. Another way would need to be found of providing that function.
You advised the committee that the Scottish Prison Service is updating the prisons and young offenders rules for Scotland, and I think you said that it would be advantageous if consideration of the disciplinary process was concluded before any transfer. Is that for the obvious reason that it would be convenient, or would a particular disadvantage arise if that did not happen? Also, is there a timescale for the work?
The rewrite is under way, and I think that the rules will be ready at the end of 2009 or the beginning of 2010. That is the interim timetable for bringing forward the secondary legislation.
I will explain how the prison rules operate, albeit at a fairly high level. As you would expect, the prison rules govern the relationship between the prison and the prisoner, but they also specify a role for the Scottish ministers in relation to disciplinary decisions.
We note that, at present, the complainant and the Scottish Prison Service can lodge an appeal against a decision with the ombudsman. What would replace that? Also, how many appeals have there been?
We have a fair number of complaints. At present, we are directly running 25 to 30 complaints in relation to disciplinary hearings.
Do you have a view on that? What do you suggest?
I am not suggesting anything. All that I am doing is flagging up the matter to the committee. The SPS is not unaware of the issue, but I have not yet had sight of its proposals. The area of appeals in relation to prison disciplinary hearings is legally complex.
In response to Jackson Carlaw's earlier question, the SPSO does not look at or oversee the prisons complaints commissioner's recommendations with regard to guilty verdicts, sentences, disciplinary issues or sanctions—that role is solely for the Scottish ministers. However, the Scottish ministers are not really an appeal body, because prisoners have no right of appeal. Instead, prisoners have almost to ask the indulgence of ministers to overturn a verdict of guilt or to quash sanctions. As I say, the prisons complaints commissioner's views and recommendations on such matters cannot be considered by the SPSO.
I want to pursue the proposition of transferring the prisons complaints commissioner's functions to the SPSO. Does the issue about rights of appeal in a disciplinary process impinge on interpretations of the European convention on human rights and the requirement in certain circumstances for the ability to appeal? I do not want to go too far down that line—I suspect that we would be here all day if we did so—but it is important for the committee to understand the context in which the current body operates and to be clear about the context in which any future arrangement might have to sit. I am not a lawyer, but I am vaguely aware that, even if no complaint had been made for 20 years, strict interpretation of the ECHR would still require any framework to include the ability for an appellant to appeal a decision.
I will try to respond briefly to that question.
I am curious as to why existing Scottish law—never mind European law—contains a right to seek judicial review but there is no link to ECHR provisions to provide an absolute right of appeal without the need to invoke judicial review.
Moreover, judicial review is often a remedy of last resort and is used only when no other remedy is available. It might be argued that it would be more appropriate to have a more traditional route of appeal than to rely on judicial review.
To cut to the chase, let us get back to the context in which the functions would be transferred to the SPSO, and proceed on the hypothesis that the committee was minded to transfer them. What would we have to bear in mind about how an appeals mechanism would fit into the SPSO? You may wish to write to us on that, given that time is moving on. I direct your attention to the evidence from the current ombudsman, who was anxious to clarify the general point that an ombudsman is an arbiter and not a court of appeal. There is a conflict between that evidence and the proposition that emerges from your evidence.
We would be happy to write to the committee to explain that further. Perhaps the tension arises because of the dual function—being part of an appellate process and a complaints handler—that the current complaints commissioner is expected to fulfil.
One of the biggest surprises for me is how little case law and judicial guidance exists on prisons. They are an undeveloped part of the Scottish legislative landscape, which presents risks and opportunities. The next revision of the prison rules will be an important document. It needs proper and thorough consideration and will impact on how the SPSO conducts its role if it takes over responsibility for complaints.
It is not really relevant whether Scots law advances on case law. That might be a separate issue.
The Scottish prisons complaints commission is not established by statute. What are the main elements that should be prescribed in legislation if the commission is integrated into the SPSO?
I refer the technical matters to Christine O'Neill. A statutory basis would have no operational effect on my staff and prisoners, but we are talking about matters that relate to the commission as an institution.
There are two different issues. The first is the commission's remit. At present, it is not set out in any legislation. There are, however, advantages in defining within legislation the powers and obligations of an authority such as the commission. Therefore, any amendments to the Scottish Public Services Ombudsman Act 2002 would need to address the commission's remit and cover questions such as whether it should consider disciplinary issues.
Your written evidence expressed some concerns about your inability to require that evidence from intelligence be given to you. Will you outline that concern?
The acquisition and management of intelligence is a necessary part of day-to-day operational life and is an essential part of what the SPS has to do to manage risks and threats within and without the prisons. Responsibility for scrutinising the acquisition, management, storage and exchange of intelligence rests with the surveillance commissioners. The rules on what they can and cannot release, and how they can exchange intelligence with or advise other agencies, are restrictive. For example, they are not covered by freedom of information legislation.
Is there any way to resolve those issues, or do we just have to live with them?
Parliament might be able to address the situation because it has authority over the surveillance commissioners. RIP(S)—the Regulation of Investigatory Powers (Scotland) Act 2000—is Scottish legislation, so Parliament has some influence over the surveillance commissioners through exploring issues in annual reports and so on. The commission and the SPSO just have to deal with the landscape.
Given that the Scottish Prison Service is the focus of complaints, have its views on the transfer of functions been sought? Have you discussed that with the Government?
The Government has been supportive. It asked me to introduce the SPSO-style methodology in the commission, in anticipation of the Crerar review and some of the proposals that are before Parliament.
The committee has no more questions, so I thank both witnesses for coming along. After we have read the Official Report, we will write to you if we need further clarification.
Meeting continued in private until 13:41.