Official Report 506KB pdf
Agenda item 3 is an oral evidence session on the Commissioner for Ethical Standards in Public Life in Scotland’s annual report. I welcome Stuart Allan, public standards commissioner for Scotland, and Helen Hayne, investigations manager for the Commissioner for Ethical Standards in Public Life in Scotland.
I thank the committee for inviting us this morning. I have circulated a brief statement, so my opening remarks will be very short.
Thank you for those comments, Mr Allan. I understand that this morning Bill Thomson, the Parliament’s assistant clerk/chief executive, has been nominated as your successor. Of course, that nomination will have to be ratified by Parliament at some point. Given your retiral and the fact that a successor is coming into place, what advice would you give your successor in taking on this role? What can be done to improve the work that you and your office carry out?
First, I put on record my delight at Bill Thomson’s nomination. He will be an excellent commissioner and I wish him all the best in the post.
Before you arrived, we had an evidence session with the COSLA commission on strengthening local democracy. When I asked its representatives whether the commission would examine issues of transparency and accountability, I made the point that the Parliament’s proceedings are recorded not only in the Official Report but on television and webcasts. That does not happen in many council chambers. Would it strengthen the commissioner’s role in investigating breaches of the code of conduct if, instead of having to rely on he-said, she-said evidence, he or she had a verbatim report or televised or webcast proceedings?
With regard to complaints about misconduct in the council chamber, a recording of those events would certainly be beneficial. Indeed, there have been a number of cases in which the recording has materially helped us to reach a conclusion on the matter.
I have a couple of follow-up questions. First, given your obvious interface not only with local government but with other aspects of local democracy, have you or your office been invited to make a submission to the commission on strengthening local democracy?
No.
Would you welcome the opportunity to make a submission?
I would be happy to provide information to the commission that was appropriate for the task. If the Parliament were to invite me to make a submission, I would do so unhesitatingly.
That is not up to us. It is the responsibility of the commission, which I hope will invite you to make a submission for its deliberations.
That is appreciated.
My final question is about the issue of conduct at meetings. As a former local councillor, I really should know the answer to this question, but I will ask it anyway. Do you have to wait for a complaint to be made for activity to be triggered, or are you able to be proactive on the basis of something that has occurred? I am thinking in particular of a recent, fairly critical Audit Scotland report on the conduct of meetings of Aberdeen City Council and the impact of that conduct on the decision-making process. Would such a report cross your radar, or do you require a complaint to be instigated before you can take an interest in that sort of thing?
I would draw a distinction between conduct that relates to a specific complaint and broader issues about conduct. In respect of a specific complaint, that has to be sent to me, in law, by a complainer. I have no power to go out and investigate anything off my own bat. Such powers exist in other jurisdictions, but not in Scotland. That applies with regard to councillors, members of public bodies and MSPs.
It was Aberdeen City Council. I do not want Aberdeenshire Council to look at the Official Report and wonder what was being said about it.
Very much so; thank you for the correction.
Ms Hayne, please indicate if you want to contribute at any point. I am conscious that I am turning to Mr Allan all the time.
Generally speaking, I would say that we were alert to there being an issue in those cases. That is usually reflected in the complaints that are received. Individually, they may not amount to breaches of the code—they are perhaps not severe enough for that—but the number of complaints received will, on occasion, indicate that there is a wider issue, which we will often discuss with the chief officers of the local authority, such as, often, the chief executive and the monitoring officer.
Do you have a role in alerting other organisations about any difficulties?
I think that the overview that is taken of the work of the office is set out in the annual report. I state there whether there are issues that have to be addressed by the wider local government community.
I want to follow up on what you said about Argyll and Bute Council and identification of issues. You used the term “council”. Can you clarify whether council officials made the approach or was it made by elected members and council officials collectively?
I am satisfied that the council corporately wishes to make an approach to improve its performance. As I understand it, the council as a whole has committed to doing what it can to improve performance. I am quite satisfied that that is the correct approach to the matter.
I asked the question because when I was an elected member of a local council a number of years ago, I had occasion to report a council official to their line manager and the executive director of the department. It was identified at the time that as an elected member I was subject to a code of ethical standards but there was no such code for council officials in respect of how they carry out their duties, other than the council’s internal disciplinary structure.
In the normal course of events, I think that all contact is made by officers on behalf of the authority.
You referred to the model code of conduct for members of devolved public bodies. The committee discussed that last week, and we had the Cabinet Secretary for Finance, Employment and Sustainable Growth giving evidence on legislation and on guidance. I suggested at the meeting to the cabinet secretary that we should extend the code of conduct to ALEOs and other bodies that local authorities have established to provide local government services. Do you agree that the code of conduct should be extended to ALEOs and other such bodies?
That is a very important question; it is a matter that deserves proper public scrutiny. I would not like at this stage to say simply that, yes, the code should be extended in that way. However, I think that there is an issue. I would not like to make a—
Can I interrupt? I think that there is an important point to be made here. Obviously, councillors on ALEOs are still covered by their code of conduct.
Yes.
However, others on the ALEOs are not covered by the code. During the course of any investigation in which there has been difficulty in dealing with a councillor who might have broken the code and in which you have known that others might also have done so, have you ever been unable to deal appropriately with the matter because of circumstances?
The short answer to that question is no. As you rightly point out, councillors who have been appointed by their councils to ALEOs—and, indeed, members of public bodies who have been appointed to similar organisations—are caught by the respective codes for the work that they do on those bodies, whereas the non-council, non-public-body members are not. Nevertheless, the answer is that I have not come across that problem, otherwise, I would have come to Parliament to say that and that the regime must be extended to apply there.
That could be to do with the number of people who are covered by the code; 1,222 councillors are covered by the code, at present.
Again, the short answer is no. I am not convinced that doing that would really be in the overall public interest. I have to respond to complaints that are formally submitted to me. I do—
Can I stop you there, Mr Allan? The fact is that you have to be reactive in such situations. At the beginning of your evidence, you said that common sense should apply; I am a great believer in common sense and gumption. Would not it be better if you and your investigations team could do such cold calling and be much more proactive? Might that send a shot across the bows of the folk who behave inappropriately?
I would go so far as to say that that approach merits serious consideration. As I said, other jurisdictions’ commissioners have the authority to carry out that type of function and there is merit in it. However, I would not like to overstate the argument for it. We have general duties to work alongside Audit Scotland and public bodies where we think that there are issues. That is done, although perhaps more subtly than by our sitting in a public gallery and listening in on what is happening.
It would be an eye-opener, I assure you.
It might be an eye-opener; I am not quite so sure. However, I very much understood Mr Wilson’s point.
I wonder whether Ms Hayne has a view on that.
I concur with what Mr Allan said. Consideration must also be given to our remit and to the fact that we are spending public money. If our remit does not allow us to do anything about something that we encounter, we have to give consideration to that.
Is your remit too restrictive?
You have raised an important issue that merits further consideration. I am not shouting from the rooftops asking for such powers, but a broader range of powers might help in raising standards.
It is not just about wider powers and about dealing with complaints, but about sending a message to local authorities and elected members that they could be observed and their behaviour could be monitored. Some elected members feel that they are going into a bear pit. I have spoken to members of the public who observed a recent council meeting and could not believe the conduct of members and the language that they used in the chamber.
Those views have not been put to me in the manner or on the scale that Mr Wilson suggests. Every complaint that comes in is investigated initially. We identify a percentage of complaints as being either unlikely to involve a breach of the code or too trivial to be investigated and so can be dealt with on that basis. Nevertheless, each complainer receives a reasoned letter explaining why the matter does not involve a breach of the code or giving another reason why it is not being taken to a full investigation. Only in a quarter of our cases is there a full-blooded investigation that involves interviewing witnesses and so on. Those complaints are at the higher end of our responsibility. That is as it should be because we must approach our functions in a proportionate and reasoned way.
I accept that any commission should deal with issues proportionately. However, you say that only 25 per cent of the complaints that you receive go to a formal investigation. How do you get the message out about the role of the commissioner’s office? Apart from through the annual report, how do you publicise the work that you do? How do the public get to hear how they would go about making a complaint against a member of a public body?
The office does not rely on its annual report to communicate with local authorities. We encourage the promotion of roadshows with local authorities, which can involve individual or regional meetings with councils. We frequently hold such meetings jointly with the Standards Commission for Scotland. We endeavour to meet all local authorities individually or regionally to deal with current issues and to address any questions that they have.
My question was about how you get over to the public the message that the commissioner’s office exists. It is fine to do roadshows to advise elected members of how they should conduct themselves in public life, but how do we translate that to the public? Some members of the public have told me that they have had horrendous experiences at the hands of elected members whom they have approached at surgeries or in public places. How do we get the message out to the public that elected members and members of public bodies are accountable?
We provide the public with a range of leaflets, which are on our website and so on—I would like Helen Hayne to tell you about that in a moment.
As the vast majority of our complaints are from the public, I think that the message is getting out there to the public. We make our information available in libraries, council facilities and public bodies. The most important medium is the internet—people use that to find out information. The information about how to complain about a councillor or a member of a public body is available on our website.
Does the office receive complaints that it cannot investigate because they are outwith its scope?
Yes. I think that five or six complaints this year have been outwith our jurisdiction; that is a typical figure. Helen Hayne will confirm that.
The most common types of complaint that we receive that are outwith jurisdiction are usually against an official or a community councillor.
When you refer to “an official”, I take it that you mean an official of a public body.
I mean, for example, the chief executive of a public body.
You will be glad to hear that this is my final question, which is about the register of interests. I am aware that there is a duty on elected members and board members to make appropriate declarations of interests and for that register to be kept. There have been complaints—this is usually heightened prior to an election or immediately following one—that local authorities do not update the registers as often as they should. Has there been any discussion with local authorities, at official level and elected member level, about ensuring accuracy in registers and timely updating of registers on councils’ websites?
I agree with the thrust of what Mr Wilson is saying. Local authorities could do more to assist elected members in filling out registration forms and giving them advice when it comes to issues relating to declaration of interests at committee meetings, which can sometimes be difficult.
I am sorry, but I have one more question about declarations of interests at committee meetings or full council meetings. One Central Scotland local authority has established a number of ALEOs and various members of the council sit on those ALEOs. In the case of one council committee, the convener and other members of the committee sit on three ALEOs that report to that council committee. In those circumstances, what declarations would be appropriate in that committee? Should elected members make a declaration at any committee meeting at which matters relating to an ALEO on whose board they sit relate to an item at that meeting?
As a matter of generality, the new code that was approved by Parliament in December 2010 took that very much on board and made it clear that an elected member’s being appointed to an ALEO does not of itself create a conflict of interests. Therefore, when matters relating to an ALEO come back to the local authority, there is no obligation on elected members who have been appointed to that ALEO to refrain from attending that discussion. In certain circumstances, such interests would have to be declared, as is pretty fully set out in section 5 of the code, which was drafted with the intention to provide greater clarity on that issue.
I accept that, but given that three years is a long time in politics, and given that we have seen an increase in the number of ALEOs being created, the question is whether it is permissible for elected members not to make declarations, in particular when the local authority is deciding whether to allocate additional finance to an ALEO in pursuance of the objectives of that ALEO.
There is a broad principle. The code allows elected members to participate in such meetings because it is appropriate and in the public interest to allow a member of an ALEO still to take part in decisions by the local authority on financing that ALEO, to use John Wilson’s example, because to preclude such members from taking part in the debate in the council chamber would be a disproportionate response. At the end of the day, it is for the Government and Parliament to decide how they want the code to be regulated, but at the moment I am satisfied that the balance is entirely appropriate.
On the 2010 changes, some local authorities interpret the guidance differently from others. In my last wee while on Aberdeen City Council, we were told that, if we declared an interest, we had to leave the room, whereas before the 2010 changes a member could declare an interest and remain in the room. I felt much more comfortable about being able to say that I belonged to such-and-such a body. The public then knew that, and people could choose to come to me about the issue. However, now, because of interpretation of the code, folk just do not declare any more because they are told that if they do so they have to leave.
The 2010 code makes it clear when there is a financial interest. It sets out the circumstances in which a member can still participate, such as in the case of membership of an ALEO or another devolved public body. It also says when members have to declare an interest and whether they have to leave the room. There are various stages that have to be gone through.
I think that the problem is interpretation of that guidance.
Yes—but the code itself is fairly neatly structured and was designed to facilitate the process of going through it for elected members and officials so that they come to the correct conclusion. I accept that there might be difficulties with interpreting the code at some stages, but the code does a good job of making clear what should and should not be done.
Okay. Mr Buchanan is next. I am sorry to have kept you waiting so long, Mr Buchanan.
That is okay.
I would need to consult the database to identify the cases to which that refers and what the subject matter was. I am happy to provide that information to you.
The number of complaints about confidentiality went up from one to 25 and there were several multiple complaints. Does that mean complaints by the same person or something else?
It is the latter; for example, one complaint was against nine members. Because there were potentially nine different outcomes there were, in effect, nine complaints, but those were dealt with as one case. Such examples can inflate the figures
That is what it means. Thank you.
I said that every complaint that comes into the office is subjected to an initial investigation. That investigation is thorough. However, a view must be taken of whether further investigation involving interviews would serve any useful purpose. Over the years, we have learned which cases will go no further and do not involve a breach of the code. Sometimes the complaints involve matters of trivia and are not appropriate for further investigation.
Okay. Thank you.
Often complaints about elected members come from other elected members, and others come from the public. How do you protect from any backlash a member of the public who makes a complaint and who may then be a witness? I have heard of a situation in which, during the course of one of your investigations, a member of the public received communication from lawyers. How do you protect them from such intimidation?
That is an important issue. First, if the complaint is from a member of the public, when we advise the elected member of the complaint the complainant’s identity is limited under data protection—the name will be given but not their contact details. However, at the end of the day, the elected member must be told what the complaint is. Our practice is to say, “There’s the complaint. What have you go to say about it?” We do not paraphrase or summarise it. If there has been contact between the complainer and the elected member prior to the submission of the complaint, the elected member will know fine the identity of the complainer. That cannot be helped.
I understand that fully and that that is the way it will always be. However, during the course of your investigation, if there is communication between the elected member or their representative, whether that be legal communication or otherwise, and a member of the public, is that not a little bit intimidatory? How can we stop such situations?
That is a very important point. We do not want to see any shape or form of intimidatory conduct by respondents against members of the public, although I must say that I have not come across that. There must be, on occasion, continued contact between an elected member and a complainer.
Do you think that maybe you have not seen that because members of the public are too scared to come forward and tell you that it has happened during the course of your investigation?
With respect, that is a different matter. Are you asking whether, if a complainer has complained about an elected member, it is acceptable that the elected member intimidates the witness? It is absolutely not—I agree entirely with that approach.
That is very interesting. Ms Hayne, do you want to add to that?
I do not have any further information on that. I agree with what Stuart Allan said.
Perhaps we can follow up on the issue later.
In the interest of transparency, I say that I was subject to a complaint in the current year.
That is a very interesting question, which I have been frequently asked. The answer is that there is no pattern. First, most councils have an induction programme for their new elected members immediately after an election. Councillors are elected in May and they then go into recess, so for the first six months it is unlikely that a lot of complaints will come in, because they have been bombarded with advice about how to act properly and because they have been in recess. There is not usually an appreciable rise in the number of complaints after elections. Of course, new members are extremely keen to become aware of what the code of conduct is all about.
The annual report shows that the number of outstanding complaints had increased from 36 in the previous year to 56. Is there any particular reason for that increase?
There is no particular reason for that. A few more multiple complaints were received prior to the end of the financial year, and if they took the normal time of three months to complete, they would have been carried forward to the next year. There was a higher number of complaints at the end of the year.
Obviously, there are times when complainers are very unhappy at your decisions, Mr Allan. A lot of folk who would argue that they are not vexatious complainers do not feel that they have been treated fairly in having their complaint dealt with. Sometimes that is down to communication. How do you communicate with complainers to let them know exactly why you have reached the decisions that you have?
First, every complainer is given the best of attention. Any complaint is treated with utmost seriousness and is addressed as such.
Obviously, we are not here today to deal with individual complaints, but I have here a copy of a letter that a complainer has received back from your offices. To be quite honest with you, the language is not particularly helpful. You should maybe review the way in which you respond to folk. Perhaps you should use what we might call plain language rather than bureaucratic speak, if you will excuse the expression. I realise that you have to spell out parts of the code and so on in that correspondence but, sometimes, I think that we in public service make a rod for our own backs by using bureaucratic speak rather than the plain language that folk would expect.
I am happy to take your comments fully into account.
Thank you.
I do not think that we deal with complaints about organisations any differently—
Complaints from organisations.
Yes, sorry. I do not think that we deal with complaints from organisations any differently from the way in which we deal with complaints from individuals. We occasionally get complaints from organisations because there is a corporate issue such as a planning application in which the applicant is a corporate body. There is no reason why we should not consider such a complaint, and I do not think that we would treat it differently from the way in which we would treat a complaint that was submitted by anyone else.
Are you careful about how you handle cases in which a whistleblower is involved? Are they treated in a different manner? If the evidence from a whistleblower is confidential, how do you deal with that?
The whistleblowing legislation relates to the employer/employee situation. A whistleblower is not a whistleblower to me; he is a complainer—
Let me give you a—
Let me finish please, convener.
Sure.
When someone submits a complaint to us, our primary focus is whether there has been a breach of the code by the respondent councillor. To ensure that we deal with the matter fairly and thoroughly, it is essential that the respondent is afforded access to the totality of the complaint. I mentioned that we do not provide the address or telephone number of individuals, but that is all that we can withhold. Often, it will be relevant to the preparation of a defence against a complaint that the councillor is apprised of the totality of the complaint. That is the major consideration.
In some cases, whistleblowing—let us use that term—can be very difficult and people can be intimidated to a huge degree. Is there a way in which you can ensure the safety of the identity of someone who is prepared to put their head on the block to expose something? Maybe we should ensure that by changing the legislation and guidance.
I cannot recall a case in which we have not been able to explain successfully to a complainer that it is in the interests of justice that they make the complaint available to the councillor so that he or she can submit a response. That is important.
Although I understand that Mr Allan is referring to councillors, there are 13,000 representatives on other bodies. Some of those bodies are boards such as the national parks authorities, further education boards, national health service boards and regional transport partnerships. What happens if an employee of one of those public bodies wishes to register a complaint with some anonymity? How would the commissioner deal with that type of complaint? Would you give an employee anonymity or would you refer them to the whistleblowing legislation?
I think that I have answered that. When a complainer writes to us and says that they want us to regard their complaint as confidential, we explain why that is inappropriate. I also said that I have no experience of complainers then declining to proceed with the complaint on that basis.
That is quite useful.