Justice 2 Committee, 21 Mar 2006

Meeting date: Tuesday, March 21, 2006

Official Report 278KB pdf

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Accountability and Governance Inquiry

Item 6 is the Finance Committee's inquiry into accountability and governance. I refer members to paper J2/S2/06/8/13.

I do not know whether this is possible, but to give the matter full consideration—a number of questions are included in the note by the clerk—could we consider the matter at the committee's next meeting?

The deadline is 18 April. There is only one more meeting before then. As a compromise we could get brief points from committee members now and if committee members wish to expand on those they could submit further comments to the clerks by e-mail by no later than 11 o'clock on Thursday morning. Would that give members time to comment?

Members indicated agreement.

The questions from the Finance Committee are listed at paragraph 4 of the note from the clerk. A relevant issue that has arisen in our recent evidence sessions is the possibility of a potential overlap between the proposed police complaints commissioner and the duties of the Scottish public services ombudsman. I ask committee members to raise any points that they have on paragraph 4, which lists the Finance Committee's questions.

Yes, there is potential overlap and confusion.

Sorry, but I thought that we were to submit comments by e-mail.

I said that we should raise points that we can now, but that if committee members want to make further comments they should get them to the clerks by 11 o'clock on Thursday morning. That allows us to have some discussion if members do not agree.

I agree with Maureen Macmillan's comment that, in relation to the first bullet point on paragraph 4, there is potential for overlap and confusion. We should certainly respond on that point. It is far from clear to members of the public to whom they should go and what the remit is of each commissioner and ombudsman.

You will recall that I raised the issue of overlap when the minister gave evidence to the committee. He agreed, but explained that there were some differences in their roles. However, that response did not go as far as the Finance Committee now wants to go. He said that there was obviously a role for the public services ombudsman in connection with civilian members of the police staff, who would not be covered by the police complaints commissioner. Ultimately, the ombudsman would be further up the tree to deal with certain issues. I am unclear in my own mind about precisely where the division of duties lies and whether there is an opportunity, which I suspect the Finance Committee is looking for, for costs to be cut or for staff to be moved to a different budget or whatever. I suspect, having spoken to our member on the Finance Committee, that that is what is behind the question.

Perhaps it is and perhaps it is not, but the issue of overlap and confusion is clear. The example that you gave is good: the new independent police complaints commissioner will deal with uniformed staff, but support staff will still be dealt with through the public services ombudsman. If members of the public want to raise a problem that relates to a non-uniformed support staff member of the police—there are lots of them—most would expect to have to go to the independent police complaints commissioner. That would be most people's guess.

There are also uniformed support staff. Sometimes, people who man the phones wear a uniform, but they are not police.

The same is true of other bodies: staff wear uniforms but they are not uniformed staff. I use the term uniformed staff to mean police officers.

The situation is confusing for the public.

The general response is yes: there is potential for overlap and confusion. The clerks have picked up members' comments.

I disagree. I have sympathy with the comments that have been made because I understand the argument about the perceived overlap and the potential for confusion among members of the public, but the crucial point is whether the statutory functions of the ombudsmen—whether it be the water industry commissioner, the charities regulator or the Scottish parliamentary standards commissioner—are fit for purpose for the bodies they regulate.

The second issue—it is secondary—is how the role of those institutions is communicated to the public. Whether it is done through citizens advice bureaux, members of the Scottish Parliament, the media or others, it is right to communicate to citizens the correct body to take grievances or complaints to.

The crucial thing is that there must be no statutory confusion. There may well be issues with the protocols between the various bodies, as there could be areas that are shared between professions, or areas where there is a division between organisations and commissioners and ombudsmen, but that is something that has to be resolved. One could argue that there might be a perceived overlap with Her Majesty's inspectorate of constabulary, but the evidence that we received showed that the role of the police complaints body is complementary to the work of the HMIC. That could be a consideration for the various ombudsmen. I do not think that there is overlap that needs to be corrected, but there should be clarity about the statutory functions.

There is potential for huge confusion in the minds of the public. Without a doubt it is a question of ensuring that the functions are fit for purpose—I do not dissent on that point—but the Parliament decided not very long ago that we liked the principle of a one-door approach to complaints, and we went so far as to create the Scottish public services ombudsman's office, retaining the four separate functions, which were fit for purpose, but within a new whole.

This is important to me in representing my constituents. The less complexity there is, the more access people have to complaints resolution; the more it is like one door, rather than a plethora of organisations, the better it will be for my constituents. When you do that, you do not have to lose the functions that are performed—it has clearly not happened in the case with the Scottish public services ombudsman. I am keen for us—or at least for the Finance Committee—to explore that further, because there are issues. If that results in the sharing of back-office functions, that is all to the good, but the key point is to make it easy for the public to access the complaints system.

The clerks will collate all the information that we have. I can assure you that nothing will go back without being passed before your eyes.

The next question is about the budget: is it too much, too little or about right? The budget for parliamentary commissioners and ombudsmen is around £6 million. I am not sure whether we are qualified to comment.

That is the point that I was going to make. How can we tell, without much more detail, whether that figure is reasonable? I do not think we can answer that question.

How many commissioners are there?

Even if we knew, I do not think it would answer the question. It depends on their workload, what they do and a range of information that we just do not have.

I agree. Surely it is a matter for the Finance Committee, which will have the detailed information necessary to make a reasonable judgment.

Does anybody know how many commissioners there are?

There is a list in the letter, but it is not exhaustive. It is exhausting, but not exhaustive.

Question 3 is about how we can combine the accountability to Parliament of commissioners and ombudsmen with their operational independence.

That is a difficult question, but it arises quite often—it came up this morning in another committee of which I am a member. There is clearly a problem: commissioners and ombudsmen lay their reports before Parliament, which is useful and helpful, but how far it ensures genuine accountability is probably a matter for debate.

How much accountability there should be is also a matter for debate, because we obviously want those bodies to be independent. It is a difficult question on which to come down on one side or the other. We want them to be independent, but at the same time we want some sort of communication between us and them, and laying reports before Parliament is probably the right way of achieving that.

It is a difficult balance to strike. There should certainly be parliamentary oversight, but I think I am correct in saying that there was some lively debate at the Finance Committee when it held an evidence-taking session with Scotland's commissioner for children and young people, who did not seem to think that there was much connection. This may be a paraphrase, but I think she said that the post should have complete autonomy in the way it deploys the finance available to it. I am not so sure that that is correct. The commissioner should obviously have independence of action in what they are charged with, but not without real accountability. Perhaps I have remembered that wrongly or am exaggerating the point that was made, but there did seem to be a genuine debate. We have to try to strike the right balance.

There is a question about the accountability of individuals who have been given a remit and whether they are meeting it fully. I am not sure whether the Audit Committee has a view on that; the Finance Committee is dealing with the matter.

I do not think that a report to Parliament is sufficient. Unless members have a passionate interest in the area in question, the reality is that the report will not get scrutinised to any great degree.

On the discussion about the children's commissioner at the Finance Committee, it is interesting to note that the Education Committee, which sponsored the Commissioner for Children and Young People (Scotland) Bill, was of the view that the committee would be involved in scrutiny of and dialogue with the commissioner about what the priorities would be. Unfortunately, because membership of committees changes, that has never really happened. One wonders whether there is a role for particular subject committees in relation to some of the commissioners, that could be developed beyond a report being laid before Parliament.

Are you suggesting that there should be some sort of working protocol between the subject committee and the relevant commissioner?

If I were the children's commissioner, I would want to speak to the Education Committee, which has responsibility for children, to influence what it is up to and share knowledge with it.

I do not think that there is any harm in that. It is for committees to bring the relevant commissioner before them. My concern is about whether that would cross the line and compromise the operational independence of the commissioners, who operate at arm's length for a good reason. We have to be careful that we are not stepping into a minefield and intervening in that independence.

I agree that reports can be laid and then ignored, but that is not the responsibility of the commissioner; it is the responsibility of the Parliament and its committees, which should deal with the areas for which they are responsible. How would we change the relationship to make it better?

There is a lot to be said for attachment between a committee and a particular ombudsman, because it would reinforce for the commissioner that their report had been read. I am sure that we can draw a distinction between direction and taking an interest. The Parliament can tell commissioners that it appreciates the work that they are doing and can scrutinise it.

All the comments that we have made should be reported. Members have not come up with a clearly defined answer to which we all subscribe, but all the points that have been made are valid.

There is not much difference between us; all the points are in the same ballpark.

It might be worth distinguishing between the different types of body. There are complaints bodies, ombudsmen and representative and lobbying bodies, such as a children's commissioner or the proposed human rights commissioner. They have different functions. We could argue that they would be doing their job properly if politicians were annoyed with what they were saying.

There might be times when there are disagreements and friction that is difficult to handle. Not so long ago, at Westminster, the parliamentary commissioner for standards did not have her contract renewed. There was a degree of controversy about that. It could have been because she had handled a number of high-profile complaints. There are areas where things are not straightforward. A more flexible approach would be better.

Another serious issue is that the Parliament, not the Executive, is being asked for a view in the inquiry. There is a clear difference in function. The committees of the Parliament act on behalf of the Parliament and the people rather than the Government.

That is true.

If the clerks could capture all those comments, that would be useful.

Convener, I offer my apologies, but I must leave now.

Okay. If you have any further thoughts on the issue, will you e-mail them to the clerks?

I will. I have regular e-mail contact with the clerks.

The next question is whether the Parliament or committees should be able to influence the policy or work programme of commissioners or ombudsmen. That is a continuation of the previous issue.

The next question is whether there should be an identical model of accountability for all commissioners and ombudsmen. Jeremy Purvis mentioned that. If we think that such a model should exist, we are asked whether common budgetary controls should be a key feature of it. That is more to do with performance in cash or resource terms than performance in terms of duties.

Again, my preference would be to leave that for the Finance Committee. The idea has an attraction, but the commissioners and ombudsmen all do different jobs. I would rather leave it to the Finance Committee to arrive at a conclusion on that.

Jeremy Purvis made a valid point about the difference between commissioners and ombudsmen. An identical model for all of them does not sound particularly appropriate.

The next question is about existing budgetary controls. We are then asked about alternatives to the model of having commissioners and ombudsmen under the control of the Scottish Parliamentary Corporate Body. That strikes me as two questions in one bullet point.

The first is really for the Finance Committee, although we have made one or two comments on it. As for the second, I do not know.

Am I correct that the post of Scotland's commissioner for children and young people was originally set up under the aegis of the Executive but is now under the SPCB?

The post was never under the aegis of the Executive—it was set up through a committee bill and is therefore a parliamentary post. The key question is what it means for such posts to be under the control of the Scottish Parliamentary Corporate Body. Who monitors them and how often? What does the relationship entail and is it robust enough?

That sums up most of the views precisely. We have raised a query about audits of performance, rather than of money.

The penultimate question is whether it is possible to implement section B2 of the Paris principles while retaining suitable budgetary controls. There is a little footnote that tells members about section B2.

That is over to the Finance Committee again, frankly.

It seems very much an accountancy issue.

The final question is about the proposal in the Bankruptcy and Diligence etc (Scotland) Bill to create a Scottish civil enforcement commissioner as a non-departmental public body to ensure the post's independence. We are asked about the establishment of commissioners by the Executive. What alternative models could be considered and how should budgetary control be exercised? The Enterprise and Culture Committee is considering the Bankruptcy and Diligence etc (Scotland) Bill, so I am not sure that we can offer much on the issue beyond what we have already said.

We should leave the matter to our colleagues on the Enterprise and Culture Committee.

We will refer that to the Enterprise and Culture Committee.

Implicit in the question is a question about our attitude to the Executive setting up commissions per se, not just the civil enforcement commissioner. I do not want to be pushed into a blanket view on that, because the matter must be decided on a case-by-case basis. On some occasions, a commissioner may be entirely appropriate, but at other times a subject committee may suggest a different way. Flexibility is important.

Your comment about the role and influence of the subject committees, depending on the commissioner's role, is important.

The issue depends on what the commissioner is for. Committees would have to consider that.

We are also asked whether the committee wants to send a representative to the Finance Committee's seminar on the afternoon of Monday 24 April. I am afraid that I cannot attend.

Neither can I.

Neither can I.

Does the committee feel that we should be represented?

Where is it?

We do not have that information, although it is obviously in the Parliament.

Not necessarily.

As members are going to e-mail lots of comments to the clerks on the issues that we have discussed, the clerks will send an e-mail to members when we get that information.

It might have been more helpful if the seminar had been held before we were asked to comment on the questions.

Perhaps the Finance Committee was seeking an initial gut reaction, without taking members through a process that might steer them. A gut reaction is what we are offering the Finance Committee.

Sometimes gut reactions are helpful, but the cerebral option is a good one, I always think.

If no members can attend, I wonder whether a member of the clerking team could. They would not be mandated to participate, so I do not know what the value would be.

What have they done wrong?

I am not sure whether that would be entirely appropriate.

I raised the suggestion, but if the committee is against it, that is fine.

That would not really be appropriate.

I agree.

Before I close the public part of our meeting, I regret to inform the committee that we have just received news that Margaret Ewing has passed away. If I may, I will write on behalf of the committee to her husband, Fergus Ewing. Obviously, individual members may want to do something else. We have no further information on that regrettable circumstance. On that sad note, I close the public part of the meeting.

Meeting continued in private until 16:49.