Review of SPCB Supported Bodies Committee, 24 Feb 2009

Meeting date: Tuesday, February 24, 2009

Official Report 180KB pdf

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Review of SPCB-supported Bodies

Good morning and welcome to the third meeting of the Review of SPCB Supported Bodies Committee. No apologies have been received—I see that all members are here.

I welcome our first witness today, Professor Alan Miller, who is the chair of the Scottish Human Rights Commission, and I thank him for attending to give evidence to our inquiry. We have a number of questions to get through, professor, so I ask you to make your presentation as brief as possible, after which we will open up to questions so that there will be more of a dialogue.

Thank you. I promise to take no more than one minute to make a brief introductory statement.

I welcome the opportunity to assist you and your committee in its important work. As you are aware, the founding legislation of the Scottish Human Rights Commission reflects the most recently developed thinking of the Parliament on governance and accountability arrangements—with regard to, for example, the strategic plan, the office location, the sharing of services and, of course, the establishment of a commission rather than the appointment of a single commissioner. Within the commission, we are enthusiastically and confidently implementing our mandate. We are on a steep learning curve, but we are keen to share our initial learning experience with you and we will try our best to respond to your questions.

It is, of course, right and proper that the Parliament determines the ways in which our national and international human rights obligations, including those that concern the human rights of children, can most effectively be implemented. In that respect, we all benefit from the guidance provided by international experience and best practice: the United Nations Paris principles of independence, a broad mandate, adequate powers and adequate resources.

Parliament was careful to establish the Scottish Human Rights Commission in accordance with those principles, which enables us to apply with confidence later this year for category A status as an internationally recognised national human rights institution that represents Scotland. Accordingly, my principal recommendation is that you ensure that the outcome of your review—whether that is a new rights body or the continued existence of Scotland's Commissioner for Children and Young People and the Scottish Human Rights Commission—enables Scotland to continue to meet the Paris principles. That is the best way practically and effectively to promote and protect human rights, including the human rights of children, within Scotland.

I will kick off with a question. The mandate of the Scottish Human Rights Commission extends to the promotion and protection of all human rights for everyone in Scotland. Can you clarify whether your remit includes children?

Yes. Our mandate does not refer specifically to the placing of any particular emphasis on children, but it states that our commission should give priority to those who are the most vulnerable, marginalised or voiceless. Several sections of our community fit into that category. Part of our mandate is to promote and protect the human rights of everyone, which implicitly includes children.

If the children's commissioner, Kathleen Marshall, picked something up that she could take only so far, would she refer it to you? If so, how would that happen?

We have begun to develop a good working relationship between our commission and the children's commissioner's office. For example, a couple of months ago, the children's commissioner hosted a meeting with her counterparts from England, Wales, Ireland and Northern Ireland, and we provided some training input. We said that children could benefit from having better access to the rights that are contained within the Human Rights Act 1998 and the European convention on human rights, in addition to the children's commissioner's main emphasis on the UN Convention on the Rights of the Child, under her mandate from Parliament.

Good morning. You have clarified that your body has a responsibility for protecting the human rights of children, which is interesting, because when Kathleen Marshall spoke about adult-centred bodies at a previous committee meeting, I got the distinct impression—and I think she said—that she was thinking of your organisation. For the record, she made it clear that she did not mean it as a criticism. Is that a fair assessment of the SHRC? I know that it is still in its embryonic stages, but is it fair to say that it is adult centred?

Well, as you can tell, I am very much an adult.

So is Kathleen Marshall.

National human rights institutions are not adult centred or centred on any specific section of the community; rather, they are human or individual centred. The Paris principles, which provide information on best practice and implementing human rights at a practical level, refer specifically to sections of society that need particular protection. Children, along with migrant workers, refugees and people with disabilities, are highlighted as such in the principles.

Legitimate national human rights institutions are expected to protect and promote, and to pay particular attention to, those who otherwise might be voiceless. That was written into the Scottish Commission for Human Rights Act 2006, which established the Scottish Human Rights Commission.

If the 2006 act includes children, why do we have a distinct children's commissioner? Does the promotion and protection of children's rights require the taking of a distinct approach? If so, how should that be done? Does it require a separate body?

A distinct approach has to be taken towards children, in addition to some other sections of the community. The responsibility of a human rights body is to make human rights relevant to whichever sections of the community need the most protection and promotion.

It is for the Parliament to decide how best to ensure that the distinctive needs and rights of children are addressed, whether that is done through a separate body such as we currently have or by integrating the office of Scotland's Commissioner for Children and Young People with a broader national human rights institution. There are pros and cons for either option. The establishment of children's commissioners and national human rights institutions around the world is a relatively recent development, and there has not been much independent or objective evaluation of what works best in Scotland or elsewhere.

We are where we are. The current arrangements can work well and the two bodies can work together and complement each other without duplicating work. Equally, I understand that there are ways in which a rights body could integrate the human rights of children into its work. There are attractive ways of doing that, and the approach could perhaps be as effective as having two separate bodies. It is a matter for the committee and the Parliament to decide. There is no evidence that inevitably takes us in one direction or the other. Each country must take the decision on its own merits.

Are you confident that the rights and interests of children could be adequately represented by a single human rights body?

Yes. If a rights body were created that met the Paris principles, it would be expected to promote and protect the rights of everyone, including children.

I have read some of the evidence that has been given and I understand the concerns that have been expressed about whether children's rights might somehow be lost in a broader human rights commission that had to take into account a greater breadth of interests. The Parliament could address those concerns by ensuring the accountability of such a rights body. For example, accountability arrangements can, in different ways, be written into the legislation that establishes bodies and their mandates. Of course, the body would be accountable through its strategic plan, which would show how it was addressing all sections of society, not least children. It would also be accountable to the many experienced and expert children's non-governmental organisations in the sector, which would certainly—and quite rightly—subject it to great scrutiny.

The Scottish Human Rights Commission is in its early stages. You are its chair and there are three part-time commissioners. Is it envisaged that part-time commissioners will have specific portfolios or interests? Would it be possible for a commissioner with a remit that included children and young people to operate as part of a single human rights body such as the SHRC? That proposal was put to Kathleen Marshall when she gave evidence to the committee two weeks ago. Could that approach work?

As members know, the Parliament thought long and hard about whether to establish a human rights commissioner or a human rights commission. It went for a human rights commission, which I think was the right decision. The approach reflected the Paris principles recommendation that a country's body should reflect its diversity.

We are on a steep learning curve. I am keen to share with members the lesson that in the SHRC we have developed a non-hierarchical culture. I am the chair of the commission, but I have no veto and there is no ring-fenced budget that falls within my control. The three part-time commissioners have very different experience and expertise, and we made a conscious decision not to have specific remits but to have evidence-based collective policy and decision making. Commissioners and staff share skills and expertise. There is engagement with and ownership of the draft strategic plan and there is a collective ethos.

The experience of our brief journey so far suggests that if a new rights body were created, it should have a similar ethos. An arrangement whereby a commissioner had more power to veto or to ring fence part of a broader-based commission's budget would not easily fit with—and, indeed, would challenge—such an ethos.

I was asking not about vetoes or whether budgets should be ring fenced but whether members of a new rights body should be given particular remits. I understand what you said about the SHRC's structure, but could the structure that I am talking about work, in theory?

It is more sustainable to have a body that children, older people, victims and migrants identify as being relevant to them than to depend on particular personalities. Individuals come and go—they serve their term and leave—but any body would, we hope, be sustainable. It would be important for the body to find a way of making itself credible and effective in the eyes of key sections of the community. Such an approach is preferable to one in which a personality is identified with a specific group. However, the option can be considered, and I am sure that the committee will do that.

You have courteously said that although you have a view, it is ultimately for the committee to come to a decision. Most of our witnesses have taken the same approach at some stage. We appreciate your courtesy, but we must come to a view on the basis of the evidence that we hear, so I want to press you a little harder to give us your views, which we need to hear.

Money can be saved on backroom offices and so on—all sorts of things can be done—and the SHRC was set up more or less with that in mind. A key issue is that the Parliament has, rightly or wrongly, established the SCCYP and your body. You make the case that human rights are human rights. Under the current arrangements, you need about £1 million to fulfil your functions and the children's commissioner needs about £1 million to carry out her functions, which is rather curious—money is not a good measure of what happens, but it is the only measure that I have. If a single commission were created, how would it work and what differences would we see?

Are you asking about the financial arrangements?

No. I want to talk about outcomes, not money. I am asking about the delivery of human rights, and children's rights in particular.

The committee is faced with two options. The first is to keep the status quo, which you described; the second is to merge the functions of the children's commissioner and the SHRC into a single rights body. I understand that the Scottish Parliamentary Corporate Body has proposed that there would be a continuation of the current resources, powers and functions, so the creation of a single rights body should not undermine the effectiveness of the promotion and protection of children's rights.

I would rather hear your opinion than that of the SPCB. In response to Jamie Hepburn, you suggested that you were rather inclined against the proposal to include a separate commissioner for children's rights in a new body. The SPCB has taken no evidence from any of the commissioners, so although its proposals are interesting, they are not evidence based. We want to hear what you think about how the proposed new body would function. If you think that we can do without a commissioner and have a single commission, we want to hear that.

I appreciate that, and I will do my best to respond. I am not trying to be evasive. There are options, each of which has its attractions, and it is for the committee to weigh them up. If you are asking what, if anything, would be different about the promotion and protection of children's rights if a new rights body were set up, I will try to give a direct answer—let me know if I do not do so.

If a new body were set up, I think that specific projects and programmes would exclusively target and promote children's rights, like those that are run by the children's commissioner's office. In addition, I think that the human rights of children would be integrated throughout almost all the new body's work. For example, one of our commission's responsibilities is to monitor the implementation of the UN Convention on the Rights of Persons with Disabilities. Clearly, that includes children. Issues around the care sector and the Human Rights Act 1998 clearly include children. A lot of issues are intergenerational, such as the use of public and community space. There is sometimes conflict between older persons and younger persons in the community. A broader-based rights body would be able to integrate the human rights of children in a mainstreaming way that a single body might not be able to achieve. The point, if you wish to take it, is that a single rights body could integrate or mainstream the human rights of children within all its activities.

You do not look like you got the answer that you wanted, Mr Finnie.

No, my mind is open and I am receptive to a whole variety of views. I am sorry to have had to press you, but there is a difficulty for the committee: if all the witnesses simply say, "It's over to you," it is like ping-pong—we ask a question and, before we know where we are, we have the ping-pong ball back on our side.

In your answer to Jamie Hepburn, you indicated the current position regarding yourself and your deputes. Because of the breadth of human rights, you do not exhibit any particular specialisms. I will ask almost the same question as before, but in a slightly different form. The children's commissioner is a specialist, who has constructed a body and a programme that build on the specialist expertise that has been developed. What would happen to that specialism in the kind of organisation that you have just outlined?

If a new rights body were created, I think that it would learn from and capture the experience and expertise that has been built up over the years by the office of Scotland's Commissioner for Children and Young People. If there were a merger of that office and the Scottish Human Rights Commission, a lot of the expertise of the staff would be brought into the new rights body, which I would expect to have a distinct section of staff to deal with the human rights of children.

Professor Kathleen Marshall's contribution and commitment to the promotion of the human rights of children has been very significant. Although she is moving on, much of the staff's expertise would be invested in the new rights body. A distinctive approach could therefore be taken, and all the outreach, participation and experience that you have heard about from the children's commissioner would be further developed, learned from and operationalised by a new rights body.

So that would be different, would it? You gave Jamie Hepburn a picture of a commission with no specialisms, where all aspects of human rights were equal. That seemed to be the model that you were suggesting. Under a new model, if you were able to create specialisms, would you do so, for example in work to do with older people?

I understand what you are asking me: would we consider having a single specialist commissioner—a children's commissioner—on the new commission? If not, how would experience be passed on? We would have members of staff—as we currently do in the SHRC—with expertise in, experience of and connections with particular sections of the community. Such experience has been built up in the children's commissioner's office, and it would not be lost in a new rights body, which could capture it and continue to have exclusive programmes and projects aimed solely at children, while integrating a lot of the issues that impact on children into its broader work. I do not think that such experience would be lost, but it need not be reflected in giving a single commissioner a specific remit or responsibility for children's rights.

I am interested in the approach that your new commission has taken. It is basically a generic approach, and I presume that it is therefore demand led. There is a sort of serendipity about it—nothing is prioritised over anything else.

There are reasons why some people are excluded. There are patterns of inequality: certain things happen if, for instance, a person is born in a particular place or they have a disability. Much of the anxiety at the UK level when the equality bodies merged was about the possibility that the distinctive understanding of where power lies might be lost. If your human rights body takes a generic approach, how do you ensure that it recognises all the patterns?

We are currently carrying out a three-month consultation process around the country, sharing our thoughts about where we think the commission will go in its next three years. A key aspect of that addresses your question: we are asking the public what they think the criteria should be by which we prioritise the use of our resources. For example, should we use our resources where there is the gravest or most wide-scale abuse of human rights? Should it be among the sections of the community that are the most marginalised and vulnerable and whose concerns no one else is addressing or championing? Should it be where we do not duplicate the work of other organisations and where there is a demonstrable impact and added value—where a difference can be made? We are conscious that we must develop prioritisation criteria in which the public have confidence.

Without giving away anything about the consultation that I should not talk about, it seems that the experience of older persons resonates widely and that the commission should focus on that as a priority. We are also receiving a lot of information on issues related to the users of mental health services, which seems to fit the prioritisation criteria, and further issues related to the victims—the adult survivors—of institutional child abuse. Such issues seem capable of meeting the prioritisation criteria on which we are consulting. That consultation will provide the evidence base according to which the commission can decide how it might make a difference—and perhaps no one else can do what we might be able to do for the sections of society concerned.

The concern is that, in essence, there is a conflict of rights. Some organisations are anxious about what might happen when there is a conflict and when you make priorities. The children's commissioner project came out of a belief that children's rights would always be marginalised compared with those of adults. I am not sure whether that is the case, but that was the argument.

Yes.

The proposed move has been interpreted as further evidence of that. How can you allay those fears unless you say that, in the new body, there will be ring-fenced budgets for children and for other groups of people, with dedicated amounts of time provided for each group? If the argument is that there is a power imbalance, that imbalance will be reflected in any broad consultation of the community. Is there not an argument in favour of setting aside dedicated resources, even if a merged body is created, to ensure that all the groups of people who are identified are given their proper place?

I completely understand that concern, and I will make a couple of points in response. First, if you were to recommend the creation of a merged rights body and you wanted to address those concerns, it could be written into the legislation that establishes the new body that emphasis should be given to the protection and promotion of the human rights of children, perhaps with specific reference to the UN Convention on the Rights of the Child, to which weight could be given by the new body. The mandate in our founding act says that we should give emphasis to those who are otherwise voiceless, and specific reference could be made to the human rights of children. There could be functional accountability.

Secondly, I would recommend that the new rights body should have to publish its strategic plan and an annual business plan so that everyone can see where the resources are, what the evidence and reasons are for its taking up certain issues, and what is being spent doing what. The body would be accountable to Parliament and to NGOs in the children's rights sector—they would hold the new body to account. That way to meet those concerns would be preferable to ring fencing a budget or having a single commissioner with a power of veto looking after the rights of children.

It would not need to be an individual. We know that most public services put men over women, adults over children and people without disabilities over people with them. Dealing with that conflict is at the heart of a human rights body, rather than an equalities body.

How do the issues to do with the proposed broader body connect with the Equality and Human Rights Commission? I have direct positive experience of that commission—I wrote to it about an issue and was advised that the matter was devolved and should be dealt with by the Scottish Human Rights Commission. Is there as much an argument for cohering that work as there is for merging Scotland's Commissioner for Children and Young People with the Scottish Human Rights Commission?

Those proposals are set in two separate contexts. To complete my answer to your previous question, for any national human rights institution that is worthy of the name, the human rights of children should be the apple of its eye. Children are among the most vulnerable people, but they also represent the future and must be nurtured. Any legitimate national human rights institution must see children and young people as the apple of its eye and be held to account to ensure that it does that.

One could argue that children's rights could be in conflict with one another.

Yes. To a large extent, work on human rights is about balancing the rights of an individual with those of other members of society, which are often competing, or with the public interest. Arguably, a national human rights institution, including a new merged body if there is one, should be able to carry out that exercise, strike a balance, and then present its proposals to Parliament or Government. In promoting and protecting children's human rights in a certain area, the new body would have to take a balanced, evidence-led and considered approach.

I will ask about vulnerable young people. I have heard on several occasions a concern that, although we appear to have good services in place for children and vulnerable adults, we perhaps fall down in the transition period—when young people move from being treated as a child to being treated as a young adult. Would having a single rights body ensure that the rights of young people, particularly vulnerable young people, were maintained throughout the transition from child to adult?

Yes. That is a potential benefit of a merger.

Who currently deals with such young people if there is a rights issue? Is it the Scottish Human Rights Commission or the children's commissioner?

We deal with such situations through practical co-operation. I was asked about the Equality and Human Rights Commission and the Scottish Human Rights Commission and whether there is anything to be learned from the relationship between the two. One thing that might be learned is that, because we are co-located in a Glasgow office, our staff integrate daily and understand what one another are doing. Many of the grey areas, such as those between devolved and reserved matters or those that you identified between children, young persons and early adulthood, are dealt with simply through acting maturely and practically, co-operating with one another and ensuring that we complement and do not duplicate or conflict.

I will move to more practical issues. The first question is about reappointments once the initial term of appointment has been completed. To avoid certain perceptions, it has been suggested that office-holders should be appointed for a single term. You agree with that in your submission, although you suggest that appropriate transitional arrangements should be made for existing office-holders so that they can continue on the basis on which they were appointed. Do you want to add anything on your thoughts behind that?

There is not much to add, although I am happy to try to clarify. Members might be aware that I was appointed for an initial five-year term, with the possibility of renewal for a second term, and that the part-time commissioners were appointed for four years, with the possibility of renewal. That was the basis on which we left our previous roles in life to take on public responsibility, and we would want that to be recognised. At the same time, we all agree with the principle of having a single term of about eight years, as that would provide greater independence, which is probably desirable. We just hope that some recognition will be given to the transitional nature of existing commissioners who were appointed on the old basis and not on what might become the new basis.

What period would be appropriate for the single term for commission members?

I can see the attractions of a single term of office of about eight years. It is not easy to say because we are not even a year into serving in our new posts and we are focused on implementing the mandate that Parliament gave us—we are very much at the beginning of a learning curve—but the idea of a single term of office has attractions as it would perhaps promote greater independence. A single term of eight years seems pretty much near the mark for those who are appointed to the rights body, and I can see the merits in it. It would be about the same period that the existing commissioners in the Scottish Human Rights Commission could serve in any event.

The SPCB suggests that a uniform approach to rights with a co-ordinated outreach and participation service should, over time, provide increased value for money and avoid the potential for duplication. Do you agree?

I understand the desirability of always trying to make maximum use of public funds—all of us are conscious of that. Such arrangements should always be held to account and challenged to find out whether they can be delivered more effectively for the public purse, particularly in the current times. It is not easy to look ahead and identify potential savings: not a lot of research has been done, so I do not have an informed opinion on the issue. Until now, the Parliament has given adequate powers and resources to both bodies. My main concern is that that should not be lost in whatever merger might or might not take place—although an assurance seems to have been given on that.

The SPCB is your employer. Do you have a view on whether it is a suitable sponsor for office-holders and bodies such as the Scottish Human Rights Commission?

Again, it is early days, as we have not yet been in post for a year, but I am happy to share the early experience. We have had outstanding support, particularly from Janice Crerar, an SPCB staff member, and a lot of helpful public support from Alex Fergusson. Mike Pringle has always been accessible, too. To date, we are comfortable with the governance and accountability arrangements and with the support that the SPCB has given us.

Several office-holders are subject to restrictions on future employment. Should those apply to every office-holder and, if so, what would be an appropriate period for the restrictions, given that they were designed to avoid conflicts of interest or allegations of corruption? You will understand why we made that decision.

I have not given it a great deal of thought because it does not apply to me or my fellow commissioners. There is no restriction in the act that set up our offices. I have noted the evidence given to the committee by others who are restricted, and the three-year period seems to be disproportionate. I understand that it is being considered and might be reduced, and my instinct is to support that, but it does not apply to us so I have not given it a great deal of thought.

It does not apply to you because of our previous experience of setting up other commissioners and because your office is set up quite differently in many ways. That was the decision, and you do not see it causing any difficulty.

No. We are an advocacy body and we do not carry out functions about which there could be a perception that there might be some conflict of interest from which someone could personally benefit once they leave office. It might actually go the other way: we might do and advocate things that make it more difficult to be employed afterwards.

Is that not the point? Is there not a concern that you might pull your punches? I am not suggesting that about you personally.

Personally I would not, and I can only answer for myself. Presumably, Parliament appointed me to the post because it was felt that I would do a proper job. That is what I will do.

Do you think that if such a restriction existed, it could avoid the perception that you might pull your punches?

I can see why a restriction was introduced—that is clear—and I suppose that it is standard for a lot of public appointments. To personalise the issue to an extent, when I look at someone such as Professor Alice Brown, who has given so much and could continue to give a lot to public life in Scotland, it is regrettable that she is restricted in the way that she has been. It would make sense to look at that again.

Someone like me, who comes from the private sector to take a position in public life, does it for the best of motives—they do not do it for the money, for example. In some way, they might be disproportionately prejudiced against once they leave their post and, arguably, a three-year period could be a bit too extensive.

There are no more questions. I thank you for your answers, Professor Miller. Once we have seen the Official Report, we might write for further clarification, if that is all right. Thank you very much for coming and giving of your time.

Thank you.

We will have a five-minute break.

Meeting suspended.

On resuming—

I welcome our second witness, Karen Carlton, the Commissioner for Public Appointments in Scotland, and thank her for attending to give evidence to our inquiry. Before we move to questions, would you like to make a brief statement?

Thank you for the opportunity to contribute to the committee's review of SPCB-supported bodies. Last December, I submitted written evidence in answer to the specific areas that were highlighted in the committee's call for evidence. In that evidence, I included my initial thoughts on the SPCB's proposals for a complaints and standards body. Over time, I have refined my thinking, and I have outlined my further thoughts on restructuring in a supplementary paper to the committee.

I very much appreciate the need to be as cost effective as possible in all that I do. No doubt, the committee knows about the attempts that I have made to share both accommodation and services with other commissioners. I recognise the commitment that both the Parliament and the Government have made to streamlining public service delivery and understand the importance of providing members of the public with clarity on whom to approach with a complaint about service delivery or conduct. My concerns lie in the area of fit. I am not suggesting that my office is unique, but there are a number of differences between my office and functions and those of the other bodies that would be merged with my office if the SPCB's proposals were to be adopted.

In summary, I enforce a code of practice, not a code of conduct; there is a difference between the two. Unlike other office-holders, I have a statutory duty to produce the code that I enforce. I monitor compliance with the code during appointment rounds. There is little need for any retrospective audit of complaints handling; in fact, complaints from the public amount to fewer than 3 per cent of the inquiries and reports that I have received since being in post.

I recognise that the committee is keen to consider a variety of options for the future structure of the ombudsman and commissioner bodies. In my supplementary evidence, I offer a model for the proposed complaints and standards body that harnesses some of the suggested advantages and benefits of the SPCB's proposal but retains the existing separation of functions. I propose a single corporate body, in one location, consisting of a shared group of people who would provide services and perform duties for individual office-holders. The key feature of the model is that ombudsmen and commissioners would remain independent office-holders, under separate legislation. Each office-holder would be responsible for their specific area of expertise and accountable for delivery in that area. Each would produce a separate strategic plan, have their own budget and be subject to scrutiny by an appropriate external body.

Services such as information technology, payroll and finance would be supplied by the shared staff; a small number of those staff would be dedicated to working with each office-holder to ensure that there was no conflict in the performance of their statutory duties. The office-holders would share accommodation and staff costs and would serve as the executive directors of the corporate body. I recommend that they be supported by a non-executive chair, who could bring balance and objectivity to the work of commissioners. The chair could also liaise with external bodies such as Audit Scotland: if several commissioners were included in one body and all were supported by a small number of finance staff, it might be difficult to conduct all the audits at the same time.

In conclusion, I reiterate what most of my colleagues have said. I am open to any suggestions for improving the structure and delivery of the service that I provide, but it is important for the committee to determine whether the cost and disruption that would be caused by restructuring would be worth the ultimate perceived benefits. That will be a tremendously hard job.

Let us put the issue of cost to one side and focus on functions. The corporate body considers that the Office of the Commissioner for Public Appointments in Scotland and the Standards Commission for Scotland play a role in overseeing compliance with a code of conduct and that the offices could be merged into a standards and complaints body, along with the Scottish Parliamentary Standards Commissioner and the Scottish Public Services Ombudsman. At the end of your introductory remarks, you gave us a snapshot of how you thought such an arrangement would work, but do you agree with it?

Yes, as it would bring significant benefits in sharing of staff. At the moment, I have three members of staff. If one of them is ill or has a holiday—which I sometimes allow—I am down to two thirds of my staff, which is hard given that I work part time. There are also issues of staff development—where are my three staff members to go? It is not likely that any of them would be appointed to my position; they might be, but they have not expressed interest in such progression. I am concerned that, because we have such a small structure, there is no development opportunity. I would prefer staff to be shared. Members of the SPCB know that I have worked towards that for some time, with no success as yet.

The same point applies to accommodation. Since I was appointed, we have remained in reasonably satisfactory serviced accommodation, in the hope that there might be an opportunity for us at least to share accommodation with another commissioner.

My only concern about the model that I have outlined is an issue that we briefly discussed over coffee—the maintenance of individual specialisms. I worry that those could be lost and that the board members, or commissioners, would have to become generalists. I wonder whether that would entail the appointment of another senior level of staff. I do much of my work myself—I conduct inquiries, interview ministers and present reports to the Standards, Procedures and Public Appointments Committee. If my successor is a generalist—my term ends at the end of May, and I may or may not be reappointed—who will have the specialist expertise to carry out those functions?

Do you, the Standards Commission for Scotland and the Scottish Public Services Ombudsman have any complementary roles? Are there ways in which those roles could be merged? You paint a picture of three streams and suggest that those should remain, even if they are located in the same building as part of a complaints body, but do the roles overlap?

All of us have the same strategic direction—continually to enhance service delivery. Although in my written evidence I make the point that investigations form only a small part of my work, it might well be appropriate for us to refine and share investigation methodology, in line with Professor Crerar's suggestion that responsibility for monitoring compliance be transferred from the regulator to the service provider. There are common strategic objectives that we could all work to achieve.

I share the difficulty that you have. It is not easy to paint a picture of the perfect body—although each model has advantages, each also raises questions. There could be an opportunity for OCPAS if it remained independent but the legislation was amended to take on board concerns that have been expressed by this and other committees about location and the SPCB's powers of direction. However, that would not provide the synergy and support function that I see as beneficial.

I have given a long answer to your question. The proposal would allow all the bodies to share some process improvements and an appropriate strategic direction.

You mentioned that there is a difference between a code of conduct and a code of practice. What is the difference?

Assessments or investigations based on a code of conduct take place with a degree of subjectivity. I do not suggest for a moment that that is inappropriate—quite the reverse. All of us have our own opinions when determining whether someone has acted in a way that is selfless or demonstrates total integrity. Although we can look at evidence and take account of others' views, there is an element of subjectivity. I am not suggesting that my job is easier, but sometimes it can be harder to determine whether a code of conduct has been breached. With a code of practice, decisions are pretty straightforward, as the code sets out what will happen. When I monitor ministers, my task is to determine whether they or their officials have complied with a particular practice.

It sounds as if the differences are fairly subtle, if you do not mind my saying so. Do you think that the general public understand the differences?

I am not entirely sure that I can answer that question. I understand them, but it is possible that members of the public do not. However, I would not like to give a categoric yes-or-no answer to that question.

You mentioned that investigations form only a small part of your work. What does the rest of your work involve?

That takes me to one of the key differences that I brought out earlier. Our assessment and regulation are contemporaneous. The vast majority of my office's work relates to the appointment rounds that the Scottish Government conducts. A representative of my office—an assessor—takes part in every round. In almost every round, there are questions about the interpretation of the code of practice and what a Government official chooses to do. We help assessors on a daily basis to interpret and identify the most pragmatic way forward.

We also constantly review and update the code of practice. Whenever an issue arises that appears to be causing difficulty, my job is to produce and disseminate guidance and to guide and advise ministers on the implementation of the code. That all accounts for around 50 per cent of the work; the other 50 per cent has involved developing and now implementing the first equal opportunities strategy for the public appointments process.

We talked a little earlier about the SPCB's proposal. I got the impression that you do not favour it. What are its disadvantages?

Like many people, I was surprised that more underpinning evidence was not produced in the SPCB's paper or even in the supplementary evidence. We all face cost disadvantages and potential impacts on staff numbers. There are detailed questions about those matters that we cannot answer, so it is hard to be clear about—

With all due respect, perhaps those things would be disadvantages for you, but what would be the disadvantages for the public at large?

I think that there would be several. As I said in my written evidence, I believe that the public know that there is a Commissioner for Public Appointments. My title makes what I do very clear. I have spoken to others and checked the out-of-jurisdiction list that the Scottish Public Services Ombudsman holds to find out whether there had been any inquiries about public appointments. There is certainly no evidence that members of the public have any doubt about whom to go to if they have a question about public appointments. I worry that that might be lost if we became part of another body. An initial statement was made about clarity for members of the public, and it does not seem to me that clarity about public appointments would be enhanced by having one complaints body.

The other side of the coin is strategic direction, which I talked about earlier. The Office of the Commissioner for Public Appointments in Scotland is the fourth organisation that I have run. I have therefore been involved in business planning and strategy formulation at senior levels. I do not know how meaningful it would be to have one strategy for a body that would span the breadth that the complaints and standards body would span. In order to be meaningful, it would have to contain sufficient information not only about overall direction, but about tactical or operational issues in delivering strategic objectives that could then be translated into a resource plan and be used for effective performance management. That is both an internal and an external matter, because we need the public to know that people are called to account. The business planning function that operates at the moment is quite effective in that regard.

Those are the drawbacks. You said, if I picked you up correctly, that you do not envy the committee's task and that there could be advantages in what has been proposed. What would the advantages be?

They would be those that I have already highlighted. I think that there would be advantages in having shared staff. There would certainly be advantages to my work, because there would be resources to draw on. I imagine that the same would apply to other commissioners who do not have large numbers of staff.

But are those advantages predicated on your understanding that there would be a shared location and shared staff? Could those advantages be retained if functions were merged into one entity? Would there be advantages in that?

I would think so. One entity would have one staff group and one accommodation. However, we are not absolutely clear about the position. In my supplementary written evidence, I tried to distil what I think the SPCB is recommending. Therefore, I am going only on what I think, and I think that there would be shared staff and shared accommodation. I am not sure what significant saving there might be. There have been some reviews in the past. Audit Scotland conducted a review around the benefits of shared accommodation, and there was found to be no huge cost saving in it.

I am not sure that I have answered your question. Was there something that I missed? Could the merged bodies benefit from some of the advantages? Yes, I think that they could.

Again, that sounds like advantages for the organisations. What about advantages for the public? Could there be any advantages for members of the public?

As I have said, we are not aware of any members of the public not knowing where to go on issues around public appointments. People have not taken issues to the Scottish Public Services Ombudsman because we have not dealt with complaints about public appointments particularly well. Therefore, I do not know what advantages there would be to the public, in terms of clarity of access and service delivery, in having a merged body. However, if there is a view that a merged body would save money and be more efficient in some ways, that would not disadvantage members of the public.

I come at this from the slightly different perspective of what the public interest is in your appointment. In the first two sessions, I had the privilege of holding the office of cabinet minister and was astonished at the number of bodies to which appointments were made by ministers. When your post was created, I became conscious of the rigour that was required both by ministers and by officials in ministers' departments regarding not just the individuals who were appointed, but the nature of the appointments and the bodies concerned. Your office created a great deal of focus on the need for far greater regard to be given to the appropriateness of the appointments, making it clear that, although ministers signed the authority, there was a considerable process to be gone through to get rid of the public perception of nepotism and the undue influence of ministers. I both respected and, occasionally, feared your important office. Nevertheless, that brought a healthy scepticism on my part.

I return to two elements that have been pursued by the convener and by Jamie Hepburn—your expertise and the influence that your office has over the important area of public appointments. It might not be right, but that is not the issue; the issue is that your office brings to bear a singular effect on a whole raft of public appointments. It is not about whether the public thinks that an appointment is good—if the public have a complaint about the organisation subsequently, they will go to the ombudsman. It is about the process of appointing the individual. How on earth do you think that that role could be preserved? Is there a threat of its being lost in some amorphous merged complaints commission?

I will deal with perception first and move into more detail.

If there is no identifiable figurehead, the public perception could be that the work that has been done to date is being diluted. This is probably an interesting time in the world of non-executive appointments. You will be aware of the Treasury Committee's scrutiny of bankers. You may also be aware of the forthcoming review by Audit Scotland of the effectiveness of the boards of public bodies and how that links clearly to the appointments that are made to those boards. I believe that it is important to have a figurehead standing up for the public appointments process that you have described—and that view is not driven just by personal interest.

On whether the process might be somehow diminished without a specialist at the helm, there is a chance that that will happen. To an extent, whether that occurs will depend on what is put in place of the Commissioner for Public Appointments in Scotland. If the board of commissioners becomes—as Professor Alan Miller described—a board of generalists, the question to which I have no answer is who will carry out my function or specialism. I believe that I was appointed to my present position because of my knowledge of good practice in appointments and regulation. What would happen to that? Would it be diluted? I know that the committee does not want questions to be batted back, but I cannot answer that. That is an issue on which the committee will need to make a judgment.

Without a functional specialist heading up each strand of the new body, there might be a danger not only to the functional specialism but to some of the process improvements that have been achieved. A representative of the Government's public appointments process is sitting immediately behind me, so I must be careful, but I must say that the Government has not always welcomed some of my suggestions with open arms. If we did not have a Commissioner for Public Appointments, would that be an invitation to the Government to be less than scrupulous? I do not know.

On the issue of your current remit, there is a vast range of public appointments. Yours is currently a part-time appointment, so I am not inviting you to suggest that you create more work. However, having had the opportunity to look at the landscape of public appointments, do you envisage that your job could be developed further? I am a member of the Health and Sport Committee, which has been investigating the structure of health boards. For me, that has been a bit of an eye-opener in relation to the lack of corporate governance. I do not think that our health boards have even heard of some corporate governance reports. Is that an issue?

Personally—I am not speaking as a commissioner—I think that there will be challenges for any body that has a board that comprises people who have been appointed in different ways and, potentially, for different reasons. If there are direct elections to health boards or national park boards, will those new board members have a specific interest in, and will they understand, the governance requirements? Generally, I think that any body that has a variety of avenues to its non-executive positions will be vulnerable to risks concerning appropriate governance.

A more general issue, which I have referred to in my written evidence, is the content of schedule 2 to the Public Appointments and Public Bodies etc (Scotland) Act 2003, which created my position. There is a whole raft of public bodies—I hear about new ones every day—that I do not regulate but am asked about in queries. As I mentioned, we receive 1,300 queries each year but very few complaints. Members of the public will phone up to ask whether I or another body was involved in regulating a particular appointment. Bodies such as Postwatch, the Scottish Museums Council and the Association of Visiting Committees for Scottish Penal Establishments—bodies that often I have not heard of until they are brought to my attention—have a form of appointments process that the Government is involved in and which the public expects to be regulated. There is perhaps little assurance for members of the public that appointments to those bodies are scrutinised in the way that appointments to the public bodies that I regulate are scrutinised. Therefore, in amending the legislation, this might be an opportunity to review the rationale for considering which bodies it would be appropriate to include in schedule 2.

I want to move on to governance and accountability. Do you have any concerns at all about being required to produce business and strategic plans for the corporate body or for the Parliament?

No, I have no concerns about that. We have a number of strategic objectives that are then refined into priorities and business activities for each year. I already produce a rolling three-year business plan, so that is not a problem at all.

More generally, do you see an enhanced role for either the SPCB or a parliamentary committee in scrutinising your work? If so, what changes would you recommend?

I have been very comfortable with the process that has operated for my role up to now. Like the previous witness, we find our relationships and contact with the corporate body and people such as Janice Crerar particularly helpful. Any budget discussions go very smoothly. That process works well, giving us the opportunity to present concerns and regular reports to the Standards, Procedures and Public Appointments Committee and progress reports to the Equal Opportunities Committee. I still think that that route is appropriate, although I recognise that, if there was one complaints body, the SPCB might not be the most appropriate scrutiny body, because some of the members of the complaints body—some of the office-holders that merged into it—regulate the SPCB.

On enhanced powers, I have already highlighted the fact that I have no difficulty with shared location, having location dictated and the SPCB having powers of budget setting. In my experience, that is more or less what has happened anyway.

Your appointment is for five years. In your submission you suggest that a period of eight to 10 years would be more appropriate. Why do you think that a 10-year appointment would be more appropriate, given that currently you would apply for reappointment half way through that term?

That view was based primarily on the fact that my post is part time, so, of course, 10 years is the equivalent of six years for a full-time post. At the moment, I produce a series of three-year rolling business plans. It takes some time to get to grips with what is happening. If I, or a successor, wished to revise the code of practice, that would involve at least a year's work before potential changes were drawn up, communicated, consulted on and refined. It is about providing someone with a sufficiently long time to make an impact and making it attractive for people to apply. The previous witness said that we come to these roles—in my case, from the private sector—for specific reasons. If we thought that they were for a very short time, would we give up what we were doing? That might be a consideration. Would the length of term reduce the likely number of applicants?

If restrictions on future employment were to be relaxed, what would you consider to be an appropriate length of time for such restrictions, given that they were designed to avoid a conflict of interest or allegations of corruption?

I do not think that the period would need to be longer than six months. I was trying to work out how I could gain personal advantage from the position that I am in at the moment. Bearing in mind that I regulate ministers, I suppose that if I wanted to work as a senior civil servant with a minister, that could be a challenge—although I can guarantee that that is not going to be my next career move. I do not think that the period of restriction needs to be three years. That is unnecessarily restrictive, particularly if the length of term, or the number of terms, is to be reduced. Six months seems a reasonable period.

Other postholders have restrictions on holding other positions—in other words, on applying for another job—while they are in office except with the prior agreement of the Presiding Officer. Is such a condition sufficient to preserve the integrity and independence of the office, given that you would be applying for a job while you were still in post but the Presiding Officer would have said that that was okay?

There are two different situations there. You could be referring to a person who, like me, performs a part-time role and does something else alongside that, or you could be referring to people applying for jobs that they will hold once they leave the post. Is it the former that you are referring to?

I am referring to future jobs, once you leave the post.

If an individual was applying for a future position, which they would hold when they were no longer in their current position, there is an argument about whether it would be appropriate for a Presiding Officer to comment on that individual's future.

The legislation establishing your office sets the voting threshold for a decision to remove you from office at two thirds of all MSPs. We have previously discussed that with some of the other office-holders. What do you think of the contention that that is too restrictive and that, because the threshold is a proportion of all MSPs, it is too high? Is it appropriate that the threshold should be two thirds of all MSPs?

Yes. I suppose that I had not read it that they would all have to be there on the day of the vote. According to the legislation that set up my post, two thirds of MSPs would have to vote in favour of my removal. If 80-odd MSPs were present on the day and all of them voted in favour of my removal, I could be removed. I do not think that it is unreasonable because there are times when there is a fairly small number of MSPs in the chamber. Two thirds of that small number would mean quite a small percentage of MSPs voting for the removal of an office-holder. Some people will want office-holders to be removed because of the decisions that they have made in the position that they have been put in by Parliament.

The Review Body on Senior Salaries recommended that the annual pay increase for office-holders should be linked to that for the senior civil service, but you considered that your post should be benchmarked against similar appointments in England, Wales and Northern Ireland. Why should that be the case?

In most forms of job evaluation and any kind of assessment of salary levels or terms and conditions, the overriding question is the content of the job, the responsibility and the duties performed. I do not know whether my job is especially similar to that of a senior civil servant, but I know that it is very similar to that of the other two commissioners for public appointments.

It is as straightforward as that.

Yes.

In paragraph 14 of your submission, you suggest that OCPAS should have the power to enforce recommendations contained in its equalities strategy and a mechanism to report failure to implement the strategy. Given that your approach is "enable before enforce", what evidence have you collected on the implementation of the strategy to support the need for a statutory enforcement power?

In relation to reporting failure to implement the strategy, how do you envisage that operating and what benefits would be derived?

Without the statutory power, I am preparing a report for the Equal Opportunities Committee—which will go in as an interim report at the end of this year—explaining that, to date, the Government has not taken the steps that are required to implement the diversity delivers strategy.

I have done what I believe it is possible for my office to do. Since September, I have had an agreement that the Government would perform certain tasks. Despite repeated requests, I have not yet had any evidence that any of those tasks has been performed. That is my evidence that working as an enabler first has not yet been as successful as it might. Whether or not I have a statutory duty, I intend to make the kind of report that I have described. Of course, future commissioners may choose not to, so the statutory duty would ensure that Parliament was kept informed of those issues.

On that point, can you give me a sense of the timescale for your request for action and the Government's non-action? Has it been going on over a long period?

Since September, but some of the actions were to be in place for the beginning of this year, piloted for implementation on 1 April. Certain agreements that were made have not yet been fulfilled.

Will you give us an example?

A simple example is the need for a different form of measuring and monitoring. If we want to know whether the public is served by the public appointments process, and one of the key issues is the diversity of people attracted by that opportunity to serve on a board, we need to know who is applying, and we need much more than the data that the Government currently collects on the fairly traditional streams of disability, ethnicity and gender.

The proposal in the diversity delivers strategy, which was produced last summer, was that we should have a much more detailed form of monitoring, and various pieces of information encouraging people to fill in the monitoring form. I will not go into the details of what that beneficial information would be—there is a whole list—but the agreement was that the form would be produced by the start of this year and that it would be piloted for three months with an applicant reference group that I had set up, and refined for implementation on 1 April. Recently, I wrote to the official who is responsible for that to explain that, from 1 April, I will be requiring Scottish ministers to provide that information and that I am extremely concerned that, to date, there is no basis for collecting the data.

Presumably, the logic of the position is that the code of practice ensures fairness once people have applied but does not address the fact that people might be sifted out earlier or might be deterred from applying in the first place.

There is a huge amount in what you say. The code of practice encourages equality in many ways. It ensures that there cannot be any inadvertent discrimination or unnecessary restriction. However, as you say, that deals only with people who have opted to be part of the process.

The diversity delivers strategy is much wider. I have concerns about a number of the current approaches to publicising opportunities. They are not publicised widely enough and language that would appeal to the target audiences is not being used. How will we find out whether new strategies are working if we do not have some way of measuring the different types of people who are applying? The monitoring form that I mentioned will be one way of capturing that information.

Once we have ensured that many more different types of people are applying from a broad range of parts of society, we will need to find ways of tracking their progress through the process to see whether there are inadvertent barriers that prevent certain people from going from the initial sift to the shortlist and interview stages. I have collected some data on that, but they are not as detailed as they would be if we used a more detailed monitoring form.

Given that your job involves an understanding that certain people might be disadvantaged in an appointments process, is your work informed by the work of the rights bodies?

When I looked at the SPCB's initial proposals, I wondered where we might sit, given that we are not a complaints and standards body. That is another one of those difficult questions that I am afraid that I am going to bounce back to you. We are not an advocacy body, which distinguishes us from the rights bodies that you mention. We operate against a code and our work involves practices. I am trying to extend those practices to as many people as might be interested. The area that is covered by, for example, a human rights body is much more detailed and vast than the area that I cover. Not everyone in our society wants to apply to be a member of a public body, but my job is to ensure that those who might be interested in doing so are informed of the opportunities and are encouraged and enabled to get to the interview stage.

Activity in your area should be more measurable than activity in an area that is covered by a body that deals with a broader issue.

Yes.

In your submission, you suggest that a robust and structured induction and familiarisation process for new appointments is needed. Why do you consider that a handover from the previous appointee would be insufficient?

I hope that I could construct a form of handover process that would be sufficient, but I was talking in general terms, as I want to ensure that that provision will be made in the future.

I am probably showing my lack of knowledge but, when I came into this post from the private sector, having never worked in a political environment, I had no idea how the Parliament and the various committees worked. It took quite a while to get to grips with how I should relate to and report to Parliament and with the ethos of the Parliament and what it stands for in relation to the people of Scotland. I also found there to be a huge difference with regard to financial management. The public sector finance manual is quite challenging—I am not sure how many of you have read it. Of course, there are pros and cons to every approach to financial management, but it took me a while to learn the public sector approach. Further, some of the issues to do with conflicts of interest are not considered by people who do not work in a political environment.

Earlier, I mentioned the content of schedule 2 to the 2003 act. It would have been helpful to me if there had been some sort of familiarisation process in that regard, and I suppose that many other people would find it helpful too.

Are you suggesting that, if someone else is appointed, there should be a time when you are both in post?

Not necessarily. Clearly, I would be happy to do whatever I could to help a successor, but I think that it would be useful if the SPCB had a stronger role in scrutiny and sponsorship and presented the new appointee with a more traditional induction programme that would cover the avenues that might not be covered by the commissioner. Obviously, I will talk to my successor about the code, the approach, the strategy and the research evidence that I have been involved with, but such a programme could talk about how the commissioner should relate to other bodies, what the financial requirements are with regard to the budget bid and so on.

Parliament and the public might want the appointee to know about Parliament, but they might think that it was more important that the person who came to the office had at least a passing understanding of corporate governance.

Yes, and I came to the post with a lot of understanding of corporate governance. In my old life as a consultant, one of my jobs involved developing corporate governance structures. I developed a corporate governance structure for a UK regulator and am involved in the development of one for one of Scotland's major charities. I am not saying that corporate governance is not important; I am saying that the emphasis in the public sector is different from that in the private sector.

I thank you for coming along this morning. If further questions occur to us when we read the Official Report of the meeting—or if we realise that we forgot to ask you something—we will write to you.

Thank you.

Members will have noted that Frank French was invited to give oral evidence today, but he was unable to attend due to work commitments. I invited Mr French to write to the committee to expand on his list of five proposed changes for the ombudsman, and members have that submission in their papers. As agreed, the ombudsman was also asked to respond to Mr French's proposals. That response is also in members' papers. Interested members of the public can read those documents on the committee's page on the Parliament's website.

At its second meeting, the committee agreed to consider in private themes arising from the evidence. That will enable us to consider how best to take forward work on the themes that we have heard about throughout the inquiry. The outcomes of those discussions will feed into the committee's report, which will become a public document. In the meantime, I ask the public to leave the room.

Meeting continued in private until 12:22.