Official Report 130KB pdf
I welcome the witnesses, who are John Swinney, the Cabinet Secretary for Finance and Sustainable Growth; Tom Harvie-Clark, who is the head of the Scottish Government's water industry branch; and Gordon Kilpatrick, who is the head of the sponsorship and review branch in the Scottish Government's offender management strategy division. I thank John Swinney for coming to give further evidence to the committee. Before we move to questions, would you like to make a brief statement, cabinet secretary?
I am pleased to be here again with the committee. With your permission, convener, I would like to make a brief opening statement.
Which of the Scottish Prisons Complaints Commission's current functions is it proposed will be transferred to the Scottish Public Services Ombudsman and what will happen to the remainder? Not all the functions will be transferred.
We propose that all the functions that are currently exercised by the Scottish Prisons Complaints Commission be transferred to the Scottish Public Services Ombudsman. The element that is perhaps a grey area relates to complaints about disciplinary decisions that are taken in the Scottish Prison Service. Such complaints are currently not considered by the prisons complaints commissioner, so we do not propose to transfer that area of activity to the SPSO. Instead, those complaints will remain the responsibility of the Scottish Prison Service and ministers. However, in every other respect, we consider that the functions that are exercised by the SPCC are transferable to the SPSO.
The advantages that the Sinclair report argues would arise from transferring the commissioner's functions to the ombudsman are to do with responsiveness and consumer experience. Given that the ombudsman's turnaround times show that 31 per cent of investigations were completed within 12 months and that the latest customer satisfaction rating showed that there were more dissatisfied customers than satisfied ones, is the Government aware of any other advantages that would justify the transfer?
I will make two points. First, if members of the public are dissatisfied with their experience of the ombudsman's service and are concerned about the turnaround timescale, that must be tackled as a whole and not just for the sake of the folk who interact with the SPSO. That position cannot be satisfactory or acceptable to any of us. My general conclusion is that if the level of performance is not desirable, it needs to be tackled and improved.
You need, however, to have a view on why levels of dissatisfaction are where they are. If it is not to do with the personnel—I contend that it is not—and you do not have an explanation for why there is a problem, then adding to the SPSO becomes a challenge. You cannot just say that it would be good if the situation was better—we all want complaints to be handled properly. Is there something structural about bodies that deal with complaints that leads to that level of dissatisfaction? If that is the case, is it wise to add to the SPSO other bits of complaint handling?
Clearly, we could look at the matter both ways. We could say that we should, given that there is dissatisfaction with the SPSO, take away from it the handling of a range of complaints about different policy areas, but that would undermine the fundamental instinct that drove Parliament to establish the SPSO, which was the desire to draw together a number of diverse and disparate complaints-handling functions. I am simply arguing for a continuation of Parliament's view when it founded the SPSO, which was that we should have a more integrated structure of complaints handling through the SPSO.
I want to explore the transfer of functions from the Scottish Prisons Complaints Commission. I understand that the Government's response to the action group reports suggests that responsibility for investigating clinical prison complaints should be transferred. Will you set out your current thinking on the issue? Are you recommending that that responsibility be transferred to the SPSO or to NHS Scotland?
That is an issue on which the Government has not yet come to a final view. We are consulting on which option would be preferable. The argument in favour of that function going to the SPSO is that it would integrate another element of complaints handling into that body. The argument for that responsibility going to NHS Scotland is that the national health service might have greater technical and clinical expertise in handling clinical complaints. The SPSO handles NHS patients' general complaints about the NHS, so there is obviously a level of expertise within the organisation that means that it should be equipped to handle such issues. I am keen to draw our deliberations on the matter to a close shortly.
Our officials have been advised that no legislation is required to transfer the functions of the Prisons Complaints Commission to the ombudsman. Why not simply make the necessary arrangements?
That is correct, but the prisons situation is at odds with a number of other types of complaint that have statutory foundations. Police complaints, social work complaints, housing complaints and health complaints all have a statutory basis, which means that prisoner complaints are the odd ones out. Our giving them a statutory basis will give us the opportunity to ensure that all such complaints are handled equally.
In oral evidence, we were warned that the transfer would require that the ombudsman be given access to "top-quality legal advice" and we were given other indications of heavy legal spending by the Scottish Prisons Complaints Commission. However, the subsequent written response to our question on that suggested that no legal expenses were incurred prior to the current year and that there would be spending of £30,000 this year. Will you confirm the position on the need for legal advice and whether the Scottish Government would meet those costs in the future, should a transfer of functions occur? There was a bit of dispute about whether that would happen.
The need for access to legal advice would depend entirely on the character and elements of each complaint. Exactly the same applies at present to the ombudsman, who may require legal advice in certain complex and difficult cases. If I recall correctly from my experience on the Finance Committee in the previous parliamentary session, there was always a great debate about what budget provision should be made for legal advice that was required by the ombudsman: should the SPCB allocation to the ombudsman contain an allowance for significant legal costs or should funding for such costs be considered when the circumstances arose? If my memory serves me right, the SPCB took the view that, when there was a need for sophisticated legal advice, it would consider the arguments in favour of that need and make financial allocations based on that judgment.
I refer back to the question that Jamie Hepburn asked. You will appreciate that the committee is reaching the point at which we will consider our report. We need to make a recommendation. Do you have any idea when you will consider transferring responsibility for the clinical prison complaints to the ombudsman or the NHS?
I cannot give you a specific date, but I will be happy to explore the timescale and notify the committee in writing.
That would be helpful.
There are two factors at work here. Waterwatch has two responsibilities: one is complaints handling and the other is promotion and protection of the consumer interest. You can argue it any way you want, but the current situation essentially draws together the complaints-handling function and consumer interest protection in one organisation. In trying to reduce the number of bodies, we are trying as far as possible to put all the complaints-handling issues into the same organisation. When members of the public are dissatisfied with something that has happened to them, their first port of call, which will be able to deal with the overwhelming majority of such concerns, will be the Scottish Public Services Ombudsman. That function and role mean that the SPSO can be promoted and marketed as the place to go when one has a complaint.
Waterwatch investigates complaints against all water providers in Scotland, a number of which are private companies. We believe that legislating to transfer Waterwatch's functions would not be completely possible. We understand that about 36 per cent of the complaints are about private companies. By whom would future complaints be handled?
I envisage such complaints being handled by the SPSO.
By the SPSO?
Yes.
Are you talking about complaints about the private companies, too?
Waterwatch currently undertakes some of that responsibility. Essentially, we are transferring the Waterwatch functions to the SPSO and giving it an integrated complaints-handling function.
I have been told that that is not legislatively possible.
It would be perfectly possible for complaints about, for example, Business Stream—which is a Scottish Water subsidiary—to be handled through that mechanism. We will explore the details of the process to determine whether there is a problem.
We might need to explore the issue further and perhaps clarify it in correspondence.
The cabinet secretary will be aware that Waterwatch's role is wider than the investigation of specific individual complaints. It acts as an advocate for consumers and can undertake more systemic investigations, which the ombudsman currently cannot. How would those functions remain?
It comes back to the fundamental point about Waterwatch having two distinct areas of activity. One is complaints handling and the other is the promotion and protection of the consumer interest, which takes it into the sphere, to which Mr Hepburn referred, of carrying out inquiries into performance in a particular area. That area of activity is entirely within the sphere, the outlook and the perspective of Consumer Focus Scotland, which will be able to look at the matter from what is essentially a specialist consumer perspective to see what the experience is in a number of different sectors and ensure that people's general concerns about the performance of the water industry are articulated and considered.
I have another question on the funding of Waterwatch's functions. I understand that it is funded by what is termed an industry levy. I think that the SPCB has some difficulties with the concept of taking on that responsibility. Do you have sympathy with its view? If so, how do you propose future costs will be met?
I do not consider that it is an industry levy: it is paid for predominantly by Scottish Water, so although the Government obviously makes a contribution to Scottish Water, the funds will predominantly come through water charges that are levied on householders and businesses. The cost will emerge in the costs of Scottish Water, so it is essentially a consumer cost.
You will understand, cabinet secretary, that what has been said does not immediately lend itself to a belief that there will be administrative simplification. If it is simpler and better to have an industry levy—perhaps we should be a little clearer about how the money is sourced—the levy holder will be rather anxious to know, bearing in mind the accountability to them, that Waterwatch Scotland will be retained as a discrete entity for the purposes of its accounting functions. If there is a merger and Waterwatch Scotland becomes part of the SPSO, it is not easy to see how that will be achieved when there is the need to be able to tell the levy holder the purpose for which expenditure has been used.
We can take the view that that issue cannot possibly be overcome because if we decide to take that route we cannot attribute costs to water complaints in our accounting structures in the SPSO, but that would ignore a range of different elements that enable costs to be attributed in the fee-charging and accountancy structures with which we are all familiar in our modern society. If we did not go down that route, we would inevitably end up with separate and distinct bodies and accounting units. That would not reflect practice in today's society.
I was really making a suggestion the other way round. It seems to me that our present accounting systems can properly attribute costs but that some functions will have to be merged if there are to be any savings from bringing all the bodies together. It has been recommended that a large number of people should be brought into the SPSO. Some of the bodies are not very big in an administrative sense, but the case in question is rather unusual in that fees are levied and what happens must therefore be accounted for. Indeed, the issue of the 36 per cent of complaints to the public sector about private companies and the levy remains unresolved. I think that there would be unnecessary complications.
We can look at the matter either way: there could be unnecessary complication or we could miss an opportunity to rationalise the complaints-handling infrastructure in Scotland.
I would like to clarify something. The levy covers both the consumer protection and complaints aspects of Waterwatch. How will you split up those aspects? Let me say as an aside that a water bill tells a person about Waterwatch. I suppose that that could be removed, but what you have said is slightly confusing me. How will the consumer protection and complaints aspects be split?
Quite easily, because they are two completely different things. The complaints function involves the handling of complaints about the quality or effectiveness of service, whereas the consumer protection function involves ensuring that water companies and the water industry act in the spirit of the public interest. Those are two fundamentally distinct elements of the process, and I do not see the great insurmountable difficulty in distinguishing between the two.
Has there been consultation with consumer watch about its taking over the role?
Do you mean Consumer Focus Scotland?
Yes.
Yes. We have had informal discussions.
Is it happy?
Yes. It is keen to do it.
It is happy to take over the role.
Yes.
The Sinclair report recommended that Waterwatch Scotland's investigatory function should be transferred to the SPSO. Given that Waterwatch's turnaround times and customer satisfaction rates are significantly better than those of the SPSO, how will the proposed transfer improve customer service? I refer to my earlier question about the dissatisfaction with the SPSO's turnaround times.
The purpose of the Government's proposal is to encourage the effective and efficient handling of complaints, not to deliver a diminished customer service to individuals. I return to an answer that I gave earlier: if there is concern about the performance of the Scottish Public Services Ombudsman, we need to get it into a better state of affairs. The fact that it is not performing effectively should not restrict other policy and structural choices that we might want to make, such as the combining of various functions to improve customer awareness and wider efficiency in the public sector.
You accepted the justification for transferring Waterwatch, but you decided not to recommend the transfer of police complaints because, as the Sinclair report expressly comments, the police complaints commissioner for Scotland is a recent creation. Given that Waterwatch went live in April 2006 and the police complaints commissioner for Scotland went live in April 2007, can you explain what principle Sinclair adopted for determining whether a body should be transferred to the SPSO?
The reasoning of the Sinclair group is the reasoning of the Sinclair group—it is not our reasoning. My view is that the introduction of independent police complaints handling involved not only the creation of a new organisation but a new element of our processes as a country, and we arrived at the judgment that we must ensure that the approach can find its feet and operate effectively. The approach is a new one for everyone, including members of the public, the police and the public authorities, and we judged that it is too early in the process to change things.
This question relates to an earlier one. Can you indicate what evidence was available that justified the fit-for-purpose action group to recommend that the SPSO should lead on a range of functions and be given responsibilities to co-ordinate training and issue guidance, given that its performance on turnaround times and customer satisfaction is inferior to that of other groups?
Again, I cannot speak for all the reasoning behind the Sinclair group's recommendations, but I imagine that the reasoning was based on the fact that Parliament set up the SPSO as an organisation to be at the core of complaints handling in Scotland. The Sinclair group would have made the fair assumption that there is an opportunity to ensure that the ombudsman is at the core of ensuring that quality advice and expertise is available across the board.
It has been suggested that implementing the Sinclair recommendations will involve substantial resources. One recent estimate for the website to meet the recommendation to establish a cross-sectoral network of complaints handlers and a website to allow complaints handlers to share best practice in complaints handling was of start-up costs of £1.5 million and annual running costs of £500,000. Do you have an estimate of the costs to implement all the recommendations affecting the ombudsman? Will the Government commit to meet the costs in full given that the website seems much more expensive than mine?
And mine, convener. I cannot imagine what £1.5 million would be spent on, but there we are. I do not know much about it, but it seems to me an extraordinary cost.
Do you have any views on whether the recommendations of the Finance Committee report in 2006 on governance and accountability should be fully implemented?
I am very familiar with that report because at that time I was a member of the Finance Committee, which took a lot of evidence on the whole landscape. I thought that the report was well reasoned and recommended a number of important approaches to take on governance and accountability. If memory serves me right, the committee unanimously accepted the report—in fact, I think that there was some dissent from Mark Ballard, one of our former Green colleagues—and there is a lot of good substance in it. Of course, many issues are not for the Government but more for Parliament in considering how it interacts with the ombudsman and other bodies.
Do you think that commissions have benefits when compared with individual commissioners?
We must focus on the outcome of the process. None of us wants there to be any diminution in the ability of individuals or our society to feel the benefit of the independent scrutiny that can be undertaken through the various channels of inquiry. However, as the Finance Committee reported in 2006, there are opportunities for a great deal more common working and to generate efficiencies within the process. I would be keen for that agenda to be pursued without diminishing the extent to which individuals in our society are supported by the relevant bodies or the ability of those bodies to articulate fully the views of those individuals.
One proposal that the SPCB placed before us was the amalgamation of the functions of the children's commissioner and the Scottish Human Rights Commission into a new rights body. Do you have any thoughts on that proposal, particularly with regard to its possible effect on the functions of those offices?
As I said to the convener, none of us wants any diminution of the ability of groups and individuals in our society to benefit from the work of relevant commissioners or appointees, but there is scope for us to generate efficiencies in the way that that work is done. Essentially the purpose of the inquiry is to determine whether and how that can be undertaken, which is properly a matter for the Parliament, not ministers.
We are aware that the Government is examining the landscape around the bodies that it has responsibility for. Can you update us on the proposed timing of the forthcoming public services reform bill and give any further indication of what it might contain?
The bill will be introduced to Parliament in late May. It was delayed from February in order to take account of the inclusion of the provisions on creative Scotland. It will deal with the simplification programme, the establishment of creative Scotland and a range of associated issues.
We have no further questions, so I thank you for your attendance, cabinet secretary. If there are any matters that we would like to clarify once we have read the Official Report, we will write to you.
Meeting continued in private until 13:09.