Standards and Public Appointments Committee,

Meeting date: Tuesday, May 31, 2005

Official Report 124KB pdf

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Complaints

Item 5 is a continuation of our consideration of the complaints process. The Scottish parliamentary standards commissioner published his first annual report in June last year. In it he raised, among other things, the issue of certain actions on the part of some complainers, which he felt could be deemed to be undesirable.

We heard evidence from Dr Dyer at our last meeting, in addition to which he provided us with a written submission. I think that we should reach a conclusion on this item today. Having seen the papers, does any member have a comment or a suggestion to make on the action that we should take?

I am fairly new to the committee, so perhaps I can give a fresh view of the matter. The status quo is where we should be at; I see no reason for change.

I understand the commissioner's concerns about repeat, vexatious and, occasionally, abusive complaints and complainers. Such behaviour should not be accepted. However, I have reservations about the introduction of a prescriptive code that could be used by people to argue that their complaint was not considered properly. We could be very detailed about how a complaint of this nature should be handled, only to discover that all that that does is to rule out some people. If someone is really determined, they will get round the rules.

Each case should be dealt with on its merits. By their very nature, people who go to the commissioner do so because they feel frustrated or because, as often happens, they feel that no one has listened to them in the past. All their complaints might well have been investigated thoroughly; nonetheless, the commissioner is the last point of complaint. It is right that those complainers' complaints are dealt with.

People need to feel that they are being dealt with appropriately. There should be no reason why the commissioner cannot advise somebody who is complaining repeatedly with exactly the same complaint that he is not prepared to consider their complaint again because he has investigated it once already. That will quickly close the matter down, unless the complainer comes back with something new.

Likewise, I do not think that anybody would object to his reminding people that if they are abusive, either verbally or in writing, he will not engage with them other than in writing. Everybody would understand that that is sensible, and it is probably the way in which most of us, as MSPs, engage with our constituents on those rare occasions when they become abusive. I stress that most people do not become abusive.

When people are angry, they often come across as being a bit more aggressive, but if one engages with them one can usually calm them down. If not, one can say, "I will only engage with you in writing," and consider their complaint. I have serious reservations about our giving the impression, wrongly, that a complaint will not be taken seriously just because the person has complained more than once or is considered to be a vexatious complainant.

For my sake, and for the sake of the clerks and the Official Report, will you tell us whether the draft policy, which is included as annex A to paper ST/S2/05/4/5, meets with your approval? It goes into some detail, but it clarifies the position for the public and it gives the standards commissioner guidance on how he might deal with unacceptable actions by complainers. It also parallels the policies of some of the other commissioners. I do not believe that it is overly prescriptive.

I understand and accept your point that the more detail we go into the more difficult it becomes to do anything outwith the policy using sensible discretion, but the draft policy gives people a fair idea of the conduct that is unacceptable and the actions that the commissioner might take. It does not say that the complaint will not be pursued; it just says how it will be pursued. For example, it suggests that the complaint is dealt with through correspondence and that no more phone calls are accepted. I take it that you do not object to anything in the draft policy.

I do not object to anything in annex A, which is the draft policy on unacceptable actions by complainers. It gives a degree of detail and certainty about the way in which repeated and vexatious complaints will be dealt with and it does so without tying the hands of those who are involved. I would have reservations if it went into further detail or became more prescriptive.

You will note that annex A does not refer to vexatious and repeated complaints. In the past, the committee has expressed sympathy with the standards commissioner about such complaints, but they are not mentioned in the draft policy. As I understand it, the commissioner has seen the draft policy and he is content with it.

As I see it, annex A puts in writing something that should have been happening anyway. It describes the way in which we all expect things to work. It is useful to have it, but, like Karen Whitefield, I would not want it to go any further. I was interested to hear you say that it is in line with the policies of other commissioners. I imagine that the Scottish public services ombudsman works in that way too. I would not like the perception to be that there are different rules for MSPs or that we are being afforded better protection from annoyance or vexatious complainers than a member of the general public would be.

The statements in the report on the policy of the Scottish public services ombudsman and the Scottish legal services ombudsman seem to be reasonable. The public services ombudsman aims to manage the conduct of complainers rather than to exclude complaints from the process. That is an important distinction. Of the Scottish legal services ombudsman, it says that it is vital never to judge the complainant, because the only thing that matters is whether the complaint is justified. Many of the people who have made improvements throughout history have been real pains in the backside but have kept on and on about the point that they were making. It is in the nature of complainants that they go on in what other people regard as an unreasonable fashion. We simply have to live with that.

It is quite fair to have rules whereby, if the person is rude and keeps on phoning, writing to or harassing the commissioner, the commissioner makes it clear that he is pursuing the complaint but does not have to put up with the complainer's approach or speak to them on the telephone. There is a distinction between trying to have reasonable control over the unacceptable behaviour and exploring the complaint while having as little as possible to do with the person who is complaining. If lots of people submit identical cases to the commissioner, I would think that the commissioner can say that he is pursuing the complaint already and that the people who have submitted identical complaints will get a copy of the report in due course. That will ensure that he does not have to have extensive correspondence with every complainant.

I have heard nothing from any member to suggest that they are opposed to the draft policy that is set out in annex A. However, I would rather that members of the committee would make a statement one way or the other. Do we support annex A and believe that it is a step in the direction that the commissioner should want to go in and that it should be our policy, or do we not?

I agree that annex A seems to be a reasonable way forward. Like other members, I would not want to be too prescriptive. I think that annex A goes as far as we should go and is eminently sensible.

I have often said in this committee that flexibility is the watchword and I entirely agree with comments that other members have made. Allowance must be made for flexibility to come into play.

I get slightly worried when I see phrases such as:

"It is recognised that some people use bad language when they are in a panic or are frustrated. It is important for the Commissioner to determine whether this is the case or not."

I do not think that that sentence is necessary. Surely part of the subjective role of the commissioner is to decide the circumstances and the context of the unreasonable behaviour. However, I am not against proceeding with annex A.

Are you suggesting an amendment to it?

I do not think that it would be a worse document if that sentence were removed but I am not going to go to the wall on it.

In that case, is everyone agreed that we adopt annex A as a policy and advise the commissioner of that decision?

Members indicated agreement.

I was under the impression that, while annex A is now our policy and the commissioner can work to it, it would have to be incorporated into the code of conduct and agreed by the Parliament at some point, but our legal adviser informs me that, once it is our policy, it does not need to be endorsed by anybody else, which is even better.

Meeting continued in private until 12:36.