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Chamber and committees

Public Audit Committee

Meeting date: Thursday, September 29, 2022

Agenda: Decision on Taking Business in Private, “National Fraud Initiative in Scotland 2022”, Section 22 Report: “The 2020/21 audit of the Commissioner for Ethical Standards in Public Life in Scotland”


Contents


Section 22 Report: “The 2020/21 audit of the Commissioner for Ethical Standards in Public Life in Scotland”

The Convener

We resume this morning’s consideration of evidence by the Public Audit Committee with agenda item 3, under which we continue our consideration of the Auditor General for Scotland’s section 22 report, “The 2020/21 audit of the Commissioner for Ethical Standards in Public Life in Scotland”.

I welcome our witnesses. We are joined by Maggie Chapman MSP, who is a member of the Scottish Parliamentary Corporate Body. Alongside her is David McGill, who is the clerk/chief executive of the Scottish Parliament, and Huw Williams, who is private secretary and head of office in the clerk/chief executive’s office.

We have received your written submissions in response to a letter that was sent in my name, as convener of the Public Audit Committee, and in Martin Whitfield’s name, as convener of the Standards, Procedures and Public Appointments Committee. We shall no doubt turn to some of the issues arising from that in our questions.

We have set aside some time for questions from members of the committee, but we would like to offer Maggie Chapman the opportunity to make a short opening statement.

Maggie Chapman MSP (Scottish Parliamentary Corporate Body)

I thank the committee for giving us the opportunity to discuss the governance of office-holders with you all this morning. I am pleased to be here on behalf of the Scottish Parliamentary Corporate Body.

The corporate body takes the governance of our office-holders and the work that they do very seriously. As committee members will be aware, we have submitted a paper that outlines the role of the SPCB and sets out the current governance arrangements. As members will see, we have detailed in the paper further enhancements that can be made in the light of the section 22 report on the office of the ethical standards commissioner. I would be happy to provide the committee with information on the progress that we have made.

We do not cover in our paper enhancements to the governance that have been made since 2002 as a result of a number of reviews, including a report on shared services by Audit Scotland in 2006; a comprehensive review undertaken by the then Finance Committee in 2006 into the accountability and governance of our office-holders; and the Crerar report on complaints handling. Further, in 2009, an ad hoc committee of the Parliament was established to examine the office-holder landscape.

Common themes came out of those reviews, some of which are pertinent to today’s meeting. One theme was the need to define and standardise the governance structures, which was subsequently delivered by the Scottish Parliamentary Commissions and Commissioners etc Act 2010.

Another theme was also the Parliament’s role and the need for proper scrutiny and accountability of organisations that are funded by the public purse, and standing orders were changed to enable that to happen. I make it clear that the position is that the SPCB has responsibility for governance and that parliamentary committees have the scrutiny role in relation to functions undertaken by each office-holder.

There is also the need for shared services. That is happening, and the co-location of several office-holders offers more opportunities for future efficiencies.

Thank you for allowing me to place that on the record, convener. We are happy to take any questions that the committee might have.

The Convener

Before I turn to Sharon Dowey, I observe that although this committee is particularly interested in the historical reviews, we are also interested in the history of the outcomes that those reviews have produced.

I ask Sharon Dowey to open the questioning for us.

Sharon Dowey

Good morning. The submission refers to the existing governance arrangements that the SPCB has in place for office-holders, including the requirement to adhere to a memorandum as well as a suite of strategic engagement documents. Is compliance with the memorandum and those documents monitored as part of the annual evaluation process undertaken by the independent assessor?

Maggie Chapman

As part of our governance structures, the office-holder receives, on appointment, an appointment letter that outlines the functions and duties that they are expected to carry out. If they are also the accountable officer, they get a memorandum that sets out all the strategic documents that Sharon Dowey has referred to. As for the reviews and how these things are evaluated and assessed, that is part of the annual process undertaken by the independent assessor. However, the internal and external audit functions that should be in place will also take that into account.

Did the process pick up any non-compliance by the ethical standards commissioner’s office during the 2020-21 reporting period?

Maggie Chapman

One of the issues that we had in 2020-21 was that the former ethical standards commissioner did not make use of the advisory audit board that we would normally expect to be in place and instead had another audit function. The Scottish Parliamentary Corporate Body gave very strong advice on not engaging that particular audit process, but it could not direct that to happen. The corporate body’s powers of direction are limited by statute.

Concerns began to arise as part of the wider-scope audit that was undertaken. I do not know whether David McGill wants to say a little more about that.

David McGill (Scottish Parliament)

Unfortunately, the independent assessor process finally ran into the sand, because the former commissioner disengaged from it. For us, that flagged up a bit of a weakness in the process. The process allowed for an agreed report to be submitted to the corporate body; however, in the absence of agreement on the report, there was no facility for that to then be submitted to the corporate body. One of the changes that we are seeking to make to the process is to ensure that if any office-holder disengages from the process in the future, there is still a mechanism for that unagreed report to be submitted to the corporate body.

Has a full review been done and action taken on the issues that were found?

Maggie Chapman

Actions are on-going, and some changes have been made. However, we do not want this to affect only the ethical standards commissioner; we want to look across all the office-holders for which the corporate body has responsibility. Part of that will involve negotiations and discussions about exactly what those processes are, and that is under way as part of the appointment letter and memorandum. Huw Williams might want to say a little bit more about that.

Huw Williams (Scottish Parliament)

In relation to the ethical standards office, there is now an internal audit function and a functioning advisory audit board providing valuable advice to the acting commissioner. We are looking again at the independent assessment process. We can take forward the point about ensuring that the governance arrangements are there as part of that review.

Sharon Dowey

You mentioned that this was an annual process. If issues are highlighted before the annual review takes place, is something in place to allow timely action to be taken then instead of waiting for the annual review?

Huw Williams

I think that we would look more towards the advisory audit board engaging with the commissioner on a more rolling programme but, again, we can look at that.

10:15  

Maggie Chapman

Following discussions with office-holders, corporate body officers have instigated a regular—usually quarterly or so—conversation with all office-holders. We hope that that will also act as an informal mechanism for identifying issues. It is not part of the audit process, but it is part of the wider communication and broader engagement that we know is necessary.

Sharon Dowey

Your correspondence outlines that, in previous parliamentary sessions, the SPCB has shared with the relevant clerks a paper about areas that it considers that committees should scrutinise office-holders on. Did that take place during session 5? If not, does the SPCB intend to resume the practice in session 6?

Huw Williams

As part of its review, the corporate body has recently written to the Conveners Group. Some points about the scrutiny function were highlighted in the section 22 report, so we are seeking from committee conveners an agreement in principle to a written agreement that would set out the role of the corporate body and the role of committees and what functions they could undertake. If committee conveners agree in principle, we can look at the detail of the written agreement and bring in the points that you have raised about looking at more committee engagement and what sort of engagement that should be.

So, at the moment, it is work in progress.

Huw Williams

Yes.

Is there a timeline for it?

Huw Williams

The Presiding Officer wrote to the committee conveners only last week, so it is subject to obtaining agreement from committee conveners.

Could the committee be updated on that?

Huw Williams

Of course.

Thank you.

The Convener

I take you back to Sharon Dowey’s initial question on the practice of conferring with the clerks on areas that the corporate body considers that committees should scrutinise office-holders on. Did that take place in session 5—yes or no?

David McGill

The answer to that is yes, but it was sporadic. The corporate body’s proactive approach to instigating that practice was probably lax in session 5. There was a reliance on the fact that, historically, standing orders had been changed to oblige the clerk of the Parliament to submit annual reports to committees, and that would trigger the committees’ scrutiny. The corporate body did not follow up on that to make sure that committee scrutiny was taking place. In some instances, there was good engagement between parliamentary committees and office-holders and, in other cases, there was not. It is also worth saying that the role of at least one of the office-holders—for example, the Scottish Information Commissioner—does not fit neatly within the remit of any parliamentary committee, so there is a challenge to make sure that that body and that office-holder are properly scrutinised by parliamentary committees.

The Convener

Thank you. One of the things that we are interested in is the gap that might exist between the theory and the practice. The issue is whether the good practice that you have outlined is actually being followed through, whether it was followed through in session 5 and, if not, how we came to that situation. Martin Whitfield and I wrote to you initially about our concerns that came out of the section 22 report by Audit Scotland, and one of the underlying issues that we outlined in our letter was how things could have got to that stage and why there was not much earlier intervention.

Something else that is referred to in the correspondence is enhanced governance arrangements. The expression that is used in the report is that they had

“deteriorated to a significant degree”.

There is a record of deep-seated problems at almost an interinstitutional level. Could you outline to us what progress you have made in the area of enhancing the governance arrangements and seeking to address the clear deficiencies that gave rise to the section 22 report into the ethical standards commissioner?

Maggie Chapman

I will start and then I will ask David McGill and Huw Williams to pick up anything that I miss out.

It would be fair to say that we are in the process of enhancing the governance structures and arrangements. We are reviewing the material provided to new office-holders by their offices in order to satisfy ourselves that all the information about governance relationships with the corporate body and with Parliament in general is both accurate and accurately stated. That information will be part of the appointment letter and terms of engagement that office-holders receive.

We are also looking to introduce a code of conduct, which will be done in negotiation with existing office-holders to ensure that no changes are made and that there is nothing new that they have to do without their engagement in the process.

We want to ensure that there are arrangements for office-holders to have access to an internal audit function. We know that that is the case for all commissioners—with the exception of the biometrics commissioner, who is the newest commissioner, although the process to establish an internal audit function is under way. We are also seeking copies of all external reports, which will be part of the procedure that the corporate body regularly undertakes.

At an official level, there are formal quarterly meetings with individual office-holders, and we are arranging for the SPCB portfolio member with responsibility for office-holders to be involved in those conversations when appropriate. It is important to state that those regular quarterly meetings are not only for the discussion of corporate body business; office-holders will be encouraged to engage in setting the agenda for those conversations and to raise issues. We very much want it to be a two-way communication instead of our saying, “We need you to do this” or “We need you to give us this.” There must be a dialogue.

The corporate body realises that we must improve communication across the board, not only between the corporate body and office-holders. As others have said, committees should be involved in that process as part of their responsibility for scrutiny and operational functions. Others, such as the Standards Commission, could be part of that broader conversation and communication to ensure that this kind of thing does not happen again.

David McGill might want to say more on this.

David McGill

Maggie Chapman has given some detail of the changes that we are seeking to implement. To take a step back, I should point out that they have come from a thoroughgoing review that we have instigated into all of the ways in which the corporate body gets assurance about the governance framework for office-holders.

There are five ways in which the corporate body does that. First, there is external audit, which is overseen by Audit Scotland. In our discussions with office-holders, they have reported that that process works well, but it might be focused too heavily on financial aspects. I have spoken informally to the Auditor General about the possibility of extending the scope of that audit into governance areas, but it is a matter for him.

The second area is the independent assessor, and we have talked about the weaknesses in that respect and the changes that we are going to make. The third area is the advisory audit board function. There were particular reasons why that broke down in these circumstances, and we are addressing them.

The fourth area is the annual certificate of insurance that office-holders are obliged to submit to me as the principal accountable officer. Finally, there is the committee scrutiny that we have touched on.

The review, which flushed out weaknesses in all of those aspects, was carried out on the basis that we had had 20 years in which the governance worked well. What we had not anticipated, and what had not been designed into the features of the system, was an office-holder disengaging from the process. We carried out our review from that perspective, and it has led to some of the improvements that Maggie Chapman has set out.

The Convener

I am anxious to move on, but I have one almost factual question. Since April 2021, the head of corporate services has been the accountable officer for the Commissioner for Ethical Standards in Public Life in Scotland. We understand that you are in the process of recruiting a new commissioner. Will that new postholder also be the accountable officer?

Maggie Chapman

That is a good question, and I am not sure that we have a definitive answer to it yet. At the time the acting commissioner was appointed, it was appropriate to split the role. As you will have seen from the auditors’ comments, that is not an unusual situation, but the decision was taken to enable the acting commissioner to focus on remedying the issues that had arisen in the office such as the breakdown of relationships, backlog of workload and so on. When the new commissioner is appointed, how that approach has been going and whether it is appropriate to retain the split for a limited period of time or to revert back to the expected combined roles will be something to be considered. We will have that conversation with the new appointee.

The Convener

So it is not something that you would prescribe in the job advertisement and the job description for people applying for the post. I have not looked at the advert. Does it say “You will be the accountable officer”, “You might be the accountable officer” or “You might not be the accountable officer”?

Maggie Chapman

The expectation is that the two roles will be combined for the job. However, given the specific situation that we are in, it is only fair to the incoming commissioner to be open about why those roles have not been combined for the past 18 months and what the process will look like in future.

Can I infer from that that your expectation is that the new postholder will be the accountable officer?

Maggie Chapman

Yes.

Okay. Thank you.

Willie Coffey

I want to turn to the Auditor General’s recommendations. We are an audit committee and are always keen to follow up on whether recommendations are accepted and in process.

I understand that there are 22 recommendations, some of which apply directly to the SPCB. For example, one is about reporting routes for various concerns. Have you clarified what you are doing in relation to that? Another is about reviews of the overall governance structures and continuously assessing whether such things remain adequate.

There is an interesting comment from the Presiding Officer in paragraph 6 of her letter, in which she says that there was no contact from the auditors prior to or following the recommendations being made. Have we embraced the recommendations in any case? Are we carrying them out?

Maggie Chapman

Yes. The corporate body recognises and is taking on board all the recommendations, in particular the three that refer directly to corporate body functions. It is fair to say that the auditors did not engage formally with the SPCB as part of the process. As I said earlier, we want to ensure that we have genuine engagement with all the interested stakeholders, while ensuring that we are not seen to interfere, because the work of the commission must be independent of the corporate body, members and Parliament.

Do we accept the recommendations? Yes, we accept the recommendations that apply directly to the functions and powers of the corporate body. We are working to ensure that we implement the changes that are needed, including those relating to governance. There are some connections between governance and the operations and functions of the commissioner’s office, and it would be inappropriate for us to direct what happens in that regard.

Huw Williams

We take the report very seriously and are considering governance, particularly because we know that more commissioners are in the pipeline—the corporate body is likely to be invited to take on more commissioners, so we need to ensure that the governance framework is working as it should be.

Can Maggie Chapman assure us that the recommendations that were aimed at the SPCB are in train and being worked on?

Maggie Chapman

Yes, they are—absolutely.

I will bring Willie Coffey back in later, but I will now switch to Craig Hoy.

Craig Hoy

I want to focus on the progress that has been made since the situation first emerged. The Auditor General’s report clearly identifies that relationships had deteriorated to a pretty poor standard. How have the working relationships between the commissioner’s office, the Standards Commission, the corporate body and the committees of the Scottish Parliament improved since what we might call their nadir?

10:30  

Maggie Chapman

The work of the commissioner would be nigh-on impossible without good relationships across the board, and those broke down under the former commissioner. The acting commissioner has worked very hard to re-engage with stakeholders—not only the corporate body but external stakeholders—to rebuild both trust and the communication process, which had become non-existent.

When the acting commissioner gave evidence to another parliamentary committee earlier this year, he outlined exactly what he had done in that respect. He had engaged with the Convention of Scottish Local Authorities, individual local authorities, and chief executives and senior managers of local authorities through the Society of Local Authority Chief Executives and Senior Managers. He had also engaged with other public bodies that we would ordinarily expect to have a relationship with the commission.

The acting commissioner has done a lot of work over the past 18 months to rebuild trust and engagement. It is important to say that part of that has been the work that he has done to support the staff in the commissioner’s office, to ensure that they are able to reach out to people they need to speak to and that they get proper information so that those relationships can be rebuilt to achieve effective working across various public bodies.

Craig Hoy

You have talked about improving communications among all the relevant stakeholders, but public trust is obviously important in the process, too. You will know that there has been quite considerable media interest in the weaknesses in governance in the commissioner’s office. From the point of view of the corporate body, have you communicated effectively? Have you had sufficient levels of transparency in relation to both the parliamentary and media inquiries that have come in regarding the activities of that office and the corporate body’s role within that process?

Maggie Chapman

Can I just be clear on whether you are asking about how we have communicated with the public or with commissioners?

Craig Hoy

As the corporate body—both within Parliament and, for example, in relation to media inquiries that have come to that body—have you had sufficient levels of communication and transparency in your dealings, principally with external agencies?

Maggie Chapman

Some of the media inquiries that we have had referred directly to the former commissioner, and it would be inappropriate for us to comment on those publicly at any point in this process. Our communications were clear on that.

On the actions that have been taken and the measures that have been put in place, I hope that we have been clear and transparent about what the corporate body has done and what the acting commissioner has been seeking to do over the past 18 months.

As for answering challenging questions, I suppose that there are boundaries of responsibility to be aware of. As we have already indicated, there is a role for the corporate body in ensuring that governance processes are in place. In relation to commissioners’ offices, the office-holders themselves have a clear responsibility to ensure that that happens. There are limits to the extent to which we can direct commissioners and office-holders if they disengage.

As David McGill and Huw Williams have indicated, there is also a clear opportunity for us to improve discussion between the corporate body and committees. We have been open about that, in saying that we want to have a stronger relationship between the corporate body and the committees that scrutinise the functions of office-holders. I would welcome the continuation of that process.

Craig Hoy

In relation to compliance with the Standards Commission’s statutory directions, such directions were issued by the Standards Commission to the commissioner’s office in 2020-21 for the first time. In April 2021, the Standards Commission concluded that there had been a contravention of the direction and that the convener of the commission should send the Scottish Parliamentary Corporate Body a formal complaint. In relation to the position on compliance with statutory directions as it stands today, are you confident that they are being upheld?

Maggie Chapman

Yes.

Will you give the committee an update on agreeing and implementing a full investigations manual that could be used in future?

Maggie Chapman

Work on the manual is in process. Huw Williams will be able to give more detail on the specifics.

Huw Williams

There is a manual in place. Coincidentally, yesterday, the commissioner consulted stakeholders on an update to it. For openness and transparency, he is looking this time for views about it from the corporate body, committees and other external stakeholders.

Are you confident that it is sufficiently robust?

Huw Williams

Yes.

The Convener

I am not sure that the committee believes in coincidences, Mr Williams, but we are keen to be kept abreast of the progress that you are making, because that was an important recommendation in the Auditor General’s report.

Willie Coffey has another couple of questions before I turn to, last but not least, Colin Beattie.

Willie Coffey

This question follows on from the one that Craig Hoy asked. The auditors also said that all the eligibility decisions about assessment criteria should be reviewed by an external investigator. Will you clarify whether that has been done?

David McGill

That is a matter for the acting commissioner, but my understanding is that he has taken legal advice and there are legal barriers to the reinvestigation of historical complaints.

How can you advise the committee about the outcome of that recommendation? We are interested in following the recommendations to ensure that they are actioned.

Huw Williams

The acting commissioner has taken advice on that. Once decisions are taken, the cases cannot be reopened, but they could be used as a learning exercise for staff. We understand that the acting commissioner has discussed the position with the Standards Commission and advised the external auditors of it. He has to act within the legislation that is in place for him.

Could Maggie Chapman or David McGill update us on that at an appropriate time?

Maggie Chapman

The Standards Commission has been advised that it is not possible to reopen decisions and is content with the process. If anything comes back from the auditors, we can certainly update the committee about it.

You mentioned the funding implications of the reviews of processes and the impact on workforce planning. Will you say a little bit more about that, please?

Maggie Chapman

One of the challenges with which the acting commissioner has dealt over the past year is putting in place some of the human resources processes that we would expect to be in place but which had fallen away. I refer to performance management processes, for example. Every staff member in the commissioner’s office now has an individual action plan on their performance and what is expected of them. Training has been given and guidance has been issued on a suite of activities, including on how to deal with the increasing complexity of the cases that the commissioner’s officials have to deal with.

It is worth noting that the corporate body will discuss the business case next week. Part of that is a detailed workforce plan. We had hoped to discuss it a couple of weeks ago, but the meeting was postponed because of the mourning period for the Queen. That meeting is taking place next Thursday.

The Convener

I will pick up the point to which Willie Coffey alluded. Paragraph 18 of the Auditor General’s section 22 report points out that, in 2016-17, 43 per cent of complaints against councillors and board members were not pursued further, but, by the time we get to 2020-21, 84 per cent of cases lodged were not pursued. There might have been an increase in vexatious cases that inflated that number, but the Auditor General’s conclusion talks about a “loss of corporate memory” and “significant staff turnover”, and it says:

“it is likely attributable to a change to the way in which incoming complaints were initially assessed.”

I hear what has been said about taking legal advice and not being able to reopen cases. However, someone might have lodged a complaint about the misconduct of a councillor, an MSP, an NHS board member or whoever with an organisation that was clearly malfunctioning, so why is it so categorical that the door is closed to them raising their complaint with an organisation that has now been made fit for purpose but which, according to the section 22 report, was not at that time?

Maggie Chapman

I can understand where that question comes from and the frustration that some people might feel, but the corporate body does not have the power to direct the commissioner to reopen and reinvestigate such cases; it is up to the commissioner to make decisions on that. Having sought legal advice, the acting commissioner has been very clear that he cannot do that. As I indicated earlier, he has advised the Standards Commission of that, and the Standards Commission is content with the rationale for the decision.

The broader point is about ensuring that cases are effectively dealt with, and that is why the corporate body will discuss the workforce plan—including providing additional resources to deal with open complaints—next week.

That sounds like the institutions are happy, but what about the complainants? You do not need to answer that question.

Colin Beattie

For many years, the committee has looked at report after report from the Auditor General that has highlighted failures in governance. At times, it seems that it is almost endemic, and it is really disappointing that the SPCB falls into the same category. This seems like an extraordinary failure in governance, and so, quite simply, I ask you: was your governance fit for purpose during the period in question?

Maggie Chapman

As we have attempted to outline, there are things that we are in the process of strengthening, which I suppose implies that those things could previously have been stronger.

One thing to be clear about is the boundaries of responsibility. The corporate body has powers to act in certain instances, but not all instances. One of the important elements of office-holders’ work is that they are independent of direction from the corporate body. The corporate body can provide funding and approval—or otherwise—of annual budgets and approve staff numbers and staff structures; its role is in overseeing governance structures, and it can contribute to and comment on strategic plans and the like, and the governance functions of external and internal auditors bolster that.

However, the former commissioner disengaged from us and from external auditors, or she imposed external auditors that the corporate body had advised her not to. To close the gap, we seek to state in appointment letters and the code of conduct—to which Huw Williams referred—that failure to engage will become a breach of terms of appointment. That was not previously the case, but we hope that it will be in future.

Colin Beattie

An awful lot of what you said is very similar to what we have heard in other instances of governance failure; there is a lot to be done afterwards, but at the time the governance was weak. At what point did you realise that the governance structure was failing?

Maggie Chapman

David, do you want to answer that?

David McGill

I entirely understand Colin Beattie’s initial point and the question that he asked, but I am not sure that I would characterise the governance framework as having failed in this instance. We have said that aspects of it were not strong enough for the particular circumstances that occurred, but I stress that the framework has been in place, in pretty much the format that it is in now, for the best part of 20 years, and we had never experienced circumstances of that kind before.

10:45  

One of the biggest areas of weakness that we have identified is that of things falling between the two stools of the corporate body’s responsibility for governance and the committees’ responsibility for functions. Some of the failings that have been identified are failings of function; they were not things that the corporate body would necessarily be responsible for.

But you would have had sight of them.

David McGill

Sorry?

You would have had sight of them, given what Ms Chapman has already described as your oversight.

David McGill

Yes. Coming to your second question, about when we started to become aware of the failings, it was about not one instance but a number of things that happened at around the same time.

For example, the first thing that we became aware of was the dispute between the former commissioner and the Standards Commission, about its directions. At about the same time, we were in discussions with the former commissioner about her views on an advisory audit board, which were very much at odds with our views. As Maggie Chapman has said, we—the corporate body—did not have the ability to direct on that, but we very strongly advised that she engage with external auditors about the concerns that we had.

We have talked about the difficulties with the independent assessment. That came at about the same time. There were two or three different avenues of concern that were coming to our attention at around the same time, which was summer to winter in 2020.

Colin Beattie

Were you satisfied that you had sufficient processes in place to highlight when such issues were coming up? For example, when were you sighted on the fact that statutory directions were coming from the Standards Commission? That was an extraordinary event.

David McGill

Yes. We were made aware of that in August 2020, I think. There was a dispute about the ability of the Standards Commission to issue those directions, so we took legal advice on that. Our view was very much that the Standards Commission had that statutory ability. That was not accepted by the other party. We therefore took legal advice, and communicated it to the former commissioner. Given the fact that the corporate body cannot direct, although the Standards Commission can, that was the extent to which we had the powers to intervene in that dispute.

Were you automatically advised of those statutory directions?

David McGill

No. That is a matter entirely for the commission. There is no provision in the statute for those to be automatically transmitted to the corporate body.

And yet it is an indication of a failure of governance, potentially, in the commissioner’s office.

David McGill

Potentially, yes. The ability has always been there in the statute to make sure that the overall governance framework works smoothly. However, you are right; there had been no recourse to issuing directions before that point.

But you had substantial influence over the commissioner, given your oversight role. How did you engage with the commissioner? Were there regular meetings and exchanges of information?

David McGill

Yes. We have influence to an extent but, as we have pointed out, we do not have powers of direction. Office-holders are appointees rather than employees, so we do not have the influence that we would have over an employee.

I met with the former commissioner on two occasions and I engaged her in lengthy correspondence, over a period of months, on all the issues that we have discussed this morning.

Colin Beattie

What would an escalation process be? The whole thing broke down, and the governance broke down. Presumably, your relationship became a bit strained, given the differences of opinion and so forth. Where would you normally go from there? How would the escalation process work?

David McGill

Depending on what was being escalated, the escalation process would normally be through parliamentary committees, or straight to the Parliament if we were escalating it to that level.

Our impasse on various issues was compounded by the former commissioner’s being on extended leave for a time, so we did not have the ability to continue the engagement that we had been trying to maintain with her.

Colin Beattie

Given the failure within the organisation, and given that inaction on the part of the SPCB would have led to unfortunate outcomes in terms of investigations being carried out and so on, would it not have been appropriate to bring the problem to Parliament?

David McGill

Because of the impasse that was reached and because of the position that we were confronted with—with the commissioner being on a period of extended leave—the corporate body’s focus was very much on ensuring that the governance framework was improved and working to a satisfactory extent.

That is why the corporate body appointed an acting commissioner in the first place and separated out the roles of commissioner and accountable officer. The corporate body also moved quickly to respond to a relatively modest request for an increase in the staffing complement to allow the acting commissioner to respond to the issues that were being addressed. The corporate body’s focus was very much on getting the office back on track and ensuring that its part of the ethics framework in Scotland was working as it should be.

Colin Beattie

Given that practically everybody that you could point at in the commissioner’s office was underperforming for various reasons, would there not have been a degree of greater urgency and necessity to act swiftly to rectify the situation much more quickly than appears to have happened, given the timescales?

David McGill

I am more than happy to look at that. However, I do not recall a lack of urgency. The corporate body moved swiftly to ensure that the office was functioning in the way that it required to function.

Give me a timescale.

David McGill

In the early part of 2021, when we were reaching an impasse on various issues and the former commissioner went on extended leave, the corporate body moved immediately to appoint an acting commissioner and focus its energy on working with that acting commissioner to get the office working in the way that it should be.

Maggie Chapman

It is worth saying that, prior to the former commissioner going on extended leave, there were repeated attempts by the corporate body to contact her to engage with her. However, those attempts were ignored, even when deadlines were given and very clear requests for information were made. One way in which we hope to ensure that that cannot happen again is to make that kind of disengagement a breach of the appointment contract. We did not have those powers, but the new terms and conditions for future appointments will include that as a breach.

What would have happened if the previous commissioner had not gone on leave and the impasse had continued? What would you have done?

Maggie Chapman

I think that that would have been the point at which we would have sought to use one of the mechanisms that the corporate body has to bring the issue to Parliament. An office-holder can be removed from office if the corporate body is satisfied that they have breached their terms and conditions.

As I said, there was not a clear breach, because disengagement was not one of the terms and conditions. However, we would have been able to have a discussion with Parliament about whether we had lost confidence in the commissioner. That would have been the only other mechanism open to us. However, because the former commissioner was on extended leave, we could not engage in that process.

Colin Beattie

One concern is that there was obviously a lot going on in the background over an extended period. There is a question of transparency around all that. For many months, complaints were coming in and being dealt with, or not being dealt with, and people’s futures were potentially being compromised in one way or another. Over that entire period, whatever was going on behind closed doors was not really contributing to that. Would it have been better if it had been a more open process?

Maggie Chapman

I am sorry—if what had been a more open process?

If the problem and the efforts to resolve it had been more open.

Maggie Chapman

There were challenges around who knew what and when. We are putting in place a whistleblowing process for staff, which I think is in place across all office-holders now. There was not a process whereby staff could raise concerns with an external body. The process was an internal one through the commissioner, which was obviously not appropriate in this case.

Would that not have been a governance issue?

Maggie Chapman

We have now ensured that there is a process for all staff in all office-holder offices.

Colin Beattie

It seems that you are backfilling for deficiencies that were in place under the previous system and that the previous system was not, in fact, fit for purpose. You are now trying to put in place something that, we hope, will be fit for purpose. When will you assess the new governance structure that you have? When will some sort of assessment of that be available?

Maggie Chapman

That is an on-going process that the corporate body is undertaking. It is looking at the documentation that currently exists and considering how to amend the code of conduct that will be part of the appointment of office-holders, which Huw Williams mentioned earlier.

Once all those changes are agreed across all office-holders and all that has happened, it would be appropriate for the corporate body to take a look at how things are functioning. However, we are still undertaking the work that is required to meet the recommendations of the section 22 report.

Are you working with Audit Scotland on that? Once you have put the amended processes in place, will there be some sort of independent review of their adequacy, given the problems in the past?

Huw Williams

We can certainly look at that.

I would certainly recommend it, given the experience that Audit Scotland has had with similar governance failures elsewhere.

Maggie Chapman

That is a helpful suggestion.

The Convener

On that constructive suggestion by the committee to our witnesses, I draw this evidence session to a close. I thank Maggie Chapman, David McGill and Huw Williams for being prepared to come to committee this morning to answer the questions that we had and respond to what has, by common consent, been a very difficult situation that has raised some pretty fundamental questions about the governance structures and whether they need to be reformed.

As I said, we are a committee that is principally concerned with outcomes and not necessarily with reviews. We will discuss our next steps, but I am sure that we will be keeping a close eye on the issue to understand how effectively any changes that you have heralded are implemented. I thank the witnesses once again for their time this morning.

10:57 Meeting continued in private until 11:40.