Chamber and committees

We can certainly ask for that information, but there is no power to compel committees to provide it. One of the reasons for establishing the agreement between the Conveners Group and the corporate body last year was to address some of these issues and to open a line of communication that had perhaps not been as effective as it might have been in the past. It was also about supporting committees in understanding where the different responsibilities—that is, the corporate body’s responsibilities and their own—lay.

As Jackson Carlaw said initially, it is probably the case that not many MSPs come into Parliament with a desire to scrutinise the work and functions of a commissioner or a commission, and when they understand that such scrutiny is among the responsibilities of a committee, I would not say that it comes as a shock or a surprise, but people just do not seem to be aware of such things. The agreement, therefore, was an attempt to try to strengthen that awareness.

I also point out that, as Jackson Carlaw outlined, we have changed the way that we call in commissioners and commissions; we now do so at least annually to hear about issues—that is separate from the budget scrutiny and the annual report stuff that we do. There are mechanisms in that respect.

Does the corporate body routinely get told when committees call in office-holders? No. Can we ask? Yes, but there is no obligation on committees to let the corporate body know what they have done in a particular year.

It is a numbers game.

When it comes to the commissioners whom we currently support and the proposals that come forward—those that have been enacted and those that are in the pipeline—campaign groups, individuals and organisations seek to establish commissioners for a variety of reasons. Some of those elements stem from systemic failure and from a recognition that maybe people’s rights are not being realised or respected or that there are fundamental issues with how people are being treated, particularly in the justice and health sectors. We have already referenced the patient safety commissioner for Scotland; we are also aware of a victims and witnesses commissioner for Scotland, which is in a bill that is going through the Parliament.

Such systemic failures are for the Parliament and the Scottish Government to address. Often, people think that a commissioner can provide an independent and separate view as an advocate, a champion and a mechanism to remedy some of those systemic failures.

I do not know whether Jackson Carlaw or David McGill wants to comment further.

Yes—we probably share that view across the corporate body with regard to mergers or amalgamation. There was a clear suggestion in that respect in 2009.

There needs to be general acceptance across the whole Parliament of exactly the points that Jackson Carlaw made. What are commissioners for? Are they there as a last resort, or to provide particular independent regulatory or scrutiny functions? There is the acceptance that some are for that purpose and are required. However, on the issue of advocacy or champion commissioners, a key question for Parliament as a whole to understand is exactly what the issues are and whether an existing structure or mechanism would be a better route.

For example, we have seen an increase in rights-based questions coming in. We have a national human rights institution in the Scottish Human Rights Commission. What is it not doing? What does it not have the powers to do? What does it not have the resources to do effectively and appropriately that makes people think that we require additional rights-based or rights-focused commissioners? There are questions to be asked of existing structures in this place and in the existing commissioner landscape, but also of our public bodies more generally around their responsibilities and accountability. If accountability keeps coming back to Parliament and if scrutiny is for our committees and Parliament as a whole, are we doing that role effectively?

On obstacles for the generation of new commissioners, there is a body of work in this place to help us all to understand exactly what such bodies are for and, as your first question indicated, where the systemic failures are that people think commissioners are the answers to. Is that relationship, or the line of cause and effect, the correct one? Are there existing bodies—either in the scrutiny committees that we have already or in public agencies—that should be developing those lines of accountability and responsibility?

As Jackson Carlaw has already outlined, the limitations of the corporate body’s role are set out in the legislation that was passed that establishes each of the commissioners.

Our role comes into effect to enact the will of Parliament; it is not a pre-judging role. If we were to establish those processes, it would not be for the corporate body to do so, but for Parliament. It might then give those functions to the corporate body, but we do not have within our remit the ability to create that kind of assessment framework.

If such a framework were to be created, we might have a view as to whether we were best placed to fulfil that role, depending on what it was. At present, however, we do not have the powers to create that role; it would have to come to us from Parliament.

I suppose that this partly answers Patrick Harvie’s earlier question, too, but I come back to why the corporate body is concerned about the current situation. Yes, the issue is about burgeoning costs—or potential burgeoning costs—but it is also about accountability. Why are these bodies set up? Why are they established? What is the underlying cause? Can that cause be addressed in a better way, whether by having somebody specific to advise committees, by giving committees additional responsibilities and powers, or by having different lines of accountability and redress within existing public service structures and how those relate to Government? I think that we need to look at those things, but it is not for the corporate body to say, “This is what we should do.” Instead, it is for us, as we are doing this morning, to say, “These are our concerns, and this is where we see things going if we don’t do anything about them.”

It is for us to point out the financial consequences, the consequences for accountability and the consequences in terms of disappointment, disillusionment, failure and trust being broken even further. After all, if the commissioners do not sort out the problems that people think that they are going to sort out, people are not going to trust them. They play a legitimate—and, as we have outlined, very important—role with regard to regulatory issues and complaints and, I would argue, in relation to some rights and advocacy issues. If the whole suite is brought into doubt or question because they are not achieving what they set out to achieve, that is not good for any of us.

In addition, there is perhaps a distinction between how we view our role in respect of the different types of commissioners. For instance, some of the complaints-handling commissioners report to us a significant increase in complaints, and a lack of resources to deal with those complaints in a timely way. We would then say, “What is it you need? How can we make this work within budget? Do you need to draw on the contingency budget?”—that is the budget that David McGill mentioned earlier.

With regard to outcomes, we have done numbers tracking in quite considerable detail, with the complaints-handling commissioners, but I think that that is of quite a different quality to the outcomes that we might expect to be delivered by the Scottish Human Rights Commission or the Children and Young People’s Commissioner Scotland, for example.

My overall assessment is that it is delivering on what it needs to do. It wants to do more, and we in this place might wish it to do more, but it cannot necessarily do more without additional support.

However, that question is not for the corporate body; it is probably better addressed to the Equalities, Human Rights and Civil Justice Committee, which scrutinises the commission. As deputy convener of that committee, I know that it has regular conversations with the commission, but the matter itself is beyond the corporate body’s remit.

With the proposals that are going through now, one of the questions that we have discussed—again, it is not for us to dictate or mandate—is whether, if a commissioner is proposed to deal with a particular systemic failure, there should be a sunset clause that limits the lifetime of that office to deal with that specific issue and then that is the end of it.

As Jackson Carlaw said, where is the on-going accountability? Commissioners are accountable to Parliament and committees but, in terms of role expansion and role creation, if they are established to do a particular piece of work, how do they grow, expand and take on more responsibilities? Never mind the work that they do—where is the accountability for the overall role changes that happen over time?