Chamber and committees

Essentially, we need to have procedural arrangements in place that enable that to happen. Those arrangements did not exist prior to the changes that I am putting to the committee this morning.

On that last point, yes, it is all former ministers.

In relation to cases where a complaint is not upheld, just to be absolutely clear, we would not publish any details about the case, other than the name of the minister and the fact that a complaint had not been upheld.

I will not say to the committee that I think that that is an absolutely certain judgment. I hope that I have left enough scope for the committee to consider the point. Indeed, Mr Lumsden, in his question, presented a different argument from the one that the convener and Liz Smith potentially present to me. I understand the arguments that are made. I have wrestled with those very questions, and I came down on the side of the preference for absolute transparency. However, I accept that there is an alternative argument that could be applied in these circumstances, and I will, of course, consider it should the committee make that point to me.

I accept that, if any complaints are received, it has to be acknowledged that there have been complaints—I do not think that there is any issue with that; indeed, it has been part of the demand that has been made of us in terms of transparency, and it is the point that lies at the heart of Mr Lumsden’s question. In a scenario in which we receive a complaint and it is not upheld, we would disclose that a complaint has been received. If we were to say that the complaint had not been upheld but it was not clear whom it was against, there would be a question mark across all current and previous ministers in that process.

There is a very careful balance to be calibrated here in deciding what information should be available in such circumstances. I do not think that there is any dispute about the fact that, if a complaint has been made and upheld, a certain amount of detail should be disclosed, but with protection of the names of complainants and witnesses. The committee is alighting on an issue for which there is no absolutely certain answer.

I will go back to the point that Liz Smith raised, to which I did not respond in my earlier answer, about what the approach says to people who might think about becoming involved in politics. We are of course all familiar with the degree of public commentary that can go with the work that all of us are involved in, and that adds to the mix.

The key thing is the question of transparency, because I regularly hear calls for the Government to be transparent about absolutely everything, and, obviously, we have statutory and legislative provisions in place that require us to act in such a fashion. The judgment that I have come to on the matter is that this is the right balance to strike, given that, to ensure that we provide an entirely transparent picture, we will report on the fact that we have had a certain number of complaints. It is a matter of dialogue and scrutiny. The Government is trying to respond to legitimate calls for transparency. As I indicated in my earlier answer, if the committee judges that that is a step too far, I will of course listen to that feedback.

No, I do not think that it sounds like “not proven”.

We are in different language here, convener. It is about whether a complaint has been upheld—yes or no. If it has not been upheld, it does not have validity.

It will be handled by the Scottish Government’s propriety and ethics directorate, which was established in autumn 2021 to ensure that we have in place all the proper procedures and processes that members of the public would reasonably expect the Government to have for the handling of such matters.

The Government will do so.

I will be corrected if I am wrong, but that would not register as a complaint, because it would not pass the threshold for consideration. As Mr Lumsden will recall, an initial consideration is undertaken to judge whether what has been presented is a substantive complaint that passes the threshold for consideration. If the material did not pass that threshold, it would not be considered a complaint and would not be reported.

I am grateful for the opportunity to give evidence to the committee on the progress of the procedure for handling complaints by civil servants about a current or former minister’s behaviour and the continuous improvement programme to promote the culture and behaviours that we want to see in the Scottish Government.

When I appeared before the committee on this subject in April, the procedure had been operational from 24 February, following a period of wide engagement with Scottish Government staff, trade unions and the committee. The procedure is founded on a grievance process that has to balance employment law with public law and is consistent with the Advisory, Conciliation and Arbitration Service codes and guidance. Since it is a grievance procedure for staff, it rightly emphasises the need for privacy and confidentiality, with outcomes restricted to only those who are closely involved.

As the First Minister set out in Parliament, and as I have said in correspondence to the committee, given the legitimate public interest issues that are at play, it is appropriate for us to balance the expectations of confidentiality with the public role of a minister if a complaint is made about them. We have been working to make proposals to change the procedure and the Scottish ministerial code to allow for greater transparency in the reporting of the subject of a complaint. I see that as a natural development of the procedure.

Having trust and confidence in the process is fundamental to getting people who feel that they have a legitimate complaint to come forward. It is important for me to set out that the public disclosure of the outcome would not affect the confidentiality of the process with respect to the complainer or others who are involved in the case, such as witnesses. I cannot stress that point strongly enough. On the confidence of ministers, they should be assured that the process will be fair and that expectations will be set out and clearly communicated.

Therefore, after careful consideration, we propose to update the procedure and the Scottish ministerial code to reflect that, after the conclusion of an investigation, including any appeal, the name of the minister who is the subject of a complaint will be publicly disclosed as well as the outcome of the complaint. In addition, a redacted decision report for upheld or partially upheld cases will be published. Complaints that are not upheld are a different scenario, and it is proposed that more limited reporting would be fair. As such, the minister’s name and the outcome will be published for a period of six months. Changes will not be made retrospectively to investigations that have already been completed.

Under the changes that I am discussing with the committee today, the publication of the outcomes of future complaints about former ministers will be reported in the same way as complaints about current ministers. On a six-monthly basis, we will proactively report on the Scottish Government website the number of cases that are under investigation and any that concluded in the previous period. The proposals mean that ministers past and present will work to a more transparent set of reporting principles for upholding standards of behaviour in public life. We will publish those figures for the first time in December after a short period of reflection on the changes with the committee, staff, ministers and trade unions.

We have worked in tandem with our trade unions and staff and taken soundings and advice from others with experience in complaints handling. Should there be complaints in the future, in publicly reporting the information that I am setting out today, I believe that we are striking the right balance between the public interest and maintaining the privacy and confidentiality of the complainant. I look forward to discussing the updates with the committee.

In addition to the updates to the procedure, I am pleased that the continuous improvement programme has successfully completed the activity that was scheduled for the end of each quarter. A programme update was submitted to the committee at the end of July, and another one will be completed to reflect the activity scheduled for the end of December. The programme has made good progress. The measures of success have been identified from the Scottish Government’s people survey and will be supplemented by the engagement that the propriety and ethics directorate has started throughout the organisation.

The measures attempt to assess the degree to which the continuous improvement programme has contributed to an improved culture of openness and inclusion in the workplace. It is a workplace where bullying and harassment is not tolerated and where early intervention and mediation continue to have a key role in addressing the majority of issues that arise before they become problematic. However, it is also a workplace where—if needed—our staff feel able and willing to speak out against unacceptable behaviours and understand and have confidence in the processes that are in place.

I look forward to discussing the programme with the committee.