Local Government and Communities Committee

Meeting date: Wednesday, December 6, 2017

Official Report 747KB pdf

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Commissioner for Ethical Standards in Public Life in Scotland—“Annual Report and Accounts 2016/17”

For item 2 we are joined by the Commissioner for Ethical Standards in Public Life in Scotland. The committee will take evidence on the commissioner’s “Annual Report and Accounts 2016/17”. As members will be aware, the Standards, Procedures and Public Appointments Committee will also take evidence from the commissioner on his annual report and accounts at its meeting next week. I welcome Bill Thomson, the Commissioner for Ethical Standards in Public Life in Scotland, as well as Claire Gilmore, senior investigating officer, and Ian Bruce, public appointments manager, from the commissioner’s office. There is no opening statement, so we move straight to questions.

In one year you have spent £949,000 and dealt with 224 complaints, only 18 of which found a breach of any sort of code, which is less than one in 10. A crude breakdown based on what you have spent on those 18 cases gives us a figure of about £53,000 per case that ended up as a breach, so in the vast majority of the cases that you dealt there was no breach. Do you not think that that is a colossal waste of money?

12:15  

There is nothing like a diplomatic question to open up an evidence session. Who would like to respond on the question of value for money?

I have been asked a question of that nature before.

Last year.

I pointed out then that one third of my budget is not even spent on conduct complaints, so I am disappointed that that did not register. Even on the crude calculation, the figures are wrong. Behind that question there is an implication that the complaints that do not go forward as breaches are valueless, and I am not sure that the people who submitted those complaints would agree with that.

That is a very brief answer. The point that I am making is that, every year—not just this year—you deal with hundreds of complaints but only a tiny amount end up with a finding of a breach. Surely you must accept that a large percentage of those complaints are simply spurious. You are looking puzzled, Mr Thomson, but the biggest number of complaints are in the category of disrespect, which could mean all sorts of things. It could mean a mild insult. I could mildly insult Mr Gibson, who is sitting on my right, and he could issue a complaint that you would have to deal with. That would cost the taxpayer money, but it would be an entirely spurious complaint. My point is that we seem to be wasting a lot of money dealing with frankly trivial complaints, whereas we end up with only 18 cases out of 224 in which you have found a breach.

It would be helpful for the committee to know whether, although anyone can make a complaint, there is a filtering and gate-keeping process for deciding how quickly some complaints are processed and investigated, and what happens with the ones that are not actioned or investigated in greater detail. Is there a sifting system? Mr Simpson is talking about potentially spurious complaints, so it would be helpful to know that.

I mentioned last year that we had introduced a process that I called initial office assessment, and we still run that process. There is, as the name suggests, an initial assessment when the complaint comes in. Some are entirely outside my jurisdiction; they may not even relate to councillors, or they may relate to things that are entirely outside the role of councillors and are therefore not covered by the code.

I agree that disrespect can cover a broad range of things, some of which are certainly trivial, but I am not sure that I would call them spurious. If somebody goes to the trouble of making a complaint, they rarely regard it as spurious. Some of those complaints end up with the councillor against whom the complaint has been made being suspended, and I would suggest that such complaints are not in any way trivial or spurious. If the political will of the Parliament is that time should not be spent on such complaints, that is an option that you can pursue in terms of legislation.

We will come on to that, but there might be supplementary questions.

Thank you for joining us, Bill.

During that line of questioning, it occurred to me to ask you—I do not think that there is anything in your report about this—whether you have the ability to deal with vexatious, vindictive or politically motivated complaints. If you notice or come to the conclusion that a complaint is of that nature, do you have a way of dealing with it?

Under the legislation, I do not, but a couple of years ago, I suggested to the predecessor committee that there could be some sort of order of priority for dealing with cases that would allow some not to be followed through. That suggestion did not find favour with the committee, so, at the moment, I am required to investigate all complaints that come to me, regardless of the motivation.

On average over five years, 80 per cent of the complaints come from members of the public, but that does not mean that they are all unconnected to the political process. The complaints—we are talking about councillor complaints here—that come from councillors over that period average about 19 per cent of the total. Some of them are clearly politically motivated, and some of them might well be tit for tat. Of course, that does not mean that the subject of the complaint is irrelevant, spurious or trivial; it might be quite serious.

Indeed, but that is not what I was asking about. A matter that some people might consider to be irrelevant or trivial might be considered by others to be extremely serious. I am trying to explore the issue of the more vexatious complaints. Is any recourse available to you that would put people off making such complaints?

If that were to be done, I would need some authority to do so, and as things stand, I do not have that.

What I can say is that I do not have a number of regular complainers. Over the years, there have been some elected members who have put in quite a number of complaints, and those same individuals tend to have had a number of complaints made against them. It seems to be a way of working. However, I am not in that position at the moment.

The situation is not like the one that existed with petitions in the early days of the Parliament, when people would read the newspapers and decide that they ought to submit a petition, and 20 petitions would be received on the same subject. We are not in that position at all.

It has been drawn to my attention—I am sorry that I missed it—that you mentioned in one of your replies that it is not within your power to prioritise or to have a hierarchy of complaints, and that you must treat each complaint in the same way, using the same process and the same mechanism. Would you like to have the ability to prioritise different categories of complaint in different ways?

At the time at which I first made that suggestion, the number of complaints was going up almost inexorably, and I was concerned that it would not be possible to handle them all without significant additional expenditure or limiting the complaints that were looked into.

I have a general statutory power to decide whether to investigate a complaint, but I am, of course, covered by the general administrative law, so if I were to act unreasonably, my decisions would—rightly—potentially be subject to judicial review. I accept that that would be an extreme position to adopt, but I do not want the office to be in a position in which it is being legally challenged all the time and is spending a lot of effort and money responding to legal challenges rather than—as we do at the moment—filtering complaints and investigating only those that appear to have substance.

That was helpful.

I have some other questions, but I can hold them back if other committee members want to ask a question.

I want to ask one about credibility and consistency. Let us say that there are two MSPs sitting next to each other in a committee meeting, both of whom fail to declare an interest, and someone who is watching on telly at home decides to make a complaint about one of those members not declaring an interest, but not about the other one, who has also failed to declare an interest.

As you know, Mr Thomson, I have corresponded with you on the issue. You will investigate the member about whom a complaint has been made, but the fact that the other member, too, has allegedly failed to declare an interest does not even get considered. Where is the consistency and credibility in such a system?

Surely where something like that is supposed to have happened, you investigate either all cases or none, instead of saying, “Nobody complained about this person, so they don’t have to bother declaring an interest, but somebody complained about you, so we will investigate the matter—and by the way we’ll take eight or nine months to do it.”

Your response, Mr Thomson?

And I should say that I am talking about my own case. [Laughter.] No—I am being serious. I feel really embittered by the whole process, to be honest with you, but I am not going to go into any detail. The crux of it is: two people do the same thing, but one gets investigated and the other does not.

What are your reflections on that, Mr Thomson?

First of all, I will give a lawyer’s answer. The second person allegedly did the same thing; it might not have been investigated to the point where it was established. It is probably the case with most regulatory systems outside totalitarian states that it is those things that come to the regulator’s attention that are investigated.

If you wished my role—or, indeed, the role played by somebody completely different—to be going around investigating potential breaches, we would have to operate in a completely different way. Obviously, I am familiar with Mr Gibson’s circumstances; I am not going to go into the detail, but I understand why he is irritated. However, we are talking about quite a step from the system that we have at the moment, in which anyone can make a complaint—and I appreciate that that might mean that some are spurious, to use Mr Simpson’s word—to a system in which the regulator effectively goes looking for trouble and investigates things. To be blunt, there is nothing to stop someone in the position that Mr Gibson felt himself in making a complaint about the other person.

I actually have a supplementary on this specific issue, Mr Gibson, but I know that it is very personal to you, so would you like to explore it a bit further?

I am sorry, but I am not prepared to make that sort of complaint about someone, because I do not feel that it is worthy of such a huge investment of public money. After all, these things happen in the chamber at least once a week—and sometimes more than once a day—and the Presiding Officer says, “That’s a matter for the individual member.” Quite frankly, there is no way that I would complain about a member, given that that is what happens in the chamber.

If others agree with that, why would there be any expectation that I or my successor would investigate it?

In my view, there was no such expectation.

Can we take this away from the specific circumstances and look at the general issue? What if one of us in here were to follow a line of questioning on a matter in which we had a direct interest that we did not declare, either deliberately or just because of an oversight? If a complaint were made, you would have a duty to investigate why that interest was not declared. In theory, however, the other members—there are five of us left, I see—could have done the same thing at the same meeting. I wonder whether, for the sake of consistency, you could be given some permissive power to ensure that you investigated the environment—the general context—of the debate to see whether more than one person did the same thing. In other words, you would investigate the conduct of all the members at that meeting. There must be some way of looking at the general context instead of one person being singled out or targeted. It is probably a crazy idea, but I used the phrase “permissive power” to describe some way of carrying out a wider investigation. If a complaint is made but in the course of your investigation it comes to your attention that four or five elected representatives did not, for whatever reason, declare an interest, surely for the purposes of consistency you should look at the issue in the round instead of focusing on one individual.

Can I put that question in a different way?

Perhaps we can get an answer to my question, and then you can come in.

It is the same question.

I have to say that that is not a power that I am seeking, and it would cost money.

That was a pretty short answer. Perhaps the deputy convener can ask the question differently.

I will ask it differently. If you were investigating that one person, but in the course of your investigation you became aware that the other four had done the same thing, would that be reflected in the way in which you dealt with the complaint?

12:30  

I would narrate that circumstance when I was reporting, I think. Remember that I do not, ultimately, make the decisions. If we are talking about MSPs, I report to the Standards, Procedures and Public Appointments Committee of this Parliament, and if that had come out and I had reported it—which I think that I would have to do—I would expect that to be taken into account by the committee when looking at it.

In dealing with councillors, I have actually been in a situation in which I encountered something while investigating one complaint. In the particular circumstances, the complaint was not substantiated but something else had happened, so I reported on the other thing that was uncovered in the course of investigating the complaint.

Was that even though that person had not been complained about in relation to that matter?

They were complained about, and I am bound to say that it was not hugely welcomed when I did—

Mr Thomson, it does not matter.

If someone made a complaint against me for pronouncing the Gaelic for the Western Isles wrongly today, you might say that that was ridiculous and really out of order, but in the general research into that complaint you might find something else that had been done. Would that then go forward? I am not sure what you mean.

No. I misled you, convener; it was not as wide as that. Taking your example, it was more like mispronouncing some other word—it was a related issue.

I am trying to tease out the consistency aspect, which is incredibly difficult. If no one else wants to come in on that, we will move on to other lines of questioning.

The types of complaint that you get have changed a bit and, in general, their number seems to be going down. In particular, looking at complaints by category, it appears that the number on misconduct on individual applications continues to show significant decline, from 97 in 2013-14 to just 15 in 2016-17. Can you explain about those cases, comment on other types and say why you think the pattern may be altering?

In 2016-17, we saw what I hope was the final blossoming of complaints about disrespect. They reached their highest level at that point and have gone back down this year, to date. The percentage of complaints about failure to register or declare an interest remains fairly constant.

From time to time, there are complaints about breaches of confidentiality—a handful each year. Those cases can be quite serious because they can be about sensitive personal information. A case that the Standards Commission decided was not serious at all was about information in a board paper that was going to become public after the weekend, although it was confidential at the time.

Recent complaints about misconduct on individual applications have involved councillors making representations on their own behalf in relation to planning applications—either their own or ones that had a direct impact on them—which is, of course, wholly inappropriate.

Has that number fallen significantly?

As things stand, yes.

I want to get beneath the figures. In one respect you could say that it is a good thing that the number of complaints is falling. It could mean that elected representatives are getting it right and are being more consistent in their approach to public life, or that the complaints that are coming in are less vexatious. However, it could also mean that there is less awareness of the complaints mechanism, so people are not exercising their right to make complaints. I am keen to hear your explanation of that trend.

This is a guess, and it feeds back to the initial line of questioning. The blossoming, as I put it, of disrespect complaints was down to the then impending local government—and, for that matter, Scottish Parliament—elections. Out of almost 100 disrespect complaints in the past four years, 57 related to things that were said in meetings, of which almost all were from people who had taken exception to what had been said by another councillor at a meeting.

The next biggest category of complaints related to social media, in which there was a mixture of cases involving councillors and cases involving councillors and members of the public.

A couple of misconduct in applications cases concerned councillors who had chosen to make their positions clear in advance of a decision’s being made, but had then gone on to take part in making the decision. In relation to regulatory applications, that is against the code of conduct. I presume that they did so for political reasons, in order to represent their constituents, but that is not in line with the code, so they found themselves in trouble.

I will return to that issue and let other committee members ask about it, but I have a question on disrespect. If there is more than one elected representative in a forum—a council meeting, a parliamentary meeting or a discussion on Twitter or Facebook—and they all, for lack of a better expression, give as good as they get, and a complaint is received about only one of them, should you have the power to investigate all of them, in that context? Would not it be seen as odd if you did not do that?

This might be cowardice on my part, but I have no desire whatsoever to plough through a three or four hour council meeting and make pronouncements on the appropriateness or otherwise of all of the interventions that are made. I think that such things have to be self-policed.

I accept that, but by definition, the situation has not been self-policed if one person in the public gallery says that Mr Doris, Mr Simpson or Mr Gibson—never Mr Stewart or Ms Smith, of course—was acting in a manner that was unbecoming of an MSP and reports one of them—

I think that you are disrespecting Mr Gibson and myself, convener.

Absolutely—and I encourage Mr Thomson to go through the back catalogue of the meetings of this committee and investigate those two members.

It would seem odd if, in the course of looking at the conduct in that meeting, you noted that it was a heated meeting and that everyone was giving it a bit of welly, but you investigated only one person because the complaint concerned only one person.

The circumstances that you are describing would probably not be reported as a breach. The instances that are reported as breaches involve circumstances in which somebody has stood out.

I cannot believe that I used the expression

“giving it a bit of welly”.

I apologise.

I want to ask a straightforward question. How do you define disrespect? What one person considers to be disrespect might be considered by another to be simply a robust exchange of views—assuming that it did not involve the person swearing at or threatening someone.

That is a fair question, but it is quite difficult to answer. The issue is complicated by the enhanced right of freedom of expression in relation to matters relating to politics and public administration under article 10 of the European convention on human rights, which comes up in such cases. There is no straightforward answer. I do not want to go into specific examples, because that would involve singling out individuals unfairly. However, there have been attempts at humour that were in very bad taste.

There is no straightforward answer to the question. In one European case, a person accused the mayor of a town of embezzlement, and the court held that to be within the rights of that person under article 10 of the ECHR. That means that even accusations of criminal behaviour can come within the limits of freedom of expression.

The cases that I have reported tend to be personal, clearly abusive or in extremely bad taste for some specific reason.

But the judgment is subjective rather than objective.

Of course the judgment is subjective but, thankfully, it is not just my judgment: I report to the Standards Commission, which does not always agree with me. I think that that is a strength in the system, albeit that there is a cost involved.

You mentioned councillors who publicly express a view on planning applications—I presume that that is what you meant—and who go on to make decisions on those applications. That is at the heart of the code of conduct for councillors, which I understand might be revised. Have you had any discussions with the Scottish Government about that?

The Scottish Government sought my views on one particular proposal. It is not particularly tricky, but there is a dispensation for councillors who are appointed to certain other public bodies when they are considering things that might affect the council, and I was consulted about that. My view was that if councillors were commenting on a regulatory matter in which the council had an interest, the dispensation should not allow them to participate. We have been talking about declarations of interests. As I understand the code, among its objectives are transparency and ensuring that people who have vested interests in a decision do not participate in that decision. That is how the law is at the moment.

I mentioned councillors expressing views on planning applications. Why should that debar them from going on to vote? That has always mystified me about the code of conduct.

The theory—the law—requires that decisions on planning applications—and, for that matter, other regulatory applications, including on houses in multiple occupation or taxi licensing—should be based on all the relevant facts and should not take account of any matters or considerations that are not material. A councillor who represents views from his or her constituency, in advance of their being apprised on subjects that are material, may well reach a view that is based on only one side of the story. If the councillor then carries that forward into the decision-making process and votes on that basis, they may have failed to take account of some material facts.

Or, they may not have. Let us say that the councillor express an initial view a couple of months out, when an application is first made. That debars them from changing their view when it comes to a meeting. It is an absolutely absurd situation.

Your discussions with the Government appear to have been quite narrow, which suggests that the Government is not looking at a wholesale review of the code of conduct. Would I be right in thinking that?

That is my understanding.

Do you think that it is time for a refresh?

There are parts of the code that could be improved.

Which parts could be improved?

I have said this before—I do not wish to take too much of the committee’s time. The particular problems seem to me to be paragraphs 3.14 and 3.15, which relate to confidentiality. They are not very well expressed and are causing quite a lot of difficulties.

In section 5 of the code, on declarations of interests, there is a thing called the objective test—I am sure that Mr Simpson is familiar with it—that is supposed to apply when councillors are deciding whether they have to declare an interest. It appears five or six times in section 5 and is expressed differently in some places, which is not at all helpful. Although I have not been asked about this, I think that section 5 is quite difficult and is becoming more difficult, as councillors become involved in other bodies in respect of which there may be conflicts of interests—for example, integration joint boards.

There was one error in the code: it referred to annual reminders about declaring interests, whereas the regulation requires that an interest be declared within a month. I believe that that is one change that will be made.

I have an issue about the key principles appearing up front. I accept that the statute requires them to be there, but they are given prominence by being at the front. A problem that we had—certainly when I started in office—was that a very large percentage of complaints related just to the key principles and therefore were not specific to any of the rules that can be broken. A person cannot contravene the key principles under the code, which I think is probably right.

12:45  

Our initial office assessment process is now such that if somebody simply makes a complaint that councillor so and so has failed to show respect under the key principles, we will ask them for the detail of their complaint, so that we can then decide whether it involves a breach of a specific rule. We do not just leave the complaint there and reject it; we explore it.

The revised code will come before this committee. From what you say, it sounds as though we ought to look at the code as a whole rather than just focus on one narrow area.

In an ideal world.

That is our job.

You have directed us to one part of the code that you think would require specific attention if that were to be what we would do, and if that might also be helpful.

There are actually two parts: a couple of paragraphs in section 3 and then section 5. The most complicated bit is probably section 7, which I think was what Mr Simpson was referring to as regards councillors’ obligations on planning. That is quite difficult.

Another area of difficulty that is of particular interest to council officials is annex C to the code, which deals with the relationship between councillors and officials. Paragraph 20 says that councillors must not comment in public on the conduct or capability of officials. As that stands, if we take it literally, it is nonsense, because it means that we could not say, for instance, that Jane Williams, who is the clerk to the committee, had done a wonderful job in doing such and such.

We can say that. We can say it on the record right now, Mr Thomson.

You can say it, because the restriction is not in the “Code of Conduct for Members of the Scottish Parliament”. However, it is in “The Councillors’ Code of Conduct”, where it is interpreted as being that councillors should not publicly criticise officials. Of course, that becomes difficult to reconcile with the scrutiny role of councillors and with article 10 of the ECHR. It is a bit of a problem area.

Might it, for example, restrict councillors’ ability to scrutinise and analyse certain key documents that the council has produced? In effect, they might be suggesting that the quality of a document was not up to standard and would not withstand scrutiny.

There are people who think that it could. I do not think that it can, legally, because of article 10, but it is problematic.

That would certainly be worrying.

As Mr Simpson does not have anything to add, we will move to a question from Alexander Stewart.

Recently, we have seen a focus on harassment, bullying and harassment of a sexual nature. How do you think the way in which people make complaints will be affected? As things move forward, what will be your role and what work will the commission have on that? Do you see yourself as being actively involved? Your views and opinions would be useful.

The initial office assessment would identify whether the complaint appeared to be of such a nature that it could involve a breach of the criminal law. In such circumstances, we would refer it directly to the appropriate authorities, so we would not be involved in such a complaint at that stage. However, we could be involved after any criminal process—whatever that might be—had been concluded. It would be possible for there to be circumstances in which there was an absence of proof beyond reasonable doubt, which is the standard in criminal cases, but there could still be considered to be a complaint that could be pursued on the civil standard of proof, which is the balance of probabilities. Therefore it is theoretically possible that we would be involved.

Despite the comments that have been made on the issue so far, the basis for any involvement would be the requirement to treat people with respect. I did not want to go there earlier, but that is an area of disrespect—if I might put it that way—that could develop. To go back to the earlier comments and questions about things being spurious or trivial, attitudes to conduct of that nature are changing for the better. Things that, some time back, might have been viewed as trivial or even spurious would not be viewed as such now, and that is a good thing. It is possible that a complaint of that nature could come forward. There was one public hearing in which the nature of the disrespect was an attempt at humour that involved sexual innuendo, and the councillor in that case was suspended. However, that is unusual in my experience to date.

Does that give you a flavour of where I think the issue might go?

Yes. In the current climate, there are bound to be issues that come forward that you might have to deal with, depending on how it is perceived. You talk about bullying and about how information is given out at official and councillor level. There needs to be co-operation between the councillor and the official about what information the councillor requires to fulfil their role and it can sometimes get quite heated, depending on the political nature of the situation, and depending on the type of meeting or group or where the exchange takes place. As the floodgates have opened in some respects for other professions, there might be more coming in their direction—and our direction—because of the nature of their job. That will potentially have an impact on you.

I agree.

It would be inappropriate for the committee to not raise that issue, given events in recent weeks and months. We are seeking clarity that you are not missing it. We want to know that you are sensitive to the issue and that you are following events and making sure that your office is prepared to act as it should if there is an increase in complaints in that area. We do not expect to hear anything other than, “Yes, of course I am,” but this is an opportunity to put some of that on the public record.

Yes, of course I and my office are carefully following things. Our role is to investigate, assess and report, but we have no counselling skills. That is the only caveat that I will make at this stage.

I am not quite clear what you mean by that.

Councils are quite macho places. In your report, you rightly talk about representation on boards, which we discussed in Parliament last week and over which we can have some degree of control and influence. However, in terms of representation in councils at elected member level, political parties, for instance, have to take that on board. With that issue now being highlighted, I think that there will be a cultural shift. You mentioned that you would refer directly to the police instances of sexual harassment in which the behaviour was criminal, but there is also sexual harassment behaviour that is not criminal. When you say that you are not involved in counselling, I am not quite sure what you mean.

I would also like clarification on another issue for which I will give you an example. As a trade union representative a number of years ago, I had to raise an issue with someone about a calendar in their office. The way that I raised it was to refuse to participate in a meeting that I was invited to until the calendar was removed, at which point I would come back. I take it that that would be non-criminal behaviour that could be referred and that you might deal with if someone complained about it.

Yes.

When you said “counselling”, what did you mean?

It depends. I am simply stating that the role that I understand that my office is to play is to investigate, and to do so impartially. I was previously asked what support we give to people who make complaints. There is a difficulty if you are meant to be an independent investigator but you are perceived as attempting to give support to one side in the process. Although we will of course investigate to the best of our ability, that is all that we can do.

Could you give impartial advice by signposting people to different organisations? Is that possible?

Yes.

So you could perhaps get round it that way.

We are almost out of time so I will just ask a final couple of questions on that particular issue.

You are absolutely right, Mr Thomson, that your independent investigatory role is appropriate, and counselling is not part of that. However, would you perhaps seek to develop links with agencies that provide counselling and signpost individuals—complainers and complainants—to them? That might be appropriate. If someone gives a statement to a member of your team, would they be able to have someone there in the room supporting and advocating for them at that point in the process? A bit of light and shade to your earlier answer might be helpful before we end the line of questioning.

We have already started to consider which bodies or individuals we might think of having some link with in order to be able to refer people, if appropriate. On your second question, yes, people can be supported when we interview them; that is already the position and we state that when we make contact with them.

I suspected that that would be the case, Mr Thomson, but I wanted to give you the opportunity to put that on the public record. There are no further questions from members, but would you like to make any additional comments or observations?

No, thank you.

I thank you and your team for coming along and for waiting.

We will move on to agenda item 3, which is draft budget scrutiny for 2018-19 and which we previously agreed to take in private.

12:56 Meeting continued in private until 13:08.