Finance and Public Administration Committee [Draft]

Meeting date: Tuesday, June 4, 2024

Official Report 683KB pdf

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Scotland’s Commissioner Landscape

Good morning, and welcome to the 20th meeting in 2024 of the Finance and Public Administration Committee.

We have one item on our public agenda today, which is an evidence session with the Minister for Public Finance on Scotland’s commissioner landscape. The minister is joined by the Scottish Government officials Catriona Maclean, who is deputy director of the public bodies support unit, and Steven MacGregor, who is head of the Parliament and legislation unit. I welcome all of you to the meeting, and I invite the minister to make a short opening statement.

Thank you very much, convener, and good morning to the committee.

I am delighted to be here to give evidence in this session on commissioners who are supported by the Scottish Parliamentary Corporate Body. Members will have seen the letter from the Cabinet Secretary for Finance and Local Government that outlines the Government’s position on a number of these matters. I very much look forward to giving more detail and answering your questions on that.

We share a common interest in the issue that the committee is considering. The Government is keen to ensure that the public sector landscape is as efficient and effective as possible, and the work that you are undertaking very much falls within the broader work that I am leading on and taking forward in my new role in reviewing the broader public sector landscape. We want to ensure that delivery is as efficient as possible for the people of Scotland within the budget constraints that we have.

I want to make a very important point, which you understand very well, on the independence from Government of the commissioners who are sponsored by the SPCB and the Parliament. The Government is very careful not to stray into that territory and to be clear about where we are able to support and to give our opinion on things. Any work that is undertaken to review the structures of the parliamentary commissioners is, of course, absolutely up to the Parliament, and decisions should be taken in that context.

It is worth highlighting the work that the Government has done on understanding the need for new public sector bodies. The ministerial control framework that we put in place last year does precisely that. It is a robust structure that takes into account whether a new public sector body is required and assesses the financial implications of that to ensure that the new body will fulfil its objectives and will not duplicate something that already exists. That framework is in place for bodies that are created by the Government. Where a proposal relates to a commissioner who would be supported and sponsored by the SPCB, the Government seeks to engage with the SPCB at an early stage in the process. Clearly, proposals that come from outwith the Government are not included in that framework. It is very important that Government-supported bodies that are created through that mechanism are distinct from those that rightly lie within the guise of the Parliament.

I hope that that gives an outline. As I have said, I am keen to support the work that the committee is undertaking, and the Government is keen to support the SPCB in the work that it is taking forward, or may take forward, in reviewing the commissioner landscape.

Thank you very much, minister.

You touched on the ministerial control framework, and you made it clear how keen you are to improve efficiency and effectiveness. The Government is proposing to introduce a victims and witnesses commissioner, which the Criminal Justice Committee does not seem to be very keen on, and we heard from a couple of former MSPs who put forward proposals for commissioners, one of whom did not think that their proposal for such a commissioner was a good idea any more. Is that something that the Government is looking at, with a view to not taking that forward?

I am not able to speak for the Government on that. Obviously, the new First Minister will bring forward his programme for government. Of course, that has been delayed until September, because of the election period. I am not in a position to comment on that proposal.

Would it be fair to say that that might be looked at?

That would be a question for the First Minister as part of the programme for government process.

I hope that it is not going to be a morning of ducking and diving, and bobbing and weaving.

No—nor will it be a morning when I come here and—

In the great scheme of things, it will not be decisive on 4 July. Maybe I am wrong about that—you never know.

We have looked at the commissioner landscape quite extensively. Last week, we took evidence from the SPCB, which seems to be of the view that it does not have the remit or the capacity to hold commissioners properly to account. There was a feeling—I do not know whether my colleagues felt it, but I certainly did; it was palpable—of exasperation among SPCB members, because their responsibilities in this area are growing, and they do not feel that they have the ability to do it justice. Where do you see the SPCB’s role in relation to the commissioner landscape lying in the future?

First, you have to be clear about the distinction between the role of the Government and the role of the Parliament and its committee structure, which you understand better than anyone.

Indeed.

It is not the Government’s role to say what commissioners there should or should not be, or to review the situation.

No, but where should the SPCB fit in?

I heard the evidence that the SPCB gave. Its position is that the Parliament as a whole decides whether there should be a commissioner, and then the SPCB—“inherits” is probably the wrong word—executes that function and channels the budget through to the commissioner.

Commissioners are held to account through the committee structure, as you well know. When I was on committees, that is exactly what happened; commissioners would come in periodically and be asked to account for the work that they were undertaking.

As I understand it, the relationship between the SPCB and the commissioners involves a framework that enables commissioners to be clear about the expectation of the Parliament and its committees. I suppose that the SPCB is right in that it does not create the commissioners, which are created by the Parliament as a whole.

Although commissioners can give evidence to committees, is the scrutiny robust enough? Could there be enhancements? If so, how could it be improved?

Do you mean enhancements of commissioners by parliamentary committees?

I mean enhancements of how the scrutiny of commissioners function is undertaken.

As I have said, it is not up to the Government to scrutinise and hold commissioners to account. That is for very good reason, because, in many cases, their role is to monitor the work of the Government. That distinction is very important.

How the Parliament chooses to scrutinise commissioners is obviously a job for the Parliament and its committees. I heard the evidence on that, and it is clear that there are different perspectives on it. I would expect the Parliament and its committees to do their job and to robustly hold commissioners to account.

I am getting the feeling that you are of the view that the Government does not have a lot to say on this. What is the Government’s overall role in relation to commissioners? You talked about the ones that the Government is proposing, but, as for others, you said in your opening statement that that is up to the Parliament. Do you feel that the Government should have no role in that, even to encourage or discourage?

There are a few different issues there. On the scrutiny role, the Government wading in and saying that it wanted to hold commissioners to account would clearly not be acceptable, and the Government would not want to do that. Likewise, the Government saying that there should not be certain commissioners could be deemed as straying into that territory.

The creation of commissioners is a different issue. Although it would be the Parliament that would pass any legislation that created a new commissioner, the Government has a significant input into that in terms of both the position that it takes and, even with a minority Government, the weight that it holds in relation to whether legislation is passed by the Parliament. The Government absolutely has a role to play in its assessment of whether new commissioners are required and how they would fit into the broader public sector landscape. That is part of the work that I am taking forward, and it is key.

Does the Government have a view on why organisations are proposing commissioners, whether for older people or neurodivergent people? It has been suggested to us that that is because of a systemic lack of service delivery or because ministers are not giving enough attention to a specific area. Obviously, that is an indictment of Government. Does the Government have a view on that?

I think that it was Jackson Carlaw who talked about the various stages of evolution of this landscape, through inquiries and other bodies that were set up. Now, we are in a position in which many interest groups want to have a commissioner.

I heard the evidence from Age Scotland, and I understand why an advocacy group would want to have a commissioner for their specific interest, because it would allow them to raise the profile of, and to advocate more effectively to the Government for, their specific interest group. I understand why it would want to do that.

It is important to look at the broader public sector body landscape to understand what it should look like in order for it to be as cost-effective and efficient as possible, and the Government takes the lead on that. The basic principle is that we want to keep things as simple as possible, and a broad proliferation of public sector bodies that duplicate functions is not the most efficient way of doing that.

Let us say that someone comes forward with a suggestion for a commissioner for older people, for example, which has been suggested, as I have mentioned, and they refer to the fact that we do not have a minister for older people or even a ministerial title that includes older people. In other words, they feel that older people are not getting the attention that they deserve. Does the Government look at that and say that there is an issue and a gap to be closed? What is the Government’s response to that?

I am not asking whether it will agree or disagree with a proposal for a specific commissioner. I want to know what the Government does in looking at the reasons for a commissioner being proposed in a specific area. Does it think that it needs to do something about that, because something is not transpiring in the way that it should be, which is creating enough momentum for people to drive forward with such a suggestion?

We do not want to confuse effective service delivery with how good advocacy groups are at doing their job, because that is what advocacy groups do—their job is to raise the profile of the group that they represent. We expect them to do that, and it is right and proper that they do that. That is different from whether there is a service delivery issue. An efficient, effective and streamlined public sector body landscape that is as simple as possible is the most effective and efficient way to deliver public services full stop.

We can read too much into the fact that a specific advocacy group is not named in a ministerial job title. If every minister’s responsibilities were all listed, you would see that we are all responsible for 10, 15 or 20 different things, and we are not going to put all of that in the job titles, because, frankly, it would be unmanageable. The job titles are fairly broad-reaching and cover a range of areas. The Government website provides a much fuller list of all the things that each minister is responsible for, which, in most cases, is just half a page or a page of things. If people are asking which minister is responsible for something, that information is on the Government website.

When correspondence comes to Government on a specific issue, the response unit will take a view on which minister should answer it, based on which responsibility it falls into. The fact that something is not listed in a ministerial job title does not mean that it is not a big part of the way in which the Government approaches and considers different issues.

I think that it is more about perception than reality, but perception is very important. I am just wondering why the Government decided on a victims and witnesses commissioner, because the Criminal Justice Committee was against such a commissioner. One of the reasons for that was the fact that there are already a lot of independent bodies in that area—the committee cited a number of those, including His Majesty’s Inspectorate of Prisons for Scotland and His Majesty’s Inspectorate of Constabulary in Scotland. Therefore, it did not think that there was a gap to be closed. Why is the Government suggesting commissioners in such situations?

I was not a Government minister at that point in time. My understanding is that the proposal was made in advance of the ministerial control framework being in place to assess it. As I say, the programme for government will come out in September, and it will contain the work that the Government proposes to take forward.

Okay. I will open up the session to questions from colleagues around the table, the first of whom will be Michelle Thomson.

Good morning, Mr McKee. Thank you for attending today. You are the Minister for Public Finance, and I think that everyone can agree that the constraints on public finance are deeply significant. That has been one of the key issues that has driven the committee to look at the commissioner landscape. Given your role as Minister for Public Finance, what leadership do you intend to set in the commissioner landscape when you relate it to the issues around public finance?

09:45  

There are two points there. First, the committee has rightly looked at the cost of commissioners, which comes to about £18 million in total. When we consider that against the cost of the broader public sector landscape, it is a very small percentage of the total cost of the 130 or so public bodies that the Government supports across the landscape. Most medium-sized public bodies on their own run up a bigger bill than the £18 million in total that we are talking about for commissioners. In that regard, although it is an issue, it is very far from being the main event in relation to how we make the public sector landscape more efficient. However, I know that that is outside the scope of the committee’s considerations this morning.

We have talked about the second point already, in that a robust evaluation of the cost of new proposals for commissioners is important. That is part of the ministerial control framework and, as new proposals come forward, I will be absolutely focused on understanding whether they make the landscape more efficient and effective, or just add cost.

What did you make of the SPCB’s consideration of costs? Off the top of my head, I think that the cost of the commissioners is about 12 per cent, which is top-sliced off the SPCB’s budget. We do not have an estimate for what the figure would be if all the new proposed commissioners went through. However, given that it would be roughly double, we could say that that would take the cost of commissioners up to 24 per cent of the SPCB’s entire budget. What are your reflections on that? Do you think that that is acceptable or sustainable?

Again, we have to look at it in a broader context. The Scottish Parliament’s budget of around £140 million comes from the Government, so we are talking about a percentage of that number, in the context of a broader Scottish Government budget of £47 billion or £62 billion, depending on how you count it and whether you include all the non-cash and other items. Again, therefore, it is a very small percentage of the total budget.

I heard the SPCB’s evidence in relation to how it sees that. When a new commissioner is created, the SPCB will have a conversation with the Government as part of the budget process, in which it will say, “We’ve now got a new commissioner, so we need another £500,000 or £1 million to support that commissioner.” That will be part of the discussion with the Government about funding the Parliament. That funding should flow from the Government to Parliament and then on to the commissioner to support that. That would be the way in which that would normally work.

Okay, so—

The point that I am making is that it is not the case that the Parliament will have to do less of other work because it has a commissioner that it needs to find space for. That money should flow through to it from the Government.

What I am hearing is that you sound really quite relaxed about the current commissioner landscape. Is that true, and are you equally relaxed about the proposals for extension?

Not at all.

My focus, as the committee would expect, is on where we can save hundreds of millions. Frankly, we could shut down all the commissioners tomorrow and it would save us only £18 million. It is a drop in the ocean in terms of the task ahead of us with regard to assessing efficiency across the wider public sector landscape.

However, that does not mean that I do not think that it is an important issue and that it is important that robust controls are in place to review new proposals. I will be taking that very seriously in order to address and challenge whether there is a need for new commissioners through the ministerial control framework.

To what, then, do you attribute the cultural underpinning?

I do not have the exact quote in front of me, but when a former MSP who had originally proposed the establishment of a commission gave evidence to us, they were less enthusiastic about the idea now than they were when they proposed it. They suggested that the establishment of a commission can perhaps be about creating a sense of activity to give the illusion of progress. That speaks to me of a culture of being seen to be doing something, rather than one of a relentless focus on outcomes.

What are your reflections on the culture of the creation of commissioners, in the context, perhaps, of the numerous other public bodies that we have?

You and I have experience of seeing the situation that you describe in other large organisations in our earlier careers. It is fair to say that there is always a risk that people, wittingly or unwittingly, fall into seeking to make organisational change in order to create the illusion of progress. That is par for the course and is therefore always an issue that we need to be conscious of.

People, for good reasons, will think that they are doing the right thing by highlighting an issue that they think is important. One way in which they can do that, self-evidently, is to propose and create a commissioner. However, the next question must be whether that is the most effective way to deliver both for that group and across the broader system. That goes back to what I said earlier: keeping things simple is a very effective principle, and we want the organisational structure and the landscape of public sector bodies to be as simple as possible with as few moving parts as possible. That is how you get the most cost-effective solution and the most effective delivery, because people will not be falling over each other as they try to do their jobs, and it will be much clearer who is responsible for what and whether they have delivered.

Is trying to make any change in this area akin to having a circular firing squad? Government might not want to be seen as interfering in the commissioner landscape, the SPCB made its view clear last week that the dealing with the area is a role for Parliament, and members will continue to advocate. When you consider the significant blockers from vested interests, politicians, civil servants, Government and the media, might the net effect be no change and might we carry on doing what we have always done and getting what we have always got?

I very much hope not, because of the needs of the broader public sector landscape. It is my role to ensure that we drive change and make things more efficient and effective, taking money from the back office and freeing it up for the front line, simplifying the landscape, making it clearer who is responsible for what and delivering better public services for the people of Scotland as a consequence.

The commissioner landscape is a small subset of that. As I said, it is not the Government’s role to interfere or to conduct a review of the commissioner landscape per se, but the Government can absolutely take a view on whether there should be new commissioners and how they would support the broader ecosystem.

How interested will you be in the findings in our final report?

I will be interested to see what you say. The report could be an effective and helpful piece of evidence that will support our broader work and set the tone for the public sector landscape.

I will follow on from Michelle Thomson’s line of questioning. When we had Professor Alan Page and Dr Ian Elliott in front of us two weeks ago, they both recommended a root and branch review of the whole commissioner structure. If the committee recommended that and Parliament agreed, would the Scottish Government be supportive?

Absolutely. It is important that Government is not seen as telling Parliament what to do, but the Government will absolutely be supportive if Parliament decides to do that. That might be through providing information, through processes such as the ministerial control framework. or by giving other insights. We would be very happy to do that. That applies to the seven commissioners that we have at the moment as well as to any potential new ones who are coming down the track.

That is an interesting point. As I think that you suggested in your opening remarks, there may have been a piecemeal approach to the existing commissioner landscape, which has evolved over time. On the other hand, the recommended new commissioners would largely be on the advocacy side, and we have heard complaints that that advocacy might be needed because public sector services are failing.

Do you think that the existing commissioner structure—never mind the proposals that we have now—has been effective in delivering what the commissioners are there for?

The committee has unpicked the existing commissioner structure in its evidence sessions. Different commissioners fulfil different roles. The Scottish Public Services Ombudsman is almost as big as everything else in the commissioner landscape put together. Everyone knows what the ombudsman does and I meet constituents all the time who have used the ombudsman. It is for the committee to take a view on how effective that has been, but the ombudsman has a profile and does a well recognised job.

Then we have the Scottish Information Commissioner and the Commissioner for Ethical Standards in Public Life in Scotland. They are—for very good reasons—clearly independent of Government. They play an important role in monitoring and providing processes for issues that are to do with information management, transparency and ethics. They play an effective role in doing that.

You can go through the rest of the seven to consider how effective they are perceived to be. However, I think that the important point that is behind the question is that there is a feeling that we need more commissioners because groups feel that more advocacy needs to be done on their behalf. Advocacy is very different to the role that is played by the commissioners that I have mentioned already, which are the biggest part of the commissioner landscape and play an important role that is clearly different from those who look at public service delivery or who play an advocacy role. It comes back to the point that advocacy groups probably would not be doing their job properly if they were not asking for a commissioner, so the fact that they are asking for one, alongside all the other things that they advocate for, is not necessarily an indication that things are failing.

That is an interesting point about those commissioners who have regulatory, complaints handling or investigatory functions.

Take, for example, the Children and Young People’s Commissioner Scotland. They are, generally speaking, well supported by parties across the Parliament. However, when it comes to the measurement of achievements, such as on child poverty, on attainment and on a whole lot of other issues in which we are trying to improve the lives of children, you could argue that that advocacy has not been desperately successful. What is the Scottish Government’s view on how you measure the effectiveness of commissioners who have an advocacy function and are trying to improve human rights and give a voice to those who are more disadvantaged?

All the commissioners are different. I watched your evidence session with commissioners with interest. You made those points, and, from memory, I do not think that any of the witnesses were able to say that they have delivered X, Y and Z.

The counterfactual is always important, but it is very difficult to put a finger on it in those terms. For example, would things have been worse if a commissioner had not been in place?

Do you think that it is a problem that the evidence to support whether they have been efficient, well run and effective in delivering outcomes is very hard to find?

Yes, but the counterfactual is important. If part of what they see as being their role is to change perceptions and priorities, you could argue that, in an advocacy role, that is what they are trying to deliver. They are not necessarily trying to deliver a service.

However, you could also look at, for example, child poverty, and say that Scotland is clearly in a significantly better place than the rest of the United Kingdom. You could argue that there is evidence that supports that, but whether you attribute that to the Children and Young People’s Commissioner Scotland is a matter for debate and for the relevant committee to dig into in more detail.

Were you surprised when—I think this was three weeks ago—an existing commissioner told us that, despite having produced seven different reports, he had not been in front of a committee more than once?

I will be careful what I say. It surprised me, but, as I said at the outset, it is absolutely not Government’s job to tell committees which witnesses they should bring in and what they should ask them.

We as a committee felt that that was surprising and maybe a problem. The problem might be that the parliamentary oversight and the scrutiny of the work that commissioners are doing is not good enough. Will you reflect on that?

I will certainly reflect on that. I will say a number of things. First, every commissioner and every committee will take a different perspective on or approach to that. Certainly, when I have sat on committees and had evidence sessions with relevant commissioners, I felt that those were robust, to the point, effective and got to the nub of the issues. If other commissioners feel that that is not the case, that is a matter for the relevant committee and the parliamentary bodies as a whole to perhaps address.

Looking at that from the outside, because it is absolutely not Government’s role to tell committees who they should ask what questions of, I would hope that—this is in everybody’s interests—committees are thorough in their evaluation and in relation to any other commitments that they have.

Could you also reflect on the fact that the level of accountability to the Parliament is perhaps not sufficient when it comes to ensuring that commissioners are doing their job properly?

10:00  

That would primarily come through the committee structure, so that relates to the answer that I have given: Parliament would bring people in and take evidence from them through its committee structure, and it is in everybody’s interest that parliamentary committees are doing that as effectively as possible.

Following on from some of my colleagues, I note that you have already stressed that it is for the Parliament to decide on new commissioners, and the Government will have a voice in that, albeit just one voice among others.

I am sorry, but could you restate your question, so that I can make sure that you picked me up correctly?

It was just in your opening comments.

In terms of new commissioners?

If the Parliament is considering the appointment of a new commissioner, the Government will give its view and everyone else will give their views, whereas, if the Government is proposing a new commissioner, it is primarily the Government that will drive the proposal.

Even where it is not the Government’s proposal, it will have significant input. At the end of the day, the Government, even if it is a minority in Parliament, holds sway over whether a bill goes through Parliament.

I accept all of that.

You have also stressed the independence of SPCB bodies. Do you think that they are more independent than, for instance, Government commissioners? People such as His Majesty’s chief inspector of constabulary and His Majesty’s chief inspector of prisons are seen as being quite independent. Is there a difference from the public’s point of view?

That is a good question. Looking at the landscape, we see that there is a wide range of different bodies. The Auditor General for Scotland, for instance, is very much independent of Government, and rightly so—and the role adds a lot of value, because of that. There are bodies that are not SPCB bodies that are very much viewed as independent, and they fulfil their functions very effectively as a consequence; there are other bodies, including the commissioners that we are talking about, that are SPCB supported.

The structure has grown up over time. It is not as if people sat down and designed it from the get-go, deciding, “This is the way it will work,” or, “These bodies will all be Parliament bodies, and those bodies will not be.”

One of our witnesses said that it was independence of thought that mattered most, more than whether a body was a Government body, a Parliament body or something else.

I think that there is probably more to it than that. That is part of it—and an essential part, obviously. However, although I am not an expert on the legislation that set up the Auditor General and other bodies, it is clear to me that the way in which bodies and their remits are set up is important in terms of their legislative competence to address issues. It is an important aspect.

Are the ones that were set up by the Government, or which operate under the Government, scrutinised? Can you say anything about how they are scrutinised within Government or the civil service?

That is a good question. My experience in the Government up until now has primarily been in the economic space. I know how we work with economic agencies, although that is a very different relationship. I do not know whether the officials have any specific comments on how Government formally engages with and monitors the independent bodies under the Government remit.

There is no formal sponsorship role, as there would be for other types of public body. It is the SPCB that looks after them. There will be engagement at a policy level, but no formal review function. We can take that point away and provide more information on specific cases, if that would be helpful.

To be clear, I was not thinking primarily about the SPCB bodies; I was thinking about the chief inspector of constabulary or the chief inspector of prisons. Is it just on a policy level that they get reviewed?

I would not be able to speak to those functions. I do not know if Catriona Maclean has anything to add on that.

No—I would have to write to the committee and let you know about that. I have not been closely involved in that; my remit relates to public bodies themselves, which is slightly different.

With a body such as the Scottish Fiscal Commission, which is more in our space, the committee meets its representatives regularly, and I think that the Organisation for Economic Co-operation and Development will be doing a review of it. Can you say anything about that? Does the Government review the SFC at all?

Again, we might want to take more information directly from those who work in that space in Government, but, clearly, it is hugely important that the Scottish Fiscal Commission is independent of the Government. I am new in post, but I understand that the extent to which its budgeting process is assessed and its direct interaction with the Government over its operational efficiency will absolutely be part of the conversation. That said, it is hugely important that we draw a line between that and its independence in the way in which it carries out its function.

It is an interesting point, though, and I am happy to explore it further and come back with more specifics.

You come across as fairly relaxed about having a few more commissioners.

I do not think so, but I will come back to that.

Okay—you are more relaxed than I am, anyway. I fully take the point, which everyone has made, that the Parliament has to decide on a case-by-case basis, but the question is: where are we going in the longer term?

Another point that you made was that the money saved from abolishing one commissioner or even all the commissioners would not be that huge. Again, I agree with that, but what if the number got seriously bigger? What if we got to, say, 50 commissioners? When I asked the previous First Minister whether he would be worried if we got to 100 commissioners, he agreed that he would, so I will now try 50. [Laughter.] Would you be worried if we got to 50 commissioners?

“Worried” is probably not the word that I would use. I have been very clear; indeed, this is my third time of saying that, from my perspective, my responsibility is to assess very robustly the need for any future commissioners and what they add to the landscape. Do they add more clutter, cost and confusion, or do they play an important role that needs to be carried out and which is not done by anybody else? Finally, are they value for money? You can rest assured that I will carry out that process to make sure that we do things as effectively as possible.

As for being worried, I do not lie awake at night, worrying about how many commissioners there are. It brings me back to my point—and your ridiculous example. Even if we had another 50 commissioners, the fact is that, if they all cost the same as the average of the smaller commissioners in place at the moment, that cost would be roughly the same as that of an average-sized public body, of which we have about 130.

You have to consider it in context. If I am looking to save hundreds of millions of pounds, I will look at where the big money—not the small money—is. That does not mean that the issue is not important, but I would not be doing my job properly if I spent all my time worrying about half a million pounds for a new commissioner when I should be worrying about the half a billion being spent on back-office costs somewhere else.

I get that, but I was taken by your phrase “set the tone”. It is a good one, and I think that a public statement about restricting the number of commissioners would send a message more widely.

A number of witnesses suggested that the Scottish Human Rights Commission could be strengthened and expanded and that, instead of our having lots of separate commissioners, we could give that body a bit more clout and allow it to look at individual cases. There could be, as with, I think, the United Nations, a system of rapporteurs—that is, people who report; they could concentrate on children for a few years and then on, say, older people for another few years. It would mean that you would have one organisation covering all those topics. Do you have any thoughts on that?

This is going to get very boring, but I again preface my answer by saying that it is not the Government’s job to tell parliamentary bodies how to organise themselves. However, what you have suggested is an interesting model that has probably proved effective elsewhere. Certainly, if you were to look at this in the abstract—that is, from organisational design principles—in this ecosystem or anywhere else, what you would look at as a first step would be whether existing bodies that function effectively could be leveraged to take responsibility for other pieces of work. Indeed, the principles around the ministerial control framework speak very much to that—that is, to whether an existing body could carry out the functions that a new body would be asked to carry out.

A related question is who will lead on any change and take it forward. You seem to be indicating that the Government would not lead on, say, giving the SHRC more clout if we went down that route. In that case, who should lead on it? It is easy to say that it should be the Parliament, but Parliament is made up of 129 of us, and we all look in different directions. Does the Finance and Public Administration Committee need to drive the issue forward?

When you parse the matter out, it is clear that we—and I as the minister leading this work—are absolutely responsible for the public sector reform piece and Government bodies. On the creation of new commissioners, where I think that a lot of the concern lies, the Government has a significant role to play. In most cases, such things do not go through Parliament—at least, not if the Government is not opposed to them. In that respect, the Government absolutely has a role in taking a view on that side of things.

If the review of what we do with the seven existing commissioners were to be carried out, the Government would be supportive of that, but it would not be helpful for us to be involved in it, because the commissioners are parliamentary bodies. The committee might be best placed to take that forward.

Might be—or is?

That is up to Parliament to decide. I will not tell the convener how to run his committee, but if the committee decided that it wanted to do that, the Government would be supportive of that step.

Let me put it another way: is there someone in the Parliament who could lead on that better than the committee?

I am not an expert on the Parliament’s structure. I think that the SPCB was of the view, frankly, that its job was to execute what it was told to execute by Parliament. I can understand that position. The committee, the SPCB and other parliamentary bodies would need to work that out between them, but there are a number of ways in which you could do that.

That is interesting.

Thank you for your evidence so far, minister. What is the threshold of public finance that would command your attention?

It is all important. Of course it is. I think that you clearly understand that as well. If you are faced with a series of problems and have a job to do to figure out how to save money across that, clearly you give more attention to the areas where you will save the most money. It would be ridiculous not to do that. Nobody would expect you to do that or would thank you for saving £1 million when you could have saved hundreds of millions of pounds.

One of the biggest areas that we talk about at the moment is ferries. You said that you could save £500 million rather than the £18 million for the commissioners. Is that not part of the attitude that results in the bill shooting up from £50 million to £400 million?

No, absolutely not, because all the areas where we spend money need to be addressed to ensure that that money is spent most effectively. We can argue about the fact that you would want to focus more on understanding and addressing the challenges where you have more potential to save more money. Of course you would want to do that. The tone is important. I hope that what I said about the broader landscape and the commissioners has helped to set that tone. To be frank, the ministerial control framework being in place has helped to set a tone more broadly around people not proposing public bodies or commissioners that they might otherwise have done.

What is the Government’s and your understanding of the role of the Scottish Parliamentary Corporate Body?

Are you asking about my perspective?

Yes. What does it do?

Its role is to manage the Parliament and to ensure the smooth and effective functioning of the Parliament and the tasks that the Parliament as a whole is asked to carry out, be that through commissioners or other roles.

The committee heard evidence that, when the SPCB was first devised, it was not in its broad terms of reference that it would manage and scrutinise multiple organisations. It has, we believe, 1.4 members of staff to examine the budgets. They do not have the capacity to do the work that the Government has asked them to do.

You said “that the Government has asked them to do” but it is the Parliament that has asked them to do it.

That is a fine distinction, minister. You mentioned that the Parliament passed a vote, but some of those commissioners were certainly introduced when the Scottish National Party had a majority.

Yes.

The legislation has gone through under your Government, so it is something that you have asked them to do, but they do not have the capacity to do the thing that you have asked them to do, do they?

The Parliament has a budget of north of £140 million. I do not know how many staff there are, but it has resources. Now, if the Parliament is in a position where—

So you think that it should be spending more of that money on commissioners, rather than—

10:15  

As I said, the Parliament has a conversation with the Government every year about how much its budget should be. That is where that conversation would take place if the Parliament feels that it has more responsibilities and needs a higher budget as a consequence. Clearly, that has to take place in the context of broader fiscal situation, but there is absolutely scope for that conversation to take place.

It feels a little bit like the Parliament is the place where difficult things are parked. For instance, last week, we had an amendment from the Government on Michael Matheson’s iPad bill. The amendment was agreed to by Parliament, but it was lodged by the Deputy First Minister. It finished by calling on

“the Scottish Parliamentary Corporate Body to initiate an independent review of the Parliament’s complaints process to restore integrity and confidence in the Parliament and its procedures.”

That is not anywhere near being within the terms of reference of the corporate body.

We are straying off the topic of commissioners here.

Who would you want to carry out a review of those parliamentary procedures, Mr Marra?

To be fair, it was not my amendment and I was not asking for that.

I understand that, but the point that I am making is—

I was not asking for anybody to carry that out. I am probing the understanding of what the corporate body does. The committee has heard significant concerns from members of the corporate body about not only their capacity but the locus that they have to undertake those roles appropriately. They do not have the capacity to do it. It seems to me that, with the commissioners, the thinking is, “We don’t really know where to put this, so it will go there.” The result is that the SPCB role is growing like Topsy, but it does not have the capacity to do it.

You need to look at the situation in the broader public sector body landscape. As I said, there are 130-odd public bodies in the public sector. Their budgets, the staff that they employ and their responsibilities are far in excess of those of the commissioners, so the idea that everything is being dumped on the commissioners is very far from the truth—

It is not everything; I was just saying that there are a few things that have been difficult for the Government that it has parked in this place. Anyway, I will move on.

I do not accept that. Looking through a different lens, if we had the Government marking its own homework on some of this stuff, you would rightly be more upset. I think that Parliament absolutely has a role to play. As I said, there is a conversation about resourcing, and there is a place for that conversation to take place.

On the point about Parliament marking its own homework, Liz Smith referred to the evidence from one commissioner who said that he has produced seven reports for Parliament—two annual reports and accounts, one operational report, a code of practice and three separate assurance reviews—and has been called to committee once. You have already expressed your view that that is not particularly satisfactory. What should the Criminal Justice Committee not have done to allow it to see that commissioner more?

It is not up to me to tell committees or the Parliament how to run their affairs. I am just saying, from the outside—

But it was your Government that established the Scottish Biometrics Commissioner.

Are you saying that you do not think that there is a need for the commissioner?

No, that is absolutely not what I am saying, but it is—

Okay. Are you saying that the committees should not monitor the work of the commissioner?

I am asking whether the Government thinks that the scrutiny process that it has put in place for the legislation that it has introduced is effective, and whether the Parliament has the capacity to do that scrutiny.

The committees review and scrutinise the work of the commissioners and a range of other things, including, rightly, the work of Government. It is not up to Government to say how committees should scrutinise and carry out that work. If that SPCB-sponsored commissioner feels that the Parliament and its committees have not scrutinised his work effectively, that is a conversation to bring to the attention of the Parliament and the committees.

But the Government must see a limit to that point, where it says that we cannot just continue to bestow functions and responsibilities upon a limited body and ask it to continue undertaking that work for ever.

As I say, it is not a limited body. We have already talked about the budget process. In the case of the commissioners, there is an additional cost of £500,000. That will be part of the conversation around how much of an increase in its £140 million budget the Parliament needs to support and carry out that function. There are seven commissioners—

So do you think that the Parliament should get more money and have a higher budget?

When a new commissioner is created, clearly that budget would be passed through the Parliament.

But the Parliament says that it does not currently have the capacity to scrutinise the existing commissioners. Should there be more MSPs to do that work?

No; that is not what I said, either. The Parliament has a scrutiny function to perform, which it carries out through its committees. There is a budget for carrying out that work. One of the SPCB’s roles is to ensure that it is managed, effectively and efficiently, and delivers on what the Parliament has asked it to do. The same case could be made right across the landscape for any of the other public sector bodies that are asked to carry out functions. They have a budget—in many cases, a reducing budget—to deliver similar services. That is what efficient government is about.

What is the Government’s current position on the presumption against creating new public bodies?

As I have said, the ministerial control framework is in place. Any proposed public body would go through that process and be subject to a robust assessment of why we needed it. The presumption is that no more public bodies are to be created—

Unless we need them.

—unless there is a strong case for doing so. Frankly, we would want to consider the scope for having fewer public bodies.

You have said that the Government would welcome a discussion on having a parliamentary review of commissioners in the broadest terms. Would it pause the creation of further commissioners pending such a review?

That would be an interesting conversation. As I have said several times, as the minister in charge of public sector reform, ones of my roles, through the ministerial control framework, is to assess robustly proposals for any new commissioners, with a view to understanding whether those are absolutely necessary. Clearly, I do not want to make a commitment, because it relates to part of the current legislative programme, in that a bill is going through Parliament. This is a hypothetical scenario that involves many other elements, of which a commissioner is part. Everybody agrees that we need a commissioner to do that, so that is a specific situation. We would not want to stop a whole legislative programme on the back of waiting for a review. In principle, though, I absolutely adhere to the concepts of having no new public bodies, and of robustly assessing any proposals for them that emerge. I would welcome any review from the committee in that regard.

You have validated that approach and said that it is the right thing for lobbyists and others to advocate for a new commissioner. Is it not the role of the Government to say no?

Yes, it is.

Okay. Thank you.

Of course it is.

Good morning to the minister and his colleagues. I want to explore the points that Michael Marra has just raised. Do you feel that it is the responsibility of Government to ensure that, when it has set up a new commissioner, proper scrutiny can take place of that commissioner and their role?

Clearly, scrutiny is an important part of the work that the commissioner would do. The Parliament would carry out such scrutiny if it involved an SPCB body that had been created under its sponsorship. It is right that that is where it is done. As I have said, the resourcing conversation, which would be similar to that with every other public body, everywhere else that the Government spends its money, would happen through the budgeting process. The Parliament would make its case, and there would be a conversation there.

We have heard a number of times that the scrutiny is not there, or that it varies in relation to the various commissioners. If the Scottish Government is setting up a commissioner, surely it is its responsibility, or in its interest, to ensure that such scrutiny is in place. Do you believe that that is happening at the moment, or is it a question of the Scottish Government setting up the commissioner and leaving it up to someone else to ensure that that role is scrutinised?

As with everything else that happens in the legislative programme, if legislation creates a commissioner or some other piece of work that needs to happen, that is considered and scrutinised through the financial memorandum that is part of the parliamentary process, and then the whole Parliament takes a view on it. The Government clearly has a significant influence on that, depending on the issue. Then there is a budget process where the resource requirement in the relevant parts of the public sector landscape is assessed to understand what resources bodies will need to carry out the functions that are asked of them. That is an on-going process.

Does the Scottish Government undertake any evaluation of the commissioners—their outcomes, value for money and so on—including commissioners that have not been set up?

Well, clearly if a commissioner has not been set up, there is nothing to evaluate other than what the proposal is, what the financial memorandum is and what the expectation is.

I meant on-going evaluation, after the commissioners have been set up.

As I said, for the ones that have been set up, it is not the Government’s role to stray into the territory of scrutinising the work of bodies that are set up and sponsored by the Parliament and the SPCB.

So, once a commissioner is set up by the Scottish Government, there is no evaluation or scrutiny by the Government whatsoever.

That is for the Parliament, the SPCB and the committee structure.

You have no concerns about that process, no opinion on whether that is happening and you do no checks on whether that is taking place. We have heard from a number of different sources that the scrutiny process differs from commissioner to commissioner.

If you are asking whether the Government is concerned about a scenario in which parliamentary committees were not doing their job and that was having a material impact on public service delivery, clearly the Government would have an issue with that. However, we need to be careful of Government straying into that space.

Because of the work that each commissioner has in holding Government to account, it is important that Government is not seen to be stepping into that space and acting as the scrutineer of those bodies, nor is it our role to say whether commissioners are being scrutinised correctly or effectively. That, rightly, is Parliament’s job. If we were saying the opposite, you would, rightly, not be happy about that.

Should there be more commissioners? There are some in the pipeline. I am not necessarily talking about John Mason’s nightmare scenario, in which there are 50 commissioners, because you recognise how that was received by the committee. However, if the Scottish Government is looking to have new commissioners in certain areas in the future, particularly on the regulatory side, do you think that the ability for those roles to be scrutinised and for their outcomes to be evaluated is a key part of that? Could you be confident that that is happening, or is it the case that once the Government has created a commissioner, it is no longer its responsibility but that of the Parliament?

Distinction about where that responsibility lies is important. If those bodies are there in part to scrutinise the work of the Government, and the Government took responsibility for scrutinising the bodies, we end up in a place—

No, it is not a question of the Government scrutinising; it is a question of the Government ensuring that there is a process for properly scrutinising bodies that it has set up, and that there is an evaluation of outcomes. It seems that that is not happening, for commissioners across the board. Government has a key role in setting up commissioners in certain cases, but do you not think that it is of concern that you can create a commissioner, but there might not be scrutiny?

We expect the Parliament and its committees to be able to do their jobs.

I want to come in on Michael Marra’s earlier point. I recognise what you said about £18 million not being a huge amount of money, but part of the problem is that when projects get out of hand, they do not involve huge amounts of money straight off, and it happens in incremental increases—the cost of the ferries going up by £12 million or £15 million, for example.

I do not want to bring in the 50 commissioner threat again, but do you not feel that, if we are not careful now, the whole area could get out of hand?

I have already said it four times, but I will say for the fifth time that the ministerial control framework is very robust, as is the Government’s position on the creation of new public bodies in general. That extends to new commissioners. We are very conscious of having too many, and we are taking steps on it. We are robustly taking a position on it. In my new role, that is my absolute intention. We are not ignoring it. I only made the point that there is a bigger landscape out there, which is also in focus and being considered, where there are much larger sums of money to be saved.

I appreciate that, and I think that it is right that there is a focus on the pounds, but the pennies add up as well.

I am not saying that they do not, or that we are not doing that, or that we are not robustly assessing proposals as they come forward, or that the Parliament should not be looking at and reviewing existing commissioners to see whether they are delivering value for money, or that the Government will not support that work, because we very much look forward to doing so.

10:30  

Monie a mickle maks a muckle, minister.

On a number of occasions, you have talked about the robustness of the Government in assessing new commissioners. I wonder why, therefore, we are still progressing not just with the victims and witnesses commissioner, but with a proposed future generations commissioner and a disability commissioner. How do they fit into the context of the ministerial control framework?

The proposals for those commissioners have still to go through the ministerial control framework.

So, you are saying that they may not transpire.

The proposals for those commissioners are yet to go through the ministerial control framework.

One of the issues is that not everyone who advocates for something necessarily wants a commissioner to be established. For example, on the push for an older person’s commissioner, which we talked about earlier, we have also heard evidence that, in fact, some organisations that operate in that space feel that that money would be better spent on front-line services. Is that an assessment that the Government makes when it decides whether to take forward proposals for commissioners?

Broadly, across the public sector landscape, yes, of course it is. An assessment of whether it is better to spend money on creating a new public body or commissioner, or on front-line services, is hugely important. I would take that further and say that the work that we are taking forward at the moment represents recognition of the fact that we already spend too much money on back-office functions, compared with how much goes to the front line. That is very much the direction of travel.

That is interesting, because it seems to me that, if there is an advocacy commissioner, an organisation basically advocates through them, instead of advocating directly with ministers or the Parliament. Essentially, that post just adds a middleman. Do you think that that is a fair assessment?

Again, you would need to talk to advocacy groups about how they see that, but—

Some take that view.

Perhaps, but others might see it as a method of amplifying their message, although clearly—

How do you see it? From a minister’s point of view, do you think of it as a way of talking to one person—the commissioner—about an issue rather than to 10 different groups?

Depending on the portfolio, I think that the Government would, of course, always seek to take views from organisations that can reflect the views of various stakeholders. In my experience in the economy space, we talk to a lot of different organisations all the time.

We have also heard from people who feel that, if commissioners are seen to have greater responsibility, that undermines democratic accountability because, rather than accepting direct responsibility for something, a minister can say that it is covered by the role of the commissioner. Some organisations perceive the setting up of such a commissioner to be almost an attempt by the Government to body-swerve responsibility for things. Do you think that that is a fair assessment?

I do not think that that is the case. I think that the process of holding ministers and Government to account through scrutiny processes in Parliament and elsewhere is hugely important, and I do not think that establishing a commissioner post is a method of diverting that scrutiny. I do not see that at all.

We have talked a lot about scrutiny. One of the issues that we have not talked about directly is sunset clauses. It has been suggested that post-implementation reviews should be carried out, along with periodic reviews, to assess whether the office holder is still relevant and required. That is not just about scrutiny on a day-to-day basis; rather, it is about whether we still need a given commissioner. The post might have been set up with a bit of verve and passion and a desire to get things done, but after 10 or 20 years—perhaps even after five years—the office might seem to be just plodding along. What is the end game for commissioners? It seems that once they are established they are with us permanently; that seems to be the situation so far. If that is not the case, sunset clauses could be brought in for new commissioners, but what about existing commissioners? Will there be any reviews to look at whether they should continue indefinitely?

In relation to the seven existing commissioners, this goes back to what I said about it not being the Government’s role to decide to close down the offices of commissioners. People would rightly have concerns if the Government stepped into the parliamentary space and said that certain commissioners were no longer required and would be discontinued. Such a review should, rightly, be carried out by the parliamentary authorities.

As I said, there is a process for assessing whether new commissioners are required. The mechanism of including a sunset clause could absolutely be part of the toolkit, if everyone agreed that a commissioner was required and the proposal had passed through the control framework and other assessment processes. A sunset clause might be quite a valuable and helpful mechanism to guard against exactly what you have described.

I have a final question. Way back in 2007, one of our predecessor committees said:

“Policy papers accompanying new proposals for officeholders should provide strong evidence that the proposer has explored all possible opportunities to have an existing body carry out the additional function or make use of existing resources wherever possible to support any new office-holder and have very good reasons for not adopting an approach which would avoid the creation of a new body”.

The committee highlighted that the then Scottish Commissioner for Children and Young People was in an anomalous position because those criteria would not have been met had it been set up any time since 2007. That commissioner is, of course, still in existence 17 years later. Do the criteria that were set out by our predecessor committee form part of the ministerial control framework?

Yes. I have extracts from the MCF in front of me. The criteria to be considered include whether the function or service could be carried out by an existing body such as the Scottish Government, an executive agency, or any other public body that has already been established. A number of other questions are asked, in a similar vein.

Will that approach be applied to existing bodies to see whether we still require them?

Are you talking about existing public bodies other than commissioners?

I am talking about both.

For existing public bodies, we are embarking on a process in order to understand where there is duplication and how effective bodies are on a portfolio-by-portfolio basis. Through our meetings with cabinet secretaries as part of the budget review process, we are trying to understand where there is scope for addressing the complicated public sector landscape. That applies to the 130-odd public sector bodies. It is very important that I repeat that it is for Parliament to decide how it wants to review the seven commissioners, although the Government is very willing and keen to provide support where it can.

Is the amalgamation of commissioners or other public bodies possible?

That is absolutely possible. We are looking at that as part of the review. Clearly, every portfolio and every situation is different, but there is a series of questions to ask about whether, in order to improve efficiency, bodies are minimising their back-office costs through the shared estate strategy and the shared service programme for information technology, and addressing duplication between them and the Government. We are taking steps directly with public sector bodies to understand how we should go forward. In a scenario in which more than one public body is fulfilling a particular function, we will, of course, ask questions about why that is the case.

I said that that would be my final question, but I want to ask one more. When is that process likely to conclude?

It is an on-going process. It is kicking off as part of the budget process, with the initial work on it starting in the summer but, if we do things properly, continuous improvement does not stop.

Improvement never stops, but I always find that, if there is no deadline for delivery, things drag on and on, and we will still be discussing the same thing this time next year. Frankly, I have found that to be the case in all my years in local government and in the Scottish Parliament.

My expectation is that savings will be delivered in this fiscal year. That is already happening through our work on estates, procurement frameworks, IT systems, shared services and so on. Work is already happening, and my expectation is that more significant savings will be identified through the conversations about next year’s budget, which are happening now, and we will carry on from there.

That is very helpful. I thank you for your evidence, and I thank colleagues for their questions.

I am sorry; I should ask, as I always do at the end of a meeting, whether you want to make any further comments.

No—I think that we are all good. Thank you very much.

I like to give everybody that chance.

That concludes our public deliberations.

10:40 Meeting continued in private until 10:55.