Finance and Public Administration Committee [Draft]

Meeting date: Tuesday, May 21, 2024

Official Report 910KB pdf

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Scotland’s Commissioner Landscape

Our next agenda item is to continue to take evidence as part of our inquiry into Scotland’s commissioner landscape. Before I welcome our witnesses, I apologise for the fact that they have been kept waiting for almost an hour by the question and answer session beforehand. That was not anticipated, and we will try to ensure that it does not happen in future. I want to formally apologise for the time that you have been kept waiting.

Our witnesses are Lynda Towers, convener of the constitutional law and human rights committee of the Law Society of Scotland; Dr Ian Elliott, senior lecturer in public policy, centre for public policy, University of Glasgow; and Professor Alan Page, emeritus professor of public law at the University of Dundee. I welcome you all to the meeting and I will now open up the session to questions from members. I intend to allow around 75 minutes for this session, depending on colleagues’ questions and of course your answers.

I want to start by asking about something that I found intriguing in the Law Society’s written submission. Basically, it is about the comment that

“The recognition of a fourth branch of government in addition to the three traditional branches—the Legislative, Judicial and Executive—has been occasionally proposed in constitutional law literature.”

That is, the integrity branch, which includes audit offices, independent corruption commissions, ombudsmen and parliamentary committees. Ms Towers, will you expand on that a wee bit?

That is an area of law that has been with us, or discussed, for some considerable time. The article that was referred to in the Law Society submission dates back some time as well. It is fair to say that it is a thing that goes in and out of favour in discussions among constitutional people in the United Kingdom and in America and Canada.

I suppose that, in effect, it is about who looks after the people who are looking after things, if I can put it that way. We have the three traditional parts of the state—Parliament, the executive and the courts—and, in the new world that we live in with so many regulatory bodies, whether you call them commissioners, ombudsmen or whatever their oversight role is, we add in the question: who will oversee the overseers? That is the on-going discussion.

At the moment, the issue is certainly being raised again as a topic to be discussed in light of the way that constitutional law and the bodies have developed in the United Kingdom, including in Scotland and in England and Wales, and elsewhere. That is something to think about, but I do not think it has yet reached the same status of the three constitutional divisions that we are already aware of.

However, for the committee, in conducting this particular inquiry at this time, the issue is very relevant, because it is part of on-going discussion and relates to the matters that the committee no doubt will wish to raise with us in relation to further iterations of commissioners, or whatever we call them, that we know are likely to be coming up. There are also the two areas that we will face arising out of the Scottish human rights bill and the mental health law review, which will undoubtedly raise issues. I suspect that there will be a huge push at that stage for different bodies to regulate different aspects of matters that will arise out of those subjects, which are likely to be very big.

There is a question about whether we can identify an efficient approach, in terms of operational and budgetary matters arising out of those, in addition to the matters that the committee has already identified. Now is the time to think about how you are going to deal with those additional matters.

Yes. One thing that I thought about when reading that point about a possible fourth branch—an integrity branch—is that it almost consolidates commissioners and so on as part of the landscape. I do not know that committee members are necessarily all too enthusiastic about that, given the issues of democratic accountability, costings et cetera. Professor Page, what is your view?

I very much enjoyed what you said there, convener, because in a sense we have been here before. If you go back long enough to the early 2000s, when the idea of commissioners was first mooted, I think that the Scottish Information Commissioner was the first commissioner and, as I think that I said to Jim Wallace at the time, it must have seemed like a terribly clever wheeze. They said, “How do we create a body that is independent of Government? Guess what? Let’s make it a parliamentary body,” which is what happened. Then, a succession of commissioners were created and, before we knew where we were, the Parliament had become seriously disenchanted with its commissioners for exactly the reasons that you have indicated, convener.

12:00  

On the 2006 Finance Committee inquiry, the history as set out in your background papers is pretty sketchy and misses out some of the more important details, but that committee was highly critical of the existing arrangements. It said:

“It would appear to the Committee that, whilst protecting the independence of commissioners and ombudsman within establishing legislation, insufficient checks and balances have been put in place to reassure the Parliament that commissioners and ombudsman represent value for money.”

That was the start of a process. As you will remember, we had a minority Government from 2007 to 2011. That led to a review and eventually to the rationalisation of the existing system. Instead of, I think, six commissioners, we ended up with five, with two being collapsed into one another to form the Commissioner for Ethical Standards in Public Life in Scotland.

Bearing that background in mind, I will fast forward to where we are today. My concern is that we simply rerun that experience. My point therefore is that we need to rethink the commissioner model in a way that simply was not done when commissioners were first set up in the early 2000s. The model was not properly thought through then and, now that we are facing a potential expansion in the number of commissioners, it badly needs rethinking.

I will ask you in a second how you feel that we should be rethinking that, but I first ask Dr Elliott to answer the question with regards to what the Law Society has said about the integrity branch. What is your view on that?

I do not want this to sound like a cop-out when I say that I agree with everything that everybody else has said so far, but there are a lot of important points there. The system of commissioners that we have has developed in a fairly ad hoc way, so this inquiry is very timely and important, as it allows us to consider the best possible way to think about that fourth level of Government or Parliament.

There is value in commissioners—I would not say that they are either a good thing or a bad thing. There is a balance to be struck, and maybe the question is whether we have the right balance now and going forward.

Do you think that we do?

The real issue is that the situation has developed in an ad hoc way and we need to consider, for example, whether there should be fewer commissioners but with larger budgets and more powers, or whether we have lots of smaller ones with smaller budgets. Of course, the risk of having lots of smaller commissioners is that there is a risk of cross-cutting agendas, whereas if you have fewer but give them more powers, perhaps you can have a more strategic approach.

The committee is aware of all those potential iterations, but I am quite keen on finding out what your view is. Do you feel that we should have an expanded Scottish Human Rights Commission with a rapporteur, for example, rather than independent commissioners?

That is one model. Obviously, one of the challenges is that the Government has more powers, particularly since the Scotland Act 2016, and a few of those powers have been mentioned already.

A few are being taken back, actually, but never mind.

Yes, but more powers are being devolved to Parliament and yet we still have the same number of MSPs and the same number of committees. How do we ensure scrutiny when we have all those additional powers with the same resource?

I was in the public gallery during the committee’s session this morning, which was very enjoyable, and the word “scrutiny” was mentioned a lot. How do we enable better scrutiny? Commissioners are an effective way to add more scrutiny to Government, particularly in a unicameral system. For example, in New Zealand, which has a fairly similar sized Parliament to Scotland—obviously it has many more powers because New Zealand is a fully independent country—there are just three commissioners, but they have much bigger budgets and are overseen by a specific committee in the Parliament, the Officers of Parliament Committee.

I do not want to be rude about how the situation here has developed over time, but that is a much more thought-through approach whereas, in Scotland, the commissioners have developed in an ad hoc way through different acts that have come into being that have recommended commissioners without thinking about whether the powers could be put into one of the existing commissioners, rather than setting up a new one.

Lynda, you were nodding when I talked about rapporteurs.

I am nodding, and I am not nodding.

My God. [Laughter.]

Some of you may remember my previous role in this building. A number of years ago, the Scottish Human Rights Commission was set up by a committee of this Parliament. At the time, one of the suggestions that came from what was then my office was about whether the committee needed to set up an additional commissioner when at the same time Parliament was considering the question of a children’s commissioner. I happen to think that the children’s commissioner should be separate, because it does a very different thing, but one matter that was considered at that time was whether it could be made part of the human rights commission with one commissioner who had particular responsibility for the children’s aspects. That might be a way of moving forward with the Scottish Human Rights Commission. We could have different people with particular expertise but who also exercise a wider role in relation to the commission. Therefore, the Parliament would not have to set up another commissioner and you would have the expertise within that organisation.

At the time, that committee decided that it was not how it wished to move forward. The thinking was that the issue was very important and the committee wanted to have something with a separate name. That kind of thinking has to an extent permeated many of the bills that have gone through. The commissioners’ functions are very important to look after various things. Therefore, when committees have considered those—the Law Society has supported a lot of the appointments—the process has generally been, “Do we need a commissioner? Yes. Is the easiest way to do that to have it as part of the bill? Yes.” That tends to be how it goes, as opposed to a committee asking, “Well, we need somebody with commissioner responsibilities, but is there an existing body that could be given additional powers to enable a particular set of functions to be exercised?” That would cut back on the overarching needs and the complexity.

The scene has changed from the early days, when we had four or five commissioners. Given the number that we have now, without going away and looking at the legislation, I would struggle to say exactly what each commissioner does, what their powers are, and how far they can exercise those powers. In that context, there might be an argument for looking at how commissioners are set up in a similar way to the approach taken to inquiries in the Inquiries Act 2005. That is not the same topic, but that act was set up both for the UK and for Scotland, with different rules for how inquiries operate. There is a basic set of powers and then different powers are allowed to deal with different kinds of commissioners or inquiries or whatever you want to do. That approach would mean that all that information would be in one place.

Professor Page, you talked about a rethink. How would you rethink this landscape?

Earlier, I mentioned the Finance Committee review in the early 2000s, which reflected the Parliament’s disenchantment at that time with its commissioners. Although that review was carried out by the committee, it was driven by the Scottish Government, and, in particular, the then First Minister. The stance of the current Scottish Government is completely different—there has been a complete volte face. It is not saying that we should tidy up the system and have fewer commissioners; it is saying that we should have more of them. That is astonishing. The Government is saying we should have more of them, and there is the model whereby the Parliament can set them up and the Government will provide the money for them—the Government is saying, “Don’t worry about that; there will be plenty of money.”

However, my fundamental question is, are those bodies parliamentary bodies or are they executive bodies by another name? In your papers, there is correspondence from the then Deputy First Minister, Shona Robison, about how we have a ministerial control framework that sets a framework within which we can make decisions on the establishment of public bodies and so on, and can provide Parliament with a bit of advice, should it be needed.

My worry is that you are in danger of doing something that the Parliament should think long and hard about whether it should be doing at all.

What you are saying is interesting. Last week, in private session, we spoke to two former MSPs who had previously put forward commissioner proposals, which are still live but with others pursuing them—one is being pursued by the Government, and the other by a back bencher. Neither of those MSPs now support the establishment of the commissioners that they advocated for some years ago. One of them said that that was because of a lack of evaluation or evidence of the positive impact that commissioners have made. That might be unfair on certain commissioners, and we have heard commissioners and others argue quite passionately the opposite. I would like to know our witnesses’ views on that.

There is absolutely a serious question to be asked and answered about the accountability of those bodies, which is another way of raising your question about the evaluation. The danger, as I see it, is that the bodies are established, the Parliament funds them, sets their budget, appoints people to them and all the rest of it, but they then occupy a certain no man’s land—I do not know if that expression is politically correct—where they are not really accountable to anybody and no one is responsible for saying whether or not the system works or whether it should be rationalised and so on.

My starting point is that I am entirely sympathetic to the idea of commissioners—that relates to this talk of an integrity branch and the idea that you need additional checks on Government, and I accept that 100 per cent. However, my question is whether those bodies need to be parliamentary bodies. Is the Scottish Government not just shuffling off responsibility that properly belongs to it? We have lots of independent bodies that have been established by the Scottish Government—they do not have to be parliamentary bodies in order to be independent—and are kind of forgotten about. The Scottish Parliament information centre briefing paper has a little bit of information on their relationship with committees, but my sense is that that does not really amount to very much at all—there is ad hoc or occasional engagement, not systematic engagement. I understand the reasons for that: you are busy people who have a lot of things to do. However, what it means is that you end up with something that is, not quite a fourth branch of Government, but perhaps a non-branch of Government whose role is not properly thought through and just grows—

Arms and legs.

Yes.

12:15  

It is quite useful to look back to the time around 2006, when a lot of these reviews took place, including the Crerar review. That was much broader, because it looked at all public bodies, not just commissioners. You need to take that into account as well. Work has also been done on the issue by the UK Parliament. Around 2007, it published a useful report called “Ethics and Standards: The Regulation of Conduct in Public Life” that looked at what it termed “ethical watchdogs”. It praised the Scottish commissioners at the time, which is quite nice, isn’t it?

The question of how to get evidence of effectiveness is hard to answer. How do you prove the effectiveness of a scrutiny body? How do you prove the effectiveness, frankly, of this committee? It is a difficult thing to prove because you are designed to scrutinise and, of course, no Government particularly likes to be scrutinised. The idea of having fewer scrutiny bodies is probably a good thing from the point of view of any Government of any nature. Often commissioner bodies are set up as the result of a crisis or some sort of scandal. For example, the Committee on Standards in Public Life was set up in 1994 as a result of lots of scandals in the UK Parliament and the UK Government at the time. However, if there is no subsequent scandal or crisis, does that mean a body that was set up to prevent them happening has been effective? How do you prove the lack of the existence of something?

As with many things in public administration it is difficult to prove whether something is effective or is providing value for money. How much money should we spend on scrutiny of Government policy or law? It is a difficult question to answer.

The benefit of those bodies is that they have that independence from Government, or, at least, they should have. Realistically, in the standard model, the appointment of a commissioner should be independent of Government, the funding should be independent and the reporting should be independent. The reporting mechanisms for commissioners might be one of the things that needs to be considered a bit more. Who do they report to? Where is that accountability? Is it to one particular committee? Is it to this committee? Should there be, as is the case in New Zealand, a separate committee specifically for officers of Parliament, or should they be accountable to all committees? Again, that relates to the accountability issue that you were asking about.

Dr Elliott mentioned the House of Commons Public Administration Select Committee’s report “Ethics and Standards: The Regulation of Conduct in Public Life”, which looked at the Scottish experience and the Scottish model with a view to recommending whether it should be followed in the rest of the United Kingdom. Its conclusion was that there had been a strong focus on commissioners’ independence from the Scottish Executive but that too little attention had been given to their

“consequential ‘dependence’ on the Parliament ... and on their accountability arrangements.”

That is what I meant when I said earlier that the model has not been properly thought through. We got a model, we rationalised it and we have lived with it, and many of the commissioners do a very good job—no question about that—but we are now suddenly going to be expanding the number of them, even though there are those issues that have been there from the start and which should not simply be glossed over.

I agree that one of the questions that arises in relation to commissioners is, how can we say whether they are doing a good job? Others are whether they are truly independent and the extent to which there is operational transparency. All of those are good issues to consider.

I am not sure whether you have heard from the SPCB in this context yet, but, in my experience, the commissioners who had to appear in front of the SPCB were given a robust and challenging session in relation to their outcomes, their budgeting and their aims. Commissioners now come to Parliament to speak to particular committees, but that can sometimes seem a little perfunctory. Further, because of the issue of departmental changes, commissioners do not necessarily build up a level of expertise in relation to a particular committee.

One of the changes that was made, which I think provided a good way forward, was that, instead of having two relatively short periods for commissioners being appointed—say, two four-year or five-year periods—they are now appointed for a longer time but for a one-session period. That allows a commissioner to develop a relationship with committees of the Parliament and to develop a more realistic strategy for what they are doing in that context.

There is undoubtedly scope for more commissioners being given an opportunity to build up those relationships and for them to be given proper scrutiny by the various committees. I would not underestimate the independence of the commissioners. Those that have a role in lobbying, if I could put it that way, as opposed to scrutiny and supervision—people such as the Children and Young People’s Commissioner, the Information Commissioner and the Scottish Human Rights Commission—have all very much influenced the development of legislation and strategies and have lobbied, although that is not a nice word, on behalf of their clientele. That would not have been possible had they not been independent of the Government.

On the question of the funding, it is true that the SPCB gets funding for the commissioners from the Government, but everybody is subject to constraints in budgeting, so it is not beyond the wit of man to see that there could be constraints in funding that might have an impact on how some of the commissioners can operate if matters go on as they are at the moment. Further, the more that that spending becomes an increasing proportion of the Parliament budget, the less attractive it might appear.

You were head of legal in the Scottish Government, so you have a unique experience in that you are able to see things from the inside and the outside. You have said that consideration should be given to a more systematic approach to post-legislative scrutiny involving legislation relating to commissioners. Can you expand on that? How long after legislation has been passed should that post-legislative scrutiny take place? A year? Two years? Five years?

That depends on what you are dealing with. The Law Society has taken the position that a lot of legislation would very much benefit from a review. Often, as Dr Elliott has said, commissions are established and legislation is passed as a result of something happening and, therefore, that might require a different level of scrutiny. However, if you are setting up something like a human rights commission, that might require a longer period of time to have passed before post-legislative scrutiny can take place, because its remit is wide. A biometrics commission is much more factual and numbers-based—it concerns how much data you have to look at, how much you have to get rid of and so on—and there is a question about whether it is really necessary or whether that task could be done in another context.

There is not an absolute rule. The issue should be looked at by a parliamentary committee at the time, with consideration being given to the powers that are being given in the legislation to that particular commissioner.

Dr Elliott, do you agree with that? Do you feel that there is mission creep on the part of some of the commissioners? There seems to be a concern that there is a degree of empire building as well as overlap and duplication.

Yes, the issue of overlap and duplication is clearly a concern. Again, I agree with everything that Lynda Towers has said. There almost seem to be two different models of commissioner being developed: one that is fairly technical in nature, an example of which is the Information Commissioner, who has a clearly defined role; and another that involves commissioners that are more policy orientated and have a much broader remit, such as the Children and Young People’s Commissioner. Those two different models have developed over time in an ad hoc way, and there are questions about, for example, the extent to which the role of the Children and Young People’s Commissioner would overlap with the roles of a future generations commissioner or a sustainability and wellbeing commissioner. That is a risk, which is why this inquiry is a good thing to have.

At the same time, I recognise exactly what Professor Page said earlier about the fact that many of these debates have already been had. If you look at the 2006 report of the Finance Committee, you will see that there were similar debates and that similar points were made. I guess that the current challenge lies in the growth in the number of powers that the Parliament has.

Yes, indeed. We have the SPCB before us next week. If you were in our shoes, what questions would you put to it?

I would never want to be in your shoes—that is too hard a job for me. [Laughter.] What sort of questions would I ask? The accountability issue is key, and I would probably delve a bit more into what the SPCB sees its role to be in the accountability process.

I go back to Lynda Towers’s point and to the question. If we are not going to have more commissioners or we are not going to use the current commissioners and extend their powers, the question then becomes: what is the alternative to that? Is that about reforming Parliament more generally? Should we have more MSPs and more committees?

I do not think that it is realistic to say that the Parliament that was set up in 1999 should just continue for ever in exactly the same way, because the whole nature of Parliament has changed radically in the past 25 years. The 25th anniversary is a useful period on which to look back and, given how much has changed over that period, to ask: is there a need for a different way of undertaking scrutiny and the role of the Parliament? That is a very valuable discussion to have.

Although a lot of the debates were had in 2006, the context that we are in now is radically different and it is worth while having those debates again.

Do you want to respond, Professor Page?

What should you be asking the SPCB? Is this a job you want? Do you relish this job? Is this getting in the way of other things that you should be doing? I think that that is a serious question.

That goes back to my earlier concern about the Parliament being diverted from its course and becoming not so much a Government in waiting but a surrogate Government that is doing things that the Government should be doing. There is a change in focus with some of the new bodies from ensuring the integrity of Government and that government is being properly carried on to a more advocacy role in which they are saying, “We really need to be thinking about this, and we ought to be getting on with that and doing this and the next thing.” Should not the Government be doing that and being held to account by you in respect of how well or badly it does that, instead of your being presented with a commissioner about whom nobody is quite sure where they fit into the overall structure?

Lynda Towers made a point about commissioners having a single, longer period in office being a good thing. That was introduced as a way of providing an additional guarantee of their independence. In other words, they would not be sitting in post for three years worrying about what would happen at the end of that period or that any keenness on being reappointed would not be influencing the way in which they set about their job. The idea was that, after a number of years—was it six or seven years?—that would be the end of the appointment and there is no question of someone carrying on as a commissioner beyond that point. That was the reason for the introduction of the single term of office as opposed to the system before where terms of office could be renewed.

Okay. Thank you. I will open up the session to colleagues. Liz Smith will be the first to ask questions, to be followed by Michael Marra.

Thank you for your very interesting, thought-provoking responses so far. Has the increasing demand to have commissioners come about because we are failing to deliver the public services that people want? I do not mind who goes first.

I am happy to say something without necessarily giving you a yes or no answer. That is a way of appearing to do something without necessarily doing anything, or it is a way of being able to say, “Look, we have set up this commissioner.” Great.

This is an important question for our deliberations. If the demand has come about because certain aspects of public services are failing or there is a gap in delivery, can we do something to improve delivery rather than having another commissioner? That is the real question.

I think that the evidence that we have had so far, which is now quite extensive—we have been scrutinising the topic for something like six weeks—is that the demand for commissioners to deal with an advocacy issue rather than a regulatory matter or something to do with complaints is a result of an issue not getting the attention or the delivery that it needs in order to improve, for example, the lives of vulnerable people, whether that is disabled people, older people or children. I am interested to know if you share that reflection.

12:30  

Those things often come about due to a perceived failure. I have mentioned a couple of examples of that already. There is that risk. I completely agree with Professor Page. Government should be doing those things anyway and then, of course, Parliament should be holding the Government to account. I suppose the question is: what if the Government is not doing those things? Take the issue of developing Government in a more strategic way, with longer-term decision making. I know that the committee has carried out an inquiry into decision making. How do you ensure that Government is making decisions that are based on long-term strategy? Having a future generations commissioner could be one way to hold Government to account for that and to scrutinise what it is doing.

Ultimately, there are different ways of doing this. I do not think that there is necessarily a right or wrong way. However, many people have a concern about the sheer proliferation or potential proliferation of commissioners without thinking about where there might be a risk of crossover or duplication of effort. That is where the focus should be.

That is interesting. Professor Page also said something very interesting when he suggested that, if we were to go back to the evidence from 2006, it would make sense for us now to have a complete overview of what the structure should be and to consider where we are going with this and how we can make public life and the Scottish Parliament more effective. That begs the question: should we accept some of the demands for individual changes or should we have a complete review of the whole set-up and of what a commissioner is supposed to do? From your responses so far, I think that you are suggesting that it should be the latter.

Yes, I would definitely support that. We need to bear in mind that Parliament was only seven years in at the time of the 2006 review and there was a concern about proliferation of commissioners then. Now, the context is very different. I would absolutely support that idea of having a much more thorough review into the nature and the role of commissioners.

Lynda Towers, you mentioned the possibility of a fourth estate, if you like. Do you think that demand for greater integrity has come about because the public trust in Government and in the ability to be effective in delivering public services has been questioned or is perhaps failing?

On behalf of the Law Society, I am not going to answer that one directly; I will answer it in a slightly different way. That goes back to what we had in the early days and how things were developed. Nowadays, we have an awareness of peoples’ rights and how we should approach people that was not there 25 years ago when the Parliament was set up and was looking at its initial commissioners.

One useful way to look at that is to consider the word “disabilities”. We have a disability commissioner for Scotland coming. At the moment, disabilities can be covered by the Scottish Human Rights Commission, by the Equality and Human Rights Commission, and by the Scottish Public Services Ombudsman if people are not getting the right help in the national health system, in the justice system and in all sorts of other systems. Should the disability commissioner deal with that when all those other areas have an impact? That is before you even get to the definition of what a disability is.

One thing that the Law Society has been looking at is the United Nations Convention on the Rights of Persons with Disabilities. The definition in that is different from the definition that we have under the mental health legislation and under various other acts. How would you get a commissioner that can deal with all the different aspects, and how do you know which commissioner you should go to if you have a concern about how you are being dealt with and about what your rights are?

I think that the problem, without going into the political side of it, is that, as a practical issue, we think differently about people. Also, people are rightly expecting more from services because we are more aware of the various rights that we have, albeit those are diverse.

One idea is to have a fairly radical overview on the basis that, although it was okay to have four commissioners who dealt with those narrow areas in 2000 to 2005, given that we are approaching 2025, we need to look again at that whole area and at whether it is right to have a commissioner dealing with those separate things. Another idea would be to go back to basic rights, and to set out what needs to be looked at, how that will be delivered and whether that should be done by X number of commissioners or through a piece of legislation that sets out what all commissioners do, with a menu from which you pick what commissioners can do. That would also give clarity as to the powers of commissioners.

For example, I might be better going to the Equality and Human Rights Commission for something, but it is not allowed to enter into a court case on my behalf. I could go to the Scottish Public Services Ombudsman, but they are not allowed to give me any money if they find a breach of my rights; however, they can tell somebody to do something. Therefore, it is about looking at what is right for different people and, at the moment, there is huge confusion as to where someone goes and what rights they can exercise. How does the citizen find that out?

That is a very helpful answer. Thank you.

Thanks for the evidence for far. This slightly more principle-level discussion in respect of how the institutions perform and interact is very useful for giving context to much of the detail that we have had from previous witnesses.

I will start on the fine difference between advocacy and scrutiny. I was also interested in the idea of an integrity branch. Lynda Towers, it feels to me that there is an issue around scrutiny and what I have been proposing to call the taxonomy of commissioners. One branch of that is those who watch the watchers, which includes the Ethical Standards Commissioner and the Scottish Information Commissioner—that is, those functions that scrutinise Government and performance under the law. Another branch, in which the Scottish Biometrics Commissioner sits, covers areas of technical detail that parliamentarians do not have knowledge of and that we would not expect them to have in order to perform certain roles that might be for a short time only. The third branch is more around the rights-based advocacy space, which many of the new proposals for commissioners sit within. How does that advocacy role fit within your integrity branch idea?

I think that it is similar; it is a different aspect of the same thing. Advocacy can be very important in looking at the context of helping somebody to exercise their rights and of advising them where to go. Equally, advocacy has different meanings. If you look at advocacy in the context of the Mental Health Act 1983, that is about helping somebody who is not perhaps able to take part in the formal process hearing to enable them to do that and to make sure that they understand their rights.

Advocacy can also be, particularly in the children’s commissioner area, about making sure that people take account of the different needs of children in different areas. On some occasions, children cannot possibly deal with that, so advocates speak on their behalf.

All those aspects are covered within the question “Is the state exercising its powers correctly?” With a child, is the state taking account of them at all? Does it need reminding by the children’s commissioner that there are particular aspects that relate to children? The first question is: what is a child? All the different ages that apply is another issue—let us not go there.

There are different aspects of advocacy, but the problem that Dr Elliott raised is that they all fall under the same umbrella of commissioner. Also, why is the SPSO an ombudsman and not a commissioner? There is no real difference in what they do, but the name suggests that—this is what I would say in a court context—if it has a different name, it must mean something different. However, it probably does not.

That is part of the context of the whole oversight aspect of the commissioners. Do you need to call them something different? How do you work out who is doing what, and does everybody understand the difference in their roles? Some of them might have all three of those elements in their functions—that is, they might have technical, advocacy and lobbying functions.

Dr Elliott, do you have any thoughts on that fine difference?

Yes. The commissioners have—or, at least, they certainly should have—a public role, and the independence of the commissioners is quite important in their being a voice for and supporting the public in their engagement with Government. It has been found that having commissioners can improve trust in public services, but there is a risk that a proliferation of commissioners can create real confusion, as can the different terms that are used, which include ombudsman, commissioner, parliamentary watchdog and officer of Parliament.

The fact that so many different terms can be used that essentially all mean the same thing makes it very difficult to explain to the public what the different bodies are. As Lynda Towers said, how do people know who to go to when they have a particular need or are facing a particular issue? Again, that only serves to highlight the importance of having a more fundamental review of the role and function of commissioners in Scotland. I would probably argue that there should be fewer of them, but that they should have greater powers.

By way of a preface, I would like to say something on the notion of the integrity branch, which the convener raised. I think that that is something of a red herring, if I can put it like that. The concept of the integrity branch is essentially an Australian concept. It came from Australia, and the reason the idea was developed in Australia is that Australia has a very rigid separation of powers. Bodies are either executive or judicial. “Judicial” is very narrowly defined, and bodies that are not judicial must be executive, but then people say, “Actually, if we look at all these bodies that we are classifying as executive, some of them do things that are different from the things that the normal run-of-the-mill executive bodies do. They are not delivering services or making policies—they are acting as a check on Government.”

The idea of an integrity branch was developed with a view to underlining the importance of the part that is played by those bodies in the control of Government. The thinking was that we could develop that concept and have a more systematic, more clearly defined system. I wrote something in which I quoted a leading Australian academic called Peter Cane. Although such bodies are absolutely important—there is no question about that—

“there are few signs of any inclination to move beyond what Cane describes as ‘reactive and somewhat disjointed attempts to create effective counterweights to [executive] power’.”

That is what we are talking about, so I would focus on that. We should focus on what role such bodies play in the control of Government, instead of getting too hung up on whether we should call them an integrity branch.

There are a lot of these bodies, as we have discussed. We have not mentioned the quintessential one—the Auditor General for Scotland. It was the first such body and is written into the Scotland Act 1998. We also have the Scottish Public Services Ombudsman and the Scottish Information Commissioner, which are the classic fourth-branch or integrity-branch bodies.

Much of the evidence that we have had has been about the question of priorities. The argument is that we should have an older persons commissioner because older people do not have a voice and perhaps do not get a fair cut of the pie. A similar argument is made in relation to why we should have a neurodiversity commissioner. Those are political questions, which are really about prioritisation.

On a more principled level, are we witnessing the reality of a rights-based discourse coming up against fiscal and political reality? How can we combine the two? We tell people that they have rights and that we will put in place a certain infrastructure to help them to realise those rights, but there is no money to pay for that. Is that not part of the core question here as well?

Yes, I think that that is a very good way of putting it. My question would be, “What exactly are those rights? Where do we find them?” We are saying that more attention should be paid to people’s rights, but we are not really pursuing it beyond that point, are we?

12:45  

Part of the question that we have asked about the children’s commissioner has been about the fact that, although it has existed for 21 years, in my view, there is little evidence of its having advanced outcomes for children. Child poverty is getting worse, educational attainment is getting worse and there is a national mental health crisis. We are no further forward in realising the rights that we might say that children are entitled to, despite the public money that has been spent on the commissioner and what has been a growing commission. I have no problem with the people who have been the commissioner or the people who work there. My issue is the principled issue of where we spend the money.

I think that that is where it can be quite useful to think about the commissioners as an integrity branch of Government, because they are not directly delivering services. In that sense, they are not delivery bodies. If outcomes for young people have not improved, there is probably a need to look at local government, the third sector or parts of the public sector that deliver services. If we think of the commissioners as an integrity branch, what we are asking is whether we understand why outcomes are not being delivered. Is anybody offering that strategic oversight?

That is one of the reasons why a commissioner can be helpful, in comparison with, say, a parliamentary committee, because a commissioner cuts across all aspects of policy and all the areas that are covered by the different parliamentary committees. That means that they can offer a strategic overview of a particular policy area in a way that a parliamentary committee might struggle to do. In addition, they are independent from Government, which I think is very important in this context. Therefore, asking why the children’s commissioner is not doing more to improve children’s outcomes is problematic, if I can phrase it that way.

I go back to what I said earlier about the overarching view. I agree that the rights of the child might not be that different from the rights of the parents to have particular housing and particular levels of education. That takes us into the economic arguments. Is it right to keep the rights of the child separate? In the early years, when the children’s commissioner was created, it was probably right to do that, because children were still, to a certain extent, seen and not heard, and were perhaps not listened to in the way that we would now expect.

However, perceptions of how we should treat children and people more widely have changed and perhaps now is the time to consider whether we ought to have a large commission to deal with human rights, including those of people with disabilities, children, older people and people who would be covered by a future generations commissioner. Should such a commission also deal with the rights of more niche groups? “Niche” is the wrong word. Should such a commission cover neurodiversity, or should that be covered by a mental health body? Is it right to make decisions about that now when we know that major legislative changes are to be made to the mental health system? Should we be doing that now?

That makes it even more important for us to start thinking, “We have created all these bodies. Has the landscape in which they have been created changed over that period of time?” Therefore, we might need to look for something different to take us forward in the next few years, in order to preserve those rights, while not taking away from the fact that many of the commissioners that were created, particularly the early ones, were what was needed at the time, and some of them might still be needed.

For instance, the Scottish Information Commissioner is still needed. People tend to forget that although the Information Commissioner is appointed and paid for by the Parliament, the commissioner will still, on occasion, seek to obtain information from the Parliament, so you are still subject to that as well. There is perhaps no need for a huge change to the role of the Information Commissioner, but when it comes to the rights-based and advocacy-based commissioners, there is perhaps a need to give some consideration to what would deliver more effectively now and what is needed by the relevant people now.

We have had a lot of good input already. Mention has been made of the commissioners that we are not looking at, which include the likes of the Scottish Fiscal Commission, the Auditor General and the relevant bodies for prisons and constabulary. Have we made a mistake in just concentrating on the ones that are supported by Parliament? Should we have been looking at the wider landscape?

Your terms of reference are quite tightly drawn: they say that we are looking at Scottish Parliament-supported bodies but not at executive bodies. That is fair enough, but I go back to what I said at the beginning. An important question is whether some of the commissioners that are now proposed should be set up as parliamentary bodies as opposed to executive bodies.

Because we set up their remits.

Yes, but that is the way I read your terms of reference: we are looking at Scottish Parliament-supported bodies; we are not looking at executive bodies. However, you are dead right—there are equivalent executive bodies. That is an alternative model.

Those bodies—or some of them, at least—are seen as being very independent.

Absolutely—there is no question about that. Independence is not a quality that is exclusively associated with being appointed by the Parliament. Some of the bodies in question could be set up by the Scottish Government with suitable independence if that was felt desirable. That was the point that I was making earlier on. It is very easy—one could say that it is almost lazy—to say, “We’ve got this model, so let’s set up these commissioners and Parliament can look after them.” Hang on a minute. As you say, there are lots of examples of executive bodies that have a high degree of independence. Why not set up such bodies as part of the Executive, which can be held accountable in respect of them in a way in which the corporate body cannot be held responsible, which is a difficulty that we face with the present set-up?

If we ended up reviewing all public bodies, one of the challenges would be to do with the fact that the commissioner model is quite a distinct being. I guess that there are some public bodies that it could be argued are quasi-commissioners. For example, the Police Investigations and Review Commissioner has “Commissioner” in its name, but it is not a commission for the purposes of the inquiry that we are participating in today. Should it be? You mentioned a number of other bodies that have “Commission” or “Ombudsman” in the name. Should those be considered as part of a broader review of the commissioner landscape? Yes, they probably should be.

I do not disagree with that, but, frankly, I think that the committee has a huge job in looking at the bodies that it is already looking at. To go back to the area of mental health, there is the Mental Welfare Commission for Scotland. There are all sorts of different overlaps there. The commissioners that you can control or review are the ones that are responsible to the Parliament. There might well be scope for looking at other such bodies—the committee might be showing the way on how to look at a proper review of scrutiny, advocacy and oversight bodies.

I will move on. I have been thinking for a while that it would be good to have just one body—the obvious one would be the Scottish Human Rights Commission—and to plug lots of other things into it, although I accept that that would probably not be appropriate for some commissioners, such as the Scottish Information Commissioner. What you have said today has strengthened my thinking on that, but what would be the disadvantages of that approach? Why would it not work, or why could it not work, to put most of the commissioners into the Scottish Human Rights Commission?

Bodies such as the SPSO are very transactional. It looks at whether an organisation has done things right and obeyed all the rules and whether a remedy can therefore be given at the end of the day. That is what that body looks for. That is very different from the Scottish Human Rights Commission, which tends to look at rights and what needs to be done but does not tend to get too involved in individual cases. It might get involved in the wider aspect of a case, but not in an individual case. I am not sure that putting everything into one body would necessarily suit the different functions that the organisations have—

Even if we widened its powers?

Yes, because we might want to keep the transactional aspects separate from the overarching policy and scrutiny with regard to thinking differently. There would be a disadvantage in having too big a body, because it might be seen as too amorphous. Even within a body, it can be difficult to find out what is happening.

Before you thought about doing that, you might want to look at putting all the commissioners that already have similar remits, such as the rights-based commissioners, in the same place. You could then perhaps look at the transactional bodies, including the Ethical Standards Commissioner, who also carries out research and investigations, although that is of a slightly different nature from the SPSO and on a smaller scale. You could put the different kinds of bodies together. As Mr Marra talked about, you could divide up the different aspects of what the bodies do, which would still reduce the landscape and, therefore, the potential for confusion.

I will not give a number for how many bodies there should be, whether it be one, three or 12. I advocate starting off by giving serious thought to the role and function of a commissioner. What is it that needs to be done? What is the best model for doing that? Is the commissioner model best, or should there be another type of parliamentary reform? There should be an open debate about that. We do not have to have commissions. Not all countries in the world have commissioners. We need to think about what function we are looking for. That should naturally lead us to the areas in which a specific commission might be needed. We should follow that process, rather than starting by saying, “Let’s have three, because three is a nice number, and then we can work out what they will be called and what they will do.” We need to start by thinking about their role and function.

One school of thought is that everybody should have a commissioner—I am being half serious—and that the Parliament should make a plan to set them all up. We would have a women’s commissioner, an animal rights commissioner and so on, to cover absolutely everything. Would that be feasible?

Ultimately, it comes back to public trust and, frankly, public understanding. If we have a very cluttered landscape of commissioners for different purposes, there will be risks relating to cross cutting and the duplication of effort, but there will also be the issue of the public knowing where to go. Should people go to the human rights commissioner, the young people’s commissioner or some other commissioner? As Lynda Towers set out earlier, having fewer commissioners leads to greater clarity on where members of the public need to go to have their rights supported and upheld. That is one of the key benefits of having fewer commissioners rather than having one for everybody, as you put it.

Professor Page, what are your thoughts on putting everything into the SHRC?

Under the model that you described, is my MSP not my commissioner?

We need to bear in mind two different questions. In relation to the proposals for new bodies that you are faced with, the first question is whether they should be set up as parliamentary bodies. Should we expand the landscape, or should we stop and take stock before we make a decision on that? The second question is whether the structure for the existing bodies is ideal. Should it be rationalised or reformed along the lines that you have said or in some other way? I do not have a view on that, but that is the way that I would approach the matter.

Thanks very much.

I call Ross Greer, who will be followed by Michelle Thomson.

I am all good, convener. There is no point in repeating what Michael Marra asked; I had the same line of questioning.

13:00  

I have one quick question. Thank you very much for being here. It has been an extremely informative session.

I was particularly taken by Lynda Towers’s compelling articulation of the considerations of different types of rights. As you know, we spoke to the permanent secretary in our earlier session. The committee has struggled to get people to think beyond their own silos—they think that their commission or commissioner is good—and look at things across the piece. My question is for Lynda Towers only. If the Government is advocating for the creation of a particular commissioner, how should things be looked at across the piece, as you so clearly articulated?

It is like when you are drafting legislation—you first need to think about what you want to do. It goes back to Dr Elliott’s point about considering what you want a particular commissioner to do. Having sorted out what you want them to do, you should consider whether there is an existing body that could be doing that, whether things could be added to it and whether there is already secondary legislation that could be used.

If, after going through that complete exercise, you decided that there was no other place where the functions could go, you could say, “Right, I need a free-standing body that will do only this and will exercise its functions in this particular way, and you’re going to find out about that in that particular piece of legislation.” You also need to think about what kind of powers to give the body and whether they will cut across existing powers.

In most cases, legislation is the last resort, because there is no other way to sort something out, and the same should be true of commissioners. I was looking through the various papers that the Law Society has sent to various committees on such proposals. Our general position is usually that we agree that there needs to be some kind of commissioner, but, in a paragraph further down, we usually say, “Does it need to be a free-standing commissioner? Have you looked more widely at whether it could be put in somewhere?”

As a principle, commissioners are not a bad thing and are very often a good thing, but you need to think about why you are using them, whether you are using them in the right way and whether there is some way in which the powers could be exercised by an existing body by extending its powers. There would need to be an acceptance that the existing body’s functions might have to be expanded, that it might require additional expertise and that the cost might be a bit more, but the chances are that that would probably cost less than it would cost to stand up a new commissioner. I heard only the very end of your discussion on finances and on costs not always necessarily being transparent and rigid. That is also true in relation to the cost of setting up commissioners, whether it is the big ones or the little ones.

That is my answer to your question. People who suggest having a commissioner should be asked whether they have thought about whether there is anything else, because, with a Government bill or a member’s bill, it is their thing, so it is inevitable that they will want a commissioner to go with that thing. I have not done this exercise, but I think that a disproportionate number of the commissioners will have been set up, through either a committee bill or a member’s bill, because that seemed to be an easy way to give a degree of prominence and importance to that particular issue, whereas there might have been a different, more effective way of doing that.

Thank you very much. That is very clear.

That applies not just to the commissioner but to the MSP who puts forward the proposal, of course.

That has concluded questions from the committee. Before we wind up, do any of the witnesses want to make any final points on any issues that they feel we have not covered?

I do not think that there is anything that I wish to add. You have given us the opportunity to cover the matters, which we have dealt with at a high principle level. There is scope for improvement and for undertaking a full review of what you are doing at this stage. That does not mean that what went before was wrong or was not appropriate at the time, but it is probably the right time to think about how appropriate the current system is for delivering the rights that we are now considered to have.

I think that Michael Marra made a point about delivery earlier. I am really struck by the New Zealand example, because, as I said, its population is similar in size to Scotland’s, although it obviously has a much larger land mass. New Zealand has 123 MPs, and we have 129 MSPs, so our Parliaments are of a fairly similar size, but New Zealand has only three commissions, so it takes a much more condensed and strategic approach to commissions.

It is interesting that, although the Government is becoming more involved in delivery, particularly in relation to social security, most public services are delivered not by the Government but by councils. If you are interested in delivery, that is the thing that you need to change, not commissions. I will draw on the New Zealand example again. We have similarly sized Parliaments, but New Zealand has 78 councils, whereas Scotland has 32. If you want to address delivery, you should go down that route, rather than thinking about having more commissions.

Of course, Sweden has more than 400 councils, and I think that Oslo has about 20.

I thought that there were 19 commissioners in New Zealand, not three.

There are three officers of Parliament—there is the public service ombudsman, there is one for the environment and I am struggling to remember the other one—and they are directly accountable to the Officers of Parliament Committee in the New Zealand Parliament.

Right. In a presentation that we were given, there was a list of 19. That might have been going back to the 19th century.

That might be to do with how we define a commissioner. For example, as we mentioned, some bodies in Scotland are called commissions but are not directly accountable to the Parliament. I was referring to the three officers of Parliament in New Zealand.

Okay. I thank our witnesses not only for their patience in waiting so long to speak but for the excellent level of evidence that they have presented in response to our questions.

Before we go into private session, I note that, next week, we will take evidence from the Scottish Parliamentary Corporate Body.

13:07 Meeting continued in private until 13:22.