Public Audit Committee

Meeting date: Thursday, March 30, 2023

Official Report 654KB pdf

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Section 22 Report: “The 2021/22 audit of the Commissioner for Ethical Standards in Public Life in Scotland”

Agenda item 2 is an evidence session with the Commissioner for Ethical Standards in Public Life in Scotland, Ian Bruce, on Audit Scotland’s section 22 report on the latest audit of the commissioner’s performance, which was published several weeks ago.

Towards the end of the committee’s previous evidence session on the report, we had some discussion about whether Ian Bruce is the accountable officer as well as the commissioner. For the record, I confirm that you are—that is correct, is it not?

Yes.

Thank you. We obviously want to put quite a number of questions to you, but before we get to those I ask you to make a short opening statement to the committee.

Certainly. Thank you, convener and members of the committee, for the invitation and the opportunity to talk to you about the work of our office. I will keep this statement brief, as I am sure that you will have a number of questions for me.

I trust that the committee will have reviewed our last two annual reports and the two section 22 reports that were laid by the Auditor General for Scotland on the work of our office. Those will have given you a flavour of the challenges that our organisation has faced since I took up my role as acting commissioner almost two years ago. I do not plan to rehearse all those challenges, although I will be happy to respond to any questions that members have in relation to them. I felt that it might instead be more helpful, at this point, to bring the committee up to speed on the office’s current circumstances and our plans for the future.

Audit Scotland’s section 22 report in January followed up on our office’s progress in the usual way. It reflected positively on the work that we have done to rebuild our office and the services that we provide, and on our work to restore confidence in the ethical standards framework. However, it also made it clear that more work has to be done to embed the good practices that we have adopted since the previous section 22 report was laid by the Auditor General.

We have included all of the details of the progress that we have made on our website and a summary is included in our annual report. We will continue to keep the public and our stakeholders updated on our progress. In brief, we have now fully implemented 16 of our auditor’s 26 recommendations. That number might not be familiar, but some of the recommendations were multipart, and we split them up to track our progress appropriately. We have partially implemented the remainder that we are able to, and I will happily provide more detail on that during the session.

We have concentrated on re-establishing our governance, systems of assurance, relationships with stakeholders and staffing levels. On that front, we are in the midst of recruitment to fill roles that were approved by the Scottish Parliamentary Corporate Body in October, with three new staff members now in post and currently going through their induction, and four more being brought on board between now and May. We have some assurance that we are making progress. Last year, our internal auditors reviewed our systems of governance and our investigations procedures. They assessed the controls in place as being substantial and our risk management controls as being strong.

As part of my plans for the immediate future, I intend to complete our office recruitment exercise, followed by induction, in order to clear our investigations backlog and to process complaints much more quickly in the future. I have also developed a range of new and updated key performance indicators, which we will implement soon, against which we will subsequently publicly measure our progress, which will be posted on our website. In the longer term, I am due to produce a new strategic plan for 2024 to 2028, which will set out my ambitions for the future.

I trust that that is of interest to the committee, and I am happy to answer any questions that you have.

Thank you very much, commissioner. I think that our working list had 22 recommendations, with a breakdown of 10 that had been implemented at the time of the Audit Scotland report’s publication, and 10 being a work in progress. I am sure that during the course of the next hour we will get into some of the detail of the recommendations and the progress that you have made. If you have reconfigured them, maybe we will get to the bottom of that, too.

I go first to Willie Coffey, who has an extremely important question that exercised us very much at our last session with the Auditor General.

Good morning, Ian. My question is about restoring public confidence, which you mentioned in your remarks. We know that advice has been given to you that you cannot revisit complaints that were made in the past. Other members have raised that matter with you previously.

Do you not think that there is an obligation, for reasons of natural justice and to restore public confidence, to re-investigate complaints that were clearly not handled appropriately? There could be a potential feeling of injustice because, as stated in paragraph 19 of the Auditor General’s report, complaints had not been investigated in compliance with the legislation. On balance, do you not feel that greater weight should be attached to that aspect of restoring public confidence than to advice that you might have received not to revisit those complaints?

To be honest with you, I have struggled with that myself, because I have met personally some of the individuals who have been affected by that. It is important for the committee to have a full understanding of the situation.

The auditor’s recommendation was not that I reopen and re-investigate complaints; it was that we have someone external to the office come in and independently review my predecessor’s decisions. In order to establish whether it was possible for me to take forward that recommendation—because it would have required a significant amount of contingency funding from the SPCB—I asked the auditor what advice the recommendation was based on. Had it sought legal advice in relation to it? It confirmed that it had not, and I felt obliged to seek that legal advice in order to have a proper understanding of what the position was.

I am not a lawyer, so the advice came as a bit of a surprise to me, but I have a deep understanding of it now. The legal term for it is functus officio. I do not have much of a grounding in Latin either, but members might be familiar with a similar concept in relation to criminal justice—double jeopardy. Basically, functus officio is the equivalent of double jeopardy in relation to the work of public authorities. It means that once a public authority has made a decision, that decision cannot be revisited.

I surely understand what you are saying about how it feels in terms of natural justice for those whose complaints were investigated and for which there was no breach found, or in cases in which the commissioner concluded that, on the face of it, there was no breach of the code, and therefore the case was not worthy of investigation. I understand and empathise with the position of complainers who feel that they did not receive justice.

On the other side, there is a range of councillors and board members who feel that they were exonerated, either at the end of an investigation or because the commissioner’s view was that, on the face of it, something was not a breach of the code. Their having been, in their eyes, exonerated, how would they feel if, two years down the line, when another commissioner comes in, the same complaint is made to that commissioner, and that commissioner goes back and overturns the decision of a previous one?

The legal advice to me was unequivocal. There are only very narrow circumstances in which a public authority’s decision on a complaint can be revisited. The advice went even further than that: I would be acting unlawfully if I sought to overturn the decisions of my immediate predecessor.

I trust that you will understand that, in the position of a parliamentary office holder, I could not in good faith choose to disregard legal advice that I had taken. It would potentially end up with me in a position of having to try to defend a legal case—which would involve public money, resources and time—that I would have no reasonable prospect of winning, based on that legal principle.

Believe me when I say that I struggle with the question myself. It has been challenging for me, but, fundamentally, I did not feel that I could, in good faith, act unlawfully. I will go further. It was legally privileged advice, but it was shared with the Scottish Parliamentary Corporate Body and with the Standards Commission for Scotland, because their input was sought prior to making the decision. I would be more than happy to share that advice with the committee, in full. I am very transparent about the law, but that is the position.

My next question was going to be whether that advice could be shared, either in private or public, with the committee, so it is very much appreciated that that is possible. Just to emphasise the point, are we being told that that direction overrides the requirement—the duty—to deliver justice to people who have raised complaints? I would like to separate the complaints that were dealt with in which the complainant was unhappy with the outcome from the complaints that were not properly investigated. How on earth could that direction supersede those? That is what I find difficult to understand.

It comes down to the founding legislation in relation to acquittal of that particular statutory function—the Ethical Standards in Public Life etc (Scotland) Act 2000—which makes it clear. There is a section in that act saying that “whether, when and how” to conduct an investigation are, statutorily, matters for the commissioner.

The decisions that we are talking about are decisions that my predecessor commissioner made at the time and, statutorily, they were her decisions to make. I am not in a position to overturn them, because of the legal principle. Again, I truly empathise with individuals who feel that their complaint should have been investigated, but her decision was, “No. On the basis of what is before me, it is not appropriate to investigate.” Statutorily, those were her decisions to make.

I asked this question previously. Is it possible for people to submit a fresh complaint about old matters?

I am happy to talk to the narrow circumstances in which I can revisit a public authority’s decisions. They are very narrow and, again, you will find them in the legal advice. There has to have been a fundamental mistake of fact, or fraud, or the public authority has not to have completed its inquiries.

If complainers are able to come to me with, let us say, fresh evidence and say, “Here is something new that your predecessor was not aware of at the time that the decision was made,” there is scope for me to look at that again, potentially. If anyone comes to me and I feel that I have leeway to pursue their case in a defensible way, I will do that. However, if it is exactly the same complaint and the decision has already been made on it, my hands are tied.

Thank you for that. One of the recommendations that came out of the experience was about the full “Investigations Manual”. Could you update the committee on progress on that?

By all means. It will not surprise the committee that I am aware of its prior sessions. I think that it was mentioned that it was a bit of a coincidence that the manual came out for consultation not long before your session last year with the SPCB. It is also a coincidence that the full “Investigations Manual” is being published tomorrow, following public consultation last November.

This is not a criticism of the auditors, but I will be clear that we put the manual together in November 2021, so that is how long we have had an investigations manual in place and been working to it. It has been a work in progress only to the extent that we have been updating it based on feedback that we have had from people while we have been operating it, but we have been operating it for a very long time; it is now on version 9.

09:15  

We chose to go beyond the auditors’ recommendations. They said, “Produce an investigations manual,” so we did, but we also chose to consult publicly on it. We have spoken about my strong desire to restore public confidence in the work of the office; that has been about being transparent. We are not just being transparent about how we plan to investigate things, but are actually seeking people’s views and saying how we plan to go about our business and asking what are their thoughts. There was an extensive consultation period with the Standards Commission and all the local authorities’ monitoring officers even in advance of publicising the manual for public consultation.

The final version will be published tomorrow, but it will be—and it will continue to be—a living document. It is very well embedded. As I mentioned during my opening statement, last year, our internal auditors had a look at our investigations procedures and said, “You have substantial controls in place in relation to these.”

I have a final question for you, just to get your views on the table. What lessons have been learned from the process of the concluded investigations and so on that will deliver and restore the public confidence that you have mentioned a few times?

Checks and balances are really important in the ethical standards framework. The reality is that my predecessor’s relationship with the Standards Commission for Scotland broke down, so a set of directions was brought in and those directions, in and of themselves, can give the public a great deal of confidence.

I am working very much in partnership with the Standards Commission but, other than in really narrow circumstances, I am statutorily obliged to investigate anything that comes to my office, and I can provide assurance to this committee, the Standards Commission and anyone else with an interest that I properly investigate anything that might have merit that comes before me. I report on the results of that investigation to the Standards Commission, but the Standards Commission is not bound by my decisions. Justice is now absolutely baked into that system.

One of the alarm bell figures that we have seen over the past couple of years is the statistic about the numbers of complaints that were or were not progressed. There is a contrast between two years. We were told that, in 2016-17, 43 per cent of complaints against councillors and members of public boards were not pursued—i.e. 57 per cent were pursued—but, by the time that we get to 2020-21, 84 per cent of such complaints were not pursued. That big contrast was one of the things that sent out a clear signal that people had lost confidence in the system and that something was going wrong. You might want to reflect on that, but could you tell us the current figures for complaints against councillors and public board members? We will take that as the test area, to find out what the figures are now.

We track that regularly, and I assure the committee that we are back at previous levels. We have gone back to the levels of 2017-2018, which was prior to my immediate predecessor’s time in office, and we are back at—in fact, just above—previous levels of acceptance for investigation.

I could have started by saying this to the committee but, if there is any detail that you want from me—at any point in time, not necessarily in public session—just say the word and I will be more than happy to provide you with all the statistical information that you require, because we are across all of that.

If you could write to us, not now, but subsequent to today’s session, with the comparable figure for the current date, that would be a useful measure for us to understand whether things are back to a level that most people would recognise.

By all means. I have a table in the office that will show you the past five or six years and will happily send a copy when I get back there today.

That will be good. We are a Public Audit Committee. On the one hand, we do not believe in coincidence and, on the other, we like to see statistical evidence to support arguments that are put before us.

I have another small question. When you replied to Willie Coffey, you mentioned the Scottish Parliamentary Corporate Body. You are, of course, an independent commissioner.

Yes.

Did you pay for the legal advice that you sought on whether the cases that were dismissed without investigation could be resurrected? Was it your legal advice or was it the Parliament’s?

It was my legal advice.

I will talk about governance. I refer you to page 4 and exhibit 1 of the Audit Scotland report, which gives a wee graph on your relationship with stakeholders. The report says that the auditor has commented that

“issues remain where the SPCB and the Commissioner’s Office need ‘to work together to address some of the specific governance issues identified’”.

Will you give an update on what is happening in that regard, what discussions you are having and what governance issues have been of most concern and perhaps been resolved?

That is still a work in progress. As the convener pointed out, I am a parliamentary office holder, so I do not have a board of governance, and that is potentially an issue. We are therefore looking to bake in to our system the following approach.

I operate with a senior management team and have been in regular discussions with them. We have drafted new terms of reference that we want to run through our advisory audit board, which I will say more about shortly. Included in the terms of reference is a requirement on those senior managers not only to support me in my role as office-holder but, although they are not executives—we are talking about grade 5 staff—to constructively challenge me in my role. I will sign off those terms of reference. That is one thing that we plan to do internally.

I have re-engaged with the advisory audit board, but its role is strictly advisory. It can advise me on risk management and other issues, but it has no challenge function. Therefore, we need to do more on external validation of the governance that we have in the office. The statutory route for that is the Auditor General for Scotland. We have external audit of the work that we do, which has resulted in two section 22 reports coming to the committee, so that is also an aspect of oversight of our governance.

In terms of discussions with the SPCB—I am sorry if this appears to be muddling, but I have so many reporting lines, which is perhaps another issue for consideration—the SPCB has provided me with terms of reference, terms and conditions of appointment and a framework document. I also have a range of KPIs that I am required to meet. The SPCB can remove me from office if it feels that I am not adhering to the terms and conditions of my employment. I am also subject to an annual review.

The SPCB is considering introducing a new code of conduct for all office-holders. With other office-holders, I will meet the SPCB to discuss that in due course—nothing is finalised yet.

We have also been in discussions with the AAB and will provide a route for whistleblowing for staff members via its chair. Potentially, there could also be a route from the AAB to the SPCB.

I am sorry to interrupt, Mr Bruce, but what is the AAB?

Excuse me. It is the advisory audit board. We have an advisory audit board, and its members are drawn from the SPCB’s advisory audit board. However, currently, there is no reporting line in place from our advisory audit board to the SPCB’s one. Perhaps that could be considered as well.

We have always been a wee bit vague as to how much authority the SPCB has over you. Yours is an independent function. Can you define the areas in which the SPCB exerts governance over your office and the ways in which it supports your office, which it funds? Where could that be improved? Is the SPCB the major governing body that you refer to?

There are several reporting lines. The Standards Commission brought in directions for the office, because of concerns about the way in which investigations were handled. That side of the office’s work is covered there. Governance is my responsibility, as the accountable officer. The SPCB’s oversight is to do with the budget and staffing levels, and whether I am adhering to my terms and conditions.

To be honest, I am not sure what other checks might be put in place. From my perspective, it is about Audit Scotland and then this committee. The Scottish Parliamentary Commissions and Commissioners etc Act 2010, which established my office, talks about scope for removal of a commissioner when things are not going well, so the SPCB has scope to remove me if I am not adhering to my terms and conditions. The other mechanism for removal is vaguer and far less clear and deals with what happens if Parliament loses confidence in a commissioner. I am not sure what that mechanism for removal is or how it might be taken forward. There is potentially scope for the committee to look at that.

It is difficult for me to say, because recommendations were made for my office that I cannot implement. I have been in discussions with the SPCB but, fundamentally, those are matters for Parliament. How do we deal with a situation in which a commissioner starts to disengage? I can highlight a number of red flags that the committee and the SPCB should be aware of in the future. As I said, I am now fully engaged with our advisory audit board, but disengagement from an advisory audit board should be a red flag, as should disengagement from stakeholder bodies such as the Standards Commission or the SPCB. I now have an internal audit function, which our office did not have historically. If the internal audit function were to fall away, that would potentially be another red flag.

We are introducing new reporting routes for staff or stakeholders who are concerned about the way in which I am operating. Reports could be made, for example, to the chief executive of the Parliament, who is the overall accountable officer, because my budget falls within that of the Parliament. That could be another mechanism. Those are all things that the committee, the SPCB and, potentially, Audit Scotland might want to consider.

The focus has traditionally been on finance. I know from your work on the section 22 reports that come before the committee that section 22 reports are very rarely about finance—they tend to be about failures in governance.

There still seems to be a lot of vagueness about where the support, oversight and governance really are. Are you having discussions with the SPCB to seek clarification on that? Everything that I hear suggests that the SPCB is the closest thing that you have to a governing body. Would you agree?

I am not sure that I would. I would not say that it is a governing body; I would say that it is there to provide oversight of my governance as an independent office-holder.

If there were red flags, would you expect the SPCB to be the organisation that would pick those up and do something about them?

I think that that is a matter for the Parliament, frankly.

It sounds as if there is an awful lot that has not yet been clarified. It seems to me that, without that clarification, there could be circumstances in which we end up having problems again.

09:30  

Potentially. I have explained the measures that I have put in place to provide assurance and I am content with what the organisation is doing to provide assurance. However, that is all that I can do, for my part.

What is unclear to me is where the support is for you in terms of governance and the oversight that you are talking about. Clearly, it failed previously. The committee is trying to ascertain the possibilities of it failing again down the line—not necessarily now, but in five or 10 years. Are there adequate red flags, as you call them, that somebody could pick up and respond to?

Audit Scotland is the one organisation that has that statutory and direct oversight role at the granular level of the work that my office does, and it has reporting—

Audit Scotland comes in and does an audit.

Yes.

It then produces a report on that.

Yes.

However, it does not have direct responsibility for the day-to-day running and oversight of your office.

No, but nor, I posit, does the Parliament. I am an independent office-holder.

I absolutely understand why you are asking these questions. Clearly, I do, because I lived through a period in which the governance of the organisation was heading in the wrong direction and I would not want that to be repeated in my office or in any other. It is one of the challenges of having an office-holder who is truly independent of the Scottish Parliament.

I understand what you are saying. Is there sufficient direct oversight of the work of the organisation at the moment? What else could be put in place? I now have regular meetings with the SPCB and I share any information that it wishes to see—that is about providing assurance to the SPCB. The committee also has a role in providing oversight, particularly when audit concerns are raised. I also regularly provide two other subject committees with information.

For my part, I think that I am providing all that I can. What I do not feel that I can do in good faith is tell the committee what the SPCB should be doing to provide the oversight or assurance that the committee feels need to be in place. Ultimately, those are matters for the Parliament, notwithstanding that those recommendations were included in a section 22 report. I feel that I am doing all that I can, and I have been in discussion with the SPCB. I know that it has given evidence to the committee and I understand that work is on-going more widely than just in relation to my office.

I am not sure what else I can offer.

As far as this committee is concerned, we come in at the end of a problem, if you like. I am asking about who is alert to the red flags that you talked about. Who can intervene and do something about it? At the moment, from what I hear, that is not clear. More work needs to be done on that, and I am sure that the committee will follow that through.

We are talking about governance and so on. You have working relationships with the Standards Commission for Scotland and the SPCB, and you mentioned being primarily involved with two other committees of the Scottish Parliament. Which are those two committees?

In respect of public appointments, MSP complaints and complaints about lobbying, that is the Standards, Procedures and Public Appointments Committee. In respect of councillor complaints, it is the Local Government, Housing and Planning Committee.

What do you consider to be your current relationship with the two subject committees and the standards commissioner? Are your relationships with those working?

Yes, they are very positive. I have a long-standing relationship with the Standards, Procedures and Public Appointments Committee because, prior to taking up the role as acting commissioner, I had been working in the field of public appointments, which continues to be a passion for me, given its importance. You will understand that, given that this committee frequently looks at the work of boards. Since 2005, I have had a very good long-standing relationship with the SPPA Committee, and it has a proper understanding of me as an individual, the way in which I work and my commitment to transparency.

I have organised training with that committee for the entire investigatory team; they are all coming into the Parliament in April. That gives you an indication of how strong that relationship is. Whenever there is turnover in clerks, or potentially members, on that committee, I am happy to go in to provide training, for example.

My relationship with the Local Government, Housing and Planning Committee is newer, but I had a very productive—I think—evidence session with it relatively recently. I have a good relationship with the clerks, on which I plan to build.

With regard to the Standards Commission, one of the first things that I had to do when I became acting commissioner was meet with the convener and the executive director, and say, “I truly understand some of the challenges that you have faced working with my immediate predecessor, and I’m here to reset that relationship—let me know, from your perspective, what went wrong, and I will work very hard to address it.”

We continue to work, I would say, in partnership. We do not always agree—but you would expect that, because we are both independent, and I think that the public would expect it, too. That does not mean, however, that we do not work closely together. We have fortnightly meetings with all the staff in our office and in the commission’s office to provide updates and discuss areas of mutual interest. We also have biannual meetings with all the members.

Most recently, last week, along with colleagues, I attended a workshop for the standards officers of public bodies in Scotland. It was run by the Standards Commission and based at the Convention of Scottish Local Authorities headquarters. I was there, presenting on the same stage as members of the commission, so the relationship is completely different.

I have one last quick question. You mentioned the Standards Commission and the statutory directions, which are still in place. What is the latest position on compliance with those statutory directions?

We have been complying fully since I was appointed, and the Standards Commission has written to the Parliament in those terms.

Have you had any discussions with the commission as to how long those directions might be in place?

Yes, we have—the commission has consulted us on that. The directions cause some additional work for the office but, notwithstanding that, it is—as I said when I was in front of the Local Government, Housing and Planning Committee—providing a level of public assurance. Given the uncertainty that there has been, my clear view is that the arrangement is worth maintaining so that the public can see that, although I make the decisions, they go somewhere else as well.

So it is currently an open-ended arrangement.

I do not know how much detail the committee would like, but I am happy to go into quite a lot of detail if you would prefer.

The first two sets of directions were recently renewed for two years. The first set, which was renewed last year for two years, relates to keeping all parties up to date with how an investigation is going. At three-monthly intervals, we let every party to a complaint know how the investigation is going.

The second is a reporting direction, which was also renewed for two years. It requires us to report to the Standards Commission on the outcome of every investigation, so there is no scope for me not to report once an investigation is concluded.

The third set of directions came in just prior to my predecessor going on a period of leave. For short, that is known as the eligibility direction. It requires me to investigate pretty much everything, other than in very narrow circumstances. We discussed that one with the Standards Commission. That was a constructive dialogue, and the commission concluded that it would be appropriate to renew that direction for six months, on the basis that the eligibility criteria are written into our investigations manual so that the public can see that those are our procedures.

Because that is in our investigations procedures, which are subject to internal audit, and the commission knows that it can ask for detail on any of it at any time—as I say, we provide that fortnightly anyway—it will probably be content that that one will not need to be renewed, because it is work as usual for our office.

Thank you. I am going to move things on now. An issue that we have come back to several times this morning, but also in previous evidence sessions that we have had with the Auditor General, is staffing capacity and performance. I invite Roz McCall to ask some questions on that.

Thank you, convener. Hello, Mr Bruce. Thank you for attending. It is the first time that I have met you, so it is nice to see you.

The report is excellent. I note that some issues come across with regard to staffing capacity and performance. Specifically, there is a pertinent line in paragraph 25 on page 8, which states:

“while additional recruitment will help, it will take time for this to be completed and for new staff to be trained to the standard required”.

As much as I can accept that, I need to know a bit more about what training will be required, how long you anticipate it will take to get staff up to speed and how that will help your forward planning.

Workforce planning was completed last May. I brought it forward because, by that point, I had established that we were not getting through the backlog sufficiently quickly. It was an extensive workforce planning exercise that resulted in a business bid to the SPCB on 31 May. I met the SPCB in October—I think that that was the earliest opportunity—and the bid was accepted shortly thereafter.

I spent November planning with my senior management team and started recruitment in November. That was for all the new investigatory roles and three of the corporate services roles that we were looking to fill. We are onboarding people at the moment. As I mentioned, there are three new staff in place. They are going through their induction, which takes roughly a month. As they are being inducted, they are being introduced to not only their roles, but their individual action plans for the year ahead.

The performance framework, which was also mentioned in the section 22 report, is now well established. We have a strategic plan, a biennial business plan that sits below that, action plans for every section in the office and, below that, action plans for individual staff members. All of that is mapped out, including for the new people. I hope that that addresses your question with regard to planning.

Induction takes roughly a month, but training will take a bit longer, simply because of the nature of the work. I am really delighted with the quality of the people who have come forward and who I have been able to appoint. They all have really good investigatory backgrounds. As in my case, however, they will now have to get up to speed on two separate pieces of legislation, three separate codes of conduct and all the precedent that sits behind that in the Standards Commission for Scotland’s prior decisions. It is not a judicial process, but it is quasi-judicial, and some of those things are quite specialist.

A simple example is decisions on planning applications, licensing and so forth, where complaints have arisen about those things. I will not call it arcane, but that area is quite specialist. Even if someone has a really good grounding in investigations, it will take them a while to get up to speed on what can be quite a technical area. We have set out a training timetable for all the staff who we onboarded previously and for all the staff who are coming in, and they will go through training in all those areas.

That is just one area. Another one is investigating cases of bullying and harassment, including sexual harassment. In investigating complaints of that nature, we not only employ our legal advisers but engage with Rape Crisis Scotland so that people have an understanding of how their interactions with people who are involved in complaints of that nature should be handled.

I would say that everything will certainly be in place by this time next year. I hope that I will not be in front of the committee talking about this at that time, although that is clearly not my decision to make. I certainly anticipate and expect that we will be a really well-functioning office by this point next year. Our backlog will be cleared and we will be getting through complaints much more quickly than the office ever has.

09:45  

You said that you have three new members of staff, which is excellent. I am glad to hear that. However, we heard anecdotally that there would be a staff increase of up to 7.4 full-time equivalents, so you have been running on half. Is there a move to increase your staff by 7.4 full-time equivalents? Are you still recruiting? Also, is it the three new staff who will take until approximately this time next year to be fully up and running? Will you give a little more information on that?

By all means. The recruitment so far has been for the corporate services team and the investigations team. The majority of those are new posts, so they are part of the 7.4. In corporate services, we had no information technology support in the office, so we have a new IT officer coming on board next month. Of the three members of staff who have come in already, one is a corporate services officer, one is a human resources and facilities officer and the other is an investigations support officer. Of the four who are due to join us, one is a hearings and investigations officer, because we have more hearings than we have had previously, and the others are investigating officers.

The public appointments roles will come later, simply because I was the public appointments manager and we did not know who the new commissioner was going to be. Clearly, there was no guarantee that it was going to be me, and I would have returned to that substantive post. As I have not returned to it, I am now in discussions with the public appointments manager and her public appointments officer about recruitment into public appointments roles.

Thank you—that helps a lot. As far as I can see, staffing is part of the medium-term planning. The report mentions some gaps in that planning, so I ask you to say a wee bit about that. The report suggests that the medium-term plan has almost reverted back on itself. There were going to be some cuts and some savings in the finances, but that has been superseded. What progress has been made towards completing the medium-term plans? Will you give us some information on your financial stability and sustainability?

Sure. I would like to separate two issues out. One is strategic and business planning, and all of that is in place. In fairness to us, our strategic plan, which was one of the first things that I put together and consulted on, includes financial information and projections. It is not as though those things were not in place; to an extent, they were, because the strategic plan was costed.

The recommendation is that we have a medium-term financial plan. We do not have that in place yet. I understand that it is considered quite important for us. We have been in dialogue with Audit Scotland looking for examples that we could follow. We have looked at a range of organisations’ plans, but we have found nothing that is equivalent to a parliamentary office-holder. That is because our only funding stream is the SPCB—that is it. Our only expenditure is really on staff. We do not have assets; we rent an office. Medium-term financial planning would have to be predicated on the SPCB taking a decision, potentially, that it was not going to fund us to fulfil our statutory functions. However, we are certainly looking at the matter and we are happy to look at it.

On our stability, I have been given no indication that the SPCB anticipates reducing our funding. I went to it just last year to look for an uplift in order to resource implementation of the recommendations on staffing up, clearing our backlog and so on, and that was granted. I have had no indication whatsoever that a reduction is possible in the next few years, although I understand that it may be. Workforce planning was very helpful in that regard as well. If that is something that comes down the line towards us, I am in a position, as an office-holder, to look at all the functions that I fulfil and to determine what I could potentially be in a position to drop while still fulfilling my statutory functions. I have a certain amount of leeway in some areas, but not a great deal.

Am I correct to say that you are in a difficult position and you therefore cannot produce a medium-term financial plan, or are you trying to work one up?

I am clearly trying to work one up. Whenever an auditor makes a recommendation to me, I take that recommendation very seriously. Equally, Audit Scotland says that it is in a position to help us with advice and guidance if we are not entirely clear what is anticipated. That is the stage that we are at.

So you could not give us an indication of how long you think it would take to get such a plan in place.

If we have a clearer indication of what, potentially, it might look like, it will take no time at all—a matter of weeks. We are genuinely not entirely clear what is anticipated, although I think that we have the material already in order for us to put something together that would meet the expectation.

I feel comfortable knowing that you have that information so that we could see it. That is great. Thank you for your answers.

We mentioned at the beginning the number of recommendations. You have subdivided some of them, so you are working on 26 recommendations. Based on the Audit Scotland breakdown, there were 22 recommendations, and it was reported to us that 10 had been implemented, 10 were work in progress and two had been set aside or had been overtaken by events and so on.

Can you tell us what progress you are making? Do you accept that breakdown—that analysis that says that around half of the recommendations have been implemented but around half are still work in progress? Is that still a representation that you recognise of where you are as an organisation?

Please believe me when I say that I am not trying to fudge this answer. Again, this is something that I track regularly, and I am happy to provide the committee with a very full and detailed breakdown of how we are doing against each of those recommendations. I am also happy to provide a summary to you right now if that would be helpful.

It is a bit more nuanced than that. In some cases, the targets have moved a little. Again, I am not having a go at the auditors about that; they are providing—

Yes. I do not recommend that, Mr Bruce.

Absolutely not. I am now subject to direct audit by Audit Scotland, which I welcome. However, some of them have been moving targets. I will give you an example. There was a recommendation that we conduct workforce planning. I conducted workforce planning last year, but that is still live as far as audit is concerned, because I am now going through recruitment and induction.

Roz McCall touched on that in her questions. The report that we have before us from Audit Scotland, which is a recent report, albeit that it is on the previous financial year, recounts that there was a proposal to restructure the staffing in the office that would generate savings of almost half a million pounds—£450,000—but that has been reversed. That sends a signal to us that there was a proposal to scale down quite significantly the operations of the commissioner’s office, maybe in line with the 84 per cent rejection rate. If you could come back on that point, that would be helpful.

Absolutely. You have hit the nail on the head. We had two recommendations in that initial report. One was that we should review the anticipated savings from a restructuring. Actually, two restructurings were carried out under my predecessor, which scaled down what was available to the commissioner in order to fulfil the statutory functions. That was prior to my time in post, and it related to the financial year when my predecessor was still in post.

Over and above that, it was recommended that we should do workforce planning to establish how many staff we actually need. There was another recommendation that I recruit immediately into vacant posts, because I was carrying a good number of vacancies. There was a bit of a tension between those things in respect of making savings based on restructuring. The audit had identified that we did not have sufficient staff to fulfil our statutory functions, but it also asked us to say how much we had saved because of the reductions in staff. Clearly, the recommendation on savings from reductions in staff immediately became redundant, because the reductions in staff were inappropriate. I have no other way of putting it.

Workforce planning had to be done, and it was done. We are now looking at the recruitment exercise. I feel that we did fulfil our obligations in respect of that recommendation. The same goes for the manual. We have had a manual since 2021. I chose to publicly consult on it before publishing a final version, but I see it as something that was completed some time ago.

This is constant work in progress. I am not saying that there is anything inaccurate in the report that is before the committee, but I have been working really hard, alongside a very dedicated team of people, for two years to implement all those recommendations and do more than what was recommended for us. The progress is absolutely constant, and the picture changes very regularly. We have monthly senior management team meetings, and I am pushing new things through each and every one of those meetings. We are not static. The fact that the picture has changed, and continues to change, should not—I would hope—come as a surprise to the committee.

I am happy to go through the 26 recommendations now, if the committee would find that helpful, or I can send something to the committee after today.

I think that that is a provocative question that you have put, Mr Bruce. We do not want you to go through all the recommendations now. I will say what we are interested in as the Public Audit Committee. If you sat here and said, “We’ve arrived and everything’s been done”, we would probably question whether that was probable or not, but we want to get a sense of how many of your 26 recommendations—or the 22 as accounted for by the audit—have been implemented. The auditors said that they thought that it was about half and half. Half had been fully implemented, to the credit of you and the people who work in the organisation, and half were—again, quite creditably—work in progress.

We recognise that some of these things are moving targets and that there are changes—it is a dynamic organisation. You coined a memorable phrase when you said that it is akin to rebuilding a plane in flight, which is a rather good way of putting it. You do not need to go through each recommendation individually, but can you say whether about half of the recommendations are still work in progress or whether more have been implemented? Are more of the recommendations ones that can readily be implemented so that you can say, “We’ve done that now and we can move on to something else”?

Of the recommendations that are categorised as work in progress—as I said, it is quite nuanced, but I will pluck one out of the air—one was that we review all our policies. We have 96 policies and procedures sitting on a register. We are currently sitting with seven, which are relatively minor and technical ones. That is one of the recommendations that have not been fully implemented, but the policies come before the senior management team every month, and then in front of all the staff every month, because we consult on prospective changes to them. It would appear on the surface that that recommendation has not been fully implemented, but I suggest that we have made significant progress in that respect.

Another recommendation was that we review the website. That was the subject of a separate project plan. Again, that does not currently look like it has been fully implemented, but far and away the majority of the website has now been reviewed. We just have, I would suggest, some fairly loose ends in relation to a few of the remaining ones.

Okay—that is fine. I am conscious that we are coming towards the end of our session, but I know that the deputy convener, Sharon Dowey, has a series of questions that she wants to put to you, so we will finish with her.

Good morning, Mr Bruce. You mentioned that the commissioner’s office has been granted additional funding, and you spoke about workforce planning. In answer to a question from Roz McCall, you also said that you have three new staff in place. Could you tell us a wee bit more about progress in recruiting and training to build capacity and how that is helping to address the backlog of cases?

Yes. We have been addressing the backlog anyway, but bringing on board the new staff will lead to it being cleared, and we will then be back to business as usual. Other than the grade 2 post that I mentioned, which is the investigations support officer, we have not yet onboarded the additional investigating officers and the hearings and investigations officer that we require. Once they are in post, we will be able to make significant progress on complaints handling.

How many positions in total do you still have to recruit for?

10:00  

On the investigations front, the staff have been recruited, but they all have periods of notice to work. We advertised in December, and we went through all the interviews and practical tests in March. We have recruited people to all the investigations posts that we require to be filled, but they are not all in post yet, because they are serving their notice periods with their current employers. They will all be in post by the end of May.

How are you getting on with the backlog of cases?

It might help if I give some headline figures. At the start of the previous financial year, we had roughly 60 complaints cases sitting at the admissibility stage. That was clearly very challenging for us and for complainers, so we introduced a number of measures. The number of cases was sitting between 50 and 60, so I brought forward workforce planning, because we were not moving the needle and we absolutely had to. I recognised that we needed more resources, but I also recognised that we needed to do something about the number of cases that were sitting with us.

We introduced a triage system, which operates by capturing evidence before it potentially becomes aged. We also identified complaints that we ought to take out of turn because people could be at risk of continuing harm. Those could be complaints relating to bullying, harassment and so on. We identified complaints that we could not investigate—for example, complaints about council services and that type of thing, which is nothing to do with ethical conduct—and let people know as soon as possible that we would not be taking their case forward for investigation.

All those measures have been in place since about October last year. As I said, at the start of the previous financial year, we had about 60 complaints, but we are now sitting at 22. There has therefore been a significant reduction in the number of cases that have been sitting at the admissibility stage during the year.

That leaves us with a rump of cases that require investigation. Some of them are quite complex. We are at a record level in terms of investigations and reports to the Standards Commission. We currently have 30 live investigations under way, so that gives you an idea of what we are doing. During the past three weeks, we have submitted 11 reports to the Standards Commission, and we have five hearings in the pipeline.

The backlog has gone down, but the number of live investigations is going up—and it will only go up.

On average, how long does it take to deal with a complaint—from somebody making the complaint, to informing somebody that there is a complaint against them and then to conclusion?

The last time that we looked at that—we are planning to check the averages again quite soon—the average time for initial assessment was 13 weeks and the investigation stage took, on average, 37 weeks. We did some benchmarking with our equivalents in England and Wales, and that worked out quite well. Those averages were based on the workforce as it was, so I anticipate that we will bring the numbers down.

We have just published KPIs in our manual, which publicly show how quickly we plan to get through investigations. Clearly, I am ambitious in that area, because I do not like either complainers or respondents waiting to hear the outcome of a complaint. I know that that can be really stressful.

You have said that some complaints are obviously more serious than others. Is there support in place for people who make complaints or for people who have a complaint made against them?

No, and that is a matter of concern to me. It is not that I have not raised that issue with the Government, and it has been raised with me in other committees. I met officials recently on that. It is not only me—both I and the Standards Commission for Scotland feel that support should be in place, but neither of our organisations feels that it is appropriate for us to provide that support. At the end of the day, I am the investigator. Clearly, I need to be seen to be wholly impartial and separate from the matters that I investigate. That is not to say that all our staff are not trained to be kind and respectful to the people we deal with, but we do not provide pastoral support.

The codes of conduct are brought forward by the Scottish ministers in statute, and we feel that there is potentially a role for the Scottish Government in thinking about whether support could be provided—not just for complainers but potentially for respondents and witnesses—particularly in those sorts of cases. We take a trauma-centred approach to cases of that nature. We know from our Rape Crisis Scotland training that interviewing people can be a triggering event in relation to what people might have witnessed, so that support has to be wider.

For what it is worth, I might as well relay to the committee that I have been in touch with the Standards Commission, and I think that our intention is to write to whoever ends up with this portfolio, now that there has been a change of ministers, to highlight the issue and to see whether they wish to do anything about it.

The Auditor General reported some progress in producing a performance management framework that tracks progress against the business plan. The commissioner’s office plans to introduce performance indicators to track complaints handling by 2023. Can you give us the latest position regarding the performance management framework and performance indicators?

Yes. I mentioned the strategic plan, the business plan, individual section action plans and individual staff action plans. For me, that is the performance framework, and we track progress against our business plan at every senior management team meeting. Every year, we publish progress against last year’s business plan; we will be doing that shortly. The only missing element was key performance indicators.

As I said, we will publish the manual tomorrow. That will include all the KPIs relating to the time taken for investigations. We have a range of statutory KPIs that we are obliged to report against in our annual report, and I have introduced some new ones. I mentioned regular SMT meetings. I drafted those KPIs last February, but I managed to secure SMT agreement to their implementation only yesterday, so those will come in for the next financial year.

However, in general terms, at the end of the process that they have been through, complainers and respondents will be able to provide me with anonymous feedback on the process and the extent to which the office worked in accordance with our values. We will publish our performance in relation to those matters.

May I seek verification on one point? All the reports that I have seen say that there is an eight-month wait for an initial assessment of a complaint. Did you tell us that that has now been cut to 13 weeks, which is just over three months?

No. The average is 13 weeks. Eight months is what is on the website banner—it represents the outlier case. We are talking about only one complaint that was from eight months ago, whereas the others have been cleared. After that, the longest waits relate to one case from August 2022 and one from October 2022.

We discussed the banner yesterday. It was our decision to put it on the website. Clearly, we do not want to put people off, but we want to be transparent and to manage expectations. I mentioned averages. We are revising that again—the banner might already have been changed. We will provide a link for people so that they can see where we are in relation to MSP complaints, councillor complaints and member complaints, as well as what the average wait is. We will provide all that information, but it is probably too much to put on a banner.

You described the eight-month wait as the outlier, but did you put that on your website to inform people who might have a complaint of the length of time that they might have to wait?

Yes, but we are revising that.

Do you not qualify that by saying what the average wait is? I know that you do not want to falsely raise people’s expectations, but it can also be a deterrent. If I have a complaint about the way that I was treated last week and am told that that behaviour will not be addressed for eight months, there is the issue that other incidents might happen between now and then to people who might be in the same position as me. In my view, that seems to be an odd decision to take.

We have revisited that; we revisited it yesterday. You are not the only individual to make that point. It was made relatively recently at a meeting of the Standards, Procedures and Public Appointments Committee and in discussions with the Standards Commission. We will provide a lot more detail so that people have a proper understanding of how long the wait might be.

I think that my next point also came up at the SPPA Committee meeting. You have touched on this, but I can safely say on behalf of the Public Audit Committee that we would be very supportive of welfare support being in place for respondents and, in particular, people who have lodged complaints. It seems a little bit unbalanced to have an apparatus through which complaints can be processed without having a wraparound support mechanism for people. If you and the Standards Commission are making those representations, we would be supportive of that.

Thank you.

Thank you very much for your evidence, which has been very useful. You are right, Mr Bruce: we hope that we do not see you next year either, because that would indicate how much progress had been made. It has been a valuable session for us. Thank you very much for coming in and giving us the answers to some of our questions.

I am grateful for the opportunity. I will take the time to review the evidence, as it appeared to me that you might require a good bit more detail in relation to some of the responses that I gave. Perhaps I will communicate with the clerks to ensure that you have everything that you need to be reassured about some of what I said to you.

We very much appreciate that. We also appreciate your response to Willie Coffey’s questions about sharing the legal advice. That has been a bit of a bugbear of ours, so we would really appreciate greater transparency on it.

Thank you very much for your evidence.

I suspend the meeting to allow for a change of witnesses.

10:13 Meeting suspended.  

10:16 On resuming—