Chamber and committees

I will highlight the crucial lessons that have been learned. First, there is a need for a clearly articulated policy approach for the handling of any complaints that arise. A great deal of thought and care has gone into consideration of the relevant issues and how they should be handled and expressed. That information is in front of the committee. As I stressed in my opening remarks, we have shared it with Parliament at this stage, but it is not the final product. There is still space for us to reflect on any points that the committee raises with me, and there is on-going discussion with recognised trade unions and with staff.

The second lesson that we have learned is the importance of ensuring that, should any issues arise, they are addressed promptly and early. That might be by means of informal resolution, which is one option in the handling of such matters. However, if that is not practical or possible, as I have just expressed, there will be a policy through which we can refer the matter and have it handled.

Thirdly, it is necessary for there to be independent decision making at every stage of the process.

The final lesson is that we must all dedicate our energies to creating a respectful working environment in which relationships between ministers and officials are appropriate for all circumstances.

Those are essential elements of the character and nature of any policy approach. It is critical that both those tests or maxims are properly followed in how the policy is exercised. To achieve that, we have sought detailed advice on employment and public law.

There is not always a neat compatibility between the requirements of employment law and the requirements of public law, so there is a need to essentially reflect on those streams of thinking in arriving at a rounded policy approach. In my judgment, I have presented to the committee an approach that takes due account of protecting the employment rights of individuals and ensures that those are handled in the appropriate public law environment that allows natural justice to be properly taken into account in any aspect of the decision making. For example, there is an appeals mechanism in the policy that might not be present to the extent that it is present in this policy in an employment law situation, but to take due account of the public law issues, I consider it to be safer to have that appeals mechanism to the degree that it is in the policy, to address the fundamental issue that you put to me, convener.

That decision would be made within the management function in the Scottish Government. The Scottish Government has to handle the administration—if I can use that term—of the complaint, and that aspect is literally an administrative handling function. It would be done within Ian Mitchell’s propriety and ethics team, which would apportion a case to a panel of external investigators and adjudicators.

We are currently recruiting—my officials will correct me if I am wrong—five external investigators and five external adjudicators. From that panel, the Scottish Government propriety and ethics team will select individuals. Crucially, at each stage in the process, the same person cannot revisit detail of the previous stages. If the case came to appeal, the individual who was selected to handle the appeal would be a different individual from the one who had taken an earlier decision in the case.

That might mean identification of aspects of procedure or working practice that need to be addressed as a consequence of a case. It essentially puts the onus on us—I referred to this in my response to the convener—to constantly improve how we operate as an organisation in order to ensure that no opportunity to learn lessons is missed in the handling of an issue.

There is a special adviser code, which channels considerations about special advisers through a civil service channel, with a few unique elements added on. The code essentially specifies that they are temporary civil servants, so they have the obligations and the rights of civil servants in relation to how they are handled in the employment sense. They have a couple of additional obligations and opportunities around the space of political engagement, which civil servants do not have. That is all regulated by the special adviser code. The issues that affect special advisers are fully and properly considered by the nature of their code, which channels them into the civil service grouping.

I understand that.

Hierarchy is not exclusive to the civil service. I am sometimes struck by the obvious signs of anxiety that some civil servants exhibit in having to appear in front of someone as mild mannered as me, and I try to take account of that in how I deal with issues. It can be obvious that people are anxious about what lies ahead of them. It is important that, as part of the culture, there is an understanding of the effect that that has on the interaction of people who are in different positions when it comes to the exercise of power and responsibility. Having a respectful environment is absolutely fundamental to that.

When we published the proposals, the trade unions made clear their public support for the policy, as it has been developed. However, I have other accountability, such as to the Parliament, to think about. It is important that the Parliament is able to express any views that it wishes to express. Were the Parliament to provide us, through the committee, with other issues that it judged should be addressed, we would obviously discuss those issues further with the trade unions.

The decision would be taken at that early stage of considering whether the complaint is within the scope of the policy. However, the member of staff would have the ability to challenge that in a subsequent follow-up discussion.

It would be made within Ian Mitchell’s propriety and ethics team.