Chamber and committees

It is to take into account possible conflict-of-interest issues if people already have knowledge of the individuals, for example, and the fact that we inserted the appeals procedure. If we have an individual to investigate and we then go to appeal, we will need a separate decision maker and so on, and we will need to again ensure that there is no prior involvement. As Ian Mitchell said, there is no hard and fast judgment on the numbers. The decision was made simply to give us that range and flexibility.

I do not want it to be viewed as a final element, because propriety and ethics has been established as a distinctive directorate in the Scottish Government in response to a lot of the experiences that we have had, in order to underpin all the work that we are undertaking.

I do not want the committee to think that we are only getting around to thinking about propriety and ethics at the very end. We have actually been thinking about it from the very beginning—it runs through the whole process. The words that I would highlight in the last element of our schematic are “review of the processes”, as opposed to a review of the propriety and ethics function, because propriety and ethics is embedded in the process that we are undertaking.

Mr Johnson is correct; there is a tension there. There is a fundamental democratic question that the First Minister appoints a minister and essentially judges conduct in relation to a tabulated expectation of how our ministers should conduct themselves. The First Minister takes the code seriously in that respect and has those expectations of ministers, and that is made clear by the First Minister to ministers.

In relation to the perspective of the independent advisers, I would be entering into speculation, because I do not know what will come back from them. However, what I would say is that when you have advisers with the track record and credentials of Dame Elish Angiolini and Mr Hamilton, being open to hearing their perspectives is a good idea.

I do not take that view, for the reasons that I have set out. A lot of the questions about what went wrong with the process and procedure were clearly and openly aired at the committee prior to the 2021 election. Indeed, one of the issues that the convener has just questioned me about was the necessity for there to be no prior involvement of individuals in a particular case, and I went back to that point a couple of times in my responses. That was one of the significant flaws in the previous handling, which became very clear at the Committee on the Scottish Government Handling of Harassment Complaints.

Although I understand the Liz Smith’s point that this committee did not undertake that exercise, my contention is that another parliamentary committee did so, and we are now in the process of learning the lessons from that and changing practice as a consequence. I am very happy to engage with the committee about that, and I am certain that the permanent secretary will be happy to do so, likewise.

Yes.

First, I accept Mr Lumsden’s point that there is a specific issue to do with agency workers. We took that away after it was raised with me at a previous evidence session. The judgment is difficult because the individual is not an employee of the Scottish Government but, essentially, they must be able to raise any concerns that they have through their own employment channels. Assuming that the organisation for which the individual works has appropriate human resources processes in place to enable that to be the case, the Scottish Government must have in place appropriate contractual relationships with a contractor in order to make sure that, should any issues be drawn to the contractor’s attention as an employer, those issues are addressed by the Scottish Government. That would have to be done under a contract management relationship, but if that involved any issues of ministerial interaction, we would have to address that through our own processes as an organisation.

It would not necessarily be through that process, which is available to members of staff, but we would have an obligation to address those issues because of our obligations under contract. You cannot have contractual relationships that do not work in an appropriate fashion; we would have a contractual obligation to address any issues.

I suspect that I will rely heavily on the words “direct” and “indirect” in my answer but, essentially, we are trying to cover all bases so that we have the ability to intervene when there is a direct and explicit necessity to do so. The indirect provision is where we are trying to find every other possible avenue that needs to be closed off to ensure that we have a system that is appropriate for the challenges that we face. I would best describe the provisions in the new sections 86B and 86C of the 2008 act, which the bill introduces, as trying to get to that level of completeness.

I am not quite following Mr Fairlie’s question.

It certainly would, because there is no doubt in my mind that the fact that we had to make such significant legislative change—in extremis, twice, in the spring of 2020—indicates to us that our statute book is not up to date.

We are likely to lodge an amendment on the moratorium at stage 2. There are differing views on the appropriate moratorium period and on whether it should be permanent, so we are taking time to consider what the timescale should be. During the pandemic, a temporary moratorium of six months was put in place. In England and Wales, the period is 60 days. There are a range of views, and we are in the process of weighing up the different views and setting out the provision, which is likely to take the form of a stage 2 amendment.