Read these three letters to appreciate the obstacles to our progress in Holyrood.

By email from the Committee Office, The Scottish Parliament, 9 June 2016

Dear Mr Stewart Blacker

Thank you for your request, on behalf of Accountability Scotland, to meet with officials and I apologise for the delay in replying. I understand you wished to discuss (i) the administrative justice system in general, (ii) that the Committee system isn’t working properly and in particular that Members are not sufficiently informed and that a different approach should be adopted to the in-gathering of evidence, and (iii) that the Parliament and the SPSO would benefit from being subject to ISO9001 as the quality of work would improve.

I am aware that Accountability Scotland and individual members of Accountability Scotland have corresponded with the SPCB, the previous Local Government and Regeneration Committee, the previous Justice Committee and contacted a number of officials about the above mentioned matters and I understand that these matters have all been fully considered by the various parties.

On the face of it, it appears that a number of issues that you are concerned about are more appropriately directly towards the Government rather than the Parliament and therefore, you may wish to contact Government officials, especially over issues about the administrative justice system in general. I should also add that the Local Government Committee has actively engaged with the Ombudsman over the last parliamentary session about his functions and I would expect this to continue to do so. Indeed, the Committee made specific mention in its Legacy paper (a copy of which I attach – paragraphs 34 to 37) about the Ombudsman On the issue you raise about committees, the previous Standards, Procedures and Public Appointments committee conducted an inquiry into committee effectiveness and reported on this in January 2016. You may also be aware that the Parliament, last week, agreed its new committee structure for the forthcoming session.

Given all of this, I am not entirely clear about what merit there would be in Parliament officials meeting with you at this time. However, if there is a matter that has not already been covered that is specific to the Parliament, please let us know with details of your concerns

Yours sincerely
Susan Duffy
Head of Committees and Outreach

Response to letter from Ms Susan Duffy to Mr. Peter Stewart-Blacker,

9 June 2016

Dear Ms Susan Duffy,

I write on behalf of Mr. Peter Stewart-Blacker and of Accountability Scotland of which I am Secretary. We thank you for your letter of 9th June 2016 and apologize for our tardy
reply. This needed careful thought and discussion.

Your first paragraph is a fair statement of what we would like to discuss.

In your second paragraph you state “these matters have all been fully considered by the various parties”. There seems to be little recorded evidence for this (especially in regard to “fully”) and we are confident that this statement is untrue. If there is full documentation of the relevant arguments and discussion of any of these matters, we would be pleased to see it. However, as things stand now, we ask that due consideration be given to our views and evidence.

Your letter and its attachment illustrate well our belief that most MSPs and parliamentary and governmental committees have inadequate knowledge and understanding of the defects in administrative justice in Scotland, including those of the SPSO. It seems that this is partly due to them not realizing how poorly informed they are*, and partly due to a reluctance to face the problems. The situation is not helped when relevant committees are not given full and accurate information, or not given it in time for careful reading.

Here is a simple illustration of what is seriously wrong: the Parliamentary Petitions Committee recommended that the SPSO be investigated, but the recommendation was then dismissed by the LGR Committee on invalid grounds and with little recorded discussion. Background information was made available to the committee by us, and not by the clerk.

There was far too little time for the members to read and think, especially given their other duties.

Your letter refers to the LGRC being actively engaged with the Ombudsman about his functions. The Minutes are available and reveal that the SPSO is too often evasive in his responses to questions – and gets away with it. We can cite examples.

It does not help assessment of the SPSO that parliament does not, and cannot, consider the justice of his individual judgements. We understand the point of this, but it does mean that valuable background impressions are missing. However, it is important to note that the evidence submitted by Accountability Scotland is almost entirely based on publicly available information, notably on the SPSO’s and Scottish government’s websites. That includes minutes of meetings of the LGRC and other committees.

That Parliament does not, and cannot, consider the performance of the SPSO has been given by the SPCB as the reason for disregarding the extensive documentation (based mainly on SPSO sources) that we have given them. That should still be on file. We have never suggested that the SPCB should look at specific cases.

Paragraph 37 of LGRC’s 8th Report, 2016 (Session 4): Legacy Paper (and the report generally) is somewhat dismissive of the considerable documentation researched and supplied by Accountability Scotland. Prominence is given instead to the two individuals excluded from communication. The only one of these who is a member of Accountability Scotland was not writing on behalf of that organization.** Was the intention to convey the impression that Accountability Scotland is simply vexatious and ill-informed?

Our next point concerns the research briefings written by the Scottish Parliament Information Centre (SPICe) for MSPs and committees. We have seen such reports intended to supply background information to committees such as the Public Petitions Committee. Some are poorly researched, partly irrelevant and very misleading. Examples can be provided. Notably, a person known to us was written to by a government committee and asked to write a government opinion on the effectiveness of the Ombudsman. This person admitted to us that she prepared the report by simply cutting and pasting from an SPSO press release, without independent verification of any of the statements. How can the government and MSPs deal adequately with any issue if not fully and correctly informed? There is clearly a need for competent and diligent reporters. See paragraphs 36-37 of
LGRC 8th report Legacy Paper (“Making use of reporters”). Their reports should not be anonymous.

In your third paragraph you refer to direct approaches to the Government. We have in fact made these over the years and will continue to do so. However, they have achieved nothing so far. Even the recommendation of the Public Petitions Committee that the SPSO be investigated has been ignored. Linda Pollock (Government) recommended to us that we approach parliamentary committees.

It is a matter of concern that STAJAC has not been replaced, despite government assurances. The administrative justice system (including the SPSO) has not been kept adequately under review. Also there is no longer a supervisory body for tribunals – as has been relevant to the alleged abuse of power within the Crofting Commission.

The SPSO holds meetings of their misleadingly titled “customer sounding board”. This does not involve what the SPSO normally calls “customers” (i.e. members of the public with complaints), but is made up of representatives of organisations such as Age Scotland, Alliance Scotland, Patient Opinion, Positive Prison etc. At the last meeting none of the representatives knew of any specific complaint or complainant. Indeed none of them that Accountability Scotland has spoken to had had contact with complainants to the SPSO.

In your final sentence you invite us to let you know of matters that have not been covered that are specific to the Parliament. You will see from the above that there are many issues that have not been fully and adequately covered.

There are other issues of administrative justice that we would like to discuss that we indicate here only briefly;

  • The remarkably high satisfaction rate achieved by the Gibraltar ombudsman and the implications for Scotland and the SPSO.
  • Structural independence and the implications of the Kevin Ruddy case.
  • Alternative dispute resolution as a more affordable alternative to judicial review of SPSO decisions.
  • Adoption by the SPSO of the “presumption of honesty rule” that is applied by the Netherlands ombudsman.

* A common term for not knowing what one does not know is “unconscious incompetence”. It leads to complacency. Another psychological problem in this context is the “anchoring
effect”; when one has formed an opinion, there is a strong tendency to resist changing it, even in the face of strong evidence.

** Without commenting further on those two individuals, we note that many people whose complaints to officialdom are unresolved are left sufficiently frustrated, angry,
obsessed and even unemployed that they campaign for justice in ways we would not recommend. Their collective existence is evidence not just for failure of administrative
justice, but also for lack of sympathy and understanding of the distress suffered by complainants.

Yours sincerely,

Dr. Richard Burton, Secretary of Accountability Scotland
Mr. Peter Stewart-Blacker, Chairman of Accountability Scotland
Copied to the MSPs of the Scottish Parliamentary Corporate Body.

By email from the Committee Office, The Scottish Parliament, 19 August 2016

Dear Dr Burton

Thank you for your letter of 2 August in response to my earlier correspondence.

I appreciate you feel that the issues you have raised have not been fully considered.

However, I would reiterate that issues raised by Accountability Scotland have been examined by Parliamentary committees and by the SPCB over the years. For example, the previous Local Government and Regeneration Committee undertook scrutiny of the SPSO by considering his annual report and related documents each year and there have been a number of petitions relating to the Ombudsman.

The Local Government and Regeneration Committee’s legacy paper recommended that its successor committee continue to scrutinise the operations of the SPSO. It will be for that committee (the Local Government and Communities Committee) to decide whether and how it takes this forward.

I appreciate you continue to have issues with the administrative justice landscape in Scotland and I note in your response that you have approached the Government directly and you will continue to do so. If, in the future, the Government were to bring forward legislation to effect reform of the administrative justice landscape, it would be scrutinised by the relevant Parliamentary committee or committees and you would be able to engage with any consultation exercise that a committee carried out.

Alternatively a committee may decide to look at these issues as part of their work programme.

As I have said in relation to scrutiny of the SPSO, it is for committees themselves to decide whether they deal with a particular issue and if so, the way in which they want to approach the issue. However, any future scrutiny could offer you an opportunity to put forward your views.

I understand you have also contacted the Presiding Officer and Members of the SPCB about this matter and therefore, I am copying this response to them for their information.

Yours sincerely
Susan Duffy
Head of Committees and Outreach
cc: Presiding Officer and Members of the SPCB