Fighting for improved administrative justice in Scotland

Introduction*

Accountability Scotland was set up to improve the administrative justice system in Scotland. This is the overall system by which decisions of an administrative or executive nature are made in relation to particular persons, including: procedures for making such decisions; law under which such decisions are made; and systems for resolving disputes and airing grievances in relation to such decisions*.

At the pinnacle of this system is the Scottish Public Services Ombudsman (SPSO) (a term that is applied in practice both to the ombudsman himself, Jim Martin, and to his staff).

Therefore, in trying to improve the system overall, our main concern is with the SPSO.
The public bodies under his jurisdiction (BUJs) include local authorities, the NHS, and ‘education’.
Surveys have revealed much dissatisfaction with the SPSO* and our increasing membership is largely, but not entirely, due to unhappy experiences with the SPSO.*

We welcome, and need information on, specific cases but, as an organization, we are not committed to assisting individuals with these, although some members do try to help others to the extent of their personal enthusiasms and abilities, and our website gives some general guidance*.

There is much room for improvement in various sectors, notably in relation to the NHS and whistleblowers, to local authorities (e.g. planning) and to school education. These all concern us, but we lack coordinated approaches and cannot do everything. There are campaign groups separate from Accountability Scotland that concern themselves with these and with which we interact*.

Suggestions for improving administrative justice in Scotland

1. Possibilities of personal biases should be minimized within the administrative justice system and an important general principle to be emphasized is therefore that of structural independence*. Our website says of this that it “is a situation where officials are not called upon to criticize or judge present or former associates, colleagues etc. (See the Kevin Ruddy case—a landmark judicial ruling that police complaints handling in Scotland had breached the European Convention on Human Rights because of a lack of independence*. Also illustrative was the public concern over Fiona Woolf who resigned as the chairman of the UK government's child abuse inquiry).
People do not like to be critical of associates, colleagues, superiors etc.

The next items, numbers 2-8 relate to the SPSO.

2. We feel strongly that the ombudsman should adopt the international standards on complaints and quality assurance of ISO9001 or ISO10002*. These standards require internal quality assurance processes that check outcomes as well as processes and would help to provide public assurance. ISO9001 is used by ombudsmen in Australia and the SPSO’s lawyers and is promoted by the Scottish Executive.

3. Re-consideration of disputed SPSO decisions. The SPSO has a policy that restricts this. They suggest the use of judicial review, but this is so expensive that that only one or two complainants have so far used it. We urge that alternative dispute resolution (ADR)* be made available. Thus would be much cheaper. ADR involves an independent third party, a mediator who assists in reaching a voluntary resolution of a dispute.

4. Presumption of honesty rule. The SPSO should adopt this. It is applied by the Netherlands ombudsman According to this rule, unless there is a record to prove a public body has acted in a certain way, the account of the complainant is accepted as correct, the presumption being that they are likely to be honest in putting their case. This is seen as crucial in a circumstance where the public bodies have all the power, have control over the production of evidence and are reluctant to admit faults. Without such a presumption, the complainant is always fighting a losing battle as they try to prove their case and the system will naturally favour the big public bodies.

5. Helping complainants. The SPSO should employ staff with the specific role of guiding complainants in the presentation of their submissions. This would help the investigators as well as the complainants.
6. Lessons from Gibraltar. The Gibraltar ombudsman achieves about 98% complainant satisfaction, regardless of outcome and his model of ombudsmanry is held in high regard. The local nature of this ombudsman, who deals with 30,000 citizens, is seen as key to his success.
Accessibility. The office is accessible, citizens can have direct contact with the ombudsman, interviews are frequently used, and the ombudsman has a clear sense of how public organizations are operating and where problems exist.
Satisfaction not dependent on outcome. The Gibraltar example disproves the SPSO’s contention that the latter’s high complainant dissatisfaction rates are necessarily linked to disappointing outcomes.
Regional offices for Scotland? It also suggests how Scotland’s system might usefully be altered; instead of single office building (in Edinburgh) there could also be regional offices (not necessarily open every day). Complainants would then be able to drop in without travelling far and investigators might easily visit, and have local knowledge of, the relevant BUJs. (Structural independence would of course need to be maintained.)

7. More funding for SPSO. The SPSO has recently made clear the need for more funding. We support this. A bigger staff might reduce the serious staff dissatisfaction revealed in a recent survey.

8. Checks on SPSO performance. We aim to get parliament/government interested enough to check on his performance. (In accepting our petition PE 1538 on transparency in SPSO investigations in 2014, the Public Petitions Committee did recommended investigation of the SPSO’s performance, but both recommendations were dismissed by the LGR committee.)
In fact and in principle, the SPSO’s performance could be improved from within, with little need for legislative change (see above).

How we try to achieve our aims and have our proposed reforms implemented

a) Our policy is to approach, in person if possible, those MSPs and committees that have appropriate influence and power. The relevant committees are the Scottish Parliamentary Corporate Body (SPCB), the Scottish Public Petitions Committee and, despite its name, the Local Government and Regeneration (LGR) Committee.
We have submitted much evidence to the SPCB on the SPSO*, but their response (largely, but not completely, justified by the SPSO Act of 2002) has been that the SPSO is completely independent of parliament.

b) Petitions submitted to the Scottish Public Petitions Committee can be successful (e.g. our PE1538)*. That our PE1594 was quickly dismissed was unsurprising, but it enabled us to put significant information about the SPSO on the government website*.

c) The LGR committee has annual sessions with the SPSO, putting questions and considering their annual report. (The committee has discontinued their former practice of accepting questions from the public.) The questioning can be good, but the ombudsman too easily gets away with evasive and even inaccurate responses.

d) Another committee relevant to our concerns is the intended replacement for the abolished Scottish Tribunals and Administrative Justice Advisory Committee (AJTC). Accountability Scotland petitioned for its replacement (PE1449)*, but the present situation (September 2016)is still obscure.

e) On publicity, a general problem with the promotion of administrative justice is that so few people know about it – including the press and MSPs – that it is hard to stir up interest. Thus only one MSP came to our Holyrood conference*. We write occasional articles, e.g. in The Scottish Review*.

The need for reform of the committee system and for a second chamber.
As indicated above, we need to deal with parliamentary committees. Much has been made in the media of the need for better scrutiny and discussion of legislation. Committees do much good work, but we are aware of serious failures. The relevant committees need to be receptive to views of the public and free of undue government influence. They need to be well-informed and supplied with research briefings from the specialists in the Scottish Parliament Information Centre (SPICe) that are fuller and more accurate than some we have seen.

                                                                          -------------------------------------------------------

Note* Asterisks indicate topics covered or discussed on our website. One of our aims is to maintain and develop an informative website as a general source for the public (www.accountabilityscotland.org.uk). Another website (www.unaccountablescotland.org.uk) gives illustrative examples of administrative injustice.