NEW PETITION ................................................................................................................................................... 1
Scottish Public Services Ombudsman Investigations (Transparency) (PE1538)

PUBLIC PETITIONS COMMITTEE 17th Meeting 2014, Session 4
*David Stewart (Highlands and Islands) (Lab)
*Chic Brodie (South Scotland) (SNP)
Jackson Carlaw (West Scotland) (Con) *Angus MacDonald (Falkirk East) (SNP) Anne McTaggart (Glasgow) (Lab) *David Torrance (Kirkcaldy) (SNP) John Wilson (Central Scotland) (Ind)
Alexander Fraser Dr Roberta James (Scottish Intercollegiate Guidelines Network) Professor John Kinsella (Scottish Intercollegiate Guidelines Network) Elaine Smith (Coatbridge and Chryston) (Lab) Peter Stewart-Blacker (Accountability Scotland) Dr Sara Twaddle (Scottish Intercollegiate Guidelines Network)
Anne Peat
The Robert Burns Room (CR1)

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Scottish Parliament    Public Petitions Committee     Tuesday 25 November 2014

New Petition
Scottish Public Services Ombudsman Investigations (Transparency) (PE1538)

The Convener (David Stewart): Good morning, ladies and gentlemen. I welcome you all to today’s meeting of the Public Petitions Committee. As always, I ask everyone to switch off their mobile phones because they interfere with our sound system.
Apologies have been received from Jackson Carlaw, Anne McTaggart and John Wilson, and no substitute members will attend in their place.
The first item is consideration of a new petition: PE1538, by Dr Richard Burton on behalf of Accountability Scotland, on transparency in Scottish Public Services Ombudsman investigations. Members have a note by the clerk, the Scottish Parliament information centre briefing and the petition. Dr Burton has provided an extra briefing, which is in our additional papers.
The committee agreed to invite Accountability Scotland to speak to the petition. I welcome Peter Stewart-Blacker, who is the chairman of Accountability Scotland. I invite him to address the committee for a maximum of five minutes, after which I will ask questions and invite my committee colleagues to ask further questions.
Peter Stewart-Blacker (Accountability Scotland): Good morning, ladies and gentlemen. I have the hardest job: I have to try to make the equivalent of a train timetable exciting to you, so I apologise.
Administrative justice is the foundation of social justice. Without it, we will not have a fair society. It is important that the Government machine is held to account effectively. The ombudsman is, in effect, the public voice to Parliament.
A complainant needs the full facts of a complaint so that he can understand how to make it effectively. Some of our members have not been given the full facts of their cases. Correspondence between the ombudsman and the bodies under jurisdiction has been kept secret, in line with the Scottish Public Services Ombudsman Act 2002.
The problem with the definition of secret is that it seems to be applied in many ways and the ombudsman has a tight grip on it. We need it to be properly defined, so we seek a change in the act to give us a more accurate definition.
The ombudsman has precluded many of our complainants, who have tried to get the correspondence to be able to rebut the arguments that are put by the bodies under jurisdiction. They do not know what the other side is saying. We do not have the advantages of the situation that applies in a court of law, in which both sides of the argument are put.
It is possible to redefine or to properly define what is private. The Welsh manage that by getting the complainant to sign a non-disclosure document when there is information that is sensitive and needs to be kept away from the public. In that way, complainants can defend themselves properly and can see the facts.
We need a wholly transparent system, which we do not have at the moment. We want all the evidence to be available to both sides so that, when the ombudsman makes a decision, the complainant can understand the facts. When the ombudsman does not find in favour of the complainant, time should be taken to give them an explanation. We need understanding. If people do not understand decisions, that causes them huge amounts of stress. We have members who are stressed and who have great difficulty in doing this sort of thing because they feel that they are not heard and are not given effective administrative justice.
The ombudsman has been in power since 2002. No one has independently investigated any of the cases that he has made decisions on for the effectiveness of those decisions and the quality of the justice that he delivers. We need real justice so that we can deliver social justice to the people of Scotland.
The Convener: Thank you for your evidence. I have two questions for you. What would the effects be if the Scottish Government accepted your petition in full?
Peter Stewart-Blacker: That would allow justice to be delivered and complainants to have that satisfaction. We do not know what the ombudsman’s recent success rates are; we think that they are in the low 50s. The Gibraltar Public Services Ombudsman achieves a satisfaction rate that is in excess of 95 per cent by virtue of the way in which he investigates complaints. He does that in private, but both sides of the argument are provided. The Gibraltar PSO finds in favour of only 25 per cent of complainants, yet he has a satisfaction rate of more than 95 per cent. That is what we are looking for. We want to deliver effective justice.

The Convener: What evidence do you have that change is required?
Peter Stewart-Blacker: We have 100 members, who all agree with the statement that the ombudsman fails to investigate adequately and effectively. There is no easy recourse to justice for them. The only recourse that they have is to judicial review, but they do not get legal aid so, in effect, that avenue is blocked. There is no effective remedy.
The Convener: Do you have any evidence from outwith your membership?
Peter Stewart-Blacker: It is difficult to get such evidence because—rather like the train timetable—the issue that we are raising is not very popular and is not something that the press are desperately interested in. We find one another. Outwith that, it is extremely difficult to find evidence. We have a small membership of 100 people. However, it is still the case that those 100 people have sought us out.
Chic Brodie (South Scotland) (SNP): Good morning. I have some sympathy with anything that is free, open and transparent, which has been evident from consideration of previous petitions. However, I wonder what you are asking for in relation to openness. You ask to be made aware of the content of any verbal communications. That is an extremely difficult thing to do, is it not?
Peter Stewart-Blacker: It might be difficult, but I do not see why the notes of a conversation cannot be provided. In an operation such as the ombudsman, which I presume records telephone conversations, I would think that some sort of précis of those conversations would be made relatively easily with modern technology.
Chic Brodie: People interpret stresses on particular words differently and interpret particular words differently.
To move on to process, since the Scottish Public Services Ombudsman Act 2002 was passed, has there been any review of the process at all?
Peter Stewart-Blacker: Not independently.
Chic Brodie: Has there been no need for a review, or is there a need?
Peter Stewart-Blacker: There is considerable need for a review. An organisation such as the SPSO cannot go without some form of checks and balances or review. It is easy for the ombudsman to say that everything is all right in the garden, but we do not know that unless somebody goes in and inspects whether the weeds are growing. We need that reassurance.
The ombudsman has gained more and more importance within the Scottish Government machine and I understand that he has been given more responsibility. We need the confidence and reassurance that things are being dealt with properly, because we have a membership that says that that is not the case.
Chic Brodie: You just said that the SPSO is becoming increasingly important within the Scottish Government machine, but our briefing says:
“in the exercise of the SPSO’s statutory functions, the SPSO is not subject to the direction or control of any member of the Scottish Government or the Scottish Parliamentary Corporate Body.”
Who does the SPSO report to?
Peter Stewart-Blacker: That is the problem. The ombudsman reports to nobody and is entirely independent. There is nobody to review him.
Chic Brodie: So there is no audit—
Peter Stewart-Blacker: There is an audit of financial matters and effectiveness, but that does not look at the operations. One of my overused analogies is that the SPSO is a beans factory. It has a wonderful machine that takes the beans in, cooks them and cans them but, at the other end, there is no quality control—nobody tastes the beans. That is what we feel is necessary—some form of checks and balances so that we know that the ombudsman is doing the job.
Chic Brodie: You mentioned checks and balances. You are asking for a free, independent, impartial and open review of complaints. How do you think most complainants would feel if the guarantee of confidentiality was removed? There might be issues in a complaint that it would not be desirable to require to make public.
Peter Stewart-Blacker: I do not think that the removal of confidentiality is necessary. It can be kept in place.
In Wales, people can sign a non-disclosure agreement, so the information does not need to be put in the public domain. If a person was in breach of a non-disclosure agreement, the information would not be put into the public domain. Such an approach would allow a proper investigation to be carried out, because the complainants would have the same access to the facts as the ombudsman and the body under jurisdiction had. That process is transparent.
Chic Brodie: For the development of fairness, I can understand, appreciate and agree with that. However, is it not possible that the SPSO could argue, from its frame of reference, that it wishes its deliberations or information to be confidential?
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Peter Stewart-Blacker: For what reason? That is what we do not understand. We do not understand why there is any need for most of those things—
Chic Brodie: I did not say that there was a reason, but is it not possible that the SPSO would argue that?
Peter Stewart-Blacker: I am sure that it will, but we do not understand it. If the ombudsman is meant to be impartial and fair, and therefore transparent, we do not understand why he cannot be open with us.
Chic Brodie: I have a couple of questions about the SPSO’s efficacy. Another committee heard in evidence:
“The complainant will be contacted within two weeks by the complaints reviewer who is dealing with their case”.—[Official Report, Local Government and Regeneration Committee, 11 December 2013; c 2999.]
Does that happen?
Peter Stewart-Blacker: I am sure that it happens, but I go back to my analogy of the beans factory. Things can move from one department to another seamlessly and there could be the most brilliant process in the world, but that is no use unless the quality of the work that the reviewers do is subject to review, or without the inclusion of something such as ISO 9001 to ensure that external reviewers can look not only at the process by which the complaints are handled but at the effectiveness of the decisions that are made by that process.
Chic Brodie: I understand that.
Peter Stewart-Blacker: ISO 9001 is starting to be introduced into some Government departments, which we welcome.
Chic Brodie: We talked about a response within two weeks. The SPSO also advised:
“We will normally provide an update for the complainant in writing and we will decide within a 10-week period, although it can be much shorter than that”.—[Official Report, Local Government and Regeneration Committee, 11 December 2013; c 2999.]
I ask about efficiency because I want to know what goes along with that and about the quality of the people who are handling complaints. How many people are involved with the SPSO? Is it just one? What is the organisation’s constitution and how many people are handling complaints?
Peter Stewart-Blacker: From the ombudsman’s point of view?
Chic Brodie: Yes.
Peter Stewart-Blacker: Obviously, the SPSO has a whole process that I am sure it could answer questions about. I am not really in a position to do so.
Chic Brodie: Okay but, in general, does the SPSO get back to people within 10 weeks with a decision?
Peter Stewart-Blacker: Yes, but a can of beans can be delivered in three minutes. If the beans are inedible, they might as well not have been delivered.
Chic Brodie: The producer might argue that they are edible.
Peter Stewart-Blacker: If the producer does not have a quality control department, how can he possibly argue that?
Chic Brodie: That relates to the question that I asked about efficiency and therefore about the quality of reviewers.
Peter Stewart-Blacker: The concept of unconscious incompetence comes into this point. If somebody does not understand, they do not know what they do not know. If a reviewer is completely unconscious of a subject—if, for example, they have no idea about building and they are dealing with a complaint about buildings—they could produce a fantastic report that misses the point.
The Convener: You highlighted quality control with your beans factory analogy but, as you may know, there is already quality control in the system. Every year, the Local Government and Regeneration Committee takes evidence on the quality of the work that is being carried out. Are you aware of that? Are you really calling for a change in the legislation? If so, our colleagues on that committee might be better placed to look at the issue in more detail.
Peter Stewart-Blacker: First, we need the process to be changed and clarified, because we need to understand the whole complaint. In a court of law, the case for the prosecution and the case for the defence are heard. However, with SPSO complaints, we do not get to see the other side’s information or have the chance to rebut it. That is why we are looking for the documents to be disclosed, but we would also be happy to sign non-disclosure agreements, with all the penalties that go with them. We are therefore looking for a change in the legislation.
The Convener: Have you or any of your colleagues been in the public gallery when the Local Government and Regeneration Committee has carried out its yearly analysis of the SPSO’s performance?
Peter Stewart-Blacker: Yes. Well, the majority of us watch it on television.
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The Convener: In summary, you are looking for a change in the procedure or the legislation to allow you to access documentation.
Peter Stewart-Blacker: Yes.
The Convener: Would it be useful if we referred the petition to the Local Government and Regeneration Committee, which has a direct responsibility in this area?
Peter Stewart-Blacker: Yes. We are happy for that to happen.
The Convener: After all, we are keen to get quality control for petitioners, too.
Before I go to the summation, I ask whether my two colleagues who have not spoken have any points to make.
Angus MacDonald (Falkirk East) (SNP): I will make a couple of short comments. Similar examples of the lack of accountability of bodies have been highlighted to the committee, and there is a perception that there are no proper checks and balances. It certainly defeats the SPSO’s purpose if it is not wholly transparent or, at least, if such a perception exists. A larger issue is whether we need to consider whether the Local Government and Regeneration Committee’s monitoring is robust enough, but it could probably examine that for itself.
I ask Mr Stewart-Blacker for a point of clarification. You stated that there has been no review of the process, but did you also say that there has been no independent review of any cases?
Peter Stewart-Blacker: The process has been reviewed. The ombudsman went south of the border to get someone who was independent, and Jerry White reviewed and reported on the handling of cases. However, he was specifically excluded from looking at casework. Someone has looked at and monitored the process but, at the end of the day, the issue is whether justice is being delivered. That work has never been done anywhere in Scotland.
Angus MacDonald: As far as you are aware, there is no process for inspecting previous cases.
Peter Stewart-Blacker: There has been no independent inquiry into the quality of the casework. I should point out that we are not asking for the ombudsman’s decisions to be reviewed or changed; we are asking purely for an examination of the quality of decisions.
The argument that has been led a lot is that the ombudsman’s decisions cannot be looked at because he is independent. However, if a review is not setting out to change any of his decisions, it is not interfering in any way with his processes—it is merely checking whether the man is doing the job that he has been asked to do.
The Convener: I think that Chic Brodie has a final question.
Chic Brodie: The petition says:
“We do in any case know from experience that the SPSO can inadvertently misrepresent details of the accusation and we also know from experience that BUJs”—
bodies under jurisdiction—
“can provide false evidence ... presenting second-hand evidence or from lower levels in the organization”.
Where is your evidence for that?
Peter Stewart-Blacker: I would need to ask Dr Burton to answer that—
Chic Brodie: That is essential, because that is a serious accusation.
Peter Stewart-Blacker: At the end of the day, the issue is about how we as complainants see it. We need to see the evidence on the other side. The problem with the ombudsman’s decisions—I can talk only about my experience of the decisions—is that they are sometimes made without reason. Sometimes, what is written is just, “In my opinion, X.” The matter is not weighed in any way. When there are two competing facts, there is no attempt to say, “Mr X said this and Mr Y said that. I favour Mr Y’s argument.” There is never—or very seldom—any reason given, any weighing of evidence or any judgment. The comment is simply, “In my opinion, X.”
In my case, I got the world expert on the computer system versus an accountant. The ombudsman just wrote that he favoured the other guy. No reason was given why he was dismissing the world expert. That was the degree of certainty.
The Convener: As my colleagues have no further questions, we now come to the summation and looking at next steps. Mr Stewart-Blacker indicated that he would favour the petition being referred to the Local Government and Regeneration Committee. I suggest that we refer the petition, with all the evidence that we have taken, to our colleagues on that committee, which has a yearly responsibility in relation to the SPSO. Do colleagues agree?
Chic Brodie: We should write to the Local Government and Regeneration Committee. I have two concerns. First, I just asked Mr Stewart-Blacker about the serious accusation in his petition. It appears that we do not have a sufficient evidence base. Of course, that will happen if, as with the Judicial Complaints Reviewer situation, we do not have openness and transparency.
Secondly, it is time that we had a review of the SPSO’s service. If we seek openness and
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transparency and if we recognise the need for public participation in all aspects of our life, there should be no hint of closed information, subject to maintaining the confidentiality of the individuals involved.
David Torrance (Kirkcaldy) (SNP): I am happy for the petition to go to the Local Government and Regeneration Committee.
Angus MacDonald: There is a lot of merit in Chic Brodie’s point about a service review. I am not quite sure how we would go about requesting that. Perhaps we need to indicate to the Scottish Government that that might be a good idea.
If we are speaking to the Government, we should also highlight the petitioner’s comment about making a brief amendment to the 2002 act to the effect that complainants should be allowed to see all exchanges between the SPSO and the bodies complained about, albeit that they might be redacted.
The Convener: That is a good point. It is perfectly competent for us to refer the petition to the Local Government and Regeneration Committee and, at the same time, to write to the Scottish Government with the comments made by Angus MacDonald and Chic Brodie. Is that agreed?
Members indicated agreement.
Angus MacDonald: I think that that is the way forward.
The Convener: As you will have picked up, Mr Stewart-Blacker, we are keen to ensure that your petition is looked at seriously, so we will refer it to the Local Government and Regeneration Committee and ask the Scottish Government for its views. All the evidence that we have taken today and in written form will go to our colleagues on that committee. The next step will probably be for the clerk to the Local Government and Regeneration Committee to keep you up to date with developments.
Thank you for giving evidence to the committee and for lodging the petition. Perhaps you can pass on thanks to the members of your association, too.
Meeting suspended. 10:31