Hansard

I do not know the extent of members' knowledge about my function as ombudsman, so it might be helpful to explain that first.The post of local government ombudsman was created in 1975. The remit is to consider complaints from citizens who believe that they have suffered an injustice as a result of maladministration. I was appointed by the secretary of state and by royal warrant. The period of service is from the date of appointment until the end of the service year in which the person appointed reaches the age of 65. In that period the appointment can terminate through death, misconduct, incapacity or voluntary resignation. It is a position of considerable independence. My funding comes indirectly from the local authorities through the Accounts Commission, which is designated as the body responsible for providing me with staff and office accommodation.The main thrust of my concern is not the merit of decisions reached by local authorities but the way in which they are reached. I try to ensure that the local authorities follow proper practice. If they do, no decision that they make is subject to review by me. There are limits to the issues I can consider but, generally speaking, I review their administrative practice.The bill that we are considering is a step along what has been quite a long road that started with the Nolan committee. That committee made a number of recommendations and I played a part in the early stages of consideration of them. The last consultation paper was issued in April 1998 and was entitled "A New Ethical Framework for Local Government in Scotland". In my response to that consultation paper, I suggested that the local government ombudsman might have his role extended. That would allow me to undertake investigations into cases where questions of misconduct were involved. However, in view of the proposals that are contained in the bill and, in particular, in respect of the proposed function of the chief investigating officer and the intention to include other public bodies in the scope of the bill, I do not think that the holder of my office is in a position to undertake the role of investigating officer.In responding to all the previous consultations, I have been keen to stress the importance of the perception that the public might have of any arrangements that are put in place. In my view, the arrangements have to be—and have to be seen to be—independent and robust enough to inspire public confidence. One element of that is the need for uniformity. It has always been my view that a single code of conduct should apply to all the people who are governed by it. I understand that the bill proposes that and I welcome that. I also welcome the proposals to standardise the arrangements for registering interests. I understand that, if the proposals are followed through, the Convention of Scottish Local Authorities might be invited to prepare a code in consultation and I would be happy to participate in that process.I will deal with the provisions for enforcement. It must be borne in mind that the chief investigating officer and the commission are likely to be in a highly charged political situation as they are being asked to judge conduct. Therefore, their independence must be real and must be seen to be so. It is proposed that the chief investigating officer will be appointed by ministers, that the members of the standards commission will be appointed by ministers and that the staff of the commission will be seconded from the staff of ministers. That contrasts with the situation that exists in the Accounts Commission, on which the proposals are based. Although the Accounts Commission members are appointed by ministers, it appoints a controller of audit, subject to ministerial approval and it appoints its own staff from whom it can draw independent advice. The proposals for the appointment of the commission and of the chief investigating officer do not meet the test of perceived independence and are fundamentally flawed.I have a couple of points to make on the role of the chief investigating officer. He will have less independence than I have, partly because of the way in which he will be appointed but also because he will be subject to direction by the commission. He will be more open to criticism than I am in exercising his discretion on whether to investigate. I can investigate only in response to a written complaint. He will not be subject to such a restriction and might be criticised for failing to act in response to media pressure. In that respect, he would be in the same position as the controller of audit. The controller, however, is able to draw on the resources of the appointed auditors to each local authority before deciding whether to investigate. The chief investigating officer will have no such resource. A requirement for an accusation of misconduct to be in writing or to be the subject of a direction by the commission before it can be investigated would help to safeguard the position of the chief investigating officer.I am conscious that your next witness is the secretary of the Accounts Commission, who is in a much better position than I am to discuss issues arising from the commission's experience. I will restrict myself to two further comments on the proposed commission's powers.First, when I conclude an investigation with a finding of maladministration, I make recommendations as to how any consequential injustice might be remedied. It is for the council to determine whether it will implement those recommendations. In the five and a half years that I have been in post, all my recommendations have been accepted and acted on.When the Accounts Commission reaches its conclusions, it also makes recommendations, either to the council or to the appropriate minister, who then determines what action to take. The proposal in the bill is that the standards commission will make recommendations to the appointing authorities in relation to appointed members, but will take decisions in relation to elected members. That is clearly anomalous and, in my view, unsatisfactory. My experience suggests that there is a case for the final decision to be made by councils, on the commission's recommendation. If that arrangement proved to be unsatisfactory over time, it could be changed.Secondly, I support the view that the range of options that are open to the commission following an investigation and a finding of misconduct—whether that is in the form of a decision or a recommendation—should be much wider. Those options should include, for example, removal from convenership or representational office. The proposed arrangements raise the issue of the interaction between the proposed institutions and me and, in particular, between the chief investigating officer and me. On a day-to-day basis, I do not envisage any great problem in that. At present, if I receive correspondence that is obviously meant for someone else, for example, the housing association ombudsman, I simply redirect it and inform the complainant. If I received a complaint that raised issues of maladministration and misconduct, I would advise that the complaint about issues of conduct should be submitted to the chief investigating officer. Where we were both engaged in investigations into the same circumstances, we would require to co-ordinate our activities so that we neither obstructed each other nor placed an unreasonable burden on those being investigated. It could be that, on the same facts, the ombudsman and the chief investigating officer would reach different conclusions as to whether a breach of the code had occurred. I see no obvious way of avoiding that possibility but expect it to be a very rare occurrence, and I would be content to cross that bridge when we come to it.