Complaints about lobbyists

 The Commissioner can investigate complaints about a lobbyist who has not:

• registered with the Scottish Parliament
• provided accurate and complete information in their registration
• submitted a return detailing any lobbying undertaken
• supplied an accurate and complete response to a request by the Scottish Parliament for information about their lobbying.

Were there any complaints about lobbying?

During the year we received one complaint regarding a failure to register lobbying activity appropriately (2022/23: One, 2021/22: Nil). The complaint did not pass the statutory tests for admissibility and was therefore closed without proceeding to investigation and reporting. 

Our performance

Local authority councillors and board members of a public body

We currently collect high level information relating to the average number of days taken for both initial assessment (Stage 1) and investigation (Stage 2). In 2023/24, the average number of days taken for initial assessment was 140, while for investigation it was 191. Exhibit 15 sets out the information for 2023/24 and the three previous years.

The average number of days taken at stage 1 has reduced from an average of 172 days in 2022/23 to 140 days in 2023/24. This is a 20% reduction in the average time taken compared to the previous year. This improved performance is due to the expanded range of triage interventions we have put in place and the part year effect of new colleagues joining the team.  We aim to reduce this timescale further in 2024/25.    

The average number of days taken at stage 2 is similar to last year, slightly up by 6%, with Respondent response times, time taken by Respondents to engage legal representation and eligible requests for extensions to reply to correspondence all adding to overall average times. Although these timescales have marginally increased this has happened within the context of increased workload for the entire team, with 29% more active cases in the year and a 12% increase in the number of cases completed compared to the previous financial year.

We also plan to collect and publish more detailed information on the extent to which we are meeting our target times for our initial assessment of complaints and for investigations. This information will be available on our website.

Work to reduce investigation times is ongoing and changes introduced to allow us to work more efficiently are now having an impact on the time taken to investigate. The situation is continually improving and the expansion of our team over the year will continue to reinforce this direction of travel, placing us in a more favourable position as we enter future years.

MSPs

There are two high level performance targets in place for MSP complaints as follows:

At Stage 1, the Commissioner is required to report to the Standards, Procedures and Public Appointments Committee, the Complainer and MSP who is the subject of the complaint, if the stage exceeds two months. Of the 37 cases that were assessed for admissibility in 2023/24, 4 cases took over two months.

At Stage 2, this same reporting arrangement as Stage 1 is required if this stage exceeds six months. No complaints proceeded to stage 2 in 2023/24.

As with Councillor and Member complaints, we will also collect and publish more detailed information on the extent to which we are meeting our target times for our initial assessment of complaints and for investigations. This information will be available on our website. 

Forward looking assessment

During 2023/24, we received assurance from our internal auditors that the controls we have in place for our investigatory procedures are substantial and that we have fully implemented all the recommendations from 2022/23 relating to our investigatory processes.  

Our future plans are all contained within our 4-year Strategic Plan that is underpinned by a detailed Action Plan for the Standards Team. This plan will help drive forward improvement over the next four years. It sets out a blueprint for a comprehensive Quality Assurance Framework to provide assurance around quality of outputs and drive forward service standards. Other elements of the Action Plan cover the new Target Operating Model and a commitment to re-establish a UK wide Ethical Standards Network.

We will maintain a focus on training and development across the team, ensuring staff are not only equipped to fulfil the requirements of the role, but also have expert knowledge across important functions in local government (such as planning and licensing) and in areas where we receive the largest number of complaints.

For those that come into contact with us, in whatever form, we want to improve the customer service experience through gathering feedback and acting on it or being able to signpost individuals quickly and efficiently to a more appropriate body, in cases where we cannot help them. During 2023/24 we rolled out a complaint survey to gather feedback on the customer service received by both complainers and responders. Due to the small sample size gathered this year, with only three surveys completed, we are unable to publish the results. We will seek to improve return rates during 2024/25 in order to provide this information in our next and subsequent annual reports. We will, in any case, continue to engage with our stakeholders, seeking opportunities to listen to their views and using this to inform our approach. 

Performance against our business plan

The biennial business plan covering the period April 2023 to March 2025 included a range of actions to be completed by the investigations team. Progress is summarised below. 

Complaints about MSPs

We investigate complaints about the conduct of MSPs. We adopt a similar approach to Councillor and Member complaints in that, when we receive several complaints about the same or closely related issues, we combine these complaints together and assess and/or investigate them in what we describe as a single case. This consolidated approach ensures that similar complaints are addressed in a uniform manner, promoting fairness and consistency in the outcome. Reporting on both the number of complaints and cases also helps better reflect the actual volume of work in a given year.

Upon receipt of a complaint about an MSP, the Commissioner assesses the admissibility of that complaint: this is known as Stage 1. Where a complaint is admissible (i.e. accepted), it moves to Stage 2 which we term further investigation.

Exhibits 10 and 11 set out the volumes of both complaints and cases that the Standards Team handled during 2023/24. 

NOTE: Towards the end of the 2020/21 financial year the Commissioner received a significant number of complaints relating to a similar issue. The majority of these complaints were grouped together into what we described as a “super complaint”. Following assessment of the “super complaint” during the 2022/23 financial year, we removed 234 complaints where complainers had failed to name the specific MSPs who they wished to complain about, despite being asked to clarify this in correspondence. As these details weren’t provided, we required to reduce the number of complaints recorded for the sake of transparency for reporting purposes. These complaints were all concluded during 2022/23.

We deal with a wide range of differing complaints about the behaviour of MSPs, as set out in Exhibit 12. The category relating to other, covers all types of other complaints we received in the office covering for example the use of inappropriate language at events and the work of parliamentary committees. We have seen a decline this year in the number of complaints about conduct on Social Media.

As detailed in Exhibit 12, we received a total of 89 complaints categorised as “other” which were consolidated into 39 cases. Exhibit 12b provided a more detailed breakdown of those cases which have been categorised as ‘other’. These can often cover more than one topic but they have been grouped into their key themes.

Exhibit 12b - Breakdown of 'other' cases received in 2023/24 into key themes 

When the Commissioner receives a complaint about the conduct of an MSP, we assess whether the complaint is ‘admissible’ pursuant to three statutory tests. If it does, we can accept the complaint for investigation. Exhibit 13 provides this information in more detail.

Where a complaint is ‘admissible’ we investigate and report our findings to the Standards, Procedures and Public Appointments Committee of the Scottish Parliament. There were no such reports in 2023/24.

Complaints about local authority councillors and board members of public bodies

Compliant volumes in 2023/24

Exhibits 1 & 2 set out the volumes of both complaints and cases that the Standards Team handled during 2023/24. When we receive several complaints about the same or closely related issues, we combine these complaints together and assess and/or investigate them in what we describe as a single case. This consolidated approach ensures that similar complaints are addressed in a uniform manner, promoting fairness and consistency in the outcome. Reporting on both the number of complaints and cases also helps better reflect the actual volume of work in a given year.

During the 2023/24 financial year, the number of complaints received more than doubled compared to the previous financial year (Exhibit 1). The Standards Team successfully completed a total of 141 cases, representing a 12% increase from the previous year (Exhibit 2). The higher completion rate was achieved despite a 29% rise in the number of active cases under consideration in 2023/24 compared to 2022/23 (Exhibit 2). The planned expansion of the Standards Team in early 2023/24 has provided the necessary capacity to begin to manage this increased demand.

Types of complaints received

Exhibit 3 details the types of complaints received during 2023/24, highlighting that disrespect towards employees and the public remained the most common complaint category, consistent with the previous years. Overall complaints related to disrespect towards employees, the public and councillors/members accounted for 55% of the total.

NOTE: Outwith jurisdiction complaints are complaints which are about conduct which, following assessment, does not fall within the remit of the Code. They are distinct from complaints which we cannot accept as they are outwith the jurisdiction of the Commissioner’s office, such as a complaint about a Councillor in England.

As detailed in Exhibit 3, we received a total of 190 complaints related to disrespect, which were consolidated into 76 cases. Exhibit 3b offers a deeper analysis of these cases, breaking down the instances of disrespect directed towards employees, the public and councillors/ members. While some complaints encompass multiple issues, they have been categorised by their key themes. 

Exhibit 3b – Analysis of disrespect cases received in 2023/24 by key themes 

Submissions of complaints

Exhibit 4 details the sources of complaints received in 2023/24. Complaints from members of the public comprised 80% of the total, which is consistent with previous years. Complaints from councillors and members made up 17% of the total, increasing their 10% share from 2022/23. 

Exhibit 4 – Individuals who submitted complaints during 2023/24

Outcomes from complaints lodged with us

The Standards Commission for Scotland (SCS) had previously issued three Directions to us pursuant to sections 10 and 11 of the 2000 Act. The Directions related variously to eligibility criteria for when a complaint requires to be accepted for investigation, issuing three-monthly updates to parties during investigations and reporting on all investigation outcomes to the SCS. Of these, the Direction on eligibility expired in August 2023 and was not renewed, on the basis that the eligibility criteria have become a permanent part of the Investigations Manual. The Direction on issuing three-monthly updates has been rescinded with effect from 30 May 2024 as, amongst other things, the SCS Members noted the office already had processes in place about updating parties and these were also written onto the face of the Manual. As a result, the remaining Direction on reporting remains in place, with a current expiry date of 31 January 2025.

Exhibits 5 and 6 set out the outcomes of the complaints and cases we received in 2023/24. Of the 209 complaints completed in 2023/24, 127 were assessed as ineligible and closed following initial assessment. This resulted in 76 complaints (amounting to 52 cases) proceeding to investigation and 6 complaints (amounting to 5 cases) being withdrawn. Of the 76 complaints investigated, we found a breach of the relevant code in 20 complaints (14 cases) and no breach in 56 complaints (38 cases). We report to the SCS on the outcomes of all cases investigated.

Case Outcomes

As set out in Exhibit 6, in 2023/24 we completed 141 cases and in 14 cases a breach of the relevant code was found. Exhibit 7 provides details of the outcome in the remaining 127 cases completed during the 2023/24. In total, 70% of these cases were closed at assessment stage, with the most common reason for this being due to ‘no evidence or insufficient evidence being available to support the allegation’, which is a term used by the internal case management system to show cases that, when assessed, do not match the eligibility criteria for acceptance to investigation. 

Interim Reports

The Commissioner has the power to issue an interim report to the SCS requesting that a Councillor or board member be suspended prior to the completion of an investigation. This may be required where the further conduct of an investigation is likely to be prejudiced if a suspension is not imposed or it is in the public interest to impose a suspension. The SCS can direct the Commissioner to submit such an interim report. On receiving the interim report, the SCS may suspend the Councillor or board member.

This step is reserved for the most serious complaints received, where the conduct complained of poses a risk of harm to others, including members of the public, other councillors or council staff, or has the potential to significantly undermine the ethical standards framework. The Commissioner did not issue any interim reports in 2023/24. 

Reports referred to SCS

In 2023/24, a total of 52 cases were referred to SCS. The Commissioner found a breach in 14 cases, and a further 38 reports were referred where no breach was found (Exhibit 6). The outcome from these reports following referrals to SCS is set out in Exhibit 8 below. Where SCS directs further investigation, the Commissioner undertakes the further investigation requested and then refers the report back to SCS. SCS then decide whether to take no further action or to hold a Hearing.

The Commissioner may combine similar cases into one report or the SCS may combine similar reports into one hearing. Exhibit 8 shows the number of cases where a report was referred to the SCS but due to these reasons, the figures may differ from the actual number of hearings held by the SCS, which is laid out in Exhibit 9 below.

 Hearings

¹These cases were reported to SCS in different financial years but were combined into one Hearing due to the similar nature of the complaints.

Complaints about conduct

Performance analysis

Overview

This section of the report provides a summary of our performance as well as outlining any significant activities undertaken during the year. It also describes the organisation’s purpose and the key risks affecting it.

Going concern assessment

These accounts must be prepared in line with the UK Government’s Financial Reporting Manual.

Management have assessed the appropriateness of the going concern basis of accounting, that is whether the organisation will continue to operate.

The functions of the Commissioner are set out in legislation passed by the Scottish Parliament. The Commissioner’s office must continue to fulfil these functions unless the Scottish Parliament rescinds the legislation or transfers the functions to another body.

In common with similar public bodies, the future financing of the Commissioner’s office will be met by funding approved annually by the Scottish Parliament. Funding for 2024/25 has already been awarded and there is no reason to believe that future approvals will not be forthcoming.

Accordingly, it is considered appropriate to adopt a going concern basis for the preparation of these financial accounts.

Key issues and risks

During the period, the Commissioner identified the following key risks for the office.

1. Complete disruption to our IT systems
   Risk: Unable to carry out any functions due to impact of cyber-attack, national power outages or accidental damage resulting in loss of most or all records/ICT systems.
   Mitigating Action: Maintaining and implementing a range of business continuity and information technology policies, staff training and external accreditation. Decentralising services and regular testing of backup systems.
    
2. Compliance with Standards Commission for Scotland (SCS) directions
   Risk: Impacts on workload and resources through additional reporting, investigations and hearings due to adherence to SCS directions.
   Mitigating Action: Ensure effective working relationship with SCS in place including regular, open communication. Monitor impact of directions to allow open reporting and ensure staffing levels are matched to meet our obligations for compliance
    
3. Lengthy waiting times impact complainer confidence
   Risk: Persistent lengthy waiting times for complaints leads to a loss of confidence in the office and reduction in volume of complaints. An increase in complaints about us diverts staff resources.
   Mitigating Action: Ensure clear and accurate communications with complainers and with those involved in the complaints process. Maintain action plan to address waiting times and migrate to an ongoing, managed queue.
    
4. Worsening economic climate leads to reduction in funding
   Risk: Scottish Government and Parliament reduce public sector expenditure directly impacting ESC's budget.
   Mitigating Action: Maintain networks and horizon scanning to ensure changes in government direction are identified in good time. Identify areas where expenditure could be adjusted. Identify and implement changes to working methods to improve productivity. Ensure organisation is managed efficiently, effectively and economically. Introduce ways of measuring the impact of work and demonstrate the difference that we make. Explore shared services with officeholders and wider public sector.
    
5. Migration to cloud-based system (M365) fails or is significantly delayed or requires additional resources.
   Risk: Migrating our systems and records to M365 diverts resources away from core functions either through preparation for the move or remedial work if the move fails.
   Mitigating Action: Robust and deliverable project plan in place and effectively communicated to all staff. Ensure SMT and staff 'buy-in' to project. Project to proceed only when plan and full communications in place

Further information about management of risks is given in the Governance Statement.

Public Appointments

It has been a busy year for the Public Appointments section of the office.  During the year we successfully recruited to the post of Public Appointments Support Officer, which means that the Public Appointments Team now consists of 3 full time staff. We also have a team of 12 consultants (Public Appointment Advisers – PAAs).  Training has taken place through the year to ensure that everyone on the team is fully up to speed with what regulation of Public Appointments involves.

The 2022 Code of Practice, which was effective from October 2022, became fully embedded during 2023/24 and we have seen the changes that it introduced make a difference to practices.  Embedding the Code has resulted in increased queries about compliance, which is to be expected, as selection panels become more familiar with the changes involved.

Following increased reports of individual incidences of good practice in the preceding two years, there were fewer this year.  However, panel chairs are now required under the 2022 Code to provide a report at the conclusion of a round detailing the reasons for success or failure and setting out the extent to which it delivered or failed to deliver the desired outcome set by the appointing minister.  We have been seeing increasing levels of candid reflection from panel chairs in these reports, including details of good practice employed during appointment rounds.  We record provision of reports from panel chairs separately to individual reports of good practice, which may account in part for the drop in individual reports of good practice. Notwithstanding this, we continue to see good practice being deployed. For example, of the appointments made in 2023/24, 48% of these reported good practice during some, or several, stages of the round.  These were not recorded as individual examples of good practice but are being analysed separately.  The main areas of good practice identified within this time period are: using learning from previous rounds (45%); publicity methods (38%) and understanding of the community being advertised to (28%).  We have been working on gathering information from all end of round learning (including the panel chair reports) and we are developing new webpages to showcase some of the areas of good practice that we have observed.

Due to our increased capacity in the appointments team, we have been able to re-establish:

• surveying applicants about their experiences of applying 
• contacting panel chairs and body chairs for their views on PAA contribution at the end of appointment rounds and 
• contacting panel chairs and body chairs for their views on the difference that the contribution of the successful appointee has made to the work of the board at the end of 12 months.

We have also been pulling all the strands of learning at the end of each round together to identify trends and have also started work on developing new good practice case studies.

Through the year we have seen almost full compliance by panel chairs in undertaking training in advance of taking part in an appointment round.  During 2023, 51 panel chairs had responsibility for 64 2022 Code rounds.  Not every round includes an Independent panel member (IPM) but, from these 64 appointment rounds, 23 IPMs were involved.  All of these panel chairs and IPMs were trained on the appointments process and on diversity, equality and inclusion in the context of making public appointments.  We had five reports of non-compliance relating to these appointment rounds in that panel chairs were not trained in advance of the early engagement meeting, but on each occasion the training was completed in time for the planning meeting.

Since the introduction of the 2022 Code and as at 31 March 2024, all but eight rounds have had a panel chair end of round report submitted detailing the reasons for success or failure of the round.  Those not submitted were from some of the earliest rounds under the 2022 Code, when panel chairs may not have been as clear about their new responsibilities.  Some of these late reports have been provided since 31 March 2024 and it is hoped that all outstanding reports will be submitted eventually.  Overall, it has been positive to see panel chairs taking on the responsibility for appointments, undertaking the training and providing such candid and insightful reports which will only assist in learning for future appointment rounds.

On a less positive note, we had to conduct one examination of appointment practices during the year which resulted in a report of material non-compliance with the Code being made to the Scottish Parliament.  This related to a round run under the 2013 Code of Practice (which was superseded by the 2022 Code for rounds commencing from October 2022). As a result of our findings, changes were made to the Statutory Guidance on application of the Code. The Scottish Ministers also introduced some practice changes as a result of our findings and recommendations.

We also received two complaints and conducted full investigations into both.  The reports following both complaints have been published on our website.  One of the complaints involved an allegation that the Scottish Ministers adopted an unwritten policy of progressing applicants who shared protected characteristics outlined in positive action statements in applicant packs, over those who did not.  As a result of the complaint we conducted a full and detailed investigation involving 15 different appointment rounds.  During this investigation we checked all information available (notes of all meetings, email exchanges between the panel, all paperwork for the round) for any signs of such a policy existing.  We also convened two review panels, each consisting of a member of HR qualified staff and a PAA who reviewed the application form of each applicant who was interviewed in all 15 appointment rounds.  It was reassuring to find that, following such a detailed and substantial investigation, there was no evidence to support the allegation.

The current demographic profile of Scotland’s public body boards continues to be encouraging. We have seen increased reflection of those with a disability and minority ethnic background on boards over the last 2 years.  The percentage of female board members has also remained steady.  Where it is available, we have included information for the first time this year from Scotland’s 2022 census data (the results for disability have not been published at the time of writing). This shows that boards are still not fully reflective of the overall population for disability, minority ethnicity or age.  When looking at the levels of applications and appointments, steady progress would appear to be being made for female, disabled, non-visible Minority Ethnic (ME) and Lesbian, Gay and Bisexual (LGB) applicants. Improvements in practices on a round-by-round basis should continue to see improvements in board diversity. A more strategic approach will be required though for significant change to take place.

It is a little concerning that less than half of those who apply who are visibly ME and just a little more than half of those who apply and are under the age of 50 then go on to be appointed.  We will encourage the Scottish Government to reflect on why this is happening. The Scottish Government now record whether applicants have a trans history.  Although the figures are low enough that we would not publish the exact values, in order to reduce risk of disclosure of information about individuals involved, the percentage of applicants and appointees was slightly higher than the overall population in Scotland according to the 2022 Census data, which suggests that 0.44% of the population have a trans history.

In the coming year we intend to continue to embed the revised Code through the provision of guidance. By gathering and analysing the end of round reports we intend to aid learning between and across appointment rounds.  We will also be tendering to contract with an individual or organisation to work on the revised diversity strategy which will provide recommendations on how all regulated boards in Scotland can become still more reflective of the communities that they serve.