Public appointments

We regulate how Scottish Ministers make appointments to the boards of public bodies that are within our remit. 

Public appointments regulation, in its strictest sense, aims to provide assurance that board appointments within our remit are made in a “code compliant” way; the Code of Practice for Ministerial Appointments was last updated in 2013. Its implementation by the officials tasked with identifying suitable candidates for appointments to boards has seen a measure of success. Gender balance on boards was achieved in June 2019.

However, the achievement of parity in respect of other protected characteristics such as disability, age and ethnicity remains elusive as this year’s figures demonstrate. There is a disconnect between the ambitions of the Scottish Ministers and the Commissioner for boards that are reflective of society and the measures that have been put in place to make that a reality. Scottish Government resources were already strained when, towards the year end, a global pandemic presented one of the greatest challenges seen for all sectors in this country and internationally in some decades.

The Scottish Government and the Commissioner continue to share the objective of securing effective, diverse boards reflective of society and the communities that they serve. That objective remains vital if our boards are to meet the new challenges facing them.

The Commissioner plans to put new measures in place which are geared towards the achievement of that objective. These are reflected in our Strategic Plan for 2020-24, published on 31 March 2020. Measures include a revision to the Code of Practice, intended to foster and encourage those practices which make best use of the limited resources available to achieve successful outcomes. These practices should be based on evidence of what works as opposed to simply repeating what was done previously.

Additionally, and to ensure that progress is subject to proper debate and scrutiny, the Commissioner will be reporting more frequently and publicly than has previously been the case. This will represent a move towards a more traditional regulatory model, as discussed with the Scottish Government and the Scottish Parliament during the course of the year covered by this report. 

The Commissioner has continued to support improvement by allocating Public Appointments Advisers (PAAs) to engage early with panels on an appointment round by appointment round basis. That engagement is intended to support succession planning and to assist panels towards selecting the most appropriate methods for the attraction and assessment of applicants for board roles. The Commissioner also provided dedicated PAA resource to activities such as the diversity in governance research, a repeat of the mentoring scheme for potential board chairs of the future and another scheme to provide shadowing and mentoring opportunities to disabled people.

The Scottish Government has continued with its programme of outreach events, new board member induction events and general process improvements although their scale and scope has been limited. It also consulted during the year on the introduction of the provisions set out in the Gender Representation on Public Boards (Scotland) Act 2018. It is hoped that the provisions relating to the guidance on positive action measures that officials and bodies should be engaged in will, once in force, see the same levels of success for groups other than women that are currently under-reflected.

Was the Code of Practice revised during the year?

No revisions to the Code of Practice were issued in 2019/20. A full revision of the Code is planned for 2020/21.

Was guidance on the Code of Practice issued during the year?

The Commissioner’s office provides Code interpretation guidance, primarily to officials and PAAs, on a very frequent, ad-hoc basis. Where trends are identified, the Commissioner seeks to provide general guidance with a view to improving on practices and increasing understanding.

The Commissioner provided non-statutory guidance during the course of the year on the following topics:

• gathering and using applicant political activity declarations
• applicant summary production and use.

Statutory guidance was also provided during the course of the year on the following topic:

• the content and provision of applicant summaries to ministers.

The Commissioner also updated the PAAs comprehensive good practice toolkit during the course of the year.

Were any complaints about a public appointment received?

There was one complaint received during the year, alleging that an appointment had been made inappropriately. The complainer was referred to the Scottish Government as they had not yet raised their complaint direct. The Commissioner investigates complaints once the Scottish Government’s complaints handling process has been exhausted.

No complaints were referred to the Scottish Parliament and the Commissioner did not direct any of the Scottish Ministers to delay making an appointment.

Future plans

Details about the Commissioner’s planned work on public appointments are set out in the Strategic Plan 2020 to 2024 and in the Annual Report on Public Appointments 2019/20, both available on our website.

How many bodies and positions do we regulate?

How many appointments did we oversee?

The year saw the appointment of 135 board members (2018/19: 168) to 54 public bodies (2018/19: 53). Appointments are made through a process called an appointment round. Multiple appointments can be made through a single appointment round and the Scottish Ministers can run more than one round in a single year for the same body. In certain circumstances we allocate a Public Appointments Adviser (PAA) to scrutinise the round. We report on these allocations rather than the number of appointment rounds as this better reflects our actual workload - not every allocation becomes an appointment round. For example, the PAA may be involved in preparatory work for an appointment round that does not proceed.

How many people apply for a public appointment?

This information shown in figures 20-22 is provided by the Scottish Government and relates to a calendar year.

How long does an appointment round take?

The following table shows the average time taken to appoint a member from the date of planning to the Minister’s appointment decision.

An appointment to the board of a public body is for a set number of years. At the end of this period, the board member’s term of office may cease or they may be re-appointed. We ask the appointing Minister to give board members reasonable notice of their decision.

What do applicants think of the appointment process?

The Commissioner published the 2018 Annual Applicant Research report in November 2019 and a summary of its findings was included in the last annual report. Work on the 2019 applicant survey report is now underway and will be published on our website in the autumn.

We also ask public body and panel chairs to provide their views on the contribution of our PAA and on the appointments process. We use a simple 1 to 5 scale (5 is very satisfied, 1 is very dissatisfied), the results of which have consistently exceeded 4 in the past three years.

Improving diversity on the boards of public bodies

We have a statutory duty to use our powers with a view to ensuring that appointments are made fairly and openly and that as far as possible everyone has an opportunity to be considered. As part of our work in this area the Commissioner’s diversity strategy includes targets for Ministers to encourage applications from as wide a range of people as possible.

The Commissioner obtains the demographic profile of chair positions with a view to monitoring and tracking the extent to which public body chairs are reflective of society.

The following table shows the percentage of applications in 2019 by each target group as set out in Diversity Delivers, the Commissioner’s strategy for achieving more diverse boards.

Complaints about conduct

Complaints about local authority councillors and board members of public bodies

We investigate complaints about the conduct of local authority councillors and board members of certain public bodies.

How many complaints of this type were processed?

When we receive several complaints about the same or closely related issues, we investigate them as a single case. We report the number of cases as this better reflects our actual workload.

Of the 284 complaints received 10, equating to eight cases, concerned the board members of public bodies (PY: 6 complaints/6 cases).

What were the complaints about?

Who made the complaints?

What was the outcome of the complaints?

Complaints and cases completed during 2019/20 can be further analysed as follows:

Our case investigations completed during the year resulted in;

• 4 breach reports (regarding 8 complaints) which were referred to the SCS for hearing; and
• 13 non-breach reports (regarding 21 complaints).

The pandemic delayed completion of a number of investigations until after the year end, when we issued a further 8 breach reports. These are included in the “Open at year end” figure above.

Were there any interim reports issued by the ESC leading to suspensions?

In certain circumstances, the Commissioner may issue an interim report to the Standards Commission for Scotland where she considers that, on a prima facie basis, there has been a contravention of the Code of Conduct which justifies suspension of a Councillor whilst a full investigation into alleged behaviours is completed and reported on.

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 issued such interim reports for the first time in 2019/20, as detailed below:

Were there any hearings?

The Standards Commission for Scotland considers case report findings when the Commissioner concludes that a breach has occurred and may hold a hearing and impose a sanction. The following table provides further information about Standards Commission hearings held during 2019/20.

The Standards Commission for Scotland did not direct the Commissioner to carry out any further investigations during the year.

Complaint trends

When we receive several complaints about the same or closely related issues, we investigate them as a single case. We report the number of cases as this better reflects our actual workload. In 2019/20, we received 154 cases and completed 150.

Complaints about MSPs

We investigate complaints about the conduct of MSPs.

How many complaints were processed?

No complaints were withdrawn during the year.

What were the complaints about?

Of those complaints listed as ‘Other’, 69 alleged a failure to represent constituents.

Who made the complaints?

Of the 109 complaints received, 107 were from members of the public, one from a MSP and one from another source.

What was the outcome of the complaints?

Some types of complaints about the conduct of MSPs are outwith our jurisdiction – they are ‘inadmissible’. When we receive a complaint about the conduct of an MSP, we assess whether it is within our jurisdiction – ‘admissible’ – in which instance we can investigate further. In 2019/20 we reviewed 115 complaints, 113 were considered to be inadmissible.

The reasons for inadmissibility are as follows:

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 two such complaints in 2019/20. One was determined by the Committee along with one case from 2018/19 as shown below. The remaining admissible case was under investigation as at 31 March 2020.

During the year, the Commissioner was not directed by the Scottish Parliament to carry out any further investigations.

Complaint trends

When we receive several complaints about the same or closely related issues, we investigate them as a single case. We report the number of cases as this better reflects our actual workload. In 2019/20, we received 39 cases and completed 43.

Were there any complaints about lobbying?

During the year we received one complaint regarding the failure of an MSP to register lobbying activity. The complaint was dismissed, being inadmissible under the terms of the Lobbying (Scotland) Act 2016.

Our strategic objectives

The work of the office during 2019/20 was planned and organised in accordance with the Strategic Plan for the four-year period 2016 to 2020, which sets out the Commissioner’s main objectives.

We have recently published a revised Strategic Plan for the period 2020 to 2024.

Both plans are available at www.ethicalstandards.org.uk

Key issues and risks

The information set out in the Performance Analysis section of this report shows the key measures of our performance. We have a wide range of strategic and business objectives as well as statutory duties. The fulfilment of these duties and achievement of these objectives is impacted by uncertainty. Risk is defined as this uncertainty of outcome and arises equally from positive opportunity or negative threat. The impact of risk may be positive as well as negative.

At 1 April 2019, a number of key legacy issues presented a challenge to the successful delivery of the complaints handling function which forms part of the statutory mandate of the Commissioner’s office.

Key issues were as follows:

1. At 1 April 2019, a backlog of draft breach investigation reports, equal in number to that heard by the Standards Commission in an average year, existed in relation to complaints received against local councillors.
2. Due to historic staff turnover, the necessary capacity was not available at 1 April 2019 to clear the backlog described above. At this date, the level of post vacancy in onsite complaints staff sat at 71%. This included the Senior Investigating Officer’s (SIO) post, which is the only staff position requiring a legal qualification. No temporary cover had been put in place to fill that post by the accounting year end.
3. At 1 April 2019, the new Case Management System (CMS) project, which was initially scheduled for introduction in 2017/18 was still under development, diverting the few remaining onsite complaints staff to project development and implementation tasks, and away from “business as usual” complaints handling.

As a consequence of the above issues, the complaints investigation function was overstretched and operating sub-optimally.

My strategic overview of the situation was that this function required modernisation, together with remodelling of the associated staff complement. I considered that a full restructure was necessary to create a modern efficient and effective complaint investigation function.

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This action necessitated previously unanticipated costs however these costs were fully covered by compensating savings made during the same year. Hence there was no additional budgetary requirement as a result of the restructure exercise during this year.

Operational considerations existing at 1 April 2020

Expansion of statutory remit
Complaints about historic sexual harassment by MSPs towards their own staff

An additional consideration influencing my decision to restructure was to progress towards readiness for this upcoming and significant development.

In January 2020, the Scottish Parliament issued an amended Code of Conduct for MSPs to include complaints from MSP staff and parliamentary staff, of bullying, harassment (including sexual harassment) and other inappropriate behaviour. Further restructuring may be required in due course to cater for complaints arising under this newly expanded scope, which has the potential for considerable operational impact, particularly with the intended removal of the time bar for all MSP complaints.

At the time of writing the introduction of a Bill regarding this expansion is pending. The associated costs are to be agreed with the Parliament.

Impact of Covid-19

Throughout this period, our priority as an organisation has been the health, safety and wellbeing of our people and the public whom we serve.

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I took the decision to close our offices on 16 March 2020. We implemented our business continuity plans and swiftly moved to remote working whilst continuing to provide a full service. This remains the situation and is likely to be so for the rest of the year.

Since closing our offices, we have worked to keep the team supported and connected, and made physical and mental wellbeing a clear focus. We have also safeguarded the connectivity and security of our digital network, and provided everyone with the immediate resources they need to work from home. We continue to adapt to the new ways of working and carrying out our responsibilities.

The Commissioner wrote to all local authority Chief Executives in March to assure them that we would approach our functions in a pragmatic, flexible yet consistent manner during a period of unprecedented change.

Our purpose

Under current statute the Commissioner has two separate roles. Firstly, the Commissioner investigates complaints about the conduct of Members of the Scottish Parliament (MSPs), local authority councillors, board members of regulated public bodies and lobbyists. Secondly, the Commissioner regulates appointments by Scottish Ministers to the boards of public bodies in her remit.

The Commissioner’s statutory functions in relation to complaints handling are:

• to investigate complaints alleging contravention of the relevant Code of Conduct by
  • Councillors
  • Members of Public Bodies
  • MSPs and,
• where there has been contravention of the relevant Code, to report
  • in the case of councillors and members of public bodies, to the Standards Commission for Scotland
  • in the case of MSPs, to the Scottish Parliament.
• to investigate complaints about lobbyists who have failed to register or provide certain information to the Scottish Parliament and, where there has been a contravention, to report to the Scottish Parliament.

The statutory functions of the Commissioner in relation to public appointments are:

• to prepare, publish and, as necessary, revise a Code of Practice for Ministerial Appointments to Public Bodies in Scotland (the Code)
• to issue guidance on the Code
• to examine the methods and practices employed by the Scottish Ministers when making appointments
• to report to the Scottish Parliament instances of material non-compliance with the Code of Practice: the Commissioner may direct the Minister to delay making the appointment until Parliament has considered the report, and
• to ensure that, as far as possible, appointments are made fairly and openly and allow everyone, where reasonably practicable, the opportunity to be considered for an appointment.

Commissioner’s statement

This annual report covers my first full year in office, having commenced my term as Commissioner on 1 April 2019. In what has been a year of far-reaching transformation and unprecedented challenges, this statement provides an opportunity to reflect on what has been achieved to date.

As office-holder, I perform a number of roles as mandated by statute; firstly, as regulator of ministerial appointments to the boards of 97 public bodies; and secondly, as investigator of a range of Code of Conduct complaints about MSPs, local authority councillors and regulated board members together with complaints regarding lobbying. My complaints investigation function is central to the delivery of the ethical standards framework for Scotland.

Complaints Investigation

On taking up post, I conducted a strategic overview of the operations of the office and concluded that a restructuring exercise was necessary to address historic inefficiencies and key legacy issues regarding my complaint investigation function. Working closely with the Scottish Parliamentary Corporate Body (SPCB), I developed a multi-phase restructuring proposal to reshape this function to better meet the needs of MSPs, Councillors, Board Members and, of course, members of the public. 

The situation at 1 April 2019, which included a very significant legacy of aged complaints about councillors, was made even more pressing by the forthcoming expansion of my remit for MSP complaints. Additionally, there was an unprecedented escalation in the volume and complexity of incoming complaints.

Against this backdrop, the implementation of the restructure proved incredibly challenging, but has delivered significant benefits, as highlighted below.

The long-standing issue of protracted investigation completion times, as repeatedly raised by various stakeholders over the years, was addressed by the restructure. In doing so, the duration of stress experienced by parties under investigation is now beneficially reduced.

Overall, this greatly enhanced service has yielded positive feedback from respondents, complainants and local authorities alike.

The implementation of the restructure was punctuated by the pandemic. In anticipation of lockdown measures I invoked business continuity procedures on 16 March and successfully relocated the office to a wholly remote operation over the next few days. This enabled my office to provide a continuous and full service on a remote basis. In recognition of the unique challenges of the pandemic we also offered extended time-periods for responses to local authorities and parties to complaints. 

I am pleased to report that despite the significant challenges of remote working in an emergency context, the doubling in the volume of incoming complaints and staff vacancies throughout 2019 of up to 70%, the inherited backlog has been cleared and investigations in progress are all current. 

The investigation of complaints about local councillors as detailed below, illustrates progress made this year in the currency of our work.

Despite the disruption of the restructure, the first year of my term saw a peak in the overall number of breach, interim suspension and related reports which were referred to the SCS compared to previous years - a total of 12 reports in all. In the three months subsequent to the reporting year end, a further eight breach reports have been issued and referred for hearing, despite the challenges of the pandemic.

Additionally, I can confirm that all MSP complaints are current and up to date. 

I would like to record my appreciation to all those who have supported me in the office transformation throughout the past year, particularly my dedicated team, the long-term senior members of which, played a pivotal role in the success of the restructure. The SPCB (both staff and committee) have been instrumental to this success, providing an abundance of support and advice as I moved through the various stages of the transformation process. 

Other long-standing office wide priority issues also required action during my first year. Some examples are provided below along with some additional actions:

Public Appointments

Turning now to my Public appointments (PA) regulation function which aims to provide assurance that board appointments by Ministers to bodies within my remit, are made in compliance with the “Code of Practice”.

In the past year we applauded the achievement of gender parity on the boards of Scotland’s regulated public bodies, whilst noting that parity for other under-reflected groups within boards is proving more intractable.

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Currently, only 30% of board chairs are women. Disabled people, people under the age of 50 and people from a BME background are also not serving on our boards in representative proportions. There are other aspects of diversity that boards would benefit from and which I am reporting on for the first time. Those with private sector backgrounds are not applying in the expected proportions and, when they do apply, fare more poorly than their public sector counterparts. Additionally, those with household income in the top 5% of the population apply in disproportionately greater numbers than others and are invariably more successful when they do so. Intersectional connections exist between characteristics such as disability and household income, hence I am highlighting these figures for the first time. Scotland’s boards are inevitably poorer for this lack of diversity and it is clear that the Scottish Ministers are not accessing the entirety of the pool of talent that exists. Diversity enablement activities have continued to be diffuse, with the Scottish Government reaffirming its commitment to some activities but with no clear and convincing plans for achieving parity in other areas.

The significant challenges of the pandemic have impacted upon public bodies and resulted in a significant proportion of new appointment activity being placed on hold.  I have responded by proactively fostering flexibility within my PA remit in allowing term extensions and reappointments via Code variations. This gives officials and boards the leeway to maintain a measure of continuity on boards during this challenging time and the recovery period thereafter. I anticipate that in the interim Scotland’s boards and appointing ministers will be examining ways to attract and appoint a broader and more diverse pool of individuals from the population, to then rise to the challenges which will follow.

On reviewing the current PA landscape as mentioned above, I concluded that a more traditional regulatory relationship should be established, as was reflected in my Strategic Plan for 2020-24. In keeping with this, I intend to report more frequently and publicly on Scottish Government appointment activity. A key theme for my term in office will be transparency, as highlighting current board makeup and appointment practices will inform debate about what has to change for the better. Such potential changes have been contemplated in my preparatory work for consultation on prospective changes to the Code of Practice. Prospective Code revisions will also be informed by my survey of chairs and board members regarding the impact of time commitment and remuneration on board diversity. 

Engagement

In place of the biannual liaison arrangements with a limited representative group, I had planned to meet with Chief Executives and monitoring officers in person on an ongoing basis in order to discuss and optimise the interface between our functions. However the pandemic has delayed the roll out of my new engagement initiative with local authority councils.

Engagement with the Standards Commission for Scotland (SCS) was revisited at my behest during the past year. Formal bi-annual meetings will be scheduled with members going forward, replacing previous quarterly meetings with members and numerous ad hoc meetings with SCS executive staff. 

Interaction with SCS takes place via hearings and in February 2020 my staff tested the efficacy of ICT to facilitate remote presentation of cases, with a view to modernisation, increased accessibility, efficiency and cost reduction. 

Looking forward to the coming year, I intend to further extend my local interjurisdictional engagement. This will allow me to draw on a rich source of expertise and to share learnings in this challenging and everchanging landscape.

Caroline Anderson FCA
Ethical Standards Commissioner

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.

for the Commissioner for Ethical Standards in Public Life in Scotland known as the Ethical Standards Commissioner

This report is available in alternative formats on request by telephoning 0300 011 0550 or by e-mailing info@ethicalstandards.org.uk.