(Image: NQ)
Scotland’s ethical standards system was warned five years ago that serious failings in the body responsible for investigating complaints against councillors and MSPs risked undermining public trust, The Herald can reveal.
Analysis by the public spending watchdog Audit Scotland in December 2021 identified an absence of openness and transparency, a breakdown in relationships with key stakeholders and within the organisation, and a lack of effective scrutiny that might have exposed problems earlier.
The findings concerned the office of the Commissioner for Ethical Standards in Public Life in Scotland, which investigates complaints about the conduct of elected representatives and members of public bodies.
The Commissioner’s office accepted 22 recommendations made by the appointed auditor, but a follow-up report in January 2023 found that significant challenges remained, including a growing backlog of complaints.
It comes as The Herald has revealed growing concerns that Scotland’s councillor standards system is restricting freedom of speech, with disciplinary cases raising questions about whether elected representatives can challenge council decisions and senior officials without fear of sanctions.
The number of cases has soared, prompting concerns about the impact on democratic scrutiny and whether the system adequately protects councillors’ rights to speak on matters of public interest.
Questions over transparency have intensified after the Standards Commission for Scotland cut its case-file retention period from five years to 12 months and destroyed 24 files, prompting National Records of Scotland to investigate whether it complied with its records management plan.
Concerns over how ethical standards was being operated in Scotland were made clear five years ago, when Stephen Boyle, the Auditor General said in findings: “It is disturbing to see so many failings in an organisation, not least because it deals directly with concerns raised by members of the public.”
He warned: “The overarching risk is that there will be a loss of public trust in the ability of the commissioner's office to properly investigate and consider complaints made against individuals in public life in Scotland.”
Glasgow councillor Fiona Higgins has raised freedom of speech concerns over the actions of the ethical standards system (Image: NQ)
The findings are being seen as significant for a system in which complaints against councillors can lead to formal hearings, findings of misconduct and sanctions, including suspension or disqualification. They also provide important background to current questions about how the separate Standards Commission for Scotland handles disciplinary cases, including concerns over freedom of speech, procedural fairness and the treatment of evidence.
The two organisations have different responsibilities. The Ethical Standards Commissioner investigates complaints and reports findings to the Standards Commission, which decides whether to hold a hearing and, where a breach is established, what sanction should be imposed. The separation is intended to ensure impartiality, fairness and objectivity in decision-making.
Concerns were serious enough for the Standards Commission for Scotland to intervene directly themselves in the work of the Ethical Standards.
In 2021, the Commission issued statutory directions to the commissioner for the first time. It required the Commissioner’s office to provide reports on investigations, update it on cases taking longer than three months and investigate complaints unless they fell within specified exceptions.
The commission examined information supplied by the commissioner’s office on April 12, 2021, and found failings in the handling of most of the complaints it reviewed that had been rejected as ineligible. In some cases, it concluded that an investigation should have taken place but had not. In others, an investigation had been carried out but the report had not been sent to the commission, leaving it unable to decide what action should follow.
The commission concluded that the failure to provide the required reports breached one of its directions. It subsequently lodged a formal complaint with the Scottish Parliamentary Corporate Body, which oversees the commissioner’s office, over the failure to comply with the direction and fulfil statutory duties relating to investigations.
Auditor General Stephen Boyle (Image: Audit Scotland)
Audit Scotland then raised wider concerns about the governance of the commissioner’s office, including weaknesses in scrutiny, risk management and transparency. It set out 22 recommendations for improvement.
It highlighted a steep rise in complaints against councillors and members of public bodies that were not pursued further.
The proportion increased from 43% in 2016/17 to 84% in 2020/21. The commissioner’s office said a detailed explanation for the earlier trend could not be provided because of a “loss of corporate memory from significant staff turnover”, although it believed the increase was likely linked to changes in the initial assessment of incoming complaints.
The analysis said: “The real life impact of this is that complaints which are dismissed prematurely without investigation mean that the councillor concerned remains in their position with no action taken.”
The auditor also found staff were not fully equipped to carry out the office’s statutory duties, and the auditor recommended a formal training programme and workforce planning arrangements. It also called for a full investigations manual to be produced to promote consistency and compliance across cases.
The Auditor General concluded that weaknesses were affecting the office’s ability to carry out its legal responsibilities. It called for urgent improvements to leadership, governance and scrutiny, and said the auditor would continue monitoring progress.
Two years later Audit Scotland said the commissioner's office had made improvements, including restoring an internal audit function, introducing business plans and establishing a risk register. However, it warned that the outstanding complaints caseload had increased and that an initial assessment could take up to nine months.
They warned: “It is vital that backlogs are reduced to help restore public confidence.”
The historical warnings have renewed relevance as councillors and their representatives question whether the standards system adequately protects freedom of speech and fair procedures when elected representatives are investigated for alleged breaches of the code of conduct.
The code sets out the standards expected of councillors, including requirements relating to respect, courtesy and the treatment of others. But cases involving criticism of council decisions, senior officers or public bodies can also raise questions about the boundary between legitimate political scrutiny and conduct that may justify disciplinary action.
Article 10 of the European Convention on Human Rights protects freedom of expression. Political speech and debate on matters of public interest receive particular protection, although that protection is not unlimited. The way those rights are considered in individual cases has become a central issue in the wider scrutiny of the standards system.
In the case of Glasgow councillor Fiona Higgins, the Court of Session ruled that the Standards Commission acted unlawfully by refusing to admit seven documents at her hearing. The court’s ruling concerned the commission’s handling of evidence in that case; it was not a finding that the 2021 audit’s governance criticisms applied to the Commission.
Ms Higgins has questioned the role played by commission staff in the preparation of hearing cases and the advice provided to independent panels. She has also criticised the decision to reduce the retention period for hearing case files from five years to 12 months, while three court cases raising human rights and procedural fairness issues were live.
The commissioner declined to comment.