Audit Scotland’s Section 22 Report on the Ethical Standards Commissioner - Statement from the Standards Commission for Scotland

20th December 2021

Audit Scotland today published a Section 22 report on the Ethical Standards Commissioner (ESC). The report can be found at: https://www.audit-scotland.gov.uk/report/the-202021-audit-of-the-commissioner-for-ethical-standards-in-public-life-in-scotland 

Reports are prepared by the Auditor General under Section 22 of the Public Finance and Accountability (Scotland) Act 2000 if any specific concerns or issues have been identified in an audit of one of the public bodies for which he is responsible.

The ESC investigates, among other things, complaints about the conduct of MSPs, local authority councillors, and board members of public bodies. The findings are then reported to the Scottish Parliament (in the case of MSPs) or to the Standards Commission for Scotland (in the case of councillors and board members).

The Standards Commission’s role is to encourage high ethical standards in public life, including the promotion and enforcement of the Codes of Conduct. The Standards Commission holds Hearings to adjudicate on cases referred to it to determine whether or not a breach of the relevant Codes of Conduct has occurred, and, if so, the sanction to be applied.

The Standards Commission notes the Acting Commissioner, appointed on 20 April 2021, is working to address the concerns raised in the Section 22 report.

Lorna Johnston, Executive Director of the Standards Commission stated: “the Standards Commission welcomes the fact that the Acting Commissioner has published a revised strategic plan for 2020-24, which places an effective and trusted complaint handling system at its core.”

Background

The ESC and the Standards Commission are separate and distinct parts of Scotland’s ethical standards framework. Both offices are governed by the Ethical Standards in Public Life etc. (Scotland) Act 2000 (2000 Act). The Standards Commission has an oversight role in respect of how the ESC undertakes some of their functions and has powers to issue Directions under the 2000 Act. This includes the power to direct the ESC to provide information. As the Section 22 reports notes, the Standards Commission used these powers of direction for the first time last year, to be able to undertake its oversight role effectively.

Previously, the ESC sent reports on to the Standards Commission only in respect of cases where, following investigation, they had concluded a breach of the Code may have occurred. If the ESC considered a breach of the Code had not occurred, the case would be closed. 

Amid concerns about the way the ESC was interpreting the Codes of Conduct, and in consultation with key stakeholders, the Standards Commission issued a Direction requiring the ESC to report on all investigations; not just on those where, in their view, a breach had occurred.

The Direction was also intended to ensure a clear separation between the investigatory function of the ESC, and adjudicatory functions of the Standards Commission. The Direction means that any disputed evidence or representations on interpreting the Codes can be tested fully at a Standards Commission Hearing, where evidence is taken on oath or affirmation and where the participants and the Panel can question witnesses and respond to submissions made.

The Standards Commission also issued Directions requiring the ESC to provide interim reports for investigations on all complaints about councillors and members of devolved public bodies which were older than three months. It also established criteria for the ESC to use when determining the eligibility of complaints about councillors and board members and in deciding which ones should be investigated.

The Standards Commission is pleased to note that the Acting ESC is complying with these Directions.