Governance, oversight and accountability
In addition to issues relating to the procedure and handling of complaints covered earlier in this response, the Committee report included comments on governance and oversight of decision making and processes at various points, including in relation to the Permanent Secretary. The Committee suggested that the multiple roles being fulfilled by the Permanent Secretary constituted an organisational risk that should have been identified and mitigated as part of a risk management approach.
As described at paragraphs 65-68 of this response, a new DG Corporate role has been established as part of a restructuring in order to improve organisational capability and capacity, and will oversee core corporate services, including Ministerial support, internal and external communications, commercial and procurement strategy, legal services and financial and people management. The DG Corporate role includes the role of Senior Information Risk Owner (SIRO) for the Scottish Government.
The Propriety and Ethics functions within DG Corporate will allow us to better manage organisation-wide risks. To ensure the timely delivery of objective and impartial advice and effective management of relevant documentation, a clearer distinction will be made between the function coordinating the advice and information for judicial or parliamentary inquiries and those staff involved in the events under review (the ‘havers’ of information).
As already noted earlier in this response, an updated procedure for handling complaints about Ministers will be clear on the roles and responsibilities of all parties, including those involved in the administrative and decision-making process.
The Committee report made comments about the Permanent Secretary’s personal responsibility and accountability.
The Permanent Secretary has always accepted her responsibility for the performance of the Scottish Government at official level. She accepted that there had been a failure in the Scottish Government’s approach to the provision of documents for the judicial review, as did the First Minister and the Lord Advocate. This response sets out the improvements already taken and planned by the Scottish Government to address the issues identified.
The Committee’s report also acknowledged the challenges faced by many organisations in responding to issues of sexual harassment and the additional complexities of applying this in the context of Government with the relationship between civil servants and politicians.
The Committee report included comments on the powers of Parliament and its Committees to scrutinise Government and hold it to account. The Government is accountable to Parliament and its Committees. Establishing and setting the remit of Committees is the responsibility of the Parliamentary Bureau.
The final chapter of the Committee’s report covers “wider reflections”. Several Committee members including the Convener disagreed with the inclusion of this section on the grounds that “it is not in the Committee’s remit, there was no evidence to draw on, and it detracted from the overall conclusions”. The issues raised in this section are significant and far‑reaching and would require more serious consideration and evidence before conclusions could be made.
The role of the Lord Advocate
The “wider reflections” chapter of the Committee’s report includes comments about the dual role of the Lord Advocate.
As covered in evidence to the Committee, the Lord Advocate has been a Government Minister and head of the independent system of prosecution and investigation of deaths in Scotland since long before devolution. This dual position was carried into the devolution arrangements reflected in the terms of the Scotland Act 1998.
The Lord Advocate and the Solicitor General for Scotland fulfil their prosecutorial functions with integrity and completely independently of any other person, including other Ministers within the Scottish Government. This is enshrined in section 48 of the Scotland Act 1998 and reflected in the Scottish Ministerial Code (para 2.42). The Law Officers are accountable to the Scottish Parliament for their prosecutorial functions under section 27 of the Scotland Act.
The Committee report and the recent Legacy report of the Justice Committee have indicated an interest within the Parliament in exploring the dual role of the Lord Advocate. Notwithstanding the strengths of the current arrangements, the Government has committed to consulting on the dual role and Ministers will set out proposals for this later this year.
Given their significance for the rule of law in Scotland, any change would require very careful consideration. The role of the Lord Advocate as head of the systems of criminal prosecution and investigation of deaths in Scotland cannot be changed without UK Parliament legislation.
Governance, oversight and accountability: Scottish Government actions
- Further strengthen the new Director General Corporate business structure by consolidating Propriety and Ethics functions within it;
- Ensure a clearer distinction is made between the function coordinating the advice and information for judicial or parliamentary inquiries and those staff involved in the events under review; and
- Consult on the dual role of the Lord Advocate.