Shepherd and Wedderburn LLP
  July 18, 2006 - Scotland

Public Bodies Face Inquiry
  by Kelly Harris

What will the impact be when the Scottish Parliament Finance Committee reports on Accountability and Governance asks Kelly Harris The Finance Committee of the Scottish Parliament has been conducting an inquiry into Accountability and Governance in Scotland, looking at the proliferation of Commissioners and Ombudsmen established since devolution. The impetus behind the inquiry was the growing concern that money might be being wasted as a result of overlapping functions and responsibilities. The Committee's Convener, Des McNulty MSP, stated that, "our concern is that despite the potential remit overlaps and cost of these bodies, there are plans to establish more commissions." Indeed, the Executive has plans in the pipeline to create a further five bodies, namely a Scottish Civil Enforcement Commission, a Legal Complaints Commission, a Police Complaints Commissioner and a Road Works Commissioner. Finally, the Executive is still apparently seeking to create a Scottish Human Rights Commissioner, despite the failure of a parliamentary committee to back the draft Scottish Commissioner for Human Rights bill back in February of this year. The Justice 1 Committee, whose membership comprises a cross-party selection of MSPs, failed to reach majority agreement on what recommendations to make regarding the bill. The lack of support for the bill seems to be due to a feeling that a Commissioner for Human Rights in Scotland would be largely superfluous, and would overlap with the functions of existing bodies. Indeed, a leading judge, Lord McCluskey, dismissed the idea as a "piece of nonsense," insisting that there were already enough bodies tasked with protecting human rights in Scotland, first and foremost the courts. The Justice 1 Committee's actions have left the Executive without crucial committee support, and the future of the Bill is not at all clear. It is not only Parliament who are concerned by the number, and cost, of commissioners. The Executive itself is set to carry out its own investigation into the regulation, audit, inspection and complaints handling for devolved public services. Given the similarity of the tasks, it is likely that the Finance Committee's findings (expected to be published towards the end of this year, or early 2007) will be of great relevance to the Executive's review. The Finance Committee invited written submissions from a variety of interested parties, who included many of the commissioners, ombudsmen and investigatory and regulatory bodies under review, as well as representatives of the Executive, political parties, and other organisations such as Save the Children and the Campaign for Freedom of Information in Scotland. The written submission stage was followed by sessions of the Committee at which certain parties were invited to give oral evidence. A key issue with which the Committee is concerned is the balance between accountability and independence for public bodies. As each body under review has been set up to fulfil a different function, the degree of independence, the arrangements put in place for funding, and the lines of accountability do vary from case to case. However, it is important that in all cases a careful balance is struck, which ensures that public bodies are independent enough to fulfil their functions in a manner which is not, nor perceived to be, under the control of the Government, but are at the same time fully accountable to Scotland's elected representatives. It will be interesting to see what, if any, measures are taken as a result of the Finance Committee's inquiry, and whether the perceived explosion in the number of public bodies is halted as a consequence.


Footnotes:
Kelly Harris is a public law specialist with commercial law firm Shepherd and Wedderburn. +44 (0)131 473 5382