Accountability of public services in Scotland: baseline evidence review and analysis

5. External Scrutiny Landscape

This Section provides an overview of the main messages arising from our review and mapping of the scrutiny and regulatory body landscape in Scotland. This is based on web searches to identify scrutiny and regulatory bodies, followed by a review of a wide range of information and documents published on their websites.

A mapping spreadsheet has been provided separately which provides more detail.

5.1 Feedback from Signatories Workshop

It is worth highlighting the main points raised at the signatories’ workshop regarding the mapping and review process:

• the mapping exercise should include bodies that have a role in scrutiny, regulation, and oversight – each has different powers to enforce action, but all have legitimacy;
• the mapping exercise should not be overly complex, otherwise the list will be large – the focus should be on those bodies who have a scrutiny, regulation, and oversight role of organisations/services not individuals (i.e. exclude those bodies that, for example, might deal with complaints about an individual within a profession); and
• a potential gap in the accountability framework in Scotland might be around influencing policy decision-making – it is difficult to challenge the policy where authority lies elsewhere (e.g. Scottish Government).

5.2 Internal and External Scrutiny

As highlighted in Section 2, public service provision in Scotland is hugely diverse and complex. Organisations that provide public services (e.g. local authorities, housing associations, health boards) all have existing processes, systems and governance structures in place to monitor and evaluate their own activities and performance (e.g. internal performance management, scrutiny and audit functions).

All are also subject to external scrutiny from one or more organisation or agency.

External scrutiny covers regulation, audit, inspection, and complaints handling, and is typically undertaken to:

• provide assurance and public accountability;
• support, promote, and be a catalyst for improvement and innovation, including:
  • identifying good practice and areas for improvement
  • influencing organisational behaviour and culture change
  • improving practice, standards, quality, service delivery, and achievements; and
• help shape and inform policy and practice.

Fundamentally, external scrutiny and oversight provides independent assurance that public services are:

• delivered effectively and efficiently;
• delivered to meet the right standards;
• complying with necessary standards and regulations;
• of a good quality and well-managed;
• safe;
• fit for purpose; and
• that public money is accounted for and is being used properly (i.e. delivering best value).

The public are commonly identified as a key beneficiary of the external scrutiny process.

5.3 The External Scrutiny Landscape

Previous research has found that the external scrutiny landscape and arrangements in Scotland is complex (Section 2). This was said to relate to a number of factors:

• the scale, diversity, and complexity of public service provision;
• the large number of public service providers in Scotland;
• the role scrutiny bodies have been tasked to perform by the Scottish Government and the Scottish Parliament; and
• how external scrutiny bodies are established and run^[28].

5.4 Scrutiny and Regulatory Bodies

There are a number of external scrutiny bodies in Scotland – their role is to have oversight, monitor, review, and assess the activities and performance of organisations that provide public services. A few examples are provided below:

• criminal justiceesty’s Inspectorate of Prisons for Scotland, Her Majesty's Inspectorate of Constabulary in Scotland;
• education – e.g. Education Scotland, The Quality Assurance Agency (Scotland);
• environment – e.g. Scottish Environment Protection Agency;
• emergency services – e.g. Her Majesty's Fire Service Inspectorate for Scotland;
• health and care – e.g. The Care Inspectorate, Healthcare Improvement Scotland;
• housing. Scottish Housing Regulator; and
• local government – e.g. Audit Scotland, Accounts Commission.

The statutory duties of external scrutiny bodies in Scotland are typically enshrined in relevant legislation (and any amendments) or defined by the Scottish Government. In this sense, they tend to operate independently and impartially – while at the same time being directly accountable to Scottish Ministers for the standards of their work. Scottish Ministers are ultimately accountable to the Scottish Parliament.

5.5 Scrutiny and Regulatory Approaches

Strategic Code of Practice

The Scottish Regulators' Strategic Code of Practice (2015)^[29] outlines how Scottish regulators should apply regulatory principles and good practice when setting regulations. There is a commitment to “better regulation”, and the code of practice was developed to drive an outcome-focused framework for regulation in Scotland. It highlights that regulators should be enablers, take a risk and evidence based approach, understand those they regulate, and communicate clearly and effectively . The better regulation principles are “that regulatory functions^[30] should be exercised in a way that is transparent, accountable, proportionate, consistent, and targeted only where needed”^[31] .

Regulators should adopt the following high level operational approaches:

• Adopt a positive enabling approach in pursuing outcomes that contribute to sustainable economic growth.
• In pursuing their core regulatory remit be alive to other interests, including relevant community and business interests; taking business factors appropriately and proportionately into account in their decision making processes; and protecting public health and safety.
• Adopt risk and evidence based protocols which help target action where it’s needed and help to ensure the achievement of measurable outcomes.
• Develop effective relationships with those they regulate and have clear two-way communication in place.
• Tailor their approach depending on the nature of the sector they are regulating and the desired outcomes. This includes a commitment to advice and support for those who seek to comply, allied with robust and effective enforcement when justified.
• Recognise, in their policies and practice, a commitment to the five principles of better regulation: regulation should be transparent, accountable, consistent, proportionate and targeted only where needed.
• Pursue continuous improvement in regulatory practice based on the principles of better regulation.

Source: The Scottish regulators' strategic code of practice.

A review group has been established to provide Scottish Ministers with recommendations on improvements to the Code, and is considering whether the:

• Code has been effectively implemented and had a positive impact on regulators’ working practices and regulatory outcomes;
• content of the Code remains appropriate and fit for purpose - including how to incorporate inclusive growth, consumer interests, and a collaborative approach to compliance; and
• how to share best practice and new learning.

In early 2018, the group issued a call for evidence to gather wider views on the Code. The results of the call for evidence have not yet been made publically available, however, this might be something that the Collaborative Working Group should consider once findings are made known.

Regulatory and Improvement Frameworks

There are a range of regulatory or improvement frameworks (or similar) in place – these are used by external scrutiny bodies to guide the scrutiny activity of public services, to ensure compliance (i.e. with regulations and standards) and performance against targets, and to drive continuous improvement.

Some frameworks have been revised in recent years – this reflects a number of factors, including incorporating greater elements of self-assessment or self-evaluation into the process, changes in the wider delivery and/or policy environment, etc. Proposed changes are typically subject to a period of consultation with key stakeholder groups, including the public.

There is often reference (commitment) within the frameworks to the better regulation principles. The frameworks go on to set out details of, for example, inspection/audit processes, inspection/audit methodologies, levels of engagement with public service providers, underpinning principles, grading/rating scales, etc.

There has been a growing emphasis placed on incorporating more self-assessment and self-evaluation to help inform the external scrutiny process. This reflects the fact that there is key role (and indeed a responsibility) for service providers to evidence their own compliance and performance. Pre-inspection evidence is beginning to be used more often as an important source of information on performance.

5.6 Scrutiny Activity

Scrutiny activity of public services in Scotland takes different forms, including:

• cyclical inspections – of individual organisations;
• follow-up inspections – linked to following-up on the outputs of cyclical inspections;
• joint inspections – involving more than one scrutiny body; and
• thematic inspections – this includes, for example, examining specific areas of work or delivery.

5.7 Approaches to Joint Working

There are certain duties placed on scrutiny bodies through the Public Services Reform (Scotland) Act 2010. “Scheduled scrutiny authorities” are required to co-operate and coordinate activity with each other, and where appropriate Scottish Ministers. The overall goal is to improve the exercise of the scrutiny bodies’ functions in relation to local authorities, social services, health services or policing.

The scheduled scrutiny authorities defined by Schedule 20 of the Act are subject to addition or subtraction by Scottish Ministers and include: Food Standards Authority, Healthcare Improvement Scotland, HM Inspectorate of Constabulary, HM Inspector of Prisons for Scotland, HM Inspector of Prosecutions Scotland, inspectors of schools, Mental Welfare Commission for Scotland, Scottish Housing Regulator and the Care Inspectorate.

The Act also sets out how listed scrutiny bodies must engage in a joint inspection into the provision of children’s or any function in which the scrutiny bodies have the power to investigate with one or more additional agencies as directed by Scottish Ministers. The listed agencies include: Healthcare Improvement Scotland, HM Inspectorate of Constabulary, HM Inspector of Prisons for Scotland, HM Inspector of Prosecutions Scotland, inspectors of schools, Mental Welfare Commission for Scotland, Scottish Housing Regulator, Care Inspectorate and any Special Health Board.

There are numerous examples of scrutiny bodies working together in some shape or form – this spans, for example, information sharing to joint inspections. There is growing use of memorandums of understanding (MoU) that look to formalise connections, relationships, and ways of working and collaborating between agencies. Commonly, MoU centre on processes for data and information sharing, resource sharing, communication and liaison and making sure agencies do not duplicate effort.

The number of MoU in place and the degree of interaction varies across organisations. However, this is an area that is continuing to be further developed. A few specific examples include:

• Her Majesty’s Inspectorate of Prisons for Scotland often draws on multi-disciplinary teams to undertake inspections of prisons in Scotland. This includes Healthcare Improvement Scotland, Education Scotland, The Care Inspectorate, and The Scottish Human Rights Commission;
• The Police and Fire Reform (Scotland) Act 2012 places a duty on the Auditor General for Scotland, inspectors of constabulary in Scotland and inspectors of the Scottish Fire and Rescue Service to cooperate and coordinate activity with each other to improve how functions are carried out;
• HM Fire Service Inspectorate in Scotland has MoUs in place, including with Audit Scotland (establishing a complementary relationship to ensure no duplication of work/effort and to add value), and with the Scottish Public Services Ombudsman (complaints handling);
• The Scottish Environmental Protection Agency has an extensive portfolio of MoUs with agencies in Scotland and the UK. Within Scotland, SEPA has formal agreements with Scottish Water^[32], the Drink Water Quality Regulator, Health Protection Scotland and Food Standards Scotland^[2]. Across the UK, formal relationships exists with the Chief Fire Officer Association, Scotland and Northern Ireland Forum for Environmental Research, Met Office, Maritime and Coastguard Agency, Coal Authority; Environmental Agency (England), Northern Ireland Environmental Agency, Natural Resources Wales and the Office of Nuclear Regulation;
• Audit Scotland has a MoU with NHS Scotland Counter Fraud Services that focusses on the deterrence, prevention and detection of fraud and other irregularities in NHS Scotland (and other public bodies);
• The Scottish Housing Regulator is developing a framework for joint working, co-operation and collaboration. Its current MoU include those with Office of the Scottish Charity Regulator, Care Inspectorate, and the Scottish Public Services Ombudsman;
• the Mental Welfare has MoU with various organisations to ensure there is a clear understanding of how it works together in common areas. This includes the Scottish Government, Mental Health Tribunal, Scottish Public Services Ombudsman, Care Inspectorate, Healthcare Improvement Scotland, Scottish Social Services Council, and Office of the Public Guardian (Scotland); and
• the Sharing Intelligence for Health Care Group provides a forum for sharing and considering intelligence to improve the quality of care systems across Scotland (e.g. NHS boards). Membership includes seven agencies: Audit Scotland, Care Inspectorate, Healthcare Improvement Scotland, Mental Welfare Commission for Scotland, NHS Education for Scotland, NHS National Services Scotland, and Scottish Public Services Ombudsman. The main purpose is to share any major concerns as they arise so that they can be acted upon appropriately and learning from any incidents is shared across the members.

5.8 Accountability Channels

There is a duty placed on scrutiny bodies to give a public account of their activities and use of resources – this typically includes the setting out of key roles and responsibilities which underpin relationships with, and clear lines of accountability to Parliament and to Scottish Ministers.

For example, lines of accountability might include attendance at a Parliamentary Committee and dealing with Parliamentary questions and correspondence, etc.

Annual Reports and Accounts

A key measure promoting public body transparency and accountability is the requirement for the publication of annual reports and accounts. This is a legislative requirement set out in the legislation that establishes the public body. The Scotland Act 1998 establishes that the yearly activities of a public body must be presented in a report to Parliament, and when the functions relate to Scotland, must be laid out before Scottish Parliament. Further, for any public body with function related to Scotland, their accounts are to be submitted to the Auditor General for Scotland.

By law, annual reports generally are required to contain:

• a survey of the exercise of the functions of the public body;
• activities relating to the enforcement of relevant regulation; and
• performance in relation to any set of standards.

The form of the report, additional content, and method of publication are at the discretion of each public body. This requirement covers bodies with a Scotland wide jurisdiction and UK wide - for example the Office of Road and Rail and the Professional Standards Committee must also publish annual reports which will be laid out to both Parliament and Scottish Parliament.

Freedom of Information

All public bodies in Scotland are required to comply with freedom of information regulation set out in the Freedom of Information (Scotland) Act 2002 (FOI Act) which came into force in 2005. The FOI Act covers a wide range of organisations including local councils, the NHS, the police, the Scottish Government, universities, colleges, most schools, and many other bodies.

The FOI Act gives rights to the public to enquire about information held by the body and requires that these bodies respond to any requests appropriately. Further, all organisations covered under the FOI Act are also subject to the Environmental Information (Scotland) Regulations 2004 (EIAs) which gives members of the public the right to enquire about any information relating to the environment that is held by any public body. The Scottish Information Commissioner enforces complicity with the FOI Act and EIAs and requires each public body to report statistics regarding FOI requests on a quarterly basis.

Publication Scheme Duties

All bodies that are subject to the FOI Act are also subject to publication scheme duties to proactively publish information. Any publication scheme must gain approval from the Scottish Information Commissioner. To help this process, the Scottish Information Commissioner maintains a Model Publication Scheme (MPS) that sets the minimum standards.

A public body that formally adopts the MPS will meet SIC approval. Information required by the MPS is defined by 9 classes of information^[33] which include:

• Class 1: About the authority
• Class 2: How we deliver our functions and services
• Class 3: How we take decisions and what we have decided
• Class 4: What we spend and how we spend it
• Class 5: How we manage our human, physical and information resources
• Class 6: How we procure goods and services from external providers
• Class 7: How we are performing
• Class 8: Our commercial publications
• Class 9: Our open data

While it is recommended that public bodies do not develop their own publication schemes as the MPS sets a standard for the public to follow, several groups of authorities have worked together to produce template Guides to Information. This approach has helped authorities in those sectors identify other information they ought to publish, over and above the MPS.

Complaints Handling Procedures

The Scottish Public Services Ombudsman sets out model complaints handling procedures (CHPs) that most devolved public services in Scotland including councils, the health service, prisons, water and sewerage providers, Scottish Government, universities and colleges must comply with. Every CHP should be easily accessible to all end users taking into account specific needs (e.g. people with learning difficulties, people who are deaf or hard of hearing, the visually impaired and non-English speakers, etc). Further complaints information including response performance should be publicised and available to the public.

The Model CHP is a three-tiered process. First, there is a frontline resolution intended for issues that are relatively straightforward to resolve and require no investigation, typically handled by a staff member in 5 working days. The next stage is an investigation for issues that could not be resolved at the frontline or involve a complex or ‘high risk’ issue. A thorough investigation is expected to yield a resolution within 20 working days and must be signed off by a senior manager. The final level of the CHP is an external review by SPSO or other appropriate organisation.

The Model CHP also sets out what types of complaints that a regulatory or scrutiny body can investigate. Generally, individuals’ complaint can only relate to the service they’ve received from the organisation. This includes things like: delays in responding to enquiries and requests, failure to provide a service, the standards of service, organisational policy, treatment by a member of staff or failure of the organisation to follow proper procedure. These complaints can also be about someone external to the organisation but who is working on behalf of the organisation. Things that an individual cannot complain about typically include things relating to: a routine first-time request for a service, requests for compensation, issues that are in court or have already been heard by a court or tribunal, disagreement with a decision where a statutory right of appeal^[34] exists, an attempt to reopen a previously concluded complaint or to have a complaint reconsidered where a final decision has already been given.

In terms of the public holding accountability power against public bodies, CHPs are a key tool. People have the ability to directly have their voices heard. Organisations should take complaints as a learning process to feed into improving their services. The scrutiny bodies with a Scotland wide remit identified in our research follow the Model CHPs set by SPSO and are ultimately accountable to SPSO regarding all complaints. Those bodies with a UK wide remit follow similar processes set out by the British Standards Institution.

5.9 Involving and Engaging People

As highlighted in earlier, the public is an important beneficiary of the external scrutiny of public services in Scotland. To this end, it is evident that scrutiny bodies continue develop ways of involving and engaging service users (and the public more generally) in their work. The nature and extent of approaches is varied.

Provision of information is a central element. This includes information about who the body is, its roles and responsibilities, how it goes about its work, how to become involved/make contact, and the outputs of scrutiny work, etc. This spans traditional methods (e.g. publications, leaflets, newsletters, e-bulletins). Bodies also actively engage with the public via social media platforms (e.g. Twitter, Facebook, LinkedIn, Instagram). For example, Education Scotland has a wide audience (25,000 followers). Many organisations now report social media statistics and interactions in their Annual Reports publications as a measure of performance and success.

The point here is that organisations are using social media platforms to communicate to a broader population of users, to increase their interaction and engagement with the public, and directly bring people into their organisation to inform accountability mechanisms.

Open consultations or calls for evidence are another way in which the public can directly have its voice heard concerning the plans, activities and policies of public services.

As highlighted in Section 5, there are wider examples of involving and engaging people, this includes:

• training and supporting service users/public to be involved in undertaking monitoring and/or inspection of public services;
• people’s panels or juries (or similar); and
• involving people in the review of draft publications, promotional materials, and website content, etc to ensure that materials in the public domain are accessible and user-friendly.