Commissions and commissioners: final report

3. Commissions and commissioners

Introduction

This chapter explores the existing evidence about the role of commissions and commissioners in upholding people's rights, in Scotland and the UK. It explores what a commission or commissioner is, and sets out the existing commissions and commissioners in Scotland which uphold people's rights.

There is very little published research in Scotland and the UK on commissions or commissioners, and little evaluation exploring the pros and cons of different approaches, powers or ways of working for commissioners.^[10] This chapter draws largely on the websites, strategies, annual reports and plans produced by commissions and commissioners in Scotland and the UK.

What is a commission or commissioner?

A commission or commissioner is usually created to give under-represented groups a voice or to focus on a particular issue.

"Parliamentary commissioners and ombudsmen are typically responsible for safeguarding the rights of individuals, monitoring and reporting on the handling of complaints about public bodies, providing an adjudicatory role in disputes and reporting on the activities and conduct of public boards and their members.^[11]"

Commissions and commissioners can focus on under-represented groups – like children, older people, women, victims of crime or disabled people – or a particular issue – like domestic abuse, social mobility and disadvantage, biometrics, ethical standards or health.

In Scotland there is a range of commissions and commissioners. However, there is very little published research on commissioners, and no handbook or blueprint within government for designing the role.^[12]

A commission is an independent public body which functions independently of the government. Commissions are independent, arm's length bodies which scrutinise a particular issue or work to secure the rights of a particular group of people, or in relation to a particular theme.

An example of a commission in Scotland is the Mental Welfare Commission for Scotland which is an independent body that protects and promotes the rights of people with mental health conditions. It has a Chair and a Board that set the strategic direction. Another example is the Standards Commission, an independent body which encourages high ethical standards in public life. It comprises a convenor and four commission members.

A commissioner is an individual who advocates for a certain group, generally supported by a team of staff. These are very individual roles, and the individual appointed can make quite a difference to how the role is undertaken.

Examples of a single commissioner role in Scotland include the Children and Young People's Commissioner Scotland, the Scottish Information Commissioner and the Scottish Biometrics Commissioner. Each commissioner has a staff team supporting them.

Often these models can be combined. For example, commissions often have groups of commissioners who serve on their Board.

Examples of commissions which have more than one commissioner include the Equality and Human Rights Commission, and the Scottish Human Rights Commission. Each have a group of commissioners – with a chair – and a staff team supporting them. The Equality and Human Rights Commission also has a Scotland Committee, whose role is to advise on the exercise of the Commission's functions as they affect Scotland.

The roles and responsibilities of commissions and commissioners are generally set out in the law, and the powers commissions have can vary.

Commissions and commissioners function independently of the government, and can hold the government to account. Commissioners are generally appointed by the Scottish Parliament (not the Scottish Government). Commissioners are generally appointed for a set time period (usually 3-5 years) and there are normally rules about how many terms they can serve as commissioner.

Commissions and commissioners are responsible for employing their own staff, who are not civil servants, and managing their own budgets from funding provided by the Scottish Parliament.

A commissioner is not an ombudsman, tsar, regulatory body or inspectorate, but can have cross-over with some of these roles.

• An ombudsman is an individual or organisation appointed to look into complaints about organisations and help to resolve disputes. A commissioner may have a role in complaints or appeals if this is within their remit, but can also have many other roles.
• A tsar is an individual appointed by government or a government minister in a personal appointment. These high level officials are paid and granted broad powers to address a particular issue and act as champions and ambassadors. The minister and the tsar devise and agree terms and conditions themselves.
• A regulatory body is an organisation appointed by the government to establish and/ or ensure compliance with standards. It can be a public organisation or government agency.
• An inspectorate is an organisation that ensures that official regulations about places or activities are obeyed. This generally involves visits to places or organisations to make sure things are being done correctly.

Note: Parliamentary commissions

This report is exploring the role of commissions and commissioners established by the Westminster or Holyrood parliaments. It is worth noting that there is an organisation in Scotland called the Scottish Commission for People with Learning Disabilities. This is a third sector organisation, and is a charity, not a public body. It is governed by a Board of Trustees and run by a team of staff.

The Scottish Commission for People with Learning Disabilities works to defend and protect the rights of people with learning disabilities by:

• building the capacity and participation of people with learning disabilities
• working to involve people with learning disabilities in the development of strategies and solutions, including policy and legislation
• building evidence and data to inform service delivery and decision making.

Being an effective commissioner

Although research on commissions and commissioners is limited, UK guidance on how to be an effective commissioner produced by the Institute for Government^[13] emphasises that commissioners require sufficient powers, resources and independence. It provides useful advice on establishing commissioners. This includes:

1. Give the commissioner a well-defined but not overly restrictive remit and be clear where they fit in.

2. Ensure the role has adequate resources and powers to fulfil its remit.

3. Appoint an individual who has credibility with represented groups and can manage complicated relationships.

4. Reinforce the independence of the commissioner – it must be able to investigate without needing to seek money or permission from government, publish reports under its own authority, and have a direct link to parliament and relevant committees.

5. Take commissioner recommendations and input seriously – make a formal commitment to respond to reports within a timescale, and involve the commissioner in relevant policy discussions.

Existing equality and human rights commissioners

In Scotland, a range of commissions and commissioners exist to protect and promote human rights and equality. There are Scottish bodies, and there are bodies that cover Great Britain or the UK which have powers that extend to Scotland.

Existing Scottish commissions and commissioners with powers to protect human rights include:

• The Scottish Human Rights Commission (SHRC)

Promotes awareness, understanding and respect for all human rights, everywhere in Scotland, and encourages best practice.

• The Mental Welfare Commission for Scotland (MWCS)

Protects and promotes the human rights of people with mental illness, learning disabilities, dementia and related conditions in Scotland. It has a dual role of exploring situations where something has gone wrong, and working to improve policy to safeguard people in the future.

• The Children and Young People's Commissioner Scotland (CYPCS)

Protects and promotes the human rights of children and young people.

Appendix One sets out more detail on the role, set up, powers and activities of some of these commissions and commissioners.

The Scottish Public Services Ombudsman (SPSO), which is the final stage for complaints about public service organisations in Scotland, also has a role in protecting rights. The SPSO can consider whether the organisation concerned has taken its obligations seriously and provided a reasonable explanation of their interpretation of the law. It can do this through assessment and investigation, and share a final decision on the complaint. However, it cannot determine whether that is lawful or not.

Existing Great Britain wide commission and commissioners with powers to protect human rights which extend to Scotland include:

• The Equality and Human Rights Commission (EHRC)

Promotes equality and diversity, enforces laws, promotes and protects human rights across Great Britain by encouraging good practice and promoting mutual respect. There is also a specific statutory committee for Scotland and its role is set out in legislation. For full details please see Appendix One (Section Two).

Other UK wide commissions and commissioners which cover Scotland and uphold people's rights include The Independent Anti-Slavery Commissioner and the Social Mobility Commission^[14].

• The Social Mobility Commission is a UK wide body which exists to create a UK where an individual's future isn't determined by the circumstances of their birth. It has a statutory responsibility to promote social mobility in England, and more widely across the UK to carry out and publish research and produce and annual monitoring report on progress towards improving social mobility in the UK.
• The Independent Anti-Slavery Commissioner encourages good practice in preventing, investigating and prosecuting slavery and human trafficking offences.