Commissions and commissioners: final report

4. Powers of commissioners

Introduction

This chapter explores the powers and approaches of commissions and commissioners in Scotland and the UK. It explores the broad types of powers that commissions and commissioners have and how they feel about the range of powers available to them.

Broad powers of commissioners

As there is no single role for a commission or commissioner, they are set up in many different ways, with different powers. However, commissions and commissioners are normally provided with powers which stem from legislation relevant to their field.

UK-wide guidance on how to be an effective commissioner emphasises the importance of powers in fulfilling the role.

"There are two key initial things to get right when establishing a commissioner post: powers and resources."^[15]

Setting out powers in legislation can also help to clearly establish the role and remit of commissioners, which is important as there is no standard set of powers for commissioners.

The powers given to a commission or commissioner can be tailored specifically to the situation, and what is needed. However, the range of powers that commissions and commissioners in Scotland have include:

Powers to inform best practice, raise awareness and set standards:

• powers to disseminate information or ideas
• powers to provide advice, guidance, education and training
• powers to conduct research
• powers to produce statutory guidance
• powers to require a response from government or public bodies within a specified time frame
• powers to gather data and make it public – which can be reinforced by imposing a duty on bodies to make information available to the commissioner.

Powers to review law, policy and practice:

• powers to review and recommend changes to law in Scotland
• powers to review and recommend changes to policies and practice of public authorities.

Example: Powers to review law, policy and practice

The Children and Young People's Commissioner Scotland has powers to review the law, policy and practice as well as promoting best practice, raising awareness and understanding and conducting research on children's rights^[16].

Powers to make inquiries:

• power to conduct inquiries – into key issues, particular organisations or groups or organisations
• powers to compel people to give evidence or produce documents.

Powers to conduct investigations:

• powers to investigate suspected unlawful acts
• powers to assess compliance or check best practice.

Powers to enter and inspect places:

• power of entry – important power to enable commissioners to gain entry to institutions that may be closed-off – with or without notice
• power to interview and talk to people in certain places.

Example: Powers of entry and interview

The Scottish Human Rights Commission has the power to enter, inspect and interview people in places of detention in Scotland. However, this only applies as part of a formal inquiry initiated under the terms of their Act^[17].

The Mental Welfare Commission for Scotland has powers to visit people in hospital, at home, in care homes and in other settings, and can explore care and treatment and compliance with mental health legislation. It can review case notes and files, conduct recorded interviews with people, and make recommendations for change^[18].

Powers to enforce rights under law:

• powers to issue unlawful act or compliance notices
• powers to enter into agreements about future actions
• powers to report people or organisations which do not comply to another route – including reporting non-compliance to courts, to Scottish Ministers or to others
• powers to take cases to courts and provide legal assistance
• powers to review individual cases and assess for compliance with the law.

Example: Powers to enforce rights under law

The Equality and Human Rights Commission has powers under the Equality Act 2006 to make inquiries into any topic related to equality, diversity and human rights, and conduct investigations where it is suspected an unlawful act has been committed. It can assess public bodies' compliance with the Public Sector Equality Duty, and issue notices requiring action to comply, where a body has been assessed as having failed to do so. It can also produce statutory guidance in relation to matters of equality. Although the EHRC has a wide range of enforcement powers, its focus is initially on helping organisations achieve compliance through advice, guidance, information and research.

In practice, commissions and commissioners can get things done in a range of different ways, depending on the powers they have available to them.

Having very limited powers, or no statutory basis for the role, can make it difficult for some commissions and commissioners to get things done.

Example: Strengthening powers

The Children's Commissioner in England was originally given the responsibility to "represent the views and interests of children" along with the power to advise ministers, conduct research, gain entry to premises where children are cared for, and initiate inquiries. The framing of the role as representing views and interests as opposed to promoting their rights under a legal framework, such as the UN Convention on the Rights of the Child, was criticised in parliament. The powers, remit and function were strengthened by the Children and Families Act 2014.^[19]

Example: Ambassador role

Scotland had an Active Nation Commissioner between 2018 and June 2022. The Commissioner worked independently of the Scottish Government to act as a national advocate for walking, wheeling and cycling in Scotland, raising the profile of sustainable methods of travel and promoting their benefits. The role was not supported by a legislative framework, and focused on challenging policy and strategy constructively. In June 2022, the commissioner moved on to become a new Ambassador for Active Travel, providing an independent perspective on progress.

Reflections on broad powers of commissioners

Through this research, commissions and commissioners reflected on their powers overall, how effective these are and what helped and hindered in terms of upholding human rights and bringing about change.

Having powers set out in law

Overall, commissions and commissioners valued having their powers set out in law.

"Generally having powers set out in law is helpful." Interviewee

"I think when you put something under legislation, it makes people do it." Interviewee

Interviewees reflected that the best powers are:

• enabling and empowering – using words like the commission 'may' undertake a certain function, leaving scope for other approaches
• clear and straightforward
• well written
• achievable within resources.

Some interviewees highlighted that while it was useful to have some powers, they didn't often have to use them. For example, while it was useful to have powers, commissions often used these to have an informed conversation and explain to people why it was important that they change or improve their practice or approach, rather than implementing the powers directly.

"From a policy perspective, being able to back up the carrot of policy arguments with the stick of legal powers is a very, very good thing." Interviewee

"The fact that we haven't used some of them doesn't necessarily mean that they're not helpful." Interviewee

A few mentioned that they felt that if they had to use some of their powers, this would be a failing as the discussions and conversations they are having would not have had the desired effect.

A few talked about the decisions they had to make, to find the balance of when they collaborate, when they work on something jointly, and when they use their legal powers. A few interviewees felt that in the early days of a commission, they probably used their legal powers more, but once they had built up a profile and understanding, they used these less and worked in a more collaborative way.

"But we deliberately try to work as upstream as we can. Obviously if you get to the point that you are using your legal powers, its because there have been failings at earlier stages." Interviewee

One interviewee felt that having powers was a key difference between commissioners and campaigning and lobbying organisations. This interviewee felt that powers were felt to be essential to get things done, even if they weren't always used.

"I always feel that the Commission has to have something extra that other organisations in the sector don't have. So (for us) its those legal powers. It means you can get behind the truth of issues. You can get to the places that charities can't get to." Interviewee

Interviewees identified some challenges around:

• Using legal powers can be high profile and gives a clear result, but can be seen as punishing people.

"What we're trying to do is not to punish people. It's to try to improve behaviours so that there are better outcomes for people day to day." Interviewee

• Some powers applying to certain listed or named organisations – but often services cut across different organisations making it hard to look at the impact on the individual as a whole.
• Some lack of clarity in powers, or barriers around the language used.

"It depends on how well written it is. Bits of our legislation are nice and clear and straightforward and others are really grey and murky. And I think that does make a big difference." Interviewee

• Some change over time in context, not reflected in powers – for example, the shift from written information to other formats, and the shift from institution based care to community care – which a few commissions said meant that a small tweak in legislation may be helpful.
• Some powers being very limiting – for example having the power to intervene in civil litigation, but not being able to do anything to make cases come to court, or having the power to investigate individual issues, but not having the power to look at issues more collectively.
• Some powers being very expensive to implement – for example having the power conduct an inquiry or investigation, or provide legal support to individuals. This means that some powers are used very carefully and sometimes not at all because they are so costly and resource intensive.
• Some powers not having teeth – for example having the power to inquire, but for any recommendations made not having any legal backing.

A few interviewees highlighted that while it was helpful to have a legislative basis to work from, it was important to remember that the context constantly evolves – so having either flexibility built into the legislation, or ability to update the legislation would be helpful.

While almost all commissions and commissioners felt that they had the powers to bring about change, one interviewee felt that its powers were largely persuasive and were a significant barrier to upholding human rights for the people they worked with.

"If commissions are being set up, they should have more teeth otherwise there is a question as to what value they add." Interviewee

Having resources to bring about change

Most interviewees felt that they had the resources that they required to bring about change, and could discharge their duties effectively. All said that they had to prioritise and make careful decisions about their work, and that they could do more with more resources. A few interviewees emphasised that their work was unending, and that they could always do more.

"The single biggest challenge is having enough capacity to meet demand… Managing expectation is our single biggest challenge and would be one that all of us share." Interviewee

A few interviewees said that if more resources were available, they would use this to focus more on relationship building, collaborative and early engagement activities such as:

• culture change, good practice and standards
• collaboration and active engagement with other bodies
• research and policy influencing.

"If we had more practitioners then we could do more." Interviewee

One interviewee highlighted the importance of having clarity about resources and budget in advance, so that priorities could be managed within the resources available.

One interviewee felt very under resourced to perform its role and fulfil its mandate, and felt that although it prioritised, it could only do a proportion of the work needed, and was often reactive rather than proactive which was very limiting for promotion of human rights. It felt that there was a gap between what it should achieve, its powers and the resources required to carry out these powers.

"I really wouldn't want to see an expectation set up in other commissions that they can do things that they're not resourced to do." Interviewee

Gaps in powers

Interviewees were asked if there were any gaps in their powers. The suggestions made were all very specific to each commission and commissioner. For example:

• A few did not have power to make binding recommendations which meant they used discussion and persuasion to bring about change.
• One highlighted that it did not have powers of entry, and felt it would be useful to have these, for example through doing spot inspections.
• One did not have power to decide what issues it was going to look into, and had to deal with individual cases in response to issues reported to them.
• One had restrictions on its information sharing powers, with limited powers to share with some organisations – such as other commissions and commissioners. It felt that it would be useful to have more open information sharing possible, to support joint working.

"We don't have 'own-initiative' powers. We can't say we're going in to look at this." Interviewee

One interviewee reflected on the fact it did not have enforcement powers. They felt this hadn't been a particular issue, as it allowed the organisation to engage with individual bodies in discussion about the outcomes they wanted to achieve, and when, and leave it a bit more flexible to work out how they get there. Ultimately any failure to achieve the agreed outcomes could be reported to parliament, and although the organisation hadn't used this, it was felt to be a very useful power to have.

Views on governance

Most interviewees felt that their governance arrangements worked well.

A few highlighted that being a stand-alone public body was resource intensive, with many administrative and reporting responsibilities even for small organisations, and that it was important to consider the impact of this for any new organisation.

Where there was a single commissioner, interviewees felt that this worked well. This meant that there was one person responsible for decision making and clear lines of accountability which ensured the commissioner had power. This meant that the commissioner was clearly the leader and the figurehead for the work of the organisation. Having support through advisory groups, on areas such as lived experience, key priorities and risk, was felt to be essential – although it was ultimately up to individual commissioners to decide whether to take this advice or not.

This meant that getting the right individual appointed as a commissioner was very important. Interviewees stressed that different commissioners could have different approaches, but that all commissioners needed to be confident to put their opinion forward and have their voice heard.

Where commissions had more than one commissioner, extra effort was needed to clarify governance and decision making responsibilities.

Interviewees also highlighted that the roles of commissioners and senior staff need to be clearly defined, so that all can add most value.

One interviewee said it was vital to have the governance and organisation set up properly before announcing the new commission or commissioner, as people will immediately have expectations and these need managed carefully.