Commissions and commissioners: final report

5. Reflection on specific powers

Introduction

This chapter explores interviewee reflections on the specific powers of their commission and how they are used in practice.

Powers to inform best practice, raise awareness and set standards

Interviewees reflected on their powers to inform best practice, raise awareness and set standards. For most commissions this was a core part of their work and included:

• identifying best practice, within Scotland, the UK and beyond
• exploring areas of challenge
• producing guidance notes
• setting standards – including statutory standards.

One interviewee also indicated that the media was a key part of the role of a commissioner, getting across big issues.

"Probably the area that is most effective is the media. When there are big issues to be tackled you use the media as effectively as possible to move those areas forward." Interviewee

Work to set standards and promote best practice was felt to be hugely valuable, in terms of upholding people's rights. A few interviewees highlighted that this type of work was aimed at improving the situation for people with lived experience, meaning there would ultimately be less need to approach commissions with problems, issues or complaints.

Interviewees highlighted that it was resource intensive to build relationships, engage and promote best practice and uphold standards. Sometimes it could be hard to balance this with the resources needed to react to poor practice and issues identified.

Example: Raising standards

The Scottish Public Services Ombudsman (SPSO) sets standards for complaints handling, and has a statutory duty to monitor these standards and share good practice. This is preventative work, to make sure that organisations can better deal with complaints and supports complaints resolution^[20]. This work allows the SPSO to make a significant difference to individual experiences, with complaints better dealt with and complaints standards increasing. Ultimately, over time, this type of work should reduce the volume of complaints coming to the ombudsman – but it is resource intensive and the bulk of their resources continue to be dedicated to dealing with complaints received.

Example: Producing guidance notes

The Mental Welfare Commission for Scotland regularly creates guidance notes^[21], often in response to enquiries coming through on its advice line. For example, during the pandemic the Commission received a lot of questions about people who needed the Covid-19 vaccination but couldn't consent or had issues that might impact on their decisions regarding vaccination. As a result the Commission produced guidance looking at case law from across the UK and good practice guidance, interpreting it within legal frameworks in Scotland.

For most commissions, their work to enhance best practice and raise awareness comes from a statutory duty to monitor the implementation of the law, and forms part of a suite of powers.

Example: A range of powers

The Equality and Human Rights Commission has four main strands of powers^[22], tools and tactics:

• Evidencing the issues – including identifying, researching and producing a 'State of the Nation' report to be laid before the Westminster Parliament every 5 years.
• Influencing standards – policy work, advice to central and devolved governments on impact of potential and existing legislation.
• Compliance with standards – good practice, guidance, capacity building.
• Legal enforcement and intervention – legal powers to compel compliance, holding to account and taking action against organisations who break equality law.

A range of factors must be considered in choosing which lever to use. This decision needs to be pragmatic. For example, inquiries take a long time so if there is an urgency about the issue, this is not the right tool. Litigation is expensive and it is important to consider how to make maximum impact with public money.

While some commissions were not able to provide advice to individuals, for some, this was a key part of their role. Three commissions operated email advice support services, advice lines or advice and assistance teams for individuals. These three commissions found that providing support to individuals through advice helped to inform wider work, including the standards and guidance notes that are required, based on lived experience.

Example: Providing individual advice

The Mental Welfare Commission for Scotland has a statutory duty to provide advice to anyone who seeks it around operation of mental health legislation^[23]. The Commission runs an advice line, and focuses this advice particularly on situations where rights are affected. The advice line receives around 3,500 to 4,000 calls a year, with many enquiries now also coming by email. About half of the contacts are from people with lived experience, and half are from practitioners and professionals.

The advice covers any aspect someone has a concern about, and feeds in to the wider work of the Commission. For example, an inquiry or group of inquiries may lead to exploration of an issue and production of guidance to clarify the situation. Professionals can also use the advice line to explore best practice and approaches from a rights based perspective.

If issues emerge from the advice line that escalate, the Commission may choose to become an interested party and work with the individual and others to support them around decisions, care and treatment in a way that protects the person's rights^[24].

These calls cause the Commission to lean in on certain issues and ask questions. It is an excellent source of information and very useful for understanding and influencing the issues that people are experiencing, as they are experiencing them.

Example: Providing advice and assistance

The Older People's Commissioner for Wales provides advice and assistance to older people. The power to do so is set out in legislation^[25]. The Commissioner's Advice and Assistance Team can help to connect older people, either directly or through family members and others who make contact on their behalf, with support and services throughout Wales, and help to ensure their rights are upheld.

Reviewing policy and legislation

Most commissions took both a proactive and reactive approach to reviewing policy and legislation. This meant that they both reactively considered ideas coming through in government and parliament, contributing to debate and discussion as ideas were developed, and proactively worked on influencing areas identified as important to people with lived experience.

Commissions and commissioners took part in working groups, met with senior officials and ministers, produced consultation responses, campaigned, wrote letters and held reviews to influence policy and legislation. Interviewees highlighted that having wider powers around enforcement, litigation and investigation helped to influence the policy and legislative context. For example, monitoring implementation of legislation to uphold people's rights provided an important locus to focus activity around, based on where issues were emerging.

Interviewees highlighted that policy work took longer to achieve, and was harder to attribute than some of the other approaches they used. The change in policy and legislation comes about over time through influence, which can be quite intangible.

The ability to report to parliament on findings around policy and legislative review was felt to be a very useful power.

Example: Monitoring the implementation of legislation

The Mental Welfare Commission for Scotland has statutory duties to monitor how mental health law is working^[26]. This helps to inform what needs to change and how the Commission can influence this.

"It is monitoring with a purpose, with an intention to check how the law is working, identify places where it is failing and then make recommendations to close those gaps wherever we see them."

A few interviewees highlighted that in organisations with a single commissioner, different commissioners could result in very different approaches to influencing policy and legislation.

"It's very personal to how they like to work." Interviewee

For example, within the one organisation over time the approach changed based on the commissioner. Recently, one commissioner has not wanted to work alongside the government in internal policy reference groups, wishing the organisation to stay independent and scrutinise government policy from outwith the process. A previous commissioner took a different view, working with government and trying to influence from within, with lots of commission staff on working groups. Both approaches were felt to have had their own successes and challenges.

Powers to take cases to court

Some commissioners have the power to investigate individual cases, provide legal assistance and take individual cases to courts. This means that commissions and commissioners need to establish clear established criteria for when to get involved in individual cases, to maximise impact. Using cases to highlight systemic issues can bring issues to life, connect with important issues and draw attention to learning from key cases.

Example: Legal support

The Equality and Human Rights Commission can support individuals to bring cases where they've experienced discrimination and a breach of relevant rights under the Equality Act 2010^[27]. It supplies clear information to help people understand and assert their rights, as well as offering direct support to bring legal cases. The EHRC also undertakes work to build capacity among others providing legal advice to individuals.

The Equality and Human Rights Commission does not get involved in every case, and takes a strategic litigation approach focusing on agreed priority areas within its strategic plan. It seeks out cases to support, to ensure that those who breach the rights of others understand that they will not get away with flouting the law. If issues identified don't fit with strategic plan priorities, the EHRC looks at the scale of the issue and the impact that EHRC action would have when it decides whether to get involved^[28]. It has a team of solicitors and case workers that run test cases on equality issues.

Some commissions and commissioners are specifically excluded from investigating individual cases, and expected to focus on systemic issues. This can help prevent commissioners getting involved in detailed case work and avoid overlap with other roles. However, sometimes this can limit the power of commissioners.

Example: Strategic legal and policy work

The Scottish Human Rights Commission does not handle complaints or provide a service to individuals. The law prohibits the Commission from giving advice or assistance on individual legal claims or potential legal proceedings^[29]. Resources are focused on strategic legal and policy work instead. The Commission works closely with other organisations and services that do provide advice on human rights issues, so that it can refer people to them. The Commission can choose to conduct a formal inquiry into any policies and practices of Scottish public authorities, but it has a statutory duty to avoid duplicating the work of others as far as is practical. It also must consult the Scottish Law Commission before undertaking a review of any area of the law. The National Taskforce on Human Rights Leadership published recommendations for a new human rights framework for Scotland in early 2021, and this recommended additional powers be given to the SHRC including taking test cases, conducting investigations and potential further powers^[30]. This report is informing the development of a new Human Rights Bill for Scotland.

Interviewees reflected on their powers to support individuals. Interviewees felt that commissions generally got involved in cases:

• to clarify an area of law
• if the issue affects a lot of people
• where the impact is particularly concerning.

Having the power to support individuals in some way was seen to be a very valuable way of gathering intelligence and learning about real problems on the ground.

"If we're telling people don't bring us your individual problems, then we don't hear about individual problems and that blocks off a really important avenue for intelligence gathering." Interviewee

One interviewee indicated that over time, their organisation had become more involved in legal support for individuals, as the cases coming to the commissioner had become more complex.

However, interviewees highlighted that powers to take legal cases and to intervene in civil litigation are costly and resource intensive. Interviewees stressed that these powers need to be accompanied by resources.

Interviewees highlighted that powers to intervene in civil litigation only (rather than supporting individuals to bring their own cases) could be restrictive, as it depends on the right case being brought before court in the first place.

There were some perceived gaps in legal support available to individuals, with commissions with no power to bring individual cases feeling there was nowhere else to signpost people to within the system.

Powers to inquire and investigate

Interviewees reflected on their powers to inquire and investigate.

Investigations were generally used when there was a concern about people's rights not being upheld and organisations acting unlawfully.

Interviewees generally felt that investigation powers were significant and very powerful.

"Our powers of investigation allow us to call anyone in. Any time we call for information there are actually criminal consequences for not providing it… So we have quite powerful investigation powers and we can compel anyone to come to give evidence." Interviewee

One interviewee felt that using the powers of investigation raised the profile of their organisation, demonstrating both to the public and to public bodies that the commissioner had teeth.

"It was a huge bit of work for the office, but it raised the profile of the organisation and showed the public we had teeth. And for the public bodies involved it was a bit of a wake up call to the powers." Interviewee

A few highlighted that their commission had powers of investigation, but could not investigate something that is the remit of another organisation.

"Our powers of investigation state that we cannot investigate something that is the remit of another organisation, so it does have constraints on it. And that's something that can be challenging for people to understand…" Interviewee

There was some concern among a few interviewees that as new commissioners were created, this would limit the powers of existing commissioners in relation to investigation.

"Each new Commissioner that's created may constrain what existing Commissioners are able to do and there's nowhere more obvious than with our investigation powers." Interviewee

Some interviewees indicated that investigations were resource intensive, taking time and resources. A few said that other tools were available to them before they got to this stage – meaning that investigations could be rarely used. For example, for the Equality and Human Rights Commission an investigation is used where an organisation is suspected of undertaking an unlawful act. This was relatively rarely used, because there were so many other tools the EHRC could use before it gets to this stage. Another interviewee highlighted that although the commissioner used powers of investigation soon after it was established, this helped to set the scene for dealing with public authorities, showing that the commissioner has teeth and empowering it to work in a softer way with organisations, which often received a better response.

Example: Individual case review and investigations

The Mental Welfare Commission for Scotland identifies areas of concern or particular situations that require further review. It does this through:

• the Commission's advice line
• the Commission's visiting function
• the notification system that requires services to inform the Commission of the use of certain aspects of mental health legislation
• the notification of death system where services inform the Commission of deaths of patients in certain situations.

If a serious problem is identified, the Commission may follow this up with a visit or an investigation. The Commission normally has approximately 10 to 12 cases which is actively reviewing at a higher level of review, and from these one or two cases a year are identified where they suspect there will be learning for across Scotland from the incident. These lead to detailed investigations.

The Commission prioritises investigations where other people may be having similar problems, or where there may have been mistakes that others could learn from. The Commission publishes the results and recommendations from investigations, and follows up with services to find out what changes they have made in response. If issues are not resolved, it can escalate concerns to Scottish Ministers. Investigation reports are available here.

Some commissions also had powers to undertake inquiries and reviews. These were generally broader, exploring a theme across a sector or a group of bodies. These were resource intensive and time consuming, with clear rules about how inquiries were reported and how they were conducted. Interviewees indicated that careful consideration had to be given to when and if to undertake an inquiry. One interviewee indicated that their commission had not used their powers of inquiry as it would be a very large scale undertaking and its recommendations wouldn't have any legal force.

Powers to enter and inspect

Most of the commissions and commissioners involved in this research had some powers to enter certain facilities as part of undertaking their role. This included:

• power to enter places to speak with people with lived experience – for example while undertaking an investigation or inquiry
• power to inspect and review quality of care and service, for example in care homes or places of detention.

Example: Visiting programme

The Mental Welfare Commission for Scotland has a visiting programme to visit the places where people may be detained under the Mental Health Act. The visits involve seeing about 1,200 people a year and reviewing the quality of care. Some visits are announced and some are unannounced (about a quarter). For each visit a report is published with recommendations, which the organisation must respond to.

Unannounced visits are often due to intelligence from the phone line, or where there's a pattern, or a potential problem. Themed visiting programmes are also used, to explore particular issues or places.

The Commission also maintains a register of Designated Medical Practitioners who review the treatment of people who do not consent or cannot consent to particular treatments specified under the Mental Health Act. The Commission's designated medical practitioners carry out around 2,000 visits a year and make changes to around a third of the treatment plans they review. The Commission feels that this is a vital and tangible safeguard, which it administers and provides guidance on.