Commissions and commissioners: final report

7. Joint working

Introduction

This chapter explores how commissions and commissioners in Scotland work together. It also draws on how they interact with others such the Scottish Public Services Ombudsman, the Scottish Government and third sector organisations.

As commissions and commissioners work to uphold the rights of individuals, they often have overlapping remits with other commissions and commissioners, and other statutory bodies such as regulators, inspectorates or ombudsmen.^[35] Commissioners need to work collaboratively to fulfil their role, and some have this power to act jointly or to assist people and organisations built into their role formally. In some cases, commissioners have a statutory duty to avoid duplicating the work of others.

Views on joint working between commissions

The interviewees involved in this research highlighted close joint working arrangements between commissions and commissioners in Scotland.

Some had written agreements or working agreements about certain issues. For example:

• The Equality and Human Rights Commission has a Memorandum of Understanding with the Scottish Human Rights Commission. There is a lot of complexity with both equality and human rights legislation and powers, and both Great Britain wide and Scottish organisations.
• The Mental Welfare Commission for Scotland and Scottish Public Services Ombudsman have a Memorandum of Understanding to allow them to share information in a clear and straightforward manner. The MWCS is a named body in the SPSO's legislation around information sharing, and the organisations can share information effectively.
• The Scottish Human Rights Commission and Children and Young People's Commissioner Scotland have working agreement that they will talk about issues relating to children to agree who is best placed to take a particular issue forward.

Some said that they engaged with other commissions and commissioners more on an ad-hoc basis, as and when the need arose. For example, The Scottish Public Services Ombudsman worked with the Children and Young People's Commissioner Scotland on a Child Friendly Complaints process, using its work to inform the baseline scoping of the project and supporting the SPSO with contacts for young people and young people's organisations to take the project forward.

Some highlighted that their relationship with commissions and commissioners fluctuated, depending on their focus and priorities at the time.

"We have different relationships with different commissions at different points." Interviewee

Joint working arrangements were perceived to be simpler where organisations were clearly different. For example, a few interviewees highlighted that the SPSO with its clear focus on complaints was an easily defined, separate mechanism which was easily explained to individuals. Most commissions and commissioners highlighted that they signposted people to SPSO where appropriate.

"Those links with other commissioners and other officers are really strong for us, even outwith Scotland." Interviewee

Example: Coordinated work on the same issues

The Scottish Public Services Ombudsman took forward a case about access to British Sign Language within an NHS Board. The Equality and Human Rights Commission discussed the case at a training session for advisors, highlighting how similar cases could be raised under the Equality Act 2010. One of the advisors subsequently made the Commission aware of another case. The Commission then used its statutory powers to fund court action against the Board, reaching an agreement about British Sign Language provision. More information is available here.

The Equality and Human Rights Commission also followed up with another NHS Board to seek assurances that legal requirements were being met for all patients, following a complaint raised with the Scottish Public Services Ombudsman. The Commission also followed up more widely with the Director General of Health and Social Care. More information is available here.

The Equality and Human Rights Commission also worked with the Mental Welfare Commission on concerns about immediate re-detentions under the Mental Health (Care and Treatment) (Scotland) Act.

Some interviewees also highlighted that joint working arrangements helped when commissions and commissioners had different powers. It also brought together expertise and resources, through working together.

Example: Complementary powers

The Equality and Human Rights Commission has different powers than the Children and Young People's Commissioner Scotland and this leads to close joint working at times. They have a practical dialogue about cases, as the EHRC can take cases and CYPCS can't yet. Their work can also link together and follow up.

For example, in 2018 the Children and Young People's Commissioner Scotland looked at the use of restraint in schools and uncovered a lot of inconsistent and bad practice. The CYPCS published a report, and the EHRC with its stronger powers was able to follow up by supporting a judicial review that a parent had raised on this issue. They worked together to identify key issues and the outcomes they wanted. This resulted in national guidance, which was the outcome the CYPCS wanted to see.

"We were pleased to have worked closely with the Children's Commissioner to use our unique legal powers to achieve this change."

Interviewees stressed that even where there were formal joint working arrangements or Memoranda of Understanding, there were still grey areas so there was a need for a structure for talking to one another and working through these.

"We know how to speak to each other." Interviewee

More widely, interviewees highlighted the importance of talking and communicating with other commissions and commissioners, on an informal basis.

"There's just a constant exchange between the commissions about the work we're doing and where we might be able to collaborate or cooperate on different things. Sometimes that needs formal Memoranda of Understanding or agreement but most often it isn't that…it's more about how we deal with issues, that's a constant ongoing dialogue." Interviewee

"Regardless of the type of relationship, the key is good communication. It really doesn't matter what your Memoranda of Understanding or your legislation says if you're not talking to each other." Interviewee

Some of the organisations involved shared a space and services like HR and procurement as they were Scottish Parliamentary supported organisations within the same building. However, these interviewees felt that due to hybrid and home working, being in the same physical space wasn't as important as it used to be and didn't affect day to day working.

A few interviewees highlighted that despite close working there could be some confusion about where lines are drawn between different mandates of commissions and commissioners, both internally and externally. One interviewee felt that they were restricted in information sharing, which made joint working challenging. For example, when working together recently, one commissioner had to sign a confidentiality agreement to say they couldn't use the information in any of their other work – which was felt to be quite a big ask of an organisation aiming to support human rights.

Views on joint working with others

Some of the commissions and commissioners also had arrangements in place to avoid duplicating the work of others, and ensure effective joint working with public sector organisations more broadly.

Example: Avoiding duplication

The Scottish Human Rights Commission has a statutory duty to avoid duplicating the work of others, as far as is practical^[36]. It must consult the Scottish Law Commission before undertaking a review of any area of the law. The Scottish Human Rights Commission also has the power to act jointly with or assist any person in undertaking its duties.

The Children and Young People's Commissioner Scotland also must avoid duplication and is limited in its powers to investigate, if another body in Scotland is able to do so^[37].

Example: Memoranda of understanding

The Mental Welfare Commission for Scotland has a range of memoranda of understanding agreements in place to ensure effective joint working^[38]. It has a memorandum of understanding in place with the Care Inspectorate, Scottish Social Services Council, Health and Safety Executive, Healthcare Improvement Scotland, the Mental Health Tribunal for Scotland and the Office of the Public Guardian (Scotland). It also has a memorandum of understanding with the Directorate for Population Health within Scottish Government, which sets out the broad framework within which the commission will operate and defines key roles and responsibilities which underpin the relationship between the Commission and the Scottish Government Directorate for Population Health^[39].

More broadly, interviewees highlighted that they worked with third sector organisations on a regular basis. Commissions and commissioners liaised regularly with third sector organisations to hear their views, and the views of people with lived experience. As commissions and commissioners often had a broad remit, they found that third sector organisations which focus on a particular target group or issue were likely to have expertise and insight into what's happening on the ground on a particular matter.

"We build listening to others into the bricks because we couldn't operate without it." Interviewee

Commissions and commissioners also often involved third sector organisations through Advisory Committees and working groups.

Interviewees mentioned that they had to be aware of the resources available within the third sector, the demands on their time and their ability to get involved in issues and projects. One interviewee highlighted that they ensure all engagement is fully scoped, planned and organisations are paid for their time.

"When we do work with the third sector, we're very well aware how constrained their resources are. So when we work with them we try to plan out how we might work with them, write the project and actually contract them and pay them for their time." Interviewee

One organisation highlighted that with more resources it could engage more with third sector organisations, but that this had been affected by their capacity, the capacity of third sector organisations, and the Covid-19 pandemic. This organisation had identified within its new business plan the need to have a more active engagement strategy with the third sector in the future. Another highlighted that resources available within the organisation were focused on other areas of their work, and that with just a little more resource they could engage much more effectively with third sector organisations and other partners.

Relationship with government

Most interviewees valued that they were fully independent of government, feeling that this enabled them to be challenging and put their point across.

"It means we're totally independent of government, we're able to be as critical and openly challenging of government as we need to be because of our legislative underpinning. This gives us enormous power and is a massive help." Interviewee

Most felt that they had developed a positive relationship with Scottish Government, where their input and expertise is valued, and they are listened to – even if the Scottish Government disagrees or doesn't act on their input.

"I think we probably get reasonably well listened to, particularly at practical level." Interviewee

"The relationship works well. They respect the independence that the commission has." Interviewee

Most of the commissions involved in this research reported to Scottish Parliament and engaged with different parts of the Scottish Government on a project basis. A few mentioned that they had one key point of contact within the Scottish Government, so that they had a clear route in to different departments and teams as needed – as without this it could feel a bit disjointed.

One commission highlighted that it was accountable to a Scottish Government Directorate, rather than the Scottish Parliament, but that this was likely to change in the future.

One indicated that recently it produced a report jointly with the Scottish Government, because it was so important to show a joint position. This was deliberate, but it was important to demonstrate that the commission continued to be totally independent from government.