Commissions and commissioners: final report

Appendix One : Detailed overview of four existing human rights commissions, commissioners and ombudsmen in Scotland

1. The Scottish Human Rights Commission (SHRC)

Role: To promote awareness, understanding and respect for all human rights to everyone, everywhere in Scotland, and to encourage best practice in relation to human rights.

Organisation and governance: Independent public body, accountable to the Scottish Parliament. The Commission consists of a commissioner appointed to chair the Commission, and not more than four other commissioners. There are currently three part time commissioners and a full time chair.

Appointment: The chair of the Commission is an individual appointed by His Majesty on the nomination of the Scottish Parliament. The other members are appointed by the Parliamentary corporation. Each commissioner can hold office for up to 5 years, and can be reappointed once only.

Staff and costs: Full time chair, three part time commissioners and 11 full time equivalent staff posts. Costs approximately £1m a year to run. Three teams – business management, communications and legal and policy.

Powers:

• Disseminate information or ideas
• Provide advice, guidance, education and training
• Conduct research
• Review and recommend changes to any area of law in Scotland
• Review and recommend changes to any policies or practices of Scottish local authorities
• Conduct inquiries into policies and practices of Scottish public authorities – a particular authority, all authorities generally, or authorities of a particular description
• Compel people to provide oral evidence or produce documents – any Scottish public authority or any member, officer or member of staff of a Scottish public authority
• If people refuse or fail to comply with a requirement to give evidence, the Commission can report this to the Court of Session which may make an order for enforcement or deal with the matter as if it were a contempt of Court.
• Entry, inspection and interview in places of detention
• Intervene in civil litigation.

Legislation: Powers are set out in the Scottish Commission for Human Rights Act 2006.

Individual cases: The SHRC does not handle complaints or provide a service to individuals. The law prohibits the SHRC from giving advice or assistance on individual legal claims or potential legal proceedings. Resources are focused on strategic legal and policy work instead. SHRC works closely with other organisations and services that do provide advice on human rights issues, so that they can refer people to them. The SHRC does have the power to intervene in Scottish civil court proceedings, but only if it is relevant to the general duty and raises a matter of public interest.

Planning and prioritising: Must produce a strategic plan every four years setting out how it proposes to fulfil its duty, its priorities and activities, and any laws it proposes to review.

Formal collaboration:

• May act jointly with or assist any person in undertaking its duties
• Has a statutory duty to avoid duplicating the work of others – as far as is practical
• Must consult the Scottish Law Commission before undertaking a review of any area of the law
• Has a Memorandum of Understanding with the EHRC and communicates, collaborates and meets regularly
• The Scottish Public Services Ombudsman can investigate the SHRC.

Examples of activities:

• Contributing to Scottish Government working groups
• Responding to consultations
• Providing evidence to Parliament Committees
• Making recommendations to strengthen laws and policies
• Hosting national conferences/ high level seminars/ workshops
• Publishing research on key topics
• Providing training on human rights
• Supporting projects to enable change
• Inspecting and monitoring places of detention
• Key projects – e.g. work on historic child abuse to bring together survivors and duty bearers within a human rights framework.

Other information: The Commission is accredited as an 'A Status' National Human Rights Institution within the UN system, which means they can make direct contributions to the UN Human Rights Council. The SHRC (and EHRC) are designated as part of the UK's Independent Monitoring Mechanism for the UN Convention on the Rights of Persons with Disabilities.

The SHRC general duty applies to devolved, reserved and international areas. However, its specific powers relate to Scotland – in relation to inquiries, laws, policies, practice and places of detention in Scotland.

2. The Equality and Human Rights Commission (EHRC)

Role: To promote equality and diversity, enforce equality laws and promote and protect human rights by encouraging good practice and promoting mutual respect – across Great Britain.

Organisation and governance: A statutory non-departmental public body. There is also a specific statutory committee for Scotland, and its role is set out in legislation. The EHRC is governed by a Board of between 10 and 15 Commissioners which includes a Chair and a dedicated Scotland Commissioner. The Scotland Commissioner is the Chair of the Scotland committee, and there are currently six other members. In law, the Commissioners are the Commission, and the staff provide the support.

Appointment: The Commissioners are appointed by the Minister for Women and Equalities or Secretary of State. Members of the statutory committee for Scotland are recruited and appointed through the EHRC.

Staff and costs: 218 staff, cost of £17.1m in 2021/22^[40].

Powers: In Scotland the EHRC has powers to:

• produce statutory guidance
• conduct inquiries – into any topic related to equality, diversity and human rights
• conduct investigations – where it is suspected an unlawful act has been committed
• produce reports on investigations – with failure to act on recommendations enabling the EHRC to issue an unlawful act notice
• issue unlawful act notices - if the Commission finds an organisation has committed an unlawful act, it can issue a notice with details of the breach and necessary action to avoid it being repeated
• issue agreements - a formal agreement with a person or organisation the Commission believes has committed an unlawful act, and the person agrees not to commit an unlawful act and puts an action plan in place
• undertake assessments – the EHRC can assess public bodies subject to the equality duty to check compliance or identify areas of best practice, with robust powers to request information and evidence
• serve compliance notices – if the EHRC believes a public authority has not complied with the equality duty it can serve a compliance notice requiring the organisation to comply and setting out steps that it needs to take
• make applications to court including judicial reviews and interventions – including applying for court orders to require public bodies to comply, and not complying with the court order is a criminal offence
• provide legal assistance to individuals
• take judicial reviews and intervene in relevant cases before the court in relation to human rights.

A full list of enforcement and litigation powers are on the EHRC website.

In Scotland, the EHRC only has the power to take human rights action in relation to devolved matters if it obtains the consent of the SHRC.

The EHRC has a range of enforcement powers, but its focus is initially to help organisations to achieve change through advice, guidance, information and research. Although the focus is on pre-enforcement engagement, it uses its legal and enforcement powers when it is the best way to achieve change. This may be to clarify the law, highlight priority issues or challenge policies and practices that cause significant disadvantage.

Legislation: The powers of the EHRC are set out in the Equality Act 2006. The EHRC is also responsible for enforcing the Equality Act 2010.

Individual cases: The EHRC can support individuals to bring cases where they've experienced discrimination or a breach of relevant rights, only in line with its litigation and enforcement policy. The EHRC supplies clear information to help people understand and assert their rights, as well as offering direct support to bring legal cases. It takes an approach of strategic litigation, with a legal directorate of solicitors and caseworkers that run test cases on equality and human rights issues.

The EHRC only gets involved in a case where it could clarify an area of law, or if it is affecting a lot of people or the impact is particularly egregious. Sometimes it focuses in on particular characteristics or sectors. For example, at the time of this report it was running a race legal support fund.

Planning and prioritising: The EHRC prioritises the issues it works on – trying to concentrate on a smaller number of issues over the longer term, to take a deeper look at each issue and devote more resources to a particular problem. This means difficult decisions about focus, to achieve lasting change. It lays a strategic plan in front of the UK Parliament every three years, setting out its priorities.

Formal collaboration: EHRC has formal agreements through Memoranda of Understanding with the SHRC, the Office of the Scottish Charity Regulator (OSCR) and the Scottish Public Services Ombudsman (SPSO). The EHRC also joins forces with those who are responsible for overseeing a particular sector, such as regulators, inspectorates or ombudsman. The EHRC works with the SHRC with the EHRC taking oversight of human rights issues relating to reserved matters, and the SHRC having oversight for devolved matters. There is a proviso in the legislation that if the EHRC gets the consent of the SHRC to work on devolved human rights matters then it can, and that does happen.

Lived experience: The EHRC consults widely on the issues in its strategic plan and holds round table discussions with people with protected characteristics. It also hears the voices and experiences of people with lived experience through engaging with third sector organisations representing or working for people with lived experience.

Examples of activities:

• Large scale research projects
• Advise government and parliament
• Provides consultation responses, parliamentary briefings and evidence to committees
• Investigation into allegations of antisemitism
• Inquiry into inclusive justice making recommendations to UK and Scottish Governments
• Investigated equal pay at the BBC
• Contacted a business after a whistle-blower suggested the owners used a booking policy that excluded Gypsies and Travellers
• Reached legally binding agreements with a wide range of organisations to improve services and avoid acts of harassment or discrimination
• Worked with Mental Welfare Commission for Scotland to pursue legal action when discovered a number of people were being held in two care homes in Glasgow without consent or lawful authority.

Other information: The EHRC has been awarded an A status as a National Human Rights Institution by the United Nations. The EHRC was created in 2007 and joined up the work of three previous Commissions – the Disability Rights Commission, the Commission for Racial Equality and the Equal Opportunities Commission.

The EHRC is a body set up by the UK Parliament and the Scottish Parliament has no locus to amend its powers.

3. Mental Welfare Commission for Scotland (MWCS)

Role: Protects and promotes the human rights of people with mental illness, learning disabilities, dementia and related conditions. Dual role of looking into individual situations where an incident has occurred in mental health and learning disability services, and also working systematically to influence and improve law and policy to help safeguard people and improve services.

Organisation and governance: The Commission is a non-departmental public body, run by a Board led by a Chair. There is a legal requirement to have at least one person with lived experience of mental health services and one who has lived experience of being a carer on the Board.

Appointment: The Board and Chair are appointed by Scottish Ministers in line with the Commissioner for Public Appointments in Scotland's Code of Practice.

Staff and costs: There is a staff team of around 60 including a leadership team, engagement team, practitioner team and administrative and corporate team, including a legal team. Budget of £4.9 million a year.

Powers: Carry out statutory duties by focusing on five main areas of work:

• Visit people – in hospital, at home, in care homes and in prison settings, with approximately a quarter of visits to hospital unannounced
• Monitor the Mental Health (Care and Treatment) (Scotland) Act 2003 on a statutory basis and the welfare parts of the Adults with Incapacity (Scotland) Act 2000
• Investigate – reviewing individual cases where there may be deficiencies in mental health care and treatment to identify learning, particularly if other areas may be having similar problems or could learn from the case
• Information and advice – provide advice and information about rights and best practice in relation to legislation that informs mental health services - the Mental Health Act 2003, Adult Support and Protection 2007, and the Adults with Incapacity Act 2000
• Influence and challenge.

Legislation: Originally set up in 1960 under the Mental Health Act. Current duties embodied in Mental Health (Care and Treatment) (Scotland) Act 2003 as amended by the Public Services Reform (Scotland) Act 2010, Victims and Witnesses (Scotland) Act 2014 and the Mental Health (Scotland) Act 2015; and in the Adults with Incapacity (Scotland) Act 2000.^[41]

Individual cases: The law says that people providing care and treatment must let the Mental Welfare Commission for Scotland know if someone has been detained under the Mental Health Act, placed under compulsory treatment or if a welfare guardian has been appointed to make decisions on someone's behalf. The Commission's systems alert to relevant issues, and staff can inform the responsible professionals and the person concerned if they think there is a problem. This is one route to determining if a serious problem is identified, that might be followed up with a query, visit or investigation.

The Commission is particularly keen to investigate where they feel other people may be having similar problems, or where there have been mistakes that others could learn from so the same things don't happen again. The Commission can investigate by reviewing individual case notes and all files, and can conduct interviews with the people involved. The Commission will publish results and recommendations from investigations, and follow up with services to find out what changes they have made in response. It can escalate very serious issues that are not resolved to Scottish Ministers.

Planning and prioritising: The Commission finds out about potential cases through visits to individuals or services, following up on calls to advice line, or something in an individual's paperwork that concerns them.

Formal collaboration:

• Memorandum of Understanding with the Office of the Public Guardian (Scotland)^[42] which is part of the Scottish Courts and Tribunals Service and was established in April 2001 following the passing of the Adults with Incapacity (Scotland) Act
• Memorandum of Understanding with the Mental Health Tribunal for Scotland^[43] which authorises and reviews compulsory measures for the detention, care and treatment of people in Scotland who have a mental disorder
• Memorandum of Understanding with Healthcare Improvement Scotland^[44]
• Memorandum of Understanding with the Health and Safety Executive^[45]
• Memorandum of Understanding with Scottish Public Service Ombudsman^[46]
• Memorandum of Understanding with Scottish Government^[47]
• Memorandum of Understanding with Care Inspectorate^[48]
• Memorandum of Understanding with Scottish Social Services Council^[49]

Lived experience: The Commission has an engagement and participation strategy^[50], including how to involve people who use services and carers. There is a statutory requirement to have at least one person with lived experience of mental health services and one person with experience as a carer on the Board. A service user is included on all executive appointment panels.

The Advisory Committee includes members from 32 key national stakeholder organisations, including lived experience and carer organisations. The Commission also engages people with lived experience through visits as part of its policy work and guidance development, which involves meeting with people with lived experience and carers groups, focus groups on key topics. MWCS also employs four engagement and participation officers with lived experience, covering mental ill health, carers, autism and learning disability.

Examples of activities:

• Runs an advice line 5 days a week with 3,500 to 4,000 phone calls/ emails a year
• Runs a national visiting programme seeing about 1,200 individuals each year
• Produces guidance and advice notes
• Produces an annual monitoring report on how mental health and adults with incapacity laws are working regionally and nationally
• Produces themed visit reports on areas of care and treatment where there are particular concerns
• Investigates very serious cases where they have real concerns and there could be learning across Scotland
• Makes recommendations to Scottish Ministers and service managers to help shape policy.

Other information: A Memorandum between Mental Welfare Commission for Scotland and Scottish Government 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.

4. The Scottish Public Services Ombudsman (SPSO)

Role: The SPSO has four statutory functions.

• It is the final stage for complaints about most devolved public service organisations in Scotland (but not the Police).
• It has powers and responsibilities to publish complaints handling procedures and monitor and support best practice in complaints handling.
• It carries out independent reviews of decisions that councils make on community care and crisis grand applications.
• It is the Independent National Whistleblowing Officer, the final stage of the process for those delivering NHS services to raise concerns about the health services they deliver in Scotland.

Organisation and governance: The Ombudsman is a public official appointed on the nomination of the Scottish Parliament. The Ombudsman appoints staff directly, with approval of the Scottish Parliamentary Corporate Body.

Appointment: The Ombudsman is a crown appointment, nominated by the Scottish Parliament and appointed by the King, for a period of no more than eight years.

Staff and costs: SPSO has approximately 71 full time equivalent staff and has been growing. Total staff costs in 2020/21 were approximately £4.6 million.

Powers: The SPSO may investigate any matter following a complaint, provided it is made by a member of the public and is on a matter the Ombudsman is entitled to investigate. The Ombudsman can also take action to help with resolving the complaint.

If someone does not cooperate with an investigation, the Ombudsman can apply by petition to the Court of Session to deal with the matter as if it were a contempt of court. The SPSO can also declare the complaints handling procedure of a public authority to be non-compliant, give reasons and specify modifications.

Legislation: Powers are set out in the SPSO Act 2002.

Individual cases: The SPSO may investigate complaints made by members of the public, in relation to public services. It also has the power to take any action it considers appropriate to resolve a complaint. It receives more than 4,000 complaints about public services each year.

Each year the SPSO investigates around 30% of the complaints it receives that are within its jurisdiction. This is approximately 15% of all complaints.^[51]

The SPSO treats each complaint on its own merits. If the SPSO receives multiple complaints about the same issue, the Ombudsman may investigate a representative complaint, then use the findings and learning from that to inform what action they will take on other complaints.

During an investigation, the SPSO will gather about the complaint. The SPSO can talk to people, ask for information, ask for documents and seek expert advice. In the fields of health and social care the SPSO can also look at professional decisions made by clinicians and social workers.

The evidence is used to reach conclusions and make findings. If the findings identify service failing then the Ombudsman will make recommendations to address them. The Ombudsman shares the decision in a letter sent to the parties, of for more serious matters in a report which is put before Parliament.

Planning and prioritising cases: The SPSO has a triage system when complaints come in:

1. Can we investigate - is the matter within jurisdiction and raised by a member of the public about a public organisation

2. Should we investigate – could the issues be resolved without investigation, what has already been done, what more can be achieved for the complainer and could it affect other people or organisations.

Cases which are time sensitive are prioritised. At all stages, the SPSO tries to support the resolution of the complaint.

Formal collaboration: The SPSO has a data sharing agreement in place with the Mental Welfare Commission for Scotland which is a named body within the legislation in terms of information sharing. Members of the public are signposted to the EHRC from the SPSO website to understand their choices if they feel they have been discriminated against, and signposted to the EASS (Equalities Advice and Support Service) if they want more advice and information. SPSO can check what organisations did in response to complaints about being discriminated against, but is not a legal route to determine whether someone has acted unlawfully or breached legislation.

Lived experience: Through SPSO projects the Ombudsman engages with people with lived experience, and co-designs activities and plans. For example, the Child Friendly Complaints Officer worked with children and young people to create principles and approaches.

Examples of activities:

• Investigating complaints
• Making reports and recommendations on complaints
• Raising awareness of complaints handling processes and good practice
• Supporting public bodies to develop their complaints handling practice
• Developing child friendly complaints processes.

Other information: In some cases that meet public interest criteria, the Ombudsman lays the full report of the investigation before Scottish Parliament and publishes it online.