 Felly, wrth gwrs, ac wrth gwrs, wrth gwrs, mae'n gweithio'r gwaith i'w ddweud yng nghymru i'r Ffyniadau Ffyniadau a Gweithgwrs. Fy ffyniadau, rydw i'r Deirprifesol, yn gweithio'r Ffyniadau a Gweithgwrs yn fawr o'r ffordd yn y Gweithgwrs'u cymdeithasol yng nghymru a'i ddweud i'r ffyniadau ar gyfer 2021, a fydd yn gweithio'r ffordd yn gweithgwrs northfellegau yw leysig cywrwlaeth i drafodau cyllidol neu sefydliadau benthau sefydliadau i gyfleidiau cyrrydd mewn ddechrau, neu ysgolweddau prifisoedd. Rhywodd ddeliw i ddim yn teimlo, Lizley Fraser, leysig ymhygr frysgafol ac Ian Mitchell, leysig yr ysgolweddau, trofoddau i ethys â ysgolwedd. Ieithio weithio ar y cyrnyddiaeth yr ysgolweddau ysgolweddau i yr ysgolweddau, The evidence session will therefore focus on the lessons learned, actions taken, and progress made by the Scottish Government in response to the findings of three investigations that concluded last year, rather than revisiting the events that led up to them. We are in 90 minutes for this discussion. I welcome the Deputy First Minister and his officials to the meeting and also thank him for advance sight of his opening statement and would ask him to put these remarks on the record. Thank you, convener. I welcome this opportunity to appear before the committee today. In June last year, the Scottish Government set out its response to the review by Laura Dunlop, the investigation by James Hamilton and the Scottish Parliament harassment report. At the heart of those reports were complaints from two women concerning the unacceptable behaviour they experienced while carrying out their duties as civil servants. The Scottish Government apologises unreservedly to the two women we let down and it is only right to ensure that the lessons that we have learned are put into practice. In the development of the updated procedure for making a formal complaint about a minister's or former minister's behaviour, we are determined to build a culture and government where concerns are addressed early and where all those involved with a complaint have confidence and can engage constructively and fairly in the process. Since the publication of our response, we have put significant effort into engagement and updating the procedure. We have worked in Parliament with our trade unions and listened to those with lived experiences of bullying and harassment. Careful thought and detailed work has been put into the procedure's development, drawing on the three reports, findings, professional perspectives and lessons learned within the Scottish Government. During this time, we have also made progress on the wider context in which the procedure fits, investing in the routes to support and alternative resolution available to staff where appropriate. I am deeply grateful to all the people who have worked on and contributed to the procedure that we will discuss today. I believe that the procedure is fair and robust. It is crucial in helping us to build a positive and respectful culture with the high standards of behaviour, where productive working relationships are valued and nurtured, where bullying and harassment is not tolerated and, crucially, where there is trust in how matters will be handled if things go wrong. We have deliberately dedicated more time to engagement on this procedure, having listened to stakeholder feedback, including external perspectives. We are publishing our progress to Parliament as a first phase of improvement and part of a wider programme of work. We are presenting the procedure with a short period of time to offer a further phase of engagement with staff, trade unions and with Parliament before it comes into operation in February. Important as the updated procedure is, it is not in itself going to lead to the change in culture and behaviour that we want to see. That is a matter of continually improving. The improvements that are necessary go beyond the updated procedure. We have been responsive to this and have set out a comprehensive range of actions to apply the insights from the reports. The specific activities highlighted in the implementation plan are completed, but the work does not stop there. We will continue to apply insights from the lessons that we have learned to ensure that we build a positive culture that values inclusion and supports staff wellbeing. I can assure the committee that ministers are committed to fulfilling our responsibilities in building a culture of mutual respect between ministers and officials. Those relationships require on-going care and attention, being clear on standards of behaviour, promoting the best relationships and being open and honest at an early stage where there is a sense that relationships may be strained and where we may be in danger of falling below our own high standards. Above all, we need to ensure that we have a safe and respectful working environment. I believe that our work in the months since the conclusion of the inquiry and the reports has laid a strong foundation for this to happen. Thank you very much for that opening statement. In a relatively short statement, you mentioned on three occasions that lessons that we have learned are being put into practice. Obviously, I am well aware, as is the committee, that we are in the middle of a process, but what lessons have been learned specifically so far? The crucial lessons that I would highlight, convener, are, first of all, the need for them to be a clearly articulated policy approach for the handling of any complaints that should arise in those circumstances. A great deal of thought and care has gone into the consideration of what are the relevant issues and how should they be handled and expressed. That is in front of the committee today. As I stressed in my opening remarks, we have shared that with Parliament at this stage. It is not, in my view, the final product. There is still obviously space for us to reflect on any points that the committee raised with me today and also the on-going discussion with recognised trade unions and with staff. The second lesson that we have learned is the importance of ensuring that, should any issues arise, they are addressed promptly and early. Whether that is by means of informal resolution, which is one option in the handling of those matters, or if that is not practical and possible, we then have a policy, as I have just expressed, to which we can refer those matters and have them handled. Thirdly, we have to ensure that, at every stage of the process, there is the necessity for independent decision making to be undertaken. The last lesson is that we must all dedicate our energies to creating an appropriate and respectful working environment in which the relationship between ministers and officials is appropriate for all circumstances. Culture, again, was mentioned heavily in your statement and you said, I quote, We are determined to build a culture in government where concerns are addressed early and we are all involved with confidence and can engage constructively and fairly in the process. So, what difficulties were there prior to this process and where are we now in terms of changing it? The comments that I have put on the record are a recognition of what should be the expectations of everybody who is involved in the activity, whether they are a civil servant or a minister. The culture in which public office and public tasks are undertaken must essentially follow the style and approach that I have talked about in my opening statement. So, that essentially is the focus of our thinking and our activity. My contention would be that many of the elements and the foundations are deeply ingrained in the operation of the civil service and of government today, but we must make sure that it feels like that for absolutely everybody, which means that in all circumstances that has to be the experience of individuals who are working in this environment and that is what we are pledged and committed to ensuring is the case. Throughout the process, what steps have been taken to ensure that it is with a lawful and conforms to natural justice? Those are essential elements of the character and nature of any policy approach here. Essentially, we have addressed that. It is critical that both of those tests or both of those maxims are properly followed in the way in which the policy is exercised. To achieve that, we have sought detailed advice on both the perspectives of employment law and public law. There is not always a neat compatibility between the requirements of employment law and the requirements of public law, so there is a need to reflect on both of those streams of thinking in arriving at a rounded policy approach. I have presented to the committee today—in my judgment—an approach that takes due account of protecting the employment rights of individuals but also of ensuring that those are handled within the appropriate public law environment that allows natural justice to be properly taken into account in any aspects of the decision making. For example, there is an appeals mechanism in this policy that might not be present to the extent that it is present in this policy within an employment law situation, but to take it due account of the public law issues, I consider it to be safer to have that appeal mechanism to the degree that it is in the policy to essentially address the fundamental issue that you put to me, convener. In terms of the procedures for making a formal complaint, there is no time limit for complaints of harassment, but it is six months for bullying, so why the difference? Essentially, to recognise that in relation to the issues of harassment, they may potentially take longer to get to a position where an individual is able to address those issues and to come forward to raise concerns, whereas the issues in relation to bullying or to any other behaviour that is judged to be unacceptable, my view is that there is the ability to address that in a timious fashion, because that is going to have a direct bearing on the ability of tasks and functions to be exercised appropriately and effectively. Why did you decide six months as opposed to three months or a year, for example, is there any specific reason? I think that ultimately, convener, there will be a judgment about what is the appropriate timescale. Three months feels to me to be abrupt. A year feels a bit too long, so six months felt like an appropriate judgment to come to that conclusion. The definitions of bullying and harassment are detailed in the ministerial code and to staff working with ministers. Clearly explained to ministers and civil servants, and will each be updated as the continuous development of the procedures? It is important that there is proactive engagement with staff and with ministers on essentially what is the appropriate culture of mutual respect that needs to be undertaken. I would address the question in a different fashion, convener. I would address it by the proactive work that is being undertaken. We saw that with the ministerial induction programme that took place post-election to ensure that ministers were made aware of what was expected of them in terms of their conduct and their behaviour, and in the way in which the wider roll-out of the culture of mutual respect that we believe to be essential is rolled out with staff is undertaken in a way to promote best practice rather than to work by definition in the fashion that you put to me. My response to that point would be to indicate that we need to invest our energy in creating, ensuring that there is a culture of mutual respect between ministers and staff, where productive working relationships are valued and nurtured and that we are all aware of what good practice is, and we follow that at all times. It is clear that all parties involved in the process are expected to maintain confidentiality at all times, including when the process has concluded yet the rights of staff are protected from detriment if they have made a qualifying disclosure known as whistleblowing. What constitutes a breach of confidentiality in what is considered to be whistleblowing? Whistleblowing would be essentially the entitlement of members of staff to raise their concerns without fear or favour to then enable those concerns to be addressed, which that policy is designed to do, if necessary. The requirement to maintain confidentiality is about creating an appropriate climate in which, in a trusted, respectful environment, genuine issues can be properly aired, addressed and resolved. The procedure will consist of potentially five stages. One is the initial contact and assessment. Two is the investigation. Three is the decision. Should the decision be found against the minister in question, employer action and potentially an appeal, given the undoubted stress on both sides of such a process, what steps will be taken to ensure that a robust process is carried out timmiously and that each case is different, what sort of timescale is envisaged for completion of the process? It is difficult to be absolutely precise, but essentially the steps of the process are set out in a fashion to encourage the swiftest movement through each of the stages, giving appropriate time to individual parties to be able to formulate their views. For example, in the initial contact and assessment, where there is a judgment formed within government as to whether or not a complaint that has come forward is within the scope of this policy, that is envisaged to be a process that would be undertaken very timmiously indeed. An individual member of staff would not be waiting a long time to hear whether or not the issue that they were concerned about was going to be considered under the auspices of this policy. Each stage is designed to move at pace, because I do not think that it serves the interests of anybody for there to be anything other than a swift addressing of any issues that emerge. For complaints that are not upheld, that could include actions to resolve remaining issues informally or other management actions according to the procedure, so what sort of actions would be contemplated? It is difficult for me to be precise, but I refer back to the desire to create a mutually respectful environment between ministers and staff, so specific and appropriate steps to ensure that that approach was being applied in all circumstances would be at the heart of any remedial action that was required under the exercise of the policy. Lastly, from me before opening out to colleagues around the table, you wish to have this process in place more or less but not fully by the end of this year. Why such a long time? I realise that culture may not change, but surely processes can change a wee bit more quickly than that. My proposal is that the policy process is in place by the end of February 2022, so it will be at the end of next month, providing that we are satisfied that we have addressed any issues that come from the further round of consultation and dialogue that we are undertaking. There is a range of other aspects in the schematic diagram that has been provided to the committee, which shows other work that is under way to tackle some of the deeper cultural questions that we want to make sure are applied across the organisation, and that will take a bit longer. However, the policy process will be in place by the end of February, providing that we are satisfied that we have addressed all the issues that are raised with us. In the schematic that you referred to, it says that build, complaint and investigation capability to ensure confidence in those participating won't be achieved until December of this year, similarly with staff training on grievance policy and best practice refresh, etc. There are still a number of steps. Beyond December, there are other issues to be addressed, such as the review of the process of the use and cleaning propriety and ethics. Do you envisage that the process will not end as such? It will be about continuous development as we go forward? That has to be part of our approach to ensuring, on an ongoing basis, that we are a good employer that is following all the best practice and that we are putting those arrangements in place for the experience of all staff and ministers. I am sure that colleagues will want to explore in more detail some of the issues that we touched on already, but we will open out the session, first of all to Liz, to be followed by Daniel. Thank you. Good morning, Mr Swinney. I have two points of clarification, if I may, first. In an answer to the convener, you mentioned that, following the election, the ministers went through an induction period. Could I ask who carried out that induction? It was carried out by civil servants within the Scottish Government. I ask for clarification on the appeal process should that arise. You are mentioning that, if there is to be an appeal, there would be an external person who has no involvement with any aspect of the complaint. Who would make the decision about the appointment of that external person? That decision would be made within the management function within the Scottish Government. The Scottish Government has to essentially handle the administration of the complaint, if I could perhaps use that definition, but that is literally an administrative handling function, so it will be within Ian Mitchell's property and ethics team, where they will be apportioning any case to a panel of external investigators and adjudicators. We are recruiting, correct me if I'm wrong, five external adjudicators and five external investigators and five external adjudicators. From that panel, the Scottish Government property and ethics team will select individuals. Crucially, at each stage in the process, the same person cannot revisit any detail of the stages. If it came to an appeal, for example, that would be a different individual that would be selected to handle the appeal to an individual that had taken an earlier decision in the case. Would you agree that that process is absolutely crucial when trying to ensure that there is trust? It is vital that everybody who is involved has trust that the system is robust and that, should there be an appeal, that external appointment is completely objective and not being involved and not biased at all? I think that it is crucial at every stage of the proceedings, not just at the appeal stage. In looking at the stage of investigation, that will be carried out by an investigator. Their report will then be passed to stage 3 to a decision maker who will be a different person. If there is to be an appeal, that will be handled by another entirely different person. It is recognising fundamentally the importance that there should be no prior involvement in any stage of any proceedings, as those issues are properly addressed, to certainly address the issue of trust, but to guarantee the issues of independence and transparency as well. I think that that would be very welcome because I think that there is an issue in politics, not necessarily to do with the Scottish Government at all, but there is an issue in politics about trust and ensuring that the public can have trust in a political process where somebody has clearly been guilty of alleged offences when we are another. The public trust is absolutely crucial in politics. I think that we are seeing that playing out in various domains at the moment. If I may, I may ask either Lizzie Fraser or Rene Mitchell to come in here just to perhaps set out the process that is being undertaken to recruit that panel of five independent adjudicators and five independent investigators. If Ian could maybe provide some detail on that. As was said, a key feature of this is that there is external independent investigation of the case and that the decision maker is also independent. That has been a central feature of the scheme. We looked at various options as to how we achieved that independence. We decided to go down the public appointments route to a point against a number of criteria. A pool of investigators and a pool of decision makers. The reason for the pool is an obvious one, the point that you made about needing to be different people. They were interviewed by a panel, including non-exec directors and trade unions, where they were involved in that. A central feature of that continues to be a central feature. We are still doing employment checks to ensure that they can be as impartial and independent as possible. Clearly, in Scotland, there will have been contact in the past with MSPs, ministers and public life, but we are quite clear in the guidance that there should be no prior involvement with any aspect of the matter being raised and no association at all with the person making the complaint. That is an administrative judgment, as Mr Swinney put it, that Scottish Government and propriety and ethics will retain. We will ensure that people selected from the panel have that necessary independence. We will not, as Scottish Government, be involved in aspects of establishing the facts or coming to a conclusion on those facts. Thank you, Mr Mitchell. I think that that is very welcome too. Obviously, there are some people who have been in a situation where they feel that they have been harassed or bullied or discriminated against. It is very important that, for them to be able to come forward relatively quickly, that there is trust, that there is that independence line. If that is not felt to be there, then it makes it all the more difficult for them to come forward. Mr Swinney, I have one further question in stage 4 of the report. You mentioned whether there is a complaint about a former minister. If it is an upheld permanent secretary or delegate, we will consider steps to review the practice, etc. That may include sharing structural lessons with the First Minister. Could you just expand on what is meant by structural lessons? I was not quite sure what that was. It may be identifying any aspects of procedure or working practice that perhaps needs to be addressed as a consequence of any case that might emerge. That is about essentially putting the onus on the point that I was referring to with the convener earlier on, of constantly improving the way in which we are operating as an organisation to ensure that no opportunity to learn lessons is missed in the handling of any particular issues. To be absolutely clear, is that about the structure of the process or about the actual process itself? It is about any aspects of working practice, I suppose, would be the best definition to use for that. Daniel Stewart, to be followed by John Swinney. Thank you, convener, and apologies for not being able to attend in person this morning. Can I begin by asking about how this policy will be reviewed and maintained? By its very nature, it is one that one would hope is seldom used. Indeed, it is one of often the situations whereby those things are left on the shelf and, therefore, sometimes, they can be a creature of their context and time. Therefore, it is imperative that it is proactively reviewed and renewed on an on-going basis to ensure that it is appropriate for its current time. Can I ask what thought has gone into that and how this procedure will be reviewed on an on-going basis? Mr Johnson raises a fair point. If, as I hope, this policy is seldom used, I would like to hope that it was never used, but I can simply express that hope that we have a culture that avoids the necessity to use such a procedure. If it is even seldom used, there is a risk that it is not given the necessary focus of review. Part of what we are building into the work that is undertaken is essentially a focus on continuous improvement, so that we are identifying, through our dialogue with staff trade unions and staff representatives, any issues that are emerging, given the fact that there is such a volume of open dialogue and communication around some of those policy approaches. That is an appropriate point for me to express my thanks to the staff trade unions who have contributed a huge amount of time to helping us in the development of the policy approach. One of the lessons that we have learnt is the importance of ensuring that we have that open, constant channel of communication to ensure that we have the right policy approach in place, and that is basically the focus of the work that we undertake to review the policy. Thank you. My second question very much focuses on what the outcome of this process would be. I understand that the focus of this procedure is about establishing a fact and doing so in a transparent, robust and independent way. I wonder whether it is purely focused on the narrow outcome of establishing a fact and to what extent there is a need to also establish severity and seriousness, and whether that is contained within the process sufficiently. I think that that issue is addressed at all stages of the procedure. However, it is particularly addressed at stage 4. As a serving minister, I would be horrified if I were to be involved in this policy—horrified, mortified and various other words that I would use. There is a necessity at all times for ministers to operate in a respectful fashion. If we get to stage 4 of the procedure, it is very clearly delineated of the relationship between an outcome of the process in which a report comes forward that might find fault with the conduct of a minister and the relationship to the ministerial code. I know that there is an awful lot of debate just now about the relationship of the conduct of ministers and the relationship to the ministerial code, but, as a serving minister, I consider, on a constant basis, the necessity of acting consistent with the requirements of the ministerial code, because I know that that is the standard to which I will be judged. Hence, why this policy has to establish that relationship to the ministerial code. I do not want to get into all the other debates that are going on elsewhere, but this goes back to the point that Liz Smith made to me. There has to be accountability around the conduct of ministers, and that is driven by the ministerial code. Therefore, a complaints handling process has to have a relationship to the ministerial code and the exercise of the terms of the ministerial code in relation to the conduct of ministers. I thank the Deputy First Minister for that answer. I completely accept his sincerity in what she says, but I wonder if that is in a sense that the key tension within the process. Ultimately, the decision-making regarding whether the ministerial code has been broken will be delivered by either the First Minister or the Deputy First Minister for a serving minister. There are three issues with that. First of all, it is almost impossible for a serving First Minister to deliver a decision upon one of their own ministers without the pressure or the filter of political reality to enter into that decision-making. Therefore, I wonder whether that makes the independent decision-making, which, again, the Deputy First Minister correctly identified as being important to this, but it is not that exceptionally difficult. I wonder whether that places too great a pressure on the decision-maker. Secondly, there is an issue with that. Those processes are required to be robust and transparent, but they are also seen to be. To the extent that a First Minister is essentially making that final decision on one of their own ministers, whether that is possible for it to be seen by the public to be robust. Finally, the third issue is that recommendation 10 from Llyridonlock QC was that the complaints against former ministers should be investigated and adjudicated independently. I wonder whether or not the final decision-making about the breach of the ministerial code, which ultimately is an adjudication, is not independent at that point and whether that is a flaw. I understand why, ultimately, you may wish and the decision may be that the First Minister, because of the democratic process, has to be the final decision-maker or the argument for that, but I wonder whether those three flaws are issues and whether or not the procedure adjudicates them. I would not describe the three points that Mr Johnson has raised as flaws. I would describe them as three essential points at the heart of the conduct of ministers and the way in which ministers are expected to act. Ultimately, ministers only hold office because they are appointed to that office by the recommendation of the First Minister and the appointment of—and the vote of Parliament and, obviously, subsequently—the approval of Her Majesty the Queen. Fundamentally, it is the First Minister's appointment of individuals. The ministerial code is anchored around the choice of ministers being at the prerogative of the First Minister and, therefore, the First Minister to judge, ultimately, the suitability of an individual to be a minister. That is why the policy and the ministerial code need to conjoin at some point, and they do at stage 4. The decision-making in this process is entirely independent, so there will be an independent—assuming that our complaint goes forward—investigation that will be an independent decision and a report. In such circumstances, we will be passed to the First Minister who is the person charged by the Scottish Parliament to select ministers. There has to be that relationship. The question of independent adjudication of outcome is incompatible with the process of ministerial appointment, because ministerial appointment has to be by virtue of the decisions of the First Minister and, obviously, the expectations of the First Minister about the conduct of ministers are set out in the ministerial code. It is designed to ensure that we can have a completely independent process. When it gets to the point of reaching the First Minister, there has to be a relationship to the ministerial code, which is intensely understood by all ministers as being a requirement on them about their personal conduct. I will probably leave my questions there, but I thank the Deputy First Minister for his answers. Thank you very much for that, Daniel. In fact, that was the first question that I was going to ask as well, but when I thought about it, I thought, well, ultimately, you are absolutely right, the First Minister will appoint him. If a minister has broken that code and we seem to do so or indeed been involved in some of the issues that we have already discussed, the likelihood of them being able to survive in post is zero, I would have thought. Let's move on. John, to be followed by Douglas. Thanks, convener. I mean, maybe I can pursue that a little bit further, because I was also thinking on those lines, because I did wonder what talks about the First Minister or the minister's side on the appropriate response. Later on, it says, the First Minister may wish to consider any lessons relevant to ensuring awareness, which at first reading struck me as a bit weak. I take your point that it is the First Minister's decision, but ultimately, I suppose that it would be right to say that Parliament has a kind of ultimate decision on this, because I think that you yourself have experienced the concept of a vote of no confidence. So, I mean, if we... Unsuccessful. Absolutely, yes to me. But ultimately, if there was a blatant case and it was found by the external system that somebody had been guilty of something, the First Minister, at the time, ignored that or whatever. I mean, Parliament still could come in at that point, couldn't it? Yes, of course. Yes. So, ultimately, it's not really the First Minister's final decision, okay? I mean, as a more general question in your opening statement, you talked about the culture and the convener quoted that, talking about having confidence and that people can engage constructively, and later on, you talked about having a positive culture. I mean, can you say how far away are we from that at the moment? I think that we're in a good place. I think that we have got a good working culture within the Scottish Government. I think that the environment between ministers and civil servants is appropriate and respectful. I think that the Scottish Government, and this is about the actions of the permanent secretary and his team, which is their proper responsibility for the creation of the working environment—I'll maybe ask Leslie Fraser—to talk a little bit about that as the director general who leads on those questions. Fundamentally, I think that there is a good respectful working environment. There is respect for the respective contributions of ministers and civil servants. There is an understanding of and a respect for the fact that civil servants will advise, but ministers will decide and that advice is provided in that context and that there should be no anxiety about the testing of advice to ensure that we are focusing on the real, clear, substantive issues that need to be addressed to ensure that the Government can take good decisions as a consequence. Leslie Fraser, you might wish to say a little bit about that. Yes, it's a fundamentally important point, and it's something that we keep under a very regular review as well. We have an annual people's survey, for example. The vast majority of civil servants report that they feel that this is a respectful and good place to work. Most civil servants feel that they can challenge in this environment as well, and we have seen those people's survey scores increase. I am not at a place where I would say that I am absolutely satisfied that we are there yet, but there is definitely more work to do. That is why we are looking across the piece at all the culture, the systems and the business practices that can help and support that. Just in the course of the last year, we have been rolling out training and awareness for managers and for all of our staff, recognising areas where we can see that there might be areas for concern and particular groups of staff for whom that might be more difficult. As the Deputy First Minister has already said, the induction process that we have brought in for all ministers coming in after the election has been really important, and that has been much more extensive than we have done in previous years as well. We have made structural changes, so my own post actually, as Director-General for Corporate Matters, is new, and that is to offer that additional place where all those matters can come together without the permanent secretary being the sole point at which all those matters would be handled. The creation of Ian Mitchell's new directorate in propriety and ethics is also a recognition. We have looked at other aspects of our governance and brought in external advisers to support me in some of the decision making in that, too. We are really looking at all the different aspects of culture, the systems that we have in place and how we operate the business with that process of continuous improvement in mind. That is helpful, thanks. Some more specific points, if I may. In your letter, Deputy First Minister, you talked about further engagement, including the committee, and you specifically mentioned trade unions and what you have already said, that trade unions have been involved. Are the trade unions, is it fair to say, happy with this? Yes, they are supportive. When we published the proposal of trade unions, it made clear that their public support for the policy asset has been developed. I have other accountabilities that I have Parliament to think about, so it is important that Parliament is able to express any views that it wishes to express and, obviously, where Parliament through the committee to provide us with other issues that the committee judged should be addressed, then, obviously, we take those away and discuss them further with the trade unions. Under the heading where parties involve maybe the victim of a crime, it talks about no pressure will be put on a complainer to make any particular decision if they do not want to tell the police they do not have to, and then it goes on that the Scottish Government may have the obligation to bring the matter directly to the tension of the police. I just wonder if you could explain a little bit about how that works, because I do not quite understand. Essentially, as an employer, the Scottish Government is not under a duty to report, perhaps the best way to express it, but it is not under an absolute duty in all circumstances to report matters that it believes may be a crime to the police. It is not under a statutory duty as an employer, but I would consider that the Scottish Government, for the purposes of ethics, if it considered it had knowledge of a crime, having potentially been committed, would have to give very serious consideration to referring that to the police, even if an individual who was a member of staff who was perhaps a victim of that alleged crime did not want that to be the case, because I think that as the Government we have a particular duty to uphold the rule of law, and in those circumstances I think that we have to be candid with staff that, although staff may say to us, we do not want this to be, I do not have space in my life for this issue to go anywhere near the police, the Government has different considerations that it has to think about and has to reconcile in that issue, and I think that it is under an ethical duty to give the deepest consideration to whether it is appropriate to do so or not. That would largely be a case-by-case basis, as to how serious it would be. Absolutely, absolutely, yes, yes, no, that is fair, thanks. When it talks about, well there are different stages and processes, but it talks about the complainer informing them that they may be accompanied by a trade union representative or work colleague. It did strike me that there is no space there for legal representation at that point. Could it be a lawyer that they brought along or would that be the trade union's decision that they might as part of their team have a lawyer involved? We are anxious to ensure that this is handled very much within the space of employment practice if an individual wishes to pursue some form of other grievance against the organisation, it may be appropriate for them to have legal representation, but the setting of this policy is very much within the context of an employment-related activity in which support for the employment position or the personal position of the individual is the prerequisite of the support that has been identified. If they wanted to bring a lawyer along… I suppose that there is nothing to stop them from bringing a lawyer along, but fundamentally we are trying to set this within the context of the resolution of the issues in an employment space rather than in a legal space. My final question is in the table towards the end. It talks about an updated version of the ministerial code within three months of publication of the procedures. Is that still a target? There is a natural sequence to the things that we have to do this part of the process to set out what is the approach to complaint handling, and then that has to inform to whatever extent is judged appropriate the revisions to the ministerial code. I want to talk a little bit more about the timings of a complaint. It is quite clear from the procedure that, if it is made within six months of an incident, it will be investigated, but it is more of its over-that-six-month period. From reading the procedure, it is not clear to me who decides whether it should be looked at or not. If it is decided that it will not be investigated because it has been too long, does the appeal process kick in at that point as well so that the complainer can then take it further, if they wish? What we have tried to do at different stages in the procedure is to put in time factors to suggest pace and momentum around about it. Fundamentally, the issue that Mr Lumsden raises with me is a matter for stage 1, which I view to be a pretty routine administrative exercise to determine whether the complaint is within the scope of the policy as defined. If it is, then it proceeds. If not, then there is a designated process, again quite swift, for there to be engagement with the complainer to set out why it is judged not to be within the scope of the policy. That is a moment at which, in the administrative process of the Government, if we have missed something, the individual will be able to raise that. That is a sort of appeal where, at the very beginning, if an individual has been told that we do not judge that to be within the scope of the policy, they have an opportunity for an early conversation to say, well, actually, I disagree with that, and this is why I disagree with that. Obviously, there is the opportunity to revisit those questions, and it could perhaps lead to consideration. We have put in certain timescales about the nature of complaints, as the convener raised with me earlier on, of a time limit and no time limit. That is simply to try to ensure that we are being respectful to members of staff and the issues that they may wish to raise, but also that we can ensure that issues are resolved as quickly as possible. In terms of if it is over the six-month period, who makes the decision whether it will be investigated or not? In the early stage of whether it is within the scope of the policy, that decision will be taken at that very early stage, but the member of staff would have the ability to challenge that in a subsequent follow-up discussion. Who makes that decision? It will be within E-victures, propriety and ethics team. The second question was about in-word succondes and agency workers who are not covered by this procedure. I understand that there are reasons for that. They are not employed by the Scottish Government, but are there legal reasons why they cannot be covered by this procedure? I am just thinking that there is bad behaviour, whether it is towards an employee or an agency worker. I am just trying to think whether, as an example, a loophole has been created here by excluding those workers. I do not think so, but I will reflect on that point because I agree with Mr Lumson's fundamental point that bad behaviour is bad behaviour in whatever circumstances it manifests itself, so I will take that point away and reflect on it. My view would be that we are essentially following the lines of employment. That is essentially an employment policy about our employees. If there is a member of contracting staff who is temporarily in the organisation who has an experience that they want to complain about, I would suggest that that should be taken forward by their employment channel, whoever is managing their contractual relationship, and it can be resolved in that way because that may well be a contractual relationship between the Government and that external party. However, I will take that point away to consider it further. Thank you for that, Mr Swinney. The other question that I had was about the openness and transparency. From reading the procedure, it seemed to me that a complaint could be made, it could be upheld, but that would never be made public. Do you think that that is right? I guess that it is difficult because there is confidentiality on the behalf of the complainer and the person that has been complained against that we have to respect, but it seems to me that there is a balance there and I am not sure if it has been struck. That is frankly the dilemma. There are many, many legal considerations that we have to focus on here, one of which is our duties in relation to GDPR, which obviously applies very significant obligations on how we handle information internally. In a sense, Mr Lumsons question sort of airs the dilemmas on this particular question, but having looked at all of the various obligations, I think that the way in which the policy sets out this position is that it takes due account of all of those issues. I guess that we ties into that. At the end of stage 1, there is going to be no the complaint that is not going to be proceeded with. Does the person that the complaint has been made against ever find out that there was a complaint made against him, or not? If it is not proceeded with following stage 1, then no, they do not. Thank you very much. I just got a point of clarification that I started off with on the process for potential updates to the ministerial code off the back of that. The progress report paper that you submitted to the committee mentions that James Hamilton and Ailish Anglennu will be asked from March to consider potential changes to the code. It does note that the timescale for that will very much be dependent on their availability, but does the Government have an indicative or a preferred timescale on which they would expect to receive a response from both of the independent advisers? We hope to be able to operate within the timescale that I have set out, but I suppose that I have to accept or insert the caveat that we are dependent on a lot of dialogue with external parties, which may not come in as in the timescale that we envisage, but I will obviously keep the committee updated about progress on those questions. The timescale that was outlined is that, by June, the intention was to have asked them in March to have received a response for consideration by June. We hope to be in a position to complete any issues in relation to the ministerial code within three months of the publication or formalisation of that policy. I hope to be able to formalise that by the end of February, subject to the various views that we want to listen to and then take the three months to resolve any issues with the ministerial code. I am following up on John Mason's point about engagement with trade unions. It sounds like that has been very good and it has absolutely had the desired outcome. I wonder if there was any engagement with those who specialise in representing marginalised groups or those who are most likely or disproportionately likely to be on the receiving end of inappropriate behaviour, so I am thinking, given the context of how we have ended up in this situation, groups such as Women's Aid or, in a different context, the equality network enable those organisations who specialise in representing particularly groups or characteristics that are protected under the equality act, has there been engagement with any groups such as those? We have a number of, obviously within our staff members, we have a broad range and indeed it is an active recruitment priority or a personnel priority on the part of the Scottish Government and maybe I'll invite Leslie to say a little bit more about this because it's in civil service territory to make our employment as diverse as we can. We have a number of networks within the organisation with whom we discuss staff matters regularly, conducted through civil service channels and a huge amount of energies undertaken to ensure that dialogue is appropriate. I'll maybe invite Leslie to say a little bit more about that. We have involved the staff networks just as the Deputy First Minister is describing and their inputs have been incredibly important to us as well. I would also like to pay tribute to all of those who have contributed their own personal experience having been involved in any of our processes and procedures previously. That direct experience has absolutely informed the way that we have developed it. DFM is absolutely right. We have both race and disability recruitment and retention plans, for example, in place, which both aspire to ensure that the organisation of the Government fully represents the diversity of Scotland and for us to be successful in that then the culture and the environment needs to be a place where everybody can bring of them their whole selves and really thrive and the degree of openness and transparency that we're endeavouring to embed within this procedure here is absolutely at the heart of that kind of approach and ensuring that we're regularly in touch with our trade unions are fantastic and absolutely ensure that they are also listening to those most likely to not be receiving that kind of appropriate behaviour and ensuring that we're hearing through that route as well, but we're looking for all of the different ways in which we can really increase our understanding and then make appropriate responses precisely through procedures like this. Just for the sake of putting on the record, could you just confirm which staff networks were involved in the process? I'm aware that the Scottish Government, the civil service staff network for LGBTQ people is very well thought of, but I'm not personally familiar with which other staff networks are active and engaged. Two things there that we're currently working on, quality impact assessment, and as part of that, there are meetings to be planned with all the equality networks that protected characteristic groups and also outlier offices as well because it's often the case that a culture in a central part of any organisation can be different from from outliers. So that work will, those specific meetings with the groups I've just mentioned will commence you know after this initial phase of scrutiny. My understanding is I'll check it that there has been meetings and engagements with women's aid network, but I can clarify that further. Last but not least, give the committee a definitive list of that dialogue. That'd be very useful, thank you. That's all the questions I have for now, convener. Thank you, Michelle. Thank you. Third time lucky, I've got four all slightly different areas, but I actually added an extra one because I want to go back to a point that John Mason made earlier about making a police report and I realise it depends on the circumstances as to the nature of the issue. Where it concerns something to do with sexual impropriety or worse, I am very clear that people make a complaint because they want to be heard, not because they necessarily take the steps to say, and this is going to end up in court. I suppose my question to you is, what active consideration have you given that that could actually have a cooling effect on complainants, completely the opposite intention? I think that this is a very difficult question, but I have to air it. I think that there are dilemmas here, but what I have to air is the dilemma for government, because if government comes into the possession of information that suggests that there may be the possibility of criminality, I think that the Government has to consider very carefully whether or not, given its special role within society, because fundamentally I think that we all believe in the rule of law, the importance of government acting within the law and supporting the exercise of the functions of the law, that the specific position of government is recognised as putting an obligation on government to consider how to address those issues. Although I completely understand the point that Michelle Thomson puts to me, there also has to be an acceptance of the particular obligations that apply to government in considering issues that may have an issue of proximity to the exercise of the rule of law. I press on this a little. We know and I know that loss of control over the situation by many will be regarded as further abuse. Although I fully accept what you are saying from the point of view of government, to go back to the term ethics would require equal consideration of both sides. The other point that I would make is that, in a circumstance such as that, the evidence tells us that there can often be a loss of cognitive capacity where there is high emotion running. There is also a risk to the Scottish Government in taking the initial evidence where that may be the case without necessarily saying, you do realise that this week would make a police report that actually diminishes the chance of a successful or consequentialist ethical outcome. That is why, in my answer to John Mason, I indicated that a judgment has to be arrived at on a case-by-case basis. I am not in any shape or form sitting here saying that all matters must be referred to the police. I am expressly not saying that. I am expressly saying that we have to give consideration to that question on a case-by-case basis. In that judgment, we have to be aware of the particular obligations that government carries to exercise its functions in a transparent and open fashion, given the information that may come into the possession of government. I fully understand the position that you are giving from a Government point of view, but I personally think that it would be beneficial to sit down and look at it from the exact opposite point of view. I will take that point away and consider whether we have the balance of that thinking correct. I suspect that I come at this from the perspective of thinking and to what extent will there be a public expectation on Government to act in the fashion that I have talked about because of the role of Government, but we will give consideration to whether or not our thinking on that is in the right space, given the points that Michelle Thompson has put to me. I suppose that it is about agency for victim space. I understand that. Another thing, just quickly going back to culture, I mean obviously Leslie, the points you set out, culture change is the hardest thing to change in any organisation that habitually takes years and is well understood in programme management. The things that you have set out are values-based frameworks and staff training and all the rest of it. That has been covered very well, but just one point that I wanted to bring out is that I have not heard of reflection yet on changing culture within a hierarchical organisation that has particular considerations when you link it to balance of power. It may well be a realise that it is bordering on the slightly technical or it may be better for yourself to answer, but I like some reflections on the specific consideration of where you have a strict hierarchy as exists in the civil service. Whoever wants to… The hierarchy is not just exclusive to the civil service. I am very struck sometimes about the obvious signs of anxiety that some civil servants might have of having to appear in front of somebody as mild-mannered as me. I try to take account of that and how I am dealing with issues, because it can be pretty obvious that people are quite anxious about what lies ahead of them. It is important to be part of that culture to understand what is the effect of the interaction of people who are in different positions in the exercise of power and responsibility. Fundamental to that is a respectful environment. I do not know whether you want to add from… The really important points, particularly in a large and hierarchical organisation like the civil service, we have addressed that in a number of different ways. We started training at the top, so understanding the kind of impact that the Deputy First Minister has been setting out. Similarly, that can apply to senior people in positions like mine. We have also created a number of routes that people can go for assistance and advice and to air concern that is not just their line manager or their own area. We have an external employee assistance programme, for example. We have created propriety and ethics and we are not keeping them in a corner at all. It is something that is very open. We have explained how it works. We have explained that anybody who has got a concern that does not really know what to do about it can approach colleagues in Ian's team and get that bit of initial advice at the outset. There are a number of different routes that people have that are not to do with the hierarchy, as they were. Fundamentally, that is really part of that continuous improvement programme and just really making sure that we are using all of the different levers and all of the different mechanisms to explain the organisation that we want to be and to put those practical steps in place that will help to reinforce that change and that improvement. As I say, we are not coming from a bad place as an organisation. Most colleagues, seven out of ten, would say that they feel that it is safe to challenge, but that leaves us an absolute act for improvement. That is what we will continue to monitor and continue to get that informal feedback through all of those different routes that we have been discussing as well. Carrying on to a slightly different area, I wondered within the process and also in the culture that we have been talking about what specific considerations you have given to the complexity of having special advisers as civil servants. What consideration have you given to the kind of a slightly special challenge in terms of a role-type? Most special advisers come in through a political route and then become civil servants, which obviously have different obligations. It seems to me that that is worthy of additional consideration and reflection. I am just wondering what you have done in that respect. There is obviously a special adviser code. That is a code that essentially channels considerations about special advisers with a few unique elements added on to it through a civil service channel. Specific advisers are temporary civil servants, but they have, in addition to those, obligations of civil servants and rights of civil servants in the way in which they are handled in the employment sense. They have a couple of additional obligations and opportunities, which are around the space of political engagement that civil servants will not have. That is all regularly done by the special adviser code. I think that the issues that affect special advisers are fully and properly considered by the nature of their code, which channels them essentially into the civil service grouping. Last question. It is a wee technical thing. Within the process, how much active consideration have you given to managing the waiting of evidence? We know that contemporaneous third-party evidence carries much higher weight than evidence that is brought out at a late period, but it is quite complex and technical in terms of risks. Within the processes, do you have people given that active consideration? It is quite complex, and it does skew results. The important point is that there is the obligation within the policy that all matters have to be handled fully and independently. Essentially, the judgment that will be available to address the issues that Shertons has put to me are contained within the freedom that is given to investigators to look at all the material that is put before them and for a separate adjudicator to consider all those questions. Without us prescribing waiting or expectations about how that will be handled, we are recruiting individuals who we think will be able to do justice to a proper investigation and to a proper independent adjudication of a case before it proceeds any further. With those caveats, we essentially leave it to the professionalism and the judgment of those individuals to inform the proceedings as a consequence. I expect ease as well, of course. Okay, thank you very much. That appears to have exhausted questions from the committee. I have just got a couple to finish off with. One is that the cabinet secretary is a follow-up to a response that he gave to Douglas Lumson when he said that if a complaint against a minister is dismissed at stage 1, which is initial contact and assessment, the minister concerned will not be informed. How, therefore, will you deal with potentially malicious complaints against a minister? I would say that that would be addressed by the fact that the complaint went no further than stage 1. The complaint emerged and the judgment was that it was outwith scope, so that would be subject to the caveats. I put on the record to Mr Lumson about the engagement with a complainer. If that did not produce any different outcome, that would be an end to the matter. I do not expect that that would transpire, but if it actually did in theory, there would be no action taken against someone for that. Anyone can bring any case in theory forward. It is a hit or miss, so to speak. Part of that is about acknowledging that we have to have an open culture to hear the concerns of people and to have a process in place to be able to handle and to judge those complaints of what varying degree of seriousness they happen to be. If a complaint is judged not to be one that warrants further examination, subject to the caveats that I put on the record earlier on, that would be the issue judged to be resolved and the issue addressed. If a minister has concerns about an individual member of staff, how would that be progressed? If a minister has concerns about the quality of a member of staff, they are very clearly encouraged to raise those with the civil service contacts that ministers all have so that those questions can be considered. There is a clear, well-exercised delineation between the engagement with ministers and civil servants on policy matters and the business of government and the employment status or performance of civil servants. If a minister has concerns about the conduct or performance of a member of staff, that needs to be raised appropriately with the civil service contacts that ministers will have who will have the line management responsibility for addressing those issues. One thing that has not come up today, but it is certainly an implementation plan, is the information management review and the need to improve the quality of digital storage in retrieval processes. That is probably not the most exciting thing that has been raised today, but I think that it is of critical importance. Five bullet points are listed here about steps that should be taken. If you want to talk to us about the philosophy behind why that is really very important to this process. I will draw on the expertise of Leslie Fraser as our senior information risk owner within the Government. Essentially, data handling and data management is utterly at the centre of government, at the heart of government. If we go back on every year that we heard in the past few weeks, the National Archives set out all sorts of documents from eras. It is now such ancient history, convener, that you and I can remember these events at first hand, unfortunately. The documents are released and they contain the judgments of ministers, the comments of ministers. I often think about those when I am feeding back on submissions from civil servants as to what I want my children to hear that I was saying in 30 years' time or whatever. Information retention and handling is crucial to the record of the conduct of policy and actions. I use that example to highlight the necessity of that information handling. Of course, the world is completely different now. Those were handwritten manuscripts that ministers were writing on 30 years ago. Now there is a digital transaction activity, which is generating significantly greater volumes of information, and that has to be handled appropriately. Add on to that data protection and GDPR, and you put on very significant obligations and duties to ensure that we are always handling, not just recording information properly, but handling that information properly. That is precisely the environment in which we are working. The previous permanent secretary instigated a review of our information management arrangements in summer 2020. We have that review in place and we have now published our information management governance strategy as a result. That seeks to ensure that we are operating on absolutely best practice here. We have strengthened our governance arrangements and I now oversee an information management and governance board in the Scottish Government on which we have our non-executive directors. We have created new roles within each of our policy areas to take forward a programme of improvement. Again, that is partly to do with the electronic systems that underpin information management, but it is also to do with the everyday business practice and ensuring that colleagues are absolutely clear what they should and shouldn't be doing with information and ensuring that it is always first time going into the correct regulated space for the proper management of this information. Again, that programme of work is under way. We are already seeing some good outcomes from that. That is work that we will keep under regular review and just ensure that as the technology moves on, we are ensuring that the approach that we are taking within Government is appropriate and enables us to fulfil all the obligations that we have both to this Parliament and more widely under the Records Management Act. Thank you. I mean electronic data storage has been a huge boom. I remember when I left Glasgow City Chambers in 1999, I was asked very politely to take the contents of the six filing cabinets and the mountains of other sundry possessions that were piled up home and I don't think it happens very popular when 13,000 constituency cases turned up in my garage. I realise that it is important to have adequate storage and to ensure that they are kept in robust and confidential state. Michelle, what is to come in on this particular issue? Again, it is just a thought. I do not know if you have given us yet any active consideration to recording specific interviews through the process, of course traditionally, because we have the note-takers, but going back to my point about hierarchy, it tends to be a more junior member of staff that takes the notes and the notes themselves cannot reflect the nuance that a recording would do. My question is, would you give that—obviously, permissions would need to be sought, but would you give that consideration? You see in other processes every word is documented verbatim and it strikes me that the note-taking thing is still a potential gap. Again, that might be a point that you mentioned, which to come in on in terms of the conduct of the investigation process that we neither prescribe nor prohibit that would be the best way to say it. That would be an issue to which we would give further consideration and perhaps discuss with individuals who have had some experience in such processes to gauze their reaction. That is exactly it. We will certainly consider that. It is important that notes are taken at various stages of that. I suppose that the only point that we have made is just an observation. For the process as a whole, we have to be aware of what might be termed a chel factor in it and make sure that those who are making a complaint and those in the receiving end of it do not feel intimidated and feel that they can go through the process. That is maybe the balance to be struck, but we will certainly consider that. Thank you very much. I thank our witnesses, the Deputy First Minister and his officials, Leslie Fraser and Ian Mitchell for their evidence. This morning, that concludes the public part of our meeting, so I will now call a five-minute natural break. Members will then gather again for our private session.