Regular readers will have noted the contributions to this news letter from my co-author Bill Johnston who noted that after the cabinet reshuffle initiated by Humza Yousaf’s election as First Minister the Government lost its Minister for Older People. We were quite concerned that this would mean a downgrading of older peoples’ issues in the eyes of this government. However, issues affecting older people are the result of years or even decades of policymaking so the impact of this downgrading may not be felt until well beyond the electoral horizons that democratic governments often work to. This may be the reason why some governments think they can get away with taking their eyes off the ball in this regard (especially if they’re focused on the many and compounding crises in the headlines today).
Last week, Bill talked about an initiative taking place to try to restore some sense of advocacy for older people launched by Independent Age and now being forwarded by Labour MSP Colin Smyth to create a Commissioner for Older People instead of a Minister. We broadly support this campaign but I do want to write here about my concern that this will be a distinct second option compared to a Minister or, even better, a Cabinet Secretary, to advocate these issues.
The problem I see is one of democratic accountability in terms of the office itself. There are those who disdain democracy in favour of a technocracy that allows them to rule regardless of inconveniences like “elections” and “the public interest”. There are others who merely like democracy only when the electorate votes for them and not others. I fear that by removing advocacy from positions of democracy and placing them in the hands of a non-democratic role – even one appointed by “merit” – is ultimately a less good option for all of us and to make that point I wish to lean on the words of the late Tony Benn who said that anyone with any kind of democratic, economic, social or other power should ask of themselves or be asked five key questions about that position.
1. What power have you got?
In an ideal world, a Minister is not merely an advisor to the First Minister but has autonomy to develop their own portfolio and, through negotiation with the rest of Government, advocate for legislation and other tools to support it. A Minister will generally therefore be more powerful than a Commissioner who, by definition, sits outwith Government entirely and does not even have the power that Opposition MSPs do to bring about Members Bills. However, as I wrote about in this newsletter not too long ago, it’s very possible to win campaigns without winning power – to use one’s indirect influence to bring about the change you want to see. The amount of power that a Commissioner has versus a Minister therefore depends entirely on how willing the Government and First Minister are to listen to the advice and campaigning from either. It likely also depends on how willing those outwith Government are to attempt to lobby said office. I wonder if the MSPs outwith the Government parties support a Commissioner because they think it’s a way of avoiding clashing party loyalties and see in that office someone who they think can be more easily influenced.
2. Where did you get it from?
A Commissioner derives their power directly from the First Minister who appointed them. A Minister technically derives their power from the same but with the added layer of both deriving their office from an election by the people (several elections, in the case of the First Minister who must win direct election by the public to get into Parliament, direct election from their party to become leader of that party and then an indirect election within Parliament to become First Minister). While a Commissioner remains outwith the election cycle and technically could remain regardless of who leads Government, the practical reality is that many Governments will seek to shape their own advisors so any who hope that advocating for a Commissioner because they want to bypass democracy may be disappointed. Further in favour of a Minister is the fact that people can vote them out of office regardless of whether they are a Minister or not. Should voters deem someone to be unacceptable and they lose their seat then there’s little that the First Minister can do to retain them in their role. I would worry if Commissioners became a kind of dumping ground for disgraced former Ministers so that they could stay close to power in the same way that the House of Lords is often used down south.
3. In whose interests do you use it?
As Robin has often written about, one of Scotland’s most significant problems in the public sector is regulatory capture – where lobbyists gain so much power that they can bypass democracy by ensuring that they are the ones who write legislation and regulations to suit themselves. If a Commissioner for Older People actually turns out to be a Commissioner for the Private Care Home Lobby then they will not be advising in the interests of older people but in the interests of those who wish to profit from them. The idea of a perfect “meritocracy” only works if we all agree what actually constitutes “merit” in any particular role. If we are to have a Commissioner instead of a Minister then we need to lay down strict (stricter than we already have) recruitment guidelines to ensure that there are no competing interests in the role. And if those guidelines mean that it’s difficult to find someone who fits…then that’s perhaps not a sign of failure to recruit but a sign that the safeguards are working as intended.
4. To whom are you accountable?
In an ideal world, the Government and First Minister should not consider themselves above anyone. They are First Amongst Equals in a Parliament of Equals and Government should be subordinate to the will of that Parliament. This means that Ministers exist not only at the whim of their direct boss but only while Parliament retains confidence in them – something that Lorna Slater has demonstrated just this week. No, this system is not perfect and the Scottish Parliament has grown far too tribal for my liking of late but the fact remains that if Parliamentary accountability is reduced because roles that used to be played by Ministers become increasingly outsourced to Commissioners then that is ultimately corrosive for our democracy. The Government has been talking about Constitutions this week (see here for my comments on the Constitution White Paper) but one of the principles that we held to in the Governance chapter of Sorted is that no-one in power should govern themselves. Accountability should always be dispersed and held such that it cannot be captured.
5. How do we get rid of you?
This is the most important of all of Tony Benn’s questions. If power inevitably corrupts then the only safeguard is to ensure that those who hold it cannot prevent it from being taken away from them. If a Commissioner only exists at the whim of a First Minister then either the FM holds power over the Commissioner and can corrupt their “advice” under the threat of losing their job or, perhaps worse, if the Commissioner has sufficient leverage over the FM then that power balance could well be reversed. It is rare enough that truth is spoken both to power and the public simultaneously that it makes headlines when it happens.
All things considered, Bill and I are supporting the campaign for a Commissioner for Older People because of the importance of the issues involved and the need for a voice to speak for them but we want to call again for the First Minister to reverse their decision to scrap a Ministerial role for such an advocate as we feel that the principles of democracy, accountability and independent power for both the Minister themselves and Parliament around them will be stronger and more effective. Failing that, we must ensure that recruitment criteria and structures of accountability do not result in either the Commissioner being tamed into compliance by the First Minister or, perhaps worse, the reverse happening and Scotland seeing yet another part of our democracy captured and hobbled by a technocracy that serves not All of Us, but only itself.