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Agenda item 4 is the review of the code of conduct. Members have received paper ST/S2/05/10/5, which I suggest we go through paragraph by paragraph.
The status of annex 5 to the code of conduct has been problematic and it caused some work in the first session of Parliament although, thankfully, it has had a lower profile in the current session. Nevertheless, the suggestion that we invite the Presiding Officer to give his views on how annex 5 has worked and where it ought to fit in is a useful one. Do members have comments on that or on anything else on page 4?
The proposal to consult the Presiding Officer on annex 5 is eminently sensible, That is how we should proceed.
Paragraph 19, on page 5, is not absolutely clear on the role of the commissioner. It implies that the committee cannot direct the commissioner, but that is not absolutely correct. I thought that we had the right to direct the commissioner to hold an investigation in circumstances in which he would not necessarily do so automatically, and I am not sure whether paragraph 19 makes that clear. The clerk will advise us.
There are provisions in the Scottish Parliamentary Standards Commissioner Act 2002 that define the basic structure of what the commissioner is able to investigate. The act includes a statutory basis for the definition of excluded complaints; what actually counts as an excluded complaint is determined at a lower level, but the basic framework is in the act. There is a mechanism for varying the parameters of what falls to the commissioner to investigate and we suggest that that should be tidied up.
One way to do that is to add complaints under annex 5 to the list of excluded complaints.
Yes.
We can cover that as we go through the detail. My concern about paragraph 19 is that it does not acknowledge that we have the capacity to direct the commissioner to deal with a complaint, but perhaps that paragraph is not the proper place to raise the matter.
Just before the meeting started, the clerk mentioned to me that the dreaded Sewel motions may impinge on the matter. They are being considered by another committee I am involved in. Is this a suitable moment for the clerk to tell us about that or is it a matter for another day?
That matter is separate from the matter that is currently under discussion.
The only other matter that I want to mention is on page 5. Given current circumstances, a specific mention of allowances in paragraph 24 might be appropriate. There is a reference to
The general reference to the "services" that are provided is perhaps sufficient.
Fair enough. As well as consulting the Presiding Officer, we will consult the corporate body.
That is an important point. Is it worth exploring whether members should notify the commissioner when they decide to cut off relations with a constituent? The fact that any future failure to reply was deliberate and was not the result of incompetence would then be on the record. It would have to be done in private; we would not want a blacklist along the lines of "Mr Bloggs of 10, High Street, Edinburgh is persona non grata," but such notification might provide cover for a member or a member of staff who had made a deliberate decision no longer to deal with a member of the public because they had put themselves beyond the pale.
That is certainly an option that we should consider. Today is about identifying the issues and how we make progress on them, but your suggestion is an eminently sensible approach. If a member of the public is to be cut off, they need to be notified and told why. Informing a third party would also provide a safeguard for the member.
We should explore Donald Gorrie's proposal. Perhaps we could do that when we invite the business managers to give oral evidence.
Indeed, they may be the appropriate people to notify. In one incident, a member was accused of a breach of the code and the fact that that member had taken advice from and notified a business manager helped to give protection.
Telling someone, "I am not prepared to have anything more to do with you on any matter" is the most extreme example. For most of us, notifying constituents would happen when we believed that we had done all that we could on an issue. When we consider how to deal with the most extreme circumstances, it might be helpful to consider also specific cases in which we might say to a constituent, "Correspondence on this matter is now closed."
Yes. The issues with which we have wrestled in the past have concerned the repeat aspect—which is what you are talking about—the vexatious aspect and the abusive aspect. It is more the last two that the rest of us have been discussing, but you are quite right about having an appropriate mechanism and guidance for dealing with constituents whose case a member does not believe can be progressed further.
It is also about when the repeat element becomes vexatious and abusive, which it generally is.
Are members content with how we will consult our colleagues in the Parliament?
The paragraphs that follow are on the publication of directions. If there are no comments on that, let us turn to the conclusion, in paragraph 32. I am certainly happy with each of the bullet points in that paragraph, but I would like to add a further one. We have identified those folk who are most likely to have an interest and to come back to us, but there is also the matter of encouraging public participation. We need to have an element of that, especially in light of recent controversies.
It is important that we have public participation. However, I am slightly concerned that if we issue a consultation document on the matter, it will be a dry topic for many people, even for those with an interest in the subject. We perhaps need to consider how we consult members of the general public, who might think that the Parliament contributes something to life in Scotland and with whom we really should be engaging.
It is difficult to know how best to consult the public. There must be agencies that work on behalf of the public, which we can ask to speak to. Listening to Karen Whitefield, I thought first of the office of the information commissioner, which might provide a stepping stone to finding out how the public would like openness and transparency to be developed.
It might be appropriate to consult an organisation such as Citizens Advice Scotland. However, it might also be worth testing whether our impressions of the public's expectations match their articulation of their expectations. We could then have a debate on the extent to which the expectations on either side are reasonable and can be regulated. In my short time on this committee, I have discovered that this matter is a minefield of perceptions, expectations and passionate feelings. Quite often, people who make complaints are disappointed because the resolution that they desired could not be achieved rather than being disappointed because no resolution was achieved. Even an online questionnaire might elicit some impressions, perceptions or expectations that we could work up into something that could be tested.
As we discovered once before, if we have a completely open public consultation on the matter, we face the danger of receiving responses from only a limited number of people with a narrow viewpoint, which we then have to take as being the full public response to the consultation when, in fact, 99.999 per cent of the population have, by their lack of response, deemed either that they are not interested in the matter or that they are quite happy with the current situation. I am slightly wary of ending up in the same trap. I am trying to remember the consultation to which we received those responses.
It was the consultation on the Scotland Act 1998 (Transitory and Transitional Provisions) (Members' Interests) Order 1999.
That's the one.
Although we extended the timescale for public responses, we attracted only a little more than 30 responses from a little more than 20 participants. I should also point out that, despite the wide-ranging range of interests that members might declare, the members of the public who participated in that consultation focused on only one issue.
I am simply trying to warn the committee against falling into the same trap.
Given that we received 30 responses to our consultation on the members' interests order while the consultation on the Smoking, Health and Social Care (Scotland) Bill attracted more than 60,000 responses, we have to wonder about the importance of the issue to the public. However, I am aware that today, of all days, there is considerable public interest in standards in public life. We need to engage with the public, and members have made perfectly valid suggestions in that respect. Indeed, I think that we should pursue Karen Whitefield's suggestion of inviting the clerks to draw up some options about how we might engage with the public on this matter. You have heard some suggestions—
They are very helpful.
We could receive a paper on public participation in the review at the next meeting; after all, we are likely to agree in a moment or two that certain people have a particular interest in the subject. Consulting only the Presiding Officer, the Scottish Parliamentary Corporate Body and business managers will leave us open to the accusation that the Parliament is a self-regulating organisation that shuts the door behind it without paying heed to the public. The approach that has been suggested might have legs.
We move to agenda item 5. Committee members have before them a paper—"Review of the Code of Conduct: Direction under the Scottish Parliamentary Standards Commissioner Act"—that contains details of a direction that we issued to the commissioner. The circumstances that led to that direction are there, as is an account of our experience since we made the change.
I am a comparatively new member of the committee who was not here when the change was made. Reading the paper has given me my first broad understanding of what has been going on. What struck me immediately were the serious breaches in confidentiality, although not all complainants would breach confidentiality. However, sometimes complaints are made by people who are seeking publicity; that is an important issue. It seems to me that to protect confidentiality we should revoke the direction.
I was one of the majority who voted for the procedure that we are reconsidering, although I understand the arguments for change. I am concerned, however, that there should still be a mechanism whereby the basic facts could at least be agreed between the commissioner and the participants on either side of a complaint. It would be unfortunate if, having gone through the whole procedure, we made a decision, but somebody managed to demonstrate that the commissioner had got one of his facts wrong. I suppose that that is unlikely, but we should have some sort of safeguard against the possibility.
If we followed Donald Gorrie's suggestion, we would, in effect, be asking the commissioner to produce a summary. A summary would also give the commissioner's view, even if it did not give his recommendations. I do not see how we can get round that.
I did—and I believe that we voted for it for absolutely the right reason, which was to confer on a complainer the right to examine what was said. However, with rights come responsibilities and, with the benefit of hindsight, it is clear to me—it gives me no pleasure to say it—that responsibilities are not being accepted by those on whom we conferred that right, which is being abused. I am afraid that we have no choice but to revoke the direction.
As Alex Fergusson and Donald Gorrie did, I voted for the new direction because I, too, thought that it was the right thing to do. I believed that the direction was about equity—about treating people fairly and justly.
My experience is that information will be leaked if it is made accessible before its publication. That is the nature of public life these days. We have a clear choice. We could continue in the sure knowledge that leaks will continue. They will not always happen but in many cases they will. Alternatively, we could reconsider the matter, which seems to be the view of most members. We should seriously consider withdrawing the direction.
There is no appeal. The circumstances to which you refer, in which it might be appropriate for the complainer to get sight of the report, are those in which we choose not to accept the commissioner's report and to hold our own inquiry.
I can see a clear and justifiable argument for that, but my view is that the direction has not worked as it was meant to work. Karen Whitefield's exposition of the dangers for an MSP of leaking a report and the sanctions that apply, as opposed to the sanctions that would apply to anyone else, clearly illustrated that the situation is unfair for MSPs.
None of those points addresses the issue that Mr Gorrie raised, which is that we must be sure that the complainer's view has been heard and properly understood by the commissioner, and fairly put by the commissioner in his report. Anyone who suggests that the current process does not allow that to happen is in danger of undermining the independence and integrity not only of the current post holder, but of any post holder.
I was interested in Karen Whitefield's comments. Everyone who is part of the process—the complainer or the person who is being complained against—is entitled to confidentiality; it must also be perceived that there is confidentiality. The direction muddies the waters by spreading the ability to leak. If there were to be a leak, I would be happier to know that someone on the committee or on the commissioner's side had leaked and breached confidentiality. Narrowing down who could be responsible for a leak invokes more respect for all parties and instils more confidence that the system can work properly.
Because the potential existed for leaks, I chose—as convener—to stop the practice of the committee being advised when a complaint against a named member reached the point of commissioner starting his inquiry at stage 2. That is why we now know about a complaint against a member only once the commissioner has completed his report. Therefore, we cannot influence it at that point, other than through our involvement, and the matter then becomes public. I would try to protect the process there. It is not just about protecting MSPs' interests—it is also about protecting the public interest. It is not necessarily in the public interest that material be leaked prior to a decision by any party.
I am one of the gang of four who voted for the current procedure. I think that it is absolutely apparent from what colleagues around the table have said, and from the paper, which sets out clearly the experience of that decision, that we need to revoke the direction in its entirety. It simply has not worked for the public or for the Parliament. We should revert to the previous procedure—that is all I have to say.
I agree with my three colleagues. I have no concern about errors being made by the current commissioner in ascertaining the facts. I had some concerns—as did some of my colleagues—when the former acting commissioner was dealing with an extremely complicated case. Some of us felt that he did not ask the right questions and did not clarify the issue as well as he might have done. However, the current commissioner has a good track record. Least harm will be done by changing our position as per the suggestion in the paper that is before us.
I take it that members are content to reverse the policy. That decision will take effect immediately.
Are we required to make a separate decision on paragraph 4(b) of the direction?
We can choose to do that. In my opinion, however, it would not make any real difference; the commissioner can make that choice in any case and does not need our direction. I am in members' hands, but in my opinion we do not need to do that.
I accept your guidance.
Is that agreed?