Procedures Committee, 03 Oct 2006

Meeting date: Tuesday, October 3, 2006

Official Report 136KB pdf

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Interests of Members of the Scottish Parliament Act 2006

I open today's meeting. We have apologies from Chris Ballance, who is ill; I expect Patrick Harvie to attend as a substitute. I hope that the laggards will appear shortly.

I welcome Brian Adam, the convener of the Standards and Public Appointments Committee and Sarah Robertson, the senior assistant clerk to that committee. We agreed to listen to Brian explain to us the change that his committee wants to make to standing orders.

Patrick Harvie has appeared, so I welcome him as a substitute. If you have not been to the committee before, you might have to declare any interests.

I do not think that I have attended the committee as a formal substitute, but I have no interests relevant to the work of the Procedures Committee that I need to declare.

Over to you, Brian.

Thank you for inviting me to appear before the Procedures Committee today. The Interests of Members of the Scottish Parliament Act 2006 confers powers of determination on the Parliament. Some of you might well remember that we had a little hiccup when people found it difficult to understand what determinations were all about.

Most determinations set out procedural and administrative arrangements that can be amended and replaced from time to time to ensure that such arrangements remain current, relevant and pertinent without our having to go back to primary legislation. Determinations in relation to members' interests are not new, but the procedure for approving determinations under the 2006 act is new. Determinations already exist under the Scotland Act 1998 (Transitory and Transitional Provisions) (Members' Interests) Order 1999 (SI 1999/1350), but they were made by the Presiding Officer. The 2006 act has taken that power away from the Presiding Officer and given it to the Parliament.

In constructing the 2006 act, the Standards and Public Appointments Committee sought a transparent and accountable way of making those various determinations or decisions by including all members in the decision-making process. Because determinations set out subordinate provision under the 2006 act, or provide for the imposition of sanctions on a particular member, it is important that there is some means by which the determination or resolution, whatever the case might be, is made public.

There is also a power for the Parliament to modify the schedule to the 2006 act by resolution if it considers that to be necessary. It is important that that process is open and transparent.

How would the process operate in practice? To a large extent, I am looking to the Procedures Committee to decide on that. I expect that it would be appropriate for draft determinations to come from the Standards and Public Appointments Committee initially. As set out in the standing orders, the committee's remit states that its role includes the consideration of and reporting on

"matters relating to members' interests".

With regard to the power in section 16 of the 2006 act to sanction members by excluding them from proceedings, the standing orders place the responsibility for recommending the imposition of a sanction on the Standards and Public Appointments Committee. It would therefore seem sensible and practical to give the initial responsibility for determinations and resolutions on members' interests to the Standards and Public Appointments Committee. After that, I anticipate that all members will have an opportunity to participate in a debate before any changes are made.

As the Standards and Public Appointments Committee indicated to Parliament at stage 3 of the Interests of Members of the Scottish Parliament Bill, we would expect to consult members on a draft determination before the committee lodged a motion for debate in the chamber. I have no firm views on how long that consultation should be; I would prefer the Procedures Committee to take a view on that. Most members would prefer a single procedure for all determinations for the sake of clarity, apart from the rare—we hope—instances of determinations required under section 16. Special considerations apply in circumstances where we would be recommending sanctions against a member.

It would be preferable if that single procedure were also to apply to the making of resolutions. The content of determinations and any resolutions made under the 2006 act are equally important. Both will directly affect members and both will be of public interest, so they deserve the same transparent process.

We hope and trust that we will use the section 16 determination power only very rarely. I imagine that it would be used in response to an issue that was in the public eye and subject to a certain level of interest, so it must also be transparent and accountable. In the interests of the Parliament, the public and the unfortunate member concerned, it is probably better that the issue is dealt with swiftly, but fairly. A consultation might not be applicable in that one instance alone, although we hope that, if they so wish, members will have an opportunity to debate a recommendation to exclude a member when the resolution comes before the Parliament.

I am happy to discuss whatever the committee would like, but we do need to arrive at a conclusion on this matter so that those of us who return, or our successors, will have procedures in place when the new parliamentary session starts in 2007.

Thank you. Our intention is to have questions and discussion today, and then agree at the next committee meeting a draft recommendation of changes to standing orders that encapsulates what the committee thinks of your suggestions—if that is possible for the clerks.

The clerk suggested some points about which we should try and be as clear as possible and you have dealt with some of that. Those points are on page 4 of the paper the committee was given. Are you keen on having a single procedure rather than many different procedures?

Yes, a single procedure or standard approach would make it simpler for everybody concerned, whether they are members, the public or media, to understand what is going on. The only subtle difference that I believe would be appropriate is in the case of section 16, under which the Standards and Public Appointments Committee may offer a resolution to the Parliament for a sanction against a member. To consult on that would perhaps not be appropriate, because if there is any possibility of a resolution, it is much better for everybody concerned that the matter is dealt with swiftly. If we continue with the current arrangement, the resolution could be open to debate, and indeed amendment, in the Parliament.

Just to clarify matters, that relates not to sanctions generally but only to exclusions from the proceedings of the Parliament, which is what section 16 specifically says.

I want to clear something up. Are you suggesting that only the Standards and Public Appointments Committee should be able to initiate a determination? I was getting the feeling that you were and that there was perhaps a role for members later on. Are you saying that, in all circumstances, it would be up to the Standards and Public Appointments Committee? If so, what would the role of members be?

The Parliament normally proceeds by delegating consideration of a matter to a particular committee. The Standards and Public Appointments Committee is the appropriate committee, as the issue is part of its remit. It would produce recommendations, which all members would have the opportunity to debate. Our suggestion was that there should be consultation with all members at that stage and then a debate in the Parliament. There would be the opportunity first to consult as the committee considered its recommendations, and then to participate in the debate.

I just wanted to be clear that you were saying that, in all circumstances, a determination should be initiated or led by the Standards and Public Appointments Committee.

Yes, because that is normally how we deal with such matters.

I did not want it to be justified. I just wanted to know the proposition.

Yes, is the answer to your question. Consultation would be involved in all processes, except when dealing with section 16 determinations. Even in those circumstances, however, members would have the opportunity to participate when the resolution reached the Parliament following a recommendation from the Standards and Public Appointments Committee.

Does the Standards and Public Appointments Committee have any views on the minimum period of consultation, or is that up to our committee to decide?

It is up to you, but I suggest that perhaps a month for consultation might be adequate. I do not want to put you in any difficulty, but it would be helpful if we could complete the processes through Parliament so that arrangements are in place for whoever is elected in May 2007. A period longer than a month may encroach on the viability of completing the processes, but I think that a month would be adequate.

The propositions seem sensible to me, and if we have exhausted our questions to Brian Adam, he can depart. We could then come to an agreement about the lines along which we wish the clerk to produce a report. I thank Brian Adam for coming.

Thank you.

On this occasion we do not, as is usually the case, have a ready-made paper to approve, but Brian Adam has set out his stall and we have the notes from the clerk. We must now give the clerk clear direction as to what changes we want to appear in the standing orders.

We will start with the questions on the bullet points on page 4 of the paper. Do we agree with Brian Adam that there should be a single procedure for everything apart from section 16 exclusions?

Members indicated agreement.

Do we agree that the initiative should always come from the Standards and Public Appointments Committee, or should a member be allowed to initiate a procedure if they feel that things are not being done right?

I used the word "initiate", but it was probably the wrong one to use. I presume that a member could initiate a procedure by writing to the convener of the Standards and Public Appointments Committee and putting the ball into play that way. Initiate was perhaps the wrong word. It is probably sensible to have all such cases go through the same channel. I do not know whether there will be a rush of people running to have determinations made.

My concern is that if the power to initiate the process lay with an individual member, a very small number of members—perhaps one or two—might use that as a malicious opportunity.

I think that we all agree that how the Standards and Public Appointments Committee goes about its business is acceptable. That should continue.

We have seen examples—usually within a party—of a certain degree of personal acrimony entering into proceedings. We do not want to give people too much rein.

Brian Adam suggested a month as the appropriate period for consultation. Does the clerk or any member have any views on that?

It is not essential to set a minimum period. It would be possible simply to include a requirement to consult and leave it up to the Standards and Public Appointments Committee to determine what a sensible period was in each case.

Okay. Is that fair enough?

Members indicated agreement.

Right. Does the clerk require any other specific steers in order to write a nice report?

I do not think so, convener. The final bullet point in paragraph 14 is probably now clear, from what Brian Adam said.

Yes. The single procedure covered determinations and resolutions of all sorts other than the section 16 exclusion.

Before we leave that, can I be clear about what the suggested procedure is for section 16 exclusions? That was not clear.

I think that consultation was the issue. Brian Adam thought that a section 16 determination should be quicker, but you are right that we did not pin him down to a specific procedure.

If it is simply about having a timescale for dealing with the matter, I can understand the reason for that. The procedure is essentially the same, except for the consultation, but perhaps the initiation of it is different.

My understanding of what Mr Adam said is that the difference would be that there would not be an expectation in that case for the Standards and Public Appointments Committee to consult members before making a firm proposal to the chamber. The committee may, for example, wish to consider in private issues around the exclusion of a particular member. Therefore, the determination that it would recommend to the chamber might emerge from the committee without members having had a chance to have an input beforehand.

The point that I am getting at is that I can remember the occasion on which the procedure was used and I was not clear about the process by which the Standards and Public Appointments Committee suddenly decided that it would meet during the plenary session, which is most unusual. The committee came back to Parliament with a recommendation on the same day. I was not clear about what initiated that process. I know what kicked it all off, but I am not sure how the Standards and Public Appointments Committee decided that it would have a meeting about the matter.

The Presiding Officer asked the Standards and Public Appointments Committee to meet and consider what had happened in the chamber.

Yes, I think that that is correct. Could we say that that was initiated by the Presiding Officer? If the Presiding Officer asked the Standards and Public Appointments Committee to look at something, the committee would be almost obliged to do so.

One factor was that it was the last day of the term; therefore, we had to have a quick decision. The Presiding Officer thought that that was the answer.

If the Presiding Officer asks the Standards and Public Appointments Committee to consider something, how does the committee reach a decision? Does it have a meeting without notice? I just wonder what part of what is proposed is different. I am not saying that it is necessarily a bad thing; however, it appears that the procedure for initiating that might not be the same in every circumstance. I want to clarify that before we write our report.

There must be guidance in the standing orders for conveners who have to call an emergency meeting. Did we read about that last week or the week before? There must be a process for that.

There are particular issues surrounding the circumstances in which a committee can meet at short notice. As far as the issue before the committee today is concerned, the key point is that the Standards and Public Appointments Committee, under Brian Adam's suggestion, would be the only body in the Parliament that could propose a determination to the chamber. Initiation is perhaps not the right word. It is not so much about where the idea emerges from at the outset; it is more a question of only the Standards and Public Appointments Committee being able formally to propose a specific determination in draft to the chamber. In the same way, changes to the standing orders can be proposed to the chamber only by this committee, although any member can write to us and suggest a change to the standing orders. That is the distinction that is at issue.

Yes, I can see that. "Initiate" was probably not the correct word to use.

I presume that the issue of the timetable for a decision and the urgency of the matter would be for the Presiding Officer to decide for the good business of the Parliament.

And for the convener of the committee.

One thing that Brian Adam said concerned me slightly. He said that there would be no provision for debate. I do not know what context he was saying that in, but I would like further clarification of that point.

I did not pick that up.

There is currently provision for debate on a section 16 exclusion if that is timetabled by the Parliamentary Bureau; however, that has not been the case up to now. Was an amendment lodged to the motion that was moved on Thursday?

No, but the Scottish Socialist Party spoke against it.

So there is provision for debate on such motions. I would like clarification of whether that would still be the case under whatever procedure we came up with.

I think that we can clarify that.

Under any new procedure that the committee recommended, any determination that was made by the Parliament would emerge from a motion that was lodged by the Standards and Public Appointments Committee, which the Parliament would either agree or disagree. In the normal way, if a provision to that effect was included in the rules, it would be a matter for the bureau to decide whether the motion was to be debated or simply moved formally without debate. If the committee felt strongly that such things should always be debated, words to that effect could be placed in the new rule. It is up to the committee to decide which of those things it wishes to do.

Are we talking specifically about exclusions?

That, again, is up to the committee. There will need to be a new rule to cover the general issue of determinations and resolutions under the 2006 act. Brian Adam has suggested a single procedure for all cases apart from section 16 determinations. The committee is already considering a rule that differentiates that type of determination. The rule can either not say anything about whether any of these things should be debated, leaving the matter to the bureau in each instance, or say that some determinations must be debated or need not be debated. It is up to the committee—those are all options.

I think that, in certain circumstances, there would have to be the possibility of having a debate. If people decided that membership of one of a list of organisations had to be declared, there might be a debate about whether someone needed to declare membership of a local football club, for example. What would happen if someone had a season ticket somewhere else?

The question is not whether there would be an opportunity for debate—Brian Adam was clear that he envisaged there being an opportunity for debate in normal cases. The question is whether debate is mandatory or whether you say nothing about it in the rules and leave it up to be Parliamentary Bureau to make a decision in each case, which would allow there to be a debate if there were a perceived need for it.

I do not think that we should make debate mandatory. That would be as bad as the opposite. The question is whether a debate would be permitted on an exclusion. Is it being suggested that there be a different process in that regard? Would it be possible to have a debate on an exclusion if it was desired or is it being suggested that that would not be desired?

It is possible to have a debate if it is timetabled in. The rules that we have just now allow that. Are we suggesting that we do not change that particular rule?

It is up to the committee what it wishes to recommend. This is a new procedure. My understanding of what Mr Adam said is that he envisaged there being the opportunity for a debate in relation to everything that comes under the 2006 act. The only difference in relation to the section 16 resolutions is that there would not be an earlier opportunity for members to be consulted at the stage when they were still before the Standards and Public Appointments Committee.

The assumption is that there is an opportunity for a debate to be had. We are not saying that "Thou shalt debate" is one of the 10 commandments.

We would not want a debate to be used as an opportunity to settle old scores or open old wounds, which is exactly what happened last night.

Yes. I think that that is why there is a feeling that lengthy debate is not really conducive to public order.

Or decisive action.

Do we agree to await the suggested changes to the standing orders that the clerk will produce?

Members indicated agreement.