Standards and Public Appointments Committee, 13 Feb 2007

Meeting date: Tuesday, February 13, 2007

Official Report 133KB pdf

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Code of Conduct

Item 2 is the code of conduct, which we have been considering for some time. It has been reviewed mainly as a result of our own legislation: the Interests of Members of the Scottish Parliament Act 2006.

Initial consultation of all MSPs and former members of the consultative steering group took place in spring 2005 and a second consultation took place in December 2005. The committee wrote to the business managers of all groups and parties in the Parliament and to the Presiding Officer, the Scottish Parliamentary Corporate Body and the Scottish Parliamentary Journalists Association. That consultation focused on the committee's proposals for the code's structure. In February 2006, a third consultation exercise was carried out, during which the committee wrote to invite comment from various parties who have an interest in governance throughout the United Kingdom and beyond. All the consultations were carried out following the agreement of the committee, which was given in public. All papers have been published on the Parliament's website.

At its meeting on 25 April 2006, the committee agreed to recommend restructuring of the code of conduct. The committee also agreed that there would be merit in making a clearer distinction between the code itself and the larger document in which the rules are explained and contextualised. It could be made clear that the code itself consists only of the mandatory elements of the document and that the advisory and informative elements have a different status—they are there to guide and inform members and the public about what the code involves and how the procedures that are associated with its enforcement are expected to operate.

The Scottish parliamentary standards commissioner's annual report of June 2004, which is a public document, referred to the broad nature of section 2 of the code of conduct and the potential difficulties that it posed. That has helped to inform our review of the code.

It is suggested that the introduction or preamble should contain the key principles, as currently set out in section 2 of the code, and that it should also make it clear that they are not part of the code and perhaps state that the key principles that underpin the code, as opposed to the specific rules of conduct, are aspirational: their intention is to guide members towards high ethical ideals. General principles, in contrast to standards or rules, do not represent obligations, so the committee feels that they should not form the basis for imposing sanctions.

At its sixth meeting in 2006, on 20 June, the committee agreed to delegate authority to me to work with the clerks to produce a draft code of conduct for MSPs. That work has been undertaken and the committee will consider the latest draft today.

The committee also agreed to consult representatives of all the parties and groups in the Parliament, once it had discussed the draft. That will take place later this month. The final decision on the code will, of course, lie with Parliament. It is hoped that it will be debated some time before the end of the session in order that the new advice and provisions will be in place for session 3, to assist members in complying with the new legislation.

Members have been provided with an introductory note, a summary of the differences between the current edition and the draft edition, the paper that the committee previously considered, which summarised progress and includes suggestions from respondents on revisions to the code, and a draft edition 3 of the code, which is based on the revisions that were agreed by the committee and those that were suggested by respondents. Perhaps not all the cross-references are in place in the draft code, but we will ensure that they are all taken care of before we report to Parliament.

Do members have any views on how the code of conduct has been set out or on any of the issues that may still need to be resolved?

Despite how long it took, having seen it complete, I will say that the code seems to be much clearer and more readily understandable than it was before. I am quite pleased with its being split into different sections. It makes a lot of sense.

The general structure is good. It is helpful to have detailed guidance that is separate from the code. On a previous individual issue, we fell foul of the difference between aspirational and realistic requirements.

I have a small point that illustrates my ignorance of the rules. At various points in the code of conduct there is reference to 1 per cent of a member's salary. If a member is also a minister, does it include that as well? Do ministers have a higher threshold?

It is useful that you raised that issue. It will be clear from the Official Report. It is the member's salary as a member as opposed to any ministerial salary.

I have a suggestion related to cross-party groups. I am a member of far too many cross-party groups, some of which work well and some of which work not so well. One problem is that some non-MSP members of cross-party groups think that the groups can actually do something and so they get upset when it cannot. Obviously, the groups can raise issues and so on, but I think that non-MSP members confuse the groups with parliamentary committees. It might be worth including in the rules about cross-party groups the fact that they must initially make it absolutely plain to all non-MSP members the limits on the authority, if any, of the cross-party group.

Can you suggest where that might be included?

No, it was just an aspirational idea.

Indeed—although it may well be one that your colleagues on the committee share. The draft code will have to go out again for further discussion, in particular to the cross-party groups. Members who wish to suggest minor textual changes may do that in writing to the clerks. However, it could well be that section 6 in the guidance would cover the issue that has been raised by Donald Gorrie. As we discuss the rest of the code, he will have the opportunity to see whether it satisfies his query.

I agree with Donald Gorrie that we should emphasise that although CPGs play an important role, they are decidedly not committees of Parliament. That would be useful.

I pay my respects for the work that has been undertaken by the convener and the clerks to present the very detailed draft that will go out to members before we have a debate before the end of the session. That is the right course of action.

The only issue that I want to raise relates to paragraph 7.2.4, which is in section 7 in volume 2. The paragraph begins:

"Parliamentary staff will treat Members with courtesy and respect. Members must show them the same consideration."

The first three sentences in the paragraph are absolutely fine, down to "and investigated." However, I suggest that, for the sake of brevity or directness, we should take out the final two sentences, because the first three sentences already carry their meaning implicitly—they contain the idea of the complete unacceptability of sexual harassment and state that complaints will be thoroughly investigated, so the paragraph does not need to state that again.

How do other members feel about that?

I will go along with that. I had not noticed that, but now that Bill Butler has mentioned it, I agree with him. His suggestion is fine, in the interests of brevity. Also, the re-emphasis of sexual harassment may make it seem implicitly more important than other forms of harassment, such as straight bullying. The current wording probably overeggs the pudding.

Although the second-last sentence, which is on sexual harassment, is redundant, it is helpful that the final sentence emphasises that a procedure is in place for investigating complaints. Without that, somebody might read the paragraph and wonder why it does not say what will happen.

The third sentence states:

"any … inappropriate behaviour … will be taken seriously and investigated."

We are overegging the pudding.

You are right—in that case, I support your suggestion.

I am informed that there are no technical reasons why we cannot accept the suggestion. I assume that Bill Butler proposes that the change he suggests should be made.

Yes—I propose that formally.

Do members agree to that proposal?

Members indicated agreement.

I have two points, one of which Bill Butler has covered. The first is to express my thanks to the clerks for the helpful explanatory papers on the code and for the work that has been done on tidying up the various wordings as a result of our deliberations.

My second point arises from Donald Gorrie's point about the rules on lobbying and gifts that refer to a percentage of a member's salary. For completeness on the record, can the clerks say whether I am correct in thinking that there is a separate code that covers ministerial obligations and which covers elements of their salaries?

The advice that I have been given—which is what I would have said anyway—is that all members, ministers or otherwise, are covered by the code of conduct. The ministerial code of conduct is on top of the code for members. On the point that Donald Gorrie made, the percentages relate only to members' salaries as members, rather than to any ministerial appointment.

In my discussions with the clerks, I raised a couple of other points that are not absolutely minor, although I thought that they were.

Anyway, I ask members to look at paragraphs 4.2 and 4.3, which relate to the key principles of the code of conduct and to public duty. I have various copies of the code, so I hope that I have that absolutely right.

Is that the bit about sanctions and offences?

Which bit are we looking at? Paragraph 4.2 is about sanctions and offences in my copy.

It has obviously been renumbered—I am looking at my original copy. It is paragraphs 3.1.3 and 3.1.4 in volume 1, under the heading "Introduction: Key principles" and the sub-heading "Public duty". I was looking at the initial draft.

I do not like phrases such as "In doing so", so the second sentence of paragraph 3.1.3 should read: "Members should act in conformity with the rules of the Parliament."

Do you mean that we do not have to uphold the law?

Everybody has to uphold the law, but the paragraph relates to our code of conduct and the law on registration of interests. However, "In doing so" and "uphold the law" do not add much. I am not suggesting that we should not uphold the law, but we are talking about the rules of Parliament. That is my view, but other members may take a different view.

I also thought that was rather odd to include in paragraph 3.1.4 the point that we

"have a duty to be faithful and bear true allegiance to Her Majesty the Queen, her heirs and successors, according to law."

It is true to say that we must do that, but I do not think that the oath of allegiance is anything to do with the code of conduct. We all have to take the oath of allegiance, but I do not understand how that relates to our code; it is not an essential feature of it.

I suggest that we delete the phrases that I have mentioned, but I am happy to hear members' views on both suggestions. We will take the first one first. How do members feel about the wording of paragraph 3.1.3 and my suggested amendment to it?

I do not have any problem with taking out "In doing so", but we can keep "uphold the law". It is a general point that everybody, including members of the Parliament, should uphold the law, so we should just leave the phrase in, although I would not die in a ditch over it.

I agree with Bill Butler. It does no harm to state explicitly that members should uphold the law.

Is it agreed that we take out only "In doing so"?

Members indicated agreement.

I would probably not have looked at the detail of the sentence if I had not seen that phrase. I was just being pedantic because I did not think that it added anything.

On paragraph 3.1.4, the oath of allegiance is set out in the standing orders, so I do not think that it also needs to be in our code of conduct. I do not see how anybody would be better advised by having it in there.

As a good republican, I should agree with you, convener, but I think that we would be on much safer ground if we were to reword the paragraph to say something like, "Under the Scotland Act 1998, members are expected to take the oath of allegiance at the beginning of a session," and end it there with a full stop. It is simply a matter of fact that we are expected to take the oath. Whether we should take it is an interesting debate.

We are obliged to do so.

Yes, we are. We should leave it as a statement of fact. I am not mad about including:

"have a duty to be faithful and bear true allegiance"

and the rest of it. Those words are in the oath that we are expected and obliged to take, so we should simply state for the record that, before we take up our seats as members, we are expected to take the oath and leave it at that.

I agree with Bill Butler: paragraph 3.1.4 is redundant and, to be honest, a bit silly. If we used wording such as "expected to take the oath or to affirm" it would seem as if it was voluntary. If you are "expected" to do something, you do not really have to do it. The fact is that we have to take the oath of allegiance or make a solemn affirmation. Perhaps the wording should be "members must take the oath of allegiance or make a solemn affirmation when elected to the Parliament."

It might be helpful to refer specifically to rule 1.2 in the standing orders.

I am perhaps less concerned about paragraph 3.1.4 than are other members. It seems to me to do no harm, but I am not prepared to force a vote on it. As long as we retain wording that is along the lines of the present suggestion, I will be content.

As an avowed royalist, I listened with interest to what my friend the avowed republican had to say. I rather agree with Christine May. The fact is that we are expected to take an oath of allegiance when we become members of this Parliament. We take that oath and, during our four years as members of the Parliament, we surely have a duty to abide by what we have publicly stated. I therefore do not see any harm in members being reminded through the code of conduct that they are expected to abide by the oath. Otherwise, there seems little point in taking the oath.

It could be argued that the Parliament did not choose to impose this rule on its members. If we had had any choice, things might have been different. I am more than happy to support the deputy convener's position, although I respect your view, Mr Fergusson.

There are some issues on which it is not always good to have a choice. However, in a spirit of co-operation, I am happy to leave this for the moment—it will go to the Parliament in due course.

Yes, it will. At the moment we are producing a draft. The draft will then go to the parties for further consultation, before it goes to the Parliament to be agreed to or not agreed to.

That being the case, I propose that paragraph 3.1.4 be left as it is while we await feedback from further consultation.

As everyone has said, the oath of allegiance is a fact. It is perhaps worth reminding people of that.

As paragraph 3.1.4 stands, there is an implication that the oath of allegiance supplements what is said in paragraph 3.1.3—that we should behave in a decent sort of way

"in the interests of the Scottish people".

I am a slightly liberal royalist—

Another one!

However, I do not see that that affects my conduct as a member of the Parliament. It has been suggested that the wording should allude to the oath of allegiance without spelling out the duty as paragraph 3.1.4 does. If the duty is spelled out, there is an implication that the behaviour expected of us is slightly different from that expected by paragraph 3.1.3.

Perhaps I should explain again why I raised these issues. There may well have been an element of the republican versus royalist argument in my reasoning, but I felt that paragraph 3.1.4 did not in any way enhance my perception of the public duty of a member of the Scottish Parliament or my perception of what the public might expect of an MSP. However, there are perhaps different views on that, and it is probably appropriate that we have a debate on the issue.

I suggest a compromise. Perhaps there should be a separate heading—although I do not know what it would be—referring to the fact that members have to take an oath or make an affirmation, whether or not there is a reference to the standing orders. The public duty bit could be under a completely separate heading. That would remove the link between a member's performing their public duty properly and their having to be true to the Queen.

We have had specific suggestions from Alex Fergusson and Bill Butler. I will paraphrase Bill Butler's suggestion, if he is happy with that, and we will put the two points together, along with the point that Linda Fabiani has made. Alex Fergusson is suggesting that we leave paragraph 3.1.4 as it is—is that fair, Mr Fergusson?

That is what I have suggested, convener.

Linda Fabiani and Bill Butler are suggesting that paragraph 3.1.4 needs to be renumbered and should appear separately before the heading "Public Duty". They suggest that it should read, "Members must take the oath of allegiance under standing orders rule 1.2".

Or make a solemn affirmation.

Yes, "or make a solemn affirmation."

I hate to contradict you, convener—please take this in the spirit of debate—but that is not exactly what I said.

I was trying to be helpful.

I know you were. I will try to be equally helpful. I think we should include that wording under the heading "Public Duty". Unless a member takes the oath or makes the affirmation publicly, they cannot exercise their public duty: the one follows the other. If they do not do that, they risk being no longer a member of the Parliament. We could say that, for members to be able to exercise their public duty, they must take the oath of allegiance or make a solemn affirmation.

A reference to the standing orders would be helpful in clarifying that.

Yes, of course. Is it rule 3.1.2?

It is rule 1.2.

We could swap the paragraph numbers around, so that the allegiance bit comes before the public duty bit. That may imply less of a link, as Donald Gorrie suggested.

Showing that loyalists and republicans can walk arm in arm, I am relatively content with Mr Butler's suggestion.

We have the restoration, convener.

Mr Butler, are you content with the suggestion that we just swap the paragraph numbers?

I am sorry; I understood Mr Butler's suggestion to be that both paragraphs should remain under the heading "Public Duty".

Yes, but we could swap the paragraph numbers so that the wording about allegiance would come first.

Oh, I see. That is even better.

So the following will be the wording—unless we receive technical advice that it should not be—"Members must, in order to exercise their public duty, take the oath of allegiance or make a solemn affirmation under standing orders rule 1.2."

I am sorry, convener, but as you raised the issue—perhaps you now wish you had not—I must say that, logically, the numbering of the paragraphs has to stay as it is. First, the general comment should be made:

"Members are expected to act in the interests of the Scottish people and the Scottish Parliament",

and so on. The code should then state that, to exercise their public duty, members have to take the oath of allegiance.

You mean to place those statements in order of importance, suggesting that we are much more accountable to the people than we are to the Queen?

No, although people might wish to interpret it in that way—I might wish to interpret it in that way. I simply want those statements to reflect the logical sequence of events—it is events, dear boy, events. I think that those statements should be made in that order.

I bow to the superior logic of Mr Butler.

Are members content with the wording that I have put in the mouth of Mr Butler?

I am sorry, but, for the sake of plain English, "members must" ought to come after whatever you said after that. It should be, "In order to comply with"—or whatever it was you said—"members must". Well, we are being pedantic—I think that we are all agreed on that.

You are right. We are absolutely agreed on that.

Are members also content for that to continue to be paragraph 3.1.4?

Members indicated agreement.

Yes. Move, move, move.

We have reached agreement on paragraphs 3.1.3 and 3.1.4.

What we have agreed will go out to consultation to all the political groups, will it not?

Absolutely.

That will be interesting.

We have already dealt with paragraph 7.2.4.

Are members content that what we have agreed is what we should put out to consultation and that we will consider the responses at our next meeting, on 27 February, with a view to agreeing and recommending the code of conduct to the Parliament?

Members indicated agreement.