Standards Committee, 14 Feb 2001

Meeting date: Wednesday, February 14, 2001

Official Report 116KB pdf

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Standards Commissioner

Our third agenda item this morning is consideration of some outstanding policy issues relating to our proposed bill on the establishment of a standards commissioner. We had a useful discussion at our previous meeting and resolved a number of matters. However, the committee was keen to reflect on a number of other matters and the clerks have produced a further issues paper for our consideration.

Members should note that there is an error in the fifth bullet point of paragraph 1, which should read "The Standards Commissioner"—and not the SPCB—"may be removed from office."

The outstanding issues are summarised in paragraph 2 of the paper, and I suggest that we run through them. First, should the grounds for removal of the commissioner be specified in the bill or left for the terms of appointment? If they are included in the bill, should they be similar to the standard grounds for removal for public appointments?

Members may wish to note that should the removal conditions be included in the bill, we would not be able to add to, or amend, them in the appointment terms and conditions. Members wanted a little more guidance on what other institutions did and the clerks have provided that in the briefing note.

Do members have comments on the grounds for removal? The clerks need a little more guidance.

From my reading of the background papers—for which I thank the clerks—it seems that the grounds for removal for most similar appointments are specified not in a bill, but in the public body's standing orders. I would be content not to be tied down tightly by having the grounds for removal specified in the bill. I would rather that they were included in the standing orders, or in the terms and conditions for the appointment.

I agree with that.

There is an advantage in flexibility. Let us hope that the situation never arises, but if it were—unusually—to do so, it would be sufficient to have the flexibility that would be given by specifying the grounds for removal in the terms of appointment.

I thank members for their guidance.

On the term of office for the commissioner, the committee indicated that it wanted a fixed term of appointment, but felt that that term should not correspond to the parliamentary session.

Three or five years is the standard term for public appointments. Alternatively, an appointment could be made for an initial three years and, subject to satisfactory performance, be renewable for five years after that. How do members feel about that?

I have not quite made up my mind about whether the term should be three or five years. I have no strong feelings either way, but if the bill were to say that the appointment would be for a fixed term of three years, that provision would be on the face of the bill. If we were to say five years, that would also be on the face of the bill. If the bill specifies three years, I do not see how we can simply reappoint for a further five years.

I have just been reminded that there is an error in the second bullet point of paragraph 2 of the briefing paper. Under the heading "Term of Office"

"Not less than three or not less than five years is the standard provision for public appointments"

should actually say, "Not more than three or not more than five years is the standard provision for public appointments".

Do you mean not less than three and not more than five?

I will hand over to the legal adviser.

I will try to clarify. It would be normal to put some kind of cap on the maximum period of time for which a public official could be appointed. Sometimes that is not more than five years, sometimes it is not more than three years. That allows someone to be appointed for a shorter period than the maximum, if that is thought appropriate. However, a person could not be appointed for six years, if the legislation has capped the maximum period at five years. Does that clarify things?

Are we saying that the term of office should be not more than five years, rather than not less than five years?

If the appointment is specified as not more than five years, there is the flexibility to appoint somebody for three years, if desired.

If we moved to not more than five years, that would give us flexibility from zero to five.

It sounds as though not more than five years would meet the committee's policy intention.

The suggestion in the briefing paper—that the appointment could be for three years initially and could be renewed for five years—seems funny. I would have thought that it should be the other way around—the initial appointment should be for five years and could be renewed for three.

The paper suggests that the appointment should not be renewed as a matter of course—that renewal should be rare rather than commonplace—and that there should be a maximum beyond which a commissioner should not serve. The suggestion is made, on the fourth page of the briefing paper, that that maximum should be 10 years.

The initial appointment should be for five years, since it would take a while for the commissioner to gain experience and understand how Parliament works. One would not want the person to have just learned that and then to go.

Having thought again about the matter during this discussion, I am quite keen—although like Tricia Marwick I do not think that there are huge disadvantages either way—on the bill specifying that the term of appointment should be for not more than five years, but that we can reappoint someone at the end of that term, if we so wish. I agree with the briefing paper that further reappointments thereafter should not take place. The job should be done for a period of time, but not indefinitely.

Let me just get this right for the clerks. We are agreed that we should include in the bill a term of office of up to five years with the flexibility to reappoint if we so wished. Is that a fair reflection of our conclusions?

I know that Patricia Ferguson can speak for herself, but I think that she was saying that we should specify in the bill that the term of office should be for not less than five years—

Not more than five years.

Sorry, not more than five years.

In addition, there should be a separate sentence stating that the committee can reappoint the commissioner for a further period of not more than five years.

Are members content with that?

Members indicated agreement.

Thank you.

Next, we must consider whether a time limit should be imposed on the submission of complaints. Should complaints be time barred? If so, should time run from when the complainer first became aware of the matter, or from when the alleged event took place? At our previous meeting, the consensus appeared to be moving towards the second option. If that is the case, what time limit should we set? Should the commissioner have discretion to take on complaints from outwith the time limit, or should that discretion be exercised by the committee? Again, I think that our previous discussion inclined towards the view that there should be discretion, which should be exercised by the committee, and that the commissioner should refer any such complaints to us for a decision.

For the purposes of drafting the bill, the clerks would like further guidance so that they can be absolutely sure about members' intentions.

I do not remember the consensus moving towards the latter option—I was in favour of the former. The time should run from when the event took place, not from when the complainant became aware of it. I was content that the time limit should be seven years from when the event took place; that is the limit that Westminster uses.

We should adopt the measure, which the convener talked about, that the only way in which the time bar can be broken is by the complaint being referred to the committee itself. I think that that is suggested a couple of times in the briefing paper. The system that we have set up for dealing with complaints means that the commissioner would not be able to investigate a time-barred complaint—if I am reading the briefing paper correctly, such a complaint would be dismissed right away. In other words, if a serious complaint is time barred, it should be referred first to the committee, which could then refer the complaint back to the commissioner.

Did I make myself clear?

Yes, I was following. What about other members?

I do not agree with Ken Macintosh on this one. The time limit should run from when the matter first comes to the person's attention. Given that, I would also prefer a shorter time limit. I cannot think of a reason—perhaps someone else can come up with one—why someone would not raise a complaint almost immediately the incident had come to their attention, or perhaps after some thought and deliberation or discussion with another party. For that reason, if we accept that the time limit should run from when the incident is first acknowledged or comes to light, I suggest that the time limit should be one year.

We have a distinct difference of view. What do other members feel?

Patricia Ferguson made a strong point. If, for example, somebody has a medical operation and a complete botch is made of it, but they do not find that out until a year later, is it fair that they should be time barred because they were not made aware of the situation earlier? That subject does not come under the commissioner's remit, but it is only fair that the time limit should run from the point at which the complainant became aware of the problem.

The second issue is the length of the time limit. If it is too restrictive, people will feel aggrieved. It should be longer than a year. The time limit at the House of Commons is seven years. Ours should be something approaching the same.

The House of Commons time limit is seven years from when the event took place. We must be clear what we are talking about.

As I understand it, there is a choice. If the time limit starts from the original event, the period will be quite long. If the limit starts from when the complainant realises their concern, the period will be quite short.

Can we consider whether the time limit should start from when the event takes place or when it first comes to light? I have not heard from other members on that point.

I incline to the view that the time limit should start from the time that the grounds for complaint come to light. There would be difficulties with a long time scale between the incident and the complaint. Later, we will discuss what powers the standards commissioner will have and, indeed, what powers the committee has—we have powers only over MSPs.

A longer period—from the time of the incident—would be problematic. I incline to Patricia Ferguson's view that the time limit should start from when the problem comes to light and that the period should therefore be shorter. If something had happened eight years ago, for example, and I had just found out about it, I would not delay making a complaint for another eight years. Something between a year and two years should be the maximum time limit from when somebody became aware of the incident.

However, I worry about putting that in the bill because a complainant could claim that they did not know about the incident for quite some time, and the incident would get further and further away in time. We would be opening the door to somebody saying that they had just found that X MSP did whatever in nineteen-canteen, that they now want an investigation and that they have just found out about it 15 years down the line because their mother or their granny happened to mention it to them.

There are problems with both ways.

Perhaps the clerks or lawyers can advise us. In the case of the local government ombudsman, is there a phrase in the provisions for the time bar that says something to the effect that "when it could be reasonably expected that somebody should know of an incident"?

That would be the standard type of provision for such a time limit.

Reasonable expectation?

Yes. It would open the door to what could be reasonably expected. Perhaps that is not as clear cut a starting point as when an event took place.

If the time limit runs from when the matter first comes to the attention of the complainant, it should be slightly more than a year. It should be up to four years, which would be broadly comparable with the House of Commons.

I think Kenneth Macintosh was the only one to suggest that the time limit should run from the incident. The majority of members feel that it should run from when the incident first comes to light. Is that the case?

Members indicated disagreement.

I see heads shaking.

The problem is that the two issues cannot be divided. My view on the time limit will very much depend on the decision that we make in the first instance and vice versa.

Tricia Marwick made a good point about the possibility of somebody deciding—for malicious or mischievous reasons—not to complain at the time of the incident and then to claim that they did not know about the incident until they complained. I do not know how we, or the standards commissioner, could monitor that.

Should we go with Kenneth Macintosh's suggestion?

I still think that what we said originally is correct, on the face of it, but I would like to hear about the experience of other bodies that have a similar way of working. What do they do to prevent incidents in which someone pretends that he or she did not know about a matter?

The local government ombudsman has provision for such cases. Can the legal advisers say a bit more about that?

I cannot say more on the local ombudsman's experience of how the provision works or whether problems arise in applying it. I simply do not know.

From the background reading that we did, my recollection is that such cases, although not rare, are not frequent. We could get some information on that.

We could come back to that point.

I am loth to ask the clerks to do any more work on this; they have already done a lot of good work. I would, however, greatly value some further information.

If the committee's agreed, principled position is that the period should start from the date on which somebody knows about an issue, the consequence of how to deal with the investigator's assessment of when the person ought to have known about it can be dealt with. The committee should not regard that as a stumbling block to reaching the decision, in principle, that it wants to reach.

Such matters are handled in other types of jurisdiction, as it were. It is not beyond the wit of draftsmen to come up with a way around the problem.

Are you content with that advice, Patricia?

Yes. I think so.

In principle, should we go down the route suggested by Kenneth Macintosh or the route suggested by others?

I have years of experience in local government and in dealing with ombudsman issues. If there were reasonable doubt about when a complainer had come to know about an issue, discretion would tend to be exercised in favour of allowing the investigation to proceed. If it were plain that the complainer had correspondence or notices that ought to have drawn the matter to his or her attention, the committee would take a harder line in exercising its discretion.

In that case, I am happy to support what Patricia Ferguson has said. If "within 12 months" means that in special circumstances a complaint can be considered outwith that period, that meets the requirements.

In view of what Bill Thomson has helpfully said, I am content to go back to the option of a time limit starting from the point at which the person first knows—or could reasonably be expected to know about—an incident, or whatever form of words we come up with. The time bar should be for one year with the proviso—as we have discussed—that, in exceptional circumstances, there would be a possibility of the commissioner bringing to the committee's attention a case that it might wish to have investigated further.

There is no right or wrong solution. We must simply choose between two options.

The benefit of having a seven-year rule would be that such a rule makes it clear that there is less of an element of discretion for the commissioner, or anybody else, to decide. There would also be no doubts about when the event took place. The event would have a date whereas, frankly, a date of discovery is rather arbitrary.

The seven-year rule has many attractions. It is easy to understand and there is an opt-out. If a serious complaint were to be missed or overlooked because of a time bar, that would lack natural justice. There is, however, a way out of that situation. If a serious complaint were made outwith the seven years, the commissioner would refer it to the Standards Committee.

Within the seven-year period, the commissioner would deal with all matters; he would not have to refer incidents and would not have to make a judgment on when the event came to light. Indeed, nobody would have to make a judgment on whether or when somebody heard about something or whether somebody was making mischief. That would be an advantage. The seven-year rule would take out of the hands of the commissioner any decision-making discretion that, frankly, he or she could do without.

There are two reasons for which I still think that a one-year time bar, starting from the date at which an incident comes to light, is a better option.

Last week, the committee expressed concern that, if there were a long time limit, a case may have to be dealt with that involved an MSP who had demitted office or even died in the intervening period. That may also happen, although I think less frequently, under the present system.

We have fewer sanctions over former MSPs and—in a sense—they have less responsibility for their previous actions. I hate to think that we would often have to investigate a matter in which no serving MSP was involved. Also, as I mentioned earlier, someone might deliberately delay making a complaint—if they have seven years to put forward a case, there would be nothing to stop them thinking that they should sit on it for a while and allow things to become murkier. They might think that their case would sound better as a result, or that matters might fade into distant memory.

Cases have to be dealt with as promptly as possible, in order that the evidence remains fresh and that any paper trail is available to the standards commissioner.

I agree with Patricia Ferguson. The time limit should be applied from the time that it is reasonable to conclude that somebody became aware of a complaint that they wanted to put forward. For all the reasons that Patricia Ferguson outlined, I am inclined to the view that the time limit should be a year, with the proviso that—under exceptional circumstances—the Standards Committee could decide whether a complaint should still be investigated, even if it is made outwith the one year limit.

I thank members for their contributions and draw the discussion to a close. We will proceed down that route, and I think that the clerks have got the gist of what we need.

The final point under this agenda item is complaints against former MSPs. Are we agreed that former MSPs should be subject to investigation by the standards commissioner and the Standards Committee? If so, should specific reference to that be included in the bill and in the standing orders?

Yes, but I do not understand why specific reference would need to be made. The end of the final paragraph of the briefing paper suggests that

"a broad reading of ‘a Member's conduct'"

would allow us to undertake such investigation.

In the final sentence, the paper says that:

"although a former Member would not be subject to the sanctions available to the Parliament, arguably the Committee's finding of a breach might be deemed to be sufficient castigation."

I agree entirely with that last point. We are talking not about illegal behaviour, which would be a matter for the procurator fiscal, but about finding that MSPs have misbehaved or behaved inappropriately. In theory—although I am not suggesting that this would happen—somebody could do something a couple of months before the election but, if they are not elected, would effectively get away with it. It is easy to envisage that if they were to be re-elected, it would seem as if nothing had happened. I do not think that that would be appropriate or fair.

The problem is not whether the standards commissioner can consider complaints against former MSPs but that, if we include such provision in the bill, first we must seek to change our remit, which covers the conduct only of serving MSPs. We are being asked to give powers to the standards commissioner to investigate former MSPs, when the Standards Committee does not have any such power or influence.

If members do not mind, I will ask our legal advisers to advise us on that point.

There is some doubt. That is why the paper includes the suggestion that standing orders could be amended in due course. There is sufficient cover at present to proceed.

Did you say that there is sufficient cover to proceed?

With the policy, yes. However, standing orders would need to be amended to offer certainty for the future.

Is there some doubt?

One view is that the standing orders are sufficient, but this is the sort of area where—to avoid any argument—members would want to be certain. It would be advisable to amend standing orders. Even now, that could be done separately without the bill being needed.

I accept the points that our legal advisers are making. We need to examine that area. The Standards Committee cannot include in the bill proposals that will give the standards commissioner—who will derive his or her authority from the committee—more power than the committee. If we allow the commissioner to investigate the conduct of former MSPs, we need to consider changing our remit, by changing the standing orders, to give us the power to undertake such investigations.

There is no question of giving the standards commissioner powers that the Standards Committee does not have. The matter is open to interpretation, as the powers that will be used are an interpretation of our powers, but, for clarity, we could amend the standing orders. We do not have to do so, and we certainly would not give the commissioner more powers than we have. At the moment, we could investigate former MSPs—there is only one—under a broad interpretation of the standing orders.

Is not it the case in the House of Commons that former MPs can be—and have been—investigated?

Yes, I think that that is the case.

We should not set a lower standard than the House of Commons.

Certainly not.

If ex-MPs can be investigated, the same should apply to ex-MSPs.

The point has been made that we need to look at the standing orders for clarity.

The non-Executive bills unit and the clerks will finalise the drafting instructions and prepare a draft committee report that will set out the provisions that we intend to include in the bill.