Standards Committee, 14 Jun 2000

Meeting date: Wednesday, June 14, 2000

Official Report 154KB pdf

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Models of Investigation

Item 1 on the agenda is the conclusion of our inquiry into models of investigation of complaints. At our previous meeting, we agreed to delay a decision on whether to appoint a standards commissioner or a standards officer/adviser, to allow members to take soundings on the options. I suggest that we make a final decision this morning. The clerks will then complete a draft report on the inquiry for consideration by the committee.

I open the floor to members, who may refer to the briefing paper. I want to hear members' views. It is important that we reach a decision today.

Elizabeth Filkin, the Parliamentary Commissioner for Standards, stressed in her evidence one of the advantages of having a commissioner. She said that if someone wants to suppress evidence, they are more likely to respond to an office that commands respect in the community, than if they have to deal with someone who is seen as a relatively junior official. An adviser or clerk would not automatically assume the same clout in the public mind as a commissioner. That is important.

Secondly, a commissioner would have statutory powers of investigation. If there were an inquiry in which confidential documents had to be obtained, the committee has been satisfied, having examined the legal advice carefully, that sufficient powers would exist for the commissioner to go through with the inquiry effectively. I am not at all sure that the powers would be sufficient if we had an adviser. Thirdly, a commissioner would command more public confidence. It will enhance the stature of the Parliament if we are seen to do this properly, rather than in a lesser way.

I agree with Lord James. We should take the option of a commissioner for two reasons in particular, although they are not the only reasons. First, the fact that we need to pass an act of Parliament to appoint a commissioner is important. It sends out the right signals about the seriousness with which the Parliament wants to proceed and about our commitment to being as open and transparent as we can be. Secondly, it has been demonstrated to us that the role of a commissioner is seen as far more independent than the role of an adviser. That fits in with the standards that the Parliament and the committee want to set.

I am inclined to agree with the notion of a commissioner, but with one or two caveats. I am concerned that the commissioner should remain the servant of the committee. The committee has to maintain a role in the process. There is a definite role for a commissioner in undertaking the sifting of complaints and preliminary investigations, but if we go down that route, there are one or two areas in the briefing paper where we will need to clarify the respective roles of the commissioner and the committee, to ensure that we get the correct balance. I will detail some of those points, if you like, but I am aware that you are taking a trawl around the table.

It would be helpful to get those details, Des.

I can give those details, but do you not want to hear from other members first?

I will hear Tricia Marwick's views on a general point first.

I have argued consistently that we need an adviser, not a commissioner. Although I understand other members' comments, part of the problem is that we are focusing on issues such as names and whether a commissioner has more status than an adviser. As Patricia Ferguson rightly said, having a commissioner will need an act of the Parliament.

The committee is very aware that it must be seen as open and transparent, and must enable the Scottish people to be confident that the Scottish Parliament will be different. If we are to have a commissioner—which seems to be the feeling around the table—I agree with Des McNulty that the respective roles of the commissioner and the committee must be outlined in some detail; I do not want to go down the road of the Westminster commissioner model, which puts far, far too much power in the hands of one person. The model of a standards commissioner in Scotland should reflect the Scottish Parliament's needs, and should not be based on another Parliament.

Karen Gillon has just arrived. Karen, we are just getting views round the table about appointing a standards commissioner or adviser. So far, Lord James Douglas-Hamilton, Patricia Ferguson and Des McNulty have come out in favour of a commissioner and you will have heard what Tricia Marwick has just said. I am keen to hear what you have to say.

Sorry I was late, convener.

As the committee will know, I was one of the more sceptical members of the committee about commissioners and advisers. However, after our experience in October and the evidence that we have heard, I have come round to the view that the Parliament should have a standards commissioner, because we need someone who can maintain political independence. If we are honest, even with the best will in the world, all of us come with some baggage. It is best that the investigation role is carried out by someone who is independent of the committee. If we are serious about our Parliament, that person should have the authority and the status that goes with working for a Parliament. I was very much swayed by the legal team's evidence that the committee could be open to legal challenge if it had the investigation role and also decided on sanctions, even though such decisions would be referred to Parliament.

Furthermore, during the lobbygate inquiry, I became very aware that we are not professional lawyers—my good colleague Lord James excepted. If people do not have the skills to cope with the investigative nature of an interview or interrogation—or whatever you want to call it—often it is difficult to follow the right line of questioning. Points might be missed that would not be missed if there were more time to go through all the detail and to pull things back and forth. I have become convinced that we should have a commissioner. I understand that that will require an act of the Parliament, but we should proceed urgently down that road.

There seems to be a clear majority on the committee in favour of a standards commissioner. However, having heard the points that were raised by Des McNulty and Tricia Marwick, I think that it would be worth spending a bit of time considering the detail of the powers of the commissioner vis-à-vis the committee.

Having arrived at the view that it would be best to appoint a commissioner, I have gone back through the procedures that are outlined in the paper on models for investigation of complaints, and found that some areas need to be clarified.

The briefing note talks about stage 1 and stage 2 of the investigative procedure. We must make it absolutely clear that every time stage 2 is mentioned, the investigation will be a detailed investigation of the facts. That reference to the facts is missed out from time to time.

It might be helpful if I go through the paragraphs of the report. For example, I suggest that, in the third paragraph of the section on stage 2, we insert the phrase "an investigation of the facts by the commissioner".

I should point out to members that this is not a report, but a briefing paper.

Any investigation by the commissioner should not simply investigate the facts, but should establish the facts with a view to finding out whether there has been a breach of the rules.

I would be happy with that wording. I just think that the roles of the commissioner and the committee at stage 3 need to be made more explicit.

The paper refers sometimes to what the committee would receive from the commissioner as a "recommendation" and at other times as a "report" with conclusions. We should actually receive a report with conclusions based on recommendations from an investigation of the facts. We need to be clear about what we should expect; we want to know from the commissioner whether there is evidence of a breach of the rules, which the committee will then decide how to deal with.

I want to deal with paragraph 5(c) of the paper, which describes one of the principal options after an initial investigation:

"A complaint discloses information that might, if proven, constitute a criminal offence"

If we received such a report from the commissioner, which should presumably be referred to the appropriate authority, what would we do with it? Presumably, the commissioner would have found a matter that should be referred on to someone else. Would that report be put into the public domain? I have some reservations about that.

I have received advice that such a situation would become apparent relatively quickly. At that point, we could ask the commissioner to report to the committee for us to refer the matter to the appropriate authority—such as the procurator fiscal—or the commissioner could have the power to refer it automatically; it is up to us to decide.

That is an important issue, which we must sort out.

We should get some legal advice on the appropriate course of action. My initial position is that we should refer the matter to the appropriate authority. However, that might not be the most appropriate step in legal terms.

There is a degree of personal responsibility. If an individual were given evidence of a serious crime—we hope that this will never happen—he or she would be under a duty to pass on the information. However, if that person were the commissioner, they would also be under a duty to inform the Standards Committee.

My concern is that a matter might be made public before the appropriate authority had investigated it.

With due respect, matters that are referred to the procurator fiscal are often public before they are subject to full investigation. If someone has been murdered, the case will be referred to the procurator fiscal and people will know that. I have been referred to the procurator fiscal and it was made public that that was happening.

With the best will in the world, if we tried to conceal the fact that something was being referred to the procurator fiscal we would probably find it in the pages of the press before we knew it. In the interest of transparency, it should be open and above board. If something comes out in the newspaper, people often think that there is more to it than if it comes through the deliberations of a commissioner or a committee.

It is virtually unheard of for a commissioner or a committee to refer a matter to a procurator fiscal. I was an interim procurator fiscal and, happily, no complaints against elected representatives ever came anywhere near me. However, if it happened and there was evidence of a serious criminal act, the individual who was the recipient of that information would be under a duty to pass it on.

We are highlighting our concerns so that we can get the appropriate legal advice. We can draft a report and return to it later, but it is important to raise any areas of concern.

There are certain matters on which we need to make decisions. For example, paragraph 7 highlights such a matter.

If we gave the status and authority to a commissioner, rather than appointing an adviser to the committee, that would suggest that the commissioner should carry out the investigation at stages 1 and 2 without necessarily reporting back to us at every turn. I would be interested to hear members' views on that.

It is suggested that, under the model that we have already chosen, in stage 1, when the commissioner carries out the initial investigation to determine whether there is case to answer, he can reject complaints and notify the Standards Committee that a complaint warrants further investigation. The commissioner can inform us that he is now investigating the complaint.

If someone writes to say that they do not like the way in which their MSP has voted on a particular subject, that is a matter for the electorate to address at the next election; it is not a complaint to the committee. MSPs are entitled to vote according to their conscience and their beliefs, after weighing up the merits of each issue. Such complaints need not come before the Standards Committee.

That is correct. The briefing paper suggests that the commissioner would carry out an initial investigation and determine whether there was a case to answer. The commissioner would reject a complaint such as the one that you suggested without needing to inform us. When the commissioner was about to launch an investigation, he would inform us that that was what he was going to do. He would then carry out the investigation and produce a report with recommendations.

There might be a caveat to that. If something appears in the public domain before an investigation has taken place, the Standards Committee needs to be informed what happens subsequently. We do not want a complaint to be reported in the press, the commissioner deciding not to proceed and the matter floating about in the press for some time before anything happens. We cannot leave things up in the air. If something is in the public domain, we should know that it has been deemed frivolous and unworthy of investigation. If not, there will be a shadow over the member concerned and that is not how we want to proceed.

That is an important point. It would be helpful if we could address that in the report.

The wording of paragraph 5(b) might cause problems:

"A complaint is considered to be genuine but not of a criminal nature."

I am not sure about "genuine". We are referring to a complaint that warrants further investigation as a potential breach of the code of conduct.

We can change that to read either "warranted" or "well-founded". We have already referred to unwarranted.

I prefer warranted to well-founded; well-founded is somewhat presumptuous.

I had envisaged that if the initial investigation disclosed an allegation of criminal behaviour, the commissioner would refer the matter to the procurator fiscal. It would be fairly unlikely that potential criminality would come out at stage 2 without having been anticipated at stage 1.

That is an important distinction. If someone alleges something of a criminal nature, as an MSP I have a duty to pass that on to the police. It is for the police to investigate criminal matters. I assume that the same would apply to a commissioner and the Standards Committee; we are not in the business of being a criminal investigation service. Anything of a criminal nature would come up at stage 1 and it would be inappropriate for us to decide whether a criminal allegation was founded. That would be a matter for the appropriate authorities to decide.

If a complaint merited criminal investigation, all that the committee would want to hear would be that the matter had been handed over to the relevant authorities. We would not need to know more than that.

Do members feel that the clerks have sufficient guidance to produce the draft report?

Do the clerks feel that they have sufficient guidance to produce the draft report?

Yes.

There was one aspect of Elizabeth Filkin's role at Westminster—the job of giving advice to members—that I was not 100 per cent sure we would want to give to the commissioner in Scotland. That is covered in paragraph 29 of the paper. I have reservations about that; I do not think that it would be appropriate for the commissioner to give advice on such matters.

I would like to hear everyone else's views on that.

I concur with Patricia Ferguson. When Elizabeth Filkin gave evidence to the committee, I was concerned by the fact that she gave guidance to MPs as well as having an investigatory role. I have raised previously the fact that a commissioner should not be an adviser, in any shape or form—that should be left to the clerks to the committee, or whoever. There is an inherent contradiction in Elizabeth Filkin's role, which we cannot have.

Everyone is nodding.

The normal route would be to take advice from the clerk, who gives very good advice. However, if there were a complaint, I can envisage a situation in which deciding whether a member had broken a rule would be a grey area. The commissioner would ask to see the MSP and ascertain the facts. The MSP might ask how he or she should act to bring him or herself back into order, and the commissioner should not necessarily be barred from giving an answer to that question. By that time, the acts that had been complained about would have happened. That is what Elizabeth Filkin does.

There is a distinction, is there not, between that situation and an MSP being referred automatically to the commissioner for advice.

Yes. In those circumstances, the clerks would give the advice.

Is everybody happy with that?

If someone has failed to register an interest and a complaint is referred to the committee, I do not have a problem with the commissioner at the same time recommending that the member register the interest. That is appropriate and would save subsequent complaints about something that perhaps happened because the member did not know. I recall that we gave advice to Mike Watson, through the clerks, that he should change his register of interests.

The commissioner should not give advice on how someone should act to avoid a complaint being made—that is the role of the clerks—but once a complaint has been made, it would be a bit daft if the commissioner had to say, "Sorry, I cannot tell you. Go and see the clerks and they will tell you how to put it right." That would be stupid.

That is an important point. I think that we accept that there is a distinction between the usual avenues of advice, which would be through the clerks, and the activities of a commissioner in the performance of his or her duties, when they would, of course, be free to advise members who came before them or who were being interviewed.

Two things concern me. First, the Standards Committee might want to recommend to a member, as part of its finding on a specific case, that he or she put his or her register of interests in order. We need to be clear that we could do still do that. However, Karen Gillon has pointed out to me that, unlike now, when we meet every two weeks, we may meet only monthly, so there may be a gap during which the member would be vulnerable. We do not want that to happen, but we need to be careful about where responsibility for giving advice falls.

We are drawing a distinction. We are not prohibiting anyone from giving advice; we are saying that the normal avenue of advice will be through the clerks to the committee. Is everybody happy with that?

No. My concern about Elizabeth Filkin's role is not just that she gives advice. She may have been being particularly careful and diplomatic when she explained her role to us, but I felt that there was a contradiction in that she may be called to investigate a member to whom she has previously given advice. That is a real contradiction. Can someone do that without being prejudiced about the outcome, given that the member followed that person's advice?

Or did not.

Indeed. I still have concerns.

That is generally accepted.

It is a matter of degree. A minor matter might go to the commissioner. However, if it is a serious matter, such as an allegation of corruption—although that would go to the procurator fiscal—Patricia's point comes into play.

I am confident that the clerks have got the feedback from members.

I seek clarification of what constitutes a report. Do the committee's deliberations on cases that have reached stage 3 constitute the basis for a report for stage 4, or will something be published separately following the committee's deliberations? How will that differ from the way in which we will report cases that do not reach stage 3? Is there a different reporting procedure for cases where we recommend to Parliament that sanctions be taken? The word "report" could be used in all three instances.

I find it difficult to envisage a situation in which a published report would not be produced after stage 3. Stage 4 would be a report on the particular investigation.

Would that be separate from our minutes?

I think that it would have to be, so that it could form the basis of a debate in Parliament. It would be unusual for there to be a separate report if the case had not proceeded to stage 2. If something is to be dismissed publicly, to come back to Karen Gillon's point, I think that it would be sufficient for that to be done in a public meeting of the committee. There may be exceptions, but that would be the norm.

That would be acceptable. I envisage that anything that proceeds to stage 2 of an investigation would be subject to a report to the committee and subsequently to Parliament, regardless of whether any sanction was conferred on a member. If something were referred to stage 2, it would be sufficiently serious to warrant an investigation and there would be significant public interest in the results of that investigation. It would be only right, therefore, that a report on the investigation would be presented to Parliament, as the supreme body in the process. The recommendation may be that the report simply be noted, that no action be taken or that the recommendation be accepted, but if the case got to stage 2, it would be the duty of the committee to refer the conclusion of the investigation to Parliament.

I want to raise one other point before we move on. One of my concerns with Elizabeth Filkin's evidence was the length of time that investigations seemed to take. It took many months from the start of a complaint to the conclusion of her investigation—seven or eight months was not abnormal. That is not a model or a time scale that we want for the Scottish Parliament. I do not know whether we can put some sort of recommendation on good practice and time scales in our report. I would find it unacceptable if investigations here took the same length of time as they take at Westminster. That would not be helpful to anybody. We need to keep a firm grip on the length of investigations.

I accept that there is a need for us to keep a tight grip on the length of the investigation. There may be some difficulty in setting a timetable, as the length of the investigation would depend on the complexity of the case and the number of agencies or people that were involved. Sometimes something is opened up that leads to something else, which leads to something else that leads to something else. A time limit cannot be set for that, as we want to ensure that, when a commissioner deals with a case, they investigate it properly. We will not then be open to a legal challenge or a further action in the Court of Session or wherever to overcome a decision of the commissioner that is based on the taking of inappropriate or insufficient evidence.

The last thing that we want is for a member to be cleared by the commissioner only to appear in court the next month because somebody was not happy with the way in which the investigation was conducted. We cannot legislate against that, but we must try to be clear on the matter. We can try to set guidelines but, because of the length of the evidence-giving process, that might be difficult. I do not want an investigation to be precluded by the setting of time limits. We could have guidance, but not time limits that are set in stone.

I want to be absolutely clear about the status of our reporting. I presume that we might consider three levels of reporting. In a case that reaches only stage 2, we might produce a brief report to say that the matter had been investigated and had been found not to require further investigation. Would that have to be a separate, formal report to the Parliament, or would it be a written note?

No, it would not be a separate report.

For cases that reach stage 3, I presume that we would publish a report on our investigation, and our conclusions would be provided in a written report that would be made available to all members of the Parliament. If a case reached stage 4, I presume that this committee would ask the Parliament for time to deal with it and for sanctions to be taken by the Parliament. Those seem to be the three possible levels of report. Could you clarify the situation?

We envisage that we would receive notes for further investigation at stage 1 from the commissioner. The commissioner would provide a full written report for this committee at stage 2.

The report that we might produce for the Parliament would simply be a note of the outcome.

Yes. It would be a note of what we had decided, on the recommendations of the commissioner.

No, on the basis of the report and the commissioner's conclusions.

Yes, on the report and the conclusions.

It is important to remember that, by stage 3, we will have conducted an investigation.

We will also have considered the commissioner's recommendations.

We will have considered their conclusions and we will have conducted a further investigation. We will then produce a report to the Parliament on that.

That is correct.

I understand the role of the standards commissioner in investigating MSPs, but will he or she also have a role in examining the Executive and ministers? We need to be clear about that. There is a separate code of conduct for ministers. If we appoint a standards commissioner for the Parliament, we should make clear the extent of their powers, which should cover not only members of the Scottish Parliament, but ministers and the Executive. We are dealing with two separate codes of conduct: a ministerial code and a parliamentary code. The commissioner should have powers to investigate every member of this Parliament.

Our locus, and therefore the locus of the commissioner, is the code of conduct for MSPs. The ministerial code is a matter for the ministers. I think that that is the case, but I would be interested to hear what other members have to say about that.

You are absolutely right, convener. The only person who would have any sanction against ministers in the carrying out of their duties is the First Minister, and that is how it should stay. Our concern should be the code of conduct and members' adherence to it. By virtue of being MSPs, ministers will be subject to that code of conduct.

Any MSP can be proceeded against if he breaches our code of conduct. That applies to ministers as much as to any other MSP. The standards commissioner would, therefore, have the power to investigate ministers.

Yes.

We, in this committee, have always been aware that ministers are MSPs too. I am not so sure that all ministers recognise that.

This matter was raised at the previous committee meeting, and several articles have appeared in the press. I have made it clear to the minister concerned that ministers are covered by the code of conduct for MSPs. There is no doubt about that.

I want to return to those press articles when we deal with our future work programme. There is a distinction between what is covered by the ministerial code of conduct—the carrying out of the duties of a minister—and what is covered by the code of conduct for MSPs. We must recognise that that distinction is appropriately a matter for the First Minister's discretion. If the Parliament decides that the First Minister should not have that power and that it should pass to the standards commissioner, that is the decision of the Parliament—it is not for this committee to decide.

Let us move on from that point. Is there anything else that we need to address?

No.

In that case, we will bring our inquiry into the models of investigation to a conclusion. I shall ask the clerks to draw up a draft report for us, to be considered at the next meeting.