Standards Committee, 16 Jan 2002

Meeting date: Wednesday, January 16, 2002

Official Report 124KB pdf

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Complaints (Disclosure)

Item 3 concerns disclosure of complaints to the media. Following our consideration of a complaint against Lloyd Quinan in December, the committee agreed that the current wording of section 10.2.1 of the code of conduct, which relates to the disclosure of complaints in the media, is ambiguous. The clerks have prepared a paper that sets out a series of issues that we will wish to consider in drafting our amendment to section 10.2.1. I suggest that we go through the issues, which have been highlighted in bold in the paper.

Paragraph 5 of the clerks' paper asks whether the code should explicitly prohibit members from publicising an intention to make a complaint. Does anyone want to comment on that?

My natural instinct is to say that we should try to restrict such tactics. We should try to achieve a balance between rights and responsibilities. In the way that the media report, the narrative of any media story must be a conflict of concerns. If a member makes an allegation and gets the story into the media and, even after thorough inquiry, nothing is found—as in the majority of the cases that we have looked at—the original allegation is still in the public domain. The allegation can still be referred back to and seen in press copy. If someone were to review the member's parliamentary career to date, that story could be referred back to as the telling factor in their life. We need to be careful.

Our experience of the recent case was that it became caught in that crossfire. If there is anything that we can do to minimise that, let us do it. We should make the rules transparent, so that nobody can go round using Philadelphia lawyers to find the nuance and meaning of a single word and say whether it is appropriate, depending on the day of the week.

I agree with Frank McAveety, and I was interested that he referred to tactics. An allegation could be used as a tactic. We all know how newspapers and the media work. They want something to hang a story on; that could be a parliamentary question or, as in the last case, a member could be asked whether they intend to make a complaint and reply that they do. After that, the story has legs, arms and everything else. It is important that we clarify the code.

If we clarify the code, MSPs should be informed—if possible, by a direct letter from the convener—so that there is no possibility of their slipping up on it.

In the past, MSPs have made political points and written to the Standards Committee. Those members have been making debating points about this or that, but the points have not amounted to a complaint against another MSP's honour. There is a distinction between party-political knockabout and somebody making a serious complaint against another's honour, which merits investigation. We are concerned with the latter.

I echo Lord James's point about communication. When we finalise the process, clear communication to members will be important. We cannot expect members to follow rules if those rules are not clear to them. The existing rules were not clear to me until I sat in the committee's meetings and started to pore over them.

I have a point of clarification, which also ties in with what Lord James said. I agree with paragraph 5, but does it propose a restriction only on a member saying to the press that they intend to make a complaint against another member? In other words, if a member were to criticise another member at length in the press and subsequently lodge a complaint but say nothing further to the media, would that be acceptable under the circumstances that are envisaged by paragraph 5?

My understanding is that if somebody said that they were going to make a complaint to the Standards Committee, and thereafter made a complaint to the Standards Committee, they would be prohibited from making that complaint under section 10.2.1 if we change it to make that explicit.

As politicians, we must all be clear about the points that Lord James Douglas-Hamilton made. There is sometimes unacceptable political knockabout. There is a difference between criticising a fellow MSP in the press and intending to make a complaint to the Standards Committee. We should make it clear to MSPs that they should not allow a story to hang on the fact that they intend to make such a complaint. There is a difference between political knockabout and an MSP's bringing the Standards Committee into a private or public argument with another MSP. We must make it clear that complaints to the Standards Committee are serious and go through a process. Everybody must take the process seriously.

I support that. It is a good idea to make it clear what is and is not allowed. The spirit of what was intended in the previous amendment was obviously not captured in the draft. I hope that, when the paragraph is redrafted, it will capture the full spirit and intention of the rule; if it does not, we will effectively allow trial by media, which is what we are trying to discourage.

We should not be under any illusion that, if anything is referred to a standards officer, the story will not find its way into the media, because third-party usage will be the protocol. Either way, we might end up protecting the interests of a member—quite rightly—by not allowing them to be involved in the process so obviously. If anybody is going to engage in the process, they just might be slightly more subtle about it. The difficulty will be that the press will get hold of things and say, "We know that there is a report. Do you want to comment?" All members should then decline. There should no longer be a byline that allows any MSP to say something regarding a case. That is not to say that there will be no coverage of such cases; the reality is that the information will be out there somehow.

One of the criticisms of the commissioner south of the border was that she informed the press of the broad nature of the complaint whenever a complaint was made to her—at least, that was the allegation. We should consider whether the commissioner or adviser should say, if they were questioned by the press, "I cannot say whether I am considering that." Perhaps the commissioner should say "No comment" until he or she has reported to the committee.

The committee is considering two things: the code of conduct for members and a bill to create a standards commissioner. The bill is quite well drafted and I am not sure where we stand on directing a standards commissioner not to disclose information.

Perhaps the clerk can clarify the matter. I understand that the adviser will not publicise a complaint against a member but will report to the committee.

That is correct. If the clerks are approached by the media—occasionally we receive telephone calls regarding media and other inquiries—our line is always that we do not comment on complaints.

That is all that I wished to clarify.

That is good practice that should be followed.

Paragraph 8 of the clerks' paper asks whether the rule should also prohibit members from discussing complaints during stages 1 and 2 of an investigative process. I am not sure whether that would mean that all members would not be able to speak during the process or whether the rule would apply only to the member who is affected by the complaint and the member who made the complaint. That is not clear. What is meant by that?

That links into paragraph 10 where we raise the question whether the member who is the subject of a complaint should be permitted to have a right of reply when a complaint becomes public while it is still being considered by the adviser. The other point about paragraph 8 is that, as currently drafted, the code says:

"MSPs should not communicate any complaint to the press or other media until a decision has been made as to how the complaint is to be dealt with."

That suggests that once the adviser has decided that the complaint should be subject to a full stage 2 investigation, the member who has made the complaint or is linked to the complaint can then raise the matter in the press.

In the committee's recommendations in the models of investigation report, and in the standards commissioner bill, the committee envisaged that stages 1 and 2 would take place in private. If there is discussion of the matter in the press, that could prejudice the commissioner's or adviser's investigation. The two issues are tied together.

We could consider paragraphs 8 and 10 together.

In relation to paragraph 10, the complaint against me—to which I have referred before and will refer again—went into the media and I was not going to be tried by the media. I made full and robust rebuttal of the complaint in the media. If we accept paragraph 10, that means that a member will face trial by media if the matter is already out in the media and the media are commenting. If we suggest that members cannot comment or defend themselves, we will have the situation that Frank McAveety described. Things will be on the record, but nothing will be heard from the member. As a member of the Scottish Parliament, I am clear that I will defend myself in any forum against a complaint that I view as spurious.

Any member should be allowed to defend their honour if they are under attack. That principle cannot be breached.

Until we dealt with the matter, I did not realise that members could defend themselves. Some members were working under the misapprehension that, if a complaint was raised against them, they could not speak to the media.

If a complaint is aired, for whatever reason, I feel that members should have the right to respond if they choose to do so. A complaint may not necessarily be aired by the person who made the accusation, but the media could print the allegations. However, if the member chooses to respond, his or her words could be used as the basis for further media coverage.

I am torn between imposing a complete blanket ban and giving members the right to defend themselves.

There is another issue to be considered. We are assuming that all complaints that are made to the Standards Committee, or to the standards commissioner, come from fellow MSPs. The reality is that some complaints come from members of the public or, in some cases, from the media. We have no sanctions against either of those groups if they want to put the initial complaint into the public domain. Our only concern is the behaviour of MSPs and that is what we are dealing with.

As in my case, there is a possibility that a complaint could be made by a member of the public to the press at the same time as the complaint is made to the Standards Committee. I found out about the complaint against me through a faxed letter from various press people who wanted me to comment. Under those circumstances, I was not going to sit back and I give full warning that I will not do so in the future.

We are talking about different circumstances, not just about complaints from MSPs. We have to be careful about paragraph 10 because it would preclude members from speaking, particularly if they are the ones who are being accused and are contacted by the media.

You are right—I was thinking purely in terms of members' complaints. If a member of the public complains about an MSP, we have no sanction against the member of the public and they do not have to abide by any code of conduct. It is only fair that members should be allowed to defend themselves and there should be a right of reply.

The practicalities of policing the rule would be almost impossible. If someone thinks that they are being unjustly accused of something, the natural reaction is to respond.

I have been thinking through situations that have some similarities. I am not talking about politicians, but situations in general where individuals are under investigation or have had claims made against them. There are those that are dealt with formally through the justice system, but there are also employment situations or their equivalent, where allegations are made about employees and where the employer—and people in general—would make no comment or would be expected not to comment. Again, accepted practice would be that the individual concerned could, if they so wished, issue some form of denial or say that they will challenge the allegations and expect them to be considered accordingly.

We need to create a situation where the whole thing is shut down—in the best possible sense of "shut down"—as much as possible, while allowing space for the individual to issue a denial. It would be inappropriate and unbecoming for that individual to fan the public debate. However, I suppose that we cannot write restrictions on that into the rules—we have to leave it to the individual.

In essence, I agree with other members. Paragraph 8 should refer to all members. It should be clear that the rule is inclusive—it does not just apply to the individuals who are involved in the complaint. The exception is the person who is being complained against, who would have a right of reply. I am sure that there is some formulation of words that could reflect that.

I suggest that the clerks come back with a further paper, on the basis of an amendment to section 10.2 of the code of conduct. Perhaps when we see the revised wording, we can discuss the matter further.

The essence of the matter is that the making of a complaint should not be publicised. If a member is asked at a public meeting what they are going to do about some outrage, they might reply that that would be a matter for the Standards Committee. That response would not be completely wrong, but it is not far away from expressing intention to make a complaint. It is the formal making of a complaint that should not be publicised.

Is it agreed that we ask the clerks to come back to us with an amendment to section 10.2 for our further consideration? The clerks have a feel for how the committee views section 10.2.

Members indicated agreement.