Standards Committee, 22 Mar 2000

Meeting date: Wednesday, March 22, 2000

Official Report 274KB pdf

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Investigation of Complaints

The first item on the agenda is the second evidence session in our inquiry into models for investigation of complaints. I am pleased to welcome Councillor Corrie McChord, who is the social inclusion spokesman for the Convention of Scottish Local Authorities; Eddie Bain, who is the legal adviser for COSLA; and Andy O'Neill, who is a policy officer for COSLA.

I finally welcome Elizabeth Filkin, who is the Parliamentary Commissioner for Standards at Westminster. We will be joined later in the meeting by Frank McAveety, the Deputy Minister for Local Government.

I invite our witnesses from COSLA to make some opening remarks.

We welcome and appreciate this opportunity to give evidence on the Ethical Standards in Public Life etc (Scotland) Bill to the Standards Committee. As we have already given evidence to the Local Government Committee and have had a fruitful meeting with the Deputy Minister for Local Government on the same subject, we appreciate that we have been consulted extensively on the matter and given ample opportunity to state our position in the consultation process.

Local government has always accepted the need for strict standards of probity in local authorities. In my time as leader of what was formerly a regional council and which is now a unitary authority—about 10 years—I have been directly involved with very few inquiries into members' probity. Indeed, I can count such instances on one hand and still have fingers left.

That said, we welcome the bill and the creation of a national standards commission in Scotland. COSLA canvassed the 32 Scottish local authorities in the consultation process and came to the following conclusions. First, we support the introduction of a general framework of ethical principles that can be applied to all of Scotland's public life, although we realise that the Parliament does not have full responsibility for all aspects of the country's public life. Although we welcome the extension of the bill to cover quangos, we feel that it should be more involved with local enterprise companies and further education colleges.

We continue to support Lord Nolan's view that local government should be given a leading responsibility for its own ethical standards by way of external scrutiny and appeal mechanisms to ensure that action can be taken if internal mechanisms prove insufficient. It is important to point out that Lord Nolan thought that local government was the most constrained of all public bodies on matters of probity.

We believe in a dual system. Although councillors should be required to establish standards committees to enforce the code of conduct, the public should have confidence in the process through the introduction of safeguards such as the co-option of independent members; politically balanced committees; the right of individual referral to the national standards commission; and a call-in procedure for the commission.

I believe that such a set-up would prevent a lot of trivial cases going to a national standards commission, although evidence would be reported to act as a sift for triviality. We support a single code of conduct for local government, developed in consultation with local government, and we look forward to continuing partnership with the Scottish Parliament on that issue. We would like the bill to be widened to cover the whole public sector.

We welcome the imposition of a duty on councils and public bodies to assist members to uphold the code. There are still training responsibilities for councillors. I believe that we should take that seriously. We accept the establishment of rules concerning the registration and declaration of members' interests. That had been happening for some time on a voluntary basis before regulation was introduced. We do not want the national standards commission to be the only body that deals with breaches of the code. We believe that councils should be required to establish standards committees to enforce the code. We welcome the proposals for a clear and uniform set of sanctions for breaches of the code.

We reject the imposition of interim suspension. We have made great play of that in our evidence to date and we are willing to go into that if members would like us to. We believe that a suspended councillor, if re-elected, should automatically be re-suspended if the suspension spans the election period. A right of appeal to a sheriff should be included. We think that that is necessary for reasons of natural justice.

That is all I want to say at the moment, but I will answer any questions.

I invite Karen Gillon to lead the questioning.

How are complaints about members' conduct investigated?

It has been a long time since such a situation arose. There are ad hoc arrangements in local authorities in Scotland. My involvement in the past 10 years has been that, as a matter of courtesy, the chief executive would inform me of a possible problem—financial or ethical—with a member. In one case, the police were involved, so I took the matter no further as I had to keep a confidence.

Other cases that did not involve the police were reported to me. In one case, I had to go back to my political group and advise my colleagues of the matter and tell them what the individual's situation was. The group took action and fed it back to the chief executive. One case involved an aggrieved constituent. The chief executive wrote back to that constituent to inform them that appropriate action had been taken.

I can speak only for my own council, but that is how complaints are dealt with at the moment. Usually, matters begin with a police investigation, which is completely outwith our field of competence.

As Councillor McChord said, there is considerable variety in practice. Many complaints are investigated by chief executives and referred to the appropriate political group leader to take action on an ethical issue. We accept that some councils do not have political groups. In some councils, complaints have been investigated by the chief executive and the council's monitoring officer or chief legal officer, and have been the subject of a report that is considered by one of the council's committees. In Edinburgh, one such complaint about breach of the national code of local government conduct was the subject of an investigation by me and of a report by the chief executive to the policy and resources committee.

Members of the committee will appreciate that, until this bill, any such procedure has contained no sanctions. Even if it accepted that a member had breached the national code of local government conduct, a council committee could do no more than pass a resolution censuring that member. It could take no further action legally.

I think Eddie has summed it up perfectly. At the moment, there is a code of conduct, but there is no enforcement mechanism by which an investigation that results in a member being convicted of a breach of conduct can be taken forward. As well as the ad hoc investigations by monitoring officers and chief executives, which have subsequently been reported to councils or their policy and resources committees, councils began—in response to Lord Nolan's investigations—to establish standards committees. Councils expected the bill that is currently going through Parliament to require them to have standards committees with teeth.

Councils such as Glasgow City, Argyll and Bute, City of Edinburgh and Dumfries and Galloway have established standards committees. Their make-up varies, but most are chaired by an independent person and have a politically balanced membership and independent people who are not councillors. The problem is that no matter what happens with the investigation, when it comes to a decision there is no enforcement mechanism to deal with the complaint if it is upheld. That is why COSLA—and local government in general—has supported the new ethical framework encapsulated in the Ethical Standards in Public Life etc (Scotland) Bill.

The Standards Committee has asked you to give evidence primarily because we are drawing up a framework within the Parliament and we want you to give us advice about what has happened in the past.

You mentioned a national standards commission. Should a national standards commission also cover the conduct of MSPs?

That is for MSPs to decide. We believe in self-regulation, to a point, at local level, but for the Parliament the local level is the whole of Scotland, so we appreciate your dilemma.

I support what Corrie McChord said. We believe that there should be a framework of principles underpinning the public sector. Under that, there should be specific codes for councillors, MPs, MEPs and quango members.

We support Lord Nolan's idea that the code should be self-regulated. We disagree with the Scottish Executive's bill, which states that the national standards commission should hear cases. We support the idea, which was mooted until the bill was published in consultation form, that councils' standards committees should hear cases rather than, as is prescribed in the bill, merely be training agencies to assist councillors to fulfil their duties.

At the risk of departing from the COSLA line on this, which is about local authority ownership, one advantage of a national standards commission for local government and perhaps MSPs is that the public would perceive that as an independent body. One of your concerns may be how the public will perceive the regulatory mechanisms.

The most obvious example of how this committee works would be the Argyll and Bute and Glasgow City examples. How would those committees deal with witnesses? Do they have evidence-taking sessions?

In Glasgow, the chief legal officer undertakes an investigation and a report is considered by the standards committee, which is a cross-party group. A recommendation is then made to the council. I am not sure whether it hears witnesses—Eddie might be able to answer that. Further details of the Glasgow case are being faxed to me and I can supply them to the clerk

My understanding—although I am not certain about this—is that, by and large, such matters are dealt with by somebody conducting an investigation, which involves interviewing people, producing a report and then allowing the person concerned the right to make representations, either in writing or orally. It is fair to say that the body of experience in this area is not enormous. Until Nolan, I do not think that there was any real mechanism in local government. All the authorities that have set up standards committees have done so in response to the concerns expressed by the Nolan committee.

I hope, however, that we will keep to the principles of natural justice—especially now that we have the backdrop of the European convention on human rights. We will all be required to adhere to the convention.

I mentioned local government officers investigating councillors, who are, in effect, their employers. Eddie might want to comment further on this, but at the moment officials do not have any powers to investigate their councillors. Some of them do it, but in the process of investigation they may create problems for their future working relationships with councillors. It is a difficult area and it is one of the reasons COSLA has always supported the externalisation of investigations at an early stage, with decisions being brought back to the council's standards committee for approval by councillors. We thought that that would be a much cleaner way of doing things.

Having to investigate one of your employers puts you in a fairly invidious position—you run the risk of pleasing no one. In my case, I reached the conclusion that the elected member had not breached the national code of local government conduct. That probably made me popular with him; it did not make me popular with the elected member who had lodged the complaint.

This committee faces the choice between having an investigating officer or investigating complaints itself. From your experience in the Convention of Scottish Local Authorities, how effective do you think committees are at investigating such matters? If I understand you correctly, you are saying that the standards committees are not doing the investigating—that that is left to local government officers.

Yes, that is right. I am not saying that it is impossible for a committee to investigate a case but, depending on the nature of the complaint, it could involve a great deal of members' time.

Councillor McChord mentioned that a sift for triviality is helpful. Could that be done equally well by a legal assessor or commissioner?

There is an old adage about work expanding to fill the time available; if you set up a commission with a lot of resources, the danger is that it will find work to do. I can speak only from my experience, but very few instances have occurred that would justify a full-blown investigatory procedure.

Writing about this Government, as opposed to local government, you felt that it should be for MSPs to decide how the code should be enforced.

Yes.

Would you express any particular view as to whether it would be more appropriate to have a legal assessor or commissioner, or a national standards commission?

Those options are open to you—you are in a different set of circumstances from us at the local level.

As I understand the way in which the commissioner's powers would be structured, one advantage of having a commissioner would be that he would have fairly extensive powers to obtain evidence; I suspect that a legal assessor might not have those powers. The issue of triviality is important. It is obvious that a screening mechanism is required. I have to sound a cautionary note: that a complaint that initially appears to be trivial may be of underlying significance. That always has to be guarded against.

Do the councillors involved in existing standards committees receive any training?

In some instances, yes. They certainly do in Glasgow. We do not have a great deal of in-depth knowledge about the various standards committees in place, but we have written submissions that we can distribute among members of this committee on those specific points.

The problem is also that the standards committees that have been established by councils deal with so few cases that no body of expertise is built up. I have to accept that this is probably a good reason for having a national standards commission: so that excellence is centred—but we disagree with that.

I would like to ask about the bigger picture. I have been sent to attend this committee meeting by the Local Government Committee. I think that I am aware of what COSLA's position is, but I have been asked to consider that on a wider scale here.

Can I confirm what you were saying about the structure that you were possibly advocating? You were saying that there could be a national standards commission, which would lay down the framework of principles for the system. Beneath that framework, councils may have their own code; MSPs may have their own code; LECs may have their own code. For each of those, there would be a degree of self-regulation. In the case of the councils, that would be their standards committee. As far as MSPs are concerned, this Standards Committee could take on that internal regulation, but it would be under the umbrella of the national standards commission.

Have I understood that correctly as the bigger picture?

Yes.

I also want to ask you about the chief investigating officer versus a commissioner. There has been a lot of debate in the Local Government Committee about the chief investigating officer, and about who should appoint that person. As you know, the Scottish Executive has suggested that that be done by the Scottish ministers, rather than by the national standards commission—if that is what the body is going to be called.

The Local Government Committee is a little concerned about the independence of the chief investigating officer. If we were to incorporate MSPs in the structure of a national standards commission, it strikes me that the Executive could be appointing the chief investigating officer, who would adjudicate.

As far as the national standards commission is concerned, public expectation is all-important. The public have certain expectations of public life—that is the key. Core standards of ethical conduct and probity in public life are not difficult to prescribe and they should be adhered to by elected members and appointed members wherever they should be. There are nuances in local enterprise companies, as in public companies, that there are different standards for different cases in certain areas, but the core set of standards should be available to all.

Eddie Bain is probably better placed to answer Dr Jackson's other point about the independence of the chief investigating officer.

I am not sure that I am in fact best placed to answer. I recognise the problem; I am not sure I have the solution. I accept that if the Scottish Executive appoints the chief investigating officer there will be potential human rights issues about independent and fair tribunals. To guard against that, those functions must be separated. The difficulty is that we might start running out of people who can appoint people. We run the risk of not being able to achieve a total separation of powers in all cases.

On behalf of the committee, I would like to thank the witnesses for taking the time to give evidence. Your comments were interesting and informative and have added significantly to our inquiry. You are welcome to stay for the rest of the meeting.

Unfortunately, we have to leave because the COSLA conference starts today.

Meeting adjourned.

On resuming—

I reconvene the meeting and call Elizabeth Filkin, who is the Parliamentary Commissioner for Standards at Westminster. You are welcome to make some opening remarks to the committee.

Good morning, ladies and gentlemen. I am delighted to be here. It is very nice to be invited and to have the opportunity to meet you. I hope that we shall have a useful discussion. I have no doubt that we have things to learn from you and I hope that I can offer you some of our experience. I bring you greetings from the Select Committee on Standards and Privileges at Westminster. I am here to speak to you on my own behalf and to try to answer questions on behalf of the committee.

You should have two bits of paper—one from me and one from the acting chairman of the Select Committee on Standards and Privileges, Alan Williams. I hope that those will provide you with some background.

If members would find it useful, I will take you through the job that my office does, although I am happy to answer any questions on a wider front.

That would be very helpful.

My office has three jobs. First, it creates, keeps up to date and tries to make accurate a set of registers. Those are the register of members' interests, the register of interests of the staff of members and the register of journalists who have access to the Palace of Westminster. The purpose of the registers is to allow the public, other members of Parliament and journalists to know where people are coming from when they participate in parliamentary proceedings.

Maintaining the registers is a major administrative task. I have one member of staff who works full time on that and another who spends three quarters of their time on it. It sounds like an easy activity, but keeping the registers up to date and accurate and making them public involves constant work, because—at Westminster at least—people's interests keep changing.

My second job—I hope it will turn into the whole of my job, although it has not yet—is to provide advice. I provide members with advice on how to ensure that they do not fall foul of the code of conduct or the rules, and I help them to pick their way through the difficult issues of probity with which they are faced from time to time. I am doing a lot more of that now than when I started a year ago, and I am doing more of it every day. Every day I see members or talk to them on the phone at their request.

My third job is to investigate complaints that members of Parliament have broken the code of conduct or rules, or that others have broken the rules that apply to the other registers. I can accept complaints from anybody including the public, other members of Parliament and journalists and I get them from all those sources. Our code of conduct and rules stipulate that I may not take anonymous complaints and that I have to have enough evidence in support of a complaint for me to investigate it. It is for me to judge whether there is enough evidence to justify an investigation.

Of course, some of the complaints that come in are malicious, mad or have no basis, and I sift those out. In passing, I should say that in my years of investigating complaints—I investigated complaints for six years in another job as well—I have always worked on the premise that the fact that a person is mad does not mean that there is no substance to their complaint. One has to treat complaints on all fours until one has decided whether there is anything in them.

The next step involves preliminary inquiries. I try to tailor the investigative process to the particular complaint—I have a procedure that is usually largely the same, but I try to make it fit. I usually send the MP concerned a letter informing them of the complaint that has been raised with me and asking for their response. I offer them an opportunity to talk to me before they respond. Most MPs rush round to my office with all of the relevant documentation, facts and information. Having seen that, I often come to the conclusion that the person who raised the complaint is wrong and I dismiss the complaint. I will write back to that person to say that I have looked at the facts and have found that what they thought is not the case. I inform them of the facts and tell them that if they can produce evidence that the MP has broken the code of conduct, they should give me that evidence. I tell the Standards and Privileges Committee that I have received the complaint, but that I am not taking it further. I do not inform the committee of the content of the complaint.

Every time the Standards and Privileges Committee meets, I run through the complaints that I am dealing with at that time and I inform the committee either that I have had a complaint and am awaiting a response from an MP, that I have had a response and am not proceeding further or that I have had a response and am making further inquiries. I give the committee only the briefest information about the complaints before proceeding with my investigation. The committee does not comment on the complaint at that point and does not interfere with my investigation.

I do what I feel is necessary in an investigation. That varies hugely. As I have said, many MPs bring all the relevant documents to me and the matter can be dealt with at once. Sometimes, they bring round so much stuff that I send them away until I have read it. At other times I will read the information before I send them away so that I can think about it further.

Often, I will need to clarify matters with the complainant, too. I need to make sure that I am absolutely clear about what the complainant is saying, where they have got their information from and whether there is hard evidence.

I write to and interview any witnesses I wish to, whether they are from public bodies or wherever. I am supported by the powers of the Standards and Privileges Committee, which can call for any persons or records. The committee uses those powers at my request.

I am pleased to tell you that, in the year that I have been in my post, I have not had to call on those powers. Usually, when I tell people what those powers are, they are happy—or semi-happy—to speak to me voluntarily, which is a much better way of proceeding. That is good news.

The powers are useful when a person does not want to give information because they have understandable loyalties elsewhere, because they know that their evidence will demonstrate that someone has been lying or because they have commercial confidentiality arrangements with clients. Those powers allow people to tell me the truth in those situations.

Only once during the year have I had to tell someone what would happen to him if he did not give me the information or refused to come to see the committee or me. When I told that person—who was a barrister—that he could be arrested, there was a deep intake of breath and the documents were delivered to my office within half an hour—in that instance it was useful to have those powers.

What I am talking about when I give these examples are the most unusual situations. The most common situations are as I have described them. The vast majority of cases are complaints—some of which have some substance—but they are not what I regard as serious. They are matters of forgetfulness or casualness, when people have got it wrong and are happy to sort the problem out—that is fine. I have had to deal with one or two situations that were much more serious, in which people lied to me. One needs the Standards and Privileges Committee's powers to deal with such exceptional situations. When I have done that and got to the bottom of a case—or as far as I think I am going to get—I write a report for the Standards and Privileges Committee. The committee discusses the report, questions me about it and satisfies itself that I have turned every stone.

Alternatively, members of the committee may say, "We really would like a bit more information about this matter that you have reported to us. We would like you to go and find this or that out." I then go off and investigate further and bring that information back to the committee. When committee members are comfortable that they have all the information that they think they need from my investigation, they discuss the case and come to agreement in principle about whether they agree with my view. They then come to an in-principle view as to whether to admonish the member. If they so decide, their usual practice is to ask the member to appear before the committee. They can also ask witnesses to appear before the committee, although they have not used that power during the past year.

Allowing the member to appear before the committee is terribly important. Although the member will have provided me with letters giving their view and, if it exists, their defence—all of which I present to the committee as part of my report—giving evidence to the committee allows the member to answer the committee's questions and to put their own case. That also allows the committee members to make a judgment about whether the member is telling the truth and to question them in some detail on my report.

That is the important, self-regulatory part of the process. The committee is made up of members of Parliament who know how Parliament works and who ask other MPs, "How could you not have known that you had to do this or that, when all this was going on in Parliament?" The committee members understand the institution, what happens in the institution and what was happening when people were in the process of breaking the rules.

When members of the committee take evidence from a member, they tell him or her that the oral evidence will be published in full, along with their report—they decide when to publish their report. They then come to a conclusion about whether they will uphold the complaint, whether they agree with my view and whether they want to say more or less than my report. They publish their report, which is backed by my report and evidence, plus any oral evidence that they have taken.

That document is published, usually the day after the committee has met. Yesterday, it met and considered a case; the report will be published at 11 o'clock this morning. That report will allow the public, journalists and other members of Parliament to see what happened, how the case was investigated and what conclusions the committee and I reached.

Afterwards, we have to put things right. If someone has not registered an interest, for example, that will have to be done. If the admonishment that is recommended by the committee is an apology to the House, which is the first level of penalty, that will happen without going before the House for a decision. I reported on a complaint last week and the member apologised this week. The next level of admonishment is suspension. If that is recommended, the committee must report the matter to the House, which will formally take a decision on whether the member should be suspended. That happened a month ago, as the committee might have read in the press. That was a lengthy investigation that took me nine months to complete. The Standards and Privileges Committee decided to recommend a four-week suspension of the member, which was endorsed and enforced by the House. If a member is suspended, they lose pay as well as experiencing the humiliation of suspension. They are also subject to one of the most serious punishments for a member—the ensuing bad publicity.

That is the process and I will answer any questions that the committee has, if I am able.

Thank you. That was very helpful.

That was very interesting. I returned to the meeting after you had begun, so I missed the start, but what I heard was very informative.

What do you see as the principal benefit of the independence of your role? I might have already reached a conclusion on that, but I would like to hear your thoughts.

The witnesses from COSLA made it clear that, however good and impartial a parliamentary committee might be, that is not always how it is perceived. The Select Committee on Standards and Privileges works extremely hard; it has met almost every week for a year. It works very hard at being impartial and non-party and it has come to a consensus on every report that it has published this year—all 17 investigations. However well the committee works, in certain cases, other members of Parliament will not see it as impartial. In my view, those people have their own axe to grind—they say that the committee was not impartial about X and Y for various reasons.

People within the House have that view from time to time. Much more pervasive is the view of journalists and the public. Rightly or wrongly, the public do not believe that MPs will be impartial in regard to their fellows—Westminster is seen as a club. The public think that MPs will protect one another and that it will be difficult for them to be independent and impartial. That is why Westminster decided to have someone who was not involved in Parliament or politics to carry out investigations. It committed itself to publishing the Parliamentary Commissioner for Standards' report in full, with all the evidence.

If at any time the committee disagreed with me, that would be made public. I am not claiming that my view of the world is necessarily right, but that system allows the public to make up their own minds. The committee decided to do that to ensure that the public had confidence in the system. Although it is a pretty lonely role, I can see how immensely difficult it would be for an MP to take it on. It would be hard indeed for a member from the party system to be regarded as impartial by people from another party, if they were being investigated.

I accept that what you are saying is true at Westminster. It was generally perceived, before the previous election, that Westminster had to clean up its act, and most people recognised that the Westminster Parliament had some baggage. I appreciate the point that you make about establishment of public confidence. Nevertheless, the Scottish Parliament is a brand new organisation and we do not have the same baggage. Can you not see that, as a new organisation that is firmly rooted in the Nolan report's principles, we have the opportunity to make a fresh start and that that might not necessarily include the appointment of an independent commissioner?

I would not presume to advise you on what is necessary for you: you are the only people who can make that decision. All that I can do is describe why Westminster took the route that it did.

That decision is an immensely practical matter and it has nothing to do with impartiality or even public perception. I am employed to work four days a week, and I have a staff. However, I have worked more than five days a week every week since I came into the post, and throughout recesses. When I was appointed, the Speaker told me that she expected me to have plenty of time to do all sorts of other things that I wanted to do, as everybody in Westminster knew what the rules were and nobody would break them because it would be too uncomfortable. That has not turned out to be the case.

It might be that there would be no work here. However, if there was one complex case, which required the sort of delving that I have to undertake for most of the cases that I investigate, the committee would not have time to do that work in addition to all that members have to do. The question, therefore, is not about impartiality, but about having an investigation conducted professionally and within a realistic time scale. Of course, a simple case that required only a few witnesses could be handled by the committee system. Anything more complicated would require a lot more time. You hear from one witness and then get hold of a range of documents to study. You then have to go back to that person. It would be a cumbersome procedure that a committee could not carry out in a realistic time scale. There is therefore a practical reason for having a body—whoever that body might be—working for you.

During your presentation, you mentioned the powers that you have. Could you elucidate those a little more? Can you separate the powers that you have over MPs and their staff from those that you have over others who are outwith the Parliament? What kind of powers can you bring to bear when you are investigating complaints?

Any breaches of the code of conduct or rules are the responsibility of the Standards and Privileges Committee, which has the powers that I have described. It has always said, and confirmed, that it uses them to back up my investigations. I have exactly the same approach in regard to anybody else who breaks the rules that relate to the Houses of Parliament—for example members' staff or journalists, who constitute the only other two groups that I have any locus with. It is much easier to discipline them. The discipline route for anybody other than MPs is to withdraw their parliamentary passes. On a recommendation from me, the Administration Committee of the House of Commons would withdraw somebody's pass. The committee would do that if someone from a particular group breached the rules that apply to that group.

When you are seeking information on a complaint, what powers do you have to call on third parties?

The powers that I described—I can call for any person or record. If people refuse, they are in contempt of Parliament and can be arrested.

Briefly, can you describe the mechanism through which you were appointed? What role did the Standards and Privileges Committee have in that?

The committee had no role in my appointment. Candidates for the post were sought through public advertisement and by headhunters—I was approached by headhunters. When I saw the advert, I thought, "That is a ridiculous job—I would never apply for that". However, I was persuaded by the headhunters to allow my name to be put forward and went through the competitive process of assessment. I was interviewed by a panel that was made up of a senior member of a parliamentary law firm in the City, an academic and one of the most senior clerks in the House of Commons. It did not include anyone from the Standards and Privileges Committee or any MP. The panel recommended two people—another candidate and me—to the House of Commons Commission, saying that it believed both of us were capable of doing the job. As members will know, the commission consists of the Speaker, the Leader of the House, the leader of the opposition parties in the House and three senior independent members of Parliament. They interviewed the other candidate and me and offered me the job. The Standards and Privileges Committee had no role in the appointment process. It was landed with me and must put up with me.

Roughly how many complaints do you receive a year? What percentage of them are marked "no case to answer" and what percentage of them are considered sufficiently serious to go to the committee with a recommendation?

During the three years that my predecessor was in the post, he reported on 23 cases, on which the committee published reports. In the year that I have been in post, I have reported on 17 complaints and reports on those have been published. Although the numbers have gone up, members should not make too much of that, because it is a small sample. What really matters is the size of the cases. Some cases can be dealt with in a week, whereas some take nine months.

I have not done a count, so this is only an estimate, but two thirds of the complaints that come to me are probably not taken any further. They might be outside my area of responsibility—an MP may not have done what their constituent, Mr X, wanted them to do, or Mrs Y may not like the policy line that MP Z is pursuing, for example—or they might be matters for the police, the parliamentary ombudsman or another regulatory body. There might also be insufficient evidence to warrant taking a complaint further. Some complaints are no more than people's suspicions that someone is up to no good.

In this Parliament, as opposed to Westminster, could a legal assessor do the job as well as a commissioner, or would a commissioner have more powers? What would be the difference?

I am sure that a legal assessor could do a lot of the job, and any other pairs of hands doing some of the sifting would be extremely useful. Unfortunately, in most institutions, one must get somebody who is viewed—this is true of a few people at least—as being of the right status. Most people treat other people truthfully, sensibly and properly whatever their status, but there are some people who do not, as you know. It is therefore terribly important that those people, particularly if they go in for what I call bullying mode, are dealt with by somebody whom they regard as powerful. That is a sad thing to have to say and I am sorry that it is true. I hope that it will not be true for the Scottish Parliament.

You may be aware that our Standards Committee is different from the committee at Westminster in that our proceedings can be subject to judicial review and Westminster's, as I understand it, cannot.

That is right.

From that point of view, do you think that it would be advantageous for us to have a commissioner, as that would make the decisions of the committee less open to challenge?

I hope that that would be the case. If the commissioner were doing his or her job properly, an important part of the role would be to get the procedure right and provide the right advice to the committee, so that the committee could be seen to be acting fairly.

How necessary is it to have a register of interests for journalists? Would that be for journalists acting as lobbyists?

Before I got the job, I thought that such a register would be terribly useful and that people would want to consult it all the time to see where journalists were coming from. However, most lobby journalists do not have many outside interests. The register exists and people can see it, so it provides some sort of check, but I have received no complaints that journalists have not registered outside interests. The register is more for form than for use, but that is not to say that people do not consult it—they do.

Should advice to members be a matter for the clerks, the commissioner or both?

Of course, it is a matter for both. Clerks will always answer a question and be helpful to a member if they can. The registrar who works for me is a clerk and he does a lot of that advice for me. However, I have no doubt that there are some issues—particularly difficult issues of probity—on which members of Parliament want my view. They want me to recognise the problems that they face and to make suggestions about how they should handle the situation. I can give advice, but the decision is theirs and they are responsible for their own probity. I cannot tell them what to do. However, I also tell members that, if I get a complaint about the matter that they are telling me about, there are a number of things that I would need to ask them, and I advise them to bear that in mind in sorting out that probity problem. Members tell me that that is extremely useful.

This is an important issue, and I shall allow members to come in again in a moment. Do you feel that your independent investigatory role is compromised by the advice that you were giving to members of Parliament?

No, I do not. Before I started, I thought that it might be. I thought that there might have to be a separation of roles and that I should say that members could take advice only from the registrar. However, I decided quickly that that would not be so. I keep a note of the advice that is given and I write to MPs with anything complicated after we have talked, so that there can be no confusion about the advice that I have given. I always underline to the member, and in writing, that the decision of what the member does remains with the member.

You may be aware that this Parliament has been greatly exercised by the possible implications of the European convention on human rights. We are already fully committed to it, through the Scotland Act 1998, but Westminster procedures will not be subject to it until October. I wonder about the implications of the ECHR for your role.

There were none. My investigatory operation is a proceeding in Parliament.

So it would not be subject to the ECHR.

No. However, one would adhere to the principles behind the convention.

Do your present procedures need to be adjusted to take account of the implications of the ECHR?

We have considered that and have concluded that they do not.

Perhaps you can confirm my suspicion that journalists—like MSPs, perhaps—need to get a life. Is it just lobby journalists who are covered by the Parliamentary Commissioner for Standards?

It is anybody who has a pass into Westminster.

What are they required to register?

Outside financial interests.

Similar to MPs' staff?

They are required to register the same sorts of things—the same arrangements. They might be on the board of a company or be big shareholders.

The sanction, as for members, would be withdrawal of their parliamentary pass.

Yes.

Are penalties for the committee, rather than for you, to decide?

Penalties are entirely the decision of the committee; I never get involved in the imposition of penalties.

Has there ever been a case—or cases—in which you have made a recommendation and the committee has taken a different view?

Yes. The only case in which there was any light between us—you would have to read the reports to come to a view on how much light there was—was that of Peter Mandelson. The committee, understandably, took the view that Mr Mandelson had already suffered considerably by having to resign from his ministerial post. If you read its report in that light, you will understand why that report is written as it is. My position always has been, and always will be, that I am totally unconcerned with people's roles and what has already happened to them. I must treat everybody exactly the same, and I take no notice of whether people are in senior or junior posts. On that one finding, I was more acerbic than the committee. The reports are in the public domain; I urge you to read them and to come to your own conclusions.

The situation in the Scottish Parliament is quite different from that at Westminster in several respects. One of the major differences is that this committee's operations are carried out in public, as today's meeting exemplifies. One of the concerns is that, if we give a role for investigating complaints to an independent commissioner or an officer of the Parliament, that investigation would probably be conducted in private. Do you think that there is a problem with that? You talked about the need to ensure that we were perceived by the public as independently minded. Do you think that it would be harder for us to conduct such an investigation in private? In the House of Commons, the Standards and Privileges Committee meets in private anyway.

In our case, the safeguard for the public is that the report on the findings of the commissioner is public, as is the evidence on the basis of which the commissioner has come to his or her view. The public get all the information in due course. I have no doubt that holding all the bits of an inquiry in public would work fine in many situations. It would work fine where the people who are being investigated are being totally transparent, helpful and honest. However, in my experience, both over the past year and in my previous role, I have found that in some situations I am better at getting at the truth if I have the person who is being investigated in front of me and no one else is present. It depends on whether one is trying to get at the truth.

Do you think that members who are being investigated or anyone else whom you investigate should have legal representation with them?

I always offer it to people. I say that they are welcome to bring anyone they like with them; many people take up that offer. I make it clear that I will not talk to the representative or through the representative, but I always give the representative or friend a chance to speak at the end of the discussion if they want to say anything. In the most serious case that I dealt with this year, in which the member found it very difficult to accept the facts—although the facts were hard—the Standards and Privileges Committee decided, unusually, to provide the member with a copy of my report before it took oral evidence. It also advised the member to get legal advice—although it turned out that they had been receiving legal advice throughout—and informed them that they could bring their legal adviser with them when they appeared before the committee, if they so wished, which the member did. At the request of the member, the committee also directed some of its questions at the legal adviser.

I want to return to your description of your role as adviser as well as, in some cases, arbiter. When a member comes to you for advice and their conduct arising from that advice is questioned by another MP or member of the public, how do adjudicate on that? Has such a case arisen?

Let us take the case that is being published today. A newspaper ran a complaint against the MP in question. The next day the MP came to my office with the newspaper article and said, "I need your advice on this; you must investigate it as a complaint." I said that I could not investigate it as I had not received a complaint. He said that he would make a complaint against himself. I replied, "Oh no, you won't—I'll give you advice, and I will tell you how I will deal with a complaint if I get one." We went through the facts and I told the member that in my view he was best protected if he did certain things. I told him what things I would want to know if I received a complaint and how I would proceed.

I then received a complaint. When I reported to the Standards and Privileges Committee, I set out that sequence of events. I said that an article was published in a newspaper, the MP came to me and asked for advice, I gave him advice, he followed it and then I received a complaint relating to the matters that we had discussed and more. I went on to say that I thought that I was correct in the advice that I had given and that the member should have done X, Y and Z on the matters that we discussed. I also set out my views on the matter that I had not known about. The committee considered the case with all the information in front of it, with the advice that I had given, and came to its own view, which supported mine totally. The important thing is to report what has happened in great detail, even if one has made a mistake and given the wrong advice, as the committee will take a decision and that wrong advice will be in the public domain.

Has your office been involved in any investigation of leaks of confidential documents?

No.

Would you like that to be part of your role?

I have been asked whether I would take that on. As you will see from the chairman's paper, the committee is anxious about the difficulty of conducting such investigations itself, as it feels constrained. All that the committee can do is get people to appear before it and they come with a prepared brief. It has no other mechanism for doing the sort of checking that I do. The committee is considering whether my role should be extended to take in investigations of leaks of confidential documents, but no decision has been taken.

Do you feel that you have sufficient powers to obtain the necessary documents and to get at the truth? In what circumstances have you found it hardest to get at the truth?

It is very hard to get the offshore stuff, but I have got it. I have to access it by other methods, as I have not got powers outside the landmass. Luckily, some of the lawyers involved in the offshore trusts that I have investigated also operate in England.

Whatever system we put in place—whether it is a legal assessor, a commissioner, or this committee doing the work—a devolved Parliament has fewer powers than Westminster to deal with non-co-operation. Can you give us any advice on that?

Generally, I would be the last person to say that the press is your backstop, because in many situations the press does not behave well when dealing with complaints about members of Parliament. However, in cases of non-co-operation, responsible journalists are your backstop. If the details of a case are published, how people have behaved is out in the open and the public can make a judgment. Being the sort of investigator that I am allows me to sit down with a witness, as I did yesterday, and say, "You have told me the following things, but I have now collected evidence from many other people who tell me something quite different. I am telling you that to give you the opportunity to decide whether you want to stand by what you have told me and have me report that to the committee, or whether you want to alter your evidence." The witness then changed what they had said. I do not think that that would have happened in an open committee, but I think that I have now got the truth from the person in question—I do not think that that was the case at the beginning.

One question that has taxed us is lobbying and lobbyists. At Westminster, is there any mechanism for dealing with complaints about lobbying or lobbyists?

As you will recall, my office was created in response to improper lobbying. I am sure that I do not need to say what I am about to say, but lobbying is the lifeblood of political bodies. Lots of lobbying is good—it is about perfectly reputable organisations putting their point of view to members of Parliament. However, during the previous Parliament, there was some disreputable lobbying—people paying MPs to do things on behalf of companies and so on. By the end of that Parliament, about 290 MPs had registered roles as providers of parliamentary advice to lobbying companies. Because of the new rules on advocacy—and the new intake of members of Parliament—that number has fallen remarkably; it is now well below 100. Because anybody who gives advice in their capacity as a member of Parliament not only has to register that but has to deposit their employment agreement with my office and to declare what they earn for their services, such activity has become much less attractive for MPs. It has also become much less attractive for lobbying companies, because they feel that MPs cannot now do what they might have done in the past.

I am convinced that lobbyists are now most active through the all-party parliamentary groups. I have no doubt that most of that activity is perfectly proper, above board and transparent, and that everybody knows where the lobbyists are coming from. If I had concerns, they would relate to the influence that can be exercised in that situation.

There is another area that does not concern many members of Parliament but concerns me. Many members of Parliament are offered non-executive directorships. Some are offered to members because of their business knowledge and because of what they can contribute to the company. However, some members think that they are being offered directorships for those reasons when, I have no doubt, the companies think that they are getting an inside track into Westminster.

It is unlikely that companies are getting an inside track into parliamentary proceedings, because members are constrained by the advocacy rules as to what they can talk about or introduce. On the whole, members are very careful to observe those rules, and there is a set of watchdogs on the benches on the other side of the House ready to jump on them if they get things wrong. However, there is no doubt that people have huge informal networks. People are friends with ministers and have conversations with them, most of which are absolutely above board, but problems can occur if people are not very acute about what it is right and wrong to do.

I would like to bring this part of the meeting to a close. Members may ask one more question.

I am here on behalf of the Local Government Committee, which is considering the Ethical Standards in Public Life etc (Scotland) Bill. The bill contains a proposal for a national standards commission and a chief investigating officer. How would you see such a commission operating? In previous evidence, it has been suggested that councils, local enterprise companies, MSPs and ministers could have their own internal mechanism.

I cannot speak to you about that from my own experience—I can only speculate and I am sure that my speculations are along the same lines as everyone else's.

In many situations it is desirable to have as much self-regulation as possible, as that involves people internalising what is right and wrong and ensuring that their colleagues, whom they see every day, act properly. That cannot be done from somewhere else—in any institution, there has to be an ethos that makes it happen, so that when people are about to do something wrong they get a dig in the ribs and are told to stop. That is the way in which to ensure good standards of behaviour.

When something goes wrong, it is good if it can be sorted out locally, as that helps in the process of internalisation. It means that regulation is in the hands not of someone in the capital city or some great organisation, but of local people who are being seen to know what is right and what is wrong. Any business organisation or public body needs that.

However, when things get very serious, there has to be a mechanism that allows people to decide that the problem needs to be dealt with from outside. In several investigations that I have carried out for local authorities and police forces, the local authority or police authority members said that, although they had done what they could, the matter was so serious that public confidence would not be retained without an external investigation. Therefore, I think that a properly run commission could be useful to all sorts of bodies. It could be called on by those bodies and, in certain instances, it could intervene. Sadly, from time to time, there are local authorities that do not have high standards of probity and that are run by cliques that are into one thing or another; an outside mechanism is needed to deal with such cases.

Is it your evidence that a commissioner can carry out an investigation at a more profound level than a committee could by conducting a cross-examination in one morning?

That is my view. I think that most members have too many other things to do to allow them to spend the time on the detail that is required in some of the cases with which I deal.

Is your view based partly on the fact that you can conduct one-to-one interviews in private?

There is much more to investigations than interviews. One has to obtain documents, study them, check whether they are authentic and come to a view about what they mean about the company or body that one is investigating—major investigations demand much work other than talking to people. In one investigation, I was lied to by the member who was involved, so I had to track down some companies. A great deal of work is required if one has to do that.

I thank you for giving evidence today. I know that you have a busy schedule—you have outlined that today—and I am sure that the committee can learn much from your experience of enforcing standards at Westminster. You have given us much food for thought.

Thank you. I will be only too happy to answer any questions that you need to ask from time to time—I am sure that the committee clerk can put those to me. I will be delighted to assist you at any time; I am sure that contact will be useful to me as well as to you.

Meeting adjourned.

On resuming—