Standards Committee, 22 Mar 2000

Meeting date: Wednesday, March 22, 2000

Official Report 274KB pdf

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Investigation of Complaints

Agenda item 4 returns us to our inquiry on models for the investigation of complaints. I welcome the Deputy Minister for Local Government, Frank McAveety, who will be our final witness in this inquiry. Before I call Adam Ingram to lead the questioning, I invite the minister to make a few introductory comments.

I presume that members have received a draft of my speaking notes and have read them. Rather than repeating the core elements of the notes, we should concentrate on two main issues. The first issue is the procedures that we would identify with the chief investigating officer in the standards procedures for local government and public bodies. I have identified some of the key elements that we should deal with.

It is important that the process that is followed is transparent but does not allow for malevolent comments or complaints—as have been made against members who have held public office before—which have no substance, and bear no credibility when proper examination is undertaken. Those in public office deserve some respect, and the public complaints procedure should be followed only when significant issues are identified. Many of us who have held public office have had to undergo such procedures before we were elected to the Parliament. I have identified the stage at which the CIO would be engaged with and the stage at which the commission would kick in to identify where there had been breaches of the code for standards in public life.

As I have stated in my notes, there is flexibility in the model that we are considering, which allows for localised standards committees. My experience of that model was in Glasgow, where it normalised the circumstances of such cases. The great benefit of having a local standards committee, irrespective of whether a new national one is being developed, is that there is at least a port of call for the official, rather than an individual senior member of the council, or the leader of a council, acting as the gatekeeper and conscience of every elected member in that area. It would be untenable for any individual to be placed in that context. There is an opportunity for local standards committees to be developed, and I know that at least two or three authorities are exploring that option even though there will be a national development as well.

The second issue is that some members of this committee have expressed concern over the possible application of the model to MSPs, if we establish standards committees for local authorities, elected members of councils and members of as many public bodies as we could include within the devolved powers of the Parliament. Whenever I have visited councils, I have been at pains to point out that it is the Standards Committee of this Parliament that addresses the conduct of MSPs, rather than the Executive and the ministers. I have put down in the notes some of the procedures that would need to be addressed if people argued that the CIO and the standards commission should deal with MSPs. That would be premature, in the view of this committee, and would not necessarily be appropriate anyway.

Those are the broad points that I want to address, and I am happy to respond to questions.

Thank you very much, minister. I am delighted that you are here today to give us the benefit of your experience as the former leader of Glasgow City Council.

Good morning, minister. You took the initiative in Glasgow, where the first local government standards committee in Scotland was established. From your experience, could you expand a little on the advantages and disadvantages of the system in Glasgow?

I was hoping to keep that for my book. [Laughter.] In Glasgow there were already great difficulties, because of the politics of the individuals involved. However, because of the concentration of newspapers and television stations in the city, the news that could be generated was disproportionate to the issues that were raised, which are common to the whole of Scotland. The problems were reported much more and developed anecdotally.

It was important to bring together a number of procedures that existed for regulating the conduct of people in public office. By establishing a standards committee, we were able to distil those procedures into a code that was customised to the area. By and large, the code was an amalgam of existing codes. Each authority needs to develop a code that is appropriate to its circumstances, but one positive aspect of the Glasgow system is that it does not allow any one party to have a majority on the standards committee. That ensures that there is public confidence in the process and that it is not seen as partisan. When the committee was set up, there were four opposition parties, each of which had a representative on it. The majority party on the council also had four representatives. There was a commitment to having a rotating chair, which has led to the Liberal Democrat member acting as convener over the past year or so. The benefit of such a system is that it allows decisions to be made by a group of equals and ensures that they are based on the information and evidence that has been received.

Following the establishment of the standards committee, the nature of inquiries diminished dramatically in seriousness. I will leave others to judge whether the committee was responsible for that or whether there were other factors. I think that the establishment of the committee reminded folk of their responsibilities. We cannot say hand on heart that individuals will not err, but at least there is now a process to be followed.

For me, the other great advantage of the system was that if anyone raised an issue, I could refer it to an independent standards committee, which took responsibility for it. That was not intended as an abdication of responsibility, but it was unrealistic to demand that someone in my position should make snap judgments in such cases.

I am sure that the system can be refined. We had several folk from outside examine the code: Endell Laird, the former editor of the Sunday Mail in Scotland, a senior trade union official, and Alan Alexander, representing the academic side. They gave us general advice on how to set up the committee, which lent the institution credibility during a difficult period of Glasgow's history. The establishment of the standards committee helped normalise the situation and reassured the public. When most complaints are examined, they are found to be exceptionally trivial. However, if substantial breaches of the code are suspected, a process exists for investigating them.

We are considering the position in Scotland as a whole. How do you see a national standards commission relating to local government and to Parliament?

It would be premature for me—particularly as a minister—to make any judgments on how this committee should apply the code of conduct for MSPs.

Two issues need to be addressed. First, the general public must be confident that there are institutions that have credibility and clout, should elected members or representatives of public bodies misbehave.

Secondly, the bill has to establish a national standard to reflect the Parliament's new relationship with local government. Although such a perspective should not diminish the responsibility of local standards committees, it is important to establish a national standards commission in case a local standards committee does not have the bravery to make a hard decision. However, I hope that that would be the exception rather than the rule. By and large, once such structures have been set up, the massive cases that people expect to happen often do not.

Are you saying that the Standards Committee will work within the framework of a national standards commission?

Do you mean the Standards Committee of the Scottish Parliament?

Yes. Will it act as an internal self-regulatory mechanism of the commission? Your comments to Adam Ingram seem to suggest that a national standards commission would be quite useful.

The commission will certainly be useful for the framework for local government and public bodies. I am at pains to make it clear that I am fairly neutral about whether the Standards Committee would be part of the process. However, I imagine that the stipulations in other codes of conduct for members of public bodies will be similar to what is expected of ourselves. The Scotland Act 1998 stipulates that Parliament should determine such procedures. Perhaps Joanne McDougall could expand on that point.

Under section 39 of the Scotland Act 1998, the Parliament can decide its own rules about matters such as registers of interests. We realise that the Standards Committee is at a very early stage in its consideration of such matters. Perhaps in a year's time, once the national standards commission has been established, the committee might decide to use certain elements of the commission's structure, and we could help the committee in that respect. However, at the moment, that structure applies only to members of public bodies and councillors, and would not work for MSPs. For example, this committee would need to have much more of an idea about the structures and reporting procedures that it would require.

How would the system not work for MSPs? I should say that I am here today as a reporter for the Local Government Committee.

Ministers will appoint the commission and the chief investigating officer and devise the codes of conduct, although Parliament will have to approve everything. The commission will be able to suspend people, and our solicitors believe that such sanctions could not be performed by any other body. Suspension of parliamentary privileges is not quite the same thing, and the Scotland Act 1998 says that the Parliament cannot disqualify its members. As a result, an entirely new scheme will have to be devised, and we are quite happy to help with that.

However, although the commission could be involved with the committee, we are worried that any demands made on the commission now could hold our bill back by about a year. We recommend that you let the bill go through and re-examine the issue later if that is appropriate.

Does the minister agree that, regardless of anyone's position in public life in Scotland, the Nolan committee's recommendations provide the starting point for any consideration of national standards?

Yes, and the seven principles of public service are predicated on it.

There is quite a difference between the Standards Committee and a national standards commission, but I detect a wee bit of overlap here. I welcome your comment that the method of investigating the conduct of MSPs within the Parliament is the responsibility of the Standards Committee. The Standards Committee of the Parliament has the power to make recommendations on the way in which the conduct of MSPs is monitored and regulated. That is not a matter for the Local Government Committee.

I ask this question to you, convener, and I would like to hear the minister's response, too. Would it be appropriate for the Standards Committee to make a submission to the Local Government Committee—which is considering the Ethical Standards in Public Life etc (Scotland) Bill—to give our views on whether the Standards Committee of this Parliament should be part of a national standards commission?

Minister?

I have enough stushies in my life without adding to them. Whether it wants the two roles to be separated is a question for the committee to address. One of my many responsibilities is to identify the way in which the ethical standards bill should develop for public bodies and local authorities. That is my remit.

I am certainly willing to put Tricia Marwick's point on the agenda for a future date. Today, however, we have the minister here, and we should pursue our questions with him.

The statement put out by the minister says that

"having members subject to a Code set by the Executive and policed by a body appointed by the Executive would be rather odd."

I think that I am correct in saying that the bill is designed specifically to deal with councillors and members of public bodies, and that is in the minister's statement. The statement goes on to say that

"it would be preferable to design a new scheme specifically tailored to the needs of the Parliament."

When you were working on the proposals for the bill, would it be fair to say that you did not have the Parliament primarily in mind?

Yes.

We heard evidence from Elizabeth Filkin about receiving a series of different kinds of complaints, some of which were well justified and required investigation, whereas others appeared to be spurious. It is not clear to me how a chief investigating officer would deal with the variety of complaints that would be lodged. What kind of filtering process might operate before a full investigation was launched into alleged misdemeanours? Has that been thought through? My question relates to the bill, but it is of interest to this committee as well.

In local standards committees that have been set up, it is the role of the chief executive or the legal officer of the local authority to look into things. It is fair to say that if there was a proximity between the decision makers and those making allegations against them, that would make for a very difficult situation for any senior officer to be in. One would have to hope that professional judgment and expertise would prevail over any other considerations.

I did not hear the earlier contribution on the experience in Parliament. Those criticisms and concerns will always be there. We need to take great care over who is appointed and the criteria under which they will operate. The process of separating out the genuine concerns from the malicious ones is important. All of us in public life know that if somebody falls out with you, that becomes the substance of the complaint.

Once the standards committee was set up in my former authority, the majority of complaints were about councillors falling out with councillors, rather than because members of the public were concerned about the behaviour of elected members. That perhaps says much more about elected members' behaviour than it does about standards.

We need to get the process and the role of the CIO right. I am happy to take views on how that should be finessed, because it is not an exact science. The review process might provide another opportunity to revisit certain matters. Joanne McDougall might be able to touch on that.

One of the issues is the separation between hearing complaints—in a standards committee or some other context—and the process of investigating complaints. There is therefore a debate about whether there should be a specified person to fulfil that purpose—in our case, a commissioner—or whether the committee should deal with such matters. How do you envisage the role of commissioner in local government? Will the role of conducting the initial filter or investigation be attached to the role of the chief executive, the monitoring officer or someone else within that framework? Will they determine whether there is any substance to a complaint, which must be responded to, or carry out an investigation on which the committee can then deliberate, having received the evidence?

We must ensure that we have someone of sufficient weight and independence that they are not coerced by the broader politics at local or national level. That is a concern for anyone involved in investigations. Secondly, to protect individuals, the process needs to be confidential until it is concluded that there has been a breach. That can then become public knowledge and be explored further.

We need to refine the process. Many people feel that they are caught out, because if someone makes a complaint about them, that is the story, rather than the substance of the matter two or three months later. From the Glasgow experience, one of the issues that still needs to be worked through is responsibility. I left in a line about that, because I thought that it was important. Members of the standards committee have a responsibility to respect confidentiality. The temptation in politics is to be a bit more lax than one should be about handling information about someone of whom one is not supportive. If elected members are involved in the role of assessing individuals' behaviour, that must be underpinned by confidentiality.

People have been worried about confidentiality, because there have been cases where information heard privately by a standards committee looking into a case has been made public and could have come only from elected members on the committee. I see that as a breach of code and would have liked people to be dealt with accordingly, but unfortunately that did not happen. Does that explain things?

Yes. It is a difficult issue and I wondered how things were being thought through. The issue for us is that we hear evidence in public.

I am interested in what Frank said about the fact that complaints could be triggered by a written complaint or because the investigating officer decided to act on the basis of something that had already been in the media or a verbal tip-off. What is the reasoning for that? We have been working to the model of complaints having to be made, which was outlined to us as being the Westminster model. Why are you looking at it differently?

We have not said specifically that complaints must be written because someone might not want to write in. They might want to make an anonymous phone call to say that they think that something a bit suspicious is happening and would like it to be looked into. If a complaint has to be in writing, the person who writes in has to be named—although clearly in many cases one would want to know who was making accusations.

If there is something in the papers, the chief investigating officer can decide that something is interesting and may decide to look into it. We have tried to maintain as light a touch as possible, because as soon as we start to set down rules, especially in primary legislation, it is very difficult, if something new and unexpected comes up, to do things differently.

We have tried to keep things flexible and open, and it will be for the chief investigating officer and the standards commission to decide pretty much how they want to work. That is not to say that the system will not be transparent and open, but it is more a case of "suck it and see". We should wait until we are investigating complaints before deciding on the best method for dealing with them.

I understand Joanne's concerns, and am not blind to the process. One potential disadvantage of arguing for solely written submissions—and I understand the superficial attraction of being able to say that at least there is some substance behind things—is that, given the experience of employees, confidentiality is sometimes required to protect the complainer from victimisation and hostility in the workplace.

We are now trying to put a model together. I am not cognisant of everything that Patricia Ferguson said about the Westminster model, and I do not know whether that is predicated on everything being written. Sometimes, information comes from non-written complaints. To take an example from American history, I do not think that there was ever a formal letter about Watergate.

I do not want to labour the point too much, but I want to discuss what Mr McAveety mentioned about the need for confidentiality with regard to employees. To my mind, there is a big difference between confidentiality and making anonymous complaints about somebody. Anonymous complaints would be more likely to be trivial. While I accept the need for confidentiality, I think that it is quite different from someone not putting their name to a complaint.

That is why the process needs to be robust. We would hope that the folk who are dealing with things—the CIO and others—would understand the process of hearings and of investigating complaints. They should be able to separate out legitimate ones from those that are clearly malevolent.

The experience of public life, as Tricia Marwick will know, is that the written letters will be matters of substance and will be worth considering. If others come in block capitals and green ink, people can work out what the exact nature of such letters will be, but they still have to respond, because if they do not, they will get a letter complaining about that, and a representation can then be made saying, "My MSP has not acknowledged my inquiry." We know of such cases. We make a judgment on them, and it is the CIO's role to deal with that.

From my experience, I knew which issues of substance should be addressed by Glasgow City Council's standards committee. I was delighted when other folk said, "I'll take that to the standards committee." I used to welcome such opportunities, because the stupidity of the complaint would often be exposed by virtue of its being examined properly, instead of having wee letters or phone calls behind the scenes.

I am comforted by the fact that you seem to get the same kind of letters as I do.

I am not sure where you think the local standards committees fit into the whole structure. You seem to have left that a wee bitty vague. As I understand it, there is a chief investigating officer and a standards commission and you are leaving the possibility of local standards committees. Do you think that all the local standards committees will be drawn up in exactly the same way? Would they all be set up according to the same model, or would they be different? Would they have different roles? How could all those roles fit with the investigative powers of the standards commission and the chief investigating officer?

At present, councils have the opportunity, in the absence of any legislation on it, to set up their own standards committee. How they arrive at the content, subject matter, procedures and process is all determined locally.

I neither sought nor received advice from the Scottish Office, prior to the establishment of the Scottish Parliament, on how to establish a standards committee. We built on existing material, ranging from the codes of conduct that already govern elected members to the developments and debate at Westminster on the Nolan committee and on standards in public life. We brought those elements together to create the Glasgow code of conduct, which was friendly, welcoming and unthreatening.

For other councils, the arrangements depend on the size, scale and nature of the council. Two large central Scotland authorities are considering establishing standards committees, but how they do that will probably differ from the way in which Glasgow established its committee. Some councils may have a different balance of representation. In some parts of Scotland, there are many independent councillors with no party political affiliation. It can be easier to achieve balance in a party political council, but less easy elsewhere. Those refinements can be dealt with locally, and we would support councils and give them advice if they sought it. However, we would expect any arrangements to be accountable, fair and transparent—those are the principles by which public life should be governed.

Would a local standards committee have an investigative role, or would that role be only for the standards commission or the chief investigating officer? Would the local standards committees be considering only very trivial issues? I am not sure where they fit in and who would do the investigating.

We do not know whether all local authorities will have their own standards committees. With a national code of conduct and national standards, the standards commission that we are establishing should be able to investigate whatever it wants. If local standards committees want to make recommendations to the commission or carry out investigations on something that the commission has decided not to look at, that is fine, but we do not think that local standards committees will have an official role. We would like them to work with the commission, which may give them guidance and help them with certain things, but the standards commission will decide what it wants to investigate. If local standards committees want to become involved in that process, it is probably a good idea, but they are not like a lower court.

I am slightly concerned that, although we are talking about national standards in public life, you seem to be reserving the right of local authorities to determine standards for themselves.

I want to clarify that, as it is important for the local government agenda. Local authorities can set up their own standards committees. There is nothing to stop them doing that at present, nor will there be once the legislation is passed. The chief investigating officer will have the right and discretion to investigate any issue of concern about standards in public life, even if there is a standards committee in the locality.

Councils need to demonstrate that they have a local standards committee to reinforce that commitment to high standards. The public have been concerned about standards, often because of the way in which the media have handled the matter in the past. There must be processes in which people can have confidence. The CIO's role will not be compromised by the existence of any local standards committee, although local committees have discretion to investigate. If a local standards committee has not conducted an investigation, because it thought that it would not be convenient to do so, but a CIO thought that it was important to do so, the CIO would still have the right to explore that issue.

We are in danger of drifting from the matter that we are investigating.

If somebody does something that is not necessarily a criminal offence, but is clearly in breach of the established procedures and rules of the code of conduct, who will apply the penalty?

Do you mean in the bill as it stands?

Lord James Douglas-Hamilton indicated agreement.

It would be the commission that would apply the penalty.

The commission would be in a senior position in relation to the standards committee. In contrast, in the Scottish Parliament, the Standards Committee is currently the senior body.

I take it that you mean local standards committees.

I think that Lord James means that the parliamentary Standards Committee has those responsibilities, whereas, under the new bill, the standards commissioner would make judgments about members of public bodies and local authorities. Does that clarify the matter?

It seems that the commission that you are setting up would be more powerful than the local standards committees, where they exist.

Yes. They have power to intervene, to use discretion to examine cases and to make recommendations.

If there are no more questions, I would like to thank Joanne McDougall and Frank McAveety.

Thank you for your time, convener.

That concludes the evidence-taking stage of our inquiry into models of investigation. On behalf of the committee, I thank today's witnesses. I will ask the clerks to prepare an issues paper, based on a summary of the evidence that we have heard, for discussion at our next meeting on 5 April.

When we were talking to the minister, I suggested that the Standards Committee should pass on its views about the investigation of MSPs to the Local Government Committee, which is considering the Ethical Standards in Public Life etc (Scotland) Bill. Perhaps we can have a paper on those issues and take a view on that at our next meeting.

Absolutely. The clerks have noted that. I am not sure of the timetable of the Local Government Committee, but we will certainly consider that matter at our next meeting.

I will give the Local Government Committee feedback on today's meeting, but any further information would be helpful.

It would be better for the Standards Committee to present its views, rather than someone from the Local Government Committee doing it. The Standards Committee must take its own view and feed that into the current process.

I was not suggesting otherwise; both my feedback and a representation from the committee will be useful.

Thank you.

Meeting closed at 12:22.