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I welcome everyone to the fourth meeting in 2006 of the Standards and Public Appointments Committee. I remind folk to switch off their mobile phones. We have received apologies from Alex Fergusson and Donald Gorrie—Donald Gorrie has to attend another committee meeting.
I agree with the general principle of positioning the mandatory code in front of the guidance.
Are you talking about the guidance that is currently in annex 5 of the code of conduct, which is mentioned in paragraph 20?
Yes. It is suggested that the guidance should be included in the code. However, the guidance should not become mandatory, because much depends on how individual MSPs decide to operate. I am a list MSP and constituency MSPs in the region that I represent deal with list MSPs in different ways.
That was useful. Do members want to discuss the points that Linda Fabiani raised? Alternatively, perhaps we should just go through the paper paragraph by paragraph. Would members prefer that?
I assume that members are happy with paragraphs 1 to 3, so we will now deal with paragraphs 4 to 8. As members seem to be content with the paragraphs, I take it that the code should have an introduction or preamble along the general lines that are laid out in those paragraphs. Is that correct?
Paragraphs 9 to 12 discuss the mandatory part of the code. Linda Fabiani mentioned annex 5, which is at present mandatory and is likely to remain so. On that issue, we ought to discuss with the Presiding Officer how he sees his and his successors' role. We have had almost two parliamentary sessions, so this is an appropriate point at which to review whether the Presiding Officer should deal with matters that relate to annex 5, whether he wants to do that and where annex 5 ought to fit in.
That is eminently sensible. As a matter of courtesy, we should liaise with the Presiding Officer on that issue through you, convener.
We should invite him to come to the committee or at least write to him to ask how we should progress. He could inform us of his view either in writing or by coming to talk to us.
That is fair and we should do that.
Do members agree to paragraphs 9 to 12, with that minor change?
We now come to paragraphs 13 to 17. Linda Fabiani made several points about paragraphs 15 to 17. Do members wish to comment on those paragraphs?
As a preamble, I refer to the comments that I made during a previous discussion on guidance. We are trying to set out a series of rules that can be measured objectively, but we are applying them to matters that have subjective elements, such as behaviour. It is important that the elements of any bill are explicit about what we seek to do—
There will not be a bill.
No, I realise that.
I accept your point, though.
Legislation, or that which is written down as law, should be absolutely clear about the principles that are being applied. The code is mandatory and breach of it is a serious matter, so it should be absolutely clear which behaviour we are talking about. It is not good that revisions that are made in the light of experience require a change to primary legislation. It should be possible to review the code regularly, as experience dictates and as circumstances and lifestyles change. I had a conversation earlier about the fact that many rules on conduct and interests relate to a former time, when members were businessmen and families' interests were perhaps more relevant, given the nature of the businesses that many members were in.
Do members wish to engage with the First Minister on that issue? I concur with Linda Fabiani and Christine May that for the benefit of members and members of the public the guidance should spell out that any action that is taken by a member in their role as a minister is not covered by the code. Just as we are going to offer the Presiding Officer the opportunity to engage with us on annex 5, it might be useful to offer a similar opportunity to the First Minister in this instance.
Would not the appropriate person be the Minister for Parliamentary Business rather than the First Minister?
We could offer the opportunity to whoever is appropriate. I hesitated in making the suggestion, but I thought that, as we had offered someone else who would be affected by the code the opportunity to engage with us, we should do so in this instance as well.
Elsewhere in our papers it is suggested that the business managers be asked to look over the proposals. If business managers are being asked to consider them in general, we could pick out a few points that we would like them to consider further.
I am not sure that we need the First Minister to come before the committee, but there would be no harm in our writing to him asking whether he has any comments to make about the ministerial code of conduct. When he responds, we can reflect upon his views.
The following few paragraphs of paper 1a suggest that, in the minds of many members of the public, there is confusion about the various roles. A list of what is not covered would not have to be all-inclusive; it could be indicative.
Karen Whitefield's comment was helpful in that it leads me to clarify what I meant. I was not suggesting that we have a great long list. The paper includes examples of what might not be covered by the code—such as ministerial activities and party political activities—and it is reasonable to refer to those big-ticket issues as being excluded. However, I would not suggest that we should have either a list for or a list against.
It would be pointless having an exhaustive list. The paper suggests that we should state that the code does not cover the large issues to which Christine May, Linda Fabiani and Karen Whitefield referred. Simply stating what the code does not cover would assist any member of the public who wanted to spend an hour or two—perhaps less time than that—looking through the code. It would say, "Here is what is covered; here is what is not covered. Now, continue on your way, gentle reader."
Well put.
Are there any comments on paragraphs 18 to 20? Do you want to reiterate what you said earlier, Linda?
Thank you for correcting me earlier, convener. I had not realised that the Reid principles were mandatory. Maybe I should read them again, now that I know.
I agree with Linda Fabiani. We should hear from the Presiding Officer, whether in oral evidence—if his busy schedule allows him to come to the committee—or in correspondence or both. We are seven years into the life of the Parliament and it strikes me that fewer issues arise now than did in the Parliament's early years. However, it would be interesting to hear what the Presiding Officer has to say, especially as he was the main—if not the only—author of the principles.
The Presiding Officer is in a unique position to offer an insight into the matter: he was a list MSP in the first session of the Parliament and he is a constituency MSP in the current session. Few members are in that position, although I am one such member and so is David McLetchie. We might have another member who is in that position in the near future, although that will depend on events later in the week.
We move on to paragraphs 21 and 22. Do members agree that section 10 of the code would be better placed as an annex to the revised code?
The paper says:
You quote paragraph 22. I dealt with paragraph 21 first.
Sorry.
Do members agree that the paragraphs on disclosure should remain in the revised code, as suggested in paragraph 22?
We move on to paper ST/S2/06/4/1b, which is on guidance to MSPs on handling abusive, threatening or unreasonably persistent constituents. Last year, the committee issued guidance to the Scottish parliamentary standards commissioner on dealing with unacceptable actions, but there is no formal guidance for members on the matter, although members can approach the clerks for advice in individual cases—and they have done so. The inclusion of guidance in the code of conduct would help not only members but the public, because it would set out what is expected of members of the Parliament in certain situations and how members should act. We should make it clear that guidance is just guidance—it is not rules that might cause members difficulty, and its existence would not prevent members of the public from submitting complaints, which would be assessed against the criteria set out in the legislation that governs the complaints system.
This is an excellent background paper, which comes to a good conclusion. As you said, convener, the proposed policy is necessary not only for us but for the people of Scotland. I tend to agree with the paper's points for possible inclusion in a draft policy. I do not see anything in them that is out of place and I cannot think of anything to add, though perhaps other members can. The draft policy is reasonably detailed. We should circulate it to business managers and invite comments from them.
I agree that we should do that. It is worth noting the examples in the paper of institutions that do not have the guidance that we seek and that are considering introducing it. I remember being impressed by the Scottish public services ombudsman's evidence. I like the language that she uses and how her policy states the facts. It is clear and understandable. That is the way we should go rather than try to get complicated.
My views are similar. I have a comment about the first bullet point in paragraph 16, which states:
Yes, although the paper does refer to that later.
We all accept that people who are upset or angry about an injustice—the ombudsman's code refers to this—will not necessarily use temperate language. I think that most of our staff can deal with that—we train them to deal with it—but there is a stage beyond which intemperate language or demeanour becomes unacceptable. We want to be able to differentiate the stages.
We must bear in mind the fact that we are discussing the code of conduct for members, which is primarily about members. Obviously, members' staff deal in the first instance with members of the public. Your point is valid, Christine, but we must be careful that we do not try to produce a code of conduct for members' staff.
There must be wording or a legalistic phrase that we can use—for example, "towards the office of an MSP"—that makes it plain that the code refers to MSPs and people who deal with them. Following our acceptance of the proposed policy, MSPs should issue, as employers, guidance to their staff that covers them as employees. That would be sensible. Something could be put in employee contracts and in the booklet that is given to staff when we use the Parliament's contracting service. We should point out to all MSPs that if the proposed policy is accepted, we should pass on guidance to our employees.
Are members in general agreement with the paper's points, particularly the point that we should engage with business managers on the subject before any guidance is formally adopted?
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