Standards Committee,

Meeting date: Tuesday, May 25, 2004

Official Report 216KB pdf

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Code of Conduct

Item 4 relates to the code of conduct, which we agreed to fine tune. We now have the administrative procedures and directions to the parliamentary standards commissioner before us. Do members have any concerns about how the code is worded or any comments on it?

I have a couple of questions on the code. My recollection is that we wanted to ensure that there was an opportunity—not repeated opportunities—for representations. I seek some clarification from the clerks and, perhaps, our legal adviser. Paragraph 3 of paper ST/S2/04/7/4b talks about giving

"the member an opportunity to make representations".

The paper then goes on to spell out the code of conduct. However, on page 8 of paper ST/S2/04/7/4c, we are told that the parliamentary standards commissioner

"will give the Member and the Complainer the opportunity to make representations".

The phrase "the opportunity" could be interpreted as meaning a single opportunity, but it might be interpreted as meaning more than that. The phrase "an opportunity" is clearly singular.

I also have a slight concern about the word "any" in proposed paragraphs 10.2.32 and 10.2.33 on page 9 of paper ST/S2/04/7/4c. The word "any" might imply that there could be no representations, one representation or several representations. If we took the word "any" out, the meaning would be clearer, as it would refer back to other references to "an" or "the" opportunity for representations—I prefer the word "an" because it is clearly singular. I am happy to receive guidance on this and I invite Catherine Scott to join us. Perhaps I am being paranoid. However, although the committee agreed that there would be the opportunity for representation—I used the word "the" then—our intention was that it would be an opportunity rather than repeated opportunities.

Can you please take me back to the first point?

Oh, gee whiz—that is rotten of you.

I was not quite following your references to the page numbers.

Okay. The first reference is in paper ST/S2/04/7/4b, which is headed "Scottish Parliamentary Commissioner Act 2002". In paragraph 3, on the second-last line of the first page, it is stated that the commissioner

"shall afford to the complainer and the member an opportunity".

I am quite happy with the use of the word "an". However, on page 8 of paper ST/S2/04/7/4c, where essentially the same wording is used, the phrase is slightly different. In the second-last paragraph, we are told that the commissioner

"will give the Member and the Complainer the opportunity to make representations on the draft report."

As that is to be in the code, I would rather it reflected the other reference and had the word "an" in it.

That is a fair point. That can easily be amended.

Let us move on to proposed paragraphs 10.2.32 and 10.2.33, on page 9 of paper ST/S2/04/7/4c. The second line of proposed paragraph 10.2.32 includes the phrase "and any representations". Again, that opens up the possibility of repeated representations. Of course, "any" allows for there being no representations. There is not a problem with that, but the word "any" almost implies that there might be repeated representations. Removing the word "any" from paragraphs 10.2.32 and 10.2.33 will retain the sense and will allow for no representations to be made, while making it clear, in reference back to paragraph 10.2.30, that there is an opportunity to make a representation. It would then be reasonable to allow the commissioner to interpret what "an opportunity" is, whereas anything less explicit than that would leave things open to challenge, which I do not think that we want. I do not think that that was the committee's intention.

On what you say about paragraphs 10.2.32 and 10.2.33, the wording is in the code as it currently stands, so there would be an amendment to those paragraphs of the code as they currently read.

As we are amending the code, I suggest that there should be a consequential amendment arising from what the committee agreed. The committee was quite clear that there should be an opportunity and, although the word "any" could be interpreted in the singular, it might be used by those who are seeking to challenge as an opportunity to make repeated representations. I suggest that, as a consequence of the committee's decision, we should remove the word "any" for clarification.

I do not see any particular objection to that proposal, but obviously the matter is for the committee to decide.

It is being pointed out to me that paragraph 10.2.31A should then read "Representations received from the Complainer … will be made available to the Standards Committee" rather than

"Any representations received from the Complainer … will be made available to the Standards Committee."

To clarify matters, we are not encouraging repeated representations.

That was the only point that I was trying to make. I want to ensure that there is no opportunity in the letter of what we produce that would leave the commissioner or us open to interpretation and challenge. That is the sole motivation behind what I am saying.

It would be possible for the committee to focus the minds of complainers or MSPs who are complained against on the timing and format of submissions or representations in guidance that it issues, even in the form of a letter to the persons concerned in a complaint at any particular stage.

Would there be any problem or difficulty in doing what I have suggested, or do you want time to consider the matter?

I do not see any difficulty in what you have suggested, but I do not think that it would change the meaning of the paragraphs terribly much or that it would make a great deal of difference. However, a fine nuance is involved and if the committee feels more comfortable by removing the word "any", I do not think that that would be a particular problem.

I wanted to remove the potential for challenge on the basis of fine nuance, so that it is the commissioner who makes decisions. The committee also agreed that things should be up to the commissioner. However, I am hogging the debate and other members want to take part in it.

I agree that it is important that there is no dubiety. As well as ensuring that everything that the commissioner does is correct, we must be conscious of how we manage the expectations of the complainer who is being given the opportunity to see the draft report. I want to ensure that there cannot be a protracted period in which the complainer can continue to make further representations to the commissioner either because they are unhappy or because they want to have any recommendations strengthened that they do not think go far enough. We must be very conscious of that matter. It is important to take the convener's suggestions seriously and to act on them.

As I understand it, convener, you wish to ensure that the people who are complained about and the complainers get one kick at the ball.

Yes. If there is to be any flexibility in that, it ought to be in the hands of the commissioner. I would wish to let the commissioner interpret the word "opportunity" and, if we include the word "an", then that allows the commissioner to interpret it as meaning a single event. The words "the" or "any" would allow the members who are complained against, the complainers or their representatives to deal with things in nuances. I had the impression that the committee wanted the commissioner to be in control of that and of what appears in the annexes to his reports. I am trying to be helpful by clarifying that referring to "an opportunity" rather than "the opportunity", and by removing the word "any" before "representations".

The paragraphs that we are focusing on—where the word "any" is discussed—refer to representations that are made to the committee at stage 3. They do not refer to representations that are made to the commissioner earlier, on the draft report.

I think, in the light of our experiences, that the same principle applies. However, I am happy to be corrected on that by other members.

In any case, the committee is free to decide whether or not it hears representations in each case.

The important thing is to leave things in the hands of the commissioner in the first instance, on matters relating to him, and, secondly, in those of the committee, on matters relating to it—but not in those of the other participants. The intention was to shut down persistent and repeated efforts while leaving discretion with the commissioner and the committee to hear what they felt they should hear.

If there are no difficulties with that proposal, and if members are content with it, can we leave it to the clerks and the legal adviser to tidy up the principles concerned, including the points that we have just been making? I am sure that those will be addressed. Is that fair? Are we agreed on that?

Members indicated agreement.

We now come to item 5, and I ask the public, the media and the official report to leave the room in order to allow the committee to conduct the last item on the agenda in private.

Meeting continued in private until 13:52.