Complaint
Our main business this morning is to consider a report from the acting standards commissioner concerning a complaint against Kenny MacAskill and Tricia Marwick. The commissioner's report on the complaint will not be published until the committee has reached a decision on the complaint. However, for the benefit of everyone present, I shall summarise the complaint and the commissioner's findings.
In February 2003, the complainer, Dorothy-Grace Elder, alleged that Kenny MacAskill and Tricia Marwick acted in breach of paragraph 9.2.5 of the "Code of Conduct for Members of the Scottish Parliament" by retaining a file. That file is said to have contained questionnaire returns relating to an inquiry that Ms Elder was undertaking as a reporter for the Public Petitions Committee in the previous parliamentary session. Paragraph 9.2.5 of the code states:
"Members must treat other MSPs and the staff of other MSPs with courtesy and respect."
In her letter setting out the complaint, Dorothy-Grace Elder alleged that the refusal of the members to return the material to her meant that she could not possibly do the work on behalf of the Public Petitions Committee. The complaint letter indicated that the file was in the desk of a researcher who had been employed by Kenny MacAskill and Tricia Marwick but who had been dismissed earlier in the month. Dorothy-Grace Elder indicated that the members refused to hand over the material despite requests from the convener and clerk of the Public Petitions Committee and the Deputy Presiding Officer.
The acting standards commissioner carried out an investigation into the complaint. The commissioner found that Dorothy-Grace Elder placed the work in the hands of the researcher, who was employed by Kenny MacAskill and Tricia Marwick, and that the material was retained by the members concerned as possible evidence in connection with a possible employment dispute. The commissioner found that the retention of the documentation, which comprised photocopies, did not prevent Dorothy-Grace Elder from carrying out her work on behalf of the Public Petitions Committee. The commissioner concluded that the retention of the documentation did not amount to discourtesy or disrespect towards another member and that there was not a breach of paragraph 9.2.5 of the code of conduct.
The committee is required to consider the commissioner's report and any representations that the members who are the subject of the complaint may wish to make about the commissioner's findings in fact and conclusion. I will invite Tricia Marwick and Kenny MacAskill to make such representations in a moment, after which the committee may wish to ask questions to clarify any aspects. Following that, the committee will move into private session to continue its consideration of the commissioner's report and the representations. At the conclusion of that consideration, under paragraph 10.2.33 of the code of conduct the committee must decide whether to agree with the commissioner's report, to refer the complaint back to the commissioner for further investigation or clarification, or to conduct our own investigation into the complaint. That decision will be taken in public.
I thank members for bearing with me. I invite Tricia Marwick and Kenny MacAskill to make their representations about the commissioner's findings in fact and conclusion.
I would normally thank the committee for giving me the opportunity to give evidence but, in the circumstances, that would be inappropriate and hypocritical—I would rather be anywhere than here. However, my regret is tinged by my recognition of the circumstances and regulations that have caused my appearance. The reasons why I must appear before the committee are related to the standards commissioner's report and the prior complaint by Dorothy-Grace Elder.
Dorothy-Grace Elder is a former party colleague who left the Scottish National Party and who has since, through this complaint and other matters, carried out a campaign of vilification against my party, my colleagues and me. The investigation was conducted properly by the interim standards commissioner, a man whom I view as having great integrity and whom I would not impugn in any way. The result of the investigation is that my integrity and that of my colleague, who was a member of the Standards Committee in the previous session and who is now its convener, have been the subject of malicious maligning. We all know that that goes with the terrain in politics, but while my colleague and I were unable to respond because of the confidentiality requirements, aspersions were being made in the press, which was difficult to bear.
We now have the report, which clearly vindicates my colleague and me. We would be glad if the report were made public in full. Indeed, we would have had no objection to the entire discussion at this meeting of the committee being conducted in public, although that is a matter for the committee.
As I said, the interim standards commissioner, Mr Bill Spence, is a man of integrity. That befits the post and would be expected from any such commissioner. He has contributed a great deal in public life through his service as the chief constable of Tayside police and as a member of the Association of Chief Police Officers in Scotland. Arguably, his public service has been greater than that of anybody in this room. We have the fullest respect for him and for the job that he carried out, although we wish that he had not had to do it. We accept his report and we seek its public release.
The final words of paragraph 30 state:
"the circumstances are not considered to comprise discourtesy or disrespect".
The conclusion of the report states:
"There is no dispute that Ms Elder placed work in the hands of the researcher contracted to work for Mr MacAskill and Ms Marwick. Ms Elder did not seek the Members' consent and so this work was unauthorised by the employers and consequently the resulting product was retained as possible evidence of their employee's alleged breach of contract of employment. Moreover, the retention of the documentation which comprised photocopies did not prevent Ms Elder from carrying out her work on behalf of the Public Petitions Committee.
The final paragraph states:
"I am of the view that retention of the documentation does not in the circumstances amount to a discourtesy or disrespect towards another Member and in the circumstances it would not be appropriate to conclude that there had been a breach of paragraph 9.2.5 of the Code of Conduct."
That is the conclusion that is before you. We are more than happy for the report to be released in its entirety.
I have been more than happy to put my trust in the standards commissioner, and I ask the committee to do likewise. We invoked the standards commissioner for a variety of reasons. I am aware that, like me, some members of the committee sat on the Scottish Parliamentary Standards Commissioner Bill Committee and discussed and debated in public and private why such a post was being created. There are two reasons in particular.
The first reason for the creation of the post was to ensure that scrutiny is impartial and not political or party political—that is, to ensure that an issue is judged on its merits or the actions concerned, not the political affiliation of the complainer or the member. There is not meant to be a star chamber—I fully recall the debates and discussions in the Scottish Parliamentary Standards Commissioner Bill Committee about the difficulties that occurred with one Mr Kenneth Starr and what happened when investigations became political witch hunts.
Secondly, the commissioner's role is not simply to prosecute and pursue members who have breached rules or are guilty of impropriety. It is also and equally to protect the innocent—those who have not breached the rules or transgressed and who have been vindicated. I submit that that has happened in this instance. Mr Spence has carried out his inquiry into the complaint. He has made a fulsome report and he has exonerated me and my colleague. We should not be subject to the parliamentary equivalent of a vexatious litigant in Ms Elder. I respectfully suggest that the committee should accept the report in its entirety.
The standards commissioner's report is, as it should be, a report to the Standards Committee. The Standards Committee must not allow itself to become a standards inquisition. I simply ask the committee to accept Mr Spence's report—he is a man of integrity who, as far as I can see, has carried out his job in its entirety—and to ensure that there is no impression, right or wrong, of political partiality and that we do not undermine the office of the standards commissioner. If his report is not accepted, I suggest that that office is undermined by implication.
Thank you. Does Mrs Marwick wish to make representations before questioning?
Yes. Copies of my statement have been given to the clerks and the official report. The media will be given a copy outside the committee room when the committee goes into private.
The standards commissioner's report has made clear that neither Kenny MacAskill nor I has acted inappropriately. Not only has the commissioner concluded that we have not breached the code of conduct, but there is not a single word of criticism of either of us in the report. It is our choice to address the committee today—there is no requirement for us to do so. However, I wish to place before the committee matters that I trust it will consider when it comes to write its own report.
First, as Kenny MacAskill has done, I express my thanks to William Spence, the acting standards commissioner. He is a former chief constable of Tayside police, who is well used to taking and weighing evidence, and a man of integrity. His job was to hear and examine all the evidence and produce the report. He has served the Parliament well since his appointment, and I wish him well in his retirement.
Although I appreciate that the standards commissioner has now formally exonerated us, we have never had a scintilla of doubt—for reasons to which I will refer later—that the complaint would be thrown out. Nonetheless, I am grateful to our friends in the Scottish National Party, including John Swinney, the SNP leader, for their support and confidence.
When I was nominated as convener of the committee, I made it clear to members that, if the independent standards commissioner found against me, I would resign as convener. The report makes it clear that I have acted properly and I intend to resume my duties as convener of the committee at the earliest practical opportunity.
I have remained silent for four months. I have not discussed the substance of the complaint, yet it has been a matter of parliamentary, media and other public comment. As a result of that, I have been tried and found guilty by members of the Parliament and some of the media while the investigation has been on-going.
My reputation and that of my friend Kenny MacAskill have been undermined by false allegations and downright lies and I deplore the activities of certain MSPs and others who have used a spurious complaint to play evil games for their own twisted ends. I am now free of the constraints of confidentiality that have been necessary because of an employment appeal, a potential industrial tribunal and, of course, the independent standards commissioner's inquiry.
Paragraph 32 of the conclusion of the standards commissioner's report states:
"There is no dispute that Ms Elder placed work in the hands of the researcher contracted to work for Mr MacAskill and Ms Marwick. Ms Elder did not seek the Members' consent and so this work was unauthorised by the employers and consequently the resulting product was retained as possible evidence of the employee's alleged breach of contract of employment. Moreover, the retention of the documentation which comprised photocopies did not prevent Ms Elder from carrying out her work on behalf of the Public Petitions Committee."
The final paragraph goes on to say:
"I am of the view that retention of the documentation does not in the circumstances amount to a discourtesy or disrespect towards another member and in the circumstances it would not be appropriate to conclude that there has been a breach of paragraph 9.2.5 of the Code of Conduct."
I will pause for a moment to ask you, convener, to ask Ms Elder to refrain from making noises behind me when I am speaking.
Would all members of the public please show courtesy and respect for the proceedings?
Ms Elder has caused havoc for four months. She misled parliamentary clerks, the convener and members of the Public Petitions Committee, the head of security, the police, and the Presiding Officer and Deputy Presiding Officers about the nature and origin of the retained documents.
I turn to the issue on which I urge the committee to reflect when it considers its report. One of the requirements of the complaints procedure is that there should be no public discussion by MSPs of the nature of the complaint until the commissioner has reported. The previous Standards Committee believed that its confidentiality requirement was essential to prevent any MSP from being tried and convicted before the investigation was completed. That did not work in my case.
Ms Elder, or her friends, ensured that the complaint was never out of the public domain. Indeed, some members ensured that the complaint was placed in the public domain. On 11 March, days after the complaint was lodged, Helen Eadie MSP told a meeting of the Public Petitions Committee:
"I know that she has made an official complaint to the Standards Committee. Tricia Marwick has withheld official committee papers and should answer to the Standards Committee for that."
John McAllion, the convener of the committee, said:
"members will be aware of what has happened, but some activity has taken place in the background. An official complaint has been made to the Standards Committee, but the standing orders forbid us from commenting on the matter until the complaint has been dealt with."
Helen Eadie went on:
"I quite appreciate that we cannot comment on the issue, but we can ask questions about why the papers have not been returned. I know that Dorothy-Grace Elder has had to work two full shifts without sleeping—30 hours at a go—in order to complete her work and to provide us with her paper. It is absolutely outrageous that a member of an Opposition party should put the committee in the position of not having the information that it needs."
The convener replied:
"Helen Eadie is beginning to stray into the matter of the complaint. We cannot say anything just now, but the committee will have a full discussion on the matter when the Standards Committee has dealt with and decided on the complaint… When that is finished, we will have a full discussion on the implications for the committee and for the Parliament."—[Official Report, Public Petitions Committee, 11 March 2003; c 2948-9.]
Of course, Mrs Eadie's comments found their way into the press as no doubt they were meant to. That is a serious matter and one on which the committee must reflect for the future. Mrs Eadie and Mr McAllion are, in my view, in breach of the code of conduct. I do not excuse their behaviour, but I recognise that Ms Elder misled them as she has misled many others and continues to do so. I hope that Mrs Eadie and Mr McAllion will reflect carefully on the report from the standards commissioner, just as Mr MacAskill and I will reflect carefully on whether to take further action.
I am now passing round some press cuttings, for the benefit of the committee. I trust that the committee will take the opportunity to express in its own report its dismay about the media coverage of and parliamentary comment on the complaint. For the benefit of Mrs Eadie, who was so concerned about Ms Elder's nocturnal habits, I can assure her that, after our researcher was sacked on 3 February, she had a whole month in which to do the work all over again, but in her own time instead of in ours. She could have produced the report in plenty of time for Ms Elder to present it and claim it as entirely her own intellectual work before the Public Petitions Committee.
The previous Standards Committee put in place a code of conduct and promoted legislation to create a standards commissioner who would have real powers to investigate and who would be completely independent of the Standards Committee and of MSPs. It is a tribute to MSPs that they voted for those measures, which are the envy of other legislatures in the United Kingdom. The investigation of complaints has been taken out of the hands of politicians and put into the hands of an independent standards commissioner. That removes the possibility of accusations of MSPs looking after their own, or of the Government of the day applying pressure for a particular outcome, as has happened at Westminster.
However, I am unaware of any report that cleared a member being overturned by the Select Committee on Standards and Privileges Committee. Even at Westminster, it might be considered that that would be taking political and personal animus too far. This Parliament's code of conduct and complaints procedure should not be capable of being used by those who are waging a public or personal vendetta against individual MSPs.
Let me now turn to the role of the complainant in the complaints process. Once a complaint has been made and evidence taken by the independent standards commissioner, the complainant has no further role. If the standards commissioner finds against a member, the Standards Committee may hear the member's response to the report before deciding on the report and imposing sanctions. No complainant has ever been asked to come before the committee to comment on the report, or indeed to comment on possible sanctions.
If the standards commissioner cleared a member of all allegations, it would be unacceptable for the complainant to be given an opportunity to repeat allegations against an MSP in public that the standards commissioner had considered in private and had judged to be unfounded. It would be even more unacceptable if the complaint had been deliberately placed and kept in the public domain by the complainant or friends of the complainant during the period of the investigation, which is contrary to the requirements of the code of conduct.
Today's part of the process gives the MSP the opportunity to comment on the report. It is not a rerun of the evidence-taking process, the powers of which the Parliament has given over to the standards commissioner. To allow a complainant to repeat allegations at this stage could open the door to anyone to seek, for whatever reason, their minutes of fame or infamy.
It is of course open to the committee to reject a standards commissioner's report and to hold its own inquiry, with evidence being taken in public from the complainant and the MSP. That course would be without precedent in the Parliament. In my view, there would have to be exceptional circumstances as well as serious concern about the way in which the standards commissioner had conducted the investigation for such an action to be contemplated.
In the previous session, Parliament recognised that, in the interests of openness and transparency, the complaints process must be taken out of the hands of politicians. It recognised that such influence could taint the proceedings. The previous Standards Committee recognised at an early stage that decisions based on party-political or personal animus, or indeed on party-political or personal partiality, would be destructive not just to the reputation of MSPs and the Standards Committee, but to the Parliament as an institution. All the members of the previous Standards Committee worked hard to achieve that.
Complaints against members are serious matters. The complaints procedure should be open, transparent and fair. We as MSPs should expect that fairness to extend to us. The process should not be turned into a circus.
I am happy to answer relevant questions from members of the committee. After we have done so, we will leave the committee room. We will not be present when the meeting resumes in public. The media should note that Kenny MacAskill and I will hold a press conference after the committee makes its decision.
I thank Tricia Marwick and Mr MacAskill for their representations. Committee members can now clarify any aspect of those representations, but before members ask questions, I have a question for Mr MacAskill. You made several points about the need for a standards commissioner and the need to get away from the potential for party-political behaviour in the Standards Committee. Are you implying that there will be such conduct by committee members?
I cannot hypothesise about that, but I hope that there will be no such conduct. However, that is a matter that will be judged. I am not suggesting anything about the committee's conduct. I cannot be expected to answer a hypothetical question.
Do you think that there has been any suggestion of partial behaviour so far in the behaviour of any committee members?
As acting convener, you must judge and comment on whether that has been the case. However, I discussed with the committee clerks the issue of declarations of interests. I note that no member declared any interests. I may or may not comment on that at a later stage.
Can you expand on that? What kind of interest would you expect members to declare?
That is a matter not for me but for the members. No member made a declaration of interests. Dr Jones kindly sent a copy of the relevant rules to me and it appears that, in every committee or sub-committee meeting, it is the responsibility of each member to decide whether it is necessary to declare any interests. No member has sought to indicate a declaration of interests. Therefore, unless that position changes, I have no comment to make on the matter. However, I might comment at a later stage on members not declaring any interests. Why members chose not to declare any interests is a matter for them. I cannot look inside their heads.
I assume, because no member made a declaration of interests at the beginning of the meeting, that members have nothing to declare.
That is the assumption.
I think that that is the assumption. Do you want to discuss anything further at this stage?
No, not at the moment.
Do any members want to raise any points?
Tricia Marwick said that it is vital that the procedure is fair to MSPs. I have no difficulty with that statement. However, is she alleging that anything that the committee has done so far has been unfair to her and to Kenny MacAskill? If so, what is it?
I am, of course, not privy to any of the committee's private discussions. I make no allegations at this point. I acknowledge that it is for members to decide on their own conduct, which is as it should be. However, I certainly have no comment to make about the conduct of today's meeting.
After the part of your statement to which I referred, you went on to say that the procedure must not be turned into a circus. I whole-heartedly agree with that point. However, are you suggesting that any of the committee's actions so far have gone down the route of turning the procedure into a circus?
I have been privy only to today's meeting, which has been conducted, so far, as I would expect Kenny Macintosh to conduct it. I have no problem with proceedings to date. However, the process is not finished and my comments are based not on individual meetings but on the process.
Can you confirm that you have no problems with the proceedings to date?
I have no concerns about how Mr Macintosh, as the deputy convener, has conducted this part of the investigation.
Thank you.
There is an implication in what you said that there are question marks over other conduct in the investigation. Is that the case?
I do not know what the committee is going to do. The point that I made was that the whole process should not be turned into a circus. What I was talking about was the role of the complainant and the difficulty that the committee might have if the process were turned into a circus. That is why I went on at great length about the complainant's role and my belief that it would be unwise to allow any complainant—no matter whom—to continue to make allegations in public that the commissioner had heard in private.
I do not think that it is the role of those who are the subject of a complaint to exonerate the committee. However, it is the role of the committee to consider whether it wishes to exonerate those who are the subject of a complaint. I am surprised at the line of questioning, as it is not to be expected.
As I said at the outset, I regret being here. I understand why we are here and why procedures have to be followed, but it is bizarre that a committee should seek to be exonerated by those whom it seeks to examine.
I do not think that other committee members or I have asked to be exonerated. In both your and Tricia Marwick's opening remarks, you took great pains to invoke the standards commissioner and to say that the reason for having a standards commissioner was to get away from any question about the impartiality of the Standards Committee. The implicit criticism that was contained in those remarks was that the committee might not be impartial.
No—
I am simply trying to elicit for the record whether you are happy with the proceedings.
Tricia Marwick said that if the outcome of the process were unsatisfactory, questions would remain to be asked. However, if Tricia Marwick or Kenny MacAskill have questions to raise about the process, I would welcome those questions being raised at this stage.
With all respect, the purpose of our appearing before the committee today is to make any representations that we wish to make about Mr Spence's report. We are not here today to comment on the past or future actions of the committee. We are under no obligation to do anything other than answer the questions that the deputy convener or other committee members might have about comments that we have made.
The deputy convener has begun to stray into a position in which he wishes us to vindicate the committee for our being here. I regret very much being here. I appreciate why members of the Standards Committee require to be here: they are undertaking their duty as committee members, but it is not incumbent on me or Ms Marwick to go beyond answering the committee's questions. In terms of the regulations, we are restricted to answering questions that arise under the terms of our opening remarks and written statement.
The deputy convener is trying to push us into making comments. He is asking us to say that we exonerate the committee or that we are happy with the procedure past or present, but that is something on which I am not prepared to comment and, which is important, something on which we do not have to comment.
Very well.
I seek clarification of two things that were said—I forget by which member. The term "comprised photocopies" was used to describe some of the pieces of paper that are complained about. I am not sure whether all the papers that are complained about are photocopies or whether only some papers were photocopies.
I will deal with that question. I say to Mr Gorrie that this part of the process is not to take evidence. The only reference that I made to photocopies was to quote from the conclusion of the standards commissioner's report. Mr Gorrie's job—indeed, the job of the Standards Committee—is to decide whether to accept the standard commissioner's report and his conclusions.
Right. The phrase was used and I simply wanted clarification of it.
Tricia Marwick argues at some length in her statement that the efforts of the convener of the Public Petitions Committee and other leading members of the Parliament to get the return of copies of the papers arose out of their misunderstanding of the position and that that misunderstanding was based on misinformation that was given to them by the complainant. Is that your position?
It is now quite clear from the conclusion that was reached by the standards commissioner that none of the papers that Mr MacAskill and I held in any way prevented Ms Elder from completing her report. It follows that the representations that she made to the parliamentary clerks, the convener and members of the Public Petitions Committee, the head of security, the police, and the Presiding Officer and Deputy Presiding Officers about the nature and origin of documents were made to mislead them.
To assist Mr Gorrie, I suggest that he look at paragraph 30 of Mr Spence's report. Before I read from that paragraph, I give the caveat that I do not believe that I am opening this up to answer questions—I am simply clarifying matters for Mr Gorrie. The first sentence of paragraph 30 reads:
"The photocopied documentation cannot be identified as ‘vital' to Ms Elder's role as Reporter to the Committee as she already had the original documentation."
Committee members are well aware that we are allowed to question you only on your representations.
I have a question for Tricia Marwick. In your statement you referred to "downright lies", but in the commissioner's report there is no reference to anyone telling lies. Do you want to expand on the comment that you made?
Mr Neil will be well aware that the commissioner's report deals only with the behaviour of MSPs. I am sure that if he reads the report carefully he will see that the commissioner refers to the claim of Ms Elder and her ex-researcher that all the work had been carried out in the ex-researcher's own time. The report states:
"Although Ms Elder and the researcher had alluded to the work being carried out in the latter's own time, the evidence retained from the computer print-out points strongly to the conclusion that it was work carried out during office hours."
Of course the commissioner deals only with the behaviour of Kenny MacAskill and me and the report that we are discussing today completely exonerates us. I have an opinion on what has happened throughout the process, but that is not a matter for the committee at this point.
I thank all members and I thank Mrs Marwick and Mr MacAskill for their representations. As we agreed at the beginning of the meeting, we will now move into private session to resume our consideration of the commissioner's report. I ask members of the public, the press, the official report and broadcasting to leave the room.
Meeting continued in private.
Meeting continued in public.
The Standards Committee has unanimously agreed that I, as deputy convener, will make the following statement.
Having deliberated at length on the matter, the Standards Committee has further questions that it wishes to ask and issues that it wishes to clarify. For example, it is still unclear to the committee how necessary the papers in the possession of Tricia Marwick and Kenny MacAskill were to the work of Dorothy-Grace Elder on behalf of the Public Petitions Committee. We are also unclear as to why Tricia Marwick and Kenny MacAskill did not respond to the approaches that were made by the then convener of the Public Petitions Committee and others for the return of the papers. There is therefore a need for the committee to hear further evidence and for us to conduct our own investigation. The clerks will write to the witnesses from whom we wish to hear with an outline of areas of questioning.
We do not see ourselves operating in this manner in response to every complaint. Our decision to do so in this case does not imply that we will ultimately reject the acting standards commissioner's findings, nor does it imply that we are in any way unhappy with the work of the acting standards commissioner.
The next meeting will not be until after the summer recess. Members will be notified of the date of that meeting as soon as possible.
If members have no further comments to make, I close the meeting. Thank you very much for attending.
Meeting closed at 11:30.