Complaint
Item 2 is for the committee to announce its decision at stage 3 on a report from the Scottish Parliamentary Standards Commissioner.
The complaint was lodged by Iain Fraser. Mr Fraser complained that Ms Alexander had failed to register in the register of interests, within the required timescales, 10 donations of more than £520 in value that were made to her campaign for election as leader of the Labour group of MSPs in the Scottish Parliament.
Mr Fraser alleged that Ms Alexander had breached the Interests of Members of the Scottish Parliament Act 2006 by failing to register those donations as gifts. Section 5 and paragraph 6 of the schedule to the act require that members register any gift that they have received if it exceeds £520 and meets the prejudice test.
A number of facts emerge from the standards commissioner's report. Between 15 August and 14 September 2007, Ms Alexander engaged in a campaign for election as leader of the Labour group of MSPs in the Scottish Parliament. Donations towards the cost of the campaign were received from individuals and organisations and were paid into the WA campaign account, to which the member was not a signatory. Ten of those donations were of a value over the registration threshold for gifts of £520. They were banked between 31 August and 5 November 2007.
No entry was made by Ms Alexander in relation to the relevant donations under "Gifts" in the register of members' interests within 30 days of their receipt. The guidance to the code of conduct—volume 3—does not currently provide guidance on the registrable category of gifts. Paragraph 1.1.2 of the code of conduct states that members may seek advice from the standards clerks if they are uncertain about the operation of the act or the code. It then states:
"each Member must ensure that the provisions of the Act are complied with and may additionally wish to seek independent legal and other professional advice prior to registration."
Ms Alexander sought and received written advice from the clerks to the Standards, Procedures and Public Appointments Committee on 8 November 2007. The advice that she was given was that the registration of the donations in the parliamentary register of interests was not required.
The standards commissioner sought legal opinion from senior counsel, which led him to conclude that the donations to Wendy Alexander's party leadership campaign fell within the meaning of "gifts" under the 2006 act. The standards commissioner concluded that although Ms Alexander did not have direct ownership or control of the campaign funds, she had a beneficial interest in them.
On 1 February 2007, when the standards commissioner's investigation was not yet complete, nine donations were registered voluntarily in the register of members' interests and the 10th was registered under "Sponsorship". The commissioner then excluded the donation registered under "Sponsorship" from his investigations, given that, under the Scottish Parliamentary Standards Commissioner Act 2002, the commissioner cannot vary the remit set by the complaint and that, in this case, the complaint was that the donations should have been registered as gifts.
In relation to one of the remaining donations, the standards commissioner concluded that he had insufficient evidence to determine whether the prejudice test was met.
In considering the prejudice test as it applied to the eight remaining donations, the standards commissioner accepted that Ms Alexander did not feel influenced by the existence of the interests. However, he concluded that a fair-minded and impartial observer would consider that the interests could influence a person acting as an MSP, or give the appearance of prejudicing that person's ability to act impartially. On that basis, the standards commissioner concluded that the prejudice test was met.
The standards commissioner concluded that Ms Alexander's failure to register as gifts in the register of members' interests, within the appropriate timescale, eight of the donations to her leadership campaign constituted a breach of section 5 of the Interests of Members of the Scottish Parliament Act 2006, together with paragraph 6(1) of the schedule to the act.
The Standards, Procedures and Public Appointments Committee has considered the standards commissioner's report. The committee agrees with his findings of fact, although it accepts Ms Alexander's point that his statement in his findings of fact that the prejudice test is met is a judgment, rather than a finding of fact.
In considering the circumstances of the case as described in the standards commissioner's report, the committee considered the evidence gathered by him, the opinion provided to him by senior counsel, the views and decision of the area procurator fiscal and the representations made by Ms Alexander.
The committee agreed with the conclusion of the standards commissioner by a majority of five members for and two against. A minority of the committee did not agree that the donations were gifts within the meaning of the 2006 act and therefore concluded that there had not been a breach.
In accordance with paragraph 9.43 of the guidance to the code of conduct, the committee must now decide whether to apply sanctions. The committee agreed that it wished to afford Ms Alexander an opportunity to make representations to the committee. Ms Alexander has provided the following written representations:
"Further to my discussion yesterday afternoon with the Clerk to the Standards Committee, I am grateful for the opportunity to make a further statement to the members of the Committee. I appreciate the time Committee Members are giving to this matter.
With the exception of one small detail in paragraph 91, I agree with the findings of fact made by the Standards Commissioner. As the Committee is aware the advice in the code is for members to seek advice from the clerks and this I did. My actions were guided by the unambiguous written advice I received from the Parliamentary Clerks, which was based in turn on advice from the Parliament's lawyers.
Over my time in the Parliament, my register of interests has demonstrated my readiness to declare all registrable interests. Indeed over the last nine years my register shows that where I or my office have been in direct receipt of gifts and other items I have exceeded the formal reporting requirements and declared items well below the required reporting level. I have sought to ensure throughout the last nine years that I comply with all registration requirements.
In this spirit and on this occasion, I sought advice from the Clerks to confirm whether donations to my Campaign Team, being registered voluntarily with the Electoral Commission, should also appear on my personal register of members' interests. After checking with the Parliamentary lawyers, the Parliamentary Clerks confirmed in writing that these were not registrable on the grounds that I did not receive them, they were not paid to me directly, I was not a signatory to the account and I could not draw monies from the fund. I was guided by their advice in all good faith, which was consistent with the approach that appeared to have been adopted in all other party leadership elections conducted during the lifetime of the Scottish Parliament.
After the Standards Commissioner received the complaint about me, he began his investigations as detailed in his report. He himself conceded early in the investigation that he was not clear whether the donations could be classified as gifts under the Register and he was going to seek independent legal opinion from Counsel. As soon as he advised me of his Counsel's opinion that these should indeed have been classified as gifts under the Code, I took immediate steps to make a voluntary disclosure on my Register, which appeared on 9 February.
It has never been my intention to do anything but comply with the regulations laid down by our Parliament. I have acted with the utmost good faith at every stage of this process and I hope the Committee will take this account when considering their decision."
That concludes this agenda item. As agreed under agenda item 1, the committee will now move into private to consider those representations and whether to recommend the imposition of sanctions.
Meeting continued in private.
Meeting continued in public.
The committee has agreed to continue its consideration of the question of sanctions tomorrow, and I seek members' agreement to consider the issue in private at that meeting. Are members agreed?
Members indicated agreement.
The committee will consider the issue tomorrow. When we have reached agreement on the question of sanctions or otherwise, we will make a public announcement.
Meeting closed at 13:52.