Standards, Procedures and Public Appointments Committee, 26 Feb 2008

Meeting date: Tuesday, February 26, 2008

Official Report 230KB pdf

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Code of Conduct Review

Good afternoon and welcome to the Standards, Procedures and Public Appointments Committee's third meeting this year. We have received no apologies, but I understand that Hugh O'Donnell is running a little late and will join us shortly. Alex Neil will not be able to give evidence, but we hope that Margo MacDonald will join us later.

Agenda item 1 is evidence for our review of section 8 of the "Code of Conduct for Members of the Scottish Parliament". I welcome Dr Jim Dyer, who is the Scottish Parliamentary Standards Commissioner.

Good afternoon.

I also welcome the Rev Graham Blount, who is the Scottish Churches Parliamentary Office's parliamentary officer.

Hello.

I encourage members and witnesses to be as brief as they can in their questions and answers, as time is limited. I thank Dr Dyer and Graham Blount for their submissions, which members have found helpful, and I invite questions from members.

As the convener did, I thank both witnesses for their submissions, which will help throughout the inquiry.

My first question is to Dr Dyer. Your submission says:

"the inclusion of key principles in Section 8 is inconsistent with the … approach taken by the Standards and Public Appointments Committee".

What do you see as the disadvantages of retaining the principles in section 8?

My answer has two parts. In the Parliament's second session, the Standards and Public Appointments Committee announced its intention to clarify the code by separating enforceable rules from aspirational principles and from guidance and explanatory material, so the code that has operated since May 2007 has three volumes. The first volume contains aspirational principles and introductory material, the second contains enforceable rules, and the third contains explanatory and guidance material.

I understood that the intention was to take all the overarching principles out of the enforceable part of the code and to leave them as aspirational principles. That was done. The principle that members should be accessible to constituents and should represent their interests conscientiously was previously in section 2 of the code and was moved into volume 1, but it was left in section 8—the old annex 5—which deals largely with relationships between constituency and list MSPs but which also includes the principle of accessibility and conscientious representation. That means that, for the past 10 or 11 months, complaints about the level and quality of the service that MSPs provide have gone to the Presiding Officer, who deals with section 8 complaints, rather than to me. I apologise that the first part of the answer has proved to be a bit long, but the issue is complex. There is an anomaly in taking principles out of the code but leaving general principles in section 8.

The second part is the answer to the question whether the standards complaints mechanism should deal with complaints about the level of service that MSPs provide. As a matter of principle, I think that it should not. Of course, I am not for a moment saying that MSPs should not be accessible or represent their constituents conscientiously. They are there to do a job for which public funds pay. However, MSPs are not employees of the Scottish Parliament. They cannot be held to a strict job description that specifies how constituents' problems must be dealt with and says that letters must be answered within such and such a time, as an employee might be; they answer to the electorate.

I therefore think that the standards system should be reserved for issues such as propriety, conduct and transparency over financial interests. Different ways should found to deal with what happens when MSPs are accused of not being accessible or of not conscientiously representing constituents.

I am satisfied with that answer.

Dr Dyer considered complaints about the level of service or performance of members under what was annex 5 and is now section 8. Will you elaborate on what in your experience are the key difficulties in reaching a judgment on accessibility or conscientious representation?

The first point is that, in the absence of any job description, it is difficult for me to judge what is reasonable accessibility and conscientious representation. For example, should a member acknowledge all correspondence from constituents? Within what timescale? It is hard for me to sit in judgment on the correct standards of accessibility and conscientious representation.

I have sometimes had the feeling that people were trying to use me to make members do things for them that the member did not necessarily want to do. Constituents were not just complaining retrospectively but hoping that I could, in a headmasterly way, take a member aside to tell them that they should deal with an issue. Of course, that would not be a proper exercise of my role.

We get into difficult and inappropriate territory for a standards system that should, as I said, be primarily about probity, propriety and transparency on financial issues. It should not put me in judgment on the level of service that is provided by members, which is properly a matter for the democratic process—the ballot box. Given that we have a list system in Scotland, which means that parties as well as voters help to choose MSPs, people could also be encouraged to complain to party leaders if they are dissatisfied with the performance of members. Therefore, if someone was dissatisfied with their representative, having first complained to the member they could consider complaining to the party leader. Failing that, they could exercise their democratic right at the next election.

I want to ask quickly about your point on party leaders. As far as I am aware, there is a democratic process for all the political parties that are represented in Parliament, so do you acknowledge that the appointment or selection of parliamentary candidates is not solely in the province of the party leaders? That fact would somewhat undermine the role of the party leader in complaints.

There would obviously have to be further discussion of the idea, but it is based on the party leader's being a figurehead of the party who selected who was on the list and where they appeared on it. The idea reflects the fact that, unlike in a simple first-past-the-post system, parties as well as voters play a role in determining who become members.

The guidance in the code of conduct in section 9 details the criteria that a complaint about the conduct of a member should meet. It includes criteria such as that the complaint should be made in writing and by an individual. I understand that you apply the criteria to all the complaints that you receive, including those that you used to consider under the old annex 5. Do you believe that complaints to the Presiding Officer should meet the same requirements?

I think that those are generally sensible requirements. As you said, I must apply them to any complaint that comes to me, which includes any complaint under section 8. If I receive a complaint, I must notify the relevant member and consider the admissibility of the complaint. If it is about the level and quality of service, it is an excluded complaint, which I must therefore dismiss and tell the complainer that I will, if they would like me to, pass it on to the Presiding Officer, who is now the proper recipient of such complaints.

To answer the core of Dave Thompson's question, it is helpful to have rules that state that complaints should be in writing and should be signed by the complainer, and that they should name the MSP who is being complained about. There are rules in the legislation that set up my role—the Scottish Parliamentary Standards Commissioner Act 2002—about how to deal with anonymous complaints and so-called undirected complaints that do not name members, and so on. It is helpful to have rules of that sort.

Good afternoon. In his submission, Graham Blount explains the procedure whereby complaints would be directed to the Presiding Officer, which would provide

"an appropriate test of reasonableness."

What sort of criteria or evidence should the Presiding Officer have regard to in deciding whether a complaint about an MSP is reasonable?

As we tried to express in our written response, the first key principle in section 8.2.1 of the code of conduct is about conscientious representation and accessibility, which I think give the basis for a judgment by the Presiding Officer.

It seems to me that the issue is to whom, from among a range of people, complaints should go. Have they nowhere to go? Somebody must make a judgment about reasonableness at some point in the process. I accept that there are different criteria for issues of financial irregularity, for which more objective, hard and fast rules can be clearly laid down. However, many spheres of legislation rely, as do other aspects of life, on a test of reasonableness and on finding the right person to make that judgment.

I believe that the basis for the judgment of reasonableness is in the key principles in section 8.2.1 of the code of conduct and that the Presiding Officer is, initially, the person who should make the judgment.

Do you have examples of criteria that would be used to judge reasonableness?

For the sake of argument, let us say that an MSP, whether a list or a constituency MSP, who resolutely held surgeries only in the east end of their constituency and refused to hold them in the west end might be held to have failed in that respect. I am talking about a reasonably substantial geographical area in which there were people who genuinely had difficulty in attending a surgery. I think that that situation might be an example of an MSP failing, or appearing to fail, the test of accessibility. If that case were substantiated, there would be a prima facie case for saying that the MSP was not doing something reasonable in terms of accessibility.

Okay. I think that that answer was what I was looking for, convener.

On the same lines, can you please explain what you mean when you comment in your written submission that members

"owe their constituents the exercise of their good judgment."

Can you add a little bit more to that?

Yes. Constituents have the right to expect from MSPs proper responses on issues that they bring to them, although the response may not be what the constituent wants. There is an analogy between what we would expect in this context and what the Public Petitions Committee does with petitions. It seems to me that the role of the Public Petitions Committee is to ensure that the petitioner gets a proper answer, which may or may not be the answer that they want. Similarly, nobody would say that it is an MSP's duty to do everything that every constituent wants them to do—that is clearly impossible. It is clear that although there is scope for judgment about what action is appropriate, simply ignoring the matter is not appropriate.

Okay, so one cannot ignore such matters. Does that mean that if members fail to exercise their good judgment, the code of conduct should provide a remedy?

I do not think that it is the Presiding Officer's job to question members' judgment if he feels that they have reasonably exercised their judgment. It is not about second-guessing the judgment call that has been made; it is about whether the member has done anything.

Right—so as long as some kind of response has been made, it would be an exercise of judgment.

As I said, the analogy is with the way in which the Public Petitions Committee seeks to ensure that petitioners get answers.

It strikes me that the phrase

"owe their constituents exercise of their good judgment"

is almost exactly the same as a quote from Edmund Burke—I do not know whether people know of him—the conservative philosopher. He made the point that you should exercise your own judgment rather than take instructions from the electorate. I offer that as a point of interest.

I did not pinch the quote knowingly.

What you said was very similar—you are in good company.

My last question to Graham Blount is similar to that which was asked by Christina McKelvie. You said in your submission that in relation to "accessibility, and conscientious diligence", it would be counterproductive to prescribe what members should do to adhere to the principles, although you do not suggest that members should no longer be governed by the code. Is there a danger that if one does not prescribe what members should do, it becomes more difficult for the Presiding Officer to determine whether an MSP has failed to adhere to those principles?

It is not only inappropriate but impossible to provide black and white rules in this area. There is an inescapable question of reasonableness. The basis on which the Presiding Officer should make a judgment is in the existing principles. I would not be happy about being more prescriptive than is already the case. Equally, I would not be happy about removing the principles, because they are the key. You cannot simply say to the constituent who feels that she or he has a complaint about an MSP who has not done as they should have, "The next time there's an election, you know what you can do." There should be an avenue for complaint. Other than the ease of making rules, there is no difference in this regard between financial impropriety and failure to do the duty as sketched out in the principles.

Thank you very much. Those are all the questions that I am aware of—unless any member has further questions for Dr Dyer or Graham Blount.

Following on from what Graham Blount said earlier, would there be any circumstances in which an MSP could ignore a repeated message from a constituent?

If the MSP had in the first instance given what she or he considered to be a reasonable response, but the matter was simply being brought up again and again, that would not be the same as the MSP's ignoring the request.

Thank you.

That is the end of our questions. Do Dr Dyer and Graham Blount want to make final brief comments about their evidence?

I will comment on that last question. I note in paragraph 15 of my written evidence that the current section 8 contains a

"hostage to fortune, in saying that ‘…they [constituents] also have the right to expect an MSP to take on a case though the MSP must be able to judge how best to do so.'"

That does not appear to allow for there being circumstances in which the MSP could properly decide not to take on a case.

In my next paragraph, I mentioned cases in which such a situation could arise. For example, the member might consider that the action that he had been asked to carry out was unreasonable and that, if it were undertaken, it might reflect badly on his standing. Alternatively, the member might be aware that a constituent had already approached seven other MSPs in the region. As the eighth MSP to be approached, he or she might feel that they had little to add to what their seven colleagues had done.

Another such scenario would arise if a constituent asked the member to advocate a position that opposed a stance that the member had already taken publicly. The member might think that to take the constituent's stance might lead to their losing credibility. Those are all circumstances that have arisen in my four years' experience of dealing with such complaints, which is a difficult area.

Before you make a final comment, Cathie Craigie has a question for Graham Blount.

In the specific case that Jim Dyer mentioned, would it be reasonable for a constituent to make a complaint about an MSP if the constituent had been all round the houses with an issue and other MSPs had said that it would not be appropriate for them to take it up, or had referred the constituent to another organisation, which they had failed to approach? Are you saying that the constituent should be able to make a formal complaint in any circumstances?

The question is whether a complaint should be treated as being reasonable. In the circumstances that you describe, I would not expect the Presiding Officer to consider such a complaint to be reasonable.

I want to add that, in the churches' experience, constituents are, in general, very well served indeed. It is not because we are involved in some sort of conspiracy theory that we believe that there should still be an avenue for a constituent to make a complaint. If MSPs are seen to be getting rid of a form of accountability that they used to have, that might create the potential not only to bring the Parliament into disrepute, but to give MSPs a bad name that they do not deserve. We want to enhance the name of MSPs and Parliament, and we believe that a procedure to deal with such complaints is part of that.

I thank both witnesses. The committee was keen to hear from you: Dr Dyer's experience of dealing with such complaints is fairly unique and the churches' submission offered a more comprehensive view than any of the other submissions. We are extremely grateful to both of you for coming along today.

Our second panel is made up of MSPs. I ask Alasdair Morgan to come forward first because he has to leave early. Good afternoon and thank you for coming along. Marlyn Glen will ask the first question.

In your submission, you comment on the key principles that are set out in paragraph 8.2 of the code of conduct. Should those key principles be included in section 8 of the code, given the decision of one of our predecessor committees to remove other key principles from the code?

I apologise for having to leave by 5 to 3 if the committee has not finished with me by then and for the fact that there is a fairly significant mistake in my submission, which I noticed today when I reread it. In the second paragraph under the heading "Relationships between MSPs", I say:

"in my opinion the existing situation necessitates",

when I should have said, "does not necessitate". That is a fairly radical difference, although I think that what I was trying to say followed logically from what preceded.

On the key principles, the committee may wish to debate whether they should remain in the code. I did not address the matter directly, but my view flows on from some of my other comments.

In your submission, you say that

"each constituent has eight MSPs whom they can approach",

and that

"should the first MSP approached not give a satisfactorily service",

the constituent can approach another MSP. Is that safeguard sufficient to address the principles of accessibility and conscientious representation?

My comment stems from the fact that responsibility to constituents is not enforceable in any reasonable sense. Section 8.2 may make a pious statement of good intentions, but the question is whether that should form part of what can almost be described as a disciplinary code. That is entirely another matter, however.

We are using a sledgehammer to crack a nut. An earlier witness said—by way of a general comment—that constituents are "well served". On that basis, I wonder whether a code of conduct should include statements that can best be described as anomalous.

Section 8 comments on the conduct of staff who work for local and national agencies and the Parliament's inward educational programme and public inquiry unit. Is it appropriate for the code to comment on the conduct of individuals other than MSPs?

No. However, as I say in my submission, such comments were included by accident not design; they have crept into the code. We are talking about a code of conduct for members. It should not say what other people—whether they are our employees or someone else's—are or are not expected to do.

Given that Alasdair Morgan has to go, we limited ourselves to three questions. However, does any other member have a question for him on his comprehensive submission?

I am not sure whether he heard the evidence from the previous panel. What should I call him? Will Mr Morgan do?

That will do. I recognise who you are talking about.

Right. Jim Dyer said earlier that a complaint under the code of conduct or the complaints procedure should relate to probity or transparency. The code appears to allow members of the public to complain about the way in which we go about things. Is that confusing for members of the public?

I do not know whether it is confusing for them; I wonder how many members of the public are aware of the code. However, it may be an avenue for people who are ill-disposed towards their MSP, or who become so because of a perceived lack of resolution of their case, which may have been a poor case in the beginning.

My experience, which echoes other evidence that you have heard, is that most MSPs do their level best to address their constituents' problems. It is interesting to note that some of the problems to do with the relationships between MSPs—which is the other side of the question, and on which I commented—are predicated on the assumption that MSPs are falling over themselves to deal with constituents' problems. It seems strange for one part of the code to say that MSPs should be put under certain strictures because they are too keen to deal with constituents' problems and for another part to deal with situations in which MSPs are too quick to get rid of cases.

We have to look at how often genuine cases arise in practice. If, as is my expectation, they do not arise very often, is the sensible starting position to have rules that are full of anomalies and lead to all sorts of unintended consequences?

We start from the principle that the electorate is sovereign in this matter. They get a chance to make their decision every four years, which is not long in coming round. MSPs who are complete wasters—I do not think that we have seen many of those over the past few years—will pay the penalty in very short order. Rather than put in place a whole other structure, I am happy to stick with the good structure that we have, which is called elections.

There are no more questions. Do you want to make any final comments?

I put some thought into my submission. Some of it deals with fairly trivial points, such as the semantics of section 8 of the code of conduct. However, it is important that documents that have almost the force of law—or are an annex to something legal—are dead right and bang on. That is why I went into detail in my submission, which I hope has been helpful to the committee.

It has been helpful, and it has been useful to hear about your experience as both a regional list member and a constituency member. Thank you for your attendance, and best of luck in your next committee meeting.

We will now hear from Robin Harper MSP, Margo MacDonald MSP, Lewis Macdonald MSP and Jeremy Purvis MSP. I thank them for coming along. Some of our questions might be directed to individuals, but I hope that all the witnesses will feel free to answer any question.

Good afternoon. I would like each of the witnesses to answer this question, so that we get a mix of opinions—there might be differences of opinion. Should MSPs who decline to take on a case provide the constituent with a reason for that, and should they tell the constituent about the other MSPs who can represent them?

I would not expect an MSP ever to decline to take on a case. It would be perfectly legitimate for them to tell a constituent that they felt that the case had already been exhausted either by them or by somebody else, but that is a different matter. If the individual then asks for information about other members, they should be given it. However, in my experience, individuals in such cases usually already have a full print-out of all possible elected representatives at every level.

Members are perfectly at liberty to refuse to take on a case when we know that pursuing it would either waste our time or our office's time—that means wasting public money—or cause the person involved even more grief. A lot of poor souls come to us, so we have to be able to make such decisions. That requires a wee bit of judgment, but I believe that members should come to this place with some judgment already formed.

There are times when MSPs do not so much refuse to take up a case as believe that they cannot help the constituent or that the issue in question would be better raised with another organisation or through a different avenue. In my experience, constituents are often really looking for legal advice, rather than looking for an MSP to take up a case.

The question is what our rules say about how we should operate. It is best practice for MSPs to explain to the best of their knowledge how they can help or, if they cannot help, where the constituent should go for help. That is hard to set out in rules, because, ultimately, it is about how each MSP responds in individual cases.

I agree with Jeremy Purvis and Margo MacDonald. Some people who come to MSPs with cases have clearly been right through the system and hope, for some reason or other, that the MSP may have more power or knowledge than any of the previous people whom they have tried. It is wrong to take up a case on that basis and give people the false hope that we might be able to do something when we know perfectly well that we can do absolutely nothing. For those reasons, we must retain the right to decline to pursue cases. However, I wish that we could sometimes turn to a counselling and advocacy service—I am serious—that could help people who are not prepared to accept the judgments of all the appeals bodies that they have been through.

I get the feeling that the consensus is that we generally do not decline to take up cases but, if we do, it is usually on reasonable grounds. Part of the question was whether MSPs should give the constituent the actual reason why they declined to take up the case. For instance, if somebody had been to their constituency MSP but did not get satisfaction and then went to all the regional MSPs, should the original MSP give the constituent and their colleagues—the regional MSPs—the reason why they declined to take up the case?

It is hard to imagine that they would not. However, that should not be a matter for rules and regulations; it is just good practice, as Jeremy Purvis described it. If, in a face-to-face conversation with anybody, they ask a question, one gives them an answer. If the answer is, "I'm sorry, there's nothing I can do to help," one would expect it to continue, "You might want to talk to your lawyer," for example.

That is nothing to do with rules; it is to do with good sense, good manners and some sense of humanity towards someone who may be under fantastic stress and terrible pressure, and going through things that we can hardly imagine. We might spend a few minutes sounding them out and, when we are convinced that their problem is not one that we can solve, we let them down as gently as we possibly can. If there is anything else that we can think of doing, we do it. We do that out of humanity, not because we are MSPs.

In written evidence, some members have suggested that we should remove the requirement for regional MSPs to notify constituency MSPs about each constituency case that they take up. I seek the opinion of our hugely experienced panel of witnesses on that. What would the risks be of MSPs duplicating casework? Do the witnesses have experience of a whole group of constituency and regional MSPs writing to local organisations about the same case?

The member is making assumptions that the MSPs can read and write.

Well, I would like to hope that all MSPs can read and write.

Name them.

I will tell you a true story. When MSPs arrived in the Parliament, we were not at all sure about what the difference was between a sheep and a goat—or a regional list MSP and a constituency MSP. I was a little older—not much, I know—than the constituency MSPs in Lothian region, so I called them together and said, "We will be in here working together for four years. We can do it the hard way or the easy way: either I take all the nice issues and you take all the really difficult constituency cases, or else we work together." They said, "All right."

I have never had any problems, because anybody who comes to me with a case usually falls into some sort of category. If Robin Harper knows more about the issue than I do, I have no problem at all in asking him whether he is willing to help the person, provided that they are willing to be helped by him. The other MSPs have legal talents and talents in industry, business and all the rest of it. If they know more about an issue than I do, that is fine. The folk will get a better service from them.

That pragmatic approach is commendable and sensible. The requirement to notify the constituency member is also eminently sensible and it avoids duplication and confusion. It would be a step in the wrong direction to move away from that. Every single person in Scotland has a constituency member; they also have recourse to list members. That is a good provision for the public. The current process is important, partly because it avoids duplication and partly because it facilitates the kind of sensible working to which Margo MacDonald referred. The existing protocol whereby the constituency member is notified if another member is acting on behalf of one of their constituents is essential to the good working of the system.

The current process is appropriate. I was disturbed that some colleagues used the argument that it should be withdrawn because it is not observed. The fact that the rule is broken—by them—is not a justification for changing it.

The heart of the issue is whether the committee and the Parliament consider that a constituency member is different from a regional member, both in their standing in the constituency and in the duties that they carry out. My view is that they are different and that they should be different. I also believe that we should not permit people who stand in the list also to stand in a constituency. In my experience—I represent a marginal constituency; it was marginal in my first term and it is marginal in my second term—the problem principally arises in areas where there is competition among members. Casework can, on occasion, become part of that competition. The worst aspect is that it creates a difficulty for the receiving public body in respect of how they handle the case; difficulties often arise for individual staff in an organisation.

It is right that when we are in the chamber all members have the same legal standing, but it is recognised that on a practical level the delivery of our functions is different on a constituency and regional basis. That is why I would keep the rule as it is.

I have complained when other members have not informed me of cases, and I consider that on those occasions the complaints process has not been robust enough. I come back to my point that we either have the rule or we do not. If the committee does not retain the rule, it would need to decide that there cannot be any distinction between a constituency member and a regional member in carrying out their functions. That would be a step too far.

I am marginally in favour of keeping the rule. I do not compete for work—I hardly have enough time in the seven days of the week to complete the work that I have. However, I take a pragmatic view. If someone phones me up at my Parliament office with a problem that can be solved by a couple of phone calls, I will make the calls straight away. I do not feel that it is necessary to notify the other list MSPs or the constituency MSP if I have done something simple, such as put the person in touch with the council, another organisation or whatever. I will contact the person's constituency MSP in relation to more complicated matters and let them know that I am dealing with the issue. I do not have so many of those on my plate, so the situation does not arise all that often. The problem is perhaps greater elsewhere, but it has not happened often in my personal experience.

I have a slight problem in relation to MSPs visiting schools. We do not have to nominate anybody, because everybody gets invited. However, as the co-convener of the Scottish Green Party and as a well-known Green, I am invited to speak to all sorts of groups. I am not sure where such activity sits within the rules. Often people outside my region invite me, out of curiosity, not to a political meeting but to address them on an aspect of the environment. It would be useful if MSPs could be given a clear indication of whether such activity is so important politically that they should advise the list and constituency MSPs for the area of it.

In my view, attitude is generally more important than codes of conduct, but I do not want something that Jeremy Purvis said to pass without comment. He did not mention what the constituent wants. We can have all the rules and regulations under the sun about the demarcation line between the responsibility of constituency MSPs and that of list MSPs, but the people who voted for us do not drawn the same line. We advertise ourselves as pick-and-mix MSPs—people can choose the MSP who suits their needs of the moment and is best placed to deal with their problem. I would be wary of doing what Jeremy Purvis suggested—having a different job description for the two types of MSP when they are outside the Parliament.

I am happy with the rules that are in place, but they should be enforced. It is clear that the constituency member should be notified of a case, unless the constituent in question chooses otherwise; my concern relates to enforcement of that rule. I am not suggesting that there should be separate job descriptions for constituency and list MSPs—although some constituents already have separate job descriptions in their mind. Local bodies, community councils and public sector bodies make their own distinctions. I am happy with the rules that govern our conduct, but they should be enforced.

My experience from speaking with colleagues is that the least friction and competition and the fewest problems occur when regional members generally operate across an entire region, without favouring any part of it. Often difficulties and tensions arise when a regional member shadows a constituency. The problem is not restricted to members. It also affects local public bodies, which do not like being involved in what they see as a difficult political situation and do not want to be caught between two MSPs who are competing over the same territory—a regional member, with a duty to represent the whole region, and the constituency member. The duty on regional members to work in more than one constituency is a solid rule, but it is broken regularly and is difficult to police.

We will come to that issue.

I apologise to Jeremy Purvis. I thought that he wanted to expand the code.

No.

Jeremy Purvis gave the right answer to Margo MacDonald's point about what the constituent wants. If someone goes to a Labour list member because for political reasons they do not want to deal with a constituency member from another party, they are perfectly entitled to ask that list member not to notify the constituency member. However, that should happen only at the constituent's request.

Like Jeremy Purvis, I have had occasion to raise concerns with list members whose involvement in a case that I was already dealing with was muddying the waters. In the few such cases that have arisen, the problem has been resolved by an explanation. The current protocol acts in the interests of the member of the public.

On the issue of dealing with public bodies that Jeremy Purvis mentioned, the Parliament also has an interest in maintaining its credibility. That credibility is important to me and to all members. However, the Parliament's credibility is undermined if a public body—be it devolved or reserved—receives different approaches from different members of the same Parliament. For example, if a visa application officer in a foreign posting is contacted by several members, the credibility of the Parliament can be affected. We should not welcome or permit that. The current protocol makes it clear that the constituency member should be left to deal with any case that they are already dealing with and should be notified if the constituent approaches a list member, so that we avoid two people taking up the same case.

I will continue on the same theme, as I have found all the comments so far to be very interesting. Should there continue to be a requirement on regional MSPs to ensure that their work is regional in nature? Jeremy Purvis touched on that point.

From my experience—which was not long, admittedly—of being a party list member, I remember that the party's advice on the matter helped us to provide a quality standard of service to constituents. The region was divided equally among the MSPs who had been elected on the party's list. That meant both that list MSPs had an easier way of working and that constituents were probably better served.

As I am now in the business of representing all of Lothian, my work has changed, as has the service that I can provide, because I am trying to service a big constituency. Without going into details and boring people rigid, I can confirm that there is a difference in the quality of work that a single list member such as me can undertake. The difference is not so much in the quantity of work but in the type of work that I can undertake. If a party chooses to divvy up a big regional constituency among its list members, the beneficiaries of that are probably the constituents. That is being honest about it.

It is a little-known fact that, when Helmut Kohl was chancellor of Germany, he was a regional list member under an additional member system that was identical to the Scottish Parliament's system. I suspect that he did not spend an awful lot of time doing surgery casework in any part of his region as he would have been too busy doing his job as chancellor, but for cultural and historical reasons, regional members in Scotland are inclined to do a bit of constituency casework. They certainly need to respond when a constituent asks them for their assistance, but the regional element of their work should not be neglected.

As the member for Aberdeen Central, I represent a constituency that is at the heart of a region. The institutions in my constituency include the royal infirmary, the police headquarters, two universities, the harbour, the city centre and many things that serve the whole region in one way or another. It is entirely legitimate for regional members to raise issues about national health service services at the royal infirmary and about the universities, because matters that affect the city as the centre of the region are regional issues. Equally, when issues arise such as the current controversy about the closure of Aberdeen prison, it is useful that they are not just left in the pocket of the constituency member but attract the interest of regional members, including members of other parties. That is the role that regional members should play, although they should of course deal with any constituents who approach them. If regional members act as such, they will take cases from any part of their region but, unlike constituency MSPs, they will not see constituency casework as their primary responsibility.

I have sympathy for the committee in trying to deal with this issue. The fact is that it is up to each electoral candidate to decide whether to serve their constituents on a constituency or regional basis. Some candidates—and some colleagues—see the list as a platform for winning a constituency, while others appreciate the distinction between constituency and regional members, do not aspire to be constituency members and choose to act as regional members. We are unable to force that distinction, although my personal view—not, I should add, my party's view—is that we should take the Welsh approach and state that candidates cannot stand both on the regional list and in the constituency ballot.

Of course, such a move has practical implications for what happens after the election. Both my principal opponents in the constituency are now regional members. To follow up Margo MacDonald's point, I think that constituents in a target seat or a marginal constituency are very well served, because regional members who want to become the constituency member take an active interest in them. On the other hand, if the neighbouring seat is very safe—if I can be so bold as to say that any seat in Scotland is safe—it is unlikely that the same regional members will shadow it. Members might not welcome such a comment, but it is a fact.

Although the rule that regional members should work in more than one constituency is designed to ensure that such shadowing does not take place, it does not work in practice, because members are allowed to engage in such activity through the allowances system, although not under the code of conduct. For example, before the last election, a regional member issued a survey to every household in my constituency. That practice was permitted through the allowances scheme. Moreover, as a number of cross-border boundaries were involved—after all, there could not be a neat distribution of the surveys to the constituency itself—it was argued that the work was being undertaken in more than one constituency.

That brings us back to the question whether there should be restrictions on members. If there are to be no such restrictions, we should have clear policing—although I appreciate that that would be difficult. In any case, the whole issue should form part of a review of what is permissible under the allowances system as well as under the code of conduct. It is unfortunate that some of the work that the committee is carrying out touches on an isolated issue that pertains to allowances. When I have raised concerns about such matters—indeed, members might also have raised concerns about me—I have noticed that the approach taken under the allowances system seems to be different from the one taken by the Presiding Officer under the code of conduct, and the friction between the two has caused difficulty.

As a result, I believe that the overall rule should be retained and policed. After all, it is pretty clear when surgeries are taking place or when members are working in an area.

Before I let Robin Harper answer, Dave Thompson has a point.

Lewis Macdonald said that although organisations such as health boards and prisons might be based in a particular constituency, they have a regional impact. However, what about organisations from outwith a region that contact members? Regional members are not allowed to deal with such matters, but I might be contacted in the Highlands by organisations or campaigns based in Edinburgh or Glasgow that have a Scotland-wide remit.

It is simply a matter of working with colleagues. I do not know about the other members present, but given my particular interest in sport and my convenership of the cross-party group on sport, people from all over Scotland—and, I am happy to say, beyond Scotland—contact me about sporting matters. Naturally, you speak to those in the constituency who might be involved, but on a specific matter like that—and it is likely to be specific—you go to someone else who shares that specific interest. That is just working with people.

Before we move off this issue, when it comes to money, I urge members please not to cut list MSPs' allowances. Robin Harper would tell you the same—or perhaps a bit different, because I think he has more money than me.

I wish.

I have got no money.

That is up to the Scottish Parliamentary Corporate Body rather than us. We have no remit in relation to that.

You are ducking out already.

We are skint.

We only came for the money.

No money. No expenses. You had better enjoy the water.

I have a brief answer to Dave Thompson's question. If somebody approaches me from an Aberdeen-wide, Grampian-wide or Scotland-wide body, and they are making representations on behalf of the people in my constituency, I treat them as if they are my constituents, wherever their postal address happens to be.

My final point—

Sorry, Cathie. I want to give Robin Harper a chance to answer the first question.

It has been so long—where were we on that one? Mark Ballard and I were the two Green MSPs in Lothian and, to be pragmatic, we divided the region roughly between us so as not to tread on each other's toes—it would have been silly otherwise. We did that not for political reasons but to provide a decent service. The University of Edinburgh, where Mark Ballard is the rector, was in my bit, but I did not complain.

I agree with Margo MacDonald. I have been up to Aberdeen to speak to the Scottish Council for Development and Industry, I go across to Glasgow to talk to people about architecture and I go to conferences all over Scotland. If there is an interest group that wants to show me something, I see no reason why I should not go along and encourage it. If it is a little more formal than that, I will consult the local MSP. I spoke to Jamie Stone when I was invited to open a sewage treatment plant up in the north of Scotland—and a very proud occasion it was for me. That was an official engagement.

You get all the perks.

Margo MacDonald and Robin Harper have raised a perfectly understandable point. Robin Harper has been welcomed to schools in my constituency to offer a green perspective on students' work for advanced higher studies. That is good, and no one should have any complaints about people acting in their role as party leaders, or as spokespeople for particular groups of interests within the Parliament.

On the point about section 8.10 of the code, on regional members operating in their regions, regional members are expected to work in more than two constituencies in their regions. I must confess that I have a similar experience to Jeremy Purvis. Would it be reasonable to consider saying that a regional member must work in two or more constituencies but must avoid a constituency in which they have been an unsuccessful first-past-the-post candidate?

It would be reasonable but it would not be workable. We would have to police it. Why do we not just do something completely different and, instead of the parties choosing who should be on the list, give the constituents a shot at choosing?

Margo, you know that that would give the parties too much trouble. It would give them a fright.

I know that some folk have had happier experiences than others of how the code of conduct is put into effect. We should not skew or jeopardise what ought to be basic good manners, good sense and the ability to see things from the constituent's point of view to meet the needs of the folk who have had the worst experience of working between the two levels of election into the Parliament. That is not to be pejorative about anyone; I appreciate that I have had an easy time and have had no such problems. I know that other folk have not had such an easy time, but we will not sort all that out by changing the code of conduct.

My view is that the Parliament has got the balance about right as regards the requirements on list members to notify constituency members and to work across the region. Jeremy Purvis has touched on one of the other judgments that must be made—that of who stands for what. However, that is not really a judgment for the Parliament to make; rather, it is a judgment for the parties to make. It is for individual elected members to act in a professional way and to respect the roles of colleagues.

The existing protocols have the balance right, and I see no case for tampering with it in either direction. The protocols are not always observed fully, as has been reflected on today, but people now understand that the right requirements are put on members, and members understand what those requirements are. They should police one another, as well as themselves.

"Respect" is a good word.

Respect is at the root of it.

I have sympathy with the specific suggestion that Cathie Craigie made—it would be a compromise on my own view. If we followed what the Welsh do, we could stand for either a constituency or a region—it would be one or the other. That would remove any and all of the difficulties. Difficulties arise when competition for an individual constituency becomes a motive. There could be a compromise approach.

The code says:

"Regional Members are expected to work in more than 2 constituencies within their region."

As I understand it, that is interpreted as meaning that list members should not concentrate their work in only two constituencies. However, the suggestion is not that list MSPs should be compelled to hold surgeries in every constituency in their region, which would be physically demanding. List MSPs should not be required to hold seven surgeries a week.

I think that the rule was introduced to recognise that political parties with more than one member in a region might wish to split the region for ease of working, as Margo MacDonald explained. However, if political parties are using such arrangements for political advantage, surely that is not what the rules of the Parliament should be; they should be about serving the best interests of communities and constituents.

I accept the argument that regional members should have parallel status—if people wish to call it that—and respect for their ability to operate for all constituents. They should not subdivide the region and focus on only one part of it. The argument that list members work on behalf of all constituents in a region is undermined if a party with more than one member in the region, or a group of members, subdivides it. That is absolutely against the spirit of the rules, which I think should be upheld.

On the issues that Jeremy Purvis has been discussing, surely the point of our electoral system is to give constituents as much choice as possible—as many MSPs as possible—no matter which constituency they live in within a region. With the greatest respect, I wonder whether you are not putting your own job and career before the benefits of providing choices for the constituent.

I understand that argument. If I was doing that, I would stand on my party's list as well, but I have not—twice. If you know the size of my majority, you will probably say that that is not clever for my future career, but I have chosen to be a constituency candidate only, not to be on my party's list. My party would allow me to be on the list—indeed, it would probably encourage that—but I have chosen not to be on the list as well because I do not agree with that.

On choice for constituents, if a regional member shadows a particular constituency and works more in that constituency than anywhere else, de facto there are some constituents in a region who do not have seven regional members and a constituency member. For example, if a party has several regional members in my local region but some of them never appear in my constituency, do my constituents really think of them as their MSPs as well?

That is the difficulty that the committee faces when it comes to considering how one can instruct MSPs to work on a cross-constituency basis, especially in large geographical areas. I am sympathetic to members' position on that; nevertheless, it is a fact that they must do so. My point is that if there are two or three marginal constituencies in a region and some of the regional members shadow those constituencies, parts of the region could be said to be underrepresented as regards the principle of choice on which your question was based.

Neither the committee nor the Parliament has discretion over open or closed lists; nor can they prevent a list member from standing in a constituency.

Dave Thompson has a couple of questions.

The panel will know that the code of conduct requires members to abide by SPCB policies. This is perhaps a more mundane matter, but it might be interesting. Should specific references to the guidance on office signage and the use of stationery be included in section 8?

If you like.

The references are there, are they not?

They are in the guidance, but not in section 8.

Are you asking whether they should be shifted from the guidance into section 8?

Yes, to give them more weight.

I do not see that there is any difference, as long as they are there.

Make life simple.

I am interested to know why they might be thought to have more or less effect in one area than in another. It is a novel question.

I think that I made specific reference to the issue in my letter to the committee. It is an area that the committee can investigate. In my experience, there is a confusing difference between the way in which the Parliament's publications allow members to show their party affiliation—in the Official Report and so on—and the way in which the allowances scheme does not permit constituency members to show their party affiliation.

For example, in my annual report two years ago, I was given permission to state that I was the Liberal Democrat member for Tweeddale, Ettrick and Lauderdale. Last year, when I went back to the allowances office to get approval for my annual report, I was asked to take out the reference to my party because that was contrary to the allowances scheme rules. The office apologised for letting me name the party two years ago. Subsequently, I saw that another member had released a document that stated that they were a spokesman for their party and named their party affiliation. I learned that the allowances scheme permits members to describe their party post because, it states, that does not show their party affiliation. That is clearly nonsense.

Whether the matter is addressed in the allowances scheme and not in the code of conduct, or vice versa, it should be possible to read across both, at the very least. At the moment, we have a ridiculous situation. I understand that members cannot use the allowances scheme to promote a particular party, but the rules are confusing and need to be tightened up.

I would say "clarified" rather than "tightened up". If we interpret the rules as meaning that a Labour MSP is not allowed to tell anyone about the "Labour" bit, it will not make much sense either to members or to the public. We should have clarification so that members know that they can say what their affiliation is and, for example, can indicate their affiliation in their correspondence. However, members must also know that they must not use public funds to promote their party rather than to promote their accessibility to all members of the public.

Such a clarification, together with the kind of consistent application that Jeremy Purvis described, would be welcome. I, too, could recount tales of inconsistent application over the years. Such tales do not redound to the Parliament's credit.

I agree. The corporate body should give everybody stars—one, two, three and so on.

This is politics. The parties will spend their time trying to get round the rules in one way or another, just to give a hint that the member who is sending out the publication represents party X. They will do that no matter what, so I think that we are making life difficult for ourselves.

I can give a live example. At the moment, I am issuing my annual report. I am not permitted to say that I am the Liberal Democrat member for Tweeddale, Ettrick and Lauderdale, but I am permitted to say that I am the Liberal Democrat spokesman for education. It does not make sense.

There has been recent controversy over the employment of family members. In this Parliament, that would come under the rules on allowances and not under the code of conduct or guidance on standards. That raises the question of how such things relate to each other. All that we can do for the code of conduct is to consider whether to include a provision about what is actionable.

The witnesses will all know that complaints to the standards commissioner have to meet certain requirements. Should complaints to the Presiding Officer have to meet the same requirements—for example, that complainers have to make their complaints in writing and include the complainer's name and address and so on?

If someone is complaining about the number of gentlemen who enter the chamber without ties, that does not require a letter to Alex Fergusson. I just told him, "Call them out."

Name names.

Mr Thompson is asking about members of the public making complaints to the Presiding Officer about MSPs. Under the current rules, I think that it would be expected that such complaints should be in writing, would name the person complained about, and would give details of the case. Otherwise, the Presiding Officer could not make any judgment on the complaint.

A bigger question lies behind the question that Mr Thompson raises: is the Presiding Officer the correct person to make such judgments? The answer to that is absolutely yes. The Presiding Officer is the person to whom we collectively give authority to represent the Parliament. The Presiding Officer is the right person to act as a court of appeal if a member of the public feels that an MSP has failed to act properly on their behalf.

The Presiding Officer has authority vested in him or her by MSPs collectively, but the Presiding Officer is also an experienced member of the Parliament and therefore knows and understands the issues well as an MSP. That is an advantage when it comes to making judgments.

I understand that, to date, the requirements have not been applied to complaints to the Presiding Officer. Perhaps they should have been.

Complaints to the Presiding Officer that do not name the person complained about will clearly not go anywhere. The point may therefore be academic.

I have had an experience—albeit a rare one—that I think is connected with the remit of the committee's review. I have been approached by a body about how a body would complain about the conduct of an MSP. That takes us into a difficult area. When I inquired about it, I found that there was no capacity for a body to make such a complaint.

We have to be very careful, but when issues arise about the conduct of an MSP—how an MSP has operated in relation to a third party's staff or another body—those issues can be genuine, even if in a grey area. It is not simply a question of the service that we offer as MSPs, about which constituents can decide whether or not we are idiots or are useless at our job. The question arises of how, in carrying out our job, we can affect other parties.

The charitable body that approached me did not have a route to express to the Presiding Officer concerns about an MSP's conduct towards its staff. That situation raised difficulties because the current mechanism for complaining or raising an issue presents no easy way to deal with that. All that is provided for is complaints by members of the public, rather than complaints by public or charitable bodies.

I assume that the body was told that a person within the body could complain on its behalf.

Indeed. That would be difficult, because it would mean that the body corporate could no longer raise a concern on behalf of its staff. If the individual had to complain, that would put them in an invidious position. As the body's constituency representative, I took the complaint to the Presiding Officer, but that was not ideal. The body was then alleged to be politically biased because it had approached me on someone's behalf. The scenario was difficult and the procedures offered no easy solution to it.

Nothing precludes a body or organisation from putting in writing a complaint or comment to the Presiding Officer, who will deal with it in his own fashion.

The witnesses have more experience than I have, but I understand that what Margo MacDonald says is right: the Presiding Officer has much more discretion than the standards commissioner had and the Presiding Officer has exercised that. I do not know about the case that Jeremy Purvis described.

Perhaps it was the former Presiding Officer.

I will return to Dave Thompson's question. I have checked the paragraph on enforcement in section 8, which says:

"Any complaint against a Member … in respect of this section should in the first instance be made to the Presiding Officer."

The paragraph does not require a complaint to be in writing or anything like that, but it suggests that, where possible, the right outcome is that a complaint is dealt with and resolved informally. It would be a mistake to try to formalise that process. In some cases, a member of the public will phone the Parliament and ask to complain to the Presiding Officer about something such as the dress or conduct of a member in the chamber, about which the member of the public will have forgotten within hours. We should not try to formalise that stage of the process.

When a complaint is more serious and cannot be resolved informally, the current protocol lays down what should happen and how the Presiding Officer should refer a complaint to the convener of the Standards, Procedures and Public Appointments Committee, who will take it from there. That is appropriate, but it would be a mistake to formalise the initial point at which a complaint is made, because many such complaints will be dealt with readily and without a formal procedure.

It has been pointed out to me that the guidance in the code of conduct specifies what you mentioned: that a complaint should be signed, that the complainer should be named and that the complaint should be by an individual, which relates to Jeremy Purvis's point. However, the Presiding Officer has exercised more discretion than the standards commissioner could.

I have a general point about the conduct of committees. Someone asked me what they could do about a committee's decision. The guidance that I received, and what I found when I looked into the code of conduct, was that the same section of the code of conduct—section 9—covers both the conduct of members and the conduct of committees. If somebody is unhappy with how a committee has dealt with them, they have no recourse other than to approach the committee's convener, because that is what would be done to complain about a member. Do the witnesses have views on that? Should people have another mechanism to use?

No, because the committees are committees of the Parliament, so they are responsible for their own decisions.

Okay—fine.

My two final questions are not particularly related, but I will ask them both at the same time.

First, the key principles are currently contained in section 8 of the code of conduct. What are the witnesses' views on whether they should continue to be in section 8? That seems to have caused some controversy. Secondly, does any panel member have any view on whether the title of section 8 is right? That must be more important to some people than to others.

It is hard to detect the controversy on either the numbering or the naming of the section.

I will clarify my question. Section 8 concentrates on the relationship between constituents and their MSPs rather than the relationship between MSPs. Does the title give the right impression of the section?

I take that point—it is slightly confusing. Have we got to have relationships with everybody? Can we not be choosy?

I am relaxed about the section name.

Section 8.2.1 lists the key principles. It was interesting to hear the standards commissioner earlier. I endorse his written evidence, which was also interesting. It is hard to enforce a duty of conscientiousness. It is ultimately up to MSPs to judge how conscientious they are. If a constituent raises a complaint about conduct, it is appropriate that that should be dealt with. The question of complaints about how we carry out our duties—rather than our conduct—is interesting. When I was a member of the Justice 2 Committee, we considered the police complaints body. In that complaints process, service and conduct are separated, and we can do the same here. We are ultimately accountable for our service to our electorates—ideally, there would be an open list so that there was proper accountability for regional members too. For our conduct, we have a code of rules that should be policed.

I have a supplementary on the relationships between constituency and regional MSPs and bodies such as NHS boards and local authorities. There is an example in Alex Neil's written evidence of local authorities that invite only constituency MSPs and not regional MSPs to events. Should other bodies, especially publicly funded bodies in local government or the NHS, have an obligation to invite regional MSPs—if not all, perhaps a representative of the parties? In Central Scotland, for instance, there are five Scottish National Party MSPs, so one could be invited as a representative of the party. In the past eight years, local MSPs have received invitations but regional MSPs have not.

That is bad.

Very bad. Our experience in Lothian is that everybody is invited to such events. I would not have thought that there is a boardroom in the country that could not accommodate all the members.

It is bad that any public body should pick and choose the information that is available to MSPs. Members may process it differently or use it for different specifics, but they need the same information so that there is some uniformity of approach in the Parliament to what is going on in any given area.

There has certainly never been any problem in Lothian—the police, health board and local authorities treat us all as idiots. [Laughter.]

But equal idiots.

To me, the judgments are not particularly for the Parliament to make—including the one that Margo MacDonald just referred to. They are judgments that others will make.

The question brings us back to the credibility of the Parliament and other institutions. For example, I do not think that the Parliament should direct local authorities—which are also elected and accountable to the public—on how they should conduct their relations with MSPs. That would not be appropriate. It will be horses for courses. From experience, I know that a public body might wish to discuss directly with a constituency member issues that are relevant to that constituency alone and are perhaps sensitive. They should have the freedom to use their judgment on that. Equally, there are other cases in which there are regional concerns and, therefore, grounds to expect that all regional members will be informed.

At the end of the day, the relationship is partly about the information that a public body might choose to share with elected members, but it is also about what elected members' commentary on that public body might be. If a public body excites their ire or irritation, elected members have a good recourse in being able to comment on that, and some do.

Okay, we will conclude there. We have had a good go at the topic and I am grateful to the members who came along to give evidence. The business managers are coming along to give evidence on, I think, 18 March. If the witnesses are interested in coming back to hear that further evidence, they can do so.