Complaint
I welcome everyone to the 12th meeting in 2008 of the Standards, Procedures and Public Appointments Committee.
Paragraph 9.43 of the guidance on the code of conduct for MSPs states that the committee must decide whether it wishes to recommend to Parliament the imposition of sanctions against a member who is the subject of a complaint. Therefore, I invite members to comment and give their views on whether the committee should recommend sanctions against Wendy Alexander.
I have had the opportunity to consider carefully all the documentation that has been presented to us and have previously agreed that a breach did take place. My view is that that breach was sufficiently serious that a sanction should be imposed on the member.
I have deliberated on all the evidence that has been presented to us over the past few weeks and I am minded to support the imposition of a sanction.
I take the opposite view. In light of the member's attempts to register the donations, the fact that she took the advice of the Parliament's lawyers and clerks, who advised her that there was no need to register them, and the fact that the Scottish Parliamentary Standards Commissioner has said that it was dubious whether registration was necessary, there are mitigating circumstances. Although I agree that a breach took place, I have considered the opinion of the Queen's counsel in question and I do not think that blame is attributable to the member, therefore no sanction should be imposed.
This has been a lengthy and complicated process. The committee has agreed that a breach occurred. The matter is too serious for us to take no action on it, and I agree with the two members who said that we should impose a sanction.
Given that the member followed all the advice that was given at every stage, there should be no sanction. Although I accept that the final responsibility always lies with the member, members have a serious problem if following advice results in sanctions being imposed. Legal opinion is divided on the interpretation of legislation and guidance for members is lacking. The member fell foul of a system that is flawed, which is unfortunate, therefore I urge that no sanction be applied.
Like other members, I have carefully considered the information that has come before the committee. The parliamentary clerks go about their business impartially and with integrity. They are trusted by members of all political parties and none to guide members on the matters that we must deal with, which are often complicated.
In this case, I do not accept that the opinion that was given by counsel to the independent Scottish Parliamentary Standards Commissioner represents a better interpretation of the law than does the opinion that was given to Wendy Alexander by independent clerks in the Parliament. I do not accept that the counsel who gave an opinion to Mr Dyer had any more information at his disposal than did the Crown counsel or procurator fiscal.
Perhaps we think that the donations that we have been considering were registrable, but is it right to go back on an opinion that was given and to change the rules without notice? I do not think so. In this case, the member acted on advice that was given to her, as I am sure other members would have done. We should judge the matter on that action and not on opinion, which is clearly divided.
The advice from Parliament officials was that, as they read the law, the donations were not registrable. Crown counsel was unable to be sufficiently certain of the law to agree that the law had been broken and to bring a prosecution, as the standards commissioner's findings would have permitted. A spokesperson for the Crown Office said:
"After very full and careful consideration of the report from the Scottish Parliamentary Standards Commissioner, Crown Counsel has concluded that a prosecution would not be appropriate in the full circumstances of this case. In coming to this decision, Crown Counsel had regard to the fact that: there is a degree of uncertainty surrounding the interpretation of these provisions; Miss Alexander sought the advice of the Clerk to the Standards committee in relation to this matter; a voluntary disclosure was made to the Electoral Commission",
and
"the issues raised by the case might more appropriately be dealt with by the Standards, Procedures and Public appointments committee",
as we are doing.
Mr Dyer's legal opinion said that the donations were registrable, although he states in his report that it is well established in law that when an opinion has been given,
"imposition of a penalty on a person is possible only if it is imposed by clear words."
I do not believe that the words were clear. However, the advice from the clerks to the member was in clear words, but the standards commissioner said:
"The Clerks' advice however cannot affect my conclusion regarding a breach, which must be arrived at according to my independent judgement."
That stance has amazed and troubled me. How can anyone arrive at a fair and independent judgment or conclusion when one of the main mitigating facts in a defence cannot be considered by the independent commissioner? Such a position is not acceptable and we must consider the issue further as a matter of urgency.
I am sure that any fair-minded and impartial observer would agree with the decision of our Crown Office and Procurator Fiscal Service. As the convener announced at yesterday's meeting, the committee decided by a majority that there had been a breach of the rules. I do not agree with that decision and, having considered all the circumstances in the case, move that no sanction be imposed on the member. I support colleagues who have taken the same position.
Thank you, Cathie—we are still at the stage of commenting on the issue.
I appreciate that every committee member has had a hard time in dealing with the issue for some weeks now. The situation is not easy to resolve. I admit that I found it much easier to reach a conclusion on whether there was a breach than on whether sanctions should be applied.
I accept some of the points that have just been made, including about the ambiguity of the different legal advice. I am not sure whether this point has been made, but I also accept that as a committee we should have considered the additional guidance by this time. That would have made it clearer for the member in question and all members as to when it is appropriate to register interests. Those facts should be taken in mitigation, as should the facts that advice was sought from the clerks and that clear and unequivocal advice was given by the clerks. I accept all those points.
However, I believe that there is a responsibility on the individual member as we are all told to ensure that our entries on the register of members' interests are correct. There was a period before the member sought advice from the clerks, and our decision was that a breach had already been committed during that time. It is for that time and the question whether the member exercised due diligence in seeking to find out whether the donations should be registered that I think that there is some responsibility on the part of the member, albeit that there are mitigating circumstances.
For those reasons, I agree that we should consider sanctions. I therefore propose that the committee agrees to recommend sanctions in relation to the breach by Wendy Alexander. I will ask each member in turn to give their vote on that.
The question is, that the committee agrees to recommend sanctions in relation to the breach by Wendy Alexander. Are we all agreed?
No.
There will be a division.
I agree with the proposal.
I agree with the proposal.
I disagree with the proposal.
I agree with the proposal.
I disagree.
I disagree.
I agree.
The result of the division is: For 4, Against 3, Abstentions 0.
Given that the committee has agreed by a majority of four to three to consider sanctions, we will move on to that question.
I ask each member in turn to give their views on what they believe to be an appropriate sanction.
Given the agreement that we have reached, albeit after a division, any sanction that the committee chooses should take account of the circumstances, the difficulties that you have highlighted, convener, in relation to the ambiguity of the different legal advice, and the fact that the member has had some considerable pressure in relation to the case. Consequently, to recognise that the committee takes such a breach seriously, I propose that the member be suspended from the business of the Parliament for one sitting day.
On a similar basis to my colleague Hugh O'Donnell, I believe that the committee has to treat the breach seriously, and the sanction should reflect that. I agree to recommend a suspension of one parliamentary sitting day.
As I have already said, given the mitigating circumstances—the fact that the member did everything that she could to find out whether she should register the donations—I do not consider any sanctions should be applied.
We have agreed to apply sanctions. As I have already said, this is a serious matter, and any sanction must be meaningful. We have a wide range of choices, from short exclusions from submitting motions, for example, to exclusion from the full Parliament for a lengthy period.
As we have gone through the case, it has been clear to me that there are a number of mitigating factors. Equally, there are factors that the member should have taken into account, and there is therefore responsibility on the part of the member. Balancing all of that, I concur with my two colleagues who suggested an exclusion for one sitting day of the Parliament.
I repeat that I do not believe that there should be any sanctions.
I do not believe that there should be any sanctions. Any reasonable member would have followed the advice given by the Parliament. I stand by what I said previously.
For my part, I agree that there has been a serious breach but, for the reasons that I mentioned, I do not think that the member bears full responsibility for that serious breach. For that reason, I go along with the proposed sanction of one day's exclusion.
Let me just clarify the proposal. Is the committee agreed that the committee recommends that Wendy Alexander be excluded from all proceedings of the Parliament for the first Wednesday that is a sitting day following agreement by the Parliament? As you will know, our report must go to the Parliament for approval.
Let me take the substantive vote on that proposal. I will hear from members in turn.
I agree with the proposal.
Agreed.
I wish to take no part in the vote.
I agree with the proposal.
I prefer to abstain.
I will abstain.
I agree with the proposal.
The result of the division is: For 4, Against 0, Abstentions 3.
The committee has thereby agreed the proposal.