Standards, Procedures and Public Appointments Committee

Meeting date: Tuesday, September 27, 2011

Official Report 451KB pdf

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Public Standards Commissioner for Scotland

Agenda item 3 is the Public Standards Commissioner for Scotland. I welcome Stuart Allan and Brenda McKinney, who are both from the Commission for Ethical Standards in Public Life in Scotland. Would you like to make a short opening statement, Mr Allan, before we ask you some questions?

Thank you, convener. The committee has before it the final annual report of the Scottish Parliamentary Standards Commissioner for 2010-11. The report deals with the conduct of members of the Scottish Parliament during that year. Next year, because of statutory changes to the ethical standards framework, the annual report will also deal with the conduct of councillors and members of devolved public bodies.

Thirty-three complaints about MSPs were investigated to completion during the year. In most cases, it was determined that, for the purposes of my jurisdiction, the complaints were inadmissible because they were not relevant or were otherwise insufficient and did not warrant further investigation. A third of the cases were outwith my jurisdiction and were dealt with by other authorities such as the Presiding Officer and the Scottish Parliamentary Corporate Body. In one case, I concluded that there had been a breach of the members’ code of conduct, as the MSP had failed to register financial interests in heritable property. Having considered the report and the case, the SPPA Committee agreed that there had been a breach, although it decided not to impose any sanction.

On the basis of the complaints that were received and the outcomes of the investigations that were carried out, I am of the view that members of the Scottish Parliament have generally sought to apply—and have applied—high standards of conduct in carrying out their parliamentary duties.

Committee members may have seen the recently published survey of public attitudes towards conduct in public life, which was undertaken by the Committee on Standards in Public Life. The survey raises continuing concerns about the perceived integrity of those who hold public office. However, the hard evidence of cases undertaken during the year in relation to members of the Scottish Parliament suggests a more positive picture of MSPs working to high ethical standards.

During the year, I had the opportunity to discuss a range of issues with your predecessor committee. Those included proposed revisions to the code of conduct; provisions in the Scotland Bill, especially clause 8 relating to members’ interests; and parliamentary directions to the commissioner, in relation to which I submitted a detailed paper in January that dealt with a range of proposed administrative improvements to the directions including requirements for the tape recording of evidence and the referral of cases involving criminal offences to the procurator fiscal. I would welcome continuing dialogue with the new committee in those areas.

I turn to the new ethical standards framework. The Scottish Parliamentary Commissions and Commissioners etc Act 2010 provides that I, the Public Standards Commissioner for Scotland, and Karen Carlton, the Public Appointments Commissioner for Scotland, will together constitute the Commission for Ethical Standards in Public Life in Scotland. We assumed our new responsibilities with effect from 1 April, and the merger has been a successful one. We have combined staffing and accommodation resources, which has proved to be most effective. That has been largely due to the natural synergy between the two offices. We plan to make savings of just under 4 per cent this year and we expect to make further savings of more than 4 per cent next year. We envisage the possibility of making further changes to the structure of the organisation, which could lead to improvements in service performance and allow us to make savings beyond those that I have already mentioned.

I am happy to take any questions.

I am conscious that you are reporting in relation to the Scottish Parliamentary Standards Commissioner role, which has now changed, as you explained in your opening remarks.

I was interested to see that the report does not show that a great number of complaints are coming through and that, of the 30 that were received, 10 should have gone to other bodies. How well do you think that the process is working? Would you expect more complaints or fewer complaints if the process were not working well?

There are two principal issues. First, on the overall number of complaints that I receive, I refer you to my earlier comment that the evidence suggests that there is a high standard of conduct in the Parliament. If that is the case, it follows that there should be a limited number of complaints, which is also the case. Facts are chiels that winna ding. We do not get a high number of complaints because the standards are, broadly, high. It is important to make that point, because we live in a world in which there are constant complaints about the integrity of our public officials. At the end of the day, however, there is limited evidence to back up the view that lies behind those constant complaints.

The second issue is whether aspects of the code of conduct come within my jurisdiction. Although I am responsible for most of the matters that are set out in the code, there are matters that do not come to me. For example, a complaint about an MSP failing to adequately perform functions on behalf of a constituent goes to the Presiding Officer. I have no concern about that. I think that that is probably a more appropriate way of dealing with such complaints. Issues that concern the parliamentary estate, such as members’ allowances and so on, go to the Scottish Parliamentary Corporate Body.

We have a distinct Scottish framework with considerable openness and transparency. Again, the correct balance has been struck. I deal with matters of conduct, registration of interests, declaration of interests and so on. Other matters might be called more domestic. I think that we have got the balance just about right.

You said that you feel that the combination of the two offices has worked well and that you have made a 4 per cent saving, with more savings expected in the coming year. What are your priorities for the next year?

From the point of view of parliamentary standards and standards in general, the first thing is to maintain the quality of service that we provide on behalf of the public. That is the number 1 priority. I am sure that that applies equally to the public appointments process. However, because we have been able to come together from two separate locations and have a lot in common in the way in which we work, as well as in the issues that we deal with—both of us deal with ethical standards issues, generally—we are able to bring together our resources and operate more effectively.

We have been working together for only six months or so. It has been effective so far, but there is scope for some further improvement in the next year or so.

It is early days, certainly; there is no doubt about that. We hope that the new ethical standards commission will bring benefits. Are there any principal benefits that you hope that the new commission will bring, or is it a matter of waiting to see how it develops?

14:45

To some extent, it is a matter of waiting and seeing. The one very straightforward point is that if there is a single commission the public are able to access a single shop, as it were, to get advice about a range of ethical standards issues, rather than having to access two quite discrete organisations. That will be an advantage. We will also be able to contribute to the wider ethical standards debate more effectively as a single organisation. Best value might be optimised because we are working together as a single organisation.

Good afternoon, Mr Allan. What do you think could be done to ensure that the “Code of Conduct for Members of the Scottish Parliament” and your role are better understood by the public?

That is a big issue. The code of conduct is not the most simple and straightforward of documents—it is a pretty heavy tome—but it deals with all the main issues that a Parliament has to address. I think that it deals with the totality of issues that would involve a member of the public, but it does not necessarily follow that the public really have to have regular access to it.

What is terribly important is that when the public see that there is an issue, they can go to the commissioner’s office and get help. The office can direct them to the key provisions, without giving them advice on the particular issue, and facilitate their getting through the code of conduct. We will always endeavour to assist the public in every way we can.

When a complaint comes up, it has a big impact on the relevant member of Parliament and he or she may well seek broad procedural advice on it. Again, we are very happy to accommodate that.

That is very helpful.

Having been a member of the Parliament for 12 years, I know that there are sometimes instances when getting a resolution to a constituent’s case is not easy. There is perhaps an extra role for the commissioner in that regard. Sometimes there comes a point when, despite their most earnest endeavours, the parliamentarian just cannot resolve the issue. There has to be some course of action whereby such issues can be moved away from the parliamentarian to some other arena so that the public at least feel that there is somebody to arbitrate on their behalf and to judge whether the parliamentarian has turned over every stone possible. I am just not sure about that; it is not provided for in any of the documents that I have read so far. I feel that there is a role there—it is almost like lancing a boil—for the commissioner in relation to issues that go on and on and never come to an end.

Yes. What you are really talking about is the performance of MSPs in relation to constituents. There is absolutely no evidence whatever that parliamentarians do other than everything they can for their constituents, but there are undoubtedly cases where the constituent is just not willing to accept what has been done on his or her behalf. Such situations are unavoidable—they will happen. How do you deal with that? At the moment, matters regarding performance are, at the end of the day, up to the ballot box. In the interim, to provide some sort of redress—if redress is considered to be needed—there is access to the Presiding Officer.

A distinction has properly been drawn between issues of performance in relation to constituents and conduct issues. In my view, that distinction is still appropriate and fit for purpose.

We are interested in your comments on the directions, and the committee would like to follow through on several points. Paul Wheelhouse will lead off on that.

My point relates to the directions under section 7(6) of the Scottish Parliamentary Standards Commissioner Act 2002. You have helpfully provided comments on that in section 3.1 of your paper, which states:

“I do not consider any change is required to these Directions.”

The directions relate to tests of admissibility and the requirement that the complainant names the member of Parliament concerned in certain circumstances. You go on to state in paragraph 3.2:

“I would only observe that the reference to the complaint not naming the MSP concerned may have to be given a flexible interpretation”.

Will you explain why you feel that there should be flexibility in relation to the direction?

That is not a substantive issue. Most complaints clearly identify the MSP who is involved but, occasionally, complaints might identify an entire committee as the culprit—a leak inquiry is a typical example of that. The member of the public might not know the names of all the committee members, but they might complain about the committee. That is an example of where we use a bit of common sense. If there is a complaint about someone on the committee having leaked something, we regard that as a complaint against all the members. However, it is not really a big issue. Most complainers have a pretty clear idea of whom they are complaining about, although they are sometimes less clear as to whether the conduct that they are complaining about falls within the jurisdiction of the code of conduct.

I am interested in directions 3 and 4. You say that direction 3 does not add anything to the provisions of the 2002 act and you would like to remove direction 4. What would outweigh a member’s right to know the name of the complainer, and why do you consider that direction to be unnecessary?

It is of paramount importance that an MSP receives the totality of the complaint, which includes the name of the complainer and every word that has been put into the complaint. That is the starting point. In every case that I have dealt with, I have issued the MSP with the totality of the complaint.

There would be very few occasions on which I would even contemplate not telling the MSP in the first instance who the complainer is. Those occasions would probably relate to circumstances in which there was apprehension on my part about ingathering of essential evidence. In other words, it would be important that we did not lose evidence, so we would have to start the process by preserving anonymity for the complainer. Even if that happened, at some stage—probably sooner rather than later—the MSP would have to be told the name of the complainer. To conclude, I think that it would be highly unusual if we did not immediately advise the MSP of the complainer’s name.

You have said that, generally speaking, the record is very good and ethical standards are being applied. However, just for clarity’s sake, has the situation that you mentioned ever arisen in your experience?

Not in my experience, no.

You suggested that because non-disclosure of the complainer’s name would occur only in exceptional cases, you would consider it unnecessary to report it to Parliament. Why, if it would happen only in very exceptional circumstances, would you not do so?

Perhaps I should put it the other way round. Directions must have some purpose; they must facilitate or improve the complaint process. Unless that clear purpose exists, one must question whether the direction is in the overall public interest. If at the start of an inquiry it is determined that, for very sensitive reasons, disclosing the name is not appropriate, it is debatable what benefit will be gained at all in advising the Parliament that a situation has arisen. After all, the information will not be available to the Parliament either. If we take that kind of broad look at the issue, it is clear that there is a question whether there is a real purpose behind the direction.

However, I would not like the committee to think that this is an issue of great moment. In practical terms, it is not of significant importance.

The committee will have an opportunity to examine these issues in a bit more depth later on.

Indeed, convener.

What flexibility is there in the notification requirements in directions 5 and 6?

As I said a moment ago, a direction must add to the process something extra that is in the public interest. It is all very well to stipulate that 48 hours’ notice of an interview should always be given. We tend to give significantly more notice than that; indeed, it is only good practice to give a week’s notice of any arrangements that we make to see witnesses. However, on certain occasions, you might be concerned that if you give notice the evidence might not be there when you go in for the interview. The commissioner really must reserve the right to access the information that he thinks might be relevant. Although the intention behind direction 5 is very sound and although that is what happens in practice, there are exceptional circumstances in which giving notice might not be appropriate.

Direction 14 seems to offer little scope for flexibility if you believe that a member has committed a criminal offence either by failing to declare or register a relevant financial interest or by undertaking paid advocacy. As it stands, you have an absolute obligation to report that to the procurator fiscal.

Indeed.

However, you suggest that there should be flexibility in that regard. I am aware that this issue might be under review as part of the consideration of the Scotland Bill that is going through the UK Parliament. Why do you think that such flexibility is important?

15:00

You refer to the Scotland Bill and how the legislation on interests may be amended. In broad terms, I see that as a considerable improvement on the current position because it will afford the Scottish Parliament the opportunity to decide for itself whether certain aspects of conduct are criminal for the purposes of the legislation and the code of conduct. That is important.

Because of the nature of the Scotland Act 1998 and the directions that are given by Parliament under the 2002 act, there is an obligation on the commissioner, no matter how trivial the conduct, to refer to the procurator fiscal the prospect of criminality. The commissioner often thinks that the process of referral to the procurator fiscal is unnecessary, as it adds to the length of an investigation. Over the past few years, six cases have been referred to the procurator fiscal and there has not been a single prosecution. The average additional period of investigation is four months—in other words, it takes four months to get the decision from the procurator fiscal that no action is to be taken.

If the 2002 act had required that, that would be one thing; however, the 2002 act does not require a referral to the procurator fiscal. I would have expected that type of requirement to be on the statute book. In my experience, it is an encumbrance that does not assist in the early decision making relating to standards. I am not saying that there should never be any referrals to the procurator fiscal. If there is an element of seriousness about a case, I would intuitively want to refer the matter to the procurator fiscal at the appropriate time, which would probably be early in the proceedings. However, in a number of cases, the matter is trivial and we have an idea that the fiscal will say, after his or her inquiry, that no further proceedings will be taken on their part. The matter will simply have been delayed and we will go back, after several months, to the complainant, who will often be unhappy about it, or to the MSP involved, who will be equally unhappy about the matter having taken some months.

Looking at the overall picture, in trying to establish a modern system of regulation we must have regard to proportionality. I hope that, when you come to talk about the matter in the future, the committee will consider that as one of the important issues.

I come to the matter with an open mind on whether the amendment should be made. If we scratch beneath the surface, is the issue not whether you are duty bound to report criminality, but the definition of criminality in the legislation? If that were altered to suit, would you be comfortable with having an obligation to refer to the procurator fiscal? I ask that because we need to be proportionate. Referral would happen in only a tiny number of cases, so the obligation may not seem proportionate. However, an outsider looking at the political system would hear the word “criminality” and would think that, as good as you are at your job, it is up to the procurator fiscal, not a standards commissioner, to judge what is criminal. I think that that would be the public perception.

I understand that, but it would be very difficult indeed to come up with a definition of criminal offences that should be referred to the procurator fiscal and criminal offences that would not meet the bar. The fact that the matter may not be referred to the procurator fiscal does not preclude any complainer from referring the matter to the Crown Office. We are not saying that the procurator fiscal has no role to play; we are saying that an obligation to refer is an additional insertion into the process that is unnecessary in regard to the code of conduct for MSPs.

I want to follow up on that. If referral had been deemed to be important enough, or deemed to be more important than just part of a direction, it would be on the face of the act. It also appears to be against natural justice and speed of resolution of the complaint, which is in the interest of neither the MSP nor the complainant.

That is very fair. Experience suggests that if the subject matter of the complaint is in the public domain and there is considerable public apprehension about the whole business, the matter may well be referred to the criminal authorities. However, in my experience, such instances have not happened here. We have created an overelaborate system when both processes can operate in their own way. I am certainly not saying that MSPs avoid exposure to the criminal justice system; I am just saying that the system is overcomplicated at present.

My question is on section 16 of the 2002 act and the disclosure of information. Is it possible, in practice, to confirm the existence of a complaint without also effectively confirming the nature of the complaint and, therefore, information contained in the complaint?

This is a difficult issue. On the face of it, section 16 says that we cannot disclose or offer up the disclosure of information about a complaint. If someone comes to the office and says that Mr A has complained about Mr B—who is an MSP—and that it is about subject matter C, the public benefit in us saying that we cannot make any comment, as we do at present, is lost on me. It is also inconsistent with the principles of openness and transparency.

In my equivalent duties to local government councillors, if someone asks us whether we have received a complaint from Mr A about Mr B in respect of subject matter C, we will admit it to the media, for example, provided that the councillor has been advised of the complaint and has received a copy of it. Such cases are almost always already in the public domain if there has been an issue in the chamber. That is not quite such an issue in Parliament but, as far as local government is concerned, it would be wholly inappropriate to deny that complaints had been received, provided that the councillor knew about it. It is on the statute book and we adopt a very straight-bat attitude to what the act says. However, in recent discussions that commissioners throughout the UK had with our colleague clerks, it is an issue that is unlikely to go away and may merit some reconsideration in the future.

Should the committee consider changing the terms of section 16? What information would be beneficial if put in the public domain to aid openness and accessibility?

I will not be pressed now to say that section 16 should be amended. However, if you were to press me on the specific point of what I would look for if I was minded to change it, I would say that the commissioner should be able to divulge no more than the names of the applicant and the MSP concerned, and nothing about the content of the complaint. However, to deny that the complaint exists seems almost to be counterproductive, given the principles of transparency under which we endeavour to operate.

So, if a complainant has made a complaint, the media can contact that person and ask for information.

No, I am not saying that; I am saying that if a complaint has been made, the media can contact us and ask whether A has submitted a complaint about B.

In reality, if the media ask us that, they know fine what is happening. There is nothing whatsoever that precludes the complainant from going to the press and saying that they have submitted a complaint about an MSP on a certain subject. There is an inhibition on the MSP once the complaint has been submitted, but there is nothing to prevent the complainant from putting his or her side of the story to the press. That makes everyone uncomfortable, so there is a case for considering what is in the better public interest.

It is an area that is fraught with difficulties, because the media can run with things and all sorts of hares can be set running. If a complainant goes to the media and the MSP is debarred from commenting without breaching the code, they are in a position in which they cannot defend themselves.

Indeed.

There are all sorts of issues—I am sure that you are well aware of them—that the committee would need to examine carefully before we would want to change anything. We will come back to that area at a future meeting, in order to consider and tease out the issues in more detail.

I see that members have no further questions for the commissioner. I thank Stuart Allan and Brenda McKinney for attending the meeting and answering our questions. It has been very helpful, and I wish Mr Allan well in his new job—although he has been in post since April—over the next few years.

Thank you, convener.

I suspend the meeting for a few minutes to allow the next set of witnesses to take their seats.

15:13 Meeting suspended.

15:16 On resuming—