Official Report 159KB pdf
We have a reasonably full agenda. Members will recall that we sent Sylvia Jackson to the Standards Committee to act as a reporter on our behalf. Members will have received copies of her comments as well as a letter to the clerk team leader, Eugene Windsor, from Bill Thomson, who is head of the chamber office. That letter comments on the fact that the committee was interested in trying to include MSPs under the Ethical Standards in Public Life etc (Scotland) Bill.
It seems incredible that the inclusion of another body would delay the bill for a year. Was the process explained?
No. I am not a civil servant, but that is the advice that I was given. It might be a civil servant fear. Eugene, would it be a wrecking amendment?
No. The comment about the delay of a year was in evidence given to the Standards Committee by the civil servants supporting the deputy minister.
The Standards Committee was told that the process would take around a year. I suppose that, if the bill has to be redrafted, it will have to find a slot in which to come back to Parliament.
It seems as if it will take an awful long time. I cannot see why it would take a year and I hope that we can be told the reason and the effect that the delay will have on the process.
I am not changing my position. I am telling you that I have been told that the process could take up to a year. If the process of redrafting the bill will hold up the bill too much, we will have to take cognisance of that. Other things in the bill are equally important and would lead us to believe that we should continue with it. However, we should pursue the matter that we are currently discussing through the Standards Committee, in the first instance.
I agree with you about the need for MSPs to be covered by the bill. I am not aware of the technicalities, but I am sure that it would require a great deal more expertise than I have. I am also concerned about extending the bill to cover further education colleges and higher education establishments. Would the same principle apply to them?
No. The bill is concerned with persons holding public appointments. Members know that the Executive has decided that certain people holding public appointments will not be included, such as people on local enterprise companies, university senates and college councils. We have said that those people should be included and I assume that our report will contain that message. We have not changed our position on that. MSPs and ministers are not covered in the draft bill; appointments to public bodies are, although the Executive has chosen to take some out. The two situations are slightly different.
Subject to exploring the solidity of the advice, it is reasonable that we should not foul up the whole process. Of course, we should press hard for another bill to cover the matter that we are discussing. We should not necessarily accept the Executive's decision on the other bodies but should push our views.
That would be my intention. Later today, we will consider what is going into the report and I expect that that will be included. It seems that the bill is not the appropriate way in which to legislate on MSPs in the manner that we would wish. I suggest that we write to the Standards Committee and suggest that it takes up the matter. It has been discussed in that committee, so it has been raised before and is not a new phenomenon.
I accept what you say, but before we go that far, we should have an explanation of some of the technicalities. We might face the same situation with other bills in the future; we do not want to debate an issue for months only to find that what we have been discussing cannot be included for reasons of time. I would like to have an explanation of the technicalities.
I would not have any problem with writing to the Executive about that.
Are we likely to get an answer from the officials who come with Frank McAveety?
No. I think that my suggestion is the way to pursue the matter.
I thank the minister for inviting me back to follow through some of the issues that have been under deliberation since the last time we met. The Executive is engaged in consultation on the Ethical Standards in Public Life etc (Scotland) Bill. The Executive has received submissions from organisations that are likely to be affected by the bill. The committee has also carried out pre-legislative consultation and scrutiny.
Thank you. We wrote to you about some other issues in the report, on which there has not been a response. I ask you again about the extension to include other public bodies, such as local enterprise companies, college councils and university senates, to name a few. My membership of the Subordinate Legislation Committee leads me to believe that people have been taken off the list, rather than put on it. I will not argue now about the ones who have been taken off. However, I am interested to know why they are not included. They are spending public money and while I accept that they may have guidelines or standards in their own set-ups, it seems unfair.
I understand that the core of your question is about other bodies; however, I would argue that the sanctions that we would expect to exist through the standards commission would not be appropriate for advisory bodies. As they do not have their own staff and budget, they make relatively minimal use of public funds.
You said that you would like to see whether those bodies would change. Do you have any "power" to give them guidelines and to say, "This is the kind of standard that we would like you to achieve," or, "Although we will not legislate for it, we will give you certain standard guidelines"?
Some of the bodies, for example LECs, are guided by company law. The problem with the higher education institutions is that they are autonomous bodies, so they are not directly accountable to ministers, through appointment or through support. The area tourist boards have annual membership—they can appoint and reappoint members. Those bodies have a number of different procedures already, which is why we did not think it necessary to include them in the bill.
We cannot do a great deal, because the bodies are so miscellaneous. As the minister said, some are governed by company law and others have different kinds of constitution and control. The Executive went through the whole list with a fine-toothed comb. The bodies that are named in the bill are those that ministers agreed would need such supervision.
Yet all these bodies spend public money. Something does not tie up there, and in the long term it should be looked at—although perhaps not in the bill. We should expect the same standards wherever public money is being spent, regardless of whether company law applies.
Even though LECs are covered by company law, they are still public bodies. Do some of the provisions in the bill that relate to folk who deal with public moneys conflict with company law?
Many of the bodies have said that they already have frameworks that are a match for anything that might emerge from the bill. I agree that the principles that apply to councils and to the public bodies that are named in the bill should be reflected in the frameworks that exist for other quasi-public organisations. I am flexible enough to look into whether we can have a dialogue on that. The bill creates a template for others to match.
It could be argued that in the bill we are standardising disciplinary and scrutiny processes across a number of bodies that already have them. We do not understand why some bodies have been excluded on the basis that they already have such processes. Local authorities already have codes of conduct, but we still feel the need for a national ethics bill. Is there something in the bill that would create a problem for the LECs and similar bodies? If there is not, that would be an argument for including them. We would not be saying to them that we did not think that they had adequate scrutiny processes, but we would be saying that we believed that it made sense for all organisations that disburse public money and are publicly accountable to sign up to the principles of the bill.
The bill covers the areas that we believe it is reasonable for it to cover. It is worth considering whether the bill can be amended to allow a greatly extended range of control, but that would require an exercise that might take us beyond the time that is available for scrutiny of the bill.
I find your position on the matter totally unconvincing. LECs are public companies, but they are quite different from Scottish & Newcastle or the Distillers Company. In an ordinary company, the directors are responsible to the shareholders, but in the case of LECs and further education colleges, we represent the shareholders—the people of Scotland. There should be a common standard. The idea that we should set a common standard for some bodies and introduce an amendment later to extend it to others is feeble in the extreme. We should deal with all those issues at once. The suggestion that huge complications are involved is a bureaucratic smokescreen. I see no great complexity, and I believe that LECs should be included in the bill from the start.
The minister does not wish to comment on that at this point. Michael McMahon would like to ask a question on the same subject.
Minister, I am a little concerned that we may be creating get-out clauses. If a reason for bodies not coming within the scope of the bill is that they have their own regulatory frameworks or that they come under corporate law, does that not allow them to ask whether they can re-establish themselves under their existing regulatory frameworks, thus getting themselves out of the clutches of the bill? Would it not be better to stipulate that bodies that spend public money and are accountable to the public should fall within the scope of the bill? Those bodies are responsible for looking after the public purse. We should not give regard to the regulatory frameworks within which they work just now, but should ask them to address the issues in the bill.
I do not think that people will be able to invent reasons for their exemption. The framework of the bill is built on existing building blocks. That is the start, but there may be opportunities for further development in other areas. I want to stress that to have some control over a body's capacity to intervene on a standards issue, we are trying to find a framework that brings them all together. I would not support anything that meant that folk in a quasi-public body could invent exemption clauses. That would be looked on with disdain; however, we should be able to do something about that with the framework that will exist.
We have given the minister quite a run on this one, so I will ask Keith Harding to ask one more question before I change the subject.
How will you cope with the countless arm's-length companies of which the directors are councillors who operate under memorandums and company articles of association? If they misbehave, will they fall within the scope of the bill, or will they be controlled by the companies?
They will fall within the scope of the bill.
So why not the others?
The bill extends to councillors whenever they are acting in their capacity as councillors. If they are acting as directors of another body because they are councillors, they will be governed by the bill.
Many councillors are also on tourist boards and involved in other areas that you say will not be included. How will you punish them, but not the other directors, for misdemeanours?
I will come back to you on that question, Keith, because I am not quite clear about it myself.
If you do not address that problem, the councillors who sit on those boards will be answerable under this bill, but other members of the boards will not. That would be singularly unjust.
Will you take that on board, Frank?
Yes.
I would like to change the subject now with a question from Gil. I am sorry, Gil, I meant to bring you in earlier.
That is all right—I did not want the minister to get off the hook.
The difficulty is that councillors receive a special responsibility allowance rather than a salary—there is a distinction between the two. They can receive the SRA only on the basis of undertaking the duties that are covered by it. I am happy to say that we should have a further discussion on interim suspension, which happens only in the most extreme circumstances, when the chief investigating officer carries out the investigation. If the investigation indicates that there has been no breach of the code, there may be an issue of compensation for that period, which is worth exploring. I understand your concern, but there is a substantial distinction to be drawn between a salary and an allowance.
It certainly is a concern, and one that needs wider representation and investigation. People who take up public life have to give up their employment to work in local government, especially if they are conveners of committees. It should not be a matter of transferring a name from an allowance to a salary. It is not beyond the bounds of man—and woman, I should say to keep myself politically correct—for us to come up with a suspension scheme, although it might take three months.
We will.
Well, that is fine.
We are awaiting the report of the renewing local democracy working party, and the other post-McIntosh consultation. Some of the issues concerning the nature of allowances may well be addressed by that.
We started 15 minutes early, but that does not give members permission to make long speeches before they ask questions. Gil Paterson's question was relevant, but I ask members to try to keep their speeches shorter.
I shall try to keep it brief. Part 2, section 18—"Action on finding of contravention"—lists several sanctions. Could you outline some of the offences that would meet the criteria for those sanctions?
I shall ask Trudi to answer that question.
The bill provides for three sanctions; it would be for the standards commission to decide which sanction was appropriate. That would clearly be within its competence. The codes have not been drawn up. It would be invidious of us to sit here and speculate on what sanctions might be imposed for different sorts of behaviour.
Do you want to touch on that further, Kenny?
I do. In its submission, our former local authority—it was Glasgow, in case you do not remember—was concerned that the bill might be harsher than a court of law in imposing penalties. It felt that the level of evidence would be less exacting but that the penalties would be more severe. That is why I wanted to know whether there would be a comparison and what sorts of offences the Executive would have in mind when considering a disqualification, censure or suspension.
It is difficult for me to speculate, given the personality profiles that exist in all public bodies throughout Scotland, on what kind of cases would form such scenarios. The sanctions are graded to take account of the nature of breaches. On concerns that the code would be harsher than a court of law, a key element that was raised in the previous discussion was the right of appeal. We are trying to address that concern, which was expressed strongly by the Convention of Scottish Local Authorities.
I accept what you have said, minister, but will there be further consideration of this matter? I know that it may be difficult to produce individual scenarios, but could the Executive come back with a possible framework for areas in which these sanctions would be imposed?
You and I can swap names and compare case notes in private.
That leads me to a supplementary.
A second supplementary.
I note that the Executive has not responded fully to our concerns about malevolent claims against people. You will be aware that that issue impacted on a local authority while we were both councillors there. We will both be aware of individuals who have made malevolent claims against members of that authority. Will you comment further on that?
Once we have appointed Solomon as CIO, we will address that issue clearly. It is a hard matter to deal with, because it is bound up with a range of local issues, personalities and psychological factors.
There is obviously a genuine issue to be addressed. The bill proposes that the CIO should have discretion to decide whether there is merit in a claim and, if there is not, to decline to pursue the matter. Also, the CIO will be able to conduct investigations in private, which will help to keep things in perspective. It would be difficult to stop publicity about malevolent claims absolutely.
When there are clear standard guidelines, locally or nationally, one can quickly weed out many concerns, so that there is greater public clarity about what are legitimate issues of concern. In the absence of institutions, it is easy for folk to make a series of complaints because they will claim that those complaints cannot be investigated properly. The benefit of an effective CIO role is that the CIO can quickly deal with cases and make them public.
I am about to be horsewhipped by the convener for asking too many questions. Will the CIO accept only written allegations?
No. There are parallels in employment. Sometimes, issues come up that require investigation. The CIO has an independent role and could take up cases that they have not been made aware of from a written source. It is worth allowing that discretion and flexibility. It is obvious that, in the following stages, the CIO would require substantial back-up to investigate any concerns, but we would be ill-advised to restrict the role of the CIO on the basis that complaints could be in written form only—for many reasons, such as educational attainment or language comprehension, that could be a barrier to concerns being raised. We need to be sensitive to that.
I know that I am pushing you, convener.
Not half.
I have one last point. You would not expect the CIO to accept anonymous allegations. I realise that allegations would be taken in confidence, but if someone were to send in an unsigned letter I assume that the CIO would not pursue it.
I would like to answer that. Sometimes, anonymous allegations are received. There should be robust systems to investigate them, no matter whether it is felt the allegation is right or wrong.
Most of us have been councillors, which was probably the least well paid of the activities most of us have indulged in—and we were liable to surcharge. Having moved through the political system, we are no longer under threat of surcharge. I am curious to know why the Executive has not given its thoughts on that matter. We would like surcharging to be removed.
I am conscious of that, and I broadly share that view. We are in discussions with the Accounts Commission and other organisations to determine what would be as effective if surcharging were abolished. It is about working with folk. We have had good submissions from the Society of Local Authority Chief Executives and Senior Managers, and we hope to bring something forward in due course.
Given the large and well-deserved Labour majorities in North Lanarkshire and South Lanarkshire, this scenario would not impact on my area, but it might impact on a place such as Stirling, where the majority is tighter. It goes without saying that if someone is found guilty of an offence and is suspended, that suspension should stand, but the political complexion of an authority could change while someone is suspended. The person could then be found not guilty of the alleged offence. Has any thought been given to how such circumstances could be addressed?
We are talking about the most extreme circumstances. First, the recommendation for an interim suspension implies that a serious case is being looked into and that a proper investigation requires the suspension of the individual. I am conscious of what you are saying. Guidance notes could be given to local authorities to reflect that.
That scenario could still occur, even if there were a general perception that people would not abuse the situation because the new standards commission existed.
Should we not have interim suspension at all then?
I think that it is better to have the foresight to address the issue now, instead of saying, "We did not see the problem coming."
As the minister said, the situation could arise for other reasons—for example if a council member could not attend meetings because of illness. If we are to examine what might happen if interim suspension were used, we must also take account of other circumstances in which the political composition of a council might change.
I do not think that the situation would arise because of illness. Having been a councillor, I can assure you that members are brought in on stretchers.
Because I do not know the full details of the press's speculation, it would be inappropriate to comment on that issue at the moment.
Well, the speculation is about a referendum on the repeal of section 2A.
Convener, as I said, because I do not have details about any speculation, it is hard for me to comment on them or on the Executive's position. However, we are discussing and debating the issue through the parliamentary process and ministers will consider any submissions made during that process before we decide whether the section should be repealed.
I know how difficult it is to comment on press speculation.
I am sorry that my previous contribution did not end with a question mark; it was supposed to.
Yes.
I do not think that such a facility exists at the moment.
We have received a number of submissions from Scottish local authorities that want to set up their own local standards committees, and I have told them that nothing in the bill precludes them from doing so.
That is encouraging. It might be worth considering a system of integration that allows local standards committees to fit into the national framework.
I will give you the technical answer as these matters are incredibly interesting.
I want to ask about the idea of there being local standards committees and organisations that would filter cases. Would it not be an idea to make that system stronger? When dealing with malevolent claims, someone who has been referred to a body as large as the standards commission is already damned in some eyes. The message has to come out that all complaints are investigated. We should also recognise that people often do not read about the conclusion of an investigation—only that someone is being investigated. I stress that in no way do we want to make what happens in local authorities less transparent. That is why I think that it might be reasonable to consider setting up a filtering mechanism at a local level.
One issue that is often forgotten about is confidentiality. A complaint is not the case. The investigation that is undertaken by the CIO has credibility only if the case is presented in front of the standards commission.
Very often, there is a political context to complaints. They generate huge amounts of publicity but the conclusion of the investigation does not. Is there a process that acknowledges the level at which a complaint was made without minimising the complaint?
I do not know whether there is a legal framework by which we can prevent the political scenario that you are talking about. The only answer to that is to ensure that there is a quick and robust investigation. Clarity of audit deals with any breach of a code of conduct.
Do you have any idea how many local standards committees there are?
I am not sure—there may be five or six.
Is that all?
Yes. Several councils that I have visited are considering setting up their own standards committees. It would be helpful if that happened. We should develop a relationship that would allow the sharing of good practice so that we can learn from one another.
One of the concerns that you did not address in your letter was that there seems to be evidence that there will be an overlap between the Accounts Commission, the local government ombudsman and the national standards commission. Do you share that concern and, if so, how do you see it being worked out?
I have given a commitment to examine the question of overlap. We have had submissions from COSLA and SOLACE and those contributions will be brought into the debate. The ombudsman, the Accounts Commission and the standards commission would operate for different reasons. We want to bring them together to share knowledge and expertise, rather than to minimise the roles that they play.
Everyone accepts that investigations should be carried out as quickly as possible. The question is whether it is appropriate to legislate for that or whether the standards commission should be left to develop its own best practice. One of the dangers of legislating on timing is that people might be able to play the legislation—investigations could fall because they had been timed out. As we take the bill through, we can think further about the way in which best practice might be developed to ensure that investigations proceed as quickly as possible.
The quicker that things are dealt with, the better for everyone concerned. We should endeavour to ensure that that happens, either through the bill or the management process—the standards commission and the role of the chief investigating officer. The message from the Parliament will be that matters should be addressed thoroughly and quickly.
There must also be a clear indication of the nature of any allegation.
Yes. That is contained in the bill.
Would it be appropriate to set a time scale for the resolution of investigations into councillors? Should legislation be introduced to determine that?
At issue is whether legislation is needed to make things happen quickly or whether there are more appropriate ways of ensuring that. That question deserves further consideration.
It is my contention that the bill should provide for effective investigation and for cases to be dealt with as expeditiously as possible. The worry is that setting a time scale could lead to cases being strung out for political reasons
Is legislation required or would guidance be sufficient?
The matter could be addressed through guidance and through practice.
During an investigation, the case may be passed to the police, to see whether a criminal charge should be pressed. A set time scale could lead to difficulties if after a long time the police decided that there was no charge to answer but there were still matters for the CIO to investigate. The police are not under anyone's control.
The bill allows for cases to be brought against people who no longer hold a position, such as ex-councillors and ex-members of public bodies. In the public interest, it might be appropriate to carry out an investigation into something that took place six months or a year earlier.
Section 26 of the bill refers to councils' duties to children. I noted with some curiosity that section 26(2) contains definitions of the words "children" and "council". There is concern about the phrase
In our framework we have indicated that we want to include as much as possible and reflect the current nature of Scotland. Stable family life includes those who operate within marriage, families in which both parents are present, even though they are not married, and, in some cases, kids living with a single parent. We need to reflect in legislation how Scotland is, rather than how we wish it to be.
I fully understand that. I simply wanted to know whether you intended to include a definition of "stable family life" to prevent bizarre interpretations of that term.
The definition is self-referential, is it not?
One could say the same about "children" or "council".
As there are no more questions, I thank Frank McAveety, Trudi Sharp and Ted Davison for their time.
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Petition PE26