Official Report 132KB pdf
We move on to agenda item 4. At our previous meeting, we agreed that we wished to progress our proposals to establish a standards commissioner by way of a committee bill. We also agreed that work should commence on drafting instructions for the bill. I am advised that that work is now well advanced. As members noted at the previous meeting, we need to take a view on a number of outstanding policy issues. Our objective this morning is to try to provide guidance on those issues so that the drafting instructions can be completed.
Yes.
Do members have any comments on the remit that is set out in the paper?
No
Are members content with the remit?
The second paper looks at the options for the appointment and removal of the commissioner. The paper describes briefly the procedures that are used by other parliaments and assemblies, and asks us to take a view on a number of points that are set out in paragraph 11. I suggest that we run through those points now:
That is the one area that I am concerned about. If the Queen is to appoint the commissioner, she will not just sit down and say to someone, "It will be you"; she will get advice. In the scenario that we have, I imagine that that advice would come from the First Minister or the Executive. There are real problems in the Executive—or anyone else—recommending to the Queen that X or Y should be appointed. At some point, the commissioner might be asked to investigate those who appointed him or her. We need to look carefully at the appointment system and be clear in our own minds how it will go forward.
I thought that that might be a problem, and I discussed the issue with the clerks when they produced the paper. My own view is that it is important that the Standards Committee does not lose its locus in the appointment of the standards commissioner. Parliament is the appropriate body to appoint the commissioner. In reality, however, as far as we are concerned, the issue is a technicality, since the employer, if I may put it that way, would be the Scottish Parliamentary Corporate Body. The procedure would probably be that the Standards Committee would make a recommendation to the full Parliament to appoint the commissioner. The advice that I have received from various legal sources, and from the clerks, is that there would be nothing wrong with that procedure. Does that help clarify the situation?
The SPCB is the legal corporate entity for the Parliament. I have no qualms about the SPCB being the body that, after consultation with the Parliament, and based on recommendations from the committee, formally makes the appointment.
I think that that is how it would run. A motion would come from the committee recommending the appointment to the Parliament and the Parliament would then ask the SPCB to appoint.
Am I right in thinking that the selection would be within the competence of the committee, that the recommendation would then go the SPCB, and that once the recommendation was cleared, it would go to the Parliament as a whole?
The route would be from the Standards Committee to the whole Parliament to the SPCB. Does that clarify the matter?
Yes. The point that you made—about it being a parliamentary appointment, not an Executive appointment—is important.
Are members content with that?
Let us look at the other questions. Should the bill render certain individuals, for example MSPs and SPCB staff, ineligible for appointment? That seems obvious.
Discrimination.
Yes. Can I take it as read that members are content that such people should be ineligible?
Should the commissioner have an unlimited term of office, or should the term of office be for a fixed period? If the term of office is to be for a fixed period, should that be set out in the bill or determined in the terms of appointment?
I would prefer that the term of office be for a fixed period and that it be determined in advance. Although it can sometimes be necessary to renew such appointments, they should usually, I think, be for a fixed period and the expectation should be that the appointment would not be renewed unless special circumstances arose. That should all be laid out in the bill.
Do you recommend a particular time period?
No. The paper suggests three to five years.
That sounds like a sentence.
It certainly does.
Assuming that the appointment was for a fixed period, would it be subject to review or to retendering? We should allow maximum flexibility, because, if the commissioner operates entirely to the satisfaction of the Standards Committee, we might not wish to go through an unnecessary retendering process. The drafting of the terms of appointment will be important.
The appointment should be for a fixed period. I agree with Kenneth Macintosh that that period should not be coterminous with the parliamentary session, so it should probably be for an odd number of years. I am not too concerned whether it is three years or five years; perhaps it should be three in the first instance.
I agree with both Kenneth Macintosh and Patricia Ferguson. I think that the appointment should be for a fixed term but I am not fussed whether it is for three or five years. I am not sure how to proceed. I would not want to give the impression at the outset that the appointment would be for either three or five years and could just be continued. We might not need to go through the whole tendering process again if we want the standards commissioner who has already been appointed to continue beyond the three or five years, but we need to find a mechanism that would enable that. Perhaps the clerks could consider that.
We could bring that back for discussion. A good guide from the committee will be necessary when we finally come to the appointment. It seems to me that we are not quite sure. [Interruption.] The clerk advises me that such detail could be included in the terms of appointment rather than in the bill.
I am a member of the Educational Institute of Scotland and the Transport and General Workers Union. I am also board director of the Arches Theatre Company.
Thank you.
That would be the SPCB on a resolution of the Parliament.
Could the phrase "removal by the Queen" be removed? It might be misinterpreted.
Yes. The guidance is that the appointee would be removed by the SPCB on recommendation of a motion in Parliament, which should originate from the committee.
They should be left for the terms of appointment. To put them in the bill might be to provide more information than is necessary.
Are members content with that?
I have one concern with that approach. Initially, I agreed with Tricia Marwick, but as she was speaking, something else came into my head. I am conscious that the Parliament threw back at us our report on the register of interests for members' staff. That happened because the report did not make explicit everything that we wanted to happen and members did not fully understand everything that we had discussed.
That is an important point, and one that is well made. Our first report on members' staff interests was not fully understood by members when it hit the Parliament, if I can put it that way.
In practice, if the Parliament was dissatisfied with the conduct of any employee, it could bring the employment to an end, on the recommendation of the Parliament.
The question is whether that provision should be included in the bill, or in the terms of engagement.
I have a question for the clerks, which I will ask through the convener, if I may. Am I correct in thinking that, for commissioners who are appointed by the United Kingdom Parliament, it is laid down in statute that any misbehaviour or criminal conviction would make holding that office invalid?
Offences of a criminal nature and bankruptcy are specified in the legislation that set up the post of Parliamentary Commissioner for Administration—
I understand that there are standard grounds for that.
Yes; they are outlined in the paper.
The paper says that standing orders do not set out the grounds on which the commissioner may be removed.
That is the case with the Parliamentary Commissioner for Standards.
I am still not quite clear whether members want the grounds for removal of the commissioner to be included in the bill.
There should not be too much discretion. The grounds for removal should be made clear to the person when the appointment is made. As long as the grounds for removal were made clear, it would not matter to me whether they were in the bill or open to change at a future date.
Do we need to decide today, or can we have a chance to think about it? Having listened to what Patricia Ferguson said, I am not in favour of any one option, and I would prefer time to mull over the question for a couple of weeks.
It would be helpful to look at the wording of other statutes, and see what the standard way of treating the question is elsewhere.
We will bring a paper forward on that issue for the next meeting.
There is one example, I think, where a complaint had to be made within a specific time scale—I think it was seven years, which is quite long. However, certain circumstances could overrule that, with the result that a direct appeal could be made to the committee, which would consider the complaint if it was of a serious enough nature. I agree that a time bar would be a useful mechanism to have in place, as we do not want to encourage vexatious complaints.
Perhaps we should look at all four bullet points at the same time. Should complaints be time barred? If so, should the time limit run from when the complainer first became aware of the matter or from when the alleged event took place? What time limit should be set? Should the commissioner have the discretion to take on complaints outwith the time limit? To those we can add Kenny Macintosh's suggestion that complaints to the commissioner can be made directly through this committee. What do other members feel?
There should be a time bar and, logically, it should be from the time that the alleged event took place. We should not rely on someone's view of when they became aware of the event, as someone may not be aware of an event for five years. If we accept a time bar, we have to move forward from when the alleged event took place.
I agree with that. The time bar should be calculated from when the event took place. However, if new evidence comes to light, for example of a crime—an obvious example would be pensioners who find that their pension fund has gone broke or that someone has stolen from it—we should be able to return to the matter.
I wonder whether that would be appropriate, as a case such as that would go to the courts.
Yes, a criminal offence would go to the procurator fiscal's office.
There should be a time bar and the period should run from the date of the event or incident. There should, however, be discretion to take on cases outwith the time limit. On balance, the case should come back to the Standards Committee. Recommendation for such decisions should come from the commissioner to the committee, otherwise the process could get a bit unwieldy.
Remember that the commissioner will deal with stages 1 and 2 of the complaints procedure. The Standards Committee has always retained the right to conduct an investigation itself at stage 3, so there will be flexibility in the system.
Yes, but not when the procedure is time barred.
Some members seem to feel that the commissioner should have flexibility and some that he or she should not.
We need the flexibility to decide whether an issue that has been time barred can be investigated.
We already have that discretion.
Have we?
Yes. At stage 3 of the process, we can decide—
We need to be explicit. Stage 1 of the complaints procedure concerns whether to have an investigation. If there is a time bar at stage 1 on the commissioner to investigate, the case would not necessarily get to stage 3, at which point the committee would have the right to investigate. If there is a time bar at stage 1, the committee should be able to say at stage 1 that there are abnormal circumstances and that it is proper and reasonable for the committee to instruct the commissioner to carry out an investigation.
The clerk will make a couple of points that might clarify the issue.
When the committee considers whether the time limit should start from when the incident took place, it might want to bear in mind that other complaints procedures have shown that aspects of a case that may infringe the code of conduct, for example, might not come to light until several years after the incident took place.
Can you clarify whether the committee retains the right to conduct an investigation at stage 3?
The committee can do a number of things at stage 3. It can accept or reject the commissioner's report, or send the report back to the commissioner and ask that further inquiries be carried out. It can also carry out its own investigation, for whatever reason—for example, if it was unhappy with the commissioner's report.
I support what the clerk has said. A generous time scale would make sense because constituents would not feel disadvantaged. It would also give maximum flexibility so that, if something very unusual but important came up, we could respond appropriately.
I agree with Lord James. In many of the cases in Parliament over the past 20 years, there has been an initial concern but it has taken a while to unravel the other issues that go back over a considerable time. A very limited time might debar such thorough investigation.
I should make clear, at this point, that it is possible that I have misinterpreted the committee's remit. The legal advice, which has just winged its way to me, and of which we all need to be made aware, is that if the commissioner time bars a complaint, the committee cannot investigate the complaint at stage 3. I apologise if I have misled members.
My point is that, given our role, we might be better to have the power to intervene at stage 1 since the public might expect that we have a greater role than the commissioner.
Absolutely.
I am perfectly happy to err on the side of caution on the time limit. Just to be clear, I am saying that I agree that there should be a time bar. The Standards Committee should, as I said before, be able to decide that in exceptional circumstances the time limit could be waived. We should be able to do that at stage 1.
The sanctions relate to when the MSP is serving. Off the top of my head—I will take legal advice—I would say that the complaint would need to be against a serving MSP.
As a punishment, we could threaten to make them an MSP again if they were no longer an MSP. "Please don't," they would say.
Equally, if the commissioner or the committee could still investigate the complaint, the person accused, being no longer an MSP, would have no right to respond and no right of appeal. That is why I would like to be clear about the time bar.
I will take legal advice and we will come back to that.
I would like some clarification. We have agreed—not entirely, but pretty much—that the time bar will apply from the original event. The bit that I am not sure about is that the commissioner will not be able to break that time bar, but the committee will. Are we saying that if we were to accept a seven-year time bar and somebody complained about an event that took place before that, they would have to complain to the committee and not to the commissioner?
No, it would be the other way around.
I would like to take legal advice on the matter. It is a difficult legal issue, about which we need to be absolutely clear. We need to return to the issue in a fortnight's time once we have considered it properly.
We can come back and say whether what the committee wants is possible.
There is one more piece of guidance that might be helpful to the clerks. We have discussed a fairly lengthy time bar for complaints. How long do we think that that time bar should be?
Patricia Ferguson's points about the committee's remit were germane to the discussion. We can impose sanctions only on MSPs. When the clerks consider the issues paper, they need to consider it in the light of our remit. Perhaps we will have a clearer idea of the length of time that is needed when the clerks have considered the paper.
Would it be possible to find out why Westminster agreed a bar of seven years? There might be a good reason for that, or it might be an arbitrary figure.
We will do that.
I think that an annual report would be appropriate. Otherwise, we would have a feast every quarter. There are further aspects of the report that the committee could discuss.
Are we agreed that the report should be annual?
Next, we need to look at the so-called investigative fundamentals. The committee would not be able to interfere at stages 1 and 2 of individual investigations. Members will recall that we are able to undertake our own investigation at stage 3 if we are dissatisfied with the commissioner's investigation for whatever reason—that is the advice that I have been given.
That brings us back to the time bar and to stages 1 or 2 of an investigation. We might need to have the power to direct an investigation at stage 1. In special circumstances, it is proper and reasonable for the committee to conduct an investigation. We need to sort out the time bar before we sort out stages 1 and 2. The time bar is really important. We cannot agree one without the other.
That is what we are asking. Do you think that it is appropriate to include that information in the bill, or should we dispense with it?
Could there be some sort of memorandum for the commissioner?
That is the question that I am posing. Do we need that level of detail in the bill?
I do not think so. I am surprised that we are being asked whether the committee should require the commissioner to comply with the suggested general requirements. I would have thought that the commissioner would always have to comply with them. I would not have thought that we would have to ask the commissioner in each case. I would have thought that guidelines or guidance would exist, which the commissioner would follow when conducting an investigation. I certainly would not expect the commissioner to come to the committee for guidance on every investigation.
The question is whether the requirements should be in the bill or whether they should be in some form of memorandum or guidance that is issued to the commissioner.
They should be in guidance. From memory, I am pretty certain that the Ethical Standards in Public Life etc (Scotland) Act 2000 gives guidance on how investigations would be carried out, based on principles equivalent to, for example, a workplace disciplinary hearing. It would be more appropriate to have guidance than to encumber the bill with too much detail.
The clerks would like a little more guidance on the final part of the paper. Do members agree that we should be able to require the commissioner to provide an interim report to the committee?
Presumably, when the commissioner writes an interim report, he would enclose a typed note on the guidance that would be standard for everyone.
I think that we should be able to require an interim report.
I agree.
I thank members for their useful contributions. Today's session has given the clerks a good steer for our next meeting.
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