Business in Private
Item 2 is to discuss a paper that the clerk has prepared on taking business in private. The purpose is not to take firm decisions about how we conduct business on particular items, but to allow members to comment on our procedures. At present, we decide whether to take items in private on a case-by-case basis and we do not plan to change that arrangement. The aim is to give the clerks and me a greater steer on what members think about how we have been proceeding so far. We want to know whether there is a need to change and, if so, in what way. I invite members to comment.
I do not think that we need to change how we make decisions on taking issues in private session. We are clear that we do so to obtain advice from the Auditor General and his team or to consider lines of questioning. Recommendation 78 in paragraph 644 of the previous Procedures Committee's report "The Founding Principles of the Scottish Parliament: the application of Access and Participation, Equal Opportunities, Accountability and Power Sharing in the work of the Parliament" states that committees are
"justified in meeting in private where they consider public discussion might undermine the effectiveness of the subsequent evidence session."
In my view, that clearly applies to the lines of questioning that we discuss when we have witnesses. I support the suggestion that we should continue to decide on a case-by-case basis.
I will say something about the generality of the issue and then pick up on Margaret Jamieson's point about the specific issues for the Audit Committee.
I was heavily involved in the discussion in the Procedures Committee that is cited in the paper from the clerk. As many members will know, the Procedures Committee's inquiry went on for a long time—arguably for longer than it should have done. It is worth noting that, without question, one major criticism that came from a wide range of individuals and organisations was that too much of the Parliament's business is transacted in private. There was a real sense of disappointment about that. Although many people who had given evidence to committees were pleased about the different nature of the Scottish Parliament in that respect, there was a sense that everything closed down, committees disappeared from view for weeks or months and something else came out at the other end. People could not understand how the process had gone from the evidence sessions that they had read assiduously and participated in to the end result of the report.
I will comment in a second about the Audit Committee, but it is worth remembering why the issue is around and why it was raised in the Procedures Committee's report. The Procedures Committee observed that, although decisions to meet in private were technically being taken on a case-by-case basis—in so far as an explicit decision is taken at each meeting about what is to be discussed in private—those decisions were, perhaps subconsciously, going through on the nod. The Procedures Committee hoped that, if nothing else, committees would at least pause for a wee minute to think whether they have got things right and whether they need to think more consciously about individual decisions. That is why I am pleased that we are having this discussion at all.
I accept that the Audit Committee is different from other committees in some respects, not the least of which is the involvement of the Auditor General and his staff. I am interested in hearing what Bob Black and his team feel about where we draw the line at present between public and private discussions. In our future deliberations, we must be mindful of anything that is said from that side of the house.
For what it is worth, my view—on which I would welcome comments from the Auditor General—is that we should recalibrate where the line between public and private discussions is drawn in two areas. I am not talking about a volte-face and taking in public everything that is at present taken in private. The first area is the consideration of the Auditor General's initial reports. Our standard practice is to have an initial discussion in public and a secondary discussion in private. I am not sure where the dividing line should lie, but it could be recalibrated a little, if I may use that word again. Some of the initial views and opinions that we launch into when we are in private could be shared in public without compromising anything that the Auditor General says or does.
In a similar vein, the second area that could be revisited is the first stage of discussions about the committee's draft reports. The practice of taking that stage in private was most criticised in the Procedures Committee's inquiry—the discussion of our "Individual Learning Accounts in Scotland" report was a case in point. I do not see why those initial discussions, which are intended to glean committee members' views and main concerns and observations, could not be taken in public. The counter-argument is that discussing such issues in public makes it harder for members to agree because of party-political imperatives. I cannot help but feel that, particularly in a committee such as this one, members' views should stand whether they have their committee hat, party hat or chamber hat on. Another counter-argument is that members may grandstand. The sense in the Procedures Committee was that, if people are crudely grandstanding, that would be visible, whereas at present it is invisible.
I apologise for making a lengthy speech but, as you know, convener, I have taken an interest in the issue. I hope that we seek to recalibrate a wee bit where we draw the line in our discussions of what to take in public or private, while recognising and respecting the particular issues with which the Audit Committee deals. I do not think that we can necessarily resolve that today, but I hope that, if we do not move in that direction, we will be willing to explore it a wee bit further.
In principle, each committee should always take the decision whether to go into private and defend it against the public record of how many times it has met in private; the decision should not be uniform throughout the Parliament. The Audit Committee is different from most other committees, in that we have a specific role that is set down in the Parliament's standing orders and are here to hold not so much the politicians but the accountable officers, who are civil servants, to account for performance, efficiency and the implementation of policy. The committee therefore needs to be able to discuss frankly and in private issues such as whether accountable officers did their jobs properly. Because we need to respect the fact that accountable officers are civil servants and not politicians who are there to be shot at, we must be able to have frank and honest discussions in private on such matters when we are drawing up reports.
The private briefings in which the Auditor General gives us further information after his public statements on reports that he has published are valuable and allow us to get a feel for some of the issues that lie below some of the views that are expressed in the papers. I support those private briefings continuing, but I think that we could hold our discussions on lines of questioning in public. Those discussions do not need to be held in private at all and I support holding them in public.
At the moment, we are not far away from where we should be and our position is defendable. We could hold our discussions on lines of questioning in public but, by and large, I concur with the way in which the committee is doing its business.
The term "recalibration" is probably as good a way of stating the matter as we will get. Like George Lyon, I am not against slight movement. The Audit Committee is distinct, as is the Subordinate Legislation Committee, on which I have also served.
My views have also been set by 20 years as a lawyer. There is a difference between what takes place in public court, which must for ever be in the public domain, and what takes place in a sheriff's chambers to resolve matters. Similarly, there is a difference between committee musings and briefings and committee deliberations: deliberations must always be in the public domain, but discussions in which we are generally trying to get our heads round a topic or taking advice should not necessarily always be in the public domain, because that would restrict the questions that we ask. It might, for example, be a disincentive to pursue a line of questioning that we think might turn out to be silly. Holding such discussions in private provides a more open and frank atmosphere and perhaps gives us a bit more leeway.
Like Susan Deacon, I am happy to take cognisance of what the Auditor General and his staff say, but there is at least a perception that more information—for example, on the background to a matter or what informal discussions took place on it—can be given in private briefings than in public deliberations, because once such information is in the public domain it would be open to criticism or challenge. If there is a suggestion that we change the calibration, I am not agin it, but I am not sure about discussing lines of questioning in public, because I can envisage a disincentive to ask what we might think is an idiot question. I can also think of pointed remarks in background discussions—I think of some of the discussions that took place regarding the Scottish Parliamentary Corporate Body and Parliament funding—that members might not want to be placed in the public domain.
Musings, briefings and advice should be taken in private, but deliberations and final decisions must be in public view.
I invite the Auditor General to give his views.
Mr Robert Black (Auditor General for Scotland):
It goes without saying that the matter is the committee's business rather than mine, but if it is helpful, I will offer one or two thoughts.
It strikes me that all the committee's substantive business is in public. A report is laid before the Parliament as a public document. I have the opportunity to make a statement in public to the committee to set the context and highlight the main findings. The members of the committee then have the opportunity to question me in public on it, and my answers are in the Official Report. The questioning of accountable officers is in public and the final report is in public. That is a very public process and, as committee members well appreciate, we are therefore talking about two steps in the process: the point at which the committee members reflect on what questions they might wish to put to accountable officers and the point at which they reflect on some of the key conclusions that they would like to be included in the report.
Observing and participating in that process, we find that, from time to time, members want to test out ideas; they might not have the full facts and we might be able to supply them with the facts. It strikes me that there might be a link in that to paragraph 604 of the Procedures Committee's report, part of which is appended to the committee paper. That paragraph provides that
"discussions or draft reports concerning complaints against MSPs … should not be held in public".
If, in discussions on reports of mine that are laid before the Parliament, there are questions in MSPs' minds not only about systems failures and weaknesses but about the extent to which failures and weaknesses might be attributed to individuals, such discussions might best be held in private. Similarly, when the committee is drafting a report, members might wish to reflect among themselves on their conclusions on the extent to which systems failures and weaknesses are the main reason for a problem and the extent to which it might be necessary to mention individuals' names. It seems to me entirely consistent with the sense of paragraph 604 that such matters should be held in private.
The discussion has been most useful. We have to revisit the subject from time to time so that we can, as Susan Deacon suggested, consider our calibration. That is an apt choice of word, because the line that we need to get right is fine. It strikes me that the committee started off with a fairly comfortable position about what it was possible to take in public and what had to be taken in private and that, as the committee has become more experienced in operating its procedures and within its remit, it has found that it is possible to begin to bring more into the public domain because committee members have had greater self-confidence. That is right, because every agenda item, every report that we draft and every evidence-taking session that we have are treated case by case, which allows us constantly to recalibrate whether we hold those discussions in public or private.
Paragraph 604 of the Procedures Committee's report offers a helpful comparison. For me, the phrase
"ahead of any investigation being completed"
is the crucial part of that paragraph. When we discuss accountable officers, we may reach an entirely different conclusion from that contained in the initial draft. That suggests that there may be two kinds of reports. In some cases, we may be examining how an operation went wrong and delving into the decisions that people took. There are other reports of a more general nature—for example, on prescribing in general practice. In those cases, we are not seeking to discover blame or fault, but to examine the overall operation. In future, we may be able to say that discussion of such draft reports should take place in public.
However, we must take cognisance of the fact that if we are to discuss reports in public, we must start our discussion of them in public. The taking of evidence, the line of questioning and the initial draft report must be thought through on the basis that the entire process will be in the public domain. We cannot deal with an issue in private and later decide suddenly that we will discuss the draft report in public. That could be a difficult compromise, because the line of questioning that has been pursued will have created expectations and had an effect on the initial draft report by the clerks. In many cases, there may be room for considering lines of questioning in public.
On the issue of private briefings from the Auditor General and his staff, it is important that we remember that the published reports are agreed. The Auditor General's team has delved into and considered issues with the body on which it is reporting and the facts presented are as agreed. There may be issues that have not been agreed and that might bear further exploration, but they will not appear in the Auditor General's report. Perhaps those issues should be drawn to our attention, so that we can follow them up. From time to time, it is necessary to receive private briefings on such matters, so that we can begin to unearth issues that are not yet in the public domain. In that way, we are doing a very useful job for the public.
Those are my observations. It will be useful if, in future decisions that the committee takes, we bear in mind members' contributions, so that we can review constantly where to draw the line. I ask the committee to agree to note the paper.
How does the committee compare with similar committees in other legislatures? We tend to make the assumption that the US has a very open, transparent committee system. I do not know whether that is the case. Do we have any comparators?
There are two answers to that question. First, if the member wants a detailed answer, the clerk will provide the information that she seeks. The second answer is very anecdotal. In the Scottish Parliament, the Audit Committee takes more items in private than other committees do. It is generally acknowledged that that is due to the nature of the work that we do, compared with the work of subject committees. We intend to visit similar committees in other Parliaments to establish how they operate. Unless the clerk delves into the matter before that, I cannot provide a substantive answer to your question. However, the Audit Committee handles a larger proportion of its work in private than other committees of the Scottish Parliament do.
It would be interesting to know whether a similar committee has considered this issue and works in a different way. We may not be able to learn much in that regard from the committees that we intend to visit. However, I do not want to instigate a major piece of research.
We will obtain the information that the member seeks before we make our trip to Westminster, the National Assembly for Wales and, possibly, the Northern Ireland Assembly.
That would be useful.
Do we agree to note the report?
Members indicated agreement.