Disclosure of Complaints
We have three short debates this morning. The first is a debate on motion S1M-3386, in the name of Mike Rumbles, on behalf of the Standards Committee, on an amendment to the "Code of Conduct for Members of the Scottish Parliament" in relation to disclosure of complaints. I call on Mike Rumbles, as convener of the committee, to speak to and move the motion.
The Parliament's code of conduct for members is rigorous and fair. It underpins the high standards of probity that members are expected to maintain in carrying out their parliamentary duties. Drafting the code of conduct was one of the first tasks of the Standards Committee in 1999 and Parliament endorsed the code on 24 February 2000. When I opened that debate, I said that the committee recognised that the code was an evolving document and that we were committed to revising it as and when necessary and in the light of experience.
Today's debate is a stage in that evolutionary process. The committee has drawn up an amendment to paragraph 10.2.1 of the code, which prohibits disclosure to the media of complaints that are under investigation. Before I set out the details of our proposal, I will remind members why we agreed two years ago to incorporate such a provision. The code as drafted states:
"MSPs should not communicate any complaint to the press or other media until a decision has been made as to how the complaint is to be dealt with."
It is critical to the integrity of the complaints process that an investigation into an allegation of misconduct is carried out in private and independently of the Standards Committee. That is why the Parliament passed the Scottish Parliamentary Standards Commissioner Act 2002 in June this year.
The Standards Committee is resolved that members who are the subject of a complaint should not be unfairly prejudiced by press speculation about a complaint that might subsequently be held to be completely unfounded. It is an unfortunate fact of political life that allegations of sleaze and wrongdoing are generally splashed across the front pages of newspapers, but any subsequent exoneration of the individual is often tucked away in three lines on page 10 or 12.
The new provision is not just about the rights of the member who is the subject of a complaint. Publicising a complaint that is under investigation can prejudice an inquiry. If the standards adviser's or commissioner's investigation is to be thorough and robust, it must be carried out in private and away from the media spotlight.
I stress that the provision is not a gagging order, nor is it intended to imply that complaints against MSPs will be dealt with behind closed doors or swept under the carpet. Although the adviser—and, from early next year, the commissioner—carry out investigations in private at stages 1 and 2 of the complaints process, the committee's consideration of a complaint at stage 3 is very much in the public domain. We take any evidence that is required in open meetings and our decisions on whether there has been a breach of the code are made in public. The committee's report and that of the adviser—or soon-to-be commissioner—are published as soon as possible after the committee's decision, together with the relevant evidence that has been uncovered during the investigation.
The amendment that the motion sets out is intended to clarify paragraph 10.2.1. The amendment seeks to prohibit members from discussing complaints in the media during stages 1 and 2 of the investigative process and will give greater clarity to the current ambiguous restriction, which applies
"until a decision has been made as to how the complaint is to be dealt with."
More important, the amendment will prevent members from discussing with the press their intention to make a complaint prior to lodging that complaint.
If, despite those measures, a complaint receives publicity, we propose to give the member who is the subject of the complaint a right of reply. Colleagues will note that that will be restricted to a "brief statement", which should avoid discussing details of the complaint. The provision recognises that members might wish to respond to allegations that are made against them and retains an element of protection for the investigative process.
The amendment to the code is key to preserving the integrity of the four-stage investigative process that the Parliament endorsed. As the first session of the new Parliament draws to a close, the political temperature in the next few months will inevitably rise. I want to make it abundantly clear that the Standards Committee does not wish the forthcoming election campaign to be fought through the complaints process. We will not tolerate allegations by political rivals being trailed in the media. Such behaviour serves only to undermine the Parliament and its members and, ultimately, the democratic process.
I move,
That the Parliament agrees to amend paragraph 10.2.1 of the Code of Conduct for Members of the Scottish Parliament as follows: leave out "MSPs should not communicate any complaint to the press or other media until a decision has been made as to how the complaint is to be dealt with" and insert:
"Disclosure of Complaints
10.2.1A Members should not disclose, communicate or discuss any complaint or intention to make a complaint with members of the press or media prior to the lodging of the complaint or while the Standards Committee is receiving assistance from an adviser appointed under paragraph 10.2.8 in relation to the complaint. The Standards Committee is to be regarded as receiving the assistance of an adviser appointed under paragraph 10.2.8 in relation to a complaint until it has confirmed that no assistance or further assistance from any such adviser will be sought. Where, during the period when the restriction applies, any complaint or intention to make a complaint has been publicised in the press or media without the involvement of the Member who is the subject of the complaint, that Member may issue a brief statement. In doing so, a Member should, as far as possible, avoid discussing details of the complaint or intention to make a complaint."
The proposed amendment to the code of conduct that the Standards Committee recommends is a matter for the Parliament to consider. However, I am happy to record the Executive's support for the amendment, which seeks to remove the evident ambiguity over when members can disclose to the press information about complaints. The amendment should put beyond members' doubt the question of when such disclosures should and should not be made.
The Executive shares entirely the committee's view that members should not be subjected to unfair speculation in the press about complaints that might subsequently be held to be unfounded. The amendment, if approved by the Parliament, will provide useful clarification of that aspect of the code of conduct and will strike a fair and proper balance. I offer my support, and that of the Executive, for the proposed amendment.
I support Mike Rumbles's and Euan Robson's comments. The Standards Committee found paragraph 10.2.1 in the code of conduct to be inadequate. As Mike Rumbles said, there is no intention to gag members. Press comment that a complaint about an MSP is to be made to the standards adviser is an unedifying spectacle. Such comments are sometimes encouraged for the sake of a press release or a quick soundbite, regardless of the effect on the MSP concerned.
Many MSPs think that the Standards Committee knows all about the progress of complaints, but although the newspapers might say that a complaint is to be made to the Standards Committee, the committee does not know about complaints until stage 3 of the process. It is right and proper that the standards adviser—or, next year, the standards commissioner—should carry out stages 1 and 2, which are the initial complaint and investigation, in private. Members of the Standards Committee first hear about a complaint when a report on it comes from the standards adviser. At that point, the Standards Committee takes over. All further evidence is heard in public and decisions are taken in public.
I support Mike Rumbles's view that, in the run-up to the 2003 elections, we do not want the Standards Committee and the complaints procedure to be used by MSPs to settle scores or to score political points over rivals. MSPs should display more grown-up behaviour. I know from experience that there is nothing worse than finding that the newspapers have been briefed that a complaint is to made against oneself. I suffered that, not at the hands of a fellow MSP, but at the hands of a member of the public, who faxed her letter of complaint to the press. Of course, it was found subsequently that there was no case to answer. That situation was difficult, but I dealt with it robustly. I defended myself and said that the allegation was not true. However, it is not helpful to any member to find in the press details of a complaint that is subsequently considered and in respect of which the member is exonerated. Often, complaints do not reach the Standards Committee.
I ask all members to support the proposed change to the code of conduct. I ask also for all members' consideration as we approach the 2003 elections. Let us conduct our election campaigns out there in the streets and not in here, in the Standards Committee. I am conscious of the fact that the SNP chief whip is sitting at my side. On this and on every standards issue that will ever come before the Parliament, the SNP will have a free vote. There is no SNP whipping on standards issues in the Parliament. That is how it should be, and I hope that the other parties will act similarly.
I agree with what Mike Rumbles and Tricia Marwick have said in support of the motion. The main proposed change is that, if an MSP is to make a complaint against another MSP's honour, that should not be done publicly, because even unfounded allegations might still be damaging. If such allegations were well founded, they would in due course become a matter of public record.
Mike Rumbles wrote a good letter to all colleagues on the Standards Committee on 26 September. In it, he stated:
"It is essential that investigations into allegations of misconduct are carried out in private and independently of the Standards Committee. Members who are the subject of a complaint should not be unfairly prejudiced by press speculation about matters which may subsequently be held to be unfounded. Moreover, publicising a complaint which is under investigation can prejudice that inquiry."
He went on to stress—as he did, quite rightly, this morning—that
"the Standards Committee's proposal is not intended to be a ‘gagging order'. Whilst the Adviser's investigation … takes place in private, the Standards Committee's consideration of the complaint takes place in public. Any oral evidence required by the Committee is taken in open session and our decision on whether there has been a breach of the Code of Conduct also takes place in public. Both the Committee's report and that of the Adviser or Commissioner are published, together with any relevant evidence."
That is the fairest and most professional way in which to proceed. We are aiming for high standards, and those should be achieved with fairness and professionalism. I support the motion.
I say to Tricia Marwick that I hope that the Conservatives have a free vote on such issues. If we do not, I could be in deep trouble—that will depend on the comments that I get back from Mike Rumbles.
My concern is that the proposal is restricted to MSPs who make complaints against other MSPs. The standards procedure is, no doubt, a good method of control in such circumstances. However, in my experience, complaints do not in the main come from other MSPs but from the wider public. I declare an interest in the matter, as a complaint against me has been through the complaints procedure. I have no complaint to make about the way in which that complaint was handled; it was dealt with reasonably and I welcome the procedure that was followed in that instance. However, another complaint against me was made not to the Standards Committee, but to the Parliament, by an MP. George Foulkes wrote to the Presiding Officer and, at the same time, sent his letter freely to the press. I was happy to respond to that letter immediately, as there were no constraints upon me then. It would worry me if I thought that the code of conduct would place some kind of restriction on my ability to respond in that way in future.
I confirm to Phil Gallie that there will be no such restriction. The proposed change would apply to a complaint against him by an MSP, which would be referred to the Standards Committee. The proposed amendment to the code of conduct would give him the right to respond—that is the whole point of it.
Yes. However, as Mike Rumbles said, that would be a right to respond only briefly, which I could accept in cases of complaints from my colleagues in the Parliament. However, I want it to be made clear that, in relation to complaints from other sources—who are liable to run first to the press, as Tricia Marwick said happened in her case—MSPs will be free to respond as they feel appropriate, without worrying about breaking the code of conduct. If I receive that assurance, I will be happy to support the motion; without it, I shall oppose the motion.
In responding on behalf of the committee, I shall deal first with Phil Gallie's point. The code of conduct is designed to prevent complaints' being dealt with in the media. Members will have a right of response to any complaint that is made against them, but I strongly advise against their playing out in the media any case against them. Perhaps the committee will discuss that. The point of the code of conduct is to defend not only the integrity of all MSPs, but the integrity of the Parliament. To have an argument in the newspapers is not the best way in which to get a fair hearing. However, the proposed change does not detract from members' right to defend themselves at any point.
Ken Macintosh is missing the point that, once a complaint gets into the media, any member who finds himself or herself gagged will face a difficulty. I have no difficulty with the proposed change, because it deals with complaints from other MSPs—such complaints can be dealt with internally. However, other complaints cannot be dealt with in that way, and if a political point were made in the media against an MSP by someone else, it would be wrong for such a gag to be placed on the member. I am looking for an assurance that if, for example, an MP made such a complaint against me, I would be free to respond to that complaint, as the Standards Committee would have no control over the actions of that individual.
I am not sure that I can give Phil Gallie that assurance on behalf of the committee. The Standards Committee, with the approval of Parliament, is laying down a code of conduct for all MSPs. Ultimately, a member's reputation will be defended by the findings of the committee. I advise Phil Gallie that, in the circumstances that he described, he should allow the parliamentary standards commissioner to investigate matters on his behalf—we have put in place measures to ensure that that will be a speedy process—and to refrain from making any comment in the press in the meantime. After the process was completed, if he was vindicated by the findings of the committee, he could use that fact. The process and the standing of the process would protect his reputation. I advise him to follow that process.
The code of conduct applies to MSPs, not to members of the public. Ultimately, we have little sanction against members of the public other than the force of our authority and recognition of the fact that our standards are robust. That is what we must rely on.
If a restriction was placed on MSPs and a member of the public made a complaint to the Standards Committee and, at the same time, released details of that complaint to the press, would the Standards Committee have the opportunity not to accept the complaint because it had been passed to other spheres?
It would be up to the commissioner to consider the complaint first. The complaint would not come before the members of the Standards Committee immediately; it would go to the commissioner, who would be obliged to consider the matter as quickly as possible.
The code of conduct exists to prevent unseemly arguments from being played out in the media. Phil Gallie may think that that loads the dice unfairly against members and gives too much power to anybody who wants to make accusations against them. However, in such a situation, members would not be doing themselves or the Parliament any favours by getting down into the muck and having a squabble. It would be better for them to rely on the commissioner to give the matter a fair hearing, and to allow the Standards Committee to listen to the evidence and find for or against the complaint. That is a far fairer process, which avoids the problems that Phil Gallie is talking about, when a member's reputation is pilloried unfairly in the media. I am sorry if that does not give Mr Gallie the reassurance that he seeks, but the Standards Committee decided that that was the best process.
Does my colleague agree that we are trying to avoid trial by the press and allow MSPs the right of self-defence?
Absolutely. The fact that we have lodged an amendment to the code of conduct that would give a member the right to make a rebuttal is an acknowledgement of the fact that saying nothing is sometimes interpreted wrongly. However, we also emphasised that the rebuttal should be a short and to-the-point statement, rather than part of a continuing argument in the press. The way to iron out difficulties is through the Standards Committee and the four-point complaints procedure. MSPs are free to use consequent judgments in any way they want.
I have a brief question for clarification. The proposals that the Standards Committee has presented to us are an improvement and are clearly well worked out and thought through. However, I have a question about people who are not MSPs but who aspire to be, who are selected by their party structures and who campaign as parliamentary candidates. At what point are they expected to come under the aegis of parliamentary standards and principles?
Members of the public might go through the parliamentary process for complaining about an MSP, but might then publicly throw allegations at the MSP. The Standards Committee could not consider those public allegations. A right of reply is all very well, but an MSP does not really have a right of reply to newspaper articles that are already out there. Is there any way in which people who have been selected as parliamentary candidates by their parties, but who have not formally put in their papers could be expected to abide by the high principles and standards that the Standards Committee is setting out for MSPs?
I acknowledge the difficulties to which Ms Boyack refers. Again, I emphasise that the code of conduct applies to MSPs and so by definition cannot apply to candidates. I also emphasise that the approach that we are taking is that MSPs should maintain the highest standards of behaviour and not to get involved in unseemly squabbles. However, I hope that the difficulties to which Ms Boyack referred are hypothetical.
They are not hypothetical. That is why I asked.
If they are not hypothetical, perhaps Ms Boyack would like to refer the matter to the Standards Committee for further deliberation. Currently, we have no way in which to exercise control over members of the public. Potential candidates for Parliament are members of the public only until they are elected. We can perhaps look further into the matter and see whether there are powers that we can use. Perhaps we can exercise some authority other than our moral authority in the situation to which Ms Boyack referred. The political parties could perhaps impose discipline.
However, as Mike Rumbles said, MSPs' behaviour in the forthcoming election will be important. It is particularly important that we do not get involved in tit-for-tat point scoring that is aimed at damaging someone's personal integrity or reputation. Ultimately, any complaint against an MSP damages every MSP and the institution of Parliament as a whole. We want to guard against that and the only way that we can do so is by members regulating their behaviour. I ask Ms Boyack and all members to bear that in mind.
Mr Macintosh is being very generous, which I appreciate.
There has been plenty of time in the debate.
There is a way—which I suggested previously—in which to deal with Ms Boyack's point. A block on deliberately passing or leaking complaints to the press could be built into the code of conduct.
Unfortunately, as I suggested, we do not control either the press or the behaviour of members of the public and we have little sanction over their behaviour. However, there might be scope for further work in that area. I need to explore further whether we remain MSPs during the period between the end of the parliamentary session and the election of the new Parliament—the actual election period. I think that we should behave as MSPs and that we should maintain the highest standards.
There might be sanctions that we could apply to potential candidates. Their position should certainly be borne in mind and the Standards Committee might wish to consider the matter further. However, I am content that the code of conduct that we are debating is a huge step forward that clarifies, but does not change, the code of conduct for the benefit of all MSPs and members of the public. It clarifies that we wish complaint proceedings to be carried out fairly, rather than secretly by the Standards Committee, and that we do not want complaints to be dealt with in the media.
I will try to make progress in winding up although, as I said, I do not think that we are pushed for time in the debate. I emphasise that it is critical that our adviser's or commissioner's investigation is carried out in private. It is equally vital that their findings and the committee's decisions are made public. That is why almost all the committee's handling of a complaint at stage 3 is in public. The reports of the adviser, the commissioner and the committee will be published together, including any relevant evidence. That transparency will enhance the accountability of the Standards Committee and of the adviser or commissioner.
The amendment to the code of conduct, as I said to Mr Gallie, will also provide a right of reply to a member who is the subject of a complaint that has been publicised without the member's involvement. We consider that to be only fair to the member concerned. However, the right of reply would be limited to a brief statement and would not touch on the details of the complaint, in order to ensure that the parliamentary investigation can continue.
I thank Tricia Marwick for talking about her experience. I think that all Standards Committee members are aware that it is an anxious process for members to be the subject of a complaint that is investigated and comes before the Standards Committee. It is not a process to be considered lightly. Therefore, it is only fair that the process be carried out properly. It should be robust and timeous, but it is not fair to members to carry out that process in the press. I thank Tricia Marwick for her example and for telling us of her feelings about her experience.
I echo Mike Rumbles's words about the coming months when I say that the temptation to use complaints for electoral advantage must be avoided. The Standards Committee will not tolerate frivolous or malicious complaints about political opponents. Such complaints will not help to engage the electorate, nor will they help to increase turnout over that of recent elections. Such complaints will serve simply to increase cynicism about politicians and to undermine the complaints process.
The Standards Committee has worked hard over the past three and a half years to ensure that Parliament has a rigorous code of conduct and robust arrangements for dealing with complaints. Our work in that area has been acknowledged inside and outside Scotland as having developed an exacting parliamentary standards framework. We must not see that undermined. I urge colleagues to support the motion.
That effectively concludes the debate, but perhaps I might add a word. One of the benefits of the new code of conduct is that, when the standards commissioner comes into being, that will relieve the Presiding Officers of a role they have had until now. I welcome that.
In addition, to respond to what Sarah Boyack said, the Standards Committee cannot deal with election matters. However, a draft code of conduct is being batted around between the four party business managers and me. I hope that that will be available for release to members by the end of October. I think that that code will help to deal with the pre-election period as regards members and, indeed, other persons employed in the Parliament who may be prospective candidates. That code's preparation is well under way. I hope that that is helpful.
Further to your comments, Presiding Officer, can you confirm that that code will, in effect, be rules of engagement that are agreed by you and the business managers and which, I hope, will be agreed by the parties? That code will not replace Parliament's code of conduct but will be more about rules of engagement in the run-up to the election period that will guide the behaviour of MSPs, parliamentary staff who are candidates and others.
Yes. I think that we are going to call it "election guidance". I hope that that will be helpful to all members.