Interests of Members of the Scottish Parliament Act 2006 (Breach)
Good morning. The first item of business this morning is a debate on motion S3M-2442, in the name of Keith Brown, on behalf of the Standards, Procedures and Public Appointments Committee, on a breach of the Interests of Members of the Scottish Parliament Act 2006.
I call on the convener of the Standards, Procedures and Public Appointments Committee, Keith Brown, to speak to and move the motion.
Members should excuse my breathlessness. Traffic from the Forth road bridge was very slow this morning.
I speak in support of the motion, which relates to the committee's findings on a complaint against Wendy Alexander MSP. The full details of that complaint are set out in the report that the committee published on 10 July 2008, which also includes a detailed report on the complaint by the Scottish Parliamentary Standards Commissioner. It is important to remind members that the committee is unaware of any complaint made to the commissioner until the commissioner reports to the committee at the end of stage 2 of the complaints process, and that his investigation is entirely independent of the committee.
In summary, the complaint was that the member failed to register in the register of members' interests within the required timescales 10 donations above £520 in value that were made to her campaign for the leadership of the Labour group of MSPs. Paragraph 6 of the schedule to the Interests of Members of the Scottish Parliament Act 2006 requires that members must register any interest if the member receives or has received
"a gift of heritable or moveable property or a gift of a benefit in kind and … the value of the gift, at the date on which it was received, exceeds 1 per cent of a member's salary on that date … and … that gift meets the prejudice test."
Section 3(2) of the act states:
"An interest meets the prejudice test if, after taking into account all the circumstances, that interest is reasonably considered to prejudice, or to give the appearance of prejudicing, the ability of the member to participate in a disinterested manner in any proceedings of the Parliament."
The act requires that interests are registered within 30 days of the date on which the member acquires that interest.
The Standards, Procedures and Public Appointments Committee considered and agreed the following findings of fact made by the commissioner. Between 15 August and 14 September 2007, the member engaged in a campaign to be elected leader of the Labour group of MSPs in the Scottish Parliament. Donations towards the cost of that campaign were received from individuals and organisations and paid into the WA campaign account, to which the member was not a signatory. Ten of those donations were of a value over the registration threshold of £520 for gifts. They were banked between 31 August and 5 November 2007. Although the member did not have direct ownership or control of the campaign funds, she had a beneficial interest in them. Contrary to a claim that was implied in the complaint, the campaign team was not a company or partnership. The member made no entry relating to the relevant donations under gifts in the register of members' interests within 30 days of their receipt. The member sought and received written advice from the Standards, Procedures and Public Appointments Committee clerks on 8 November 2007. That advice was to the effect that registration of the donations in the register of interests was not required. The advice was sought after the deadline for registration of around half of the donations had passed.
On the advice that the Parliament's lawyers gave Wendy Alexander, could you tell the Parliament—
You should speak through the chair, please, Ms McNeill.
Will you tell the Parliament whether you requested to see—[Laughter.] I apologise. Will the member tell the Parliament whether he asked for the parliamentary advice to be published? If not, why not?
From my recollection, the committee did not ask for the advice to be published, but we asked to see it. We were told what the advice was, but only verbally, not in writing.
Will the member take an intervention? I would like to clarify something.
I must make progress. I am sorry.
On 1 February 2008, when the Scottish Parliamentary Standards Commissioner's investigation was not yet complete, nine donations were registered voluntarily in the register of interests; the 10th donation was registered under sponsorship.
The committee noted the commissioner's and the member's views on whether the prejudice test had been met. It then considered the commissioner's conclusion that the member's
"failure to register as gifts in the Register of Members' Interests, within the appropriate timescale, eight of the donations to her leadership election campaign constituted a breach of section 5 of the Interests of Members of the Scottish Parliament Act 2006 together with paragraph 6(1) of the Schedule."
In reaching its view, the committee considered all the evidence that was set out in the report, and agreed, by a majority of five to two, with the commissioner's conclusion. During its deliberations, the committee considered the key issues of the definition of a gift or benefit in kind; what is meant by receiving a gift; the financial threshold; and the prejudice test.
Having reached a majority view that the member had breached the requirements of the 2006 act, the committee considered written representations from the member before it decided whether to recommend sanctions to the Parliament. It considered a number of mitigating factors that were highlighted in the member's written representations together with the evidence in the commissioner's report, and agreed by a majority of four to three to recommend sanctions for the breach of the 2006 act. We noted that the member had sought advice from the Standards, Procedures and Public Appointments Committee clerks on 8 November, albeit that that was after the deadline for registering some of the donations. We also noted her comments on her previous compliance with respect to registration and that she had, in fact, exceeded those requirements in the past, albeit that we found her previous diligence incongruent with not having taken timely advice and action in respect of the donations in question. The committee also noted the procurator fiscal's comment that there was a degree of uncertainty surrounding the interpretation of the relevant provisions and that the member could not be held responsible for that. In addition, it noted that it and its predecessor committee had not provided advice on the categories of registrable interest.
We considered the available sanctions that are set out in sections 15 and 16 of the 2006 act. Only the four committee members who had agreed to recommend the imposition of sanctions discussed sanctions. The committee agreed by division—four for, with three abstentions—to recommend that Wendy Alexander MSP be excluded from all proceedings of the Parliament for the first Wednesday that is a sitting day following Parliament's agreement to the sanction.
On behalf of the Standards, Procedures and Public Appointments Committee, I move,
That the Parliament notes the 6th Report, 2008 (Session 3) of the Standards, Procedures and Public Appointments Committee, Complaint against Wendy Alexander MSP, and agrees to impose the sanction recommended in the report that Wendy Alexander MSP be excluded from all proceedings of the Parliament for the first Wednesday that is a sitting day following agreement of this motion.
The convener of the Standards, Procedures and Public Appointments Committee has talked in detail about the committee's report to the Parliament. I associate myself with his remarks and will make some comments in support of the committee's deliberations.
We have an absolute responsibility, enshrined in the law, to register our interests. We cannot deviate from that responsibility. It ill becomes any member to seek to avoid that responsibility or to seek to lay it at the feet of others, especially if those others are committee clerks or MSPs' staff, who do not have the opportunity to defend themselves in public.
In the past, members have found themselves in breach of the rules as a result of their own actions or through no intended fault of their own. The delineation between those members—of all parties—has been between those who have had the good grace to accept responsibility for their breach, apologise to the Parliament and accept any sanction that has been imposed, whether the breach happened as a result of their actions or the actions of others, and those who have not had the good grace to do so.
In the case that lies before the Parliament, which weighed heavily on the committee before the recess, there can be little doubt that the member at the heart of the report has still not accepted responsibility for her actions or those that were taken in her name, and that she still seeks to avoid any sanction. I would be pleased to be proven wrong if the member tells members that she is willing to accept responsibility for, and any consequences of, the events that have been reported.
In considering the commissioner's report, I found enlightening the clerk's note at appendix 6, about a chat with the member. In my dealings with the clerks about the registration of my interests, there has always been a rider at the bottom of communications from them to the effect that their advice is their best interpretation of the rules but that it is the member's responsibility to ensure that they comply with the law and any other rules. In that context, the clerk's advice to the member that
"any donation could be considered as a gift and therefore it would be required to be registered if it exceeded £520 and met the prejudice test"
was clear, but the responsibility still lay with the member and not the clerk.
The standards commissioner's report makes it abundantly clear that the rules had been breached on several occasions before the member approached the clerks for advice. I refer to the note to paragraph 16 of the commissioner's summary of his interview with the member. That note also indicates that the dates that were submitted to the Electoral Commission as the dates on which donations were received were not the true dates on which the donations were received, which indicates at the very least a laxity in record keeping.
The findings of fact in the commissioner's report are not in dispute. In the member's letter of 13 June 2008 to the committee clerk, she accepted the factual findings, with the exception of a slight quibble over the observation that a fair-minded person would consider that the gifts may influence her actions. For the record, I agree with Wendy Alexander that that is a judgment rather than a statement of fact, but I agree with the commissioner's judgment that the prejudice test was met.
The recommended sanction of a one-day suspension can in no way be said to be onerous. Considering the importance of the probity of members of the Parliament and therefore of the Parliament itself, I have no hesitation in recommending that Parliament endorse the committee's findings and recommendations.
The Parliament has waited the entirety of the summer before debating the report from the Standards, Procedures and Public Appointments Committee. I welcome the opportunity for the Parliament to have its say and to determine the matter. In considering the complaint about Wendy Alexander by a Scottish National Party researcher, I will focus on two issues. First, I will examine the robustness of the report and the consequences for our procedures and, secondly, I will consider the implications for all members of the Scottish Parliament.
The central question is whether the donations should be considered as a gift and should therefore have been registered. The committee accepted three key points: first, the member was right to seek advice from the clerks; secondly, the clerks gave clear and unambiguous advice to the member; and, thirdly, the committee accepted that the uncertainty surrounding the interpretation of paragraph 6(1) of the schedule to the Interests of Members of the Scottish Parliament Act 2006 was not a matter for which the member could be held responsible. The committee rightly concluded that, because of the ambiguity in relation to registration, there was no breach. Christina McKelvie was a member of that committee and cannot distance herself from that key conclusion today.
It being the case that there was no breach, there can be no sanction and, to be frank, the committee misdirected itself on the issue of timing. I want to be absolutely clear about that. If the committee did not find that there was a breach on registration, it could not find that there was a breach on timing, because timing is irrelevant. If one pays close attention to the 2006 act, one will find that section 5(2) states:
"Within 30 days after the date on which the member acquired that interest, that member shall register that interest"
with the clerks. However, the member understood that the interest was not registrable. The clerks and the Parliament's lawyers advised that it was not registrable and the committee accepted that the situation was ambiguous and did not find against the member on that point. If the Parliament's lawyers were asked today, they would tell us exactly the same thing—the interest was not registrable. Therefore, timing has absolutely nothing to do with the matter.
There are lessons to be learned. I trust that, as a consequence of the report, the Parliament's procedures will be reviewed. I invite you, Presiding Officer, and the Scottish Parliamentary Corporate Body to consider those procedures, because the report has profound and far-reaching consequences for all MSPs. Indeed, Presiding Officer, we have exchanged letters on that point. On 22 August, in a letter that you placed in the Scottish Parliament information centre, you advised that members should continue to have confidence in the advice of the clerks. I do have confidence in them, but it is clear that the majority of the committee members do not and instead prefer the opinion of a Queen's counsel. In the same letter, you note that members should consult private legal advisers. We could end up with at least three separate pieces of legal opinion, which would be a bit like pick and mix at Woolworths. Whose opinion will the committee prefer—my private lawyer's, the clerks' or a QC's?
Will the member take an intervention?
Not at this stage.
The committee is not a court and it should not determine points of law. The interpretation of law is properly a matter for the courts. I am astonished that, on the one hand, legal opinion for the standards commissioner was published in full, yet nothing at all has been published from the Parliament's lawyers. Despite the attempt at an explanation by the committee convener, I find that to be an unacceptable and glaring omission.
We need clarification on several matters. We need to know about the status of advice received from the clerks and the provision of private legal advice for members. We need guidance for members who are involved in party elections and clarification of whether the procedures are compatible with the European convention on human rights. There is a considered view from leading civil law firms in Scotland that the process that was followed may be in breach of article 6 of the ECHR, as the committee may not be considered to be a fair and impartial tribunal in determining a member's civil obligations. That has profound implications that the Parliament must consider carefully. I urge you, Presiding Officer, to ensure that that happens.
Wendy Alexander has paid a high price for a report that some commentators have described as partisan. Some members may regard what they have done as a political victory, but wiser heads will reflect on the consequences for the Parliament and for democracy. Let the wiser heads in the Parliament dismiss the report, which is unfair, unjust and, frankly, plain wrong.
It is surely the Parliament's duty to judge its members by the Parliament's rules and not by those of any other body. With the greatest respect to the members of the Standards, Procedures and Public Appointments Committee, of which I am one, the committee's decision in the case was wrong and a member of the Parliament has suffered an injustice and therefore an unfair slur on her parliamentary record. That is unfortunate, not only for the member concerned—Ms Wendy Alexander—but for every member of the Parliament.
The standards committee must surely demonstrate a stature that is higher than that of any other committee because of what it does or may be called on to do, which is to sit in judgment on the conduct of other members. It must be self-evident from the committee's conduct that it has attained the highest levels of fairness, natural justice and professional objectivity. It must be seen to be free from partisan whipping and members must make up their minds according to the evidence, rather than be told what line they should take.
The committee members should do as they would be done by, which is most likely to be achieved if the committee reflects substantial parliamentary experience. However, it has been pointed out by the press and others that all those who voted in favour of sanctions, including the convener, were new members who were elected in May last year. I mean no disrespect to them, but how many members would feel comfortable to be judged by a committee that is so lacking in parliamentary experience? Party leaders and managers should bear that in mind when appointments to the committee are made in future. I know that I shall make myself unpopular by saying this, but there was a distinct scent of partisan alignment on the committee, which should not have been there. I am proud of the fact that I based my judgment purely on the evidence that was before me, without anyone from my party telling me what I should or should not do. That is how the process should be carried out but, regrettably, it was not. I am sure that most members believe that the Standards, Procedures and Public Appointments Committee must be above blemish.
It was wrong to recommend imposing sanctions on the member, and the time taken to produce a result, because of incessant filibustering in private committee sessions, did not allow the Parliament to vote on the matter before the recess. The sword of Damocles was therefore left hanging above the member's head for an unnecessary two months. I suspect that that was a major factor in the resignation of Ms Alexander from the leadership of her party. It disturbs me that in a country allegedly famous for justice and fair play, an event of this kind has been allowed to happen in our Parliament. Lessons must be learned.
From day one, I was convinced that there was no case to answer and that although a breach might have been committed, it was as a result of the member falling foul of a flawed system rather than her personal conduct. The member made every effort to register the donations. She took the advice of the Parliament's lawyers and the Standards, Procedures and Public Appointments Committee clerks who advised that there was no need to register the donations. Admittedly she was a week late in doing so, but that was as a result of her belief that there was no precedent for registration in a leadership campaign. I questioned the lawyers and the clerks who all told me that they would have given her the same advice whenever she had asked that question.
It is a sorry state of affairs if any member of this Parliament cannot have confidence in the advice given by the Parliament's lawyers and the Standards, Procedures and Public Appointments Committee clerks. Who else is a member meant to ask? Should he or she employ a Queen's counsel at vast expense? I do not think so. I do not think that many of us would feel obliged to do that or, for that matter, could afford to do that. I do not believe that justice has been done and that is why, during the committee sessions, I argued and voted against any sanctions on Ms Alexander. For the same reasons, I will vote against the motion set before us today.
Today's short debate has a lot of political mileage behind it, to say the least. In speaking for the Liberal Democrats, I say that this ought to be a parliamentary debate informed and motivated by judgment, a sense of proportion and individual consideration. I agree very much with many of the comments in that regard by Jamie McGrigor. However, my personal view is that there is a presumption of support for the committee report, provided that the reasoning is sound, and a presumption that the member is acting properly unless the reasoning to the contrary is sound.
Liberal Democrats have a free vote today, which is proper.
Will the member give way?
I am very sorry; not in a four-minute speech. We have a genuinely free vote, which is not the kind that leads miraculously to everyone in one party freely voting one way and everyone in the rival party freely voting the other.
I will say a brief word about my thoughts on the report. Much of it raises no contention, as has been said. It is agreed that Wendy Alexander received donations to her leadership campaign from several people and it is accepted that those donations were not registered in the register of interests in the time allowed. One of the defences is that they were not gifts because they were raised and received by the campaign team. The commissioner and the committee were entirely right to reject that argument, but I struggle to understand the committee's conclusion that the uncertainty that they say surrounded the interpretation of paragraph 6(1) of the schedule to the 2006 act is not something for which the member could be held responsible. If that is so, what is the offence?
The report then says that the circumstances gave the appearance of prejudice to a fair-minded and impartial observer. I am unhappy about that conclusion. The committee rightly held that the commissioner had made a judgment and not a finding of fact and I have struggled to find any evidence of the commissioner's basis for reaching that conclusion. The committee rightly considered and formed its own view, but apparently only on the basis of the size of the donations. I would have thought it necessary to consider all the background circumstances, which include the vital fact that all the donations came from known Labour Party supporters and donors. Would anyone really be surprised that the Labour Party's Advocate General for Scotland, or the appointee to general secretary of the Labour Party, or Mr Willie Haughey or GMB Scotland were among the donors? Would the non-registration of such donations really lead an informed member of the public to think that Wendy Alexander was prejudiced in her ability to take part in a disinterested manner in parliamentary proceedings? I am not entirely sure, but I tend to the view at present that the committee's reasoning is inadequate and flawed on that point in relation to most, if not all, the donors.
I do not accept the excuse about legal advice. We all know that the clerks can only advise and that the ultimate responsibility lies with us to satisfy ourselves. If in doubt, register. I do not accept, however, that that means that we should take separate legal advice. There is no doubt in my mind that Wendy Alexander would have been extremely wise to register the interests and avoid the problem.
Assuming that the chamber is satisfied—there are some question marks about that—that there was a breach of the rules, the registration issue carries a sense of being an afterthought. It is certainly a side product of the separate furore about the Electoral Commission and I suspect that it was also an afterthought by Wendy Alexander. The whole affair has contributed to her resignation as leader of the Labour Party. Some members take the view that pressing the matter to a conclusion has an aura of vindictiveness. On the other hand, Parliament and the public are entitled to expect full transparency in financial matters, but there is a case for drawing a line under this matter, which has produced so much grief for Wendy Alexander.
I offer my thoughts as impartially as I can manage and I intend to listen to the rest of the debate before deciding on my vote. I return to the point with which I began—it would be meet for members of the Parliament to rise to the occasion, to listen to the debate objectively and to try to form our own conclusions. If members have not even read the report, they should consider whether they ought to vote on the motion this evening.
As a member of the Standards, Procedures and Public Appointments Committee, I would like Parliament to know that I regret the way in which the matter has been handled. To allow a complaint to drag on for almost 10 months is unacceptable to the member involved, to the complainant and to the Parliament as a whole. The committee should not have needed to seek Parliament's approval to meet during chamber sitting times and the matter should have been concluded before Parliament rose for the summer recess.
I understand that this is the first time that a parliamentary committee's report on a complaint about a member has been published showing division. I regret that we find ourselves in that position; it does not reflect well on the standing of the committee. I was honoured to be asked by my group to serve on the Standards, Procedures and Public Appointments Committee. In previous parliamentary sessions, members of the Standards Committee served us and, through us, the people of Scotland well. Previous committees also had difficult and detailed complaints to deal with, but they were able to show fairness and impartiality while always taking a non-partisan approach. I am not confident that the current committee has achieved that same high standard in all aspects of the report.
I will spend my remaining speaking time discussing a few facts of the case. It is a fact that in the past Wendy Alexander registered personal donations or gifts made directly to her in the register of members' interests. In relation to the donations made to the Wendy Alexander election campaign, it is a fact that the member did not register donations made to that campaign fund on the parliamentary register prior to February 2008. It is a fact that she did not register the donations because she did not receive the money personally and had no access to the bank account therefore could not spend the money. In her opinion, the donations were not gifts to her.
The committee had evidence to show that Ms Alexander had diligently registered gifts in the past. That showed me that she was well apprised of parliamentary rules on the matter. It is a fact that when questions were raised she took advice from the parliamentary clerks, who in turn took advice from parliamentary lawyers. The advice—another fact that is not disputed—confirmed that Wendy Alexander did not require to register the donations as gifts or election expenses. That was very clear legal guidance that concurred with the opinion and advice on which members are entitled to rely.
A complaint was lodged asking the standards commissioner to investigate a failure to declare and as soon as he said that in his view the donations were registrable, the member took action to register the donations in the appropriate register. We know that the standards commissioner reported the matter to the procurator fiscal at the appropriate time. The procurator fiscal, acting in the public interest, looked at the case, but took no legal action against the member because there was uncertainty and because the member had sought advice from our parliamentary clerks.
In his report, the standards commissioner advised that he could not take mitigating circumstances into account—the clerks' conclusion could not affect his conclusion about a breach according to his independent judgment. However, we as a committee could take those factors into account and members accepted that the clerks' advice was unambiguous. In paragraph 90 of the committee report, the committee also accepted that the member could not be held responsible for the uncertainty surrounding the interpretation. The whole committee accepted those facts, but some members still felt that sanctions should be imposed on the member.
During questioning at the committee stage, parliamentary lawyers confirmed to the committee, in response to a question by Jamie McGrigor, that they would give the same advice again. In light of that, I can conclude only that some members of the committee were not open-minded in this case and were not prepared to consider all the facts. Therefore, I could not support the imposition of sanctions. I ask that members consider all the facts when voting tonight, err on the side of fairness and justice and reject the committee recommendations and report.
This was a difficult and complicated complaint to deal with, but I believe that the Standards, Procedures and Public Appointments Committee handled it fairly and quickly.
It came to its decision at the end of June; it did not take the committee 10 months to deal with the case. Cathie Craigie well knows that the clerks received the report from the standards commissioner only on 9 June. It was placed before the committee on 19 June and the committee concluded its deliberations just seven days later on 26 June. The commissioner may have taken longer, but the committee certainly did not.
The committee, in fact, completed its final report one week after that, on 4 July, which was just over three weeks after the complaint was received. Therefore, accusations that the Standards, Procedures and Public Appointments Committee dragged the matter out are nonsense. Jamie McGrigor's accusations of filibustering are a scandal. The only ones who delayed things were the Labour members, who refused to accept reality and the facts before them.
On Jamie McGrigor's comments, will Dave Thompson confirm what is in paragraph 62 of the report, which is that Jamie McGrigor agreed in committee with the commissioner and the majority of the committee that Wendy Alexander was in breach of the 2006 act, and that where he disagreed was on the sanctions? There is no doubt, according to paragraph 62, that he agreed that Wendy Alexander was in breach.
Jamie McGrigor certainly voted with the four other members of the committee that a breach had occurred. His tone has changed; he has been got at. He has allowed partisan party politics to get in the way of the truth. [Interruption.]
Order, order.
I can honestly say that I approached this complaint in exactly the same way as I have approached all other complaints: in confidence, with an open mind and a willingness to make a judgment on the facts. The committee's deliberations were not helped, by the way, by speculation in the media, which could have come only from someone in the know. I was angry and upset that the finger of accusation was pointed at the committee, including me, because of the actions of probably one individual. I do not know who they were.
On a point of order, Presiding Officer. I distinctly heard Mr Thompson say that Jamie McGrigor had been "got at". In other places—I know that some people do not like me quoting other places—that would be considered unparliamentary and an unwarranted slur on the character of Jamie McGrigor. I ask you in all seriousness, Presiding Officer, to ask Mr Thompson to do a very small thing: to withdraw that slur against the character of Jamie McGrigor.
I take that seriously, Mr Foulkes. Thank you for it. I am not happy with the terminology, but I am also clear that Mr Thompson has not broken any of the parliamentary rules in using that particular terminology. However, I think that he wants to think very carefully before he continues along that line.
What I think all members need to remember when considering this report is that the facts are not in dispute. The committee's report was based on a report by the independent standards commissioner, which was backed up by a QC's opinion. I will not go into the detail of our deliberations, but I will say that we looked long and hard at the issues, and came to—
Thirty seconds, Mr Thompson.
Thirty seconds—oh, goodness. That is what happens when you take too many interventions, is it not?
When it came to the sanctions, I believed that there were mitigating circumstances, including the fact that the member had asked the Standards, Procedures and Public Appointments Committee clerks for advice, albeit well after the deadline for registration of the gifts. The member stated in her letter to the committee that she had registered much smaller voluntary donations in the past, which begged the question why she did not register these donations.
If the Parliament does not support the committee's recommendation, it will give out a clear message that failure to disclose thousands of pounds of donations warrants nothing more than a slap on the wrist. It will encourage avoidance of the rules and show that this Parliament supports one law for the desperate drug addicts and another for the privileged politician.
I want to make two things clear before I start. First, neither this case nor its handling has done Parliament much credit—there should be no place in this debate for personal accusations or for self-satisfied expressions on anyone's face. Secondly, like other members, I am not speaking on behalf of my party. There is a range of views in my party, so these will be personal comments.
We have in the past accepted internal disciplinary processes. We have unanimously appointed members to run those internal processes and have given them our trust to do that fairly. We have also in the past unanimously supported disciplinary recommendations that were far more severe than what is being proposed today. For that system to have any legitimacy, we must recognise that we are a Parliament—a political institution. We need to be realistic about that.
We also need to be clear about whether we have confidence and trust in the people whom we appoint to do the job. I am not aware that any member has proposed that there be a motion to remove members from the Standards, Procedures and Public Appointments Committee, so I infer from that that we have continued trust in the members who currently serve us in that way.
I am not aware of any new substantive argument that was not available to the committee when it made its decision or debated the issue. Given that, I do not at the moment see any clear reason that is sufficient to overturn the recommendation. I take no pleasure in saying that, any more than I did when we imposed more serious sanctions in the past.
Does Patrick Harvie take into account that the committee's decision was not consensual but was a divided decision, which is extremely rare? In fact, it has never happened before.
I acknowledge that. Nevertheless, the recommendation has been made by the committee and we must debate it in those terms, as we do with any other recommendation from the political committees when there is a dissenting view.
I want to address a wider issue before I finish. In the regulation of political life, we have created many layers of process and machinery, and of legislation and rules, not just in Scotland but throughout the United Kingdom. We have the Representation of the People Act 2000, the Political Parties, Elections and Referendums Act 2000, the Ethical Standards in Public Life etc (Scotland) Act 2000 and the Freedom of Information Act 2000. We also have the Electoral Commission, the Committee on Standards in Public Life, the Scottish Parliament Standards, Procedures and Public Appointments Committee, the parliamentary standards commissioner, the "Register of Interests of Members of the Scottish Parliament", the standing orders and the "Code of Conduct for Members of the Scottish Parliament". In addition, we have the rulings of our Presiding Officer. Through all those, we have robust and rigorous layers of media and public scrutiny.
Why have we got all those? It is because we, or our predecessors, put them all in place, largely with a view to restoring or building public trust in the system. It is blindingly obvious that that has failed—we have ended up with a system that is so complex that it must be hard for anybody to spend more than a few years in this job without making an error and having it exposed in the media, which often misrepresents the matter.
We sometimes say of industries that they need not more but better regulation. What we have done with ourselves is just pile ever more regulation into the system and make it unmanageably complex. There must be a longer-term look at that. That said, I believe that for the Parliament to overturn the committee's recommendation today would do further damage to public trust in the system that we have in place. For that reason, and that reason alone, I will support the committee's recommendation.
This debate is unwelcome, unnecessary and unfortunate. Once more, the standards system that the Parliament introduced to protect the public, preserve trust in the institution and help to maintain MSPs' integrity has been used to undermine those goals. A nasty and politically motivated campaign has culminated in a split committee and a partisan report.
The Standards, Procedures and Public Appointments Committee split four to three on whether to uphold the complaint and impose sanctions. That is the first time we have ever had anything other than a unanimous recommendation from the committee or its predecessors on how to deal with a complaint against an individual member. In case anyone was in any doubt, I checked the files and went through every report: they have all been unanimous until now.
I was on the Standards Committee and the Standards and Public Appointments Committee for several years, so I know the determination with which members from all parties tried to reach agreement on such cases, which are the most difficult of matters. Our first duty is to protect the public and the reputation of the Scottish Parliament itself, but it is also important that the standards system is not politically abused. We are all damaged when any member's integrity is called into question, and any supposed short-term political advantage that is to be had from trying to bring a member down is hugely outweighed by the long-term damage that is inflicted on all elected politicians in the corrosively cynical world in which we live.
I have read the committee's report. I must admit that I had to reread it to understand what Wendy Alexander was found to have done wrong and why the committee made what I regard to be a severe recommendation on sanctions. I do not accept the fundamental argument that she should have made a declaration on the parliamentary register, because we all have to separate our parliamentary and political work.
The Political Parties, Elections and Referendums Act 2000 exists to regulate the conduct of political parties and elections. From my time on the Standards and Public Appointments Committee, I remember discussions that led to the Interests of Members of the Scottish Parliament Act 2006, which established the register of interests. The committee wanted to keep the two systems as distinct as possible and recognised that having two systems with different disclosure thresholds could lead to confusion and may hinder transparency. Any actual or possible need for overlap was flagged up clearly. One such example is the requirement to disclose any individual donor who contributes more than 25 per cent of an MSP's election expenses.
However, neither I nor even Ms Alexander was alone in regarding the disclosure rules in that light: no previous leadership election had used the parliamentary system to register donations, so it is clear that most members felt similarly. More important is the fact that the clerks to the committee did not believe that the donation should be registered. They, in turn, took advice from the Parliament's lawyers, who confirmed that there should be no registration and, therefore, that there was no breach of any code.
Will Ken Macintosh give way?
I am sorry, but there is not enough time in the debate.
Given the media speculation over the matter, Wendy Alexander sensibly took further legal advice, which again confirmed the widely held view that no declaration was needed. Even the standards commissioner was not sure either way when he first looked at the case. He took advice—for the first time, as we all now know—and was offered a different opinion but, even after that, when the matter was referred to the Crown, the procurator fiscal said that it was a matter of some ambiguity.
I do not accept that the leadership donation should have been declared but, if one does, it should at least be regarded as a late declaration. Some members of the committee seem to believe that the breaking of the 30-day rule deserves suspension; some of us are more aware of human frailty and the oversights that we can make. I had a cursory look at two of the 10 or so volumes of the register of members' interests and found half a dozen late registrations that broke the 30-day rule by Andrew Welsh, Michael Matheson, Fergus Ewing, Linda Fabiani and Bruce Crawford. For clarity, I say that I hold those members in the highest regard and believe them to be members of integrity. However, I also believe that we should regard late registration simply as a mistake and not as something to be punished by sanction.
Politics can get personal, but members of the Standards, Procedures and Public Appointments Committee need to exercise their judgment. Most members will be able to do what some members of the committee seem to find difficult, which is to put their party allegiance to one side and see the allegations for what they are: they are at best political mischief-making and, at worst, a despicable attack on someone who is trying to represent her constituents and party in public office.
I ask the Parliament to reject the divided and discredited report.
The Parliament is not sovereign and, therefore, must expedite its procedures according to the law of Scotland, its customs and practice. That means that, when Parliament sits in judgment on one of its members it must act and, most important—as Jamie McGrigor pointed out—it must be perceived to act as an impartial and unbiased tribunal. From the start, that principle was tainted in that the perception is that the complaint against Wendy Alexander originated from an SNP researcher who shared a common interest with, and a direct line of communication to, Wendy Alexander's political opponents on the committee.
In its report, the committee admits that there is ambiguity as to whether Ms Alexander contravened the Parliament's rules on the declaration of interests. Scots law dictates that the committee must, therefore, give the benefit of the doubt to the accused person and should dismiss the complaint against her. That much is crystal clear, so the committee should be thanked for its work and no further action should be taken on the complaint against Ms Alexander. We should be guided in the matter by the procurator fiscal.
However, the experience has shown us some unsatisfactory and disturbing aspects of our procedures. Those must be addressed. At the very least, an examination must be made of the standing of the legal advice that is given to members directly or via committee clerks. I feel sure that the Parliament can rely on you, Presiding Officer, to set that in train in the interests of clarity, fairness and, above all, public trust in the procedures and probity of the Scottish Parliament.
That thoughtful speech from Margo MacDonald should weigh heavily on many of our minds.
I have read the report. Like other members, I have also previously been found to have breached the code of conduct for members, but the Parliament placed no sanction on me. The members whom Ken Macintosh mentioned were found guilty of the same breach of the code of conduct and the 2006 act as Wendy Alexander, but no sanction was placed on them by the Parliament, the committee or any previous committee. If we now say that a member who is late with a registration by one week will be suspended from the Parliament, we are setting ourselves a very high standard and bar. Members need to reflect on that. That concerns timing. If we look closely at the 2006 act, we find that, for timing to come into play, there must first be a breach of the act.
There are three key paragraphs in the committee's report that deal with breach. A breach would have occurred if paragraph 6(1) of the schedule to the act required the member to register the donation. Paragraph 23 of the report states:
"The Committee agrees that paragraph 91 reflects the member's and the Commissioner's judgement as to whether the prejudice test is met, rather than being a statement of fact"—
a point that Robert Brown dealt with clearly in his speech.
At paragraph 16 of its report, the committee sets out why the Crown Office told the standards commissioner that a prosecution would not follow: there was a degree of ambiguity on whether paragraph 6(1) of the schedule had been breached.
Paragraph 90 of the report states:
"The Committee therefore accepted that the uncertainty surrounding the interpretation of paragraph 6(1) of the schedule … was not a matter for which the member could be held responsible."
If the committee accepts the finding in paragraph 90 that Wendy Alexander could not be held responsible for the ambiguity that surrounds paragraph 6(1) of the schedule, it follows that she could not be guilty of a breach of the code and timing does not come into play. Timing can come into play only when the code has been breached. Therefore, if the committee has accepted clearly in its report that the ambiguity around paragraph 6(1) of the schedule
"was not a matter for which the member could be held responsible",
it cannot say that she should still have registered the donation when she was not guilty of breaching the code in the first place. Committee members have condemned themselves by their own words and their partisan politics.
I was a member of the Standards Committee in session 1 and had to make difficult decisions. I hope that l laid my politics at the door. If we were to ask the former First Minister, Jack McConnell, whether Labour members of the Standards Committee in 1999 and 2000 dealt with him as well as any other members, I think that he would say that they did. As members of the Parliament, we have a responsibility to act above party politics.
If members thought that the campaign was not partisan and politically motivated, Christina McKelvie's speech this morning will have set that in context, as will the outrageous slur on the character of Jamie McGrigor, for whom I have the highest regard. I disagree with him politically, but to say that he has been got at outside the committee or the chamber is a disgrace, and the member who said that should be prepared to stand up in the chamber and say, "Sorry. I made a mistake in the heat of a debate and I take it back because the member came to the chamber and made his points in good faith."
I hope, Presiding Officer, that members will take the matter seriously, and that you will take seriously the points that have been made. The Parliament is bigger than any of us who sit in the chamber right now. The principles that we employ and put in train now are far more important than we who will be here until 2011: we are putting in place procedures and practices for the Parliament that should be beyond party politics. Unfortunately, what we are debating today and the manner in which it has been conducted are not beyond party politics. It draws this place down, does nothing for its reputation with the public, and does nothing to enhance the status of politicians or this place. We should reject the recommendation for all the reasons that members have outlined. I hope that Parliament will do exactly that at 5 o'clock.
It is with no pleasure at all that I stand up to speak today.
I must say first that the Scottish National Party members will absolutely have a free vote on this issue at 5 o'clock. There is no question whatsoever of there being any direction or recommendation, and I say that as the party's chief whip.
I thank Brian Adam for making that clear. I have sat through the entire debate and have not done so merely to pass the time. I have listened to the debate closely—it has been pretty unedifying. I am not prepared to vote against a committee report or to impugn people in the heat of the chamber. However, I make it clear that I am not content that the motion is not in two parts. Wendy Alexander has suffered enough personally and politically, so I make it plain to Parliament that I will abstain.
I thank Christine Grahame for making her personal position clear.
This is my personal position. I have listened carefully to the debate and I have looked at the report. At the start of her speech, Jackie Baillie quite properly suggested that we ought to deal with the matter robustly. However, we should also deal with it very carefully along the lines that Patrick Harvie described. We should not lightly dismiss the findings of our independent standards commissioner, although that is not to say that the standards commissioner will get it right on every occasion.
Will the member give way?
With respect to Miss MacDonald, I have already given way once.
The standards commissioner is not going to get it right on every occasion, so it is the Standards, Procedures and Public Appointments Committee's duty to challenge and explore all possibilities. As well as the standards commissioner not always getting it right, it is also true that the Standards, Procedures and Public Appointments Committee might not get it right, but we should not overturn lightly the recommendations of an independent standards commissioner and, indeed, the Standards, Procedures and Public Appointments Committee. On that, I agree with Patrick Harvie.
Advice was sought and given, but we have heard only part of the total content of that advice. It is extremely unusual to have any written advice. I have never come across it in the time I have been in the Parliament, and I served on the Standards Committee and the Standards and Public Appointments Committee for almost a whole session. I never came across written advice from the clerks, so I do not understand why it was given. However, on every occasion on which I was involved with the Standards Committee clerks, there was a rider that the member has a duty to make their own decisions.
Jackie Baillie called for a review of procedures. A couple of points were also made about timing and whether late registration ought to be considered to be sufficiently serious that it requires sanction. Ken Macintosh obviously has some personal experience of that—I fully sympathise. I served with him on the Standards Committee, to which he made a significant contribution. For an error in judgment that was not in any way prejudicial, he paid a particularly high price.
However, the distinction between this case and others of a similar nature that have been heard by the committee is that, in this case, there was no admission that a breach took place, however inadvertent it might have been. Now, we have the standards commissioner saying that there was a breach, and the committee saying so by a vote of five to two. Irrespective of the manner in which Jamie McGrigor put his case today, he voted in favour of there having been a breach.
We have a duty to consider the matter extremely carefully at 5 o'clock. It might well be that the 30-day rule—I think that I am using Ken Macintosh's words—trips members up, rather than it being the case that members make conscious and deliberate decisions to flout the law. That issue does not lie in our hands, as Margo MacDonald rightly pointed out. It is not a sovereign matter, but is under the control of the Scotland Act 1998. If that act is to be opened up, I suggest that members who have some influence might want to consider having the 30-day rule reviewed.
I believe that the Standards, Procedures and Public Appointments Committee and the standards commissioner considered the matter objectively. I resent the implications that any committee member dealt with it in a partisan way, and I certainly will support the standards commissioner and the Standards, Procedures and Public Appointments Committee in their recommendations at 5 o'clock.
Presiding Officer, as you and other members know, this speech will be my final one as a member of the Standards, Procedures and Public Appointments Committee. It would almost certainly have been so even prior to the portfolio reshuffle by my new leader, Tavish Scott, although having my fox shot quite so dramatically was a bit of a surprise. I guess that is the nature of new brooms.
I thank my committee colleagues across all parties for their support. I particularly thank the officials who have helped to guide me through some of the technicalities and sometimes difficult decisions that we have dealt with during the past 14 months or so.
On the issue at hand, it is almost inevitable that, given the profile of the member in question, such an emotive subject would become a party-political football. It is even more understandable because of the original source of the complaint and the motivation behind it, as well as those who are allegedly behind some subsequent complaints. Those people should reflect on that if, indeed, they have any kind of moral conscience beyond party-political advantage.
We who are privileged to be elected here serve our country and the Parliament ill if we encourage the use of our standards process for low political ends—we merely confirm the perception that we are venal and self-serving. Equally, if we seek to circumvent the legitimate process of accountability and transparency simply to protect the identities of donors, we are equally guilty of cheap political sleight of hand that deserves to be exposed and, if it is against the rules of the law, we deserve to be penalised appropriately. I know that the committee will revisit some of the issues that have been raised by other members; indeed, it had already agreed to do so.
For me, there is no doubt that Wendy Alexander, like any one of us in similar circumstances, is culpable and responsible for the breach. Notwithstanding the somewhat unworthy—
Will the member take an intervention?
No, I will not; I am sorry.
Explain paragraph 90.
Notwithstanding some fairly unworthy attempts to blame officials or to play semantic games with the meanings of words such as "gift" and "benefit", I would like to hear anyone argue successfully against a speeding ticket on the ground that a policeman they spoke to suggested that it might be okay.
Explain paragraph 90.
Order.
The only situation in which that would be an acceptable argument would be if it were used as a plea in mitigation.
Will the member take an intervention?
I have already said no.
The committee took full account of mitigation in the judgment that it made.
On a point of order, Presiding Officer. Will you be good enough to confirm whether the member is winding up on behalf of the committee and dealing with points that have been made in the debate, or whether he is introducing new items that members will not have an opportunity to discuss?
Mr O'Donnell is winding up on behalf of the committee but, in doing so, he is quite entitled to refer to points that have been made during the debate.
Mr O'Donnell, you now have less than two minutes left.
I suggest that every member should read the full report; I very much doubt that everyone has. It was through reading the full report, following the chronology of events and listening to the evidence that I came to my conclusions.
That said, blame—although not responsibility—for the entire situation goes much wider than the member in question. Those who came up with the cunning plan—which even Baldrick would have been embarrassed to propose—to keep Wendy away from the money should perhaps look at their own behaviour and consider to what extent they are at fault for the situation that emerged. Of course, all those considerations relate to how we fund political parties across the UK.
In conclusion, for my part, I base my views of the case on the evidence as I saw it, rightly or wrongly. If they have not already done so, members will draw their own conclusions about the whole sorry saga and some may even get the chance to vote accordingly. I support the committee's report and its recommendations, and I ask other members to vote accordingly.