Public Appointments and Public Bodies etc (Scotland) Bill: Stage 3
We come now to stage 3 proceedings on the Public Appointments and Public Bodies etc (Scotland) Bill. I am looking for the Deputy Presiding Officer. I will read out the preliminary announcements while we find him.
The bill is Scottish Parliament bill 56A, as amended at stage 2. Members should have the marshalled list, containing all the selected amendments, and the groupings. There will be an extended voting period of two minutes for the first division following the debate on the first group of amendments, but thereafter in each group whoever is in the chair will allow a period of one minute for the first amendment of the group. All other divisions after that will be 30 seconds. I will now hand over to Mr George Reid.
Section 2—The Commissioner's functions
Group 1 is on the preparation of the code of practice. Amendment 3 is grouped with amendment 8. I call Mr Neil to move amendment 3 and to speak to amendments 3 and 8.
I will speak to amendment 3 instead of Alex Neil. I am sorry about the confusion; I did not press my request-to-speak button in time.
Amendment 3 pertains to the preparation of the code of practice and would require a draft code to be laid before the Parliament. The amendment would ensure that the Parliament was aware of and approved the code of practice before it was published, which would ensure transparency and parliamentary scrutiny.
I move amendment 3.
There is a buzz in the chamber. I would be most grateful if members could keep the noise down.
Amendments 3 and 8 relate to the preparation by the commissioner for public appointments in Scotland of the code of practice. I cannot support amendment 3, for the reasons why I could not support a similar amendment that the Local Government Committee rejected at stage 2.
At stage 2, I outlined the sort of person whom I expect to be appointed as commissioner and it is worth while repeating that to set the context for the debate. It must be remembered that the commissioner is likely to have considerable experience in public life in Scotland and to be someone who has standing, integrity, objectivity and sound judgment—he or she will be rigorous and scrupulously fair. The commissioner will be appointed by the Queen on the recommendation of the whole Parliament. No person without the qualities that I described—and many more—would be likely to receive Parliament's approval.
Parliament will not be appointing an office junior who needs explicit instructions on how to order their work on their first day in office. The bill provides some basic rules, but allows flexibility in the code's interpretation, because of the diversity of organisations that the code covers and the diversity of appointment circumstances. That is important.
Almost everybody recognises and accepts that the commissioner's independence is paramount to his or her effective function—it is the cornerstone of retaining public confidence in the regulation system. Requiring the commissioner to lay the code of practice before the Parliament for approval would undermine that independence. Amendment 3 would extend Parliament's role significantly beyond what the Executive and the Local Government Committee in its stage 1 report believed to be appropriate.
As part of the process that we are establishing today, the commissioner will be required to consult extensively Scottish ministers, the Parliament and the public in drawing up the code. Parliament will be able to express its view on the draft code clearly and unambiguously. However, it is essential that the commissioner should retain the right to the final say over the code's content. That will be crucial to enable him or her to act independently of Parliament and to exercise discretion in considering breaches of the code.
To have the code approved by the Parliament would mean that the commissioner could, in effect, be directed in the exercise of his or her functions. It would also mean that the politicians whom the code will govern could have undue influence over its content, which would leave them open to the charge that they are trying to limit its scope. The code requires to be, and be seen to be, independent of those politicians.
Having the code approved by Parliament would also leave scope for any unscrupulous political party to seek deliberately to divide the Parliament on the issues, solely for the purpose of subsequently criticising the code, decisions under it and so the public appointments system. That would be highly damaging.
Executive amendment 8 relates to consultation of the public on the commissioner's code of practice. The amendment meets the broad intention of Sandra White's stage 2 amendment 42. There is undoubtedly merit in the commissioner's consulting the public. Public consultation will underline the principles of openness and accountability that are vital to the commissioner's role and will contribute to public confidence in and awareness of the commissioner's role. The gathering of views from as wide a range of people as possible will make the code of practice a more effective tool. As I said, the commissioner will retain the final say on the code of practice as a vital part of his or her role as an independent arbiter, but extensive consultation will be an important part of his or her methodology for developing the code.
I invite Sandra White to withdraw amendment 3.
Amendment 3 should be rejected, because the important aspect of the bill is its intention to provide the correct balance between an independent commissioner and parliamentary scrutiny and accountability. Following amendment at stage 2, the bill gets that balance right. It allows the commissioner to go about his or her work free from political interference—whether from the Executive or the Parliament—but it provides the backstop that, if the Executive ultimately fails to act in accordance with the code, the Parliament can intervene.
That is the right balance: it is the balance that we seek to achieve in the public appointments part of the bill. To require the Parliament to approve the code of practice would be to undermine the important independence of the commissioner.
I urge the Parliament to reject amendment 3
I rise to speak in support of amendment 3—members will expect me to do so.
The arguments that were put forward by the minister do not stand up. The Scottish Parliament has appointed a Scottish parliamentary standards commissioner and it is also responsible for approving the code of conduct for MSPs. It seems entirely reasonable that the Parliament should have a say on a draft code of practice, which should meet with the approval of the Parliament. I ask the chamber to support amendment 3.
The SNP will support amendment 8. As the minister said, it reflects an amendment that Sandra White lodged at stage 2.
The question is, that amendment 3 be agreed to. Are we agreed?
No.
There will be a division.
For
Adam, Brian (North-East Scotland) (SNP)
Campbell, Colin (West of Scotland) (SNP)
Canavan, Dennis (Falkirk West)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
Gibson, Mr Kenneth (Glasgow) (SNP)
Hamilton, Mr Duncan (Highlands and Islands) (SNP)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Mr Adam (South of Scotland) (SNP)
Lochhead, Richard (North-East Scotland) (SNP)
MacAskill, Mr Kenny (Lothians) (SNP)
MacDonald, Margo (Lothians) (Ind)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
McGugan, Irene (North-East Scotland) (SNP)
McLeod, Fiona (West of Scotland) (SNP)
Neil, Alex (Central Scotland) (SNP)
Paterson, Mr Gil (Central Scotland) (SNP)
Robison, Shona (North-East Scotland) (SNP)
Russell, Michael (South of Scotland) (SNP)
Sheridan, Tommy (Glasgow) (SSP)
Sturgeon, Nicola (Glasgow) (SNP)
Swinney, Mr John (North Tayside) (SNP)
Welsh, Mr Andrew (Angus) (SNP)
White, Ms Sandra (Glasgow) (SNP)
Against
Aitken, Bill (Glasgow) (Con)
Alexander, Ms Wendy (Paisley North) (Lab)
Baillie, Jackie (Dumbarton) (Lab)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brown, Robert (Glasgow) (LD)
Butler, Bill (Glasgow Anniesland) (Lab)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Davidson, Mr David (North-East Scotland) (Con)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Douglas-Hamilton, Lord James (Lothians) (Con)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Fitzpatrick, Brian (Strathkelvin and Bearsden) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Gillon, Karen (Clydesdale) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Harding, Mr Keith (Mid Scotland and Fife) (Con)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, Mr John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Jenkins, Ian (Tweeddale, Ettrick and Lauderdale) (LD)
Johnstone, Alex (North-East Scotland) (Con)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lyon, George (Argyll and Bute) (LD)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
MacKay, Angus (Edinburgh South) (Lab)
Maclean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McIntosh, Mrs Lyndsay (Central Scotland) (Con)
McLeish, Henry (Central Fife) (Lab)
McLetchie, David (Lothians) (Con)
McMahon, Mr Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Monteith, Mr Brian (Mid Scotland and Fife) (Con)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Oldfather, Irene (Cunninghame South) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Radcliffe, Nora (Gordon) (LD)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Rumbles, Mr Mike (West Aberdeenshire and Kincardine) (LD)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Scott, Tavish (Shetland) (LD)
Simpson, Dr Richard (Ochil) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North-East Fife) (LD)
Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) (LD)
Thomson, Elaine (Aberdeen North) (Lab)
Tosh, Mr Murray (South of Scotland) (Con)
Wallace, Mr Jim (Orkney) (LD)
Watson, Mike (Glasgow Cathcart) (Lab)
Young, John (West of Scotland) (Con)
The result of the division is: For 25, Against 76, Abstentions 0.
Amendment 3 disagreed to.
We move to group 2, on matters to be covered in the code of practice. Amendment 5 is in a group on its own.
As members know, the bill transfers the functions that are carried out at present by Dame Rennie Fritchie, the United Kingdom commissioner for public appointments, to a new Scottish commissioner. In doing so, we should consider the problems that Dame Rennie has faced in the past in trying to achieve her objectives. We need to go way back to the days of the Nolan committee and the Neil committee to consider the first principles of what we are trying to achieve in the bill, which is a public appointments system that is not only transparent but also fair in every respect. The system has to be fair to the applicant as well as to others.
One of the problems that Dame Rennie has faced is that she has no power to veto an appointment or a proposed appointment on the ground of political imbalance. In answers that have been given by ministers ever since the Scottish Parliament was established, and despite all the protestations the length and breadth of Scotland—
Will the member give way?
I will do so in a moment.
Those protestations have been made in civic society as well as in the Parliament. No matter what period is examined, the figures show that anything between 60 per cent and 80 per cent of all appointees who declare a political affiliation came from one party, namely the Labour party.
I cannot believe that 60 per cent of the talent in Scotland votes Labour when Labour scores less than 40 per cent in any election. There are even some Liberal Democrats with talent out there who could fill some positions. [Members: "No."] That is debatable.
The purpose of the amendment is to fill the gap in relation to the new commissioner's powers that Dame Rennie currently has.
Will the member define what he means by political imbalance, although I think that he has given his interpretation? Does he agree that we want a public appointments system to operate on merit, and not with any political emphasis?
That is precisely the point. I do not believe that all merit belongs to one party. We have many talents in Scotland, and every other party is grossly under-represented in the appointments systems. We are trying to ensure that the code of practice—the detail of the bill's implementation—will not be used and abused by the Liberal Democrat-supported Labour Executive to maintain the system of cronyism that it has practised in Scotland for years.
The member has talked about the political imbalance in some public bodies. In view of that, does he think that all applicants for public posts should publicly declare the name of any political party of which they have been a member?
At present, people must do that when they register; they must declare their political activity. I am trying to build that into the code of practice.
The point that I am making is that applicants do not have to declare that aspect.
That is why the law needs to be strengthened and why the amendment should be built into the code of practice so that, through secondary legislation, the Executive does not do the dirty on the Parliament by maintaining a system of cronyism by the back door.
The bill was supposed to be about the new politics, and about cleaning up Scotland. Part of cleaning up Scotland is to get rid of Labour cronyism once and for all.
I move amendment 5.
I can see that Alex Neil is on a subject that he enjoys. I enjoy the subject too.
A similar amendment was rejected by the Local Government Committee at stage 2. The committee rejected it and associated amendments because they were muddled, wrong in principle and impractical.
On the face of it, the amendment is designed to ensure that political activity, including donations to political parties, are known about before a selection takes place. However, it is not clear how that information would be used. Would it be ignored, or used in a particular way? If it were to be ignored, because political affiliations and political activities should not be a consideration in appointments, what precisely is the purpose of the amendment? If the information is to be used, how will it be used?
As I said, the amendment is muddled. Far from ensuring that political activities and affiliations have no place in the selection of candidates for public appointments, the amendment would have the effect of putting such matters at the heart of the selection process. Someone less charitable than I might say that such politicisation of the process is precisely Alex Neil's intention.
I know that Alex's paranoia about the Labour party sometimes takes him into territory which even he in his more rational moments must have doubts about. He has peddled another myth this afternoon. He knows very well that less than 10 per cent of all public appointees are people who have been active in the Labour party, just as no other political party accounts for more than 10 per cent of public appointees.
It would also be inappropriate at this time for the bill to prescribe in such detail what the code of practice should contain. Ministers, the Parliament and the public will be consulted on the code of practice and will contribute directly to what is specified therein. As the commissioner will make the final decision on the content of the code of practice, we should not prejudge it here.
In any event, the bill already provides the necessary safeguards to ensure that political activity is not a consideration in the appointments process. Section 2(9)(a) states that the commissioner is to exercise his or her functions with a view to ensuring that
"appointments … to the specified authorities are made fairly and openly".
That is a specific provision, which has been carefully drafted to capture all the requirements that will ensure that appointments are made on merit.
If appointments are not made fairly and openly, they cannot, by definition, be on merit. Therefore, it should go without saying that for an appointment to be made fairly and openly, political activity cannot, should not and must not be a consideration in the appointments process.
Under the current system, applicants are asked whether they have been politically active only to enable the monitoring of political activity of candidates in so far as it is already in the public domain. Amendment 5 asks that all political activity be declared. That is simply impractical. As I said to the committee when dealing with the amendment at stage 2, I suspect that no one in the chamber could recount to me all the political activity that they undertook in a three-month period four years ago, let alone absolutely all such activity in a five-year period.
Further, to establish, in effect, new law on political donations, as the amendment would do, by requiring that every financial donation be declared, is potentially beyond the powers of the Parliament. A financial donation is not defined and there is no de minimis amount. Would a £1 raffle ticket purchased from a local branch of a political party count or not? What happens if someone forgets to declare such an innocent action and that later becomes known, or they forget a particular bit of political activity that was undertaken during a five-year active political period?
Under other amendments lodged by the SNP, any of those breaches would become breaches of the code and would have to be reported to Parliament. Again, the practicalities of that are not only ludicrous, but potentially damaging to the public appointments process.
The amendment is also unnecessary. The UK commissioner's code details in an entirely sensible way the definition of political activity, including a recordable donation to a political party as defined by the Political Parties, Elections and Referendums Act 2000, and asks the applicant to tick the appropriate box. I fully expect the Scottish code to cover similar ground. In any event, we will be invited to have our say on its content and we can deal with the matter then.
Amendment 5 is muddled, wrong in principle and impractical. Worse still, it has a McCarthyite tone and intent about it. It is linked to other amendments on reporting to Parliament that the SNP has lodged. It is the witch hunter's amendment. It is the show-trial amendment. It follows on from the disgraceful behaviour we witnessed in the chamber just a few weeks ago on the freedom of information commissioner appointment, when the SNP sought purposefully to politicise the appointments process.
Amendment 5 is specifically designed to pave the way for show trial after show trial in Parliament. It takes us into dangerous and unnecessary territory—unnecessary because the bill already provides for all the necessary safeguards. Accordingly, I invite Alex Neil to withdraw amendment 5 or Parliament roundly to reject it.
Since stage 2, I have reflected on the amendment and I am disappointed that the Executive is not prepared to take it on board. I believe that it would lead to greater transparency and fairness and should cause no concern to anyone unless they have something to hide. I also believe that it would go some way to overcoming accusations of cronyism.
Not surprisingly, I could not agree less with Keith Harding. He has obviously not reflected sensibly on the amendment. The amendment proposes to do the opposite of what the bill intends. The bill intends to depoliticise the appointments process. It intends to ensure that every appointment to a public body in Scotland is made on merit and merit alone. The amendment proposes that, even before someone is appointed, they must declare political affiliation. That is the opposite way round. If someone declares their political affiliation, the people involved in the appointments process will know their political affiliation and it might influence their decisions. That does not make sense.
If the present system is so fair and transparent, can Iain Smith explain why between 60 per cent and 80 per cent of all applicants who declare a political affiliation come from one political party?
If the present system were so fair and transparent, we would not be amending it through the bill, would we? That is the point of the bill—we are changing the system. We are bringing in an independent commissioner to monitor the system. The SNP keeps bandying about figures about the number of political appointments. SNP members must bear in mind the fact that political appointments make up a small proportion of the total number of appointments. SNP members keep bandying about figures as if, somehow, a huge number of political—
Will the member take an intervention?
Not at the moment; I am finishing a point.
The SNP talks about a huge number of people from one party being appointed, but the vast majority of people appointed to public bodies are not affiliated to any political party. Let us get real about that and be honest about it.
I am obliged to Mr Smith for giving way. I listened with interest to his argument. Does he not realise that no fewer than three of the five people recently appointed to the Gaelic board of Scotland declared political affiliation to the Labour party? That is an example of what is wrong with the current system.
The first question to ask is who applied. It is unlikely that any Conservatives applied to that body. The affiliation is declared after the candidates have been considered on merit. The whole purpose of the bill is to ensure—
The member asked who applied for Bòrd Gàidhlig na h-Alba. I can tell him.
Sit down, Mr Russell.
Order.
Amendment 5 says the opposite of what the SNP said in one of its amendments at stage 2. An amendment that was submitted in Sandra White's name and which had Alex Neil's support said that the code of practice should
"set out the policies and procedures to be adopted to ensure that the political affiliation, or perceived political affiliation, of any applicant for an appointment mentioned in subsection (1) is not taken into account in any decision to appoint or not to appoint the applicant."
How can that be ensured if the applicants are required to declare their political affiliation right at the start of the process, before any politician is involved? The initial part of the process will go through officials and the observer who is appointed by the commissioner. Amendment 5 does not represent the right way of going about the process.
Amendment 5 should be rejected not only because it is ill conceived and politically motivated, but because it is wrong to single out in the bill one particular aspect for inclusion in the code. Nothing else about what will be in the code appears in the bill, so there is no reason to include the aspect in question.
I suggest that members should reject amendment 5, as it is ill conceived, politically motivated and runs counter to the whole purpose of the bill.
Once again, Iain Smith has the wrong end of the stick—if it is allowable to say such things in the Parliament.
I support amendment 5 for the simple reason that it seeks to protect the integrity of the applicant and of the Parliament. Its purpose does not come from McCarthyism or Blairism—which I would expect from Labour members. It would protect the integrity of the applicant and of the Parliament.
I have the authority to say to Iain Smith that one of the applicants for the job on the Gaelic board was Professor Kenneth MacKinnon, who is the leading Gaelic language planner in Scotland and a former member of the ministerial advisory group on Gaelic. He was not appointed—but he does not carry a Labour party card. That is why he was not appointed.
I find the defence of Mr Peacock's poodle amazing. Amendment 5 is not an example of McCarthyism. Labour party members are the mafiosi in Scotland. They use their networks—
Will the member take an intervention?
No. The member would not take an intervention from Mike Russell, so I will not take one from him. If Mr Smith sits down and listens, he will learn.
I will go through some of the points that the minister made, every one of which was nonsense.
First he said that all appointments are made on merit. Why do the vast bulk of appointments go to Labour cronies? Mr Peacock said that less than 10 per cent of appointees declared a political affiliation. The latest figures show that nearly 20 per cent declare a political affiliation. He also asked how political activity could be defined. It could be defined in the code of practice. On the issue of how to define donations, the minister mentioned the legal definition of donations that already exists, which could be incorporated into the code of practice. It is total nonsense to hide behind the argument, "That cannae be done."
When we appointed a standards commissioner, we agreed that the Parliament would approve the code of conduct that the commissioner drafted. The minister said that the Executive will consult on the code of conduct. Consultation is fine, but what happens if the Executive does not agree with the consultees and writes its own code of practice, giving the democratically elected MSPs no say in the matter?
It has been said that the process will be politicised. How can it be claimed that the process is not politicised when 60 per cent of the members of one board carry one party card, another 20 per cent carry another Executive party card and the remaining 20 per cent are non-aligned and do not carry any card? It has been said that the process is not politicised, but that is absolute nonsense.
What is the difference between amendment 5, on people who have engaged in political activity, and the minister's amendment, on voting members of the House of Lords? Why is it justifiable—quite rightly—to incorporate that amendment into the bill, but not the provision that I propose?
The reality is that the Labour party wants to run Scotland with its wee clique of bullies and does not want the system to be opened up. I am reminded of the old council housing system whereby the Labour party used the allocation of council houses to keep its political grip on Scotland; now, it uses the quango system to maintain its grip. I say to the Scottish Parliament and especially to those who call themselves Liberals that the system should be opened up and made democratic, and an end should be put to the mafiosi of the central Scotland Labour party.
The question is, that amendment 5 be agreed to. Are we agreed?
No.
There will be a division.
For
Adam, Brian (North-East Scotland) (SNP)
Aitken, Bill (Glasgow) (Con)
Campbell, Colin (West of Scotland) (SNP)
Canavan, Dennis (Falkirk West)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Davidson, Mr David (North-East Scotland) (Con)
Douglas-Hamilton, Lord James (Lothians) (Con)
Fabiani, Linda (Central Scotland) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Gibson, Mr Kenneth (Glasgow) (SNP)
Goldie, Miss Annabel (West of Scotland) (Con)
Grahame, Christine (South of Scotland) (SNP)
Hamilton, Mr Duncan (Highlands and Islands) (SNP)
Harding, Mr Keith (Mid Scotland and Fife) (Con)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Mr Adam (South of Scotland) (SNP)
Johnstone, Alex (North-East Scotland) (Con)
Lochhead, Richard (North-East Scotland) (SNP)
MacAskill, Mr Kenny (Lothians) (SNP)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Matheson, Michael (Central Scotland) (SNP)
McIntosh, Mrs Lyndsay (Central Scotland) (Con)
McLeod, Fiona (West of Scotland) (SNP)
McLetchie, David (Lothians) (Con)
Monteith, Mr Brian (Mid Scotland and Fife) (Con)
Neil, Alex (Central Scotland) (SNP)
Paterson, Mr Gil (Central Scotland) (SNP)
Quinan, Mr Lloyd (West of Scotland) (SNP)
Robison, Shona (North-East Scotland) (SNP)
Russell, Michael (South of Scotland) (SNP)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Sheridan, Tommy (Glasgow) (SSP)
Sturgeon, Nicola (Glasgow) (SNP)
Swinney, Mr John (North Tayside) (SNP)
Tosh, Mr Murray (South of Scotland) (Con)
Welsh, Mr Andrew (Angus) (SNP)
White, Ms Sandra (Glasgow) (SNP)
Wilson, Andrew (Central Scotland) (SNP)
Young, John (West of Scotland) (Con)
Against
Alexander, Ms Wendy (Paisley North) (Lab)
Baillie, Jackie (Dumbarton) (Lab)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brown, Robert (Glasgow) (LD)
Butler, Bill (Glasgow Anniesland) (Lab)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Fitzpatrick, Brian (Strathkelvin and Bearsden) (Lab)
Gillon, Karen (Clydesdale) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Gray, Iain (Edinburgh Pentlands) (Lab)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, Mr John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Jenkins, Ian (Tweeddale, Ettrick and Lauderdale) (LD)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lyon, George (Argyll and Bute) (LD)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
MacKay, Angus (Edinburgh South) (Lab)
Maclean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McLeish, Henry (Central Fife) (Lab)
McMahon, Mr Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Oldfather, Irene (Cunninghame South) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Radcliffe, Nora (Gordon) (LD)
Raffan, Mr Keith (Mid Scotland and Fife) (LD)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Rumbles, Mr Mike (West Aberdeenshire and Kincardine) (LD)
Scott, Tavish (Shetland) (LD)
Simpson, Dr Richard (Ochil) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North-East Fife) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) (LD)
Thomson, Elaine (Aberdeen North) (Lab)
Wallace, Mr Jim (Orkney) (LD)
Watson, Mike (Glasgow Cathcart) (Lab)
Abstentions
Gorrie, Donald (Central Scotland) (LD)
MacDonald, Margo (Lothians) (Ind)
The Deputy Presiding Officer: The result of the division is: For 42, Against 64, Abstentions 2.
Amendment 5 disagreed to.
On a point of order, Presiding Officer. Given the sensitivity of the topic and the good will of members towards the amendment's intention to open up the process of public appointments, would it be possible for the Parliament to state at some point in the debate that it would like to have sight of the proposed code of conduct before it passes into law?
There is no mechanism for doing so, but the minister may or may not wish to comment on what you have said at some point in the proceedings.
Amendment 8 moved—[Peter Peacock]—and agreed to.
Amendment 6 is in a group on its own.
Amendment 6 concerns the investigation of complaints—we will now see which members are liberals and democrats and who believes in transparency.
The bill asks the commissioner to investigate complaints. All that amendment 6 seeks is that the complaints and the results of investigations be laid before Parliament so that MSPs can see why the complaints were lodged, whether they were upheld and why the commissioner upheld them or otherwise. It is a simple amendment, which opens the process up to scrutiny and makes it transparent. I ask all MSPs to support the amendment. If members do not support it, we will wonder whether the Parliament and certain MSPs have something to hide. The amendment is innocuous. The commissioner is being asked to consider evidence and come back with results. All that the amendment seeks is that the results of the investigations be laid before the Parliament so that MSPs can see them.
I move amendment 6.
Amendment 6 and section 2 should be considered in conjunction with the sections that follow, in particular sections 7 and 8. It is important to remember that, if as a result of a complaint the commissioner finds that there has been a breach of the code, sections 7 and 8 come into play. It is necessary to go through the process. When a complaint identifies a problem, the commissioner takes the matter up with ministers to try to get compliance with the code and if that fails there is the backstop of a report to the Parliament. That is a sensible and logical way forward.
The amendment would mean that any complaint, even if it is proved to be unfounded, must be reported to the Parliament. A malicious or frivolous complaint or a minor matter that has been resolved to the satisfaction of the complainant once the commissioner has looked into it would have to be reported to Parliament. That might discourage people from making complaints, as they might not want their complaint to be made public. They might want to raise a concern with the commissioner about their own application, but they might not want the public to know that they had applied for a job.
I will take the intervention in a moment. Although the material perhaps formed part of their complaint, the applicant might not wish it to become a public document, but anything that is laid before the Parliament automatically becomes a public document.
We must be careful when we are considering such matters. It is different from the situation with the Standards Committee, which investigates complaints against MSPs, who are public representatives; if complaints are laid against public representatives, MSPs and the public have the right to know that the matters are being fully investigated and made public. However, the bill deals with individual people who have a complaint. Those people want the matter to be investigated, but they do not necessarily want it to be in the public domain. We must be careful about forcing such information into the public domain. The commissioner has final discretion to investigate complaints and decide whether to lay the matter before Parliament. If the commissioner thinks that it is in the interests of the public and the complainant to lay it before the Parliament, I am sure that they will do that. Let us not fetter the discretion of the commissioner. That would perhaps result in fewer complaints being made than might otherwise be the case.
I will pick up the point that Margo MacDonald made, if I have understood her point correctly. Parliament will be consulted on the code. There will be a public consultation before the commissioner agrees the code.
The effect of amendment 6 would be to place a requirement on the commissioner to inform the Parliament of every complaint that had been brought to his or her attention—I stress that that requirement would apply to every complaint, however insubstantial an investigation might show it to be. Clearly, there would be no benefit to be gained or lessons to be learned by publishing details of insubstantial and trivial complaints.
However, I recognise the point that Sandra White has made and seeks to cover with amendment 6. In the next group of amendments I will move amendment 9, which will place an obligation on the commissioner to report serious or material breaches of the code to the Parliament before an appointment is confirmed. I will also give an indication of what is considered to be a material breach: that is, one that is likely to have a serious effect on the outcome of an appointments round.
I do not think that it will be worth while or beneficial to require in the bill that the commissioner publish the details of every complaint that is investigated down to the most trivial phone call or letter.
The Parliament has dealt with other public complaints mechanisms, in particular the role of the Scottish public services ombudsman. We have not sought to place the requirement contained in section 6 on that office, although complaints that are subject to formal investigation are published. The bill, in effect, provides for a similar approach to be taken by the commissioner.
As drafted, the bill will allow the commissioner to publish in his or her annual report the details and the findings of any complaint investigations that he or she considers might be in the public interest or have educational purposes. The current commissioner uses that facility. In recent times that has not always been comfortable for the Executive, but nonetheless it is important.
Additionally, the commissioner has major powers to intervene and to stop an appointment proceeding if he or she believes that any breach of the code has occurred or is likely to occur. That process already requires a report to Parliament. I hope that Sandra White will take into account the amendments on reporting to Parliament and recognise that amendment 6 is excessive, which is why I ask her to withdraw it.
I am pleased with what the minister says—I tried to illustrate the same points when I spoke to a similar amendment at stage 2. Iain Smith made the very point that I was going to raise about sections 7 and 8. I accept what the minister says and I look forward to the amendments that he mentioned being moved. I am pleased that he accepted the need for the bill to provide scrutiny and transparency and therefore I will withdraw amendment 6.
Amendment 6, by agreement, withdrawn.
Group 4 relates to non-compliance with the code of practice. Amendment 9 is grouped with amendments 1 and 10.
I will support amendment 1, in the name of Tricia Marwick, but only if amendment 9 is agreed to. It will be clear from what I say that I would not be able to support Tricia Marwick's amendment if it were to stand alone, as was the case with a similar amendment that was debated at stage 2.
The amendments in the group relate to the commissioner's role in reporting breaches of the code of practice to the Parliament—the so-called whistleblower role. There was an extensive debate on the issue at stage 2 relating to amendments that Tricia Marwick and Sandra White lodged. Although the intention of amendment 1 is similar to ours, its effect would be too broad.
Taken on its own, amendment 1 would result in repeated reporting to Parliament of minor breaches of the code. It is perfectly conceivable that minor technical breaches of the code will occur—such is human frailty—or that it will not technically be possible to resolve some breaches because a timeline has been breached, even though the effects of the breach can be known about and rectified.
It is not desirable that literally every breach, however minor, should be reported to Parliament because that would have a number of undesirable consequences. Most seriously, such a provision could have the unintended consequence of raising the threshold at which the commissioner chooses to get involved in a breach of the code.
At stage 2, I recognised that the Local Government Committee thought that we could go further than was set out in the bill, although I did not want to go as far as Tricia Marwick's amendment. I undertook to look for a suitable way of meeting the committee's concerns and, as a consequence, amendment 9 was lodged.
When taken together, amendments 9 and 1 will place an obligation on the commissioner to report breaches of the code to the Parliament, but will also give more guidance on when that course of action is appropriate. A report should be made only when a breach of the code is material—which means that it is serious enough to have an impact on the appropriateness of the outcome of the appointments round—when ministers have been informed of the breach, and when the breach is unlikely to be resolved within a reasonable time or remains unresolved for a reasonable time.
Amendment 10 is consequential on the other amendments. As the commissioner will have completed his consideration of the case if he has concluded that a report to the Parliament is necessary, the line that amendment 10 will remove is redundant.
The amendments have been carefully considered to retain an effective balance in the relationship between the commissioner and the Parliament. The commissioner will retain his or her independence as a regulator and will not be obliged to report each and every breach, many of which might be of a minor administrative nature. However, the commissioner will have a duty to report material breaches of the code to the Parliament. That is an effective sanction and a power that the United Kingdom commissioner does not have.
The Parliament can be assured that, if a material breach of the code occurs and the commissioner is unable to resolve it with the minister responsible for the appointments round, the Parliament will be informed.
I move amendment 9.
I thank the minister for accepting amendment 1 with the condition that amendment 9 is agreed to. The SNP will accept amendment 9 because it was never our wish that minor technical breaches of the code should be reported to the Parliament. The words "in a material regard", which amendment 9 will insert, will satisfy that point. It is important that amendment 1 should also be agreed to, because it will place a duty on the commissioner to report any material breach of the code to the Parliament. We believe that that is the right and proper thing to do and I welcome the minister's agreement with that.
I spoke on this issue in the stage 1 debate, as I thought that the policy behind the bill—as published at the time of the committee's report—was not the policy that the Parliament had already agreed to in the Scottish Parliamentary Standards Commissioner Act 2002. I am delighted that Tricia Marwick and the Executive have lodged these amendments, which need to be supported.
Amendment 1 was numbered as the very first amendment because it was obvious at the time that it was not consistent to say that the commissioner "may report" a case to the Parliament. To the wording of section 2(7), which states,
"In any case where—
(a) it appears to the Commissioner that the code of practice has not been complied with",
amendment 9 adds "in a material regard". Amendment 1 changes section 2(8), so that instead of saying that the commissioner
"may report the case to the Parliament",
it says that the commissioner "must report the case". That harmonises what the bill says with what is said in the Scottish Parliamentary Standards Commissioner Act 2002. I hope that the amendments will be agreed to, as they are the right thing to do.
I welcome the two changes that are proposed. I was opposed to a change to the bill at the committee stage, when the proposal was to change the word "may" to "must" in section 2(8)(a). I thought that that went too far. However, with the additional amendment from the minister, which will ensure that that provision will apply only when there is a breach "in a material regard", the balance of what must be reported to Parliament is right again. I was always of the view that any breach of a material nature would be reported by the commissioner in any case.
Amendment 9 agreed to.
Amendment 1 moved—[Tricia Marwick]—and agreed to.
Amendment 10 moved—[Peter Peacock]—and agreed to.
Section 3—The Commissioner's functions: further provision
Amendment 11 stands in a group on its own.
Amendment 11 is technical and ensures that all final appointments or reappointments to bodies that will be abolished by the bill will be regulated by the commissioner for public appointments in Scotland. In particular, the Scottish Hospital Trust and the Scottish Medical Practices Committee will need to make appointments before the dates anticipated for their abolition. The amendment will ensure that there is no potential for those appointments rounds to be carried out without any formal scrutiny.
I move amendment 11
Amendment 11 agreed to.
Section 4—Dissolution of certain bodies
Amendment 12 is grouped with amendments 15 to 22, 24, 25, and 27 to 36.
These amendments withdraw the dissolution of the Royal Commission on the Ancient and Historic Monuments of Scotland—otherwise known as the RCAHMS—and the establishment of the replacement body, the national survey, from the bill. The amendments represent a significant change to the bill as introduced and as debated at stage 2. Because of that, I took the opportunity to raise this issue with the Local Government Committee in advance of today's debate. The Executive set out its reasoning in some detail and offered the committee the opportunity to take evidence from the minister with policy responsibility for the RCAHMS prior to today's consideration of the matter.
The reason for withdrawal is the fact that the national survey, as the proposed successor non-departmental public body to the RCAHMS and operating under ministerial direction like any other NDPB, would not have been able to retain the charitable status that is currently enjoyed by the RCAHMS, which is worth in excess of £400,000 a year. Ministers considered removing the power of direction in the case of the national survey but concluded that that would not be appropriate. The thrust of the whole review of NDPBs has been to ensure that they are accountable to ministers for their overall policy. To remove powers of direction would run counter to that policy approach.
As Parliament is aware, the Executive has been examining the general issue of charitable status and set out its conclusions in its response—which was published on 16 December—to the report of the Scottish Charity Law Review Commission. That statement makes it clear that the Scottish ministers recognise both the importance of charities' acting independently and the need for public bodies to be accountable to them.
As a number of NDPBs currently have charitable status, the statement commits the Executive to addressing the issue as part of each NDPB's quinquennial policy and financial management review. In accordance with the statement, the next such review for the RCAHMS, which is due in 2004, will therefore consider the longer-term status of the body.
Ministers therefore feel that it would not now be appropriate to proceed with the dissolution of the royal commission. Instead, we wish to consider what would be the most appropriate future status for the royal commission under the changed circumstances following the Scottish Charity Law Review Commission report and our consideration of the report as announced in our statement of 16 December.
We have consulted the secretary and the chairman of the commission, who appreciate that we need to consider further the future status of the body. The Executive has concluded that it would be wrong to push ahead with the planned abolition of the RCAHMS until we have had the opportunity to consider much more fully how to proceed in the light of the changed circumstances that have arisen since our original policy on the RCAHMS was set out.
I indicated that we advised the Local Government Committee in some detail of our intentions and offered the committee the opportunity to take evidence on the matter. As I understand it, the committee, while recognising that there was a significant change, appreciated why the matter had arisen at that time. It felt that in an ideal world, the matter would have been better dealt with earlier. There has been a subsequent exchange of correspondence on that point between the convener and my colleague with policy responsibility in this area, Elaine Murray. The convener will no doubt set out in more detail the committee's thinking if she so desires.
I move amendment 12.
On 10 September the Education, Culture and Sport Committee considered the Executive's proposals on heritage in the bill. The three proposals were the abolition of the Historic Buildings Council for Scotland, the abolition of the Ancient Monuments Board for Scotland and the replacement of the Royal Commission on the Ancient and Historical Monuments of Scotland with the national survey. It is significant and astonishing that not one of those proposals has survived in the form in which it was put to the committee. That should be regarded partly as a tribute to all those who opposed the proposals, but it should also be regarded as a condemnation of the Executive.
The Executive knew that the vast body of opinion in Scotland opposed the Executive's proposals—it is interesting that Mr Kerr is giggling at that, because he knew it, as did Elaine Murray and all the other ministers. Not just 51 per cent, but 91 per cent of the people who responded to the consultation opposed the proposals, yet the decision was made to proceed with them as they were.
The Education, Culture and Sport Committee objected to the proposals and I pay tribute to all its members. As a result of the committee's intervention, the Executive decided to have a successor body to the two that were being abolished and the historic advisory committee is being set out today. However, the Executive carried on with the proposal to replace the RCAHMS, because it appeared non-controversial, only to discover at the 11th hour—and it is fortunate for the Scottish taxpayer that it did discover this—that to do so would have cost an enormous amount of money.
Something about the policy-making process in the Executive requires radical review. Perhaps it is simply that the Executive is utterly careless of the heritage of Scotland. It might well be that the Executive had plucked from the shelf a set of proposals about a group of bodies that it thought people cared nothing about, only to discover that people did care and that the proposals were so daft that they could not proceed.
One good thing will come out of this. There is an agreement to review the role and functions of Historic Scotland. Historic Scotland is in the middle of this mess: it considered the responses and it appears to have given the bad advice. In the circumstances—and many of us know this from our day-to-day dealings with the senior management of Historic Scotland—the body's time for change is rapidly approaching and indeed it may have passed. Enormous change is required. The biggest change would be to remove Historic Scotland's agency status, make it a non-departmental public body, hive off the royal palaces, as has been done south of the border, and ensure that another body can give independent advice on heritage. That is partially achieved in the bill with the establishment of the advisory service. The withdrawal of the sections proposed in this group of amendments will not be opposed, but it is important to note that, to use the Gaelic word, the Executive has made a complete bùrach of considering our natural heritage.
I thank Mike Russell for his interesting speech, which did not have much to do with the amendments before us today. I will support the amendments, as did the Local Government Committee after it considered the issue. However, I want to place on record my concern that this matter was not identified earlier in the process, such as between stage 2 and stage 3, before the Executive established that the body had a charitable status and stood to lose something like £400,000 of funding, which would no doubt end up in the Treasury coffers. That is unfortunate and the way in which it came about needs to be examined. We thank Elaine Murray for responding to the committee's letter on that issue. I give my support to the proposals and repeat my view that Mike Russell's speech was entirely irrelevant.
It is clear that the management of Historic Scotland do not have a grip on the country's ancient monuments. The situation is extremely unsatisfactory and the fact that the Executive has got itself into this mess shows that it is not on top of the situation.
This is not a party-political matter. The job of looking after our historical heritage has never been given the priority that it deserves and there is a great deal of work to be done. It might be that some of Mike Russell's criticisms were overstated, but it is important that the Scottish Parliament help the Executive to care for and promote our historical heritage. I look forward to that happening.
It is somewhat concerning that all the suggestions in relation to the built environment that were made by the Scottish Executive at stage 1 have now changed. That may be a good thing, though, as it may demonstrate that the Executive has listened to the committees of the Parliament and to the agencies that have been lobbying the Executive strongly. However, I must say that, in evidence that the Education, Culture and Sport Committee took, we were told that the changes that were proposed were not needed. We have since been told that the action that the Executive has since taken reflects better the consultation that took place rather than the advice that the Executive received from Historic Scotland.
The changes in relation to the new body are welcome. I understand the reason why the additional changes have been brought in at stage 3, but I suggest that we all learn the hard lesson that we should listen more to the people who respond to consultation exercises than we do to executive agencies.
I am disappointed that such a major change has been made to the bill at so late a stage. While I acknowledge that information was given to the Local Government Committee, I point out that there are concerns about the effect of the amendment. However, we have no alternative but to accept the amendment. There is no other option because not supporting the amendment would result in extra expense.
People have talked about the processes that have been involved in the creation of this legislation and I wonder whether the processes were wrong. The bill was brought forward partly to spite Alex Neil's Public Appointments (Parliamentary Approval) (Scotland) Bill. When a piece of legislation has started from the wrong premise, we should not be surprised if it goes belly up at the 11th hour, as this bill has done in relation to the heritage bodies. If the ministers had listened a bit more and had encouraged more joined-up thinking across departments, we would not be in the situation that we are in, whereby last-minute information has necessitated these amendments.
All ministers—not just the Deputy Minister for Finance and Public Services—should think long and hard about what has happened. The situation is not fair to the committees of the Scottish Parliament or to the organisations involved. As other members have said, ministers should examine carefully the quality of the advice that they are given by Historic Scotland.
Mike Russell's comments lacked generosity, to say the least. It is interesting that he is in the opposite camp from Alex Neil in relation to the bonfire of the quangos, as Alex Neil has argued vigorously for more quangos to be abolished while Mike Russell is seeking to defend them.
The key point to which Mike Russell did not draw attention is that our position on the matter could not be finalised until such time as our consideration of the McFadden report, which raised all the points on charities and non-departmental public bodies, was completed. A statement on that was made to Parliament only on 16 December which, as I recall, was after stage 2 was concluded. As I indicated in my opening remarks, in an ideal world, that would have been dealt with much earlier, but that was the sequence of events.
The episode demonstrates that the Executive is prepared to listen to what the committees say and that the committee system in the Parliament is strong. What has been proposed today is the right decision in the circumstances. It is a mature judgment of what requires to be done and reflects the maturity that the Executive has to deal with such matters when they arise.
A number of members have referred to Historic Scotland's role. As Mike Russell indicated and I have said previously, Historic Scotland is the subject of a review. That speaks for itself.
Amendment 12 agreed to.
Section 13—Scottish Solicitors' Discipline Tribunal and certain practitioners
Amendment 13 is grouped with amendments 14 and 41 to 47.
Amendments 13 and 14 and 41 to 47 are minor technical amendments to clarify the extent of the remit that the bill gives the Scottish Solicitors Discipline Tribunal to deal with complaints against conveyancing and executry practitioners. Sections 13(a) and 13(c) define that remit by reference to section 20 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990, which deals with professional misconduct by conveyancing and executry practitioners. As the provisions of sections 16 to 23 of the 1990 act are closely interrelated, they can all be viewed as relevant, to varying degrees, to the tribunal's remit in relation to those practitioners. Consequently, in defining the remit, it would be more appropriate to refer to those sections. Amendments 13 and 14 would achieve that.
On amendments 41 to 47, the bill already provides for the council of the Law Society of Scotland to have general powers to make rules for regulating the conduct and practice of conveyancing and executry practitioners. Amendments 41 to 47 seek to provide that the council of the Law Society will be able to make specific rules with respect to complaints against conveyancing and executry practitioners, whether independent or employed.
The 1990 act originally provided general rule-making powers for the secretary of state in relation to standards of conduct and practice for independent practitioners. It also provided for the Scottish Conveyancing and Executry Services Board to establish procedures for dealing with complaints against independent qualified conveyancers.
The bill gives the council of the Law Society general rule-making powers in relation to conveyancing and executry practitioners, but the council's powers with respect to complaints are confined to complaints against independent practitioners. However, the council's rule-making powers also need to extend to employed practitioners. That is the purpose of amendments 41 to 47. Such rules would require the approval of the Lord President of the Court of Session and the Scottish ministers following consultation with the director general of fair trading.
I move amendment 13.
The Consumers Association approached me—unfortunately, so late in the day that it was impossible to lodge an amendment—to express concern about the effect of some aspects of the bill on conveyancers, who are a small body. Conveyancing is a new profession—it was created only relatively recently—but the organisation that supervises it is being removed.
It is obviously hard to defend a quango that looks after relatively few people, but I am concerned that existing practitioners and others who are in training to gain a conveyancing qualification should be treated justly. It is alleged that the arrangements that have been made—possibly not those in the bill but related arrangements—for insurance indemnity, for example, will penalise that small group of people heavily.
I hope that the minister will assure me that arrangements will be made so that existing or future conveyancing practitioners are not treated unfairly.
I will reflect on some of Donald Gorrie's comments, although I am not as concerned as he is with protecting the body that has been overseeing the independent practitioners. I understand that there are two left in Scotland—one in Cupar and one in Dundee. Like Donald Gorrie, I seek assurances from the Executive on the question whether there can be some way of ensuring that those conveyancing shops can continue and that the legislation will not put them out of business. The Executive may claim that the bill will not have such an impact, but conveyancers tell us that that is what will happen.
I do not seek to speak against the amendments, which go in the right direction, but guarantees need to be given that existing independent conveyancers will be at least able to continue, even if we do not wish to create more.
I lodged an amendment on this matter at stage 2. One of the independent conveyancers who is registered under the existing provisions is based in my constituency. In fact, her office is about 50yd from my constituency office, and I believe that the shop in Dundee, to which Mr Crawford referred, operates under the same partnership. There is a concern that the partnership will not be able to expand its business because it will not be able to take on new partners or open shops in other areas. The partnership was hoping to open a shop in Glasgow, but that may not be possible now.
I received a full explanation of the problems at stage 2, and I hope that the Executive will continue to review the matter. If a solution could be found to the particular problem of indemnity against fraud by a practitioner, the avenue of registering independent conveyancing practitioners could be re-examined in future. Independent practitioners are an interesting way of bringing competition into the profession, and it would be useful to receive an assurance that the door is not closed on the matter.
I am aware of the concerns around the matter. Iain Smith, who has a constituency interest, has raised concerns over a number of months.
I will pick up on the points made by Donald Gorrie and Bruce Crawford, who asked whether existing practitioners may continue in business. The answer is yes, absolutely. As part of our approach—this picks up on Donald Gorrie's points—we recently held a meeting with the independent conveyancing practitioners involved. My officials sought to give them the assurances that they were looking for, particularly on the question of the guarantee fund and insurance arrangements. The Executive is making strenuous efforts to ensure that existing practitioners are not prejudiced in any way by the changes that are taking place in relation to their independent conveyancing practices.
As Iain Smith is aware, the bill does not permit the future registration of new independent conveyancing practitioners. However, as with any situation that is subject to parliamentary scrutiny, such matters are always kept under review as time moves on, and I trust that this matter is no different.
Amendment 13 agreed to.
Amendment 14 moved—[Peter Peacock]—and agreed to.
Section 14B—The Advisory Council's functions
Amendment 37 is grouped with amendments 38, 26, 40 and 39.
All the amendments in this group relate to the historic environment advisory council, which the bill will establish. Amendments 37, 38 and 39 are essentially technical. Amendment 37 refers to the role of the advisory council in giving advice to ministers either when asked or whenever the council considers it appropriate to do so. The intention is to make that provision clearer than currently drafted. Amendment 38 would add the advisory council to the list of bodies subject to the commissioner for public appointments in Scotland. Amendment 26 would clarify the tenure of office for members of the new body.
Amendment 40 would enable ministers to pay a salary to the chair of the historic environment advisory council. The bill provides only for the payment of expenses to the chair and members of the council, but not for their remuneration. Colleagues with policy responsibility have been giving further consideration to the role of the new body and to the question of remuneration. We expect the chair of the council to make available significantly more time than its members. Accordingly, we have concluded that provision should be made for the chair to receive remuneration, should ministers consider that appropriate. The chair of the Historic Buildings Council for Scotland receives an annual salary, but the chair of the Ancient Monuments Board for Scotland does not.
Amendment 39 is a technical amendment to insert the name of the advisory council into the long title.
I move amendment 37.
I welcome the amendments and the establishment of the historic environment advisory council. The Education, Culture and Sport Committee felt it vital that the Executive should be able to receive independent advice, not only when it needs such advice but whenever members of the advisory council should feel that the Executive was not getting the independent information that it should be getting.
Although the amendments are technical, they are very welcome. They will allow the chair of the new body to be paid, if necessary. If the post is to be meaningful, there should be provision for remuneration to be made in future, if required.
Amendment 37 agreed to.
Section 15—The National Survey of Archaeology and Buildings of Scotland
Amendment 15 moved—[Peter Peacock]—and agreed to.
Section 16—The National Survey's functions
Amendment 16 moved—[Peter Peacock]—and agreed to.
Section 17—The National Survey's functions: further provision
Amendment 17 moved—[Peter Peacock]—and agreed to.
Section 18—Power of the National Survey to obtain information etc
Amendment 18 moved—[Peter Peacock]—and agreed to.
Section 19—Property etc and staff of the Royal Commission
Amendment 19 moved—[Peter Peacock]—and agreed to.
Section 21—Orders and regulations
Amendment 20 moved—[Peter Peacock]—and agreed to.
Section 23—Interpretation
Amendments 21 and 22 moved—[Peter Peacock]—and agreed to.
Schedule 1
The Commissioner
Amendment 23 is grouped with amendment 7.
Amendments 23 and 7 relate to exclusion from holding office as commissioner for public appointments. At stage 2, amendments similar to amendments 23 and 7 were lodged by Tricia Marwick and Sandra White.
It is agreed that it is vital that the commissioner should not be left open to any allegation of conflict of interest when carrying out his or her role. Independence of the commissioner from Government—from ministers and the civil service—is crucial to securing a public appointments system that commands public confidence for being fair, open and transparent, and that is perceived as being free from political influence. For that reason, I was happy to accept in principle Tricia Marwick's intention that members of the House of Lords should not be allowed to hold office as commissioner for public appointments in Scotland. Clearly, there would be a direct or potential conflict of interest if active members of the United Kingdom legislature carried out the role of commissioner.
However, as a result of House of Lords reform, a number of peers no longer have a vote in the house. In their case, there is no conflict of interest. Amendment 23 seeks to refine Tricia Marwick's stage 2 amendment by excluding only peers who have a vote in the House of Lords. Our support for the amendment is based on the potential conflict of interest between one legislature and another, rather than the issue of privilege, or perceived privilege—the argument in which Tricia Marwick majored at stage 2.
Amendment 7, in the name of Alex Neil, relates to the exclusion of paid officers of political parties. I take this rare opportunity to agree with the member on the principle of the matter that is the subject of his amendment. It would be wrong for someone holding paid office in a political party to be responsible formally for scrutinising the work of ministers who might be drawn—although not exclusively—from the party to which they belonged. Clearly, in that case there would be a potential conflict of interest.
However, after considering amendment 7 in detail, I cannot accept its practical effect, for reasons that I will set out. The principle of excluding specific groups of people from appointment to the office of commissioner is entirely appropriate, but I do not believe that it is possible to provide an exhaustive list in the bill. If such a list were included in the bill, that might imply that anyone not included on the list did not have a similar conflict of interest. In respect of political parties, I do not believe that to be the case. Proceeding as Alex Neil suggests is not appropriate.
Amendment 7 varies significantly from the amendment that was lodged at stage 2, when I undertook to consider the issue further. I have done so first in relation to the question of national office holders in political parties, which was the subject of the stage 2 amendment. After considering the issue in detail and examining a number of different options—including draft amendments prepared by officials—I concluded that it was not possible to capture adequately and fairly all the relevant circumstances.
It appears that, on reflection, Alex Neil has come to a similar conclusion. That explains the altered approach that he has taken in amendment 7, which relates to paid employees of political parties. However, after giving detailed thought to the matter, I do not think that it is appropriate to make such an exclusion in the bill.
Clear definitions that describe all relevant persons are impossible to draw. Inevitably, any definition will leave out someone who should be excluded. If the Parliament were to agree to amendment 7, a person holding high office in a large political party—for example, a chief executive or general secretary—might be excluded from office because that is a paid post. However, the equivalent national officer for a smaller political party would not be excluded, because he or she received no remuneration for his or her efforts. As members are aware, there are significant differences between the scale and structures of political parties. The number of people whom they employ—and, therefore, the number of people who would be captured by amendment 7—varies considerably.
Over time, things may change even more, making such a definition obsolete. Amendment 7 implies that, although it would be inappropriate for the paid chief executive of the SNP—or the holder of the equivalent post in another political party—to be appointed commissioner because of a conflict of interest, it would be acceptable for the national chair of the party to be appointed. That cannot be right.
It has proved impossible to provide an exhaustive list of levels of political involvement. Why should we assume that the constituency chair of a party is less involved, less committed or less influential than national paid officials of that party? By attempting to draw the line, the impression is given that anyone not included in the definition should be eligible for appointment. That is clearly not the case. A qualitative decision is necessary on a case-by-case basis.
In the circumstances, I have concluded that the issue of conflict of interest on the basis of any political activity is one best dealt with by the interview panel that will select the commissioner. Any selection panel for a post that is specifically designed to monitor and judge the actions of ministers must take into account the question of a direct or potential conflict of interest. Based on a person's holding other paid employment or another office—whether that office is party political, commercial or otherwise—it will, and should be, up to the panel to decide whether there is a conflict of interest that would prejudice the role of commissioner of public appointments in Scotland.
Although I share Alex Neil's concern about the issue of principle, I believe that the matter is best left to the good judgment of the Parliament's selection panel.
I move amendment 23 and ask Alex Neil not to move amendment 27.
Mr Neil, at this point we are so far ahead that, if you wish, you could make a speech of one hour and 47 minutes' duration. [Members: "No."] I am perfectly sure that you will not want to detain the chamber unnecessarily.
Can I take that as a request that I do so? [Members: "No."] Given the consensus, unity and agreement that is nearly breaking out between the minister and me, members will be glad to know that I do not intend to take longer than two or three minutes.
Everyone—both inside and outside the chamber—is agreed that it is important that the person appointed to the job has the full confidence of all members of the Parliament and of civic society. We are all trying to maximise the guarantees to ensure that that is what happens.
We support the bill's provisions on excluding members of the House of Commons, members of the Scottish Parliament and members of the specified authorities from appointment as commissioner. I understand that, when we get down to practicalities, the proposed parliamentary committee on public appointments is likely to be the body that recommends who should be appointed to the position.
Given that the minister has outlined some practical points about the definition and the need to ensure that the Parliament passes qualitative legislation, I am willing not to move amendment 7, provided that he guarantees that he will support whatever measures the public appointments committee proposes to put in place to ensure the political neutrality of anyone appointed to the post of commissioner. There is unity on that fundamental principle.
Tricia Marwick will say more about the matter, but it is a great pity that her stage 2 amendment on members of the House of Lords was not agreed to. That would have made the bill all-encompassing because, despite the fact that the minister has lodged an amendment that refers to those who have a vote in the House of Lords, all members of the House of Lords have a certain amount of influence that others do not have. Tricia Marwick will expand on that point.
Provided that I get that guarantee from the minister, I am happy not to move amendment 7.
Presiding Officer, how much time do I have?
I hope that you will not detain the chamber unnecessarily.
I will not. I have already given the security guards a guarantee that we will probably be out of here by half-past 4 and I am not about to go back on that.
Throughout the passage of the bill, Peter Peacock has proved extremely willing to listen to the arguments. I am grateful that the three key amendments that I lodged—on the age of the commissioner, on reporting by the commissioner and on the House of Lords—have been accepted by the minister to a greater or lesser extent. However, as Alex Neil said, I am disappointed that my stage 2 amendment—which proposed that the commissioner should not be a member of the House of Lords—was not agreed to. The bill states clearly that someone cannot be appointed as commissioner if they are a member of the House of Commons or of the Scottish Parliament. It seemed to me that there was a startling omission, as someone who was a member of the House of Lords could be appointed as commissioner.
Given the debacle of the voting in the place down the road yesterday, nobody actually knows how the House of Lords is likely to end up and whether it will be appointed or elected in the future. It is a pity that we do not have a simple amendment today that refers to members of the House of Lords, because if Tony Blair has his way, it is perfectly possible that the membership of the House of Lords will be 100 per cent appointed. That is truly the pinnacle of patronage, and it would be wholly wrong that somebody who was appointed by the political system to the House of Lords would also have the opportunity to be appointed as commissioner.
While I regret that today we are not debating my stage 2 amendment and that we do not have the opportunity—thanks to the Presiding Officer's selection process—to have a straight vote on whether the commissioner can be a member of the House of Lords, we will support amendment 23, imperfect though it might be.
It is not for me to comment on the selection of amendments, as Tricia Marwick is aware, but I understand that our amendment 27 would address her point. Whatever the outcome of decisions about the future construction of the House of Lords and whether its members are appointed, elected or a combination thereof, if a member of the Lords was a voting member—and presumably someone who was elected or appointed to the Lords would have being an active member as their purpose—amendment 27 would mean that they would not be entitled to seek appointment as commissioner.
I will deal with Alex Neil's points. Without being too pedantic, I believe that how the public appointments committee, should one be established, deals with matters is an issue for the Parliament. I completely subscribe to his point that whoever is appointed to the position must be seen to be politically neutral and appointed solely on merit. That is what underlies our approach. I would support any appointment that was made on the basis of merit.
I say to Tricia Marwick that the Presiding Officers do not give reasons for the selection of amendments, apart from those reasons that are in the published guidelines. If you wish to write to Sir David Steel about the issue, you should so do.
Amendment 23 agreed to.
Amendment 7 not moved.
Schedule 2
The specified authorities
Amendments 24, 25 and 38 moved—[Peter Peacock]—and agreed to.
Schedule 2A
The Advisory Council
Amendments 26 and 40 moved—[Peter Peacock]—and agreed to.
Schedule 3
The National Survey
Amendment 27 moved—[Peter Peacock]—and agreed to.
Schedule 4
Miscellaneous provision
Amendments 28, 29, 41 to 47 and 30 to 35 moved—[Peter Peacock]—and agreed to.
Long Title
Amendments 39 and 36 moved—[Peter Peacock]—and agreed to.