Scottish Information Commissioner
I ask Jackie Baillie to move motion S1M-3701, on behalf of the selection panel, on the appointment of the Scottish information commissioner.
As a member of the selection panel, it gives me great pleasure to speak to the motion in my name and to invite the Parliament to nominate Kevin Dunion as the first Scottish information commissioner.
I will say a few words about the background and the process before I turn to the proposed nomination. The Freedom of Information (Scotland) Act 2002, which the Parliament passed before the summer, makes clear provision for a Scottish information commissioner to be appointed by Her Majesty the Queen on the nomination of the Parliament. Independent of both the Parliament and the Executive, the commissioner will have responsibility for promoting good practice and ensuring compliance with the act. He will have a key role to play in the implementation of the freedom of information regime in Scotland, providing both general guidance on the legislation and specific guidance on publication schemes. The commissioner's work will be critical in ensuring that the people of Scotland have access to the information that they want and need and in making public authorities more open and accountable to the people whom they serve.
As members will be aware, under our standing orders, a selection panel, chaired by the Presiding Officer, was set up on behalf of the Parliament to consider the appointment. The interview panel consisted of Bill Aitken, Christine Grahame, Cathie Craigie, Duncan Hamilton, Iain Smith and me. A recruitment process was conducted with advertisements placed in the national press, which attracted a wide range of applications. Following a blind sift of those applications, we proceeded to interview.
I take the opportunity, on behalf of the interview panel, to thank Sir Michael Buckley, the former UK ombudsman, who assisted us as an external adviser in the recruitment process. As with many interviews, the calibre of candidates was high and the panel decided to conduct a second round of interviews, inviting back some of the candidates to ensure that we appointed the right one.
At the conclusion of the process, the majority view of the panel was quite clear that Kevin Dunion should be nominated by the Parliament for appointment. As many members will be aware, Kevin Dunion is currently the chief executive of Friends of the Earth Scotland—a position that he has held for 10 years. He has extensive national and international experience of dealing with people, often at the highest levels, and is skilled in helping to influence the kind of positive change that I think we need. Throughout his career he has been involved actively in campaigning issues and there is no doubt that, under his leadership, the profile of Friends of the Earth Scotland has risen considerably. Its loss is quite clearly the Parliament's and Scotland's gain.
It was also clear to me from Kevin Dunion's interview that he has considerable commitment to and enthusiasm for freedom of information and, above all, a strong desire to ensure that it is firmly embedded in the culture of public authorities in Scotland. The task that he faces is challenging to say the least, but I am in absolutely no doubt that he will meet the challenge most effectively.
I believe that Kevin Dunion will prove to be a formidable information commissioner and, as the first commissioner in post, he has a particularly responsible role in helping to shape a freedom of information culture in Scotland. I am sure that the Parliament will wish him every success for the future.
I move,
That the Parliament nominates Kevin Dunion to Her Majesty The Queen for appointment as the Scottish Information Commissioner.
Five members have requested to speak in this short debate. I call Duncan Hamilton first.
I rise as a member of the selection panel and as a concerned back bencher to oppose the motion on the basis that I do not think that the right person will be appointed to the role. There are those who have criticised us for intimating that we would oppose the motion. I want to set out for those people the reasons why we do so. When we were appointed to the selection panel, we were appointed to do a job on behalf of the Parliament; we were not there to fight party corners or seek party advantage. Equally, we are here today to make a recommendation to the Parliament about the suitability of one candidate to fill the role of Scottish information commissioner. It is not just my right as an MSP to question that decision; I would argue that it is my obligation to report to the Parliament on the concerns of half the panel about the appointment.
Let us be clear that half the panel was not convinced. It is important that the Parliament takes that into account when it votes on the motion. The Parliament has the right to choose to ignore that evidence. If the Parliament rejects my recommendation—it is also the recommendation of other members—and decides that Mr Dunion is the best person for the job, I will have lost the vote but I will be satisfied that I have discharged my duty. We will be able to move on to ensuring that the office of the new information commissioner is supported and augmented in its work.
I cannot be part of a false consensus around the appointment.
Will the member take an intervention?
I will not do so at the moment.
As the interview panel could not agree whether to appoint Mr Dunion or have a confirmatory vote on the appointment in a room of seven people, I suggest that it is right and proper for the Parliament to look again at the appointment.
On a point of order, Presiding Officer. The member seeks to mislead the Parliament. I ask you to confirm how the panel was made up and whether it is true that it was divided equally on the appointment.
That is not a point of order. In her opening speech, Jackie Baillie said what the panel was.
It is not appropriate for me to share with the Parliament details of the other candidates. Suffice it to say that another candidate had instant credibility, as well as experience and a proven track record in freedom of information.
On a point of order, Presiding Officer. It is not appropriate for us to discuss the details of the candidates involved. To do so would be a gross discourtesy to them and would constitute a clear breach of the interview process.
Although I share some of Jackie Baillie's concerns, Mr Hamilton is just within the bounds of what is proper. No names should be mentioned.
I hope that I am within the bounds of what is proper. I have made it clear to the Parliament that I will not name the other candidates. I repeat that one candidate had experience, a proven track record in freedom of information, instant credibility and a core commitment to the independence of the role.
On a point of order, Presiding Officer—a legitimate point of order. The member may not have named the alternative candidate in the chamber, but members of the Scottish National Party have named that alternative candidate to the press. [Interruption.]
Order. My task is simply to preserve order in the chamber. There is nothing out of order in what Mr Hamilton says. I trust that he will proceed cautiously.
I hope that we can have an end to bogus points of order from the Government benches. I want to put it on record that no member of the SNP has revealed anything about the identity of those involved in the interview process. It is ridiculous for Jackie Baillie to make such a suggestion.
I suggest that the decision to reject one particular candidate was a mistake. In opposing the motion, I seek to give the Parliament the chance to rectify that mistake. It is right and consistent for me to express in public the reservations that, as I am sure Jackie Baillie will be keen to confirm, I made in private as a member of the selection panel on behalf of members of the Parliament.
The alternative would be to pretend that divisions did not exist and that the panel was united. It would be factually wrong to give the Parliament that impression. It would be most ironic if the process to appoint the first freedom of information commissioner under the historic Freedom of Information (Scotland) Act 2002 was carried out in a climate in which MSPs did not have access to all the relevant information.
If Mr Dunion is successful today, I wish him every success in his post. If the Parliament decides to appoint him to that new role, he will have my support. The question that we must deal with is whether we have confidence in that appointment. We must also ask whether it is the best appointment that could have been made—it is my sincere view that it is not.
My final point is procedural. I hope that, in relation to future interview panels, the Parliament and the Presiding Officer will consider the need for unanimity when panels come to decisions. The present situation is damaging to the Parliament's reputation, and unanimity would prevent similar situations from arising in future. That would avoid putting the present Presiding Officer, or a future Presiding Officer, in the potentially invidious position of having to use a casting vote.
I oppose the motion.
Let me respond to the last point that Mr Hamilton made. Of the three or four panels that I have conducted, this was the first time that the panel did not reach a unanimous decision. There is nothing in our proceedings to say that a person cannot be appointed on a majority decision, which is what happened in this case, as Jackie Baillie made clear when she moved the motion and as the chamber already knows. Short of tearing up the whole thing and starting again, one cannot always guarantee unanimity. Let me also say that there was no question of a casting vote; I had a deliberative vote, like every other member of the panel.
It is unfortunate that this matter is being debated on the floor of the chamber today, although I acknowledge that there are certain issues attaching to the appointment. For the sake of fairness and clarity, I want to underline the point that there was no question of a casting vote being used. By my arithmetic, where there are seven people voting, it is rather impossible to achieve a situation in which a casting vote is necessary.
Having said that, I think the points that Mr Hamilton raised have some merit. I speak as a panel member who was one of the three who voted against the appointment—I do not think that I breach any confidentiality by saying that the vote was four in favour and three against. I lost the vote—which is not, I must say, highly unusual in this forum. Nevertheless, I feel that I must abide by that result.
There are definite lessons to be learned for future interviews of this type. We should not pretend that unanimity existed where it did not but, nonetheless, the decision has been taken. The majority on the panel took the view that Mr Dunion was the preferred candidate. Although I may disagree with that—indeed, I do disagree with it—the matter before the Parliament today is whether we are to accept the majority vote of the panel. I suggest that we must adhere to the panel's decision, on the basis that it was reached by majority vote.
It is regrettable that we find ourselves in this predicament. I want to pose one question. How do we expect good candidates, of whatever hue or of none, to come forward and subject themselves to the Nolan procedures if they are then to find the SNP making such highly charged remarks? That shower has today shown itself to be unfit for Opposition, so God help us in the event that it ever comprises the Government of this country. We will see whether no attempts have been made outside the chamber to make clear who was its preferred candidate.
What we are doing today is disgusting. People are dissecting what went on in an independent procedure for which candidates came forward. MSPs, mindful of their duties to the Parliament, reached a view on those candidates. Good grief, but that view was reached by there being a majority and a minority. For people then to go on a witch hunt against the candidate because they are not happy about forming part of that minority is truly disgraceful.
When I sat on a parliamentary selection panel, which was chaired by the Presiding Officer, I was impressed by the efforts that were made by its members to ensure that we arrived at a decision that we could support and that got the best candidate for the job. It is unfortunate that Bill Aitken, despite having sat on the panel, should say that the best candidate did not get the job. It may be Bill Aitken's view that the candidate who did not get the job was the best candidate, but there is a clear difference between those two positions.
We must be careful about what we are doing today because of the effect that it will have on our ability to get people to come forward and take jobs that we want them to take. This place really needs to grow up; I suggest that some Opposition members must start growing up fast.
On a point of order, Presiding Officer. In your response to Mr Hamilton, you said that, of the panels that you have conducted, this was the first time that the panel did not reach a unanimous decision. Will you reflect on that statement in the interests of accuracy?
That was correct to the best of my recollection. If I am wrong—perhaps you could pass me a note—I will be happy to correct myself. I do not remember that any previous vote was non-unanimous.
Brian Fitzpatrick's misguided and spiteful remarks are worthy of no more response than that which I have just given them.
I have been in touch with no members of the press; no members of the press have been in touch with me. I assure members that the decision was watertight. However, as my colleague, Duncan Hamilton, said, it is for the Parliament to decide who should be the Scottish information commissioner. That is why the decision is being brought back to the Parliament.
It is with great regret that I find myself speaking against the appointment of Kevin Dunion as Scotland's first information commissioner. I like Mr Dunion; he is affable and enthusiastic. However, he is not the man for the job.
I had the benefit of convening the Justice 1 Committee, which heard all the evidence on the Freedom of Information (Scotland) Bill and on the role of the Scottish information commissioner. I took part in all the debates. It is against that background, and against the background of reading the CVs and hearing all the interviews, that I have come to the view that he is not the best man for the job.
On a point of order, Presiding Officer. I am concerned about equal opportunities issues in relation to this matter. Could you clarify whether the people who participated in the interview panel understood beforehand what the process was and that, in involving themselves in that process, they would accept the result, whatever it was? If the SNP was not content with that procedure, it should not have become involved with it in the first place. I presume that, before the process started, it was explained to the SNP members of the panel but that, as they did not get their own way and were party to the discussions, they decided to bring the issue to an interview panel of 129.
I am sorry, but I could not listen to what Ms Grahame was saying and deal with Mr Welsh's point of order. I did not quite hear what Ms Grahame was saying, but I do not think that she said anything out of order. Ms Grahame, if you would like to continue, I will respond to Mr Welsh shortly.
Presiding Officer, I assure you that I am being very circumspect and know that this is a delicate area—
I have another point of order.
This is filibustering.
On a point of order Presiding Officer. Can I have clarification on whether everyone who was involved in the interview process understood before they went into that process how it would work?
Yes.
If Ms Grahame will excuse me for a moment, I will deal with Andrew Welsh's point. We are both correct, Mr Welsh.
Could you give me some further information?
In a previous case, there was a division in the interview panel. After that division, there was a majority and the panel agreed to make a firm and united recommendation to the Parliament. The difference in this case is that the panel did not so agree. That is why Jackie Baillie was quite correct to make it clear that a majority recommendation was involved when she moved the motion. Mr Welsh will agree that, in the previous case, the recommendation did not come to the Parliament as a majority recommendation; it came as a recommendation that the panel had accepted. I hope that is clear.
I advise Johann Lamont that, certainly, the panel procedure was accepted by all its members. I underline another of Jackie Baillie's points: because the panel did not reach agreement the first time, we held—unusually—a second round of interviews in a genuine, all-round effort to reach agreement, but we still did not do so. The Parliament therefore knows that the verdict is a majority verdict.
It should be made clear that, after that second interview, there was no confirmation of the candidate; the meeting simply broke up and did not come to a conclusion.
I refer back to the stage 1 debate on the Freedom of Information (Scotland) Bill. During that debate, the Minister for Justice made an important point about the role of the Scottish information commissioner. He said:
"The bill provides that the commissioner be appointed by the Queen, on the nomination not of ministers, but of the Parliament."
That is why we are debating the issue. He then went on to say that it was the
"third, and perhaps the most important, feature of the bill … that the commissioner should be fully independent."—[Official Report, 17 January 2002; c 5458.]
The key to the success of the job is not simply its independence but the perceived—I emphasise the word perceived—independence of the commissioner. If we add to that track record of perceived independence the authority of recognised and tested independence of spirit, we would have the ideal candidate. In my view, the interview panel had that candidate before it and he narrowly lost out to Mr Dunion. As I have said, the panel did not endorse the decision.
On a point of order, Presiding Officer.
I like Mr Dunion. He has excellent presentation qualities and would be a good manager.
Order.
I had not intended to raise a point of order because I hoped that, if we had to have a debate at all, we would have a civilised debate.
My experience of interviewing people outwith the Parliament leads me to regret what has been said in the debate and to worry about what else is going to be said. The chamber must uphold the confidentiality of the appointment process. The prospect of people ever wanting to apply for such posts is being called into question. I also make the point, which seems to have escaped some members in the chamber, that the very reason for having an interview panel of seven people and not six people is to allow for a situation in which there might be a difference of opinion.
On that last point, panels are sometimes five people and they are sometimes seven, but Patricia Ferguson is right to say that it is always possible that there will be a majority verdict.
On a point of order.
Let us have no more points of order; let us get on with the debate—[Interruption.] All right, but the debate has to finish at 11 minutes past.
On a point of order, Presiding Officer. Can you confirm that this appointment is a parliamentary appointment?
It is a parliamentary appointment. The panel was set up and has made a majority recommendation to the chamber. I do not think that it is in order to debate what went on inside the panel. Ms Grahame, I invite you to conclude—please be very careful.
I am concluding, Presiding Officer.
It is obvious that Scotland's first information commissioner must command the confidence of Scotland's public and the entire chamber. He or she must have that confidence from the moment that the appointment is confirmed. I do not think that I can support the nomination. I put these serious comments, which are not made on a party-political basis—[Interruption.] How dare members. I heard all the evidence on the Freedom of Information (Scotland) Bill in committee. I heard the candidates. I was asked to put my honest opinion to the chamber, and I am doing that. I will not be put down for that.
I ask members to consider seriously the reservations that have been expressed by members of the panel. The issue is not hostility to one candidate; we have serious reservations that the wrong appointment is being made. I ask members to weigh up those reservations and to vote freely and independently—for once—on this issue.
I regret that this debate is taking place. It is the most disgraceful debate that we have ever had in this Parliament and it brings the Parliament into disrepute. SNP members should be sorry for what they are doing today.
Surely the purpose of setting up a selection panel is to make a recommendation to the Parliament on who the selection panel considers is the best person for the job based on merit. Those of us who were on the panel did that job. We all took our decision as to who was best based on merit, and we have made our recommendation. More of the panel recommended Kevin Dunion than any other candidate. That is why Kevin Dunion is being proposed to the Parliament today. That proposal was reached on the basis of merit and on no other grounds whatsoever.
I have no doubt about the merits of Kevin Dunion for the job. His commitment to freedom of information and his understanding of the Freedom of Information (Scotland) Act 2002 and of what the job entails were, in my view, well in excess of the commitment and understanding of any of the other candidates. I do not want to talk about any of the other candidates but, in my view, he was clearly the best candidate. That is why I recommended him, and for no other reason.
I am extremely concerned that there is a hidden agenda on the part of SNP members, and that they are not giving the real reason why they wish to oppose this appointment. Perhaps they should be more honest when they come before this Parliament. Duncan Hamilton, in opposing the motion, said that he had reservations and that he wanted to express them in the Parliament. Does anyone know what those reservations are? I did not hear them in his speech—not a single one.
We heard from Christine Grahame implied accusations that Kevin Dunion would not be independent. That was what she said. She implied that there was a candidate who would be independent, and that the other candidate would not be. That is an implied accusation against Kevin Dunion's independence, which is unfair, unjustified and unacceptable in the Parliament.
I draw members' attention to the debate that we had on Alex Neil's Public Appointments (Parliamentary Approval) (Scotland) Bill, during which Alex Neil said that one of his reasons for introducing the bill was that those who are nominated have no right of reply. The SNP today is not giving Kevin Dunion the right to reply.
I also draw members' attention to an amendment that Sandra White, with the support of Alex Neil, lodged to the Public Appointments and Public Bodies etc (Scotland) Bill, which is now before the Local Government Committee. The amendment proposes 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."
I suggest that SNP members are not following the line in that amendment. They are operating on the basis of a perceived political affiliation, rather than the merit of the candidates for the job.
The performance of the SNP in the appointment process was disappointing. I was chosen to serve on the panel on behalf of my group at the end of March. We received a memo from the corporate policy unit on 5 April on the proposed procedures of the appointment. It took until 16 June for Duncan Hamilton to respond to that memo. We should have been doing interviews by 16 June, but we had to delay them until after the summer. [Members: "Oh."] There was a shortlisting meeting in August. The two SNP members were not present, so we had to have another shortlisting meeting, adding further delays.
Will the member give way?
No, I will not. Christine Grahame did not take an intervention from me, so I will not take one from her.
The reality is that the SNP members have delayed the process for months because they did not do their job. They are now challenging a decision that was taken fairly and correctly to nominate Kevin Dunion, whom the majority of the panel considered to be the best person for the job. I fully support that nomination, and I urge the Parliament to do so too.
As the minister who was responsible for the relevant legislation, I believe, as Christine Grahame said, that a key feature was the independence of the commissioner and that the commissioner should be appointed by Parliament, not the Executive. That is why the Executive has had no involvement in the appointment and why we are content to accept the nomination of the selection panel that has been brought before the Parliament. If Mr Dunion is confirmed in the vote that we are about to have, I wish him well and assure the Parliament that we will work constructively with the commissioner to ensure the effective delivery of freedom of information in Scotland.
I feel that perhaps I should not speak as Jim Wallace has tried to find a conciliatory point in the debate. It is regrettable that we are having this debate this morning. I am sure that Kevin Dunion will be independent if his past work experience is anything to go by. He has demonstrated his independence in many of the cases and campaigns in which he was involved in his previous job.
The procedures for the interview panel were agreed as the normal procedures for interviews. I was not involved in the shortlisting and did not know about the points raised by Iain Smith, but I was involved in the two interview panels. By the time that people came to interview, one would assume that colleagues from all parties would have read the application forms and confirmed to themselves that each applicant met the job criteria. That is what colleagues in the Parliament did in shortlisting the five applicants who were invited for interview.
Will the member give way?
No, because Duncan Hamilton did not have the courtesy to give way to me.
Agreement was not reached at the first interview session so, because of the calibre of two candidates, it was agreed that we would invite them back for a further interview. At no time during that meeting did our two SNP colleagues on that panel indicate that they felt that either candidate would not be suitable for the job. If they felt so strongly—
On a point of order, Presiding Officer.
On a point of order, Presiding Officer.
Order. Before anyone raises a point of order, I have already said that we do not want to hear what happened in the panel. Cathie Craigie should skip over that point.
On a point of order, Presiding Officer. I want your guidance about whether the level of detail that Cathie Craigie is introducing is appropriate. It is beyond anything that any other member has put into the public domain.
I have just ruled on that point, Mr Hamilton.
My second point is that I hope that you will instruct Cathie Craigie to correct the factually inaccurate statement that she just made that both SNP members signed up to the prospect that either candidate would be suitable. It is just not true.
I would be happy to see Mr Hamilton around a table elsewhere to discuss that point, because I am sure that my colleagues on the panel will confirm that there was no dissent in the first interview panel about bringing two candidates back for interview. The interview was carried out in a fair way, and the candidates were present on merit. Indeed, Kevin Dunion's appointment will be based on merit. I hope that the Parliament will endorse the interview panel's recommendation.
I call Robin Harper. I am afraid that you have only 30 seconds.
This debate has teetered on the edge of being regrettable. I feel strongly that this kind of debate about the Parliament's responsibility should be exercised only where, subsequent to a recommendation from an interview panel, a compelling reason for the Parliament to debate the appointment has appeared. No such compelling reason has been presented to us. Instead, a reservation has been expressed that properly should have been expressed—and should have stayed—within the panel.
I am entirely confident that Kevin Dunion will perform his duties to the entire satisfaction of the Parliament and the nation, and I shall be voting for his appointment.
As chair of the panel, I should add that at no time during the panel's two sets of interviews and two discussions was there any party-political argument. It is unfortunate that that has arisen now. We debated both final candidates on their merits and came to a majority conclusion.
The question on the motion will be put at decision time. We now move to the next item of business, which is consideration of two Parliamentary Bureau motions—
On a point of order, Presiding Officer. Do I not have an opportunity to reply to the debate?
I do apologise. Of course you have.
Thank you very much.
But please be brief, because we have overrun the time for this debate. That is my fault.
I will be quick. I will also be gentle, as Frank McAveety has instructed me to be.
Frankly, I am embarrassed by this debate. I am extremely disappointed that members of the SNP chose deliberately to provide misinformation to the press yesterday. Equally, I am angry that, in doing so, they breached the confidentiality of the interview process by revealing the names of some of the candidates who were unsuccessful. I intend to complain formally in writing—
On a point of order, Presiding Officer. I have made my position clear, and I wish Ms Baillie to withdraw those remarks. I assure the chamber that at no time have I spoken to the press or have they spoken to me on this issue.
That is not a point of order. The content of the argument is not a matter for me.
On Christine Grahame's point, I said that some members of the SNP spoke to the press. Furthermore, I should point out that, although journalists are not considered to be Mystic Megs, they do not necessarily have the imagination to invent some of the things that I was told yesterday.
Brian Fitzpatrick is absolutely right. What kind of signal is the SNP sending to people who apply for jobs in the Parliament? It is hardly the way for a responsible Parliament to behave. For the record, I say that the decision was a majority one and that no casting vote was required or given.
I have always believed that people should be shortlisted on the basis that they are competent to do the job. At no stage did any member of the interview panel object to the shortlisting of those particular candidates. However, not only are the SNP's actions highly discourteous to the other members of the panel and the Parliament, they constitute an outrageous attack on our integrity.
Has the SNP attacked the process itself? Well, no, and one must wonder why. Perhaps Iain Smith got it right. If it takes a panel member two months to respond to an e-mail and if the SNP members do not show up for the first shortlisting, they are perhaps in a difficult position to attack the process. During the entire process in which they were involved, they did not raise a single objection until now. I find it reprehensible and, frankly, cowardly that they choose to attack the candidate, who is unable to respond.
I think that the SNP has undermined the position of information commissioner and they have undermined the Freedom of Information (Scotland) Act 2002. That is not the behaviour of a responsible political party, albeit that it is depressingly consistent for the SNP.
This is nothing but politically motivated nonsense. For the SNP, this is not about the best candidate for the job; it is about its perpetual right of veto until it gets its candidate for the job. I am disgusted by the SNP's attitude.
We on the interview panel picked the best person for the job; that person is clearly Kevin Dunion. Kevin Dunion will make the best information commissioner for Scotland. That is nothing more than this Parliament and this country deserve. I ask members to support the motion.
On a point of order, Presiding Officer. Will you undertake to review rule 7.3.1 of the standing orders in light of the conduct of the debate and some of the shameless accusations made about SNP members? Will you report at decision time as to whether rule 7.3.1 has been observed?
I must say that I do not think that the debate was one of the best that we have ever had in the Parliament. That is putting it mildly. I do not think that we should dwell on it.