Code of Conduct for Members of the Scottish Parliament
The next item of business is a debate on motion S1M-2810, in the name of Mike Rumbles, on the revision of the "Code of Conduct for Members of the Scottish Parliament".
I am pleased that we have this opportunity today to debate the revision of the code of conduct for members, as recommended in the Standards Committee's eighth report of 2001. Members of the Scottish Parliament are committed to ensuring that they carry out their parliamentary duties with integrity in a manner that is above reproach and worthy of the trust of the electorate. The code of conduct reflects the principles that we must observe.
Why are we seeking to amend the code today? Section 9.4 of the code sets out members' responsibilities in relation to confidential committee material. Last year, the Standards Committee had cause to investigate alleged incidents of—if I dare say it—leakage and seepage of draft committee reports and other confidential committee material. As a result of those investigations, the committee conducted a short inquiry into the provisions in the code of conduct on unauthorised disclosures and the arrangements for investigating them. The outcome of that inquiry is set out in the committee's eighth report. The report states that the facts
"give rise to concerns in relation to the enforceability of the present rules in relation to confidentiality of draft reports. In this respect, the Committee accepts that the problem is cultural as well as regulatory."
We felt that the rules could be open to various interpretations and we wanted to bring crystal clarity to the code of conduct. We also needed to be more straightforward about what was considered to be confidential and the possible consequences of leaking information. We concluded that three main amendments were required to section 9.4 of the code of conduct to provide better guidance for members. That is, after all, what the code is there for.
The first amendment is to ensure that the provisions on confidentiality apply to confidential material and information as well as to draft committee reports. The second is a provision that would prohibit members from giving off-the-record briefings on the contents—or even the line—of committee reports or other confidential material and information. The third is a prohibition on members who dissent from committee reports from disclosing the contents of those reports while they remain confidential.
The proposed amendments to the text are not extensive. They do not introduce any material changes to the code. Rather, they expand upon and reinforce the rules that are already in place and to which we have already agreed. Our code of conduct already states:
"It is the intention of the Parliament that its proceedings and printed material be open to the general public."
That is one of our core tenets, but we must also acknowledge and account for those occasions on which it is deemed necessary to treat certain information—be that discussions or documents—as confidential. Leaks can undermine members' integrity. They could lead to a loss of mutual trust between members and a breakdown of confidence in the operations of a committee.
It may be helpful if I take members through the proposed revisions to section 9.4 of the code. In section 9.4.2, we would define material that should be understood to be confidential. Such material has always been covered in the code of conduct but, during our inquiry, we came to understand that, although most members realised the seriousness of leaking a draft committee report, they or others working closely with them may not have appreciated that other forms of information can carry as much weight and importance. We therefore recommend that all committee material that is to be defined as confidential be brought together in one paragraph in the code. That should reinforce the point that unauthorised disclosure of any of the material that is mentioned in that paragraph is as serious a matter as leaking a draft committee report.
Further proposed revisions to the text of the section expand on the reasons why we consider the disclosure of confidential committee material to be undesirable. Again, the existing text highlights the reasons why we take that view, but the revised text is more explicit. It also serves to impress upon members that there is no hidden agenda or deliberate suppression of information. Rather, it impresses upon members the possible serious difficulties into which unauthorised disclosures could put the committees, their members, those members' parties and, importantly, witnesses.
We are also strengthening the language of the section in places. For example, we propose to add a sentence to section 9.4.4 to say that it is
"essential that all Members respect these rules."
Although we feel that members have always known that, to spell it out in black and white does no harm.
The proposed revision to section 9.4.5 is also much more direct about off-the-record briefings on confidential material. The growing number of such briefings was brought to the Standards Committee's attention by the conveners liaison group, which had concerns about the matter as far back as December 2000. The group expressed its concerns about a developing culture of briefings and cited an increasing number of articles in the media that quoted from "sources on" or "sources close to" a committee. As we point out in our report, disclosures of that kind can seriously undermine and devalue the work of committees.
We also considered members who dissent from a committee report. We suggest a new paragraph, 9.4.8, which seeks to clarify the actions of members who wish to take that line. If a member who dissents from a committee report holds a briefing or issues a media release before that report has been published, the conclusion of the report is inevitably disclosed. Such action is covered by section 9.4 of the code, but we believe that the section should include specific reference to it. I stress that it is not the committee's intention to prevent members from dissenting from committee reports.
Through those revisions, the committee simply aims to make the rules plainer, more easily understood, and less open to misapplication or misunderstanding.
I move,
That the Parliament agrees to amend the Code of Conduct for Members of the Scottish Parliament by replacing Section 9.4 with Section 9.4 as set out in Annex D of the Standards Committee's 8th Report 2001, Report on the Investigation of Unauthorised Disclosures.
The Executive welcomes the Standards Committee's report and recommendations on the investigation of unauthorised disclosures. As in the previous debate, I thank members of the committee for the efforts that they put into the report. I also thank the committee's convener, Mike Rumbles.
The committee structure is central to the Parliament's work. The committees have quickly gained considerable respect for the work that they do in discharging a variety of roles, including scrutiny of the Executive, detailed line-by-line consideration of bills, carrying out independent ad hoc inquiries and introducing bills of their own. In short, the committee system is a success story. A great deal of valuable work has been done by the committees, much of which reflects the willingness of MSPs on all sides to adopt, in the main, a non-partisan approach to committee business.
The Standards Committee's report on the unauthorised disclosure of confidential material makes it clear that the achievements of the committee system and the integrity of the Parliament as a whole is at risk of being eroded if what it described as leakage and seepage becomes the common practice. The committee has accordingly recommended that the code of conduct be amended to ensure that it is robust enough to deal with practices such as off-the-record briefings and to reflect fully the range of committee business that is conducted on a confidential basis.
On behalf of the Executive, I offer my full support for the committee's report and recommendations and for the specific changes to the code of conduct that it proposes. I hope that we all endorse the importance of putting a stop to the unauthorised disclosure of confidential committee material, as well as clarity about exactly what material is covered by the duty of confidentiality. That is what the proposed changes are designed to achieve, and they have the Executive's full support.
Free speech and the freedom of the press to report on the work of the Parliament are central principles and are vitally important, but those principles should be balanced against the fact that certain information must be regarded as confidential.
The possibility that certain information was not leaked deliberately should always be considered. Inadvertent disclosures should obviously be avoided, whether they be made through indiscretion or by carelessly leaving private or confidential papers—not to mention the secrets of the nation—lying around. We all have a responsibility to make sure of our own security in such matters. Basic safeguards in handling mail and password access to e-mail accounts should be used. It is of course difficult to discover the source or sources of a leak or leaks. Culprits have been known to refuse to own up, but that does not mean that investigations will not be made.
The consequences of disclosing confidential information can be significant. There is the issue of commercial confidentiality. A breach of such confidentiality could have serious consequences for an organisation, company or person if evidence has been given in strict confidence. We try to build up trust with people who may be able to assist us with our work in the future, but that work could come to nothing if witnesses will not come forward, having lost trust in MSPs. It must be appreciated that leaking, for whatever motives, undermines trust.
There is an exception to every rule. In the 1930s, not enough was done to maintain and rearm Britain's armed forces in view of the mounting threat from Nazi Germany, and Winston Churchill had leaked to him critical information, which he used in public. The then Prime Minister is believed to have asked him which civil servant was responsible, and Winston is alleged to have replied that it was all in the national interest. The civil servant, whoever he was, continued work as a civil servant, but that was the exception rather than the rule.
I will tell the Parliament a cautionary tale. Some years ago, a young girl civil servant called Sarah Tisdall leaked to a national newspaper the fact that cruise missiles were to be transported to Britain on a certain date. She was charged with breaching the Official Secrets Act and was sent to prison for three months. If that can happen to a civil servant, then MSPs cannot expect to get off unscathed if they impart confidential information in circumstances in which that would be quite improper. Most organisations and professional bodies have rules and guidelines governing their members' behaviour, and must use penalties if people are found to be transgressing or flouting those rules. It should be no different for MSPs.
I am pleased to speak in support of the Standards Committee's report on the investigation of unauthorised disclosures. As ever, such procedural debates may not set the proverbial heather on fire, but they are vital to the effective operation of the Parliament. I joined the Standards Committee after it completed its deliberations on the issue, so I can claim no credit for its work. However, I believe that, in this as in other areas, the committee has taken its work seriously and has adopted a measured and pragmatic approach.
We all recognise that it will never be possible to stop leaks or to put an end to off-the-record briefings and unsourced quotes. None of us is that naive. However, it is both possible and necessary to set clear parameters for what the Parliament regards as acceptable conduct and to put in place measures to maintain those standards.
I am conscious that in certain debates, including the recent one on the appointment of a standards commissioner, we have expressed pride in the fact that we are putting in place provisions that are robust in comparison to those at Westminster. This is one area in which we do not compare so favourably with Westminster and it is right that we have been willing to consider it at an early stage. It is of concern that, according to the committee's report, the practice of so-called seepage of draft reports may have become endemic.
It is worth reminding ourselves that, across the parties, we often bemoan the fact that the press do not focus sufficiently on the good work of the Parliament—on the work of the committees, on cross-party co-operation and on the thoughtful conclusions that are reached to inquiries and investigations that have been months, sometimes years, in the preparation. However, we must be honest and say that we cannot have it both ways. We cannot on the one hand crave balanced, factual reporting of what we do, and on the other hand feed the beast with partial information, speculation, spin and, on occasion, distortion. Those are some of the things that come with the leaking of reports and the briefing of otherwise confidential information.
I accept the arguments that the member has made. However, she is talking about members of the Parliament and the work of the committees. What about ministers and their work in the Government, where leaking seems to be a practice?
Phil Gallie is absolutely right to make the point that at every level we need to work to maintain high standards. That is as relevant to the Executive as it is to the Parliament. Today's debate focuses on the Parliament's behaviour, but I can say with some experience that, when the Parliament's standards slip, that leads to difficulties and confusion in the Executive, at the very least. I know that the Executive has made it clear that it will not comment on leaked reports, but we ought to strive to ensure that no one is put in a position in which they might have to and that leaked reports are not available to be commented on. There should be a proper publication process to which the Executive should respond properly.
The key issue is that all of us have a part to play in developing and maintaining high standards. Mike Rumbles was absolutely right to say that the debate is about rules and culture. It is important that we work to ensure that the culture is right.
Finally, I note that one newspaper described the proposed move as being designed to gag MSPs. Nothing could be further from the truth. As the committee's report makes clear, and as Mike Rumbles has reiterated today, there is nothing in the proposals that discourages dissent. At issue is how and when that dissent is expressed. Constructive, even heated, debate and the expression of different views are a healthy and necessary part of our democracy. However, it is right and proper that those views should be expressed, recorded and aired through due process, so that politicians can be held to account for their opinions. That is done not behind the bike sheds, but through proper discussion and deliberation and, ultimately, through the proper presentation of reports.
I said "finally", but I would like to make one further point. I cannot remember how much time I have, Presiding Officer.
You have an infinity of time.
You may regret saying that.
As a member of the Procedures Committee, I am conscious of the fact that many people who have given evidence as part of its inquiry into the implementation of the consultative steering group principles have voiced concerns about the number of committee meetings that are held in private. It is important that we do not confuse that issue with today's debate. First, there is a big difference between holding a formal committee meeting in private and the sort of clandestine meetings and seepage that we are discussing today. Secondly, wherever we draw the line between public and private committee business, it will never be absolutely right. The key point is that, wherever we agree to set the parameters, we should all maintain and respect them.
The measures that have been set out today are utterly consistent with the principles of openness, accountability and transparency, which lie at the heart of the Parliament. They sit comfortably alongside the wider range of measures that we are developing to reinforce those principles and I commend them to the chamber.
Like others, I welcome the opportunity to debate the proposed changes to the code of conduct. Susan Deacon is absolutely right to draw a distinction between this debate and the debate about whether committees should meet in private and the circumstances that make us do so. In my experience, committees normally meet in private to consider draft reports and documents that they want to discuss fully. We are coming forward with changes to the code of conduct in relation to draft documents and the periods in which MSPs meet in private.
I echo Mike Rumbles's opening remarks that the proposed changes to section 9.4 of the code of conduct are not extensive or severe. The Standards Committee is not suggesting draconian measures. Despite the hysterical response from sections of the media that we are seeking to gag MSPs, nothing could be further from the truth. The changes are merely a clarification of the rules. They should be seen as enhancements and welcomed as producing a clearer set of guidelines for us all. They are not intended to be a straitjacket to stifle debate among members.
Last year, the Standards Committee spent a fair amount of time dealing with unauthorised disclosures or leaks. I do not mean to suggest that we reached a situation in which the Parliament and committee structure was leaking like a sieve, but the Standards Committee considered three reports from the standards adviser on unauthorised disclosures from committees to the media.
Our subsequent inquiries into the adequacies of the provisions in the code on leaks and the arrangements for their investigation are based on experience. As a result of the inquiry, we concluded that clarification was required to ensure that the rules that the Parliament endorsed were robust enough. The Standards Committee report states:
"The Code's provisions on confidentiality largely focus on the treatment of draft committee reports. The Committee's inquiry and the Adviser's investigation, however, have suggested that the current provisions may not adequately reflect the range of Committee business that is conducted on a confidential basis."
That is one of the main reasons for the revisions of the code. The code is perhaps not clear enough about what is considered to be confidential. The Standards Committee agreed that a tidying-up exercise was required.
Although misunderstanding of the rules can account for some disclosures, others cannot be laid at that door. Leaks have occurred when someone had what they considered to be a good reason to put information into the public domain without the consent or foreknowledge of their colleagues. That is not an acceptable way for us to work. It can quickly lead to an atmosphere of suspicion and mistrust and it can hamper our proceedings.
I refer specifically to proposed section 9.4.6 of the code, which states:
"It is also unacceptable, unless the Parliament or the relevant Committee has agreed otherwise, to disclose any information to which a member has privileged access, for example derived from a confidential document or details of discussions or votes taken in private session, either orally or in writing."
That change, which was required to be made, came out of the discussion of the Protection of Wild Mammals (Scotland) Bill, which has been mentioned. Within hours of a committee having met in private and taken a vote, the result was leaked to every member of the press, who, by the following day could tell how every member of the committee had voted.
That kind of leaking is unacceptable behaviour for the Parliament. If people do not know by now that they really ought not to leak details of private discussions or votes, the changes to the code that we are proposing will allow them to be absolutely clear about what is required of them.
The words "confidential" or "in confidence" are the key to the issue. Any definition of confidence must relate to faith, reliance or trust. We must be able to have trust in one another. We must be able to demonstrate the integrity that people want of their elected representatives. On behalf of the Standards Committee, I commend the motion to the Parliament.