Code of Conduct
The next item of business is a debate on motion S2M-5719, in the name of Brian Adam, on behalf of the Standards and Public Appointments Committee, on its second report in 2007, which is on the "Code of Conduct for Members of the Scottish Parliament".
The current code of conduct for members was adopted in February 2000. The Parliament had been in existence for less than a year at that time, but it was considered necessary and desirable to have a code of conduct in place as soon as possible.
The code has remained largely unchanged since then. Annex 5, which sets out how MSPs should interact with one another—and, to some extent, with their constituents—was added later in 2000. Section 7, on lobbying, was revised in 2002. Section 10 was revised in 2003 to reflect the newly created post of Scottish parliamentary standards commissioner and the associated complaints procedure that is set out in the Scottish Parliamentary Standards Commissioner Act 2002.
It is a tribute to the work of the Standards Committee in the first session that, on the whole, the code works well. The Standards and Public Appointments Committee undertook a review of the code as a subsidiary exercise to its work on replacing the interim legislation governing the registration and declaration of members' interests. Essentially, the committee has not made many substantial changes to the code.
Let us go back to basics for a moment. What is the code of conduct for? Why have it? Most MSPs go about their work professionally and try to do the best for their constituents. Although we could continue to carry out our work without a code of conduct, it sets out what is expected of us and lets constituents know what to expect. At this point, I should make it clear that the code covers all MSPs, including ministers, deputy ministers and ministerial parliamentary aides who are also members of the Parliament. In addition, ministers and deputy ministers must comply with the "Scottish Ministerial Code".
In the four rounds of consultation on the review of the code, members were asked for their contributions and all the committee's meetings on changes to the body of the code were held in public. We considered holding a widespread public consultation but, after our experience of consulting on the Interests of Members of the Scottish Parliament Bill, we decided against that course of action and instead agreed to target a list of individuals, bodies and organisations that worked in the public sector, including the Scottish Council for Voluntary Organisations. That list can be found on page 39 of the report, along with the responses that we received.
However, the code does not serve its purpose if the rules are unclear or are not working well. In that respect, the committee proposes that, in restructuring the code, what are known as the key principles be moved into a distinct introductory volume. As members will know, the proposal has produced some public and media interest. It has been suggested, for example, that the committee's recommendation to place the key principles in the introduction is due to a complaint made against an MSP in 2005. That is incorrect. In his annual reports, the Scottish parliamentary standards commissioner has drawn the committee's attention to what he has considered to be a problematic section of the code. We have evidence that the principles are causing a difficulty for constituents and the commissioner because of differing points of view about their meaning. In the 2003-04 report, for example, the commissioner states:
"The commonest type of complaint fell under Section 2.4 of the Code of Conduct: Members have a duty to be accessible to the people of the areas for which they have been elected to serve and to represent their interests conscientiously. Fourteen of the 29 complaints"
in 2003-04
"consisted wholly or partly of claims that Members had not made themselves sufficiently accessible to a constituent or had not done enough to represent the constituent …
People vary in their expectations of what an MSP can reasonably do for them. Complaints relating to this Section can also be difficult for the Commissioner to judge. There is no detailed MSP job description to aid the Commissioner's assessment of the Member's actions in relation to accessibility and conscientious representation.
Parliament may wish to note the predominance of such complaints and to keep this aspect under review."
That is precisely what the committee has done. After considering the matter further, we wondered what would happen if a future commissioner took a different view from that of the current commissioner. We need consistency in interpretation and application, and we cannot get that if the rules are open to interpretation.
Accessibility and accountability of MSPs are the main issues, and moving section 2.4 of the code to the proposed introductory volume does not in any way diminish the key principles. Indeed, at its last meeting, the committee discussed retaining the key principles in section 8 of proposed volume 2 as they relate to constituents. In particular, I refer members to section 8.2.1 of proposed volume 2, which spells out the key principles, and section 8.3.1, which states that the wishes of constituents are of paramount importance. Under section 8.3.1, constituents have the right to expect an MSP to take on a case, though the MSP must be able to judge how best to do so. Constituents will still have rights to register complaints under section 8 with the Presiding Officer, who will be in the position—if he considers it necessary—to refer the matter on to the Standards and Public Appointments Committee, which will have the current range of sanctions available to hold members to account.
The original report on the code, which was published in 2000, stated that it is
"based on key principles which should underpin members' conduct and which are reflected in the subsequent sections of the text."
The committee has adhered to the same approach: the key principles underpin the code, but that does not mean that they are specific rules in themselves.
I am delighted to welcome contributions to the debate. As the committee has received very few responses over the past couple of years, I am interested to hear members' views and comments at this stage. I am also more than happy to try to answer any queries that members might have.
I move,
That the Parliament notes the 2nd Report, 2007 (Session 2) of the Standards and Public Appointments Committee, Code of Conduct for Members of the Scottish Parliament (SP Paper 763) and agrees to its conclusions.
I am speaking in a personal capacity.
When the e-mails about the lack of consultation that is alleged began to come in, some of us were concerned. However, having listened to Brian Adam, I take the view that in everything that we and the Executive do we should balance the need for sensible consultation with the need not to spend enormous sums of money or an enormous amount of time conducting consultations that are not responded to. If, as constituency or regional MSPs, we come across one complaint, it is that people are often overconsulted by the Executive. In a sense, we cannot win.
After reading Mr Winetrobe's e-mail to members about consultation, I was puzzled by what the devastating consequences of the lack of consultation were, because I could not see them. The heinous crimes of which he accuses the Standards and Public Appointments Committee are that it did not know that mandatory committees are required not by the Scotland Act 1998 but only by standing orders, that it did not realise that the ministerial code covers ministerial parliamentary aides, and something else equally trivial. If that is the extent of the problem, I do not think that there is one. Some people should get a life.
I turn to the issue that concerns the SCVO and the churches—that of the key principles not being part of the code of conduct but being included in an introductory volume. We should pay some attention to the fact that the code is a quasi-judicial document. Members can be hauled up in front of the standards commissioner, the Standards and Public Appointments Committee and, eventually, the full Parliament, and sanctions can be applied to them if they are in breach of the code. The code must be clearly interpreted, so that judgments can be made on it. The problem with the principles is that they are all very well, in much the same way as the European convention on human rights is all very well, but they can sometimes have unintended consequences when we are trying to decide whether someone has breached the provisions of the code. The change that the committee has proposed is, therefore, quite right.
I have one criticism of the code of conduct. It addresses the issue of relationships between constituency MSPs and regional MSPs; I speak from experience of having been both a constituency and a regional MSP at one time or another. I remember that the guidance was first issued as a letter from the Presiding Officer, but I was not aware that it had been included in the code of conduct without a vote, because that happened on a Thursday in July when I was at Westminster.
The matter needs to be examined, because some of the provisions that relate to it are barking. For example, the code states that regional MSPs should not identify their political affiliation. However, regional MSPs were elected because they appeared on a party list. The Business Bulletin and Official Report identify all members' political affiliation, but we are told that, when we write a letter to someone, we should not say that we are members of the Scottish National Party or another party. That is daft.
Mr Morgan makes an interesting point, and his submission to the committee was interesting. However, does he not agree that there is a danger that placing party affiliations on letter headings would be seen as promoting particular political parties and as going against the oath that we all take to represent electors, regardless of whether or how they have voted?
I hardly think that the mention of a member's party in their letter heading amounts to promotion. To conceal from the people to whom members are writing a fact of which most of them are well aware is to make rules for the sake of them, with no practical effect.
I made various other points in my submission to the Standards and Public Appointments Committee; I was glad that I was one of the few people who made one, albeit very late. I hope that I will be able to address those points on a future occasion, because the code includes various provisions that are bureaucracy for the sake of it, that are totally unworkable and that do not work, because most people ignore them.
I call Alex Fergusson. You have four minutes.
You will be relieved to hear that I will not require four minutes, because Brian Adam made clear the Standards and Public Appointments Committee's views and how we went about the exercise. Alasdair Morgan also clearly laid to rest some of the accusations against the committee.
In his response to Mr Winetrobe's e-mail, which I am sorry that I did not receive, because for some reason Mr Winetrobe chose not to allow committee members sight of his e-mail, Mr Adam said:
"The Committee also considered that although a similar provision still exists in Section 8 ‘Relationships Between MSPs' they felt that it was right in this context that members have a duty to be accessible to the people of the areas for which they have been elected and to represent their interests conscientiously … and did not wish to recommend any change."
As the committee's convener said, we held four consultation exercises and everything that we considered was in the open and a matter of public record. The whole exercise was in accordance with the two key principles of accessibility and accountability.
In his e-mail to all members except members of the Standards and Public Appointments Committee, Mr Winetrobe said:
"I hope that you will then vote to reject the motion, on the basis that the Committee's review of the existing Code has been fundamentally flawed … and contrary to the Parliament's founding principles and normal working practices".
I take great exception to that accusation. Like almost every other MSP who has the honour to serve in the Parliament, I hold our founding principles close and dear to my heart. I treat them with great respect and I try to refer to them as I go about my daily work, as I am sure that every member does. I would never vote for any measure that I thought would undermine or water down those principles and I take great exception to being accused of doing so.
I am disappointed that the SCVO and the churches appear to have been duped into blindly following Mr Winetrobe's accusations. I hope that they will be reassured by this short debate and I hope that members accept that every member of the committee acted out of a desire not to undermine but to strengthen and simplify the Parliament's founding principles, thus making it easier for all members to adhere to them.
I have a problem in that the two parliamentary committees on which I serve—the Standards and Public Appointments Committee and the Procedures Committee—are both housekeeping committees for the Parliament and, for whatever reason, it is difficult to excite members about housekeeping issues, many of which are important. However, we must live with that. The Standards and Public Appointments Committee tried conscientiously to involve members in the discussion about the code of conduct. Another problem is that I tend to be a minimalist in such matters. Sometimes our regulation goes a bit far.
The report that we are considering is the product of the whole committee, whose members argued about the issues, as happens in other committees—sometimes winning and sometimes losing their argument about whether to make a change. However, as Alex Fergusson said, the report fairly represents an honest approach to dealing with MSPs' affairs and includes changes that must be made in the code of conduct to reflect the legislation on which we voted some months ago—the Interests of Members of the Scottish Parliament Bill—which excited a certain amount of passion in the Parliament, because some members felt strongly about the involvement of partners, for example.
I can see why some people think that setting out the principles separately from the volume that contains the code of conduct is a watering down of the code, but I do not think that that is the case. The approach genuinely reflects the view of the committee and the Scottish parliamentary standards commissioner that it is difficult to lay down in legalistic fashion members' duties to constituents, who can have unreasonable expectations. Constituents often criticise us when we have tried genuinely to deal with a matter but have run up against a brick wall. Especially in the days of e-mail, people get unhappy if they do not get a reply within half an hour of contacting a member. They think that the member has failed totally in their duty and is neglecting their constituents.
It is difficult to lay down legalistic rules, which is why I accept the argument that we should have the principles as an aspiration. Members will be instructed to have the principles as an aim but, if they make the odd mistake in their office—which we all do—or if somebody loses a letter for a week or two, that will not be judged to be a terrible sin. We cannot have a regulation that states that MSPs' offices must be 100 per cent efficient at all times—that is just not realistic. Therefore, the committee has produced a reasonable composite proposal on the issue. Apart from some specific niggles, I am happy to support the proposed package, which will govern members' affairs fairly.
The principle of parliamentary democracy is rather important, as it guarantees the accountability of Government, provides for the enactment of legislation and underpins our citizens' liberty, and we cannot have parliamentary democracy without electing members of Parliament. There is something quintessentially Scottish about wanting to have a Scottish Parliament but then not trusting the people whom we elect to it—but there we are.
Like the Presiding Officer, I am about to retire after several years in elected office, so, in the debate, I am not speaking for or about myself. I will say a word about colleagues in all parties and those who will be elected in the future. Virtually without exception, they are public-spirited people who are involved in politics because they have principled beliefs. They stand for election because they genuinely want to do their best for the people of Scotland. From personal experience, I can say that the workload here is significantly heavier than it is in Westminster, so people should not think about coming to Holyrood for a quiet life.
My concern is that we have got into a situation in which there is almost a presumption of guilt against MSPs, certainly in some parts of the Scottish media. We have constructed a quasi-judicial system that makes it far too easy for vexatious or malicious individuals to bring parliamentarians and Parliament into disrepute—colleagues know what I am talking about. It is right that the principle of accessibility should remain firmly entrenched, in volume 1 of the draft code, and that there should be sanctions for breaches of the code, but that is not what we are talking about. I have been in elected office for more than 30 years, during which I have dealt with a hell of a lot of casework. I am eternally grateful to my staff for all their help in dealing with it. However, despite our best endeavours, people do not always get the outcome that they hope for. I count myself lucky that nobody has complained about me; other members, as we know, have been less fortunate.
I have spent much of my long career fighting to achieve a Parliament for Scotland, so I want to encourage the best of Scots to stand for election and to do their best for Scotland. We will not get that if members can be dragged through the standards procedure at the whim of any individual who does not like the reply that he gets from an MSP. The committee has got the matter right, so I am afraid that I disagree with my constituent Mr Barry Winetrobe. I pay tribute to Brian Adam and his colleagues for their diligent work. I support the committee's proposals, and I will just have to run the risk that Barry Winetrobe might report me to the Scottish parliamentary standards commissioner for not representing his views properly.
There is no doubt that we needed to review the code of conduct in the light of seven years' experience of its operation. I am sure that members of the Standards and Public Appointments Committee have acted with honour throughout the process. However, I cannot understand why the committee decided that we should alter the code so comprehensively. Unlike Brian Adam, I think that the proposals are for a major change to the code. As a result, the committee has been seen by some to be attempting to undermine the founding consultative steering group principles that were written into the code back in 2000. That is the view that the SCVO, some church representatives and others have taken.
Will the member give way on that point?
No.
The SCVO and the Scottish churches are concerned that the changes to the code of conduct will weaken the CSG principles, in that those key principles are to be moved out of the code altogether and placed in volume 1, where they are described as aspirational.
Will the member give way?
No.
It is made clear that, because the principles are to be moved out of the code of conduct, they will not represent obligations on MSPs. The key principles are clear, and I draw members' attention to just two of them—accessibility and openness. Those should not be removed from the code of conduct, but the report before us today seeks to do just that. That would be a backward step.
Complaints have been made against me that were found to be unsubstantiated. It is problematic, but we have to put up with such complaints against us because allowing them to be made is the right thing to do.
I have outlined my concerns about the policy, but I now want to consider the way in which the new code of conduct is written. The report by the Standards and Public Appointments Committee contains confusion and inconsistencies, a few of which I will highlight. Paragraph 2.7.1 talks about a member making or having made a visit outside the United Kingdom
"where the visit meets the prejudice test."
That is not consistent with the following paragraph, paragraph 2.7.2, which contains no mention of the prejudice test. It simply states:
"The requirement to register applies to all overseas visits".
There is a detailed system of regulation for cross-party groups, but there is no regulation at all for the Scottish Parliament and Business Exchange. Surely the report is a missed opportunity to put right that inconsistency.
Will the member take an intervention on that point?
No.
Complaints between MSPs are now under the heading of "Excluded Complaints" and so are not lodged with the standards commissioner; they must be lodged with the Presiding Officer. However, even here there is confusion. Paragraph 8.12.1 states:
"Any complaint against a Member … in respect of this guidance should in the first instance be made to the Presiding Officer."
The fact is that it is not guidance. If it is guidance, it should be in volume 3 with all the other guidance, and not in volume 2, which is the code of conduct.
On that point?
No.
The problem is that this has been a cut-and-paste job. One has only to look at the code of conduct to see that. The text simply does not fit properly. As Brian Adam said, we cannot have inconsistency and inaccuracy in the code of conduct. It should be clear and concise and everyone should know what is and is not a rule and what is and is not guidance. They are not the same thing.
I am disappointed with what the Standards and Public Appointments Committee has presented us with today. It is unfortunate that a step such as removing from the code of conduct our obligations on openness and accessibility has been presented to us as it has been, but it is inexcusable to present to Parliament a document that has inconsistency and error within it that will present a danger to MSPs in the next session of Parliament—the danger of transgressing what some might see as a rule but others might see as only guidance.
We need clarity. I ask the convener of the Standards and Public Appointments Committee to withdraw the committee's report and to bring it back within the next two weeks. Otherwise, the successor committee in the next session of Parliament will have to start with a review of the code of conduct.
I regret the last speech. It was Mike Rumbles at his most captious and rebarbative, and that is not a pretty sight.
I tell members clearly that what we have before Parliament is not inconsistent and is not confusing. If there were points on which Mr Rumbles wished to submit his concerns, he could have done so before.
I did.
Those points were not made.
However, I do not want to sum up this debate in a sour way. Let me turn away from Mr Rumbles and say that it is my pleasure to close on behalf of the Standards and Public Appointments Committee in this short debate. Despite its brevity, a number of interesting and positive speeches have been made by all members, except one. I will try to address the salient points in the brief time allotted to me.
As my colleague Brian Adam, the convener of the committee, remarked, due praise must go to the Standards Committee in the first diet of the Parliament for the code that was adopted in February 2000. That code has, in the main, worked well. It has not been perfect; no code is. Anyone who thinks that a code can be perfect really should get a life.
The current committee undertook its review of the code as a complementary exercise to its work on replacing the interim legislation governing the registration and declaration of members' interests. The changes are not wholesale and cover only the matters on which the committee feels that changes will assist members in registering their interests as required by the Interests of Members of the Scottish Parliament Act 2006—that is the title that Donald Gorrie was striving to remember, which I agree rolls off the tongue.
Perhaps the decision that has provoked most discussion was that to move the key principles into volume 1 of the code. I re-emphasise that the exemplary standards that are expected of members will not be diluted. I emphasise that, under section 8 of volume 2, we will all still be responsible for remaining
"accessible to the people of the areas"
that we
"have been elected to serve"
and for representing them conscientiously. Our electors' wishes and their reasonable expectations of us as members of the Scottish Parliament remain paramount. The key issue remains accessibility and MSPs' accountability, which will in no way be diminished. My committee colleague Mr Alex Fergusson made that point well.
Mr Alasdair Morgan's submission to the committee was interesting. I did not agree with all of it—that is on the record—but the successor committee in the next session may wish to reconsider some of the interesting points about the relationship between constituency members and regional members.
Mr John Home Robertson's constituent was suffering a misapprehension—one of several, I believe—about mandatory committees. The relevant comments were made in a discussion that the Standards and Public Appointments Committee had about its legacy paper. Perhaps that will set the mind of the member's constituent at rest, although I doubt it.
It should be borne in mind that a code of conduct alone will not guide, inspire or make members better people. The code of conduct is just one way of achieving that. As John Home Robertson said, a natural desire is felt throughout the Parliament—among members of parties and of no party—to be accessible and to remain accountable to the people of Scotland. The Parliament has a good and commendable record on such matters. That is not to be complacent. Other legislatures are now anxious to follow that record, and quite right too.