Standards Commissioner
The main item of business this afternoon is the Standards Committee debate on motion S1M-1901, in the name of Mike Rumbles, on a proposal for a committee bill to establish a standards commissioner.
I am pleased to be able to present the Standards Committee's proposal for a committee bill to establish a standards commissioner in the Scottish Parliament.
Colleagues will be aware that this is largely a procedural motion in accordance with the standing orders. At its meeting of 23 November 2000, the Parliament agreed the Standards Committee's recommendation to appoint a standards commissioner under an act of the Scottish Parliament. Accordingly, the purpose of today's debate is to decide whether it is appropriate that the necessary legislation be introduced via a committee bill and to discuss the committee's recommendations for the provisions to be contained in the bill. It is the unanimous view of the Standards Committee that a committee bill is the most appropriate vehicle through which to legislate for the appointment of a standards commissioner.
I will briefly remind colleagues of the primary reasons underpinning the committee's initial decision to recommend the appointment of a standards commissioner. The committee's full proposals are contained in our fourth report of last year. In recommending the appointment of a commissioner, the committee was primarily concerned with ensuring that there was a sufficient degree of independence within the procedure for investigating complaints against members. We felt that that was required to ensure public confidence in the system. The committee considered whether to recommend the appointment of a standards officer, which would not have required legislation. The primary argument against such a recommendation was the need for a standards officer without statutory powers to rely on the powers of the committee to summon witnesses and compel evidence. We believe that that could impact adversely on the adviser's perceived independence and might undermine public confidence in the robustness of the complaints procedure.
We are convinced that the appointment, under an act of the Scottish Parliament, of a standards commissioner with specific statutory power to summon witnesses and compel the production of evidence would be the principle bulwark of the independence of the post. The committee also agreed that the level of independence that a statutory standards commissioner would have could enhance the credibility of the post.
The complaints procedure that we propose will not only maintain public confidence in the Parliament, it will ensure that the rights of members are adequately protected. Members will be relieved to know that we are not proposing the introduction of a Star Chamber or the appointment of a witch-finder general. The commissioner will be responsible for the initial consideration and, if appropriate, investigation of all complaints against members, with the exception of those that are required by the "Code of Conduct for Members of the Scottish Parliament" to be referred to the Presiding Officer, the Scottish Parliamentary Corporate Body or the personnel office.
The commissioner's investigation will be carried out in private and independently of the committee. The committee will have the power to give guidance to the commissioner on certain investigative fundamentals that should apply to all investigations that he or she undertakes. The commissioner will also be required to notify the committee if his or her initial consideration of a complaint is likely to take longer than two months. In such circumstances, the Standards Committee may call for an interim report.
On completion of the investigation, the commissioner will be required to submit a report to the Standards Committee setting out his or her findings. A copy of the report will also be passed to the member who was the subject of the complaint. The commissioner will not be able to make recommendations on sanctions. That will remain the responsibility of the Standards Committee in the form of a report and a motion to the Parliament. The final decision on whether to impose sanctions on a member will continue to rest with the Parliament.
I want to make a small but important point. Will that report to the Parliament contain the evidence that the commissioner has considered? In other places, such evidence is published. The Parliament might want to know about such evidence.
Absolutely. All the information on the evidence obtained by the commissioner will be published and brought before the Parliament. Otherwise, it would be incredibly difficult, if not impossible, for the Parliament to make a decision. All the evidence will be made available to members.
The Standards Committee will also have the power to refer reports back to the commissioner for further investigation and to conduct its own review of the complaint, or indeed to reject the commissioner's report.
The bill will set out the procedures for appointing and removing the commissioner. We propose that it should be a parliamentary appointment, by which I mean that the commissioner should be appointed by the Scottish Parliamentary Corporate Body, following a resolution of the Parliament on a Standards Committee motion.
The commissioner will be appointed for a fixed term of office of not more than five years, and, although he or she will be eligible for reappointment, that will be dealt with in a manner consistent with the principles laid down by the Committee on Standards in Public Life—the Nolan committee—and with the guidance issued by the Commissioner for Public Appointments.
The bill will provide that the commissioner can be removed from office, following a resolution of the Parliament on a Standards Committee motion. The grounds for removal will be specified in the terms of appointment, rather than in the bill. Although we can see that there would be some advantage in including those grounds in the bill, the committee judged that that would be outweighed by the lack of flexibility that would ensue if changes made to the grounds for removal in the light of experience were prevented.
The bill will set out procedures for the submission of complaints. They should be submitted in writing and should not only include the name and address of the complainer, but should identify the member against whom the complaint is being made. The commissioner will be required to refer to the committee complaints not submitted in accordance with those rules, in order to decide whether they should nevertheless be investigated.
The committee has decided to include in the bill a provision that will require complaints to be submitted not more than 12 months from the time when the complainer should reasonably have become aware of the matter alleged in the complaint. Notwithstanding that, the committee will have a discretionary function in considering whether complaints that have been submitted outside that time limit should be investigated.
The commissioner will not be required to inform the committee of complaints that he or she judges not to warrant a full investigation. However, in order to enable the committee and the Parliament to retain an oversight of the number of complaints that are resolved in that way, and to maintain an overview of the complaints process, the commissioner will be required to submit an annual report to the Standards Committee and to the Parliament. The bill will also provide the committee with a power to call for interim reports on specific investigations.
It is only right and proper that the Parliament is seen to be promoting the very highest standards of probity for its members. In short, it is for the Parliament to ensure that its own house is in order. We think that a committee bill is the most appropriate legislative vehicle for making our proposal for a standards commissioner a reality.
I move,
That the Parliament agrees to the proposal for a Committee Bill under Rule 9.15 contained in the Standards Committee's 2nd Report 2001, Proposals for a Standards Commissioner Committee Bill (SP Paper 312).
The Executive welcomes today's short debate and is always ready to support measures that will ensure the highest standards of probity in public life. I believe that the standards commissioner bill will be such a measure.
The Standards Committee is correct in its view that it is essential to introduce an independent element into the process of ensuring public confidence in arrangements for investigating complaints against members. A statutory commissioner, appointed by the Parliament, with his or her own powers to summon witnesses and to require production of evidence, will, I believe, provide that independence.
I am pleased to see that, in its proposed appointment arrangements, the committee has sought to follow the principles recommended by the Nolan committee and the guidance issued by the Commissioner for Public Appointments.
In addition to maintaining the independence of the commissioner, it is vital to ensure that he or she is accountable. I am reassured to see that the bill will make provision for that through the arrangements for reports on individual complaints to be made to the committee and for annual reports to be made to the committee and to the Parliament. It is also right that the committee should be able to guide the commissioner on certain fundamental aspects of investigation procedure.
The Executive endorses the committee's proposal to limit the commissioner's role to the investigation of complaints, leaving the Standards Committee's clerks with the primary responsibility for advising members on standards issues. If the commissioner were to be responsible both for investigating complaints and for providing advice, that would undoubtedly lead to conflicts of interest, which could undermine the credibility of the complaints process.
Similarly, I am pleased to note that the bill does not seek to give the commissioner powers to recommend or impose sanctions against members. That is a matter that can properly be dealt with only by the Parliament.
Finally, the Executive considers it important that the introduction of a new measure such as this should not impose an excessive financial burden on the Parliament. As the committee's proposal refers only to the appointment of a standards commissioner, it would not seem to give rise to significant new costs. However, the Executive would be concerned if the commissioner were to be given powers to employ staff or to incur any costs other than reasonable day-to-day expenses.
Overall, the Executive believes that this is a worthwhile proposal, which will produce a robust and effective mechanism for investigating complaints against members. I commend the committee for its work. The Executive is pleased to support the committee's proposal for a bill.
I strongly support the initiative in this matter of Mr Mike Rumbles, the convener of the Standards Committee, and I agree with what the minister has just said.
As Mike Rumbles pointed out, the main purpose of the debate is to propose that the necessary legislation to introduce a standards commissioner should take the form of a committee bill. Essentially, we are dealing with good parliamentary housekeeping. Along with colleagues on the committee, I believe that it is appropriate that the legislation should be introduced through such a bill.
There were a number of factors that led us to recommend the appointment of a commissioner. From the Official Report, it is quite clear that the most influential of those was the need to include an independent element in our investigative procedures, as the minister has just recommended. Although independence is not a legal requirement, the committee heard that self-regulation tended to be viewed with suspicion and that the public would be sceptical of the claim that members would be impartial in investigating their colleagues. Therefore, an independent element is essential to ensure public confidence in the robustness of the Parliament's investigative procedures.
The committee is aware of the need for transparency and openness in its deliberations. Indeed, one of the key principles underpinning the Parliament is a commitment to openness and transparency. However, we are also conscious of the rights of members to be protected from malicious or frivolous complaints, so we have proposed, and the Parliament has agreed, that the initial stages of any investigation will be conducted in private and independently of the committee. The aims of that are to ensure that there is confidence in the robustness of an investigation and that malicious complaints are not awarded unwarranted attention. However, once the initial investigation has been completed and considered by the committee, it is envisaged that any further investigation by the committee will normally be conducted in public. All decisions by the committee will be made publicly and reports on each complaint will be publicly available. In that way, we hope to achieve the right balance between the need for a robust, but fair investigation and our proper commitment to transparency and openness in the decision-making process.
The committee is also keen to avoid any sense of its simply rubber-stamping the commissioner's conclusions. It will be for the committee to carefully consider those conclusions on their merits. The committee will retain the right to investigate any matters within its remit. The Official Report shows that we felt that a number of options would be open to us after we considered the commissioner's report: we could accept the report; we could refer it back to the commissioner to conduct further inquiries; or we could conduct our own investigation or review of the commissioner's report. As colleagues have pointed out, the committee will continue to be responsible for recommending to the Parliament whether sanctions are appropriate.
The sanctions that a member could face will be exclusion from proceedings of the Parliament; withdrawal of the right of access as a member to the parliamentary complex; withdrawal of the right of access as a member to parliamentary facilities and services; and removal of representational and related privileges that a member might usually enjoy.
A member who is complained about will have rights. The commissioner is required to invite the member who is under investigation to respond to the complaint. The member will also have the right to receive a copy of the commissioner's final report. If the commissioner identifies a breach of the code, the member will have the right to appear before the committee at stage 3, when he or she may challenge the findings. At stage 4, the member will have the opportunity, during a debate in the Parliament, to appeal against the committee's report on an issue of law or procedure or to appeal against the recommended sanction. Members will recall that there is also the possibility of judicial review.
My final point is on fair play. Once a recommendation has been made to the Parliament, the members of the Standards Committee will not vote on the sanction that they have recommended, in order to ensure the fairness of the process.
The proposal for a committee bill is a wholly sensible way forward. I congratulate the convener of the committee for having brought us to this point.
This is always a difficult time in a short debate, particularly when one is the closing speaker in the opening section of the debate. However, members should not sympathise with me too much—they should think of my colleague Tricia Marwick, who is to close the debate for the committee. To be frank, our colleagues have outlined eloquently and clearly all the proposals in the committee's report.
It is worth emphasising the fact that, as the committee went through its work, we were concerned about ensuring that the Parliament's founding principles were adhered to and that public confidence in the independence of the process that we are proposing was to be sacrosanct. We were also concerned to ensure that members could have confidence in not only the rigor, but the clarity of the process to which they might be subjected. We also wanted members to feel confident that the process was open and would allow them to submit appeals at the appropriate stages.
We took a lot of evidence before we reached our conclusions. I will highlight two of the issues that, for me, were crucial in reaching those conclusions. First, the commissioner will not be responsible for giving advice to members. The committee felt that that was crucial to the process, as we did not want the commissioner to find himself or herself investigating a member who had acted on advice given by the commissioner. That difficulty has been encountered in other Parliaments and we did not want to go down that road.
Secondly, we were clear that evidence-taking sessions held during an investigation by the commissioner should be held in private. At that stage, members are still innocent until a problem has been proven, and we believe that if those sessions are taken in private, members will have the confidence to speak freely to and to co-operate fully with the commissioner and to give him or her all the information that might be required from them.
I believe that the conclusions that we reached after that lengthy process are the right ones. Time will tell, but our experience so far of the temporary adviser, who has worked in a similar way to that proposed for the commissioner, leads me to believe that that will be the case.
In conclusion, I thank Sam Jones and Jim Johnston, the committee clerks, for steering us along that path. I look forward to the introduction in the Parliament of the committee report's conclusions.
I add the thanks of committee members to those of Patricia Ferguson for all the support that Sam Jones and Jim Johnston gave us when we were reaching our decisions. On behalf of my colleagues on the Standards Committee, I also thank members for their contributions to what has been an interesting, if short, debate.
It is clear that the committee's proposal for a standards commissioner has cross-party support and has been widely welcomed by members across the Parliament. That constructive approach reflects the consensual way in which the committee has sought to develop its policy in this area, and we welcome the Executive's support for our proposals.
The overwhelmingly positive response to our proposals reflects the extent of the commitment of members of all parties to ensuring that we maintain the highest standards of probity when we conduct our business. It is clear that the issue of standards in public life remains topical and we are all aware that we are constantly under the microscope of the press and other media as we carry out our parliamentary duties.
By recommending the appointment of a standards commissioner, we send the right message. That message is that we take the issue seriously and are wholly committed to ensuring the robust investigation of complaints against members. By so doing, we hope to reassure the people of Scotland that their new Parliament will not be afflicted by sleaze and corruption. Rather, members are bound by the key principles of the code of conduct, which set the tone for the relationship between members and those whom they represent.
We believe that the proposals strike a balance between ensuring that complaints are dealt with in a rigorous and transparent manner and making certain that members are not unjustifiably exposed to malicious or ill-founded complaints. In short, we aim to ensure that complainer and member alike can be confident that they are being treated fairly and justly.
I want to pick up on some of the key elements of the proposals. First, the bill will contain powers to enable the commissioner to summon witnesses and to compel the production of documentary evidence. Those powers will underpin the independence of the post, and that independence will be a critical guarantor of the confidence of the Scottish people and of members of Parliament in the complaints process.
Secondly, I want to highlight the commissioner's relationship with the committee and with the Parliament. As Mike Rumbles explained earlier, the commissioner will be responsible for carrying out investigations in private and independently of the Standards Committee. However, the committee will continue to be responsible for recommending whether the sanctions that are set out in rule 6.5 of the standing orders are appropriate. The commissioner's role will be restricted to a consideration of and decision on the facts of each complaint. It will be for the committee to scrutinise the commissioner's findings and to make the appropriate recommendations to the Parliament.
Thirdly, a decision on whether to impose sanctions on a member who has been found to have breached the code of conduct will be taken at a meeting of the whole Parliament. We believe that that is fundamentally important. It will also give the member the right to come before the Parliament to put his point of view.
On behalf of the committee, I commend to members the proposal for a standards commissioner committee bill. We are convinced that the appointment of a commissioner will be an integral component and demonstrate the Parliament's commitment to ensure that there is the highest order of probity in our affairs. The introduction of legislation to appoint a commissioner will mark another important milestone in our commitment to maintaining and strengthening the public's trust and confidence in the integrity of the Parliament and its members in conducting public business.
That draws the debate to a close. However, before we leave the subject altogether, I wish to say a word. The convener of the Standards Committee mentioned the informal arrangement for complaints of members against members, which will still come to me before they go to the committee, if that is necessary. I would like to take this opportunity to say that I am, frankly, disappointed at the number of such complaints that I am having to deal with. I hope that members who are not present will read this in the Official Report.
Having to deal with such complaints is, I find, quite the most tedious and distasteful part of my many duties. I appeal to all members to read the code of conduct carefully to see how they are supposed to describe themselves and how they are supposed to deal with each other so that we diminish these internal complaints. It is time that we took steps to do that—I see the convener of the Standards Committee nodding.