Standards Commissioner (Appointment)
The first item of business today is the debate on motion S1M-1376, in the name of Mike Rumbles, on behalf of the Standards Committee, on the committee's fourth report, which deals with the investigation of complaints, the appointment of a standards commissioner and other matters.
It is with a great deal of pleasure that I am able, on behalf of my colleagues on the Standards Committee, to present the committee's fourth report of 2000. The main recommendations of the report concern the appointment of a standards commissioner and the adoption of a new investigative procedure for handling complaints of misconduct against members. Members will wish to note that, as an interim measure, the committee has appointed a temporary standards adviser, who is responsible for the initial investigation of complaints against members of the Scottish Parliament.
The report represents the findings of a substantial inquiry by the Standards Committee, which lasted nine months. I thank my colleagues on the committee for their endeavour in producing what I think is an excellent report, which sets out complex issues clearly.
As in previous speeches that I have made to the chamber on behalf of the Standards Committee, I am pleased to emphasise the consensual manner in which members of the committee approached the work. The report has the full backing of the whole committee. Its conclusions and recommendations were reached through constructive debate and reasoned argument and without resorting to a vote. I hope that Parliament will also endorse unanimously the recommendations of the report.
The committee addressed elements of the inquiry during nine meetings that took place between January and September this year. Early in our deliberations, we heard evidence from several witnesses who have expertise in disciplinary matters. The committee considered the manner in which complaints are addressed at Westminster, in the National Assembly for Wales and in Scottish local government. We also considered several issues papers that were prepared by the committee's clerks. The committee—having conducted our initial research and listened carefully to witnesses—considered four principal options: investigation by the Standards Committee; investigation by an independent commission; investigation by a standards adviser; and investigation by an independent commissioner. I will discuss each option briefly.
At the beginning of our inquiry, some committee members favoured investigation by the Standards Committee. Given the committee's remit, it was felt by those members that the committee had sole responsibility for investigation of the conduct of members and that we should do that openly and accessibly. Any departure from that principle could be considered to be a dereliction of the committee's responsibilities under standing orders. However, it became apparent early in the inquiry that that option was not practical, given the potentially time-consuming nature of a substantial inquiry and its subsequent impact on other aspects of the committee's work. Moreover, that option failed to meet a key element of the committee's initial criteria—it did not offer sufficient independence.
At the same time, we were mindful of the committee's remit to report on any matters that relate to the conduct of members in carrying out their parliamentary duties. Therefore, we concluded that the committee should retain a role in the investigation of complaints, to which I shall return later.
Investigation by an independent commission was the second option. The committee was aware of the Ethical Standards in Public Life etc (Scotland) Bill, which was making its way through Parliament at the same time as we were in the midst of our inquiry. That bill, which is now an act of the Scottish Parliament, recommended the establishment of a standards commission for Scotland and the appointment of a chief investigating officer who would have responsibility for complaints against councillors and members of devolved public bodies.
The committee considered closely whether the conduct of MSPs could be included in the commission's remit. We rejected that option on three counts. First, unlike some of the organisations that are covered by the commission, MSPs are subject to separate statutory regulations. Secondly, we did not believe that it would be constitutionally appropriate for the national standards commission to investigate the conduct of members of the body that established that commission. Thirdly, the committee expressed concern that appointees of the Executive, such as the chief investigating officer and members of the national commission, could have responsibility for enforcing the conduct of members of Parliament.
The third option that was considered was investigation of complaints by a standards adviser. The committee considered whether to recommend the appointment of a standards adviser, but the primary argument against such a recommendation is that an adviser would not have separate statutory powers and would need to rely on the powers of the committee to summon witnesses and compel evidence. We felt that that could impact adversely on the adviser's perceived independence and therefore we did not favour it as an option for the medium to long term.
We then arrived at the fourth option: to recommend the appointment of a standards commissioner. In recommending to Parliament such an appointment, the committee was concerned primarily with ensuring a sufficient degree of independence in the procedure for investigating complaints against members. Although that is not a legal requirement, we felt that it was needed to ensure public confidence in the system.
The principal bulwarks of that independence are the separate statutory basis for the appointment and the proposed powers that the commissioner would have. We recommend that the post of standards commissioner should be created under an act of the Scottish Parliament and that the post should attract independent statutory powers to summon witnesses and compel evidence.
It is hoped that the creation of such a post will allow complaints about the conduct of members to be investigated thoroughly and speedily and that it will assure the Scottish public of their Parliament's commitment to maintaining the highest levels of probity in the conduct of its affairs.
If colleagues express support in principle for the post, the details of the appointment can be addressed at a later date, when we deal with the necessary bill. However, given the relative size of our Parliament and the fact that more serious complaints could involve possible breaches of criminal law—and, therefore, referral to the procurator fiscal—we do not consider that there is a need for a full-time appointment. We recommend that the post should be introduced on a part-time basis.
I will turn briefly to our proposals for an investigative procedure to supersede the procedure that is outlined in section 10 of the "Code of Conduct for Members of the Scottish Parliament". We recommend the adoption of a clear and simple procedure that will apply to the investigation of all complaints against members, as outlined in the flow chart that is attached as annexe B to the committee's report, which members should have with them. Unfortunately—or fortunately, as some members might think—I do not have sufficient time to go through the procedure in detail; instead, I will address some of the main themes that concerned the committee when it drew up its proposals.
The process would have four stages, although all four stages would be gone through only in more substantial, contested cases. The first two stages would be the responsibility of the standards commissioner, acting in private and independently from the committee. The commissioner would be responsible for deciding whether a complaint warranted further investigation and for carrying out such investigations.
The commissioner would then be required to report to the committee with his or her conclusions on the facts. The third stage would be conducted by the Standards Committee, which would retain its remit—as set out in the standing orders—to recommend whether sanctions were appropriate. The committee might, at the third stage, decide to hold its own investigation or to review the commissioner's findings. The final stage would require Parliament to meet to decide whether to impose sanctions.
We considered also whether a distinction could usefully be made between trivial and serious categories of complaint, as recommended by the Neill Committee on Standards in Public Life. However, we concluded that a complaint that appeared initially to be quite trivial could, on investigation, turn out to be quite serious.
We considered further whether an investigation should be conducted in public or in private. The committee was concerned to balance Parliament's emphasis on openness and transparency with the potential loss of reputation that a member could suffer as a consequence of a malicious or unwarranted complaint. We concluded that the initial stages of an investigation should be conducted in private.
Some cases would not proceed beyond those stages. For those that would, we recommend that the later stages, including oral questioning of witnesses, should be conducted in public, with the usual caveat that the committee reserves the right to meet in private where circumstances demand that. We also recommend that investigations should be carried out as speedily as is consistent with the required degree of thoroughness.
We rejected the idea that the commissioner should be responsible for giving advice or for carrying out an investigation into a complaint against a member to whom the commissioner might have given that advice. Instead, we propose that the clerk to the Standards Committee should continue to have primary responsibility for giving advice on standards issues.
An appeals procedure was also considered and the committee felt that an appeals mechanism was appropriate. Our procedure would give members the opportunity to appeal against the commissioner's findings on facts at stage 3 of the process, and to appeal against the procedures of the investigation, together with any recommended sanctions, when Parliament met at stage 4.
The issue of standards is important and it is essential that we continue to build on the foundations that have already been laid, cementing the public's confidence in our ability to monitor properly our obligations to carry out our duties with integrity, selflessness and honesty. The proposals that I have outlined are intended to further that aim.
I move,
That the Parliament agrees the recommendations of the Standards Committee, as set out in its 4th Report 2000, on the investigation of complaints, the appointment of a Standards Commissioner and other matters.
As a member of the Standards Committee, I am pleased to speak on behalf of the Scottish National Party in support of the report and its recommendations. Mike Rumbles has outlined clearly the rationale that underpins the model of investigation of complaints that is detailed in the report.
I shall focus on one or two points of contention that were raised by members of other committees. I understand that some members of the Local Government Committee favoured the option of a national standards commission—as established under the Ethical Standards in Public Life etc (Scotland) Act 2000—as the investigatory authority for complaints against MSPs. Questions arose about why councillors and MSPs should not face the same regulatory regime and why MSPs should be allowed self-regulation through the Standards Committee of the Parliament, while councillors are not allowed such self-regulation. Clearly, in asking that last question, the key point—that the Scotland Act 1998 set the standards regime for the Parliament—was missed.
In the Standards Committee's view, the proposal that Parliament should appoint an independent standards commissioner—who would be invested with statutory powers to conduct his or her duties thoroughly and without fear or favour—is a far superior solution to that which would be provided by a national standards commission that was appointed by the Executive. Above all else, such an appointment should inspire public confidence in the conduct of our affairs and should enhance the reputation of the Parliament.
On investigation and reporting, members will note that the Standards Committee recommends a more open procedure than that which has been adopted by the Westminster Parliament, where all meetings and hearings of the Standards and Privileges Committee are held in private. Members should consider the damage that would have been done to the Scottish Parliament's reputation if the Standards Committee had conducted its lobbygate inquiry in such a fashion. Although it is appropriate that the standards commissioner should conduct investigations in private—not least to protect the reputations of members who are subjected to malicious or unwarranted complaints—it is surely right that, once it has been established that there is a case to answer, an open and public procedure should be adopted as the norm by the Standards Committee. It is also right that members who are found by the committee to be in breach of the MSPs' code of conduct to the extent that sanctions must be applied, should have a right of appeal.
Parliament is the most appropriate locus for consideration of the committee's report on a breach of the code of conduct. It is entirely appropriate that, although members of the Standards Committee may speak to such a report and its recommendations, they should not have a vote that would affect the final decision.
I commend the Standards Committee's report.
Conduct unbecoming has been a phenomenon in Parliaments over the centuries. I recall an allegation that was made against a very colourful member of Parliament called Sir Walter Bromley-Davenport, to the effect that he had allowed his enthusiasm to run away with him. He had been appointed as a whip and was told to prevent any member from leaving the House of Commons before having voted. It was alleged that he had seen a man skulking off in the darkness, had given him a kick in the pants and asked him where he thought he was going, only to be informed that he had just floored an ambassador. I understand that, after that, his sojourn in the whips office came to an end. Today he would be reported to the Standards Committee.
We need to ask whether our procedures are equal to dealing with all the issues that might come before us. I believe that they are and I strongly support Mr Mike Rumbles in his move to create a standards commissioner. As he pointed out, the Standards Committee has spent a considerable period examining a range of options and considering closely the views of witnesses who have expertise in disciplinary matters and investigation. The committee's primary concern in agreeing to recommend a commissioner was the need to maximise public confidence in the proposals. The committee felt that an independent element was necessary in our investigative procedures. Quite simply, we came to the conclusion that the public would not necessarily trust members to be impartial when investigating their colleagues. We agreed that the level of independence that the commissioner would have could enhance the credibility of the post. He or she would be expected to act independently of the Standards Committee in the initial investigation of complaints and to present a report to the committee on his or her investigation of the facts about whether a breach of the code of conduct had occurred.
We support the creation of the post of commissioner because it would be created by an act of the Scottish Parliament, and the person who was appointed would have the statutory powers to summon witnesses and to compel them to give evidence. It is expected that the post of commissioner would initially be part time, although he or she would need to be flexible in the event of a major inquiry being necessary. The commissioner would not have an advisory role, but the clerks would continue to advise members on standards. There would therefore be a separation of responsibilities and a meaningful division of labour.
The committee felt that it was necessary to have one clear, simple procedure for investigations, appropriate elements of which could be used in all cases. We also agreed that one individual—a standards commissioner—should have the job of sifting complaints, to ensure a consistent approach.
We were concerned about the impact on a member's reputation of unwarranted or malicious complaints. For that reason, we felt that there was justification for conducting the first stages of inquiries in private, to establish whether complaints had any foundation. Moreover, we felt that investigations should be carried out as speedily as is consistent with thoroughness.
We were also influenced by Parliament's commitment to openness and transparency. For that reason, we agreed that the later stages of an investigation should normally be carried out in public. For example, if the committee decided to take oral evidence from the member against whom the complaint was being made and from other relevant witnesses, that would normally be done in public.
I commend the motion to the chamber—I believe that agreement to it will enhance the stature of the Scottish Parliament. Like Caesar's wife, the Parliament—and, I hope, its members—must be beyond reproach.
As a member of the Local Government Committee, I was one of those who was attracted by the idea of a single approach to the question of ethical standards—an approach that covered MSPs, councillors, quangoists and others. However, having listened carefully to Mike Rumbles and the other speakers, I accept that the arguments for separate systems are stronger. I am now happy to abandon my initial hope that there should be one overall system.
It is important that an independent person should be involved. The idea that any organisation—whether it is made up of doctors, stockbrokers, members of Parliament or bus drivers—can operate on the basis of self-regulation is a complete fallacy, because people will not be dispassionate. Recently, the troubles of President Clinton have shown that a concerted campaign can be waged against somebody on an acrimonious, party political basis. There is also evidence that even members of a different political party can go easy on the person who is in the dock. In its heyday, the Victorian Liberal party did not, as the Opposition, cover itself in glory during the inquiry into the Jameson raid into Boer territory in South Africa.
A "there but for the grace of God go I" attitude can mean that on some occasions people are too soft on their colleagues and on other occasions they are too hard on them. An independent commissioner is the answer. The Standards Committee has done a good job and I am happy to sign up to its proposal.
I call on Tricia Marwick to close this short debate on behalf of the Standards Committee.
As Mike Rumbles pointed out in his opening speech, the report is the outcome of a major part of the Standards Committee's work over the past nine months. It is a substantial report that deals with several complex issues, which I and my colleagues on the committee have enjoyed grappling with. Our thanks go to the committee clerks for their guidance and unfailing good humour.
Much of the committee's work to date has been about laying the foundations for the future conduct of Parliament and its members. The recommendation to create the post of independent standards commissioner is another example of that work. I hope that the appointment of a commissioner would emphasise the Parliament's commitment to the highest level of standards in public life—the public have the right to expect such a commitment. We believe that the report's proposals on the independent and thorough investigation of complaints about members' conduct will go a long way towards convincing the Scottish people of that commitment.
The report proposes a clear set of investigative procedures, which are fair and robust. The committee recognises that, in the interest of fairness, it is essential that members and the public are fully aware of the procedures that should be followed when investigating complaints.
It is fair to say that, when the committee started the inquiry, a number of colleagues shared my view that the Standards Committee should continue to investigate complaints on its own. Having dealt with lobbygate, we felt that we had demonstrated the committee's capacity to carry out an investigation thoroughly, speedily and independent of our political affiliations. However, having taken evidence from several witnesses, we accepted that the investigation of complaints could become substantially time consuming and could compromise the committee's other work. We came to the unanimous view that such a proposal was not compatible with our emphasis on the need for an independent element in our investigative model.
At the same time we were conscious of the committee's remit as prescribed in the Scotland Act 1998 and Parliament's standing orders. The commissioner would therefore report to the Standards Committee and the committee would review the commissioner's conclusions before it decided whether sanctions were appropriate. However, Parliament would make the final decision, on a case-by-case basis, on the extent and duration of any sanctions.
The Scotland Act 1998 (Transitory and Transitional Provisions) (Members' Interests) Order 1999 (SI 1999/1350) enables Parliament to prevent or restrict a member's participation in proceedings when he or she has failed to register or declare a registrable interest. Certain breaches of the members' interest order on the registration and declaration of interests and paid advocacy could constitute criminal offences. In such cases, the complaint would be referred to the procurator fiscal.
Members will wish to note that the committee has agreed to conduct a review of the members' interests order. As the first part of that process, we will consult colleagues widely. Members will receive a consultation paper presently. I urge all members to take time to input into the process, because the members' interest order has an important bearing on us all. It is vital that we understand it fully. The Standards Committee's inquiry is aimed partly at improving its clarity.
The Standards Committee remains fully committed to developing procedures that reflect the Parliament's commitment to the highest level of probity in our affairs and to fairness for members. I have no doubt that, in recommending the proposals that are set out in our fourth report on the investigation of complaints and the appointment of a standards commissioner, we will add to the previous building blocks that the committee has recommended.