“Code of Conduct for Members of the Scottish Parliament” (Section 8)
The next item of business is a debate on motion S3M-3757, in the name of Gil Paterson, on behalf of the Standards, Procedures and Public Appointments Committee, on the "Review of Section 8 of the Code of Conduct". This debate will be slightly longer.
I welcome the opportunity to set out for members the work that the Standards, Procedures and Public Appointments Committee undertook on section 8 of the "Code of Conduct for Members of the Scottish Parliament", which sets rules for the conduct that is expected of members when they work with constituents and one another in their constituencies or regions.
In October 2007, the committee agreed to review section 8, having received correspondence from the Presiding Officer about how he would consider complaints that were made under the section. The committee also received feedback from MSPs that some terminology in section 8 was open to differing interpretations by MSPs and the public. In approaching its review, the committee sought written and oral evidence. I thank all those who engaged with the committee. The committee's report and the recommended revised section 8, which is in annex A to the report, represent significant work that was undertaken largely by previous members of the committee, whom I thank for their work.
I do not intend to comment on all the committee's recommendations; instead, I will focus on a few key changes. One change is to the key principles that are set out at section 8.2 of the code of conduct. The committee proposes that most of those key principles should become rules. However, it recommends changing key principles I and II.
The second sentence of key principle I is:
"All eight MSPs 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."
The committee noted that that key principle is contained in volume 1 of the code of conduct, which explains that
"key principles, as compared to the ethical standards set out in the Code itself, are aspirational in nature … The key principles … do not represent obligations and do not form the basis for imposing sanctions."
Key principle I was therefore not intended to be interpreted as a rule. The retention of a few key principles in section 8, when all the others were moved to volume 1, might have been an oversight.
The committee noted the Scottish Parliamentary Standards Commissioner's evidence that, in the case of almost every complaint that he had received in parliamentary sessions 1 and 2 about a member's service or quality of representation, the MSP who was complained about had made a reasonable—or, indeed, praiseworthy—attempt to act for their constituent. In session 3, the Presiding Officer has referred to the committee no complaints made under section 8.
MSPs are not employees of the Scottish Parliament and do not have a job description. It is for each MSP to judge what action—if any—is most appropriate in each constituent's case. The committee therefore decided to retain the key principle of accessibility and conscientious representation in volume 1, and to recommend removing it from section 8, because it is not a rule.
I turn to key principle II, which is that
"the wishes of constituents and/or the interests of a constituency or locality are of paramount importance."
Although it is true that MSPs will almost always take on a constituency case, there are good reasons why an MSP may, in exceptional cases, judge that he or she cannot act—for example, when a constituent is seeking legal advice. The key principle has been changed to a rule that reflects more appropriately the balance between the constituent's wishes and the judgment that an MSP exercises when considering his or her case load.
Section 8 requires regional MSPs to notify the constituency MSP when they take on constituency cases. However, the evidence that the committee received was that members in their regions can reach sensible agreements on sharing casework. Notification is, therefore, not an absolute requirement and, indeed, some cases can be solved so quickly that notification would serve no purpose whatever.
The committee agreed by majority decision to recommend removal of the rule from section 8. The committee also agreed by majority decision to recommend removal of the rule that appears to suggest to constituents that they should, in the first instance, approach their constituency MSP. That rule seems to be contrary to the principle that all MSPs have equal formal and legal status. It is for each constituent to decide which of their eight elected MSPs is best placed to address their concerns.
If it is agreed by Parliament, revised section 8 would come into force on 27 March 2009. It will provide members with a clear set of rules by which they must abide. It will also provide the public with a clear expectation of the conduct that they can expect from their MSPs. I am pleased to move the motion on behalf of the Standards, Procedures and Public Appointments Committee.
I move,
That the Parliament agrees to amend the Code of Conduct for Members of the Scottish Parliament by replacing Section 8 and Section 9.1.6(b) (in Volume 2) with Section 8 and Section 9.1.6(b) as set out in Annex A of the Standards, Procedures and Public Appointments Committee's 9th Report 2008 (Session 3), Review of Section 8 of the Code of Conduct (SP Paper 176), with effect from 27 March 2009.
I am pleased to be taking part in the debate. That said, I have to say in all honesty that, having seen the number of people in the public gallery, I had not realised that the debate was on quite so topical an issue. I am sure that people will learn something.
As a substitute member of the Standards, Procedures and Public Appointments Committee, my one and only attendance at committee was a painless affair, so I say to the convener that I would be happy to return.
The committee's report affirms my belief that all members of the Scottish Parliament—regardless of whether they are a member of a political party or none—take seriously their responsibility to assist their constituents. Indeed, only one of the number of complaints that was made to the standards commissioner was upheld for further investigation. Even after 10 years, there is still a need to ensure that constituents understand the role of the MSP. As the convener said, others may be better able to assist the constituent, including, as we know, the two arms of government, which have their own responsibilities.
I am currently dealing with a constituent's problem with his council's housing department. I am sure that I am not alone in that. Like many MSPs, I have a good working relationship with the local council, but despite that we have not resolved all the issues to the constituent's complete satisfaction. His response is that I should, as a member of the Scottish Parliament, simply tell the council what to do. Despite many discussions, he believes that I am not doing my job because I am neither prepared nor able to do that.
It is important that our code of conduct, which outlines how we should conduct ourselves, should be clear. Many constituents are confused about the roles that constituency and list MSPs play. The committee report lays great stress on the fact that all MSPs are equal—with that I do not disagree. However, in a Parliament in which we constantly celebrate diversity, it should be possible to accept that MSPs can have different roles but still be equal.
I regret that the report recommends removal of the need for regional list members to inform constituency members when they take up constituency cases and I am particularly concerned that that could lead to duplication. I suspect that the change may be a backward step at a time when use of public resources, especially officers' time and assistance, should be appropriate and cost effective. I do not deny that it is for constituents to choose whom they approach, but if the change leads to their going from one MSP to another in the hope of getting a different response, it may result in unnecessary duplication. I do not accept that the referral rule should be dropped just because it was not always followed; to me, that looks like rewarding bad behaviour.
I support the report's helpful reaffirmation of the provision that regional members should work in more than two constituencies in their region. I also support the proposal for complaints to be raised first with the Presiding Officer. As a fellow MSP, he or she will be best placed to take a well-informed view of complaints and how they should be processed. That is progress. With some reservations, I support the report.
Like most current members of the Standards, Procedures and Public Appointments Committee, I was not involved in the considerable amount of work that went into producing the report that we are debating. I, too, pay tribute to the members of the committee at that time, including my colleague Jamie McGrigor, and to the committee clerks for producing a much simplified and clearer expression of the conduct that is expected of members of the Scottish Parliament in carrying out their duties as elected representatives.
The committee spent a considerable time taking evidence on whether the key principles of the code of conduct—which Gil Paterson described—should be contained in section 8. That would mean that sanctions could be imposed on any member who was found wanting, especially in their accessibility to, and conscientious representation of, their constituents. The resultant decision of the committee to remove the key principles from the section should clarify their aspirational nature and allow MSPs to use their judgment on whether and how to take forward constituents' cases.
MSPs who gave evidence to the committee disagreed on the way in which individual cases should be dealt with, and the committee divided on the issue. Essentially, the differences concerned the respective roles and responsibilities of constituency and regional MSPs. The committee was right, by agreeing to remove from the code section 8.3.1, which refers to the "usual point of contact" for constituents, to dismiss the idea that such differences should be defined or reflected in the code of conduct, and to acknowledge that constituents have the freedom to choose which elected representatives to approach.
I agree with the committee's decision to remove the requirement for regional members to notify constituency members when they take on casework. In a number of cases that come my way, a considerable amount of work has already been done by the constituency member. Apart from affording that member the courtesy of knowing that I am also involved, it is useful to know what has gone before in order to avoid duplication of effort. However, some cases come to a regional member as a constituent's first choice. In such cases, there is not the same need to notify the local member, especially when that could be seen as a breach of confidentiality—a point that was made in evidence to the committee. We know, to quote Brian Adam, that
"the notification rule is honoured much more in the breach than in the observance."—[Official Report, Standards, Procedures and Public Appointments Committee, 18 March 2008; c 177.]
In my opinion, a rule that is widely broken is often not a particularly good rule.
In my experience, my fellow regional members and I have a good relationship with our constituency colleagues. We have worked successfully on a cross-party basis on a number of local north-east issues, and we regularly attend collective briefings by health boards, enterprise companies and the oil and gas industry. That is good practice, but I do not see the need for a statement on working collectively to be part of the code of conduct and am content with the proposal to remove that. However, I agree with Mary Mulligan that it is important for regional members to be seen to work for constituents across the region. The requirement for us to work in more than two constituencies in the region is a pragmatic way of ensuring that our activities are regional in nature.
There are other parts of the committee's report that I have not had time to touch on but, overall, the review of section 8 of the code of conduct has been carried out in a painstaking and sensible manner. The committee's recommendations should result in a clearer understanding of the role of MSPs, and in practical steps to ensure that our constituents are represented conscientiously and reasonably as we undertake our daily work as MSPs, whether constituency or regional. I am happy to support the committee's recommendation and the motion in Gil Paterson's name.
On the whole, the code of conduct for MSPs has served the Parliament well, but a pressure point has always been the relationship between constituency and regional MSPs. In some areas, that relationship works very well; in others, there is a history of personal tension, complaint and dissatisfaction. After a settling-down period, I have rarely had any problems or issues with colleagues in the Glasgow region—although I have some concern about the number of them who are in the chamber for the debate. It makes life much pleasanter all round if there are no such problems surrounding our daily work.
Like others, I joined the Standards, Procedures and Public Appointments Committee after the work on its report had been done by previous committee members. I do not entirely agree with the conclusions in all respects, and it might be helpful to lay out some of my thinking.
I agree with keeping the current requirement that regional MSPs should work across at least three constituencies. That is not a problem for me—regrettably, I do not have any other Liberal Democrat colleagues in the Glasgow region with whom to split the workload, but I am not against dividing up a region if more than one MSP is involved. However, that should not be viewed as an excuse for a regional member to shadow a single constituency, as has certainly happened in some places.
The provision requiring regional members to notify the constituency member when local casework is taken up is both reasonable and courteous. I occasionally forget, but I do not find the requirement particularly burdensome or unreasonable, and I disagree with the committee's view on the matter to a degree—but I do not disagree with the taking out of the surrounding related terminology, which was disproportionate. I do not find the fact that some regional members do not notify the constituency member a compelling argument for the committee's position. Regional members are required to notify the constituency member under the current rules, and the rules should be enforced. The fact that the rules are not always being operated is not a good reason for taking them away.
The report does not help with the more common—and annoying—situation in which a constituent e-mails one constituency member, the seven regional members and, probably, four councillors on the same issue, in the belief that pressure from 12 eminent people in support of their case will sort out their problems in a way that the support of one MSP would not. Perhaps we need some rules of conduct for constituents in that regard, more than for MSPs.
The Scottish Parliamentary Corporate Body and others who have been in authority over the years have been remarkably obtuse over the issue of party-political affiliations on notepaper, surgery notices and the like. That is a ridiculous example of a Westminster practice being inappropriately adopted in the Scottish Parliament. With the exception of one independent, all MSPs, regional or constituency, are elected on a party ticket, with the party name on the ballot paper. List MSPs did not even get their own names on the ballot paper at the last election.
When the Parliament was set up, it was argued that that system would allow people to approach an MSP of their own party, yet everything possible is done to prevent the electorate from knowing which party an MSP belongs to. Nothing could be more futile or self-defeating. I very much hope that the SPCB will take up the invitation contained in paragraph 53 of the committee's report to revisit that issue sensibly. Making a change will not be the end of the world as we know it; a proper injection of common sense would be helpful.
A further matter has been touched on by a number of members. In my experience, very few MSPs are anything other than conscientious and diligent in going about their duties. It must be their judgment whether and how to take up a case. I have some experience of that in a different capacity, as a lawyer in private practice, where similar considerations arise. MSPs are representatives, however, not delegates or agents, and the committee was right to endorse the view that
"there is ultimately a reservoir of judgment available to an MSP about the proper way to deal with a matter".—[Official Report, Standards, Procedures and Public Appointments Committee, 18 March 2008; c 174.]
That is not the sort of thing that should be subject to inquiry, or about which judgments should be made as to levels of service under the rules. On the very rare occasions when a constituent is dissatisfied with a member's refusal to take up a case—I do not think that I have done that during my time here—they have the option of approaching seven other MSPs, of various parties and experience, with their case. We ought not to get into a complex process regarding such matters.
Issues around the code of conduct are personal, not party political, and Liberal Democrats will, as always, have a free vote on these matters this evening.
We did not do a good job in July 2000 when we incorporated a memorandum from the then Presiding Officer lock, stock and barrel into the code of conduct. That memorandum contained guidance not only to MSPs but to staff, such as the education service and parliamentary telephonists. That was clearly ridiculous, so I am glad that we are getting rid of all the extraneous matter.
I agree with the removal of the provision that regional MSPs should, as a rule, contact constituency MSPs when they take on a case. I say that having served in both roles. The requirement generates bureaucracy and, as it is written in the code of conduct, infringes a constituent's right to confidentiality. I also agree that, as Nanette Milne said with her quotation from "Hamlet", it is
"More honoured in the breach than the observance",
although I take the point that that is not necessarily a reason to argue against it. Most important, it infringes constituents' democratic right to go to whomever they choose.
The removal of the key principles section—which, bizarrely, was never meant to be legally enforceable—is a good move. We should remember that the code is a quasi-judicial document that is enforceable by the Scottish Parliamentary Standards Commissioner as a result of an act of the Parliament. Therefore, we have to ensure that it is clear and unambiguous and that it does precisely what we want it to do.
Robert Brown said that the Parliament does everything to prevent people from knowing about our party affiliations. Would that the situation was as logical as that, because any parliamentary publication that I pick up—the Official Report or any of the electronic publications on the website—will quite happily say "Alasdair Morgan (SNP)". Apparently, that is all right but, as soon as I dare to issue my own notepaper with "Alasdair Morgan (SNP)" on it, the panoply of the Parliament descends upon me as if I have committed some heinous sin. Now that the requirement not to identify party affiliation on stationery is to come out of the code of conduct, it would be a good move for the SPCB to revise its guidance on what we can do. We are adult enough to distinguish between providing basic information, which is reasonable, and using parliamentary stationery for blatant party-political advertising.
We have not quite reached perfection in the committee's proposals, and I wonder whether the revision improves the code beyond peradventure. The proposed new section 8 says:
"Regional MSPs … must therefore work in more than 2 constituencies within their region."
I agree that regional MSPs should work throughout their region, but how much that happens will depend on practicalities. Robert Brown is the only Liberal Democrat MSP in his region, but there are five Scottish National Party members to cover the entire the South of Scotland region. I also wonder how working in that way can be proved and what the measurement should be. Furthermore, I do not see how the requirement will be enforced. In time, we may revisit that paragraph.
That said, I welcome the committee's conclusions and will vote for its recommendations.
Such debates may not be among the high points of Scottish politics, but they are important pieces of housekeeping. This debate is required for the reasons that Alasdair Morgan set out, namely that we adopted procedures early on that required to be reviewed in the light of experience.
As Gil Paterson pointed out, virtually all the key principles in the current section 8 of the code of conduct are retained in the new proposals. The exception to that is the duty to be accessible and conscientiously to represent constituents' interests. That has not been removed from the code, because it is already contained in volume 1, which is where it should be in the committee's view.
The principle that the wishes of the constituent be paramount has been clarified. It now better reflects the fact that there are some circumstances in which an MSP may not take on a case. That could be because of a matter of conscience, because of legal advice—as Gil Paterson said—or because a constituent has asked a member to take action by making a complaint against another constituent, which may not be appropriate. As Robert Brown rightly said, MSPs are not delegates or agents of constituents and must make a mature judgment about whether they can represent their constituents in all circumstances. That is now allowed to happen.
The references to local authorities and SPCB staff to which Alasdair Morgan referred have been removed, given that they are not subject to the code of conduct. The complaints procedures have been clearly set out, highlighting that complaints to the Presiding Officer should meet the same criteria as complaints to the standards commissioner.
More generally, evidence was received that MSPs seek to represent constituents as best they can. There is very little dispute between MSPs over casework, as others have said. There is evidence of MSPs working together, wherever that is appropriate, to assist constituents. That is sometimes done on the basis that an MSP may have specialist knowledge or interest in a particular area and sometimes in the belief that a number of MSPs acting together across the political parties may have better impact on the change that they collectively want to bring about.
Others have alluded to the fact that the majority of the committee recommended the removal of the requirement for regional members to notify constituency members when taking up constituency cases. I note what Mary Mulligan said about that. I respect her view and her regret that that notification is no longer required, but perhaps I can give her some assurance in relation to her concern about duplication. The evidence that the committee received suggested that the current process did not significantly avoid duplication of workload. Further, given that constituents could refuse to have their details passed on, notification was not an absolute requirement in any event. Further still, the practice has developed in some areas whereby constituency members have said quite clearly to regional members that there was no need to notify them.
Those and other reasons, including one to which Mary Mulligan referred—that all MSPs have equal formal legal status—reinforce the fact that constituents can approach any MSP for their area. Our electoral system provides members of the public with a measure of choice. The committee recognised that it is for constituents to decide who to choose to approach with their case. Mary Mulligan, Nanette Milne and Alasdair Morgan accepted that fact. That choice should not be fettered in any way by our rules. That is why the change that has been suggested is before us.
Presiding Officer, the final point that I want to make was also made by you from the back benches a few moments ago, in an excellent display of being able to swap hats, and by Robert Brown. I have some sympathy with the point that you made about headed paper. We are a Parliament that is supposed to be open and transparent. However, in terms of parliamentary procedure, the one thing that we are not supposed to do when writing letters to people is to be open and transparent about the political party that we represent, despite the fact that, as others have said, that is manifested in so many other dimensions of our lives. I hope that that can be reconsidered.
I am sorry, Presiding Officer, that you did not think that we had achieved perfection in our recommendations, but we are perhaps more on the way to perfection than we were before. I hope that the Parliament can agree to the changes that are proposed in annex A of the committee's report.
Of course, now that I am sitting in this chair, I am a completely different person.