Plenary, 27 Jun 2002

Meeting date: Thursday, June 27, 2002

Official Report 734KB pdf

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Scottish Parliamentary Standards Commissioner Bill: Stage 3

We move to stage 3 consideration of the Scottish Parliamentary Standards Commissioner Bill. Members should have a copy of the bill, the marshalled list containing the amendments selected for debate, and the groupings. I am not going to read out the rest of the rigmarole because members are familiar with the procedure.

Section 11—Withdrawal of a complaint

Amendment 1, in the name of Mike Rumbles, on behalf of the Standards Committee, is in a group of its own.

Section 11 of the bill allows a complaint to be withdrawn by the complainer at any time before the commissioner concludes the investigation into the complaint at stage 2. If a complaint is withdrawn, the bill at present requires the commissioner to cease the investigation. The complainer does not have to give any reasons for withdrawing the complaint.

During the stage 2 debate on the bill, amendments were made to section 11 to make it clear that when a complaint is withdrawn, the MSP concerned and, if withdrawal occurs at stage 2 of the investigation, the Standards Committee would be advised of any reasons given for withdrawing the complaint. During discussion of the amendments, the ad hoc Scottish Parliamentary Standards Commissioner Bill Committee expressed a number of concerns about the policy on withdrawal.

There was concern as to what happens if the reason for withdrawal is that the complainer considers the complaint to be ill-founded. There was also concern as to what happens if the reasons for withdrawal were damaging, for example if the complainer indicated that they had been pressurised to withdraw the complaint. Finally, the committee was concerned that an MSP should be able to have their name cleared by having an investigation concluded.

Subsequently, the Standards Committee has considered the views of the ad hoc committee. Amendment 1 seeks to give effect to that committee's main concerns. The Standards Committee agreed that there might be some circumstances in which it would be appropriate for a complaint to continue to be investigated, notwithstanding the fact that the complainer wishes the complaint to be withdrawn.

Amendment 1 therefore makes provision for complaints to continue to be investigated in certain circumstances at stage 2 of the investigation, by replacing the existing provision for withdrawal in section 11(2) with a new procedure dealing separately with stages 1 and 2 of the investigative process. As I mentioned, amendment 1 makes no change to the position in relation to complaints that are withdrawn at stage 1. At that point, the complaint is at a preliminary stage and the commissioner would not have sufficient information to take a view on whether the complaint should continue to be investigated.

The commissioner will continue to cease investigating such complaints following withdrawal by the complainer. The MSP and the Parliament will continue to be informed of any reasons for withdrawal given by the complainer.

Amendment 1 allows a complaint that is withdrawn at stage 2 of the investigative process to continue to be investigated if both the commissioner and the Standards Committee agree that the complaint should continue to be investigated. Allowance is also made for views of the MSP concerned to be taken into account when any such decision is made.

Amendment 1 therefore addresses the concerns that were raised regarding damaging reasons for withdrawal. It provides an opportunity, where it is considered appropriate, for an investigation to continue, perhaps leading to exoneration. It removes some control over the terminating of an investigation from the complainer, which could also lessen the possibility of pressure being applied to complainers to withdraw complaints. It helps to balance the desire of the MSP to confront damaging reasons given for withdrawing a complaint with the right of the complainer to withdraw. Finally, it provides the commissioner and the Standards Committee with the ability to conclude an investigation when there appears to be a matter that requires further investigation.

Separately, concern was expressed during the stage 2 debate about whether the bill required the commissioner to provide the MSP and the Parliament with a verbatim record of the complainer's reasons for withdrawal or whether the reasons could, if necessary, be summarised. Donald Gorrie asked that power be given to the commissioner to blandify the reasons given for withdrawal in appropriate circumstances. There could have been some doubt about that under the bill as drafted. Amendment 1 makes it clear that the commissioner has discretion to provide a summary of the reasons for withdrawal. That may prove useful when the withdrawal is contained in a lengthy communication. It will also allow any potentially defamatory material to be excised, and reduce the opportunity for additional publicity to be given to the views of the complainer.

Where the complainer's reasons for withdrawal make it clear that the complainer accepts that the original complaint was entirely unfounded, there is no need for any amendment. There is nothing in the bill to prevent the MSP concerned or the Standards Committee from making the reasons for withdrawal public, if that is their wish. It should be remembered, however, that withdrawal can take place only at stages 1 and 2, when the commissioner is involved. That investigation takes place in private and the MSP or the Standards Committee may not wish to make the reasons for the withdrawal of the complaint public if the complaint has never been in the public domain.

The Standards Committee and I are grateful to the ad hoc Scottish Parliamentary Standards Commissioner Bill Committee for the helpful and constructive comments that were made during stage 2. Amendment 1 will significantly improve the bill. It will allow investigations to be concluded where it is considered appropriate both to clear the MSP concerned and to conclude matters where there may be an issue of concern.

I move amendment 1.

I support amendment 1. The procedure of having a committee bill and then an ad hoc committee to consider the bill has not been used frequently, but it worked extremely well. All the members of the Scottish Parliamentary Standards Commissioner Bill Committee took their duties extremely seriously, which is not always the case in public bodies when one is put on a committee, because one does not always take it as seriously as one should. The ad hoc committee system worked.

The Standards Committee showed flexibility. It did not get defensive and ownership-minded about the bill, and it agreed to some changes. I commend to the Parliament the fact that the ad hoc committee had two informal sessions with Mike Rumbles, on behalf of the Standards Committee, and the officials. We gave him quite a hard time and, as a result, amendments were agreed to at stage 2. A whole lot of hassle that otherwise would have occurred at stage 2 was resolved in that way, and the amendments that were lodged were satisfactory to the Scottish Parliamentary Standards Commissioner Bill Committee. I recommend to other committees the use of informal discussions before stage 2, because that might resolve a lot of difficulties that arise later.

I welcome the bill and I welcome amendment 1.

I was interested to hear the views of members of the ad hoc Scottish Parliamentary Standards Commissioner Bill Committee at stage 2 in respect of withdrawn complaints. Members understandably were concerned that if the reasons given to the commissioner for withdrawing a complaint were tendentious or in effect maintained the complaint while formally withdrawing it, there was no mechanism in the bill for the matter to be resolved. Accordingly, a member might be left with the feeling that wholly unfounded allegations had been made about his or her character or propriety, which the withdrawal of the complaint had left hanging in midair. For those reasons, the Executive welcomes amendment 1, which inserts a mechanism into the statutory framework that allows investigations to be continued and completed in certain circumstances, notwithstanding the withdrawal of the complaint.

I further welcome the fact that members will be given the opportunity to advise the commissioner of their views on whether an investigation should continue. That information, together with the reasons given by the complainer for withdrawing their complaint, will fully inform the commissioner's decision on whether to recommend to Parliament that an investigation should continue.

The amended framework properly respects the rights of complainers and members. It also addresses the valid concerns that members expressed at stage 2. Therefore, the Executive commends and supports amendment 1.

Mr Rumbles, do you wish to add anything to wind up the debate on amendment 1?

No.

Amendment 1 agreed to.

Section 13—Power to call for witnesses and documents

Amendment 2 is grouped with amendments 3, 4 and 5. I call on Mike Rumbles to move amendment 2 and speak to the other amendments in the group.

Members are aware that one of the key features of the bill is that it gives the commissioner separate statutory powers to summon witnesses and obtain documents. The committee's policy was that those powers should be equivalent to the Parliament's powers under section 23 of the Scotland Act 1998. At present, that is achieved in the bill through section 13, which gives the commissioner equivalent powers to the Parliament's powers under section 23 of the Scotland Act 1998.

Under the Scotland Act 1998, the Parliament's powers can be enforced by the service of notices under section 24. It is an offence under section 25 of the act for a person to refuse to comply with the requirements of a notice. The bill ensures that the commissioner's powers can be enforced in an equivalent way to the Parliament's powers under section 23 of the act. That is achieved by adopting the drafting technique of simply applying sections 24 and 25 of the act with appropriate modifications—for example, to take account of the fact that notices will be sent by the commissioner rather than the clerk of the Parliament. That means that a person who refuses to give information or documents to the commissioner will be guilty of an offence under section 25 of the act, as applied by section 13(7) of the bill.

Following further consideration, rather than using that drafting technique, it was considered to be more user-friendly to set out in the bill in full the notice and offence provisions that apply to the commissioner's section 13 powers. That means that the bill can be read on its own and that the powers and offence provisions can be understood without the need to refer to the Scotland Act 1998.

Amendments 3, 4 and 5 make that change by deleting subsections 6 and 7 from section 13 and adding two new sections to the bill. Overall, amendments 3, 4 and 5 make no alteration to the effect of the bill. The notice and offence requirements for non-compliance continue to mirror the equivalent provisions that relate to the Parliament's powers in the Scotland Act 1998. I am happy to provide further details about the exact notice and offence requirements in the amendments if members wish.

Amendment 2 is a minor drafting amendment to section 13(1) to make the wording consistent with the remainder of that section and the equivalent provision in the Scotland Act 1998, which the subsection is intended to mirror. Again, I can provide more details if members wish.

I move amendment 2.

No member has asked to speak, so we will go straight to the minister.

Amendments 3, 4 and 5 bring clarity to the bill as to the commissioner's powers in respect of gathering evidence from witnesses. Amendment 2 is essentially a technical amendment that seeks to bring consistency to the bill. The Executive is happy to support the amendments.

Mr Rumbles, do you wish to respond?

No.

Amendment 2 agreed to.

Amendment 3 moved—[Mr Mike Rumbles]—and agreed to.

After section 13

Amendments 4 and 5 moved—[Mr Mike Rumbles]—and agreed to.

Section 15—Protection from actions of defamation

Amendment 6 is in a group on its own.

Amendment 6 deals with the question of privilege for people who communicate with the commissioner during an investigation. At present, section 15 gives the commissioner absolute privilege for all reports, statements and communications on a complaint, whether with the complainer, the witness or the MSP who is complained about. In effect, that places a bar on a person's right to pursue an action of defamation in respect of statements made by the commissioner.

The privilege that is given is consistent with the privilege that has been given to other investigating bodies and the intention was that the commissioner should be able to carry out investigations without being fettered by the threat of legal action. At present, the bill makes no provision for any other person involved in the investigation process to have privilege in relation to statements that are made to the commissioner.

During briefing for stage 2, concerns were raised that the absence of any such privilege in the bill would put MSPs in a better position than other people who are being investigated. A contrast was made with the situation of people who complain about solicitors, where those who provide information to the Scottish Solicitors Discipline Tribunal are protected by qualified privilege by virtue of statutory provisions. Under qualified privilege, individuals can make complaints against solicitors and can assist in the investigation of complaints against solicitors without fear of an action for defamation, provided their statements are not motivated by malice or intent to injure.

It was also suggested that by not having at least qualified privilege for complainers, the bill might encourage anonymous complaints. If complainers were afforded protection in relation to the law of defamation, they might be more willing to reveal their identities. The absence of any statutory privilege in the bill could discourage complaints and might discourage other individuals from communicating freely with the commissioner. It could also lead to complainers being forced to withdraw complaints through the threat of legal action.

The Standards Committee considered the views of the ad hoc committee and considered the approach taken in other legislation. We found that there was no consistent approach taken elsewhere in relation to the privilege afforded to persons communicating with investigating bodies.

After lengthy discussion, the Standards Committee agreed that some protection should be offered to complainers and others making statements to the commissioner to allow all stages of the investigation process to be carried out without the threat of legal action for defamation. We agreed that it would be sufficient to grant qualified privilege because that would protect those with genuine complaints while providing the possibility of recourse against those whose defamatory statements during the investigation process were motivated by malice or an intent to injure.

Amendment 6 provides qualified privilege to the maker of any statement to the commissioner during the investigation, namely the complainer, any other witnesses and the MSP concerned. If the amendment is successful, a printing amendment will be made automatically to section 15(1) to show the start of paragraph (a). I mention that in the certain knowledge that Kenneth Macintosh, who has taken a keen interest in all drafting matters, will be itching to point out that the amendment appears to contain a paragraph (b) without there being a paragraph (a). In fact, Donald Gorrie collared me just before I started speaking to ask me about the same subject.

We are indebted to the ad hoc committee for raising the matter that the amendment deals with. The amendment enhances the bill by increasing the protection afforded to genuine complainers and others communicating with the commissioner.

I move amendment 6.

The Executive welcomes amendment 6, which should ensure that all those involved in the complaints process are not in any way restricted in airing their views. I note the comments of Mike Rumbles about qualified privilege. Without such a provision, there might be a danger that the complainant would hold back from making a complaint for fear of legal action. It is important that such a situation does not arise. The protection provided will facilitate the unearthing of all the relevant facts surrounding a case and will therefore assist the commissioner to gather evidence. The Executive is pleased to support amendment 6.

Amendment 6 agreed to.