Section 2 — The Commissioner's functions

Public Appointments and Public Bodies etc (Scotland) Bill: Stage 3 – in the Scottish Parliament at 2:38 pm on 5th February 2003.

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Photo of George Reid George Reid Scottish National Party 2:38 pm, 5th February 2003

Group 1 is on the preparation of the code of practice. Amendment 3 is grouped with amendment 8. I call Mr Neil to move amendment 3 and to speak to amendments 3 and 8.

Photo of Sandra White Sandra White Scottish National Party

I will speak to amendment 3 instead of Alex Neil. I am sorry about the confusion; I did not press my request-to-speak button in time.

Amendment 3 pertains to the preparation of the code of practice and would require a draft code to be laid before the Parliament. The amendment would ensure that the Parliament was aware of and approved the code of practice before it was published, which would ensure transparency and parliamentary scrutiny.

I move amendment 3.

Photo of George Reid George Reid Scottish National Party

There is a buzz in the chamber. I would be most grateful if members could keep the noise down.

Photo of Peter Peacock Peter Peacock Labour

Amendments 3 and 8 relate to the preparation by the commissioner for public appointments in Scotland of the code of practice. I cannot support amendment 3, for the reasons why I could not support a similar amendment that the Local Government Committee rejected at stage 2.

At stage 2, I outlined the sort of person whom I expect to be appointed as commissioner and it is worth while repeating that to set the context for the debate. It must be remembered that the commissioner is likely to have considerable experience in public life in Scotland and to be someone who has standing, integrity, objectivity and sound judgment, and who will be rigorous and scrupulously fair. The commissioner will be appointed by the Queen on the recommendation of the whole Parliament. No person without the qualities that I described—and many more—would be likely to receive Parliament's approval.

Parliament will not be appointing an office junior who needs explicit instructions on how to order their work on their first day in office. The bill provides some basic rules, but allows flexibility in the code's interpretation, because of the diversity of organisations that the code covers and the diversity of appointment circumstances. That is important.

Almost everybody recognises and accepts that the commissioner's independence is paramount to his or her effective function—it is the cornerstone of retaining public confidence in the regulation system. Requiring the commissioner to lay the code of practice before the Parliament for approval would undermine that independence. Amendment 3 would extend Parliament's role significantly beyond what the Executive and the Local Government Committee in its stage 1 report believed to be appropriate.

As part of the process that we are establishing today, the commissioner will be required to consult extensively Scottish ministers, the Parliament and the public in drawing up the code. Parliament will be able to express its view on the draft code clearly and unambiguously. However, it is essential that the commissioner should retain the right to the final say over the code's content. That will be crucial to enable him or her to act independently of Parliament and to exercise discretion in considering breaches of the code.

To have the code approved by the Parliament would mean that the commissioner could, in effect, be directed in the exercise of his or her functions. It would also mean that the politicians whom the code will govern could have undue influence over its content, which would leave them open to the charge that they are trying to limit its scope. The code requires to be, and be seen to be, independent of those politicians.

Having the code approved by Parliament would also leave scope for any unscrupulous political party to seek deliberately to divide the Parliament on the issues, solely for the purpose of subsequently criticising the code, decisions under it and so the public appointments system. That would be highly damaging.

Executive amendment 8 relates to consultation of the public on the commissioner's code of practice. The amendment meets the broad intention of Sandra White's stage 2 amendment 42. There is undoubtedly merit in the commissioner's consulting the public. Public consultation will underline the principles of openness and accountability that are vital to the commissioner's role and will contribute to public confidence in and awareness of the commissioner's role. The gathering of views from as wide a range of people as possible will make the code of practice a more effective tool. As I said, the commissioner will retain the final say on the code of practice as a vital part of his or her role as an independent arbiter, but extensive consultation will be an important part of his or her methodology for developing the code.

I invite Sandra White to withdraw amendment 3.

Photo of Iain Smith Iain Smith Liberal Democrat

Amendment 3 should be rejected, because the important aspect of the bill is its intention to provide the correct balance between an independent commissioner and parliamentary scrutiny and accountability. Following amendment at stage 2, the bill gets that balance right. It allows the commissioner to go about his or her work free from political interference—whether from the Executive or the Parliament—but it provides the backstop that, if the Executive ultimately fails to act in accordance with the code, the Parliament can intervene.

That is the right balance: it is the balance that we seek to achieve in the public appointments part of the bill. To require the Parliament to approve the code of practice would be to undermine the important independence of the commissioner.

I urge the Parliament to reject amendment 3

Photo of Tricia Marwick Tricia Marwick Scottish National Party 2:45 pm, 5th February 2003

I rise to speak in support of amendment 3—members will expect me to do so.

The arguments that were put forward by the minister do not stand up. The Scottish Parliament has appointed a Scottish parliamentary standards commissioner and it is also responsible for approving the code of conduct for MSPs. It seems entirely reasonable that the Parliament should have a say on a draft code of practice, which should meet with the approval of the Parliament. I ask the chamber to support amendment 3.

The SNP will support amendment 8. As the minister said, it reflects an amendment that Sandra White lodged at stage 2.

Photo of George Reid George Reid Scottish National Party

The question is, that amendment 3 be agreed to. Are we agreed?

Division number 1

For: Adam, Brian, Campbell, Colin, Canavan, Dennis, Crawford, Bruce, Cunningham, Roseanna, Fabiani, Linda, Gibson, Mr Kenneth, Hamilton, Mr Duncan, Hyslop, Fiona, Ingram, Mr Adam, Lochhead, Richard, MacAskill, Mr Kenny, MacDonald, Margo, Marwick, Tricia, McGugan, Irene, McLeod, Fiona, Neil, Alex, Paterson, Mr Gil, Robison, Shona, Russell, Michael, Sheridan, Tommy, Sturgeon, Nicola, Swinney, Mr John, Welsh, Mr Andrew, White, Ms Sandra
Against: Aitken, Bill, Alexander, Ms Wendy, Baillie, Jackie, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Butler, Bill, Chisholm, Malcolm, Craigie, Cathie, Curran, Ms Margaret, Davidson, Mr David, Deacon, Susan, Douglas-Hamilton, Lord James, Eadie, Helen, Ferguson, Patricia, Finnie, Ross, Fitzpatrick, Brian, Fraser, Murdo, Gallie, Phil, Gillon, Karen, Godman, Trish, Gorrie, Donald, Harding, Mr Keith, Henry, Hugh, Home Robertson, Mr John, Hughes, Janis, Jackson, Dr Sylvia, Jackson, Gordon, Jamieson, Cathy, Jamieson, Margaret, Jenkins, Ian, Johnstone, Alex, Kerr, Mr Andy, Lamont, Johann, Livingstone, Marilyn, Lyon, George, Macdonald, Lewis, Macintosh, Mr Kenneth, MacKay, Angus, Maclean, Kate, Macmillan, Maureen, Martin, Paul, McAveety, Mr Frank, McCabe, Mr Tom, McIntosh, Mrs Lyndsay, McLeish, Henry, McLetchie, David, McMahon, Mr Michael, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Monteith, Mr Brian, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Munro, John Farquhar, Murray, Dr Elaine, Oldfather, Irene, Peacock, Peter, Peattie, Cathy, Radcliffe, Nora, Robson, Euan, Rumbles, Mr Mike, Scanlon, Mary, Scott, John, Scott, Tavish, Simpson, Dr Richard, Smith, Elaine, Smith, Iain, Stone, Mr Jamie, Thomson, Elaine, Tosh, Mr Murray, Wallace, Mr Jim, Watson, Mike, Young, John

Photo of George Reid George Reid Scottish National Party

The result of the division is: For 25, Against 76, Abstentions 0.

Amendment 3 disagreed to.

Photo of George Reid George Reid Scottish National Party

We move to group 2, on matters to be covered in the code of practice. Amendment 5 is in a group on its own.

Photo of Alex Neil Alex Neil Scottish National Party

As members know, the bill transfers the functions that are carried out at present by Dame Rennie Fritchie, the United Kingdom commissioner for public appointments, to a new Scottish commissioner. In doing so, we should consider the problems that Dame Rennie has faced in the past in trying to achieve her objectives. We need to go way back to the days of the Nolan committee and the Neil committee to consider the first principles of what we are trying to achieve in the bill, which is a public appointments system that is not only transparent but also fair in every respect. The system has to be fair to the applicant as well as to others.

One of the problems that Dame Rennie has faced is that she has no power to veto an appointment or a proposed appointment on the ground of political imbalance. In answers that have been given by ministers ever since the Scottish Parliament was established, and despite all the protestations the length and breadth of Scotland—

Photo of Alex Neil Alex Neil Scottish National Party

I will do so in a moment.

Those protestations have been made in civic society as well as in the Parliament. No matter what period is examined, the figures show that anything between 60 per cent and 80 per cent of all appointees who declare a political affiliation came from one party, namely the Labour party.

I cannot believe that 60 per cent of the talent in Scotland votes Labour when Labour scores less than 40 per cent in any election. There are even some Liberal Democrats with talent out there who could fill some positions. [MEMBERS: "No."] That is debatable.

The purpose of the amendment is to fill the gap in relation to the new commissioner's powers that Dame Rennie currently has.

Photo of Sylvia Jackson Sylvia Jackson Labour

Will the member define what he means by political imbalance, although I think that he has given his interpretation? Does he agree that we want a public appointments system to operate on merit, and not with any political emphasis?

Photo of Alex Neil Alex Neil Scottish National Party

That is precisely the point. I do not believe that all merit belongs to one party. We have many talents in Scotland, and every other party is grossly underrepresented in the appointments systems. We are trying to ensure that the code of practice—the detail of the bill's implementation—will not be used and abused by the Liberal Democrat-supported Labour Executive to maintain the system of cronyism that it has practised in Scotland for years.

Photo of John Young John Young Conservative

The member has talked about the political imbalance in some public bodies. In view of that, does he think that all applicants for public posts should publicly declare the name of any political party of which they have been a member?

Photo of Alex Neil Alex Neil Scottish National Party

At present, people must do that when they register; they must declare their political activity. I am trying to build that into the code of practice.

Photo of John Young John Young Conservative

The point that I am making is that applicants do not have to declare that aspect.

Photo of Alex Neil Alex Neil Scottish National Party

That is why the law needs to be strengthened and why the amendment should be built into the code of practice so that, through secondary legislation, the Executive does not do the dirty on the Parliament by maintaining a system of cronyism by the back door.

The bill was supposed to be about the new politics, and about cleaning up Scotland. Part of cleaning up Scotland is to get rid of Labour cronyism once and for all.

I move amendment 5.

Photo of Peter Peacock Peter Peacock Labour

I can see that Alex Neil is on a subject that he enjoys. I enjoy the subject too.

A similar amendment was rejected by the Local Government Committee at stage 2. The committee rejected it and associated amendments because they were muddled, wrong in principle and impractical.

On the face of it, the amendment is designed to ensure that political activity, including donations to political parties, are known about before a selection takes place. However, it is not clear how that information would be used. Would it be ignored, or used in a particular way? If it were to be ignored, because political affiliations and political activities should not be a consideration in appointments, what precisely is the purpose of the amendment? If the information is to be used, how will it be used?

As I said, the amendment is muddled. Far from ensuring that political activities and affiliations have no place in the selection of candidates for public appointments, the amendment would have the effect of putting such matters at the heart of the selection process. Someone less charitable than I might say that such politicisation of the process is precisely Alex Neil's intention.

I know that Alex's paranoia about the Labour party sometimes takes him into territory which even he in his more rational moments must have doubts about. He has peddled another myth this afternoon. He knows very well that less than 10 per cent of all public appointees are people who have been active in the Labour party, just as no other political party accounts for more than 10 per cent of public appointees.

It would also be inappropriate at this time for the bill to prescribe in such detail what the code of practice should contain. Ministers, the Parliament and the public will be consulted on the code of practice and will contribute directly to what is specified therein. As the commissioner will make the final decision on the content of the code of practice, we should not prejudge it here.

In any event, the bill already provides the necessary safeguards to ensure that political activity is not a consideration in the appointments process. Section 2(9)(a) states that the commissioner is to exercise his or her functions with a view to ensuring that

"appointments ... to the specified authorities are made fairly and openly".

That is a specific provision, which has been carefully drafted to capture all the requirements that will ensure that appointments are made on merit.

If appointments are not made fairly and openly, they cannot, by definition, be on merit. Therefore, it should go without saying that for an appointment to be made fairly and openly, political activity cannot, should not and must not be a consideration in the appointments process.

Under the current system, applicants are asked whether they have been politically active only to enable the monitoring of political activity of candidates in so far as it is already in the public domain. Amendment 5 asks that all political activity be declared. That is simply impractical. As I said to the committee when dealing with the amendment at stage 2, I suspect that no one in the chamber could recount to me all the political activity that they undertook in a three-month period four years ago, let alone absolutely all such activity in a five-year period.

Further, to establish, in effect, new law on political donations, as the amendment would do, by requiring that every financial donation be declared, is potentially beyond the powers of the Parliament. A financial donation is not defined and there is no de minimis amount. Would a £1 raffle ticket purchased from a local branch of a political party count or not? What happens if someone forgets to declare such an innocent action and that later becomes known, or they forget a particular bit of political activity that was undertaken during a five-year active political period?

Under other amendments lodged by the SNP, any of those breaches would become breaches of the code and would have to be reported to Parliament. Again, the practicalities of that are not only ludicrous, but potentially damaging to the public appointments process.

The amendment is also unnecessary. The UK commissioner's code details in an entirely sensible way the definition of political activity, including a recordable donation to a political party as defined by the Political Parties, Elections and Referendums Act 2000, and asks the applicant to tick the appropriate box. I fully expect the Scottish code to cover similar ground. In any event, we will be invited to have our say on its content and we can deal with the matter then.

Amendment 5 is muddled, wrong in principle and impractical. Worse still, it has a McCarthyite tone and intent about it. It is linked to other amendments on reporting to Parliament that the SNP has lodged. It is the witch hunter's amendment. It is the show-trial amendment. It follows on from the disgraceful behaviour we witnessed in the chamber just a few weeks ago on the freedom of information commissioner appointment, when the SNP sought purposefully to politicise the appointments process.

Amendment 5 is specifically designed to pave the way for show trial after show trial in Parliament. It takes us into dangerous and unnecessary territory—unnecessary because the bill already provides for all the necessary safeguards. Accordingly, I invite Alex Neil to withdraw amendment 5 or Parliament roundly to reject it.

Photo of Keith Harding Keith Harding Conservative

Since stage 2, I have reflected on the amendment and I am disappointed that the Executive is not prepared to take it on board. I believe that it would lead to greater transparency and fairness and should cause no concern to anyone unless they have something to hide. I also believe that it would go some way to overcoming accusations of cronyism.

Photo of Iain Smith Iain Smith Liberal Democrat

Not surprisingly, I could not agree less with Keith Harding. He has obviously not reflected sensibly on the amendment. The amendment proposes to do the opposite of what the bill intends. The bill intends to depoliticise the appointments process. It intends to ensure that every appointment to a public body in Scotland is made on merit and merit alone. The amendment proposes that, even before someone is appointed, they must declare political affiliation. That is the opposite way round. If someone declares their political affiliation, the people involved in the appointments process will know their political affiliation and it might influence their decisions. That does not make sense.

Photo of Tricia Marwick Tricia Marwick Scottish National Party

If the present system is so fair and transparent, can Iain Smith explain why between 60 per cent and 80 per cent of all applicants who declare a political affiliation come from one political party?

Photo of Iain Smith Iain Smith Liberal Democrat

If the present system were so fair and transparent, we would not be amending it through the bill, would we? That is the point of the bill—we are changing the system. We are bringing in an independent commissioner to monitor the system. The SNP keeps bandying about figures about the number of political appointments. SNP members must bear in mind the fact that political appointments make up a small proportion of the total number of appointments. SNP members keep bandying about figures as if, somehow, a huge number of political—

Photo of Iain Smith Iain Smith Liberal Democrat

Not at the moment; I am finishing a point.

The SNP talks about a huge number of people from one party being appointed, but the vast majority of people appointed to public bodies are not affiliated to any political party. Let us get real about that and be honest about it.

Photo of Murdo Fraser Murdo Fraser Conservative 3:00 pm, 5th February 2003

I am obliged to Mr Smith for giving way. I listened with interest to his argument. Does he not realise that no less than three of the five people recently appointed to the Gaelic board of Scotland declared political affiliation to the Labour party? That is an example of what is wrong with the current system.

Photo of Iain Smith Iain Smith Liberal Democrat

The first question to ask is who applied. It is unlikely that any Conservatives applied to that body. The affiliation is declared after the candidates have been considered on merit. The whole purpose of the bill is to ensure—

Photo of Michael Russell Michael Russell Scottish National Party

The member asked who applied for Bòrd Gàidhlig na h-Alba. I can tell him.

Photo of Iain Smith Iain Smith Liberal Democrat

Amendment 5 says the opposite of what the SNP said in one of its amendments at stage 2. An amendment that was submitted in Sandra White's name and which had Alex Neil's support said that the code of practice should

"set out the policies and procedures to be adopted to ensure that the political affiliation, or perceived political affiliation, of any applicant for an appointment mentioned in subsection (1) is not taken into account in any decision to appoint or not to appoint the applicant."

How can that be ensured if the applicants are required to declare their political affiliation right at the start of the process, before any politician is involved? The initial part of the process will go through officials and the observer who is appointed by the commissioner. Amendment 5 does not represent the right way of going about the process.

Amendment 5 should be rejected not only because it is ill conceived and politically motivated, but because it is wrong to single out in the bill one particular aspect for inclusion in the code. Nothing else about what will be in the code appears in the bill, so there is no reason to include the aspect in question.

I suggest that members should reject amendment 5, as it is ill conceived, politically motivated and runs counter to the whole purpose of the bill.

Photo of Sandra White Sandra White Scottish National Party

Once again, Iain Smith has the wrong end of the stick—if it is allowable to say such things in the Parliament.

I support amendment 5 for the simple reason that it seeks to protect the integrity of the applicant and of the Parliament. Its purpose does not come from McCarthyism or Blairism—which I would expect from Labour members. It would protect the integrity of the applicant and of the Parliament.

Photo of Alex Neil Alex Neil Scottish National Party

I have the authority to say to Iain Smith that one of the applicants for the job on the Gaelic board was Professor Kenneth MacKinnon, who is the leading Gaelic language planner in Scotland and a former member of the ministerial advisory group on Gaelic. He was not appointed—but he does not carry a Labour party card. That is why he was not appointed.

I find the defence of Mr Peacock's poodle amazing. Amendment 5 is not an example of McCarthyism. Labour party members are the mafiosi in Scotland. They use their networks—

Photo of Alex Neil Alex Neil Scottish National Party

No. The member would not take an intervention from Mike Russell, so I will not take one from him. If Mr Smith sits down and listens, he will learn.

I will go through some of the points that the minister made, every one of which was nonsense.

First he said that all appointments are made on merit. Why do the vast bulk of appointments go to Labour cronies? Mr Peacock said that less than 10 per cent of appointees declared a political affiliation. The latest figures show that nearly 20 per cent declare a political affiliation.

He also asked how political activity could be defined. It could be defined in the code of practice. On the issue of how to define donations, the minister mentioned the legal definition of donations that already exists, which could be incorporated into the code of practice. It is total nonsense to hide behind the argument, "That cannae be done." When we appointed a standards commissioner, we agreed that the Parliament would approve the code of conduct that the commissioner drafted. The minister said that the Executive will consult on the code of conduct. Consultation is fine, but what happens if the Executive does not agree with the consultees and writes its own code of practice, giving the democratically elected MSPs no say in the matter?

It has been said that the process will be politicised. How can it be claimed that the process is not politicised when 60 per cent of the members of one board carry one party card, another 20 per cent carry another Executive party card and the remaining 20 per cent are non-aligned and do not carry any card? It has been said that the process is not politicised, but that is absolute nonsense.

What is the difference between amendment 5, on people who have engaged in political activity, and the minister's amendment, on voting members of the House of Lords? Why is it justifiable—quite rightly—to incorporate that amendment into the bill, but not the provision that I propose?

The reality is that the Labour party wants to run Scotland with its wee clique of bullies and does not want the system to be opened up. I am reminded of the old council housing system whereby the Labour party used the allocation of council houses to keep its political grip on Scotland; now, it uses the quango system to maintain its grip. I say to the Scottish Parliament and especially to those who call themselves Liberals that the system should be opened up and made democratic, and an end should be put to the mafiosi of the central Scotland Labour party.

Photo of George Reid George Reid Scottish National Party

The question is, that amendment 5 be agreed to. Are we agreed?

Division number 2

For: Adam, Brian, Aitken, Bill, Campbell, Colin, Canavan, Dennis, Crawford, Bruce, Cunningham, Roseanna, Davidson, Mr David, Douglas-Hamilton, Lord James, Fabiani, Linda, Fraser, Murdo, Gallie, Phil, Gibson, Mr Kenneth, Goldie, Miss Annabel, Grahame, Christine, Hamilton, Mr Duncan, Harding, Mr Keith, Hyslop, Fiona, Ingram, Mr Adam, Johnstone, Alex, Lochhead, Richard, MacAskill, Mr Kenny, Marwick, Tricia, Matheson, Michael, McIntosh, Mrs Lyndsay, McLeod, Fiona, McLetchie, David, Monteith, Mr Brian, Neil, Alex, Paterson, Mr Gil, Quinan, Mr Lloyd, Robison, Shona, Russell, Michael, Scanlon, Mary, Scott, John, Sheridan, Tommy, Sturgeon, Nicola, Swinney, Mr John, Tosh, Mr Murray, Welsh, Mr Andrew, White, Ms Sandra, Wilson, Andrew, Young, John
Against: Alexander, Ms Wendy, Baillie, Jackie, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Butler, Bill, Chisholm, Malcolm, Craigie, Cathie, Curran, Ms Margaret, Deacon, Susan, Eadie, Helen, Ferguson, Patricia, Finnie, Ross, Fitzpatrick, Brian, Gillon, Karen, Godman, Trish, Gray, Iain, Henry, Hugh, Home Robertson, Mr John, Hughes, Janis, Jackson, Dr Sylvia, Jackson, Gordon, Jamieson, Cathy, Jamieson, Margaret, Jenkins, Ian, Kerr, Mr Andy, Lamont, Johann, Livingstone, Marilyn, Lyon, George, Macdonald, Lewis, Macintosh, Mr Kenneth, MacKay, Angus, Maclean, Kate, Macmillan, Maureen, Martin, Paul, McAveety, Mr Frank, McCabe, Mr Tom, McLeish, Henry, McMahon, Mr Michael, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Munro, John Farquhar, Murray, Dr Elaine, Oldfather, Irene, Peacock, Peter, Peattie, Cathy, Radcliffe, Nora, Raffan, Mr Keith, Robson, Euan, Rumbles, Mr Mike, Scott, Tavish, Simpson, Dr Richard, Smith, Elaine, Smith, Iain, Stephen, Nicol, Stone, Mr Jamie, Thomson, Elaine, Wallace, Mr Jim, Watson, Mike
Abstentions: Gorrie, Donald, MacDonald, Margo

Photo of George Reid George Reid Scottish National Party

The result of the division is: For 42, Against 64, Abstentions 2.

Amendment 5 disagreed to.

Photo of Margo MacDonald Margo MacDonald Independent

On a point of order, Presiding Officer. Given the sensitivity of the topic and the good will of members towards the amendment's intention to open up the process of public appointments, would it be possible for the Parliament to state at some point in the debate that it would like to have sight of the proposed code of conduct before it passes into law?

Photo of George Reid George Reid Scottish National Party

There is no mechanism for doing so, but the minister may or may not wish to comment on what you have said at some point in the proceedings.

Amendment 8 moved—[Peter Peacock]—and agreed to.

Photo of Sandra White Sandra White Scottish National Party

Amendment 6 concerns the investigation of complaints—we will now see which members are liberals and democrats and who believes in transparency.

The bill asks the commissioner to investigate complaints. All that amendment 6 seeks is that the complaints and the results of investigations be laid before Parliament so that MSPs can see why the complaints were lodged, whether they were upheld and why the commissioner upheld them or otherwise. It is a simple amendment, which opens the process up to scrutiny and makes it transparent. I ask all MSPs to support the amendment. If members do not support it, we will wonder whether the Parliament and certain MSPs have something to hide. The amendment is innocuous. The commissioner is being asked to consider evidence and come back with results. All that the amendment seeks is that the results of the investigations be laid before the Parliament so that MSPs can see them.

I move amendment 6.

Photo of Iain Smith Iain Smith Liberal Democrat

Amendment 6 and section 2 should be considered in conjunction with the sections that follow, in particular sections 7 and 8. It is important to bear it in mind that if as a result of a complaint the commissioner finds that there has been a breach of the code, sections 7 and 8 come into play. It is necessary to go through the process. When a complaint identifies a problem, the commissioner takes the matter up with ministers to try to get compliance with the code and if that fails there is the backstop of a report to the Parliament. That is a sensible and logical way forward.

The amendment would mean that any complaint, even if it is proved to be unfounded, must be reported to the Parliament. A malicious or frivolous complaint or a minor matter that has been resolved to the satisfaction of the complainant once the commissioner has looked into it would have to be reported to Parliament. That might discourage people from making complaints, as they might not want their complaint to be made public. They might want to raise a concern with the commissioner about their own application, but they might not want the public to know that they had applied for a job.

Photo of Iain Smith Iain Smith Liberal Democrat

I will take the intervention in a moment. Although the material perhaps formed part of their complaint, the applicant might not wish it to become a public document, but anything that is laid before the Parliament automatically becomes a public document.

We must be careful when we are considering such matters. It is different from the situation with the Standards Committee, because it investigates complaints against MSPs, who are public representatives; if complaints are laid against public representatives, MSPs and the public have the right to know that the matters are being fully investigated and made public. However, the bill deals with individual people who have a complaint. Those people want the matter to be investigated, but they do not necessarily want it to be in the public domain. We must be careful about forcing such information into the public domain. The commissioner has final discretion to investigate complaints and decide whether to lay the matter before Parliament. If the commissioner thinks that it is in the interests of the public and the complainant to lay it before the Parliament, I am sure that they will do that. Let us not fetter the discretion of the commissioner. That would perhaps result in fewer complaints being made than might otherwise be the case.

Photo of Peter Peacock Peter Peacock Labour

I will pick up the point that Margo MacDonald made, if I have understood her point correctly. Parliament will be consulted on the code. There will be a public consultation before the commissioner agrees the code.

The effect of amendment 6 would be to place a requirement on the commissioner to inform the Parliament of every complaint that had been brought to his or her attention—I stress that that requirement would apply to every complaint, however insubstantial an investigation might show it to be. Clearly, there would be no benefit to be gained or lessons to be learned by publishing details of insubstantial and trivial complaints.

However, I recognise the point that Sandra White has made and seeks to cover with amendment 6. In the next group of amendments I will move amendment 9, which will place an obligation on the commissioner to report serious or material breaches of the code to the Parliament before an appointment is confirmed. I will also give an indication of what is considered to be a material breach: that is, one that is likely to have a serious effect on the outcome of an appointments round.

I do not think that it will be worth while or beneficial to require in the bill that the commissioner publish the details of every complaint that is investigated down to the most trivial phone call or letter.

The Parliament has dealt with other public complaints mechanisms, in particular the role of the Scottish public services ombudsman. We have not sought to place the requirement contained in section 6 on that office, although complaints that are subject to formal investigation are published. The bill, in effect, provides for a similar approach to be taken by the commissioner.

As drafted, the bill will allow the commissioner to publish in his or her annual report the details and the findings of any complaint investigations that he or she considers might be in the public interest or have educational purposes. The current commissioner uses that facility. In recent times that has not always been comfortable for the Executive, but nonetheless it is important.

Additionally, the commissioner has major powers to intervene and to stop an appointment proceeding if he or she believes that any breach of the code has occurred or is likely to occur. That process already requires a report to Parliament. I hope that Sandra White will take into account the amendments on reporting to Parliament and recognise that amendment 6 is excessive, which is why I ask her to withdraw it.

Photo of Sandra White Sandra White Scottish National Party 3:15 pm, 5th February 2003

I am pleased with what the minister says—I tried to illustrate the same points when I spoke to a similar amendment at stage 2. Iain Smith made the very point that I was going to raise about sections 7 and 8. I accept what the minister says and I look forward to the amendments that he mentioned being moved. I am pleased that he accepted the need for the bill to provide scrutiny and transparency and therefore I will withdraw amendment 6.

Amendment 6, by agreement, withdrawn.

Photo of George Reid George Reid Scottish National Party

Group 4 relates to non-compliance with the code of practice. Amendment 9 is grouped with amendments 1 and 10.

Photo of Peter Peacock Peter Peacock Labour

I will support amendment 1, in the name of Tricia Marwick, but only if amendment 9 is agreed to. It will be clear from what I say that I would not be able to support Tricia Marwick's amendment if it were to stand alone, as was the case with a similar amendment that was debated at stage 2.

The amendments in the group relate to the commissioner's role in reporting breaches of the code of practice to the Parliament—the so-called whistleblower role. There was an extensive debate on the issue at stage 2 relating to amendments that Tricia Marwick and Sandra White lodged. Although the intention of amendment 1 is similar to ours, its effect would be too broad.

Taken on its own, amendment 1 would result in repeated reporting to Parliament of minor breaches of the code. It is perfectly conceivable that minor technical breaches of the code will occur—such is human frailty—or that it will not technically be possible to resolve some breaches because a timeline has been breached, even though the effects of the breach can be known about and rectified.

It is not desirable that literally every breach, however minor, should be reported to Parliament because that would have a number of undesirable consequences. Most seriously, such a provision could have the unintended consequence of raising the threshold at which the commissioner chooses to get involved in a breach of the code.

At stage 2, I recognised that the Local Government Committee thought that we could go further than was set out in the bill, although I did not want to go as far as Tricia Marwick's amendment. I undertook to look for a suitable way of meeting the committee's concerns and, as a consequence, amendment 9 was lodged.

When taken together, amendments 9 and 1 will place an obligation on the commissioner to report breaches of the code to the Parliament, but will also give more guidance on when that course of action is appropriate. A report should be made only when a breach of the code is material—which means that it is serious enough to have an impact on the appropriateness of the outcome of the appointments round—when ministers have been informed of the breach, and when the breach is unlikely to be resolved within a reasonable time or remains unresolved for a reasonable time.

Amendment 10 is consequential on the other amendments. As the commissioner will have completed his consideration of the case if he has concluded that a report to the Parliament is necessary, the line that amendment 10 will remove is redundant.

The amendments have been carefully considered to retain an effective balance in the relationship between the commissioner and the Parliament. The commissioner will retain his or her independence as a regulator and will not be obliged to report each and every breach, many of which might be of a minor administrative nature. However, the commissioner will have a duty to report material breaches of the code to the Parliament. That is an effective sanction and a power that the United Kingdom commissioner does not have.

The Parliament can be assured that, if a material breach of the code occurs and the commissioner is unable to resolve it with the minister responsible for the appointments round, the Parliament will be informed.

I move amendment 9.

Photo of Tricia Marwick Tricia Marwick Scottish National Party

I thank the minister for accepting amendment 1 with the condition that amendment 9 is agreed to. The SNP will accept amendment 9 because it was never our wish that minor technical breaches of the code should be reported to the Parliament. The words "in a material regard", which amendment 9 will insert, will satisfy that point. It is important that amendment 1 should also be agreed to, because it will place a duty on the commissioner to report any material breach of the code to the Parliament. We believe that that is the right and proper thing to do and I welcome the minister's agreement with that.

Photo of Mike Rumbles Mike Rumbles Liberal Democrat

I spoke on this issue in the stage 1 debate, as I thought that the policy behind the bill—as published at the time of the committee's report—was not the policy that the Parliament had already agreed to in the Scottish Parliamentary Standards Commissioner Act 2002. I am delighted that Tricia Marwick and the Executive have lodged these amendments, which need to be supported.

Amendment 1 was numbered as the very first amendment because it was obvious at the time that it was not consistent to say that the commissioner "may report" a case to the Parliament. To the wording of section 2(7), which states,

"In any case where—

(a) it appears to the Commissioner that the code of practice has not been complied with", amendment 9 adds "in a material regard". Amendment 1 changes section 2(8), so that instead of saying that the commissioner

"may report the case to the Parliament", it says that the commissioner "must report the case". That harmonises what the bill says with what is said in the Scottish Parliamentary Standards Commissioner Act 2002. I hope that the amendments will be agreed to, as they are the right thing to do.

Photo of Iain Smith Iain Smith Liberal Democrat

I welcome the two changes that are proposed. I was opposed to a change to the bill at the committee stage, when the proposal was to change the word "may" to "must" in section 2(8)(a). I thought that that went too far. However, with the additional amendment from the minister, which will ensure that that provision will apply only when there is a breach "in a material regard", the balance of what must be reported to Parliament is right again. I was always of the view that any breach of a material nature would be reported by the commissioner in any case.

Amendment 9 agreed to.

Amendment 1 moved—[Tricia Marwick]—and agreed to.

Amendment 10 moved—[Peter Peacock]—and agreed to.