Points of Order

– in the Scottish Parliament at 2:34 pm on 29th October 2003.

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Photo of David McLetchie David McLetchie Conservative 2:34 pm, 29th October 2003

On a point of order, Presiding Officer. Does anything in standing orders enable you to make a statement to Parliament today on the Holyrood inquiry? You were jointly responsible for commissioning that inquiry, along with the First Minister.

I am sure that the whole chamber agrees that the impasse between BBC Scotland and the Fraser inquiry needs to be resolved. The BBC's refusal both to give access to interview tapes and to act responsibly in the public interest cannot be tolerated, as its non co-operation threatens the whole credibility of the inquiry that you jointly commissioned with the First Minister on behalf of the Parliament.

Many will say that this affair all too graphically illustrates the Achilles' heel of the inquiry—the lack of proper legal powers to compel the production of evidence. Some of us in the chamber expressed concerns about that from the outset. At the very least, the BBC should provide Lord Fraser and his inquiry team with private access to the interviews conducted with the late Mr Dewar and the late Sr Miralles so that Lord Fraser can decide whether they contain material that is relevant and pertinent to the inquiry. Others who gave interviews can, of course, come forward of their own volition to the inquiry and either give evidence in public or provide information on a confidential basis as so-called whistleblowers. Sadly, that is not the case for Mr Dewar or Sr Miralles. That is why we need to find another solution.

Presiding Officer, I would very much welcome a statement from you on this matter—as I am sure would the rest of the Parliament. It is time for the BBC to listen and to act in the public interest. If the Fraser inquiry is to be saved from falling into the same public disrepute as the Parliament building has, common sense must prevail. We need to find a way forward.

Photo of George Reid George Reid None

I think that you will accept, Mr McLetchie, that since I took over as Presiding Officer in May this year I have followed policies of transparency and, on all occasions, of the fullest disclosure of information, in the interests of the Parliament and the public of Scotland. You are correct in saying that Lord Fraser was appointed jointly by me and the First Minister to carry out an investigation that would be full, thorough and independent. I therefore note what you say this afternoon about an "impasse" and "non co-operation". I am sure that Lord Fraser will study your suggestion about private access with some interest—as, indeed, will the BBC.

To date, I have not received any request from Lord Fraser to assist in this matter. It is right and proper that the matter is for Lord Fraser. Should he so approach me, I shall do what I can to help to broker some form of solution. Some indication of my position in that regard is that I have, of course, waived all rights in respect of the interview that I gave to Wark Clements.

Photo of Dennis Canavan Dennis Canavan Independent

On a point of order, Presiding Officer. Section 23 of the Scotland Act 1998 states:

"The Parliament may require any person ... to produce documents in his custody or under his control, concerning any subject for which any member of the Scottish Executive has general responsibility."

Would it therefore be in order for the Parliament to impose such a requirement on the BBC to produce the interview tapes and to hand them over to Lord Fraser?

Photo of George Reid George Reid None

I have received indications of other points of order and I intend to group them together and then give a general response.

Photo of Fergus Ewing Fergus Ewing Scottish National Party

On a point of order, Presiding Officer. The Scottish National Party certainly believes that the BBC should make available the 400 hours of evidence to the Fraser inquiry, not least because two of the principal witnesses to the inquiry do not, for obvious reasons, have the opportunity to tell their story now.

When the First Minister announced the inquiry, I recall that—in response to questions from me and other members on why the inquiry would not have full legal powers to require the attendance of witnesses and the production of documents, including tapes—he said that anyone who refused would be named and shamed. It appears that the BBC has a shame deficit.

Presiding Officer, I have given you written notice of three points of order. First, the justification given by the BBC for withholding agreement to pass over the tapes now appears not to be based on any duty of protection of the anonymity of sources. That is inapplicable, because Donald Dewar and Enric Miralles could hardly have been less anonymous. They willingly gave their interviews in the full expectation that those interviews would be shown long before now. The justification now appears to be that there are in existence legal undertakings and confidentiality agreements that are, I presume, signed by the contributors. I ask you to indicate whether you are aware of such documents having been signed by any Presiding Officer of the Parliament, any member of the Scottish Parliamentary Corporate Body, any member of the Holyrood progress group or any member of the parliamentary staff.

Secondly, on section 23(1) of the Scotland Act 1998, although I fully support what my colleague Dennis Canavan said, is it not the case that under section 23(1)(b) the entitlement to require the production of documents affects only matters over which the Scottish Executive has general responsibility? That does not include the Scottish Parliament Holyrood project, because the responsibility for that lies with the Parliament. Does there, therefore, appear to be a lack or defect in the Scotland Act 1998 that, sadly, deprives us of the necessary legal powers to intervene should a request to do so be received from Lord Fraser?

I appreciate your indulgence on the matter, Presiding Officer, because of the importance of the issues that are involved.

Finally, do you consider that, in the absence of any legally binding undertaking between a contributor and the BBC, all the tapes of the contributions of the late Donald Dewar and Enric Miralles should be released?

Photo of George Reid George Reid None

I will take the points of order together. I have to say, colleagues, that some of the points are of major significance and I can hardly be expected to give a definitive ruling from the chair at this point. Mr Ewing, your points of order came to me only a few minutes ago, because of other business.

I will take Mr Canavan's point of order first. You are correct, Mr Canavan, that under section 23 of the Scotland Act 1998 the Parliament has powers to compel witnesses and the production of documents

"concerning any subject for which any member of the Scottish Executive has general responsibility."

The other point of order was raised by Mr Ewing and relates to responsibilities of the Executive and the BBC. One must ask whether the Executive has responsibility for the BBC—that question is open to some interpretation. On your question, Mr Ewing, about documentation, guarantees and contractual matters entered into by the SPCB, the HPG and the Parliament's two Presiding Officers, I can hardly go through four years of documentation. However, to the best of my knowledge, no such collective agreements have been entered into. Therefore, one must look at the issue as a matter of contractual agreement between the individual who takes part in the programme and the film makers. I have to say that, when I did the interview for Wark Clements, I was given no guarantees, nor was I asked about the subsequent use of the footage.

On these matters, Mr Ewing, a number of points are still under consideration, some of which are of significant legal difficulty. I hope that I have given both you and Mr McLetchie a steer in the right direction, but I would like to reflect a little longer on some of the intricate matters that have been raised. I will write to you both at the earliest opportunity.

Photo of Dennis Canavan Dennis Canavan Independent

On a point of order, Presiding Officer. Are you minded to accept for debate an appropriate motion to require the BBC to hand over the tapes so that the Parliament can allow Lord Fraser access to them?

Photo of George Reid George Reid None

I cannot, of course, respond to eventualities that have not yet arisen, Mr Canavan. If such a motion were lodged, I would consider it at that point in relation to the wider picture.