Scottish Parliamentary Standards Commissioner

– in the Scottish Parliament at 9:15 am on 16th March 2006.

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Photo of George Reid George Reid None 9:15 am, 16th March 2006

The next item of business is a debate on motion S2M-4095, in the name of John Scott, on behalf of the Scottish Parliamentary Corporate Body, on the appointment of the Scottish parliamentary standards commissioner for a second period.

Photo of John Scott John Scott Conservative 10:03 am, 16th March 2006

I speak to the motion as a member of the Scottish Parliamentary Corporate Body's reappointment panel and invite the Parliament to agree to the reappointment of Dr James Dyer as the Scottish parliamentary standards commissioner for a second term. To assist members' consideration of the motion, the SPCB has published a report that gives the background to the reappointment process and some information on the work that Dr Dyer has carried out to date.

The Scottish Parliamentary Standards Commissioner Act 2002 provides that

"A person who has been appointed for one period as the Commissioner may", with the Parliament's agreement,

"be appointed for a second period".

Following good practice guidance from the United Kingdom and Scottish commissioners for public appointments and given early indications from the Procedures Committee's consideration of mechanisms for Crown reappointments, the SPCB concluded that the reappointment of the standards commissioner should be considered by way of a non-competitive, administrative mechanism. Therefore, a reappointment panel was established. The panel was chaired by the Presiding Officer and the other members were Duncan McNeil, Nora Radcliffe and me.

An independent assessor was appointed to oversee the process and to say whether good procedures had been followed and whether the appointment was on merit, to give the Parliament added confidence.

Photo of Mr Bruce McFee Mr Bruce McFee Scottish National Party

In annex A to the SPCB's report, Dr Bernard Kingston—the independent assessor—says:

"I am pleased to enclose my Validation Certificate. In addition, this highlights my concern regarding the absence of regular appraisals of the Commissioner's performance.

This runs counter to good practice which requires that public bodies must have in place regular and transparent performance assessment procedures to provide necessary and robust evidence when considering reappointments."

Procedures singularly failed to be put in place.

Photo of John Scott John Scott Conservative

I thank the member for his contribution. Dr Kingston was our independent appraiser and we are grateful for his good works. The matter that Mr McFee mentions was perhaps an omission, but he is well aware that the SPCB's view was that it would be difficult to find someone to undertake appraisals.

Photo of John Scott John Scott Conservative

I will not—[ Interruption. ] I will take no more interventions and I ask Mr McFee to let me finish my point.

I will move on. On the SPCB's behalf, I thank Dr Bernard Kingston, who acted as the panel's independent assessor. He brought a wealth of appointment experience and was of enormous assistance in ensuring that we complied with good practice. As Mr McFee said, in his report and validation certificate, Dr Kingston recommended that we put in place an appropriate appraisal mechanism for the commissioner. We will consider how best to put that into practice. That is also in line with the report on Crown appointees that the Procedures Committee published last week.

Photo of Mike Rumbles Mike Rumbles Liberal Democrat

John Scott said that all members of the reappointment panel were from the corporate body. Did the panel consult members of the Standards and Public Appointments Committee? If so, what was the result of that consultation?

Photo of Trish Godman Trish Godman Labour

Mr Scott should be finishing now.

Photo of John Scott John Scott Conservative

Presiding Officer, if I am to answer Mr Rumbles's questions, I ask for some extra time. We did not consult the Standards and Public Appointments Committee in any way other than informally, if that clears up the matter.

The reappointment panel was convened on Thursday 9 February. The commissioner was tested on the skills and competencies that were set out in the original recruitment advertisement and in his job description. Those were: knowledge of the commissioner's remit and role; understanding and awareness of the political and institutional environment in which the commissioner works; use of resources; interpersonal skills; and oral and written communication skills.

Photo of John Scott John Scott Conservative

No—I am sorry, but I am out of time.

Dr Dyer's first three-year term in office will end on 31 March 2006. As the first commissioner, he was charged with setting up the role and putting in place suitable policies and procedures. In his first term of office, he dealt with 71 complaints, 15 of which were fully investigated. We believe that he will continue to be an effective commissioner who will build on his knowledge and experiences to continue to provide the Scottish Parliament and the people of Scotland with a sound and impartial system for dealing with complaints about members' conduct. I am sure that the Parliament will want to wish him every success in his second term of office.

I move,

That the Parliament agrees with the recommendation of the Scottish Parliamentary Corporate Body under Rule 3A.1.2 of Standing Orders that Dr James Dyer should be appointed for a second period as the Scottish Parliamentary Standards Commissioner with effect from 1 April 2006.

Photo of Tommy Sheridan Tommy Sheridan SSP 10:09 am, 16th March 2006

To reappoint the commissioner today would be entirely wrong. The matter is not party political—members across the parties have had serious doubts about the commissioner's work and the public have complained about his handling of cases. I do not believe that he has proved himself to be up to the job. The system that he operates is neither transparent nor accountable and reflects badly on the Parliament's probity.

I will concern myself not with any individual MSP, but with how the reputation of an employee of the Parliament can be damaged—without proof—if they are caught up in a so-called standards investigation and denied even a right of reply. Dr Dyer wrote into one report a serious allegation against an employee of the Parliament over an alleged incident. The commissioner presented no proof that the incident took place and failed to contact the worker to put the allegation to them before doing serious harm to their reputation. He failed to use an earlier official statement that the worker made that refuted the allegation, and failed to tell the worker that their statement was to be removed from his report. He then published hearsay claims in the Parliament's name, but removed an official statement that contradicted those claims. Dr Dyer and the Standards Committee simply went ahead and published a seriously damaging and unproven accusation against a worker in our Parliament and the person was cut off from any chance of challenging the report.

The standards process is not transparent. It is carried on behind closed doors and a report's contents are hidden and unknown until publication. There is no system of appeal to any ombudsman. The unproven allegation is still on the Parliament's website and on paper reports and is presented as if it were true. It continues to damage the worker and to cause immense stress and it should be removed.

That example suggests that workers in the Parliament will be placed in severe danger if they are ever involved in standards issues, because they will be treated as people who have no equal right to fair play. How could that happen to any worker in the people's Parliament? How did that get past lawyers? The commissioner has asked to use external legal firms, on which he ran up a bill of more than £26,000 last year, although only one case was taken through stage 2. Why was £26,000 of taxpayers' money paid out in one year for lawyers when such intolerable disregard for normal civil and legal rights has been shown? Did any lawyers vet Dr Dyer's work? If so, who were they?

The commissioner operates as a one-man band and is virtually cut off from any accountability. Last year, he objected to his draft work being shown to complainers and accused MSPs to check for errors, and his word persuaded the Standards and Public Appointments Committee to remove that basic right for the public. Even Westminster has a better system, having introduced the safeguard of being able to challenge the facts by a process that uses an independent legal assessor and a panel. By rubber-stamping this man's appointment today, elected members will put third parties—including workers—at risk of injustice.

The Scottish parliamentary standards commissioner is supposed to act fairly and independently and to weigh all the evidence. The example that I have outlined shows that the public and the Parliament can have no confidence in his so doing. Therefore, I call for a halt to his reappointment and for a full investigation by independent outsiders into the commissioner's practices and the standards process.

I move amendment S2M-4095.1, to leave out from "agrees" to end and insert:

"does not, at this stage, agree with the recommendation of the Scottish Parliamentary Corporate Body that Dr James Dyer should be appointed for a second period as Scottish Parliamentary Standards Commissioner and agrees that an independent investigation should be instigated into the transparency and accountability of the actions of the Standards Commissioner and the standards process."

Photo of Trish Godman Trish Godman Labour

Two members wish to speak. I can give them two minutes each.

Photo of Mike Rumbles Mike Rumbles Liberal Democrat 10:13 am, 16th March 2006

I will make just a small point that is not about the individual, but about the process. I intervened on John Scott because I was a bit concerned about the apparent lack of consultation with our representatives on the Standards and Public Appointments Committee. They deal with the commissioner and must have the utmost confidence in him. John Scott referred to informal consultation. I asked him what the result of that consultation was. It would help if he would tell us that now.

Photo of John Scott John Scott Conservative

Mr Rumbles will be aware that Mr Adam, the Standards and Public Appointments Committee's convener, declined the invitation to be a member of the reappointment panel.

Photo of Mike Rumbles Mike Rumbles Liberal Democrat

That is not what I am talking about. My point is that Standards and Public Appointments Committee members, who are our representatives, must have confidence in the commissioner. I asked what the result was of consulting the committee informally and I have still not had an answer. I understand that members of the Standards and Public Appointments Committee are not happy. I hope that members of that committee will take part in the debate and will tell us whether that is the case.

We seem to be working in a vacuum, which is not a satisfactory situation. The process is wrong and needs to be revisited.

Photo of Mr Bruce McFee Mr Bruce McFee Scottish National Party 10:15 am, 16th March 2006

A generally accepted principle of job interviews is that they are conducted on the basis of trying to ensure the appointment of the best available man or woman for the post. Normally, one would advertise the position and invite applications, which would be sifted so that a smaller number of applicants could be invited to interview. Somewhere down the line, the individual who was believed to be best for the job would be selected. That is what the Parliament did until today.

Today, we are invited to reappoint a commissioner for another three years to an unadvertised post for which no other candidate was allowed to apply, for which no proper evaluation was made of the present post holder's work and for which only one person—the present post holder—was interviewed. There was no element of competition for the post. Such a process would not have looked out of place in Soviet Russia or modern-day North Korea. Welcome to the brave, new, transparent, we-will-do-things-differently Scottish Parliament.

Photo of Mr Bruce McFee Mr Bruce McFee Scottish National Party

I have only two minutes.

Parliament is being bounced—make no mistake about it—into making a decision today by using a process that we have not even debated, far less endorsed. What has been nicely named an "administrative" process for determining the post is not provided for in either the 2002 act or standing orders but has been decided on by the SPCB alone.

Proponents of the process have made much of the independent assessor. However, Mr Scott was somewhat selective in referring to the independent assessment. The assessor also stated:

"I recognize the argument put that it is difficult to independently investigate the independent investigator but I do not accept that this is insurmountable."

However, for Mr Scott and the SPCB, evaluating the commissioner's work was never on the agenda.

Photo of Trish Godman Trish Godman Labour

Mr McFee, you must wind up now.

Photo of Mr Bruce McFee Mr Bruce McFee Scottish National Party

On 8 February 2006, Mr Scott told the Procedures Committee:

"it is important to remember that the officials are independent of Parliament; therefore, we are talking about an administrative procedure rather than evaluation of their work as commissioners."—[Official Report, Procedures Committee, 8 February 2006; c 1374.]

However, we are being asked to accept that, one day later, the same people conducted an interview that was transparent and robust. Who are they trying to kid?

Photo of Trish Godman Trish Godman Labour

I can give Margo MacDonald only a tight minute and a half.

Photo of Margo MacDonald Margo MacDonald Independent 10:17 am, 16th March 2006

I simply want to ask Mike Rumbles whether he was suggesting that the appointment should not be confirmed until Parliament has discussed with the proposed appointee changes to the way in which the procedures and process work, given the dissatisfaction with them. Will he clarify that important issue?

Photo of Trish Godman Trish Godman Labour

I can give Mr Sheridan a tight four minutes to wind up.

Photo of Tommy Sheridan Tommy Sheridan SSP 10:18 am, 16th March 2006

I hope that I will not need four minutes, although the shortness of the debate is probably illustrative of the problems of the process, which is woefully inadequate.

Rarely does an amendment in my name enlist support from the likes of Mike Rumbles, Bruce McFee and Margo MacDonald, but this is a cross-party concern. This is a non-political issue that is about process, transparency and accountability. From that point of view, I hope that the Parliament will not rush ahead with or—to use Bruce McFee's term—be bounced into a decision today.

Mike Rumbles asked a fair question during Mr Scott's opening speech, but he never received an answer. He posed the question again and allowed Mr Scott an opportunity to respond, but he never received an answer. The truth is that the Scottish Parliamentary Corporate Body has proposed the appointment after establishing itself as a group of independent assessors and without consulting anyone.

Photo of Trish Godman Trish Godman Labour

Elaine Smith must be brief, as we have little time.

Photo of Elaine Smith Elaine Smith Labour

If Parliament does not agree the appointment today, will we be left without a standards commissioner? What are the implications of that?

Photo of Tommy Sheridan Tommy Sheridan SSP

We have until the end of this month to appoint a commissioner. After investigating the work that has been carried out by the present commissioner, we may decide that he is not up to the job. I am not for rushing into appointing someone who is not up to the job. I would rather go four or eight weeks without a commissioner and appoint someone who can do the job—

Photo of Trish Godman Trish Godman Labour

The member cannot accept any more interventions.

Photo of Tommy Sheridan Tommy Sheridan SSP

I am sorry.

We should not appoint someone who is not doing the job properly. I hope that Parliament will agree to ca' canny and see a bit of sense. We should not rush headlong into making a decision that might come back to haunt us in the future. I commend the amendment to members.

Photo of Trish Godman Trish Godman Labour

Mr Scott has two minutes for his winding-up speech.

Photo of John Scott John Scott Conservative 10:20 am, 16th March 2006

The debate has been an opportunity for members to make their views known. On Mr Sheridan's amendment, I point out that the primary legislation gives the SPCB the task of appointing the standards commissioner with the approval of Parliament. That is what we seek to do today. The debate is not about the complaints process, which is provided for in statute.

Photo of John Scott John Scott Conservative

I am sorry, but I do not have time.

The commissioner conducts his investigations and makes his reports under the Scottish Parliamentary Standards Commissioner Act 2002. Transparency and accountability are provided for by the act. The commissioner is required to report to the Standards and Public Appointments Committee the facts of any investigation and his conclusions on a possible breach of the code of conduct. It is for the committee to decide whether to accept the commissioner's recommendations.

Photo of John Scott John Scott Conservative

I do not have time, as I have only two minutes.

Photo of Tricia Marwick Tricia Marwick Scottish National Party

On a point of order, Presiding Officer. It is quite unacceptable that, on such an important appointment, members do not have the opportunity either to express their view or to receive an answer to points that they make.

I wanted to make the point, which I hope Mr Scott will confirm, that we are not barred from extending the contract beyond 31 March—

Photo of Trish Godman Trish Godman Labour

Ms Marwick cannot ask a question in the middle of a point of order. She did not raise a point of order. The timing of the debate is a matter for the Parliamentary Bureau. If she has a dispute about the timing, she should speak to her business manager.

Photo of John Scott John Scott Conservative

If Mr Sheridan is dissatisfied with the process and the manner in which the commissioner conducts his investigations, he should raise that with the Standards and Public Appointments Committee.

On the other points that were made, I point out to Mr Rumbles that today's debate is about the appointment, not the procedure. The statute gives the SPCB the role of appointing the commissioner.

Photo of John Scott John Scott Conservative

Bruce McFee must accept that, throughout the process, we have followed best practice, as outlined by the UK and Scottish commissioners for public appointments.

Photo of John Scott John Scott Conservative

I do not believe so.

The Procedures Committee has made some good recommendations about future appointments. We welcome those hugely. Subject to the Parliament debating and agreeing that committee's report, the recommendations will provide us with a sound basis on which to proceed in future.

At decision time this afternoon, I hope that all members will support the motion to reappoint Dr Dyer.

Photo of Elaine Smith Elaine Smith Labour

On a point of order, Presiding Officer. I am concerned about the accusations that were made from a sedentary position that the rules were broken. If that is the case, do standing orders provide any way in which the procedure can be delayed until the matter is further investigated? It seems inadequate that we have had such a short time for such an important issue.

Photo of Trish Godman Trish Godman Labour

That is a matter for the Parliamentary Bureau and for business managers.

Photo of Margo MacDonald Margo MacDonald Independent

On a point of order, Presiding Officer. With all due respect, if Parliament decides that it needs more discussion on the matter, someone would need to suggest that, using the procedures that are available. I do not suggest that that should be done at this precise moment in time.

As the member of the bureau responsible for arguing that the appointment should be debated, I feel that we may not have investigated many issues that have been raised in the course of the debate. Members may want to pursue that further.

Photo of Trish Godman Trish Godman Labour

The timing of the debate was agreed by the Parliament. If, given the nature of the debate, members now say that they need more time, I can only refer them to the bureau and to their business managers. There is a procedure by which the timing can be changed, but it cannot be changed at this moment.

Photo of Tommy Sheridan Tommy Sheridan SSP

On a helpful point of order, Presiding Officer. Members have available to them an amendment that would precisely inspire greater debate and discussion.