St/S2/05/10/A Standards and Public Appointments

ST/S2/05/10/A

STANDARDS AND PUBLIC APPOINTMENTS COMMITTEE

AGENDA

10th Meeting, 2005 (Session 2)

Tuesday 1 November 2005

The Committee will meet at 11 am in Committee Room 4.

1. Choice of Deputy Convener: The Committee will choose a new Deputy Convener.

2. Cross-Party Group on Dyslexia: The Committee will consider an application for recognition of a Cross-Party Group in the Scottish Parliament on Dyslexia.

3. Cross-Party Group on Malawi: The Committee will consider an application for recognition of a Cross-Party Group in the Scottish Parliament on Malawi.

4. Review of the Code of Conduct for MSPs: The Committee will consider how to progress its review of the Code of Conduct for MSPs.

5. Review of the Code of Conduct for MSPs – Scottish Parliamentary Standards Commissioner Act: The Committee will consider whether to revoke a Direction it made in April 2004 on reports of the Commissioner.

6. Scottish Commissioner for Human Rights Bill: The Committee will consider its response to a call for evidence from the Justice 1 Committee.

Andrew Mylne Clerk to the Standards and Public Appointments Committee Room TG.01 Ext: 85239 email: [email protected]

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ST/S2/05/10/A

The following papers are attached for this meeting:

Agenda item 1 Note by the Clerks ST/S2/05/10/1

Agenda item 2 Application (CPG on Dyslexia) ST/S2/05/10/2

List of current CPGs (also relevant to item 3) ST/S2/05/10/3

Agenda item 3 Application (CPG on Malawi) ST/S2/05/10/4

Agenda item 4 Note by the Clerks ST/S2/05/10/5

Agenda item 5 Note by the Clerks ST/S2/05/10/6

Agenda item 6 Note by the Clerks (with letter from Justice 1 Committee and draft ST/S2/05/10/7 response)

The following papers are attached for information:

Conference: Report on the Convener’s presentation to Committees ST/S2/05/10/8 of the National Assembly of Serbia

Minutes of the last meeting ST/S2/05/9/M

ST/S2/05/10/1 (Agenda item 1) STANDARDS AND PUBLIC APPOINTMENTS COMMITTEE CHOICE OF DEPUTY CONVENER

1. The Parliament resolved on 4 June 2003 that the Deputy Convener of the Standards and Public Appointments Committee was to be a member of the Labour Party.

2. The Convener will invite members of the Committee to nominate a member of the Labour Party for the post of Deputy Convener. The Committee will then be invited to endorse the person nominated.

Members of the Labour Party serving on the Committee:

Bill Butler MSP Christine May MSP Karen Whitefield MSP

STANDARDS COMMITTEE CLERKS OCTOBER 2005

1 ST/S2/05/10/2

STANDARDS AND PUBLIC APPOINTMENTS COMMITTEE

Request for Committee recognition of proposed Cross-Party Group on Dyslexia

1. In accordance with the Rules on Cross-Party Groups as set out in Section 8 of the Code of Conduct for MSPs, proposals for the establishment of Cross-Party Groups in the Scottish Parliament must be submitted to the Standards Committee for it to accord recognition to the proposed Group.

2. The Committee is invited to consider whether it wishes to approve the establishment of and accord recognition to the Proposed Cross-Party Group on Dyslexia. The registration form is attached.

3. The proposal was submitted by Rosemary Byrne MSP, the nominated Group contact and joint Convener, on 20 October 2005. Mark Ballard MSP and Margaret Mitchell MSP are the other joint Conveners.

4. Rule 2, Section 8.3 of the Code of Conduct, states:

“The Group’s membership must be open to all Members of the Parliament and must include at least five MSPs of which at least one Member must be from each of the parties or groups represented in the Parliamentary Bureau.”

5. At its meeting on 18 June 2003, the Committee agreed that the Rule should be interpreted as meaning that each Group should have:

(a) a minimum of one MSP from each of the larger parties in the Parliament (Labour – 50 MSPs, SNP – 27 MSPs, Conservative – 18 MSPs and Lib Dem – 17 MSPs);

(b) and one other MSP from any of the other parties or an independent MSP

making a membership threshold of five MSPs. (This interpretation was confirmed at the Committee’s meeting on 25 January 2005).

6. The MSP membership for the proposed Group on Dyslexia totals eight. The eight comprise one Labour, one Liberal Democrat, one SNP, two Conservative, one SSP, one Green and one Independent MSP. The proposed Group therefore meets the MSP membership criteria.

7. The proposal appears to conform to the other Rules on Cross-Party Groups.

STANDARDS COMMITTEE CLERKS OCTOBER 2005

1 ST/S2/05/10/2

CROSS-PARTY GROUPS IN THE SCOTTISH PARLIAMENT

REGISTRATION FORM – RG1

1. GROUP NAME Code of Conduct 8.5.6 Groups that have undertaken to comply with the rules on Cross-Party Groups may use the words Cross-Party Group in the Scottish Parliament in their title.

Cross-Party Group on Dyslexia

2. GROUP PURPOSE Code of Conduct 8.2.5 and 8.3, Rule 1 A brief statement of the main purpose of the group. Groups are reminded that the Standards Committee will look very carefully at the proposed purpose of a group to satisfy itself that its purpose is Parliamentary in nature and of genuine public interest.

To raise awareness of Dyslexia.

To promote good practice in education.

To support families.

3. GROUP MEMBERS Code of Conduct 8.3, Rules 2, 3, 8, 9 & 10 When listing members, who are MSPs, only the MSP’s name need be given. For members from outwith the Parliament, the name of the member and any employer they represent must be given.

MSPs Non-MSPs Rosemary Byrne Individuals Mark Ballard Adam Ingram Margaret Mitchell Mike Pringle John Scott Sharon Duncan Elaine Smith Dr Adam Hannah Dr Jean Turner Rosemary Hannah

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Organisations

Dyslexia Scotland Dyslexia Scotland West Ayrshire Dyslexia Group

4. GROUP OFFICERS Code of Conduct 8.3, Rule 4 Please amend titles as necessary e.g. to indicate joint office holders, or preferred titles.

Joint Convener Rosemary Byrne MSP

Joint Convener Mark Ballard MSP

Joint Convener Margaret Mitchell MSP

Secretary Sharon Duncan – Dyslexia Scotland

Treasurer

5. FINANCIAL OR OTHER BENEFITS RECEIVED Code of Conduct 8.4.8 The group must register any financial or other material benefit received by the group from whatever source, where the value of the financial sum or benefit from any single source exceeds £250 in any one calendar year. This includes donations, sponsorship, subscriptions, hospitality, gifts, visits, provision of services or accommodation or staff assistance. The value of use of Parliamentary facilities need not be registered.

The details requiring to be registered include a brief description of the benefit, the approximate monetary value, the date on which it was received and the source from which it came. Where a consultancy organisation provides benefits, the client on whose behalf these are provided should be named.

Date Amount Description

6. GROUP SUBSCRIPTION Code of Conduct 8.3, Rule 7 Where a group charges or proposes to charge a subscription, this must be reasonable and the same for all members. The amount of the subscription should be registered and the purposes for which it is intended to use the subscription.

Amount per group member per year N/A

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7. GROUP STAFF AS PARLIAMENTARY PASS HOLDERS If a group makes use of staff issued with a Parliamentary pass, any paid activity undertaken by those staff where the employer benefits from the pass holder’s access to the Parliament must be registered. There is no need to state the amount of remuneration. The requirement relates both to staff employed directly by the group and to staff employed by an outside organisation to provide assistance to the group.

Staff name

Title of post

Name and address of employer organisation Type of employer organisation

8. GROUP CONTACT Code of Conduct 8.4.4 and 8.5.1 – 8.5.5 Please give the full details of an elected official of the group who is an MSP who will be the contact for registration matters for the group. Initially this must be the Member who signs the declaration on compliance with the rules on behalf of the group. If a group subsequently changes the designated contact, the office of the Standards Clerk must be informed within 7 days of the change.

Name Rosemary Byrne MSP

Parliamentary address Room MG.08 The Scottish Parliament Edinburgh EH99 1SP

Telephone number 0131 348 6388

Constituency Office telephone number 01294 313 602

4 ST/S2/05/10/3 (Agenda items 2 to 3) STANDARDS AND PUBLIC APPOINTMENTS COMMITTEE

Cross-Party Groups in the Scottish Parliament (in alphabetical order and as at October 2005)

Affordable Housing Animal Welfare Architecture and the Built Environment Asthma Autistic Spectrum Disorder Borders Rail Cancer Children and Young People Chronic Pain Civil Nuclear Industry Construction Crofting Cuba Culture and Media Culture of Peace in Scotland Cycling Deafness Diabetes Disability Drug and Alcohol Misuse Epilepsy Food Funerals and Bereavement Gaelic Glasgow Crossrail Human Rights International Development Group Kidney Disease Learning Disability Loss of Consultant Led Services in Scotland – Solutions Lupus M.E. Men’s Violence against Women and Children Mental Health Nuclear Disarmament Oil and Gas Older People, Age and Ageing Palestine Palliative Care Refugees and Asylum Seekers Renewable Energy Scots Language Scottish Contemporary Music Industry Scottish Economy

1 ST/S2/05/10/3 (Agenda items 2 to 3) Scottish Traditional Arts Scottish Writing and Publishing Sexual Health Sport Survivors of Childhood Sexual Abuse Sustainable Forestry and Forest Products Sustainable Transport Tackling Debt Tartan Day Textiles, Clothing and Footwear Tibet Tobacco Control Visual Impairment Wastes Management Women

Total: 59 groups

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STANDARDS AND PUBLIC APPOINTMENTS COMMITTEE

Request for Committee recognition of proposed Cross-Party Group on Malawi

2. The Committee is invited to consider whether it wishes to approve the establishment of and accord recognition to the Proposed Cross-Party Group on Malawi. The registration form is attached.

3. The proposal was submitted by Karen Gillon MSP, the nominated Group contact and Co-Convener, on 27 October 2005. Michael Matheson MSP is the other Co-Convener.

4. Rule 2, Section 8.3 of the Code of Conduct, states:

5. At its meeting on 18 June 2003, the Committee agreed that the Rule should be interpreted as meaning that each Group should have:

(a) a minimum of one MSP from each of the larger parties in the Parliament (Labour – 50 MSPs, SNP – 27 MSPs, Conservative – 18 MSPs and Lib Dem – 17 MSPs);

(b) and one other MSP from any of the other parties or an independent MSP

making a membership threshold of five MSPs. (This interpretation was confirmed at the Committee’s meeting on 25 January 2005).

6. The MSP membership for the proposed Group on Malawi totals 18, comprising six Labour, one Liberal Democrat, four SNP, three Conservative, two Green and two Independent MSPs. The proposed Group therefore meets the MSP membership criteria.

7. The proposal appears to conform to the other Rules on Cross-Party Groups.

STANDARDS COMMITTEE CLERKS OCTOBER 2005

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CROSS-PARTY GROUPS IN THE SCOTTISH PARLIAMENT

REGISTRATION FORM – RG1

1. GROUP NAME Code of Conduct 8.5.6 Groups that have undertaken to comply with the rules on Cross-Party Groups may use the words Cross-Party Group in the Scottish Parliament in their title.

Cross-Party Group in the Scottish Parliament on Malawi.

The purpose of the group is to develop and enhance links between Scotland and Malawi and to provide a forum for discussion on these matters. In particular, the group will focus on links between the two Parliaments and between civil society in each country. In order to achieve this, the group will work with parliamentarians from each legislature, with Malawians living in Scotland and with other organisations working in Malawi.

MSPs Non-MSPs Karen Gillon Individuals Michael Matheson Ted Brocklebank John Nelson (ACTSA) Margaret Ewing Dan Clutterbuck (Lothian University Hospitals) Mike Pringle Peter Russell (Glasgow City Council) Dennis Canavan Keith Coyne Sarah Boyack Joyce Phiri (WEMO) Mark Ruskell Martha Mballai Des McNulty Kenneth King (Centre of African Studies) Elaine Murray Consul Colin Cameron (Consulate of Malawi) Alex Ferguson Derek Young (Holyrood Events) Alex Neil

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Robin Harper Organisations Jean Turner Trish Godman British Council Fergus Ewing Scotland Malawi Partnership James Douglas-Hamilton Action for South Africa Scotland Irene Oldfather Church of Scotland Mamie Martin Fund Street Child Africa in Scotland World Exchange

4. GROUP OFFICERS Code of Conduct 8.3, Rule 4 Please amend titles as necessary e.g. to indicate joint office holders, or preferred titles.

Co-Conveners Karen Gillon MSP Michael Matheson MSP Co-Vice-Conveners Joyce Phiri Ted Brocklebank MSP Kenneth Ross Secretary Keith Coyne

Treasurer Dennis Canavan MSP

Date Amount Description

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Amount per group member per year £5 for individuals £10 for organisations

Staff name

Title of post

Name and address of employer organisation Type of employer organisation

Name Karen Gillon MSP

Parliamentary address Room M3.20 PHQ

Telephone number 0131 348 5823

Constituency Office telephone number 01555 660 526

4 ST/S2/05/10/5 (Agenda item 4)

STANDARDS AND PUBLIC APPOINTMENTS COMMITTEE

REVIEW OF THE CODE OF CONDUCT FOR MEMBERS OF THE SCOTTISH PARLIAMENT

Introduction

1. The Committee has agreed to review the provisions of the Code of Conduct for MSPs. The Committee has previously recognised that sections of the Code of Conduct which touch on the registration and declaration of interests of MSPs will, of necessity, require revision once the existing Members’ Interests Order1 is replaced. The Interests of Members of the Scottish Parliament Bill2 was introduced on 12 September 2005. It is anticipated that the Bill will be passed by summer 2006 and the Committee can then bring the relevant sections of the Code into line with the agreed provisions of the Bill.

2. Whilst the legislation on Members’ interests is progressing through the Parliamentary process, other sections of the Code could be reviewed. All the sections of the Code are shown below. Sections highlighted in bold are sections which do not relate to Members’ interests and which the Committee may wish to consider in its review.

Sections in the Code

1 Introduction 2 Key Principles 3 Introduction to Members’ Interests Order 4 Registration of Interests 5 Declaration of Interests 6 Paid Advocacy 7 Lobbying and Access to MSPs 8 Regulation of Cross-Party Groups 9 General Conduct and Conduct in the Chamber and Committee 10 Enforcement

Annexes to the Code

1 List of paragraphs in Code based on statutory provision 2 Scotland Act 1998, section 39 3 The Members’ Interests Order 4 Declarable Interests – flowchart 5 Relationships between MSPs: PO guidance 6 Registration of Members’ Staff Interests 7 Scottish Parliamentary Standards Commissioner Act 2002

1 http://www.legislation.hmso.gov.uk/si/si1999/19991350.htm 2 http://www.scottish.parliament.uk/business/bills/billsInProgress/regInterest.htm

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Definition of “the Code of Conduct”

3. The overall document that is normally referred to as “the Code of Conduct” currently contains a mixture of various elements, ranging from direct requirements as to what members must, or may not do, through explanation, advice and description to purely factual information relevant to the overall context of members’ conduct.

4. For example:

• most of sections 1 and 3 consist of general context and background;

• section 2 consists of “key principles” underpinning the Code;

• sections 4 to 9 consist almost exclusively of rules (statutory and non- statutory);

• section 10 is mostly descriptive (outlining the complaints process under the 2002 Act), but contains some rules (e.g. paragraphs 10.1.7 and 10.1.8);

• annexe 1 is purely factual;

• annexes 2, 3 and 7 reproduce relevant statutory provisions;

• annexe 4 illustrates some of the rules in graphical form;

• annexe 5 consists of rules on relations between MSPs (but in the form of “guidance from the Presiding Officer”); and

• annexe 6 consists of rules.

5. This range of material can be broadly divided into the following three categories:

• mandatory – that is, paragraphs that directly impose obligations on members about their conduct (what they must, may or may not do), whether on the basis of statutory provision or non-statutory rules;

• advisory – that is, paragraphs describing the context or background to the rules, giving examples or illustrations, or giving general advice – but which do not themselves directly impose any obligations on members; and

• informative – that is, relevant information about, and sources for, that members should be aware of when considering the above material.

6. In the interests of clarity and practicality, there may be merit in making a clearer distinction between “the Code itself” and the larger document in which those rules are explained and contextualised. In particular, it could be made clear that the Code itself consists only of the mandatory

2 ST/S2/05/10/5 (Agenda item 4)

elements of the document, and that the advisory and informative elements have a different status, being there to guide and inform members (and the public) about what the Code involves and how the procedures associated with its enforcement are expected to operate.

7. Such a distinction can be derived in any case from the context in which the Code is produced. The formal authority for it comes from Rule 1.6 of the standing orders, which entitles the Parliament, on the recommendation of the Committee, to “lay down a Code of Conduct for members”. Arguably, therefore, such a Code should consist entirely of rules of conduct binding on MSPs. It should also be borne in mind that the Code is only one of a number of sources of authority on members’ conduct – and need not itself incorporate all those other sources where there is independent authority for them (through legislation or separate Rules in the standing orders).

8. Making the above distinction more clearly in the published documentation would have two main benefits.

9. The first is that it would set clearer and tighter parameters on the formal investigation of complaints under the Scottish Parliamentary Standards Commissioner Act 2002 – which lists the Code (in section 3(3)(b)) as one of the “relevant provisions” which, if breached, can lead to a complaint against an MSP being investigated by the Commissioner. The other elements of the wider document could still be relevant to establishing whether there had been a breach of the Code, but it would no longer be possible to base a complaint solely on non-compliance with one of those other paragraphs. An analogy here is with the distinction between an Act and its Explanatory Notes – only the Act is the law, but the Notes can be used by the courts as an aid to interpretation of the law. Another analogy is with the standing orders as the Parliament’s rules of procedure, and the Guidance which has been published by the Parliament as an aid to interpretation of those rules.

10. The second advantage of this distinction is that it would make clear that the formal approval of the Parliament, on a motion of the Committee, would only be required where a change to the Code itself was being proposed. This would make it easier for the Committee alone to authorise changes to the general presentation of the wider document – for example by updating advisory material or including new factual information.

11. Making the distinction would require some restructuring of the document, and changes to its presentation – so that the Code itself would be clearly distinguished on the page from the other material (for example, by being set out in bold or in boxed text).

12. Before the document could be restructured in this way, some decisions would be needed as to the status of some key parts of it, and these are discussed in the sections that follow.

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Status of “key principles”

13. The Committee has recently commented on the broad nature of the paragraphs in Section 2 (Key Principles) of the Code3. These principles are arguably more aspirational than directly enforceable, and are framed in such general terms as to be open to a wide range of interpretations, making it difficult for members to know with certainty what conduct is expected of them in any particular instance.

14. The question for the Committee is whether, by excluding these key principles from the Code itself (as defined above), it could be made clear that while they have an important role to play in supporting and explaining the ethos of the Code, they do not form a part of the Code in a formal sense. This would mean that it would no longer be possible for a formal complaint against an MSP to rest entirely on an alleged breach of one of these key principles alone.

Status of Annexe 5

15. Paragraph 9.2.3 of the Code and Annexe 5, to which it refers, were added on a motion of the Committee in July 2000. Although no explanation was given on the record at the time (the motion was moved formally without debate), the intention at the time was to have this material incorporated into the Code itself.

16. However, the way this material is presented does not make its status as part of the Code as clear as it might be. For one thing, it is included in an annexe rather than within the body of the document – although this was probably done at the time simply to make it as easy as possible to issue the additional loose-leaf pages required. For another, it continues to be described as “guidance” (despite containing provisions expressed in mandatory terms).

17. The Annexe itself (paragraph 19) states that complaints about MSPs for alleged breaches of its terms should be made to the Presiding Officer in the first instance (rather than to the Commissioner or to the Committee). The Presiding Officer will aim to resolve the matter informally, and only where this is not possible or where the matter is “of sufficient seriousness to warrant a more formal investigation” will the Presiding Officer refer the matter to the Committee “in accordance with … its remit to consider and report on the conduct of members in carrying out their Parliamentary duties”.

18. Again, this could be read as suggesting that any consideration given to a complaint under the Annexe by the Committee would not arise from that part of its remit which relates to “whether a member’s conduct is in accordance with … [the] Code of Conduct”. This may be explained by the fact that the document was drafted before it had been made part of

3 7th Report 2005 (Session 2), Complaint against Karen Gillon MSP, SP Paper 418 http://www.scottish.parliament.uk/business/committees/standards/reports-05/str05-07.htm

4 ST/S2/05/10/5 (Agenda item 4)

the Code, but this is not clear to someone reading the document, unaware of the process that led to its inclusion in the Code.

19. More significantly, complaints about breaches of the Annexe are not currently listed in paragraph 10.2.43 of the Code as “excluded complaints” for the purposes of the Scottish Parliamentary Standards Commissioner Act. That Act makes it the function of the Commissioner to investigate any complaint about the conduct of an MSP, other than an excluded complaint, in order to establish whether a “relevant provision” has been breached. “Relevant provision” is then defined to include the Code of Conduct. Since the Annexe is now part of the Code, it should fall to the Commissioner (and not the Presiding Officer) to investigate any alleged breach of its provisions, so long as complaints about the Annexe are not “excluded complaints”.

20. The Review of the Code provides an opportunity to clarify these issues. Assuming it did not wish to alter the substantive position in relation to how alleged breaches of the guidance are handled, the Committee could therefore recommend:

• moving the guidance from an annexe into the body of the Code and making it more clear that a breach of the guidance constitutes a breach of the Code itself; and

• adding it to the list of “excluded complaints” so that alleged breaches remain to be considered by the Presiding Officer and (if need be) the Committee, but not by the Commissioner.

Consultation of the Presiding Officer

21. More generally, the review of the Code provides an opportunity for the Committee to consult the Presiding Officer about those aspects of the Code for which he has some responsibility.

22. The Presiding Officer may, in particular, wish to suggest some alterations to the wording of Annexe 5 based on his experience of dealing with complaints of non-compliance with the Annexe.

23. Complaints about a Member’s conduct at a meeting of the Parliament are also a matter initially for the Presiding Officer (paragraph 10.2.43(a)). Again, the review of the Code will provide an opportunity to consult the Presiding Officer on any issues that may have arisen in the context of the operation of the rules on conduct in the Chamber.

Consultation of Corporate Body (SPCB)

24. The SPCB is responsible for ensuring that the Parliament is provided with the property, staff and services it requires. The SPCB considers and makes decisions on a wide range of issues to do with the running of the Parliament including accommodation and the use and security of Parliamentary facilities.

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25. Complaints about the use by MSPs of Parliamentary facilities and services are dealt with by the SPCB. This includes complaints which involve Cross-Party Groups (under paragraph 10.2.43(d)). Section 8 of the Code reminds MSPs that Groups must comply with any rules laid down by the SPCB.

26. The review of the Code will provide an opportunity to consult with the SPCB on any issues that may have arisen in the context of the operation of the rules relating to Members’ use of facilities provided by the SPCB.

Consultation of members

27. The Committee agreed at its 1st Meeting 2005 to invite comments from all MSPs on the proposed review of the Code. Feedback to date has resulted in an issue relating to the Members’ Interests Order (which is progressing separately from the review of the Code) and an issue relating to complaints procedure (section 10 of the Code, which the Committee is invited to agree to review at a future meeting).

28. The Committee may wish to consider whether it should write to the Business Managers of all the parties (and to a representative of the Independents Group), inviting written comments on any of the proposals which the Committee agrees to from this paper. The Committee may wish to consider inviting Business Managers to give oral evidence to the Committee at a future meeting (possibly early in 2006).

Publication of Directions

29. One of the options outlined above is to make a clearer distinction within the Code of Conduct document between the Code itself and useful information that should be read alongside it. That might involve ensuring that all the material presented in Annexes is in the latter category, and would include relevant legislation (such as the new Members’ Interests Act and the Standards Commissioner Act).

30. The Directions that the Committee has so far made under the Standards Commissioner Act are equivalent to a form of subordinate legislation in that they specify in more detail than the Act itself certain aspects of the process for considering and investigating complaints. If the purpose of reproducing the Act as an Annexe to the Code is to assist MSPs and other users of the document to understand the standards regime, then it would be useful if these Directions were also included. (At present, there is no single, convenient place where the text of these Directions can be found.)

31. The existing Directions have all been made under section 4, 7(6) or 19(1) of the Act. There are, however, a number of other Direction-making powers in the Act – in sections 3(6), 7(7), 10(2), 11(6) and 12(1) – some of which would involve Directions relating to a specific complaint or to particular circumstances, rather than to general aspects of the complaints process. It might not always be appropriate to publish such a

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direction – for example, because it would be of relevance only to the Commissioner and for a short period, or because (in referring to a named individual) it would raise data protection issues. In practice, the Clerks would advise the Committee on each occasion whether there were any relevant considerations for or against publication of a Direction it makes.

Conclusion

32. The Committee is invited to agree—

• to review sections of the Code of Conduct for MSPs that are unaffected by the legislation governing Members’ interests – and to consider issues papers on these sections at future meetings; • to consider a revised format for the Code which provides clearer delineation of sections which contain mandatory provisions about standards of conduct, advisory material and any additional supporting information; • to write to the Presiding Officer, seeking his views in relation to conduct in the Chamber; and in relation to Annexe 5 (Relationships between MSPs); • to write to the SPCB, seeking its views in relation to the use of facilities provided by SPCB and in connection with Cross-Party Group activity; • to write to Business Managers, inviting any written evidence with a view to taking oral evidence in 2006; • to include, where appropriate, the Directions it has made under the Standards Commissioner Act in an Annexe to the Code.

STANDARDS COMMITTEE CLERKS OCTOBER 2005

7 ST/S2/05/10/6 (Agenda item 5) STANDARDS AND PUBLIC APPOINTMENTS COMMITTEE

Review of the Code of Conduct: Direction under the Scottish Parliamentary Standards Commissioner Act

Introduction

1. At its 4th Meeting, 2004 (23 March), the Committee agreed to issue a Direction to the Standards Commissioner. (The text of the Direction is set out in Annexe B.) The Direction requires the Commissioner to show a draft of his report, excluding his conclusions, to the person who made the complaint before the close of Stage 2 of the complaints process. This takes place during the private stage of the investigation of a complaint, before the Commissioner’s report is submitted to the Committee for consideration and before the report becomes a public document.

2. However, the decision made by the Committee to issue such a Direction was not a unanimous one and the Committee may wish to review the policy in the light of operational experience.

Consideration of revision to the original procedure

3. In the original procedure, the complainer received a copy of the Standards Commissioner’s report when it was published at the conclusion of the Standards Committee’s consideration of a complaint (Stage 3) as an annexe to the Committee’s report.

4. At its 4th Meeting in March, the Committee was invited to consider whether the Standards Commissioner’s report should be shown to the complainer at any stage during the investigation of a complaint by the Standards Commissioner or the Committee.

5. The issues paper considered by the Committee at its meeting stated:

“The arguments in favour of retaining the current procedure may be summarised as follows:

• It accurately reflects the respective roles of the complainer, Commissioner and Committee as set out in the Scottish Parliamentary Standards Commissioner Act 2002 and the Code of Conduct; • It minimises the risk of the Commissioner’s report being ‘leaked’; • Disclosing the full report to the complainer may invite challenges to the Commissioner’s findings and develop into a form of appeals process. This could in turn lead to delays in the complaints process.

“The arguments in favour of disclosure may be summarised as follows:

ST/S2/05/10/6 (Agenda item 5)

• Issues of fairness; • If the Committee decides to conduct its own investigation at Stage 3, it may take written or oral evidence from the complainer. It may seem unfair to require complainers to answer questions about matters raised in a report that they have not seen. • The Commissioner may be able to avoid inadvertent errors or mistaken assumptions.

“The Committee may consider that there are strong arguments on practical grounds to support retention of the current procedure whereby the complainer is not given sight of the Commissioner’s draft report at Stage 2. However, in the event of the Committee undertaking its own investigation into a complaint, the Committee may wish to consider disclosing the Commissioner’s report to the complainer if it wishes to take written or oral evidence from him or her as part of the investigation.”

6. The Committee considered two options in relation to disclosure of the Commissioner’s draft report:

• At Stage 2 of the complaints process: the complainer could be given a copy of the Commissioner’s report in draft at Stage 2, prior to the report being finalised and submitted to the Standards Committee;

• At Stage 3 of the complaints process: the complainer could be given a copy of the Commissioner’s final report in the event that the Committee decided to carry out its own investigation into a complaint at Stage 31.

7. Following a division (For 4, Against 2, Abstentions 0), the Committee agreed to direct the Commissioner to give a copy of the draft report to the complainer at Stage 2 of the process.

The Direction in practice

8. Since the Direction was issued to the Commissioner, the Committee has dealt with five reports into complaints which have progressed through the Standards Commissioner complaints process.

In 2004— 5th Report, 2004: Complaint against Kenny MacAskill MSP and Tricia Marwick MSP

In 2005—

1 In relation to procedure at Stage 3 of the complaints process, paragraph 10.2.36 of the Code of Conduct for MSPs states, “The Standards Committee will determine the procedure to be followed in relation to any investigation which its wishes to carry out itself.”. This would allow the Committee to show the report to the complainer at this Stage. ST/S2/05/10/6 (Agenda item 5) 3rd Report, 2005: Complaints against Jack McConnell MSP 4th Report, 2005: Complaint against Kenneth Macintosh MSP 7th Report, 2005: Complaint against Karen Gillon MSP 8th Report, 2005: Complaint against David McLetchie MSP

9. In three out of the five cases, the Committee was notified that information contained in the confidential draft reports had been used outside of the complaints process. Details of the disclosures made in those three cases are as follows:

• 5th Report, 2004: On submission of his report to the Committee at the conclusion of Stage 2, the Commissioner reported to the Convener that the Committee would wish to be aware that when he made the confidential draft report available to the complainers, one of the complainers disclosed to a third party information which was contained in the draft report.

• 3rd Report, 2005: The Committee considered the Commissioner’s draft report in private on 31 May and announced its decision on 7 June. The ‘Sunday Post’, dated 8 May, and ‘The Herald’, dated 9 May, both printed stories which quoted from the confidential draft report, reported what were allegedly the Commissioner’s draft conclusions and contained quotes from one of the complainers about those alleged conclusions.

• 8th Report, 2005: Information which was not in the public domain was the subject of an inquiry by a journalist after the draft report had been issued to the Member concerned and to the complainer.

10. It should be noted that, although the Direction does not authorise disclosure of the Commissioner’s conclusions as to breach (that is, conclusions as to whether, as a result of the conduct complained about, the MSP has breached a “relevant provision”), it is likely to be possible to infer what those conclusions are from the information that is disclosed (which includes the Commissioner’s finding as to whether the MSP has committed the conduct complained about).

11. Since the Direction has been in force, the Standards Commissioner has raised concerns about the operation of the policy set out in the Direction. These concerns echo some of those discussed by the Committee at its 4th Meeting in March. In his annual report 2004-20052, the Commissioner states:

“I have expressed concerns to the Committee about these [two] policies. While there are arguments in favour of sending a draft to the complainer, the complaints process is an investigation of a complaint against a Member and not a resolution of a dispute

2 http://www.spsc.co.uk/docs/annualReport2004-2005.pdf ST/S2/05/10/6 (Agenda item 5) between two parties. Sending a draft report to the complainer at Stage 2 carries a significant risk in some cases that there will be premature publicity that would be inconsistent with the Committee’s policy, and the statutory provision, for confidentiality at that stage of the process. I believe the effects of the new policy need to be kept under review.

“There is also a potential danger that the Direction regarding annexing complaints could be seen by complainers as a sort of “appeal” against the Commissioner’s decisions in a way that would undermine the independence of the Commissioner’s role. The Committee is of course prevented by section 4(3) of the Act from directing the Commissioner as to whether or how any particular investigation is to be carried out.”

Complaints about handling of investigation

12. Paragraph 4(b) of the Direction requires the Commissioner to annex to his report any complaint made about the handling of an investigation and his response to such a complaint. Arguably, this is a distinct issue from the question of whether the complainer and the MSP should see a copy of the draft report before it is finalised. It would certainly be possible to retain the requirement in paragraph 4(b) even if the rest of the Direction was revoked.

13. On the other hand, the lack of a direction to this effect would not prevent the Commissioner annexing the material described in that paragraph, so it could be argued that there is no particular loss in also revoking it. The issue is whether the Commissioner should be required to be transparent about any handling complaints, or whether this should be left to his discretion.

Conclusion

14. The Committee is invited to decide whether—

• to retain the policy of requiring the Commissioner to show a draft report to the complainer at Stage 2 of the complaint process, as set out in the Direction dated April 2004; or

• to reverse the above policy, relying on its ability to show the Commissioner’s report to the complainer at Stage 3 of the process in the event that the Committee decides to carry out its own investigation.

15. If it decides on the latter option, it should then decide whether to revoke the whole Direction; or whether to retain paragraph 4(b).

STANDARDS COMMITTEE CLERKS OCTOBER 2005 ST/S2/05/10/6 (Agenda item 5) Annexe A: The Complaints Process

The complaints process is in four stages.

• Stage 1 - (Admissibility) - The Scottish Parliamentary Standards Commissioner will investigate and determine the admissibility of the complaint. • Stage 2 - (Investigation) - If a complaint is admissible, a further investigation into the complaint will be carried out by the Commissioner who will then report his findings in fact and conclusion to the Standards and Public Appointments Committee. • Stage 3 – (Report) - A report to the Parliament is made by the Committee following the Committee’s consideration of the Commissioner’s report. • Stage 4 – (Decision) - If the Committee has recommended the imposition of sanctions against a Member, a decision on sanctions is made by the Parliament on a motion of the Committee.

Stages 1 and 2 of an investigation are carried out in private and independently of the Committee. The Committee will not usually be aware of a complaint until a complaint progresses to Stage 2 and it receives a report from the Commissioner.

ST/S2/05/10/6 (Agenda item 5) Annexe B: The 2004 Direction

SCOTTISH PARLIAMENTARY STANDARDS COMMISSIONER ACT 2002

Scottish Parliamentary Standards Commissioner Act 2002 (Reports of the Commissioner) Directions 2004

The Standards Committee of the Scottish Parliament, in exercise of the power conferred by section 4 of the Scottish Parliamentary Standards Commissioner Act 2002 (3) and by virtue of Rule 3A.3 of the Standing Orders of the Scottish Parliament, gives the following Directions:

Citation, commencement and interpretation

1. These Directions may be cited as the Scottish Parliamentary Standards Commissioner Act 2002 (Reports of the Commissioner) Directions 2004 and shall come into force on 22 April 2004.

2. In these Directions “the Act” means the Scottish Parliamentary Standards Commissioner Act 2002.

Disclosure of draft reports

3. Before making a report to the Parliament in accordance with section 9(1) of the Act the Commissioner shall give a copy of the draft report, excluding the conclusions required by subsection (2)(d) of that section—

(a) to the complainer; and,

(b) except where the Commissioner is required to send a draft report to the member concerned in accordance with section 9(3) of the Act, to the member,

and shall afford to the complainer and the member an opportunity to make representations on the draft report disclosed.

Annexation of documents to report

4. The Commissioner shall annex to the report made in accordance with section 9(1) of the Act—

(a) any written representations made by the complainer or the member disputing facts recited in a draft report, except where those representations were accepted by the Commissioner and the draft report amended accordingly;

(3) 2002 asp16 ST/S2/05/10/6 (Agenda item 5)

(b) any complaint that the Commissioner receives and considers relevant concerning the handling of an investigation at Stage 1 or 2 together with the Commissioner’s response to such complaints.

Brian Adam MSP Convener of the Standards Committee Scottish Parliament Edinburgh 21 April 2004

ST/S2/05/10/7 (Agenda item 6) STANDARDS AND PUBLIC APPOINTMENTS COMMITTEE

SCOTTISH COMMISSIONER FOR HUMAN RIGHTS BILL: CALL FOR WRITTEN EVIDENCE

Introduction

1. The Scottish Commissioner for Human Rights Bill1 was introduced on 7 October 2005. The Bill establishes the office of the Scottish Commissioner for Human Rights who will be appointed by Her Majesty on the nomination of the Scottish Parliament.

2. The Bill has been referred to the Justice 1 Committee to consider and report on its general principles at Stage 1. As part of its call for evidence, the Convener of Justice 1 has written to the Conveners of Committees which have interaction with existing Commissioners seeking comments which may assist the Justice 1 Committee in its scrutiny of the Bill. The letter from the Convener is attached as Annexe A.

The Human Rights Commissioner

3. The general duty of the Commissioner will be to promote awareness and understanding of, and respect for, human rights. The Commissioner must keep under review the policies and practices of Scottish public authorities but has the power to choose which issues he or she examines (provide the issues are within his or her remit). The Bill gives the Commissioner certain other specific functions in support of his/her general duty. These include: providing information, advice, guidance and education; carrying out inquiries; and intervening in civil court proceedings.

4. Although the Human Rights Commissioner will have an investigative role in relation to inquiries, the post is very distinct from the post of the Scottish Parliamentary Standards Commissioner. The Standards Commissioner’s functions are limited to the investigation and reporting of complaints about the conduct of MSPs that could constitute a breach of the Code of Conduct, the Standing Orders, or Members’ interests legislation.

Response from the Committee

5. The Justice 1 Committee is considering the general principles of the Scottish Commissioner for Human Rights Bill. The Standards and Public Appointments Committee has been asked to comment generally on how this Committee interacts with the Standards Commissioner.

• The Committee is invited to consider the attached draft response (Annexe B).

1 SP Bill 48. Available on the Parliament’s website under Parliamentary business / Bills / Bills in Progress.

1 ST/S2/05/10/7 (Agenda item 6) Annexe A: Letter from Justice 1 Committee

I write on behalf of the Justice 1 Committee to ask you for the views of your Committee on the Scottish Commissioner for Human Rights Bill, which was introduced to the Parliament on 7 October 2005. The fundamental purpose of the Bill is to create a Scottish Commissioner for Human Rights which will promote awareness and understanding of, and respect for, human rights.

The Justice 1 Committee would be interested to receive any comments you may have regarding relations between your Committee and the Standards Commissioner. For example, are there lessons which should be learned from the way that organisation is structured and reports to the Parliament?

I would be grateful if written submissions could be with the Justice 1 Committee clerks by 18 November 2005.

I am copying this letter to the Clerk to the Committee.

Pauline McNeill MSP Convener, Justice 1 Committee 11 October 2005

2 ST/S2/05/10/7 (Agenda item 6) Annexe B: Draft Response to Justice 1

DRAFT COVERING LETTER

Thank your for your letter dated 11 October in which you seek comments from the Standards and Public Appointments Committee on the Scottish Commissioner for Human Rights Bill and, in particular, on relations between the Committee and the Scottish Parliamentary Standards Commissioner.

Please find attached a response from my Committee, which I trust will be of some assistance to your Committee in its inquiry.

Brian Adam MSP Convener

* * * * * * * * * * * * * * * * * *

The Standards Committee and the Scottish Parliamentary Standards Commissioner

In 1999, the Standards Committee agreed that, to maximise public confidence in the probity of elected representatives and maintain the credibility of the Parliament, there should be a Standards Commissioner to investigate complaints against MSPs. The Standards Commissioner would be, and would be seen to be, independent of the Standards Committee and Parliament.

The Scottish Parliamentary Standards Commissioner Act 2002 (2002 asp 16)2 established the post of the Scottish Parliamentary Standards Commissioner. The Act gives the Commissioner statutory powers to compel evidence and witnesses, enhancing the independence of the post. The Act also sets out transparent appointment and removal procedures giving the Commissioner security of tenure, again buttressing his/her independence. The Commissioner can only be removed from office if two-thirds of MSPs voting agree.

To create the post of Scottish Parliamentary Standards Commissioner, with the necessary statutory powers, required an Act of the Scottish Parliament.

The post of Standards Commissioner

In contrast to the proposed Scottish Commissioner for Human Rights, the Standards Commissioner is not appointed by Her Majesty but is appointed by the Scottish Parliamentary Corporate Body with the agreement of Parliament.

The Standards Commissioner may appoint staff, and may appoint people to provide services, in each case with the consent of the Parliamentary corporation.

2 http://www.opsi.gov.uk/legislation/scotland/acts2002/20020016.htm

3 ST/S2/05/10/7 (Agenda item 6) It is also for the Parliamentary corporation to determine the terms and conditions of the Standards Commissioner.

The investigative process to be followed by the Commissioner is specified in the 2002 Act. Although the Committee has the power to issue Directions to the Commissioner about the procedure to be followed in investigations generally, it cannot do so in relation to whether or how a particular investigation should be carried out. (Directions have been issued, for example, about how interviews with witnesses should be recorded, for how long documents obtained in the course of an investigation should be retained and to whom those documents should be returned.)

The Committee considers that the advantage of using Directions as a mechanism is that these can be more promptly revised in the light of operational experience than provisions in the Act itself (which would require primary legislation to amend).

Role of SPCB

As noted above, the issues of appointment, reappointment, terms and conditions, etc do not fall within the remit of the Standards Committee in relation to the Standards Commissioner. The Committee therefore suggests that the Justice 1 Committee seeks the views of the SPCB on those issues.

How the Standards Commissioner works with/interacts with the Standards Committee

Reports to the Committee

The complaints process is in four stages. The first two stages are carried out in private and independently of the Committee by the Commissioner. The Committee is only informed of a complaint when the Commissioner submits his/her report at the close of stage 2.

The Commissioner’s report is submitted directly to the Standards Committee. The Act specifies that the report must be made to the Parliament; the interpretation provisions of the Act state that the “Parliament” includes any Committee of the Parliament. In the event that the Standards Committee is unable to consider a report on a complaint (for example, conflict of interest), the Parliament is able to establish an ad hoc Committee to scrutinise the report.

The Committee cannot alter or amend the report of the Commissioner. However, under the Act, it may direct the Commissioner to carry out a further investigation.3

Under the Code of Conduct, the Committee must make a report to the Parliament after it has concluded its consideration of the Commissioner’s report4. The report of the Commissioner is always published in full as an annexe to the Committee’s own report and therefore becomes a public document.

3 Section 10(2). See also paragraph 10.2.33 of the Code. 4 Paragraph 10.2.38.

4 ST/S2/05/10/7 (Agenda item 6) Annual report

The Act specifies that the Standards Commissioner must make an annual report to the Parliament and lay it before the Parliament. The Act specifies certain statistical information that must be included in the annual report, but it is otherwise for the Commissioner to decide what to include.5 However, the Act also allows the Committee to direct the Commissioner to report to the Parliament on aspects of his or her functions, and it is possible that any such direction would, in practice, be complied with by the Commissioner including that information in the annual report6. There is no exact equivalent, however, of the provision in the new Bill allowing the Parliament to direct the Commissioner as to the form and content of the annual report.

There is no provision in the Act or the standing orders for the Commissioner’s annual report to be debated by the Parliament.

Meetings with the Committee

There is no specified mechanism for the Committee and the Commissioner to meet. When the Commissioner’s post was created, one of the key elements of the post was the Commissioner’s functional independence from the Committee. Frequent meetings between the Committee and the Commissioner could be perceived as undermining that independence.

The Commissioner’s role is limited by the Act to the investigation of complaints. He is not able to comment on the provisions of the Code of Conduct (against which complaints are judged) except in the context of a particular complaint (or in compliance with a direction made by the Committee)7.

The Commissioner may also take the opportunity to raise more general issues about the complaints process or the operation of his/her office in an annual report. The Committee is able to invite the Commissioner to give oral evidence at a formal meeting of the Committee or to provide it with an informal briefing on issues that he/she has raised. The Committee is also aware that in certain circumstances it would be inappropriate to meet the Commissioner – for example, when a complaint is under consideration by the Committee and there may be a perception of influence or collaboration between the Committee and the Commissioner.

General observations

The Standards Commissioner post is a distinct post with a tightly defined remit. This post does not necessarily have close parallels with other Commissioner posts. In particular, both the Committee and the Commissioner have expressed the view that the Commissioner is not involved in a “dispute resolution” process (unlike, for example the Scottish Public Services Ombudsman, for example, who

5 Section 18(2). 6 Section 4(2)(b). 7 Section 3(6)(b).

5 ST/S2/05/10/7 (Agenda item 6) has the power to mediate and resolve disputes). The complaints process is focused instead on whether or not an MSP has breached a relevant provision.

The Committee was interested to note the provision in the Scottish Commissioner for Human Rights Bill which would allow the proposed Commissioner to show a draft of his/her proposed report to a “specified or identifiable person” (section 9(4)) before that report is submitted to the Parliament.

In 2004, the Committee directed the Standards Commissioner to show a draft copy of his report (minus the conclusion as to whether a breach had occurred) to the complainer before the report was finalised and before it was submitted to the Parliament. However, on several occasions since that direction was made, information about a draft report has, despite it being confidential, appeared in the public domain. [Depending on outcome of earlier Agenda item, the Committee may wish to add: The Committee has since reviewed the policy and has now revoked the 2004 Direction.]

There must be a risk that any provision that could lead to information contained in a draft report appearing in the public domain prematurely could prejudice the Parliament’s consideration of that report. There is also the possibility that showing a complainer a draft report before it is submitted to the Parliament could give the impression that the complainer is being given a mechanism for “appealing” any of the Commissioner’s findings or recommendations that do not meet his or her expectations.

Summary

The deciding factors in the Standards Committee’s establishment of the post of the Standards Commissioner were: 1) the extent of the powers of the proposed Commissioner and the impact that this would have upon the degree of independence and status of the post. 2) that an independent element was essential to ensure public confidence in the robustness of the procedures.

The Standards Committee recommends that in scrutinising the Scottish Commissioner for Human Rights Bill, the Justice 1 Committee may wish to consider— • the need to take into account public perception of the need for and the operation of a Scottish Commissioner for Human Rights; • the degree of independence required for the post; and • the extent of accountability to the Parliament.

6 ST/S2/05/10/8 For information STANDARDS AND PUBLIC APPOINTMENTS COMMITTEE

Convener’s Visit to Serbia: Report on presentation and participation by the Convener of the Standards and Public Appointments Committee in a Workshop

Introduction

This note provides a short account of the Standards Convener’s participation in a workshop, “Significance of Protocol and the Code of Conduct in the Work of an MP” – a workshop for Committees of the National Assembly of the Republic of Serbia, arranged by the Organisation for Security and Co- operation in Europe (OSCE) and held at the Ministry of Foreign Affairs of Serbia and Montenegro, Belgrade, Serbia on 27 and 28 September 2005.

Background

The workshop was organised by the OSCE as part of its Mission to Serbia and Montenegro, as a specific project (the Pilot Committees Project) under its Parliamentary Support Programme (PSP). The PSP is an interactive programme that facilitates the exchange of experience and expertise between MPs of Serbia, MPs from Parliaments of other OSCE member States and OSCE personnel. Its main objective is to assist MPs and their staff in Serbia in the exercise of their legislative, oversight and representative functions.

The Standards Convener participated in two seminars, which formed a part of the workshop, for selected Members of the National Assembly of Serbia. The first seminar was for Members of the Legislation and Defence and Security Committees and the second was for Members of the Education and Labor and Social Affairs Committees.

The Convener was accompanied throughout by the Senior Assistant Clerk to the Standards and Public Appointments Committee.

Objective of the Seminars

The Pilot Committees Project is focused on a select number of committees throughout 2005 and 2006. The main concept of the Project is the development of an individualised programme of assistance for each pilot committee, based on consultations with the committee chair, committee members and committee staff. Based on preliminary discussions with the pilot committees, the following topics were identified as common to all the committees—

• diplomacy and protocol in the work of an MP; • significance of a Code of Conduct for MPs; • public speaking and communication with media; • committee meeting procedures and management; • budget oversight.

1 ST/S2/05/10/8 For information The workshop was held against the background of the Law on Prevention of Conflict of Interest in Discharge of Public Office which came into force at the beginning of 2005. This defines conflicts of interest for elected and government officials and sets out comprehensive requirements for disclosure. It is implemented and administered by the Republic Board for Resolving Conflict of Interest. The Law on Prevention of Conflict of Interest in Discharge of Public Office is seen as a starting point for the establishment of an effective and sustainable standards regime for MPs. However, as it covers both elected representatives and other officials, it does not directly address the unique position of MPs to act as legislators and representatives of the electorate. The seminars were intended to provide MPs with a starting point to develop and adopt their own standards regime and a Parliamentary code of conduct.

The Convener’s Presentation

The Convener’s presentation focussed on the topic of the significance of a code of conduct in the work of an MP. MPs from the National Assembly of Serbia had expressed a particular interest in the way in which the Scottish Parliament deals with breaches of our Code of Conduct for MSPs.

The Convener’s presentation was divided into three sections. The first part was entitled ‘Developing a Code of Conduct’ and covered the following issues:

• the Scottish Parliament and devolution • background to the Standards Committee • the standards framework in Scotland and the development of the Code of Conduct • the Parliament’s Code of Conduct • review of Members’ Interests

The second part of the presentation focused on enforcement and regulatory issues and the complaints process. The following issues were covered:

• developing a complaints system – including the key points of the Scottish Parliamentary Standards Commissioner Act 2002 • the four stage complaints process

The third part of the presentation covered the following:

• the legislation in practice • complaints – the number and nature

In his concluding remarks, the Convener highlighted the following:

• In drafting Parliamentary codes, aim for clarity and proportionality. It is vital that Members understand what is expected of them and that the system is not overly bureaucratic and does not become an

2 ST/S2/05/10/8 For information administrative burden. If the rules are clear and proportionate, they will command respect.

• In developing a complaints system, consider injecting an independent element. This will help lift the process above party politics and help secure the confidence of both Members and the wider public.

• Envisage a code of conduct as an evolving document. Monitor how the code and complaints process work in practice and consider making changes where and when required.

Discussion

The following issues emerged in the discussion sessions after each section of the presentation. Many of the issues raised went beyond the development of Parliamentary codes and covered more general issues relating to Parliamentary institutions and the role of the elected representative:

• similarities between Serbia and Scotland, in that both are ‘states in transition’

• how the electoral system works in Scotland

• how the MP/MSP relationship works

• how an MSP elected on the ‘list’ system can be substituted/replaced during a Session

• how MSPs generally vote – along party lines or as individuals

• comment was expressed on the Scottish approach: seems quite a strict approach to standards issues

• the registration of non-pecuniary interests and membership of organisations

• how the Scottish electoral system deals with a Member who leaves the political party that he or she represents in the Parliament during a Parliamentary session

• immunity of politicians from criminal proceedings; privilege in Parliamentary proceedings

• how MSPs’ salaries have been reported in the Scottish media (there has been some very strong reporting on MPs’ salaries in Serbian media)

• dress codes in the Parliament

• Register of Members’ Interests and its availability to the public in Scotland

3 ST/S2/05/10/8 For information

• enforcement of the standards regime and sanctions under the Code of Conduct for MSPs

• whether MSPs can carry out other jobs at the same time as being an MSP

• whether the public can complain about non-attendance at meetings of the Parliament or lack of involvement in debates

Follow-up

OSCE is currently planning the next training sessions in the other topics identified by the pilot committees and intends to hold a round of meetings with committee chairs to announce the programme and gather feedback on the code of conduct workshop.

SENIOR ASSISTANT CLERK TO THE STANDARDS COMMITTEE OCTOBER 2005

4 ST/S2/05/10/8 For information Annexe 1 Background Information

Basic information

Population of Serbia (excluding Kosovo): 7,498,001 (2002 census) Population of Montenegro: 650,575 (2003 census)

In 1992, Serbia and Montenegro declared themselves a new state, the Federal Republic of Yugoslavia (FRY). In 2002, the Federal and republican governments signed the ‘Belgrade Agreement’ to form a looser union between Serbia and Montenegro. FRY became the State Union of Serbia and Montenegro through the adoption of a new Constitutional Charter in 2003.

The State Union of Serbia and Montenegro

The republics of Serbia and Montenegro as a state union share common foreign and defence policies and should operate under a common market. The Serbian and Montenegro Parliament has one Chamber of 126 Members, of which 91 are Serbs and 35 Montenegrin.

The National Assembly of Serbia

The National Assembly of Serbia (‘the Assembly’) is the highest constitutional and legislative power in the Republic of Serbia. It co-operates with the Assembly of the State Union of Serbia and Montenegro, the Assembly of Montenegro and with parliaments of foreign states.

An early Parliamentary election took place in 2003 and on 3 March 2004, the Assembly voted in a minority government comprising three parties (the Democratic party of Serbia, G17 Plus and Serbian Renewal Movement-New Serbia). The coalition is supported in Parliament by the Socialist Party of Serbia. The next Parliamentary elections are due to take place in 2007.

The Assembly has 250 MPs. On voting days, at least 126 MPs must attend the session in order to constitute a quorum. The Assembly currently has 29 Committees, each has a chair, a vice-chair and a varying number of members. Representation of each political party in a given Committee reflects the representation in the Assembly itself. Quorum is established in a Committee meeting when more than half of the total number of Committee members are present. Decisions are made by a simple majority vote of the Members present.

5 ST/S2/05/10/8 For information Annexe 2

The Standing Committees of the National Assembly of the Republic of Serbia

1. Committee for Constitutional Issues; 2. Legislation Committee; 3. Committee for Defense and Security; 4. Committee for Foreign Affairs; 5. Committee for Justice and Administration; 6. Committee for Interethnic Relations; 7. Committee for Relations with the Serbs Living Outside Serbia; 8. Committee for Development and Foreign Economic Relations; 9. Committee for Finance; 10. Committee for Industry; 11. Committee for Transport and Communications; 12. Committee for Urban Planning and Civil Engineering; 13. Committee for Agriculture; 14. Committee for Trade and Tourism; 15. Committee on Privatisation; 16. Committee on Kosovo and Metohija; 17. Committee for Health and the Family; 18. Committee for Environmental Protection; 19. Committee for Education; 20. Committee for Youth and Sports; 21. Committee for Culture and Information; 22. Committee for Science and Technological Development; 23. Committee for Labor, War Veterans' and Social Affairs; 24. Committee for Representations and Proposals; 25. Administrative Committee.

The National Assembly may also set up review committees in order to take stock of the situation in a particular field and establish facts about certain phenomena or events. The decision to set up a review committee defines the committee's composition and terms of reference (however, a review committee may not carry out investigative and other judicial activities).

ST/S2/05/9/M

STANDARDS AND PUBLIC APPOINTMENTS COMMITTEE

MINUTES

9th Meeting, Session 2 (2005)

Wednesday 14 September 2005

Present:

Brian Adam (Convener) Bill Butler Linda Fabiani Alex Fergusson Donald Gorrie Christine May Karen Whitefield

The meeting opened at 9.45 am.

1. Items in private: The Committee agreed to take items 4 and 5 in private.

2. Complaint against Karen Gillon MSP: The Convener announced the Committee’s decision in relation to a report by the Scottish Parliamentary Standards Commissioner, which concluded that Karen Gillon MSP had breached paragraph 2.4 of the Code of Conduct for MSPs but had not breached paragraph 9.1.1 of the Code. The Committee’s decision was to accept the Commissioner’s conclusions but not to recommend the imposition of any sanction.

3. Complaint against David McLetchie MSP: The Convener announced the Committee’s decision in relation to a report by the Scottish Parliamentary Standards Commissioner, which concluded that David McLetchie MSP had not breached Article 6 of the Members’ Interests Order, taken together with section 6 of the Code of Conduct for MSPs. The Committee’s decision was to accept the Commissioner’s conclusion.

4. Complaint against Karen Gillon MSP (in private): The Committee considered and agreed a draft report, subject to minor amendments.

5. Complaint against David McLetchie MSP (in private): The Committee considered and agreed a draft report.

The meeting closed at 10.00 am.

Andrew Mylne Clerk to the Committee