Standards Committee, 5th Report, 2004 (Session 2) – ANNEX A

SCOTTISH PARLIAMENTARY STANDARDS COMMISSIONER

Report to Standards Committee

on complaint against

Tricia Marwick MSP and Kenny MacAskill MSP

2nd Report 2004

5 6 Standards Committee, 5th Report, 2004 (Session 2) – ANNEX A

CONTENTS ...... Page

BACKGROUND...... 1

Key to people and organisations named in report...... 1

Narrative of events related to complaint...... 1

THE COMPLAINT ...... 3

MY INVESTIGATION...... 7

EVALUATION OF EVIDENCE, AND FINDINGS...... 10

WAS THERE A BREACH OF THE CODE OF CONDUCT? ...... 17

CONCLUSION...... 20

ANNEXES...... 21

Annex A (Admissibility)...... 21

Annex B (Report on complaints about the Commissioner’s investigation at stages 1 and 2, and his Response) ...... 26

Annex C (Comments by complainers following sight of draft report, without conclusions as to breaches of Code)...... 29

Annex D (Comments by MSPs following sight of full draft report)...... 38

APPENDICES (LIST)...... 59

7 8 Standards Committee, 5th Report, 2004 (Session 2) – ANNEX A

SCOTTISH PARLIAMENTARY STANDARDS COMMISSIONER

Report on complaint against

Tricia Marwick MSP and Kenny MacAskill MSP

BACKGROUND

Key to people and organisations named in the report

The complainers Johnson, Diana C A Hope, Duncan Saunders, Fred, BSc CEng MICE FPWI Archibald, Peter and Irene. The complainers are residents of the communities of Blairingone and Saline in Fife. Mr Hope is Chairman and Ms Johnson is Secretary of the Blairingone and Saline Action Group (BSAG) and the Archibalds are members. Mr Saunders is not a member.

The MSPs complained against MacAskill, Kenny. Mr MacAskill is SNP regional MSP for Lothians. Marwick, Tricia. Ms Marwick is SNP regional MSP for Mid Scotland and Fife.

Others Elder, Dorothy-Grace. Ms Elder is a former regional MSP for Glasgow. She was elected as SNP but resigned from that party in May 2002, continuing as an independent until the end of the first session of Parliament (end of March 2003). From December 2002 till March 2003 she was Reporter to the Public Petitions Committee, of which she was a member.

Spowart, Mary. Ms Spowart is a former Parliamentary researcher. She was employed by Mr MacAskill and Ms Marwick from June 2002 until her dismissal on 3 February 2003. Prior to her employment with the two members she was employed by the SNP group from May 2000.

Blairingone and Saline Action Group (BSAG). This is an organisation of local residents, formed in 1997, who have raised concerns and petitioned Parliament about the spreading of organic waste on land in their vicinity.

Narrative of events relevant to complaint

(This narrative largely relates the evidence which appears uncontested. Where there is a conflict of evidence about what occurred, this will be indicated.)

1. BSAG lodged a petition (PE 327) with the Scottish Parliament in December 2000 calling for an investigation of the health implications of composting and spreading of organic waste material, including blood and sewage sludge, on local land reclaimed from open cast coal mining. There was concern that

9 (1) Standards Committee, 5th Report, 2004 (Session 2) – ANNEX A illnesses of local residents might be related to the spreading activity, as well as objections to smell and night working.

2. The petition was passed to the Transport and Environment Committee of the Parliament which conducted further investigations and produced a report in March 20021. The report was debated in Parliament in October 2002.

3. The Executive responded by reviewing and tightening existing regulations. From 31 March 2003 new rules required blood and gut contents to be treated before being spread on land and prohibited spreading unless agricultural benefit or ecological improvement can be proved by the spreading operator to the Scottish Environmental Protection Agency (SEPA).

4. This successful process, involving interaction between local residents and the Parliament, has been held up as a notable achievement of local activism, devolution and the mode of operation of the new Parliament.

5. In October 2001, an Environmental Hazard Investigation Team was set up including SEPA, local authority and health interests, to investigate the alleged health effects. BSAG were disappointed that an inconclusive outcome was reached and they considered they had been excluded from the process. Following a request by George Reid, MSP, regional member for Mid Scotland and Fife, the Public Petitions Committee agreed to conduct a public health investigation into the concerns of the Blairingone residents.

6. In December 2002 the Public Petitions Committee appointed Dorothy- Grace Elder as Reporter in relation to this investigation and a medical adviser was also appointed, Dr John Curnow. There was a time pressure on the investigation and reporting process as the first session of Parliament would close at the end of March 2003.

7. Health questionnaires, marked for return to Dorothy-Grace Elder, were distributed to local residents, with an introductory letter from her as Reporter to the Committee2. The letter also allowed respondents to indicate that they were willing to waive their confidentiality in relation to the intended use of the information. Dorothy-Grace Elder asked Mary Spowart to look over the returns and other documents to ensure that previous work was not being duplicated. Mary Spowart had previously assisted George Reid MSP on Blairingone work when she was SNP environment researcher. Mary Spowart offered to go further and produce a spreadsheet. Ms Elder says she intended, and asked for, the work to be done in Ms Spowart’s own time. In the event, work was done in Ms Spowart’s employers’ time without their authorisation. (Whether or not Ms Elder knew that Ms Spowart was employed by the two members concerned rather than the SNP group is another question, which does not have to be answered here.) The two members discovered other serious matters in relation to their researcher as well as the fact that she was doing work for Dorothy-Grace Elder in their time without their authority, and she was dismissed for gross misconduct on 3 February 2003. An appeal in relation to the dismissal was held on 21 February 2003. The dismissal was upheld, and a settlement was agreed between the parties

(2) 10 Standards Committee, 5th Report, 2004 (Session 2) – ANNEX A in relation to procedural aspects of the dismissal. This agreement was not signed by Ms Spowart until 13 May 2003.

8. A black lever arch file containing medical questionnaire photocopies and other documents, together with other papers relating to Blairingone, were discovered in the members’ office. There is dispute about where they were located. Ms Elder says the file was in a desk drawer and the members say it was on the floor under a desk. For reasons given later (see Annex A) I prefer the evidence of the members on this point. The members say they made the material secure. A number of approaches were made for the return of the material between 12 and 27 February 2003. The first of these was a request by a union representative for return of the file to Mary Spowart. All other requests were for release of the material to the Public Petitions Committee process – a chronology of these is given in the Standards Committee Report into the complaint by Ms Elder3. They included approaches from the clerk and convenor of the Public Petitions Committee, from George Reid MSP, and, on the same day as she made a complaint to the Acting Standards Commissioner, 27th February, Dorothy-Grace Elder. The Presiding Officer, Sir David Steel, made a further approach on 4th March 2003 (see Appendix 11), suggesting a compromise solution of copying the material to Dorothy-Grace Elder.

9. The two members in question retained the material notwithstanding these approaches, until they handed it over to the Acting Standards Commissioner on 25 March 2003, as evidence in the complaint against them. They argued that they found no evidence that any of the work in the file was Ms Elder’s, that the work was not the property of Ms Elder or the Public Petitions Committee and that they needed to retain it as evidence in case of legal action in relation to the dismissal of the researcher.

10.The complaint by Ms Elder against the two members was under section 9.2.5 of the Code of Conduct, alleging that they had shown discourtesy and disrespect to Ms Elder by seizing and retaining documents which were entirely her intellectual property and so allegedly impairing her work for the Public Petitions Committee. The complaint was investigated by the Acting Standards Commissioner4. The Standards Committee subsequently carried out its own investigation. The outcome was that the complaint was not upheld, but all three parties were criticised for their intransigence and failure to reach a compromise at an earlier stage5. This report has to be read in conjunction with the Standards Committee’s report of the earlier investigation, since that contains most of the evidence discussed here.

THE COMPLAINT

11. Four complaints were received from members of the public about Tricia Marwick MSP and Kenny MacAskill MSP between 21 October 2003 and 5th November 2003 (see Appendices 1 – 4).

11 (3) Standards Committee, 5th Report, 2004 (Session 2) – ANNEX A

12. The complaints are listed below under Sections of the Code of Conduct alleged to have been breached as three of the four complainers presented their complaints in this way.

Section 2.2 Members’ primary duty is to act in the interests of the Scottish people and their Parliament. In doing so, members have a duty to uphold the law and to act in conformity with the rules of the Parliament. (Johnson, Hope, Saunders). 13. The complainers argue that insufficient regard was had by the MSPs to the public interest involved in the report which was being produced for the Public Petitions Committee of the Parliament by Dorothy-Grace Elder. One complainer quotes the verbal evidence of Tricia Marwick to the Standards Committee on 9 September 20036: “Over these 10 days, the Blairingone petitions were not a priority for Kenny MacAskill and me. Our priority was to ensure that no SNP material, or indeed any of our own personal material, had been leaked to the SSP.” This, it is claimed, supports the view that party politics were more important than work being carried out on behalf of a Parliamentary committee and the public. It is argued that the refusal of the MSPs to return material when approached by the Petitions Committee, George Reid MSP, and Sir David Steel, Presiding Officer, amongst others, showed their lack of concern for work being done for the Petitions Committee; material in the black lever arch file should have been returned immediately, if not to the Reporter, then to the Clerk, of the Public Petitions Committee.

14. It is alleged that the action of the MSPs did harm to the outcome of the report process, as a planning section was omitted, a promised meeting at Blairingone to discuss the final report had to be delayed and the report had to be finished under unnecessary duress because of the absence of some documentation. Some of the omitted planning material, supplied by Mr Hope (see Appendix 2), related to the former Lambhill Opencast Coal Site at Blairingone, which was central to the BSAG campaign and the Petition PE 327. Mr Hope claims that it was essential that planning guidance should have been written into the report so that the local council would be enabled to take enforcement action on waste activities taking place at the site. Without this, he claims, it may be necessary for BSAG to take Petition PE327 back to the Public Petitions Committee and have it reopened and the report revisited.

Section 2.4 Members have a duty to be accessible to the people of the areas for which they have been elected to serve and to represent their interests conscientiously. (Johnson, Hope). 15. The complainers point out that Tricia Marwick was during the relevant time a regional MSP for Mid Scotland and Fife, which includes Blairingone and Saline. They claim that she put her own interest and those of her party before the interests of the people in the area she represents.

Section 2.5 In representing people’s interests, members have a duty to respect individual privacy, unless there are overwhelming reasons in the wider public interest for disclosure to be made to a relevant authority, for example where a member is made aware of criminal activity. (Johnson, Hope, Saunders)

(4) 12 Standards Committee, 5th Report, 2004 (Session 2) – ANNEX A

16. This is central to the concerns of all the complainers, including the Archibalds who did not refer to specific sections of the Code. The Archibalds said (see Appendix 4): “We are shocked, angry and disgusted to learn that a health questionnaire, filled up by us and sent in confidence to Dorothy-Grace Elder to assist her as Reporter to the Public Petitions Committee in conducting a Parliamentary inquiry and report could be among material seized by the two MSPs on 3 February 2003….Ms Marwick and Mr MacAskill did not have our permission to take, to be in possession of, to read, to show their assistants or others any questionnaire or copy which contains private and confidential details of our health. They did not have our permission to retain any information supplied by us….They did not have our permission to hand it over to the Acting Standards Commissioner…[They] have betrayed our confidentiality and broken the trust we placed in the Scottish Parliament.” The complainers allege that the intention of the MSPs to use the file contents as evidence in any employment appeal or industrial tribunal showed they had no respect for the privacy of individuals. They point with disapproval to the evidence of Ms Marwick that she apparently went through the questionnaires with her assistant. The complainers argue that whether or not the questionnaires in the file were photocopies is irrelevant to the confidentiality issue.

Section 2.6 Members have a duty to take decisions solely in terms of the public interest. They must not act in order to gain financial or other material benefit for themselves, their family or friends. (Johnson, Hope Saunders) 17. The complainers allege that the MSPs breached the requirement to act solely in terms of the public interest; in retaining material in the file, they substituted their own selfish interests and refused any suggestion of compromise.

Section 2.8 Members have a duty to act honestly. They must declare any private interests relating to their public duties and take steps to resolve any conflicts arising in a way that protects the public interest. (Johnson, Hope, Saunders). 18. The complainers point to an explanation given in verbal evidence7 to the Standards Committee by Tricia Marwick on 9 September 2003: “I had no evidence that Ms Elder had contributed in any shape or form to the work in that lever arch file.” They attest to Ms Elder’s role in delivering the questionnaires and point out that the forms were accompanied by a letter signed by Ms Elder with her address for return. They also challenge the statements by the MSPs that the material was kept in case it was required as evidence at an employment appeal or Industrial Tribunal. They claim that the appeal was over and agreement reached on 21 February 2003, but the MSPs still did not return the documents despite various approaches to do so.

Section 2.9 Members are accountable for their decisions and actions to the Scottish people. They have a duty to consider issues on their merits, taking account of the views of others. (Johnson, Hope) 19. It is argued that the members were not accountable to the people most involved, the residents of Blairingone, since the residents knew nothing of

13 (5) Standards Committee, 5th Report, 2004 (Session 2) – ANNEX A what was happening to their health forms until they read a small article in the local paper in June 2003. They had no opportunity to express views over the fate of their own confidential health information.

Section 2.10 Members have a duty to be as open as possible about their decisions and actions. (Johnson, Hope) 20. As included above, all decisions by the MSPs about the health questionnaires were taken without the knowledge of the local residents who had completed them.

Section 2.11 Members have a duty to promote and support these principles by leadership and example, to maintain and strengthen the public’s trust and confidence in the integrity of the Parliament and its members in conducting public business. (Johnson, Hope) 21. The complainers state that the actions of the two MSPs have jeopardised the good relationship built up between the people of Blairingone and the Parliament. They point to work done in the past by George Reid MSP and Andy Kerr MSP, the Public Petitions Committee and the Transport and Environment Committee, all of which built up respect and trust in relation to the Parliament. They state that the MSPs complained about have betrayed the trust of local residents and almost destroyed their confidence in the integrity of the Parliament (this view is also shared by the Archibalds).

Section 9.1.1 Members of the Scottish Parliament are accountable to the Scottish electorate who will expect them to carry out their Parliamentary duties in an appropriate manner consistent with the standing of the Parliament and not to engage in any activity as a member that would bring the Parliament into disrepute. (Hope) 22. It is argued that neither MSP has acted in a manner consistent with the standing of the Parliament, with specific reference to removing, retaining reading and showing to others private confidential and sensitive information. Reference is made to conduct displaying arrogance and “petty anger” in the presence of the media and the public during the meeting of the Standards Committee on 25 June 2003, and following it at a press conference, after it was announced that the Standards Committee would conduct its own enquiry.

Section 9.1.2 Members must comply with the requirements of this Code of Conduct, of the Standing Orders, of any other decision of the Parliament and of any statutory provision. (Hope) 23. It is argued that the two MSPs have not complied with provisions of the Code as otherwise listed. [This element appears redundant if other aspects of the complaint are upheld, so this section will not be considered further.]

Section 9.2.1 Members are required to conduct themselves in a manner appropriate to the standing of the Scottish Parliament. (Hope) 24. Mr Hope also complained under this section. Since Section 9.2.1 repeats part of Section 9.1.1, I have included the complaint above under 9.1.1.

Section 9.4.4 Given the potential damage that the unauthorised disclosure of confidential Committee material can do to the standing

(6) 14 Standards Committee, 5th Report, 2004 (Session 2) – ANNEX A and integrity of a Committee it is essential that all Members respect these rules. This means that, unless the Parliament or the relevant Committee has agreed otherwise, such documents should not be circulated, shown, or transmitted in any other way to members of the public, media or to any member of any organisation outwith the Parliament, including the Scottish Executive, nor to other MSPs who are not members of the Committee or Committees for whom the material was intended. (Johnson, Hope) 25. It is argued that the two MSPs were not members of the Public Petitions Committee for which the confidential health and other evidential information had been collected, and they did not have permission from that committee or from the local residents to remove, read, retain or show to others (their assistant) that material. It is alleged that the actions of the MSPs complained of undermined the functioning and authority of the committee.

Section 1 26. Mr Hope also complained under Sections 1.1, 1.2 and 1.3. In my view these are introductory statements setting out principles which are given effect to in other sections of the Code. I do not formally include them in the complaint therefore. To illustrate the views put forward however, it is worth noting the first statement of the Code in particular (Section 1.1): The Scottish Parliament commits itself to being an open, accessible, participative Parliament in which the public and other organisations in civic society are partners. It exists to serve the people of Scotland and is accountable to them. Mr Hope argues forcibly that he and his fellow campaigners and local residents eagerly and successfully embraced the first part of this statement in efforts relating to Petition PE 327, only to be let down in relation to the second by the actions of the MSPs complained about.

MY INVESTIGATION

27. On receipt of these complaints, I first had to consider whether I could deal with them, given that the underlying events had already been investigated by my predecessor and the Standards Committee in relation to the complaint brought against the same members by Dorothy-Grace Elder. I decided that I could and should, since MSPs owe laudable and wide-ranging duties and responsibilities to the public which are different to those owed to other MSPs. Furthermore, the conduct complained of related to different sections of the Code of Conduct from that identified (9.2.5) in relation to the complaint by Dorothy-Grace Elder. In essence, the earlier investigation looked at whether mischief was done to Dorothy-Grace Elder. This investigation addresses whether mischief was done, essentially through the same basic conduct, to local members of the public and to Parliament.

28. The two members who are the subject of this complaint allege that the ∗ complainers are acting in concert with each other and with Dorothy-Grace

∗ After seeing the draft report, without conclusions, and with reference in particular to what the members say in Appendix 9, Mr Hope wrote to me that he did not urge anyone to lodge complaints. He supplied a circular he had distributed to residents of Blairingone and District, apparently after the

15 (7) Standards Committee, 5th Report, 2004 (Session 2) – ANNEX A

Elder (see Appendices 7 – 10). In relation to the issue of collusion with Ms Elder, they cite as supporting evidence the complainers’ possession of an unpublished email8 which they conclude must have been made available to the complainers by Ms Elder. This email was made available to me by Ms Johnson and later by Ms Marwick. Mr Hope said in a letter to me that this email was released to the press following the meeting of the Standards Committee on 25 June 2003. When I asked him who released it to the press # he said he could not say. Ms Johnson said it was given to her by Mr Hope. The implication of the members is that Ms Elder, through the complainers, is having a second go at the members, having been disappointed in the outcome of her own complaint. On the other hand, there is nothing to stop the complaining local residents communicating with Ms Elder, who is known to them through her work, and I am in no doubt that they have strong feelings of ∗ their own on the basis of the information available to them . Whether the members are correct in their allegation of collusion between the complainers and Ms Elder I do not know. Even if they were, the legislation and procedural guidelines give me no mechanism for addressing such a situation: I must take complaints as I find them. I stress again, this is not a repeat of the original complaint, although it is based on the same set of events. I have been vigilant to ensure that the process could not be inappropriately used as an “appeal” against the findings of the earlier investigation.

29. I requested the agreement of the complainers to my taking a collective approach to the complaints and to identifying a single point of contact, so as to simplify procedure. This involved gaining the agreement of the complainers to be identified to each other. The complainers were helpful in this respect, and chose Ms Johnson as the point of contact. It was stressed to me that, although only one complainer is not a member of BSAG, this is not a BSAG complaint but rather the responsibility of the individuals involved.

30. I first had to consider the admissibility of the complaint under the tests set out in Section 6 of the Scottish Parliamentary Standards Commissioner Act 2002. This was a complex undertaking in this multifaceted complaint, and my thinking and conclusions are included as an annex to this report (Annex A). Some elements of the complaint were eliminated as inadmissible, and a summary of the elements remaining to be investigated at Stage 2 is given below.

31. I would like here however to comment on one aspect arising from the decision on admissibility. I refer to my comments in Annex A in relation to Section 9.4.4 of the Code. I considered the complaint under this section of the Code to fail the relevance test, as I could see no potential breach. The complaints dealt with here had been lodged, towards the end of 2003, and I have included this circular as Appendix 14. It does appear to introduce the idea of complaining and facilitates it. # After seeing the draft report, minus conclusions, Mr Hope wrote to me that the email was not made available to the complainers by Ms Elder. It was given to him following the press conference after the Standards Committee meeting on 25 June 2003, he does not remember by whom, and he presumed it had been issued at the press conference. ∗ In their comments on seeing the draft report, minus conclusions, the complainers say that they did consult Ms Elder about their complaints, though she was not the engine of them.

(8) 16 Standards Committee, 5th Report, 2004 (Session 2) – ANNEX A reason was that in order to make an unauthorised disclosure, one first of all has to be authorised, i.e. a member of the Committee in question. This carries the implication that the Code does not deal specifically with situations where members who are not members of a committee come across committee material which should be private to that committee. Mr McAllion, convenor of Public Petitions Committee at the relevant time, appears to have made the same interpretation of the Code as myself. In his oral evidence to Standards Committee on 9 September 20039 he said: “It is also fair to say that, during the Public Petition Committee’s internal discussions, the view was expressed that one of the present Code of Conduct’s shortcomings is that it does not cover such a situation. It contains nothing that would protect private papers that properly belong to the Public Petitions Committee or any other committee and which are seized [sic] by MSPs who are not members of that committee.” I point out this apparent deficiency in the Code for the consideration of the Standards Committee.

32. At Stage 2, the remaining elements of the complaint can be condensed as follows:

1. The MSPs retained the material in the black lever arch file, including questionnaires relating to the health of local residents, failing to make it available to the Public Petitions Committee and its Reporter despite approaches from various others that this should be done.

2. The members’ failure to make the material available had adverse consequences on the committee report process.

3. The members put their own and their party concerns above the interests of the public, particularly Ms Marwick who was a regional MSP for the relevant area.

4. They read confidential health material and showed it to an assistant, thus breaching the confidentiality of the people who were referred to in the questionnaires.

5. They were dishonest in claiming that there was no evidence that any of the work in the file was that of Ms Elder.

6. They took no steps to ensure that local residents were informed about what was happening to their health questionnaires and were able to participate in decisions about them.

7. The above conduct, if proved, was not consistent with the standing of the Parliament; it was such as to reduce the public’s trust and confidence in the integrity of Parliament and its members.

33. The relevant Sections of the Code of Conduct are: 2.2, 2.4, 2.5, 2.8, 2.10, 2.11 and 9.1.1.

17 (9) Standards Committee, 5th Report, 2004 (Session 2) – ANNEX A

34. This complaint required unusual procedure at Stage 2 which requires explanation. The underlying events have almost entirely already been investigated, by the Acting Standards Commissioner and by the Standards Committee, in relation to the complaint brought by Ms Elder5. I considered that not only was it not necessary for me to hear the same evidence over again, it would have been inappropriate for me to do so, or, if I did, to have reached a conclusion on matters of fact different from that already reached on the balance of probabilities in the previous investigation. In so deciding I was following the principle that would be followed by a court or tribunal. I decided that Stage 2 would be largely a paper exercise therefore, unless further investigation was required of the very limited amount of evidence not considered in the previous complaint investigation. The main task would be to consider whether conduct found to have occurred constituted breaches of those Sections of the Code now under consideration.

35. In the event interviews were not necessary. I received further written evidence from the complainers and from the members (see Appendices 5 – 10), some of it in relation to questions from me.

EVALUATION OF EVIDENCE, AND FINDINGS

36. Items 1 and 3 of the complaint will be taken together here, as they are closely related.

1. The MSPs retained the material in the black lever arch file, including questionnaires relating to the health of local residents, failing to make it available to the Public Petitions Committee and its Reporter despite approaches from various others that this should be done. 3. The members put their own and their party’s concerns above the interests of the public, particularly Ms Marwick who was a regional MSP for the relevant area.

37. It is clear from the Standards Committee Report5 that the material was retained by the two members between 3 February 2003, when their researcher was dismissed, and 25 March 2003 when they handed it over to the Acting Standards Commissioner. The Acting Standards Commissioner found10 that the two MSPs were justified in retaining the material lest it be required as evidence in any legal proceedings following from the dismissal of the researcher; he considered retention to have been “prudent action.”

38. Annex E to the Standards Committee Report5 sets out a chronology of the various approaches that were made for return of the material to the Public Petitions Committee and/or its Reporter. The question of the approaches by others and the responses of the members to them was thoroughly investigated by the Standards Committee; this was one of two reasons it gave for carrying out its own investigation.

39. A further approach was made by the Presiding Officer, Sir David Steel, who wrote to all 3 members involved on 4 March 2003 (see Appendix 11). This took place after Ms Elder had lodged her complaint and was therefore

(10) 18 Standards Committee, 5th Report, 2004 (Session 2) – ANNEX A considered not relevant to the earlier investigation11. Nevertheless, it was discussed in the oral evidence session on 9 September 200312 . It is certainly relevant to my investigation and important, in that it offered a solution that allowed both retention of the material and return of it to those working for the Public Petitions Committee.

40. Sir David expressed concern about a harmful effect on the reputation of Parliament should the issue become public through a Standards complaint. He suggested that, regardless of ownership of the papers, if Ms Elder could be given copies, that would end any complaint that she was unable to complete her report. Mr MacAskill replied in a four line letter next day (see appendix 12), on behalf of both MSPs. He appreciated the Presiding Officer’s endeavour for the good name of Parliament, but the matter had been reported to the Standards Commissioner and he was communicating with him. The letter did not address the compromise solution suggested by Sir David. A similar response was given by Ms Marwick in oral evidence on 9 September12.

41. Ms Marwick and Mr MacAskill argue in written representations to me of 29 January 2004 (see Appendix 9) that it was inappropriate to give material to the Public Petitions Committee because it would not have been the property of the Committee until such time as the report was approved by the Committee. On an initial cursory examination of the file it was thought that the questionnaires were historical material which Ms Spowart might have accessed to do additional work for Ms Elder, and there was an initial willingness to return material when Ms Marwick was first approached by the Public Petitions Committee clerk (19 February). However, following a conversation with the clerk to the Public Petitions Committee on 20 February, it became clear to the members that the material had never been the property of the Committee. The material was then examined in more detail and it was concluded that all the work was that of their researcher, as argued extensively in evidence to the Standards Committee5. It was retained as such.

42. The third item of the complaint, about the members putting their own and their party’s concerns above the interests of the public, is a matter of judgment which I will deal with in the next section on whether or not there have been breaches of the Code.

43. The two members argue in their defence (see Appendix 9) that they took quick action to secure the questionnaires which they initially thought were historical material, and this was in the public interest. They rejected an approach from Ms Spowart’s union representative on 12 February 2003 for the material to be returned to her, since she was no longer an employee.

44. The complainers argue that failure to give due prominence to the interests of the local population is aggravated in the case of Ms Marwick, who was elected to serve the interests of the people of Mid Scotland and Fife. There is no evidence that she was specifically engaged to represent a particular group of residents on this issue however.

19 (11) Standards Committee, 5th Report, 2004 (Session 2) – ANNEX A

2. The members’ failure to make the material available had adverse consequences on the committee report process.

45. The Acting Standards Commissioner noted that Ms Elder’s original complaint referred only to the medical questionnaires. However at interview Ms Elder referred to additional documents13. Later in his report14 he said “The photocopied documentation cannot be identified as ‘vital’ to Ms Elder’s role as Reporter to the Committee as she already had the original documentation. However, if Ms Elder’s report was dependent on the spreadsheet and other documentation being worked on by the researcher, delay or failure to obtain this would have required further work by Ms Elder.” His overall conclusion15 was that “…the retention of the documentation which comprised photocopies did not prevent Ms Elder from carrying out her work on behalf of the Public Petitions Committee”.

46. The Standards Committee specifically enquired further into the effect of retaining the material in the file on the writing of the report for the Public Petitions Committee16. They “wished to establish how necessary the papers in possession of Kenny MacAskill and Tricia Marwick were to the work of Dorothy Grace Elder on behalf of the Public Petitions Committee.” They took oral evidence from the Convenor of that Committee17. It is clear that they did not restrict themselves to consideration of the medical questionnaires. They concluded18 that they did “not consider that the papers were essential to Dorothy-Grace Elder’s work on behalf of the Public Petitions Committee.”

47. This of course looks at the matter from the point of view of Dorothy-Grace Elder, from whom the first complaint had come. I must now view matters from the point of view of members of the public who had contributed to the material in the file. The inconvenience to Ms Elder in having to repeat some work near to her deadline was one thing. The reaction of the members of the public when this potential obstacle to the completion of the report - in which they had a major interest - was made known to them, was another.

48. The complainers identify what in their view are three ways in which the failure to make material available harmed the outcome of the report process.

49. Firstly, Mr Hope says that he supplied two documents on planning issues relating to the former Lambhill Opencast Mining Site (see Appendix 2). In further written evidence to me he identified these as a document dated 4 August 1988 and another dated 18 April 2000. He argued that the failure to return these documents led to a planning section being omitted from the Public Petitions Committee Report. I thought at first sight that this was new evidence not considered before by Standards Committee, which I should investigate.

50. These documents are not in the lever arch file, however, and I am assured they were not present when the file was received by the Acting Standards Commissioner and the Standards Committee Clerks. One of the difficulties here is a lack of clarity in relation to what people were speaking about when they referred to “planning material” and “planning documents” at various

(12) 20 Standards Committee, 5th Report, 2004 (Session 2) – ANNEX A points. When Dorothy-Grace Elder examined the file on 3 September 200319 she said that “planning documentation” was not present. When Mary Spowart, the researcher, examined the same file on the same day, she said that “planning material” was present. She did not say that any planning material she expected to see there was absent (the members argue this point in Appendix 10). There are some local maps in the file which might be regarded as planning material.

51. The evidence of Dorothy-Grace Elder on this point confirms that of the Acting Standards Commissioner and the clerks – the material was not in the file when it was handed over by Ms Marwick and Mr MacAskill. The two members assure me that they did not remove any material from the file. I do not question Mr Hope’s claim that he submitted this material to Dorothy-Grace Elder’s report process, but whether or not it was ever in the material in Mr MacAskill’s office, I do not know and I do not think it is now possible to find out for sure.

52. In the absence of persuasive evidence that the two members did retain this specific material, I am unable to proceed further with this part of the complaint.

53. This obstacle is less material than it might appear, however. Even if this material had been present and then either deliberately or inadvertently retained, there would still be the question of whether this was responsible for the omission of planning material from the final report. Dorothy-Grace Elder said20 in her oral evidence on 9 September 2003: “Indeed I did forget something. It was only when Steve Farrell and I finally went through the numbering of the papers on 25 March I realised that – horrors – I realised that planning material I had meant to include was missing. I said “Oh, Steve, the planning bit’s missing. I’ve forgotten it.” She attributed this to “brain-racking stress”.

54. The two MSPs argue (see Appendix 10) that this suggests that she had the material, had meant to include it and forgot. They do not accept that she was under additional stress because of their actions in retaining material, claiming that she had the originals of the questionnaires and from 3 February the full-time assistance of Mary Spowart in analysing the material and in writing the report. They also point out that the draft report was discussed by the Public Petitions Committee on 11 March 2003 (see Official Report) apparently in the presence of members of BSAG and no-one then pointed out then or prior to 25 March the omission of planning issues – indeed decisions were taken to remove some planning recommendations.

55. Secondly, it is claimed that a second meeting with local residents had to be postponed because of the investigation of the Acting Standards Commissioner and then of the Standards Committee. At this meeting the Reporter and the medical adviser were due to discuss the findings of the Committee with local residents. The members point out (see Appendix 9) that the complaint to the Standards Commissioner was made by Ms Elder, not by

21 (13) Standards Committee, 5th Report, 2004 (Session 2) – ANNEX A them, and the postponed meeting did in fact take place (in December 2003) ∗ during my investigation of the current complaints .

56. I took it that what was being referred to by the complainers was a constraint in the Code of Conduct on an MSP in talking publicly about a # complaint while it is under investigation . I am not persuaded that the meeting need have been prevented from going ahead for either of the reasons put forward, since the main point of it was to feed back the results of the Committee’s work.

57. The third part of the complaint was that the report had to be finished under unnecessary duress because of the withholding of material by the members. This is only relevant to the complainers, rather than to Ms Elder, if the report itself was adversely affected by the unnecessary duress. I consider that this point has already been answered by the Standards Committee. The papers retained were not essential to Dorothy-Grace Elder’s work.

4. They read confidential health material and showed it to an assistant, thus breaching the confidentiality of the people who were referred to in the questionnaires.

58. The letter2 from Dorothy-Grace Elder accompanying the questionnaires issued to local residents told them that Dorothy-Grace Elder had been asked to report to the Parliament Public Petitions Committee of which she was a member. It said: “Names will be kept in confidence and cases referred to without identification unless you tick the box below.” Ticking in the appropriate place indicated that the person had no objection to “being mentioned”. Presumably this meant being mentioned in the eventual report of the Public Petitions Committee or any related publications.

59. I counted 48 questionnaire returns in the file. (The number varies amongst different observers because there are some collections of family groups). Some of them had the cover page with the confidentiality waiver missing. Of those where it was present, 12 respondents had waived their confidentiality in this particular way. These included three of the complainers; Mr Hope, Ms Johnson and Mr Saunders. There was no questionnaire in the file for Mr and Mrs Archibald.

60. The complainers must all have expected that their information would be seen by others associated with Ms Elder and the Committee, but only for the purposes of the Committee. Three of them had even consented to

∗ In their comments on the draft report, minus conclusions, the complainers say that the December meeting was not a public meeting, but a private meeting of BSAG; however members of the public who had provided questionnaires were invited to attend it. # In their comments on the draft report, the members point out that this is the argument used by Dorothy-Grace Elder in her oral evidence to Standards Committee on 9 September 2003 (col. 49). However, the complainers, in their comments on the draft report, minus conclusions, say they were unaware of any complaint investigation until June 2003. They understand that a public meeting discussing a Parliamentary report has to be approved by Parliament. They thus seem to be putting the responsibility for the delayed meeting on Parliament rather than specifically the two MSPs complained about.

(14) 22 Standards Committee, 5th Report, 2004 (Session 2) – ANNEX A information being made public. They would not however have expected their information to be available to others in the Parliament not associated with the Public Petitions Committee (at least not prior to any publication, in the case of those who signed the waiver).

61. There is no doubt that the two members read the questionnaires with personal medical information to some degree: otherwise they would not have known what they were. For example Ms Marwick examined the documents on 21 February 200321. There is nothing to suggest that she or Mr MacAskill read the material exhaustively or passed information about the contents to others outside their office. The evidence is that the members took steps to safeguard the material once it was in their possession. It is important to remember that the members did not seek to acquire the information; it was introduced to their office by their researcher without their knowledge22.

62. The allegation that they showed the material to their assistant is mentioned by Dorothy-Grace Elder in oral evidence23 on 9 September: “Ms Marwick states in one of her emails that she showed it to her assistant.” The email8 from Ms Marwick to the clerk of the Public Petitions Committee written on 20 February 2003 says: “My assistant and I are reviewing all the Blairingone material.”

63. On the face of it this appears clear – all the material was being reviewed by Ms Marwick and her assistant. However Ms Marwick argues strongly that in the event only she and not her assistant examined the questionnaires (see Appendices 9 and 10). “All the Blairingone material” included material on Ms Spowart’s computer which had to be identified, collated, printed and examined: this was undertaken by the assistant. Ms Marwick emailed the clerk to Public Petitions Committee on 22 February (see Appendix 13) and said: “I have reviewed all the material…” She holds that this is supporting evidence that she examined the questionnaires.

64. While there is an apparent contradiction between what was said on 20 February and what was said two days later, it might well be that there was the division of labour suggested. I do not find it necessary to decide the point, for reasons given in the next section on whether there have been breaches of the Code.

5. They were dishonest in claiming that there was no evidence that any of the work in the file was that of Ms Elder.

65. I see no reason to question the evidence referred to by the complainers that Dorothy-Grace Elder contributed substantially to the development and distribution of the medical questionnaires which they and other local residents filled out.

66. It is quite possible to understand why the complainers were surprised that the two members later claimed that they had no evidence that any of the material in the file was generated, or directly generated, by Dorothy-Grace

23 (15) Standards Committee, 5th Report, 2004 (Session 2) – ANNEX A

Elder or her staff24, 25 and used this as one justification for their retention of the file. The complainers suggest this claim was dishonest.

67. Tricia Marwick’s email of 22 February24 goes on to say: “[I] can find no evidence that any of the material was generated from Dorothy-Grace Elder or her staff. Throughout the material there is evidence that Mary Spowart has been working on it, and I can therefore only assume that all the material was generated by Mary Spowart in the period that she was employed by Kenny and I. We will therefore retain all the material relating to Blairingone.”

68. In their letter of 29 January (Appendix 9), the MSPs say it was clear that all the questionnaires in the file were photocopies. It was not apparent who was responsible for photocopying the questionnaires that Ms Spowart was analysing. On the basis of the evidence available from the file at that time, they did not have evidence that Ms Elder was responsible for the work. Inasmuch as they considered the work to be that of Ms Spowart, done in their time without their authority, they believed that it was theirs to retain and they wished to use it as evidence of Ms Spowart’s misconduct.

69. Whether of not there was dishonesty by the members is a judgment I will make in the next section on whether there was any breach of the Code.

6. They took no steps to ensure that local residents were informed about what was happening to their health questionnaires and were able to participate in decisions about them.

70. On the face of it, this statement is true. Whether or not there was a breach of the Code will be determined in the next section.

71. The members argue (Appendix 9) that the local residents had entrusted their health information to Ms Elder, who gave it to Ms Spowart, allegedly without the knowledge of the local residents. The implication is that Ms Elder should have informed the residents what was happening with their questionnaires.

72. It is also relevant to note, though it does not wholly answer the point, that the questionnaires retained were photocopies of originals and both Ms Elder and Dr Curnow, the medical adviser to the Committee, had other versions with the same information; there was no question of the work being wholly obstructed.

73. The MSPs also argue that once a complaint was made, they were prevented by the Code of Conduct from making public comment about the matters contained in the complaint.

7. The above conduct, if proved, was not consistent with the standing of the Parliament; it was such as to reduce the public’s trust and confidence in the integrity of Parliament and its members

(16) 24 Standards Committee, 5th Report, 2004 (Session 2) – ANNEX A

74. The Standards Committee has previously expressed its view of the members’ conduct in its report26: “All three parties appear to have adopted entrenched positions in their dealings with this matter. The Committee views the failure of those concerned to seek constructive engagement as a matter of considerable regret. Both Kenny MacAskill and Tricia Marwick were presented with a number of opportunities to resolve the matter yet they chose not to pursue these. Their failure to explore whether a compromise was possible was most unfortunate and their responses to the various representations were unhelpful. Nevertheless, we accept that the circumstances were less than conducive to compromise. The Committee wishes to express its profound disappointment that a seemingly trivial dispute between Members became the subject of an investigation by the Standards Commissioner and the Standards Committee and that those concerned were unable to broker a compromise at a far earlier stage.”

75. The convenor of the Public Petitions Committee at the time of the events, John McAllion, former MSP, in his oral evidence27 on 9 September 2003, indicated that he had tried to obtain resolution in a low key fashion without publicity lest Parliament be damaged by the affair: “At that stage we were still hoping that the issue could be resolved without it breaking into the public domain. We understood that the fact that this kind of thing can go on would be very damaging to the Parliament.” He went on to say28 that his Committee felt that it had been shown a lack of respect by the MSPs concerned, particularly in Tricia Marwick’s response to his letter.

76. Mr MacAskill himself in oral evidence29 on 9 September said, “I regret that we have reached this stage, because I believe that these proceedings are not only difficult for me and my colleague, but damaging to Parliament as an institution.”

77. The Presiding Officer, Sir David Steel, in his letter of 4 March (see Appendix 11) said: “I understand the difficulties in this case, but I am also conscious of the difficulties that may result from this issue for the Parliament. The possibility of the Standards Commissioner making enquiries and the whole issue becoming public will do the reputation of the Parliament no good at all.”

78. To be fair, this letter was written after Dorothy-Grace Elder had made her complaint, when the attitudes of the members had hardened further. Ms Elder too was criticised by the Standards Committee for not adopting a more conciliatory approach. Nevertheless a more compromising approach by Ms Marwick and Mr MacAskill might have avoided a complaint or resulted in its withdrawal.

WAS THERE A BREACH OF THE CODE OF CONDUCT?

Section 2.2 79. Although the Standards Committee concluded that the material retained was not essential to Ms Elder’s work for the Public Petitions Committee, it

25 (17) Standards Committee, 5th Report, 2004 (Session 2) – ANNEX A noted30 that the two members did not make any enquiries as to how necessary the papers were to Ms Elder’s work for the Committee: rather they formed their own view and maintained it in the face of requests for return of the material. Standards Committee expressed the view26 that all three members adopted entrenched positions in their dealings with this matter: “The failure of Mr MacAskill and Ms Marwick to explore whether a compromise was possible was most unfortunate and their responses to the various representations were unhelpful.”

80. The full inclusion in my investigation of Sir David’s intervention must only strengthen these criticisms. Here was the Presiding Officer impartially trying to broker a compromise in an effort to protect the reputation of the Parliament. His suggestion received a curt response.

81. Standards Committee concluded31 that the negative responses of the two MSPs to approaches by others appeared to have been influenced by a number of factors: “the use of their researcher without their permission, the circumstances surrounding the dismissal of that researcher, the ongoing employment dispute with that researcher and their own conclusions about the importance of Dorothy-Grace elder’s work on behalf of the Public Petitions Committee and the ownership of the documents.”

82. In my judgment, the members appear to have allowed these factors to blind them to the fact that the material they were holding was work being undertaken for a Parliamentary Committee involving a partnership with members of the public who had a strong interest in the work and who had supplied personal medical details in order to further it. Their strength of negative feeling is perhaps illustrated in Ms Marwick’s oral evidence32 on 25 June 2003: “…after our researcher was sacked on 3 February, she had a whole month to do the work all over again, but in her own time instead of ours”.

83. The complainers quote the verbal evidence6 of Tricia Marwick to the Standards Committee on 9 September 2003: “Over these 10 days, the Blairingone petitions were not a priority for Kenny MacAskill and me. Our priority was to ensure that no SNP material, or indeed any of our own personal material, had been leaked to the SSP.” This, it is claimed, supports the view that party politics and personal concerns were more important than work being carried out on behalf of a Parliamentary committee and the public.

84. It is understandable that the members were upset that the researcher had done work in their time for another MSP without their being asked33, and concerned about other party security matters which led to the dismissal of the researcher; but they would have lost nothing of their case for retaining evidence in the face of possible legal action had they adopted a course like the one Sir David Steel suggested. Instead, they maintained the somewhat narrow legalistic view that the material belonged to them since in their view the physical documents were generated by their researcher (some undoubtedly were, e.g. a spreadsheet, and they also applied this to the medical questionnaires, which they appear to have believed may have been

(18) 26 Standards Committee, 5th Report, 2004 (Session 2) – ANNEX A photocopied by their researcher.) By failing to make fuller enquiry about the status of the papers and to adopt a compromise solution, they did not give sufficient attention to the interests of the members of the public who had contributed material to the enquiry process, and the public generally who might be expected to benefit from the work of the Parliamentary Committee.

85. The Code makes it a primary duty to act in the interests of the Scottish people and their Parliament. The question arises as to whether that is inconsistent with other obligations, such as might arise in employment or disciplinary procedures. The MSPs were preoccupied with employment and other matters, but in my view that should not have prevented them from lifting their gaze to the wider public and Parliamentary interest, not least when invited to do so by the Presiding Officer.

86. In summary, the failure to do more to establish the status of the documents, the intransigence about making material available to the Public Petitions Committee and its Reporter and the relegation of the potential interests of the public and the local residents below party and employment concerns in my judgment constitute a breach of the primary duty to act in the interests of the Scottish people and their Parliament.

Section 2.4 87. The duty to represent conscientiously the interests of constituents is difficult to interpret in this context. Arguably Ms Marwick had a responsibility to these local residents greater than that of Mr MacAskill because she was elected to serve for their area. However she was not directly representing particular constituents on this issue. Not all the constituents in an area may have the same views or interests. Duty to the public is dealt with under the Code heading above. On balance, I do not find that Ms Marwick breached the Code under Section 2.4.

Section 2.5 88. Bearing in mind the manner in which the questionnaires came into the possession of the MSPs, and that there was no inappropriate wider dissemination by them, I find that there is no breach of the duty to respect individual privacy. I did not find it necessary to decide the point as to whether the material had been seen by the members’ assistant because, even if the assistant had had sight of the questionnaires, I would not consider that this represented a culpable breach of confidentiality in the absence of any evidence of wider distribution of the information. The assistant would be under an obligation of confidentiality in relation to such material seen in the course of her employment.

Section 2.8 89. In my judgment, the claim that there was no evidence that any of the material in the file was generated by Ms Elder stretched understanding beyond that of the reasonable dispassionate observer, but not to the extent of dishonesty. Rather it represented a rather rigid, legalistic view of the members that if it was work done in their time by the researcher they paid for they were justified in keeping it; since all the questionnaires in the file were

27 (19) Standards Committee, 5th Report, 2004 (Session 2) – ANNEX A photocopies, it was possible that their researcher had done the photocopying and therefore generated the physical documents34. The Standards Committee found that the members were justified in keeping the material as possible evidence in case of legal action arising from dismissal of the researcher. The problem was not one of dishonesty but of a lack of flexibility and compromise in making copies available to the Committee and its Reporter, just in case their absence might have obstructed the Committee’s work. I do not find a breach of the duty to act honestly.

Section 2.10 90. The conduct complained of did occur. But should the members have communicated with the local residents to say they had copies of their health information and intended to retain them? In the circumstances, I find it understandable that they did not communicate directly with the residents, but they could have taken greater steps to find out what were the possible consequences of their retaining the material and whether the subjects of the data were being informed.

91. In my judgment, there is no breach of the duty to be as open as possible about decisions and actions.

Sections 2.11 and 9.1.1 92. I believe the concerns quoted above in Paragraphs 75 - 77 were well placed. The matter did become the subject of press comment; it was dubbed “Filegate” in one national daily. The picture presented of the complaints process, and the time of the Standards Committee, being taken up by MSPs quarrelling with each other over the possession of files was not an edifying one for the public. It did nothing to enhance the standing of Parliament and increase the public’s trust in its integrity. It let down the local residents who saw themselves as working with Parliament to achieve benefits for their own community and for Scotland. While the responsibility for this injury to the good name of Parliament is not theirs alone, the members carry a share of it.

93. In my judgment, the conduct underlying the breach of Section 2.2 also gives rise to a breach of the duties to promote and support the principles of the Code by leadership and example, to maintain and strengthen the public’s trust and confidence in the integrity of Parliament and its members in conducting public business, to carry out Parliamentary business in an appropriate manner consistent with the standing of Parliament and not to engage in any activity as a member that would bring the Parliament into disrepute.

CONCLUSION

94. The two members breached Sections 2.2, 2.11 and 9.1.1 of the Code of Conduct.

DR J A T DYER OBE SCOTTISH PARLIAMENTARY STANDARDS COMMISSIONER 14th May 2004

(20) 28 Standards Committee, 5th Report, 2004 (Session 2) – ANNEX A

ANNEX A

ADMISSIBILITY

Summary of conduct complained of

In order to proceed it is necessary to summarise the elements of the complaint as made. It is alleged that:

1. The MSPs seized the material in the black lever arch file, including questionnaires relating to the health of local residents, and retained it, failing to make it available to the Public Petitions Committee and its Reporter despite approaches from various others that this should be done.

2. The members’ failure to make the material available had adverse consequences on the committee report process.

3. The members put their own and their party concerns above the interests of the public, particularly Ms Marwick who was a regional MSP for the relevant area.

4. They read confidential health material, showed it to an assistant and handed it to the Acting Standards Commissioner, thus breaching the confidentiality of the people who were referred to in the questionnaires.

5. They were dishonest in claiming that none of the work in the file was that ∗ of Ms Elder , and in claiming that retention of the material was necessary in case it had to be used as evidence in an employment appeal or Industrial Tribunal

6. They took no steps to ensure that local residents were informed about what was happening to their health questionnaires and were able to participate in decisions about them.

7. The MSPs were wrong to retain and read papers intended for a committee they were not members of.

8. The MSPs behaved in an arrogant and angry fashion during and after a meeting of the Standards Committee on 25 June 2003.

9. The above conduct, if proved, was not consistent with the standing of the Parliament; it was such as to reduce the public’s trust and confidence in the integrity of Parliament and its members.

∗ In their comments on the draft report the members have pointed out that what they said was more specifically that there was no evidence that any of the work on the file was that of Ms Elder or her staff. The complainers made the same point in commenting on the draft.

29 (21) Standards Committee, 5th Report, 2004 (Session 2) – ANNEX A

MSPs responses to complaints

In letters responding to the complaints (see appendices 7 and 8), both MSPs stated that their position had already been fully detailed in the report of the Acting Standards Commissioner in relation to Ms Elder’s complaint. The current complaints were in relation to the events which had already been investigated. They alleged that the complaints had only been made because no breach of the Code of Conduct was found in relation to the earlier complaint. The complainers were acting in concert with each other and with Ms Elder. Ms Marwick said that she refuted the allegations and quoted in her support some extracts from the report of the Acting Standards Commissioner, including:

Para 27. “Ms Elder also expressed concern that the material held by Mr MacAskill and Ms Marwick included sensitive medical information that they were not entitled to have. It must, however, be recognised that their possession had not arisen from an act of positive acquisition but as a result of the material being introduced without authority into the office accommodation used by their researcher.”

Para 29. “As a consequence the material might be relevant to any possible legal proceedings arising out of the termination of the researcher's employment and retention of the documentation would seem to have been prudent action by the two Members concerned.”

Para 30. “…The circumstances, however, indicate that it was justifiable for Mr MacAskill and Ms Marwick to retain the material as evidence and they were under no obligation to release it unconditionally or otherwise.”

Para 32. “There is no dispute that Ms Elder placed work in the hands of the researcher contracted to work for Mr MacAskill and Ms Marwick..…Moreover, the retention of the documentation which comprised photocopies did not prevent Ms Elder from carrying out her work on behalf of the Public Petitions Committee.”

Consideration of admissibility

Relevance

In order to be admissible, complaints must first be relevant, and there are three tests to be applied [Scottish Parliamentary Standards Commissioner Act 2002, Section 6 (4)]. Complaints must be about the conduct of an MSP. All the elements of the complaints pass this test. The complaints must not be “excluded” complaints in terms of Section 10.2.43 of the Code of Conduct and Section 12 of the Act. The part of element 8 of the complaint which is about behaviour at a meeting of the Standards Committee is an excluded complaint in terms of Section 10.2.43 (a) of the Code, therefore it is inadmissible and I dismiss it. Complaints about the conduct of a member at a meeting of a committee have to be made to the convenor of the committee. (Standards

(22) 30 Standards Committee, 5th Report, 2004 (Session 2) – ANNEX A

Committee may wish to reflect on the difficulties associated with this advice in the present case).

The third test of relevance is whether there is at least prima facie evidence that the conduct complained of, if proved, may have constituted a breach of the Code of Conduct. Elements 1 to 3 of the complaints involve a potential breach of Section 2.2 of the Code. In relation to Ms Marwick only they also involve a potential breach of Section 2.4

Element 4 involves a potential breach of Section 2.5, except the handing of the material to the Acting Standards Commissioner. A Standards Commissioner has statutory powers once a complaint has been made to demand production of evidence and a statutory prohibition on disclosing information gained in the course of an investigation save to assist him in the performance of his role. I therefore dismiss the part of the complaint referring to handing the material to the Acting Standards Commissioner.

I do not see any potential breach of Section 2.6. The public interest issue is already covered by Section 2.2. It seems to me that the broad principle in the first part of Section 2.6 is to be read in the context of the following obligation not to act to gain personal financial or other material benefits. It is not suggested that the MSPs actions were motivated by personal material gain.

Element 5 involves a potential breach of Section 2.8.

I do not see a potential breach of Section 2.9 in the conduct complained of. Element 6 of the complaint is covered by Section 2.10. The members are actually being held to account through this and the previous complaints process, in which they are participants.

Element 6 of the complaint involves a potential breach of Section 2.10.

I do not see a potential breach of Section 9.4.4 in the conduct complained of. This may seem surprising at first sight. Ms Marwick and Mr MacAskill were not members of the Public Petitions Committee. It seems to me that an unauthorised disclosure can only be carried out by someone who is in the first place authorised, i.e. a member of the committee. Element 7 of the complaint therefore does not require to be considered. The issue of breach of privacy in relation to confidential health material is dealt with elsewhere.

The 8th element contains a complaint about conduct at a press conference following a meeting of the Standards Committee on 25th June 2003. The Code of Conduct is only relevant if the conduct complained of occurred in the context of Parliamentary duties (see sections 1.5 and 2.1). I have assumed that all other elements of the conduct are viewed in that context, as did my predecessor and the Standards Committee implicitly in relation to the investigation of the complaint by Ms Elder. However I do not consider it appropriate to view as Parliamentary business the conduct of the MSPs at a

31 (23) Standards Committee, 5th Report, 2004 (Session 2) – ANNEX A press conference in relation to the earlier complaint. That therefore means that no part of the 8th element of the complaint passes the test of relevance.

If sufficient elements of the complaint are upheld, then the 9th element is associated with a potential breach of Sections 2.11 and 9.1.1.

Procedural requirements

All elements of the complaint meet the procedural requirements set out in Section 6 (5) of the Act.

Substance

The final test [Section 6(6) of the Act] is whether it appears after an initial investigation that the evidence is sufficient to suggest that the conduct complained about may have taken place. The amount of evidence available at Stage 1 is unusual in this complaint, since the underlying events have already been investigated by the Acting Standards Commissioner and the Standards Committee5, giving rise to the possibility that many aspects of the conduct complained of may already have been found to have taken place.

The entire 1st element has been found to have taken place, except the reference to “seizing” the material in the lever arch file. The report of the Acting Standards Commissioner says22: “It must, however, be recognised that their possession had not arisen from an act of positive acquisition but as a result of the material being introduced without authority into the office accommodation used by their researcher.” It is clear that the MSPs did not seek out this material. They found it in their office after they had dismissed their researcher, who had been working on it without their knowledge. Although Ms Elder said35 that the material was in a drawer of a desk, both of the MSPs said36,37,38 that it was found under a desk with other material. I prefer the evidence of the two MSPs on this point since they had direct knowledge. It was then put under lock and key, giving it security which it had not had in the prior period. The contentious issue is whether it, or a copy of it, should have been promptly returned to the Petitions Committee or its Reporter (Ms Elder). I therefore dismiss the complaint that the material was “seized”.

In relation to the 2nd Element of the complaint, the Standards Committee concluded18: “The Committee does not consider that the papers were essential to Dorothy-Grace Elder’s work on behalf of the Public Petitions Committee. Whilst she had concerns about working with incomplete information, it remains the case that she had the majority of the original questionnaires in her possession and another set was available from the medical adviser whom she chose not to approach. She also had a statistical analysis of the returns and her own notes.” This appears to contradict the second element of the complaint, but it looks at matters primarily from the point of view of Dorothy-Grace Elder and not that of relevant members of the public, and Mr Hope has introduced new and more detailed information about

(24) 32 Standards Committee, 5th Report, 2004 (Session 2) – ANNEX A planning matters omitted from the report, which deserve further consideration. The 2nd element is therefore not ruled out on the substance test.

The 3rd element passes the substance test – it is not possible on the basis of the information available to say this did not happen.

In relation to the 4th element, there is no dispute that the health questionnaires were read, at least to some extent, by the two MSPs and shown to an ∗ assistant of Ms Marwick .

In relation to the 5th element, the previous investigation does not appear to have reached a finding of fact on to whom the work in the file belonged, though evidence was heard on the matter. This part of the claim merits further consideration. However, the Acting Standards Commissioner found10 that the retention of material pending a possible challenge to the dismissal of the researcher was “prudent” and “justified”, and the matter was further clarified by the Standards Committee on 9 September 2003 (oral evidence by Ms Marwick and Mr MacAskill). Although the basis of a settlement was agreed at an employment appeal on 21 February, agreement was not signed and concluded until 13 May. An employee has the right to go to an industrial tribunal at any time within 90 days. I therefore dismiss the element of the complaint which alleges that the MSPs were dishonest in saying that they retained the material in case it was required as evidence in a challenge to the dismissal of the researcher.

The 6th element is not contradicted by any of the available evidence. It passes the substance test.

The 7th element has been dismissed on the relevance test, as was the 8th.

The 9th element depends on a judgment to be made if sufficient of the other elements are upheld.

∗ the last point was subsequently disputed by the members

33 (25) Standards Committee, 5th Report, 2004 (Session 2) – ANNEX A

ANNEX B

REPORT ON COMPLAINTS ABOUT THE COMMISSIONER’S INVESTIGATION AT STAGES 1 AND 2, AND HIS RESPONSE

(as required by Directions issued by the Standards Committee on 21 April 2004)

In her letter of 28 January 2004 on behalf of the complainers (Appendix 6) Ms Johnson raised a number of challenges to my decisions on admissibility (q.v.). I responded by saying that the relevant legislation makes it a matter for the Commissioner to identify at Stage 1 which provisions of the Code may have been broken [Section 6(4)(c) of the Scottish Parliamentary Standards Commissioner Act 2002] and my Stage 1 report (Annex A) explained these decisions.

She also challenged my proposed procedure for Stage 2, suggesting that witnesses should be re-interviewed and that some conclusions of the Acting Standards Commissioner’s report were flawed. I responded that I had already explained my reasons for the proposed procedure and that it was not a purpose of my investigation to be an appeal of the earlier one and its conclusions. I would consider relevant new evidence.

Mr Saunders also wrote to me on 2 February 2004 querying my decisions on admissibility and, in relation to section 9.4.4 of the Code, suggesting that if my interpretation was correct, Parliament may have to consider that there is a deficiency in the Code. I replied on the admissibility issue in similar terms to that described above, and pointed out that it was open to me to raise any issue about the provisions of the Code with the Standards Committee in my report, (as indeed I have now done in relation to Section 9.4.4).

In mid-February 2004, I was made aware that a journalist from the Sunday Herald was asking questions of the Parliament about alleged conflict of interest in my being in receipt of advice legal advice from Anderson Strathern WS, who had previously advised Ms Marwick and Mr MacAskill on their dealing with the employment issue with Ms Spowart. On February 17 2004, I was copied into an email sent by Ms Johnson to the Scottish Parliament Corporate Body which indicated that an approach had already been made to the Standards Committee about this alleged conflict of interest and asked what the Corporate Body were going to do about it. I responded to Ms Johnson, saying that I could easily have informed her about the matter had I been approached before she raised it elsewhere. It was true that I had a contract with Anderson Strathern, but when I received this complaint against the two members it was immediately apparent that there could be a conflict of interest and I engaged the services of another firm – Simpson and Marwick – to give me advice in relation to this investigation.

At the same time the complainers were able to be aware of an answer (19 February 2004) to a written question by Alex Neil MSP, asking about my appointment of legal advisers and how conflict of interest was dealt with (one

(26) 34 Standards Committee, 5th Report, 2004 (Session 2) – ANNEX A of a series of related questions asked by Mr Neil). This answer pointed out that any conflict of interest would be dealt with under the Law Society of Scotland’s Practice Rules on conflict and potential conflict of interest; the Solicitors Scotland (Conflict of Interest) Practice Rules 1986 and the Code of Conduct for Scottish Solicitors as amended. These provisions were followed in this case. I express again here my disappointment, and puzzlement, that serious allegations were made before any attempt was made to ascertain the true position with me.

I wrote to Mr Hope on 3 February 2004, seeking to arrange an interview with him in relation to the planning material he had said in his letter of complaint (Appendix 2) he had supplied for the work of the Public Petitions Committee. Mr Hope wrote to me on 18 February 2004 saying that he was dissatisfied with my approach to his complaint, which he found confusing and obfuscatory. He sent me 84 questions to be answered, culminating in a question which asked whether I agreed that the complainers would be justified in calling for the Standards Commissioner and the Standards Committee clerks to be sacked. He referred to suspicions that a cover up and a whitewash was in process and said “my gut instinct tells me that your investigation stinks”. He suggested that I should interview Ms Elder and Ms Spowart in relation to the planning material and he requested a copy of the unpublished interview between the Acting Standards Commissioner and Mary Spowart on 19 March 2003.

In response, I refuted Mr Hope’s allegations of any lack of impartiality in my investigation. Many of his 84 questions related to the complaints he and others had made, and I advised him that it would be improper of me to respond other than in my report to the Standards Committee. Most of the others raised queries in relation to the earlier investigation of Ms Elder’s complaint. I stressed once again that I would not allow my investigation to be used to reopen issues already decided in that investigation. Where there was new evidence, I would look at it. I made the point that it was for me to decide how to carry out my investigation, not the complainers. I declined to provide a copy of the interview with Ms Spowart by the Acting Standards Commissioner. It was not new material, it was simply unpublished material.

From information supplied by Mr Hope about the planning documents he had provided, I was clear that they were not in the lever arch file in my possession and I concluded that it was not necessary to interview him (this is explained ∗ further in my report) . He had declined my invitation to examine the file contents (minus the confidential questionnaires) with him.

At various points I had strong representations from the complainers that their questionnaires with medical information in the lever arch file should be returned to them or to Dorothy-Grace Elder (I also received representations from Ms Elder herself and her lawyer), and that I was wrong to retain it. I had to point out that the material was in my possession only because complaints

∗ After he had seen the draft report, minus conclusions, Mr Hope sent me the two documents in question. There is no doubt that they were not in the lever arch file handed over to me.

35 (27) Standards Committee, 5th Report, 2004 (Session 2) – ANNEX A had been made in relation to which it was relevant evidence. Early on however I indicated my intention to return the originals to the Public Petitions Committee. I took legal advice on this, and by 4 March 2004 I concluded that it was no longer necessary for me to go on holding the original file and thus delaying decisions on any further use, storage or distribution of the contents.

I stressed that my giving the file to the Public Petitions Committee was not in answer to the question, "Who owns the material?" but rather the question "To whom should I most appropriately give the material for safekeeping and decision on any future use?” Ownership was a difficult question. The material in the file related to work that was being done on behalf of the Committee. Should any issues arise in relation to the information in the file in future, it is the Committee that might require access to the material, rather than any others associated with the material in the past. I did not believe it appropriate to return the material to Ms Elder as she was no longer an MSP and no longer engaged in any capacity by the Public Petitions Committee.

I of course reminded the Committee that the file contains personal medical information supplied by local residents and GPs. I indicated that I would retain a copy of the file for at least 5 years purely for my own purposes as Standards Commissioner, as required by Directions from the Parliament in relation to documents involved in complaints.

Mr Hope subsequently complained to me (6 March 2004) that I was retaining a copy of the material and demanded that I destroy it. I had to explain that I am required to keep a copy by the Directions issued by Parliament on 15 January 2003. He wanted me to investigate what had happened to his planning material. I said I would comment on this matter in my report.

The complainers made further complaints after being given an opportunity to read the draft report, minus findings on breaches of the Code. They complained that they were not permitted sight of the conclusions. This complaint should be made to Standards Committee, who created the Directions, rather than to the Commissioner, who follows them.

They complained that they were “not satisfied with the skill or efficacy of the purported investigation conducted by the Commissioner. Regrettably, that will devalue any conclusions which the Commissioner brings forward.”

They complained that what the Commissioner has referred to as a “paper exercise” “is in fact a rather casual desktop job.” They complained that there had been no independent investigation, no witnesses interviewed, and “facts” and “conclusions” garnered from an inquiry with different issues to resolve incorporated without question or testing. They said that this “looks casual to the point of careless negligence.”

My response is that I have given very considerable care and time to this investigation, that I have conducted it impartially and that I have resolutely resisted attempts by the complainers to use my investigation to challenge the conclusions of the earlier investigation.

(28) 36 Standards Committee, 5th Report, 2004 (Session 2) – ANNEX A

ANNEX C

COMMENTS BY COMPLAINERS FOLLOWING SIGHT OF DRAFT REPORT, WITHOUT CONCLUSIONS AS TO BREACHES OF CODE

(as required by Directions issued by the Standards Committee on 21 April 2004)

(Comments which the Commissioner does not give effect to by way of amendment of the text are required to be listed here.)

Para 7 2nd sentence. This is incorrectly stated. There was no general waiver, merely a consent to being named in Dorothy Grace Elder’s report. There was no consent to having ones ailments spread abroad. [See for reference the covering page of the questionnaires included in appendix 2 – JD.]

7th sentence (in parenthesis). All that the Complainers know is that Dorothy Grace Elder (“DGE”) asked Ms Spowart (“MS”) to help. It is, however known that MS worked for the two MSPs – see the Commissioner’s Report of 19 December 2003 at Findings on page 3. [The reference is to an unpublished document in relation to another complaint, which the complainers must have acquired from an involved party – JD]

Para 8 MS’s letter of August 2003 (page 42 Standards Committee 1st Report 2003 Session 2) states one quarter of the questionnaires were originals and that is corroborated by DGE at page 47 of that report – 9 September oral evidence. [This seeks to challenge a conclusion of the earlier investigation of Ms Elder’s complaint – JD]

Para 9 In fact the material was never used as evidence and no-one has explained how details of the health of individuals in Blairingone could have been relevant in any proceedings. This should be reflected in the Report.

Para 10 Agreed that the previous report is relevant but so also is MS’s Summary of Interview with Mr Spence on 19 March 2003 in the presence of Mr Paul Holloran [sic] of the NUJ. Last sentence: delete “most” and substitute “some”.

Para 14 The Commissioner should at least advert to the evidence of MS in letter of August 2003 and Standards Committee 1st Report 2003 Session 2 Annex D p. 42.

Para 26 These Statements of Principle are inherent parts of the Code as they set out the overall and overriding standards and form the basis for the interpretation of the detailed rules and accordingly must not be excluded.

37 (29) Standards Committee, 5th Report, 2004 (Session 2) – ANNEX A

Para 27 The reference to “mischief was done” is inept. It is not necessary for someone to prove damage. It is enough that an MSP is shown to have breached the Code. Harm to an individual may be mere chance, but the derogation from proper standards must be dealt with. By introducing the concept of “mischief” the Commissioner has misdirected himself and should start afresh to address the fundamental question whether these MSPs or either of them have or has acted in breach of the Code (including the introduction and statement of principles).

Para 31 4th sentence: The Commissioner is in serious error. It is an extraordinary and unsustainable interpretation of plain English to suggest that to make an “unauthorised disclosure” one must first be “authorised”. On that interpretation it may be presumed that the Commissioner considers himself free to proceed through any door marked “No Unauthorised Entry”! The Complainers suggest the Commissioner try that out on, say, the Department of Defence. The Complainers require the Commissioner to withdraw from this assertion. If he is not so minded, at the very least he should instruct his legal advisers to seek the opinion of Senior Counsel. The Complainers advise the Commissioner that if he persists in this perverse and irrational interpretation they will be forced to seek judicial review. The Commissioner’s attention is drawn to the significant use in the Code of upper case “M” for Members of the Parliament generally and lower case “m” for members of a Committee. [I am not persuaded to change the interpretation adopted in my report – JD]

Para 32 4: The Complainers are concerned that it was not only the MSPs’ assistant who has seen the material. It appears to have travelled widely in the parliamentary halls, chambers and offices with photocopies being retained by all and sundry, while not one recipient has had the decency to return the material to those whose details it contains, nor even to consult them. This situation has continued to be exacerbated throughout the period of the Commissioner’s inquiry, with the Commissioner himself refusing to return the questionnaires despite the clear fact that he has no interest in their content – all he or anyone else needs to know is that they contain details of the health of individuals, a fact which no-one has ever contested so the retention of the actual documents or copies is wholly unnecessary and unjustified. [In fact, I gave the file to the Public Petitions Committee on 4 March 2004 – see Annex B - JD]

Para 33 Add 2.6, 9.1.2, 9.2.1, and 9.4.4.

Para 34 Again the Commissioner is in error. This is a new set of complaints relating to a different grievance from different people with different concerns from DGE. As such the Complaints should be fully and properly investigated, using, if appropriate, material arising from previous work but that previous work cannot be used as an excuse for not investigating these Complaints fully and properly. The Commissioner is not a court or tribunal, he is an official charged with a duty to investigate Complaints.

(30) 38 Standards Committee, 5th Report, 2004 (Session 2) – ANNEX A

Para 35 The Complainers do not agree that the investigation can be regarded as fully and properly conducted if witnesses are not interviewed.

Para 37 The findings of the Acting Commissioner on another matter are not relevant. The Commissioner should consider the evidence before him, and where appropriate, seek out further evidence. The material was never used in evidence. The content of the questionnaires was never relevant evidence for any matter other than DGE’s inquiry. What was relevant evidence for the MSPs purposes was the fact that the material was in their office – a fact which has not been disputed by any party. The Complaint is that retention of the questionnaires and their being allowed to be seen by unknown numbers of personnel with no right or interest therein breached the confidentiality to which the respondents to the questionnaires are entitled. All evidence on that matter must be taken into account.

See: Ms Marwick’s Statement to Standards Committee 25 June 2003

MS’s evidence not properly considered by Acting Commissioner p58 1st Report [This is a clear challenge to conclusions of the earlier investigation of Ms Elder’s complaint – JD]

Para 38 The Standards Committee has no mechanism for a “thorough investigation” and did not carry one out. It did not take or seek all available evidence and heard only two former MSPs, DGE and John McAllion. That consideration dealt only with the question of discourtesy to DGE, an incestuous exercise of little relevance to the present Complainers. Indeed the Convenor prevented discussion of the plight of the Complainers as irrelevant to the matter before the Committee.

Para 41 The discussion as to whose property is meaningless as all the parties to the discussion disregard the members of the public whose information this is. The Commissioner’s language is opaque: whose “initial cursory examination? - “thought” by whom? - “examined in more detail” by whom? - “concluded” by whom? - “retained” by whom? The Commissioner fails throughout to note that DGE’s name and address appears clearly on the face of the questionnaires, while MS is not mentioned. [I am reporting here what the members said to me – JD]

Para 43 No. The “historical material” argument first arose on 29 January 2004, not 3 February 2003. The Commissioner also appears unaware that MS was employed by the two MSPs and not by the Parliament. [The complainers seem unaware of the first page of my report with reference to Mary Spowart – JD]

Para 44 The last sentence is erroneous and perverse. MSPs represent their constituents of all persuasions and not just special interest groups. Yet again the Commissioner has misdirected himself.

39 (31) Standards Committee, 5th Report, 2004 (Session 2) – ANNEX A

Para 45 The Commissioner should examine the evidence in the light of the Complainers’ and defenders’ arguments and not merely adopt the views of a previous Acting Commissioner arising from a different matter addressing different issues. Furthermore, the Acting Commissioner was erroneous in stating that the questionnaires were all photocopies – see MS Interview and DGE’s statements.

The Acting Commissioner’s conclusion was also wrong as DGE was unable to include a section on planning which she had intended to do and would have done had she had all the material before her. [This is a clear challenge to conclusions of the earlier investigation of Ms Elder’s complaint – JD]

Para’s 47 to 54 The Commissioner has not exhausted proper investigatory channels. He has not interviewed Mr Hope, MS nor DGE. Accordingly he can and should proceed to establish the best evidence and then form a conclusion.

In Mary Spowart’s written evidence of August 2003 on page 41 and 42 of the Standards Committee 1st Report 2003 she makes reference to the planning documents being amongst the paperwork, in two separate paragraphs. She also states that these papers were vital to Ms. Elder’s work as they held the information that was at the heart of the issue. The two MSPs were now responsible for all the documentation and should have taken immediate steps to establish to whom it should be returned. This would have been the “right” and “proper” action for any honourable person to take. These steps were not taken by the MSPs.

The person most able to define what was originally there was Mary Spowart, therefore her evidence should be given most weight.

This is the situation as we the Complainers see it and it affects us in a way that it does not affect Dorothy-Grace Elder and her original complaint as pointed out by the Commissioner as he states in para 47. It therefore behoves the Commissioner to investigate this point on our behalf regardless of what has gone before. To this end he should have taken all possible steps to identify the facts including interviewing the relevant parties. The fact that he has not done this detracts from the value of his report.

Para 57 The Commissioner should ask DGE. Other evidence is irrelevant, especially in the absence of the question being put to DGE. Regardless of the ASC’s conclusion that the retention of documentation by the MSPs did not prevent Ms Elder from carrying out her work, both Ms Elder and Mary Spowart declare in their evidence that original medical information and planning material were present in the file and associated documentation, and that the standard of her Report was compromised when they were not available to her. The medical information was incomplete and the planning information was missing at a time when Ms

(32) 40 Standards Committee, 5th Report, 2004 (Session 2) – ANNEX A

Elder was under severe pressure to complete her report. It is as clear as can be that the report was degraded as a consequence.

Para 58 It is clear from the context that this was not a general waiver. [The document is available for scrutiny in appendix 2 – JD]

Para 59 The Commissioner cannot take the consent of 12 to cover 48. Actually more individuals than that as some questionnaires dealt with two or more individuals so the Commissioner should give the number of people affected rather than the number of questionnaires. [Nowhere do I take the consent of 12 to cover 48 – JD]

Para’s 62 to 64 The Complainers are not satisfied with the Commissioner’s view that he need not decide whether the assistant saw the material. If he concludes that the assistant did see the material, the Complaint is justified. The Commissioner is not entitled to so shirk his duty. The arguments in the next section do not stand up. The simple fact that Ms Marwick saw the material does not preclude the conclusion that her assistant also did so. A cursory "examination" even by Ms Marwick would find DGE's name and her request that the questionnaires be returned to her on the face of the questionnaires, demonstrating that this was her work.. In any event as a result of the actions of the two MSPs the material is out and about being copied by, it seems, all and sundry in the parliamentary offices, including the Commissioner’s own office which he has declared has retained copies. Has the Commissioner established how many copies are around? [See Annex B – JD]

Para 72 Why is it relevant? Whether originals or copies what was disclosed is clearly private personal medical information which must be kept confidential and certainly not bandied about as seems to have occurred as a direct result of the actions of the MSPs. [What is being argued here is that there would have been a stronger argument for informing the members of the public if what had been retained constituted the sole versions of the documents, so obstructing any possible further use of them – JD].

Para 73 Which Complaint gagged the MSPs? When? In any event what public comment is required in simply returning confidential material to the parties to whom the matter relates? [Ms Elder made her complaint to the Acting Standards Commissioner on 27 February 2003 – JD]

Para 74 The previous Complaint and Report related to a different matter - a complaint by one MSP against another. The Complainers are members of the public whose trust and confidence in the Parliament and its Members and officials has been reduced, eroded and damaged virtually to destruction.

The Commissioner must stand on his own feet and deal with this matter himself without skulking behind an earlier matter addressing different issues.

41 (33) Standards Committee, 5th Report, 2004 (Session 2) – ANNEX A

ANNEX A

ADMISSIBILITY

Summary of conduct complained of

The Complainers challenge the alleged "necessity" to summarise. The Complaints have been stated clearly and are available for consultation. This "Summary", inevitably, distorts, and in some cases completely mis-states the Complaints. This exercise is not needed and should be omitted in its entirety.

The Complainers do not accept this "Summary" as either accurate or desirable. The Complaints as lodged and as further explained in subsequent correspondence are explicit and clear requiring no précis. The Commissioner's job is to deal with the Complaints, not with his substitutes therefor.

Nevertheless for completeness of their response the Complainers set out below salient comments on the "Summary":

1 The word "seized" is not a substantive element of the Complaints lodged. It is used merely incidentally in Mr Hope’s and Ms Johnson's Complaint. This "Summary" places far too much emphasis in the expression "seized" - why does the Commissioner wish to do this?

It is a fact that the relevant documents came into the possession of the two MSPs. The burden of the Complaints is their improper retention of these confidential documents. Indeed, the trigger for the Complaints was the realisation that neither the MSPs nor, it seems, anyone else was prepared to return the questionnaires. [“Seized” is also used in the Archibalds’ complaint. The word and concept were introduced by the complainers, not by me. As a matter of fact, use of this term goes back to Ms Elder’s complaint35 to the Acting Standards Commissioner – JD]

MSPs responses

Para 27 The expression that the MSP’s "possession had not arisen from an act of positive acquisition..." is not supported even by the MSP’s own statements which confirm the positive act of taking hold of the documents and "securing them". [This is a challenge to a conclusion of the earlier investigation – JD]

Para 29 As previously stated this suggestion holds no water as the material was never required nor even offered or presented as evidence in any proceedings, despite ample opportunity to do so. (see the NUJ letter from Paul Holloran [sic]). [This is a challenge to a conclusion of the earlier investigation – JD]

(34) 42 Standards Committee, 5th Report, 2004 (Session 2) – ANNEX A

Para 30 First point: see above. Second point: everyone, even MSPs, who finds himself in possession of private confidential personal medical information about a third party is under an obligation to return it to that party forthwith, retaining no copy, to ensure the maintenance of the confidentiality. This obligation is blindingly obvious to all decent people. [This is a challenge to a conclusion of the earlier investigation – JD]

Para 32 But the present Commissioner himself has already found in another matter that DGE was unaware of the MSP’s employment of MS. [I cannot comment on this statement which relates to an unpublished report regarding another complaint. What the complainers say, however, whether true or not, does not contradict what is said in my report – JD] DGE has stated clearly that the lack of the material hampered her work. See John McAllion’s letter of 25 February 2003 to Ms Marwick. It is also apparent to the Complainers that her Report might have had greater substance especially on planning matters. That the retention has affected the Report and the proceedings to follow thereon is evidenced by the fact that the Parliament has even now not yet convened the public meeting to present the results of DGE’s inquiry to the residents of Blairingone. The latter point, of course, was not before the Acting Commissioner when he prepared his report. [This is a challenge to a conclusion of the earlier investigation – JD]

Consideration of admissibility

Relevance

The Complainers are not content with the Commissioner’s references here to his “Elements” rather than to the actual specific Complaints.

Anent “ Element 4” the Complainers are not content with the exception. The material should have been returned to the persons whose confidential information they contained and to no other. Accordingly the Complainers find the Commissioner’s dismissal of this part of the Complaint unacceptable.

The MSPs themselves argue that they retained the material in relation to a prospective litigation on an employment matter having financial or other material implications for them. They would benefit financially if they did not have to pay damages for wrongful dismissal. Thus they put their personal interests above those of the Complainers and other suppliers of the material. The Complainers accordingly, whether or not they have so expressed the matter in such specific terms as they now do, are asserting that the MSP’s actions were motivated by material personal gain. [My role is to investigate the complaints made, not complaints added after viewing the draft report – JD]

The Commissioner’s comment on 2.9 is contradicted by his next sentence.

The finding on 9.4.4 is not merely surprising, it is utterly wrong. See previous argument on this point. “Element 7” must be considered. Not only was the

43 (35) Standards Committee, 5th Report, 2004 (Session 2) – ANNEX A material seen by Members outwith the Public Petitions Committee it was not returned to that Committee despite numerous requests.

As to the “8th Element”: the press conference was convened by the MSPs within the Committee Chambers. How could this not be in the context of their Parliamentary duties? If outwith their Parliamentary duties, who authorised this use of such premises, and the name of Parliament, for such off-duty activity? The Commissioner is just wrong again!

The conduct of the MSPs before and after the press conference and within Parliament’s premises did not meet the standard required by 9.2.1 which forms part of the Code relating to the “general conduct” of MSPs. The conduct was below the “manner appropriate to the standing of the Scottish Parliament”.

Procedural requirements

Substance

It is highly reprehensible that the Commissioner has failed to take evidence by interview.

The second paragraph places too much emphasis on “seizure” – see earlier argument.

The Commissioner has dismissed a Complaint which exists only in his imagination. The Complainers did not place any emphasis upon “seizure”. This confirms the concern of the Complainers anent the Commissioner’s “Elements” which fail to reflect properly the actual Complaints. The Complaints are not to be fuzzed away.

It is not known and there is no evidence that the MSPs did not “seek out the material”.

The Commissioner fails to note the contradiction in the evidence of the MSPs as to the location of the material when “found”. Mr MacAskill referred in his Summary Interview with the Acting Commissioner to “various papers in the researcher’s desk” which was “retained”. Accordingly there is no proven basis for the Commissioner’s “finding”. [All the evidence was taken into account and weighed up – JD]

2nd “Element” see above.

4th “Element” The Complainers are also concerned that as a result of the actions of the MSPs complained of the material has travelled extensively around the chambers of the Parliament to be seen by assistants, clerks, secretaries, messengers, porters and other functionaries.

(36) 44 Standards Committee, 5th Report, 2004 (Session 2) – ANNEX A

5th “Element” The previous investigation is irrelevant – why keep referring to it? “Findings” of the Acting Commissioner in another matter are not relevant or binding – they are not even persuasive – why keep referring to him? As has been argued earlier, this “Element” is, of course, mis-stated. As a result of his own mis-statement, the Commissioner has addressed himself to the wrong question. Furthermore, it is now known, as it was not to the Acting Commissioner, that the material was never and never was going to be evidence in any proceedings.

The dismissals of the 7th and 8th “Elements are contested by the Complainers, see above.

In conclusion (which is reached at this point only because the Complainers are to have no opportunity to consider the remainder of the draft Report), the Complainers express grave concern that his handling of the Complaints, arguments and evidence (such as it is in the absence of any investigation by interview of witnesses) demonstrates that the Commissioner is unlikely to be able to make rational findings properly based on tested evidence. Indeed, at a number of points it appears that he has little comprehension of the actual Complaints, as opposed to his précis in the “Elements”.

The Complainers regret to find that ordinary members of the public are faced with such a mountain to effect a simple complaint. The exercise conducted by the Commissioner is so obfuscatory that the Complainers feel that they should be employing Senior Counsel to unravel the meanderings – a luxury for the wealthy. The mechanisms for the purpose provided in the relevant legislation and regulations may be somewhat inadequate but a determined effort by politicians and officials including the Commissioner could overcome that if the will were there. The will does not appear to be there. The people of Scotland deserve better from their Parliament than this sad exercise.

Finally, it is noted that the confidential material is to reside in the Commissioner’s archives for at least five years. What confidence can there be that the confidentiality, or what remains of it, will be maintained in the light of the current process and in the present age of “open government”?

The Commissioner should, in conscience, refuse to retain the material. If necessary he should seek a derogation from the rule which he adumbrates to cover his shameful action. . Diana Johnson (as point of contact for Complainers)

45 (37) Standards Committee, 5th Report, 2004 (Session 2) – ANNEX A

ANNEX D

COMMENTS BY MSPs FOLLOWING SIGHT OF FULL DRAFT REPORT

(Comments which the Commissioner does not give effect to by way of amendment of the text are required to be listed here.)

SECTION 1 LEGAL CONCERNS

ADMISSIBILITY OF COMPLAINTS

Section 6 (5) (b) of the Scottish Parliament Standards Commissioner Act 2002 states that complaints should be from individual persons. This section prohibits complaints from companies and organisations. We would refer you to para 47 of the explanatory notes which accompanied the Scottish Parliament Standards Commissioner Act 2002.

In our original submissions to you (6 November 2003) we said that these complaints should not be considered because they are not from individual persons but from individuals working together in concert with each other and that they are part of an orchestrated campaign. We drew to your attention to the Scotsman newspaper article (31 Oct 2003) as evidence that Mr Hope was aware that the complaints were being made and that more would follow and that the complaints had come and would come from members of the Blairingone Action Group.

We subsequently drew to your attention an Email which had been in the possession of Ms Elder and we believe was given to Mr Hope either directly or indirectly by Ms Elder to allow part of the complaint to be made. Mrs Johnstone’s [sic] confirms to you that the Email in question was give to her by Mr Hope, further evidence that the complaints were not from individual persons but by a group of people working together.

We believe therefore that you were wrong to accept the complaints from Mr Hope, Mrs Johnston and Mr and Mrs Archibald. We believe that these complaints are from the organisation Blairingone and Saline Action Group. The complaints originate from office bearers of Blairingone and Saline Action Group. The evidence that has been cited in support of the complaint was obtained as members of the Blairingone and Saline Action Group. The complaints originate from the perspective of Blairingone Action Group; are almost identical in content and rely in some part to information that has been shared among them.

It is not sufficient for the complainers to assert that they are acting as individual persons to meet the provisions of 6 (5) (b) of the Act. Section 6 (5) (b) requires them to be individual persons and acting in that capacity.

(38) 46 Standards Committee, 5th Report, 2004 (Session 2) – ANNEX A

Mrs Marwick drew to your attention (29 January 2004)) that a leaflet had been circulated by Mr Hope urging villagers to make complaints about us. Your Email of 27 April 2004 enclosed a copy of this leaflet which had been circulated. This is the first time you and we have seen the leaflet which suggests to us that you had never previously contacted the complainants to verify the situation that we explained to you. You say that although it “does appear to introduce the idea of complaining and facilitate it” you believe “that it does not invalidate the complaints.” We disagree with you.

This leaflet is headed “Blairingone and Saline Action Group.” It “explains” the situation as they see it and sets out some grounds for complaint and adds the Standards Commissioner’s contact details. It encourages complaints. It names Mr Hope and Mrs Johnstone (both complainers and office bearers of the organisation) as the persons to contact with regard to further information about the grounds for complaint.

In the case of Mr Saunders, we accept that he is not a committee member of Blairingone and Saline Action group but we are satisfied that he has a relationship with the other complainers. We would, however, have been prepared to accept that the only admissible complaint was from Mr Saunders.

We do not believe that you have had proper regard to Section 6 (5) (b) in that the complaints should have been ruled inadmissible from the outset. The evidence of the leaflet which has only now come into your possession confirms our belief that the complaints from Mr Hope, Mrs Johnstone and Mr and Mrs Archibald should be dismissed because they are from not from individual persons but from an organisation.

[The leaflet referred to is provided as appendix 14. I took legal advice on receipt of the complaints, being aware that the majority of the complainers were members of BSAG. I accepted the advice that I had no choice but to proceed with the complaints. The individual complaints received complied with Section 6 (5) (b) of the Act. However information related to the complaints was distributed, the complaints were made by individuals and not in the name of an organisation – JD]

1A SECTIONS 2.11 and 9.11 OF CODE OF CONDUCT

When the Standards Commissioner is considering complaints he is bound by Section 3 (1) of the Scottish Parliamentary Standards Commissioner Act 2002.

The function of the Commissioner is to;

Investigate whether the Member has committed the conduct complained about and has, as a result of that conduct, breached a relevant provision; and

Report on the outcome of that investigation to Parliament.

47 (39) Standards Committee, 5th Report, 2004 (Session 2) – ANNEX A

The purpose and intention of this section is to ensure that the Standards Commissioner does not exceed his authority by investigating matters outwith the parameters of the specific complaint that has been made. In drawing up the legislation the Standards Committee intention was clear that the specific complaints only should be considered and that the Standards Commissioner would be precluded from inquiring into matters not contained in “the complaint.” We also refer you to Section 3 (paras 29) [sic] of the accompanying notes to the Bill which makes this intention clear.

We believe that, you have not considered the specific complaint made by the complainers, Mr Hope’s letter of 29 October 2003 Page 10 (sections 2.11 and 9.11) and by Mrs Johnston’ [sic] letter of 19 October 2003 Page 5 (2.11 only). You have for the purposes of your investigation introduced matters which were not the specific complaint set out by Mr Hope and Mrs Johnston under section 2.11 and 9.11. of their letters. We believe that you have act [sic] outwith the powers vested in you by the Scottish Parliamentary Standards Commissioner Act 2002 and we urge you to reconsider this matter.

In SECTION 2 of this response we will respond both to the complaints as presented by the complainants and the complaints as presented by, investigated by and judged by you.

[The members are failing to note that, under Section 6 (4) (c) of the Act, it is for the Commissioner and not the complainers to identify which part or parts of the relevant provisions may have been breached by the conduct complained of. Although most of the complainers arranged their complaints under headings formed by sections of the Code of Conduct, the Commissioner need not be bound by this arrangement, providing that the conduct he is investigating is conduct complained of by the complainers – JD]

1 B BREACH OF SECTION 2.2 OF CODE OF CONDUCT

We ask that you determine that there is no breach of section 2.2 on the same grounds that you have already ruled that there is no breach of Section 2.6. (REPORT Annex A page 23 para 3)

Section 2.6 reads;

Members have a duty to take decisions solely in terms of the public interest. They must not act in order to gain financial or other material benefit for themselves, their family or friends.

Your judgement is “it seems to me that the broad principle in the first part of Section 2.6 is to be read in the context of the following obligation not to act to gain personal and financial benefit.” You say that because it is not suggested that our actions were motivated by personal or material gain you have therefore deemed that there is no breach of 2.6

We submit to you that the judgement that you have already made with regard to 2.6 must therefore be applied equally to 2.2. In fact we believe that

(40) 48 Standards Committee, 5th Report, 2004 (Session 2) – ANNEX A the inclusion of the words “in doing so” at the second sentence of section 2.2 makes the link and context stronger than 2.6.

2.2 Members’ primary duty is to act in the interests of the Scottish people and their Parliament. In doing so, members have a duty to uphold the law and to act in conformity with the rules of the Parliament.

There are two parts to this section. However, we believe that the broad principle in the first part must be read in the context of the obligation in the second part. To fulfil the primary duty to act in the interests of the Scottish People and their Parliament the obligation is that members have a duty to uphold the law and to act within the rules of the Parliament. In other words, if the law has been upheld and the rules of the Parliament have not been broken then the primary obligation to act in the interests of the Scottish people and their Parliament is met.

There is no question of us having broken the law and as the Acting Standards Commissioner and the Standards Committee found we have not broken the rules of the Parliament (the Code of Conduct) we submit to you that there has been no breach of 2.2.

We therefore ask you to reconsider your interpretation of Section 2.2 of the Code of Conduct in the light of your interpretation of Section 2.6 and find there is no breach under this section.

[I do not accept the members’ argument. The first sentence of Section 2.2 is a general statement considerably broader in scope than the duties referred to in the second sentence. As a matter of fact, the Acting Standards Commissioner and the Standards Committee in the earlier investigation concerned themselves only with Section 9.2.5 of the Code of Conduct – JD]

1 C BREACH OF 2.2

We make a further submission to you in terms of 2.2. We believe that you have not properly defined the complaint made by the complainants and that you have not had proper regard to Section 3 (1) of the Scottish Parliamentary Standards Commissioners Act 2002.

The specific complaint which was presented by the complainants under section 2.2 in their letters of complaint is that we should have immediately “returned” the material to the reporter or to the Public Petitions Committee AND that harm was done to the Public Petitions Committee report by our action or inaction, leading to the assertion that we put party and employment issues above public interest. (Johnston and Hope)

This is one complaint and they are not separate as you suggest at paras 13 and 14 of your REPORT. Mr Hope and Mrs Johnston assert that there is a cause and effect of us not “immediately returning” material and harm done to the report. They argue:

49 (41) Standards Committee, 5th Report, 2004 (Session 2) – ANNEX A

“By their failure to return the material, Ms Marwick and Mr MacAskill have most certainly interfered with a parliamentary report. By withholding evidential documentation from the Reporter, a whole section on planning issues—vital to the community of Blairingone and to the report- has been omitted as the necessary material was not available to the reporter when writing the report.” (Hope Page 4 para 2)

“Harm was undoubtedly done to the outcome of the report as the Reporter had to leave out the planning research from her report” (Johnston page 2)

You accept all our arguments that we made in our letters of 2 March 2004. The specific material Mr Hope refers to with regard to planning was never in the file in the first place; Ms Elder claims she “forgot” to include the planning bit and it is possible that the planning recommendations were removed from the draft report by the Public Petitions Committee on 11 March when some of complainers were present. A planned meeting which Ms Elder and the complainants claimed could not take place has in fact taken place while this investigation is ongoing. and your [sic] accept our contention that there was nothing to have prevented Ms Elder holding her meeting at any time since the Public Petitions Committee Report was published. (Paras 48-52 REPORT)

It seems to us that you agree with us that the cause and effect of withholding documents and causing harm to the report is not founded and therefore we do not believe that the question of whether or not the documents should have been given to Ms Elder should be further explored. (paras 48-52 REPORT). We invite you to reconsider your position on this.

[The complaints made by Mr Hope, Ms Johnson (and Mr Saunders) that insufficient regard was had by the members to the public interest do not, contrary to the members’ claim, depend upon actual harm to the report process being proved. Potential harm is sufficient. That there was actual harm can be viewed therefore as a separate assertion – JD]

SECTION 2 CONCLUSIONS OF YOUR REPORT

SECTION 2.2

In the event that you do not accept our argument that the issue of whether Ms Elder should have been given the material should not be proceeded with, we respond as follows;

You say that “the underlying events have almost entirely already been investigated…………. I considered that not only was it not necessary for me to hear the same evidence over again, it would have been inappropriate to do so, or if I did, to have reached a decision on matters of fact different from that reached………….in the previous investigation” REPORT Para 34

In the light of this we cannot understand why the letter from the Presiding Officer and Mr MacAskill’s response to it should now form such an integral

(42) 50 Standards Committee, 5th Report, 2004 (Session 2) – ANNEX A part of your consideration and conclusions. The Presiding Officer’s letter was written after the complaint was made to the Standards Commissioner and was therefore not considered as part of the original complaint. This fact and conclusion was established by the Standards Commissioner and the Standards Committee. “Although a possible solution was suggested by the then Presiding officer this postdated the date of Dorothy Grace Elder’s complaint and is therefore not relevant to the Committee’s investigation.” (Standards Committee Report para 17).

We are therefore surprised that you are considering these letters as part of these complaints, the weight and status that you attribute to them and that having decided to do so you did not at any point during your investigation ∗ specifically ask for our comments on them . We will therefore do so now.

Ms Elder copied the Presiding Officer into the Email she sent to us at 5.12pm on 27 February demanding the questionnaires by 5.30 that evening. The full distribution list was John McAllion MSP, Mr Mike Rumbles MSP, The Presiding Officer (Sir David Steel), George Reid MSP, Bill Anderson, Police Unit, Steve Farrell. As far as we are aware, she did not write directly to the Presiding Officer seeking his intervention. This suggests to us that she did not view the Presiding Officer as a serious intermediary or that she was specifically seeking his intervention.

At 5.47 pm before we, or the Presiding Officer, had a chance to respond to her Email she made the official complaint to the Acting Standards Commissioner. We had received a letter notifying us of the complaint and had responded to the Acting Standards Commissioner before the Presiding Officer wrote to us, presumably in response to Ms Elder’s email. If Ms Elder had a genuine wish for The Presiding Officer to use his good offices she would have allowed him time to respond before she made the official complaint.

When the Presiding Officer wrote to us he was;

1 Unaware that the documents he asked to be photocopied were in fact already photocopies and that Ms Elder had the originals 2 Unaware that the official complaint to the Acting Standard’s Commissioner had been made within 35 minutes of Ms Elder’s emailing him. He makes it clear that he wished to avoid the involvement of the Acting Standards Commissioner in an investigation so he was not aware that the complaint had been made.

We do not accept that Mr McAskill’s reply to the Presiding Officer was curt (para 80). It was short but the facts of the situation had, as Mr MacAskill acknowledged in his letter, changed. We appreciated the Presiding Officer’s intervention to try to protect the good name of the Parliament but his intervention had come too late—or had not been given time by Ms Elder—and that the Acting Standards Commissioner was already involved in an

∗ See paras. 39 and 40 of my report, with their reference to Ms Marwick’s oral evidence to Standards Committee on 9 September 2003.

51 (43) Standards Committee, 5th Report, 2004 (Session 2) – ANNEX A investigation. Once a complaint has been made it can only be withdrawn by the complainer. With this in mind we were resigned to the fact that the Acting Standards Commissioner would be investigating the complaint. We had no communication from Ms Elder, following the Presiding Officer’s intervention, that she was prepared to withdraw the complaint that she had so precipitously made. Let me now turn to the other paragraphs in this section.

Para 79 REPORT The Standards Committee, like the Acting Standards Commissioner before them, concluded that the material was not essential to Ms Elder’s report. Ms Elder’s complaint was that the report could not be completed without the papers we retained.

Your findings against us do not take account of the fact that the Standards Committee upheld the Acting Standards Commissioner’s finding that we had NOT breached the code of Conduct. Instead it relies entirely on the criticism of a majority of the committee. The Standards Committee members are of course entitled to criticise us but we draw to your attention that we were not offered the opportunity to comment on the report before publication and so were not able to point out where we believe the committee may not have given full weight to the evidence it received.

As politicians we are required to make judgements every day. Sometimes we get it right and sometimes we get it wrong. When we get it wrong we accept criticism as part and parcel of the process. We made a judgement about the importance of the material to Ms Elder’s report based on our examination of it and based on our personal knowledge of Ms Elder attention seeking behaviour over a number of years. On this occasion our judgement as to the status of the material was correct—Ms Elder did not need it to complete her report-- as the Acting Standards Commissioner and the Standards Committee confirmed. If we had made the wrong judgement then we would deserve to be criticised for that but criticism when our judgement is found to be sound is difficult to understand. It is even more difficult to accept that you now use that criticism in respect of the previous complaint, which was not upheld, to find against us in what is claimed to be a new series of complaints.

The Standards Committee report said “our failure to explore whether a compromise was possible was most unfortunate and their responses to the various representations was unhelpful.” [sic] Of course, some of those making the representations to us would consider that our response was unhelpful as they were not able to effect the handing over of the documents to Ms Elder. However, it must be recognised that those making representations on behalf of Ms Elder believed, because Ms Elder told them so, that we had either stolen documents from her or that she could not complete her report without the questionnaires and they were naturally concerned.

We do not accept that our responses to all the various representations were unhelpful. Those making the representations on behalf of Dorothy Grace Elder did not get the documentation we retained but as the acting Standards Commissioner concluded in his report which the Standards Committee

(44) 52 Standards Committee, 5th Report, 2004 (Session 2) – ANNEX A upheld “retention of the documentation was prudent action by the two members concerned” ( para 29) and “it was justifiable for Mr MacAskill and Mrs Marwick to retain the material and they were under no obligation to release it conditionally or otherwise” ( para 30).

The various representations and our responses were as follows;

Mary Spowart’s Trade Union representative requested material on loan from the Public Petitions Committee. This, as we subsequently found out, was untrue but our response was that we would not release material which allegedly belonged to the Parliament to someone who was not employed by the Parliament but would return it to the Public Petitions Committee when asked.

The Clerk to the Petitions Committee made a number of approaches. At the time when we still believed the material belonged to the Public Petitions Committee our responses showed a willingness to return it. It was only after the Clerk confirmed the material did not belong to the Public Petitions Committee that it was examined in detail the extent of the work carried out by Mary Spowart was discovered and that the questionnaires were all photocopies.

Mrs Marwick’s [sic] has acknowledged that her response to Mr McAllion was not all it could have been to the extent that she did not acquaint Mr McAllion with the photocopied status of the papers to counteract the claims from Ms Elder that she could not finish the report without the so called vital papers that we retained.

The Head of Security and the Police made representations to us about material that Ms Elder had claimed to them we had “stolen” from her. We made it clear to them that we had not stolen any material from Ms Elder.

Mr George Reid MSP spoke to us and we advised him the material we retained was photocopies, that Ms Elder had the originals and there was nothing to stop her completing her report.

The Presiding Officer made his representation after the Commissioner had started investigating the complaint and we have covered this point above.

Let us now turn to our alleged unwillingness to compromise.

In Mrs Marwick’s letter to Mr MacAllion she indicated that Ms Elder should communicate directly with us if she had a point of view. She did not do so.

In our conversation with George Reid MSP we said that Ms Elder had never approached us directly and we would be willing to discuss the matter if she wished to do so. We did not rule out the possibility of a compromise. Following our discussion Mr Reid spoke to Ms Elder and he undoubtedly passed on details of our conversation because Ms Elder referred to it in her Email at 5.12 on “I know that you have spoken to George Reid and that you

53 (45) Standards Committee, 5th Report, 2004 (Session 2) – ANNEX A have refused a request from him”. It is clear that Mr Reid also advised Ms Elder that we wished her to contact us about the matter as she also writes; “George Reid informs me that the latest excuse is that you have not had a letter from me—you have had communication from the Public Petitions Clerk, the Convener etc.” This was the sole communication from Ms Elder to us. The Acting Standards Commissioner commented on this Email “Ms Elder was clearly unhappy …………………but when she requested release of the material her communication did not offer any prospect of conciliation.” (PARA 28 Standards Commissioner report)

Thirty five minutes after this Email was sent Ms Elder made her official complaint to the Standards Commissioner. On two occasions within two days we had through Ms Elder’s intermediaries invited her to discuss the matter. On these two occasions she did not do so and made a formal complaint to the Standards Commissioner.

PARA 82 We do not accept that we were blinded to the fact that the work was for a Parliamentary Committee. We were well aware of the fact but we had reached a judgement, based on the evidence that we had, that the questionnaires were photocopies; that Ms Elder had the originals and the work of producing the report for the Petitions Committee would be unaffected by our retaining the documents. We refer you to Mrs Marwick’s statement to the Standards Committee (column 69 para 3). “after reviewing all the material Mr Macaskill and I resolved that we would retain any material which could be pertinent to the inquiry (Appeal) or any possible action. We were also clear that if we had the photocopies in our possession Ms Elder was still in possession of the originals.” or to Mrs Marwick’s statement at col 62 para 75 “Neither Mr MacAskill nor I took the view that photocopies of questionnaires, the originals of which were held by Dorothy Grace Elder, were vital to the completion of the report. As a member of the Scottish Parliament, I would do nothing which would harm any of its committees. In my initial response to the trade union, I made it clear that if the documents had been the property of the Public Petitions Committee I would return them. Similarly, in my initial response to the Public Petitions Committee, I made it clear that I would return any material that belonged to the Public Petitions Committee. The fact is that the material that we held was not vital to Dorothy Grace Elder. We did not think so and neither did the Standards commissioner. For, the life of me, I cannot see how, if she had the originals, she needed the photocopies that we believed we would need during a possible employment tribunal.”

We reject your assertion that the partial quote you cite is evidence of Mrs Marwick’s negative feelings towards the Committee or the public. Mrs Marwick was in fact making comment about the Parliamentary and media coverage of the complaint. If her negative feelings were on show it was in defence of the right of any MSP to have the initial complaint dealt with in private and not to be the subject of a trial through the columns of the media. As a member of the Standards Committee which helped draft the Code of Conduct and the Standards Commissioner Legislation her views on this subject are long standing and a matter of public record. In particular we would

(46) 54 Standards Committee, 5th Report, 2004 (Session 2) – ANNEX A draw to your attention the official report of 3 October 2002 which amended the Code of Conduct to take account of this matter.

Mrs Marwick was referring to Ms Helen Eadie MSP’s comments at the Public Petitions Committee, where, contrary to the Code of Conduct, she was discussing the complaint to the Standards Commissioner. Unsurprisingly, Mss Eadies’s [sic] comments found their way into the press. She had alleged that because of Mrs Marwick’s actions Ms Elder had had to work two 30 hour shifts to complete her report for the Public Petitions Committee. The Standards Commissioner had already found and the Standards Committee would subsequently find that none of the material we retained was essential for Ms Elder to complete her report.

The draft report which had been found with the black lever file and on computer was not part of the original complaint but to this day neither Ms Elder nor Ms Spowart have admitted it was the work of Mary Spowart, despite all the documentary evidence to the contrary (Col 70 Standards Committee 9 Sept). Given that both maintain that all the work on the report was Ms Elder’s and that Ms Spowart had no input whatsoever to the report in the first place then it follows that Ms Spowart would have no work to repeat. Ms Elder’s complaint was that we had held onto work that was entirely her “intellectual property”. Clearly, sarcasm does not translate well to the written page.

The full extract reads “I am now passing round some press cuttings, for the benefit of the committee. I trust that the Committee will take the opportunity to express in its own report its dismay about the media and parliamentary comment on the complaint. For the benefit of Mrs Eadie, who was so concerned about Ms Elder’s nocturnal habits, I can assure her that, after our researcher was sacked on 3 February, she had a whole month to do the work all over again, but in her time instead of ours. She could have produced the report in plenty of time for Ms Elder to present it and claim it entirely as her intellectual work before the Public Petition Committee.” (Cols 29-30 Standards Committee meeting 25 June 2003)

Para 83

Our response to you (our letter 29 January) with regard to this part of the ∗ complaint is not recorded or referred to by you in the REPORT . We made it clear that we had acted in the Public interest as our very first act had been to ensure the confidentiality of the photocopied questionnaires by removing them from under Ms Spowart’s desk and placing them under lock and key. We had been led to believe by Ms Spowart’s Trade Union that the documents were the property of the Public Petitions Committee and we had no further involvement with the file until the Clerk of the Public Petitions Committee requested it. We refused to release the file to Mary Spowart via her union because it would be “inappropriate to give material which is allegedly the property of the Parliament to someone who is no longer employed by the Parliament.” Our priority having secured the confidentiality of the

∗ It is – see e.g. paras. 8 and 43 of my report.

55 (47) Standards Committee, 5th Report, 2004 (Session 2) – ANNEX A documents was then “to ensure that no SNP material ……………..had been leaked to the SSP”

You also do not include our evidence from a resident of Blairingone, who having read the Standards Committee had made an unsolicited phone call to thank Mrs Marwick for the steps she had taking [sic] to protect her confidential information and was horrified that her personal details had been left lying under a desk by someone who was working for Ms Elder who had given ∗ assurances of confidentiality for these documents . It is clear that the Blairingone Action Group are not the sole arbiters of what is the public interest of the villagers of Blairingone (our letter 29 January 2004)

Para 84. Ms Elder’s complaint to the Standards Commissioner “was that we had seized a file which was entirely her intellectual property” and that without that “vital” file –the questionnaires—she could not do the work.

This was the specific complaint which was considered by the Acting Standards Commissioner in terms of section 3 (1) of the Scottish Parliamentary Standards Commissioner Act 2002 and the Standards Committee. It follows then that we had to rebut those allegations as they were put to us.

1 The material was not entirely Ms Elder’s intellectual property, by showing from the file and computer records that the evidence showed that Ms Spowart had made a contribution to the questionnaires and had produced the spread sheet, the draft report and was responsible for all the work in analysing the questionnaires.

3 That the questionnaires were photocopies and were not “vital” for her to complete her report.

You say that we adopted a “narrow legalistic view” that the material belonged to us. It was Ms Elder who introduced the concept of “property” into the complain [sic] to the Standards Commissioner. We were rebutting Ms Elder’s complaint that we had seized material which was “entirely her intellectual property.” which was the complaint under consideration by the Acting Standard’s Commissioner. There was little opportunity within those parameters to discuss the public interest in these documents and that has led you to assert that the public interest in these matters was not one that we considered.

We co-operated with the Standards Commissioner within the parameters of the specific complaint as set out by Ms Elder and you are now using the evidence that we gave then to suggest that the public interest was never our primary consideration. We do not accept that.

∗ This information is in Appendix 9. I did not make contact with the person mentioned since I was investigating specific complaints from a number of individuals. Approaching other residents who had not complained and who might have different views did not seem appropriate.

(48) 56 Standards Committee, 5th Report, 2004 (Session 2) – ANNEX A

Para 85 and 86

The Public Interest in this case was that the confidentiality of the information which the people of Blairingone had given in good faith to Ms Elder was protected, and that a report that was of great importance for the people of Blairingone was produced on time by the Public Petitions Committee. Because of our actions in securing the photocopied questionnaires this information was protected. The Public Petitions Committee Report was produced on time. None of our actions hindered the timescale or the content of the report. The photocopied material we held was not needed for the report because Ms Elder always had access to the originals. That was also the fact and conclusion reached by the assistant [sic] Standards Commissioner and the Standards committee in respect of the previous complaint. We do not accept that party, employment or any other concerns that we had were more important than our primary duty to act in the interests of the Scottish people and their Parliament.

[I note all that the members say in this long comment regarding Section 2.2 of the Code, but it does not persuade me to alter any of the findings or conclusions of my report – JD]

SECTION 2.11 and 9.11 [sic]

[Note: the members refer mistakenly to “Section 9.11”. There is no Section 9.11. The relevant section is 9.1.1 – JD]

In considering this section we will firstly respond to the specific complaints made by Mr Hope and Mrs Johnston at A and we will then respond at B to the complaints that you have presented, investigated and made a judgement on.

A If we leave to one side the personal abuse by Mr Hope at Section 2.11 page 10 (his letter 29 October 2002) we are left with the following sentences which constitute his specific complaint against us;

“They have completely betrayed our trust and have almost single handedly destroyed our confidence in the integrity of the Parliament. Who in their right minds is going to trust the Parliament now with private, confidential and sensitive information as was contained in our health questionnaires following the actions of Mrs Marwick and Mr MacAskill. Certainly not me.”

Mrs Johnstone: “That Tricia Marwick and Kenny MacAskill should act in such a way that impeded the actions of the Parliament on our behalf damaged our trust in the parliament as an institution. We would hesitate to provide documents of a sensitive and personal nature to any part of the Parliament having seen what has happened to the present ones”.

With regard to the common point made by Mrs Johnstone and Mr Hope. The Acting Standards Commissioner made the point that we did not seek to acquire the information it was introduced into our office by Ms Spowart. The

57 (49) Standards Committee, 5th Report, 2004 (Session 2) – ANNEX A

Acting Standards Commissioner found that we were justified in retaining it and you acknowledge that we safeguarded the information immediately it came into our possession. We did not impede the report to the Public Petitions Committee. It was completed on time and with all of the information that Ms Elder needed to do so.

Mrs Johnstone makes a further complaint under 2.11:

“Ms Elder did excellent work. However, she was forced to leave out valuable information contained in the file retained by Ms Marwick and Mr MacAskill, and time must have been wasted in trying to retrieve the documents”

Mrs Johnstone repeats the allegation that has already been considered and rejected by you at paras 48-57. There was no information in the file which caused a planning section to be omitted in the final report. There was no delay to the report being published and both the acting Standards commissioner and the Standards Committee found that the material that was in the file was not essential for Ms Elder’s report.

As all the elements in the complaint in terms of Section 2.11 as presented by the complainers have been answered we invite you now to reject it.

[See my earlier comment under the members’ heading “ADMISSIBILITY OF COMPLAINTS” regarding Section 6 (4) (c) of the Act. The Commissioner is not bound by the attribution of the complainers of Sections of the Code to the conduct complained of. It is for the Commissioner to decide which Sections of the Code are relevant to particular conduct complained of. In any case, the complaints of Ms Johnson and Mr Hope are wider than the quotations imply (q.v. Appendices 1 and 2) – JD ]

SECTION 9.11 [sic]

Mr Hope’s specific complaint is; “Neither Ms Marwick nor Mr MacAskill have carried out their parliamentary duties in an appropriate manner consistent with the standing of the Parliament. They have failed in that duty by removing, retaining, reading, showing to others, and passing on to others private, confidential and sensitive information contained in health questionnaires and other evidential documentation to which they had no right, business or permission to be in possession of.”

We did not remove the questionnaires from anyone. The material was introduced into our office by Ms Spowart. The only removing we did was to remove the file from under a desk in an unlocked room and put it under lock and key to protect confidential information. It has already been established by the Acting standards commissioner and upheld by the Standards Committee that our action in retaining the material was prudent and justified. We did not show the material to anyone.

(50) 58 Standards Committee, 5th Report, 2004 (Session 2) – ANNEX A

We passed it on, as required by law, to the Acting Standards Commissioner after Ms Elder made her complaint. We examined the file and noted that the questionnaires were photocopies. But as you acknowledge at para 61 REPORT we did not read the material extensively. The Standards Commissioner has made the point that the material was introduced into the office by us [sic] but by Ms Spowart.

As all the elements in terms of the complaint at Section 9.11 [sic] as presented by the complainers have been answered we invite you now to reject it.

[My comment immediately above applies regarding Section 6 (4) (c) of the Act. The complainers also complained of the members’ failure to seek compromise and the relegation of the interests of the public and local residents below party and employment concerns, matters which are relevant to Section 9.1.1 – JD]

B YOUR PRESENTATION OF THE COMPLAINTS AT 2.11 and 9.11 [sic]

We find your judgement in this matter difficult to understand. You are arguing that a member who has a complaint made against them, has then to endure trial by media while the commissioner is considering the evidence, is then found not to have broken the Code of Conduct will, if a further complaint is made because of publicity which is not of their making, be found in breach of the 2.11 and 9.11 [sic] of the Code of Conduct.

By definition you are also asserting that any matter which attracts adverse media publicity would result in the MSPs involved being found to have breached 2.11 and 9.11 [sic] of the Code of Conduct. Before we put to you our views on your finding against us it is worthwhile exploring the consequences of this judgement. It is unarguable that the Holyrood building project has had a disastrous effect on the confidence of the Scottish people in their Parliament. The media coverage has been sustained and hostile. There is now an Inquiry by Lord Fraser into the whole matter. The consequence of your judgement will mean that the MSPs on the Corporate Body or on the Progress group or indeed all the MSPs who voted for the project in 1999 and 2000 will, if a complaint is made by any individual in Scotland, be found to be in breach of 2.11 and 9.11 [sic].

Let me now turn to your judgement against us. You attribute blame to us because a complaint was made against us.

It was Ms Elder who made the complaint against us to the Standards Commissioner The Standards Commissioner found that we had not broken the Code of Conduct The Standards Committee made their decision to hold a further investigation The Standards Committee upheld the judgement of the Standards Commissioner.

59 (51) Standards Committee, 5th Report, 2004 (Session 2) – ANNEX A

All of these matters were outwith our control. The decision to make a complaint to the Standards Commissioner was not ours, but Ms Elder’s. The decision to carry out a further investigation was not ours but the Standards Committee’s. The official record of 25 June shows that we argued strongly against this course of action.

Para 75 On the issue of Press Coverage, this was and is a trivial matter which was given the oxygen of publicity through almost constant media coverage of the complaint up to stage 2. None of this publicity was sought by us and indeed it was hostile to us having been placed in the public domain by Ms Elder or her friends. We made our views on the press coverage known at the Standards Committee meeting of 25 June. We circulated a file of press coverage. Mrs Marwick asked the Committee to make reference in their own report to the necessity for the Standards Complaints process to be protected and for individual MSPs to be protected from adverse public comment until the Standards Commissioner had made a judgement. They did not do so. We made public comment after the committee had reached its decision on Stage 2 and again after the Committee’s own investigation had been concluded.

We would also point out that this present series of complaints has also been the subject of media comment. We have already pointed out to you the Scotsman of 31 October 2003 which extensively quotes Mr Hope and of course yourself confirming that a complaint had been made. Neither of us have made any comment on this complaint. It is certain that when your report is published and also when the Standards Committee comes to its conclusion there will be more press coverage. Following your logic does this mean that if a further complaint is made following the publicity from this present complaint that we will again be found in breach of 2.11 and 9.11 [sic]?

Para 75 It was not just the wish of John McAllion that the issue could be resolved without it breaking into the public domain, it was also our wish. At no point during any representations to us did we approach the media. It is ironic given John McAllion’s stated wish to keep the matter out of the public domain that it was at his own Committee meeting that Ms Helen Eadie MSP publicly announced that an official complaint had been made to the Standards Commissioner and Mr McAllion confirmed it. The complaint by Ms Elder had already been the subject of a private briefing before the Public Petitions Committee and we would contend that it was inevitable that at least one member would refer to it in public. We attach the press coverage of this meeting.

We do not accept that the Committee was shown a lack of respect by us. Neither Mr MacAllion nor his committee members were in possession of information about the facts or the true status of the documents. They had, as Mr McAllion confirmed at the Standards Committee of 9 September relied on information given to them by Ms Elder as to the importance of the documents we retained (column 65 and 66). As the Standards Commissioner and the

(52) 60 Standards Committee, 5th Report, 2004 (Session 2) – ANNEX A

Standards Committee accepted that the documents were not essential for Ms Elder’s report it follows that she misled them as to the nature of the documents. In any event the public Petitions committee has not used the processes available to it to complain of lack of respect or courtesy by us. Mr McAllion is entitled to his personal opinion but we do not believe that you are entitled to make a judgement about a complaint which has never been made in the first place.

Para 76 You use a partial quote from Mr Macaskill to suggest that he agrees with your judgement that our actions had damaged the institution of the Parliament. On the contrary, Mr Macaskill was making the point that it was the proceedings which had taken place over such a trivial matter that was damaging to the Parliament. The full quote reads “I regret that we have reached this stage, because I believe that these proceedings are not only difficult for me and my colleague but damaging to Parliament as an institution. Inquiries seem to be de rigueur in the United Kingdom. We have one in London at the moment, sought by a Prime Minister and relating to the death of an innocent man and missing weapons of mass destruction, and the final outcome in Iraq is both worrying and uncertain for humanity. We also have one in Edinburgh, sought by a disgruntled former MSP and relating to retained photocopies, and the final outcome according to both the complainer, Ms Elder, and the current presiding officer, George Reid, has been the Blairingone inquiry – apparently one of the greatest successes of the Parliament in it’s first session. There is a common acceptance that the Parliament is disengaged from the people, and I believe that it is unhelpful for Ms Elder to be allowed to proceed with matters such as this.”

Para 77 We believe we have covered this point in full above with regard to the Presiding Officer’s letter.

Para 78 You say to be fair, the letter had been written after Ms Elder had made her complaint and that the attitude of the members had hardened further. We are surprised that this fairness does not extend to your whole deliberations surrounding the Presiding Officer’s letter. We do not accept that ∗ our attitude had hardened (further or otherwise) . The fact is that a complaint had been made and it was ongoing. The circumstances had changed, not our attitude, and we were resigned to the Standards Commissioner investigation taking place.

Para 93 The complaint was fully investigated by the Acting Standards Commissioner and the Standards Committee who both found that our actions were justified and we do not accept that because complaints were made against us by others that makes us responsible for the media or other comment.

∗ Ms Marwick said in oral evidence to the Standards Committee on 9 September 2003 “When the Presiding Officer wrote to Kenny MacAskill and me, the complaint had already been made to the Standards Commissioner…Frankly, I had had quite enough by that time.” That indicated to me a hardening of attitude.

61 (53) Standards Committee, 5th Report, 2004 (Session 2) – ANNEX A

[The members base their argument here on a false premise – that I am holding them responsible for adverse media coverage per se. What is at issue is not the adverse coverage itself, but the conduct of members which may give rise to it in any particular case, each case being judged on its merits. In this case it was the conduct relevant to the breach of Section 2.2, such as intransigence of the members in relation to making material available to the Public Petitions Committee and the failure to do more to establish the status of the documents, which contributed to the failure to act in a manner consistent with the standing of Parliament. I say in para. 92 of my report “While the responsibility for this injury to the good name of Parliament is not theirs alone, the members carry a share of it.” It has to be said again that the conclusions in relation to the complaint by Ms Elder referred only to conduct in relation to her, not in relation to members of the public, and were confined to section 9.2.5 of the Code only – JD]

SECTION 3 COMMENTS ON REPORT para 7 line 5. We have never accepted Ms Elder’s claim that Ms Spowart was only asked to look over the returns and other documents to ensure that previous work was not being duplicated. There is evidence that Ms Spowart made a contribution to the drafting of the questionnaire so her involvement with Ms Elder predated the returns being received. Ms Spowart then analysed the photocopied questionnaires, produced a spreadsheet and was working on a draft report.

[This does not contradict what is said in my report; it adds to statements by the members – JD]

Para 31 Mr McAllion was arguing for a change to the Code of Conduct based on his knowledge and understanding of the situation. Knowledge and understanding he had been given by Ms Elder. If an MSP seized private papers that properly belong to a Committee then that would be a serious matter. In fact, it would be a criminal matter because it would be theft. It would not be covered by the Code of Conduct or come within the powers of the Standards Commissioner but would have to be referred immediately to the police. There is no question of us having committed any criminal act.

[I refer in Annex A to the finding of the previous investigation that the documents were not “seized” by the members – JD] para 41 You have misrepresented our response to you in our letter of 29 January. We never used the words that “it was inappropriate to give the material to the Public Petitions Committee because it would not be the property of the ∗ Committee until such time as the report was approved by the Committee”

∗ I am a little puzzled by this statement. The letter referred to (see Appendix 9) says “As we made clear in our evidence to the Standards Committee, the material was never the property of the Public Petitions

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We stated the recognised fact that until such time as a report by a reporter to a committee is approved by a committee it is not the property of the committee. The Clerk to the Public Petitions did not, in his Emails to us, claim that the material was the property of the Committee. He confirmed when we spoke to him that they had never belonged to the committee. He wished us to give him the material so he could pass it on to Ms Elder. We argued that the material was not “entirely the intellectual work” of Ms Elder but that extensive work had been done by Ms Spowart and therefore the material was retained. A position the acting Standards Commissioner felt to be “justified” line 14 What Mrs Marwick actually said in her Email to the Clerk of the Public Petitions and then argued at the Standards Committee was “I have reviewed all the material and can find no evidence that any of the material was generated by Dorothy Grace elder or her staff. Throughout the material there is evidence that Mary Spowart has been working on it and I can therefore only assume that all the material was generated by Mary Spowart in the time she was employed by Kenny and I”

[What the members say simply expands what is said in my report – JD]

Para 47 You say that “the inconvenience to Ms Elder in having to repeat some work near to her deadline was one thing. The reaction of the members of the public when this potential obstacle to the completion of the report—in which they had a major interest—was made to them, was another.” There is no evidence to support your assertion that the members of Blairingone and Saline Action Group were aware that there might be a potential obstacle to the completion of the report or that they had a reaction to that. The Blairingone Action Group was present when the draft report was discussed by the Public Petitions Committee on 11 March 2003. The report contained an analysis of the questionnaires. The final report was published at the end of March 2003.

Indeed, Mr Hope says in his own letter of complaint ( 29 October page 9 para 1) “No-one in Blairingone knew what was happening and events of 3 February onwards only came to light following an article in the Dundee Courier of 11 June 2003 which mentioned papers from Dorothy Grace-Elder’s inquiries into waste dumping at Blairingone. After contacting the newspaper, it was only after myself and another action group member attended the Standards Committee meeting of 25 June 2003 that the full picture of what had been going on began to emerge.”

In other words the report was completed at the end of March and Mr Hope claims he was unaware of the complaint until 11 June—two and a half months after the report was completed. The complainers had no reaction to any potential obstacle to the completion of the report because they were not aware there was one.

Committee and would not have been the property of the Public Petitions Committee until such time as the report had been approved by the Committee.”

63 (55) Standards Committee, 5th Report, 2004 (Session 2) – ANNEX A

[I did not say that the complainers were aware of the potential obstacle prior to the completion of the report. They were aware of it later, however, and the complaints indicate that there was a reaction. I referred to a “potential” obstacle rather than simply “obstacle” - JD]

Para 51 Line 1 We take it that the reference to Dorothy Grace Elder should be to Mary ∗ Spowart. Line 4 Not only did we assure you we had removed no material we also said on oath to the Standards Committee that the file we removed from under Mary Spowart’s desk was handed over in its entirety to the Standards Commissioner. Ms Spowart was the last person to have the file before we retained it. When she later examined the retained file she confirmed that no planning material that she might have expected to see was missing. The Planning material that Mr Hope claims was missing was never in the file when we retained it.

Para 52 You say “in the absence of persuasive evidence” We submit that there is no evidence at all that the two members retained the material Mr Hope claims he gave to Ms Elder. para 65 We also do not dispute the evidence of Mr Hope about Ms Elder’s physical involvement with the questionnaires. However, as we pointed out to you that this information was not available to us before the complaint was made (our letter 29 January) para 66 The complainers have never seen the file and therefore have no direct knowledge of what it contained and we cannot therefore accept your assertion that it is possible to understand why they were surprised that we had no evidence that Ms Elder or her staff contributed to the material in the file. The complainers would also be unaware that Ms Spowart made a drafting contribution to the questionnaires and would also be unaware of the spreadsheets and draft report and analysis of the questionnaires. If Ms Elder had told them as she had told so many others that the work was entirely her intellectual property then we could then understand why they would be surprised by our claims. however, we cannot be held responsible for what the complainants believed to be the situation based entirely on the word of Ms Elder.

[The complainers had seen the questionnaires with their covering letter, and Mr Hope had helped Ms Elder to deliver them locally (see Appendix 2) – JD] para 71.

∗ the reference to Dorothy-Grace Elder is correct.

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Ms Elder gave undertakings to the villagers with regard to the confidentiality of the questionnaires which she did not keep by allowing Mrs Spowart to have photocopies which she then left under a desk for anyone to view. it is the responsibility of anyone who gives such an undertaking to keep it. para 72 Line 4 The phrase “there was no question of the work being wholly obstructed” seems at odds with this section which deals with keeping the residents informed. In any event, the work of Mrs Elder was not obstructed by us, wholly or otherwise.

[What is being argued is that there would have been a stronger case for informing the residents if what was being retained constituted the sole version of the material, with the effect of wholly preventing its further use – JD] para 73 We would also point out now though we have not done so before that we were also unable to contact those who had filled in the questionnaires because we handed the file over in its entirety to the Standards Commissioner and we kept no record. para 89

We refer you to our previous comments on compromise.

65 (57) Standards Committee, 5th Report, 2004 (Session 2) – ANNEX A

References

1. Transport and Environment Committee, 4th Report 2002 2. The covering letter is one of the attachments in Appendix 2 3. Standards Committee 1st Report 2003 (Session 2). Annex E 4. Acting Standards Commissioner, 1st Report 2003 (session2). (Annex A to Standards Committee 1st Report 2003) 5. Standards Committee 1st Report 2003 (Session 2) 6. ibid. p. 61 7. ibid. p. 61 8. Email from Tricia Marwick to clerk of Public Petitions Committee, 20 February 2003 (see Appendix 13) 9. Standards Committee 1st Report 2003, p. 55 10. Acting Standards Commissioner, 1st Report 2003 (session2). (Annex A to Standards Committee 1st Report 2003). Paras. 29 and 30 11. Standards Committee 1st Report 2003 (Session 2), Para. 18, p.4 12. ibid. p64 13. Acting Standards Commissioner, 1st Report 2003 (session2). (Annex A to Standards Committee 1st Report 2003). Para 24 14. ibid. Para 30 15. ibid. Para 32 16. Standards Committee 1st Report 2003 (Session 2) Para. 8, p.2 17. ibid. p.54 ff. 18. ibid. Para. 17, p.4 19. Examination of documentary evidence by Dorothy-Grace Elder and Mary Spowart: report to Standards Committee by Donald Gorrie MSP and Standards Committee clerks, September 2003 20. Standards Committee 1st Report 2003 (Session 2) p.49 21. ibid. p.68 22. Acting Standards Commissioner, 1st Report 2003 (session2). (Annex A to Standards Committee 1st Report 2003). Para 27 23. Standards Committee 1st Report 2003 (Session 2) p.51 24. Email from T Marwick to S Farrell 22/2/03 (see Appendix 13) 25. Standards Committee 1st Report 2003 (Session 2) p.68 (oral evidence by T Marwick) 26. ibid. Para. 21, p.4 27. ibid. p.55 (oral evidence by J McAllion) 28. ibid. p.56 29. ibid. p.60 (oral evidence by K MacAskill) 30. ibid. Para. 15, p.3 31. ibid. Para. 22, p.5 32. ibid. p.37 33. Acting Standards Commissioner, 1st Report 2003 (session2). (Annex A to Standards Committee 1st Report 2003). Paras. 21 and 22 34. ibid. Appendix D (summary of interview with K Macaskill) 35. ibid. Appendix A (written evidence of Dorothy-Grace Elder) 36. ibid. Appendix C (written evidence of K MacAskill) 37. ibid. Appendix F (written evidence of T Marwick) 38. Standards Committee 1st Report 2003 (Session 2) p.60 (oral evidence of T Marwick)

(58) 66 Standards Committee, 5th Report, 2004 (Session 2) – ANNEX A

APPENDICES

1. Letter of complaint from Diana Johnson dated 19/10/03

2. Letter of complaint from Duncan Hope dated 29/10/03, with six attachments

3. Letter of complaint from Fred Saunders dated 2/11/03

4. Letter of complaint from Peter and Irene Archibald dated 3/11/03

5. Email from Diana Johnson to Standards Commissioner 26/11/03

6. Letter from Diana Johnson to Standards Commissioner 28/1/04

7. Response from Kenny MacAskill to Standards Commissioner 6/11/03

8. Response from Tricia Marwick to Standards Commissioner 6/11/03, with attached copy of Scotsman article 31/10/2003

9. Letter to Standards Commissioner from T Marwick and K MacAskill 29/1/04

10. Letter to Standards Commissioner from T Marwick and K MacAskill ∗ 2/3/04

11. Letter to T Marwick and K MacAskill from Sir David Steel 4/3/03

12. Response from K MacAskill to Sir David Steel 5/3/03

13. Exchange of emails between Steve Farrell, clerk to Public Petitions Committee and Tricia Marwick 19/2/03, 17.17, S Farrell to T Marwick 19/2/03, 18.39, T Marwick to S Farrell 20/2/03, 17.08, S Farrell to T Marwick 20/2/03, 17.14, T Marwick to S Farrell 22/2/03, 10.56, T Marwick to S Farrell

14. Copy of circular distributed by Mr Hope to residents of Blairingone and district, late 2003.

∗ Ms Marwick subsequently issued a correction to this letter. Whereas it was said in the letter that she and her colleague issued no material to the press after the Standards Committee meeting on 25/6/03, she did issue to the press a copy of her statement to the Standards Committee. This does not alter the previously stated position that the email8 from Ms Marwick to S Farrell on 20/2/03 was not issued publicly by Ms Marwick or her colleague.

67 (59) Standards Committee, 5th Report, 2004 (Session 2) – ANNEX A

69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132