SOC(3)SC-E001 - Scottish Parliamentary Standards Commissioner
Scottish Parliamentary Standards Commissioner
Evidence To National Assembly For Wales’ Committee On Standards Of Conduct
Assembly measure to establish a statutory role of Commissioner for Standards
I am happy to respond to the Committee’s invitation to give written evidence in relation to the above consultation. I took up my post as the first statutorily appointed Standards Commissioner in the UK in 2003 and I offer my views on the basis of that experience.
1. Is there a need for an Assembly Measure to establish a statutory role of Commissioner for Standards?
This was an issue that was carefully considered by the first Standards Committee of the Scottish Parliament. The result of a nine month inquiry was published in its 4th Report 2000 "Models of Investigation of Complaints”. It concluded: "At its meeting on 14 June, therefore, the Committee agreed to recommend the appointment of a Standards Commissioner with a view to maximising public confidence in the Parliament's commitment to maintaining the highest levels of probity in conducting its affairs. The critical factor in the Committee's decision was the degree of independence which a Commissioner could apply to the investigation of complaints about the conduct of MSPs.”
The Committee then went on in its 2nd Report 2001, "Proposal for a Standards Commissioner Committee Bill” to set out the framework for a statutory post of Commissioner. It argued that: "Whilst the Committee could have recommended the appointment of a Standards Officer without the need for enabling legislation, the Committee felt that the post holder’s reliance on the Committee’s own powers to summon witnesses and compel evidence could impact adversely on the perceived independence of the post. In contrast, a Standards Commissioner appointed under an Act of the Scottish Parliament would have specific statutory powers to summon witnesses and to compel the production of evidence, thus enhancing the credibility of the post. The Bill will therefore provide the Commissioner with the powers to summon witnesses and order the production of documentary evidence.”
It concluded that: "The Committee believes that the establishment of a Standards Commissioner in the Scottish Parliament is an essential step in cementing the public’s confidence in the Parliament’s ability to ensure that its Members carry out their duties with integrity, selflessness and honesty. The Commissioner will be an important independent element in ensuring that complaints against Members are dealt with in a transparent and rigorous manner. The principal bulwarks of the independence of the post will be the statutory basis on which he or she is appointed and the proposed powers bestowed on him or her by the proposed legislation detailed in this report. The Committee recommends that the Parliament agrees to this proposal.”
The Standards Committee took forward the legislation as a Committee Bill and the Scottish Parliamentary Standards Commissioner Act was passed in 2002. This sets out my role in the complaints process.
On the basis of my experience, it is indeed beneficial for the Commissioner post to have a statutory basis. It enhances the status and the independence of the post, establishes a robust and open appointment procedure if that is set out in the legislation, and can give the Commissioner, as it does in Scotland, independent powers to compel evidence and summon witnesses.
2. What should be the role of the Commissioner for Standards?
I commend the arrangements for my own role, which is that of an independent investigator of complaints about MSP conduct. Parliament is prevented in the legislation from directing me regarding whether and how to investigate an individual complaint, though it can give general Directions about the conduct of investigations. Complaints should be made to the Commissioner and generally only he or she should decide whether and how far to investigate them
I play no part in advising members in relation to the Code of Conduct; that role is performed by the clerks to the Standards, Procedures and Public Appointments Committee. This was a deliberate splitting of roles, so that the Commissioner did not have to investigate a complaint about an issue on which he had previously given advice. There are also some advantages in combining the roles, as at Westminster, but I think the need for the Commissioner to be demonstrably independent from the Parliament or Assembly and unbiased and impartial in investigation persuades me that the separation of roles is preferable.
It is very important that the Commissioner should have, as I do, independent powers to summon witnesses and compel evidence and should not have to rely on the powers of the Committee, or Parliament, or Assembly. Such powers rarely need to be used, if at all, but it sometimes helps to point to their existence.
What fundamental principles should underpin the establishment of the Office?
The Commissioner should be able to investigate complaints independently of the Committee and the Assembly prior to reporting to the Committee; all arrangements regarding the post should maximise this independence.
Arrangements for dismissal should protect the post holder from arbitrary action by those he holds under scrutiny.
Length and renewal of appointment
The legislation creating my post allows for two terms of up to 5 years. I will have had two terms of 3 years when I finish in March 2009. I feel strongly that the appointment should in future be for a single term, non-renewable. I said the following in my Annual Report for 2005-06, after my own reappointment:
"The experience of reappointment however made me reflect on the process and it reinforced my previously held view that the Standards Commissioner post in future, and possibly others in which the post holder may criticise actions of those who may subsequently vote for or against reappointment, should not be subject to a reappointment procedure. It would be preferable for future appointees to have one, longer, non-renewable term. This was the conclusion a few years ago of the Committee on Standards in Public Life1 in relation to the equivalent post at Westminster. They recommended that in future the Parliamentary Commissioner for Standards should have a single term of 5 to 7 years. That post now has a single term of 5 years.
The main justification for this suggestion was that a short term followed by reappointment was an undesirable potential pressure on the independence, and perceived independence, of the post holder. He or she might feel a pressure to avoid antagonising those who might be involved in the reappointment process in the first term (though I would expect any such pressure to be stoutly resisted). Independence of operation should as far as possible be built into the institutional architecture of the post, rather than rely on the robustness and independence of the post holder. As well as being independent, the post holder must be seen to be independent. This could be achieved here by removing the question of reappointment. No longer having any possibility of being seen to have a personal axe to grind, being in my second and final term, I have made this suggestion to the Presiding Officer and to the Finance Committee inquiry into accountability and governance relating to Parliamentary commissioners and ombudsmen.”
I hope that these reflections will be of assistance to the Committee in its deliberations. If desired, I would be willing to give oral evidence to the Committee.
Dr J A T Dyer
Scottish Parliamentary Standards Commissioner
27 June 2008
1. Committee on Standards in Public Life. Eighth Report (Cm 5663, November 2002). Standards of Conduct in the House of Commons.
