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Inquiry into the Possible Appointment of an Assembly Commissioner for Standards
Committee Powers and Membership
1.The Committee on Standards and Privileges is a Standing Committee of the Northern Ireland Assembly established in accordance with paragraph 10 of Strand One of the Belfast Agreement and under Assembly Standing Order Nos. 49 and 57. The Committee has 11 members including a Chairperson and Deputy Chairperson and a quorum of 5.
2.The Committee has power:
3.The Committee is appointed at the start of every Assembly, and has power to send for persons, papers and records that are relevant to its enquiries.
4.The membership of the Committee since its establishment on 15 December 1999 has been as follows:
Mr Donovan Mc Clelland: Chairperson
5.The Report and evidence of the Committee are published by the Stationery Office by order of the Committee. All publications of the Committee are posted on the Assembly's website (archive.niassembly.gov.uk.)
6.All correspondence should be addressed to the Clerk to the Committee on
Standards and Privileges, Committee Office, Northern Ireland Assembly, Room
243, Parliament Buildings, Stormont, Belfast BT4 3XX.
* Mr Edwin Poots resigned from the Committee on 11 September 2000
TABLE OF CONTENTS
The possible appointment of a Commissioner for Standards
The role and responsibilities of a Commissioner for Standards
The relationship between the Commissioner for Standards and the Committee on Standards and Privileges
The arrangements for reporting the findings of the Committee on Standards and Privileges to the Northern Ireland Assembly
The powers of, and the sanctions that can be recommended by the Committee on Standards and Privileges
The impact of the committee's finding on the Standing Orders of the Assembly and the Guide to the Rules Relating to the Conduct of Members
The appointment of a Commissioner and associated terms and conditions of employment.
Appendix 2 - List of witnesses who gave evidence to the Committee
1.The Northern Ireland Assembly Committee on Standards and Privileges is responsible for:
2.The Committee reviewed the powers and responsibilities conveyed and imposed on it by Assembly Standing Orders and the Guide to the Rules Relating to the Conduct of Members and concluded that there was a lack of clarity regarding the role of the Committee, how it could undertake its work and what sanctions or penalties it could recommend to the Assembly where it was found that a complaint against an Assembly Member was found to be upheld.
3.In June 2000, the Committee resolved to undertake an inquiry into the possible appointment of an Assembly Commissioner for Standards who would be responsible for investigating complaints against Members of the Assembly.
4.The Terms of Reference for the Inquiry required the Committee to consider and report on:
The conduct of the Inquiry
5.In conducting the Inquiry, the Committee took evidence from a wide range of individuals in other parliaments, assemblies and other organisations with experience and expertise in the area of standards and privileges and the investigation of complaints against parliamentarians and others.
6.The Committee took evidence from among others, representatives of the House of Commons Committee on Standards and Privileges, the Committee on Standards in Public Life, the House of Commons Parliamentary Commissioner for Standards, the Welsh Assembly's Independent Adviser on Standards of Conduct, the Scottish Parliament's Standards Committee and the Dáil Éireann Select Committee on Members' Interests.
7.The Committee also looked at a number of systems for dealing with complaints against parliamentarians in a wide range of parliaments, assemblies and legislatures in different countries.
Issues considered by the Committee
8.The main issues considered by the Committee in conducting the Inquiry were:
Key findings and conclusions of the Committee
9.The key findings of the Committee were:
CONCLUSIONS AND RECOMMENDATIONS
1.There is a lack of clarity on what, if any, sanctions or penalties the Committee could report and recommend that the Assembly impose on a Member against whom a complaint was upheld by the Committee.
2.The Committee is not empowered, when investigating and reporting on complaints against Members, to decide what further action is required and this limits the operation and effectiveness of the Committee.
3.The existing system whereby the Assembly regulates its own affairs and ultimately takes decisions on complaints that have been made against Members of the Assembly is an appropriate, reasonable and workable system.
4.The Committee concluded that it should recommend to the Assembly that a Commissioner for Standards be appointed to investigate complaints against Members of the Assembly.
5.The Committee concluded that the appointment of a Commissioner for Standards would demonstrate the commitment of the Committee on Standards and Privileges and the Assembly itself to ensure high levels of probity on the part of Assembly Members in conducting their affairs inside and outside the Assembly.
6.The Committee concluded that the primary role of the Commissioner should be to investigate complaints against Members.
7.The Committee agreed that, if necessary, it would use its powers under Standing Order 57 to send for persons, papers and records to enable the Commissioner for Standards to undertake an investigation into a complaint against a Member of the Assembly.
8.The Commissioner for Standards should not have any role in recommending the imposition of penalties or sanctions on Members of the Assembly.
9.The Committee concluded that the existing arrangement whereby the Clerk of Standards is available to give advice and guidance to Members on the registering and declaring of interests under the authority of the Committee on Standards and Privileges should remain in place.
10.The Committee concluded that the Commissioner should not have a role in the compiling, maintaining and making accessible the Register of Members' Interests.
11.The Committee concluded that while the Committee on Standards and Privileges should retain ultimate responsibility for reviewing the form and content of Assembly registers of interests, it would be appropriate for the Commissioner for Standards to be consulted about the form and content of existing and future registers.
12.The role proposed for the Assembly Commissioner for Standards should be subject to review in the light of the experience of the Commissioner, the Committee on Standards and Privileges and the Assembly.
13.The issue of candidates for the position of Commissioner for Standards holding directorates and having political party affiliations or other affiliations that might prejudice their perceived impartiality will be discussed in detail with the Assembly Commission.
14.For administrative purposes, it was agreed that all complaints against Members should be referred to the Clerk of Standards in writing. The Clerk would log all complaints and automatically refer them to the Commissioner for Standards.
15.The Committee agreed that the Commissioner would report his or her findings on all complaints to the Committee on Standards and Privileges via the Clerk of Standards.
16.In the case of complaints which the Commissioner considered to be trivial in nature or which, on the basis of a preliminary investigation, were considered to require no further or detailed investigation, the Commissioner would report accordingly to the Committee on Standards and Privileges through the Clerk of Standards.
17.On completion of a detailed investigation, the Commissioner will submit a report to the Committee.
18.The Committee would subsequently report the findings of the Commissioner to the Assembly.
19.Having reached a decision on the findings and conclusions of a detailed report into a complaint submitted by the Commissioner for Standards, it was agreed that the Commissioner's report would be submitted to the Assembly under cover of a report from the Committee on Standards and Privileges.
20.Standing Orders should be amended and the Guide to the Rules Relating to the Conduct of Members consequentially amended to empower the Committee on Standards and Privileges to recommend the exclusion of a Member from proceedings of the Assembly and the withdrawal of a Member's rights and privileges.
21.To give effect to the Committee's recommendations on sanctions and penalties, Standing Orders 57 and 64 should be amended as detailed in this report.
22.The Clerk of Standards, and his or her staff, will provide the administrative and secretarial support required to assist the Commissioner for Standards in investigating complaints against Members and reporting his or her findings to the Committee on Standards and Privileges. Should a need for additional resources arise, this would be considered in conjunction with the Assembly Commission.
23.The Committee on Standards and Privileges will discuss, with the Assembly Commission, the terms and conditions of employment of an Assembly Commissioner for Standards and the process of recruiting a Commissioner.
BACKGROUND TO THE COMMITTEE'S INQUIRY
1.The Committee on Standards and Privileges is a Standing Committee of the Northern Ireland Assembly and exists and works under the authority of the Northern Ireland Act 1998 and specifically in accordance with the provisions of the Standing Orders of the Northern Ireland Assembly.
2.Standing Order 57 provides for a Standing Committee of the Assembly called the Committee on Standards and Privileges:
3.The Guide to the Rules Relating to the Conduct of Members is designed to assist Assembly Members in discharging the duties placed upon them by the Code of Conduct.
4.The Guide is divided into four sections dealing with Registration of Interests, the Declaration of Interests, the Advocacy Rule and the Procedure for Complaints.
5.Section 4 of the Guide dealing with the Procedure for Complaints makes the following provisions:
6.The Committee reviewed the powers and responsibilities conveyed and imposed on it by Assembly Standing Orders and the Guide to the Rules Relating to the Conduct of Members and reached the following key conclusions:
7.Following the establishment of the Committee on Standards and Privileges on 15 December 1999, the Committee received a number of complaints from Assembly Members about the conduct of other Members. The Committee undertook initial investigation of these complaints by means of correspondence and attendance at meetings of the Committee by specific Members. It became apparent to the Committee that investigation of complaints by the Committee itself had limitations and disadvantages.
8.Against this background, the Committee resolved to undertake a formal inquiry into the possible appointment of an Assembly Commissioner for Standards. The Terms of Reference for the Inquiry were:
9.The Committee decided to take evidence from a wide range of individuals in other parliaments, assemblies and relevant organisations with experience and expertise in the area of standards and privileges and the investigation of complaints against parliamentarians and others. The Committee took evidence from the House of Commons Committee on Standards and Privileges, the Committee on Standards in Public Life, the House of Commons Parliamentary Commissioner for Standards, the Welsh Assembly's Independent Adviser on Standards of Conduct, the Scottish Parliament's Standards Committee, the Dáil Éireann Select Committee on Members Interests, the Office of the Northern Ireland Ombudsman, the Northern Ireland Human Rights Commission and a former Permanent Secretary in the Northern Ireland Civil Service. A list of the individuals who appeared before and gave evidence to the Committee is included in this Report at Appendix 2.
10.In conducting its Inquiry, the Committee also agreed to invite interested individuals and organisations to submit memoranda to inform the Committee's consideration of the possible appointment of a Commissioner. A list of the individuals and organisations who submitted memoranda to the Committee is included in this Report at Appendix 3.
11.The Committee, as part of the process of informing its thinking, looked at a number of systems for dealing with complaints against parliamentarians in a number of parliaments, assemblies and legislatures including the Assemblies of Alberta, New Brunswick, Quebec and the Northwest Territories, the Australian Parliament, the Tynwald (the Parliament of the Isle of Man) and the Northern Ireland Assembly 1982-1986.
12.The Proceedings of the Committee relating to the Inquiry and the report are included at Appendix 1.
13.The Minutes of Evidence taken by the Committee in the course of its Inquiry are included at Appendix 4.
ISSUES CONSIDERED BY THE COMMITTEE
The possible appointment of a Commissioner for Standards
1.The Committee noted that the current system for dealing with alleged breaches of the Code of Conduct, complaints made in relation to the registering or declaring of interests, specific matters relating to privilege and other matters relating to the conduct of Members was a system of self-regulation by the Assembly. The Committee was of the view that such a system of self-regulation was necessary and appropriate in dealing with complaints against Members. None of the witnesses who gave evidence to the Committee were in favour of "external" regulation.
2.The Committee concluded that the existing system whereby the Assembly regulates its own affairs and ultimately takes decisions on complaints that have been made against Members of the Assembly is an appropriate, reasonable and workable system.
3.In undertaking its Inquiry, the fundamental issue to be considered by the Committee was whether it would be appropriate, in principle and in practice, to recommend to the Assembly that a Commissioner for Standards to investigate complaints against Members should be appointed.
4.In considering this fundamental issue, the Committee was mindful of the problems and difficulties it had encountered in investigating a small number of complaints which had been made against Members and which had been referred to the Committee. These included:
5.In considering this fundamental issue, the Committee paid close attention to the systems for investigating complaints that are currently in place, in the House of Commons, the National Assembly for Wales, the Scottish Parliament and Dáil Éireann. With the exception of Dáil Éireann, the other parliaments and assemblies have some sort of "independent" adviser or commissioner who investigates complaints against members. The Dáil Éireann staff anticipate that a review of their practices and procedures will be undertaken in the future.
6.The vast majority of witnesses who gave evidence to the Committee were strongly in favour of having some kind of system, independent from the Committee on Standards and Privileges, to investigate complaints against Members of the Assembly. The reasons given for establishing an independent investigative process included:
7.The Committee concluded that it should recommend to the Assembly that a Commissioner for Standards be appointed to investigate complaints against Members of the Assembly. It was the Committee's view that such an appointment would enable complaints to be dealt with efficiently and in an appropriately independent manner which would promote public confidence in the process.
8.The Committee also concluded that the appointment of a Commissioner for Standards would demonstrate the commitment of the Committee on Standards and Privileges and the Assembly itself to ensure high levels of probity on the part of Assembly Members in conducting their affairs inside and outside the Assembly.
The role and responsibilities of a Commissioner for Standards
9.In considering what role and responsibilities a Commissioner for Standards should have, the Committee examined the range of responsibilities which the Committee itself and the Clerk of Standards currently had responsibility for in accordance with the Standing Orders of the Assembly and the Guide to the Rules Relating to the Conduct of Members. The main responsibilities of the Committee and the Clerk of Standards currently are:
10.Having concluded that the Committee would recommend to the Assembly that an Assembly Commissioner for Standards should be appointed, the Committee easily reached the conclusion that the primary role of the Commissioner should be to investigate complaints against Members. The Committee agreed that all complaints against Members referred to the Committee or the Clerk of Standards would be referred to the Commissioner for Standards for preliminary investigation and subsequent detailed investigation if appropriate.
11.The range of complaints that would be referred to the Commissioner for Standards would routinely include:
12.The Committee agreed that, if necessary, it would use its powers under Standing Order 57 to send for persons, papers and records to enable the Commissioner for Standards to undertake an investigation into a complaint against a Member of the Assembly.
13.The Committee considered whether it would be appropriate to require the Commissioner for Standards to assume responsibility for other aspects of the Committee's work. For example:
14.The Committee took note of the different approaches taken to this matter in the House of Commons, the National Assembly for Wales and the Scottish Parliament.
15.The Committee took the view that the Commissioner should not have any role in recommending a penalty or sanction in cases where the Commissioner upheld a complaint. The Committee felt that the Commissioner's role as independent investigator should not be confused with that of prosecutor and concluded that the responsibility for recommending the imposition of a penalty or sanction to the Assembly should rest with the Committee on Standards and Privileges.
16.In relation to advising and guiding Members on the registering and declaring of interests, the Committee felt that there was the potential for a conflict of interests if the Commissioner was investigating a complaint against a Member and also advising the same Member on the registering and declaring of interests. On balance, the Committee preferred the existing arrangement whereby the Clerk of Standards is available to give advice and guidance to Members on the registering and declaring of interests under the authority of the Standards and Privileges Committee. However, the Committee agreed that it should retain a power to require the Commissioner, where appropriate, to examine and report on any aspects of the Register of Members' Interests.
17.The Committee also considered that the Commissioner should not have a role in the compiling, maintaining and making accessible the Register of Members' Interests and that responsibility for this should remain with the Clerk of Standards under the authority of the Committee on Standards and Privileges. This was seen as an integral part of the work of the Clerk of Standards and as an extension to providing advice and guidance to Members on the registering and declaring of interests.
18.The Committee considered the issue of reviewing the form and content of the Register of Members' Interests and any other registers of interests which the Assembly might decide to establish. The Committee concluded that while the Committee itself should retain ultimate responsibility for reviewing the form and content of such registers, it would be appropriate for the Commissioner for Standards to be consulted about the form and content of existing and future registers of interests.
19.The Committee, in considering the role and responsibilities of a Commissioner for Standards, focused very directly on the importance, at this stage, of having an appropriately independent means of investigating complaints against Members of the Assembly. The Committee viewed this particular role as crucial to ensuring that Members could be assured that complaints against them would be investigated in an impartial and non-party political way. The Committee also considered that the appointment of a Commissioner to investigate complaints would promote the credibility and integrity of the investigative process, the Committee on Standards and Privileges and the Northern Ireland Assembly.
20.The Committee decided that the limited role proposed for the Assembly Commissioner for Standards should be subject to review in the light of the experience of the Commissioner, the Committee on Standards and Privileges and the Assembly.
21.The Committee did not rule out an extension of the Commissioner's role and responsibilities to include making recommendations about sanctions and penalties, advising and guiding Members on the registering and declaring of interests and compiling, maintaining and making accessible the Register of Members' Interests.
The relationship between the Commissioner for Standards and the Committee on Standards and Privileges
22.The Committee spent a considerable amount of time examining the issue of the relationship between the Commissioner and the Committee on Standards and Privileges. In doing so the Committee wished to strike a balance between the independence of the Commissioner and the authority of the Committee and ultimately the Assembly.
23.Key witnesses from the House of Commons, the National Assembly for Wales and the Scottish Parliament all stressed the vital importance of the Commissioner being, and being seen to be, independent from the Committee and the Assembly when investigating complaints. This independence was seen to be crucial to enable the Commissioner to investigate complaints in an unbiased and fair manner and also important in that it would promote public confidence in the investigative process.
24.In taking evidence, the Committee noted that a number of individuals who investigate complaints in other parliaments and assemblies had resigned directorships and membership of and affiliation to political parties or other affiliations that might prejudice their perceived impartiality. A number of witnesses felt that such action was necessary to avoid suggestions of potential conflict of interest or interests. The Committee will discuss this matter in detail with the Assembly Commission if and when the Assembly decides that a Commissioner for Standards should be appointed.
25.In concluding that the independence of the Commissioner was the key to ensuring fair and unbiased investigation of complaints, the Committee discussed the issue of whether or not the Committee itself should be involved in receiving complaints and deciding whether these should or should not be referred to the Commissioner for preliminary and possible subsequent detailed investigation. The Committee noted the different approaches taken to this in the House of Commons, the National Assembly for Wales and the Scottish Parliament.
26.In reaching a decision on this issue the Committee acknowledged the likely perceived incompatibility between insisting on and promoting the independence of the Commissioner and the Committee having a role in determining which complaints the Commissioner would have the opportunity to investigate.
27.The Committee concluded that it would be inappropriate for the Committee itself to "sift" complaints or in any way determine which complaints should be referred to the Commissioner for initial and possible detailed investigation.
28.For administrative purposes, it was agreed that all complaints against Members should be made to the Clerk of Standards in writing. The Clerk would log all complaints, automatically refer them to the Commissioner for Standards for initial and/or detailed investigation and inform the Committee of all complaints received and submitted to the Commissioner. The Clerk of Standards would also advise the Committee on Standards and Privileges of all complaints received and referred to the Commissioner for Standards.
29.The Committee agreed that the Commissioner would report his or her findings on all complaints to the Committee on Standards and Privileges via the Clerk of Standards. The Commissioner for Standards would keep the Clerk of Standards updated on progress with the investigation of all complaints with specific information being provided on the likely timescale for reporting on complaints. The Clerk of Standards, in turn, would keep the Committee informed accordingly.
30.In the case of complaints which the Commissioner considered to be trivial in nature or which, on the basis of a preliminary investigation, were considered to require no further or detailed investigation, the Commissioner would report accordingly to the Committee on Standards and Privileges through the Clerk of Standards. The Committee would subsequently report the findings of the Commissioner to the Assembly accompanied by a statement that the Committee accepted that no further action in respect of the specific complaint against a Member should be taken. Subsequent to reporting to the Assembly, the Clerk of Standards would write to the Member concerned advising that the complaint against the Member had not been upheld and that the Committee on Standards and Privileges would take no further action regarding the complaint.
31.In the case of complaints considered to be trivial or requiring no detailed investigation by the Commissioner, the Committee agreed that such findings could be conveyed to the Committee in writing via the Clerk of Standards and, in such cases, the Commissioner would not be required to attend a meeting or meetings of the Committee to report his or her findings.
32.The Committee considered that in the case of complaints considered by the Commissioner to be trivial or requiring no detailed investigation, it would be inappropriate for the Committee to require the Commissioner to reconsider his or her findings.
33.In the case of complaints considered by the Commissioner to require further or detailed investigation, the Commissioner would advise the Clerk of Standards of his or her intention to undertake such an investigation and the likely timescale involved. The Commissioner would also advise the Clerk of Standards, on a regular basis, of progress with the investigation and the Clerk would advise the Committee accordingly.
34.On completion of a detailed investigation, the Commissioner will submit a report to the Committee. The report will detail the background to the complaint, the information which has been provided by the Member and others, the conduct of the investigation and the Commissioner's conclusions.
35.In considering the report, the Committee may ask the Commissioner to appear before the Committee to discuss the report and its conclusions. The Committee may also ask the Commissioner to obtain further information before they reach a decision on the findings and conclusions of the report.
36.The Committee may also, if it so decides, interview any of those involved in a complaint or those who gave evidence or information to the Commissioner in the course of investigating a complaint against a Member. The Committee agreed that a Member who was required to appear before the Committee would be able to read the Commissioner's report in the presence of Committee staff before giving oral evidence to the Committee. The Member will not be allowed to retain a copy of the Commissioner's report prior to its submission by the Committee to the Assembly.
37.Having considered the Commissioner's report and taken whatever additional oral or other evidence it considers appropriate, the Committee will reach a decision on the findings and conclusions of the report.
The arrangements for reporting the findings of the Committee on Standards and Privileges to the Northern Ireland Assembly
38.Having reached a decision on the findings and conclusions of a detailed report into a complaint submitted by the Commissioner for Standards, it was agreed that the Commissioner's report would be submitted to the Assembly under cover of a report from the Committee on Standards and Privileges.
39.The Committee's report will be laid in the Assembly Business Office and will be accompanied by notice of a motion that the Assembly notes the report and its findings or endorses the report and its findings. The Chairman of the Committee may pursue an opportunity with the Business Committee to have the report debated at a plenary meeting of the Assembly.
40.The Committee's covering report will detail its consideration of the findings and conclusions of the Commissioner's report, its decision on whether or not the Committee has upheld the complaint against a Member and a recommendation for any sanction or penalty the Committee considers appropriate.
The powers of, and the sanctions that can be recommended by the Committee on Standards and Privileges
41.In accordance with Assembly Standing Order 57, the Committee on Standards and Privileges has power to:
42Section 4 of the Guide Relating to the Conduct of Members provides that:
43.The Committee was of the view that while it had some powers to investigate complaints against Members, Standing Orders and the Guide to the Rules Relating to the Conduct of Members did not make it clear what, if any, sanctions or penalties the Committee could recommend that the Assembly impose on a Member against whom a complaint was upheld by the Committee.
44.The Committee was clear that in serious cases it was essential that it should be able to recommend the imposition of some kind of sanction or penalty. If this was not the case, the Committee felt that the process of investigating and reporting on complaints would be of limited value and that the concept and practice of the Assembly regulating its own affairs would be seen to be ineffective.
45.In relation to the penalties or sanctions that could be recommended by the Committee on Standards and Privileges, this is governed by Section 43(5) of the Northern Ireland Act 1998. This states that Standing Orders may include provision:
46.Powers of this nature are not, at present included in the Assembly's Standing Orders. The Northern Ireland Act 1998, however, allows for powers of this nature to be included. This could be achieved by amending Standing Orders and making consequential amendments to the Guide to the Rules Relating to the Conduct of Members. The Committee was strongly of the view that Standing Orders and the Guide to the Rules Relating to the Conduct of Members should be amended to empower the Committee to recommend the imposition of a limited range of sanctions or penalties in cases where a serious complaint is upheld against a Member.
47.If Standing Orders were amended appropriately, this would enable the Committee on Standards and Privileges to recommend to the Assembly that a Member be excluded from proceedings and that his or her rights and privileges be withdrawn for the period of exclusion.
48.A recommendation of this nature from the Committee could be made if a Member:
49.If Standing Orders were amended to permit the Committee on Standards and Privileges to make a recommendation about the withdrawal of a Member's rights and privileges, such a recommendation could include a suspension of salary for the period of the Member's exclusion. This is because Members of the Assembly are entitled to be paid a salary under Section 47 of the Northern Ireland Act 1998.
50.The above interpretation of rights and privileges is also based on practice in the House of Commons in that failure to register an interest, failure to declare an interest and breach of the advocacy rule constitute a contempt of the House which may be punished by suspension for a specified period. This may, in addition, be accompanied by a recommendation to withhold the Member's salary for the period of suspension.
51.In relation to the enforcement of the wider principles contained in the Code of Conduct and the Guide to the Rules Relating to the Conduct of Members, the Committee on Standards and Privileges does not, at present, have such powers. Standing Order 57(1) only refers to the power to consider any matter relating to the conduct of Members including alleged breaches of the Code of Conduct.
52.Standing Order 57, however, could be amended to enable the Committee on Standards and Privileges to make a report to the Assembly in relation to any failure to abide by the principles detailed in the Code of Conduct and the Guide to the Rules Relating to the Conduct of Members.
53.The Committee considered these matters in considerable detail and concluded that Standing Orders should be amended and the Guide to the Rules Relating to the Conduct of Members consequentially amended to empower the Committee on Standards and Privileges to recommend the exclusion of a Member from proceedings of the Assembly and the withdrawal of a Member's rights and privileges. Such a recommendation could include a suspension of salary for the period of the Member's exclusion.
The impact of the Committee's findings on the Standing Orders of the Assembly and the Guide to the Rules Relating to the Conduct of Members
54.The conclusions and recommendations reached by the Committee, particularly in relation to the sanctions and penalties that can be recommended by the Committee, if accepted by the Assembly, will impact on Standing Orders and the Guide to the Rules Relating to the Conduct of Members.
55.To give effect to the Committee's recommendations on sanctions and penalties, Standing Orders 57 and 64 will require to be amended as detailed below.
56.Amend Standing Order 57 to read as follows:
"(1)There shall be a Standing Committee of the Assembly called the Committee on Standards and Privileges:
(a)to consider specific matters relating to privilege referred to it by the Assembly;
(b)to oversee the work of the Assembly Clerk of Standards; to examine the arrangements for the compilation, maintenance and accessibility of the Register of Members' Interests and any other registers of interests established by the Assembly; and to review from time to time the form and content of those registers;
(c)to consider any matter relating to the conduct of Members including specific complaints in relation to alleged breaches of any code of conduct to which the Assembly has agreed and which have been drawn to the Committee's attention;
(d)to recommend any modifications to the code of conduct mentioned in paragraph (c);
(e)to perform the functions described in Standing Order 64(5) and (6); and
(f)to make a report to the Assembly on any matter falling within this Standing Order.
(2)The Committee shall be appointed at the commencement of every Assembly and shall have powers to send for persons, papers and records that are relevant to its enquiries."
57Add a new Standing Order 64(5) and (6) as follows:
"(5)Where it appears to the Committee on Standards and Privileges that a Member has failed to comply with, or has contravened any provision of this Order, the Committee may make a report to the Assembly.
(6)A report made under paragraph (5) may contain a recommendation that the Member:
(a)be excluded from proceedings of the Assembly for a specified period; and
(b)have his rights and privileges as a Member withdrawn for that period."
58.The above amendments and additions to Standing Orders 57 and 64 result in the following consequential amendments being required to be made to the Guide to the Rules Relating to the Conduct of Members.
Amend paragraph 72 to the Guide to the Rules Relating to the Conduct of Members to read as follows:
"On specific complaints for which the Committee has decided that there is a prima facie case, the Committee may make a report to the Assembly. Where a report deals with any matter mentioned in paragraphs 8 to 64, it may contain a recommendation that the Member be excluded from proceedings of the Assembly for a specified period and have his rights and privileges as a Member withdrawn for that period. It may also report to the Assembly on other complaints if it thinks fit."
59.While recommending the above amendments and additions to the Standing Orders of the Assembly and the Guide to the Rules Relating to the Conduct of Members, the Committee acknowledged that it would be appropriate to enter into discussion with the Committee on Procedures on these amendments and additions.
The appointment of a Commissioner and associated terms and conditions of employment
60.During the course of its Inquiry and particularly when taking evidence from witnesses, the Committee gave consideration to the type of experience, expertise and qualities that it would be useful and appropriate for a Commissioner for Standards to have. The Committee also gave consideration to the process of appointing a Commissioner and some of the terms and conditions associated with such an appointment.
61.On the issue of the experience, expertise and qualities that a Commissioner might have, the Committee did not reach firm conclusions. The Committee was of the view that it would be inappropriate to do so at the time of the Inquiry taking account of the Assembly Commission's responsibility for the recruitment and appointment of Assembly staff. The Committee was, however, interested to hear the views on this matter of many of the witnesses who appeared before the Committee. A number of the witnesses who gave evidence to the Committee expressed the following views:
62.The Committee agreed that, while it had not formed a definitive opinion on the experience, expertise and qualities that a Commissioner for Standards might or should have, the Committee would convey to the Assembly Commission the views that had been expressed to the Committee by witnesses during the course of its Inquiry.
63.The Committee also considered the amount of time that a Commissioner for Standards might or would be required to devote to the investigation of complaints against Assembly Members. Again, no definitive conclusion on this was reached by the Committee.
64.The Committee did, however, agree that it was likely that the Commissioner would be required to work on the investigation of complaints for 3-4 days per month in the first instance. It was acknowledged by the Committee that any arrangement regarding the amount of time required by the Commissioner to undertake his or her investigation of complaints would need to be sufficiently flexible to take account of the need for the Committee on Standards and Privileges to ensure that complaints against Members were investigated and reported on within a reasonable timescale.
65.In relation to supporting the work of the Commissioner for Standards, the Committee agreed that, subject to the views of the Assembly Commission, the Clerk of Standards and his or her staff would provide the administrative and secretarial support required to assist the Commissioner in investigating complaints against Members and reporting his or her findings to the Committee on Standards and Privileges. The Committee did not rule out the possibility of providing the Commissioner with dedicated staff in the future if this proved necessary and appropriate. Any decision to provide such additional staff resources would be subject to the agreement and approval of the Assembly Commission.
66.The Committee did not discuss in detail the remuneration associated with the position of Assembly Commissioner for Standards. Remuneration could be made on the basis of an annual salary, payment on a per diem basis or payment on a per diem basis possibly with an annual retainer. The Committee concluded that, as with other aspects of the appointment and employment of a Commissioner, the details of remuneration for the position should be discussed in more detail with the Assembly Commission.
PROCEEDINGS OF THE COMMITTEE
MINUTES OF PROCEEDINGS OF THE SECOND MEETING
Present:Mr D McClelland (Chairman)
In Attendance:Mr J Torney
(a)The Committee will conduct a formal enquiry into the possible appointment of an Assembly Commissioner for Standards after the summer recess.
(b)The Clerk should begin work on terms of reference, the identification of witnesses and other procedural matters relating to the inquiry.
(c)The procedures in place in Westminster, Edinburgh, Cardiff and Dublin should be considered as well as further afield if appropriate.
PROCEEDINGS OF THE COMMITTEE RELATING
MINUTES OF PROCEEDINGS OF THE THIRD MEETING
Present:Mr D McClelland (Chairman)
Apologies:Sir John Gorman
In Attendance:Mr J Torney
4.The Chairman informed members that since the last meeting of the Committee, the Clerk had met with the Clerk to the Standards and Privileges Committee in the House of Commons, the Parliamentary Commissioner for Standards at Westminster and the Acting Clerk to the Committee on Standards in the Scottish Parliament. The Clerk will provide a written report of these meetings for the next meeting of the Committee.
It was agreed that the Clerk would draft terms of reference for a Committee inquiry into the appointment of an Assembly Commissioner for Standards and an associated press release for consideration by the Committee in advance of the summer recess.
PROCEEDINGS OF THE COMMITTEE RELATING
MINUTES OF PROCEEDINGS OF THE FOURTH MEETING
Present:Mr D McClelland (Chairman)
Apologies:Dr D O'Hagan
In Attendance:Mr J Torney
5.Committee Inquiry into the possible appointment of an Assembly Commissioner for Standards
The Chairman informed members that the Clerk had prepared a report on his meetings with officials who work in support of the House of Commons Standards and Privileges Committee and the Scottish Parliament's Standards Committee. Copies of the report and information on the processes and procedures used by the Westminster Parliamentary Commissioner for Standards to investigate complaints against members had been circulated. Draft terms of reference for the Committee inquiry and a draft press release would be available for consideration at the next meeting of the Committee.
PROCEEDINGS OF THE COMMITTEE RELATING
MINUTES OF PROCEEDINGS OF THE FIFTH MEETING
Present:Mr D McClelland (Chairman)
In Attendance:Mr J Torney
4.Committee Inquiry into the possible appointment of an Assembly Commissioner for Standards
The Committee noted draft terms of reference for the Committee Inquiry into the possible appointment of an Assembly Commissioner for Standards and a draft press release that had been circulated. Following a discussion the Committee resolved that:
(i)The Press Release should be issued.
(ii)A Notice should be placed in provincial papers advising of the Committee's intention to undertake the inquiry in the Autumn and inviting the submission of memoranda by interested organisations and individuals.
(iii)The Clerk will identify witnesses from whom the Committee will take evidence.
(iv)The Clerk will prepare a paper on procedures and practices in other legislatures.
PROCEEDINGS OF THE COMMITTEE RELATING
MINUTES OF PROCEEDINGS OF THE SIXTH MEETING
Present:Mr D McClelland (Chairman)
Apologies:Mr P Berry
In Attendance:Mr J Torney
3.Suspension of normal Committee business
The Committee agreed to suspend normal Committee business while taking evidence on the possible appointment of an Assembly Commissioner for Standards. The Chairman will convene a special meeting to deal with any urgent business.
The following witnesses were called and examined:
Mr Richard Penn, Independent Adviser on Standards to the National Assembly for Wales
Sir Clifford Boulton GCB, Committee on Standards in Public Life
Mr Peter Bottomley MP, House of Commons Committee on Standards and Privileges
PROCEEDINGS OF THE COMMITTEE RELATING
MINUTES OF PROCEEDINGS OF THE SEVENTH MEETING
Present:Mr D McClelland (Chairman)
Apologies:Dr I Adamson
In Attendance:Mr J Torney
3.The following witnesses were called and examined:
Mr Tom Frawley, Northern Ireland Ombudsman
Mr John Mac Quarrie, Deputy Ombudsman
Ms Elizabeth Filkin, Parliamentary Commissioner for Standards
Mr Mike Rumbles, Convener of the Scottish Parliament's Standards Committee
PROCEEDINGS OF THE COMMITTEE RELATING
MINUTES OF PROCEEDINGS OF THE EIGHTH MEETING
Present:Mr D McClelland (Chairman)
Apologies:Mr K Mc Carthy
In Attendance:Mr J Torney
4.Consideration of options
The Committee agreed that the Clerk would circulate papers on the investigation of complaints by parliaments in other countries and the options open to the Committee in considering the possible appointment of a Commissioner for Standards.
6.The following witnesses were called and examined:
Professor Brice Dickson, Chief Commissioner, The Northern Ireland Human Rights Commissioner
Mr David Melding, Chairman of the Standards Committee of the National Assembly for Wales
Dr Maurice Hayes, former Permanent Secretary of the Department of Health and Social Services and former Northern Ireland Ombudsman
PROCEEDINGS OF THE COMMITTEE RELATING
MINUTES OF PROCEEDINGS OF THE NINTH MEETING
Present:Mr D McClelland (Chairman)
Apologies:Mr A Doherty
In Attendance:Mr J Torney
4.The following witnesses were called and examined:
Mr Tony Killeen T.D., Chairperson of the Select Committee on Members' Interests, Dáil Éireann
Mr Brendan Smith T.D., Member of the Select Committee on Members' Interests, Dáil Éireann
PROCEEDINGS OF THE COMMITTEE RELATING
MINUTES OF PROCEEDINGS OF THE TENTH MEETING
Present:Mr D McClelland (Chairman)
Apologies:Mr P McNamee
In Attendance:Mr J Torney
1.Consideration of Options
The Committee discussed key issues relating to their inquiry into the possible appointment of an Assembly Commissioner for Standards and directed the Clerk to draft a report.
PROCEEDINGS OF THE COMMITTEE RELATING
MINUTES OF PROCEEDINGS OF THE ELEVENTH MEETING
Present:Mr D McClelland (Chairman)
In Attendance:Mr J Torney
4.Draft Report (the Possible Appointment of a Commissioner for Standards), proposed by the chairman, having been circulated, is taken as read the first time.
Ordered, That the draft Report be read a second time, paragraph by paragraph.
Front cover of Report read and agreed subject to amendment.
Committee Powers and Membership
Background to the Committees Inquiry
Issues considered by the committee
Conclusions and Recommendations
6.Order Report to be printed
The Committee agreed that the Report be printed.
LIST OF WITNESSES WHO GAVE EVIDENCE
Thursday 14th September 2000 (House of Commons, London)
Friday 22nd September 2000 (Parliament Buildings)
Friday 6th October 2000 (Parliament Buildings)
Thursday 9th November 2000 (Parliament Buildings)
LIST OF MEMORANDA SUBMITTED TO THE COMMITTEE (UNPRINTED)
The Northern Ireland Government Affairs Group (NIGAG)
Mr Laurence Moffat, Crossgar, Co Down
[The above memoranda have been lodged in the Assembly Library]
MINUTES OF EVIDENCE
THURSDAY 14 SEPTEMBER 2000
The Chairperson: Good morning, Mr Penn, and welcome.
Mr Penn: Good morning, I am pleased to be here and pleased to have been asked to be here. I am sorry that I am by myself, but as you may know, there are other meetings in Cardiff today, which mean that none of the full-time staff involved in the Committee on Standards or the members of that Committee could be with me. I understand that other arrangements are being looked at to see if the two Committees could be brought together for a fuller discussion. I am happy to answer any questions you may have and to make a short statement about my background and what I do as an Independent Adviser on Standards.
I am a career local government officer. I spent thirty years in local government in England and Wales, twenty of which I spent as Chief Executive in big Local Authorities, finishing up in the city of Bradford for ten years as its Chief Executive. I left there at the end of 1998 and moved back to South Wales, which is my home thus fulfilling a long standing promise to my wife that we would one day move back to Cardiff.
At that time, the Welsh Assembly was just setting up and there was an advertisement for the post of Independent Adviser on Standards. Given my background in local government and public service, and given too that I had had some involvement over the years on issues around standards, as a Chief Executive is wont to do with elected members, I seemed to fit their needs. I was also available, which was important, and I was prepared to be fairly flexible about my time commitments to the Assembly. I was very keen to play a part in helping the Assembly settle down and develop its own arrangements. I made it clear from the outset that I did not really want to be a "policeman". I did not simply want to be somebody who was "whistled-up" when there was a problem. English local government people talk a lot about building an ethical framework and, as you probably know, this is a key part of the modernising of local government agenda.
I saw my role in the Welsh Assembly as not simply investigating complaints when they occurred, but as helping the Assembly think about issues around standards of conduct. I wanted to help build this ethical framework, which was still rudimentary. I made it clear from the very start at my interview, which, for information, was a public process which involved an interview with the Presiding Officer and the Chairman of the Standards Committee in the Assembly as well as with other Members and officials. Liz Filkin was their Independent Adviser on my appointment. It was a very public and open process. Since I was appointed, however, I have been used as a "policeman" for the most part.
It has been a bit difficult to get involved in helping that broader agenda of building this ethical framework partly because I came in when the ethical framework was already there, although in rudimentary form and it is difficult to have much of an impact on something that already exists. It may take more time than I thought to help the Committee in that part of its work.
My role is very clearly defined: I am the Independent Adviser on Standards and not part of the Administration. I work independently. I do not have any staff. I do a lot of work from home, which is an important factor. I live about three or four miles from the Welsh Assembly, which helps because I can get there easily. I do have an office there (at the Assembly) but I do not have dedicated office support. I rely on the Secretariat which services the Standards Committee for support, and it does prove rather difficult sometimes given the other demands on their time to get the kind of support I need when I need it. I tend to do my own simple things like writing letters and producing reports on my PC either at home or in the office. I wish it were different and that I had more support, but that is the way things are. My prime political relationship is with the Presiding Officer, Lord Thomas, but my prime relationship in the organisation apart from him is with the Committee on Standards and its Chairman, David Melding.
My role is very much centred around helping the Assembly and the Committee on Standards to develop the ethical framework for elected members. If there are complaints about the organisation and the way it performs, they are dealt with through the Civil Service arrangements. My investigative role is restricted to complaints against the sixty Assembly Members. We have a very defined area in which I operate. If there is any hint of crime in any complaint, that matter is very quickly referred to the police.
We have a contact in the Welsh Police Service to whom we refer any allegations or complaints about a crime. Our contact then operates on behalf of police forces in Wales. The complaints must be specific and must not be anonymous. We do not deal with anonymous complaints. Whoever is making a complaint must be prepared to have his/her name eventually made known to the person about whom he/she is complaining, and probably to the public at some point. They must be written complaints. We do not accept a telephone call or somebody stopping somebody in the street to complain. A complaint has to be formal.
What do we mean by "written"? Is an e-mail a written complaint? We have not had to deal with that yet. We must be sure that the complaint falls within the Committee's jurisdiction. We have already had to deal with one incident by concluding that it was not within the Committee's jurisdiction.
When I was appointed, the expectation was that most complaints would relate either to the registration of or declaration of interests or to the non-registration of or non-declaration of interests. This was a high profile issue because many of the Assembly Members are from local government in Wales, and the registration and declaration of interests is a big issue in Welsh and English local government.
In the event, most complaints have not been about either the registration or the declaration of interests. They have been about the "behaviour" of Assembly Members: allegations that they have misbehaved or have abused or misused Welsh Assembly resources. That has been the nature of the complaints, rather than the declaration or registration of interests.
The Chairperson: Thank you very much for an excellent introduction. Members now have an opportunity to ask questions.
Mr McNamee: How much time do you have to attend meetings of the Committee on Standards? What sort of matters are you asked to investigate concerning Members' interests and behaviour? What other issues do you have to discuss with the Committee on Standards?
Mr Penn: The arrangements for my appointment were very simple. I need to be fairly flexible and occasionally have to be there more than I think necessary. I am paid a retainer by the Assembly - I am paid £3,000 a year to be available. I also get £300 a day, and the appointment was based on the assumption that I would be required to work for one-and-a-half days a month or so.
In practice, it has turned out to be rather more than that. It is not about attending meetings of the Committee - the Committee meets regularly only every three or four months.
If it is dealing with a complaint, the Committee meets as necessary, but I have attended no more than four Committee meetings since being appointed in March this year. All of them were regular, scheduled meetings of the Committee.
Although I go to Committee meetings, it is not a major part of my work. In practice, I work about one day a week. That can involve going into the office to see what issues are around, speaking on the phone with the staff from the Secretariat, or working at home or in the Assembly reading documents, producing letters and reports. Over my first six months, I worked about four days a month, and I have only gone to meetings of the Standards Committee four times.
I shall outline the process for dealing with complaints. I am dealing with a case at the moment where somebody has complained about the use of Assembly notepaper, envelopes and postage by a Member for political rather than constituency purposes. A formal letter of complaint was sent to the Presiding Officer.
Complaints either go to the Presiding Officer or to the Secretariat. Very occasionally, they come directly to me because there is increasing knowledge in the organisation and outside that I exist, and in future I might get more complaints directly. No matter how complaints arrive, they must go, at some point, to the Presiding Officer. As he is a high profile figure, complaints often go directly to him anyway, particularly if they are from politicians. In theory, the Presiding Officer immediately passes the complaint to the Secretariat who immediately refer it to me - it is a bit of a "paper chase". As the Independent Adviser, I ask a number of questions. Is it anonymous? Is it a complaint? Is it, for example, asking for information or advice? Is it a criminal matter? Is it within the jurisdiction of the Committee? I may talk to other members of the Assembly staff to get advice/views.
When I form a view based on these "tests", I write a brief two-page report. That goes to the Presiding Officer with the background documentation, stating that: there is a complaint; I have checked it out; it is within the jurisdiction; it is not to do with a criminal matter; and the complaint should now be referred to the Committee.
Occasionally, my report may say that I do not think that it is a matter for the Committee, that it is something for the Presiding Officer to take up with the Member concerned.
There is an option at that stage, (in theory at least) for the Presiding Officer to make a decision not to refer it to the Committee. However, under the process that the Committee has adopted, there is no role for the Presiding Officer to exercise judgement at this stage. If my advice is clear and I have made all my checks and recommendations, the Presiding Officer will refer the matter to the Standards Committee unless there is good cause not to, which is something he must consider carefully. At that point it becomes part of the Committee process.
The Chairperson: That was very helpful.
Mr McNamee: Is it correct that a complaint does not come before the Committee until an investigation has been carried out and assessed and a recommendation made to the Presiding Officer?
Mr Penn: That is a very good question. Under the original process (which I inherited) I became involved once the Secretariat had completed the work I am now doing and it was decided that the matter was something to be dealt with by the Committee. I then drew up a report, which was passed to the Committee. It was not a very effective process, as became clear on the occasion where an allegation was made about the misuse of Assembly resources (a matter of public record).
An Assembly Member, who was very opposed to the abolition of Section 28 of the Local Government Act that has just gone through Parliament, sponsored an exhibition in the Assembly to demonstrate some of the dangers of the abolition of Section 28. A complaint was made that he was using Assembly resources to pursue a political rather than a constituency or Assembly agenda. My report, which was made under the old process, caused the Committee some embarrassment because the Member concerned was incensed about it. It had got into the public domain, and the Committee decided that the matter was not within its jurisdiction. My recommendation that there had been an abuse of Assembly resources was not upheld. This caused a lot of organisational embarrassment because my investigation on which the report was based was incomplete. It was partial. In theory, the Committee should have been given that first report and been able to agree that there appeared to have been an abuse of Assembly resources. It should then have ordered me to carry out a full report and talk to the Member concerned and to others. It was these "two bites of the cherry" that caused the embarrassment.
As a result of that experience (which is on the public record) the Committee adopted, at its July meeting, a different process under which I carry out a full investigation after I have recommended to the Presiding Officer on the basis of my initial consideration that a full inquiry is needed. The Committee does not have a role in that. At the next stage in the process, the Committee will simply be told that there is an alleged abuse and that I will be carrying out a full investigation. The Member concerned will be told about this, and I will then conduct the investigation. It is only when I have completed it, and drawn up a full report on the circumstances, and when a balanced view can be reached, that the Committee will consider my findings.
On the basis of that first, rather difficult experience, we changed the process fundamentally to take us to where we are now. The Committee was previously involved at the preliminary stage and when the full report had been completed. Now it is involved only when the full report is complete. It is, however, advised that a complaint has been made and told about the broad nature of that complaint, but it has no role to play until it receives the full report from me.
Mr O'Connor: Mr Penn, you said your initial input is about four days per month. You specifically deal with Assembly Members of which there are 60 in the Welsh Assembly and 108 in the Northern Ireland Assembly. Is it fair to assume that the latter would take double the amount of time? You mentioned that you only accept specific written complaints. Do you think that you will receive many written complaints? Will there be malicious complaints, and is there a procedure for dealing with them before they are sent to the Committee?
You said that you did not want to be used as a policeman, but effectively that is how you are being used. Would you have the full support of the Assembly for legal advice if you were to deal with something like that? Can you get legal advice on particular issues or to help investigate a particular issue? Are the resources of the Assembly available to you in that context?
On the subject of making recommendations, you are not actually making a report; you are making a recommendation on a report. If your recommendations were not accepted by the Committee, as an independent person would you then feel obliged to publish the recommendations you made or highlight the fact that the Committee had not accepted them. Would you feel that your position as Commissioner would be undermined if the Committee rejected any of your recommendations?
Finally, you mentioned that your main point of contact is the Presiding Officer. If an allegation were made against the Presiding Officer, would there be a procedure to deal with that? Would the Chairman of the Committee or a Deputy Presiding Officer deal with that?
Mr Penn: Let me go back to your first question about amount of time. Liz Filkin deals with a much bigger Parliament of over 600 Members and has a much bigger office. She is full-time and has a full-time secretariat. It is a big operation. The Welsh Assembly is smaller. Its range of responsibilities and functions is very much smaller than those of Parliament. It is not just the number of Members; it is what they do. I do not know enough about your situation to say whether the roles and responsibilities of Northern Ireland Members are the same as those of the Welsh Assembly Members. However, given the greater number of Members in the Northern Ireland Assembly, I am sure the workload will be bigger.
All the complaints, except one, that have been made in the past against Assembly Members have come from other politicians. These are not just from Assembly Members but from politicians outside the Assembly - local authority members and Members of Parliament. It is probably for essentially political reasons that politicians have been complaining about Assembly Members. I am now dealing with two complaints which have been made by constituents. I understand that when I get back to the Assembly tomorrow there will be a third complaint from somebody outside of the Assembly.
The extent to which you make it known to the people of Northern Ireland that another opportunity exists to complain is a big issue.
At the moment few people know I exist. We produced a pamphlet recently that explains the procedures for complaining about Assembly Members. It has not yet been issued, but it is planned to distribute it via public libraries and to place it on a website so that it is accessible to ordinary people.
Confusion exists about the types of complaints against an Assembly Member: is a complaint because of something he has done personally, which is a breach of the Code of Conduct; is it because of the registration or declaration of an interest; or is it because he is a poor Assembly Member who has performed poorly - perhaps as the Chairman of a Committee? It is not my role to investigate the performance of a Member of the Assembly; there are other mechanisms for that - ballot boxes and party whips, et cetera. My role solely concerns complaints about Members breaching Codes of Conduct and not declaring an interest. It is confined to their behaviour and not to their performance. That responsibility belongs to someone else.
The point, in the current process, at which I make a recommendation is after a desktop exercise, which involves examination of the complaint and a check on whether it is within jurisdiction. I decide whether, on the face of it and without conducting a full investigation, there appears to have been a breach of the Code of Conduct or a non-registration/declaration of interest. That is the point at which I make a recommendation to the Presiding Officer that I should conduct a full investigation and that the matter should be referred to the Standards Committee.
When I have completed my full report, I make no recommendation about action to be taken. I may find, based on the facts, that there has been a breach of the Code of Conduct or that a Member has failed to register or declare an interest, but I do not make a recommendation about the appropriate action. It is for the Committee to consider my report and decide, as a result of that report, what should happen next. At that point it refers the matter with its recommendation to the Assembly. It is worth mentioning that sanctions by the Assembly against Members are very limited and relate only to non- criminal matters such as the non-declaration or registering of interest, although it can exclude Members from the Assembly for serious offences of non-declaration or non-registering of interests.
No sanctions have yet been agreed by the Assembly for dealing with a matter of behaviour where, for instance, a Member has abused the Assembly's resources in a way that was found to be in breach of the Code of Conduct. Perhaps, in the course of time, part of building an ethical framework will include the formulation of sanctions by the Assembly, but, at present, "naming and shaming" suffices. The matter is in the public domain, and the press in Wales - and I am sure it is the same in Northern Ireland - would no doubt be more than willing to carry a story about a Member who had been criticised by the Assembly for a breach of the Code of Conduct.
Mr O'Connor: Would it be helpful to prepare a list of sanctions imposed by other institutions such as the Irish or Scottish Parliaments? If I have a bad hair day and am cheeky with the security guard at the door, that is not acceptable conduct. For me not to be reprimanded would be belittling to the person who I had abused, and so there must be some type of agreed sanction. The problem is with formulating a scale of sanctions that apply depending upon what the Member has done: reprimand, public naming, et cetera. Would you like to have a role in formulating such a scale, bearing in mind your earlier statement about not wishing to act as a policeman?
Mr Penn: It would be invidious of me to recommend a sanction off the top of my head. We might look at other institutions. For example, in local government in England there is a new process for dealing with complaints against elected members - although it is not fully implemented. A National Standards Board is being established. An ethical standards officer will investigate allegations against members of Councils. There will be an agreed set of sanctions, to which legislative effect has been given, against Councillors who break the national Code of Conduct. There will be an established framework of offences and sanctions.
The National Assembly for Wales does not have that framework. The initial preoccupation was about not registering or declaring interests, and sanctions for that were agreed. For other types of behaviour - and I agree it would not be appropriate for an Assembly Member to abuse a member of staff or do a whole range of unacceptable things -there are no agreed sanctions within our framework.
I dealt with a complaint about an Assembly Member who had been abusive and threatening towards a member of staff. The complaint was eventually withdrawn before it reached the Committee. However, we considered what sanctions might be appropriate, apart from naming and shaming, because if the report had gone into the public domain, the press would have picked it up and it would have been headline news in the 'Western Mail'. It was felt that the best sanction would lie within the political system. That would involve a party Whip deciding what action should be taken, for example taking the member off a Committee.
This is a big issue, and a lot can be learned from best practice about the type of sanctions that might be appropriate for different offences. I would like to be involved in that area, given the nature of my work, but it would have been helpful had I been involved in the process at an earlier stage. I would have known, based on my experience in local government, that many breaches are not in the area of non-registration or non-declaration of interests - they concern behaviour. Some thought should have been given to sanctions at that stage.
I must make it clear that I am not a solicitor. I was not recruited because I have a legal background. There is another person involved in our process. He is the Independent Legal Adviser to the Assembly, and he often helps me to look at the legal aspects of complaints.
Mr Beggs: I would like to tease out some additional information. You said that you do not have sufficient secretarial support and that you frequently type your own letters. What secretarial support does the Committee on Standards of Conduct in the Welsh Assembly receive? You also said that you presented your interim report to the Presiding Officer rather than to the Committee, and you alluded to a problem you had in a previous case when you delivered your report to the Committee. Would you explain why there is a problem with bringing an interim report to the Committee and asking for direction? What is the advantage of one route rather than the other?
Mr Penn: It is not a complaint about the lack of secretarial support, although we can always do with more of it. When I was in local government I always wanted more - that is what bureaucrats want. I have got reasonable keyboard skills and can use a PC and send e-mails and look after myself, but it would be different for somebody who did not have those skills. I am making a point here about job descriptions and so on; for example, if you are going to have somebody working at home, he needs to know what he is doing and how to write reports, et cetera.
The Committee on Standards of Conduct has a Clerk and Deputy Clerk. The previous Clerk Barbara Wilson has moved to another post, and Julie Grant, who was the Deputy Clerk, has now been appointed Clerk to the Committee. Although the Assembly has only been going a year, a restructuring process is being carried out, and there will be new administrative arrangements and support for members.
Mr Beggs: What number of staff are involved?
Mr Penn: There are three people who, inter alia, deal with the Standards Committee - the Clerk, the Deputy Clerk and an administrative officer - one of whom works particularly closely with its Chairman, David Melding. He is a member of a political group and has other Assembly responsibilities. The Committee on Standards of Conduct meets regularly but infrequently once every four months.
The Committee looks at issues such as the declaration of interests and the registering of interests; it has a regular report on those issues. It looks at other issues related to standards and conduct, and, unless it so happens that there is not a convenient meeting at which a complaint can be discussed, it deals with complaints at its normal meetings. I think that we have had to call a special meeting of the Committee to hear a complaint on one occasion only.
I will go back to the point about the two-stage process. When I was appointed I inherited a two-stage process. That process required the Committee to receive a preliminary report from me based on a very limited exercise that looked at, on the face of it, whether there was a case to answer. It did not entail my speaking to the Member or the complainant or doing anything other than the desktop exercise. With that very limited resource and backing, I went to the Committee and said "Here is the complaint; here is what I can make of it - yes, it seems, on the face of it, that there has been a breach of the Code of Conduct." The Committee then had to debate it in the public domain at which point the Member was told of the complaint.
In a sense it was dealing with a complaint there and then. It was not in reality going to move on to the second stage which would involve a proper investigation by looking at all the facts, interviewing the Assembly Member and the complainant, taking a balanced view and saying to the Committee "On all the evidence I have been able to access, I am certain that there has been a breach or not."
That is why we have moved from a two-stage system to a one-stage system where I do a very quick assessment of the case. If it does not look like a breach, it gets "knocked out" at that stage. If it does look like a breach, it goes to the Presiding Officer who refers it to the Committee which waits for me to complete a full investigation before it discusses the complaint. Therefore it is a one-stage process.
Mr Beggs: You provide advice to the Assembly, the Presiding Officer and the Committee on Standards and Conduct, and you conduct the investigation on Members, if it is appropriate. Do you see any conflict of interest in all of that?
Mr Penn: I do not see a conflict of interest. I see that, given the limited time that I am personally able to put into it, I could not do much more than I am presently doing. I am there about one day a week - with my other commitments I could not do more - and in the time that I have available and the Assembly wants me to work, it is as much as I can do to handle the complaints that I have. I do not find much opportunity to do other things. In a sense the Assembly and the Committee are not ready yet for that other broader, more interesting work on building the ethical framework. It is not a conflict of interest; the resources that I have personally, and the requirements the Assembly has of me, focus me on this handling of complaints.
I had approximately six complaints in six months, and that number has now risen to nine. I am currently dealing with three complaints, so in the one day a week that the Assembly wants me to work I have as much work as I can handle.
Dr Adamson: What powers do you have to make Members co-operate with you?
Mr Penn: I have not tested this but I have the power of the organisation behind me. I was appointed by the Assembly and I am seen to be independent. I am not part of the organisation, but I have the power of the Presiding Officer and the Standards and Conduct Committee behind me. Perhaps it is rather late in the day but I am currently seeing all the party group leaders, and I think that that is important. I know some of them quite well because of my network. However, I have not got a very high profile within party organisations so I have to make a deliberate attempt to see them and talk to them. It is important that they know what I am doing, who I am and where I sit. Then I can rely on them - and they are political organisations - for their support if I run into difficulties.
There has only been one occasion so far when I have had to interview an Assembly Member who has been complained about and I found no difficulty. If there had been a difficulty and the Member had resisted and said that he was not prepared to discuss the matter, I would have gone to his party group leader. I would have stressed to the leader that this was a formal complaint and that he must instruct his party colleague to work with me on it. However, I do not have any formal powers.
Dr Adamson: Can you call for relevant papers?
Mr Penn: Yes, I can do that. I do not know whether you are aware of what is happening in local government in England. The ethical standards officers who will investigate complaints against councillors have extensive legal powers to call for evidence and to interview people. It is an interesting model but some people think that it is very heavy-handed. It is yet to be tested because it is not in operation, but that is what the new process for investigating complaints against members of the English local authorities will entail. These ethical standards officers have extensive powers akin to those of the police.
Dr Adamson: I know that you have not had a lot of experience yet, but can Members be represented by solicitors?
Mr Penn: On the aforementioned occasion that led to our changing the process, the Assembly Member attending the Committee meeting was accompanied, not represented. Our new process does provide for an Assembly Member to attend the Standards and Conduct Committee when the case is being discussed, to make representations or to have representations made on his behalf. It does not specifically provide for the person who accompanies the Member to be a solicitor. In the case that I referred to it was not a solicitor who accompanied the Assembly Member.
Dr Adamson: Does the Assembly Member have to be at the Standards and Conduct Committee or is it sufficient for his party Whip to be there?
Mr Penn: The Assembly Member is invited to attend, not compelled. However, I think that most Members would want to be there and to make representation if they had a complaint made against them. The Committee's assumption is that the Member would want to be there and that he would also wish to be accompanied. The Member may want someone to speak on his behalf but he does not have to attend. It is not compulsory.
Mr A Doherty: I take it that there are very few restrictions on who can make a complaint either to the Presiding Officer or to the Committee. Nobody makes a complaint directly to you. Obviously a member of the public can make a complaint. What is the position with regard to a member of the Assembly secretariat who wishes to make a complaint against a Member?
Mr Penn: On your first point, there is no restriction on who can make a complaint against an Assembly Member - indeed, the complaint which awaits me is from outside Wales. Somebody who lives outside Wales has made a complaint about an Assembly Member about an issue to do with a member of his family. That is within the jurisdiction. So as long as it is not anonymous, as long as it is written in some form, anyone can make a complaint. It could go to the Secretariat, it could come to me, it could go anywhere. The process requires that wherever it "lands", at some point it goes to the Presiding Officer, who then immediately gives it back to the Secretariat to put it into the process.
If the complaint were by a member of staff against a Member of the Assembly, that would be dealt with by the Committee, providing it was within the Committee's jurisdiction. In other words, if a member of the Secretariat or a member of staff complained about an Assembly Member's breaching the Code of Conduct or not declaring an interest, that would come to the Committee. If it were about not performing properly as a Chairman of a Committee, that would be dealt with in a different way.
It is worth looking at the Code of Conduct for a minute. We have a Code of Conduct like most public organisations based on the Nolan principles of public life, and so on. The part of the Code of Conduct which gives guidance on the principles - I am not sure if you have seen it - is fairly wide ranging. For example, an allegation that a Member has misused Assembly resources would fit into the Code of Conduct which is within the Committee's jurisdiction. A Member's abusing a member of staff or behaving outrageously would be seen potentially as a breach of the Code of Conduct and therefore within the Committee's jurisdiction.
The Committee's jurisdiction is quite wide- ranging, but it is almost inevitably about behaviour, not performance. There is a grey area somewhere there between the two, but it is about a Member's personal behaviour rather than about his performance as an Assembly Member.
Mr A Doherty: Most of the grey areas seem to be with behaviour rather than breaches of the Register of Members' Interests or abuse of resources, and so on. That is where we would find most of our difficulties. Our Code of Conduct makes some general points about Members never doing anything that would bring the Assembly into disrepute - for example, with regard to the financial aspects, which would probably be the simpler one to deal with. We have to deal with behaviour and with the relationships between Members and between the parties either within the House or in public, and sometimes the public things are the most difficult. We do not really have many clear examples of what to do in such cases. You have suggested that if we ask a Member to appear before the Committee to answer a complaint he can refuse. You are left then with the question of what to do. At the moment naming and shaming seems to be the only thing that can be done.
I presume there is a need for an Assembly to draw up fairly clear guidelines on that. Do you have a role in advising it?
Mr Penn: I hope it will come to it, although, to be quite honest, it is not at the top of the agenda. At some point the Assembly must deal with it. There are very clear sanctions on the interest issue, but none concerning behaviour.
The declaration of interests is extremely simple, almost a matter of saying "yes" or "no". I have only once dealt with a complaint about an alleged non-declaration of interest. It was more of a query than a complaint, asking whether the Member concerned had declared an interest at the correct juncture and at the right meetings. The answer on this occasion was "yes", and the complaint did not go anywhere near the Committee, the potential complainant simply being given an answer to his query. His line was that, if the Member had not declared an interest, he had a complaint. However, he was told that the Member had declared his interests on every occasion necessary and shown the public record to prove it, easily nullifying his complaint. If, on the other hand, the Member had not declared an interest, it would also have been easy, for there are sanctions for such matters.
The Chairperson: We must move on.
Mr A Doherty: A great deal is said these days about open government and people's need to know what is happening. Some of our Committees have already been criticised for a lack of open meetings. Given the fact that Standards and Privileges Committees often examine complaints which may eventually lead to police action, are they in a separate category from the rest, or should every meeting be as open as possible, no matter what it deals with? In this way, it might act as an additional sanction alongside our initial encouragement for Members to behave.
Mr Penn: The regular meetings of the Standards Committee are open. It is a Standing Committee of the Assembly, and all its meetings are open to the public. The agendas and reports appear on the Assembly Intranet and can be accessed by anyone.
On only two occasions since the Assembly started has a complaint been heard. The Committee meetings were held in private for these items, but a report of the proceedings was made to the Assembly and published on the Internet. In one case the four-page report details the complaint in full. The Member is not named, but everyone knew his identity from the 'Western Mail'. Had the complaint been upheld, the process would have been the same, going to the Assembly and being published. The Committee meets in private when it hears a complaint, but the report and any sanctions imposed by the Assembly are public.
If at any stage, either at the beginning of or during the process, there was any suggestion that the matter was a criminal one, my investigation would stop, and the complaint would be handed to the police. The Committee will not hear issues with criminal elements. They might emerge by accident during a hearing, but that is unlikely, as they would have been picked up at an earlier stage.
The Chairperson: I should like to develop that slightly. Can you comment on the vexed question of your relationship with the press - and to a certain degree that of the Committee - and specifically on the issue of press reports about a Member's conduct?
Mr Penn: We are fairly relaxed about this. The 'Western Mail', our national daily paper, is fascinated by the Assembly and carries many stories about it in news reports, opinion columns and diary pages. There is a great deal of Assembly coverage, and we are very open with the press. To be honest, I have not yet had to speak to it about a case, but I am allowed to do so if I am approached. If there is something in the press which we feel is wrong, it is corrected, by either the secretariat or me. The only real issue concerned the case to which I return so often, which brought about a change in the process. The Member complained against used the press to have a go at the Standards Committee. The Chairman of the Committee was very open about this, speaking to journalists and writing letters to correct mistakes.
The Chairperson: Would you not respond to an unsubstantiated report in the press against a Member?
Mr Penn: We have an understanding that we would not deal with that as a complaint, that we would not simply look at something in the press.
The Chairperson: Let me just tease that out. If someone came to you with a press report from a Sunday newspaper and said "There is the evidence. I want that investigated", how would you react? If you were given a simple cutting from a newspaper saying that Mr X had misused -
Mr Penn: If somebody sent a letter to the Presiding Officer saying "I have seen this in 'The Sunday Times'. It names an Assembly Member, and I believe, on the basis of what I have read, that there is a breach of conduct." Yes, we would investigate that, but if an anonymous article appeared in a newspaper, and we happened to pick it up, I think we would not treat it as a complaint.
Mr McNamee: One question which often crops up is who polices the police. Who oversees the work of the Independent Adviser? Who ensures that the Independent Adviser does his or her work in a proper fashion? Is the Independent Adviser answerable to anybody?
Mr Penn: I am not line-managed by anyone - that is clear. It is an unusual relationship. I work with the Clerk to the Standards Committee and to some extent with the Clerk to the Assembly but as colleagues. I suppose that there is a sort of an accountability to the Presiding Officer, whom I meet regularly but infrequently - there is a difference. I probably see the Presiding Officer about once a month and correspond with him more than that, but no one supervises my work. It is about professional credibility and reputation, I suppose. It is an untested relationship.
Going back to the matter I keep on referring to, I was very hurt by that incident. It was dealt with under a process about which I had already expressed views, which I thought was going to cause problems, and, by implication, I got a bit of a mauling for the "half-baked" report that went to the Committee and which had not been produced on the basis of a really good investigation. I felt somewhat anxious about that when I put the report to the Committee, and I felt even more hurt and a bit mauled by the process, but it was a learning curve. We learnt a great deal from that.
I do not know if any of you have seen the report that went to the Committee following that. It is a public document, and it lead to the changes in the process with which I feel much more confident now. If I were to make a real foul-up and get something totally wrong, if I were to believe somebody who was clearly lying and, on the basis of that, produce a report which was later found to be incorrect, obviously that would be a very serious matter, but I am not sure who would discipline me for that. I would probably not have my contract renewed.
The Chairperson: I wanted to ask you about that. Do you have a three-year contract?
Mr Penn: Yes. It is for three years.
The Chairperson: Who reviews it? Is it the Committee or the Commission?
Mr Penn: It is not clear. It will probably be a mixture of the Presiding Officer, the Chairman of the Committee and the Clerk to the Assembly.
Mr O'Connor: You said that you knew many Assembly Members personally through other business. If, for example, you saw an Assembly Member stopping traffic as part of the fuel protest, and you felt that that was inappropriate behaviour, could you initiate a complaint yourself, or would you pass it onto the Presiding Officer to decide whether it was appropriate or not?
Secondly, did you have to declare your interests when you applied for the position, for example, membership of the Round Table or Lion's Club. You mentioned that you knew Assembly Members from other places - perhaps the same club, the same lodge or whatever? There might be a need to keep everything as straight down the middle as possible.
Mr Penn: As a constituent I can make a complaint or as a member of the public. Given my role, I would probably do it another way. I would speak to the Presiding Officer, say that something had come to my attention and ask how it could be best handled. I might get my wife who is also a constituent to make the complaint. It would be difficult for me, but I would attempt to find a sensible way through it. It is a different matter if an Assembly Member is threatening or abusive to me in my role. That refers back to the point about the party system and talking to the party group leaders.
I was asked during the recruitment process if I had any interests, particularly Freemasonry, because membership of that is a big issue on the mainland. I was able to say that I was not a member of the Freemasons. If I had said that I was, I am not sure what would have happened. I was a member of a political party, and I felt, on my own initiative, that when I was appointed it was appropriate to resign from that party. I was not an active member, but simply a member of the party like many others. I knew that it could potentially compromise my independent role. Therefore I resigned immediately from that political party.
The Chairperson: May I conclude by thanking you for a very useful morning. Ours is a new Assembly, a new Committee and a new step forward. Our intention is to get it right from the beginning and gain experience from meeting as many people as possible in this area.
There are many more questions that people want to ask, and when we go home more questions will crop up - we may come back to you later. On behalf of the Committee and myself, I thank you for giving up your time and for coming all the way from Wales.
Mr Penn: Thank you. This has been a very interesting experience, because it has raised issues that I had not thought of, and these are always worth thinking about. If there is any documentation that you need as a result of this discussion, we can easily provide it. I have a copy of the report on the case we discussed, which led to the change in our processes. I understand that there is going to be a further meeting with your Committee, perhaps in Belfast. I would be very happy to be a part of that delegation if the opportunity is offered by the Committee.
Finally, if I can be of any help in the process of appointing your Independent Adviser, if it would be helpful to have me involved as an assessor, I would be happy to be involved. I have learned some important lessons and could usefully pass those on.
MINUTES OF EVIDENCE
Sir Clifford Boulton)Committee on Standards
Mr P Aylett)in Public Life
The Chairperson: Thank you for coming along this morning.
Sir Clifford Boulton: Professor Brown regrets that she is unable to be with us today. I am sure that she will welcome the opportunity, at some time, to talk about her knowledge and understanding of the Scottish position.
The Chairperson: We are a new Committee in a new Assembly, and we are trying to get to grips with all the problems that we face. We are very grateful to you for coming along to advise us.
The first report of your Committee led to the appointment of the Parliamentary Commissioner for Standards. How important is it to have independent means for investigating complaints against Members?
Sir Clifford Boulton: I will give a fairly full answer to this question, because it is fundamental to your terms of reference. The Committee's position is that a body of the standing of a Parliament or parliamentary Assembly should be able to exercise self-discipline. Other things being equal, that would be ideal. Apart from the fact that it is not good to appear to need some outside custodian or nanny, it is good discipline for Members to feel that it is their responsibility and that they are involved in maintaining the good name of their Assembly and its standing in society. Politicians or Assembly Members involved in any kind of Parliament are best able to evaluate the gravity of offences. From their experience of parliamentary life, they know the difference between a small, inadvertent slip and something that is deliberate, damaging and cannot be ignored.
One starts by hoping that the process will be self-contained, but one must remember the situation that pertained six years ago when the Nolan committee was set up. The public's attitude to politicians and to Parliament was slipping from critical to cynical. Unfortunately, there was a batch of cases, although probably not more than six Members had behaved in a way that let the whole of the House down. We had to do something to shift the situation. There had been a fully operational system of self-discipline and, of course, Parliament was warmly attached to the privilege of being able to look after its own discipline. We felt that something had to be done to shift that, without breaking the fundamental obligation of the House to take responsibility for self- discipline.
We recommended the appointment of an officer who would have a degree of independence. The key was the ability to publish, without censorship, that officer's frank opinion of any complaint that was made and, therefore, end accusations of cover-up.
That is what we recommended, and it has been adopted. Someone receives the complaints, sieves them, assesses them and makes a frank appraisal that is published. After that it is over to the Committee to make further investigations and recommendations as they consider necessary, and it is up to the whole House to take responsibility for what subsequently happens. It retains the self-discipline and does not produce an outside complaints authority to take that responsibility out of the hands of the House. It leaves it where it should be, but it does remove the accusation that the whole thing is so cosy and in-house that it cannot be trusted. That is why we made that recommendation. The Committee would not automatically recommend a Commissioner in all circumstances.
We would invite any Assembly faced with this problem to ask themselves whether there is a need for public reassurance of the kind that I have just given or whether one should start with an in-house system and see how it goes. That is the kind of decision that you have been presented with.
Mr A Doherty: It is good to know that a body as venerable as this Parliament is not all-knowing and does not have all of its problems solved.
We are on a very steep learning curve and will benefit greatly from the experience you and other Parliaments have. Our Committee would obviously need to adopt procedures and practices in line with the Code of Conduct and decide on a possible series of sanctions that it may invoke against a Member if a complaint is upheld. Would an Independent Adviser or commissioner have the right, or obligation, to intervene if he felt that this Committee was adopting procedures or practice that perhaps were not as wise or as correct as they should be? Could an Independent Adviser tell us that we are not doing this right, that we should do something else, or could he advise on a series of sanctions that would be effective in various circumstances?
Sir Clifford Boulton: The Commissioner should feel able to give an assessment of the gravity of what has occurred, which would give an indication of the degree of appropriateness of a penalty. I hope that a Commissioner could begin to weed out trivial or nearly tit-for-tat complaints, which are the sort of things that undermine the respectability of a process. The Commissioner should not get involved in the setting of appropriate recommended penalties. The Committee ought to feel that that is their job, in that they will bring their own parliamentary knowledge, expertise and responsibility to bear in putting forward a recommendation to the entire House.
Dr Adamson: To date, all our meetings have been private, except when taking evidence as part of a formal inquiry, like today. Do you think our Committee meetings should routinely be held in private?
Sir Clifford Boulton: I suggest that when deliberating on a complaint it is appropriate always to sit in private. You need the confidentiality of a jury room when you are considering this kind of situation. All complaints are deeply serious for the Member concerned, as there is nothing trivial about having a complaint brought into the Assembly's process. The actual process of considering it and thinking about it needs the value of privacy. You are doing a job on behalf of the whole House. The most valuable thing that a Committee of this kind can do, in my opinion, is to produce unanimous reports. The moment any atmosphere of retribution and tit-for-tat creeps in to this kind of system, you are opening the door to those who will say that you cannot be trusted to bring a quasi-judicial view.
I think you need the privacy of deliberating amongst yourselves in order to produce a unanimous report. It would then become difficult for the whole Assembly to reject this.
The Chairperson: May I add a supplementary question concerning the confidentiality of such meetings? Do you have a problem with Members going outside with information?
Sir Clifford Boulton: It is regarded as a serious offence for a Member to breach the confidentiality of a deliberative meeting.
The Chairman: Do you have sanctions?
Sir Clifford Boulton: By breaking those rules the Member would be in contempt of the House.
Mr Beggs: We appreciate your experience, and I hope we can learn from it. Do you have a view on whether complaints should be directed straight to the Committee or to the Commissioner for Standards? Immediately prior to speaking to you, we spoke to Mr Richard Penn from the Welsh Assembly, who advised us that they had recently changed their system of reporting. The Committee does not receive intermediate reports, and information would be brought to the Committee at a more deliberative stage. What advice can you give us from your experience so far?
Sir Clifford Boulton: I gather you will be taking evidence from Ms Filkin and from the House Authorities. I can give you an answer of my own - it is not what is called best evidence, because in the current proceeding you will be able to get evidence about this. In my view, it is helpful if there is one recipient of complaints in the first instance, because there is a sieving job to be done from the beginning. All complaints should go direct to a Commissioner. That is assuming that you are going to appoint one - if not, complaints would go to the Clerk of Standards. As there is a filtering job to be done, I do not see why the Commissioner should not do this. It sounded as though the Commissioner in Wales had almost a dual responsibility - first to the Presiding Officer of the whole Assembly and secondly to the Committee. Our relationship is directly with the Committee and reflects what the Nolan Committee envisaged - that any complaint placed by the public or by a Member would go straight to the Commissioner, who would then start to assess it.
It is very important that this procedure be maintained. You do not want to bring the parliamentarians and the politicians in, because you would be open to criticism that the process is being strangled in the initial stages. The Commissioner should be free to get on with things.
Mr O'Connor: My question is about the Code of Conduct. In the case of the Welsh Assembly, Mr Penn mentioned that it was quite clear when breaches have been made in relation to Members' Interests, or non-declaration of Interests. I would like to take that a stage further and talk about Members' behaviour. If, for example, they abused a member of staff, or wrote bounced cheques to pay for goods, that would be inappropriate behaviour. Footballers get fined for bringing their game into disrepute. For people to have proper confidence in a parliamentary democracy, surely those involved in the system need to be almost whiter than white and need to maintain high standards of behaviour at all times?
What sanctions could be used against a Member who was found guilty of inappropriate behaviour towards a member of staff? Would there be a sliding scale of severity?
Sir Clifford Boulton: That is very subjective, but I am sure most Codes of Conduct expect or require a Member not to behave in a way that damages the good standing of the Assembly. I have no doubt that conduct which damages the standing of the Assembly would be covered in your own Code of Conduct. It is important that the Commissioner distinguishes between conduct which may offend public morality and so damage the Assembly and the private conduct of an immoral person. There is a difficult distinction to make between legitimate and robust political action in the public domain and conduct issues that are matters of complaint under this heading.
Some people may believe that it is a parliamentary offence if someone takes part vigorously in a political demonstration attracting the attention of the police. You get into very deep waters if you start to go down that line. However, those who behave in a disreputable manner in private in a way which comes into the public domain must be subjected to disciplinary proceedings. It needs a robust Commissioner with guts to see the distinction. There can be cases where private conduct is inconsistent with the dignity of the House to which you have had the honour of being elected. Those cases should not be ignored, but you need to be very careful.
Mr McNamee: The role of the Committee on Standards and Privileges in the House of Commons is to oversee the work of the Parliamentary Commissioner, whereas in the Welsh Assembly, the Committee does not have the role of overseeing the Independent Adviser's work. Would you comment on that difference? Secondly, would you explain the system of appointments to the disciplinary tribunal? How are appointments handled? Who makes the appointments? Is there a specific procedure? Should members of the Committee on Standards and Privileges not be appointed? How is the disciplinary tribunal selected, and who has responsibility for selecting it?
Sir Clifford Boulton: You must talk to Ms Filkin about this, but I think she would not see herself as being subject to orders by the Committee as to how she should set about the matters covered in her job description. It is very important that she should be given a free hand to say what she wishes in her reports. Thereafter, the Committee takes responsibility for what comes out of its deliberations, and must therefore, be free to dissent from her conclusions. I do not see any problem with that.
On the question of the possibility of appeals, we felt we had to do a complete job and think of all the alternatives and how many further appeals might arise. It did rather fill a disproportionate amount of our most recent report in which we set out the most elaborate kind of system.
That arose from a case where a Member who had been accused of this parliamentary offence stoutly denied the facts as found by the Commissioner. There was a strong conflict of evidence. I think that is the first case of that gravity which has ever occurred. It is also a case of bribery: a type which we expect to become a criminal matter. Therefore in the Westminster system this was a very special complaint. It raised the issue of a fundamental conflict of evidence - or, at least, a fundamental failure by the Member accused to accept the finding. We were left then with non-criminal cases, which were of sufficient gravity to justify having an appeal system and where there was this conflict. We imagined there would be very few indeed. I am very reluctant to give advice to you, but if I were to do so, I would say that you should wait and see if you are going to need to invent such a thing. Your Commissioner is going to make recommendations based only on evidence which is clear and hard to deny. We did insist, however, that the whole House must take responsibility for the final judgement. I imagine the House of Commons Commissioners in this case would appoint any external member of an arbitration tribunal, and all those people, like the Commissioner, would be feeding their findings back into the system, so that you were not losing control over your own self-regulation. I would honestly recommend that you tackle that one only if you find a need for it.
The Chairperson: May I ask for your advice on a matter relating to that? Where there is a suspicion of the possibility of criminal activity, would your recommendation be that the Committee or Commissioner no longer deal with it until such times as there is due legal process?
Sir Clifford Boulton: Instantly, yes.
The Chairperson: Then you have a related problem. If there is a penalty through the criminal process, do you then have a penalty through the parliamentary process? That would amount to double jeopardy. A person would be penalised twice. Can you advise?
Sir Clifford Boulton: We have the luxury of being able to expel them, as in the House of Commons, and if a Member were convicted of murder, we might expect him to be expelled, although the length of the sentence for murder is such that there would be an automatic loss of seat. You have to have a fairly hefty term of imprisonment to involve automatic expulsion, but had a Member of Parliament been found guilty of a criminal offence, I would have thought that his reputation would be in such shreds, and no further action would be necessary. I suppose he would be expected to resign his seat, and that would be the end of it. I do not think, however, that the House could slough off the responsibility for forming a view as to whether there was any need for further action after the end of a criminal case.
The Chairperson: I imagine that it would depend on what type of criminal case it was. It may be considered that some offences do not merit an extra punishment- dangerous or reckless driving, for instance.
Sir Clifford Boulton: Based on my experience, I would expect no further parliamentary action after a case like that.
The Chairperson: Do you envisage the Code of Conduct being constantly reviewed or updated?
Sir Clifford Boulton: Most Committees of your kind have the responsibility for the Code of Conduct and making recommendations.
Mr A Doherty: If the Committee of Standards and Privileges deals with a complaint and follows the necessary procedures, including taking advice from the Parliamentary Commissioner, but comes to a conclusion different to that of the Commissioner, does the latter have a role in informing the House?
Sir Clifford Boulton: The publication of the Commissioner's uncensored opinion is the end of his input into that particular case. However, I think that the Committee would have to justify what it had done in its report to the House. Based on its conclusions the Committee would, perhaps, make a recommendation. The issue would then be resumed if or when it came on to the Floor of the House. The whole House would then have to make up its mind.
Mr A Doherty: If the Committee and the Commissioners did not agree on a number of occasions, would that create tension?
Sir Clifford Boulton: It would depend on why this had happened. If everybody were losing confidence in the Commissioner, that would open up the question of his usefulness. It would be a very delicate matter. On the Nolan Committee our aim was that the Commissioner would have the same standing as the Comptroller and Auditor General-somebody whose views command respect. They would need a good reason for dissenting if it is from a factual point of view.
Mr A Doherty: It is vital that the Committee choose the right person.
Sir Clifford Boulton: If you are going to have a Commissioner, you want to be very careful to get the right one.
Mr A Doherty: What qualities should a Commissioner have?
Sir Clifford Boulton: It should be somebody who is going to carry confidence across the board.
Mr A Doherty: Should it be somebody who has legal experience in government or local government?
Sir Clifford Boulton: The two Commissioners that have been appointed are not lawyers. It is often felt that the person appointed should be somebody who can bring a common-law approach to issues, rather than a legalistic one, but that would be invidious. It is the person that is important, not his qualifications.
Mr Beggs: Currently the Clerk of the Committee of Standards and Privileges is responsible for updating the Register of Members' Interests. Do you feel it would be appropriate that the Commissioner should assume that responsibility, as in Parliament, and if so, why?
Sir Clifford Boulton: It might depend on the kind of Commissioner that you felt you needed and the working relationship that Commissioner has with the day-to-day life of the Assembly. A Commissioner who is essentially activated only when a complaint comes in will not have the kind of close day-to-day involvement with Parliament necessary to produce the authoritative advice and suggestions that a long-serving Clerk could contribute.
A Clerk is always going to be the first port of call for giving advice about the Register. It would be artificial for the Commissioner, who is here virtually full time, not to be working in tandem with the Clerk, because it is going to be the Commissioner who will decide on the gravity of failure to register. The Commissioner has a locus standi on the question of the Register and he/she would be able to provide a useful second opinion for a Member if he were worried about advice that had been offered by the Clerk.
However, the Commissioner will not want to examine a half-baked complaint because someone was under pressure to register it. At this point, it might be better to leave it with the Clerk, and the Commissioner will then deal with it as a complaint, should it be registered as one. This is something which would need to be worked out.
Dr Adamson: May I reprise my question to Richard Penn? If a Commissioner were appointed, what power sharing authority regarding complaints would it be reasonable for him/her to have? For example, would Members be required to co-operate with the investigation and to produce papers, and so forth?
Sir Clifford Boulton: I see from the guide that you have the power to summon Members. I think, therefore, that if you want to avoid some form of statutory authority being given to the Commissioner, and if you want it to be a parliamentary Assembly appointment without new statutory powers, it would be adequate for the Commissioner to say, "If you do not co-operate I shall have to report the fact to the Committee, and they will summon you." That is how we operate, and we have avoided the need to have a statute similar to that given to the Comptroller and Auditor General in the last century. We felt that our Committee's powers were quite enough to be put at the disposal of Ms Filkin, and she has very rarely had to remind a reluctant witness that those powers exist. That is how it has worked here.
The Chairperson: This might sound a little naïve, but this is a completely new experience for most people on this side of the table. Does your Committee have the power to call people? If a Member absolutely refused to attend or, indeed, sent a written response, how would you deal with that?
Sir Clifford Boulton: I see that you have powers to send for persons, papers and records. That covers the waterfront.
Mr Beggs: If someone refuses to attend, presumably all we can do is report them to the Assembly. Do we not have any further powers?
Sir Clifford Boulton: I do not know what powers your Assembly has in respect of imposing sanctions against an individual who refuses to attend.
The Chairperson: We have had one Member who responded through his Party Whip rather than attend in person. Have you experienced this type of problem?
Sir Clifford Boulton: No, our rules are very clear. They require the whole House to make an order that the Member shall attend. If he attempted to disregard that, then other sanctions would be used, and he could be suspended from the service of the House.
The Chairperson: Ours is a very new and steep learning curve.
Mr O'Connor: If a member of the public made a complaint, would it be likely that that member of the public would come to the Committee and give evidence, rather than the Commissioner's giving evidence after meeting the person who made the complaint? Secondly, because we are a multi-party Assembly, there are going to be times when the degree of unanimity will not be achievable. Would a Commissioner's report, along with a majority vote, strengthen that majority vote and leave any dissenters out in the cold, so they were seen to be playing party politics rather than behaving as would be appropriate?
Sir Clifford Boulton: Members would be aware of that. They would know the Commissioner's findings. Presumably a Commissioner in whom there was general confidence would be supported. The general public would, therefore, be able to decide for itself, and those Members who wanted to dissent would have to feel that they were on strong ground for dissenting, as they would be liable to be publicly criticised. That is all speculation on my point; I must not go too far down that road.
Mr O'Connor: If people sitting on such a Committee dissented from the rest of the Committee and from the Commissioner, potentially, could they be putting themselves in contempt?
Sir Clifford Boulton: No, not at all.
Mr McNamee: The Independent Adviser to the Welsh Assembly informed us that it intends to publish a guide for members of the public on how to initiate complaints against Members of the Welsh Assembly, and he is expecting a significant rise in the number of complaints as a result.
Where should a complaint be forwarded once it has been initiated? In the Welsh Assembly, it is forwarded to the Presiding Officer, who refers it to the Independent Adviser. It goes to the Standards and Privileges Committee only when a final report has been made for consideration, although the Committee would have been informed that the complaint had been initiated.
Can you give us some advice on liaison with the press, or, indeed, the Committee in relation to matters that are being investigated?
Sir Clifford Boulton: These are questions that I think you should pursue with Ms Filkin. There is a fine balance to be drawn between letting the public know that there is a system available and appearing to be drumming up complaints.
Obviously this is something of which the public should be aware. If something arises, a member of the public can go his Member of Parliament for an explanation. Ms Filkin has made a public statement saying that she receives direct complaints, that there is no need to go through one's MP. That information has been made available.
If she is asked by the press if she has received a complaint about Mr So-and-So, she is prepared to say "Yes" or "No" You must, however, ask her about that yourselves. My Committee's view on this is that one would be entering into a quasi-judicial process, which is very serious for the Member who is being complained about. The less contact that the Commissioner has with the press, the better.
Mr Aylett: The press tends to exaggerate slightly the significance of a complaint. If the Commissioner receives a complaint, we find that it appears in the press as an "investigation." This is before it has even reached the prima facie stage; it is not a full investigation, which may take a month or two. It is important to use the right terms when dealing with the press. It is important, when setting out the system, to make clear what stage proceedings have reached - not to make it sound too big.
The Chairperson: I was surprised by Mr Penn's answer on the Committee's response to unsubstantiated press reports. If unsubstantiated reports in a Sunday newspaper of things allegedly done by X, Y or Z are presented to the Committee or to the Commissioner, they are not investigated.
Sir Clifford Boulton: We hear of this, but when I was Clerk of the House we had to find someone who was prepared to accept personal responsibility for the truth. We could not just adopt a journalist's report of alleged events. If one wanted to file a complaint which the system would consider, one had to find someone who was prepared to take personal responsibility for the facts, be the complainant and give evidence. Newspapers could not be used in that way.
The Chairperson: Nor could radio or television.
Sir Clifford Boulton: Complaints are always very serious. Even if they prove to be completely unfounded, mud sticks. There can be no fooling around with them; they should be quasi-judicial from the start.
The Chairperson: The onus is on the person to look beyond the television or press report when bringing evidence before the Committee.
Sir Clifford Boulton: The complainant must produce first-hand evidence for which he is prepared to take responsibility.
Mr Aylett: There is a paragraph in the rules procedure dealing with this.
The Chairperson: I was not entirely sure from Mr Penn's response.
Sir Clifford Boulton: His evidence was of a different kind. He was prepared to take such reports up.
The Chairperson: That was slightly confusing.
Mr A Doherty: Can you expand on the relationship that should exist between the Commissioner, the Speaker and the Committee? Mr Penn suggested that his advisory role was with the Assembly, the Speaker and the Committee. You suggest that there should be a more direct relationship between the Commissioner and the Committee. Where does the Speaker come into that?
Sir Clifford Boulton: The Speaker would not come into an area of conduct which was appropriate for the Commissioner. The Speaker has a role to play in allegations of breaches of privileges. Most of those are related to contempts committed by outsiders, therefore, nowadays, almost all contempts of breaches of privilege committed by Members fall into the conduct category. However, if a complaint did not fall into the conduct category it would be brought to the attention of the Speaker, and the Speaker would decide if there were a basis for having a debate in the House. Then it would be the responsibility of the House to refer the matter to the Standards and Privileges Committee. In all ordinary cases where the Commissioner is involved on a standards issue, only one channel of communication is required, and that is between the Commissioner and the Committee direct.
Mr A Doherty: Would the Speaker have a role if a complaint were made against a Member for misconduct or bad behaviour outside the Chamber?
Sir Clifford Boulton: Yes, bad conduct in the face of the Chair in the Chamber is a relevant matter and is dealt with straight off. In the old days, if two Members were involved in unseemly conduct outside the view of the Chair it would be raised as a privilege matter. Now, I suppose, it could be a breach of a Code of Conduct and treated as a complaint to the Commissioner.
The Chairperson: Sir Clifford, thank you for your time and effort in meeting us and for your advice. The Northern Ireland Assembly has the benefit of being the late starter and can, therefore, look at the experiences of others and, it is to be hoped, pick out what is good and discard what is not. We need to get it right from day one and so give to the Northern Ireland Assembly the credibility that it deserves. There will be difficulties, but we will benefit from looking at the experiences of Assemblies elsewhere. At times, our questions may seem naive, but this is because we are at the beginning of a long, difficult process, and there is a great willingness to make it work well.
Sir Clifford Boulton: When I was responsible for advising Parliaments throughout the Commonwealth on their procedures, I was always most insistent that I would play my part, but that they were the only ones who could say what would work, bearing in mind their own experience and background. Therefore, one size does not fit all. You are right to draw on the experience of others, but in the end you must design your own tailor- made system.
MINUTES OF EVIDENCE
The Chairman: Good afternoon. I should first like to thank you for giving up your time this afternoon to come along and advise the Committee. Having been in Northern Ireland, you will be familiar to all of us around this table.
As you know, we have the new Assembly, its new Committee on Standards and Privileges, and with it a very steep learning curve for us all. We are attempting to feel our way. Standards and Privileges make up a very important part of the democratic process. As the Clerk has explained, we had a series of very good meetings this morning.
Owing to the newness of our own Committee and Assembly, we have not yet agreed sanctions which can or should be imposed on Members for indiscretions or breaches of the Code of Conduct. Could you say a word about what is currently available at Westminster and the direction you feel we should be taking?
Mr Bottomley: I am honoured to be able to come and discuss these issues with you. I am sorry that my colleague Martin Bell is unable to be here for unexpected family reasons. I ought to emphasise that I shall try to talk about the experience we have had in the three years I have been on the Standards and Privileges Committee in this House and where my views are different to those of other people. I shall try to make sure I cover a range of opinions.
The aim of having standards of conduct, whether formulated and written down or simply expected, is to try to make sure that people can be in Assembly or Parliament without bringing major disgrace or dishonour on the institution, their role or themselves. In general, most members of the public will not know much about the Parliamentary or Assembly process. There will be a great deal of headlines, news reports or controversy, but they will not actually know much of what people do. Neither will they know a great deal about the circumstances of their individual representative.
When a complaint has been put forward, someone must decide if it needs to be looked into. If that is the case, someone must try to find the facts, if possible agreeing them, or if there is disagreement between the Member complained of and the facts which have been discovered, ensuring that the difference be open and apparent. Under our system, the Commissioner will report to the Committee.
The Committee does not have to agree the Commissioner's report in whole or in every detail. Neither of the Commissioners I have served with has got on his high horse if the Committee has not agreed everything. Clearly, if we contradicted the way they set about something or some major element, or tried to force them to modify their approach, they could resign. I say in passing that when Sir Gordon Downey retired, we invited him to give his full, frank views as a report, so that things he may have held back during his time of office he was able to say without any interference by us.
When our Committee decides that a Member has, so to speak, offended, it may be a simple matter of rectification, for there are many things which people get wrong, which, when drawn to their attention, they put right. There may be no particular consequences or advantages to their having had it wrong, and the general view is that there are plenty of examples where someone can put it right and say so, or the Committee can say so, possibly drawing attention to an apology the Member has given us. We then recommend that no further action be taken.
My experience is that most complaints which are investigated fall into that category. A smaller number fall into a category where Members of Parliament recognise that they have done something wrong and apologise. When it comes to recommending a resolution to the House, -what some call a penalty - there is a slight difference of view among our Committee. I take the view that to invite a Member either to apologise to the House, whether or not he has apologised to us, or to require him to apologise is a major issue. It is not necessarily a matter over which he ought to resign and to say sorry when you had not really intended to do something or you have done something you thought was alright is not in my view a major thing. I am not quite sure whether "penalty" is the right word, but it is a major consequence - I think that is a better way of putting it. In general when people are shown to have done something wrong, especially when they agree they have got it wrong, there is not normally, in my view, need for a major penalty unless there is something which has brought advantage to them.
Also, if I could take myself down another byway, there is the matter of what happens when our Commissioner is seeking further information from a Member, where there appears to be a complaint which deserves investigation. There has been at least one occasion where the Member's response made what was in effect a rectification issue into a major issue. If a Member deliberately withholds information or says something which is either not the truth or not the whole truth and understands that to be the case, that could have the effect of misleading the Commissioner or the Committee. Then that becomes, in effect, obstruction of a procedure of the Parliament or the Assembly, and that starts going up the scale where perhaps what might normally be seen as a penalty might come into effect.
The worst thing that can happen to a Member of Parliament is to stop being a Member of Parliament so to have somebody excluded or disbarred or disqualified would be a major issue. If we go back through our parliamentary records there have been a number of occasions when people had been barred from Parliament. Some, for different reasons, have been barred from taking their seats whether on a confessional basis or something else. It may have been that they inherited a seat in the House of Lords from their father. In some things people are disqualified from standing and in others they may be disqualified from taking a place if they have got the greater number of votes in an election. Looking back, we would say that our parliamentary ancestors got it wrong in excluding people that the voters have chosen. If information is available and a group of electors go on electing somebody, it should not really be for the club to say that he can not come back. To bar someone from standing again would be a really major thing.
At the shorter end we have the power to suspend people from the service of Parliament and they are not being paid. It is symbolic. It may be for a few days, up to a number of weeks, or potentially for a substantial period. In one of the cases which was considered after the most recent election we came to a view that had someone still been a Member of Parliament we would have recommended a substantial period of suspension. If someone is not a Member of Parliament, or in your case a Member of the Assembly, do you then put penalties on people who are no longer in the body? That is an open question.
The last thing I ought to say is that I take the view, and I think it is a general one, that if a Member is accused of a criminal offence that is not for the Parliamentary system or Assembly system to investigate. It should be passed to the police, and they should continue with that. We do of course have a rule that if someone has been convicted of a serious criminal offence and has received a sentence beyond a certain limit, that Member is disqualified from standing or serving.
Mr McNamee: Our Committee on Standards and Privileges is currently considering the issue of the appointment of a Commissioner for Standards. I would be interested to hear how you view the existing relationship between your Committee and the Parliamentary Commissioner for Standards here in terms of your role of overseeing the work of the Commissioner. Can you give us some idea of how the Commissioner reports to the Committee and if the Committee is satisfied with the arrangements and procedures that exist?
Mr Bottomley: On the whole, yes. A Committee has a dynamic of its own, most of which is not seen by the general public or by other Members. We try to bring forward reports which are unanimous, but it would be ludicrous to suggest that everybody has the same view before getting to the stage of accepting a report or not. With one exception, I think, our reports have been unanimous, although members have supported some of the detail with greater or lesser enthusiasm. If, for example, the Committee were deciding whether to recommend to the House - and perhaps I should have said, Mr Chairman, that penalties are not imposed by the Committee, they are recommended by the Committee - that someone should have a five-week suspension, or a one-week suspension, there would probably be a range of views and members would have to come to an agreement which most people are happy with.
I would describe the relationships with the Commissioner as being, first, proper and, secondly, normally friendly. It may be possible, within closed doors, for someone to say to the Commissioner "Do you think you have got this wrong?" and for the Commissioner to say "No" or "Yes" or "Maybe". The Commissioner is normally fairly restrained in that he is unlikely to say to a Committee member "I think you are talking a lot of balderdash." or "Can you not see what is actually written down in paragraph 15 of my memorandum to you?". The Commissioner is, like a Committee Clerk is, normally rather more restrained than the members are.
The division of responsibilities has not been tested, and if, for example, the Commissioner said to the Committee "I have had a complaint about so-and-so, and I have come to the view that there is no obvious evidence. So I do not propose to take the matter further" it would, I suppose, be open to the Committee to say to the Commissioner "We wish you would." Whether we could say to the Commissioner "You must", is a question which I have not addressed.
The Commissioner, when he brings forward a memorandum - in effect a report - is not the prosecutor, so in one or two of the cases where we have had a Member in front of us to answer questions, the Commissioner has not taken a part in that.
I ought, incidentally, to draw your attention, and that of those who follow your proceedings, to the unusual case which we might call "the Mohammed Al Fayed accusations". This did not come to the Committee in the normal way; it was referred by the Speaker, and the Commissioner was asked to adopt a procedure other than the norm, but in every other case and, I suspect, every future case where a complaint is brought to the Commissioner, the Commissioner will decide what happens next. There will be, if I may say, Mr Chairman - not to divert from the questioning and my comments now - some untested areas. In my postbag today was a letter from someone saying that some Members have not given their proper address under the Companies Act. What do you do about that? Is that for us to do, or is it for the Registrar to take action?
I got a letter from someone else's constituent complaining that their Member of Parliament has not given them proper service over the last four years in relation to some murder case and various other things. Should the Commissioner be able to consider reports about a Member's constituency duties? In parts of my constituency, they occasionally say "I think you are a useless Member of Parliament, and you have not treated me right". Is that a matter for the Commissioner or the Committee?
Someone may accuse me of, if not a criminal offence, behaviour that is prejudicial to the public reputation of Parliament. I may not have actually broken a rule, but in their view, and, possibly, in everybody else's, I may have done something which warrants a complaint. Does the Committee take that into account? What happens if someone says "Are you sure that Peter Bottomley's tax return was correct? Would you please look into it? What about that £200 fee he received?" There are areas which go beyond what we have had to consider up to now, but in general, the relationships are proper - if they became improper, something would happen - and, normally, friendly.
Mr O'Connor: I was interested to hear you mention Mohammed al Fayed; he is one of the more famous cases, which your Colleague who could not be here today did much to highlight. When something like that arises it does enormous damage to the institution. In your experience, have things such as being abusive with the doorkeeper, or writing a bounced cheque, brought the office into disrepute?
You suggested some remedies in terms of sanctions, but unfortunately we do not have any sanctions at present. If we had a Commissioner, it would be necessary to have sanctions, of one degree or another, to enforce his findings. What sanctions would be appropriate, for example, if a Member were verbally abusive to a doorkeeper in this establishment? Would an apology be sufficient, or should the Member be barred from Parliament for a week? We are seeking some indication as to what level of sanctions are appropriate for various types of offences.
Mr Bottomley: You have raised a set of interesting questions. Let us take misbehaviour towards a member of staff. If, for example, I am persistently and grossly offensive to a doorkeeper, is it because I am mentally ill, an alcoholic, or that is just the sort of person I am? Parliament or the Assembly has to be big enough to accept all three. There is a procedure in the House of Lords which allows someone to move that the noble Lord be heard. That means that they have to sit down, and if they do not, they are sat down or possibly taken out. We have not experienced people behaving badly outside the Chamber - for example pushing, shoving or being verbally offensive. By convention people are not drunk in the House of Commons. If someone behaves unconventionally, somebody will try to take them to a quiet corner, let them calm down and recover, and, if it is appropriate, advise them to apologise. It is not a matter which is likely to be taken to the Commissioner or the Committee, but there is no reason why it should or could not.
There might be an issue of Members making improper sexual suggestions to a member of their office. Again, that is beginning to touch on an area which has led to many problems in the United States - I forget how their system deals with it. In some Parliaments and Assemblies - possibly including the British one - that may have led on occasion to the Member actually marrying the person. I do not know where the line would come if you had an unrequited friend who said to the Commissioner "Peter Bottomley held my hand as we walked around the park, and now he will not hold it any more. He should never have held my hand in the first place. Will you please look into this?". There is no reason why the Commissioner cannot consider what approach to take to a complaint of that nature. It could be argued that that is worse than not declaring a £250 watch that a Member was given in exchange for a signed photograph of himself, which he reckoned was worth £250 and therefore a fair exchange.
There are still untested grounds but the scope of the work carried out by the Commissioner and Committees is likely to expand rather than contract.
Mr O'Connor: We received such a complaint from the doorkeepers at Stormont who claimed that a Member had been particularly rude to them. This was alleged to have taken place on just one occasion and I will not mention the names of those involved. If this allegation were proved, what sanctions should be taken?
Mr Bottomley: Public exposure is always the biggest weapon against a person in the public domain. For example, if I were a doorkeeper who was abused here at Westminster, I would say something that would go on public record, through the Serjeant-at-Arms, my employing Department, or even a journalist. The Member would then face more publicity, criticism and discussion than he would do if the matter were passed through a formal procedure. In some senses, I have evaded your question and in another way I have answered it.
At Westminster, we have a system where we often have to get into our Division Lobbies before the doors shut, and I believe the doorkeepers sometimes wait until an unsuspecting MP is halfway through the door before closing it on him. If an MP were to assist the doorkeeper by holding the door open before passing through and the doorkeeper were hit, rather than the Member, it would be a case of "six of one and half a dozen of the other".
Mr Beggs: You have been highlighting the range of sanctions your Committee may impose. At present the only sanction available to our Committee is simply to report back to the Assembly, to name the person and to call for a report. This situation and the lack of precedent on how to deal with such incidents have made it difficult for us to gain the level of co-operation we would like.
I would prefer it if our Committee were to take a more forceful stance in cases where a Member was asked to account for himself in a report relating to such an incident. We would expect the Member to complete the report himself rather than hand it over to a third party to issue on his behalf. How would your Committee react in such a situation?
Mr Bottomley: At the first stage of the process, the Commissioner carries out an investigation and produces a report, which he presents to the Committee. The Committee may decide to interview the Member or to seek further information. We require the Member to attend at this stage, and we can bar him from allowing someone to speak on his behalf. This rule will apply until the incorporation of the Human Rights Act, after which the issue may be debatable.
In one Select Committee the Maxwell brothers told a lawyer that they had been advised not to respond to his questions, which was a block. If someone refuses to attend a Committee, we ask the Clerk to the Serjeant- at-Arms to produce that person and he turns up. A former Clerk, Mary Frampton, once had to produce Arthur Scargill when he was reluctant to come. On another occasion, a Member came accompanied by a professional adviser and, unless we asked the adviser a question, he was not allowed to speak to us. However, the Member was permitted to consult his professional adviser about the case, which involved the registration of companies overseas and other issues upon which I will not elaborate.
In effect, the Committee can dictate who may address it and, therefore, if a Member were asked for information on a matter and he got someone else to provide it without the Committee's permission, the Committee could oblige him to make the report himself.
The Member could consult the professional adviser over registration of companies overseas and various other things, the detail of which we shall not go into.
The Committee can say who can speak to it, and I therefore suspect that, if a Member were asked for a note or information on something and got someone else to provide it without the Committee's agreement, the Committee could say it was not what it asked for and that Members are required to do it themselves.
As long as nothing is unfair, the Committee can have what it wants. As Mr Beggs said, our report is to the House, and a recommendation for action would also be to it. The Committee itself can impose no penalty, and with one exception our reports have been either unanimous or nemine contradicente, which helps to diminish some of the potential partisan suspicions.
Dr Adamson: What type of skills, experience and expertise would be useful, appropriate or necessary for a Commissioner for Standards, taking in personal attributes as well as qualifications?
Mr Bottomley: They should have persistence, for some people want to lead the Commissioner a merry dance; good administrative skills, for there is much paperwork to process, and what is written will be examined down to the position of every comma; and patience, in dealing with the Committee, with complainants and with those complained of. They should also have a general respect for the representative system they serve, be it the Assembly or Parliament or whatever.
What Parliaments do matters, but not every Member of Parliament matters. We all make mistakes, but one must respect what people are trying to achieve, which is to represent interests, not to become value-free. In some cases, that means being representative of interests and having an understanding that the parliamentary or political process must be open and flexible. I shall give you an example moving on slightly from your question but, I hope, answering it in part. People might have asked, had Jimmy Goldsmith and his Referendum Party got MPs elected, why one should have the poodles of a rich man, who has paid all their election expenses in 600 constituencies around the country, in Parliament. The answer is that they should be in Parliament because people have voted for them, not because Jimmy Goldsmith has paid for them to stand for election.
When the Labour Representation Committee said it wanted to have working people in Parliament, it had to fund them, for MPs were not paid. It had to be done from outside with outside supporters, which is really no different from my inheriting money - which I have not done - from a grandfather, setting me up as a so-called gentleman who can stand for election with no other experience than having signed the receipt for a cheque from my grandfather's estate.
One should understand that there are strong interests outside with all sorts of things they want to achieve, whether they be constitutional or commercial aims or particular interests, for example those of the fishermen of Kilkeel. It is right that people in Parliament should argue the case on behalf of an individual group, a majority or minority, the unfashionable and the fashionable.
Someone once asked me why I was acting on behalf of a convicted murderer. I replied that only a Member of Parliament can easily act on behalf of a convicted murderer, someone with no reputation, who has been convicted in our courts. The fact that seven people a year have their murder convictions overturned because people like me are willing to do it should be a matter neither for complaint nor for praise, merely an acceptance of one part of the role. Many of the things we must do are controversial, upset people, and even challenge the law. One of the points about democracy is that people say that they think the system should be changed and that the law is wrong.
Dr Adamson: What about qualifications as such?
Mr Bottomley: The perfect person does not exist. If you are appointing someone over the age of 30, academic background does not matter. My guess is that by the time one appoints someone over the age of 40, professional qualifications probably do not matter either, but experience and some of the personal qualities we discussed earlier probably do. I imagine you could have someone who had been a public servant. I doubt you would have a former politician, but I do not believe someone who may have stood for election on some occasion should be disqualified. If someone has been a local council candidate, I do not feel that should be a disqualification.
I suspect someone in public or voluntary service or some kind of audit function would work. Sir Gordon Downey came from that area. Elizabeth Filkin, the present Commissioner, was the investigator for complaints against the Inland Revenue.
You could have someone who has been very senior in a University, someone from a professional body, whether medicine, law, accountancy, who has been used to the idea that you can actually hear a complaint without being swayed before you come to the end of your investigation. It is the openness and independence of mind, which tends not to be shown by having a better or worse degree or being in more favoured or less favoured trade or profession.
Mr A Doherty: As a new Assembly we have a Code of Conduct and a Guide to the Rules relating to the Conduct of Members, which are somewhat similar to documents that you have in the House. If we were to appoint a Commissioner or an Adviser, what role, if any, would he or she have in monitoring and recommending changes to a Code of Conduct, as things develop?
Mr Bottomley: The answer is "As appropriate". An example we have is our rules on accepting overseas trips. What is advocacy? What is the distinction between one thing and another? When our rules were coming in, I asked whether I would be disqualified, either from contributing to a debate or initiating something, if, for example, I had gone to El Salvador for the funeral of Archbishop Oscar Romero when my funding came from the British Council of Churches in the main. Would I be barred from speaking for the British Council of Churches? Would I be barred from speaking about El Salvador? Would I be barred from speaking about people who went round murdering archbishops? Contrast that with what happens if I had been to Taiwan, paid for by the Taiwanese Government. If I then came back and said that the Taiwanese are right and that the People's Republic of China is wrong, does declaring that I have made the trip costing £2,000 or £3,000 make it possible for me to initiate a debate? Opposition foreign spokesmen clearly cannot go rushing around the world at their own expense. They may go on behalf of a research body or as guests of a foreign Government. Should that bar them for being able to take part in debate?
The Commissioner can easily put forward some modifications, whether they require a change in the rules or are a change in interpretation. If it is a rather more major issue it is better if the Commissioner answers questions from, say, the Committee on Standards in Public Life so that it can make recommendations based on factual information or response from the Commissioner to those sorts of questions. It does not have to be a straight initiative by the Commissioner, or for that matter by the Committee. We do have what was Nolan, is now O'Neill, and will soon become somebody else, to ask questions and give answers. No doubt Sir Clifford Boulton could expand on that. On relatively minor things our Commissioner has no difficulty in making recommendations to us.
Mr A Doherty: Over the few hundred years that you have been in existence you have managed to develop quite a lot of conventions on the behaviour of Members and anyone with a close association to the House is aware of those conventions. I find it difficult to come to terms with the distinctions that are made between matters relating to the Register of Members' Interests, improper use of resources accepting bribes or trips and the other more ordinary examples of misbehaviour. We have not developed any conventions so we would probably need more guidance than would be written in any of your documents. Our Code of Conduct is fairly general. It refers to actions that would bring the House or the Assembly into disrepute and many would be behavioural. Would there be a need for more precise guidance in the Code of Conduct in a new Assembly because we do not have the hundreds of years of examples, and a bit of bad behaviour to an ordinary person is excused in a Member?
Mr Bottomley: In my view nearly every part of our established system came about because of push and shove, revolutionary struggle, or exiles saying that people could not come in. What we now see as the establishment actually never was. Go back to Runnymede 1215. The King had to sit down with a bunch of toffs and agree to something, and he broke that agreement within a year. The Magna Carta was not obeyed.
This leads to my first point. The law of convention, or the guidance, can make something wrong, illegal or unacceptable. It does not stop it happening. If everybody who offends gets chucked out, one way or another, you end up with the church mouse wandering around saying "Why is nobody else in the pew?". If the law could stop people committing crimes we would have fewer people in jail. The law can give people rights, but it does not always make sure that they know what they are or that they can use them. Members of Parliament have a right to be very awkward. Every now and again a parliamentary rule comes in and shuts them up. If every time Members of Parliament made a speech that people objected to, or the Speaker had to call them to order, or they were persistent in points of order, some could say "I am afraid you offend and are in breach of the Code of Conduct. You must keep quiet." A Member of Parliament may say "I want to not only offend, but offend so much that I get thrown out. I will have a press conference as soon as I am at the gates, and when I come back in a weeks time I will say I still believe what I was trying to say at the time". One has to allow for that.
The law can also provide for a method of dispute resolution, which is where our Committee and our Commissioner come in. There is someone they can go to and say "I want to complain". Not every complaint will be taken up, not every one that is taken up will be upheld, but there is someone who can consider a complaint, and that is a bonus compared with 15 years ago in Westminster. I do not think that we should write the code of conduct in such a way that someone cannot be part of the awkward squad on a persistent basis. The fact that half our rules for parliamentary debate are because of strong views about the Irish question, 100 years ago, is a matter of history. That should not be an offence under the Code of Conduct. You may want to have a resolution similar to the one I mentioned in the House of Lords - the Hon Member be no longer heard.
Mr A Doherty: So there is some good in a vagueness in the Code of Conduct because it allows more scope for people to behave or misbehave and also for our Committee to reach a decision about the quality of that behaviour?
Mr Bottomley: What people say in a debate should be separated from someone obscuring from the public something which they have a right to know, like outside or improper interests, or the possibility of their being a liar. If, in the Chamber of the House of Commons, I say black is white or red is green, that should not be a matter of the Code of Conduct. Even if it is not a matter of opinion, I may just be factually wrong.
Mr A Doherty: I heard in a television quiz recently that a Member cannot call another Member a cad in the House. I also have examples where people say "I will not call you a liar, but what you have said is not true".
Mr Bottomley: That is more for the person in the Chair. I do not think that it should come back to a Committee or a Commissioner after that. It is helpful, and I think that you want to distinguish between what happens in the Chamber and what the public can know about the circumstances, which may be relevant.
Our rules are not to imply that you cannot do something, that you cannot keep it secret or hidden. There are times when you do not do something - for instance, taking £25,000 from some interest group, then asking a series of questions on their behalf. Is one thing leading to a bar on doing something else? We are generally tolerant of people saying things we would consider wrong, unfair, misguided or awkward. That is the distinction.
The Chairman: Regarding the role of the Commissioner, when a complaint is made, your Commissioner decides whether it ought to be investigated in detail, and then instigates that investigation. Is there ever a conflict of interest in that? It would appear a dual role could conflict at times. Does that difficulty arise?
Mr Bottomley: You can end up like an onion, whereby there are layers around everything. With the exception of the case of Mohammed al Fayed, the Commissioner asks whether there is evidence which supports the complaint? Also, is the complaint one that is duly worth concern? If the answer to both questions is "Yes", then the investigation is carried out. Perhaps it is getting closer to a continental, investigating magistrate system. The conclusions drawn will result in either the complaint not being upheld at all, being upheld in part or upheld completely.
It is possible for the Commissioner to come across other issues throughout an investigation, which can also be reported. Take, for example, a complaint where, on investigation, the evidence does not support the complaint. Something else may result from the investigation which can later be reported. It can go slightly further. There is no problem with having the Commissioner decide whether the complaint has supporting evidence or whether it is a potentially valid complaint and then conducting an investigation.
Mr O'Connor: It is not always a financial interest. Suppose your children were attending a school in a particular constituency, and the Minister planned to close down that particular school. If you lobbied on the school's behalf, would that action be on behalf of your constituents or on behalf of your children? Is there a conflict, or would some Members experience conflict? Would you tell the Minister not to close that school because of your children?
Mr Bottomley: It is not expected for you to discuss interests such as where your children go to school. In a debate, you are expected to mention that your daughter is a doctor at this hospital or your son is a student at that school. You are expected to mention that your daughter is one of 300 doctors in this particular hospital, that you are not lobbying because of her, but because you think it is right and that the hospital should be moved, closed, expanded, et cetera. That is a declarable interest in debate. If people generally knew about the connection, would they expect you to say it in a debate? That is the test. There should be no surprises on things which are considered relevant.
Mr Beggs: Should we appoint a Commissioner of some sort? From your experience, do you think it is essential to have a Commissioner? Is it impractical for a Committee to carry out detailed investigations?
Mr Bottomley: If you decide to appoint one, I think that is the natural, understandable thing to do. For instance, we have been warned to set aside a full day to read the Commissioner's report on a particular complaint that she has been investigating for some time. If the report takes a full day to read, there must have been a lot of time put into it. Whether you have a Commissioner or not, few of us should think of ourselves as investigating advocates like Perry Mason.
Martin Bell's book, which he might have referred to had he been here, gives his view on what the Committee decided on the Neil Hamilton business before Mr Bell joined the Committee. In practice, this is what happened with that report. We could have started with our conclusions, if we came to any, on the payment of money, as the Commissioner did. What we did in our report was say "Here are the things Neil Hamilton has agreed he did which he says were wrong and for which he has apologised." We then said what we would have recommended to the House had he still been a Member. Then we drew a line. Then we came to the Commissioner's business. Our deliberations show that the proposition that we should endorse the Commissioner's finding was voted down. We came to a form of words saying that we could not add to or subtract from his conclusions, but our deliberations explicitly did not endorse a particular part of his conclusions.
Martin Bell wrote that it looked as if the Committee had got fed up and thought that it could not go any further, so it just stopped on that point. I would not contradict his interpretation. There are issues that cannot be resolved, no matter how much time you spend on them. On the whole, it makes sense to have a Commissioner deciding whether or not there is prima facie evidence. That stops the issue being an immediate matter for discussion among Members of Parliament who do not all have the same point of view, let alone belong to the same party.
It makes sense to have a Commissioner's report which the Committee can accept, modify or add to in its own words - but not tell the Commissioner to rewrite. For a Committee to make recommendations to the Assembly or Parliament limits the role of the Committee in a proper way. I would be surprised if you decided not to have a Commissioner or some equivalent.
Dr Adamson: Have you any view on the appropriateness or otherwise of the Commissioner liasing with the dreaded press?
Mr Bottomley: People have different views. My view is very clear. The Commissioner should give factual answers that are not prejudicial. If someone asks the Commissioner whether a complaint has been received, the answer should be "Yes" or "No". If the question is "Are you investigating a complaint?" the answer, in my view, should be "Yes" or "No". If asked to give a talk or answer questions on his work in general, the Commissioner should be totally free to be totally open.
There are some who say "Look at this press report," and the Commissioner replies that he did not actually say that, that the journalist did not speak to him, or that they published a retraction next week. Some say that the Commissioner should not put himself or herself in that position. I think one needs to be less delicate than that. Openness, frankness and describing the process are part of our public duties.
The Chairman: How important is it for a member of the Committee on Standards and Privileges to be a parliamentarian, rather than a member of a specific political group within Parliament? To what extent can you leave your political allegiances behind?
Mr Bottomley: I do not think you can. I look on them as things that go on top of each other rather than things that push against each other. I am a Member of Parliament. I am part of the awkward squad; some people say I am part of the eccentric squad. I can live with that.
I am a Conservative. Some might say I am milder than others; I do not actually mind. I may be more sensitive to an accusation made against one of my friends than against someone for whom I have no respect. I hope I would not be unfair because of that. Those things are normally sore because you actually feel them.
There is always scope for a member to feel that the rest of the Committee are so biased against so-and-so, or against him, that he puts in a minority report or amendments to a draft report which, if voted on, would actually give all his words. We had one report in which quite a lot of things were voted down by one member.
Generally, that does not happen. Few of us would not be conscious of being a party person. However, most would add to that the parliamentary responsibility and, although there might be some detectable bias or suspected bias, the parliamentarian responsibility will tend to come out on top. If it does not, we are back in the situation as if we did not have the Committee. The Committee is there to try to be helpful. It will not be perfect, but it will be helpful.
I am conscious that I have spoken on most issues relating to standards. As regards privileges, I do not think the Commissioner, if you have one, should be involved with privileges issues. They are more for Parliament to deal with. If one requires advice one should go to constitutional lawyers or to other political theorists. I do not believe that an appointed Commissioner should be involved in cases where someone is abusive from outside Parliament or the Assembly. A Commissioner's job mainly concerns standards, not privileges.
The Chairman: Thank you very much. I find your interpretation of what goes on in Westminster exceptionally useful.
Mr Bottomley: Thank you. The discussion has helped me to be clear about the honourable role each of us has in helping Parliament do its work, which is not always easy or kind or polite.
The Chairman: This is a very exciting time for us. This is one of the most important Committees in the new Assembly. We must get it right. We do not have the level of precedent that you have developed here over hundreds of years. It is a very steep learning curve. Not only is the Assembly new, but for a high percentage of the elected Members it is their first experience of parliamentary life. Some of them are MPs at Westminster, but the majority do not have that kind of experience in public life or elected office.
Mr Bottomley: I pay tribute to the politicians in Northern Ireland. I was once a Minister there. I have always admired the way people in the local councils have managed to rub along in a way that most on this side of the water would not understand if they judge everything by the headlines.
MINUTES OF EVIDENCE
Witnesses: Mr Tom Frawley) Northern Ireland Ombudsman
The Chairperson: You are very welcome to the Committee session today. Mr Frawley, we would like you to make your presentation and then the Committee members will ask some questions.
Mr Frawley: I come before you with some trepidation because, to speak in the colloquial language of Northern Ireland, I am about a "wet week" in this job. I only started it on 1 September so my deputy, John MacQuarrie, will answer the difficult questions.
Thank you for asking us to come along and play some part in the important work of the Committee. We hope that what we have to offer will be of some relevance and assistance to you.
The Ombudsman's Office was established in 1969 under two separate pieces of legislation, with a Parliamentary Commissioner to handle complaints about Government Departments and a Commissioner for Complaints to deal with the wider public sector. Since the early 1970s one person has had responsibility for the two roles and a single office has handled all the work.
My recent predecessors have used the name of the Northern Ireland Ombudsman. This is a sensible and straightforward title as it helps in the public's understanding of the role and it avoids confusion. It is interesting that a report currently under consideration in Great Britain is pointing in the same direction. There is a proliferation of Ombudsmen, all with very clearly delegated interests, but sometimes an overlap occurs and there is the potential for duplication.
Currently the office has a total of 18 staff who last year handled 630 formally registered complaints; 752 detailed enquiries by telephone; 1,181 by telephone advice/discussion and 61 interviews in the office.
The core values of the Ombudsman's Office are independence, integrity, impartiality, competence and responsiveness. These five values are fundamental in dealing with all investigations and in reporting on complaints. The person charged with overall responsibility in ensuring that these values are upheld plays a pivotal role in the process, and this is now my role. In my office, for example, I am involved in determining the outcome of many cases and I have an open opportunity to see the input and output of all other cases.
We also ensure that our staff are competent in their work by having them trained in the areas of investigation, the interview process and in the inevitable background changes in developments in administrative law.
One of the factors in responsiveness that I consider to be of crucial importance is that of transparency and openness. We seek to deal fully with the issues raised by the complainant and explain clearly the relevant facts that have been established. The final outcome may not necessarily be what the complainant had wished for but they will have a clearer understanding of the details surrounding their case and what informed our decision.
I will now use the flowchart to help illustrate how we conduct investigations.
There are a maximum of four stages in handling any case. Three of those stages are investigative and the fourth is deliberative. If you look at the top left of the flowchart you will see stage one. This is a straightforward sift of a complaint to determine if the body and issue complained about is within our jurisdiction; if the complaint is within time limits; and that there is no recourse to another forum such as a tribunal or court. Obviously, if that recourse was available we would not be involved. We aim to complete this stage within seven days.
We would then move to stage two, which we would describe as a preliminary enquiry stage - the public body is asked for details of the case and the complainant may be asked for further details. The rules and guidance notes of any scheme involved will also be examined. An opinion would be formed as to whether there is evidence of maladministration, which is essentially inaction or taking the wrong action. If that is apparent, then we consider whether there is any personal injustice to the complainant. These enquiries, while preliminary, are detailed and thorough. The decision will be taken at Director level at least and quite often my Deputy or myself will be involved. We aim to complete this stage within three months of the receipt of a complaint.
Stage three ensues when the stage two investigation apparently discloses that something has gone wrong, or it becomes clear the case is complicated. A very detailed investigation will then be conducted. This will involve interviewing the complainant and officials in depth, perhaps on a number of occasions to seek more details, or challenge what we have been told earlier. We will examine entire file records associated with the case, and in some cases we will seek independent professional advice. If it was a medical case we would seek advice from an equivalently and particularly well qualified clinician. If it was a planning issue, a planning consultant could be advising us. We have a range of advisers we would employ depending on the specific nature of the case. This stage will be closely supervised by a Director who will also review progress with my Deputy or myself on an ongoing basis. A detailed report will then be prepared setting out relevant facts from the investigation and the proposed views or findings in the case.
Stage four is the deliberative stage in which I, or in my absence my Deputy, consider the draft report and all supporting evidence. In turn, the draft report will be checked with the public body to enable them to have an opportunity to ensure accuracy and fair presentation of facts. During that period the complainant will be visited and the case reviewed in detail with them. Where maladministration is found, it is normal for the Chief Executive, or Permanent Secretary if it is a Government Department, to meet me to discuss the issues raised, the recommendations for improvement on procedures and the recommended remedy. I then issue my report to the complainant or the sponsoring Member of the Assembly.
I will explain some other factors, which may help and add further context. My reports follow a standard format, which might commend itself to the Committee. There is a record of the complaint as presented to me. There is the background information to the case, including extracts from relevant legislation, codes of practice or rules of the scheme involved, for example the grant administration arrangement. There is an account of the evidence assembled by the investigation, and my views of the evidence, weighted against the rules or codes relevant in the case. There is a final section in which I set out very explicitly my conclusion on the case, and if appropriate detail my recommendations as to the remedy.
This final section would possibly not be appropriate to the type of cases the Committee is considering as it would presumably rest with the Committee to determine the final view and make recommendations as to action.
Finally, I will make a number of other points in respect of my investigation, which may be of interest to you. By law, all investigations are conducted in private and the approach is inquisitorial-one of questioning and challenge on a one-to-one basis. It is not adversarial in the sense of an open-court type process. All information uncovered by an investigation is protected from further disclosure, apart from the final report and a few specified sets of circumstances, for example, action for contempt or obstruction of my investigation. Neither I nor my staff can be called upon to disclose information associated with an investigation in any court action, other than the specified circumstances I have just described.
I have absolute privilege in producing my report, which means that I cannot be subject to defamation action by an official whom I might criticise in the report. This privilege is restricted to copies of my reports provided to those directly involved, and special reports to the Assembly. Therefore, I cannot subsequently discuss details of the merits of the case with third parties or provide them with copies of the report. My annual reports to the Assembly contain anonymised versions of the case reports. In these reports I highlight particular facets of the work or issues which I believe could be reviewed in a wider context. This is a broad description of how we conduct work at the office. We are happy to amplify particular points for the Committee.
The Chairperson: At present, the business of this Committee is to decide whether to proceed with the appointment of an Assembly Commissioner, and to determine the role and remit of that Commissioner. In the Westminster system, when a complaint is made against a Member, the Parliamentary Commissioner decides whether to carry out a detailed investigation - which he or she would then undertake. Is there a possible conflict of interest in making the original decision about whether to carry out an investigation?
Mr Frawley: I have only been doing this job for three weeks, but I will offer my perspective - then John MacQuarrie, who has more detailed experience, will give his view. I feel there is potential for some conflict of interest. There could be a model whereby the Committee on Standards and Privileges would decide whether there was a case to answer. Therefore, a community of peers or equals would be indicating if there was a case to answer. If an investigation was deemed necessary a Commissioner could investigate the case. In turn, a factual report with potential recommendations could be submitted to this Committee, who would make the final judgement as to whether action was required. This process would maintain the integrity of the Assembly process, instead of a third party making that judgement. This is my personal view, at an early stage in the process. I invite John, who will probably now contradict me entirely, to offer a comment.
Mr MacQuarrie: I do not think I will contradict Mr Frawley. The working practice in our own office, and indeed in our counterpart offices throughout the British Isles, is that the decision to submit a complaint for detailed investigation lies within the office. Certainly, there is potential for a conflict of interest, but from thirty years experience in Northern Ireland people accept that we engage in a detailed investigation. It is not regarded as a prejudicial decision at the outset. Indeed, there have been some circumstances where the public body concerned, who are those under investigation, welcomed a detailed independent investigation. Sometimes that is the only way to lay to rest a misconception on the part of the citizen. The investigation is not prejudicial, but I accept that it could be perceived as such.
Mr McNamee: For each stage of the investigation process, you have a time-scale. Is that set down for you, is it a rule that you must comply with, or is it simply a guideline?
Mr Frawley: It is a guideline, which has been built out of practice and experience and which is related to the complexity of cases. Clearly, the time frame describes the optimum time that would be taken. We would want to turn round cases quickly if they were relatively simple or straightforward. It is the standard.
We can leave you some information to explain the turnaround times. The standard has emerged, and we constantly try to benchmark ourselves with offices across the United Kingdom. We hope to be in the highest quartile, and, if possible, at the top end. We do not see it as a standard as such, but as a guide to which we work as we strive for constant improvement.
Mr MacQuarrie: We set our own turnaround standards, taking cognisance of working practices in counterpart offices. We seek to complete detailed investigations, which can involve taking professional advice and reviewing and challenging information we have been given, within a year. That seems an inordinately long time, but in the final analysis there is nowhere else for a member of the public to go after our office has completed its work. In setting these time frames for ourselves, we therefore took a conscious decision that we would rather be thorough and complete than quick, something borne out in our last customer satisfaction survey some years ago. Respondent members of the public said they considered thoroughness and contact with themselves more important than simply the speed of an answer.
The Chairperson: Mr MacQuarrie's comments have sparked something in my own mind. If a public representative receives the Ombudsman's report, perhaps feeling that the latter had not dealt with some of the issues in a sufficiently detailed or clear manner - while I recognise that there is no court of appeal - is there an opening for the representative to come back to the Commissioner for Standards? Could he say, "While in no way detracting from your task or professionalism, I do not feel you dealt with certain details sufficiently or that you understood their complexity?" Is that possible, or is the Commissioner's decision the end of the matter?
Mr Frawley: There are two dimensions to this. The process itself is extremely iterative. Part of the reason for the time delay is our constant checking with the individual and sponsor concerned to ensure that we are getting things right and that they are relatively comfortable with our direction. Robust tests are built into the process so that, when we reach our conclusion, one would hope that all those dimensions had been considered. That robustness goes to the heart of the time it takes us. Once one reaches a conclusion, that is the end of the matter, except where recourse is sought in a judicial review, if a person feels that the approach we followed was not robust or complete enough. If that arose, we would have failed in our commitment to an open and transparent approach.
Mr McCarthy: Do you have a view on whether complaints against Members of the Assembly should, in the first instance, be directed to the Committee on Standards and Privileges, or should a Commissioner for Standards, once appointed, be able to receive complaints directly?
Mr Frawley: As I said at the outset, my view is that the Committee must look at the issues. I feel a Commissioner could very quickly be drawn into the political arena because of the nature of political exchanges. The Committee must make a judgement on whether there is a case to answer. One would assume that all interests are represented on the Committee, which will want to see the interests of the citizen articulated. I may not be entirely united with Mr MacQuarrie in my view, but rather than allowing the Commissioner to be drawn into politics, which is the way the system operates, I see the Committee as the first contact. It would make a judgement and, where it thought there was a case to answer, refer the matter to the Commissioner. Your view might be informed by whether you decide to have a separate Commissioner for the Assembly. You might wish an office separate from all other arrangements, in which case your judgement might be different.
I believe that it protects the process, but more importantly, it protects the integrity of the Assembly in making judgements about its Members and their behaviour.
Mr Wells: Please excuse my voice, I am not in great form I have to say. Quite a few of us got no sleep at all last night and it is beginning to show. I referred quite a few complaints to Mr Burns in the past, and was reasonably happy with how things were dealt with. I want to ask a two-part question: when you are reporting your findings, what penalties or sanctions can you impose, and have you, or should you have, the power to rescind the decision? I have had complaints, which have been ruled in favour of, and you have written saying that a coach and horses have been ridden through the Department's regulations. A person's life has been ruined by a decision, and we are going to give him a letter of apology. Do you have the power to rescind a decision made by a Department or a non-governmental organisation?
Mr MacQuarrie: As far as sanctions are concerned, the Ombudsman does not recommend sanctions or disciplinary action. His function, by law, is to identify whether or not maladministration has occurred and, if it has occurred, whether or not the complainant has suffered an injustice. His remit is to set out an appropriate remedy for that injustice by way of a recommendation. If the public body, in their case a Government Department, does not implement that recommendation, it lies with the Ombudsman to make a special report to the Assembly. It would then fall to the Assembly, or perhaps a special Committee of the Assembly, to call officials and the Minister concerned to find out why the Ombudsman's recommendations have been ignored. That Committee could censor the officials, the Department, or the Minister, or it could decide that the Ombudsman had been wrong in his recommendation and that would be the end of the matter.
However, where it becomes clear in a report, and from our investigation, that there has been misconduct by officials, it then lies with the senior officer of the public body to initiate disciplinary action, and that has occurred.
Mr Wells: That is all very well and pleasant, but I am sure that the person who has had his life totally destroyed does not go to bed with a warm glow, knowing that a wet lettuce has been rapped over the knuckles of the individual concerned. Can you recommend rescinding the decision?
Mr MacQuarrie: No. Our legislation is very explicit. The Ombudsman has no authority to question the merits of a discretionary decision if discretion is lawfully vested in the public body unless maladministration has occurred in reaching it. It is almost the same as a judicial review test.
If something has gone wrong in reaching the decision, and the Ombudsman felt that there had been neglect or carelessness in considering the points put forward, then he might suggest some remedy. However, we often have to say, particularly in planning cases, that it is virtually impossible to restore the person to the position they should have been in. The Ombudsman definitely does not have the power to, for example, order the demolition of property. That lies under planning law, with the Planning Service and the Planning Appeals Commission.
Mr Wells: The mother of all planning referrals will soon be brought before you, courtesy of myself. There is going to be a long battle on the issue and, unfortunately, we know we cannot get that decision rescinded.
What are your powers to acquire documents and information from Government Departments and public bodies, and what can you do if they are reluctant to reveal that information?
Mr Frawley: Our powers to demand documentation are the same as those of the High Court. People who fail to co-operate with us or support us in gaining documentation, background information, or do not attend to give evidence or information are subject to the same sanctions as imposed by the High Court.
Mr Wells: Should a Commissioner for Standards have similar powers?
Mr Frawley: Certainly, you could not effect a fair, complete and transparent examination of a case without an absolute assurance of co-operation and openness. If that is not forthcoming, you need a legal sanction that can be applied against any party or agent unwilling to co-operate.
Mr Wells: Has that threat, which is implicit in the legislation, been a sufficient deterrent, or have you had to pursue any matter through the courts?
Mr MacQuarrie: No. I do not believe the office has ever had to take court action. On a couple of occasions, members of bodies who were not used to dealing with the office had to be reminded by the former Ombudsmen, in very strong terms, that, as result of their obstruction, they faced certification at the High Court. When they realised this and took legal advice from their own advisers, they suddenly became concerned and made themselves readily available for interview.
Mr Frawley: Even the defence of Crown privilege does not apply in the case of a request from us for information, as it would in many other similar instances.
Mr A Doherty: Congratulations on your appointment. I wish you well in your job. In my experience, one should not take on a new challenge with undue trepidation, considering the qualities you can carry with you.
If the Committee on Standards and Privileges appoints an Adviser or a Commissioner, do you think that he should act independently from the Committee?
Mr Frawley: Public confidence in any system is vital and essential to create independence and a perception of independence. People will be sceptical of independence unless it is also perceived to exist, so it is essential in any model you may choose to develop.
Mr A Doherty: You have the final decision in any case you investigate. In Westminster, the Committee of Standards and Privileges has the right to reject the Commissioner's findings. Should our Committee have an equal right to reject the advice or findings of an independent Commissioner?
Mr Frawley: Yes, because the Committee has the ultimate authority to make a referral and call for an independent examination, and issues may emerge that the Committee feels to be beyond even its ken. It may want to bring the issue before the Assembly and let it make the ultimate decision. It would be very strange if a Commissioner made a recommendation that could not be rejected and he then suddenly found himself at loggerheads with an entire elected Assembly. I can see the tensions that might arise in such a circumstance.
The independence of an investigation is an important element and the findings are then handed over to the Committee, which makes its judgement on the completeness, totality or quality of the analysis.
Then they could decide to say, "we will make the judgement about this individual", or "we do not feel competent, we will take it to the Assembly for an ultimate judgement". That allows the individual the opportunity to go to the Floor of the Assembly and explain their position. Those are important safeguards in the process.
Mr A Doherty: The Assembly is the final arbitrator in those cases.
Mr Chairperson: Leading on from that, when we looked at the system of dealing with complaints against MPs in the House of Commons, which involves the Parliamentary Commissioner for the Standards and Privileges Committee and the House of Commons itself, the perception was that, in many respects, it was a self-regulatory system. Do you have any views on the appropriateness of our Assembly using a system of self-regulation?
Mr Frawley: My experience of self-regulation are from a previous life of the Health Service, and I am conscious of the current opprobrium that surrounds self-regulation of doctors and nurses. However, although it gets a poor press and is perceived as cosy protection, these are nuances and issues that arise in unique contexts such as the Assembly and in relationships. That allows individuals, in a sense, to come to their peers and explain their actions to people who understand the nature of the work, the pressure and the ambiguity that they deal with. That knowledge is very important. A third party looking at it would not have that same feeling. The stimulant for action may be a complaint from someone who will then hear a cogent explanation for what gave rise to the concern. The Commissioner will look at it in detail and that brings in another independent perspective and dimension. That is a further protection before it goes into the Committee to be tested again. In that sense, there are safeguards built into self-regulation, and ultimately peer judgement is a very powerful thing. The difficulty, or the downside, is the public's perception of a cosy relationship. That is where the balance must be struck. Overall though, self-regulation in some circumstances is an effective way to deal with these issues.
The Chairperson: I welcome another Assembly Member, Mr O'Connor.
Mr O'Connor: I apologise and I may have to leave at very short notice.
The Chairperson: OK. I realise the type of pressures that all Assembly Members are under.
Mr McNamee: That is understandable, Mr O'Connor, given the short notice that you arrived at.
Turning to the issue of liaison with the press and media; we spoke to Richard Penn, an Adviser from the Welsh Assembly, who said there was a very limited role for press liaison. I recall from the outline of your procedures that all your investigations are entirely confidential, apart from if a final report is produced after a full investigation. Do you liase with the press, and would you advise an Assembly Commissioner of Standards to have any role in liasing with the press?
Mr Frawley: I emphasised transparency, but I am absolutely convinced that liaison with the press about individual cases would be wrong, inappropriate and lead ultimately to the concept of trial by media, which is both damaging and unhelpful. In terms of the Commissioner's accountability, there is an opportunity when the annual report is issued - not the final report - to share with the wider public, through the media, the trends, patterns and issues that emerged during the year, but not in a specific sense. From my experience, if there are particular aspects of how the Health Service or Health Trusts operate, then those patterns and trends can be discussed and put into the public arena. Through that, and the submission of the report to the Assembly, the relevant Committees can decide to follow it up. The idea of liaising with the press on an individual case basis is totally inappropriate.
Mr Wells: Surely that is dispensing with one of your most powerful weapons? That is too cosy. If I was a Government official who had erred sadly, I would be delighted to hear it was buried in your annual report.
If you have the agreement of the complainant, and the issue is clearly in the public interest because it reflects a major defect in the Administration, then you should be in the same position as regulators and Commissioners. Without naming anyone specifically, you should be able to go to the media and say "This is scandalous. This should not have happened." It should be exposed, rather than being buried in your annual report, which might include 60 or 70 different cases.
Mr Frawley: If an individual case is taken to the media, and an exchange about it develops with the media, then the case will be contaminated. The purpose of a Commissioner, is not to champion a case, it is to attempt to be independent, impartial and accessible. If you get into such a situation, those complained against move into a defensive mode. They, in turn, will cross- brief the press, and suddenly the press becomes the forum where the issue gets debated- not the content or the detail of the complaint. Therefore, I am not here to champion a complainant, nor am I here to defend a public body or Department. Commissioners must look at whether there is, on the balance of what they can see, a case to be made, and if it should be shared with the complainant and the relevant body. That is not the media's place; the media's place is to look at the wider performance of public services and Departments as that emerges from the annual report.
Mr McCarthy: You have two levels of investigation, "screening" and "formal investigation". Have these been appropriate and adequate for the investigation of complaints, or are there changes you would like to make to your existing procedures?
Mr McNamee: Could I add a question to that? Roughly speaking, how many cases are dispensed with during sifting stage of a preliminary enquiry?
Mr Frawley: Mr MacQuarrie will deal with the statistical issue first, and I will answer the second part.
Mr MacQuarrie: Last year, 34% of cases were dealt with at the sifting stage. I emphasise that at the sifting stage we examine the complaint against the basic requirements of the law. In other words, the complaint is frequently about a body or an issue which is not within our jurisdiction. There is clear prescription in both pieces of legislation, they differ slightly and I do not want to introduce complexities.
About 55% of cases are dealt with at stage two, when we take three months to go through the details of the case. These would frequently be situations where the complainant has misunderstood the procedures and rules of the schemes they are dealing with. Now, that may point up a need for public bodies to give people better explanations instead of standard letters, but there is a balance in resources to be drawn. The remaining cases are dealt with by way of settlements or in more detail.
Mr Frawley: Can I revert for a moment to Mr Wells' previous point on the media; I sense that he was not that satisfied with my response. I want to make a couple of other points from the briefing that Mr MacQuarrie has helpfully given me.
While I have absolute privilege in issuing reports to the complainant, the sponsoring member or the public body concerned, I do not enjoy that protection if I move into the public arena - that would change the nature of that privilege. Assembly Members can express their concern or dismay at the handling of a complaint. Key principles are involved which should be protected, particularly the principle of privilege.
The integrity of the Committee and of any Commissioner it might appoint would be compromised if the details of a complaint became public knowledge or were the subject of a media debate before they were properly discussed by either the Committee or the Commissioner.
A judge conducting a judicial review on the authority and powers of a Commissioner would take a very dim view if a Commissioner decided to sponsor a problem himself in public, before the Committee to whom he was reporting had made its final decisions.
In my short time in office, it has been evident that there is a tremendous conscientiousness in the way in which the inquiries are progressed and processed. Often, members of the public are not comfortable with the written word - they find it difficult. They often have difficulty in articulating what they mean. We have tried to ease that by increasing our use of one-to- one interviews to help them describe their concerns. We have encouraged this development, as it helps the process. It also helps bolster the confidence that the individual member of the public will have in the investigation. However, it can be resource intensive.
Recently, Mr Burns made suggestions to the Chief Executives of public bodies on improvements and changes, and I have referred to those, as, after his term, he would be better informed about potential changes than myself.
In the recently published Calcutt review, the review of Ombudsmen's role in England, there is a feeling that people who have complaints about Government Departments should not just have to go through the relevant MP or Assembly Member to get them tested; they should be able to go directly to the Commissioner and not have to get them sponsored. That is one of Calcutt's proposals.
In Northern Ireland it would go through an Assembly Member. Should we keep that channel for complaints or should the citizen be able to go directly to the Ombudsmen?
Powers to initiate, in other words not waiting for a complaint to be received, but being able to initiate investigations without a complaint, is another issue.
If there is a cluster of complaints in a Department about a particular procedure or area of work, should a Commissioner be able to decide that, as there is a pattern, he should not have to wait for a complaint to arise, but should be able to test the issue to see what the problem is? The introduction of such powers, no matter how circumscribed, is certainly under discussion.
Perhaps there should be a review of public bodies' internal complaints procedures, as they are often the source of complaints. Citizens can be disappointed in the way in which a body dealt with them: rudeness or a lack of openness or constructive dialogue. It might be possible for an Ombudsman to look at the internal complaints procedure in such cases.
Those were the three key areas that Mr Burns felt, after his experience, might be opened up and debated in terms of new levels of authority for the Ombudsman.
Mr McCarthy: What is the position of those proposals, now? Are they sitting somewhere, or are they being pushed forward to someone?
Mr Frawley: I am going to pick up on those issues, having just taken up the post. I will have to develop a whole new interface with the Assembly. That is something that is important to me, both in terms of this Committee and other Committees where I have, for example, a concern about the Health Service or planning in the Department of the Environment. I would open up dialogue through that forum and through any other Committee that would be interested in taking forward those issues.
The decision on those extensions of authority lie within the gift and remit of the Assembly, because they would require administrative or legislative changes.
Mr O'Connor: Have you ever had a case of non-co-operation? I see in your complaints procedure that if a case is found to be justified you can recommend that the body can remedy the situation, but that it is under no legal obligation to do so. You say they may consequently have redress through the courts. If we are going to appoint a Commissioner and people ignore or do not co-operate with him and all he can do is make recommendations which do not have to be followed through, how much would that neutralise the position? You say that around 90% of people do co-operate. If, for example, one of my employees complained and you felt that it was justified but I decided that I was not going to talk to you, what would you do?
Mr Frawley: The first aspect of this situation is as I have already explained - and I am conscious you joined us late - that people can be compelled to co-operate, there is a legal recourse through a High Court decision open to me if people refuse to co-operate. However someone could ignore the recommendation and I shall ask Mr MacQuarrie to deal with that.
Mr MacQuarrie: The Ombudsman's Office operates under two separate pieces of legislation, one is the Ombudsman (Northern Ireland) Order 1996 dealing with Government Departments. In Northern Ireland over the 31 years that the office has been in existence, no Government Department has failed to accept our recommendation. If they were to do so then the Ombudsman would make a special report to the Assembly and it would fall to the Assembly to send for officials and the Minister, if necessary, and ask why that recommendation had not been implemented.
Under the Commissioner for Complaints (Northern Ireland) Order 1996 where we deal with the wider public sector, if a recommendation is not implemented then the opportunity lies with the complainant to go to the County Court and present the Ombudsman's report and ask for damages on foot of that report.
Since the inception of the office there have been about 30 cases where that occurred. These were very early on in 1969 and the early 1970s. There have been none in my memory of the office.
Mr O'Connor: If a Commissioner were to be appointed he would need to have similar powers to the Ombudsman to compel people to co-operate with him.
The Ombudsman generally would not investigate a complaint if it were about Government policy or the content of legislation. When you talk about Government policy, for instance, I had a phone call this morning from someone, a member of whose family had a pacemaker fitted in the City Hospital. He was put into a chair within hours of the operation and had to sit on that chair for a day because they needed the bed. It is a direct result of Government policy that the man had to do that. How much does Government policy hamper your work? If you are seen to be independent, then you should be able to criticise the Government or this Committee. If you are independent, you can say the Government is wrong, the Department of Health is wrong, Mr O'Connor is wrong, the Chairman is wrong.
Mr Frawley: I would have a feeling everyone is out of step except me at that moment. We deal with individual complaints. It is possible to take any individual's experience and track it back to a Government policy, but the important thing is to meet with the concerned person to explain the outcome. We would also look at the clinical context within which someone has been put on a chair, so we would ask for medical advice as to whether that was reasonable or unreasonable. Government policy or not, in the event that someone was put on a chair when it was clinically inappropriate, then we would challenge the institution responsible, if it was considered inappropriate. It would be for that institution to challenge Government policy in terms of funding or other issues. Our finding would be that we were clinically advised that it was not acceptable.
Mr A Doherty: In your opening remarks, you stressed the need for absolute transparency and openness in the conduct of your business. Against that, you suggested that your investigative processes are totally private. There may be some difficulty reconciling those two things. The Assembly Committees have, rightly or wrongly, been criticised for a lack of openness in their conduct in their dealings with the public. Have you any suggestions about the degree of openness that would be appropriate for this Committee, which has been charged with making judgements about the conduct of Members? What is the effect of too much openness in the course of the investigation.
Mr Frawley: That is the balance. In relation to transparency, in the future, I want to move into the public arena more in order to explain to the public the role of the office and how it works and to take on suggestions about how it can be improved. John MacQuarrie has already alluded to attitude surveys and focus groups that we would like to have. Transparency in terms of the role itself is the first thing.
The second point is in relation to individual cases. The complainant and the person complained about have rights. I see the transparency as being around that interface; that they are kept absolutely appraised of how the enquiry is moving and that they have the opportunity to comment if it is not complete, or if other issues should be considered. The person complained about has an opportunity to offer views in this iterative way. I see transparency at that local individual level, but I would not commend running it as a public hearing because that has the potential to prejudice the interests of all parties.
From 2 October, we are going to see a transformation with the application of the European Convention on Human Rights. We will see a whole new arena of requirements for public bodies and everyone in terms of the Human Rights agenda that will then come into play.
It may change a number of these issues because I think individuals will challenge the confidentiality which has applied up until now. We will see a new dynamic and we will have to respond to that. Those issues are dynamic and changing, but I think the transparency of the individual case is between those complained about and the complainants. The transparency, in the wider sense, is about us explaining to the public how we work, looking for ways that would improve that transparency, and broadening that understanding - that would be the way we would move forward.
The Chairperson: If this Committee does decide to go ahead with the appointment of an Assembly Commissioner for Standards what type of skills and background experience do you think we should be looking for?
Mr Frawley: Two things - one is obviously an independent mind, someone who is robustly independent and objective. It is helpful to have experience of public life and public service because I think that brings its own pressures and demands, which I think needs to be understood by whoever is making judgements. The person would need integrity in terms of judgement because the pressures, particularly in the role of an Assembly Commissioner, will be intense because of the inevitable political perceptions of decisions or investigations. That, in turn, requires a person who is extremely competent and impartial. Finally, there is a need for responsiveness, because people want to see someone who moves forward in a sensitive way, but who is also moving forward and bringing things to a conclusion. So, decisiveness based on sound judgement and an ability to see the whole picture are the sort of skills that someone should have in this role.
The Chairperson: Thank you very much. On behalf of this Committee, I thank you for what has been a very informative morning. It has been useful, and it has clarified a lot of issues. It will help this Committee reach its own conclusions on the problems that it is faced with, and on the way forward.
MINUTES OF EVIDENCE
The Chairperson: Welcome to the Committee, Ms Filkin. Perhaps you would begin by telling us the function of your office.
Ms Filkin: I am sure that many members will know what my office does, but I just thought I would tell you what tasks we carry out, so you will have a context for your questions. I am more than glad to answer any questions you have. My office has three jobs. The first and the most important one is to advise Members of Parliament on how to manage conflicts of interest, what the rules are, what the Code of Conduct says and how they should try to ensure that they do not break it. That is most important because Members of Parliament have better things to do than deal with complaints. They have to uphold the Rules and the Code of Conduct, which they have set for themselves, and I am there to help them do that.
From my own selfish point of view, preventing a complaint is much better than investigation. I am pleased that that area is a large part of my work, and it has grown during my period in office. I give advice to Members daily, and they ask me not only about the Rules and the Code of Conduct, but about things happening in their areas; for example, possible conflicts with their Local Authorities and personal conflicts of interest they may have to deal with, matters which they wish to handle in a proper fashion.
My second job is to create and maintain Registers of Interests, trying to ensure that they are comprehensive and up to date. I must also ensure that Members have fulfilled their obligations in relation to those registers. The most prominent - the one you hear about in the newspapers - is the Register relating to Members of Parliament's Interests. We also keep Registers of House Journalists' Interests as well as those of Members' assistants and staff. We are also responsible for ensuring that All-Party Groups uphold the rules that apply to them - registering their Members, meetings and so forth. That is the major administrative task we do all the time.
Of course, all that provides ample opportunity for giving Members advice, for they mention things they feel they need to register. In those conversations, we can often help people ensure that their affairs are tidy from the point of view of the Rules and the Code.
The third and most distasteful job - and I wish it would disappear entirely - is the investigation into complaints that Members of Parliament have broken the Rules or the Code of Conduct. I habitually say that people employed me under false pretences, telling me that the rules were now clear, and that, since everyone knew they had to keep them, the number of complaints would fall. Sadly, that has not been the case. I have had more complaints to deal with in the 18 months I have been in post than my predecessor had throughout the period he was there. However, it is difficult to make a complete comparison, for some complaints are fairly straightforward, while others are much more complicated. I have certainly had a considerably bigger workload.
The complaints are, as I have said, extremely disparate. Some are simple; for example, allegations that Members have not registered financial interests, declared them in a particular debate or breached the advocacy rules of the House. Other complaints are much more complicated, suggesting that Members have hidden or told lies about their financial affairs or that they have misused public money in one way or another. Though some of them require considerable investigation, I must say that Members of Parliament deal with the vast majority of complaints absolutely properly. A complaint comes in, and I send it to the Member concerned. He is often shocked that it has happened and comes to my office quickly to give me the facts, which may or may not be in line with what the complainant alleged. I can often sort the matter out or if the complaint is upheld, I will report it to the Standards and Privileges Committee. In the majority of the complaints that I have seen, Members are absolutely straightforward and apologise when they have made mistakes.
Complaints require much more attention when people do not tell the truth, and when the person complained about may try to discredit the complainant. Some of those require considerable investigative work. For example, if financial affairs are kept offshore, one cannot easily obtain records through the powers of which my office can avail. There is no time limit for investigating a complaint, and how much work I do on a complaint is entirely a matter for my judgement. For example, I have three complaints ongoing at the moment, on which I have not yet reported, that I began investigating in January 2000.
I shall report on one of those shortly as I have now completed my investigations. One of the reports is not completed because the investigative work is very complicated. Last year, one of the biggest cases that I was involved in took over nine months to investigate.
After I have investigated a complaint, I report to the Standards and Privileges Committee, whose task is to decide whether they agree with my report. That Committee can call witnesses, and it can also ask me to undertake further investigative work.
If the matter is serious, the Member is called before the Committee. In that case, the Member has the opportunity to make a statement, and the Committee has the opportunity to question him. The Committee then publishes its report back-to-back with my report, complete with all the evidence. If on any occasion my opinion and that of the Committee diverge, the public would have both views to consider. The report is published in full so that everybody can see it.
The Committee is also responsible for determining any recommendation for punishment. If it is recommended that a Member should apologise, the Member does this in the House at the earliest convenient moment. The punishment recommended can also be more serious. Last year the Committee imposed the most serious punishment yet on a Member of Parliament. This was in relation to a case that I had investigated, and the recommendation was one month's suspension. All recommendations are debated in the House before a final decision is made. In this case, the Committee's recommendation was accepted. However, if a Member is suspended, the Committee and the House are always concerned, because this means that a set of people are not being represented. They are loath to suspend a Member and the situation has to be very serious for this to occur. To suspend for a month is viewed with great concern, because voters have decided that the Member should represent them.
When a Member is suspended, he loses pay, he is not allowed into the House and he cannot use his office for that period. That is a serious humiliation for the Member concerned.
Those are the jobs which my office undertakes.
The Chairperson: What strikes me about your presentation is the workload. In terms of numbers, the House of Commons is much larger than our Assembly. How many staff work directly for you?
Ms Filkin: At the moment I have three full-time administrative staff - one at Clerk level and two at senior administrative level. I also have two clerical typists. I am being staff inspected at the moment and have been told that another secretarial post will be recommended. I also hope to get at least another half, if not a whole, Clerk post.
At the moment, the Clerk and I are the only two working on the investigative side, so the workload is very heavy, much more extensive, in fact, than the hours for which I am employed.
Mr Wells: When this issue was being debated you said that if the Rules were clearly laid down your post could almost be dispensed with, because Members would know where they stood and what behaviour was acceptable.
Are Members transgressing more, or are the public, organisations and other Members -having become more aware of the Rules - reporting more often?
Ms Filkin: I cannot answer that question from first-hand experience, because I have not been there that long. Long-serving Members of Parliament tell me that, prior to the Nolan Inquiry, the Rules were, by and large, administered very laxly. Lots of Members had lots of interests, but they did not register them properly and they did not handle them properly.
After the Nolan Inquiry, the setting up of my office, the clarification of the Rules and the publication of the Rulebook, the majority of Members of Parliament probably shared your view: "It is all now clear. People do not want to fall foul of these rules, so they will stick to them, and surely we are not going to get any complaints". Sadly, that has not been the case for two reasons. First, a lot of Members have very complex financial affairs that change frequently. They give up one directorship and take on another, they take on a consultancy and they go on trips; they do a lot of things. Their position alters. Some of the things that people complain about may be mistakes. Sometimes people do not get round to registering their interests speedily or properly enough.
Part of what you say is correct. More people are looking out for these things, some in the opposite political party. About half of the complaints come through Members of Parliament. Both major political parties are much more aware of how they can attack the other side by making complaints. They are, of course, partly informed by their constituents, who, since the Hamilton affair, have been much more concerned about propriety and about the rules being kept. They become concerned if they feel there is anything untoward in their own Member of Parliament's situation or indeed in that of another Member. It is a mixture of things.
Another thing that is gradually changing - I do not know whether the same is true here - is that people are less deferential. There was a time when people thought all Members of Parliament were totally upright and would not have complained about them. Now there are a lot of members of the public, and indeed of the press, who do not feel that way. They have a commitment to the institution of Parliament, and they want things to be right and clean. If they feel that they are not, they are going to take action. It is quite complicated.
Mr Wells: There are only 108 of us while there are 659 Members of Parliament. One of the questions we will be thinking about is whether we need a full-time or part-time Commissioner. Would a perusal of our Register of Members' Interests give you an indication of the likely casework?
Ms Filkin: No, not at all. All your Members may be absolutely scrupulous in getting their entries right, in taking advice and in going out of their way to make sure that they do not have the irritation of a complaint, let alone something more serious. You cannot tell from that. Neither can you tell just from your Register of Interests. There will be other conflicts of interest that Members have not thought of. Perhaps they ought to have, but they will not have, so there will be mistakes. It is one of those situations in which you have to make a guess at the hours needed and test it. Then you either reduce or extend it.
Mr O'Connor: Not all Members have sent in their forms. It could be that they do not have any other interests. Do you feel that if someone does not have any other interests, he should at least make a nil return?
Ms Filkin: Yes. I have insisted that that happen since I have been in post. Before, we had exactly that situation. People who did not have any interests, or did not think that they had, just said "I have not got any", and did not do anything about it.
I have insisted people make a nil return, saying they have no interests. If there are complaints, I can say "You were asked all these questions, and you did not get the answers right".
Mr McNamee: As you know, this Committee is considering the appointment of an Assembly Commissioner to deal with matters you have mentioned such as the Register of Members' Interests and giving Members advice on their interests. You might find that many of our questions deal with the investigative nature of complaints, which has been an issue for the Committee in its consideration of the appointment of a Commissioner.
I have two related questions, and the first concerns your relationship with the media in all aspects of your work, particularly with regard to investigating complaints. Do you liaise with them? If we appoint an Assembly Commissioner, what should their role be?
Is there a timescale in which the investigations of complaints should be concluded? If a complaint made against a Member becomes a public issue, it is covered in the media. While the investigation of that complaint is ongoing, it can have a negative effect on that Member's image, though it may subsequently be disregarded or fail to be substantiated. Without at least an advisory timescale for dealing with a complaint, a Member can suffer adversely from the fact that a complaint has been made against him, even though it might be without substance.
Ms Filkin: Those are very important and tricky questions. The first critical thing is protecting the independence of the Commissioner, and the Standards and Privileges Committee in Westminster certainly does that. Though, as Commissioner, I work to and serve a Committee of Members of the House of Commons, it is recognised that my post and office are independent.
Members of the press protect that independence. I am therefore not held back from speaking to them, something I feel is critical. Having said that, I never speak to the press about complaints that have come to me. Indeed, I investigate many complaints which never get into the press until the reports are published. I do not inform the press that I am dealing with a complaint, but, of course, complainants or, indeed, Members complained about may do so.
If the press contacts us, saying that it understands from "Mr X" that he has made a complaint to me, I confirm or deny it. Often, "Mr X" says that he has made a complaint, which is then all over the press, when I have not had a complaint at all. Many times, when the press publishes stories saying MP "X" is referring MP "Y" to Elizabeth Filkin, I have not actually received a letter on the subject. In the past, I have been able to prevent certain stories running about Members in that way. Often, however, I cannot, since they are in the press before I even hear about them.
Being concerned about fairness to Members, I have recently decided that, once I have taken on a complaint for investigation, I shall neither confirm nor deny to the press whether I am investigating it. We say to the press that if "Mr X" says he has made a complaint to me, they should ask him for a copy of the letter. If he believes that MP "Y" is being investigated by me, I say to ask the latter if he has had a letter from me. In this way, it is all pushed back on to the people concerned. That has not done much, although it may have had some effect, since most press reporting, as I say, originates from the person making the complaint.
Having said that, we are careful never to speak to the press about the conduct of an investigation, other than to confirm that it is ongoing. We do not give the press any information about the outcome of a complaint until my written report is published. Then if a journalist rings up to say "I don't quite understand why you said the following at paragraph 3", we will give factual information to clarify the situation, but nothing else. It is, however, a real issue.
People raising complaints to harm their opponents - and there is a very even division on that front in Westminster - is a real issue, and obviously I deplore it. Nevertheless, there are many instances in which it is very important for the Member of Parliament that an investigation takes place. I will give you an example of a case that I investigated last year, relating to a Member of Parliament. Great allegations of sleaze were made in his local area, and they appeared all over the local papers - in fact, the allegations have appeared twice since the last general election. Finally, somebody referred the matter to me. I looked into it and found that everything had been investigated properly - there was nothing further to investigate, and nothing was outstanding. I published that report because that MP could then use it locally to clear the matter out of the way. It can therefore be of value to people, but I take your point that often a complaint can hang, very uncomfortably, over a Member's head.
My position on timing is that it takes me as long as it takes me, and if witnesses are interfered with and prevented from giving me information, it may take a long time. In some instances the implication will be that the Member is involved in putting pressure on witnesses, which is obviously a very serious matter. Of course, some complaints, where a Member has acted absolutely properly throughout, take a long time to investigate. That is a terrible worry for that person while it is going on.
Mr McCarthy: How does the Committee on Standards and Privileges oversee your work as Commissioner for Standards? Are there any changes you would like to see made to the Committee's role in overseeing your work?
Ms Filkin: Over the last 18 months the Committee has met almost every week. That is because of the work resulting from the number of complaints that I have had. Therefore every week some of my work is seen by the Committee. The Members also have the written reports from me, and they have to consider them to see whether I have carried out sufficient investigations, or too much. They have to decide whether my judgements are sensible and what they think about the matters. Of course, they have every opportunity, because it is in private, to say those things as forcefully as they wish. They subject my work to considerable scrutiny. They are careful to maintain a proper line between scrutiny and my independence. The Chairman and the Members are very careful to raise points with me, but not to say that I ought to do what they tell me. They do not make any assumption that they should.
The other job of the Committee is to clarify the rules as they go along and to suggest changes to those rules. I have an input on that front too. My advice is sought. I am asked what sort of complaints I have had to do with a particular rule, and for my view on what would be sensible before the Committee comes to its views on those matters. That provides another way of scrutinising.
The only thing I would like - but I cannot think of a sensible way of getting it - is a less distant relationship, because it is a very isolated role. However, I cannot think of a way to play the role without keeping it isolated.
Mr Wells: Do you get many Christmas cards from MPs?
Ms Filkin: I do get some, with good jokes in them, but one is in a very isolated position. Luckily, there are now people in such roles in Wales and - just appointed - in Scotland. I hope you will have somebody similar, so that there will be other people with similar tasks, but the comparative isolation of the post is a difficulty for the Committee and for me.
I have regular meetings with the Chairman, and that is very helpful.
Mr Wells: We may be looking for a Commissioner ourselves. What personal qualities do you bring to the job? What is your background and is it typical of someone in your position?
Ms Filkin: That is a difficult question. I can tell you about my professional background, which will give you some help, but personal qualities - I will try to do a bit on that.
My last job was as Adjudicator for the Inland Revenue, Customs and Excise and the Contributions Agency. I investigated complaints about those large Government Departments. I had a large staff to do that and I was making recommendations to the Departments about what complaints showed about their systems, the way they treated the public and so on. I saw myself as using the complaints mechanism to bring about change of practice. Prior to that I was a senior manager in the public service. I was deputy chief executive of London Docklands, and before that I was the chief executive of the Citizens Advice Bureau service for Britain. I have run things and that matters.
In my last two posts, the public sector posts, I was allowed by the Government to take some non-executive directorships. I was a non-executive director for a large building society and a large IT company. I have sat on the Boards of large companies and know how all that works. I have a track record of conducting thorough and fair investigations and, as the press said, making tough decisions. I hope I brought an understanding of the difficulties of running things and being in public life to my work, as well as the support people in public life need to do those jobs properly. I also hope I understand that all of us are human and make mistakes. You do not have to make a big deal out of people making mistakes, but when it is more serious you do have to take it very seriously.
On the subject of personal qualities you have to have some sort of intellectual capacity, because you have to be able to get your head around this stuff, a lot of which is very complex - some would say boring. For example, if you are reading people's tax returns or company accounts, you have to be able to understand them. Through those various managerial tasks I have also learned how you weigh up whether people are telling you the truth or not, because that is very important. I can work with other people and get help from elsewhere because if you are running a little office, like I am, you are reliant on the support of other people. You have to get the Department of Trade and Industry to produce stuff, get Companies House to produce it and get individual barristers to produce it when they are being instructed by their clients not to. You have to have a capacity to create working relationships that actually deliver the goods.
Mr Wells: Say you are having your breakfast. You are reading your newspaper, and in it there is a salacious allegation of impropriety against an MP. Can you do anything about that without a formal complaint from a Member? Is it the case that if nobody complains nothing happens?
Ms Filkin: I cannot, but the Committee can. I cannot see that happening at Westminster because it would be such a gift to the other side. If the Committee decided that there was something going on that nobody had raised in a complaint, the Committee is at liberty to say to me "Please, Commissioner, go and investigate the following".
Mr Wells: Equally, in the course of your investigations, you find the MP has had an allegation made against him. In the papers you suddenly discover another. Would you put that in your report?
Ms Filkin: Yes, I would.
Mr Wells: Even if it were a totally unrelated issue?
Ms Filkin: Yes, everything.
Mr Wells: If he were defrauding company A and you found he were defrauding B and C, that would go in without a specific complaint?
Ms Filkin: The complaint triggers the investigation. My findings resulting from the investigation go into my report.
Mr Wells: If you read the Register of Members' Interests and you see - as I have done here - that someone has not declared an interest, can you inform him that you know of an interest that has not been declared?
Ms Filkin: We go as far as possible. That is about giving private advice. We always try to ensure that Members do not have complaints made against them. There will be occasions when we think something has not been declared, and my office will ring the Member's office and alert him.
When Members ask my advice about something - such as being given a sum of money from an organisation - I will always use that opportunity to ask if there are any other issues, which they think might cause problems. Often Members will talk to me, and they will tell me that they have been wondering about something or other.
We try to be helpful in those situations. However, if the Member decides that he is not going to declare something, there is nothing I can do until a complaint is received. I often get complaints in which I have to report that "Mr X" came to see me; I gave him advice; he did not follow it; and now I have got this complaint. The Committee takes very seriously cases in which a person has received advice from the Commissioner and has not taken it.
The Chairperson: I hope Mr O'Connor and Mr Doherty will forgive me but I find this subject intriguing. If a television programme or investigative journalist accuses a Member of some misdemeanour and a Member of the Opposition writes to the Committee on Standards and Privileges pointing out the programme or item, would you automatically initiate an investigation? Would it be up to that Member to ask the journalist or programme producer to substantiate the claim before you would begin investigations? What is the procedure?
Ms Filkin: The procedure for investigating complaints is very clear. I have to be satisfied that I have sufficient evidence to mount a preliminary enquiry. I judge what is sufficient evidence. The rules also say that I would not normally investigate something just on the strength of a newspaper report.
However, taking your example, if there is a television programme in which a set of people say something and it contains supporting evidence, and if the matter is brought to me as a complaint, either by an MP or indeed the investigative journalist, I have to decide whether there is enough evidence to enable me to investigate it. I have to decide whether there is enough to at least enable me to put the matter to the Member and ask for his comments.
The Member may be able to satisfy me about the matter - he often can. It could be that the person making the programme or writing the article has got the wrong end of the stick. It could be that the facts are wrong. In those circumstances, I can write to the person complaining and say that the complaint against "Mr X" has been put to him, he has told me that the facts are as follows, and unless the complainant has evidence to the contrary, I shall not be investigating the matter. I would ask for any further evidence.
I have to make a judgement as I go along. I can dismiss a complaint at any point - and I do. Sometimes I complete the preliminary enquiry and do not take it any further because the MP has satisfied me that all is in order.
Mr A Doherty: I am not sure how my questions relate to the very intriguing discussion we have just heard. The question of standards, particularly in respect of the declaration of interests, is complex but relatively straightforward in that there are facts to be determined.
My difficulty is with the question of misconduct, and the relationship between Members of Parliament, Members of the Assembly and their colleagues, or between Members and Assembly staff.
I am talking in terms now of behavioural misconduct - either verbal or physical abuse or other things that people do when they are tired or emotionally disturbed. What, in your experience, is the best way to deal with complaints that refer specifically to misconduct or behavioural questions?
Ms Filkin: My responsibilities extend to Members of Parliament's actions as Members of Parliament, and sometimes it is quite difficult to judge whether a person was acting as a Member of Parliament or as a private individual. The rules in Westminster are focused on financial interests. It is an odd set of rules in a lot of ways in that they are not clear; they operate on a set of assumptions. They do not say that Members are expected to tell the truth, or to be honest, or to only get themselves involved with reputable companies. They do not say any of those things. They are based on a set of assumptions, that those would be what a proper MP would do anyway. Obviously there would be situations in which it would be sensible if those assumptions were written down.
I have no jurisdiction to look into the behaviour of Members of Parliament towards staff, their colleagues, or members of the public. Certainly I get a lot of complaints about how Members of Parliament have handled a constituent's affairs, which I can only reply to by saying that I am sorry but that is not my area of responsibility. It is entirely up to a Member of Parliament to decide how he deals with a constituent's affairs. In many instances, I am comfortable with that, because it will be someone who thinks a MP ought to have done more about an individual case, or who does not agree with a Member of Parliament's point of view, or feels that cause X or cause Y has not been promoted enough. And obviously these are not things that I ought to look into at all.
I do get some complaints about how an MP has written to people. The sorts of things that, if I had been in my previous role of looking at how officials dealt with people, I would have been able to say that what the official said was perfectly correct, but he wrote it in a very rude manner. I have no jurisdiction in relation to those sorts of matters. Only an MP's party would be able to take that up for a person.
Mr A Doherty: Do you feel that the Committee should not have the same limitations as yourself, or should it have responsibility or authority? It could be something as crude as a Member verbally or physically abusing a colleague or a member of the public. Part of the Rules of the Code of Conduct is that you should not do anything that would bring the House or the Assembly into disrepute.
Ms Filkin: In Westminster the Committee could investigate anything it wished, if it so desired. It could look at things like that, or at people's sexual behaviour, or any of those things. It has not done that in the past. It has steered clear of it. I can see why. The responsibilities that the House has given the Committee are, as you have said, to ensure that its good name is upheld, and the Committee could, if it chose, move down that route.
Mr A Doherty: I have one final issue. I know that I am straying into other areas of responsibility, in particular the responsibility of the Speaker.
The question of absolute privilege in the House, where a Member can make allegations about the conduct, behaviour or character of another Member without substantiation, is an issue that causes me some difficulty. In essence, it acts against normal justice to make an act of injustice against another person. It probably should be the Speaker's responsibility to deal with this, but is there such a case of an abuse of absolute privilege where you, as an adviser to Parliament and to the Speaker, can intervene?
Ms Filkin: I have no responsibilities of that kind. Such matters are the responsibility of the Speaker on the advice of the Clerk. I take your point because I agree that it can be a serious one. However, it is one of those situations where many abuses can occur with or without restrictions. Members operating under privilege, and being able to raise them in this situation, have brought some serious injustices into public view. So it is a situation where you get some misuse of that power, but obviously that power is very important.
Mr O'Connor: Ms Filkin, you said that you were allowed to take non-executive directorships. The adviser to the National Assembly for Wales, Mr Penn, said that as he was a member of a political party upon his appointment to his new position, he felt morally obliged to resign his membership in order to protect the integrity and independence of his new post. Should there be a Register of Interests for yourself in order to avoid other people's perception that you might deal less thoroughly with someone from the Labour Party than the Tory Party or vice versa? Similarly, in such organisations as the Freemasons, there may, rightly or wrongly, be the perception that there is a boy's club or that they are protecting each other. How important is it, not only to be independent, but also to be seen to be so by everybody who deals with you?
This is a more personal issue. In entering such a male-dominated place as the House of Commons, have you ever felt that people have been dismissive of you? Did you get full co-operation from other people?
Ms Filkin: I agree that one not only has to be independent but one also has to be seen to be independent. When I was appointed, the Speaker's Commission asked if I would be willing to give up my non-executive directorships to take the post. I said that the same test should apply to me as applies to Members of Parliament. If anybody might think that there could be a conflict of interests I would give them up. When they offered me the job they offered it on the basis that I did give them up. I was slightly shocked by my reduction in earnings but other than that I could see the point of doing it, so I willingly went along with it.
The case was the same with regard to political parties, but I confirmed that I was not a member of one.
When you do something that a Member of Parliament or a party does not like, they say that you are in the pocket of the other party. I have been accused of being pro-Conservative and pro-Labour, so I suppose I am getting it right.
I have not been accused of that, at least not to my face or in public, by either party; rather by individual Members whom I am investigating - or by the odd newspaper which is on the side of a particular person for a moment. I hope I have got that right, but you would only be able to find that out by asking Members of Parliament.
On your question about what it has been like to join this very odd male-operated place, I have not found that an issue at all. As in any situation, and I have had to go into many in my career, you have to establish yourself as being competent, and that takes a bit of time. It often takes a bit more time if you are female, but once you have done it you have got there. As a female, you are lumbered with being told that you are a terrible old bag who always finds fault and does not see that chaps go on like this, but that is life. I am sure I would get it if I were a chap. That is just a sort of tag to hang it on if you do not want to be criticised.
Mr O'Connor: Does the type of person that we need to appoint, whether male or female, need to be very thick skinned and very determined?
Ms Filkin: Very thick skinned - or very thin skinned, but do not let anybody see if you are thin skinned.
Mr Wells: Would you like a job here?
Ms Filkin: I would love one. I cannot think of anything that would be nicer!
The Chairperson: There are obviously times when your opinion or findings are not accepted by the Committee. Do you have any difficulty with that? Do you want to elaborate on any aspect of that?
Ms Filkin: I have publicly reported on 24 cases and the Committee has agreed with my decisions on all of them except two small parts of two cases. It agreed with me on all counts except one in relation to the Peter Mandelson case. The members thought I was too hard in one item. They are entitled to that view. I disagree with them. The other was the case involving John Prescott, when they thought I was too hard in one item. I am comfortable with the Committee having a different point of view, and my first response is to look again and consider my view because I might be wrong. I do not think that I was in either case, but you are welcome to read the Committee's view - and mine - because they are public.
Mr A Doherty: Would you prefer to be thought of as being too hard on a person rather than too soft?
Ms Filkin: I do not wish to be either hard or soft. I want to be absolutely accurate.
Mr O'Connor: You mentioned the importance of being "around the block" when somebody is, as we say in Northern Ireland, "swinging the lead". That is when someone is talking around the matter, without actually telling you the truth, or is misleading you. As far as I am aware, you do not take evidence on oath, although you can. If in a court someone were to give evidence on oath, the judge would take it as more likely to be true than evidence not given on oath. If someone decided that they would rather give a sworn statement to you, would that have any more credibility?
Ms Filkin: Not necessarily, because you have to make up your mind whether you are being told the truth. Many people swear on oath and do not tell the truth. However, it is useful to include that provision, particularly for the Committee, because undoubtedly some people think more carefully about their answers when they are under oath and are aware that, if they do not tell the truth, they can be charged with perjury.
I am glad that that facility exists, but it is my job to listen to what people have to say, make a judgement about the content of what they are saying and decide about their credibility as witnesses. I try, in all situations, to get reliable corroboration. It is an internal investigative process, not an adversarial prosecution process, and I collect the facts to try to establish the truth. I present my findings to the Committee, which are open to challenge by the people who hear what I have to say about their truthfulness. In many instances I hope that I can establish whether people are telling the truth by getting at the facts, but that is not always possible.
A case in point, which highlights what I do, was the case against Teresa Gorman. If I had taken the original statement on trust then I would never have got at the truth. As shown in the report, I had to get the corroborative factual evidence, and that undermined what she had told me.
Mr O'Connor: In a case such as that you rightly said that there would be a humiliation factor. In your report, are you so blunt as to say that Mrs Gorman told you lies?
Ms Filkin: I do not need to be so blunt. I can say that "Mr X" - let us make it anonymous - says the following, but I have collected the following facts and "Mr X" was not accurate in what he told me.
Mr O'Connor: At the time of the next general election, could someone release a statement, on a piece of election literature, questioning Teresa Gorman's integrity?
Ms Filkin: They could, but they are constrained by the law and would have to ensure that they did not fall foul of the libel laws.
Mr O'Connor: If it has already been published in a parliamentary report?
Ms Filkin: Yes, the findings in all of these complaints are made public.
The Chairperson: Commissioner, thank you for coming. I have appraised the other members of the good meeting we had in Westminster last week, and I am sure that the Committee members have learned a lot in the past hour. As a new Assembly in a new political era we have a difficult job, but this is one of the most important Committees of any new Assembly. The role of a Commissioner, if we decide to appoint one, will be central to our new politics. It is a steep learning curve but an interesting one, and we are trying hard to get it right first time. May I thank you, once again, for your special contribution.
Ms Filkin: Thank you. I am delighted to have attended, and I share your view that you have a very important task for the future of this place. It is vital that the work of this Committee is carried through effectively, and if there is anything that I can do to assist you or your officials, I will be only too pleased to do so.
MINUTES OF EVIDENCE
The Chairperson: It is great to have the experience of Commissioners from other Assemblies. Perhaps you might like to kick-off by giving us some background information.
Mr Rumbles: Thank you for inviting me. It is important that we share the Scottish Parliament's Standards Committee's experience in developing procedures for investigating complaints against elected Members. As a Committee, we have found the experience of other Parliaments and Assemblies invaluable in informing us and informing our thinking on the issue.
I will begin by giving a brief overview of the Scottish Parliament's Standards Committee's work in the last year. The Committee has had an extremely busy and productive first year. It has been heavily involved in developing the Rules and Regulations that cover Members' conduct in the Parliament. A significant achievement was the drafting of a comprehensive Code of Conduct for Members of the Scottish Parliament. It provides a useful guide for Members when carrying out their parliamentary duties and underlines the Committee's and Parliament's commitment to maintaining the very highest standards of probity.
As well as introducing the Code of Conduct, the Committee has produced reports on the regulation of cross-party groups, an interim complaints procedure and the Register of Interests of Members' staff.
The Committee had to depart from its early work on the Code of Conduct when we were faced with allegations made by 'The Observer' newspaper in September of last year. This led to a complex enquiry which came to be known as "Lobbygate" and which attracted intense media interest. Our experiences as a Committee during "Lobbygate" were invaluable in framing our thinking on how complaints should be investigated in the future. Consequently, for much of this year the Committee has been conducting a wide- ranging inquiry into identifying the most appropriate approach to investigating complaints against MSPs.
We took evidence from a range of witnesses, including the Neill Committee and Elizabeth Filkin. Our report, which recommends the appointment of a part-time Standards Commissioner to Parliament, will be published soon. We are just awaiting the final comments from two of our members who are at the Scottish National Party conference this weekend.
I will be happy to map out the Committee's route in reaching its conclusions, but as the report is as yet unpublished and therefore confidential under the terms of our Code of Conduct, I have to confine my remarks to those aspects reflecting our public discussion of the issues. Our meetings are very open and are on public record. However, the meetings are confidential when Committees of the Scottish Parliament meet to put their draft reports together - as may be the case in the Northern Ireland Assembly. The vast majority of our meetings are open, so I can give you an insight into our thoughts and how we reached our conclusions.
The Chairperson: How many staff do you have at your disposal?
Mr Rumbles: Dr Jones' predecessor was part- time. It was not as busy then as it is now. Dr Johnston's post is full-time, and we have some other clerical support.
The Chairperson: Is that adequate?
Mr Rumbles: It is sufficient, although the Committee has been hard-pressed at times. I have been surprised by the amount of work that we have had to do, and it is not all based on complaints. I have already told you about the reports that we have put together. We are now in the process of launching an investigation into the issue of lobbying companies and their influence or potential influence on Members. We have started off that process by sending a questionnaire to all MSPs and we have had a good response. Now the Committee members want to invite written evidence from lobbying organisations, and we will discuss that at the meeting next week.
Mr McNamee: Thank you for travelling here and giving us the benefit of your experience. I understand that the Scottish Standards Committee itself undertook at least one investigation into a complaint. Complaints have been referred to this Committee and, through dealing with those, we have come to discuss the appointment of a Commissioner to investigate such matters. What issues and problems did you face when the Committee had to deal with complaints itself in the absence of an adviser?
Mr Rumbles: In hindsight, we were in a way perhaps fortunate to have the "Lobbygate" inquiry so early in our existence. Let me focus on the experiences that helped form our opinion on how to proceed. In September 1999, a quarter of an hour before the Committee was due to meet, the Clerk received a letter from 'The Observer', along with an unedited tape and transcript of a meeting in an Edinburgh hotel between two representatives of a lobbying company and a journalist posing as a businessman. This was the opening chapter of the so-called "Lobbygate" affair, which involved allegations of privileged access to Ministers in the Scottish Executive, including the Finance Minister.
The inquiry came at a very early stage in the life of the Committee. There was no Code of Conduct in place for Members, and the complaints procedure was non-existent - we had not got round to it. The Committee appointed a former local authority Chief Executive with extensive legal experience as an adviser to support the inquiry in a series of public meetings. The Committee took evidence from witnesses under oath and in public session. In the event, the Ministers concerned were cleared of any misconduct.
However, the experiences of "Lobbygate" were influential in framing the Committee's approach to developing a robust complaints procedure. In particular, we learned at first hand of the heavy workload - and this came as a very great surprise - which a substantial inquiry can impose on a Committee. No one knows when there will be a substantial inquiry, for it can happen at any time.
That had a knock-on effect on the Committee's ability to take other business forward, and our production of the Code of Conduct itself was delayed until the new year. The affair was a key factor in leading the Committee away from retaining responsibility for the investigation of complaints itself. The "Lobbygate" enquiry led to our own procedures being scrutinised in the press and courts. 'The Scotsman', for instance, mounted a legal challenge to the Committee's right to meet in private. Though we maintained our right to meet in private to deliberate on our findings, the evidence was all taken in public. The newspaper eventually dropped the action, but in the course of our inquiry into models of investigation, the Committee has looked at when, in the course of an investigation, it should meet in public and when it would be appropriate to move into private session.
Later in 1999, the Committee was called upon to investigate a complaint against a Member which alleged that, in receiving support from an interest group to draft a Private Member's Bill, the Member had breached the provisions of the Scotland Act 1998 (Transitory and Transitional Provisions) (Members' Interests) Order 1999 on sponsorship and paid advocacy. The Committee's investigation found that this support amounted to sponsorship and should have been registered. We asked the Member to comply. However, on the second charge of advocacy, which is a criminal offence, the Committee concluded that the Member had not breached provisions.
In the light of those experiences, we found there was a tremendous amount of work for the Committee to do. Sometimes, for instance, we met three times a week during the six weeks of that investigation.
We decided to look at four avenues of investigation. I know you are considering a Standards Commissioner in particular, but we decided to look at four options, the first being the continuation of the current procedure, with the Committee retaining responsibility for the investigation - in other words what we did at "Lobbygate". The second was investigation by an Independent Commission. In Scotland, we are to have an Independent Commission for local government, and there was the option of tying MSPs in under that Commission. The third option was investigation by an Independent Commissioner on the lines of the Westminster model. The fourth was investigation by an Advisory Standards Officer. If you wish, I can explain why we decided on a Commissioner.
The Chairperson: Yes, it might be useful to elaborate.
Mr Rumbles: We immediately ruled out the option of retaining automatic responsibility for investigating everything ourselves, because of the workload. We also rejected investigation by an Independent Commission - which would tie us in with the local authorities - because the local authority Commission on Standards will be appointed by Scottish Ministers. Since part of "Lobbygate" investigation was about Scottish Ministers, we felt it was inappropriate to be tied in to that Commission. That left us with two choices.
First, we could appoint an Independent Commissioner. An Act of the Scottish Parliament would be required to give that person full statutory powers and the authority to call witnesses. Secondly, we could employ a Standards Adviser who would operate independently of the Committee, but would report to the Committee. We could appoint an Adviser almost immediately and in fact we are doing so on Monday. We are appointing Gary Watson, who was the Scottish Legal Services Ombudsman. His post is part-time, and he will work independently of the Committee. However, he will rely on the powers of the Committee and will not have specific powers.
The Standards Committee has decided to recommend that the Scottish Parliament also appoint a Commissioner. This person would operate in effectively the same way as an adviser, but would also have special powers. The Commissioner should not, however, operate in the same way as Elizabeth Filkin. There are a number of important differences in responsibilities. When we took evidence from Elizabeth Filkin, an important point that emerged was the need to have a structure independent from the Committee, which could then advise the Committee. We felt that the initial filtering of complaints should be dealt with independently of the Committee and in private. This is in part because a number of malicious complaints do come in.
The Commissioner or the Adviser would then investigate independently of the Committee, and that person would identify the facts of the case. At the end of this process the Commissioner or Adviser would present the conclusions to the Committee, but would not present recommendations for action. These would still be the responsibility of the Committee.
There are other differences as well. For instance, the Standards Committee would reserve the right to determine whether any complaint which was not submitted in accordance with the procedures described above should, nevertheless, be considered. We would then have a proper complaints procedure, with everything in writing. We also have a caveat whereby, even if a complaint does not go though the proper route, we reserve the right to investigate. This is important as far as our deliberations are concerned.
Another difference is that, under the Westminster system, Elizabeth Filkin gives advice to Members as well as investigating complaints against Members. In the Scottish Parliament we felt that, considering the European Convention on Human Rights and the other implications of statutes and in fairness, the person that investigates a complaint should not be the same person who advises Members. Advice to Members would be retained with the clerking team. The Commissioner or Adviser would only be responsible for investigating, because we felt that there might be a conflict there.
Mr Doherty: Is it the case that the Committee has no role in a complaint until it receives a report from the Independent Commissioner? Is the complaint made directly to the Presiding Officer or to the Independent Commissioner, rather than to the Committee? It seems that you do not get involved until you receive the report.
Mr Rumbles: We retain the right to come in at any time. The normal complaints procedure depends on what the complaint is. For instance, if a complaint is made about Members' behaviour, I can deal with that. If it occurs in the Chamber, it is dealt with by the Presiding Officer. If it cannot be resolved to people's satisfaction, the Presiding Officer will refer the matter to the Standards Committee and we will deal with it. Our Code of Conduct includes an obligation on Members to act with courtesy and respect to other Members.
Where Members' staff are concerned, the situation is covered by the Equal Opportunities Regulations, which are integral to our Code of Conduct. Any breach of that can be dealt with by the Standards Committee.
Until now I, as Convenor and the Clerks have been in receipt of incoming complaints, and we have dealt with those on advice. The Standards Adviser will take up his post on Monday; he will receive all the complaints and will sift them. He will work closely with the Clerk and the Committee. This means that we will be aware of what is going on, and we can step in at any time. We think it is important to have an independent element in place, but if there is a major issue that we should be aware of, we will be kept aware of it. According to our procedures, we have retained the right to move in at any point.
Mr Wells: How many Members do you have?
Mr Rumbles: We have 129.
Mr Wells: We have 108. You have decided that the Commissioner will have a part-time position. What criteria did you use in deciding between full-time and part-time?
Mr Rumbles: Your point about the number of Members is very pertinent - with 659 in the House of Commons and only 129 in the Scottish Parliament, very different volumes are involved. Here we are in a similar situation. There is another subtle difference. In her evidence to you, Ms Filkin talked about the number of financial interests that Members of Parliament have. There is a financial orientation in Westminster. We in the Scottish Parliament took the view that financial interest and directorships were not on the scale. The complaints that have come into the Scottish Committee have not been of a particularly financial nature. If you accept that the "Lobbygate" complaint was about preferential access to Ministers, for instance, the complaint about another MSP was about breaching the paid advocacy rule.
Our lack of numbers is important. It is very difficult to assess how part-time a Commissioner or Adviser should be. The advert said that we wanted someone to be available for about two days per month, with the proviso that if there was a major inquiry, the successful applicant must be available at very short notice to conduct a full-scale investigation. Our "Lobbygate" experience showed that. We managed to conduct that investigation within six weeks. It was very much a full-time investigation. The person that we were interested in appointing was someone who would be available at short notice, but who would expect to work probably two or three days a month.
Mr Wells: Were you looking for someone with a legal training, or someone who had been on the boards? What sort of criteria do you establish when you are looking for that sort of person?
Mr Rumbles: We were keen to appoint somebody with extensive experience in conducting independent investigative work, so they had to have done investigative work of a similar nature. We also asked for proven analytical and reporting skills. We thought that that was more important. We were also looking at an individual with an understanding of the political and institutional context in which the Committee operates, but able to demonstrate political impartiality. That was very, very important. The Committee is confident that that fits the person we are appointing on Monday, Gary Watson, who was the Legal Services Ombudsman for Scotland. We have appointed somebody with all of those attributes. That was the type of person we were looking for.
Mr Wells: What administrative support will he have?
Mr Rumbles: He will be working with the clerking team. He needs to work very closely with the clerking team. We were very conscious that we wanted an independent individual, separate from the Committee, to do the investigative work, but he needs clerical support and also advice on what the Committee is thinking.
Mr Wells: Was your decision on the hours and the support team based on an examination of the Register of Members' Interests?
Mr Rumbles: Not particularly. There is a level of complaints that have been coming in.
Mr Wells: What are we talking about numerically?
Mr Rumbles: There is not a week goes by without something coming in, if I can put it that way. Two or three a week, when Parliament is sitting. I do not want to give you the wrong impression. It was a shock to me. These complaints come in either to me or to the Clerks' desk. On behalf of the Committee, I take the advice of the Clerks as to the nature of these complaints. In fact, I can take them to the Committee. By and large they are unsubstantiated.
Mr Wells: That means that in a year, every Member of the Scottish Parliament would have at least one complaint lodged against them.
Mr Rumbles: There are more complaints against some Members than others.
Mr Wells: With some parties you would get no complaints; with others they would be legions? The number of MSPs is similar to the number of MLAs. For various reasons, we are overmanaged as compared to Scotland.
Mr Rumbles: To be clear, the complaints are from members of the public. Do you see what I mean? They are not generally from other Members.
Mr Wells: I cannot envisage that. We have only had six or seven complaints in total since we started.
The Chairperson: Given the complexities of our political situation, that seems relatively low.
Mr Rumbles: I could blame "Lobbygate", but there we are.
Mr O'Connor: Perhaps the publicity surrounding the appointment of such a person would actually generate its own flow of complaints. The equivalent person in Wales works four days a month, and he is under pressure dealing with 60 Members. You have a retainer, you have said to this person that you are going to appoint, "We need you for four days a month," but there may be potential that they need him 14 days per month. If he is already working in other places and he is only available to you for one day a month, will he be able to fit?
In Northern Ireland there are a particularly large number of members of groups with non-financial interests, such as the Ancient Order of Hibernians, the Orange Order, the Knights of Columbanus, the Freemasons, and political parties. If someone from one of these organisations were appointed, they might be perceived in a more unfavourable light than others. Have you taken this into consideration when making your appointment? Would someone be precluded from being appointed to the position on account of their membership of certain organisations, clubs or directorships?
Mr Rumbles: The terms of the appointment for the post of Adviser were made quite clear. Interviewees were asked whether the job would take priority over all their other interests. They were informed that if, for instance, the appointment entailed just a few days of work each month it would still have to take priority over other income-boosting activities. We appointed on that basis, so the people we interviewed knew that. That was our expectation.
We were here last September when "Lobbygate" suddenly emerged. We carried out a massive investigation, which required full-time commitment, so we had that experience to put to the individual and we made the appointment on that basis. The interviewees knew what we were looking for. Also, one of the interview criteria we used to determine the integrity of the individual was the demonstration of political impartiality. I do not refer simply to whether the candidate was Liberal Democrat, Labour, Conservative or Nationalist, but to political impartiality in its wider scope. We have asked Gary Watson to make a declaration of all his interests, and that is available to Committee members.
Mr Doherty: Your Committee had the responsibility and the privilege of drawing up your own Code of Conduct. We did not have this privilege; we were presented with a readymade Code. I presume your Code of Conduct is not set in stone and that, as circumstances develop, you will be allowed to change it. Your Committee will have the right to recommend changes which will be adopted by the Parliament.
Mr Rumbles: We have changed it already, more than once.
Mr Doherty: Is it a serious, problematic task to change it, or do you simply make a recommendation to the Parliament?
Mr Rumbles: We produce a report that goes before the full Parliament. We have now produced annexes to the Code of Conduct. For example, all the political parties had a difficulty with our particular electoral system. I am a constituency MSP for West Aberdeenshire and Kincardine, but in the north-east of Scotland there are seven list regional members. I am not using myself as an example, but elsewhere in Scotland there were difficulties between regional and constituency members. The four main political parties got together and produced a modus operandi for MSPs. This was put to the Standards Committee and then to the whole Parliament, with a recommendation that it should be added to our Code of Conduct. It was basically an amendment about how MSPs should behave.
Mr Doherty: You have deemed certain breaches of your Code of Conduct to be criminal offences. Once the possibility emerges that the breach could be a criminal offence, do you, your Commissioner or Adviser, or the Committee, refer the matter directly to the police?
Mr Rumbles: If the Adviser or the future Commissioner discovers that there are criminal grounds, then the issue will automatically be referred to the Procurator Fiscal.
Mr Doherty: Would the Commissioner bring it to the Committee first?
Mr Rumbles: Obviously, he would let us know. The breaking of the paid advocacy rule is a criminal offence. That was set out in the Scotland Act 1998 (Transitory and Transitional Provisions) (Members' Interests) Order 1999. That was set in stone. There are a couple of important differences between our Code of Conduct and yours. For example, page 21, paragraph 66:
"Anonymous complaints will not be entertained."
This is an interesting difference. We take the clear view that we want complaints, when they are registered, to be open complaints, identifying who is complaining, what rule in the Code of Conduct has been broken, and so on. However, if a breach of regulations were to be brought to the attention of the Committee, the Commissioner or the Adviser, and the individual could provide evidence but refused to identify himself, we would take the view that it would not be right to ignore that. That is one difference from your Code of Conduct.
The Chairperson: What about sanctions?
Mr Rumbles: We have no sanctions as a Committee.
The Chairperson: When you refer things to Parliament, do you give a recommendation?
Mr Rumbles: There are four stages of the investigative process. First, independent sifting; secondly, independent investigation of a complaint; thirdly, the Adviser or Commissioner's report to the Committee; finally, we make a decision on the basis of fact, and then we make a recommendation. We decide if a penalty should be recommended against a Member and then that recommendation is put into a report to the Parliament and a debate is held. Fortunately, we have never been in that position, and hope not to be.
Standing Orders give the Committee the power to recommend to the Parliament that a Member's rights and privileges be withdrawn. Parliament will decide on a case-by-case basis what privileges and rights should be withdrawn and the duration of that withdrawal. The 1999 Order also enables Parliament to prevent or restrict a Member from participating in proceedings where he or she has failed to register or declare a registrable interest. The extent of any restriction would be decided on a case-by-case basis. Certain breaches of the Order relating to the registration and declaration of interests and paid advocacy could constitute a criminal offence, and an MSP found guilty in such circumstances would be liable for a fine of up to £5,000.
Mr O'Connor: This may be too technical for you, but what do you think about a Committee taking it upon itself to recommend disbarring a Member, when the people have put that person there to represent them? I know that people have been disbarred from the House of Commons and other places before, but constitutionally it is not the Member who is suffering, it is the 20,000 or 30,000 people who voted for them that are now being denied representation for a period of time. That Member may continue their representation without pay for a period, but do you think the excluding of a Member from the Scottish Parliament or elsewhere is an appropriate sanction? I think that sometimes you may not be actually punishing the Member but rather punishing the people who have been denied the representation.
Mr Rumbles: It would only be for a limited amount of time. We are not necessarily talking about banning a Member for the full term of the Parliament, but that is entirely up to Parliament. Under Standing Orders, the power exists. Of course, it comes from the Scotland Act 1998. Effectively, an act of the UK Parliament put these powers here. I do not think any decision by Parliament would be taken lightly, but the powers are there as provided by statute. It is not for me to comment on the morality of that.
Mr O'Connor: You would make a recommendation. You would obviously consider an apology, a fine, a withdrawal of privileges, or whatever. The ultimate sanction for you would be an exclusion, and then an exclusion for whatever period of time depending on the severity of the actual offence?
Mr Rumbles: Everything that the Standards Committee has done has been unanimous: the Code of Conduct, its appendices and annexes. Everything that we have done so far has gone through unanimously, and without objection by any of the MSPs in the full Parliament. We are moving forward by consensus.
In my view, the Standards Committee is quite different, although it is not written down differently from any of the other Committees. I like to think that we operate differently in the Standards Committee than they do in any other Committee of the Scottish Parliament. Party political differences are put to one side. I am very pleased to feel that is exactly what we do in the Standards Committee, and any case that comes before us is treated entirely on its merits.
We also wanted to ensure the presence of an independent element, because we are also conscious of public perception. Here we have a Standards Committee composed of, in our case, seven members from all parties, making judgements on other MSPs. We want to avoid the charge of an "all boys club" or an "all girls club" or whatever it is. It is very important to have that independent element, whether it be an Adviser or a Commissioner, to do the sifting and the investigation of the facts. The Commissioner or Adviser presents us with the facts and the judgement is made by the Committee.
The Chairperson: Thank you for coming along this morning. Undoubtedly, it has been a very useful and informative meeting. We have a lot to learn. We all recognise the importance of this Committee.
Mr Rumbles: Thank you for inviting us. I hope that we have been able to shed some light on what we have done in Scotland. If we can help in any way in the future, please ask.
MINUTES OF EVIDENCE
Prof B Dickson)Chief Commissioner, Northern Ireland Human Rights Commission
The Chairperson: You are very welcome. This is usually a very informal session of the Committee. You know what the Committee is attempting to do at this stage. Prior to meeting with yourself, we met with a variety of people from the Scottish Parliament, the Welsh Assembly and Westminster. It is very important that we speak to people like yourself to get some help on the way forward and also on the decision about a Commissioner, and the role and functions of that person.
When we have a Commissioner in place and decisions have to be made, would it be appropriate, from a human rights point of view, to put an appeal system in place? Then, if an Assembly Member received a complaint which was upheld by the Commissioner for Standards, that person could then appeal the decision. First, should we have an appeals system and, secondly, what type of system might it be?
Prof Dickson: I am here as Chief Commissioner of the Human Rights Commission. However, the Commission as a whole will not have had the chance to consider the questions you are going to put to me and, therefore I am only speaking as one member of the Commission and not for the Commission as a whole. I hope, however, to reflect the Commission's views.
In reply to the first question, it would be desirable to have an appeal mechanism against any adjudication that someone has behaved improperly. But Article 6 of the European Convention on Human Rights, which became law on Monday with the Human Rights Act coming into force, does not always require an appeal in every case. It suggests that the more serious the accusation against a person, the more important it is to have an appeal mechanism. In this instance, best practice suggests that you ought to have an appeal mechanism given the consequences for the Member, which the Commissioner has decided could be quite serious. With regard to the type of appeal that you put in place, it should involve a person who has not previously been involved, in any capacity, in handling the case either as a filter mechanism or as an initial investigator of the case. By definition, an appellate tribunal or body must have no previous connection with the case so that it can come to it with a completely open mind.
Mr Beggs: In other places the Commissioner decides if there has been a failing and the Committee recommends a sanction. Is there any difficulty with the appeal being to the whole Assembly? Would that be a suitable vehicle for that?
Prof Dickson: There would not be a difficulty with it being for the entire Assembly. There would not even be a difficulty under the European jurisprudence for one section of a body - for example, the Committee - coming to a determination on the matter, and then another section of the same body acting as the appeal mechanism. That is what would happen anyway if you were to allow an appeal to the Assembly because the Committee is simply one section of the Assembly. There would not be a difficulty with an appeal to the Assembly. I must make it subject to the proviso that the proceedings of the Assembly are privileged, to a limited extent, in the parliamentary sense.
The traditional attitude of the courts, as you will know from the application Mr Adams and Mr McGuinness made to be allowed to use facilities at Westminster, is to stay away from matters to do with the privileges of Parliament. It is quite possible, even if, heaven forbid, you get the procedures wrong, that the courts could not do much about that, since you are, to some extent, a privileged body. Obviously, however, you would not want to run that risk.
The Chairperson: Forgive my total ignorance of legal procedure. You seem almost to be indicating that any appeal would be internal. Are there any circumstances where the appeal would be outside?
Prof Dickson: I may be wrong about the extent to which you are a privileged body, but if you are a totally privileged body like the House of Commons, there is no need, in my view, for there to be an appeal outside the Assembly. If you are not a wholly privileged body, so that an application for judicial review could be taken against you or another part of the Assembly - something I feel is unlikely in this context - you ought to ensure that there is some appeal body outside the Assembly. Generally speaking, a body is perfectly entitled to regulate itself, afterwards leaving it to the individual to seek whatever redress might be available through the courts. As long as your internal, self-regulatory procedures are fair, giving the accused person details of the case he or she has to answer and an opportunity to do so, then you are in the clear.
Mr A Doherty: If, theoretically, one of the grounds for the appeal is that the person feels that he or she has been deprived of some aspect of human rights, would you see a role, in your Commission or anywhere else, for an appeal outside the Assembly?
Prof Dickson: I think I am right in saying that all parts of the Assembly must comply with the European Convention on Human Rights, not by virtue of the Human Rights Act 1998, which came into force on Monday, but by virtue of the Northern Ireland Act 1998, which makes it clear that the Assembly, the Executive and all Government Departments cannot do anything in breach of the European Convention. If a person were a victim of any such breach, he or she could take remedial action through the courts.
Mr Wells: I am quite surprised at the weak powers you have to call for documents, to seek evidence and to compel oral testimony. This is clearly relevant to what we intend to do and the powers we intend to give our Commissioner. Given your very limited powers to gather information, can you actually carry out your work?
Prof Dickson: We can, but with difficulty. When the Northern Ireland Bill was going through Parliament, and the sections dealing with the Commission were being debated, efforts were made to confer more effective investigative powers on the Commission. The Government refused to confer those powers, but Lord Williams, who was then a Home Office Minister and is now the Attorney General, used quite strong language in a speech he gave during the debate in the House of Lords. There were four paragraphs in his speech. He made it quite clear that, although the Government would not confer these powers, it would undertake to co-operate fully with any investigation the Commission chose to conduct, making all documents available.
Mr Wells: It was a gentleman's undertaking without legislative backing.
Prof Dickson: I like to think it has rather more force than a simple gentleman's undertaking, for it is a statement to Parliament by a Government Minister.
Mr Wells: How would you know that you had received all the documents?
Prof Dickson: We would not always know. I must state for the record that we have not been able to obtain all the documents we wanted from the various public bodies we approached. In that sense, our investigations are being obstructed or, at the very least, being made more difficult. The Commission would like the power to compel evidence - not that we would necessarily have to use it. I understand that the Australian Human Rights Commission has extensive powers to compel the handing over of evidence - but the existence of such powers is enough to ensure that evidence is produced. The Commission does not have to exercise those powers by going to court to compel the handing over of evidence. That is the model which I would like to see introduced in Northern Ireland.
Mr Wells: Can you initiate your own investigations as well as having cases referred to you?
Prof Dickson: Yes, we can. Would you like me to explain the procedure by which we operate? We have an investigations committee comprising four or five Commissioners. It can consider any matter for investigation that it chooses. However, it looks primarily at matters which have been referred to it by the Commission as a whole or by other Committees.
For example, an application for assistance for court proceedings might come before our Casework Committee. The Casework Committee might decide not to grant assistance but might think that the case merits investigation. It would refer the matter to the Investigations Committee.
The Investigations Committee uses two criteria when determining whether to launch an investigation. First, does the allegation involve a serious violation of a human right? Secondly, is there a pattern of even minor abuses of human rights? We then consider if there is any other method of addressing the issue. For example, we could go to court or we could try to influence Parliament or the Assembly when a Bill is going through, or we could write a letter.
If there is no better way of proceeding, then it is likely that the Commission would launch an investigation. We have only launched two investigations so far. We do not have the resources to do many more or even to do those which we are doing as thoroughly as we would like. We have neither the staff nor the money - we are operating below par.
Mr Wells: If your investigation requires evidence from a non-government body or individual, can that person or body simply say "Tough, I am not going near you"? Why should you be in a weaker position than other organisations?
Prof Dickson: That is a good question. We view ourselves as a statutory body, a bit like the Ombudspeople.
Mr Wells: Who can compel?
Prof Dickson: As far as I know, every other Human Rights Commission in the world can compel. In South Africa and in the Republic of Ireland, where a Human Rights Commission is about to be set up, there are powers to compel the handing over of evidence.
Mr Wells: What was the Government afraid of when it refused to grant you the power to compel witnesses?
Prof Dickson: I cannot answer that directly; I can only speculate. One of the reasons might have been that the Government did not want the Commission to start probing around on certain matters, particularly controversial deaths involving the security forces. They did not want us to have access to certain documents, because that might have opened a whole can of worms. I cannot, however, say for certain. It is a question you would have to address to a Government Minister.
Mr Berry: How might the forthcoming Bill of Rights affect the work of the Committee on Standards and Privileges, as we are aware that you will be advising the Secretary of State?
Prof Dickson: I cannot give you a definite answer to that. The Northern Ireland Human Rights Commission is still in the process of consulting on the Bill of Rights and has not yet reached a determination on any of its content. Therefore, at the moment the Commission has an open mind. We want to be guided by, as the Good Friday Agreement requires us to be, international instruments and experience, so we are looking at Bills of Rights in other parts of the world.
We are conscious that as required by the Bill of Rights, we have an open mind and the Commission has not addressed its mind directly to the effect that the Bill will have on the work of the Committee.
It has been suggested to the Commission - and I am not saying that we support this - that the Bill of Rights ought to say a lot about how the Assembly operates and how power is distributed and wielded in Northern Ireland. For example, it was suggested that the d'Hondt mechanism that applies in the Assembly should be used throughout District Councils in Northern Ireland. As far as I am aware only Down District Council applies d'Hondt when allocating seats on the Committees. Other Councils may do it with regard to the Chairpersons and Deputy Chairpersons of Committees. However, I do not think that there has been any suggestion as to what the Bill of Rights might say about the work of your Committee.
Mr A Doherty: We are looking for models of good practice to help us make the proper decisions when setting up and getting into business. You have informed us of the limitations under which you are working and how you feel those limitations restrict your ability to do everything you would like to do when investigating complaints and recommending action. We are in the same process - seeking to determine our rights and powers and the limitations on those powers.
The Standards and Privileges Committee is a disparate group that represents most of the parties in the Assembly. Following complaints being made, do you suggest that they should come to the Committee and then be referred to the Commissioner for Standards, who will come back to us with a recommendation. Or, considering the make-up of our group, should all complaints be sent directly to the Commissioner to take an independent view of all the issues and bring them with his or her recommendation to the Standards and Privileges Committee so that it can make a final report to the Assembly.
Prof Dickson: It would be acceptable for the Standards and Privileges Committee to act as a conduit for complaints and then to consider the report of the Commissioner, but only if in acting as a conduit you did nothing more than pass on the complaint. If you are simply acting as a messenger, passing complaints to the Commissioner and having nothing more to do with the complaint at that stage, then you would be perfectly at liberty to consider the report from the Commissioner.
However, if the Committee gives it any attention or begins to investigate the complaint before it is passed to the Commissioner, the Committee is tainted; it has knowledge of the matter and could not address it with an open mind once it receives the report from the Commissioner. That is the only principle, I think, that you need to bear in mind in this instance.
Mr Beggs: The Committee has learnt of two procedures that can be used after a complaint or a report has been made. In some places there is an intermediate stage where the Commissioner advises the Committee to proceed into a more detailed investigation. Alternatively the Commissioner may have completed an investigation and provided recommendations, if they are required, and the Committee can then decide the appropriate penalty.
The difficulty with the intermediate stage of reporting is the huge danger of only some of the information getting into the public domain and Members' human rights being affected. They are not allowed to get involved in the full details, but they could be tainted by the allegations which, at the end, may come to nothing. From a human rights point of view, or even from your experience in administration, would it be best simply coming to a Committee with a final conclusion or should there be intermediate reporting stage?
Prof Dickson: The European Convention on Human Rights and the standards that it upholds only apply - and I am talking here about Article 6 which requires a fair hearing et cetera - in the determination of criminal charges or civil rights and obligations. It may be that some of the matters being investigated by the Committee or the Commissioner would be criminal or civil wrongs. But if they are simply - and I do not mean to belittle them by using that word - breaches of parliamentary procedure, or some other form of misconduct by an Assembly Member that does not amount to a crime or civil wrong, then Article 6 procedures would not be required. However, if it does come into play the Committee's safest course of conduct is not to be involved at all, except as a messenger, until it receives the report from the Commissioner. At that point, the Committee can look at it with an entirely open mind.
The Chairperson: If a Member is involved in criminal activity then obviously there is an element of criminal punishment plus a response from this Committee. Is there any difficulty in this concept of double jeopardy, with the person being punished twice? Is there a problem in human rights terms?
Prof Dickson: Double jeopardy only comes into play if a person is punished by the criminal justice system twice. It is perfectly normal for a person to be punished by the justice system and his or her employer, or some other such context. What might cause a problem is the order in which the two procedures take place - should the Assembly procedures precede those of the criminal court, or vice versa? Normally criminal proceedings take place first because the standard of proof required in criminal proceedings is beyond reasonable doubt, whereas the standard required in other proceedings is simply on the balance of probabilities.
If somebody is convicted in a criminal court it is hard for that person to say, even though they have been convicted beyond reasonable doubt, that they are not responsible on the balance of probabilities. However, if the Assembly procedures take place first and you discover that someone is, on the balance of probability, guilty of misconduct, that does not really help the criminal court. Procedures get delayed at extra expense, and I would suggest that the Assembly or the Committee should postpone any consideration of the matter until the criminal court had its say.
Dr O'Hagan: You are very welcome. If the Committee were to appoint a Commissioner, what skills, experience and expertise do you think this person should bring to the position? Do you think the Commissioner should have a dedicated support staff or should he or she rely on the staff of this Committee?
Prof Dickson: The most obvious quality is independence; independence in every sense - from the Committee, from the Assembly and, of course, from the person being investigated. There must be no conflict of interest. The Commissioner must not be associated with the matter being investigated, or with the individual being investigated. Experience of public life would be a good background. It should be someone who knows how the public sector works and how a representative Assembly such as this one works; someone who is good at sifting the relevant from the irrelevant and who is not going to be influenced by press speculation or rumour; and someone who has demonstrated, through his work to date, that he is capable of adopting his own policy and is capable of justifying it in accordance with sets of Standards or Codes of Ethics.
As to the need for specialist staff, it would be desirable for any Commissioner to have one or more members of staff, if only to ensure that at least two people were able to look at any issue independently. If an Investigator were appointed, he or she could collect evidence and present a draft report to the Commissioner, who would then approach it with an open mind and fresh thinking. For example, he would not be influenced by the personality of the person being interviewed, which would add to the credibility of the ultimate report.
This investigative function could be performed by a staff member of this Committee, but the more distant the person was from the Committee and from the work of the person being investigated, the less likely would be any challenge against the independence of the investigation.
Dr O'Hagan: Do you think the Commissioner should have legal skills or a legal background?
Prof Dickson: I do not think that would be an essential requirement, but perhaps desirable, because presumably the Commissioner would be applying the Assembly's Code of Conduct rather than a piece of legislation. It is probably more important that the person appointed should know what appropriate conduct is and how one should act in public life rather than be a legal technician who can find his or her way around complicated legislation. Many of the skills I have already mentioned, such as the ability to sift the relevant from the irrelevant, are skills that a legally trained person would have in any case. You might, as it were, by coincidence, pick up somebody who had a legal background.
Mr Beggs: When we took evidence from the Welsh Assembly's Commissioner he told us that he worked on his own and had some secretarial back-up from the Assembly's general typing pool, but that the arrangement was not satisfactory. You are suggesting that a Commissioner should have dedicated secretarial support.
I know that your body and the Equality Commission will undertake good work on behalf of everyone, as will the new Commissioner if appointed. However, there is a cost to public administration every time we create a new body. We provide a budget for that body to the detriment of other areas, such as health and education.
Is there any compelling reason why the secretarial support provided for this Committee could not also provide support for the Commissioner? Both the staff of this Committee and of the Commissioner will have confidentiality as a prime factor, if they are to have any credibility. Is there a reason why the secretarial support of this Committee could not also provide support to the Commissioner, when he requires it? If he wishes to do things of a particularly sensitive nature, he obviously can choose to do this himself, using word processing. It seems crazy that someone who is on a reasonably good daily rate, and has widespread experience and abilities, could not take on duties in both areas. Could joint support be given?
Prof Dickson: Speaking as someone who does much of his own word processing, I would not designate this as typing. It involves writing speeches on screen. I do not agree with that comment. However, there is no compelling reason why secretarial staff could not perform both functions. There is not a conflict of interest there.
Perhaps the office of the Assembly Ombudsman could give some assistance. This is already an independent office and it is well resourced with extensive powers and good experience. Someone there might be able to help the Commissioner if one were appointed.
Mr Wells: I have had more than my fair share, but I will ask a quick question. If you make a report and the Government Department or other body ignores it, what can you do?
Prof Dickson: There are several points in response to that. In March of next year we have to issue a report to the Secretary of State. This will focus on whether we think our present powers are adequate and effective. Our report is likely to stress that they are not. We already know that they are not.
The Government said that it would seriously consider the matter, so we hope it will take our views on board and confer extra powers on us. However, if the Government chose to ignore our report we could investigate whether there is a legal mechanism by which we could go to the courts. We have the power, under section 69 subsection 5 of the Northern Ireland Act, to take proceedings in our own name.
If there was a legal avenue available to us, we could use that. If not, then we would use other methods to bring the matter to the attention of the public, of the Opposition in Parliament, and of Assembly Members in Northern Ireland.
We also have good links with the international community, because our mission is to get the international rules and principles on human rights applied to Northern Ireland. These are ones that the British Government have signed up to. We would publicise the Government's refusal to comply with our report at, for example, the United Nations Commission on Human Rights. I am allowed to speak there every April, and can submit reports in the interim. We would make use of that international network.
The Chairperson: Unfortunately we are pressed for time, because we have a video link up arranged. We have asked a wide range of questions. Is there anything that you specifically wish to advise us on in proceeding to set up an office for a Commissioner?
Prof Dickson: I do not think so - we have covered most of the points.
The Chairperson: It appears to us that the procedure concerning other legislative Assemblies is internal and self-regulatory. Is there any other satisfactory way of dealing with it? Is there any advice you can give us on that specific area?
Prof Dickson: Do you mean in regard to complaints against Members?
The Chairperson: Yes. It is all internal self- regulatory.
Prof Dickson: In principle there is no objection to self-regulation. However, following the Toth case - which came before an English court last year and involved the General Medical Council (GMC) - the GMC had to change its procedures. Its filter mechanism was not independent enough from the ultimate investigate method. If the so-called victim of the abusive procedure by the Committee or the Commissioner has the opportunity of going to the courts to seek redress in a case where his or her civil rights or criminal position are at stake, then Article 6 is complied with.
The Chairperson: But you suggested that will not be happening in this legislative Assembly because of your point about privilege.
Prof Dickson: As I said I am not as au fait with the position regarding privileges.
The Chairperson: That is something we are going to have to clarify.
Prof Dickson: I apologise for that. I do not think your position is quite the same as in Westminster.
The Chairperson: It seems that our filtering mechanism is very much the same, with the investigative and decision-making roles being closely tied together. That, in itself, might create a problem.
Prof Dickson: There is no real problem in the investigative and decision-making roles being merged. There is more of a problem with any kind of initial filtering mechanism being merged with the ultimate decision-making process. The body that filters, and then passes it to an investigator who then reports back to the filtering body, is taking the ultimate decision. That might cause some difficulties.
The Chairperson: The person who is carrying out the investigative role should not be the person who does the filtering, as it is the case of Elizabeth Filkin in Westminster - she makes the decision on whether it is necessary to proceed, and then does the investigation. That in itself seems to be difficult in that there is a combination of roles there.
Prof Dickson: In general the European Convention and International Human Rights principles do not rule out one person doing the filtering, the investigating and the adjudicating. In fact the European Commission on Human Rights, now the European Court, does all three things itself. But best practice would try to separate at least two of those functions. That is to ensure that two independent minds address the one problem.
Mr Beggs: I accept your point, but there is a cost implication. You say there is no problem with one person doing both, provided that that one person can justify it to the Committee that he or she is reporting to. In cases we have heard at Westminster, there have been occasions where the Committee has decided not to follow the recommendations of the Commissioner. Is there any difficulty, in terms of human rights, with the Committee coming to that decision, having assessed the evidence, and perhaps additional evidence, when it is interviewing the person in question itself?
Prof Dickson: As long as the reasons for a difference of opinion are given, I do not see any difficulty there.
The Chairperson: Thank you for coming along. That has been helpful to our deliberations. When somebody leaves the room, you can usually think of half a dozen more questions to ask. Undoubtedly we can contact you again, if need be.
Prof Dickson: You are very welcome.
MINUTES OF EVIDENCE
The Chairperson: Good morning, Mr Melding. I welcome you to the Northern Ireland Assembly and specifically to this Committee.
First of all, on behalf of this Committee, I thank you for your advice and support. This is a very steep learning curve for us. We are in the process of making a decision about the appointment of a Commissioner, the role and functions of that Commissioner, and all decisions connected with that office. We have taken evidence from other legislative Assemblies on the way forward, and this morning, of course, we would like to speak to yourself and your associates to receive some guidance on the way forward.
In the Welsh Assembly you do not have an appeals procedure. Does this create difficulties, and have you any advice on whether to have an appeals procedure?
Mr Melding: This procedure allows the Member, if a motion is laid before the Assembly, to state his case. That is the appeals function that we have. Furthermore, there is not a separate Committee session to meet in appeal mode. That is the way that we have interpreted Standing Orders and conducted procedures. There was not any detailed consideration whether it would be feasible to have a separate mode to deal with appeals. Therefore we have left it to the Member to state his case before a full Assembly meeting in plenary.
Mr A Doherty: I have in front of me some information about the different stages in which a complaint is considered. At what stage should the Standards and Privileges Committee become involved in the detail of a complaint?
I notice that when a letter or memo arrives with the Presiding Officer, it is identified as a complaint and then papers are referred to the Secretariat for onward transmission to the Independent Adviser. Is the complaint transmitted without prior examination by the Committee?
Mr Melding: A complaint goes to the Presiding Officer first, and he asks the Independent Adviser to establish whether it needs to be investigated - for example, if it falls under the jurisdiction of the Standards Committee. If the Adviser determines that the complaint does fall under our jurisdiction and requires investigation, the Presiding Officer refers the matter to the Standards Committee, and we ask the Independent Adviser for a report. It is his report that we consider. The first time we examine the detail of the matter is when we consider the Independent Adviser's report.
Mr A Doherty: Each complaint, therefore, is referred from the Committee to the Independent Adviser, rather than the other way round. I notice that you do not consider any anonymous complaints. Is that a matter of principle, or can you foresee a situation when a complaint, whether or not it is anonymous, would be considered serious enough to be investigated in-depth?
Mr Melding: Anonymous complaints are ruled out of our jurisdiction because the Member has a right to know, at some stage, who made the complaint. It is difficult if someone remains anonymous. How can we establish contact with that person, or start to investigate anything further? There is a difference between someone's name not being made public and an anonymous complainant. We do not know who that person is. We would have to take legal advice if the complaint might pertain to a serious criminal matter. That would be considered but not by the Committee. It would be for the authorities here to decide if the matter should be referred to the police, and if they could establish whether any form of investigation were possible, given that the complaint was completely anonymous.
Dr O'Hagan: I want to turn to your investigatory powers. Are Members obliged to come before either your Committee or the Independent Adviser? What power do you have to call for relevant documents and papers?
Mr Melding: Members are not obliged, but we do allow them to make representations and submit documents. The Clerk, Ms Grant, may like to add something on the technical detail.
Ms Grant: The main point is that the Committee has very limited powers. There is nothing in the Government of Wales Act 1998 or in Standing Orders that allows us to force Members to attend. In the same way, we cannot require a complainant to submit copies of papers, but the Independent Adviser would then have to make a judgement as to whether he could continue with the complaint if somebody refused to submit papers.
Mr Melding: We have not had any difficulty, to date, with the Independent Adviser speaking to the Members concerned or receiving the appropriate documentation, but we are restricted in what we can do.
Dr O'Hagan: Do those limited powers hamper your work?
Mr Melding: The main distinction between our Committee and what you may be considering is that we are not a legislative body in the sense that Northern Ireland or Scotland is. We have no primary law- making powers. Therefore our Committee has to act within the confines of the Government of Wales Act 1998. We cannot move outside those parameters, so we are restricted in this case.
Mr Beggs: Your Independent Adviser has no role in the maintenance of your Register of Members' Interests, but the Parliamentary Commissioner for Standards at Westminster is responsible for its Register. Can you explain why you have chosen not to have your Commissioner involved in maintaining the Members' Register of Interests?
Mr Melding: The difficulty is that we are restricted to having an Adviser. We could not establish an Independent Commissioner to oversee the Members' Register. As mentioned before, we are not a legislative body and are restricted by the Government of Wales Act 1998 so we have responsibility under that Act for the Register and cannot pass that responsibility on.
Mr Beggs: Would you have liked to have that responsibility?
Mr Melding: That is more subjective. The area needs to be looked at, and if we were not restricted and were a legislative body in the sense of the Northern Ireland Assembly or the Scottish Parliament then it would be a question for us to address. Members would prefer a more independent role.
Mr Berry: In Westminster the findings of the Parliamentary Commissioner for Standards can be rejected by the Standards and Privileges Committee. What is the corresponding position in the Welsh Assembly? Can your Committee reject the findings of your Independent Adviser?
Mr Melding: Yes, we can reject the findings or, in the light of additional legal advice, determine whether the matter is in our jurisdiction. We did reinterpret a report very early on when there was some doubt as to the standing of a particular complaint. As we are at an early stage in our life as an Assembly, many things had to be established.
Mr Wells: We had your Scottish counterpart before the Committee a couple of weeks ago, and I was intrigued to hear that they are expecting about two referrals per week and that in any given year almost every Member of the Scottish Parliament would have had a matter referred to the Committee. We find that level of activity extraordinary. What has it been like in the Welsh Assembly, and what would you predict would be first, the level of complaints in the future and, secondly, the permanent time commitment of the Adviser?
Mr Melding: I would answer this in a very candid way. It is not something that we would wish to publicise but the level of complaints has surprised us, and it is certainly higher than we would have expected. There is some question as to the seriousness of some of the complaints and whether the procedures have been followed properly. It is helpful to have a mechanism, through the usual channels, for minor indiscretions such as a Member's oversight or ignorance of a matter, whereby that Member is told that he/she could be in breach of the standards and that if he/she repeats the breach he/she could be brought before the Committee or there would be an investigation. Once something is referred to us in the formal way, we have to pursue it.
Any Standards Committee that is dealing with a heavy burden of minor complaints, perhaps relating to the use of single items of stationery, can be problematic. If such an abuse were to be repeated you would have to have a formal mechanism to deal with that. A lot of education needs to be carried out with our fellow Members, especially to prevent any tit-for-tat minor embarrassment. Our Committee is not here to deal with that sort of thing; it deals with matters of genuine and grave public concern on the conduct of Members.
Mr Wells: What do you envisage the time commitment of the Adviser would be?
Mr Melding: I would have to ask the Clerk, but I think it is three days a month.
Ms Grant: We did originally envisage between two and a half and three days per month, and we are finding now is that he is probably doing the equivalent of a day and a half a week. So it is almost double.
Mr Wells: And that is for an Assembly of how many Members?
Mr Melding: Sixty Members.
Mr Wells: Sixty Members, and already he is doing a day and a half a week. What on earth are you getting up to in Wales? We have only had seven complaints since we have been founded as a Committee. It intrigues me as to why there are so many complaints in both Scotland and Wales.
Mr Melding: I believe in Members being educated and disciplined. There is the potential of undermining our process through trivial use. We are in an age where, quite rightly, we have these formal procedures. However, there was a time when a more discreet early procedure was used. In the case of minor matters Members were just told not to repeat that conduct and were given the chance not to repeat it. If that conduct were repeated, then the matter could go further. At the minute, we do have that level of discipline amongst our Members. This is why the Whips really need to sort out party groupings, to ensure that we do not get bogged down with trivia.
Mr Wells: Life is obviously very exciting in the Welsh Assembly.
The Chairperson: Are you happy with the sanctions and penalties you can recommend to be imposed on the Members, or would you like to see any changes?
Mr Melding: At this stage, we are quite content to operate within Standing Orders and the sanctions that are laid out. It would only be in the light of experience that we would want to go into that question. At the moment powers certainly are adequate. If a Member is in breach of standards, the sanctions are considerably powerful, especially once a report, laid in the Assembly, points out the breach that occurred.
The Chairperson: What are the sanctions and penalties? How often have they been imposed?
Mr Melding: We have not imposed any sanctions so far. The two cases that we have laid report on were not substantiated. However, if we did find that the Members were in breach, we can lay a report before the Assembly, setting out the case and our findings. Then the Member must respond to that. But essentially he will be sanctioned by a motion of the National Assembly of Wales. That is a very powerful sanction. If he is in breach of the Register of Members' Interests and financial matters, then there are further penalties that can be imposed.
Mr Beggs: Your Committee can investigate the complaints themselves. We have experienced difficulty when doing this, and I think benefits can be gained through the use of an Independent Adviser or Commissioner. How has your Committee investigated complaints? Is there any advice you could give us as a result of your activity?
Mr Melding: We could investigate matters ourselves as a Committee, but we have decided not to. We do not believe that is feasible. From the start we have asked the Independent Adviser to do this for us, and it is certainly our intention to proceed on that basis.
Mr Beggs: From our experience I would concur with your conclusions.
Mr A Doherty: My colleague Jim Wells has given the impression that the Northern Ireland Assembly is whiter than white. I can assure you that we are not. We may be a wee bit less sensitive and more thick-skinned, but we are learning. Your Assembly has a Code of Conduct, regulating the conduct of Members in terms of general conducts and the relationships with the public, as well as financial matters and the declaration of interest. We understand that one of your Committee's roles concerns matters of principles, relating to conduct of Members. Can you tell us what this involves? What kind of matters of principle do you consider?
Mr Melding: We have those wider powers. There is a Code of Conduct for Assembly Members, and one for Assembly Secretaries. That is also public. No case concerning the Assembly has come before our Committee so far so we cannot speak from experience, but those powers do exist.
I will ask the Clerk to speak on the wider matters of principle, but that is open-ended. All our work to date, however, has had to do with stationery and the use of resources.
Ms Grant: The power exists to give the Committee a wider remit when investigating ethical standards or the registration of clubs, for example. These are powers which the Committee has not yet used. But they do enable the Committee to act not just as an investigating body but also to pick up issues that concerns it and develop them.
Mr Melding: I can give the example, although it has not been referred to us as a matter for our consideration, of private members' clubs. There was debate about whether membership of exclusive clubs should be registered if it could be seen as compromising the Member's impartiality. The Committee looked at a wider spectrum. However, we decided not to draw a conclusion on that particular matter as it could be in conflict with the Human Rights Act. It would be very difficult to list all private clubs.
We found that there were one or two specific clubs which Members had in mind, but the rule would have to be a general one which would cover everything from the local bowls club to dining clubs and suchlike. We have wider powers which allow us to look at these issues, should they become a matter of public concern.
Mr A Doherty: The Assembly itself is probably the most powerful and independent club of all. I suppose that your writ stops at the door of the Chamber and that in matters concerning the Chamber the Speaker is all-powerful. Do you foresee an occasion when a Member's conduct in the Chamber could be such that you would have to intervene if you felt that the Speaker had not handled the matter properly?
Mr Melding: Not in the circumstances which you describe. Of course, it is conceivable that if a Member behaved in an inappropriate way by breaching standards of conduct, the Presiding Officer could deal with the matter, or it might be referred to us by a member of the public or by another Member. At that stage it would be for the Independent Adviser to determine if further action were possible or appropriate.
Dr O'Hagan: The overall complaints procedure seems to be quite complex. Does it work well or are there improvements which you would like to see?
Mr Melding: When we started we would have liked a very simple and elegant system. However, we soon found out that that was impossible so we moved to spelling out a step-by-step approach, which is why it seems quite long. I assure you that we have done this in the light of experience and it is a system which, I am confident, will work for us.
Mr Beggs: I understand that your Independent Adviser cannot receive complaints directly, and that all complaints must go through your Presiding Officer or the Committee. Can you explain why you eliminate people complaining directly to your Independent Adviser? I can see a reason for using a Presiding Officer or Speaker, in that he is a very high profile person who is in a relatively neutral position. I can see some logic in using that person as a conduit, but why should you eliminate people who simply write a letter to the Independent Adviser making a complaint?
Mr Melding: We are limited by the Government of Wales Act on Standing Orders. It does say that the Presiding Officer has to refer the matter. The Presiding Officer is the first person to deal with or receive the complaint. It is then sent to the Independent Adviser. In a sense, it does go to the Independent Adviser directly via the Presiding Officer. The Independent Adviser is not a secondary player in this process. The advice of the Adviser is really central to the whole system working, but Standing Orders do say the matter has to be sent to the Presiding Officer.
Mr Wells: What role does both the Committee and the Adviser have in dealings with the press? Do you publicise complaints? Do you liaise with the press? What do you do if the press gets wind of a complaint before it becomes public and approaches you for a comment on it?
Mr Melding: This is a difficult and delicate matter. Sometimes you may find that the person who has been complained about will be seeking press attention and wants to speak to the media, and we have had experience of this, to be frank. The Committee has been determined that any matter before us remains confidential until we lay before the Assembly our report. We cannot be in any contact with the media. The Committee is also taking the view that when any contact with the media is appropriate, it should be the Chair that speaks to the media and that is what we have done, to date. Even when we feel we would like to clarify matters, we have not done so because we feel matters have to be confidential until we make them public via the report to the Assembly. Once that rule is breached by us, we will be in considerable difficulty. However, once we have laid the report we can then, of course, make a response to particular things that are mentioned in the media. I have written a letter to our national daily newspaper to clarify a particular case that was considered by us a few months ago. We do not avoid contact with the media, but it certainly cannot be done before the report is laid before the Assembly.
Mr Wells: Does the Independent Adviser have any contact with the media?
Mr Melding: Not relating to complaints. The person can speak to the media about the processes and indeed the function of the Adviser. That would certainly be appropriate and, indeed, quite beneficial. The public need to know about the processes we have. It certainly would not be appropriate at any stage for a specific case to be discussed with the Adviser, even after the report has been published. It would be the Chair of the Committee that would be in contact with the media.
The Chairperson: Your system of dealing with complaints involves your Committee, your Independent Adviser, the Presiding Officer and the Welsh Assembly. All of this is essentially self-regulation, and I wonder if you would like to comment on whether is it appropriate for it always to be self-regulation? Is there difficulty with this? Is they any other approach that you would consider?
Mr Melding: Again, I have to go back to our limitations. We cannot devise a system of our own choosing. We have to work within the parameters of the Act and Standing Orders, and that is what we have done. As I mentioned in an earlier answer, there is certainly a good argument for a more independent system and to have an Independent Commissioner on the parliamentary model, but that is for a body that has primary law-making power. We just could not do that. Our system has to be a form of self-regulation in that sense, although we do feel the system is as robust as we can make it and is in no way cosy or inclined to dismiss or discourage complaints.
The Chairperson: You do not find, and pardon the expression, that it is 'clumsy' in any way?
Mr Melding: It can appear convoluted because the Independent Adviser has a role to play at a couple of stages in the process. He determines whether the complaint is within the jurisdiction, and then advises the Presiding Officer if the complaint is something that warrants referral to the Committee. Once the matter is referred to the Committee, he then investigates on our behalf. The Independent Adviser gives advice both to the Presiding Officer and to the Committee. I think it is fair to say that it is not a perfectly streamlined system, but it is the one that we have to operate within.
Mr A Doherty: I understand that your Committee can investigate a complaint without referring the matter to the Independent Adviser. In that case, would you investigate it completely from beginning to end and then make your own recommendations to the Assembly? Or, do you feel that, when you have reached your conclusion, you should refer to the Independent Adviser for his or her opinion before you bring the matter to the Assembly?
Mr Melding: We have in fact decided that we would not use any powers of investigation ourselves, that we would always use Independent Advisers. Therefore, the situation that you have described just would not arise, unless the Committee changes its view, which is extremely unlikely at the moment. We would not have to consider those factors.
Mr A Doherty: But, theoretically, you do have the power to do that?
Mr Melding: Yes, we do, theoretically. However, we have taken a policy decision not to use this power.
The Chairperson: What type of skills would you have looked for in making your decision on appointing a Commissioner, and what type of background did you look for - for example, someone from the legal profession, from public life? - How did you arrive at that decision?
Mr Melding: I will ask the Clerk to respond to the first part about the timescales involved, technically how long it has taken us, and so forth, and to add on the question regarding the person spec, as it were.
From the Standards Committee's point of view, we wanted someone with the integrity and experience to be credible to both Assembly Members and the wider public. The powers we could use, and the sanctions that are available to us, are very serious. Therefore you need to have someone who has the confidence of both Assembly Members and the wider public. We did not necessarily look for a lawyer. We did want someone with some experience of large organisations or Government bodies. In fact, the person whom we recruited was from local government, which obviously had dealt with the question of standards. The person has to have the ability to write reports, to make investigations fairly quickly and must be seen as independent and impartial. Also, I would say that we wanted to avoid any hint of partisanship - for example, if the person had a very active and recent involvement in a political party that would have been a problem to us.
Those were the general things we were looking for, as well as the ability to fulfil the time commitment. Also, the person should not hold, or be likely to seek, other posts that could be in conflict with the role of Independent Adviser. I will ask Ms Grant if she wants to add anything to this.
Ms Grant: The whole process took us about six months in total. One of the reasons for that was because the Assembly makes the appointment. Therefore, we had to do quite a lot of spadework at the beginning and get the Assembly to give us the power to go ahead and run the recruitment exercise. Then right at the very end, we also had to get the Assembly to endorse the appointment of the particular person. That is one of the reasons why it took about five to six months.
In terms of the way that we did it, we followed the public appointment principles. Although it was not a public appointment as such, we made sure that we complied with fair and open competition, all the sift panels going down in a certain way with set criteria. Most of the qualities that we were looking for were the ones that have just been described. It was basically somebody who had an understanding of human rights, equal opportunities issues, who knew a bit about standards, who had maybe worked in the public sector, not necessarily with a legal background. It was somebody who had that sort of analytical ability, which was tested quite fully on the interview panel, who had credibility, and who had been in a fairly senior position in previous jobs.
We engaged Elizabeth Filkin from Westminster to sit on the panel. I think Mr Melding will agree with me when I say her help was invaluable.
The Chairperson: I should like to pick up on one sentence that was unclear. Did you say that the person was or had to be endorsed by the Assembly?
Ms Grant: Yes. We had to lay down a motion, which the Assembly voted on, to approve the person's appointment. Standing Orders say that the Assembly shall make the appointment.
Mr Beggs: Who was on the appointments panel with responsibility for selecting your Independent Adviser?
Mr Melding: The appointments were made by myself, the Presiding Officer, and Elizabeth Filkin, with the Clerk of the Committee to advise us.
The Chairperson: Purely on the subject of housekeeping, what was the response to your job advertisement, and how many did you narrow it down to?
Mr Melding: There was a quite robust response, but with a limited field of credible candidates. It is a very demanding position, so that was not a great surprise to us, but we did have more than one person on the shortlist we could have appointed. We were quite firm, however, in our conclusion as to whom. We were relatively pleased with the final shortlist.
Ms Grant: I should like to add a point of clarification. The shortlist and the selected candidate were discussed with party leaders. When it got to that stage, a letter was sent to them confidentially in case they had any concerns about any of the candidates.
The Chairperson: Our members are very content. I should like, in conclusion, to thank you, Ms Grant, and your staff for this extremely useful link-up this morning. We have the benefit of the late starter, in that we can examine all the methods used and decisions taken by other Assemblies, looking, it is to be hoped, not at too many mistakes, but at all the appropriate ways of going forward.
On behalf of myself, the rest of the Committee and the Clerk, I thank you all very sincerely for your help and advice this morning.
Mr Melding: Thank you. It has been our pleasure to share our experience with you, and we wish you well in your deliberations. It is a very important area of work, and in that sense I was disappointed not to be in Northern Ireland with you directly. I am afraid other wider political considerations required me to be in Bournemouth this week. I assure you I would have rather been in Belfast. It has been useful, however, to use the video link and have at least some contact. My interest will be maintained, and if I can speak to your Committee directly, I should love to do so.
The Chairperson: It is to be hoped that the opportunity will arise very soon. It would be very useful to develop contact between all Standards Committees in these islands. It has been a useful morning, and I should like once again to express our sincere thanks.
MINUTES OF EVIDENCE
The Chairperson: Good morning Dr Hayes and welcome. We have invited you here because of your vast experience in public life, particularly in the Northern Ireland Civil Service, and other Government bodies. We would like to gain from your decades of experience and to hear suggestions about the best way forward. Whether or not you are aware of the procedures that have been adopted in other Assemblies, we have, until now, been looking at models used by Westminster and the Scottish and Welsh Assemblies. We will of course be taking information from the Dáil and we hope soon to be in a position to take a decision.
Mr Wells: First, this is a completely new concept to us here. From your vast experience, can you remember a similar model in the old Parliament, or any of the former Assemblies? Has there been any forerunner to this in the history of Northern Ireland?
Dr Hayes: There was not the same interest in these matters in the past- the world has changed with more live media. People are now much more concerned. It was not an issue which arose very often, and when it did, the procedure was to establish a small Committee of the House to look into it. I cannot refer to a specific case.
Mr Wells: You have held many official positions- your curriculum vitae must have several volumes by now - but for most of us your most memorable roles were those of Parliamentary Commissioner and Commissioner for Complaints. What talents do you feel you brought to the positions and what is the Secretary of State looking for when he appoints people to those positions?
Dr Hayes: Nobody told me what they were looking for and they did not tell me what they got either. I think common sense and fairness. An Ombudsman is a fair person, in possession of the facts, who makes up his mind and comes to a conclusion. I was not 100% correct all the time, but it was an honest process and I think people accepted it as that. A deep sense of natural justice is needed, because a person is not guilty until a case is proven. This Committee is different; it is more difficult for you than for the Ombudsman. An Ombudsman takes a case and deals with it out of the public eye until he has come to a conclusion. You work in a highly political and public environment, where it is easy for people to be smeared. It is also easy for people to see a headline and not realise that it is an allegation. It might be some time before that allegation is substantiated or, even worse, the allegation is shown to have been groundless. The wrongly accused person still has to suffer.
Whatever approach is taken, you need to protect Members from that possibility. There must be standards in public life, and people must be seen to be held to those standards. I would do this in a way which ensured that the wrongdoing was uncovered and dealt with but that people who were wrongly accused were protected as well.
Mr Wells: Did you have a legal background, and do you feel that our Commissioner should have one?
Dr Hayes: No, I do not have a strictly legal background. I have degrees in Law, but that would not help me if I wanted to defend myself. While I was the Ombudsman, I did an additional degree in human rights law, but I do not have a legal background. In most countries, apart from those in these islands, people with a legal background tend to be appointed as Ombudsmen. But the British tradition of Ombudsmen, and indeed the Irish one, in the time Ireland has had the office, has been to appoint non-legal people. We were able to take legal advice when we needed it to ensure legalistic and certain basic elements, such as natural justice and procedure were not lost sight of. You have to be fairly sure of yourself when you tell people about the charges against them and give them a chance to be heard. You also have to hear both sides.
My instinct is not to have a lawyer.
Mr Beggs: You state that the role of Commissioner would be a high-profile and politically sensitive one. Would it be desirable, even essential, that whoever assumed the role had experience in dealing with political representatives and the media?
Dr Hayes: Yes, but it depends on whom the Commissioner will take his or her authority from and whom you regard as the ultimate Court. Will the ultimate Court be the Assembly, or will it delegate the responsibility for the behaviour of Members to this Committee?
The Commissioner could work in one of two ways. The role could be similar to that of the Comptroller and Auditor General, who works as the instrument of the Public Accounts Committee. The Comptroller and Auditor General looks after the books, makes the telephone calls and carries out other background work before presenting important findings to the Public Accounts Committee. People have to answer to that Committee rather than to him. That is one model for a Commissioner for Standards.
When I was the Ombudsman, there were two offices in the Northern Ireland Ombudsman's Office - the Parliamentary Commissioner and the Commissioner for Complaints. The Parliamentary Commissioner, at that time, was responsible to Westminster. The Commissioner for Complaints was not answerable to anything, except the law. I found it extremely helpful to have a Committee which took my report and asked Permanent Secretaries or relevant individuals or groups to come and account for themselves.
Using this model, the Commissioner could be seen as the person who did the legwork and decides whether or not there was a prima facie case. The Commissioner would then hear the different people and carry the procedure through in private. The Ombudsman approach is not confrontational; it is more like that of the french examining magistrate. It is the better model for eliciting the truth.
A Commissioner for Standards could do all the preparatory work - get the facts, agree them, come to a tentative conclusion and then present his findings to a Committee to take the ultimate decision. That sort of Ombudsman or Commissioner is slightly less high-profile than the person who acts as judge and jury. I prefer the first option.
Mr A Doherty: In his opening remarks, the Chairman said that the Standards and Privileges Committee is a new body charged by the Assembly - and I put this bluntly - to sit in judgement of our colleagues and indeed on ourselves.
We are a very disparate group, and the public might feel that we would bring other baggage into the Committee room with us. Do you feel that it is essential that there be an Independent Commissioner for Standards to protect our interests and the legitimacy of what we are doing? Or do you feel that we can manage our own affairs without the benefit of independent advice and recommendation?
Dr Hayes: I shall split your question in two parts. I have confidence in the political maturity of people to be able to form an objective view, which is not dictated by party affiliations. That would be the ideal. But to help them to do that, they need to have the facts presented to them in a dispassionate way. The essence of a case needs to be drawn out and a preliminary view taken by someone. It would be easy to say that this is too difficult for us to carry out, but I would prefer it if people took that responsibility. I hope that this is not something you would be sitting on every day. Sledgehammers to crack small nuts should not be set up but a safeguard is necessary. An ideal safeguard would be a Commissioner who got at the facts in the most non-adversarial way possible and prevented cases from becoming political footballs. A Commissioner could make the judgement and tell you what to do. But in a sense, you would be abdicating little. Such a person would be a policeman, more than anything else. To that extent the Assembly should consume its own smoke.
Mr A Doherty: I hope so, but our consultations have shown that more established bodies than ours have Independent Advisers. That would protect us and the Assembly.
Dr Hayes: It would. You could try this model for a few years and then review it. But gathering evidence and testing the witnesses' veracity is something that a Commissioner should do.
Mr Beggs: The Register of Members' Interests is currently updated and maintained by the Clerk to the Standards and Privileges Committee. If we appointed an Independent Commissioner and a complaint was made against someone, a modification would be made to someone's entry in the Register of Interests. In promoting a full understanding of that and facilitating a quick resolution, would it be sensible for responsibility for maintaining the Register of Members' Interests to pass to the Commissioner rather than stay with the Clerk to the Committee?
Dr Hayes: That would not be necessary. It could stay with the Clerk to the Committee but it should be accessible to all Members and to the public. It would be quite easy to ensure that the Commissioner was furnished with a copy which was kept up to date.
Dr O'Hagan: If a Commissioner were appointed, should there be a requirement for Members to attend an investigation?
Dr Hayes: There is no point in having an investigation if you do not attend. You can only use the powers that you have yourselves. You cannot delegate what you do not have.
I presume that the Assembly is empowered by the legislation to regulate its affairs, and this matter is part of that. The Assembly has power to determine, through Standing Orders and so on, how Members behave themselves. There is very little point in having a Commissioner, or even a Committee, without there being a requirement for Members to respect that Commissioner or Committee and to supply whatever information is required. That is absolutely necessary.
With the Ombudsman, there was a power in reserve that probably never had to be used. The Ombudsman was treated as if he were a branch of the High Court. If somebody obstructed him, the Ombudsman could report that person to the High Court for contempt of court.
I do not see this Commissioner as part of a court. I see the Assembly as being its own court in this matter, so a Member refusing to co-operate fully would be to some extent in contempt and dealt with accordingly. There is no point in having a watchdog if it cannot bark or if it does not have teeth. The absolute minimum should be a charge of contempt on the part of the Member refusing to deliver the papers.
Mr Beggs: If the Committee requests written information from a Member, do you agree that it would be unreasonable for that person to rely on a third party to answer instead of responding directly himself? Should an individual Member not respond personally in writing to a request for information from the Committee?
Dr Hayes: Absolutely. He might take whatever advice he needed, for instance from a friend, but a person needs to account for his actions. One must assume that an elected person can do that.
Mr Wells: You are uniquely qualified in this respect because you have been the Permanent Secretary of the Department of Health and Social Services and Ombudsman, and now you are a Commissioner. During your time as Permanent Secretary, were you ever reluctant to release papers to the Ombudsman? Did you ever feel, for perfectly sensible reasons, that you would be breaching a patient's confidentiality?
Dr Hayes: No. The Department did not have confidential information about patients who were in hospitals. We were not entitled to that information, and no doctor would have given it to us. You would get bulk information about things. We did not have the right to hold papers back from the Ombudsman, and he would have been very annoyed if we had done so.
We did have the right to state in a report to the Ombudsman that there were certain things which should not be published in the public interest. That never happened in my time as Ombudsman, and the Department of Health and Social Services was not the sort of Department where something like that would have arisen anyway. It could arise in relation to security and policing, for example, but we had no right to hold a paper back, and I would not give that right to anybody.
Mr Wells: As Ombudsman did you have to chase hard to get all the material or even threaten to use your powers to get it?
Dr Hayes: Yes, sometimes. I did not go so far as to threaten, but I did have to lean sometimes.
Having been a civil servant, one of the things I found useful was that I knew what a file was and what it should look like. It is the old poacher / gamekeeper thing. There was an alternation in the sorts of people who became Ombudsmen. The first one was a civil servant; the second a trade unionist; the next a civil servant again; then an employers' representative; and then me. As a Permanent Secretary dealing with the Ombudsman I found it more difficult to deal with a guy who had been a civil servant, because he knew the next question. You get a feel for it and you know what a file should look like.
I did have difficulty with a couple of doctors' cases when I was Ombudsman. The Ombudsman can now deal with clinical matters, but at that time he could not. At that time I could deal with things like how a patient was handled, whether he was kept waiting, or administrative issues. Some of these cases were a bit iffy. Sometimes I had to indicate the powers that the Ombudsman had, and say "Either we can go up there and see the papers, or we can ask you to bring them down file by file and sit here while we look at them". That did not happen too often; most people opened the books for me.
Your case is different as you could have to deal with quite a serious allegation. Look at some of the inquiries that are going on down south at the moment. I can foresee situations where people would be difficult. You have to furnish your Commissioner and Committee with sufficient powers.
The Chairperson: We would have to furnish them with sufficient powers but with penalties and sanctions as well. Do you think that a recommendation on sanctions or penalties should come from an Independent Commissioner or should it be a Committee decision?
Dr Hayes: It is my inclination to leave it to the Committee. It has the established facts, and a sanction would be against a Member of the House who was offending against the behaviour of the House. If there is even a sniff of illegality or criminality, it goes to the police straightaway and shows a failure to respect the standards that the Assembly has set for itself.
Dr O'Hagan: What type of penalties or sanctions would you recommend that the Committee put in place?
Dr Hayes: The worst thing that can happen in a democracy is for elected representatives to do things which cause people to lose their faith in the democratic process. If someone were to go that far, there should be the possibility of expulsion, followed by suspension for a day or a month, et cetera.
Sanctions should vary from a rap on the knuckles for technical offences - saying things like "Do not do it again" or "We shall name you in the House" - right through to suspension. Thereafter, Members come before the bar of public opinion. The ultimate sanction is the ballot box at the next election. I do not support monetary penalties. In the context you have outlined, it is a matter of behaviour.
If a Member's conduct, by some means or other, caused damage to a third party's position, he would have to deal with that in some way. However, I do not envisage that happening too often.
Mr Beggs: Being new to all this, it is difficult for us to determine the appropriate level of sanctions, as there is no clearly defined list. Would it be useful if a list of all possible sanctions were compiled? This would distinguish between matters of updating the Register of Members' Interests and when one should take the ultimate sanction, suspension. It would be helpful for Members to have a scale so that, when considering appropriate penalties, they could gauge the gravity of an offence. It might be useful in determining the appropriate sanction.
Dr Hayes: Indeed. Although there is a danger with trying to detail every possibility on a list that someone might do something which was not on it, I should be inclined to have a generic table saying what we consider sufficiently venal to require notice or admonition. One might list another group containing failure, for example, to follow procedure or maintain standards which we regard as serious enough to merit suspension - failures which seriously undermine public confidence in the Assembly and the democratic process. Categories would make it easier when one came to deal with the real-life situations.
Once again, one returns to the question of natural justice. Anyone arraigned on any charge should have a rough notion of the tariff. A Member might well say that had he known he would face a particular penalty, he would not have offended. That would be helpful, and you will probably find it necessary.
Mr A Doherty: The Assembly has adopted a Code and series of Rules to regulate the conduct of Members. In some areas, such as the Register of Members' Interests and financial matters, things are fairly straightforward. Other forms of misconduct are slightly less clear and seem to be covered by the catch-all phrase "conduct tending to bring the Assembly into disrepute". I have in mind such matters as bad manners and behaviour, whether verbal or physical, against colleagues, members of staff or the public. Misdemeanours such as being drunk and disorderly or driving under the influence would go into another category.
How tolerant should the Assembly or this Committee be of such matters if it has evidence that a Member has misbehaved? How tolerant or severe should it be in considering the reputation of the Assembly as a whole? Should the Committee have the right to initiate a complaint based on outside evidence?
Dr Hayes: You can take yourself too seriously and you would want to avoid that. People sometimes behave in silly ways. I assume that behaviour in the Chamber is controlled by Standing Orders and by the Speaker. Does that extend to throughout the building?
The Chairperson: No.
Dr Hayes: You need a common-sense approach. If someone is consistently behaving badly, you should talk first to his party Whip or party Leader. They should warn him that he is letting the side down. If someone behaved badly off campus, say, on a drink- driving charge, you could say that this was "conduct unbecoming". He goes to court and he takes the rap. However, I would leave it to the electorate to say whether this was the type of person it wanted to represent it.
Where conduct is concerned, I get very worried about catch-alls because they can easily become the norm. Quite honestly, I would go easy on them. The public is more concerned about people who enrich themselves at public expense or do things for the wrong reasons. If you can convince the public of that, you will find that it is more understanding of human failings and foibles.
Mr Beggs: Building on what you are saying, there is a large number of little foibles or failings. The Welsh Assembly and the Scottish Parliament are dealing with large numbers of complaints. We thought we had a lot here, but it is nothing in comparison to what is happening elsewhere. Some of the complaints are of a very minor and subjective nature, even ones that we have dealt with. We may be treating them too seriously, as you have suggested. It is dangerous to have a system that can be abused and used to damn someone.
Do you agree that the Committee should have as little input as possible until the Independent Commissioner reaches a conclusion? Elsewhere there has been a halfway house reporting stage, which was subsequently abused, with leaks to the press and so forth. Do you agree that the Committee should stay away until a conclusion has been reached by the Independent Commissioner that this has been dealt with or that further action is required, such as a recommendation that the Committee should consider suitable sanctions?
Dr Hayes: Yes, that would be my instinct. If you touch on this at the start, there is a danger that you haul the matter out into the public arena, no matter how fabricated it is, and it remains there. I favour a procedure where complaints, of whatever nature, go to the Commissioner. He could then report: "I got this report. I find no prima facie grounds for investigating it and I do not propose to do so" or "I have a complaint. Once it has been investigated I will give you the facts."
The Chairperson: I want to ask you about filtering complaints. I understand that in Westminster Elizabeth Filkin decides whether it is worth pursuing a complaint. If yes, she carries out the investigation, but I can see problems with that.
Is there a role for the Committee, or the Commissioner, to make the initial decision about whether or not to proceed with a complaint?
Dr Hayes: I do. I will tell you how it worked when I was the Ombudsman. You have to try to split into three. When I received a complaint I was on nobody's side. I had to decide if the complaint was worthy of investigation. I might have had to go to a department or organisation and say "What is this?" About three quarters of complaints were filtered out at that stage because they were against the wrong organisation, or they were out of date, or they were simply groundless or vexatious. I then had to turn myself into what I call a French examining magistrate and I proceeded. Again I was on nobody's side. I was trying to get objective facts. In a spirit of natural justice, I went to the party and said "These are the facts as far as I know. Do you agree that these are the facts?" I then went on to say how, from those facts, I could draw a conclusion that he could make representations to me about. You cannot do that in the public forum to the same extent.
I could also decide that the matter was one of maladministration and then I became the advocate for the victim seeking a settlement. I went to the relevant department and said "This person has suffered as a result of your maladministration and we want you to do certain things." I see no difficulty with that at all. It is normal for an Ombudsman to look at a complaint and decide on its viability, and then go on to investigate it. If the Commissioner does not do it that way, it is left with the Committee, which is what we were trying to avoid in an earlier part of this discussion. If you have another person doing that bit of it, it seems to me too complicated. You would have this huge apparatus of people waiting around for complaints which may never arise.
Mr Wells: Just one final point which I raised with the new Ombudsman, because it is also relevant to us. When you were the Ombudsman were you happy with the level of penalties you were allowed to impose?
It strikes me that with many of the complaints that I have myself referred, all we got was a letter of apology from the Department, and yet that person's life had been ruined by the decision.
Dr Hayes: The Northern Ireland Ombudsman tended to be more aggressive than most of his colleagues. It was thought that the letter of apology was a supreme achievement in the early days of the UK Ombudsman. My view was that the object should be to get the person into the position he would have been in if that wrongful act had not taken place. Whether to award punitive damages was an area that I found difficult. You could say, "Yes, give the guy £500 for his trouble." The legality of that is somewhat doubtful, and if I were to change the Ombudsman law, I would change it in a way that would enable the Ombudsman to award damages in the same way as a court does.
Most cases arising are not matters for monetary compensation. For example, a member of the public may have been grievously let down because of appalling negligence.
The Chairperson: When you make a decision, is that a final decision? Is it possible that the complainant can come back and say that there was some material evidence which was not examined or was not made known?
What if a complainant receives a letter saying that his or her complaint has been dealt with and no further action can be taken, or that the department was completely justified in its action and states the reasons for that? The complainant may feel that there was something your office was not aware of, or that something was ignored, or that the Civil Service hid something from you. Is there a comeback for a complainant under these circumstances?
Dr Hayes: Usually you finish a case and that is it. If you re-open it, the complainant does not have much legal ground for a complaint against the Ombudsman unless he has done something silly, such as not looking at the evidence. That made me more concerned to get it right, but I would never close a case to that extent. For someone to come along and say "Here is a file that was hidden away" or "This man has been in America and is now prepared to come back and say that he was there on the day, that did not happen".
The Chairperson: I do not want to take up too much of the Committee's time on this. The difficulty is the time limitation, and if new material evidence only arises outside the time limitation.
Dr Hayes: There is one thing which enables the Ombudsman to take a view on time limitations.
Mr Beggs: There are no time limitations on the subject we are discussing.
Dr Hayes: The Ombudsman is required not to take a case that goes back more than six months. You do not want some man who has been nursing his sores for 30 years suddenly deciding to take a bash at it. The most difficult cases were the obsessive ones, and it did not matter how much evidence you brought out.
The Chairperson: Everyone in public life is very aware of this.
Dr Hayes: The more you try to let them down gently, the more they are convinced there is something in it.
The Chairperson: A paranoia develops. Thank you, Dr Hayes, for giving us your wide and deep experience of many years in public life.
Dr Hayes: I think you are doing very important work, and I wish you well.
MINUTES OF EVIDENCE
Mr B Smith)TD (Member, Committee on Members Interest, Dáil Éireann)
Mr M Groves)Committee Clerk, Committee on Members' Interests, Dáil Éireann)
The Chairperson: Good morning, Gentlemen, and welcome. Thank you for giving your time to help us in the very important task of establishing the workings of our own Committee for Standards and Privileges and in making decisions relating to the possible appointment of a Commissioner.
Please give us some background to the introduction of the Ethics in Public Office Act, 1995, and how your Committee has undertaken its statutory functions since then.
Mr Killeen: Thank you very much for your invitation. I hope we will be able to be of some assistance in your deliberations. I represent County Clare on the west coast, and my colleague, Brendan Smith, represents Cavan/Monaghan. Martin Groves is the Clerk to the Committee.
Brendan Howlin of the Labour Party and Jim O'Keeffe of Fine Gael had hoped to be here with us, but, for different reasons, they had to cry off at the last minute. That is a pity, because it is a consensus Committee, and that is unusual for any political system. It is something that is fairly difficult to achieve, and they very much regret being unable to attend.
I believe this is the first Committee from the Parliament in Dublin to come on formal business to the Assembly, so we are delighted about that.
Having forgotten the historical details, we all assumed that the Ethics in Public Office Act of 1995 had came about after the tribunals and some of the political excitement that we had had in the South. However, it actually pre-dated that by a couple of years. It was introduced as part of the Programme for Government when the Fiánna Fáil and Labour Government were formed in early 1993. It was pioneered by a Labour Minister of State, Eithne Fitzgerald, who got the biggest vote in the 1992 election, and subsequently lost her seat at the next election. I am not sure that there is a lot of political kudos in the South in promoting ethics legislation, but I would not want to discourage you on that front. By the time the Act was passed in 1995, the Labour/Fiánna Fáil Government of Albert Reynolds had collapsed and had been replaced, without an election, by the Rainbow Coalition of Labour, Fine Gael and other small parties. The Act came into effect in 1996, and it was one of a series of pieces of ethics legislation, some of which have bedevilled us since. The Freedom of Information Act was one of those, and it would be fair to say that a lot of my colleagues have cursed that heartily in the interim. There were other Acts, such as the Public Service Management Act and, round the same time, there was the Electoral Act. In many respects, I suppose that impinges on politicians quite a deal more than the Ethics Act does, because it has to do with expenditure at elections and other matters in that area.
There are, in effect, three relevant Committees in the Parliament in Dublin. We are the Dáil Committee. There is also a Senate Committee in the other Chamber, and there is a third body - the Public Offices Commission - which is charged with responsibility for office holders, Ministers, and so forth. They are three quite distinct bodies, but they do have a deal of interaction. One of the functions of this Committee is to produce guidelines annually. Those guidelines tend to change relatively little, but they have changed in some respects. At that stage we are obliged to consult with the Public Offices Committee and with the Senate Committee. We also give advice to individual members who seek it. In the early years there was a huge number of people seeking advice on specific points. We encourage people to submit their requests for advice in writing. The Act does not require it specifically but, generally speaking, that is more straightforward.
Over the last couple of years requests for advice have been in single figures, from some five to ten Members, perhaps. Since the Act came into effect there have been over 100 requests for advice. In the majority of cases the Committee engages legal consultants. The Committee retains legal advice throughout the year and has frequent interaction with a legal specialist. We have been fortunate in dealing with one person who has become familiar with the legislation, so we are able to get legal advice fairly quickly.
Dates are set out for Registration and Declaration. You may already have a copy of the memorandum that sets out the functions and duties of the Committee. I will not go into detail on its content, which is fairly standard in almost every jurisdiction.
Last year we had an interesting, but difficult, experience when a complaint was made against a Member - this is probably what you really want to hear about. The complaint was made by another Member of Parliament, and so came directly to the Committee. If members of the public wish to make a complaint, they are required to do so through the Clerk of the Dáil. However, a Member of Parliament may make a complaint directly.
The complaint was fully heard and investigated. We had always hoped that this situation would never arise, and in fact we doubted our capacity to deal with it in a professional manner without party politics entering the arena. However, there was widespread agreement that the issue was dealt with fairly, even though it was difficult.
Before that series of hearings took place, my personal view would have been that it was inappropriate, or at least very difficult, for Members of Parliament to hear a complaint against a fellow Member. However, that experience allowed me to see the enormous advantages of having the hearings conducted by one's peers. Very few people outside political and parliamentary life understand its nuances and have little sympathy with the difficulties and constraints it puts on a Member of Parliament.
We are currently in the process of introducing new legislation, whereby some of the powers of this Committee will be transferred to a Commission. The only difference between the composition of the current Commission and the new one is that a high court judge will be the Chairman of the Commission rather than the Speaker of the Parliament, the Ceann Comhairle.
The Act as it stands is not clear on the division of duties and responsibilities between the Commission and the Committee. This situation will be clarified, and I strongly hope it leans in favour of giving responsibility to the Committee and the Members.
As for a Commission in action, I have one little story about our first meeting with the Commission in Dublin, when we were obliged to consult it on certain matters. It was one of the most difficult meetings I have ever chaired. I virtually had to separate some Commission personnel from one of my colleagues. The Commission took a particularly strong view in one direction, and the Committee member, who had been centrally involved in drawing up the legislation, took quite a different view of its spirit and intent.
We also saw at close quarters the operation of the system in various Parliaments in Australia. In particular, we saw the system in New South Wales, where there is a very high profile Commission. A couple of Committee members who had gone to Australia thinking that an independent Commission was the best way to proceed came back with the opposite opinion.
A second investigation is under way, but it would be injudicious for me to comment on it.
The Committee is charged with responsibility for both the investigation and the subsequent adjudication. Because we do not have the available staff we employ legal consultants for that purpose.
That should give you a brief overview of what we do. We will now answer any of your questions.
Mr Smith: Yes, we will contribute by trying to answer any questions.
Mr Beggs: You said that the New South Wales Commission is an example of the independent Commission not working. How does it operate and what criticisms do you have of it? Do you think that the method of TDs dealing directly with a complaint in a Committee is better? The method that we have sought to date is similar to that of the United Kingdom. It has an independent Commissioner - one person - to do the investigation and then bring a report to the Committee. The Committee then decides whether to take the Commissioner's advice and guidance or seek further information and come to a different conclusion.
Mr Killeen: I was amazed to see the extent to which the New South Wales method was media driven. When a complaint is made against a Member the Commission immediately has the right of access to all his private and public documents. I had difficulties accepting that. I remember at least three incidents where the specific complaint turned out to be frivolous or unfounded, but something else showed up in a document that they felt warranted further investigation. In each of the cases, this was leaked to the media before the Member knew about it. The first that he would have known about it would have been in the newspapers.
It goes against any tenets of natural justice for a case to be conducted against someone on a matter of which they have not been notified and has been proceeded with in the media without their knowledge. My colleagues and I felt that it was a very undesirable way to proceed.
Mr Beggs: I understand your criticisms, but the British system means that an independent Commissioner does the investigation in private until the report is finalised. The report is then brought to the Committee. Therefore the investigation is carried out in private without any media glare. The issue could be media driven but the British system avoids that. Have you any comments on the British system?
Mr Killeen: I had experience of the British system in February of this year. One has to make up one's own mind about how matters are handled at Committee stage. From the outside it appears that openness and transparency are better served if an independent Commissioner is doing the investigation. However, I would be reluctant to leave it to the better judgement of a Commissioner to decide the parameters of an investigation.
In the event of a Commissioner being in place I would look carefully at the legislation to ensure that only the specific complaint could be investigated. If a further complaint or another matter came to light there should be a clear procedure in place for investigating it that would recognise the rights of all parties involved. I would not have an objection to it but I would be worried about the balance.
Dr Adamson: What powers does your Committee have to require Members and other witnesses to appear before it when it is conducting an investigation, and can you require the production of relevant documents, papers and records?
Mr Smith: Before I answer, may I offer my best wishes to you in your deliberations in establishing a Committee and Commission.
As Tony Killeen said in his introductory comments, if a Member of the Oireachtas or a Member of Dáil Éireann makes a complaint to the Committee on Members' Interests, we deal with it. If a member of the public makes a complaint it is referred to the Clerk of Dáil Éireann who decides if it is frivolous or vexatious or if it should be referred to the Committee for investigation. Once a complaint comes to the Committee we begin to investigate it.
The person against whom the complaint is made is notified and he/she will receive the document lodging the complaint. We have the power to seek any documentation except private documents belonging to the person against whom the complaint is made. We have the power to summon anyone to attend the Committee and to demand any document from the complainant or anybody else. To date, we have had just one investigation and the hearings were in private. The Committee can decide to have public or private hearings. In the case of the one complaint made against a Member of Dáil Éireann, the Committee held a private hearing. There was a unanimous recommendation by the Committee that the censure to be imposed on that Member should be 14 days suspension as a Member of the House.
None of us looked forward to the investigation because it is difficult to sit in judgement on one's colleague. No partisanship was shown at the Committee, despite Members' individual political persuasion. This instilled in the Committee, and in ourselves, a confidence in the Committee's ability to carry out a fair, effective and efficient investigation of any complaint made against a Member.
Dr Adamson: Thank you very much. I am sorry that I have to leave at this point, but I particularly wanted to welcome you here today.
Sir John Gorman: If you opened an investigation on a complaint against a Member and you suspected that the complaint involved a criminal offence, would the Committee continue with the investigation or would you refer the matter to the gardai?
Mr Killeen: There are two possibilities. Under the Act, the Committee would be required to make a judgement, strictly within the parameters of the Act, and it would have to do that, even if the matter also happened to be criminal, if that were possible. As good citizens, we would take the view that other avenues ought to be pursued as well. There is no requirement under the Act to do that, but the Committee would consider referring the matter to the Director of Public Prosecutions or the police. At the end of the day the document would be made public and would therefore be available to them anyway. I suspect that the Committee would forward the document to the appropriate authority, but such action is not actually provided for in the Act.
Sir John Gorman: Has this ever happened?
Mr Killeen: No. To date it has not.
Mr McNamee: I note that complaints made by non-Members are referred to the Clerk of the Dáil, who decides whether the complaint will be referred to the Committee ¾ the Clerk is entirely responsible for how the complaint is dealt with. Does the Clerk report to the Committee on those complaints which he has deemed frivolous or vexatious, or is the Committee aware of them? What relationship does your Committee have with the Clerk of the Dáil, who refers the complaint?
Mr Killeen: The Act provides for two categories of complaint which will come to the Clerk. First, those which the Clerk judges to be frivolous or vexatious and secondly, those which he refers to the Committee. I suspect that there is a third category of complaint - those which come from a member of the public, but which fall outside the parameters of the Ethics Act. If that category of complaint were made, I presume that the Clerk would judge that it had nothing to do with the Act and would regard it as an inconsequential piece of correspondence.
He would inform the Committee if he received a complaint which he has judged to be within the parameters of the Act but which is frivolous or vexatious. Of course, the other category of complaint will be put on the table for investigation.
The Chairperson: You also have a system of awarding costs against people who make frivolous or vexatious allegations. Can you elaborate on that?
Mr Killeen: It is a modest amount - a maximum of £1,500. It has yet to be invoked, not that I am suggesting that we would like to invoke it. It has not arisen, but that provision exists. In fairness, I should have raised that earlier when Dr Adamson was here.
Another downside of the Australian system is that it is extremely expensive. A merit of our system is that it is cost effective - although I suppose it is not fashionable to say that in the Republic at the moment. It is very cheap in comparison to the Australian system.
Dr O'Hagan: I welcome you here, I am very glad to see you. To date you have only carried out one investigation. Can you give a rough estimate of how many complaints have been received? When a complaint is received, what criteria are used to establish whether an investigation is conducted?
Mr Killeen: Only two complaints have been referred to the Committee. I do not know how many complaints the Clerk has received. The first one came from a Member, so we had to make a judgement. The Act requires us to investigate any complaint that lands on our table. However, we have the right to discontinue an investigation at any stage if we decide that it is frivolous, vexatious or unfounded. A report to that effect is then placed before the House.
The Chairperson: Bearing in mind that I do not have a legal background this may sound rather naive. You keep referring to an Act. Is the procedure carried out under an Act, an internal ruling or the Standing Orders of the House?
Mr Smith: It is statutory legislation.
The Chairperson: We do not have statutory legislation. Is that correct?
The Committee Clerk: Our Standing Orders follow from the Northern Ireland Act 1998.
The Chairperson: That is OK. I wanted to clarify the procedure in my own mind. Will you say something about the penalties that you can impose upon Members of the Dáil?
Mr Killeen: The maximum penalty is 30 days' exclusion from the House, but, in effect, it could be longer. If the Committee decided that the transgression was ongoing, the 30 days would begin when the Member had rectified the wrong that he was adjudged to have done. There are also minor censures. Parliament could just take note of the Committee's report, it could formally censure a Member or it could suspend a Member for any number of days up to the maximum of 30.
The Chairperson: I assume that the Member would not be paid during those 30 days?
Mr Killeen: No, he would be paid. He would just be excluded from Committees and Parliament.
The Chairperson: It may be argued that the electorate, or the constituency, is being penalised as well as the Member.
Mr Killeen: That was the reason for that. The constitutional advice is that there is a grey area there, even in relation to the exclusion of a Member from Parliament.
Mr Beggs: Which is worse - a Member not being able to attend Committees, or a Member having his pay docked?
Mr Killeen: That is a fair point.
Mr Smith: The danger is that if you were a constituency colleague, your colleague would be at home in the constituency for 30 days.
Mr Beggs: It is curious that you have only had two complaints. We have already had five to ten complaints, mostly minor criticisms of Members' behaviour. It is beneficial to have some redress for minor incidents, because if you wait, and only deal with serious behaviour, you lose the opportunity for correction. From my investigations into the Welsh Assembly and the Scottish Parliament, I think that they have received hundreds of complaints.
They were probably of a lesser nature, but again they were dealt with privately by an independent Commissioner. In my opinion, it helps to drive up the standard of everyone's behaviour, when even minor things can be complained about.
Do you agree that having only two complaints would cause some concern particularly when, in the public domain, a large number of allegations would be reported to tribunals? There is the Finbar Ross affair where a major fraud occurred. TDs were mentioned in the background but none of that appears to have been investigated. Do you require the same level of proof as a criminal investigation or would you accept a different level which the Committee could reach consensus on? If a criminal investigation fails do you consider it appropriate to still investigate and perhaps find someone guilty by the Committee's standards on behaviour.
Mr Killeen: There are probably three fora where complaints might finish up and, in a sense, we are probably the centre one. Traditionally, the Committee on Procedure and Privileges has had a fair number of complaints, but not a huge amount about relatively minor breaches by Members.
The Chairperson: Usually on more procedural matters?
Mr Killeen: Yes, that is a good example. Complaints might be that parliamentary post-free envelopes had been used by non-Members or that somebody had insulted somebody else in the Chamber or used unparliamentary language. A whole range of relatively minor complaints would go to the Committee on Procedure and Privileges. The responsibility of this Committee would only be in relation to the Ethics in Public Office Act 1995. The other kinds of cases, which you mentioned first of all, would be excluded because most of them pre-date 1 January 1996, when the Act came into being. The Committee would be debarred from looking at them in any event as they occurred before the Act was passed. Quite frankly it does look as though some of them warrant criminal investigation rather than parliamentary investigation - they probably do fall into the more serious category.
Mr Beggs: Can you comment on the level of proof that your Committee would require if a criminal investigation failed? Would you still consider it appropriate to investigate the matter and perhaps find a different conclusion?
Mr Killeen: We might well do so, but it would only be within the very narrow parameters of the Ethics Act only. It is quite narrow.
The Chairperson: I welcome Kieran McCarthy. Mr McCarthy had another Committee to attend this morning. Mr McCarthy, do you want to take a moment to get your breath back?
Mr McCarthy: Yes, I apologise for being late. You are very welcome, Gentlemen.
The Chairperson: Can you tell us about how your Committee reaches a decision? Does it have to or tend to be unanimous? Is there ever any concern that the decision might be along party lines?
Mr Smith: As I said earlier, the one investigation that we had in relation to an allegation against a colleague was reached on the basis of consensus. In our parliamentary system the Government has a majority on Committees. In this particular Committee, Mr Killeen and I are the only Fianna Fáil members. The other three members are from the Opposition, so the Government is actually in the minority. It is a majority decision. Regarding the case that I mentioned earlier, there was no partisanship or politics butting into the investigation or when that particular hearing was held in the Chamber. Everybody went about it in a constructive way and wanted to reach a correct decision. The Committee would not want to make a decision that would draw down the odium of the public and the media. It wants to do what is right, and if there is a censure to be imposed on a Member, it will do so if it is warranted.
Dr O'Hagan: How often does your Committee meet - does it meet on a regular basis or does it meet only when necessary? Do you consider the amount of support staff that you have as being enough?
Mr Killeen: We would tend to meet fairly infrequently. When preparing guidelines, we are required to meet a few times. We are required to meet if we have a request for advice, and we have had quite a few meetings because the Government has asked us to make recommendations for strengthening ethics legislation. In fact, we have had quite a few meetings in which we found some 20 or more anomalies in the Ethics in Public Office Act, 1995, and that is being addressed in the new legislation. The only other meetings which are required are hearings to do with complaints.
In theory, we would have hoped to have had very few meetings but it has turned out to be by far the busiest Committee that I am on in terms of attending meetings and reading material.
Mr McNamee: The main reason for our taking evidence from you and the other parties-the Scottish Parliament, the Welsh Assembly and the House of Commons - is to help us make a decision about the appointment of an Assembly Commission. You have expressed your view on the independent Commission in New South Wales. However, given that your Committee, like ours, is responsible for giving advice to Members on matters of their interests and in maintaining the Register of Interests, is it not important that the Commission be independent? I know you have expressed concerns about the media tending to lead these investigations. Would you advise us to have an independent person carry out initial confidential investigations and report only to the Committee? Have you had any difficulties with the confidentiality of your Committee's work in relation to the media?
Mr Killeen: We did not have any difficulty about confidentiality, and there was a lot of documentation and interesting material floating around for a period of months before the final determination in the case was dealt with - material that the media people would have liked to have had. There is currently interesting material in the hands of Committee members about the current investigation and nothing has appeared in the media. So that has worked particularly well.
When it undertakes an investigation, the Committee employs specialised consultants to go through records in the company's offices here or abroad or to do whatever is required in that regard. That has its advantages when you need people for a specific job and you want it done properly and quickly, and you tend to get the best available expertise in the private sector. It would be very difficult, in my view, for a Commissioner to maintain a quota of staff who would enable him to do this job.
That is one of the things that have happened in New South Wales. There are about 130 staff in the Commissioner's office there, and the cost is £6 or £8 or £10 million a year, so their difficulty is in justifying their existence. Naturally that has to colour the approach - if you are costing that much and there are that many of you, you had better be doing something.
The Commissioner in the British system might well have the right to employ expertise from the private sector, as we do. I would not set my face as solidly against that system as I would against the operation of a huge office along the lines of the New South Wales experience. But I strongly feel that the institution of Parliament has a responsibility to conduct its own business and to be seen to be capable of doing that. I am aware that I am slightly digressing from ethics legislation but if I were to make a criticism of Parliaments generally, and of the United Kingdom and Ireland Parliaments in particular, it is that the power of the Executive and the answerability of the Executive to Parliament is quite weak in both instances.
One of the reasons for this is that Parliament has been slow to take charge of its own business, of which I believe this to be a very central part. It has also been slow because people in parties, particularly those in governing parties, tend to be somewhat sluggish in making the Executive answerable to Parliament in a way that would benefit the community, the people and the state. This is one area where Parliament has the capacity to take responsibility for its own business, notwithstanding the fact that the media would call it a closed shop where people look after each other. That is not my experience, and Mr Smith is quite right to say that the public was pleasantly surprised that a parliamentary Committee was able to do business in the way we did, unanimously and without rancour - something which gained a level of acceptance for the verdict.
Mr McCarthy: Did you say that you had 130 people?
The Chairperson: No.
Mr McCarthy: Perhaps you might give us a rough estimate of the number of complaints against Members that your Committee receives and investigates each year?
Mr Killeen: We have had only two in the life of this Parliament since 1997, one of which we have already dealt with. We are in the process of dealing with the other.
Mr Beggs: If you have had only two complaints to investigate, might that not indicate that the hurdle for investigation to occur is quite high and that, consequently, we should be careful in setting it? Your Committee has the power to investigate an allegation that a Member has contravened sections 5 or 7 of the Republic of Ireland's Ethics in Public Office Act, 1995. Could you talk us through these sections and explain what they require of Members?
Mr Killeen: Section 5 concerns the written declaration. If one has property valued above £10,000, excluding the family home - for instance one might have a holiday home or an apartment used for parliamentary duties also excluded - one must declare it. One need not declare the value, merely that it exceeds £10,000 and its address. Also one has to declare if one has an annual income above £2,000 from any source outside Parliament - that does not include county council expenses. There are certain exclusions but, generally speaking, if one has an income in excess of £2,000, one must declare it together with its source, but not the amount. There are other matters like the use of an office for constituency clinics, and so on, if its value exceeds £2,000 a year.
Section 7, which initiated our hearing, is a requirement to declare an interest in something being debated in Parliament or in a Committee. Its scope is a little wider, for it includes connected persons. So, if a family member or someone close holds an interest in something before Parliament from which they or the Member might benefit, he is required to declare it either in writing before voting or verbally if speaking on the issue. A fair number of declarations are made when people are speaking, sometimes unnecessarily. Those are the two main areas.
Section 5 - the declaration - is a little wider in relation to office holders such as Ministers and Ministers of State. When they make the declaration, they are required to declare the interests of connected persons in writing.
Mr Beggs: If someone received less than £2,000, would he not have to declare it?
Mr Killeen: That is the case for income. However under the Electoral Act, 1997, one must declare all gifts in excess of £500.
Mr McNamee: Excuse my ignorance about ethics. It appears you are dealing with Members' Interests.
Does your Committee have a role in dealing with complaints about Members' behaviour outside the Dáil Chamber towards other Members and members of the public?
Mr Smith: Such complaints go to the Committee on Procedure and Privileges. That is the priority Committee of the House and the Ceann Comhairle is its Chairperson. Allegations of misbehaviour by a Member, and matters such as the supposed misuse of Dáil envelopes, which Mr Killeen raised, are dealt with by the Committee on Procedure and Privileges. The Ethics in Public Office Act, 1995, established a register of Members' Interests, and Mr Killeen has outlined what interests must be registered.
Mr Killeen: The new Bill has proposed a Code of Conduct for Members of the Dáil or Seanad Éireann. We have never had a Code of Conduct. The proposal was initially suggested by this Committee. They have one in the House of Commons, the House of Lords and other Parliaments but, historically, we have not.
Dr O'Hagan: At what stage is the Bill?
Mr Killeen: The Bill has been published and we think it will be debated this session.
Mr Beggs: A Code of Conduct will generate most of your complaints. I suspect that potentially, TD's will spend much of their time in Committee investigating many complaints about Members' conduct and behaviour. Will that be a good use of their time? Some of it will be spurious, and some of it will be appropriate. In the House of Commons, for instance, when the Committee dealt with evidence written in a concise form by the Commissioner, they had to set aside one full day to read the report. If it takes one day to read a report, can you imagine, on some occasions, how many days it will take to gather the information? Do you agree that it can be advantageous to have an independent Commissioner to do that groundwork, in order to maximise the effectiveness of public representatives' time?
Mr Killeen: I agree with you that the Code of Conduct will lead to a vastly increased number of complaints, many of which will probably be justified on the basis of the Code, because it will invite new complaints. I do not particularly want to sit in judgement on those complaints for days on end. On the other hand, if someone made a complaint about me as a Member of Parliament, I would prefer to have it referred to a Committee which included fellow parliamentarians.
Mr Beggs: Do you believe that it is appropriate, as in the British system, that the ultimate decision is taken by the Committee, which can require you to present additional evidence and to account for yourself? It may reach a different conclusion.
Mr Killeen: I would like the involvement of peers in the decision-making process, but I fear that you are right. Our happy experience of a relatively small number of complaints may change dramatically for the worse.
Mr McCarthy: Would your Committee be more lenient towards a newly elected Member of the Dáil who was unaware of procedure? If that Member were obviously innocent, would it be forgotten about? What punishment has been meted out to culprits who have been found guilty?
Mr Smith: In the one investigation that did take place, a Member was suspended from the House for 14 sitting days. The legislation specifically outlines that the manner of a contravention must be considered - was it committed inadvertently, negligently, recklessly or intentionally? Therefore there is a provision that the censure may not apply if a person breaches the Code inadvertently.
Mr McCarthy: What about sentences for a person who is convicted?
Mr Smith: The existing legislation permits suspension from membership of the House for a maximum of 30 days. If someone continues to breach the Act, then the suspension may be longer than 30 days.
Mr McCarthy: During that 30 sitting days, is the TD's pay docked?
Mr Smith: No, the TD's pay is not docked. He/she is not allowed to participate in any Committees of the House or to attend the Chamber.
Sir John Gorman: To bring us back to practicalities, I would refer to the two most famous cases in the House of Commons at Westminster. One was John Profumo and the other Neil Hamilton. If there were to be a case similar to that of John Profumo in the Republic of Ireland, what would you do? I am talking about where a Minister has made a statement to the House which is untrue.
Mr Killeen: In the first instance the Public Office Commission would deal with him because he is a Minister, so we would escape. Complaints relating to Ministers and office holders would go to the Public Office Commission.
Sir John Gorman: What about the case of Neil Hamilton?
Mr Killeen: That might be a criminal case.
Sir John Gorman: He is an Englishman. Obviously Irishmen are different.
Mr Killeen: Not necessarily. If the complaint came to the Committee, it would be constrained by the maximum number of days. That penalty might seem ridiculously lenient, particularly if the person were to continue to get their full pay. Under the Ethics in Public Office Act, 1995, if a TD failed to declare a matter which he was required to declare, and that would apply to any donation in excess of IR£500, he would be in double the trouble, not only with the Ethics Committee but also separately under the Electoral Act.
Mr Killeen: The Public Office Commission is a five-member body, but to my knowledge it only meets to consult with us annually and if there is a complaint to refer to it.
Mr Beggs: How many complaints has it dealt with?
Mr Killeen: It has dealt with no complaints publicly.
Mr Beggs: What other allegations have there been relating to brown envelopes? Is no one dealing with that matter?
Mr Killeen: One of the effects of the legislation is that it has made everyone very careful, and the TD goes the full distance and declares everything that he should. The legislation only became law in 1996 and all the allegations that are in the public arena so far, except the one referred to, pre-date that. So the Ethics in Public Office Act, 1995, does not apply to them. That is the background against which this legislation was contemplated and introduced. There would be a consensus in the Parliament that since the legislation is in place people are particularly careful to declare what they should.
Mr Smith: With regard to the Electoral Act, there are expenditure limits on each election per political party, and there were two breaches of the spending limit in two by-elections. I do not know if the Public Office Commission imposed some penalty on the political parties concerned. It was the Labour party and another one.
Mr Killeen: They published an official document stating that the political party had breached the expenditure. I think the penalty was only a censure.
Mr Smith: There were extraordinary powers under this category up to and including suspension of a Member and re-election.
The Chairperson: To sum up gentlemen, is there anything that you feel we have neglected to ask and that would be of use to us?
Mr Killeen: You are in a fantastic position at the beginning of the work of this Parliament to benefit from the experience of other jurisdictions. That was something that we did not have in 1995 to any great extent. You do have that advantage and perhaps you will find ways to ensure that you have effective legislation that encourages people to be open and transparent in their dealings - because ultimately you have the potential to spare a lot of trouble down the line. If all these arrangements had been in place in the Republic in 1980 instead of 1996 we would not be paying a lot of money for tribunals that are attracting a lot of bad publicity. In my view it is an area where Parliament has an opportunity to take control of its own business in an open, transparent and a solid way in order to gain the respect of the electorate and to make it a better Parliament.
Mr Smith: I want to endorse what Mr Killeen has just said. The one thing about establishing a Public Office Commission, if you decide to establish such a body, is that there is a proposal in the legislation that has been published by the Department of Finance for us in the Standards of Public Office Act that it should have a membership comprising of a high court judge, chairman, the ombudsman, the Comptroller Auditor General, and the clerks of both Houses.
I believe, and it would be the view of our Committee, that there should be a practising or a retired politician as a member of that particular Commission. I think that the comment has been made in this discussion that on the legislation that has been published by the Department of Finance we were very unhappy with how it impinges on the Ethics in Public Office Act. Our members were generally unhappy with some of the provisions of the Act, and we hope that the Minister of Finance will adopt some of the amendments that we put forward.
One thing that is a clear view of the Committee is that maybe either the Deputy Speaker or the Chairman of the Public Accounts Committee who is a member of the Opposition - but we have no formal position as such. But, there should at least be one practising or retired politician on that Committee.
With us now there is a tendency when difficulties arise to establish a tribunal and set a judge up to investigate it. Actually the Government decided on a review of the judiciary, and the judiciary fought tooth and nail to exclude anybody who was not a member of the judiciary from sitting on this Committee to review themselves.
Politicians should not leave themselves out of being on the Commission, because people who do not work in politics may not understand matters. For instance, when our Finance Bill is going through Dáil Éireann, the Second Stage goes through the full House, and then the Committee Stage goes through the Finance Committee. That is the detailed amendments and provisions.
At times Members may be voting on particular provisions but they may not be as acquainted with the provisions as they should be. Sometimes a minor infringement may occur about a person involved in relation to some taxation measure that may down the road be of benefit to themselves or an associate company. So it is important that a person who has experienced being at the coalface of politics has an input and participation on that Commission. It would be important from your point of view - and indeed from our point of view - that we have politicians or a politician working on the Commission.
The Chairperson: We are very fortunate here in that we can tap into the experiences of other parliaments, and we have been looking at Westminster, the Scottish Parliament, the Welsh Assembly and, of course, Dáil Éireann. As you have quite rightly said, it is a very important Committee, and it is very important that government at all levels should be seen to be open and transparent.
On behalf of this Committee, I thank you for coming along this morning. It has been very informative and useful, and hopefully we will maintain the contact with you in forthcoming years.
Mr Killeen: We look forward to seeing you in Dublin at some stage.
The Chairperson: That would be very nice, thank you.
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