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Mr Peter Weir |
Northern Ireland Assembly Commission |
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Ms Tara Caul |
Northern Ireland Assembly Secretariat |
1. The Chairperson (Mr Cobain): Representatives from the Commission will provide oral evidence on Part 1 of the Bill, which relates to the independent financial review panel. Peter Weir will take us through that, along with some of his colleagues.
2. Mr Peter Weir (Northern Ireland Assembly Commission): I will try to keep my remarks very brief, because I assume that all members of the Committee can read.
3. The Chairperson: You can make that assumption if you like.
4. Mr Weir: I will introduce the team; I am sure all the faces will be familiar. We have Tony Logue, who is Clerk to the Commission, Tara Caul, who is a legal advisor in the Assembly, Hugh Widdis, who is Head of Legal Services in the Assembly, and Richard Stewart, who is Director of Resources. I will very briefly outline the background, and Tara will then deal with some of the more technical aspects.
5. Members will be aware that the issue stems from a broad criticism that, up until now, the Assembly has been effectively setting its own salaries and terms and conditions. There is a consensus that that is not sustainable.
6. The direct background to the issue arises from the Senior Salaries Review Body (SSRB) report, which was commissioned by the Secretary of State in 2007. Towards the end of 2008, the SSRB published its report. One of the recommendations was for the Assembly to commit itself to accepting the outcome of future independent financial reviews. That was pursued by the Assembly Commission, and a consensus was reached with all the party leaders that an independent body needed to be established in line with other legislatures. Taking that forward required legislation and an amendment to the Northern Ireland Act 1998.
7. The current legal framework for the payment of salaries, allowances and pensions is covered by sections 47 and 48 of the Northern Ireland Act 1998. Section 47 covers the current determination for payment of salaries and expenses of current Members, and section 48 covers the provision of pensions and gratuities of former Members.
8. The amendments to those sections were contained in the Northern Ireland Assembly Members Act 2010, which received Royal Assent earlier this year. Arising from that was a report on financial support and pensions for Members of the Northern Ireland Assembly in June 2010. That led to the Assembly Commission bringing forward, following public consultation, an equality screening of the establishment, through that Act, of an independent body. The route being proposed is very similar to that taken in Wales and England, both of which have moved in a very similar fashion in the past year or so.
9. Ms Tara Caul (Northern Ireland Assembly Secretariat): I will outline some of the main themes of the Bill. I am not providing legal advice on the Bill. As Committee members will be aware, the Bill has two Parts. Part 1 provides for the establishment of the Independent Financial Review Panel. The panel will consist of a chair and two other members and will have the power to determine all aspects of financial support for Members of the Northern Ireland Assembly. The Assembly Commission will retain responsibility for the administration of the salaries and expenditure.
10. The panel is required to exercise its functions with a view to achieving a proper balance between the objective of ensuring probity, accountability and value for money in the expenditure of public funds and the objective of securing an adequate level of remuneration for Members to allow them to discharge their functions effectively.
11. Pursuant to clause 3 of the Bill, the panel is independent and shall not, in the exercise of its functions, be subject to the direction or control of the Assembly or the Assembly Commission. In addition, the panel is required to exercise its functions in an open and accessible manner.
12. The Assembly Commission will be responsible for the appointment of the panel members, but Members of the Northern Ireland Assembly will not be members of the appointment panel. Each appointment will be for a term of five years. To ensure that the panel is independent of Members, a broad range of connections to the Northern Ireland Assembly or individual Members will result in disqualification from eligibility. The Committee will see that schedule 1 to the Bill makes provisions as to the persons who are disqualified from being appointed as or serving as panel members.
13. The appointment of a person as a panel member ceases under the circumstances that are set out in clause 6 of the Bill. The Commission may dismiss a person from office on any of the grounds set out in clause 6(2) of the Bill.
14. The panel is required to issue a code of conduct. Clause 8 of and schedule 2 to the Bill make administrative and financial provision about the panel.
15. The general rule will be that a determination will be made by the panel only once in each Assembly mandate. Further determinations may be made as necessary to take account of changes in the law and practice relating to pensions or exceptional circumstances. Unless there are changes in the law and practice relating to pensions or exceptional circumstances, there will not be a determination when there is less than a year between an ordinary Assembly general election and an extraordinary Assembly election. The panel will be required, as far as is reasonably practicable, to make its determination before the election of the Assembly in relation to which the determination relates. I will hand over to my colleague Tony Logue who will continue the briefing.
16. Mr Tony Logue (Northern Ireland Assembly Secretariat): The panel must communication its determination to the Assembly Commission as soon as reasonably practicable after it has been made. The Commission must publish the determination in full and cannot amend the determination.
17. To ensure that the panel operates in as cost effective way as possible, schedule 2 to the Bill provides that the Assembly Commission must provide the panel, or ensure that the panel is provided, with such administrative support, including staff, services and accommodation as it reasonably requires. However, the Commission is obliged to consult with the panel about such support to ensure that such provision, in particular the duties of the staff of the Assembly and the separation of the panel’s work from the business of the Northern Ireland Assembly or of the Assembly Commission, does not call into question its independence.
18. The Commission must make available and pay such sums as are necessary for the fulfilment of panel members’ terms and conditions of appointment. It must also pay any expenses properly incurred by the panel.
19. We will need to make some minor drafting amendments to Part 1 of the Bill. Those will be submitted to the Committee for consideration prior to its informal clause-by-clause consideration of the Bill, which is due to take place on 15 December 2010. A delegated powers memorandum has also been attached to the Bill. That will allow the Commission to add or remove certain classes of person from the list of those who are eligible for appointment to and service on the panel.
20. The initial financial estimate for running the panel is £15,000 a year. It is estimated that the panel could incur costs of up to £100,000 in the first year of its establishment, while it will incur more modest costs of £15,000 per annum in the other three years. It should be noted that both of those estimates include the cost of administrative support to the panel. However, it is expected that that could be provided by existing Assembly staff.
21. Mr Weir: That concludes our evidence. We are happy to take questions.
22. The Chairperson: I have a couple of quick questions. Will the appointments to the panel be by advertisement?
23. Mr Weir: The appointment process will be handed over in its entirety to the Commissioner for Public Appointments.
24. The Chairperson: Hopefully, as far as possible, there will be a balance in those who are appointed.
25. Mr Logue: The legislation is not prescriptive about the background of appointees. However, it is expected that they will come from suitable backgrounds.
26. The Chairperson: Will you clarify why £100,000 will be spent in the first year of the panel’s operation and £15,000 each year after that?
27. Mr Weir: Richard provided us with a short paper that broke down the costs. Perhaps he can take you through those costs.
28. Mr Richard Stewart (Northern Ireland Assembly Secretariat): The £100,000 is split broadly between £60,000 for costs for staff to support the panel in its work; £20,000 for external specialist advice and support, which would, probably, be along the lines of pay benchmarking exercises to compare Members’ salaries and pension arrangements here with those of other legislatures; then, obviously, the costs to the panel themselves. We estimate that, in the first year, they would work on around four days per month for six months. For estimation, we have used a daily rate of £320. Similar rates were quoted in this morning’s evidence session. That gives a total of around £99,000. Therefore, we suggest that the panel would need £100,000 to do its first determination in the first year.
29. The Chairperson: What would be the costs for administration in following years?
30. Mr Stewart: Clearly, the first year would be the big year, in which the panel would have to produce its first report, which would last for the duration of the mandate. In following years, we envisage that two support staff might support the panel on a more modest basis. Perhaps, around 10% of their time would be spent doing that. That would amount to around £9,000 or £10,000. The cost of the panel for a much more modest time period would make up the difference.
31. The Chairperson: Therefore, panel members would get around £1,500 a year each.
32. Mr Stewart: It depends. From year 2 to year 4 —
33. Mr Weir: The estimate that we produced for the panel was worked out using a daily rate. We estimate that the panel’s work in the second year and beyond would probably cost just under £2,000 per member. We estimate that there will be around six days’ work at £320 per member.
34. Mr Stewart: That comes from an understanding that the panel would probably meet once every two months.
35. The Chairperson: I would like clarification on whether the Commission must accept the panel’s determination when it is made.
36. Mr Weir: In that sense, the panel is completely independent.
37. The Chairperson: In that sense, therefore, could the Commission refuse to accept the panel’s determination?
38. Mr Weir: No. That is not my understanding.
39. The Chairperson: It could amend the determination by saying that it does not agree?
40. Ms Caul: Clause 14(2)(b) requires the Commission to publish the determination in full, the effect of which would be that it could not amend it before publication.
41. Mr Weir: The Commission has no power to either accept it or reject it. That is the amount that is payable. The only option is for an individual member to refuse something if he or she wishes to. The position is the same at present. Members are entitled to a certain amount, which is payable to them. It is up to them to decide whether they want to accept their salaries. That is the same position. It has not changed legally. The Commission has no power to reject the panel’s determination.
42. The Chairperson: For clarification, the reason why the proposal is not viable today is because a majority in the Assembly would not accept any increase in salaries. Is that correct?
43. Mr Weir: Until now, that has been in the hands of the Assembly itself. Therefore, the Commission would bring forward a proposal. Clearly, political judgement is needed. The whole point of the panel is to take the issue entirely out of the Assembly’s hands. Essentially, it will set that determination. It is up to any individual, as it is today, to decide whether to accept what is payable. Neither the Assembly nor the Commission has power to reject or amend whatever comes forward.
44. The Chairperson: I just want to clarify that issue while the lawyers are here. The Bill states that the determination will be communicated to the Commission. However, it does not state anywhere that the Commission can refuse to accept the determination. The Commission could vote against it.
45. Mr Weir: It has no power to do that. It is the same as setting a determination, rejecting it and saying that it should be zero. That would, by definition, be an amendment to the determination.
46. As in any situation, any individual has the power to take action on that. However, as far as I understand it, the Commission has no power at all to amend, reject or welcome that side of it. That is outside its remit.
47. Mr Hugh Widdis (Northern Ireland Assembly Secretariat): At the moment, it is structured so that the Assembly makes a determination that sets Members’ pay, and that amount of pay is payable. The Commission does not have a role to change that. In accordance with the change to the Northern Ireland Act, all the Bill does is to allow the Assembly to delegate that task to the panel. The panel will then make a new determination, which, broadly speaking, will look similar in terms. The amounts might be different but, broadly speaking, the terms will be similar. It might say that there shall be a salary for Members and that it should be the following amount of money. The Commission will simply administer that. The Commission will have no ability to —
48. The Chairperson: Neither the Commission nor the Assembly will have any power over the panel’s determination?
49. Mr Weir: That is correct.
50. Mr Widdis: For the sake of fullness, we should say that the Assembly could theoretically, in future, repeal the part of the Act that established the panel. In that case, the panel would have no power, and the Assembly would make determinations.
51. The Chairperson: Is that the only power that it would have?
52. Mr Weir: Yes.
53. Ms S Ramsey: Thanks for your presentation. I have couple of points. I know that Peter is here to represent the Commission, but he is also a member of the Employment and Learning Committee, which has had problems in the past with the public appointment issue and brought forward a motion on the Get on Board scheme. This Committee could outline the way that public appointments will go, but other Assembly Committees have difficulties with the outworkings of public appointments and find it hard to get a broad range of people on that list. That was mentioned in the Health Committee. Therefore, we need to be careful and possibly look at the debate on the Get on Board scheme.
54. Peter said that the £60,000 for staff breaks down into the cost of three people for six days a year.
55. Mr Weir: No. The £60,000 is the cost of staffing in the first year, which is basically six months’ work. In the later days, when there will be six days of a work a year, the staffing costs will be about £8,600 for two people.
56. Ms S Ramsey: OK. The earlier presentation told us that some administration staff could be in-house, and I am concerned about the figure of £15,000 for both of them. If we do that in-house, we need to say that. That is a general concern.
57. The Assembly is getting crucified on the whole issue of external consultants, and we are talking about doing a lot of this in-house. A figure of £20,000 for external support does not sit right given that the previous presentation said that the general rule would be that the panel will make a determination only once in each Assembly mandate. I know that it goes on to say that there could be special arrangements, but how can you say that the staffing costs will be in and around £100,000 for the first year when the panel will make only one ruling during a mandate? We need to sell that to the community. We need more information on that.
58. Tony mentioned the small number of minor drafting amendments. I know that you will send that detail to the Committee, but will you give us an idea of the amount of money that is involved?
59. Mr Weir: I will deal with a few of those points. Tara will deal the public appointments question. First, the £100,000 is essentially a one-off cost in each term. The £60,000 staffing cost for the year will not be for additional people who have been brought in. The administrative staff will be drawn from people who are already in the system. It is almost like an accounting exercise; if you divert someone from their existing job to do particular tasks, the ultimate cost of that work will still be approximately £60,000. It is not a question of bringing additional people in.
60. Ms S Ramsey: I think that we need to highlight that, Peter. It is not additional money.
61. Mr Weir: We are conscious that, sometimes, the Assembly, or any other legislature, can be accused of presenting a particular figure that has additional costs underneath it because staff are being diverted from other jobs. We are trying to be as upfront as possible about the actual cost of the exercise, as opposed to the cost to the public purse. That explains the bulk of the cost.
62. The cost of the external consultants, who provide a certain amount of required one-off specialist advice, will be approximately £20,000. That advice is to do with job evaluation and benchmarking, and is a specialist task. That cost will only occur in year 1. Tara will deal with appointments.
63. Ms Caul: It has been agreed that the Commission will follow best practice established by the Commissioner for Public Appointments. As members know, and as Paul Gill outlined earlier, the Assembly not bound by the public appointments legislation, but the Commission has committed to following best practice, and we have already consulted with the commissioner in that regard.
64. Ms S Ramsey: May I suggest that you look at the Committee debate?
65. Ms Caul: I certainly will.
66. Mr Weir: Ultimately, we are trying to strike a balance between ensuring that there is openness and inclusivity, and showing a degree of independence.
67. Ms S Ramsey: I appreciate what you are saying. I am not trying to throw a spanner in the works, but there is another Assembly Committee that has a concern about the issue of public appointments, and we need to learn lessons.
68. Mr Weir: We are also concentrating on ensuring that, in preserving that independence, there is a wide range of disqualifications so that no one can accuse the panel members of bias. My colleagues may want to deal with some of the minor amendments.
69. Ms Caul: The amendments to Part 1 are minor, and there are only two or three. For example, clause 13(2)(a) contains a reference to “such pensions"; we will probably remove the word “such". In clause 11(6)(a), we will consider whether the phrase:
“before the coming into operation of this Act"
should be amended to read
“before the coming into operation of this Part".
70. There may be one final amendment to one of the schedules, but I assure the Committee that it is a minor drafting issue.
71. The Chairperson: Briefly, what is the time frame for this exercise, Peter?
72. Mr Logue: The plan is to have appointments at the start of the next mandate so that the panel will be in place to make a determination by late 2011 at the earliest.
73. The Chairperson: Some time in 2011?
74. Mr Logue: Towards the end of 2011.
75. The Chairperson: This time next year?
76. Mr Logue: Yes.
77. Mr Dallat: The figure of £100,000 sounds sensational, even though Peter and Tara have probably explained away a good part of it. I am not one for copying or plagiarising other people’s work, but if this exercise has already been done in Wales and Scotland, why does so much work have to be done here?
78. Mr Weir: There will be a degree of benchmarking. The idea is that we have to look at what has happened elsewhere and in other sectors. There will be a one-off cost in the first year, which will include some benchmarking. That will recur in the first year of each term, but the general running costs for the rest of the exercise will amount to approximately £15,000.
79. Mr Dallat: It is important to note that the Public Accounts Committee accepts that the Assembly does not have all the specialist skills, and because they are only ever needed on a one-off occasion there is never any criticism of employing specialist people. That is an efficiency rather than an extravagance.
80. Mr Weir: I point out that the specialist element in respect of the benchmarking equates to about £20,000. I do not want to give people the impression that it was £100,000 for the specialist side; that was just for the benchmarking exercise.
81. The Chairperson: Thank you very much.
29 November 2010
Members present for all or part of the proceedings:
Mr Fred Cobain (Chairperson)
Ms Sue Ramsey (Deputy Chairperson)
Mr Kieran McCarthy
Mr Daithí McKay
Mr Jim Wells
Mr Paul Givan
Mr John Dallat
Witnesses:
Mr Declan O’Loan |
Committee on Standards and Privileges |
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Ms Tara Caul |
Northern Ireland Assembly Secretariat |
82. The Chairperson (Mr Cobain): The Committee will receive oral evidence from the Committee on Standards and Privileges on Part 2 of the Bill, which relates to the Commissioner for Standards. The witnesses are Declan O’Loan, who is the Committee Chairperson; Paul Gill, the Committee Clerk; Tara Caul, who is a senior legal adviser; and Jonathan McMillen, who is a legal adviser.
83. Mr Declan O’Loan (Committee on Standards and Privileges): Chairman, I begin by thanking you and the Ad Hoc Committee for inviting us to give evidence. The Committee on Standards and Privileges has been working on the Bill for some time, and we are very attached and give importance to the report that led up to it. We are very pleased that the Bill will receive this Committee’s further examination to see whether it needs further alteration or improvement.
84. The Committee on Standards and Privileges is grateful for the opportunity to begin the process of engagement with this Committee on the Assembly Members (Independent Financial Review and Standards) Bill. I am here today as the Chairperson of the Committee on Standards and Privileges, and I am supported by the Clerk to that Committee, Mr Paul Gill. Ms Tara Caul and Mr Jonathan McMillen from Legal Services are also in attendance. I also thank you for agreeing to hear evidence on Part 2 of the Bill first.
85. All Members of the Assembly are required to comply with the requirements of the Assembly’s code of conduct. The Assembly agreed a new code of conduct, which came into effect in October 2009. Following that, the Committee on Standards and Privileges began an inquiry into enforcing the code of conduct and the appointment of a Northern Ireland Assembly Commissioner for Standards. The aim of the inquiry was to establish the most appropriate means of maintaining the code of conduct and handling alleged breaches in relation to it. The Assembly has, for a number of years, had an interim arrangement to ensure that allegations of misconduct by Assembly Members would be independently investigated.
86. A previous Committee on Standards and Privileges concluded that the office of the Assembly Ombudsman was well placed and equipped to discharge the functions of the Commissioner on an interim basis. That interim arrangement is still in place today, and the current Committee is extremely grateful to the Ombudsman and his office for the diligent service that they have provided and continue to provide.
87. As part of the inquiry, the Committee considered models to deal with the investigation of allegations of misconduct by elected Members in other legislatures. It also carried out a consultation and received written submissions and oral evidence from key stakeholders. Those helped the Committee to conclude that, in relation to handling alleged breaches of the code of conduct, it was appropriate that an independent Commissioner should carry out investigations into complaints, that the Committee should determine whether a breach had occurred and that the Assembly should impose sanctions where appropriate. The Committee also concluded that legislation was required and that the Commissioner’s role, powers and independence from the Assembly in respect of specific investigations should all be set out on a statutory basis. In addition, the Committee agreed that the Commissioner should have the power to initiate an investigation if the Commissioner believes that a breach of the code of conduct may have occurred.
88. The Assembly endorsed those conclusions when it approved the Committee’s report on the inquiry on 1 June 2010. It is important to recognise that the broad principles of the Bill were agreed when the Assembly agreed to that report, when the Committee unanimously agreed the Bill and when the Assembly gave its full support to the Second Stage of the Bill.
89. The Committee on Standards and Privileges subsequently agreed that the necessary legislative provisions could be included in the Bill being prepared by the Assembly Commission in respect of the independent financial review panel.
90. I will give you an overview of the main provisions of Part 2 of the Bill. The Bill is in two Parts. Part 1 will establish the independent financial review panel, known as the panel, and Part 2 will establish the Northern Ireland Assembly Commissioner for Standards.
91. Clause 16 provides for the establishment of the post of commissioner. The official title will be the Northern Ireland Assembly Commissioner for Standards. Clause 17 sets out the commissioner’s functions as being to receive and investigate complaints and referrals concerning Members’ conduct, initiate investigations and to report the outcome to the Assembly. The commissioner may also be asked to give advice on matters of general principle.
92. There are, therefore, three different scenarios that can lead to the commissioner carrying out an investigation. First, there is the scenario of when a complaint is made to the commissioner that a Member has breached the code of conduct. Secondly, there is the scenario whereby a matter is referred to the commissioner as per any agreed provision of Standing Orders. Thirdly, there is the scenario of the commissioner initiating an investigation, if the commissioner believes that a breach of the code of conduct may have occurred.
93. The general nature of the second scenario allows for the commissioner to be a more wide-ranging investigative resource for the Assembly in relation to Members’ conduct. The Assembly has already agreed, for instance, that the commissioner should be able to carry out investigations into matters relating to the conduct of Members on a referral from the Clerk/Director General in respect of issues, such as a potential misuse by a Member of Assembly allowances, relating to the Clerk/Director General’s role as accounting officer. Standing Orders would have to be amended to provide for that.
94. It is possible that in the future the Assembly might identify additional conduct issues that it wished the commissioner to be able to investigate. As long as Standing Orders were amended to allow for that to happen, the commissioner would have the authority to carry out such investigations.
95. The provision for the third scenario, which allows for the commissioner to initiate his or her own investigation, was considered very important by the Committee. The Committee feels that it is not acceptable that where there are significant, legitimate and evidential concerns in relation to the conduct of Members, but where no formal complaint has been made, that no investigation should be carried out. If there were no investigation in such circumstances, it would undermine public confidence in the integrity of the Assembly. The Committee on Standards in Public Life share that view. When Sir Christopher Kelly gave evidence to the Committee during its inquiry, he specifically recommended that the commissioner should be able to initiate an investigation. An elected public representative should not be able to evade scrutiny in circumstances in which there is clearly a case to answer, but where no complaint has been made.
96. Clause 18 provides for the commissioner’s independence. The independence of the commissioner in carrying out investigations and coming to conclusions is a crucial aspect of the credibility of the accountability arrangements for Members. The commissioner shall, therefore, not be subject to the direction or control of the Assembly, except to the extent allowed under clause 24.
97. Clause 24 requires the commissioner to comply with directions given by the Assembly. It is envisaged that there will be two types of directions: those that will set a general procedural framework to ensure that the commissioner carries out his or her functions in a consistent and procedurally fair manner; and those that will ensure that the commissioner complies with codes of conduct, etc, and is open and transparent about financial and other interests. It is important to emphasise however that a direction under clause 24 cannot in any way interfere with how the commissioner carries out any specific investigation.
98. Clause 19 provides for the commissioner to be appointed by the Assembly for a term of five years. A person may only be appointed to serve as commissioner once. The Assembly will be responsible for ensuring that the commissioner is appointed by way of fair and open competition and for determining appointment criteria and the terms of appointment.
99. In order to ensure that the commissioner is independent and is seen to be independent, a broad range of connections to the Northern Ireland Assembly or individual Members will result in disqualification from eligibility. Schedule 3, provided for by clause 20, makes provision as to the persons who are disqualified from being appointed as, or serving as, the commissioner.
100. Clause 21 provides for the circumstances in which the commissioner will cease to hold appointment or may be dismissed. Under certain circumstances, the commissioner will automatically cease to hold office. The Assembly may also, by resolution, dismiss the commissioner.
101. Clause 22 and schedule 4 make administrative and financial provision in respect of the commissioner. Under schedule 4, the Assembly Commission must provide the commissioner with such administrative support, including staff, services and accommodation as the commissioner reasonably requires. Schedule 4 also provides the commissioner with a general power calculated to facilitate the discharge of the commissioner’s functions. It also requires the commissioner to provide the Assembly Commission with financial information and to lay an annual report before the Assembly.
102. Clause 23 enables the Assembly to appoint an acting commissioner to discharge any or all of the commissioner’s functions, if, for some reason, the commissioner is unable to act. The disqualifications applicable to the commissioner will also apply to the acting commissioner. The clause also provides for the acting commissioner’s resignation and removal.
103. Clause 25 provides for the commissioner to determine the procedure and timing for any specific investigation and reporting its outcome to the Assembly, albeit with an agreed general procedural framework set out in a direction under clause 24.
104. Clause 26 allows the Assembly — in practice, the Committee on Standards and Privileges — to be able to request the commissioner to carry out further investigations following receipt of a report from the commissioner. However, the commissioner does not have to carry out further investigation if the commissioner concludes that such investigation would be unnecessary.
105. Clause 27 provides that a report by the commissioner may make recommendations but will not be able to recommend the imposition of a specific sanction on any member. The clause also provides for the commissioner’s reports to be published.
106. Clause 28 provides for the commissioner to have the power to require witnesses to attend and give evidence or to provide documents in similar manner to the power of the Northern Ireland Assembly. Therefore, a prospective witness will not be obliged to answer a question or produce a document that would not have to be answered or produced in court.
107. Clause 31 provides for a number of offences in relation to refusals to provide or otherwise failing to give evidence in accordance with a request under clause 28. Maximum penalties for an offence under the clause will be a fine up to level 5, which is £5,000, on the standard scale or three months’ imprisonment. There is provision for the prosecution of company directors who have consented to non-compliance by a company.
108. Clause 32 provides that for the purposes of the law of defamation, statements by the commissioner will attract absolute privilege and statements to the commissioner will have qualified privilege.
109. Clause 33, not clause 22 as it says on your memo — I apologise for that typo — provides that information disclosed to the commissioner in the course of an investigation will not be disclosed by or on behalf of the commissioner, except for the purpose of enabling the commissioner to discharge functions or in connection with the investigation or prosecution of an offence.
110. It is likely that the Committee will recommend a small number of minor drafting amendments and clarifications to Part 2 of the Bill. Those will be submitted to the Committee for consideration prior to its informal clause-by-clause consideration, which is due to take place on 15 December 2010.
111. A delegated powers memorandum has been submitted to the Committee in respect of clause 20(2) and clause 38(2) of the Bill. Financial costs in relation to the initial establishment of the commissioner have been estimated at £10,000 based on the fair and open competition to recruit the commissioner and start-up office costs. The annual recurring costs of the commissioner are expected to total £25,000, based on the current level of investigations. It should be noted that that estimate includes the cost of administrative support to the commissioner, but it is expected that that could be provided by existing staff of the Assembly Commission.
112. That concludes my summary of Part 2 of the Bill, Chairman. I am happy to address any questions that you or other members may have.
113. The Chairperson: Will the commissioner be able to initiate investigations on his own?
114. Mr O’Loan: As I indicated in my opening remarks, the Committee thought very carefully about that provision and takes it very seriously indeed. I recall what Sir Christopher Kelly and the Committee on Standards in Public Life said about that. We had Sir Christopher Kelly before us in this very seat on a previous occasion. They indicated that the commissioner should be able to initiate investigations proactively without waiting for a formal complaint. They made clear the rationale for doing that. They felt that if there were serious allegations about a Member of the Assembly which were in the public domain, but no formal complaint had been made and the commissioner was powerless to act, that would damage public confidence in the system.
115. What we are fundamentally about is having a code of conduct that the public can have confidence in. We have created that, and are now creating an absolutely rigorous and robust system to enforce that code of conduct. It is not just a theoretical debate.
116. As a result of the Westminster expenses scandal, issues arose in the public arena, yet no complaint had in fact been entered. One might think that surprising, but a situation may easily occur whereby something could cause intense public concern, yet no specific complaint is entered. It may be significant to the Ad Hoc Committee that the Standards and Privileges Committee at the House of Commons has looked at this matter again, perhaps seeing what we have done, and has recommended that the Parliamentary Commissioner for Standards at Westminster should also have the power to initiate investigations.
117. I will outline a little more detail of how that would work. It will be set out in a direction under clause 24. That direction does not exist yet, but if the legislation passes, the Committee will be working closely on that. However, the Committee has considered the matter already and has indicated the direction in which it would go. First, an investigation should only be carried out where the commissioner sees prima facie evidential basis to justify an investigation. I might add also that that would be considered closely by the Assembly when appointing a commissioner. I think that the mind of the Assembly would be such that it would not want to appoint a commissioner who did not have the courage to investigate if abuse were suspected in relation to the code of conduct; nor would we want to appoint a commissioner who would set out on witch-hunts. That will be on the Assembly’s mind when making an appointment.
118. The second procedural point is that the commissioner should be able to make preliminary inquiries before deciding to embark on or self-start an inquiry.
119. The Chairperson: There is a point on which I want clarity, which is that, for politicians, reputation is a big thing. The very fact that a commissioner would start an investigation would, from a reputation point of view, be hugely damaging to the politician. The Committee was quite clear that it did not have any reservations around giving someone the power to investigate personally if there are any criteria? He would personally decide how serious the issue was?
120. Mr O’Loan: We think it very important that significant power and independence is given to the commissioner. I would go as far as to say that, although we had reservations, we were strongly of the view that that power ought to be there. I guess that there is ultimately a balance, which I have already indicated when I talked about the type of person that one might appoint.
121. The Chairperson: How would you get that balance right? How would you know in advance whether someone was not going to be a witch-hunter or be easy to roll over? How would you gauge that?
122. Mr O’Loan: The Standards and Privileges Committee would give a direction in the form of a formalised paper that would be given to the commissioner. That would be adjustable if, over a period of time, it was felt that the power was not being exercised as it should be in the legislation. There would be the ability to make future adjustments.
123. Mr Wells: I just want to tease something out, Declan. Would the present Commissioner for Complaints be precluded from being our commissioner under one of those definitions that you have laid out in schedule 3? Would he be defined at the moment as an employee of the Assembly?
124. Mr O’Loan: My understanding is that he would not be so precluded, although I will defer technical opinion to my colleagues.
125. Mr Paul Gill (Northern Ireland Assembly Secretariat): That is absolutely correct. Nothing in the schedule would prevent the current Ombudsman and Commissioner for Complaints from being appointed as the new Assembly Commissioner for Standards if he were identified through the competition. In fact, a specific provision in schedule 4 states that, in the event of an existing office holder being appointed as commissioner, he may use the resources and office support that he already has to support his role as commissioner.
126. Mr Wells: Is the ombudsman currently defined as an employee of the Assembly?
127. Mr Gill: No. Although he is the ombudsman, he is also carrying out a role as interim Commissioner for Standards under the Assembly’s Standing Orders. However, Standing Orders do not make the ombudsman an employee or a member of staff of the Northern Ireland Assembly.
128. Mr Wells: Is that the case even though his office is being paid to cover the amount of work that he does for the Assembly?
129. Mr Gill: The ombudsman’s office has a separate budget, and it uses that to bid for additional resources to allow the ombudsman to carry out his work as the interim commissioner.
130. Mr Wells: The interim commissioner is, therefore, paid by the ombudsman’s office rather than the Assembly.
131. Mr Gill: Yes.
132. Mr Wells: I am just thinking out loud. The economic situation has clearly moved on considerably since we first thought of this idea. People may view the establishment of a completely independent, all new office with a commissioner and staff as a lovely idea. However, given the present economic situation, would it be better to continue to facilitate the ombudsman’s work as interim commissioner? Do you think that that would be problematic, given that you are trying to establish a clearly neutral role for the commissioner?
133. Mr O’Loan: Obviously, in the mind of the Committee, the starting point was about enabling the Assembly to assert its authority in enforcing its code of conduct. However, the cost issue is certainly a serious consideration. The explanatory and financial memorandum, which I quoted in my opening remarks, states that the set-up costs are in the order of £10,000. That is a one-off cost.
134. The annual recurring cost of the commissioner, based on the current number of investigations, is expected to total £25,000. However, that cost might vary. If there were no complaints and investigations, the cost would be extremely small. However, if there were a lot of investigations, activity would have to rise to meet that. That figure is, therefore, based on the current number of investigations.
135. There are three cost components. The first element of cost is £16,500 for 300 hours of work per annum. That figure is not snatched out of mid-air. Rather, it is a reasonable estimate based on two factors: the rate of remuneration paid to the current Welsh Commissioner for Standards; and the number of hours worked by our interim commissioner in the recent past. The second element of cost is £3,500 for legal advice and other expenses per annum, and the third element of cost is £5,000 for administrative support to the commissioner. In fact, based on our calculation of the overall costs — if we accept that this money will come from the public purse — our system would, in fact, deliver the same service at a lesser cost than the current system.
136. Mr Wells: The panel will obviously have to draw up a report on pay, terms and conditions, and expenses — there will be a flurry of activity at the start — and then, presumably, that document will be published and agreed to. However, after that, we could all be like Mother Theresa and nothing would happen because there would be no complaints to investigate. I must say that the cost of a commissioner in Northern Ireland is much less than it is elsewhere, such as in Scotland or Westminster. However, how do you ensure that we not end up paying the commissioner a king’s ransom for doing very little?
137. Mr O’Loan: It is important to point out that the issue of money must be taken very seriously, particularly given the present context. However, we are talking about a global sum in the order of £25,000, which is not big. I think that most members of the public would regard that as representing very good value for money if it ensures confidence in Members of the Assembly.
138. In terms of the ongoing costs, you can see the three headings that I gave you. If there were no complaints, most of those ongoing costs would disappear on a recurring basis. The actual cost would be minimal if there were no complaints.
139. Mr Wells: We are trying to attract someone of particular standing, independence and knowledge, but with a promise that if all goes well he or she may have little work to do. Why would anyone take that up, if everything worked to plan?
140. Mr O’Loan: That would be one of the factors that would be there when it went to open competition. In some ways, we are ahead of ourselves. There is an unpredictable workload; it will depend on the level of complaints that occur. At times, we will be seeking investigations to be conducted with due dispatch. I would have thought that one would be looking to recruit a person who would be able to offer that kind of flexibility, as, for example, the Ombudsman’s office is able to give. That would be a factor. I suppose that the person would have to have a recognition that they might be appointed to the post, and then have to fold their arms and receive no complaints whatsoever for a time. That is an uncertainty.
141. Mr Wells: The vast majority of complaints in Westminster related to housing, second homes, expenses for overnight accommodation and issues like that, which do not apply here. It does not matter where you live in Northern Ireland as an MLA — whether you live in Belleek or Strabane — you are not allowed to stay overnight; we do not pay it. You are not allowed to have a second home in Belfast or a flat, or to rent a property to stay in elsewhere in Northern Ireland. A lot of the issues that brought the Westminster system into incredible disrepute do not apply to us. By the way, you are not allowed to buy duck houses or to clean your moats, because you do not have any such properties in the first place. On that basis, about 90% of the areas of contention will not apply to us, because we do not get the money to start with.
142. Mr O’Loan: We know that there has been a history of complaints here; the interim commissioner has had work to do. We would all agree that it is vital that there be a code of conduct and a method of enforcing it. I do not think that any of us can predict what the complaint levels will be or the types of complaint that are going to be made. You are right that there are certain types of complaint, because the expenses system is different. I have said that the Clerk/Director General can make direct reference to the commissioner if, in his duty as accounting officer, he comes across something that gives him concern. He can go directly to the commissioner. I think that we would all agree that that power needs to be there. He needs to be able to go somewhere with any concern that he has. I do not know if that gives you any comfort.
143. A certain number of complaints that we have had relate to whether Members have used appropriate language. We now have such a history of that that we know how to deal with it, and the Committee has recognised the legitimate right of politicians to speak as politicians. Perhaps some of those complaints of that type may disappear out of the system. However, we still end up with a situation where no one can predict what the level of complaints is going to be.
144. The Chairperson: Will a retention fee be paid?
145. Mr O’Loan: I think that there is in the Welsh system.
146. Mr Gill: It is worth clarifying that the legislation provides for the Commission to determine the terms and conditions of the commissioner. The Committee on Standards and Privileges has not sought to say what those terms should be. In its report, the Committee noted the Welsh model, in which there is a retainer of £4,500 per year. After that, it is about £320 per full day that the commissioner works. Having used those figures in respect of the hours that the Ombudsman did for the Assembly last year, we reached the figure of £25,000 per annum running costs. That is not to say that the Assembly Commission may not choose to adopt a different approach when it comes to determining the terms and conditions.
147. Mr Givan: You said that it would be cheaper than the current system. How does that work?
148. Mr Gill: There are three aspects to the costs of the commissioner: the cost of providing administrative support; the cost of expenses, for example, legal expenses; and salary costs. The administrative costs are likely to be the same whether the Assembly, the Ombudsman’s office or A N Other public body provides them. The expenses are likely to be the same in any event as well, including legal expenses, because those are procured independently by the commissioner. That only leaves the salary costs. The salary cost, based on the Welsh model, is not terribly high. If the Commission chose to remunerate a commissioner along those lines, it would be cheaper to pay someone at that rate than as per the current arrangements.
149. Mr Givan: So that type of system cannot be built in to our current Ombudsman and just say that it should be met within the existing budget? He would have to get a fee for carrying out the work and administration costs? There is not the capacity to do what is currently being done?
150. Mr Gill: The Ombudsman bids for additional resources to allow him to carry out the role of Interim commissioner.
151. Mr Givan: Is five years enough time for a former MLA to have been out of the Assembly and to be perceived as neutral?
152. Mr O’Loan: The Committee gave a lot of thought to that. I was really pleased and impressed by the Committee’s discussion, because it considerably amplified the original list. Broadly, it came up with the idea that if a person is politically tainted —
153. Mr Wells: Enhanced.
154. Mr O’Loan: We wanted to leave the position as open as possible. Clearly, however, we felt that certain persons, if appointed, would not command public confidence or the confidence of Assembly Members. We thought — it can be seen in a number of the categories — that, for people like former Assembly Members or other persons who had political connections, if we created a five-year decontamination period, we would do a reasonable job in allowing them to have a fair chance at the job, that is in not being overly restrictive, and yet still having the confidence of Assembly Members and the public.
155. Mr Givan: You touched on the issue of the commissioner having the power to investigate without complaints. How do you prevent MLAs or politicians who do not want to make a complaint but still going to the commissioner and saying that they might want to look into something? If a politician wants to be, to a certain extent, a coward and is not prepared to put their name to a letter to lodge a formal complaint, they will go to the commissioner and whisper in his ear.
156. Mr O’Loan: I think that we will be appointing a person with the highest level of integrity, and that conversation will not get opened up at all. I think that the person appointed will simply not go there at all. They will probably have such a position and stature in the community that any Assembly Member with any sense will know that attempting to influence the commissioner in that way is totally out of order. That might be seen as a matter for investigation in itself.
157. Mr Givan: I admire your confidence that that will be the case, but I can certainly see scenarios in which individuals may not be prepared to put their name forward but will whisper certain things. I am concerned that, potentially, that opportunity is opened to people are not prepared to make a formal complaint.
158. Mr Gill: If, for example, an Assembly Member had information about another Member and tipped off the commissioner, it is very likely that, during the course of the commissioner’s investigation, the commissioner would have to interview the Member who had that information. That would go into the commissioner’s report. There is provision in the legislation to ensure that the commissioner’s reports will always be published in full, so I imagine that, in those circumstances, the evidence that the Member had would make its way in to the public domain in any event.
159. The Chairperson: You talk about openness and transparency, which is a big thing for the Committee. If someone spoke to the commissioner, their identification would have to be made public.
160. Mr O’Loan: As Paul indicated, if it became the subject of an investigation by the commissioner and the subject of his report, the evidence that he had gathered would be part of that report. Any report that comes from the commissioner is then made public in our report.
161. The Chairperson: If someone were to tip the commissioner off, they would obviously want to investigate that. When the report is prepared, the name of the individual who tipped the commissioner off would have to appear in the report.
162. Mr O’Loan: I was envisaging a slightly different scenario. If a Member had a perfectly legitimate concern and felt that they were under a duty to go to the commissioner and say that there was something unsavoury going on in relation to Member X —
163. The Chairperson: I understand all that. I am not saying that other people’s reputations are not important, but Members’ reputations can make the difference between them getting elected or not. Therefore, they are hugely important. If someone is investigated and the issue raised publicly, obviously their reputation is damaged. However, if someone were to come along and tip the commissioner off — whatever that may mean — and the commissioner goes to investigate that complaint, I assume that in the interests of openness and transparency, that individual will be named in the report. Can we have a guarantee of that?
164. Mr Gill: One part of the Assembly’s current complaints procedure states that a complainant must provide their name and address. They cannot be an anonymous complainant. However, the code of conduct does say that, in exceptional circumstances —
165. The Chairperson: I do not mean that. The point that I am making is not about someone making a complaint; it is about someone tipping the commissioner off. I do not want any difficulty around this issue. I am not making a complaint. If a piece of information leads the commissioner to investigate something and a report is published, the commissioner will then say that the investigation was initiated as a result of a certain Member telling them about it. Making a complaint is a totally different thing. If I make a complaint or anyone makes a complaint, it is officially in the book. I am asking you what happens if someone initiates a complaint based on the idea that they have tipped someone off. If the commissioner decides to investigate, will that individual’s name be mentioned in the report?
166. Mr Gill: There is no specific provision in the Bill to ensure that that would happen. There is provision in the Bill for the Assembly to issue directions as to how the commissioner should carry out his or her functions, which extend to reporting. Therefore, the Assembly would be within its rights to say in a direction to the commissioner that it should always include the name of anyone who has —
167. The Chairperson: Will that be included in regulations?
168. Mr Gill: A direction. The Committee —
169. The Chairperson: It is not clearly in there at the moment, but it will be, will it?
170. Mr Gill: There is provision for the Assembly to do it.
171. Ms S Ramsey: The point that Fred and Paul made is that it is a grey area. What strikes me is that we all sit on Committees here and encourage, on a daily basis, whistle-blowing where stuff is not happening correctly. Within society, we encourage people to come forward and stand up, but we need to have a balance when somebody brings information into the public domain. We have all heard of cases of whistle-blowers being victimised.
172. Every politician in this Building has a bad name among the general public. Rightly or wrongly, they think that politicians are a dirty breed. We need to encourage openness and transparency. If people have relevant information, we need to try to ensure that this is not a closed shop and that we are not pulling down the shutters. It is about how we get that balance. However, the point that the Chairperson is making is that we need to get the balance, because it is easy to throw snowballs at politicians and to make them stick. Therefore, you need to have the balance between having that and protecting us as individuals.
173. I know what Paul is saying about it being a direction. I am struck by clause 19, which states that:
“The Commissioner shall be appointed by … the Assembly."
I take it that it will be a decision of the Standards and Privileges Committee, and then it will go to the Assembly to be ratified.
174. Mr O’Loan: That is exactly correct.
175. Ms S Ramsey: But then it says that:
“the Assembly will make arrangements for … ensuring that any person to be appointed as Commissioner has been identified by fair and open competition".
Have we any idea how that will happen? Will it be through public appointments, or will there be new criteria in place for that? I am concerned when you then talk about:
“a broad range of connections to the … Assembly".
What does that mean? We could say, for instance, that Paul’s sister’s husband has a broad connection to the Assembly — I am assuming that you have a sister who is married, Paul. We need to be careful that we are not bending over backwards to please everybody else, but, once again, implying that politicians or people connected to them are dirty. I am conscious of how we get that balance.
176. Mr O’Loan: I thank the Deputy Chairperson for her comments. She is in exactly the same position as the Committee. We are concerned that there should be, in the public mind, a clear and demanding code of conduct for Members and a clear system for enforcing it. Equally, we are protective of the legitimate and proper rights of Members. The Committee wants to get that balance right. I hope that I have understood your point about connections between the office holder and the Assembly. That is set out in great detail in schedule 3 to the Bill. It is a matter that the Committee gave careful thought to, and, of course, it is open. Under the legislation, it can subsequently be amended by the Assembly Commission. That is why we refer to the delegated powers. The Assembly Commission could alter that listing in the future, if it wished to do so.
177. Mr Gill: The Commissioner for Public Appointments gave evidence to the Committee on Standards and Privileges during its inquiry. The Commissioner for Public Appointments does not have authority over Assembly appointments; they are for Executive and departmental appointments. Nonetheless, the Committee recognised that the commissioner had developed best practice and considered that the Assembly should adhere to that best practice when appointing an individual. The Committee’s report noted the appointment process for the Comptroller and Auditor General, in which there is a public notice and a fair and open competition. Different Members are involved, and then there is a resolution on the Floor of the Assembly. The Committee considered that that would be an appropriate means of appointing someone. However, the exact detail will be agreed with the Commission and the Committee. The Commissioner for Public Appointments has agreed that she is happy to provide us with advice on the detail of that.
178. Ms S Ramsey: I think that we need to be sensible and get the balance right. I have gone through the list. Anybody connected in any way to an MLA cannot apply. That means that aunts, nephews, nieces, uncles or any person related to your spouse cannot apply. I can understand what we are trying to do, but I think that, sometimes, we cut off our noses to spite our faces. It goes back to the fact that if you are in any way connected to an MLA —
179. Mr O’Loan: Our overall view is that we want to make it as open as possible, but we do not want to appoint someone at whom fingers will be pointed and the appointment of whom people will say is not appropriate.
180. Ms S Ramsey: I appreciate what you are saying, and, sometimes, we need to be whiter than white, but the other part of that is that it is sending out the message that if you are in any way connected to an MLA —
181. Mr O’Loan: I take your point. That is the difficult arena that we live in, and probably always will.
182. Mr Dallat: This reminds me of the people who go out to check housing benefit — they have a look at the clothes line to see what is on it. We do not want to get to that stage.
183. Ms S Ramsey: Not in this weather.
184. Mr Dallat: I am quite new to all of this. Will the commissioner have the power to investigate all Members of the Assembly, including Ministers?
185. Mr O’Loan: Yes. The commissioner has the power to investigate all Members of the Assembly acting in their capacity as Members. Ministers are Members of the Assembly, and they are subject to the code of conduct for Members.
186. Mr Wells: I recently referred a case to the Committee, and it came back with a blanket letter stating that it could not investigate the matter because the person concerned had been carrying out their functions as a Minister and that I should refer it to the Executive. The chances of getting cross-community support in the Executive to slap any Minister on the wrist are, of course, nil. Are we not going to get into that position? You have been very careful there to define the circumstances in which a Minister can be touched.
187. Mr O’Loan: We probably cannot examine individual cases here. However, if a complaint were made about a Member who happened to be a Minister, the first question that the commissioner would ask is whether the action complained about was done in a strictly ministerial capacity or whether it could be regarded as a fault under the code of conduct for Members. Essentially, that is the way in which cases are examined and conclusions are drawn. We have jealously guarded the fact that Ministers are subject to the code of conduct for Members, and the Committee is keen for that to be made clear.
188. Mr Wells: I must come back on that point. Ministers may be subject to the code of conduct, but the only way that it can be enforced, if they are acting as Ministers, is with cross-party support.
189. Mr O’Loan: That is not the case. During the investigation of a specific case, the Committee on Standards and Privileges and the commissioner are perfectly within their rights to investigate a complaint made against a person who happens to be a Minister using, as the determinant weapon, the code of conduct for Members and may find the Minister in breach of the code. I am not sure whether that has happened, but it is certainly potentially available.
190. Mr Dallat: This is probably not worth mentioning, but Jim said earlier that the Assembly does not pay for overnight accommodation. However, in the distant past, there were people who lived a lot closer to Belfast than Belcoo or Strabane who qualified for overnight accommodation.
191. Mr Wells: That was stopped.
192. Mr Dallat: OK. It is not a relevant issue. We did that without a commissioner.
193. The Chairperson: I would like some clarification on the point about Ministers. You said that there is a difference — perhaps I picked this up wrong — between a Minister acting as a Minister and a Minister acting as a Member. Does that mean that a Minister acting in his capacity as Minister is not in breach of the code of conduct if he or she does something wrong in his Department?
194. Mr O’Loan: If a complaint is made about a Minister, and the commissioner, on preliminary examination, can see that the Minister has been acting strictly, absolutely and solely in their capacity as Minister, they might say that the matter can be determined only by using the ministerial code. If, however, it overlapped with the code of conduct for Members, the commissioner would be perfectly free to examine it within the terms of reference in the code of conduct for Members.
195. The Chairperson: That does not apply to Chairmen, does it? [Laughter.]
196. Mr Wells: Say, for example, a Minister, acting entirely in his or her role as Minister, stayed in a £500-a-night hotel instead of a £150-a-night hotel, and another Member referred that to the commissioner, could the commissioner touch that?
197. Mr Gill: The commissioner would not be able to look at those particular circumstances, which would fall exclusively within the ministerial code of conduct, but there are areas that overlap.
198. Mr Wells: The problem is that the only people who can enforce the ministerial code are the Executive, and there is not a pup’s chance of getting the member’s party representatives on the Executive to vote for that to happen; it would never occur.
199. Mr O’Loan: We have no control over the enforcement of the ministerial code. The Committee can only go as far as expressing some concern about the matter.
200. Mr Dallat: I initiated that question, but I am now wondering whether I should have done so. It seems to me that if you want to avoid any kind of discipline, always make sure that you use the Minister’s headed paper when you do things.
201. Mr O’Loan: I could not possibly comment on that.
202. Mr Givan: When a report is being done on a vexatious complaint — say, for example, the commissioner gets a tip-off, but there is no evidence to substantiate it — I assume that it will become common knowledge that there has been an investigation. There is damage done in that regard. Will the commissioner be able to say that he or she carried out the investigation because this MLA asked him or her to? That MLA could then be seen to have abused their position in order to attack another.
203. The Chairperson: We are going to address that, are we not?
204. Mr Gill: There is already a complaints procedure in the Assembly’s code of conduct, which sets out admissibility criteria. It is anticipated that that procedure is going to be set out in a direction under clause 24 as to what the commissioner has to do. That means that when the commissioner gets a complaint, he or she will apply the admissibility criteria and, possibly, come to the conclusion that it is trivial, vexatious or substantially related to another complaint and, therefore, does not need to be taken forward. In those particular circumstances, the commissioner can come to the Committee to say that he or she has received such and such a complaint and considers it to be trivial and that no investigation needs to take place. If the Committee agrees, that will be the end of the matter.
205. The Chairperson: Will the individual be named?
206. Mr O’Loan: That does not need to go into the Committee’s report.
207. The Chairperson: I am just —
208. Mr O’Loan: At that point, no investigation would have happened, so what the commissioner brings to us would not constitute a report and, therefore, would not have to be published by the Committee on behalf of the Assembly.
209. The Chairperson: This is an extremely important point. When the commissioner comes to the Committee to say that it is not going to be investigated, will the individual concerned be named?
210. Mr O’Loan: He or she would not be named publicly.
211. Mr Gill: He or she would not be named publicly by the Assembly.
212. The Chairperson: So something could be put into the directions to the commissioner around the point that has been made about identification of people bringing complaints.
213. Mr O’Loan: Yes. The legislation will give us the capacity to do exactly that.
214. The Chairperson: So there is nothing in here at the moment, but you will look at that again, will you?
215. Mr Gill: The Committee will be looking to agree directions as to how exactly all these things should work.
216. The Chairperson: Thank you very much.
217. Mr O’Loan: We indicated that, as part of your deliberations, we would come to you with a couple of matters. Thank you very much, and I wish you well in the rest of those deliberations.
8 December 2010
Members present for all or part of the proceedings:
Mr Fred Cobain (Chairperson)
Mr Paul Givan
Mr Kieran McCarthy
Mr Conall McDevitt
Mr Daithí McKay
218. The Chairperson (Mr Cobain): This item is the consideration of the written submissions. There is a summary of the issues raised in written submissions, as well as copies of the submissions themselves, in members’ papers. Are there any comments that you want to make on any of those submissions?
219. OK, we will go on quickly to the informal clause-by-clause scrutiny of the Bill. Members should indicate today if they require any further information on any clause. Officials will attend the next meeting, on 13 December, to provide clarification. We need to consider each clause today, and if members want any additional information they need to request it at this stage.
220. The Committee on Standards and Privileges and the Assembly Commission propose to make a number of amendments to the Bill. Officials will brief the Committee on those amendments at the next meeting. A copy of the amendments to Part 1 of the Bill proposed by the Commission has been tabled.
221. The Committee has a very tight deadline. We have to have a formal and final position on every clause by next Wednesday. This item of business is being recorded by Hansard for inclusion in the Committee’s report. Again, just make sure that that all of your electronic devices are switched off.
222. I refer members to the clause-by-clause summary of responses, which details all of the issues that were raised with each clause along with all of the responses from the Committee on Standards and Privileges and the Assembly Commission. Members may want to refer to that document as we move through the clauses.
223. On clause 1, the National Assembly for Wales Remuneration Board considered that having five members allowed it to draw on experience from a variety of backgrounds. The Commission considers the model of three to be the most cost-effective, allowing experience to be drawn in from a variety of backgrounds. Are Members happy with three?
Members indicated assent.
224. The Chairperson: Clause 2 is about the functions of the panel. No issues were raised around this clause. Are members happy with the general contents of the clause?
Members indicated assent.
225. The Chairperson: Clause 3 deals with independence and openness. Again, no issues were raised with the clause. Are members happy with the general contents of the clause?
Members indicated assent.
226. The Chairperson: Clause 4 deals with appointments to the panel. Some Committee members sought assurances that best practice, as developed by the Office of the Commissioner for Public Appointments, would be followed. The Commission has advised that there will be a fair and open appointment process, consistent with the principles of best practice published by the Commissioner for Public Appointments in Northern Ireland. Are members happy with the contents of that clause?
Members indicated assent.
227. The Chairperson: Clause 5 deals with disqualification from membership of the panel. No issues were raised on the clause. Are members happy with its general content?
Members indicated assent.
228. The Chairperson: Clause 6 deals with termination of membership of the panel. The National Assembly for Wales Remuneration Board considered that the Committee would need to review what form of safeguard against arbitrary dismissal would be most likely to work and best in practice. The Commission is satisfied that the grounds for dismissal are transparent and are listed in the Bill. Arbitrary dismissal is guarded against by high levels of visibility and judicial review. Are members happy with the contents of the clause?
Members indicated assent.
229. The Chairperson: Clause 7 deals with the code of conduct for panel members. This was an issue that was raised by the National Assembly for Wales Remuneration Board. The Bill does not provide any detail of how it will ensure that panel members will work within the code of conduct. The Commission is satisfied that clause 7 makes it clear that the intention is that members will work within the code of conduct. The wording is modelled on the Parliamentary Standards Act 2009. Are members happy with that?
Members indicated assent.
230. The Chairperson: Clause 8 deals with administration and finance. Some submissions commented on the fact that the panel would not have its own officials. Arrangements will need to be monitored to ensure the independence of any advice that is given. The National Assembly for Wales Remuneration Board also wished that the Ad Hoc Committee should be satisfied that the panel has sufficient resources. The Commission recognised the importance of establishing arrangements to ensure the independence of the panel and its proper use of resources. Are members happy with the general content of that clause?
Members indicated assent.
231. The Chairperson: Clause 9 deals with the annual report. No issues were raised about that clause. Are members happy with its general content?
Members indicated assent.
232. The Chairperson: Clause 10 deals with meetings of the panel. No issue were raised about clause 10. Are members happy with its general content?
Members indicated assent.
233. The Chairperson: Clause 11 deals with exercise of functions. The National Assembly for Wales Remuneration Board asked whether only allowing the panel to make more than one determination per year in exceptional circumstances would reduce its flexibility to make further determinations in light of circumstances or experience. The Commission is satisfied that the clause makes appropriate provision and strikes the correct balance. It wishes to amend clause 11(6). The amendment is to leave out “this Act" and insert “this Part". Are you content with that amendment?
Members indicated assent.
234. The Chairperson: Are you happy with the general content of clause 11?
Members indicated assent.
235. The Chairperson: Clause 12 deals with contents of determinations and salaries and allowances. No issues were raised on that clause. Are you happy and content with this clause?
Members indicated assent.
236. The Chairperson: Clause 13 deals with contents of determinations, pensions, gratuities and allowances. No issues were raised on the clause. The Assembly Commission wishes to amend clause 13(2)(a) to leave out “such". Are members content with that amendment?
Members indicated assent.
237. The Chairperson: Are members happy with the general content of the clause, with that amendment inserted?
Members indicated assent.
238. The Chairperson: Clause 14 deals with the availability of determinations. The Committee has sought clarification on whether determinations of the panel would be binding. The Commission confirmed that it does not have power to amend or reject any determination. Pursuant to clause 14, all determinations will be published in full. Therefore, the Commission cannot amend them prior to publication. Are members happy with that?
Members indicated assent
239. The Chairperson: Clause 15 deals with the meaning of “the panel". No issues were raised on the clause. Are members happy with the general contents of the clause?
Members indicated assent.
240. The Chairperson: Clause 16 deals with the establishment of the commissioner — these are the only two issues on which we have to adjudicate. No issues were raised on clause 16. If you are happy with the general contents of this clause, we will go on.
Members indicated assent.
241. The Chairperson: Clause 17 deals with the functions of the commissioner. I have to advise you that the Scottish Parliamentary Standards Commissioner queried whether the commissioner should be under a duty to report on all complaints, particularly those which after initial investigation are found to be irrelevant or inadmissible. The Committee on Standards and Privileges advised that the code of conduct provides for the commissioner to advise that no investigation should be carried out into complaints that are inadmissible, trivial or vexatious, or that relate to a complaint that has been substantially investigated on a previous occasion. Where it is agreed that no investigation should be carried out, there will be no requirement for any sort of report to be published on the details of the complaint. Are you happy with the general content of that clause?
Members indicated assent.
242. The Chairperson: This is not a seance; you have to speak up. It is not like our Committee, Mr McDevitt. Clause 18 deals with the independence of the commissioner. There were no issues raised. Are you happy with the general contents of the clause?
Members indicated assent.
243. The Chairperson: Clause 19 deals with the appointment of the commissioner. Confirmation was sought that best practices as developed by the office of the Commissioner for Public Appointments would be followed. The Scottish Parliamentary Standards Commissioner queried whether the five-year term was too short and whether a provision for reappointment should be included. The Committee on Standards and Privileges recognises that the Commissioner for Public Appointments has developed best practice and agrees that any appointment should be made in line with best practice principles; the commissioner should therefore be consulted on the proposals.
244. It should be noted that clause 19(4)(a) places a duty on the Assembly to ensure that the commissioner is appointed by fair and open competition. It was the Commissioner for Public Appointments who recommended a one-off term of appointment of five years. The Committee on Standards and Privileges said that a commissioner who may later require Members to support a reappointment could be perceived to be compromised. Happy with that?
Members indicated assent.
245. The Chairperson: Clause 20 deals with disqualification from being appointed or serving as the commissioner. Some members expressed concerns that the list of disqualifications is too broad. That view is strongly held by the Northern Ireland Human Rights Commission, which feels that the Bill goes too far in debarring people on the basis of relationships that extend well into the outer reaches of the family. The Committee on Standards and Privileges considers that, in the interests of independence, a broad range of disqualifications should be listed. Are members happy with that general content?
Members indicated assent.
246. Mr McDevitt: So that I am clear: does that mean that the Committee is going with the list in schedule 3?
247. The Chairperson: Yes.
248. Mr McDevitt: It is an extremely long list, and this is a very small place. It may sound like an obvious question, and I apologise if it has been asked before, but has the Committee conducted any research to figure out how related people are to each other in this part of the world?
249. The Chairperson: Yes.
250. Mr McDevitt: So you have satisfied yourself?
251. The Chairperson: This Committee did not. These are coming from the Standards and Privileges Committee. Are you on that Committee?
252. Mr McDevitt: No.
253. The Chairperson: The Standards and Privileges Committee did a lot of background work on this, and that is its recommendation after doing that work.
254. Mr McDevitt: Fair enough.
255. Mr McKay: What exactly has the Human Rights Commission said?
256. The Chairperson: It is in your pack. Monica McWilliams has responded. She basically said that she thought the Bill was too severe and that it disqualified too many people.
257. Mr McKay: I think I go with that view as well. It does go too far.
258. The Chairperson: OK. We will go to a vote.
259. The Committee Clerk: No, you can come back to it.
260. The Chairperson: We will come back to it. We are just going through this; we will come back over it.
261. Mr McDevitt: Has this Committee had a chance to review some of the research material that was available to the Standards and Privileges Committee in order to figure out how far that extends in the general population? Are you talking about 30% of the population, 20% or 10%?
262. The Chairperson: No, we did not do that.
263. Mr McDevitt: It might be helpful.
264. The Committee Clerk: Officials from the Standards and Privileges Committee will be back on Monday.
265. The Chairperson: You can ask them. The point I am making is that this Committee is time-bound for a fortnight.
266. Mr McDevitt: I understand that. I am not trying to complicate matters.
267. The Chairperson: There is always a first time for everything. On a serious note, a lot of the work has already been done, and all we will be doing is going back over stuff that has been gone over for a period of months. We can ask that question on Monday.
268. Mr Givan: What clause does that relate to again?
269. The Chairperson: Clause 20.
270. Mr Givan: I personally think the list goes too far as well, but the Committee on Standards and Privileges has recommended it.
271. The Chairperson: We will ask the officials next week; Conall, you can raise it. We will prepare them and let them know that the question is going to be asked.
272. No issues were raised around clause 21, on termination of a commissioner’s appointment. Are members content with clause 21?
Members indicated assent.
273. The Chairperson: Clause 22 deals with further provision about the Commissioner. The Scottish Parliamentary Standards Commissioner felt that the commissioner should be able to appoint staff and obtain office accommodation as he or she sees fit, subject to the Commission’s approval. The Committee on Standards and Privileges advised that, although the Commission has a duty to provide administrative and other support, the commissioner can secure the provision of such goods and services required to exercise his or her functions. That is in schedule 4 to the Bill. The commissioner cannot directly employ persons; doing so would have legal and financial implications.
274. Are you happy with the general contents of that clause?
Members indicated assent.
275. The Chairperson: No issues were raised concerning clause 23. Are you happy with that?
Members indicated assent.
276. The Chairperson: Quickly on to clause 24, directions to the commissioner. Some members had sought for such directions to include directions on naming the complainant who prompted the commissioner to undertake any investigations. The Standards and Privileges Committee confirmed that clause 24 provides the Assembly with the power to issue such directions. Are you happy with that?
Members indicated assent.
277. The Chairperson: Investigations by the commissioner: as with clause 17, the Scottish Parliamentary Standards Commissioner queried whether the commissioner should be under a duty to report all complaints, particularly those that initial investigations find to be irrelevant or inadmissible. The Committee on Standards and Privileges advises that, where it is agreed that no investigation should be carried out, there should be no requirement for any sort of report to be published on the details of the complaint. Happy with that?
Members indicated assent.
278. The Chairperson: There are no issues with clause 26. Are members happy with that?
Members indicated assent.
279. The Chairperson: On clause 27, some members thought that the directions to the commissioner should include directions on naming any complainant who prompted the commissioner to undertake any investigation. The Committee on Standards and Privileges confirmed that clause 24, again, provides the Assembly with the power to issue such directions regarding reports. Happy with that?
Members indicated assent.
280. The Chairperson: Clause 28 is the power to call for witnesses and documents. There were no issues raised in respect of clause 28. Clause 29 also deals with witnesses and documents. Again, no issues were raised. Are you happy with that?
Members indicated assent.
281. The Chairperson: No issues were raised about clause 30, oaths. Are you happy with that?
Members indicated assent.
282. The Chairperson: Clause 31, offences. No issues were raised. Happy with that?
Members indicated assent.
283. The Chairperson: No issues were raised concerning clause 32, protection from defamation actions. Clause 33 deals with restrictions on disclosure of information. The Scottish Parliamentary Standards Commissioner asked whether, where a complaint is received about a particular Member, the commissioner should have the authority to acknowledge that to be the case. The Committee on Standards and Privileges advised that the Assembly could, if it felt it to be appropriate, give the commissioner such authority in a direction under clause 24. Happy with that?
Members indicated assent.
284. The Chairperson: Transitional provisions — no issues under this clause. Clause 35 deals with orders. There were no issues raised. Agreed?
Members indicated assent.
285. The Chairperson: Clause 36 is consequential amendments. No issues were raised. Happy with that?
Members indicated assent.
286. The Chairperson: No issues were raised about clause 37: “Interpretation: general". Are you happy with that?
Members indicated assent.
287. The Chairperson: Clause 38: “Commencement". No issues were raised. Are you happy with that?
Members indicated assent.
288. The Chairperson: Clause 39 is the Bill’s short title. No issues were raised under clause 39. Schedule 1 deals with disqualification from membership of the panel. No issues were raised. Happy with that?
Members indicated assent.
289. The Chairperson: Schedule 2: “Panel: administrative and financial arrangements". An issue was raised under clause 8 about ensuring that the panel has sufficient resources and monitoring the independence of any advice given. The Commission recognises the importance of establishing arrangements to ensure the independence of the panel and its proper use of resources. Are you happy with that?
Members indicated assent.
290. Mr McDevitt: Do schedule 1 and schedule 2 not fall under the purview of the Human Rights Commission’s concerns?
291. The Committee Clerk: The Human Rights Commission was more concerned about disqualifications for the commissioner, because they are broader than those for membership of the panel.
292. Mr McDevitt: OK, so it was only schedule 3. Thank you.
293. The Chairperson: Schedule 3 deals with disqualification from being appointed or serving as the commissioner. The issues raised are as at clause 20. The Committee on Standards and Privileges considered that, in the interests of independence, a broad range of disqualifications should be listed. OK?
Members indicated assent.
294. The Chairperson: Schedule 4: “Commissioner: further provision". An issue was raised on clause 22 regarding whether the commissioner should be entitled to appoint staff and obtain accommodation, subject to the approval of the Assembly. The Committee on Standards and Privileges advised that, although the Commission has a duty to provide administrative and other support, the commissioner can secure the provision of such goods and services as are required to exercise his or her functions. However, the commissioner cannot directly employ people. There would be a number of legal and financial implications if the commissioner were able to do that. Are members content with schedule 4?
Members indicated assent.
295. The Chairperson: Schedule 5 is consequential amendments. No issues were raised around this. Agreed?
Members indicated assent.
296. The Chairperson: The Assembly Commission wishes to amend schedule 5 at paragraph 1, leaving out “the Schedule" and inserting “Schedule 1". OK?
Members indicated assent.
297. The Chairperson: If we need clarification on any of the issues, we will get that next week.
13 December 2010
Members present for all or part of the proceedings:
Mr Fred Cobain (Chairperson)
Ms Sue Ramsey (Deputy Chairperson)
Mr Kieran McCarthy
Mr Daithí McKay
Mr Paul Givan
Mr John Dallat
Witnesses:
Ms Tara Caul |
Northern Ireland Assembly |
298. The Chairperson (Mr Cobain): Officials from the Committee on Standards and Privileges will brief members on the amendments to the Assembly Members (Independent Financial Review and Standards) Bill.
299. Mr Paul Gill (Northern Ireland Assembly): Thank you, Chairperson. The Committee on Standards and Privileges met last Wednesday and agreed to table four minor amendments to the Bill.
300. The first proposed amendment is to clause 17, which refers to investigations into breaches of the code of conduct. It subsequently refers to investigations into complaints that:
“the conduct of a member of the Assembly has…failed to comply with the Code of Conduct".
301. There is no reason why the Bill should be inconsistent in that regard. The amendment provides for the clause to be consistent by referring to investigation of breaches of the code whenever they occur, rather than investigating the conduct of Members. The amendment would also ensure that the Assembly was not unduly fettered if it wished to provide for the admissibility criteria for complaints to allow for complaints to be made against former Members. The Committee is aware that the admissibility criteria for complaints will be set out in a direction to the Commissioner under the provisions of clause 24. The Committee on Standards and Privileges will determine the admissibility criteria.
302. The second proposed amendment is to clause 31(2). It seeks to remove the unnecessary words “or make an affirmation" as the reference to oaths in the clause automatically extends to affirmations. The next proposed amendment is to clause 34. Clause 34(1) correctly refers to a “complaint or matter", but subsection (2) and subsection (3) refer only to a “matter". It is proposed that those references should be changed to “complaint or matter" for consistency.
303. The final proposed amendment is to schedule 4(6), which sets out the duty of the commissioner to consult the commission on any liability incurred by the commissioner that the Assembly Commission may be required to discharge. On reflection, the Committee was concerned that that paragraph read awkwardly and was not easily understood. The proposed amendment would not in any way alter the essence of schedule 4(6), but would improve the clarity of the duty in question. Those are the four proposed amendments that the Committee on Standards and Privileges has agreed that it will table.
304. Mr Givan: I want some clarity on clause 17 and the admissibility criteria that you mentioned. Are we specifically putting a provision in the legislation that will allow for the investigation of former Members?
305. Mr Gill: No; that is not the case. As drafted, the Bill is ambiguous on whether the commissioner would ever be able to investigate former Members. If the Assembly later decided that it wished the admissibility criteria to extend to former Members, there would be ambiguity about whether the functions of the commissioner would allow him to do so. In agreeing to the proposed amendment, there would not necessarily be an agreement that former Members may be investigated. Rather, if the Committee on Standards and Privileges and the Assembly agreed at a later date that the commissioner should be able to do that, the legislation would not prevent that.
306. Mr Givan: Do the current arrangements allow the Committee on Standards and Privileges to investigate former Members?
307. Mr Gill: The current arrangements are not set out in legislation, and there is no existing statutory provision in respect of former Members. However, the Committee is of the view that, if it receives complaints about Members who subsequently resign, for example, there should be no difficulty and those investigations should continue.
308. Mr Givan: I am trying to establish the reason for including the amendment. Why was it necessary to draft that amendment?
309. Mr Gill: There is an inconsistency in the language that is used in the Bill. There are references to breaches of the code of conduct and subsequent references to the conduct of a Member being inconsistent with the code of conduct, but there is no reason why the Bill should refer in separate places to those terms in different ways. The Committee has also agreed that it does not want the Bill to prohibit the commissioner from being able to carry out investigations in respect of former Members at this stage. That is not to say that the Committee has taken the decision that the commissioner should launch those investigations; it just does not want to create a legislative provision that would prevent the commissioner from undertaking such investigations in the future. The concern is that, as drafted, there is ambiguity surrounding the commissioner’s powers to do that. There is no ambiguity in the Scottish or Welsh legislation or in the powers of the Parliamentary Commissioner for Standards, so the Committee is keen that there should be no ambiguity in this Bill.
310. Mr Givan: I appreciate that clarification. However, if a person is no longer a Member of the House and is found to have breached some rule, what sanctions are available to punish that person? What is the point in having an investigation if sanctions cannot be applied because the person is no longer a Member?
311. Mr Gill: It is correct that the sanctions that the Assembly can apply to a Member who has breached the code of conduct apply only if that person continues to be a Member. However, the Committee on Standards and Privileges has looked elsewhere at examples whereby Members breached codes of conduct and investigations were carried out even though those Members had become former Members. Those investigations provide an opportunity for the public and the body to establish the facts of exactly what happened, which has its own value. There is also an argument that internal procedures allow breaches to take place, and that, by establishing the full facts of what occurred, a body can learn from the mistakes that were made and make necessary improvements.
312. Mr Givan: If the amendment passed, would it still be up to the Committee on Standards and Privileges to instruct an investigation to take place?
313. Mr Gill: Yes; that is absolutely correct. The Committee on Standards and Privileges will issue a direction to the commissioner that sets out the admissibility criteria for investigating complaints or accepting complaints to be investigated. One of those criteria could be, for example, that a complaint needs to be about a current Member. The Committee on Standards and Privileges has not yet decided on the admissibility criteria. However, the amendment allows the Committee to include former Members if it decides that it wants to do that, and it ensures that the commissioner would be able to investigate those Members.
314. Mr Dallat: I presume that the reference to “document" includes electronic mail as well as hard copy?
315. Mr Gill: In which context?
316. Mr Dallat: Clause 31(1)(c) and 31(1)(d) refer to concealing or destroying documents. Documents that are electronically stored can be deleted.
317. Mr Gill: Yes, that includes electronic documents. It concerns the information contained in a document. Clause 28(4)(b) provides clarification:
“‘document’ means anything in which information is recorded in any form".
318. Mr Dallat: That is grand.
319. The Chairperson: I have two quick questions for clarification. First, if a breach were minor, I do not understand why you would want to investigate a former Member who is no longer here, particularly given that no sanction would be available. Secondly, if it were a major breach, I assume that that would be a criminal matter for the police to investigate. However, it may be a waste of time to investigate former members for what could be minor breaches. Therefore, what is the purpose?
320. Mr Gill: It is unlikely that former Members would be investigated for very minor breaches in any event.
321. The Chairperson: No. The amendment allows the power for that to happen. You cannot insert that amendment and then say that certain breaches will not be investigated. If someone complains to the commissioner about a breach, the Committee is not going to set out criteria that would allow the commissioner to decide which breaches of the regulations he will investigate. If a breach is reported, the commissioner must investigate it.
322. Mr Gill: The commissioner could reach the view that a complaint related to an allegation that was trivial or vexatious. In those circumstances, if the commissioner reached that view and reported that to the Committee, there would be no requirement for an investigation. That applies to current and former Members. I just want to emphasise that the Committee has not yet decided whether to enable the commissioner to carry out investigations of former Members.
323. The Chairperson: That amendment allows for the power to do that.
324. Mr Gill: That is one effect.
325. The Chairperson: If we agree to put it in, we agree to the ability of the Committee on Standards and Privileges to instruct the commissioner. Why else would you put it in?
326. Mr Gill: The reason for the amendment is to remove ambiguities so that if the Committee on Standards and Privileges decides in future that it wants to do that, it can. However, at this stage, the Committee has not yet decided whether or not it wants to do that, and the amendment does not commit it to do that.
327. The Chairperson: You are giving the Committee the power to do it, if it so decides. That is the same thing. Once it is in legislation and enacted, it is there for the Committee to use. It does not make any difference that the Committee may never need to use it. The very fact that is there, rather than whether or not it is ever going to be used, is the issue for us. The answer to whether it is there is yes. Therefore, the fact that it may never be used is not the point.
328. Mr Gill: One of the effects of the proposed amendment is to give the Committee the power to do that, if it decides to do so in the future. It thinks that that is important, because it has seen examples in other places where investigations into the conduct of former Members have been carried out and published. It is not always the case that sanctions can be applied to former Members. However, there are often broader more important lessons to be learned for the organisation in question.
329. Mr Dallat: I do think that there are any circumstances in which we would bring back Craigavon or Carson. A former Member could be someone who resigned today because there is an investigation. That person would be a former Member, and, if there were nothing in legislation, there could not be an inquiry.
330. The Chairperson: It could also be someone who left 14 years ago. That is the point.
331. Mr Gill: In theory, it could. However, the admissibility criteria for the current code of conduct state that a complaint should be made within 12 months of its being able to have been made.
332. The Chairperson: Irrespective of those caveats, once the amendment is agreed, the Committee on Standards and Privileges can make instructions.
333. Mr Gill: Yes; it would have the power to determine what the admissibility criteria should be.
334. The Chairperson: Is the Committee content with the proposed amendments?
Members indicated assent.
335. The Chairperson: We move to the issue of the wide-ranging definition of “family member" in schedule 3. We discussed that during our informal clause-by-clause scrutiny last week. Schedule 3 deals with disqualification from being appointed or serving as the commissioner. The Northern Ireland Human Rights Commission raised concerns that the Bill goes too far in barring people based on relationships that extend beyond the outer reaches of the family. Members have a copy of that submission.
336. Mr Gill: When looking at the category of persons who should be disqualified, the Committee thought that it was of crucial importance that the commissioner be not only independent and impartial, but seen and understood to be independent and impartial. The Committee felt that it could be argued that, if the commissioner were a family member of an Assembly Member, he or she may not command widespread confidence of having that independence or impartiality.
337. The Committee recognised that the arguments on the breadth of the categories of persons who are disqualified are finely balanced. There is a discussion to be had on how widely the definition of a family member should go, and the Committee understands that, when the Bill was agreed, provision was made for schedule 3 to be amended by subordinate legislation, exactly for the sorts of reasons that we are looking at now. Others may have different views on that, and the Committee did not consult on this provision. If responses come back from the consultation that raise concerns on that, the Committee on Standards and Privileges will be happy to look at them.
338. The Chairperson: It is right to be as open and transparent as possible in dealing with the issue, but a number of Committee Members felt that the definition was a bit restrictive. It gets down to great nieces whether of “full or half blood". Do you think that anyone will be available to fill the post?
339. Mr Gill: The Committee felt that there was an important principle concerning family members, but a pragmatic approach could be taken to how that is implemented in the legislation.
340. The Chairperson: We have a suggested amendment to remove the reference to “great grandparent or great grandchild" and remove the reference to:
“great uncle, great aunt, great nephew or great niece (whether of the full or half blood)".
341. I am not sure what that last part means. Under our suggested amendment, “family member" means parent, child, grandparent, grandchild, brother, sister, uncle, aunt, nephew, niece, spouse or any person related to a spouse, civil partner or any person related to a civil partner, cohabitant or any person related to a cohabitant.
342. Ms S Ramsey: The Human Rights Commission, in its letter to the Committee, does not go as far as providing a form of words. Can we ask it to do that to ensure that the amendment is compatible with human rights legislation?
343. The Chairperson: It is a matter of making a decision, because we could discuss the definition for ever. Clearly, those family members are quite closely linked to the individual. For clarification and probity, it should include a parent, child, grandparent and grandchild. I do not think that anybody would be happy with someone as close as that, or a brother, sister, uncle, aunt, nephew or niece of a Member being able to be the commissioner. It is the next line down; we have to have a definition. The amendment strikes a balance. The definition should also include spouse, civil partner and cohabitant. That is as close as someone can get. Can we come back to this issue on Wednesday?
344. The Committee Clerk: We are not meeting again until January. We can agree an amendment.
345. The Chairperson: Do you want to see that?
346. Ms S Ramsey: Yes.
347. Mr Givan: Is there is a definition of “family member" elsewhere in legislation?
348. The Committee Clerk: Yes. Exactly the same definition is used for the financial review panel. The idea is for us to make the definition narrower for both the panel and the commissioner.
349. Mr Givan: Does someone need to propose that amendment? I am happy to do that at whatever stage.
350. Ms Tara Caul (Northern Ireland Assembly): If it extends to the part of the Bill that deals with the panel, it is a similar definition. Will the Committee make a similar recommendation in respect of the panel?
351. The Chairperson: Yes. The definition would have to be the same for the panel and the Commissioner. We feel that the current definition is too wide. We are trying to ensure that everything is open and transparent, which are famous words, but the definition is a bit ludicrous. It is far too wide. The amendment meets the criteria, but it is fairer.
352. Ms S Ramsey: The letter that we received from Monica McWilliams states that the concerns that she raised are no different from what were already raised in:
“written and oral evidence to the Assembly Committee on Standards and Privileges inquiry".
353. Mr Gill: When the Committee carried out its consultation on the Assembly Commissioner for Standards, it did not consult on the specific categories of disqualification that may apply. When the Northern Ireland Human Rights Commission gave evidence to the Committee, it mentioned that there needed to be a justification for any category of disqualification that was agreed. I think that the Committee on Standards and Privileges is content that there is justification for the category of “family member". It was provided with a definition of “family member" that is used elsewhere in legislation. That is why the Committee accepted it. However, I think that the Committee is open to reviewing whether that definition of “family member" is appropriate in this case, if that is what this Committee suggests.
354. Ms S Ramsey: Where is it used elsewhere?
355. Mr Gill: It is used elsewhere in this Bill; in respect of the panel, for example. I understand that there are other examples of legislation in which family members are defined. Those definitions were probably used to inform this legislation.
356. Ms S Ramsey: Are you referring to Assembly legislation?
357. Ms Caul: A fairly recent example is the Caravans Bill, which contains a very similar definition.
358. Ms S Ramsey: So there is precedent for the definition.
359. The Chairperson: We can have a look at the amendment. Paul can take it away and come back on 17 January.
360. Mr Gill: There will be no difficulty in taking the Ad Hoc Committee’s comments to the Committee on Standards and Privileges and agreeing an appropriate amendment.
361. The Chairperson: We will give you a copy of our amendment, and you can come back on 17 January.
362. Mr Gill: We will go to the Committee on Standards and Privileges and the Assembly Commission.
363. Ms S Ramsey: Perhaps Tara could also provide us with examples of where that definition is already in place.
364. Ms Caul: Yes.
365. The Chairperson: The Committee’s suggestion is that Paul looks at our amendment and comes back to us on 17 January. Are members agreed?
Members indicated assent.
366. The Chairperson: We move to formal clause-by-clause scrutiny. We will go through each of the clauses, 1 to 39, and schedules 2, 4, 5 and 6. We will seek the Committee’s final decision on each. Paul will stay and help us through it.
367. Mr Gill: I am happy to.
368. The Chairperson: I am glad to say that there is a lot of reading for me in this.
Clause 1 (Establishment and membership of the Panel)
369. The Chairperson: The National Assembly for Wales Remuneration Board considered that having five members allowed the board to draw on experience from a variety of backgrounds. The Commission considered that the proposed model of three is the most cost-effective and will allow it to draw on experience from a variety of backgrounds.
Question, That the Committee is content with the clause, put and agreed to.
Clause 1 agreed to.
Clauses 2 and 3 agreed to.
Clause 4 (Appointments to the Panel)
370. The Chairperson: Some Committee members sought assurances that best practice, as developed by the Commissioner for Public Appointments, will be followed. The Commission has advised that there were will be a fair and open appointments process consistent with the principles of best practice, as published by the Commissioner for Public Appointments.
Question, That the Committee is content with the clause, put and agreed to.
Clause 4 agreed to.
Clause 5 agreed to.
Clause 6 (Termination of membership of the Panel)
371. The Chairperson: The National Assembly for Wales Remuneration Board considered that the Committee needs to review what form of safeguard against arbitrary dismissals is most likely to work best in practice. The Commission is satisfied that the grounds for dismissal are transparent and named in the Bill. It advises that arbitrary dismissal is guarded against by high levels of visibility and judicial review.
Question, That the Committee is content with the clause, put and agreed to.
Clause 6 agreed to.
Clause 7 (Code of conduct for Panel members)
372. The Chairperson: The National Assembly for Wales Remuneration Board argued that the Bill does not provide any detail on how it will ensure that panel members will work with a code of conduct. The Commission is satisfied that the wording of clause 7 makes it clear that the intention is that members will work within the code of conduct, and that wording is modelled on the Parliamentary Standards Act 2009.
Question, That the Committee is content with the clause, put and agreed to.
Clause 7 agreed to.
Clause 8 (Administration and finance)
373. The Chairperson: Some submissions commented that, as the panel will not have its own officials, arrangements will need to be monitored to ensure the independence of the advice given. The National Assembly for Wales Remuneration Board also wished that the Ad Hoc Committee should be satisfied that the panel will have sufficient resources. The Commission recognised the importance of establishing arrangements that ensure the independence of the panel and its proper use of resources.
Question, That the Committee is content with the clause, put and agreed to.
Clause 8 agreed to.
Clauses 9 and 10 agreed to.
Clause 11 (Exercise of functions)
374. The Chairperson: The National Assembly for Wales Remuneration Board asked whether allowing more than one determination a year only in exceptional circumstances would reduce the flexibility of the panel to make further determinations in the light of circumstances or experience. The Assembly Commission is satisfied that the clause makes appropriate provision and strikes the correct balance. I remind you that the Assembly Commission wishes to amend clause 11(6), page 4, line 37 by leaving out “this Act" and inserting “this Part". Members previously indicated that they were content with that amendment.
Question, That the Committee is content with the clause, subject to the amendment proposed by the Assembly Commission, put and agreed to.
Clause 11, subject to the amendment proposed by the Assembly Commission, agreed to.
Clause 12 agreed to.
Clause 13 (Contents of determinations: pensions, gratuities and allowances)
375. The Chairperson: No issues were raised under clause 13. The Assembly Commission wishes to amend clause 13(2)(a), page 6, line 14 to leave out “such". Members previously indicated that they were content with that amendment.
Question, That the Committee is content with the clause, subject to the amendment proposed by the Assembly Commission, put and agreed to.
Clause 13, subject to the amendment proposed by the Assembly Commission, agreed to.
Clause 14 (Availability of determinations)
376. The Chairperson: The Committee sought clarification that the determinations of the panel would be binding. The Commission confirmed that it does not have the power to amend or reject any determination and, pursuant to clause 14, all determinations will be published in full. The Commission cannot amend them prior to publication.
Question, That the Committee is content with the clause, put and agreed to.
Clause 14 agreed to.
Clauses 15 and 16 agreed to.
Clause 17 (Functions of the Commissioner)
377. The Chairperson: The Scottish Parliamentary Standards Commissioner queried whether the commissioner should be under a duty to report on all complaints, particularly those which, after initial investigation, are found to be irrelevant or inadmissible. The Committee on Standards and Privileges advised that, where it is agreed that no investigation should be carried out, there will be no requirement for any sort of report to be published on the details of the complaint. The Committee on Standards and Privileges wishes to make two amendments to the clause. First, at 17(1)(b), page 7, line 10, insert “at a relevant time". Secondly, at 17(2)(a), page 7, line 18, leave out:
“the conduct of a Member of the Assembly has, at a relevant time, failed to comply with the Code of Conduct",
378. and insert:
“a breach of the Code of Conduct has occurred".
Question, That the Committee is content with the clause, subject to the amendments proposed by the Committee on Standards and Privileges, put and agreed to.
Clause 17, subject to the amendments proposed by the Committee on Standards and Privileges, agreed to.
Clause 18 agreed to.
Clause 19 (Appointment of the Commissioner)
379. The Chairperson: Confirmation was sought that best practice developed by the Commissioner for Public Appointments would be followed. The Scottish Parliamentary Standards Commissioner queried whether the five-year term was too short, and whether a provision for re-appointment should be included. The Committee on Standards and Privileges recognised that the Commissioner for Public Appointments has developed best practice, and agreed that any appointment should be made in line with best-practice principles. The Commissioner for Public Appointments should, therefore, be consulted on the proposals.
380. It should be noted that clause 19(4)(a) places a duty on the Assembly to ensure that the Commissioner for Standards is appointed by fair and open competition. It was the Commissioner for Public Appointments who recommended a one-off term of appointment of five years. The Committee on Standards and Privileges said that a Commissioner for Standards who may later require Members to support a reappointment could be perceived to be compromised.
Question, That the Committee is content with the clause, put and agreed to.
Clause 19 agreed to.
Clause 20 (Disqualification from being appointed or serving as the Commissioner)
381. The Chairperson: Some members expressed concern that the list of qualifications was too broad, particularly the definition of “family member". However, the definition is in schedule 3, rather than in this clause, so issues raised about the definition of those disqualified will be discussed when we reach schedule 3.
Question, That the Committee is content with the clause, put and agreed to.
Clause 20 agreed to.
Clause 21 agreed to.
Clause 22 (Further provision about the Commissioner)
382. The Chairperson: The Scottish Parliamentary Standards Commissioner felt that the Commissioner for Standards should be able to appoint staff and obtain office accommodation as he or she sees fit, subject to Assembly Commission approval. The Committee on Standards and Privileges advised that although the Assembly Commission has a duty to provide administrative and other support, the Commissioner for Standards can secure the provision of such goods and services as are required to exercise his or her functions, as set out in schedule 4. However, he or she cannot directly employ persons, as there would be legal and financial implications.
Question, That the Committee is content with the clause, put and agreed to.
Clause 22 agreed to.
Clause 23 agreed to.
Clause 24 (Directions to the Commissioner)
383. The Chairperson: Some members sought a provision that directions to the Commissioner would include directions on naming a complainant who prompted the Commissioner to undertake any investigation. The Committee on Standards and Privileges confirmed that clause 24 does provide the Assembly with the power to issue such directions.
Question, That the Committee is content with the clause, put and agreed to.
Clause 24 agreed to.
Clause 25 (Investigations by the Commissioner)
384. The Chairperson: As with clause 17, the Scottish Parliamentary Standards Commissioner queried whether the commissioner should be under a duty to report all complaints. The Committee on Standards and Privileges advised that where it is agreed that no investigation should be carried out, there is no requirement for any sort of report to be published on the details of the complaint.
Question, That the Committee is content with the clause, put and agreed to.
Clause 25 agreed to.
Clause 26 agreed to.
Clause 27 (Reports)
385. The Chairperson: As with clause 24, some members sought that directions to the commissioner would include directions on naming in a report any complainant who prompted the commissioner to undertake any investigation. The Committee on Standards and Privileges confirmed that clause 24 does provide the Assembly with the power to issue such directions regarding reports.
Question, That the Committee is content with the clause, put and agreed to.
Clause 27 agreed to.
Clauses 28 to 30 agreed to.
Clause 31 (Offences)
386. The Chairperson: No issues were raised about clause 31. The Committee on Standards and Privileges wishes to amend the clause: at clause 31(2), page 12, line 8, leave out “or make an affirmation".
Question, That the Committee is content with the clause, subject to the amendment proposed by the Committee on Standards and Privileges, put and agreed to.
Clause 31, subject to the amendment proposed by the Committee on Standards and Privileges, agreed to.
Clause 32 agreed to.
Clause 33 (Restriction on disclosure of information)
387. The Chairperson: The Scottish Parliamentary Standards Commissioner asked whether, if asked whether a complaint has been received about a particular member, the commissioner should have the authority to acknowledge that that is the case. The Committee on Standards and Privileges have advised that the Assembly could, if it felt it appropriate, give the commissioner authority to do so in a direction under clause 24.
Question, That the Committee is content with the clause, put and agreed to.
Clause 33 agreed to.
Clause 34 (Transitional provisions)
388. The Chairperson: There were no issues raised under clause 34. However, the Committee on Standards and Privileges wishes to make two amendments to this clause. The first is at subsection (2), page 13, line 10: after “any" insert “complaint or". The second is at subsection (3), page 13, line 16: after “a" insert “complaint or".
Question, That the Committee is content with the clause, subject to the amendments proposed by the Committee on Standards and Privileges, put and agreed to.
Clause 34, subject to the amendments proposed by the Committee on Standards and Privileges, agreed to.
Clauses 35 to 39 agreed to.
389. The Chairperson: That is us finished. We will deal with the schedules in January. Thank you.
17 January 2011
Members present for all or part of the proceedings:
Mr Fred Cobain (Chairperson)
Ms Sue Ramsey (Deputy Chairperson)
Mr Kieran McCarthy
Mr Daithí McKay
Mr Jim Wells
Mr Paul Givan
Witnesses:
Ms Tara Caul |
Northern Ireland Assembly |
390. The Chairperson (Mr Cobain): We move to the next item of business.
391. Mr Paul Gill (Northern Ireland Assembly): The Committee has received a memo from Tara Caul and me on the two issues that have led the Assembly Commission and the Committee on Standards and Privileges to conclude that amendments need to be made to schedules 1 and 3 to the Bill. Those issues are the definition of “family member" and the future role of the Attorney General in proceedings of the Assembly.
392. On family members, the Committee will recall that, at its previous meeting, it expressed some concern at the breadth of the definition that was being used in schedules 1 and 3. At that time, we indicated that we could go back to the Assembly Commission and the Committee on Standards and Privileges to see whether they were content to address those concerns. Subsequently, the Clerk to this Committee wrote to us, setting out the Committee’s preferred definition of family member. In the Committee’s preferred definition of family member, members removed great-grandparent, great-grandchild, great-uncle, great-aunt, great-nephew and great-niece. We went back to the Assembly Commission and the Committee on Standards and Privileges with the suggested amendment, and they both agreed that they will table amendments to that effect to the relevant schedules.
393. One small point of clarification is that it was felt that it was necessary still to include the words “whether of the full or half blood". It was felt that it was important that the Bill should make clear that, for example, a half-brother would be treated the same way as a full-brother would be treated. Although those words sound a little archaic, there is legislative precedence for them, and members will see examples of them in the paper that Legal Services has provided to the Committee. However, that is not to take away from the main point of the Committee’s suggested amendment, and, as I said, the Assembly Commission and the Committee on Standards and Privileges are content to amend the definition of family member, as per the substance of the Ad Hoc Committee’s suggestion.
394. The second matter is the role of the Attorney General for Northern Ireland. Work is under way to make provision for the Attorney General to be able to participate in proceedings of the Assembly. One aspect of that is providing for the Attorney General to have the same duties as Assembly Members in respect of the requirement to register and to declare interests and to be prohibited in the same way as Assembly Members from advocating any matter on behalf of anyone else for a payment or benefit.
395. The Committee on Standards and Privileges has agreed with the Attorney General that the Northern Ireland Assembly Commissioner for Standards should be able to investigate an alleged breach by the Attorney General of any of those duties, and that will be provided for in Standing Orders. However, that being the case, the Committee on Standards and Privileges has agreed that it is appropriate that the Attorney General should be disqualified from being the Commissioner for Standards in the same way as a Member of the Assembly is disqualified from being the Northern Ireland Commissioner for Standards. Further to that, the Assembly Commission has agreed to include in the schedule the Attorney General among the persons who are disqualified from being a panel member.
396. That concludes the background to the further amendments that the Assembly Commission and the Committee on Standards and Privileges intend to table to the Bill.
397. The Chairperson: Thank you, Paul. Do members have any questions?
398. Mr McKay: I agree with Paul in one regard. Is there no terminology with precedence in legislation that we could use other than “whether of the full or half blood"?
399. Ms Tara Caul (Northern Ireland Assembly): We have researched the position, and we are satisfied that that is the best way to deal with the situation regarding a half-brother or a half-sister.
400. Mr McKay: Personally, I would not be comfortable with having a nephew or niece disqualified from a job because of my position, but, given the present situation and the public feeling on the matter, we are quite happy with the amendment.
401. The Chairperson: Good. Are other members content with the amendment?
Members indicated assent.
402. The Chairperson: Is the Committee content to approve the amendments proposed by the Committee on Standards and Privileges to schedule 4? First, at paragraph 6(2), page 19, line 21, leave out “particular". Secondly, paragraph 6(2)(b), page 19, line 24, to now read “by notifying the Commissioner that liabilities may be incurred of such description and maximum total amount as may be specified in the notification", and after paragraph 6(2)(b), page 19, leave out lines 26-29?
Members indicated assent.
403. The Chairperson: We now move to formal scrutiny of schedules 1-5. We will go through each schedule and seek the Committee’s formal approval of each.
Schedule 1, “Disqualification from membership of the panel"
404. The Chairperson: The Assembly Commission seeks an amendment to schedule 1 to disqualify the Attorney General from membership of the panel. The Commission has also proposed an amendment to the definition of “family member", as recommended by the Committee.
405. At paragraph 1, page 15, after line 27, insert:
“(q) Attorney General for Northern Ireland;
(r) a person who has been Attorney General for Northern Ireland at any time in the five years prior to the date when the appointment is to take effect."
406. At paragraph 3, page 16, leave out lines 5 and 6 and insert:
“(a) Parent, child, grandparent or grandchild"
407. At paragraph 3, page 16, leave out lines 7 and 8, and insert:
“(b) Brother, sister, uncle, aunt, nephew, niece (whether of the full or half blood)"
408. At paragraph 3, page 16, at end of line 9, after “spouse", insert:
“in any of the ways set out in sub-paragraphs (a) or (b)"
409. At paragraph 3, page 16, at end of line 10, after “civil partner", insert:
“in any of the ways set out in sub-paragraphs (a) or (b)"
410. At paragraph 3, page 16, at end of line 11, after “cohabitant", insert:
“in any of the ways set out in sub-paragraphs (a) or (b)"
Question, That the Committee is content with the schedule, subject to the amendments proposed by the Assembly Commission, put and agreed to.
Schedule 1, subject to the amendments proposed by the Assembly Commission, agreed to.
Schedule 2, “Panel: administrative and financial arrangements"
411. The Chairperson: No amendments are proposed to schedule 2. Previously, members indicated informally that they were content with the schedule as drafted.
Schedule 2 agreed to.
Schedule 3, “Disqualification from being appointed or serving as the Commissioner"
412. The Chairperson: The Committee on Standards and Privileges seeks an amendment to schedule 3 to disqualify the Attorney General from being appointed or serving as the Commissioner for Standards. The Committee on Standards and Privileges has also proposed an amendment to the definition of “family member" as recommended by the Committee.
413. At paragraph 1, page 17, after line 34, insert:
“(s) Attorney General for Northern Ireland;
(t) a person who has been Attorney General for Northern Ireland at any time in the five years prior to the date when the appointment is to take effect."
414. At paragraph 3, page 18, leave out lines 7 and 8, and insert:
“(a) Parent, child, grandparent or grandchild;"
415. At paragraph 3, page 18, leave out lines 9 and 10, and insert:
“(b) Brother, sister, uncle, aunt, nephew, niece (whether of the full or half blood);"
416. At paragraph 3, page 18, at end of line 11, after “spouse", insert:
“in any of the ways set out in sub-paragraphs (a) or (b)"
417. At paragraph 3, page 18, at end of line 12, after “civil partner", insert:
“in any of the ways set out in sub-paragraphs (a) or (b)"
418. At paragraph 3, page 18, at end of line 13, after “cohabitant", insert:
“in any of the ways set out in sub-paragraphs (a) or (b)"
Question, That the Committee is content with the schedule, subject to the amendments proposed by the Committee on Standards and Privileges, put and agreed to.
Schedule 3, subject to the amendments proposed by the Committee on Standards and Privileges, agreed to.
Schedule 4, “Commissioner: further provision"
419. The Chairperson: The Committee on Standards and Privileges wishes to make two amendments to this schedule.
420. At paragraph 6(2), page 19, line 21, leave out:
“particular".
421. Paragraph 6(2)(b), page 19, line 24, to now read:
(b) “by notifying the Commissioner that liabilities may be incurred of such description and maximum total amount as may be specified in the notification".
422. After paragraph 6(2)(b), page 19, leave out lines 26-29.
Question, That the Committee is content with the schedule, subject to the amendments proposed by the Committee on Standards and Privileges, put and agreed to.
Schedule 4, subject to the amendments proposed by the Committee on Standards and Privileges, agreed to.
Schedule 5 (Consequential amendments)
423. The Chairperson: I remind members that the Assembly Commission wishes to amend schedule 5.
424. At paragraph 1, page 20, line 13, leave out:
“the Schedule" and insert “Schedule 1".
425. I remind members that previously they indicated informally that they were content with the amendment.
Question, That the Committee is content with the schedule, subject to the amendment proposed by the Assembly Commission, put and agreed to.
426. Schedule 5, subject to the amendment proposed by the Assembly Commission, agreed to.
Long title agreed to.
427. The Chairperson: That concludes the clause-by-clause scrutiny of the Bill.
Appendix 3
1. I welcome the opportunity to contribute to the Committee’s consideration of the Northern Ireland Assembly Members (Independent Financial Review and Standards) Bill. I note from the Bill that it is proposed to place the Independent Financial Review Panel within my jurisdiction as Commissioner for Complaints for Northern Ireland. My comments in respect of the Bill are therefore only in respect of the provisions in respect of the Northern Ireland Assembly Commissioner for Standards.
2. The matters that would arise under the purview of the Commissioner are, by their very nature, regulatory in nature. Therefore, it is important at the outset to define what I believe the purpose of any regulatory system should be. Having set out the requirements of a regulatory system, I have offered a perspective of the different options available to the Committee, for the appointment of a Commissioner, ending the submission with a number of concluding comments.
3. Firstly, in addressing the purpose of any regulatory system, and before moving onto substantive issues of detail, whatever arrangements the Assembly decides to implement, the system should demonstrate the following characteristics:
4. Moreover, it has been contended[1] that an important objective of regulation consists of preventing, pre-empting and mitigating problems. Applying this framework to the proposed arrangements these varying purposes of regulation are given expression by the following characteristics:
5. In supporting a standards system that is transparent in its disclosure processes and is fit for the purposes noted above, it is important to restate the principles upon which any future system should be based, regardless of structure, namely the Nolan Principles of Public Life. These are:
6. The context therefore within which the Committee is considering the Bill should/must be significantly informed by the now well established Seven Principles of Public Life. The Principles now inform many aspects of public administration and governance arrangements including the revised Code of Conduct for Members of the Northern Ireland Assembly adopted with effect from 12 October 2009.
7. The appointment of a Commissioner for Standards is the next key step in establishing a system of oversight and investigation with the objective of achieving the effective functioning of the arrangements through which Members’ conduct, actions and their compliance with the Code of Conduct can be examined.
8. There are five matters addressed in the Bill upon which I would offer specific comment:
In submitting comment on these matters, my views are substantially informed by the experience and insights I have developed in fulfilling the role of the Assembly’s Interim Commissioner for Standards, a role I have undertaken since October 2001. I have also relied on the investigative experience gained from my role as Assembly Ombudsman and Commissioner for Complaints.
The clause makes clear that the Assembly remains at the centre of the process through its receipt of the Commissioner’ report. I believe this to be an appropriate arrangement not least as it sets a challenge for the Committee on Standards and Privileges, on behalf of the Assembly, to be seen to be willing to deal with any breaches of standards by Members. The provision for the Commissioner, on his own initiative to give advice on matters of general principle relating to standards of conduct of Members is welcome clarification. I always considered that the relationship I developed with the Committee on Standards and Privileges was such that I could have initiated such action but the clarification is a positive development.
This is an important clause. It establishes a fundamental principle for the operation of the role of the Commissioner to enjoy public confidence. I have consistently advised that it would be essential to ensure the appointee did not have any interest or affiliation that could be perceived as prejudicing his or her independence and impartiality. Without independence from the body or persons under investigation the Commissioner’s findings could be called into doubt. Based on my experience the reality is that some complaints will not be upheld and it is in those circumstances in particular that independence is crucial to sustain public confidence in the outcome of an investigation. Interestingly, it is the view of the Ombudsman community that the appointment process and the terms of office of the role are other key drivers that establish the independence of the office holder in the public mind.
Sub clauses (1) and (2) provide for circumstances in which the Assembly can direct the Commissioner. I see nothing of concern in the provisions. To my mind sub-clause (3) is of particular significance. The provisions underpin the principle of independence established in Clause 18 and the clear articulation of elements of the investigative procedure into which the Assembly cannot intervene represents again a positive approach. Such legislative protection of the investigative process should strengthen confidence in the overall arrangements.
I welcome the provision that the Commissioner’s report will be published. This continues the practice established between the Committee on Standards and Privileges and myself from the outset of my role as Interim Commissioner for Standards. The arrangements place the Assembly as central to the complaints process and it is axiomatic that it can reject the Commissioner’s conclusions. Sub-clause (4) makes that point clear. I have no difficulty with that position. What is essential to public confidence in the process is transparency and sub- clause (3) provides for transparency by requiring publication of the Commissioner’s report. Thereafter if there is a difference of opinion on the matters raised by the investigation, the public can come to its own conclusion.
As Interim Commissioner since 2001 I have not encountered any lack of co-operation from Members, witnesses or other parties who could inform my investigations. Indeed in a number of cases Members have gone to considerable lengths to make available to me very detailed personal information which has been extremely helpful in undertaking a number of the investigations in which I have been involved.
Nevertheless I welcome and endorse the provisions of these clauses. It is important that the Commissioner is not put in a position where the investigation could be frustrated or stalled by a lack of co-operation by a Member, witness or other party. In my view the proposals wisely seek to pre-empt such an occurrence.
Clause 32 is very welcome clarification. A Commissioner must be able to report his or her views of a case without fear of legal action. There is a comparable provision in the legislation underpinning my roles as Assembly Ombudsman and Commissioner for Complaints.
14. In providing evidence to the Committee on Standards and Privileges during its inquiry into the way forward for the appointment of a Standards Commissioner I suggested three basic models:
First, the Assembly could decide to appoint a Commissioner through an open recruitment competition, informed by the Procedure for Public Appointments that is used for appointments made by the Assembly and the wider public service.
A second model builds on a recognition that the appointment is not full time and indeed there can be extended periods when no complaints are received. This approach could involve inviting an individual already undertaking an equivalent role, for example, the Scottish Parliament or the Welsh Assembly, to undertake a similar role for the Northern Ireland Assembly.
A third model would involve developing the post as a role alongside, but discrete from, an existing office. Essentially formalising and building on the arrangements which have supported the role of the Interim Commissioner appointment since 2001.
My evidence recognised that each model outlined above had strengths and weaknesses. The third model had been adopted by the previous Assembly and taken forward to the point where a Bill had been introduced to give effect to that arrangement. The legislation fell with the suspension of the Assembly.
The Assembly has now moved forward with legislative proposals giving effect to the first model described above ie a wholly separate new office. In the developing climate of financial stringency the Committee and indeed the Assembly may feel that the second and third models offer an approach that is more in keeping with the changed and challenging financial circumstances in which Northern Ireland and the public service in particular now finds itself, and therefore address key criteria that should now inform all decisions around public expenditure affordability.
15. In conclusion I would set the legislative proposals against some comments included in my earlier evidence to the Committee on Standards and Privileges. In recent reviews of governance codes[2], it has been noted that the quality of systems of governance ultimately depends on conduct and behaviour, not process and procedure, with the result that there is a limit to the extent to which any regulatory framework can deliver good governance. This fact notwithstanding, and whatever arrangements the Assembly finally decides upon, I feel that any standards oversight system can only be strengthened by adhering to the following principles in guiding your deliberations. These are: a commitment to provide the best possible outcome, at every stage of the system’s operation; fairness in the provision of a transparent, impartial, confidential system capable of offering appropriate outcomes; access, in making sure it can be easily used; responsiveness in what the Assembly does with a complaint once received and, furthermore, what action is taken on complaints about the complaint process itself; effectiveness, in that ongoing attention should be paid to ensuring that the complaint system is credible and effective, for all parties in the process; and, ultimately, the system should provide accountability, thereby ensuring that the complaint system is open to scrutiny by all.
If the Committee would consider it helpful, I would be happy to clarify or elaborate on my comments.
Interim Commissioner for Standards
24 November 2010
[1] Regulator accountability: Anonymous. International Financial Law Review. London: May 2009.
[2] Financial Reporting Council, Review of the Effectiveness of the Combined Code: Progress Report and Second Consultation, July 2009: London.
1. This written submission has been prepared by me in my capacity as the Chair of the National Assembly for Wales Remuneration Board. The submission will refer only to the provisions in the Bill that relate to the Independent Financial Review Panel.
2. In August 2008, the National Assembly for Wales Commission established an Independent Review Panel in order to look at all aspects of financial support available to Assembly Members, including salaries and allowances for travel, pensions, accommodation, constituency offices and support staff.
3. The Panel’s report, “Getting it Right for Wales", was published and presented to the Assembly Commission in July 2009. A key recommendation was that the automatic link between the pay of Assembly Members and that of Members of Parliament should be broken and a statutory Independent Review Body should be established to set future salary levels and to monitor and review other financial support, including allowances for travel, pensions and office support. The report also recommended that the Assembly Commission should prepare and bring forward an Assembly Measure as soon as practicable, to establish such a statutory Independent Review Body to make decisions in respect of all aspects of financial support for Assembly Members.
4. The National Assembly for Wales Remuneration Board was established on 22 July 2010, following approval by Her Majesty in Council of the National Assembly for Wales (Remuneration) Measure 2010. The Chair and members of the Board were appointed by the Assembly Commission on 22 September 2010.
5. The Board met on 1 October 2010 and intends to hold five formal meetings before issuing its first determination in March 2011, in advance of the National Assembly for Wales elections on May 5 2011. A note on its methodology and work done to date follows on page 5.
6. Many of the provisions relating to the Panel mirror the provisions in the National Assembly for Wales (Remuneration) Measure 2010. Rather than comment on specific clauses, I will comment more generally on the provisions contained in the Bill and draw the Committee’s attention to certain issues.
7. The Bill provides that the membership of the Panel shall be three, including the Chair and two other members. The National Assembly for Wales Remuneration Board has five members, including the Chair. This has allowed the Board to draw in experience and expertise from a variety of different backgrounds and for individual members to lead on certain aspects of our remit. A note on the skills and experience of Board members is attached in Annex A. There is no clear answer on the optimum number of members for such a body, though I would suggest that this may be a matter the Bill Committee should consider further.
8. It is clear that the Panel should be appointed under a robust process, and that there are persons who should be disqualified from being appointed as Panel members. It is also appropriate that there should be transparent arrangements for the termination of membership of the panel. The Bill provides that a Panel member may be dismissed if the Commission is satisfied that one of a number of specified occurrences arises, including that the person has “failed to discharge the functions of a Panel member for a continuous period of three months" or that the member “is unfit or unable to carry out those functions".
9. The issues of appointment and dismissal of members clearly need careful thought. I am told by officials of the National Assembly for Wales who were responsible for preparing the proposed Remuneration Measure that the thinking behind the provision under which the Board is appointed by the Assembly Commission, who must however appoint the candidates identified by an open process put in place by the Clerk (unless a candidate is disqualified), was to distance Assembly Members as much as possible from the appointment process. The aim was to safeguard the independence of the Board.
10. When it came to machinery for dismissing Board members, the provision put into the Measure (following preliminary discussions with Assembly Members), again in order to safeguard the independence of the Board, was one which incorporated a double lock. Although the Assembly can dismiss a member, it can only do so by a two-thirds majority and the motion to dismiss is only effective if proposed on behalf of the Commission (and hence only if the Commission believes there are good grounds for dismissal). It was felt that this double lock would ensure that a Board member could only be dismissed if there were a clear and overwhelming reason for doing so. The protection against politically motivated or otherwise unjustified dismissal of a Board member therefore rests on these procedural safeguards rather than on specifying permissible grounds for dismissal. The need to consider the dismissal of a Board or Panel member will no doubt be extremely rare but the Committee will need to review what form of safeguard against arbitrary dismissal would be most likely to work best in practice.
11. The Bill contains provision for a code of conduct for members of the Panel. This is to be welcomed in principle, as it is vital that the integrity of the Panel is unquestionable. However, the Bill is silent on any mechanism to ensure that panel members work within that code of conduct. The Bill Committee may wish to consider this issue further.
12. It is clear that the Panel should operate in accordance with principles of transparency, clarity and openness. Central to this will be the publication of information relating to its activities. The Panel’s annual report to the Commission will also complement the principle of transparency underpinning the Panel’s work. The Bill does not specify whether or not the Panel’s annual report will be made public. The Remuneration Measure requires the Board’s report, which must include a report on its own use of resources, to be laid before the Assembly. This means that the Assembly’s Finance Committee will be able to consider the cost of operating the Board and whether its activities represent value for money. The Bill Committee may wish to consider the issue of scrutiny of the Panel’s use of resources.
13. It is appropriate that the Panel should determine its own procedures and that it should have the freedom to consider any other matter that is relevant to the discharge of its functions. The Commission should also be able to request that the Panel consider certain matters. This is particularly important as the Commission will be responsible for the implementation of the Panel’s decisions. The requirement for the Panel to keep under review the effectiveness of its determinations in fulfilling its functions is also appropriate.
14. I would endorse the provision in Schedule 2 that requires the Commission to provide the Panel, or ensure that the Panel is provided, with such support as it may reasonably require. Critical to the effective functioning of the Panel will be the provision of sufficient high quality support and advice, and the scale of the task required of the Panel should not be underestimated. I would encourage the Bill Committee to satisfy itself that whatever support arrangements are envisaged will be sufficient, in terms of capacity and quality, to deliver the Panel’s remit.
15. The functions of the Panel, as set out in the Bill, mirror the functions of the National Assembly for Wales Remuneration Board. It is appropriate that the Board should, in exercising these functions, seek to ensure that Assembly Members receive appropriate levels of remuneration and, more importantly, ensure that the level of resources is sufficient so as not to deter any individual with the appropriate commitment and ability from seeking election. It is equally important that the Panel take into account issues of probity, accountability and value for money. Where the balance should be struck depends on circumstances that may change from time to time. Clearly the need to demonstrate that payments to Assembly Members represent value for money is a particularly prominent consideration at present.
16. I fully endorse the aim which is reflected in the Bill’s requirement that the Panel should make one determination in relation to salaries and allowances, in advance of an Assembly term. The Board is under a similar constraint (although in relation to salaries and not to allowances). The principle of a compact between candidates and electors, under which candidates put themselves forward to serve for four years on terms which have been set in advance, is a good one, but only time will tell how valuable it turns out to be in practice.
17. The Bill does, however, provide for the Panel to issue more than one determination in relation to salaries and allowances in respect of an Assembly, in exceptional circumstances. Of course, it is difficult to define what may constitute “exceptional circumstances", but it is appropriate that the Panel is able to revisit its decisions in certain circumstances. It is also appropriate that the Board should state in writing its reasons for issuing any such determination and to communicate those reasons to the Commission. As I have made clear above, there is much to commend this provision - most obviously that it provides clarity to the public and candidates/Members for the entirety of an Assembly. From our brief experience, though, I would urge the Bill Committee to give careful consideration to the balance between this benefit and the inevitable reduction in flexibility to make further determinations in the light of circumstance or experience.
18. The Board has agreed to work to four general principles:
19. The Minutes and Agenda of each Board meeting are posted shortly thereafter on the website of the National Assembly for Wales. As Chair, I issue a news release on each occasion to the media to inform the people of Wales of progress and of decisions.
20. The Board has taken evidence from representatives of all parties represented in the Assembly and from their staff and trade union representatives. Prior to each Board meeting, I have discussions with each party leader or a person designated by them. In addition, I hold a regular drop in session at which Assembly members can meet me.
21 Detailed questionnaires have been sent to all Assembly members and to their staff.
22. In December 2010, the Board has arranged a Colloquium with academics, a wide range of representatives of civil society, Assembly members, their staff and officials from the Assembly Secretariat. This will inform the Board’s final report.
23. The Board has commissioned detailed research on median earnings in Wales and on Welsh employment comparators with responsibilities broadly similar to those of an Assembly member. This research will be the prime driver of its determination.
24. The Board has also reviewed salaries and allowances paid to elected representatives in the House of Commons, the Scottish Parliament and the Northern Ireland Assembly. It has consulted with the Independent Parliamentary Standards Authority and with the Senior Salaries Review Body.
25. The Board determined to identify Key Issues and to prioritise these, before considering Options and then ranking these. It has now completed this process and is moving on to Analysis and then to Recommendations.
26. Emerging conclusions have been tested and refined as part of an ongoing dialogue with Assembly members and their staff.
27. At an early stage, it became clear to the Board that more analysis was required on the fundamental purposes of the Assembly, particularly in light of its evolution from a unitary corporate body to a legislature with responsibilities divided between Government and Assembly.
28. This work is ongoing and will assist the Board in determining the degrees of responsibility and workload of Assembly members as representatives of their constituencies and regions, as party members, in holding the Government to account, and in scrutinising legislation and financial proposals. This research will enable the Board to come to a view on appropriate levels of remuneration for members and their staff, and whether allowances are properly targeted towards the core purposes of the Assembly.
29. A robust, transparent system for remuneration is vital if members wish to inspire the confidence of the electorate. It is clear that it is not appropriate for members to determine the levels of their salaries and allowances. If the electorate are to have confidence in the system, it must be administered by an independent body that is subject to the highest standards of probity and transparency.
30. An independent financial review body will be well placed to support a legislature in developing solutions that address its own particular circumstances. In Wales, financial arrangements were linked to those at Westminster. The introduction of an independent body means that flexible solutions can be found, that reflect the specific needs of the members and respond to the specific circumstances of the legislature.
31. Such a body can also support and complement the strategic purpose of the legislature. That, after all, must be the driver for such bodies: to ensure that members are provided with sufficient resources to fulfil their core functions effectively. Through this, the legislature can scrutinise Government policy and finance; make laws effectively; and represent their constituents.
32. As Chair of the Remuneration Board, I look forward to forming close links and sharing best practice with the Panel.
Chair, National Assembly for Wales Remuneration Board
December 2010
A Scottish politician, journalist and academic. Privy Councillor, former MP, MSP, Presiding Officer of the Scottish Parliament and Chair of its Corporate Body. Worked for 15 years in wars and disasters as a director of the International Red Cross / Red Crescent. Current appointments include: Independent Adviser on Scottish Ministerial Code, visiting professor at Glasgow and Stirling Universities and UK Electoral Commissioner. He has led strategic reviews of governance in the Northern Ireland Assembly and the National Trust for Scotland.
An academic with significant public policy experience. Has published research in areas including the determinants of public sector pay. Prof Chatterji is currently Chair of the National Joint Council of UK Fire and Emergency Services (the pay negotiating body). He was previously a member of the School Teachers’ Review Body which makes recommendations to the Prime Minister and Secretary of State for Education and Skills on pay and conditions, and also governance arrangements for school teachers and head teachers in England and Wales. He was also previously a member of the Economists Group, Office of Manpower Economics, considering cross-cutting issues on pay in the public sector.
A chartered accountant who occupied a number of financial and general management roles within Allied Dunbar, Chartered Trust and Bristol & West Building Society before becoming Tesco’s first Financial Services Director. Stuart has, more recently, undertaken a variety of challenging assignments in the public and private sector, helping establish some significant joint ventures and alliances as well as being a successful turnaround director of a number of financial services organisations. He is currently a non-executive director of the Welsh Ambulance Service.
Mary retired as a Partner of KPMG in September 2008 and is currently a member of the Armed Forces Pay Review Body which makes recommendations to the Prime Minister and Secretary of State for Defence on military pay, compensatory allowances and charges. She is also a part time consultant to KPMG. She is a lawyer by background and has specialised for over 20 years in advising UK and non UK companies on remuneration and incentives for directors/senior management and related governance and taxation issues.
Sandy is the former director of the Welsh Local Government Association, WLGA (retired 2004). He was a local authority chief executive for 16 years before his appointment to the WLGA, and President of SOLACE in 1999/2000.He has held a number of paid public appointments and trusteeships such as non-executive director of the Health and Safety Executive, HSE, chair of the Monmouth Diocesan Board of Finance and roles within the Church in Wales. He has served as a member of the Remuneration Committees for UWIC and HSE.
December 2010
I hold the office of Scottish Parliamentary Standards Commissioner (“SPSC") which is a statutory appointment under the Scottish Parliamentary Standards Commissioner Act 2002[1].
The functions of the SPSC are –
I also - separately - hold the office of Chief Investigating Officer (“CIO") under the Ethical Standards in Public Life etc. (Scotland) Act 2000[2].
The functions of the CIO are –
to investigate complaints of misconduct by –
to report to the Standards Commission for Scotland.
Following the passing of the Scottish Parliamentary Commissions and Commissioners etc. Act 2010[3], the offices of the SPSC and the CIO are to be merged into a new office of Public Standards Commissioner for Scotland (“PSCS"). This will come into effect on 1 April 2011.
I am intending to comment only on the provisions in the Bill dealing with the proposed Northern Ireland Assembly Commissioner for Standards. Before commenting on the specific clauses of the Bill I would like to make the following general observations.
The Bill essentially accepts - as a principled approach -
there should be a statutory framework to regulate the conduct of members of the Northern Ireland Assembly;
the investigative function should be undertaken by an independent officeholder;
the adjudicative function should be undertaken by the Assembly;
full legal powers should be available to the Commissioner to call for evidence and to require the production of documentation.
I commend that principled approach.
2.3 I would also like to add, however, that it is essential that the Assembly itself continues to be pre-eminent in the promotion and safeguarding of the highest standards of ethical conduct in public life in Northern Ireland. A statutory framework without that continuing commitment simply cannot be as effective. By working cohesively - with clear leadership from the Assembly itself - there is the real opportunity to ensure the public have real trust and confidence in their elected members.
3.1 As indicated above, I endorse the designation of the Commissioner as a statutory officeholder.
I consider this clause does cover what should be the main functions of the Commissioner. I have three observations to make.
Firstly, clause 17 (1) (c) requires the Commissioner to report to the Assembly on the outcome of any investigation. There may be merit in considering whether the Commissioner has to be under a duty to report in respect of all complaints, particularly complaints which, after initial investigation, are found to be irrelevant and inadmissible.[4]
Secondly, the power in clause 17 (1) (b) to permit the Commissioner to initiate an investigation on his or her initiative is a significant power. There is the prospect that it will lay the Commissioner open to pressure – perhaps undue pressure – from parties to investigate a matter where there is no prima facie evidence of misconduct. However, on balance, I consider the provision is merited in the overall public interest.
Thirdly, I agree that the Commissioner should have the power to give advice to the Assembly on any matter of general principle relating to standards. I would, however, re-emphasise my earlier comment that the Assembly itself should be the main driver in maintaining the highest standards of conduct in public life.
As previously indicated, I support this provision being enshrined in statute.
In Scotland, the Commissioner is appointed for a period not exceeding 5 years and is eligible for re-appointment for a second period only[5]. The 2010 Act amends the position by providing that the Commissioner can only be appointed for a single term for a period not exceeding 8 years[6]. The approach of having a single term of 8 years also applies to all other Scottish Commissioners (including the Public Appointments Commissioner, the Human Rights Commissioner, the Information Commissioner, the Children’s Commissioner and the Public Services Ombudsman).
My own view is that, if there is to be only a single term, then 7 to 8 years is about right. If the term is to be 5 years, I am not convinced that the Assembly should fetter its discretion by excluding its right to re-appoint. This is, however, at the end of the day, very much a matter of judgment.
I have no comment on the provisions in clause 20 or in schedule 3.
In Scotland, the Commissioner may only be removed if the Parliament so resolves and the resolution is passed by not less than two thirds of the total number of votes cast in the division.[7] The 2010 Act amends the position by providing that the Commissioner (and again this applies to the other Scottish Commissioners) may be removed from office if the Commissioner has breached the terms and conditions of office or the Parliament has lost confidence in the Commissioner’s willingness, suitability or ability to perform that Commissioner’s functions and, in either case, the resolution is voted for by not fewer than two thirds of the total number of seats in Parliament.[8] Whilst the requirement to move a resolution of loss of confidence has merit, I do not think it is necessary for a legislature to fetter its discretion in such an area and I therefore commend the Assembly’s approach.
Paragraph 3 of schedule 4 provides that the Assembly Commission shall provide the Commissioner with staff, services, and accommodation. Sub-paragraph (2) makes provision for the Commission consulting the Commissioner about such support to safeguard the Commissioner’s independence. Paragraph 5 provides that the Commissioner may not employ staff.
There are, of course, a number of ways in which support can be provided to the Commissioner.
However, I simply do not see why the Commissioner should not be entitled to appoint staff and obtain office accommodation as the Commissioner sees fit. This could be subject to a requirement that the Commission’s approval is required for the terms and conditions of engagement and the acquisition of property.
I have no comments to make.
I consider that the provisions in clause 24 are appropriate.
I would only observe that it would appear that directions could not derogate from the functions of the Commissioner as set out in clause 17 (1).
There is an issue as to whether the Commissioner should be required to report to the Assembly on the outcome of all investigations. It is likely that a significant number of complaints will be irrelevant, inadmissible, of limited merit, or vexatious.
There may be merit in including a provision that the Commissioner may use his discretion by not reporting to the Assembly on cases where he finds they are irrelevant or inadmissible.[9]
These provisions are appropriate.
I have already raised the issue as to whether it is necessary for the Commissioner to report on all investigations to the Assembly.[10] If that position, however, is maintained, the Assembly would be required to publish all of the Commissioner’s reports, and I question whether the generality of that provision is necessary in the public interest.
Clearly all reports where there is a conclusion by the Commissioner that a member has breached the Code of Conduct should – at an appropriate stage - be published. And indeed there will be cases where the Commissioner has undertaken a full investigation and decided that there has been no breach of the Code; again there may be merit in these reports being published. Even some cases that are dismissed as irrelevant or inadmissible may have an element of public interest.
However, there must be a question of whether it is appropriate for reports dealing with cases which are found to have no or limited merit having to be published.
I support these provisions.
I support these provisions.
I support these provisions.
I support these provisions.
I support these provisions.
I accept the principle of confidentiality which lies behind the provisions in clause 33; there are similar provisions in Scotland.[11]
It will occasionally be the case that the making of a complaint to the Commissioner is in the public domain, often through the press. If the Commissioner is asked whether a complaint has been received about a particular member, it may be appropriate for the Commissioner to have the authority to acknowledge that is the case.
3.19 I have no comments on clauses 34 to 39.
I hope these comments are of some assistance to the Committee. If the Committee wishes any further comments then I shall be happy to provide them.
I shall also be happy to provide any further evidence that may be required.
Scottish Parliamentary Standards Commissioner
[1] http://www.legislation.gov.uk/asp/2002/16/contents
[2] http://www.legislation.gov.uk/asp/2000/7/contents
[3] http://www.legislation.gov.uk/asp/2010/11/contents
[4] see paras 3.10 and 3.12 infra
[5] section 1 of the 2002 Act supra
[6] section 9 of the 2010 Act supra
[7] section 1 (6) and (7) of the 2002 Act supra
[8] section 9 (3) and (4) of the 2010 Act supra
[9] see section 6 of the 2002 Act supra
[10] see paras 3.2 and 3.10 supra
[11] section 16 of the 2002 Act supra
Thank you for alerting the Commission to the introduction of this Bill. Although it was not possible for the Commission to make a formal written submission by 3 December, I understand that you have been advised that we are content that most aspects of the Bill are in line with what we had recommended in our written and oral evidence to the Assembly Committee on Standards and Privileges inquiry on the Conduct of Members and the Appointment of an Assembly Commissioner for Standards.
The Commission has no comments on those elements of the Bill that provide for the establishment of an independent panel to determine the salaries, pensions, allowances and other financial support for members of the Northern Ireland Assembly.
Concerning the Commissioner for Standards, we are pleased to note that almost all of what we recommended in our written and oral submissions to the Committee is reflected in the Bill. Specifically:
One area where the Bill departs from our advice is in the long list of disqualifications from being appointed or serving as the Commissioner (Schedule 3). We said (in oral evidence) that in principle there should be open competition and that any restriction would require justification. However in Sch. 3 those disqualified from the post include uncles, aunts, nephews, nieces, great-nieces or –nephews, great-aunts or –uncles of Assembly members (“whether of the full or half blood"), anyone who has been a Senator in Seanad Éireann within the past five years, anyone who has been employed by a district council within the past two years, any person related to the spouse or civil partner or cohabitant of an Assembly member, etc. etc. The list is extensive and appears to the Commission to be excessive. We note that the disqualification is from serving, not just from appointment, so if, for example, a serving Commissioner’s great-nephew or great-aunt became the partner of an Assembly member, the Commissioner would automatically cease to hold office. The Commissioner, however good a job he or she was doing, would immediately be disqualified from seeing through any investigations that might be under way.
In principle, the occupation, civil status or personal relationships of someone other than the office holder should have little if any bearing on the entitlement of the person to hold that office. The Assembly will certainly seek to appoint a person of high moral standing to this critical position, and such a person ought to be above improper influence; while protection from even the suspicion of improper influence can be afforded by a minimal set of exclusions, for example debarring the spouse, partner, parent or child of an Assembly Member, it should not be necessary to surround the office with multiple such barriers. Even in the case of close family members, it should be enough for the Commissioner or prospective Commissioner to declare a matter that, if concealed, could give rise to a perception of a conflict of interest. Given the level of scrutiny and possibly challenge to which the Commissioner will be subjected, a declared family relationship ought to present relatively low risk of perceived bias on the part of the office holder.
The Bill in our view goes too far in debarring persons on the basis of degrees of kinship or relationship that extend well into the outer reaches of the family. The Assembly should ask itself if these extended family connections are really circumstances that would so compromise the thinking, standing or credibility of the office holder that he or she would be incapable of performing the role impartially and/or of commanding the Assembly’s confidence.
The Commission has no other comments at this time.
Yours sincerely
1. The Committee on Standards in Public Life welcomes this opportunity to submit written evidence to the Ad Hoc Committee of the Northern Ireland Assembly which is considering the draft Northern Ireland Assembly Members (Independent Financial Review and Standards) Bill.
2. There has been a profound crisis of public confidence in the integrity of elected politicians throughout the United Kingdom. As part of the changes required to restore public trust, it is no longer tenable for politicians to set their own pay and allowances or to be seen to shy away from imposing robust sanctions on those whose behaviour is found to be below the standards expected by the public.
3. The Committee therefore welcomes the proposals to set-up an Independent Financial Review Panel to determine salaries, allowances and pensions of MLAs, and in particular the facts that:
4. The Committee have noted that the Independent Financial Review Panel will not have its own officials. We understand the reasons for this, while noting that the arrangements will need to be carefully monitored to ensure the independence of the advice given.
5. The Chair of the Committee gave oral evidence to the Assembly’s Committee on Standards and Privileges inquiry into enforcing the Assembly’s new code of conduct held earlier this year. The Committee also provided a written response to the Committee on Standards and Privileges public consultation. The Committee therefore welcomes the move by the Northern Ireland Assembly to appoint an independent Commissioner for Standards.
6. There are a number of proposals In particular which the Committee is pleased to see included in the Bill
7. In our response to the Committee on Standards and Privileges consultation, we suggested that the Committee should have at least two lay members with full voting rights. We made a similar recommendation in relation to the Westminster Parliament in our report on MPs’ expenses. The Committee believes that lay membership of the Committee would be a helpful step towards enhancing public acceptance of the robustness and independence of the disciplinary process.
Committee on Standards in Public Life
1 December 2010
Appendix 4
19th November 2010
Assembly Members (Independent Financial Review and Standards) Bill
This paper provides commentary on the Assembly Members (Independent Financial Review and Standards) Bill. The Bill seeks to establish a statutory independent body to determine Members’ pay and allowances. It will also create a statutory Standards Commissioner to investigate breaches of the Code of Conduct. Where appropriate, it draws comparisons with equivalent legislation in Scotland and Wales and provides an overview of practices in the House of Commons and Houses of the Oireachtas.
Paper NIAR/563-10
Library Research Papers are compiled for the benefit of Members of The Assembly and their personal staff. Authors are available to discuss the contents of these papers with Members and their staff but cannot advise members of the general public.
The Assembly Members (Independent Financial Review and Standards) Bill consists of three parts and five schedules. This paper provides commentary on the clauses contained in the Bill.
The Bill will, if passed, create a Financial Review Panel and an Assembly Standards Commissioner. The Panel will determine salaries and allowances payable to Assembly Members and the Commissioner will investigate and report on allegations of breaches of the Code of Conduct for Assembly members.
The decision to establish the Panel followed a recommendation contained in a report by the Senior Salaries Review Body, which stated that the Assembly should consider the establishment of an independent body to set and monitor members’ pay and allowances. The provisions contained in Part 1 of the Bill relating to the Panel largely mirror those in the National Assembly for Wales (Remuneration) Measure 2010, which created the Remuneration Board for the National Assembly for Wales (NAfW).
The Panel will be appointed by the Assembly Commission and will be required to make only one determination in respect of members’ salaries during each mandate, except in exceptional circumstances. The paper draws on the debate on the NAfW Board, during which issues relevant to the Northern Ireland Panel were discussed.
Part 2 of the Bill allows for the Northern Ireland Assembly Commissioner for Standards and gives that office significant statutory powers, such as the ability to carry out and report on investigations and the power to call for witnesses and documents. Standards Commissioners already exist in the NAfW and the Scottish Parliament and Part 2 of the Bill reflects the equivalent legislation in Scotland and Wales in many respects. The paper highlights key issues raised in the Committee on Standards and Privileges Report on the creation of the Standards Commissioner and explores both similarities and differences with the Scottish and Welsh legislation. Reference is also made to the House of Commons and Houses of the Oireachtas, which operate different systems for the investigation of complaints against Members.
Key Points
Executive Summary
1 Introduction
2 The Independent Financial Review Panel
3 The Northern Ireland Assembly Commissioner for Standards
1 Introduction
This paper provides information in relation to the Northern Ireland Assembly Members (Independent Financial Review and Standards) Bill which provides for the establishment of the Assembly’s Independent Financial Review Panel and the Northern Ireland Assembly Commissioner for Standards. Although the Panel and the Commissioner are distinct and each undertakes separate functions, the roles are complementary and therefore it is logical that they are legislated for in the same Bill. It is worth noting, for example, that in the debate over the establishment of the equivalent body in Wales (National Assembly for Wales Remuneration Board), the then Standards Commissioner highlighted those occasions when he had investigated abuse of allowances or expenses. In these instances, he foresaw his office working in co-operation with the Board on those matters.
2 The Independent Financial Review Panel
Until recently, section 47 of the Northern Ireland Act 1998, which provided for the Northern Ireland Assembly to determine and pay Members’ salaries and allowances, explicitly prevented the Assembly from delegating the function of making a determination.
On 4 May 2007, prior to the restoration of devolution, the Secretary of State wrote to the Chairman of the Review Body on Senior Salaries (SSRB) seeking its agreement to conduct a review of the existing structure for salaries, expenditure and pension benefits payable to Members and Office Holders of the Northern Ireland Assembly.
In 2008, the SSRB published its review of pay, pensions and allowances in the Northern Ireland Assembly. The review, which included a recommendation that, whilst the pay of Members of the Assembly should continue to be recommended by an independent body such as the Review Body on Senior Salaries, Members of the Assembly should consider the option of committing themselves to accepting the outcome of the independent reviews of their pay without modification.
After considering the SSRB report, the Northern Ireland Assembly Commission, in line with the views expressed by Assembly parties, supported the recommendation raised by the SSRB and agreed at a meeting in June 2009 that the Commission should consider an independent mechanism for the future determination of salaries, pensions and financial support for Members.
To take this forward, the Northern Ireland Assembly Commission recommended that an amendment to the Northern Ireland Act 1998 should be made to enable the Northern Ireland Assembly to delegate the function of determining salaries, pensions and financial support to an independent statutory body.
The Northern Ireland Assembly Members Act 2010, which received Royal Assent on the 8th April 2010, amends sections 47 and 48 of the Northern Ireland Act 1998 and allows the Northern Ireland Assembly to continue to determine salaries and allowances or to delegate that function for example, by resolution, to the Northern Ireland Assembly Commission or, by an Act of the Assembly, to an independent body.
In the last few years the House of Commons and the devolved legislatures across the UK have all undertaken reviews or commissioned independent reviews of their pay and/or allowances schemes. The House of Commons and the National Assembly for Wales have decided that responsibility for pay and allowances should be vested in independent bodies. The Oireachtas recently took steps to reduce long service payments to members and reduce Ministerial pensions.
The Parliamentary Standards Act 2009, which received Royal Assent in July 2009, provided for the establishment of the Independent Parliamentary Standards Authority[1] (IPSA) and gave it the responsibility for paying Members’ salaries and allowances; and for preparing a scheme under which allowances are paid. The Constitutional Reform and Governance Act 2010, which received Royal Assent on 8th April 2010, includes a provision that also transfers responsibility for determining the amount of Members’ salaries from the House of Commons to IPSA.
The Review Body on Higher Remuneration in the Public Sector[2] (the Review Body) is a standing body in the Republic of Ireland whose primary function is to advise the Government on the general levels of remuneration appropriate to certain top public service posts. These include members of the Houses of the Oireachtas; members of the Government, Ministers of State, the Attorney General and the Chairman and Deputy Chairman of Dail Éireann and Seanad Éireann; the Judiciary; and certain grades of civil servants and local authority officers.
In its Report No 38 Sixth General Review, published in September 2000, the Review Body compared the role of an ‘average’ TD with a sample of civil services post and recommended an appropriate link which would in the future provide for the automatic review of the remuneration of Dail Deputies and Senators. On this basis, the Review Body recommended that their remuneration, therefore, should no longer form part of the remit of general reviews. Following the approval by the Government of the recommendations of the Review Body in its report, the salaries of members of the Houses of the Oireachtas are no longer considered by the Review Body (the remuneration of political office holders is still covered).
The Oireachtas (Allowances to Members) and Ministerial and Parliamentary Offices Act 2009 amended the Ministerial and Parliamentary Offices Acts 1938 to 2001 and the Oireachtas (Allowances to Members) Act 1938. It ends the payment of Long Service Increments (LSIs) following the next general election for all members of the Houses of the Oireachtas and withholds LSIs for those members who would normally have qualified for them before the next general election. It also provides that Ministerial pensions paid to members of the Oireachtas and the European Parliament will be reduced by 25 percent after the next elections to those institutions.
The Houses of the Oireachtas Commission, which came into existence on 1st January 2004 under the Houses of the Oireachtas Commission Act 2003, is responsible for overseeing the expenditure of the Houses, paying all salaries and expenses for members and staff, and keeping and publishing annual accounts[3]. The Minister for Finance is the statutory officer in relation to members pay with responsibility for legislation relating to members pay.
In August 2008, the National Assembly for Wales Commission set up the Independent Review Panel[4] in order to look at all aspects of financial support available to Assembly Members including: salaries, allowances for travel, pensions, accommodation, constituency offices and support staff.
A key recommendation made by the Independent Review Panel in their report published in July 2009 entitled “Getting It Right for Wales"[5] was that the automatic link between the pay of Assembly Members and that of Members of Parliament should be broken and that a statutory Independent Review Body should be established to set future salary levels and to monitor and review other financial support including allowances for travel, pensions and office support.
The Commission accepted this along with all other recommendations and on 9th November 2009 introduced a Proposed Measure to establish an independent board to determine all aspects of financial support for Assembly Members, including the setting and reviewing of Assembly Members’ salaries, allowances and pensions. The National Assembly for Wales (Remuneration) Measure 2010 received Royal Approval on 21st July 2010.
The National Assembly’s independent Remuneration Board[6] (the Board) held its first meeting on 1 October 2010. Items on the agenda included:
On 14th October 2010, the Board held its first meeting with Assembly Members and their staff as part of what Board Chairman George Reid called an “open and ongoing dialogue" in ensuring a fair and transparent remuneration system for Members.[7]
The Northern Ireland model contained in the Bill is closely modelled on the Welsh legislation. The following table provides a comparison between the Welsh legislation and the Northern Ireland Bill, including commentary on the policy behind some of the provisions contained in the Welsh legislation.
| 1.Establishment and membership of the Panel | 1. National Assembly for Wales Remuneration Board |
| The Panel will consist of the Chair and two other members. | The Board consists of the Chair and four other members and the quorum of the Board is three. |
| 2. Functions of the Panel | 3. Functions of the Board |
| Clause 2 outlines the functions of the Panel. It largely reflects the Welsh legislation which states that the Panel should exercise these functions with ‘probity, accountability and value for money’. See commentary on clause 12 for how holders of dual mandates will be accounted for in determinations of the Panel. | Section 3(1) states that the functions of the Board are conferred on it by sections 20, 22 and 23 of the Government of Wales Act 2006. The question was raised as to why section 21 of the 2006 Act, which deals with members who hold dual mandates, was omitted. In response, Legal Counsel advised: ‘The answer is that the Assembly has no power to amend by Measure section 21 of the Government of Wales Act 2006. When the Act was passed, it provided that Measures could not amend certain key constitutional Acts of Parliament, one of which was the Government of Wales Act 2006 itself.’ |
| Section 3(4) of the Measure states that ‘The Board may, from time to time, consider any other matter which is relevant to the discharge of its functions on its own initiative or at the written request of the Clerk’. In evidence to the Committee the Presiding Officer was asked to explain what was meant by any other matter which is relevant to the discharge of its functions. He replied: ‘The obvious ones that come to my mind would be that there was some issue relating to hyperinflation or circumstances in the economy that affected a judgment that the panel had made earlier—because we are talking here about a four-year timescale of judgment in relation to salaries.’ It was further explained by Legal Counsel that: ‘It (the Board) might want to take a step back and look at some general principles. For example, it may want to compare the overall structure of salaries and allowances in the Assembly with those of similar bodies elsewhere1.’ | |
| 3. Independence and openness | 2. Independence, openness and inclusiveness |
| Clause 3 ensures that the Panel shall not be subject to the direction or control of the Assembly or the Commission. No reference is made to consulting those likely to be affected by the decisions of the Panel, for example Assembly Members or their staff. | The Board is not subject to the direction or control of the Assembly or the Commission. The Board must, before exercising any of its functions, consult those of the following who are likely to be affected: Assembly members Staff employed by Assembly members (or by groups of Assembly members) Relevant trade unions Such other persons as it considers appropriate |
| 4. Appointments to the Panel | 6. Appointments to the Board |
| Clause 4 replicates the NAfW Measure, with the Commission appointing members of the Panel, rather than the Assembly. | The Chair and other members are appointed by the Assembly Commission and are to hold office for a fixed term of five years from the date of their respective appointments. No person may be appointed a member of the Board if they have already served two terms. The then Commissioner for Standards stated in evidence that it would be beneficial for the Assembly to have the final say on the appointments, rather than the Commission, in the interests of transparency. |
| The point was also made that the Act establishing the Independent Parliamentary Standards Authority required the Authority to include a member who has held a high judicial office, a qualified auditor from the National Audit Office and a former Member of the House of Commons. No such provisions were included in the Welsh Measure, with the subsequent advertisement for the Board stating that: ‘To become a member of the Remuneration Board, you will need: the ability to consider matters of remuneration, audit and good governance and to make sound recommendations on the basis of analysis; the ability to demonstrate good judgment, consistency and firmness in dealing with sensitive and important matters such as those that may arise from remuneration; a thorough understanding of the issues surrounding the public debate on standards in public life; excellent communications skills; the track record, presence and personal integrity needed to command the trust and respect of Assembly Members and the general public’. | |
| 5. Disqualification from membership of the Panel | Schedule 1 – Disqualification from membership of the Board |
| Schedule 1 of the Bill is more restrictive compared both to the Welsh legislation and Schedule 3 of the Northern Ireland Bill which deals with disqualification from being the Standards Commissioner. As well as obvious exclusions such as Assembly members and Assembly staff, Schedule 1 excludes family members, former family members, former Assembly members and former members of staff of the Assembly. | During oral evidence to the Committee, the Presiding Officer was asked if consideration had been given to excluding family members of Assembly members from membership of the Board. The Presiding Officer responded by explaining: ‘There are difficulties… in this field of trying to define what a family member is. If family members are to be disqualified, decisions would need to be taken as to how widely to define family members, I am advised. Now, obviously, candidates to be a member of the board would include all relevant information, including any affiliations they had, I would think, in their application, and that would be given due consideration by the appointments panel’. |
| Legal Counsel expanded on this: ‘A major issue is the clarity of the definition. As the person responsible for the drafting, my feeling was that to try to define which family members would be disqualified would be quite difficult. You would have to do that; you would have to define what the relationship was. You also, of course, would then immediately run into issues such as, if the husband or wife of an Assembly Member is disqualified, what about a person who is co-habiting with an Assembly Member but is not married to him or her? You begin to get into increasingly difficult areas of definition, and the thing would very rapidly, in my professional judgment, grow out of proportion to the nature of the problem2.’ The then Commissioner for Standards at the NAfW voiced concerns that appointing five members with the relevant expertise might be difficult, due to the fact that the legislation disqualified so many people from membership of the Board, including former Assembly members, who are the only people with experience of what is like to undertake the work of an Assembly member3. | |
| 6. Termination of membership of the Panel | 7. Termination of membership of the Board |
| The Northern Ireland Bill allows the Commission to terminate membership of the Panel, without recourse to an Assembly resolution. | The Chair or Board member ceases to hold office if they resign, become disqualified from being a member of the Board, their term expires or if the Assembly, following a proposal by a member of the Assembly Commission, passes a resolution by a two-thirds majority that a person should be removed from the Board |
| 7. Code of Conduct for Panel Members | |
| This clause places a duty on the Panel to issue a code of conduct for its members, incorporating the Nolan principles and including provision about the disclosure of interests by Panel members. | N/A |
| 8. Administration and finance | 9. Administrative support |
| Clause 8 reflects the Welsh Measure. | This section states that the Assembly Commission must provide the Board with such administrative support as the Board reasonably requires to enable it to discharge its functions. During oral evidence, the Presiding Officer expanded on what he defined as ‘reasonably requires’: |
| ‘What we want to do here is ensure that the demands of the board are not excessive, for example, meeting too frequently because that sometimes occurs. The Commission would then have a right, in that situation, to withdraw its administrative support. At present, Assembly staff are perfectly capable of undertaking this work as part of their other duties, but it is a point that may be well worth considering, because, obviously, one meeting per annum or possibly more often would not be a huge additional drain on the resources of the Assembly Commission.’ | |
| 9. Annual report | 11. Annual report |
| The Panel must provide the Commission with an annual report on its activities, including its use of resources. | The Board is required to lay before the Assembly an annual report on its activities, including its use of resources. This provision was not contained in the original draft of the Bill when it was introduced, but the Finance Committee raised concerns that the lack of an annual report would have made it more difficult to monitor the financial activities and workload of the Board. |
| 10. Meetings of the Panel | 10. Meetings of the Board |
| Subject to Clause 11, Clause 10 allows the Panel to determine its own procedure and when meetings are to be held. Unlike Wales, the Clerk/Chief Executive of the Assembly cannot ask the Board to convene. | The Board is required to meet at least once a year. The Clerk of the Assembly may ask the Board to meet to consider a matter relevant to its functions. This provision followed a recommendation in ‘Getting It Right for Wales’ that ‘The Chief Executive and Clerk of the National Assembly, as Principal Accounting Officer, should have the ability to call a meeting of the Independent Review Body (the Board) at any time.’ |
| 11. Exercise of functions | 13. Exercise of functions of the Board |
| Clause 11 allows the Panel to make only one determination in respect of each Assembly mandate. This Clause largely replicates the equivalent provisions in the Welsh legislation, for example by allowing the Panel to meet more than once in exceptional circumstances. However, it prohibits the Panel from making a determination for an Assembly if that Assembly was elected following an election directed under Section 32(4) (extraordinary elections) of the 1998 Act | The Board may not make more than one determination relating to the payment of salaries of members or Ministers during each term of the Assembly, except in exceptional circumstances. This was a recommendation in ‘Getting It Right For Wales’ and during evidence to the Committee it was argued that: ‘If you move to an independent situation, you place the responsibility wholly on other people, but you are also saying that it is necessary to do this only once each time. This gives people greater confidence and people will know that that will be the salary if they stand for the job and are elected, and it will not be possible to change that.’ Exceptional circumstances were defined as including overly excessive decisions made by the Board or circumstances where Members were required to undertake substantial new work. |
| 12. Contents of determinations: salaries and allowances | |
| This Clause outlines what must happen when the Panel is making a determination that will affect Members who also hold office in either House of the UK Parliament or the European Parliament. It takes into account changes introduced by the Northern Ireland Assembly Members Act 2010 which reduced the salary of Assembly Members to zero if they also sit in one of the institutions mentioned above and removed the salary payable to ordinary Members from Ministers and other office holders in circumstances where they hold a dual mandate. | N/A |
| 13. Contents of determinations: pensions, gratuities and allowances | |
| This Clause allows the Panel to include in its determinations provisions for pensions, gratuities and allowances. It also allows for the establishment of and administration of one or more pension schemes. | N/A |
| 14. Availability of determinations | 12. Determinations |
| Every determination made by the Panel must be in writing and be communicated to the Commission which then must publish it in full. | Similar to the Northern Ireland Bill. |
Table notes:
1. http://www.assemblywales.org/bus-home/bus-committees/bus-committees-perm-leg/bus-committees-third-lc1-agendas.htm?act=dis&id=157612&ds=12/2009
2. http://www.assemblywales.org/bus-home/bus-committees/bus-committees-perm-leg/bus-committees-third-lc1-agendas.htm?act=dis&id=157612&ds=12/2009
3. http://www.assemblywales.org/bus-home/bus-committees/bus-committees-perm-leg/bus-committees-third-lc1-agendas.htm?act=dis&id=162104&ds=1/2010
3 The Northern Ireland Assembly Commissioner
for Standards
In May 2010 the Committee on Standards and Privileges published its Report on the Committee Inquiry on Enforcing the Code of Conduct and Guide to the Rules Relating to the Conduct of Members and the Appointment of an Assembly Commissioner for Standards. The report contained a number of recommendations, one of which was that “The Assembly should pass a Bill to create a statutory Assembly Commissioner for Standards during this current mandate". In its report, the Committee concluded that:
Broadly speaking, the principles of the existing system, whereby the Northern Ireland Assembly regulates its own affairs and ultimately takes decisions on complaints that have been made against its own members is an appropriate, reasonable and workable system. However, while the principles are sound there is important work that can and should be done in order to ensure that in practice the system is more robust, and is seen to be both fairer and more transparent. The most significant aspect of this is that the Assembly should have its own Commissioner for Standards whose role would be to carry out independent, objective investigations into complaints against Members and to present his or her findings to the Committee on Standards and Privileges[8].
During the first Assembly mandate the Committee held an inquiry into the possible appointment of a Standards Commissioner with the subsequent report recommending the appointment of a Commissioner to investigate complaints against Assembly members. The Committee also agreed interim arrangements to allow the Northern Ireland Assembly Ombudsman to carry out investigations in the intervening period, given his skills and experience. After having asked the Ombudsman to act as the interim Commissioner, the Committee later decided that rather than carrying out a recruitment process, the position should be placed on a statutory footing. A Bill was subsequently introduced by the Committee which reached second stage before falling as a result of suspension.
The Scottish Parliament and National Assembly for Wales already have statutory standards commissioners by virtue of the Scottish Parliamentary Standards Commissioner Act 2002 and the National Assembly for Wales Commissioner for Standards Measure 2009. Both of these offices were created following inquiries and consultation processes carried out by the relevant standards committees.
Since the publication of the Committee’s report in 2010, the Scottish Parliament has passed the Scottish Parliamentary Commissions and Commissioners Act etc. 2010. The Act established a new standards body which will be known as the ‘Commission for Ethical Standards in Public Life in Scotland’, which encompasses the functions of the Scottish Parliamentary Standards Commissioner, the Chief Investigating Officer[9] (CIO), and the Commissioner for Public Appointments. The roles of the SPSC and CIO are combined into one role, with the result that one member of the Commission will be responsible for carrying out the functions of the SPSC and CIO, while the other Commissioner will carry out the functions currently undertaken by the Commissioner for Public Appointments.
In November 2010 Gerard Elias QC was appointed as the new Standards Commissioner for the National Assembly for Wales, following approval by the Assembly.
Part 2 of the Bill establishes a Northern Ireland Assembly Commissioner for Standards and places the post on a statutory footing. There are clauses relating to the functions of the Commissioner, the appointments process, persons disqualified from being the Commissioner, the procedure for investigating complaints and the investigatory powers of the Commissioner.
Complaints against a Member of Parliament are investigated by the Parliamentary Commissioner for Standards. Although the procedures followed by the Commissioner in Westminster are similar to those followed in Wales and Scotland, the Parliamentary Commissioner for Standards does not have the weight of an independent, statutory appointment. Rather, the Commissioner’s powers and responsibilities are set out in Standing Order 150 of the House of Commons. The Commissioner cannot, for example, compel witnesses to appear before a hearing or produce requested documentation for the purposes of carrying out an investigation.
The principal functions of the Standards Commission are to provide advice and guidelines on compliance with the Ethics Acts, to administer the disclosure of interests and tax clearance regimes and to investigate and report on possible contraventions of the legislation. These functions of the Standards Commission apply to office holders and to public servants and, in relation to tax compliance measures, to all members of the Houses. Apart from matters relating to tax clearance, the Committees on Members’ Interests of both Houses have functions similar to those of the Standards Commission in relation to members of the Houses who are not office holders.
Part 2 of the Bill has been drafted along similar lines to that of the equivalent legislation in Scotland and Wales.
| 16. Establishment of the Commissioner | Scotland and Wales |
| This clause allows for a Northern Ireland Assembly Commissioner for Standards. | There are similar provisions in Scotland and Wales. |
| 17. Functions of the Commissioner | Scotland and Wales |
| This section sets out the Commissioner’s functions to receive and investigate complaints. The Committee recommended that the Commissioner should have the power to initiate an investigation into the conduct of Members without having first received a complaint. This is different to the situation in Scotland and Wales where the Commissioner must be in receipt of a complaint before proceeding. Section 16 reflects evidence given to the Committee by the Chair of the Committee on Standards in Public Life (CSPL). During evidence, Sir Christopher Kelly said: ‘The view that a commissioner ought to be able to investigate on his or her own initiative is not my personal view but one that the Committee on Standards in Public Life has taken under previous Chairmen. One of the reasons for the Commissioner having that power can be best illustrated by the fact that, at times, the Parliamentary Commissioner for Standards at Westminster has come under criticism for appearing to do nothing when public criticism of a Member of Parliament appears in the press. He has had to say that he cannot do anything because no-one has made a complaint for him to investigate…it is important that you create circumstances in which the commissioner does not appear to have one arm tied behind his back’1. In evidence to the Committee, the Committee on Standards of Conduct at the National Assembly for Wales stated that “although we want to give as much power and authority as we can to the standards commissioner, it is not the job of the standards commissioner to initiate complaints"2. (10 February 2010) The Northern Ireland Human Rights Commission raised the question as to what would constitute a proper threshold for initiating an investigation, and that it would call into question the Commissioner’s judgment “whenever he or she decided not to investigate on foot of a report". | The Commissioners in both Scotland and Wales must be in receipt of a complaint before taking forward an investigation. The Explanatory Note to the Scottish Act states that: “This provision ensures that the Commissioner’s role is limited to complaints that are made direct to him or her. For example, in the absence of a specific complaint, the Commissioner would not be able to investigate an allegation that had appeared in the press"4. Section 9 of the Welsh legislation places a duty on the Clerk, in his role as Chief Executive and Principal Accounting Officer, of the Assembly to report to the Commissioner any Assembly Member who he believes to have misused public funds. The Committee heard evidence that this would ‘ensure that it would not be the Commissioner who would be responsible for initiating such an investigation…it would be inappropriate for the Commissioner…to act as judge and prosecutor in the same case.’ |
| The Committee noted the concerns about the practicalities of how a Commissioner might choose to initiate an investigation, but stated that it was “not acceptable that where there are significant, legitimate and evidential concerns in relation to the conduct of Members but where no formal complaint has been made that no investigation should be carried out". It went on to say that such an investigation should only be carried out “where the Commissioner is satisfied that there is a prima facie evidential basis to carry out such an investigation" 3. | |
| 18. Independence of the Commissioner | Scotland |
| This section makes clear the independence of the Commissioner, subject to the requirement to comply with directions given by the Assembly (see section 24). | No explicit reference is made to the independence of the Commissioner in the legislation. |
| Wales | |
| The Commissioner is not subject to the direction or control of the Assembly, outside of the requirement to submit an annual report. | |
| 19. Appointment of the Commissioner | Scotland |
| This section allows for the appointment of a Commissioner for a term of five years following an open competition. The appointment must be confirmed by a resolution of the Assembly. The Commissioner may not be reappointed and this was in line with a recommendation from the Commissioner for Public Appointments Northern Ireland. The Committee’s view was that the “one-off term of appointment is an important feature of the Commissioner’s independence. A Commissioner who has to carry out an investigation into a Member who he or she may later rely upon in order to seek reappointment could be perceived to be a Commissioner who has a vested interest in concluding that the Member has not breached the Code"5. | In Scotland, the current Commissioner is appointed for a five year term and may be reappointed for one further term. This followed guidance produced by the Commissioner for Public Appointments6. |
| Wales | |
| The tenure of the Commissioner is similar to that proposed in the Northern Ireland Bill. In Wales, the Commissioner is appointed for a single term of six years, which was seen as securing the independence of the Commissioner. Responses received in the consultation process varied between recommendations of five and seven years. | |
| 20. Disqualification from being appointed or serving as the Commissioner | Scotland and Wales |
| Schedule 3 of the Bill sets outs the terms under which a person is disqualified from being the Commissioner. They are not as restrictive as those set out under Schedule 1, which deals with disqualification from membership of the Panel. For example, section 1(a) of Schedule 1 states that a “family member of a Member or former Member of the Assembly" may not be Panel members, whereas Schedule 3 lists only family members of current Members. Schedule 1 also goes significantly further by disqualifying former Members and former members of Assembly staff from serving on the Panel. Schedule 3 allows former Members and Assembly staff to apply for appointment as Standards Commissioner once a period of time has elapsed. | The Scottish and Welsh legislation places fewer restrictions on who may be appointed Commissioner. No reference is made to family members, council membership or membership of a political party. |
| 21. Termination of the Commissioner’s appointment | Scotland and Wales |
| Existing Standing Orders say that the Commissioner shall not be dismissed unless – (a) the Assembly so resolves; and (b) the resolution is passed with the support of a number of members which equals or exceeds two-thirds of the total number of seats in the Assembly. The Committee believed that it was important that there was a statutory safeguard in place so the Commissioner could not easily be dismissed. The absence of such a safeguard could, in the view of the Committee, be perceived as a threat to the ability of the Commissioner to reach unpopular conclusions. | The terms of dismissal are the same as those in the Northern Ireland Bill. |
| 22. Further provision about the Commissioner | Scotland and Wales |
| Schedule 4 makes further provision about the Commissioner in relation to the administration of the office including: terms and conditions, support and accommodation, goods and services, financial prudence and financial information. | Similar provisions exist in the Scottish and Welsh legislation. |
| 23. Appointment of an Acting Commissioner | Scotland |
| This clause allows the Assembly to appoint an Acting Commissioner to discharge any or all of the Commissioner’s functions in circumstances where the Commissioner is unable to do so. This could apply, for example, where a conflict of interest meant that it was inappropriate for the Commissioner to investigate a particular case. As an Acting Commissioner may have to be appointed in urgent circumstances (for example where the Commissioner was ill), the Clause delegates to the Commission the appointments process, but the Assembly retains the right to appoint an Acting Commissioner. | The process followed is broadly similar to that outlined in the Northern Ireland Bill, except that the agreement of the Parliament to the appointment is not required. |
| Wales | |
| Similar to the Northern Ireland Bill. | |
| 24. Directions to the Commissioner | Scotland |
| This section requires the Commissioner to comply with directions issued by the Assembly. This may include the procedure to be followed by the Commissioner in the exercise of his or her functions, requiring the Commissioner to comply with principles, codes of conduct or other statements of standards and ethics as the Assembly may specify and to register financial and other interests as the Assembly may require. However, no direction may be given regarding the process by which the Commissioner will carry out an investigation. | Section 4 of the Scottish Parliamentary Standards Commissioner Act 2010 states that the “Commissioner shall…comply any directions given by the Parliament. Directions may be given in relation to the procedure the Commissioner must follow while conducting an investigation generally (i.e. these would apply to all investigations). |
| In its report, the Committee noted that “all respondents agreed that the Commissioner should not be subject to the direction or control of the Assembly…It is important to explain what is meant by the Committee in respect of the Commissioner’s independence and freedom from the direction and control of the Assembly". The report goes on to explain that the Committee would have particular expectations of how investigations should be carried out, and that it would retain the right to ask the Commissioner to clarify or establish certain points relating to a report. The Commissioner for Public Appointments Northern Ireland made clear in her submission to the inquiry that “to demonstrate true independence for the Assembly the Commissioner must be free from direction or control of the Assembly and this must be clearly demonstrated in legislation as well as in practice"7. | Furthermore, the Scottish Parliament can make different provision in the directions to cover different classes of complaints. It might, for example, “be considered appropriate to make different procedural provision to deal with unusual types of complaints, such as those that are made anonymously or those in which a Member is not named"8. |
| Wales | |
| Section 5 of the National Assembly for Wales Commissioner for Standards Measure 2009 makes clear the independence of the Commissioner. It says that the Commissioner is not subject to the direction or control of the Assembly except for the purposes of producing an annual report and, if practicable to do so, appear before the Standards Committee and provide information about matters that should be included in the annual report. | |
| 25. Investigations by the Commissioner | Scotland and Wales |
| The Northern Ireland Bill gives the Commissioner wide discretion regarding the procedure for carrying out investigations. A report produced by the Commissioner may not recommend the imposition of a sanction. This remains the responsibility of the Assembly and mirrors the equivalent Scottish and Welsh legislation. However, although section 25(2) of the Bill precludes the Commissioner recommending a sanction, it allows his or her report to “otherwise make such recommendations as the Commissioner thinks fit". (Bill) The rationale for this can be found in the Committee’s report which said: ‘In practice the Commissioner can already indicate the seriousness of a breach through the use of language to describe the conduct. The Committee is therefore content that the Assembly Commissioner for Standards should be able to include in any report an indication of the seriousness of any breach as a guide to what might be an appropriate sanction9.’ | The SPSC Act 2002 provides greater detail than the National Assembly for Wales Measure and the Northern Ireland Bill as to the process by which a complaint is to be investigated, covering the admissibility of complaints and the steps to be taken by the Commissioner upon receipt of a complaint. |
| 26. Further investigations | Scotland and Wales |
| Clause 26 allows the Assembly, upon receipt of a report from the Commissioner, (in practice the Committee on Standards and Privileges) to ask the Commissioner to carry out further investigation on an issue. The clause allows the Commissioner to either carry out further investigation or to inform the Committee that further work is unnecessary. | The provisions in the Northern Ireland Bill lie somewhere between the Scottish and Welsh legislation. In Scotland, once directed to undertake further investigation, the Commissioner may not conclude that this would be unnecessary. In Wales, the Committee may not direct the Commissioner to undertake further investigation once he has submitted his report. |
| 27. Reports | Scotland |
| The Commissioner’s report cannot make recommendations regarding the imposition of sanctions – this remains the remit of the Assembly. However, the report can make other ‘recommendations as the Commissioner thinks fit’. This section also makes clear that the Assembly is not bound by the facts presented or conclusions reached in the report. | If a report finds that a member was in breach of a relevant provision, that member must be given a draft of the report and an opportunity to make representations on it. The Commissioner cannot recommend the imposition of a sanction. |
| Wales | |
| Similar to the provisions in the Northern Ireland Bill. | |
| 28. Power to call for witnesses and documents | Scotland and Wales |
| This section provides statutory powers for the Commissioner comparable to those available to the Assembly under section 44 of the 1998 Act. In its report, the Committee noted that it: ‘was advised of some of the specific statutory powers that an independent Commissioner should have. These included the power to call for witnesses and documents; statutory protection from defamation (privilege); power to secure the provision of goods and services; and protection from the requirement to disclose information…Most important of these is the power to call for witnesses and documents. It should be an offence not to cooperate with an investigation of the Commissioner.’ Section 28(3) protects a person from answering any question or producing any document that they would not have to answer or produce in court proceedings. | The equivalent provisions in Scotland and Wales are largely similar to the provisions in the Northern Ireland Bill. |
| 29. Witnesses and documents: notice | Scotland and Wales |
| This section outlines the process by which the Commissioner shall call a person to give evidence | The relevant provisions are largely similar to the NIAM Bill. |
| 30. Witnesses: oaths | Scotland and Wales |
| This clause gives the Commissioner power to administer an oath to any person giving evidence and requires that person to take an oath. | The relevant provisions are largely similar to the NIAM Bill. |
| 31. Offences | Scotland and Wales |
| Clause 31 makes it an offence not to give evidence, produce a document or take an oath. Maximum penalties for failure to comply are a fine of up to £5,000 or three months imprisonment. | The equivalent provisions are largely similar to the NIAM Bill. |
| 32. Protection from defamation actions | Scotland |
| This clause provides that for the purposes of the law of defamation, statements by the Commissioner are protected by absolute privilege and statements to the Commissioner will have qualified privilege. Providing only qualified privilege to a person giving evidence to the Commissioner may dissuade that person from making deliberately false or malicious claims. | The Commissioner has absolute privilege and those giving evidence have qualified privilege. During consideration of the Bill in plenary, it was explained that: ‘After lengthy discussion, the Standards Committee agreed that some protection should be offered to complainers and others making statements to the commissioner to allow all stages of the investigation process to be carried out without the threat of legal action for defamation. We agreed that it would be sufficient to grant qualified privilege because that would protect those with genuine complaints while providing the possibility of recourse against those whose defamatory statements during the investigation process were motivated by malice or an intent to injure’10. |
| Wales | |
| Both the Commissioner and those giving evidence have absolute privilege. | |
| 33. Restriction on disclosure of information | Scotland and Wales |
| This clause prohibits the Commissioner from disclosing information provided to him or her except in the discharge of their functions. | The clauses in the Scottish and Welsh legislation are similar to those in the NIAM Bill. |
Table notes:
1. Northern Ireland Assembly Committee on Standards and Privileges Report on the Committee Inquiry on Enforcing the Code of Conduct and Guide to the Rules Relating to the Conduct of Members and the Appointment of an Assembly Commissioner for Standards May 2010
2. As above
3. As above
4.
5. Northern Ireland Assembly Committee on Standards and Privileges Report on the Committee Inquiry on Enforcing the Code of Conduct and Guide to the Rules Relating to the Conduct of Members and the Appointment of an Assembly Commissioner for Standards May 2010
6. The Commissioner for Public Appointments’ Guidance on Appointments to Public Bodies, Office of the Commissioner for Public Appointments, July 1998
7. Northern Ireland Assembly Committee on Standards and Privileges Report on the Committee Inquiry on Enforcing the Code of Conduct and Guide to the Rules Relating to the Conduct of Members and the Appointment of an Assembly Commissioner for Standards May 2010
8. Scottish Parliamentary Standards Commissioner Bill, Research briefing, Scottish Parliament Information Centre February 2002
9. As above
10. http://www.scottish.parliament.uk/business/officialReports/meetingsParliament/or-02/sor0627-02.htm#Col13122 retrieved 18 November 2010
[1] http://www.ipsa-home.org.uk/
[2] http://www.reviewbody.gov.ie/
[3] http://www.oireachtas.ie/parliament/about/commission retrieved 9 November 2010
[4] http://www.assemblywales.org/memhome/mem-allow-pay-pensions/independentreviewpanel.htm
[5] http://www.assemblywales.org/irp-reportjuly09-e.pdf
[6] http://www.assemblywales.org/memhome/mem-allow-pay-pensions/members-remunerationboard.htm
[7] http://www.assemblywales.org/newhome/new-news-third-assembly.htm?act=dis&id=199969&ds=10/2010
[8] Northern Ireland Assembly Committee on Standards and Privileges Report on the Committee Inquiry on Enforcing the Code of Conduct and Guide to the Rules Relating to the Conduct of Members and the Appointment of an Assembly Commissioner for Standards May 2010
[9] The CIO is appointed by the Scottish Ministers to investigate and report on complaints alleging a breach of the Code of Conduct for Councillors and the Code of Conduct for members of devolved public bodies.
7 January 2010
Investigating
Parliamentary Standards
a Comparison
(1) To provide a description of the investigatory mechanisms in place in the
House of Commons, the Scottish Parliament, the National Assembly for Wales
and the Dáil Éireann in relation to the registration of Members’ financial interests
and alleged breaches of relevant codes of conduct.
Library Research Papers are compiled for the benefit of Members of The Assembly and their personal staff. Authors are available to discuss the contents of these papers with Members and their staff but cannot advise members of the general public.
The main findings of this paper are:
(1) There is great similarity in the role and functions of the Scottish Parliamentary Standards Commissioner and the National Assembly for Wales Commissioner for Standards. Both investigate matters relating to the register of Members’ financial interests and alleged breaches of the code of conduct within the relevant jurisdiction. Each Commissioner is provided with powers to call for witnesses and evidential documentation as part of the investigation process. Neither Commissioner can recommend sanctions against a Member and must report only findings of fact to the relevant Committee. The Commissioners do not investigate matters in relation to Member’s allowances instead this is handled by the Scottish Parliamentary Corporate Body and the Chief Executive and Clerk to the National Assembly for Wales.
(2) The recently established Independent Parliamentary Standards Authority (IPSA) will, in respect of the House of Commons, pay salaries and allowances to Members and be responsible for drafting both a code of conduct for Members’ financial interests and an allowances scheme. A Commissioner for Parliamentary Investigations will investigate the overpayment or misuse of allowances and alleged breaches relating to the registration of Members’ financial interests. The role of this Commissioner differs from the provisions in other jurisdictions in that it is the only one that can investigate matters relating to Member allowances. The Parliamentary Commissioner for Standards retains responsibility for handling matters of conduct, propriety and ethics in relation to the code of conduct and will investigate complaints on these matters and report the findings to the Committee on Standards and Privileges.
(3) The role of the Standards in Public Office Commission in the Republic of Ireland is broader than the comparative bodies in the House of Commons, the Scottish Parliament and the National Assembly for Wales. The Commission exercises certain functions that are applicable to office holders, public servants and Members whereas the other bodies concentrate solely on the actions of Members. The Commission, subject to certain conditions, may conduct investigations into alleged breaches of the Ethics Acts however it also plays a supervisory role under the Electoral Acts and the Party Leaders’ Allowance Act 2001. This includes reporting on election expenses, the disclosure and acceptance of donations to parties, Members and election candidates, and reporting to the Minister for Finance on statements of expenditure submitted to it by party leaders.
(4) The Committee on Members’ Interests of Dáil Éireann draws up guidelines for Members on the registration of interests and a code of conduct for non-office holders. It also investigates alleged breaches of the Ethics Act, in particular those relating to statements of interest. Complaints in relation to specified acts are handled by the Standards in Public Office Commission.
(5) The National Assembly for Wales Commissioner for Standards is not subject to the direction or control of the Assembly. This is the only Commissioner for which the corresponding legislation specifically states this is the case. For example, the Scottish Parliamentary Standards Commissioner works independently but must comply with directions given by the Scottish Parliament.
(6) The Committee on Standards and Conduct for the National Assembly for Wales appears to be the only Committee which has a formal appeals process in which a Member can appeal a Committee decision. The House of Lords comments that the lack of an appeals system in the House of Commons for decisions taken by the Committee on Standards and Privileges has been argued to be a possible contravention of European human rights.
1. Introduction
2. House of Commons
3. Scotland
4. Wales
5. Dáil Éireann
Annex 1
Annex 2
This paper outlines the procedures and mechanisms in place which oversee the parliamentary standards of the House of Commons, the Scottish Parliament, the National Assembly for Wales and the Dáil Éireann. The paper notes relevant legislation, responsibilities and powers of the bodies in place, investigative procedures to be followed, and procedures for appointment including terms of office for the Commissioner for Standards in each jurisdiction.
The following table outlines the mechanisms for investigating complaints and alleged breaches of Member codes relating to financial interests, expenses and conduct. It should be noted that the House of Commons procedures are provided for in the Parliamentary Standards Act 2009 but are yet to be fully implemented. See Annex 1 for further information on the relevant codes of conduct and guidelines.
| Register of Members’ financial interests | Allowances | Code of conduct (ethics) | |
| House of Commons | Commissioner for Parliamentary Investigations | Commissioner for Parliamentary Investigations | Parliamentary Commissioner for Standards |
| Scotland | Scottish Parliamentary Standards Commissioner | Scottish Parliamentary Corporate Body | Scottish Parliamentary Standards Commissioner |
| Wales | National Assembly for Wales Commissioner for Standards | Chief Executive and Clerk to the National Assembly for Wales | National Assembly for Wales Commissioner for Standards |
| Dáil Éireann | Committee on Members’ Interests of Dáil Éireann | Committee on Members’ Interests of Dáil Éireann/ Standards in Public Office Commission |
Established in 1995 the Office of the Parliamentary Commissioner for Standards was responsible for the regulation of Members’ financial interests, maintenance of the code of conduct and the investigation of complaints made against Members for alleged breaches of the code within the House of Commons (House). The Parliamentary Commissioner for Standards is an Officer of the House, who is appointed and wholly funded by the House. However, the main responsibilities and functions of the Office are now being passed to the newly established Independent Parliamentary Standards Authority (IPSA).
The Parliamentary Standards Act 2009 (Chapter 13)[1] which received Royal Assent on 21 July 2009 put in place arrangements for the IPSA to replace the non-statutory Office of the Parliamentary Commissioner for Standards.[2] The IPSA is a completely independent permanent body which is anticipated to be fully operational by April 2010.
The 2009 Act establishes the following functions as responsibilities of the IPSA in relation to Members:
The code of conduct relating to Members’ financial interests must be laid before the House for approval before it is to have effect. The IPSA will also be required to provide information and guidance to Members on relevant matters of taxation.
The 2009 Act establishes a separate Commissioner for Parliamentary Investigations and provides them with the power to conduct investigations into the overpayment or misuse of allowances, or alleged breaches of the code of conduct relating to the registration of Members’ financial interests. The Commissioner will operate on behalf of the IPSA and in a supervisory role the IPSA must ensure adequate resources are provided to support the Commissioners investigations because the Commissioner is not awarded the authority to employ staff. The Commissioner may undertake an investigation “under his/her own initiative, or in response to a complaint, or at the request of the IPSA."[3]
The code of conduct prepared by the IPSA will require consultation with a number of elements within the House and will be subject to approval by the House before coming into effect.
The Speaker may consult with the IPSA and the Committee on Standards and Privileges in relation to appointing further functions to the IPSA however these will not come into effect until approved by a resolution of the House. The Speaker may also consult with the Commissioner and the Committee on Standards and Privileges with regards to appointing further functions to the Commissioner.
The IPSA and Commissioner for Parliamentary Investigations operate on an independent and statutory basis. The IPSA has a statutory responsibility for preparing the register of Members’ financial interests and determining the procedures to be used in the investigation and complaint process.
The responsibilities of both the IPSA and Commissioner are not regarded as proceedings in Parliament and therefore do not have parliamentary privilege.[4]
The IPSA consists of five members (Chair and four ordinary members). The Chair and four ordinary members were appointed following an independent and open competition chaired by the Commissioner for Public Appointments for Northern Ireland.[5] The 2009 Act requires that one member have accountancy experience (qualified to be an auditor for the National Audit Office), one should have experience of being an MP (but is no longer an MP), and another should have held high judicial office (though no longer be holding this post).[6] The Chair and ordinary members are appointed for a fixed term not exceeding five years. Re-appointment as a member can only occur once and for no longer than a term of three years.
In November 2009 suitable applicants were put forward to the Speaker who proceeded to forward the names to the Speaker’s Committee for approval. The Speaker’s Committee is a new statutory Committee which consists of:
The Chair has been agreed as Sir Ian Kennedy and the four ordinary members are Jackie Ballard, the Rt Hon Lord Justice Scott Baker, Ken Olisa, and Professor Isobel Sharp (Annex 2 for further information on each member).
The 2009 Act provides for the Commissioner for Parliamentary Investigations to be selected by the Speaker through an open and fair competition and with the agreement of the Speaker’s Committee. The Commissioner can be appointed for a fixed term of no longer than five years and cannot be re-appointed.[8]
The Chair and ordinary members of the IPSA can resign from their positions by giving written notice to the Speaker. Section 5 (schedule 1) of the 2009 Act states that Her Majesty can remove either the Chair or an ordinary member from office through an address of both Houses of Parliament. The 2009 Act provides for the same rules to apply to the resignation or removal from office of the Commissioner for Parliamentary Investigations.
The Commissioner will have the power to investigate overpayments or the misuse of allowances, or alleged breaches of the code of conduct relating to the registration of Members’ financial interests. This can be triggered in response to a complaint by an individual, at the request of a Member, or on the Commissioner’s own initiative.[9] To assist the Commissioner with the investigation process both the IPSA and Members must provide any reasonably required information. The specific procedures to be followed by the Commissioner will be decided upon by the IPSA. The 2009 Act, however, provides general information on the investigation process and actions which may be taken. It states that if, following an investigation, the Commissioner finds fault with an allowance that has been paid or if the code of conduct relating to financial interests has been breached they must report this to the Committee on Standards and Privileges. Exceptions to this are if the Member under investigation accepts the Commissioners findings and takes steps to repay an agreed amount to the IPSA or takes steps to correct the register of financial interests as advised by the Commissioner.[10]
As part of the investigation process the Member who is the subject of the investigation must be allowed to represent before the Commissioner to discuss the details of the investigation and/or the Commissioners findings before the case is referred to the Committee on Standards and Privileges. The Member must be allowed to call and examine witnesses where deemed appropriate by the Commissioner.[11]
Should the Commissioner find that a Member has been overpaid an allowance or has failed to comply with the code and has not taken steps to rectify matters with the IPSA a report of fact detailing the Commissioner’s findings will be presented to the Committee on Standards and Privileges. The Commissioner will not include in the report any recommendations on sanctions against a Member. Such a decision is the responsibility of the Committee. The Committee retains discretion to accept, modify or reject the Commissioner’s findings. The guide to the rules relating to the conduct of Members (approved 9 February 2009) states that if the Committee decides that a Member has committed a breach it can make recommendations to the House on further actions required against a Member.[12] The 2009 Act does not contain any provision to suggest that this function of the Committee has changed.
There is no current mechanism in place in which to appeal a decision taken by the Committee on Standards and Privileges. The House of Lords report into the Parliamentary Standards Bill comments that the issue of the right to appeal Committee decisions is a long-standing and live issue.[13] The Committee can recommend sanctions against a Member which can as a result have serious implications on a Member’s reputation and, if the sanction involves suspension, hinder the Member’s ability to represent their constituents.
The report quotes the Joint Committee on Human Rights who suggested that under European human rights law a Member’s right to a fair hearing could be violated if there is no appeal mechanism for a decision taken by a parliamentary Committee. The report concludes that there is advantage to be gained in establishing a domestic appeal body for Committee decisions but recognises:
That such an appeal would have profound implications for parliamentary privilege if the appellate body were to be a judicial tribunal outwith Parliament.[14]
The Committee can review and modify the code of conduct at any time as it appears necessary to do so. The role of the Committee on Standards and Privileges is set out in Standing Order 149 and includes:
The Scottish Parliamentary Standards Commissioner investigates complaints made against MSPs in relation to alleged breaches of the code of conduct for MSPs. The misuse of the Expenses Scheme and of Parliamentary facilities and services is investigated by the Scottish Parliamentary Corporate Body which can refer such complaints to the Standards, Procedures and Public Appointments Committee along with a recommendation for “the removal of all or part of the member’s entitlement to reimbursement of expenses under the Scheme for such period and to such extent as the SPCB may specify."[16]
The Scottish Parliamentary Standards Commissioner Act 2002 establishes a Scottish Parliamentary Standards Commissioner (Commissioner) who will investigate complaints into the conduct of Members of the Scottish Parliament as defined in the Code of Conduct for MSPs. [17] This does not include complaints about the misuse of the Members’ Expenses Scheme or of Parliamentary facilities and services. Complaints arising from these matters are handled by the Scottish Parliamentary Corporate Body.[18]
The Commissioner receives complaints in relation to the conduct of Members and under the 2002 Act is duty bound to “investigate whether the member has committed the conduct complained about and has, as a result of that conduct, breached a relevant provision; and report upon the outcome of that investigation to the Parliament."[19] The Commissioner will not normally conduct investigations into complaints classified as excluded complaints (those referred to as excluded complaints within the 2002 Act, excluded from the remit of the Commissioner by any provision of the standing orders or the code of conduct) unless directed to do so by the Standards, Procedures and Public Appointments Committee.
An investigation by the Commissioner will seek to determine if the Member has actually done what has been alleged and if the code of conduct has been broken. The Commissioner will report on the findings of the investigation but will not decide upon or recommend sanctions against a Member. This is the responsibility of the Committee.
The Commissioner carries out the functions of the role independently but will “comply with any directions given by the Parliament"[20] (in practice this translates as the Standards, Procedures and Public Appointments Committee). For example, Section 4 (2) of the 2002 Act states that the Parliament may make provision as to the procedure the Commissioner should follow when investigating complaints or require the Commissioner to provide a report to the Parliament with regards to the exercise of the Commissioners functions. Any direction given by the Parliament under Section 4 “shall not direct the Commissioner as to whether or how any particular investigation is to be carried out."[21]
Section 10 of the 2002 Act states that although the Commissioner will present a report detailing the investigation findings to the Committee it is not bound by any facts or conclusions reached by the Commissioner. The Committee can direct the Commissioner to conduct further investigations as deemed appropriate. It can also direct the Commissioner to undertake an investigation into a complaint that is classified as an excluded complaint.
The Commissioner operates on a statutory basis with statutory powers provided by the 2002 Act.
An open recruitment administered by the Scottish Parliament Corporate Body is used to appoint the Commissioner. In each instance the decision of the Corporate Body requires the agreement of the Scottish Parliament. Members of Parliament or staff of the Parliament cannot be appointed as Commissioner nor can individuals who have held either of these positions during the two years prior to appointment. The Commissioner will be appointed for a term of no longer than five years and can be re-appointed once only.[22] The Corporate Body determine the terms and conditions of the appointment and will pay the salary and allowances of the Commissioner including any expenses incurred while exercising the functions of the office. The 2002 Act also provides that the Corporate Body provide pensions, allowances or gratuities to any person who has held the office of Commissioner.
The current Scottish Parliamentary Standards Commissioner, Stuart Allen, was appointed in April 2009 for a two year term.
Section 1 (6) of the 2002 Act states that at any time the Commissioner may resign by giving notice to the Corporate Body. The Corporate Body is afforded power under the 2002 Act to remove the Commissioner from office however this cannot happen unless “the Parliament so resolves; and if the resolution is passed on a division, the number of votes cast in favour of it is not less than two thirds of the total number of votes cast in the division."[23]
The 2002 Act contains general provisions for the investigation process which is split into two possible stages. Initially, the Commissioner will investigate and determine if a complaint is admissible (Stage 1), if it is admissible then the Commissioner will investigate further and report the findings to the Standards, Procedures and Public Appointments Committee (Stage 2).[24] For a complaint to be deemed admissible at Stage 1 the Commissioner will administer three tests to determine: if it is relevant; if the complaint meets the specified requirements; and if it warrants further investigation. Section 6 (4) of the 2002 Act states that a complaint is relevant if it concerns the conduct of a Member of Parliament, if it is not an excluded complaint unless it is an excluded complaint that the Commissioner has been directed to investigate by the Committee, and if it appears at first sight that all or part of the conduct complained about has been committed by the Member. The complaint must meet specified requirements:
(a) is made in writing to the Commissioner.
(b) is made by an individual person, is signed by that person and states that person’s name and address.
(c) names the member of Parliament concerned.
(d) sets out the facts relevant to the conduct complained about and is accompanied by any supporting evidence which the complainer wishes to submit.
(e) is made within one year from the date when the complainer could reasonably have become aware of the conduct complained about.[25]
Upon receipt of a complaint the Commissioner will notify the relevant Member that a complaint has been made about their conduct and will provide them with an outline of it along with the name of the complainant unless the Commissioner decides that to name the complainant would be inappropriate.
The final test of Stage 1 is to decide if it appears that there is sufficient evidence to suggest the conduct which forms the basis of the complaint may actually have taken place. Once the Commissioner has decided that the complaint is admissible a report will be made to the Committee to advise that the complaint is to be investigated further. The Commissioner will also advise the complainant and the Member named in the complaint of the decision to investigate the complaint fully.
The Commissioner will undertake Stage 2 to determine if in fact the Member has committed the alleged conduct described by the complainant and if this is deemed a breach of the code of conduct. A report will be prepared for the Committee outlining the investigation and the conclusions reached by the Commissioner. The findings of the report will state the facts of the case and whether the Member has breached the code or not. The report will not recommend any form of sanction or action to be taken.
If the Commissioner deems that the Member has breached the code of conduct, prior to presentation to Committee, the investigation report will be given to the Member and they will be afforded an opportunity to comment. The Member’s comments will be recorded and added to the final report presented to the Committee.[26]
Section 13 of the 2002 Act provides power for the Commissioner to call for witnesses and documents. It also lists the exceptions to which these powers can be extended, for example, an individual has the same rights to refuse to answer any question or produce any document requested by the Commissioner as they would have under proceedings in a Scottish court of law. In certain circumstances failing to present before the Commissioner can lead to being found guilty of an offence.
The Committee will consider the report prepared by the Commissioner and can accept or reject the conclusions reached. The Clerk of the Committee will ask the Member who is the subject of the complaint whether they agree with the Commissioner’s report or wish to appear before the Committee to discuss the findings or conclusions of the report. The Committee can also request that the Commissioner conduct further investigations into the complaint. Once the Committee has made its recommendations it will present the report before Parliament. Standing Orders of the Scottish Parliament Rule 6.4 provide the Committee with the power to propose a motion to recommend a Member’s rights and privileges be withdrawn.[27]
The Member who is the subject of the complaint can make a representation to the Committee with regards to the decision but there is no formal independent appeal process in place.
The Standards, Procedures and Public Appointments Committee review and report on:
(a) the practice and procedures of the Parliament in relation to its business;
(b) whether a member’s conduct is in accordance with these Rules and any code of conduct for members, matters relating to members’ interests, and any other matters relating to the conduct of members in carrying out their Parliamentary duties;
(c) the adoption, amendment and application of any code of conduct for members; and
(d) matters relating to public appointments in Scotland.[28]
Within the Committee’s current work programme it is holding an inquiry into the review of Section 2 of the code of conduct concerning categories of registerable interests which Members must register. The Committee will attempt to provide guidance on each of the categories.
The monitoring and investigation of the conduct of Assembly Members and issues relating to the register of financial interests rests primarily with the National Assembly for Wales Commissioner for Standards (Commissioner) and the Committee on Standards of Conduct. The National Assembly for Wales Commissioner for Standards Measure 2009 outlines the role and functions of the Commissioner and the process for the investigation of complaints. The Measure states that the principal aim of the Commissioner is:
To promote, encourage and safeguard high standards of conduct in the public office of Assembly Member[29].
The role of the Commissioner is to receive and investigate complaints with regards to alleged Member breaches of relevant provisions and to report the findings to the Assembly. Relevant provisions include the registration of financial interests, membership of societies, and any code of conduct relating to Assembly Members.[30] The Commissioner will provide advice to Assembly Members and members of the public in relation to lodging a complaint and the investigation process that follows. Further to this the Commissioner can be asked to advise the Assembly on “matters of general principle relating to the conduct of AMs, on procedures relating to the investigation of complaints and on matters relating to promoting high standards in public life generally."[31]
The 2009 Measure makes it clear that the Commissioner will exercise the role solely with regards to Assembly Members and the provisions and code of conduct which apply to them.
Section 5 of the 2009 Measure provides that the Commissioner, subject to section 19, “is not, in the exercise of any functions, to be subject to the direction or control of the Assembly."[32] Section 19 provides that the Commissioner must attend before the Committee on Standards of Conduct at their request and provide them with an annual report and any reasonably required information.
The role and functions of the Commissioner have been made statutory and independent of the National Assembly by the 2009 Measure. The Measure was proposed by the Committee on Standards of Conduct with the overall objective of contributing to the “maintenance of high standards of public life."[33]
The 2009 Measure provides that the appointment of the Commissioner be made by the Assembly following an open and fair competition. Ineligible applicants for the position include:
The Commissioner can be appointed for a six year term and any individual who has already held the office of Commissioner cannot be re-appointed to the position.
The Commissioner may resign at any time by giving notice to the Assembly or can be removed from the position by the Assembly. Should the Assembly seek to remove the Commissioner from office the 2009 Measure provides that this can only occur if:
(a) the assembly so resolves, and
(b) if the resolution is passed on a vote, the number of votes cast in favour of the resolution is not less than two thirds of the total number of votes cast.[35]
Further to this, the Commissioner’s appointment will cease if the individual:
The Clerk of the Assembly will refer a matter in writing to the Commissioner if there are reasonable grounds for suspecting that a Member’s conduct is in breach of a relevant provision and is also relevant to the Clerk’s functions under section 138 of the Government of Wales Act 2006.[37] The Commissioner will investigate the complaint and report the findings to the Assembly through the Committee on Standards of Conduct. The report must be an outcome of fact and should not make recommendations for sanctions against a Member. It is the responsibility of the Committee to determine appropriate sanctions. The Committee will also be responsible for supervising “the compilation, maintenance and accessibility of the Register of Members’ Interests and the Record of Membership of Societies and the form and content of the Register and the Record."[38]
To assist with the investigation procedure the Commissioner has the power to call for witnesses and documents deemed relevant to the investigation and if necessary “administer an oath or affirmation to any person giving evidence to the Commissioner, and require that person to take an oath or make an affirmation."[39] Witnesses who are called to present as part of an investigation are entitled to the same privileges as that of a witness giving evidence in a court of law in Wales or England. Section 15 of the 2009 Measure outlines the offences and penalties for individuals who fail or refuse to present themselves or a document at the request of the Commissioner.
The Committee on Standards and Conduct will investigate and recommend action on any complaint referred by the Commissioner. The procedure for dealing with complaints against Assembly Members outlines the process the Committee must follow. Initially, the Committee will meet in private to consider the details of the complaint and whether witnesses need to be called to the oral hearing and if the complaint should be considered in private or public. The Committee will then proceed to an oral hearing to clarify the facts of the complaint and/or to question relevant witnesses. Following the hearing the Committee will meet again in private to consider whether the Member has breached the code of conduct and what action or sanction should be recommended. The Committee will prepare a report and along with the Commissioner’s accompanying report will table a motion calling on the Assembly to endorse the Committee’s recommendations. The Member who is the subject of the complaint will also receive a copy of the Committee’s report.
Should the Member who is the subject of the complaint be found by the Committee to be in breach of the code of conduct they have 10 working days after receiving the Committee’s report to appeal to the Presiding Officer. The Presiding Officer will arrange for an appeal panel to be gathered consisting of four Assembly Members from different political groups and an independent legally qualified person (this person must not be an Assembly Member or a staff member of the Assembly).[40] A number of individuals are prohibited from sitting on the appeal panel, they include: Standards of Conduct Committee Members; Presiding Officer and Deputy; First Minister; leaders of political groups; the complainant or witnesses. The panel will consider the reports prepared by the Commissioner, the Committee and any other written documents submitted by the appellant but will not hold any oral hearings. The conclusion of the appeal panel can be either to uphold or dismiss the appeal.
The Committee on Standards and Conduct is conferred power under Standing Order 16 and has five main functions to perform:
The Standing Order makes no specific mention of the Committee’s role in modifying the code of conduct. Committee meeting papers and transcripts submitted on the National Assembly for Wales website show that the Standards Committee Secretariat propose amendments or revisions to the code of conduct and invite the Committee to consider and agree these proposals.
The Standards in Public Office Commission (Standards Commission) was established under the Standards in Public Office Act 2001 and assumed the functions of the Public Offices Commission. The Standards Commission has a much broader scope of work in comparison to the bodies established in the House of Commons, the Scottish Parliament and the National Assembly for Wales. The Standards Commission plays a broad supervisory role in relation to the following Acts:
Under the Electoral Acts the Standards Commission has a duty to monitor and where appropriate report to the Chairman of the Dáil Éireann on issues such as election expenses and the disclosure of donations. [43] With regards to the Party Leaders’ Allowance Act 2001 it considers statements of expenditure submitted by party leaders and prepares reports the Minister for Finance indicating the disclosure of unauthorised expenditure and if the statement is adequate or inappropriate.[44]
The role of the Standards Commission in relation to the Ethics Acts is to provide advice on compliance with the Acts, to administer a register of interests and tax compliance measures, and to investigate complaints made under Section 22 of the Ethics in Public Office Act 1995 or section 4 of the Standards in Public Office Act 2001. Complaints made under either of these sections fall to the Standards Commission to investigate rather than the Committee on Members’ Interests of Dáil Éireann.
Section 22 of the Ethics Act 1995 details the type of person who can make a complaint to the Standards Commission about alleged breaches of the disclosure provisions of the Act. Section 4 of the Ethics Act 2001 provides that an individual can make a complaint about a specified person who has allegedly committed a specified act (defined in the 2001 Act) or breached a provision of the Act.[45]
The Committee on Members’ Interests of Dáil Éireann or other relevant Committee can request the Standards Commission to investigate a particular complaint. At least twice each year the Standards Commission will consult with the Committees with regards to the operation of the 2001 Act and other relevant matters and legislation.
The Standards Commission and its functions are provided for on a statutory basis by the Standards in Public Office Act 2001.[46] However, the Standards Commission has “no coercive or punitive power."[47]
The Standards Commission is comprised of six members (one Chairperson and five ordinary members). Section 2 of the 2001 Act states that the Chairperson must be a judge (or former judge) of the Supreme Court or the High Court and will be appointed by the President following resolutions passed by both Houses. The appointment of the Chairperson is for a six year term and re-appointment for another term is provided for within the 2001 Act.
The ordinary members consist of “the Comptroller and Auditor General, the Ombudsman, the Clerk of the Dáil Éireann, the Clerk of the Seanad Éireann, and a person who (i) is appointed to be such a member by the Government following resolutions passed by each House approving the proposed appointment, and (ii) is a former member of one of the Houses and is not a representative in the European Parliament."[48] The ordinary members are appointed for a six year term and can be re-appointed for a subsequent term. However, an ordinary member will cease to hold their position should they be nominated as a member of Seanad Éireann, are nominated for election for either House or the European Parliament, or have been elected to the European Parliament.[49]
The members of the current Standards Commission are Mr Justice Matthew P Smith (Chairman and former judge of the High Court), John Buckley (Comptroller and Auditor General), Ms Emily O’Reilly (Ombudsman), Mr Kieran Coughlan (Clerk of Dáil Éireann), Ms Deirdre Lane (Clerk of the Seanad Éireann), and Mr Michael Smith.
The Chairperson of the Standards Commission can request to be removed from office or can be removed from office by the President if there is evidence of misbehaviour, incapacity or bankruptcy and resolutions are passed by both Houses in support of the removal.
An ordinary member can resign by giving written notice to the Minister or can be removed from office if there is evidence of misbehaviour, incapacity or bankruptcy and following resolutions passed by both Houses in support of the removal.
A complaint can be made to the Standards Commission under provisions set out in Section 22 of the Ethics in Public Office Act 1995 and Section 4 of the Standards in Public Office Act 2001.
The Statement of Intended Procedures describes the process the Standards Commission intend to follow when carrying out an investigation under the Ethics Acts. While the Standards Commission generally investigate office holders or specified persons (under Section 4 of the Standards Act):
section 22 (5) of the Ethics Act, as amended, provides that complaints in relation to members of the Oireachtas may fall to be investigated by the Commission where the complaint is one made to the Commission by the chairman of the relevant Committee on Members’ Interests itself or where, in the case of a third party complaint, the complaint is referred to the Commission by the chairman of the Committee concerned.[50]
Complaints must be made to the Standards Commission in writing and should contain as much detail as possible to enable it to decide whether a formal investigation is required. Section 8 of the 2001 Act provides that the Standards Commission shall not investigate a complaint unless the complainant discloses their identity. The Commission also has the right to contact the person that is the subject of the complaint to seek information which may have a bearing on whether or not to begin an investigation.
Section 6 of the 2001 Act allows the Standards Commission to appoint Inquiry Officers to carry out a preliminary inquiry into a complaint. Initially the Officer will request a statement of evidence from the complainant or anyone else deemed relevant to the inquiry. They will then provide the person who is the subject of the complaint with the particulars of the complaint including the statement submitted by the complainant. The Officer will request a statement of the evidence that would be given to the Standards Commission from the person who is the subject of the complaint and will conduct interviews as appropriate with both parties. The Officer is also permitted to request any documents which may be relevant to the inquiry.
The Inquiry Officer is required to prepare a report for the Standards Commission detailing the results of the inquiry and must include any statements or documents provided to the Officer as part of the preliminary inquiry. The 2001 Act states that the report must not contain any determinations or findings but will at the request of the Standards Commission contain “an opinion of the officer as to whether there is prima facie evidence to sustain the complaint concerned."[51] The Statement of Intended Procedures notes that in cases where the facts are clear and not the subject of dispute it may not be necessary to conduct a preliminary inquiry. However, the general view of the Standards Commission is that the use of an Inquiry Officer is beneficial in most cases.
The Standards Commission will hold sittings for the purposes of investigation at which it will hear evidence and receive submissions relevant to the case. The Commission can call for witnesses and will allow the person who is the subject of the complaint to present their case to them and also cross examine witnesses called by the Commission and present their own witnesses. A witness is entitled to:
The same privileges and immunities as a witness in a court, save that such witness cannot refuse to answer a question or refuse to produce a document on the ground that the answer or document might incriminate him or her.[52]
If the witness provides false evidence, fails or refuses to attend before the Commission, refuses to take the oath, refuses to answer any question to which the Commission is legally entitled an answer, or refuses to produce any document which the Commission legally requires they can be found to be committing an offence. To obstruct the Commission, a Committee or an Inquiry Officer “by act or omission"[53] can also be considered an offence.
The Standards Commission will submit a report outlining the results of the investigation to the person who is the subject of the complaint, the complainant (if the complaint was made under section 22 of the 1995 Act), and:
(c) (i) in case the person the subject of the investigation is or was an office holder and the Commission has determined that he or she has contravened Part II, III, IV, the Committee, and
(ii) in any other case – (I) the Minister, or (II) if, at the time of the alleged contravention concerned, the person occupied a position in a Department of State or office administered by a Minister of the Government other than the Minister, that Minister of the Government.[54]
If the subject of the complaint is a Member of either of the Houses of the Oireachtas it is the responsibility of the relevant Committee to recommend if action against the Member should be taken. If the subject is not a Member of either House it will still be outside the remit of the Standards Commission to recommend sanctions and they will have no further input in the process.
The Committee on Members’ Interests of Dáil Éireann conducts investigations into alleged breaches of provisions contained within the Ethics Acts. The Clerk of the Dáil Éireann may refer complaints from non Members while complaints from Members will go directly to the Committee. For investigation purposes the Committee holds sittings at which it can receive submissions and relevant evidence. The sittings may be conducted in private. The Chairman of the Committee can call the Member concerned or any other relevant person to attend the sitting to provide evidence. They will be afforded the same privileges and immunities as they would be in a court of law. The Chairman may also request any relevant documents pertaining to the alleged breach to be presented before the Committee. Failure to present before the Committee, answer questions or provide relevant documents can be found to be an offence.
A report of the proceedings will be produced by the Committee and issued to the Member named in the complaint and the complainant. If it concludes that the Member has breached the Ethics Acts it will also lay the report before the Dáil Éireann. The Committee can propose a motion to censure, suspend or financially penalise a Member.
The Committee is responsible for drafting compliance guidelines for Members in relation to the Ethics Acts (in consultation with the Standards Commission and the Committee on Members’ Interests of the Seanad Éireann), drawing up a code of conduct for non-office holders (following consultation with the Standards Commission) and conducting investigations into alleged breaches of statements of interest. The Committee also provides Members with advice in relation to the Ethics Acts. The code of conduct drawn up by the Committee focuses on the standards of conduct and integrity that must be upheld by each Member of the Dáil Éireann and it provides an advisory role to Members in this regard.
Register of financial interests – Register of Members’ Financial Interests – 10 December 2009 (Part 1 and Part 2) http://www.publications.parliament.uk/pa/cm/cmregmem/memi02.htm
New code of conduct relating to Members’ financial interests to be prepared by the IPSA
Allowances – The Green Book July 2009: A guide to Members’ allowances http://www.parliament.uk/documents/upload/GreenBook.pdf
New allowances scheme to be prepared by the IPSA
Code of conduct (ethics) – The Code of Conduct together with The Guide to the Rules relating to the Conduct of Members http://www.publications.parliament.uk/pa/cm/cmpocrules.htm
Register of financial interests – Code of Conduct for MSPs http://www.scottish.parliament.uk/msp/conduct/index.htm
Allowances – Members Expenses Scheme http://www.scottish.parliament.uk/msp/MSPAllowances/index.htm
Code of conduct (ethics) - Code of Conduct for MSPs http://www.scottish.parliament.uk/msp/conduct/index.htm
Register of financial interests – National Assembly for Wales Code of Conduct for Assembly Members
http://www.assemblywales.org/memhome/mem-commissioner-standards/cod-ymddygiad.htm
Allowances – subject to a set of rules known as ‘The Determination’ (updated annually)
http://www.assemblywales.org/nafw_members_officers_salaries_allowances_determination_2009.pdf
Code of conduct (ethics) - National Assembly for Wales Code of Conduct for Assembly Members
http://www.assemblywales.org/memhome/mem-commissioner-standards/cod-ymddygiad.htm
Register of financial interests – Guidelines on compliance with the provisions of the Ethics in Public Office Acts, 1995 and 2001 (office holders)
http://www.sipo.gov.ie/en/Guidelines/EthicsActs/OfficeHolders/
Code of conduct (ethics) – Code of conduct for Members of the Dáil Éireann other than office holders
http://www.oireachtas.ie/viewdoc.asp?fn=/documents/press/codeofconduct.htm
Independent Parliamentary Standards Authority Chair and members (http://www.parliamentarystandards.org.uk/index.html)
Professor Sir Ian Kennedy is a lawyer who has also lectured and written on the law and ethics of healthcare. He is Emeritus Professor of Health Law, Ethics and Policy at the School of Public Policy, University College of London and Visiting Professor at the London School of Economics. He was Chairman of the Healthcare Commission, the public watchdog in health services provision, and was the leader of the public enquiry into the deaths in children’s heart surgery at the Bristol Royal Infirmary (1998-2001). He also chaired the Nuffield Council on Bioethics and is currently Chair of the UK Research Integrity Office.
A High Court Judge in the Family Division (1988-92) before transferring to the Queen’s Bench Division in 1992. He became a Lord Justice of Appeal in 2002 and has been a member of the Government Committee of Inquiry into Human Fertilisation (the Warnock Committee) and a member of the Parole Board. He sat as coroner for the inquests into the deaths of Diana, Princess of Wales and Dodi Fayed in 2007 and 2008.
Professor Isobel Sharp CBE is a partner at Deloitte LLP and a Visiting Professor at the University of Edinburgh Business School. She was President of The Institute of Chartered Accountants of Scotland for 2007/8 and has served on the UK Accounting Standards Board and the Financial Reporting Review Panel. Professor Sharp was awarded a CBE in 2009 for services to the accountancy profession. She was a member of the Independent Review of Parliamentary Allowances group which reported in March 2008 on the Reimbursement of Expenses for Members of the Scottish Parliament.
The Liberal Democrat MP for Taunton from 1997-2001. Between 2002 and 2007 she was Director General of the Royal Society for the Prevention of Cruelty to Animals. In 2007 she took up the post as CEO of the Royal National Institute for the Deaf.
A businessman who worked at IBM (UK) and Wang Laboratories before founding technology merchant bank Interregnum. He now leads Restoration Partners. He serves on the boards of Thomson Reuters, Eurasian Natural Resources Corporation (ENRC). He is Chairman of Thames Reach, a charity focused on ending street homelessness in London by 2012. He is a Warden of the Worshipful Company of Information Technologists, a Vice President of the British Computer Society and a member of the Government’s Women’s Enterprise Task Force. He was an inaugural member of the Postal Services Commission from 2000-2004, a board member with Open Text, and a Governor of the Peabody Trust.
[1] The Parliamentary Standards Act 2009 (Chapter 13) is available at http://www.opsi.gov.uk/acts/acts2009/ukpga_20090013_en_1
[2] House of Lords, Parliamentary Standards Bill: implications for Parliament and the courts Report (2009), p3, retrieved 10 December 2009 http://www.publication.parliament.uk/pa/ld200809/ldselect/ldconst/134/134.pdf
[3] House of Commons Library, Parliamentary Standards Bill Research Paper 09/61 (25 June 2009), p25, retrieved 23 December 2009
[4] House of Commons Library, Parliamentary Standards Bill Research Paper 09/61 (25 June 2009), p5, retrieved 23 December 2009
[5] Independent Parliamentary Standards Authority appointment information is available at http://www.parliamentarystandards.org.uk/faqs.html
[6] Parliamentary Standards Act, Explanatory Notes (2009), p9, retrieved 10 December 2009 http://www.opsi.gov.uk/acts/acts2009/en/ukpgaen_20090013_en.pdf
[7] House of Commons Library, Parliamentary Standards Bill Research Paper 09/61 (25 June 2009), p34, retrieved 23 December 2009
[8] Parliamentary Standards Act 2009 (Chapter 13) s 2 (3)
[9] Parliamentary Standards Act 2009 (Chapter 13) s 9 (2)
[10] Parliamentary Standards Act 2009 (Chapter 13) s 9 (4) to (8)
[11] Parliamentary Standards Act 2009 (Chapter 13) s 9 (11) and (12)
[12] The House of Commons, The Code of Conduct together with The Guide to the Rules relating to the conduct of Members, p41, retrieved 15 December 2009 http://www.publications.parliament.uk/pa/cm200809/cmcode/735/735.pdf
[13] House of Lords, Parliamentary Standards Bill: implications for Parliament and the courts Report (2009), p10, retrieved 10 December 2009 http://www.publication.parliament.uk/pa/ld200809/ldselect/ldconst/134/134.pdf
[14] House of Lords, Parliamentary Standards Bill: implications for Parliament and the courts Report (2009), p12, retrieved 10 December 2009 http://www.publication.parliament.uk/pa/ld200809/ldselect/ldconst/134/134.pdf
[15] House of Commons, Standing Order 149 Committee on Standards and Privileges is available at http://www.publications.parliament.uk/pa/cm200607/cmstords/405/40523.htm
[16] The Code of Conduct for MSPs is available at http://www.scottish.parliament.uk/msp/conduct/coc-v2-2.htm#top
[17] The Scottish Parliamentary Standards Commissioner Act 2002 is available at http://www.opsi.gov.uk/legislation/scotland/acts2002/asp_20020016_en_1
[18] The Scottish Parliamentary Standards Commissioner information is available at http://www.spsc.co.uk/who.htm
[19] Scottish Parliamentary Standards Commissioner Act 2002 s 3 (1)
[20] Scottish Parliamentary Standards Commissioner Act 2002 s 4 (1)
[21] Scottish Parliamentary Standards Commissioner Act 2002 s 4 (3)
[22] Scottish Parliamentary Standards Commissioner Act 2002 s 1 (2) to (5)
[23] Scottish Parliamentary Standards Commissioner Act 2002 s 7
[24] Scottish Parliamentary Standards Commissioner Act 2002 s 5 (1)
[25] Scottish Parliamentary Standards Commissioner Act 2002 s 6 (5)
[26] Scottish Parliamentary Standards Commissioner Act 2002 s 9 (3)
[27] Standing Orders of the Scottish Parliament, Rule 6.4 is available at http://www.scottish.parliament.uk/business/so/sto-3.htm
[28] The remit and responsibilities of the Standards, Procedures and Public Appointments Committee is available at http://www.scottish.parliament.uk/s3/committees/stanproc/responsibilities.htm
[29] The National Assembly for Wales Commissioner for Standards Measure 2009 s 2 http://www.opsi.gov.uk/legislation/wales/mwa2009/pdf/mwa_20090004_en.pdf
[30] The National Assembly for Wales Commissioner for Standards Measure 2009 s 6 (3)
[31] National Assembly for Wales, Draft Proposed Measure on Commissioner for Standards – Explanatory Memorandum, p 25, retrieved 15 December 2009 http://www.assemblywales.org/bus-home/bus-committees/bus-committees-other-committees/bus-committees-third-std-home/bus-committees-third-soc-project/soc_3_-sc2.htm
[32] The National Assembly for Wales Commissioner for Standards Measure 2009 s 5
[33] National Assembly for Wales, Draft Proposed Measure on Commissioner for Standards – Explanatory Memorandum, p 3, retrieved 15 December 2009 http://www.assemblywales.org/bus-home/bus-committees/bus-committees-other-committees/bus-committees-third-std-home/bus-committees-third-soc-project/soc_3_-sc2.htm
[34] The National Assembly for Wales Commissioner for Standards Measure 2009 s 1 (3)
[35] The National Assembly for Wales Commissioner for Standards Measure 2009 s 1 (7)
[36] The National Assembly for Wales Commissioner for Standards Measure 2009 s 1 (8)
[37] The National Assembly for Wales Commissioner for Standards Measure 2009 s 9
[38] Committee on Standards of Conduct information is available at http://www.assemblywales.org/bus-home/bus-committees/bus-committees-other-committees/bus-committees-third-std-home.htm
[39] The National Assembly for Wales Commissioner for Standards Measure 2009 s 13
[40] The National Assembly for Wales, Procedure for Dealing with Complaints against Assembly Members (2008), p8, retrieved 31 December 2009 http://www.assemblywales.org/memhome/mem-commissioner-standards/mem-complaint-procedure.htm
[41] National Assembly for Wales, Standing Order 16 Committee on Standards of Conduct is available at http://www.assemblywales.org/bus-docs-third-standingorders.pdf
[42] Standards in Public Office Commission information is available at http://www.sipo.gov.ie/en/AboutUs/
[43] Information on the functions of the Standards Commission under the Electoral Acts is available at http://www.sipo.gov.ie/en/AboutUs/Functions/
[44] Information on the functions of the Standards Commission under the Party Leaders Allowance Act is available at http://www.sipo.gov.ie/en/AboutUs/Functions/
[45] The Standards in Public Office Commission investigation of complaints under the Ethics Acts http://www.sipo.gov.ie/en/Complaints/ComplaintsProcedures/InvestigationofcomplaintsundertheEthicsActsandElectoralActs/
[46] The Standards in Public Office Act 2001 is available at http://www.irishstatutebook.ie/2001/en/act/pub/0031/index.html
[47] Standards in Public Office Commission, Investigations under the Ethics in Public Office Acts 1995 and 2001 and the Local Government Act 2001 Statement of Intended Procedures (2006), p4, retrieved 21 December 2009 http://www.sipo.gov.ie/en/GeneralPublications/InvestigationProtocol/
[48] The Standards in Public Office Act 2001 s 2 (2)
[49] The Standards in Public Office Act 2001 s 2 (2H)
[50] Standards in Public Office Commission, Investigations under the Ethics in Public Office Acts 1995 and 2001 and the Local Government Act 2001 Statement of Intended Procedures (2006), p4, retrieved 21 December 2009 http://www.sipo.gov.ie/en/GeneralPublications/InvestigationProtocol/
[51] The Standards in Public Office Act 2001 s 6 (3)
[52] Standards in Public Office Commission, Investigations under the Ethics in Public Office Acts 1995 and 2001 and the Local Government Act 2001 Statement of Intended Procedures (2006), p12, retrieved 21 December 2009 http://www.sipo.gov.ie/en/GeneralPublications/InvestigationProtocol/
[53] The Standards in Public Office Act 2001 s 17
[54] The Ethics in Public Office Act 1995 s 24 (1)
(1) On behalf of the Assembly Commission, we intend to provide an outline to the Committee of the background to Part 1 of the Bill and its general provisions. We are grateful for the opportunity to begin this process of engagement with the Committee in considering the Assembly Members (Independent Financial Review and Standards) Bill.
(2) The issue of financial support for Members of this Assembly and for Members in other legislatures has been the focus of increased public and media scrutiny in recent years. A high level of criticism has been levelled at the lack of independence in the process for determining the salaries, allowances and pensions for Members. By bringing forward this Bill, the Assembly seeks to establish a wholly independent process for the determination of the future financial support requirements for MLA’s.
(3) On 4th May 2007, prior to the restoration of devolution, the Secretary of State wrote to the Chairman of the Review Body on Senior Salaries (SSRB) seeking its agreement to conduct a review of the existing structure for salaries, expenditure and pension benefits payable to Members and office holders of the Northern Ireland Assembly.
(4) The SSRB, which completed its report in November 2008, recommended that the Northern Ireland Assembly should commit to accepting the outcome of future independent reviews on salaries, allowances and pensions without modification, thereby respecting the impartiality of the external review process. This reflected the desire of Members to be distanced from deciding their own salaries and financial support arrangements. Indeed, in joint meetings between the Assembly Commission and Party Leaders there was a consensus view that a move to establish an independent body, in line with other legislatures, would be a positive step towards greater openness and transparency in this area.
(5) After considering this report, the Assembly Commission supported the recommendation that consideration should be given to the establishment of an independent mechanism for the future determination of salaries, pensions and financial support for Members.
(6) To take this forward the Assembly Commission recommended that an amendment to the Northern Ireland Act 1998 should be made to enable the Northern Ireland Assembly to delegate in its entirety the function of determining salaries, pensions and financial support to an independent statutory body.
(7) The legal framework for determining and paying salaries, allowances, pensions and gratuities is governed by sections 47 and 48 of the Northern Ireland Act 1998.
(8) Section 48 allows for provision for the payment of pensions, gratuities and allowances to former Members or office holders to be delegated by the Northern Ireland Assembly. However, until recently, section 47, which governs the determination and payment of Members’ salaries and allowances, explicitly prevented the Northern Ireland Assembly from delegating the function of making a determination.
(9) The Northern Ireland Assembly Members Act 2010, which received Royal Assent on the 8th April 2010, amended sections 47 and 48 of the Northern Ireland Act 1998 and allows the Northern Ireland Assembly to continue to determine salaries and allowances in respect of Members or to delegate this function to an independent body. The Assembly Commission recommended that a Bill should be brought forward to establish an independent statutory body in its report entitled “Report on the Financial Support and Pensions for Members of the Northern Ireland Assembly" dated 22nd June 2010.
(10) The Assembly Commission launched a public consultation on 1st June 2010 inviting comments on the establishment of an independent body and on the functions, objectives, governance and budget arrangements of the body. Two responses were received, from Sinn Féin and CIPFA respectively.
(11) The Assembly Commission also conducted an equality screening exercise in respect of the proposal to establish an independent body and this screening exercise did not reveal any significant differential impact on any of the groups set out in section 75 of the Northern Ireland Act 1998.
(12) Similar independent bodies have been established in Wales, namely the National Assembly for Wales Remuneration Board which was established by the National Assembly for Wales (Remuneration) Measure 2010 and in England, namely the Independent Parliamentary Standards Authority (IPSA) which was established by the Parliamentary Standards Act 2009.
(13) The Bill is in two parts. Part 1 of the Bill will establish the Independent Financial Review Panel (the Panel) and Part 2 will establish the Northern Ireland Assembly Commissioner for Standards.
(14) The Panel will consist of a Chair and two other members and will have the power to determine all aspects of financial support in respect of Members of the Northern Ireland Assembly. This means that the Panel will determine the salaries and allowances payable to Members of the Northern Ireland Assembly under section 47 of the Northern Ireland Act 1998 and the pensions, gratuities and allowances payable to former Members of the Northern Ireland Assembly and office holders under section 48 of the Northern Ireland Act 1998.The Assembly Commission will retain the administration of the salaries and expenditure.
(15) The Panel is required to exercise its functions with a view to achieving a proper balance between the objective of ensuring probity, accountability and value for money with respect to the expenditure of public funds and the objective of securing an adequate level of remuneration for Members which allows them to discharge their functions effectively.
(16) Pursuant to clause 3 of the Bill, the Panel is independent and shall not, in the exercise of its functions, be subject to the direction or control of the Assembly or the Assembly Commission. In addition, the Panel is required to exercise its functions in an open and accessible manner.
(17) The Assembly Commission will be responsible for the appointment of the Panel members but Members of the Northern Ireland Assembly will not be members of the appointment panel. Each appointment will be for a term of five years.
(18) In order to ensure that the Panel is independent of Members, a broad range of connections to the Northern Ireland Assembly or individual Members will result in disqualification from eligibility. Schedule 1 of the Bill makes provision as to the persons who are disqualified from being appointed as or serving as Panel members.
(19) The appointment of a person as a Panel member ceases under the circumstances set out at clause 6 of the Bill. The Commission may dismiss a person from office on any of the grounds set out at clause 6 (2) of the Bill.
(20) The Panel is required to issue a Code of Conduct for its members under clause 7 of the Bill.
(21) Clause 8 and Schedule 2 of the Bill make administrative and financial provision about the Panel and Clause 9 requires the panel to provide an annual report to the Assembly Commission.
(22) The general rule will be that a determination will be made by the Panel only once in each Assembly. Further determinations may be made as necessary to take account of changes in the law and practice relating to pensions or exceptional circumstances. Unless there are changes in the law and practice relating to pensions or exceptional circumstances, there will not be a determination where there is less than a year between an ordinary general Assembly election and an extraordinary Assembly election.
(23) The Panel will be required, so far as is reasonably practicable; to make its determination before the election of the Assembly in relation to which the determination relates, although a determination will survive until a new determination is made replacing it. This will allow candidates and the electorate to know, in advance of an election, what financial support will be available to an elected candidate.
(24) The Panel must communicate the determination to the Assembly Commission as soon as reasonably practicable after it has been made and the Assembly Commission must publish the determination in full. The Assembly Commission cannot amend the determination.
(25) To ensure that the Panel operates in as cost effective way as possible, Schedule 2 of the Bill provides that the Assembly Commission must provide the Panel or ensure that the Panel is provided with such administrative support, including staff, services and accommodation as the Panel reasonably requires to discharge its functions. The Commission is however obliged to consult the Panel about such support to ensure that such provision, in particular the duties of the staff of the Assembly and the separation of the Panel’s work from the business of the Northern Ireland Assembly or of the Assembly Commission does not call into question the Panel’s independence.
(26) The Assembly Commission must pay such sums as are payable in accordance with the Panel members’ terms and conditions of appointment and pay any expenses properly incurred by the Panel.
(27) We will be recommending a small number of minor drafting amendments to Part 1 of the Bill – these will be submitted to the Committee for consideration prior to the informal clause by clause consideration due to take place on the 15th December 2010.
(28) A Delegated Powers Memorandum has been submitted to the Committee in respect of clause 5 (2) of the Bill.
(29) Financial costs in relation to the initial establishment of the Panel have been estimated at £15,000 based on the fair and open competition to recruit the three Panel members and start up office costs. It is estimated that the Panel could incur costs of up to a maximum of £100,000 in the first year of its establishment. The Panel would incur much more modest costs of £15,000 per annum in the other three years. It should be noted that both of these estimates include the cost of administrative support to the Panel but it is expected that this could be provided by existing staff of the Assembly Commission.
(1) The Committee on Standards and Privileges is grateful for the opportunity to begin this process of engagement with the Ad Hoc Committee in considering the Assembly Members (Independent Financial Review and Standards) Bill. On behalf of the Committee on Standards and Privileges, it is intended that the Chairperson (Mr Declan O’Loan MLA) will provide an outline to the Ad-Hoc Committee of the background to Part 2 of the Bill and its general provisions. The Chairperson will be supported by the Clerk to the Committee on Standards and Privileges (Mr Paul Gill). The Senior Legal Adviser from the Assembly’s Legal Services (Ms Tara Caul) will also attend.
(2) All Members of the Assembly are required to comply with the requirements of the Assembly’s Code of Conduct and Guide to the Rules Relating to the Conduct of Members (“the Code of Conduct"). The Assembly agreed a new Code of Conduct which came into effect in October 2009. Following this, the Committee on Standards and Privileges (“the Committee") began an inquiry into enforcing the Code of Conduct and the appointment of a Northern Ireland Assembly Commissioner for Standards (“the Commissioner). The aim of the inquiry was to establish the most appropriate means of maintaining the Code of Conduct and handling alleged breaches in relation to it.
(3) The Assembly has had for a number of years an interim arrangement to ensure that allegations of misconduct by Assembly Members would be independently investigated. A previous Committee on Standards and Privileges had concluded that the Office of the Assembly Ombudsman was well placed and equipped to discharge the functions of the Commissioner on an interim basis. This interim arrangement is the arrangement that is still in place today and the current Committee is extremely grateful to the Ombudsman and his office for the diligent service that they have provided and continue to provide.
(4) As part of this inquiry the Committee considered models dealing with the investigation of allegations of misconduct by elected Members in other legislatures. It also carried out a consultation and received written submissions and oral evidence from key stakeholders. These helped the Committee to conclude that, in relation to handling alleged breaches of the Code of Conduct, it was appropriate that an independent Commissioner should carry out investigations into complaints; that the Committee should determine whether a breach had occurred; and the Assembly should impose sanctions where appropriate. The Committee also concluded that legislation was required and that the Commissioner’s role, powers and independence from the Assembly in respect of specific investigations should all be set out on a statutory basis. In addition, the Committee also agreed that the Commissioner should have the power to initiate an investigation if the Commissioner believes that a breach of the Code of Conduct may have occurred.
(5) The Assembly endorsed these conclusions when it approved the Committee’s report on the inquiry on 1 June 2010. The Committee on Standards and Privileges subsequently agreed that the necessary legislative provisions could be included in the bill being prepared by the Assembly Commission in respect of the Independent Financial Review Panel.
(6) The Bill is in two parts. Part 1 of the Bill will establish the Independent Financial Review Panel (the Panel) and Part 2 will establish the Northern Ireland Assembly Commissioner for Standards.
(7) Clause 16 provides for the Commissioner: the official title will be the Northern Ireland Assembly Commissioner for Standards. Clause 17 sets out the Commissioner’s functions as being to receive and investigate complaints and referrals concerning Members’ conduct, to initiate investigations, and to report the outcome to the Assembly. The Commissioner may also be asked to give advice on matters of general principle.
(8) There are therefore three different scenarios that can lead to the Commissioner carrying out an investigation. Firstly, there is the scenario of when a complaint is made to the Commissioner that a Member has breached the Code of Conduct. Secondly, there is the scenario of when a matter is referred to the Commissioner as per any agreed provision of Standing Orders. Thirdly, there is the scenario of the Commissioner initiating an investigation if the Commissioner believes that a breach of the Code of Conduct may have occurred.
(9) The general nature of the second scenario allows for the Commissioner to be a more wide-ranging investigative resource for the Assembly in relation to Members’ conduct. For example, the Assembly has already agreed that the Commissioner should be able to carry out investigations into matters relating to the conduct of Members on a referral from the Clerk/Director General in respect of issues relating to the Clerk/Director General’s role as Accounting Officer (e.g. a potential misuse by a Member of Assembly allowances). Standing Orders would have to be amended to provide for this. It is possible that in the future the Assembly might identify additional conduct issues that it wished the Commissioner to be able to investigate and, as long as Standing Orders were amended to allow for this to happen, the Commissioner would have the authority to carry out such investigations.
(10) The provision for the third scenario – which allows for the Commissioner to initiate his or her own investigation – was considered to be very important by the Committee. The Committee feels it is not acceptable that where there are significant, legitimate and evidential concerns in relation to the conduct of Members but where no formal complaint has been made that no investigation should be carried out. If there was no investigation in such circumstances it would undermine public confidence in the integrity of the Assembly.
(11) The Committee on Standards in Public Life share this view. When Sir Christopher Kelly gave evidence to the Committee during its inquiry he specifically recommended that a Commissioner should be able to initiate an investigation. An elected public representative should not be able to evade scrutiny in circumstances in which there is clearly a case to answer but where no complaint has been made.
(12) Clause 18 provides for the Commissioner’s independence. The independence of the Commissioner in carrying out investigations and coming to conclusions is a crucial aspect of the credibility of the accountability arrangements for Members. The Commissioner shall therefore not be subject to the direction or control of the Assembly, except to the extent allowed under Clause 24.
(13) Clause 24 requires the Commissioner to comply with directions given by the Assembly. It is envisaged that there will be two types of directions: those which will set a general procedural framework to ensure that the Commissioner carries out his or her functions in a consistent and procedurally fair manner; and those that will ensure that the Commissioner complies with codes of conduct etc and is open and transparent about financial and other interests. It is important to emphasise, however, that a direction under Clause 24 cannot in any way interfere with how the Commissioner carries out any specific investigation.
(14) Clause 19 provides for the Commissioner to be appointed by the Assembly for a term of five years. A person may only be appointed to serve as Commissioner once. The Assembly will be responsible for ensuring that the Commissioner is appointed by way of fair and open competition and for determining appointment criteria and the terms of appointment.
(15) In order to ensure that the Commissioner is both independent and seen to be independent, a broad range of connections to the Northern Ireland Assembly or individual Members will result in disqualification from eligibility. Schedule 3 (provided for by Clause 20 of the Bill) makes provision as to the persons who are disqualified from being appointed as or serving as the Commissioner.
(16) Clause 21 provides for the circumstances in which the Commissioner will cease to hold appointment or may be dismissed. Under certain circumstances, the Commissioner will automatically cease to hold office. The Assembly may also by resolution dismiss the Commissioner.
(17) Clause 22 and Schedule 4 of the Bill make administrative and financial provision about the Commissioner. Under Schedule 4 the Commission must provide the Commissioner with such administrative support, including staff, services and accommodation as the Commissioner reasonably requires. Schedule 4 also provides the Commissioner with a general power calculated to facilitate the discharge of the Commissioner’s functions. It also requires the Commissioner to provide the Commission with financial information and to lay an annual report before the Assembly.
(18) Clause 23 enables the Assembly to appoint an Acting Commissioner to discharge any or all of the Commissioner’s functions, if for some reason the Commissioner is unable to act. The disqualifications applicable to the Commissioner will apply also to the Acting Commissioner and the clause also provides for the Acting Commissioner’s resignation and removal.
(19) Clause 25 provides for the Commissioner to determine the procedure and timing for any specific investigation and reporting its outcome to the Assembly, albeit with an agreed general procedural framework set out in a direction under Clause 24. Clause 26 allows the Assembly (in practice, the Committee on Standards and Privileges), following receipt of a report from the Commissioner, to be able to request the Commissioner to carry out further investigations. However, the Commissioner does not have to carry out further investigation if the Commissioner concludes that such investigation would be unnecessary.
(20) Clause 27 provides that a report by the Commissioner may make recommendations, but will not be able to recommend the imposition of a specific sanction on any Member. The clause also provides for the Commissioner’s reports to be published.
(21) Clause 28 provides for the Commissioner to have the power to require witnesses to attend and give evidence or to provide documents in similar manner to the power of the Northern Ireland Assembly. A prospective witness will therefore not be obliged to answer a question or produce a document which would not have to be answered or produced in court. Clause 31 provides for there to be a number of offences in relation to refusals to provide or otherwise failing to give evidence in accordance with a request under Clause 28. Maximum penalties for an offence under this clause will be a fine up to level 5 (£5,000) on the standard scale or three months’ imprisonment. There is provision for the prosecution of company directors who have consented to non-compliance by a company.
(22) Clause 32 provides that, for the purposes of the law of defamation, statements by the Commissioner will attract absolute privilege and statements to the Commissioner will have qualified privilege.
(23) Clause 22 provides that information disclosed to the Commissioner in the course of an investigation will not be disclosed by or on behalf of the Commissioner except for the purpose of enabling the Commissioner to discharge functions or in connection with the investigation or prosecution of an offence.
(24) It is likely that the Committee will be recommending a small number of minor drafting amendments and clarifications to Part 2 of the Bill – these would be submitted to the Committee for consideration prior to the informal clause by clause consideration due to take place on the 15th December 2010.
(25) A Delegated Powers Memorandum has been submitted to the Committee in respect of Clause 20 (2) and Clause 38 (2) of the Bill.
(26) Financial costs in relation to the initial establishment of the Commissioner have been estimated at £10,000 based on the fair and open competition to recruit the Commissioner and start up office costs. The annual recurring costs of the Commissioner are expected to total £25,000 based on the current level of investigations. It should be noted that this estimate includes the cost of administrative support to the Commissioner but it is expected that this could be provided by existing staff of the Assembly Commission.
The Committee on Standards and Privileges is appointed by the House of Commons to oversee the work of the Parliamentary Commissioner for Standards; to examine the arrangements proposed by the Commissioner for the compilation, maintenance and accessibility of the Register of Members’ Interests and any other registers of interest established by the House; to review from time to time the form and content of those registers; to consider any specific complaints made in relation to the registering or declaring of interests referred to it by the Commissioner; to consider any matter relating to the conduct of Members, including specific complaints in relation to alleged breaches in the Code of Conduct which have been drawn to the Committee’s attention by the Commissioner; and to recommend any modifications to the Code of Conduct as may from time to time appear to be necessary.
Rt hon Kevin Barron MP (Labour, Rother Valley) (Chair)
Sir Paul Beresford MP (Conservative, Mole Valley)
Annette Brooke MP (Liberal Democrat, Mid Dorset and North Poole)
Rt hon Tom Clarke MP (Labour, Coatbridge, Chryston and Bellshill)
Mr Geoffrey Cox MP (Conservative, Torridge and West Devon)
Mr Jim Cunningham MP (Labour, Coventry South)
Matthew Hancock MP (Conservative, West Suffolk)
Mr Oliver Heald MP (Conservative, North East Hertfordshire)
Heather Wheeler MP (Conservative, South Derbyshire)
Dr Alan Whitehead MP (Labour, Southampton Test)
The constitution and powers of the Committee are set out in Standing Order No. 149. In particular, the Committee has power to order the attendance of any Member of Parliament before the committee and to require that specific documents or records in the possession of a Member relating to its inquiries, or to the inquiries of the Commissioner, be laid before the Committee. The Committee has power to refuse to allow its public proceedings to be broadcast.
The Law Officers, if they are Members of Parliament, may attend and take part in the Committee’s proceedings, but may not vote.
The Reports and evidence of the Committee are published by The Stationery Office by Order of the House. All publications of the Committee (including press notices) are on the Internet at: www.parliament.uk/sandp.
The current staff of the Committee are Mr Steve Priestley (Clerk),
Miss Rhiannon Hollis (Second Clerk) and Ms Jane Cooper (Committee Assistant).
All correspondence should be addressed to The Clerk of the Committee on Standards and Privileges, Journal Office, House of Commons, London SW1A 0AA.
The telephone number for general enquiries is 020 7219 6615.
Background
The case for a new power
Possible adverse consequences and how to avoid them
Recommendation
1. In its Twelfth Report, published in November 2009, the Committee on Standards in Public Life (CSPL) recommended that the Parliamentary Commissioner for Standards should have power to initiate an investigation into whether a Member may have breached the rules of the House or the Code of Conduct, without receiving a complaint.1 At present, the Commissioner may investigate a matter only after receiving a formal complaint or, in exceptional circumstances and with the agreement of this Committee, at the request of the Member concerned.2 Both the House of Lords Commissioner for Standards and the Independent Parliamentary Standards Authority (IPSA) Compliance Officer have the power to investigate a matter without receiving a formal complaint.
2. The CSPL argued that “it would be sensible to increase the powers of the Parliamentary Commissioner for Standards by allowing him or her to conduct investigations proactively without waiting for a formal complaint."3 It did not elaborate on why the change would be “sensible", but our predecessor Committee did not dissent from this view and neither do we.4 There would appear to be no logic in the House of Commons’ Commissioner having fewer powers to initiate investigations than are possessed by his counterparts.
3. In addition, it is necessary in our view that the Commissioner should be able to carry out an inquiry pursuant to a finding by the Compliance Officer that a Member has breached the current House of Commons Allowances Scheme. Under the Parliamentary Standards Act 2009 as amended, the Compliance Officer has power to require reimbursement by a Member of sums that have wrongly been paid to him. The Compliance Officer also has limited powers to recover costs, although neither the Compliance Officer nor IPSA have power to impose a Parliamentary sanction on a Member, such as suspension of salary or suspension from the service of the House. Neither may they require a Member to apologise in person, on the floor of the House. Only the House may impose such a sanction. It does so following a recommendation to that effect by this Committee.
4. We therefore see a need for the Commissioner, who is independent of the Committee, to be able to form a view, if necessary following an investigation, as to whether a case reported on by the Compliance Officer may have involved a breach of the rules of the House or of the Code of Conduct. We anticipate that the Compliance Officer will wish to refer to the Commissioner any case which in his judgment raises issues which the House should be invited to consider. However, the decision whether to carry out an investigation into a possible breach should be for the Commissioner, who should base his decision, as he bases his decisions in relation to complaints, on whether there is sufficient evidence to justify taking the matter further. Where he finds that there has been a breach of the rules of the House or of the Code of Conduct, he will be able to make a report to this Committee, so that we may decide what if any Parliamentary sanction to recommend to the House.
5. The change we are proposing to the Standing Order would also bring the Standing Order into line with the procedure approved by the House in the Guide to the Rules, which allows the Commissioner in exceptional circumstances to accept, with the agreement of the Committee, a request by a Member for an investigation into an allegation against him or her in the absence of a complaint.5 If the proposed change is made, the Commissioner will be able, if he sees fit, to accept a Member’s request as providing sufficient evidence to justify taking the matter further. Nonetheless, we suggest that the Commissioner should still seek the agreement of the Committee before he accepts a Member’s self-referral request. Investigations into matters referred by the Member concerned should continue to be undertaken in exceptional circumstances only, which would normally relate to the seriousness of the allegation against the Member. We do not wish the Commissioner’s resources to be monopolised by Members seeking to clear their names against allegations that may lack substance.
6. Our predecessor Committee drew attention to the possibility that providing the Commissioner with a power to initiate investigations in the absence of a complaint might require a significant increase in the resources available to him.6 We agree that there is a risk that the creation of a power for the Commissioner to initiate investigations might encourage public expectations that each and every media report alleging impropriety by a Member will be fully investigated or that the Commissioner will go on fishing expeditions for evidence of breaches. The resource implications of this would, indeed, be potentially enormous. There is also a risk that the effectiveness of the Commissioner’s operations would be damaged. We are concerned to avoid such a situation arising.
7. Our predecessors recognised this danger by observing that it would be particularly important for there to be a firm evidential basis for any decision by the Commissioner to carry out an investigation in the absence of a complaint. We agree, and our proposed amendment to the Standing Order takes full account of this important requirement. Nonetheless, we trust that the House will continue to provide the Commissioner with the resources he needs to discharge fully the responsibilities placed upon him and we would expect him to inform us immediately were he to feel that necessary resources were lacking.
8. We recommend that Standing Order No 150 be amended, by leaving out paragraph (1)(e) and inserting in its place:
(e) to investigate, if he thinks fit, specific matters which have come to his attention relating to the conduct of Members and to report to the Committee on Standards and Privileges or to an appropriate sub-committee thereof unless the provisions of paragraph (3) apply.
(2A) In determining whether to investigate a specific matter relating to the conduct of a Member the Commissioner shall have regard to whether in his view there is sufficient evidence that the Code of Conduct or the rules relating to registration or declaration of interests may have been breached to justify taking the matter further.
Members present:
Mr Kevin Barron, in the Chair
Sir Paul Beresford
Annette Brooke
Mr Tom Clarke
Matthew Hancock
Mr Oliver Heald
Heather Wheeler
Dr Alan Whitehead
Draft Report (Power of the Parliamentary Commissioner for Standards to initiate investigations), proposed by the Chair, brought up and read.
Ordered, That the Chair’s draft Report be read a second time, paragraph by paragraph.
Paragraphs 1 to 8 read and agreed to.
Resolved, That the Report, as amended, be the Seventh Report of the Committee to the House.
Ordered, That the Chair make the Report to the House.
[Adjourned till Tuesday 16 November at 9.30 am
Clause 11 (6), Page 4, line 37
Leave out “this Act" and insert “this Part"
Clause 13 (2) (a), Page 6, line 14
Leave out “such"
Schedule 5, paragraph 1, page 20, line 13
Leave out “the Schedule" and insert “Schedule 1"
Committee on Standards and Privileges
Room 284, Parliament Buildings
Tel: 028 9052 0333
Fax: 028 9052 5917
17.—(1) The functions of the Commissioner are—
(a) where a person has made a complaint or referral to which subsection (2) applies, to investigate the complaint or referral in accordance with the provisions of this Part;
(b) to initiate an investigation in accordance with the provisions of this Part if the Commissioner believes that, at a relevant time, a breach of the Code of Conduct may have occurred;
(c) to report to the Assembly on the outcome of any investigation under this section; and
(d) on the Commissioner’s own initiative, or if requested by the Assembly, to give advice on any matter of general principle relating to standards of conduct of members of the Assembly.
(2) This subsection applies to—
(a) a complaint to the Commissioner that, at a relevant time, a breach of the Code of Conduct has occurred;
(b) a referral to the Commissioner made by any person specified in the standing orders as being a person who may make referrals in relation to any matter specified in the standing orders as being a matter in respect of which the Commissioner must carry out an investigation.
(3) In this section—
“the Code of Conduct" means—
(a) any code of conduct for members of the Assembly, and
(b) any guide to the rules relating to the conduct of members of the Assembly,
which has been agreed to by the Assembly; and
a “relevant time" means a time (whether before or after this section comes into operation) when the requirement to comply with the Code of Conduct was in force.
31. -(1) Subject to section 28(3), a person to whom a notice has been given under section 29(1) who -
(a) refuses or fails to attend before the Commissioner as required by the notice;
(b) refuses or fails, when attending before the Commissioner as required by the notice, to answer any question concerning any matter specified in the notice;
(c) intentionally alters, suppresses, conceals or destroys any document required to be produced by the notice; or
(d) refuses or fails to produce any such document,
is guilty of an offence.
(2) Any person who refuses to take an oath when required to do so under section 30 is guilty of an offence.
(3) It is a defence for a person charged with an offence under subsection (1)(a), (b) or (d) or subsection (2) to prove that the person had a reasonable excuse for the refusal or failure.
(4) A person guilty of an offence under this section is liable on summary conviction -
(a) to a fine not exceeding level 5 on the standard scale; or
(b) to imprisonment for a period not exceeding 3 months.
34. -(1) This section applies to any complaint or matter which on the day on which section 17 comes into operation -
(a) has been referred to the Assembly Commissioner for Standards; and
(b) is, or but for the provisions of this Part would be, the subject of an investigation by that Commissioner under Standing Order 69A.
(2) On the day on which section 17 comes into operation, any complaint or matter to which this section applies shall be transferred to the Commissioner and -
(a) shall be deemed to have been referred to the Commissioner under section 17; and
(b) Part 2 shall apply to any such matter.
(3) All information which has been obtained by or made available to the Assembly Commissioner for Standards in connection with a complaint or matter to which this section applies shall be transferred or made available to the Commissioner and shall be treated as if it had been received by the Commissioner on a referral under section 17.
(4) In this section “Assembly Commissioner for Standards" means the Assembly Commissioner for Standards established under Standing Order 69A(1).
6. -(1) The Commissioner shall, in relation to any liability which the Commission may be required to discharge under paragraph 4, 5 or 9(b) or (c), consult the Commission and must do so -
(a) if reasonably practicable, before incurring the liability in question,
(b) if not, as soon thereafter as is reasonably practicable.
(2) The Commissioner’s duty to consult the Commission under sub -paragraph (1) may be discharged in relation to a liability either -
(a) by providing the Commission with particulars of the liability in question, or
(b) by notifying the Commission that liabilities may be incurred of such description and maximum total amount as may be specified in the notification.
(3) The Commissioner shall have regard to any representations which the Commission may make when consulted under sub-paragraph (1).
Committee on Standards and Privileges
Room 284, Parliament Buildings
Tel: 028 9052 0333
Fax: 028 9052 5917
To: Shauna Mageean, Clerk to the Ad Hoc Committee
From: Paul Gill, Clerk to the Committee on Standards and Privileges
Tara Caul, Senior Legal Adviser
Date: 13 January 2011
Subject: Amendments to Assembly Members (Independent Financial Review
and Standards) Bill
1. Further to the meeting on 13 December 2010 of the Ad Hoc Committee on the Assembly Members (Independent Financial Review and Standards) Bill, you wrote to us. You advised that the Ad Hoc Committee had indicated that it wished to see the definition of a family member (used in schedules 1 and 3 of the bill) amended. You provided us with a suggested amendment to which the Ad Hoc Committee had indicated assent. Although this suggested amendment did not include the words “whether of the full of half blood", you acknowledged a point which had been made earlier about why these words might be included.
2. The Assembly Commission and the Committee on Standards and Privileges have considered the Ad Hoc Committee’s suggested amendment and both have agreed to table amendments to this effect to schedules 1 and 3 of the bill respectively (albeit with the inclusion of the words “whether of the full of half blood"). The amendment is set out in tracked changes in Appendix 1 of this memo
3. A further issue which arose during the committee meeting on 13 December was instances where there have been similar legislative definitions of family members. A paper has been prepared on this issue and is included at Appendix 2 of this memo.
4. Finally, we wish to draw your attention to a further amendment which the Assembly Commission and Committee on Standards and Privileges have agreed to table respectively to schedules 1 and 3 of the bill. Work is underway to make provision for the Attorney General for Northern Ireland to be able to participate in proceedings of the Assembly. One aspect of this work is providing for the Attorney General to have the same duties as members in respect of the requirement to register interests and declare interests, and to be prohibited in the same way as members from advocating any matter on behalf of anyone else for a payment or benefit.
5. The Committee on Standards and Privileges has agreed with the Attorney General that that the Northern Ireland Assembly Commissioner for Standards should be able to investigate an alleged breach by the Attorney General of any these duties. This will be provided for in standing orders. However, this being the case, the Committee on Standards and Privileges has agreed that it is appropriate that the Attorney General should be disqualified from being the Commissioner, in the same way as a member of the Assembly is disqualified from being the Commissioner. The Assembly Commission has also agreed to include the Attorney General in the schedule of those persons disqualified from being a Panel member. The full detail of the agreed amendment is also included in Appendix 1 of this memo.
6. We are happy to provide further detail on the issues in this memo at the committee on 17 January 2011.
Clerk to the Committee on Standards and Privileges
Senior Legal Adviser
“family member" means—
(a) parent, child, grandparent, grandchild;
(b) brother, sister, uncle, aunt, nephew, niece (whether of the full or half blood);
(c) spouse or any person related to a spouse in any of the ways set out in sub paragraphs (a) or (b);
(d) civil partner or any person related to a civil partner in any of the ways set out in sub paragraphs (a) or (b); and
(e) cohabitant or any person related to a cohabitant in any of the ways set out in sub paragraphs (a) or (b);
Ad Hoc Committee - 17Th January 2011
Family member in relation to a member means:
A spouse, civil partner or cohabiting partner of the member or
A parent, child, grandparent, grandchild, sibling, uncle, aunt, nephew or niece of the member or of his spouse, civil partner or cohabiting partner.
15(2) For the purposes of this Act a person is a member of another’s family if that person is-
(a) The other’s spouse, civil partner, parent, grandparent, child, grandchild, brother, sister, uncle, aunt, nephew or niece, or
(b) They live together as husband and wife or as if they were civil partners.
(3) For the purposes of subsection 2 (a)-
(a) any relationship by marriage or civil partnership is to be treated as a relationship by blood,
(b) any relationship of the half blood is to be treated as a relationship of the whole blood, and
(c) the stepchild of any person is to be treated as the child of that person.
48C Interpretation of Part IIIA
“family member" means––
(a) parent, child, grandparent, grandchild, great grandparent or great grandchild (whether by blood or by adoption);
(b) brother, sister, uncle, aunt, nephew, niece, great uncle, great aunt, great nephew or great niece (whether of the full or half blood or by adoption);
(c) spouse or any person related to a spouse in any of the ways set out above;
(d) civil partner or any person related to a civil partner in any of the ways set out above;
(e) cohabitant or any person related to a cohabitant in any of the ways set out above.
“relative" means—
(a) parent, child, grandparent, grandchild, great grandparent or great grandchild (whether by blood or by adoption);
(b) brother, sister, uncle, aunt, nephew, niece, great uncle, great aunt, great nephew or great niece (whether of the full or half blood or by adoption);
(c) spouse or any person related to a spouse in any of the ways set out above;
(d) civil partner or any person related to a civil partner in any of the ways set out above.
Para 4.17 A “connected party" is defined as:
71 Meaning of “family"
(1) For the purposes of section 70(8) (d), who the members of a person’s family are is to be in accordance with subsections (2) and (3).
(2) A person (“AG") is a member of another person’s family if—
(a) AG is the person’s spouse [or civil partner] or AG and the person live together as husband and wife or in a relationship which has the characteristics of the relationship between husband and wife except that AG and the person are of the same sex; or
(b) AG is the person’s parent, grandparent, child, grandchild, sibling, uncle, aunt, nephew, niece or cousin.
(3) For the purposes of subsection (2) (b)—
(a) a relationship by marriage [or by virtue of civil partnership] is to be treated as a relationship by blood;
(b) a relationship of the half-blood is to be treated as a relationship of the whole blood;
(c) if AG is—
(i) the stepchild of the person, AG is to be treated as the person’s child;
(ii) the step-parent of the person, AG is to be treated as the person’s parent;
(d) if AG is brought up or treated by the person as if the person’s child, AG is to be treated as the person’s child.
Schedule 1, paragraph 1, page 15, after line 27, insert-
“(q) Attorney General for Northern Ireland;
(r) a person who has been Attorney General for Northern Ireland at any time in the five years prior to the date when the appointment is to take effect.
Schedule 3, paragraph 1, page 17, after line 34 insert
“(s) Attorney General for Northern Ireland;
(t) a person who has been Attorney General for Northern Ireland at any time in the five years prior to the date when the appointment is to take effect.
Schedule 1, paragraph 3, page 16, leave out lines 5 and 6 and insert-
(a) Parent, child, grandparent or grandchild;
Schedule 1, para 3, page 16, leave out lines 7 and 8 and insert-
(b) Brother, sister, uncle, aunt, nephew, niece (whether of the full or half blood);
Schedule 1, para 3, page 16, line 9
At end of line 9 after “spouse" insert “in any of the ways set out in sub paragraphs (a) or (b)"
Schedule 1, para 3, page 16, line 10
At end of line 10 after “civil partner" insert “in any of the ways set out in sub paragraphs (a) or (b)"
Schedule 1, para 3, page 16, line 11
At end of line 11 after “cohabitant" insert “in any of the ways set out in sub paragraphs (a) or (b)"
Schedule 3, para 3, page 18, leave out lines 7 and 8 and insert-
(a) Parent, child, grandparent or grandchild;
Schedule 3, para 3, page 18, leave out lines 9 and 10 and insert-
(b) Brother, sister, uncle, aunt, nephew, niece (whether of the full or half blood);
Schedule 3, para 3, page 18, line 11
At end of line 11 after “spouse" insert “in any of the ways set out in sub paragraphs (a) or (b)"
Schedule 3, para 3, page 18, line 12
At end of line 12 after “civil partner" insert “in any of the ways set out in sub paragraphs (a) or (b)"
Schedule 3, para 3, page 18, line 13
At end of line 13 after “cohabitant" insert “in any of the ways set out in sub paragraphs (a) or (b)"
