Section 7 - Procedures at Stage 1

49. Section 7 sets out the procedures applying to the Stage 1 process.

50. Subsection (1) requires that a member be notified that a complaint has been made and the subject matter of the complaint. In addition the member should also be informed of the name of the complainer unless the Commissioner considers that it would be inappropriate to do so. This could arise in circumstances where the complainer is a vulnerable person and might be distressed if their identity was revealed. Alternatively it could be judged that disclosure of the identity of the complainer at the initial stages could prejudice the investigation of the complaint. It would be possible for directions under section 4 to set out the circumstances in which the Commissioner should not reveal the identity of the complainer. Directions could also require the Commissioner to seek comment from the member complained about as part of the Stage 1 investigation. It is anticipated that there will be communications between the Commissioner and the member throughout this stage so that the member is kept informed of the progress of the investigation.

51. Where the Commissioner considers that each of the three tests at section 6 have been met and the complaint is admissible the procedure moves on to Stage 2. The Commissioner is required under subsection (2) to make a report to the Standards Committee informing it of that fact and also to inform the complainer and the member of the Parliament concerned. The Commissioner must also inform the Parliament in the report of the relevant provision or provisions which enable the Commissioner to conclude that the complaint is relevant and that the second test is satisfied.

52. Where the Commissioner is satisfied that the complaint is either not relevant or he/she is able to determine that there has been no breach of the relevant provision (the first and third tests respectively) subsection (3) provides that the complaint shall be dismissed by the Commissioner. The complainer and the member of the Parliament concerned are each informed.

53. Subsection (4) prevents the Commissioner from dismissing complaints that have procedural deficiencies (the second test) without reporting the failure or failures to the Standards Committee and receiving a direction to dismiss the complaint. It provides, when read with subsection (6), that where a complaint meets the first and third tests but fails to meet one or more of the specified requirements the Commissioner cannot dismiss the complaint. Instead the Commissioner is required to report the failure or failures to the Standards Committee. However, see the explanation of subsection (6) in paragraphs 55 and 56 in relation to certain classes of complaints for which the Commissioner will not initially investigate the third test when there is a procedural deficiency.

54. Subsection (5) sets out the information which a report to the Standards Committee under subsection (4) must contain. Before reporting and as part of the investigation into the reasons for any procedural deficiency, the Commissioner will be able to give the complainer a chance to rectify any deficiency.

55. Subsection (6) makes clear that, except where the Standards Committee has made a direction in relation to specific classes of complaints, the Commissioner is required to investigate whether the complaint satisfies the third test before reporting a failure to meet any part of the second test. Where the third test is satisfied that fact must be included in the Commissioners report. But where the third test is not satisfied the Commissioner is required to dismiss the complaint without having to make a report about the procedural deficiencies.

56. The direction-making power in this section is to be exercised in relation to classes of complaints. In other words, it cannot be exercised in relation to individual complaints. It is envisaged that in most cases the Standards Committee would want the third test to be investigated before the Commissioner submits the report about the failure to meet the second test. This ensures that reports are not made about complaints that would, in any event, fail the admissibility test. However, there may be certain types of procedural failures that the Standards Committee wishes the Commissioner to report on immediately before any investigation into the third test is carried out. For example, it may be considered appropriate for complaints that do not identify an MSP to be referred to the Standards Committee before the Commissioner takes any further action.

57. Subsection (7) requires the Standards Committee on receipt of a report under subsection (4) to direct the Commissioner whether to dismiss the complaint or to disregard the procedural failure(s) and treat the complaint as if it did not have any procedural failures.

58. Under subsection (8) the Commissioner must dismiss a complaint when the Standards Committee so directs following a report of a procedural failure. In addition the Commissioner is required to notify the complainer and the member concerned.

59. Subsection (9) makes clear that when the complainer or the name of the member complained about is unknown, the requirements to intimate certain details or progress to that complainer or member under this section do not apply.

60. Subsection (10) allows the Commissioner, when a complaint has been dismissed to send to the Standards Committee a report setting out the reasons for the dismissal. There is no general requirement on the Commissioner to inform the Standards Committee of complaints that have been dismissed. This subsection however permits the Commissioner to keep the Standards Committee informed of dismissed complaints when circumstances dictate. This could arise where the lodging of a complaint has generated some publicity.

61. Since Stage 1 is an initial investigation, the Commissioner should not require to carry out extensive inquiries. The Commissioner is therefore expected to complete any inquiries necessary to determine Stage 1 within two months of a complaint being received. Where this is not possible subsection (11) requires the Commissioner to send a report as soon as possible thereafter on the progress of the investigation to the Standards Committee.

Section 8 - Stage 2: Investigation of an admissible complaint

62. Section 8 sets out the purpose and objective of a Stage 2 investigation into admissible complaints. This will include complaints that have satisfied the three tests at Stage 1 as well as those complaints that failed to satisfy the second test but which the Standards Committee decided should be treated as having satisfied the second test. Subsection (1) contains two matters that the Commissioner is required to reach a view upon.

• The first matter is whether the member concerned has committed the conduct which is the subject of the complaint. The Commissioner is required to set out the facts that are found to be established in relation to that conduct.

• The Commissioner is also required to reach a conclusion as to whether the conduct established under the above is in breach of one of the relevant provisions that he or she identified when deciding that the complaint was relevant.

63. Subsection (2) sets out the standard of proof that the investigation by the Commissioner must meet at stage 2. The test is that of the "balance of probabilities" and is equivalent to the test that applies in civil proceedings in Scotland.

64. Subsection (3) requires the Commissioner to report to the Standards Committee on any investigation that is not completed within six months of Stage 2 commencing. The provision could be utilised where for example an investigation was likely to take or was taking a lengthy period of time to conclude.

Section 9 - Report

65. This section sets out details concerning the report for the Standards Committee that the Commissioner is required to prepare on the completion of an investigation at Stage 2.

66. Subsection (2) lists matters that require to be included within the report. The subsection also prevents the Commissioner from commenting in relation to sanctions that may be imposed where a breach is established. Decisions on an appropriate sanction to be applied are for the Parliament alone.

67. Before any report that concludes that a member named in the report is in breach of a relevant provision is submitted to the Standards Committee, subsection (3) requires that the member be given a draft of the proposed report and an opportunity to make representations on the alleged breach and the proposed report. The inclusion of this provision is in line with the procedure followed by successive governments at Westminster following the 1966 report of the Royal Commission on Tribunals of Inquiry under the chairmanship of Lord Justice Salmon, the report having noted that it is more difficult to counter criticism when it appears in a report. The requirement is in addition to the right to be informed of the allegations and to be given an opportunity to respond during the investigation. The provision is similar to the rights afforded to councillors and members of devolved public bodies under section 14(2) of the Ethical Standards in Public Life (Scotland) Act 2000 (asp 7) in relation to proposed reports of the Chief Investigating Officer.

Section 10 - Action on receipt of a report

68. As has been explained in the introduction to these notes, the process that is to be followed by the Parliament on receipt of a report from the Commissioner (Stages 3 and 4 of the investigative process) will be contained in standing orders. However, there are two aspects of the subsequent process which require to be dealt with in this Act. First, this section makes it clear that the Standards Committee and the Parliament are entitled to reject both the facts found and conclusions reached in the Commissioner's report and allows the Standards Committee and the Parliament to reach its own conclusion on the complaint. Second, this section makes it clear that the Standards Committee can direct the Commissioner to carry out further investigations.

69. Subsection (3) applies all the provisions of the Act to any investigation and report carried out by the Commissioner following a direction under subsection (2). This ensures, for example, that the Commissioner has power to call witnesses and request documents. It also ensures that the Standards Committee has the same powers to request reports on the progress on any such further investigation.

Section 11 - Withdrawal of a complaint

70. Subsection (1) allows the complainer to withdraw a complaint while it is still with the Commissioner. A notice to the Commissioner withdrawing a complaint must be in writing and be signed by the complainer.

71. When a complaint is withdrawn during Stage 1 of the investigation process, subsection (2) requires that the Commissioner stop the investigation and inform the Standards Committee that the complaint has been withdrawn and of any reasons given for withdrawal.

72. When a complaint is withdrawn during Stage 2 of the investigation process subsections (3) to (6) set out the procedure to be followed. Under subsection (3) the Commissioner must inform the member concerned of withdrawal and of any reasons given. The member is invited to comment on whether the investigation should continue. For example, the member may wish the investigation to continue in the expectation that the report of the investigation will exonerate him or her in relation to a damaging allegation.

73. The Commissioner can recommend to the Standards Committee that an investigation should continue despite withdrawal of the complaint at Stage 2. Before deciding whether or not to do so the Commissioner is required to take into account any relevant information. This might include, for example, information obtained in the course of an investigation. The Commissioner is specifically required to take into account the reasons given by the complainer for withdrawal of the complaint and the views of the member concerned.

74. Subsection (4) applies where the Commissioner decides not to recommend that the investigation of a withdrawn complaint should continue. In such circumstances, the Commissioner stops the investigation and informs the member and the complainer. The Commissioner is also required to report to the Standards Committee that the investigation into the complaint has ceased and the reasons given for withdrawal of the complaint.

75. Under subsection (5), when the Commissioner recommends that the investigation into a withdrawn complaint should continue, a report is made to the Standards Committee. That report must set out the fact that the complaint has been withdrawn, the reasons given for the withdrawal of the complaint by the complainer, any views expressed by the member as to whether the investigation should continue and the reasons for the Commissioner's recommendation.

76. When the Standards Committee receives a report recommending continuation of the investigation they are, under subsection (6), required to give the Commissioner a direction as to whether or not to continue the investigation. The Commissioner is required to comply with the direction and to inform the member and complainer of the decision.

77. Subsection (7) makes it clear that where the Commissioner is required set out the reasons given by a complainer for a withdrawing a complaint, the reasons may be summarised.

Section 12 - Investigation into excluded complaints

78. Section 3(2) prevents the Commissioner from investigating complaints that are excluded from his or her jurisdiction by the standing orders or the Code of Conduct (see paragraph 30). However, this provision is subject to the terms of this section which enables the Standards Committee to direct the Commissioner to investigate such a complaint at any time.

79. Under subsection (2), the Commissioner can be directed to take into account any information that is available in relation to the complaint.

80. Under subsection (3), the Commissioner can be directed to treat the excluded complaint as admissible and, in such a case, the Committee would be required to identify the relevant conduct provisions that may have been breached.

81. Where no direction as to admissibility is made, subsection (4) requires the Commissioner to treat the complaint as if it were a new one. This will ensure the provisions of section 7 as to Stage 1 procedure apply before any investigation at Stage 2 can be undertaken.

Section 13 - Power to call for witnesses and documents

82. Section 13 of the Act contains various powers to assist the Commissioner in gathering information and undertaking an investigation.

83. Subsection (1) contains the Commissioner's powers to obtain information from witnesses at each stage of an investigation. The power relates to both oral information and the production of relevant documents and applies to persons who are in or outside Scotland.

84. The Commissioner's powers are to be in line with the Parliament's own powers under section 23 of the Scotland Act. The power to obtain information and documents is therefore restricted by subsection (2) so that the Commissioner cannot require information and documents from a person if the Parliament would not be able to require that person to attend its proceedings to give evidence or to produce documents under section 23 of the Scotland Act. Section 23 imposes various restrictions on the Parliament's powers in relation to persons outside Scotland, Ministers of the Crown, reserved matters, judges and members of tribunals.

85. The power is further restricted by subsection (3) to the limits applicable to court proceedings in Scotland. This is in line with the provision that applies to the Parliament's own powers in section 23(9) of the Scotland Act. These cover various privileges such as the privilege against self-incrimination and privileges in connection with litigation. A person need not answer any question or produce any document that they would be entitled to refuse to answer or produce in a Scottish court.

86. Where a person makes a statement in answer to any question by the Commissioner which the person was obliged to answer, subsection (4) provides that any such statement would be inadmissible in any proceedings in a criminal court. The effect of this is that a person cannot incriminate him or herself during the investigation process. The one exception to this provision is in the event that perjury proceedings are initiated in respect of the statement made to the Commissioner.

87. Subsection (5) provides a similar restriction to that of the Scotland Act in relation to a Scottish Law Officer or a procurator fiscal declining to answer a question or produce a document in relation to the operation of the system of criminal prosecution in any particular case. Under the Scotland Act this applies to the fiscal if the Lord Advocate considers that answering or producing might prejudice the criminal proceedings in the case in question or would otherwise be contrary to the public interest and the Lord Advocate has authorised the fiscal to decline to answer the question or produce the document on that ground. Similarly, this applies to the Lord Advocate and the Solicitor General if he or she considers that answering the question or producing the document might prejudice criminal proceedings in the case in question or would otherwise be contrary to the public interest.

88. A person giving evidence can be required to do so under oath and subsection (6) authorises the Commissioner to administer such an oath. A person will be able to affirm as an alternative to taking an oath as this is expressly provided for in the Oaths Act 1978 (c.19).

89. Subsection (7) makes it an offence for a person who has been required to take an oath by the Commissioner to fail to do so.A person found guilty by a summary criminal court of an offence under this subsection is liable to a fine not exceeding level 5 on the standard scale (currently £5,000) (section 225 of the Criminal Procedure (Scotland) Act 1995 (c.46)) or to imprisonment for a maximum period of three months.

90. Subsection (8) makes provision for the payment of allowances and expenses to persons required to give evidence or produce documents. The level of expenses and allowances will be a matter to be determined by the Commissioner who must first seek agreement to rates with the SPCB.

Section 14 - Witnesses and documents: notice

91. Section 14 makes provision for the Commissioner to give notice to a person who is required to give information or produce documents in line with the equivalent notice provision for the Parliament that is contained in section 24 of the Scotland Act 1998. The notice requires to set out the subjects to which the required evidence will relate. In addition, in the case of the attendance of a person to give evidence, the time and place at which attendance is required must be given. In the case of documents, the date by which they require to be produced must also be given. A notice requires to be sent by registered or recorded delivery post. In the case of an individual it has to be sent to their last known address and in any other case to the person's registered office or principal address.

Section 15 - Witnesses and documents: offences

92. Section 15 creates offences which are equivalent to those set out in section 25 of the Scotland Act in relation to failures to comply with requirements imposed by the Parliament as to the giving of evidence or the production of evidence. For instance, this section makes it an offence for a person who is required by the Commissioner to give information or produce documents to fail to do so unless they have a reasonable excuse. A person found guilty by a summary criminal court of an offence under this section is liable to a fine not exceeding level 5 on the standard scale (currently £5,000) (section 225 of the Criminal Procedure (Scotland) Act 1995 (c.46)) or to imprisonment for a maximum period of three months.

Section 16 - Restriction upon disclosure of information

93. This section restricts the disclosure by the Commissioner and the staff or any other persons appointed by the Commissioner (see paragraph 3 of the schedule for provision about such other persons) of any information contained in the complaint or any information that is obtained in relation to the complaint during the investigation. Disclosure is only permitted to enable or assist the Commissioner in carrying out the functions imposed by the Act or standing orders. For example in providing information about the complaint to members, the complainer and other parties who are questioned. The Commissioner also requires to disclose information about the complaint for the purpose of his or her report to the Standards Committee. In addition, disclosure is permitted for the purpose of the investigation or prosecution of any offence or suspected offence.

94. The restriction on disclosure in this section does not extend to the Standards Committee and the Parliament who may choose to publish the information as part of a report following upon any consideration of a report prepared by the Commissioner. In practice, it is envisaged that any report to the Parliament by the Standards Committee in relation to a complaint would include a copy of the Commissioner's report to it.

Section 17 - Protection from actions of defamation

95. Subsection (1) at paragraph (a) provides the Commissioner with absolute privilege for all reports, statements and communications on a complaint whether with the complainer, a witness or the member of the Parliament complained about. The provision of absolute privilege effectively places a bar on a person's right to pursue an action of defamation in respect of statements made by the Commissioner. This allows the Commissioner to carry out investigations without being fettered in relation to the repetition of any defamatory material received.

96. Paragraph (b) of subsection (1) provides individuals who make complaints or members or witnesses who respond to complaints with qualified privilege. Under qualified privilege individuals can make complaints and can assist in the investigation of complaints without fear of an action for defamation provided statements are not motivated by malice or intent to injure. "Statement" has the same meaning as in the Defamation Act 1996 and therefore includes words, pictures, visual images, gestures or any other method of signifying meaning.

Section 18 - Annual report

97. Section 18 requires the Commissioner to produce an annual report which is to be laid before the Parliament. Subsection (2) lists certain matters that must be contained within the report without precluding the inclusion of any other matters that the Commissioner considers appropriate.

98. The matters required under subsection (2) are:

• the number of complaints received;

• the number of Stage 1 investigations and information concerning their outcome;

• the number of Stage 2 investigations and information concerning their outcome;

• the number of complaints withdrawn by the complainer together with information on the stage in the investigation when they were withdrawn; and

• the number of further investigations carried out on a direction from the Standards Committee after a Stage 2 report has been completed (see section 10(2)).

Section 19 - Transitional provision

99. Subsection (1) provides that the Standards Committee can direct the Commissioner to take over all existing complaints at the time the Act comes fully into force. This can apply whether the complaint has only recently been received or when it was under investigation by the existing Standards Adviser. The period between the passing of the Act and commencement will allow existing complaints to be finalised, enabling a transition of cases from the Standards Adviser to the Commissioner. The provisions here are similar to the provisions that have been made in section 12 in connection with complaints that are excluded from the initial jurisdiction of the Commissioner.

100. Subsection (2) enables the direction to require the Commissioner to take account of any information that the Parliament already has in connection with the complaint. This could cover information which has already been obtained by the Standards Adviser.

101. Subsection (3) makes clear that the direction from the Standards Committee to the Commissioner to investigate a pending complaint can also direct that the complaint be treated as admissible. In such a case, similar to the position with excluded complaints in section 12, the direction requires to specify the relevant conduct provisions that may have been breached. The current Adviser follows Stages 1 and 2 of the model of investigation that is set out in the 4th Report. This provision would therefore enable the Standards Committee to direct the Commissioner to commence a complaint at Stage 2 in a case where the previous Adviser had concluded Stage 1 of the process and had already decided that the complaint should be subject to a full investigation.

102. Where no direction as to admissibility is made, subsection (4) requires the Commissioner to treat the complaint as if it were a new one. Like the excluded complaints, this will ensure the provisions of section 7 as to Stage 1 procedure apply before any investigation at Stage 2 can be undertaken. This may be appropriate in a case where the previous Adviser has been able to undertake only limited inquires into the complaint and has not yet reached any conclusions.

Section 20 - Interpretation

103. Section 20 contains definitions of terms used throughout the Act. The term "the Parliament" includes any committee of the Parliament. As the preceding notes indicate, it was envisaged in the model of investigations in the 4th Report that the Standards Committee would have the day-to-day contact with the Commissioner namely calling for and receiving reports into investigations and giving directions to the Commissioner. The involvement of the Standards Committee in this way will require to be set out in the standing orders. It is however for the Parliament following consideration by the Procedures Committee to determine whether the possible procedures outlined above or some other procedures are appropriate.

Section 21- Short title and commencement

104. This section provides for the substantive provisions in the Act to come into force automatically six months after the granting of Royal Assent. Subsection (2)(a) makes provision for sections 1, 20 and 21 and the schedule to come into force the day after Royal Assent. This will enable recruitment of the Commissioner to commence immediately so that the Commissioner can be in post on the day that the rest of the Act comes into force.

105. The period of six months allowed in subsection (2)(b) enables the Parliament to recruit the Commissioner and put in place the required structures, procedures, staffing and resources. The Parliament will need time to formulate and adopt new standing orders and amend the Code of Conduct. Time will also be needed to prepare the directions provided for in section 4.

Schedule -The Scottish Parliamentary Standards Commissioner

106. The schedule makes further provision for the terms and conditions applying to the appointment of the Commissioner, staff of the Commissioner and other persons who may be appointed to assist or advise the Commissioner.

PARLIAMENTARY HISTORY OF SCOTTISH PARLIAMENTARY STANDARDS COMMISSIONER ACT 2002

The following table sets out, for each Stage of the proceedings in the Scottish Parliament on the Bill for this Act, the dates on which proceedings at that Stage took place, the references to the Official Report of those proceedings and the dates on which Committee Reports were published and the references to those Reports.

Proceedings and Reports	Reference
Introduction	SP Bill 48 (Session 1)
4 February 2002
Stage 1
(a) Finance Committee
3rd Meeting, 2002	12 February 2002, col 1848
1st Report 2002 (13 February 2002)	SP Paper 510
Stage 1 Report on the Scottish Parliamentary Standards Commissioner Bill
(b) Consideration by the Parliament
28 February 2002	cols 9765-9784
Stage 2
Scottish Parliamentary Standards Commissioner Bill Committee
1st Meeting, 2002	16 April 2002, cols 1-2
2nd Meeting, 2002	14 May 2002, cols 3-16
Stage 3
Consideration by the Parliament
27 June 2002	cols 13122-13138