In context: MSP code of conduct

The leaks from the Committee on the Scottish Government Handling of Harassment Complaints put the spotlight on the rules setting out how parliamentarians should conduct themselves.

The Scottish Parliament’s code of conduct covers everything from registered interests and lobbying rules through to expenses and confidentiality.

It also explains enforcement of the rules and how breaches should be dealt with.

How should MSPs carry out their responsibilities?

Section 7 of the code covers MSPs’ general conduct. It states MSPs must treat other members and staff “with courtesy and respect”, follow the relevant Standing Orders in the chamber and committees, respect the authority of the Presiding Officer or convener, and not disseminate information to the media about draft reports or confidential documents seen by members.

It does not cover ministers when they are acting in their ministerial capacity. This is governed by the separate Scottish Ministerial Code.

How is the code enforced?

Complaints made against MSPs are investigated by the Ethical Standards Commissioner. That role is currently held by Caroline Anderson, who was appointed for a five-year term in April 2019. She will determine whether a complaint is admissible first, then carry out a further investigation into the nature of the complaint.

A report is then delivered to the Standards, Procedures and Public Appointments Committee for consideration. If it agrees the code has been breached, the committee may recommend a sanction against the MSP – this can range from preventing them from lodging parliamentary motions for a short period, right up to full suspension from parliament. A motion must be agreed by the parliament for the sanction to come into force.

Has anyone ever fallen foul of the code?

Yes. Former children’s minister Mark McDonald was suspended without pay for a month in 2018 after the commissioner found he had sexually harassed a female member of staff. This was the harshest punishment of an MSP since 2005, when four SSP MSPs were banned from parliament for conducting a sit-down protest at First Minister’s Questions.

Minor sanctions have been imposed against various members for smaller infractions, including Alexander Burnett for failing to declare business interests when asking questions about planning matters.

Most relevant to recent events is the suspension of Annie Wells for five days in November 2018, after she provided advance comment to the press on an unpublished report from the Equalities and Human Rights Committee on prisoner voting.

Wells’ comments were published in the Scottish Daily Mail two days before the report was released, though she insisted throughout the process that she was only commenting on information that was already in the press. Nevertheless, the code says statements on draft reports “seriously undermine and devalue the work of committees” and MSPs agreed Wells had made the comments for “political advantage”.

So, did anyone break the code with regards to the harassment committee?

If a formal complaint is made, it seems likely that both the leaking of one of the report’s conclusions and the evidence taken from the two female complainers to the media would constitute a breach of the code.

However, there is a ban on revealing whether a complaint has been lodged until after it has been considered by the Standards, Procedures and Public Appointments Committee. This could take some time, partly because of the election (though the SPPA Committee can pick up complaints made in previous sessions) and partly because the source of the leak may not be known, in which case the commissioner will be tasked to investigate an ‘undirected complaint’.

But there have also been concerns throughout the inquiry about briefings to the media about publicly available information. The code explicitly says it does not restrict members expressing their political views. But in discussion with the committee about learning lessons on the handling of future inquiries, Ms A and Ms B (the two women who made the complaints against Alex Salmond) admitted the constant commentary about their involvement in the complaints process had made the whole ordeal more difficult.

One woman said: "It has been difficult throughout the process to have, from the various parties’ press releases and social media tiles, the impact on us in relation to our motivations for coming forward and our involvement with the party of government…In the future, I want a bit of a moratorium on party politics when it comes to dealing with matters of this sort."