Complaints about MSPs
What happens when we receive a complaint?
This guide outlines the steps which the Commissioner for Ethical Standards in Public Life (the Commissioner) or any appointed staff will normally take.
Unless there are unusual circumstances, when the Commissioner receives a complaint, he informs the MSP about the complaint and tells him or her who has complained, unless there is a good reason not to. In doing this, the Commissioner usually copies to the MSP the letter of complaint and supporting material, so that the MSP is fully aware of what is being complained about. At this stage the Commissioner invites the MSP to respond.
Initial Screening: Stage 1 - is the complaint admissible?
The Commissioner now has to decide whether the complaint passes three tests set down in law. To go on to Stage 2 (full investigation), the complaint has to be:
· Relevant- it has to be about the conduct of an MSP. It must not be an "excluded complaint" (one not in the remit of the Commissioner) unless the Standards, Procedures and Public Appointments Committee have directed the Commissioner to investigate it. It must potentially involve a breach of the Code of Conduct - it must therefore be about the MSP carrying out Parliamentary duties, and generally not wider political activities or private or family life.
· Procedurally correct - it should meet the conditions mentioned under "How Do You Make a Complaint about an MSP?"
· Of enough substance to justify further investigation (there is enough evidence to suggest that the conduct complained about may have taken place).
Stage 1 is expected to take no longer than 2 months - if longer the Commissioner has to report this to the Standards, Procedures and Public Appointments Committee, and, if it would not put at risk the outcome of the investigation, the MSP and the complainer.
Further Enquiries: Stage 2 - did the MSP carry out the behaviour complained of and did this mean that the Code was breached?
At this Stage the Commissioner decides what is necessary to investigate the complaint and sets about it. He has powers if necessary to compel witnesses to attend and to produce documents, with a fine or imprisonment for non-compliance. Usually he interviews people in a fairly informal way, though interviews must be tape recorded so that a record is available of what was said. Those being interviewed can be supported by another person if they want and can have an interpreter provided if necessary. If a summary of an interview is to be attached to the Commissioner 's report, the person interviewed has to have a chance to view it and suggest any corrections of fact, which are either used to change the report or attached to it.
At the end of the investigation the Commissioner writes a report giving his findings. He can draw conclusions on the balance of probability.
The MSP must have a chance to see the draft report and to suggest any corrections of fact, which are dealt with as above.
The report goes to the Standards, Procedures and Public Appointments Committee of the Parliament who may or may not accept the conclusions of the Commissioner.
The Committee can ask the Commissioner to carry out further investigation or it can carry out its own investigation.
Once investigation is over, the Committee discusses what action to recommend to Parliament if the complaint has been upheld.
Some serious breaches of the Code are criminal offences. In these cases the Commissioner would hand matters over to the police to investigate. Once that process is over the normal process can be resumed.
Stage 2 is expected to take no longer than 6 months - if longer, the Commissioner has to report in the same way as at Stage 1.
Investigation outcome: What can you expect?
If the complaint is not admissible at Stage 1, that is the end of the matter.
If it goes to Stage 2, there will either be a finding of a breach of the Code or not. If there has been a breach, it is for Parliament to decide, with a recommendation from the Standards, Procedures and Public Appointments Committee, what consequences there should be for the MSP.
Parliament can prevent or restrict a Member from taking part in its proceedings for a period of time.
In certain circumstances a member can be totally excluded for a time. Parliament can also withdraw a Member's rights and privileges including right of access as a Member to Parliamentary facilities, services and buildings.