Memorandum submitted by Dr John Reid MP
1. I am asked to advise the Rt Hon Dr John
Reid ("Dr Reid"). Dr Reid has at all material times
been MP for Hamilton North and Bellshill.
2. On 26 January 2000 Dean Nelson ("Nelson"),
a journalist, made complaint about Dr Reid and another MP to Ms
Elizabeth Filkin, the Parliamentary Commissioner for Standards
("the Commissioner"). The complaint was based on a newspaper
article which Nelson himself had written and which had been published
three days before.
3. On 6 September 2000 the Commissioner
sent Dr Reid a copy of her Draft Memorandum in respect of both
complaints ("the Report") to the House of Commons Committee
on Standards and Privileges ("the Committee"). It is
in relation to the Report that I am asked to advise. (Referenced
hereafter to Annexes are references to Annexes to the Report,
and references to paragraphs are references to paragraphs of the
4. As will appear, in summary my conclusions
(1) The Commissioner did not adopt a fair
procedure: put shortly, her investigation started off on the wrong
track, and never came on to the right track;
(2) Partly in consequence of the failure to adopt
a fair procedure, she has not produced a fair Report;
(3) There is on the material before her no case
for Dr Reid to answer;
(4) From first to last, this investigation has
been characterised by lack of due and fair process and natural
(5) It has been fundamentally and fatally flawed;
(6) No reliance can be placed upon it.
5. MPs are subject to a Code of Conduct,
prepared pursuant to a Resolution of the House on 19 July 1995,
and Rules relating to their Conduct. The Code of Conduct provides:
"No improper use shall be made of any payment
or allowance made to Members for public purposes and the administrative
rules which apply to such payments and allowances must be strictly
6. Such payments and allowances include
an allowance, the Office Costs Allowance ("the OCA")
payable to an MP in respect of the expenses incurred by him for
his parliamentary duties or secretarial assistance and on research
assistance for work undertaken in the proper performance of such
duties. The administrative rules which apply to the OCA include
that, in order to qualify, any expenditure must be wholly, exclusively
and necessary incurred in the performance of parliamentary duties.
This is a strict rule.
7. MPs are prohibited from claiming the
OCA for expenditure which is personal or party-political. There
is, however, importantly no prohibition whatsoever on researchers
holding another post(s), party-political or non party-political,
paid or voluntary. It is a central feature of the investigation
that the Commissioner has failed to grasp this. For example, the
first question she put to Dr Reid (Annex 14) was: "Were you
aware ... of the House of Commons rule forbidding the practice
of allowing Parliamentary researchers to do party work while being
paid from public funds?"
8. The terms of reference of the Committee
include to consider any matter relating to the conduct of MPs,
including specific complaints in relation to alleged breaches
of any Code of Conduct and which have been drawn to the Committee`s
attention by the Commissioner. The constitution and powers of
the Committee are set out in Standing Order No. 149.
9. On or before 4 April 2000 the Committee
(HC 403) received a paper from the Commissioner setting out procedures
she follows when investigating complaints against MPs. In its
Fifth Report of Session 1999-2000 (HC 260), in which the Committee
recommended that a MP be suspended from the service of the House,
the Committee stated (paragraph 39):
"Members have a duty of accountability under
the Code of Conduct and "must submit themselves to whatever
scrutiny is appropriate to their office". The Commissioner
can only perform her duty, which is to investigate complaints
against Members thoroughly and impartially, if she is in
possession of a full and frank explanation of the relevant
circumstances. This may involve the disclosure in confidence
to the Commissioner of relevant details of a Member`s personal
and financial arrangements which the Member in question would
prefer to remain private" (emphasis supplied).
10. As from 2 October 2000 the Human Rights Act
1998 gives "further effect" to the European Convention
on Human Rights in domestic law. The rights the protection of
which is enhanced include the right to a fair trail (Article 6)
and the right to respect for private life (Article 8).
11. Article 6 applies to professional disciplinary
proceedings which may lead to suspension from practice: Le
Compte, Van Leuven and De Meyere v Belgium (1981) 4 EHRR 1.
The Committee is subject to Article 6. The preliminary stage of
investigation by the Commissioner may not be, provided, however,
that the Committee makes its own judgements and does not in any
way defer to or rely upon the Commissioner.
12. Article 6 relates to such concepts as "equality
of arms", fair rules of evidence, according witnesses on
both sides and same treatment, allowing defence witnesses to have
their evidence accepted in the same fashion as other witnesses,
even handedness of disclosure, and so forth.
13. In any event, Article 8 applies both to the
Commissioner and to the Committee. This is relevant to covert
taping of telephone conversations, to encroachments upon the relationship
between a person and their solicitor (which also has repercussions
on the rights guaranteed by Article 6), to pressure to produce
telephone records, to intrusions into mortgage references, etc.
14. In his letter to the Commissioner dated 26
January 2000 (Annex 1), which followed an article by Nelson in
the Observer on 23 January 2000 (Annex 1), Nelson described the
"essence" of his complaint against Dr Reid as being
that Dr Reid "misled the Fees Office and abused public money"
by using Westminster`s allowances to pay salaries to full time
campaigners in Labour`s Scottish Parliament election campaign.
Nelson stated his "belief" that Dr Reid "falsely
passed off" these campaigners as Westminster researchers
in order to help fund Labour`s campaign.
15. In relation to Dr Reid, Nelson identified
the campaigners in question as being Dr Reid`s son, Kevin Reid
("Kevin"), from May to October 1998, the Suzanne Hilliard
("Suzanne"), thereafter. The Scottish Parliament Election
was in May 1999.
16. Nelson alleged that the details of the arrangements
were worked out between Alex Rowley ("Rowley"), then
Labour Party General Secretary in Scotland, and Dr Reid. Nelson
stated (emphasis supplied):
"I have spoken to many senior Labour officials
and politicians to confirm the truth of the arrangements described
above. I`ve agreed to protect their identities, but they
will give evidence in court if Reid or Maxton or if called by
you. All the interviews were recorded on tape."
17. The Commissioner`s preliminary ruling (paragraph
5) that "sufficient evidence" (note both the noun and
the adjective) had been tendered in support of the complaint to
"justify" (an important requirement) her taking the
matter further consisted only (paragraph 4) of:
(1) Second hand (at best) information from
(2) Nelson`s "notes" of his alleged
"conversations" with "unspecified" individuals
(he had, importantly, no direct knowledge of his own);
(3) Covert tapes of "interviews", by
Nelson, with these "unspecified" individuals.
18. The Commissioner did a deal with Nelson (paragraph
4). It was that he would provide her with the tapes only
of such (covertly tapes) interviews as were with individuals whom
she might identify as giving to her what appeared to her to be
information at variance with the account allegedly given
by the individual to Nelson.
19. There was no "equality of arms";
and this was manifestly unfair:
(1) Directly to the MPs (and others) against
whom complaint was being made by Nelson: information given to
Nelson that contradicted or weakened the complaint was obviously
at least as material as information allegedly given to him that
might have appeared to have supported the complaint but which
was withdrawn or modified or innocently explained before the Commissioner
(2) To individuals who where Nelson`s "protected"
sources: they do not appear to have even been informed of the
deal, notwithstanding that it involved their testimony to the
Commissioner being communicated by her to Nelson, and they were
therefore wide open to pressure from Nelson, because he knew who
his sources were and revelation that they were his sources would
be a severe embarrassment (or worse) for them; and
(3) By reason of (2) above, indirectly to the
MPs (and others) against whom the complaint was being made.
20. The Commissioner failed, and has throughout
failed, to direct herself to the crucial question as to of
what (if anything) there was "sufficient evidence".
There is self evidently, and the House of Commons Fees Office
has explicitly confirmed that there is, no offence in using Westminster
allowances to pay someone who duly does what they are contracted
to for the MP and in addition is engaged "part time"
or "full time" (whatever that may mean) in some other
21. Whether or not they were so engaged "full
time" is in itself plainly irrelevant. If it were relevant,
it would be necessary at the outset to define the term "full
time" and the precise complaint. This has never, however,
been done, or has been done inconsistently and capriciously.
22. The Commissioner has clearly been wrong to
adopt, as she states that she has (paragraph 9), the mere "balance
of probability" as the "standard of proof" (and
then to fail to apply even the standard or any standard). Her
reason for doing so is that "The procedure is not an adversarial
one: there is no prosecution and no defence".
23. This is wholly unsustainable. The investigation
is into a "formal complaint against (emphasis supplied)
the MPs concerned (Annex 1). It is sophistry no to acknowledge
that the MPs are in substance and reality defendants. Their reputations,
careers and livelihoods are at stake.
24. Moreover, there is only no prosecution if
(absent a prosecutor distinct from the Commissioner) the Commissioner
does not descend into the arena and adopt the roles of prosecutor
and judge (than which no two roles are more incompatible). That,
however, is precisely what happened here. (This point is further
25. In any event, what is important as regards
the standard of proof is not the character of the procedure, but
rather the nature of the substance of the particular case. This
is an allegation of fraud: "... misled the Fees Office ...
abused public money ... falsely passed off ..."
26. Not only the MPs, but also their researchers
(and others), were in the firing line. It is disingenuous to suppose
27. The researchers were fully entitled to obtain
legal assistance. That assistance was, elementarily, privileged
28. Yet the Commissioner grilled them on such
questions as the name of their lawyer, who was the source of introduction,
who the lawyer`s other clients were, who would pay the lawyer`s
bill, and even what had happened between client and solicitor
with reference to the preparation of the client`s witness statement
(see Kevin (Annex 88) pages 12-13, Chris Winslow ("Chris")
(Annex 105) pages 21-23, Suzanne (Annex 111) pages 16-19). This
29. The Commissioner put it to Kevin on 3 April
2000 (Annex 88 pages 8-9) that some of the witnesses (at least
two) that she had seen had said that for a period of time he was
not working as a researcher for his father (when contracted to
do so). No witness had (or has) said any such thing. That was
an improper question for an investigator (and indeed even for
a prosecutor). It is not an isolated instance.
30. The position was compounded by the Commissioner
then asking Kevin whether he had anything to put forward as to
why they should make up that (alleged) allegation, whilst at the
same time the Commissioner refused to disclose who these witnesses
were! There were no fair rules of evidence. This is but one example.
31. The Commissioner wrote to John Rafferty ("Rafferty")
on 20 March 2000 (Annex 152): "I have now received information
which confirms that Kevin Reid, Chris Winslow and Susan Hilliard
worked full time on the Labour Party campaign for considerable
periods of time during which they did no work for MPs who
were paying them part time from Westminster allowances" (emphasis
supplied). She continued: "Please would you confirm this".
Again, she had (and has) received no such information. Moreover,
the witness should in any event have been asked (in non leading
form) whether or not he confirmed it.
32. There are numerous other examples of witnesses
(eg Paul McKinney ("McKinney") and Willie Sullivan ("Sullivan"):
letters from the Commissioner dated respectively 18 April 2000
(Annex 166) and 2 May 2000 (Annex 173); and Rafferty) being given
misleading information, being asked repetitive and leading questions,
and being invited to contradict clear answers under the guise
33. There was no level playing field. "Witnesses"
who supported the complaint, eg Nelson, Rowley, Rafferty, were
given the chance to respond to comments made about them. No like
chance was given to witnesses, eg Lesley Quinn ("Quinn"),
Annmarie Whyte ("Whyte") and Suzanne, who contradicted
the complaint. Moreover, witnesses contradicting the complaint
(eg Quinn, Kevin and Suzanne) were accused by the Commissioner
without any justification of delay in providing information (Quinn
succeeded Rowley as General Secretary).
34. Further, the Commissioner has gratuitously
included a section in her Report "The conduct of the Members
concerned and certain witnesses during the investigation"
(paragraphs 157 to 172 inclusive). This names Whyte as someone
who has given "dishonest" information. This is extremely
serious allegation (by Rowley) has never been put to Whyte (the
Labour Party`s Office Manager in Scotland).
35. Again, this starkly contrasts with the approach
to witnesses on the other side. The highly significant allegation
(also by Rowley: see his e-mail (Annex 141) to the Commissioner
dated 22 June 2000) that Rafferty is untrustworthy and was for
that reason sacked (by the First Minister) is swept under the
36. On 27 January 2000 the Commissioner wrote
to Dr Reid (Annex 5). She described the complaint as follows:
"... you used House of Commons allowances
to pay salaries to full time campaigners in the Labour Party`s
Scottish Parliament election campaign, and that you misled the
Fees Office by describing Mr Kevin Reid and Ms Suzanne Hilliard
as your researchers."
37. On 11 February 2000 the Commissioner wrote
to Rowley (Annex 128), Rafferty (Annex 149), McKinney (Annex 161)
and Whyte (Annex 183).
38. On 14 February 2000:
(1) Dr Reid responded to the Commissioner:
he rejected the complaint against him as untrue and invited her
to hold that no prima facie evidence existed: Annex 8;
(2) Kevin provided a statement: he confirmed
that from May-October 1998 he worked for his father for about
20 hours per week and also part time for the Labour Party: Annex
(3) Suzanne provided a statement: she confirmed
that from November 1998 she worked for Dr Reid for about 20 hours
per week and also as a part time volunteer for the Labour Party:
(4) McKinney responded to the Commissioner: he
stated that he had been employed by the Labour Party in Scotland
in April and May 1998 but had had no responsibility for personnel
matters and no knowledge of specific contractual arrangements
or hours worked: Annex 162.
39. On 16 February 2000 the Commissioner sent
questionnaires to Kevin (Annex 86) and Suzanne (Annex 109).
40. On 17 February 2000 the Commissioner wrote
again to McKinney (Annex 163). She put 10 questions to him.
41. On 21 February 2000 the Head of the Fees
Office at the House of Commons wrote to the Commissioner enclosing
employment details for the researchers (Annex 203).
42. On 22 February 2000 Rafferty wrote to the
Commissioner (Annex 150). He stated that he was engaged in connection
with the Scottish Election campaign between January and May 1999,
but that the scope of his work specifically excluded responsibility
for employment or management of staff, and that he had no knowledge
of such matters.
43. On 28 February 2000 Whyte wrote to the Commissioner
(Annex 184). She stated that as far as she knew Kevin worked part
time for the Labour Party from May to October 1998, part time
meaning 15 hours per week; that Suzanne was not employed by the
Labour Party; and that she (Whyte) was neither party to nor aware
of any discussions relating to the employment of Kevin or concerns
relating to Kevin or Suzanne.
44. On 1 March 2000:
(1) Suzanne responded to the questionnaire:
she repeated that she performed her "20 hours variable per
week" for Dr Reid and also worked in the Election campaign
(in the afternoons, and later also evenings): Annex 110;
(2) the Commissioner interviewed Rafferty: he
stated that Kevin left around lunch-time every day: Annex 151.
45. On 2 March 2000 Kevin responded to the questionnaire
(Annex 87). He repeated that during the period May-October 1998
he satisfied both his 20 hours-variable contract with his father
and his 15 hours per week with the Labour Party within a flexible
working week and that there was no question of working for the
Labour Party during hours paid from the Fees Office.
46. On 7 March 2000 McKinney replied to the Commissioner
(Annex 164). He repeated what he had said before. He was not aware
of employment or payment arrangements.
47. On 9 March 2000 the Commissioner wrote to
Quinn (Annex 177); and on 17 March 2000 sent a questionnaire to
Sullivan (Annex 170).
48. The position at this stage was that:
(1) Dr Reid had refuted the complaint;
(2) His refutation was supported by the individuals
who were in a position to know whether the complaint was justified,
ie Kevin and Suzanne;
(3) His refutation was further supported by Whyte;
(4) The refutation was not contradicted by any
evidence at all: in particular, neither McKinney nor Rafferty
had supported the complaint in any way, either initially or when
49. Then on 20 March 2000 the Commissioner wrote
her letter to Rafferty referred to in paragraph 31 above (Annex
152), pressing him yet further. This was the letter in which she
stated entirely incorrectly, that she had received information
which confirmed that Kevin, Chris and Suzanne worked full time
on the Labour Party campaign for "considerable periods"
during which they did "no work for MPs" who were paying
them part time from Westminster allowances, and asked Rafferty
to confirm this.
50. On 21 March 2000 the Commissioner interviewed
Rowley (Annex 129). Rowley said that:
(1) An agreement was made between Rowley
and Whyte soon after May 1998 in relation to Chris being available
to the Labour Party full time but being paid by John Maxton MP
("Maxton") part time;
(2) Kevin worked in the Labour Party offices
until 1.30-2.00 pm;
(3) Rowley believed Kevin worked full time for
the Party on a salary which was half funded by the Party and half
funded by Dr Reid, an arrangement which Rowley discussed with
Dr Reid and Whyte;
(4) When Kevin was put onto a full time contract
with the Party Dr Reid made clear that his researcher`s salary
would be available to continue working on the campaign;
(5) Rowley discussed employment (of Chris, Kevin
and Suzanne) with Jonathan Upton ("Upton"), the Labour
Party`s Personnel Officer at Millbank, when creating the budget,
and told Upton that these people were funded from Westminster
51. Rowley therefore was alleging that there
were arrangements to which the following were parties:
(1) The 2 MPs, Dr Reid and Maxton;
(2) The 3 researchers, Chris, Kevin and Suzanne;
(3) Rowley and Whyte on behalf of the Scottish
Labour Party; and
(4) Upton on behalf of the UK Labour Party.
52. On 22 March 2000 the Commissioner interviewed
McKinney (Annex 165). He said that:
(1) Dr Reid said something like "my
boy Kevin isn`t doing anything he could come and help";
(2) He (McKinney) was not aware who (if anybody)
was paying Kevin;
(3) Kevin worked (for the Labour Party) some
days 2 to 3 hours, some days much longer;
(4) He (McKinney) knew nothing about the arrangements
(in relation to Kevin);
(5) He (McKinney) was not aware of any concerns
about Kevin`s employment.
53. On 24 March 2000 the Commissioner further
interviewed Rafferty (Annex 153). He said that he was not aware
of anybody being employed by a MP and working full time and exclusively
for the Labour Party.
54. On 30 March 2000 the Commissioner interviewed
Quinn (Annex 179). Quinn said that:
(1) Suzanne did work for Dr Reid when his
Parliamentary Assistant was ill;
(2) Chris did work for Maxton;
(3) Kevin left the Scottish Labour Party office
(4) Suzanne worked for the Scottish Labour Party
mostly from afternoons until early evening.
55. On 3 April 2000 the Commissioner further
interviewed Kevin (Annex 88). He described in detail the work
he did for his father, sometimes far more than 20 hours per week.
It was on this occasion that the Commissioner put it to Kevin
that some of the witnesses (at least two) had said that he was
not working for his father; asked Kevin whether he had anything
to put forward as to why they should make that up; but refused
to disclose who they were.
56. On 6 April 2000 the Commissioner yet further
pressed Rafferty (Annex 154). Subsequently he changed his evidence.
57. On 7 April 2000 the Commissioner further
interviewed Suzanne (Annex 111) Suzanne said that she worked for
Dr Reid in the morning and at the weekend. The Commissioner asked
her whether she got any "bonus payment" from the Labour
Party. Suzanne said that she did not. It was on this occasion
that the Commissioner grilled her about her lawyer.
58. The Commissioner also asked Suzanne for telephone
records. This was pressed strongly thereafter (Annexes 112-127),
even at the time Suzanne was taking examinations.
59. On 10 April 2000 the Commissioner interviewed
Sullivan (Annex 172). He said that Kevin went away from the Scottish
Labour Party early afternoon.
60. The position at this stage was that not only
had Dr Reid refuted the complaint but also:
(1) His refutation continued to be supported
by Kevin and Suzanne;
(2) His refutation was further supported not
only by Whyte but also Quinn;
(3) McKinney and Rafferty continued not to support
the complaint, and Sullivan did not support it;
(4) Rowley alone alleged that there was a conspiracy
which included Whyte and Upton, an allegation which had not been
put (and has not been put) to either of them.
61. On 18 April 2000 the Commissioner:
62. The Commissioner stated to McKinney that
she had been informed (she did not say by whom, but it must have
been Nelson) and she saw that it was reported in the Observer
article (which was by Nelson!) that Dr Reid, having said something
like "my boy Kevin isn`t doing anything, he could come and
help", went on to say "and I will find a way of paying
him". She asked McKinney whether that was correct.
63. The Commissioner wrote to McKinney again
on 2 May 2000 (Annex 167). She referred to an unidentified witness`s
account of a conversation with him, asked whether that account
was correct, and further asked, if it was not correct, whether
McKinney could offer any explanation as to why "any witness"
should claim to have heard the words in question.
64. On the same day the Commissioner wrote to
Sullivan, as follows (emphasis supplied) (Annex 173):
"In his account of his conversation with
you, Mr Nelson claims you told him your heard Suzanne Hilliard
say that, whilst working at as a volunteer for the Labour Party,
she was "getting Maxton`s money". You did not, however,
use those specific words in your meeting with me on 10 April.
Bearing in mind that Ms Hilliard was nor formally employed
by Mr Maxton until 1 June 1999, could you please confirm whether
or not you heard Suzanne Hilliard use those words? If not, could
you offer any explanation as to why Mr Nelson might have formed
an erroneous impression on this point?"
65. On 5 May 2000 McKinney replied to the Commissioner`s
letter to him of 18 April 2000, as follows (emphasis supplied)
"You asked about my recollections of the
conversation with Dr Reid. I cannot be certain of his exact words.
I think when I was first pushed on this point I may
have said, in the context of the line of questioning, that
Dr Reid had mentioned payment. However now that I have
been forced to consider these issues in such depth I cannot swear
to Dr Reid`s words, and certainly cannot guarantee that he talked
about cash. What I am certain of is that he talked to me and said
Kevin was free to work. Further to that I am not sure enough of
what was said to make a definite statement."
66. By letter to the Commissioner`s office dated
8 May 2000 (Annex 205), Andrew Walker, the House of Commons Director
of Finance and Administration ("the Director of Finance"),
(1) Other than the fact that the details
of the salaries which Kevin and Chris received from their part-time
employment with Dr Reid and Maxton appear in Scottish Labour Party
documents, he had seen no evidence about any assumptions that
the Scottish Labour Party might have made about taking advantage
of their OCA salaries to "top up" their Labour Party
(2) There were two separate employments, and
although it might be that long hours were being worked, this did
not in itself lead to the conclusion that the salary from the
MP was a "top up";
(3) "In summary, the evidence we have seen
from our own records and our dealings with Dr Reid and Mr Maxton
is consistent with the proper and acceptable use of the Office
Costs Allowance" (emphasis supplied).
67. On 23 May 2000 the Director of Finance wrote
again (Annex 207) to the Commissioner`s office (in reply to further
letters) stating that Archie Cameron (Fees Officer) and himself
(the Director of Finance) had looked at the figures again, and
considered the further information sent to them, and that their
view remained that there is no prima facie evidence of a cross-subsidy
from the OCA. They concluded, as follows:
"In summary, from the documentation I have
seen, I remain of the view that there is no clear evidence of
wrongdoing. Indeed, if anything I am a little more inclined to
favour an innocent explanation. The key question remains: were
either or both of them working full-time for the SLP, while they
were still being paid from the OCA? I doubt that the budget figures
are going to give us a clear answer. Even an authoritative set
of accounts might not get us any further."
66. On 28 June 2000 the Director of Finance wrote
yet again (Annex 209) to the Commissioner`s office (in reply to
further letters), as follows:
"We have analysed, in spreadsheet form,
Kevin Reid`s and Chris Winslow`s payslips, calculated the employer`s
NI contributions and compared the result with the Scottish Labour
Party`s budget forecasts, as at January 1999. I enclose the spreadsheets,
which I hope are largely self-explanatory. We have added one or
two observations on the spreadsheets, covering a few relatively
minor points. Overall, the results are in line with what we would
expect, in terms of their attempt to anticipate cash flow, and
consistent with the possible explanations in my letter of 23rd
Turning to your second letter, the explanations provided
by Annmarie Whyte are broadly consistent with the documentary
evidence which we have seen. We have not detected any obviously
I hope this will the Commissioner to progress to
a conclusion with her investigations."
69. On 5 July 2000 Dr Reid submitted to the Commissioner
his full response (Annex 27) to an extensive questionnaire administered
to him by her. He did so notwithstanding that she had not given
him all relevant evidence.
70. The position at this final stage was that:
(1) Dr Reid had comprehensively refuted the
(2) His refutation was supported by a number
(3) The only possible inference against him was
rejected by (amongst others) the Director of Finance of the House
(4) McKinney and Sullivan continued not to support
(5) Only Rowley (and possibly the untrustworthy
Rafferty, but only after great misleading and pressure) supported
(6) Acceptance of Rowley would involve findings
of dishonesty against not only the 2 MPs and the 3 researchers
but also against at least Whyte (in Glasgow) and Upton (in London),
but the allegation has not even been put to either of them (notwithstanding
that each were questioned by the Commissioner repeatedly, in the
case of Whyte while she was on maternity leave).
71. In paragraph 4 of the Report the Commissioner
defines Nelson`s complaint as being that "Dr Reid and Mr
Maxton made an arrangement to draw upon their House of Commons
Office Costs Allowance to pay salaries to the three researchers,
knowing that they were, in effect, going to work, for at least
some of their time, for the Labour Party". This complaint
should have been, and should be, rejected out of hand, as being
manifestly misconceived. There is nothing in the least wrong with
such an arrangement. Working as a researcher for a MP (and being
paid as such) and working (paid or unpaid) for the Labour Party
or whoever is entirely permissible. It is far removed from any
question of impropriety.
72. The Commissioner goes on in paragraph 4 to
redefine the complaint. This, however, makes for confusion as
to what the complaint is.
73. This confusion permeates not only the Report.
It permeated the entire investigation.
74. Paragraphs 4 and 5 are also significant in
two further respects.
(1) They make clear that the Commissioner
based her decision to take the matter further exclusively on material
emanating from the journalist, Nelson;
(2) They make clear that the Commissioner saw
fit to make a deal with Nelson (for Nelson to make selection and
partisan disclosure of tapes) before taking the matter further.
75. Notwithstanding this botched start, the investigation
could have come on course at an early stage. In their initial
responses both MPs made clear that the three researchers had fully
met their Parliamentary obligations, whatever additional work
they might have done for the Labour Party. This focussed attention
both on what was relevant, whether they met their Parliamentary
obligations, and what was not relevant, what additional work they
did for the Labour Party. Unfortunately, the Commissioner remained
mesmerised by what was irrelevant and neglected what was relevant.
76. In paragraphs 16-32 the Commissioner sets
out the "undisputed facts" concerning the three researchers.
These, however, are woefully incomplete.
77. The significant omissions in the case of
Kevin include that:
(1) He worked for Dr Reid for nine years
prior to the Scottish Parliamentary Elections: there was simply
no question of an "arrangement" tailored to those Elections;
(2) He left the Scottish Labour Party offices
by, at the latest, 2 pm every day, Monday-Thursday, if not on
the totality of the evidence, somewhat earlier;
(3) He left the Scottish Labour Party offices
by 11.00 am on a Friday;
(4) He did not work for the Scottish Labour Party
on Saturday or Sunday;
(5) He did perform work and duties for Dr Reid
during the relevant period.
78. The significant omissions in the case of
Suzanne are similar. They include that:
(1) She did not work for the Scottish Labour
Party in the mornings, but only in the afternoons, and sometimes
(2) She did not normally work for the Scottish
Labour Party on Saturdays or Sundays;
(3) She stopped attending University within one
month of starting work for Dr Reid;
(4) She did perform work and duties for Dr Reid
during the relevant period.
79. The undisputed facts are, once attention
is paid to them, of crucial importance, especially because:
(1) Dr Reid, as a MP representing a Scottish
seat at Westminster, and as a Minister in Whitehall, obviously
had work and duties that someone in Scotland had to perform for
him in Scotland;
(2) Kevin and Suzanne did successively perform
such work and duties;
(3) The time they spent at the Scottish Labour
Party did not exclude this.
80. The undisputed facts simply knock the complaint
on the head. It is incredible that the Report does not conclude
at this point.
81. Section 3 of the Report, however, goes on
to address the question whether there was an "arrangement
to pay the three researchers from public funds to work on the
Scottish election campaign". This is an extraordinarily ill
judged formulation. If the arrangement was to pay the three researchers
from public funds for work they would do for the MPs and that
they would also be working on the Scottish election campaign this
was an entirely innocent arrangement. On the other hand, there
was no question of an arrangement that the three researchers should
work on the Scottish election campaign to the exclusion of working
for the MPs. It is an undisputed fact that they did work for the
82. There is no evidence of any sinister arrangement.
The Commissioner claims that there is a "conflict of evidence",
between McKinney and Nelson. There is not. McKinney does provide
evidence. That evidence consistently does not support there being
any sinister arrangement. Nelson does not provide any evidence.
83. The whole rambling Section is thoroughly
unsatisfactory. It never becomes apparent just what arrangement
it is being suggested may have been made between whom and when
and where, or what evidence may be capable of substantiating any
such suggestion. It would appear that reliance is being sought
to be placed on Scottish Labour Party budget documents, bonus
payments, and Kevin`s mortgage application. The mortgage application
and the bonus payments are the reddest of red herrings. The House
of Commons itself confirms that no adverse inference can sensibly
be drawn from the budget documents. (It is not even apparent whether
what is being alleged is one arrangement or a number, eg in May
1998 in relation to Dr Reid and Kevin, in October 1998 in relation
to Suzanne, on some other occasion in relation to Maxton and Chris.)
84. Section 4 of the Report again poses an extraordinarily
inapposite and confusing question, namely "How much time,
if any, did Kevin Reid, Suzanne Hilliard and Chris Winslow spend
working on the Scottish election campaign while paid by public
funds?" The same vice resurfaces. The three researchers being
paid from public funds for work they did for the MPs was wholly
proper, however much time they spent in addition working on the
Scottish election campaign.
85. The question then seems to be translated
into three sub questions: was Kevin working "full-time"
for the Labour Party during the period when he was employed as
Dr Reid`s Parliamentary researcher; was Suzanne working "full-time"
for the Labour Party throughout the period in question; was Chris
working "full-time" for the Labour Party throughout
the period in question? This is hopeless. Whether or not they
were working "full-time" for the Labour Party does not
matter. The eye is on the wrong ball. The question rather is whether
or not they were working as researchers for the MPs. The answer
to that question is that it is an undisputed fact that they were.
If, on the other hand, it were relevant whether or not they were
working "full-time" for the Labour Party, then it would
be vital to define this expression. This, however, is never done.
86. No further questions are posed. In other
words, no appropriate question is ever framed.
87. Section 9 purports to analyse the evidence.
It does so under two headings. These do not include the one heading
that does matter, namely whether they were working for the MPs
during the relevant periods. Again, one comes back to the two
88. The first of the two questions to which the
Commissioner gives attention is whether there was an arrangement,
involving the MPs or either of them, under which the Labour Party`s
internal planning, including its budget, assumed that the work
done by any of the three researchers for the Party would, at least
in part, be paid for from the OCA. Again, the Commissioner asks
the wrong question, and gives the wrong answer.
89. As to question, of course:
(1) The three researchers were going to be
paid for part of their time from OCA;
(2) Given the undisputed fact that they were
working for the MPs, this was entirely proper;
(3) They were in addition going to be doing work
for the Party;
(4) This too was entirely proper;
(5) The MPs knowledge, and approval, of the researchers
doing work for the Party is not in any sense capable of being
regarded as guilty knowledge on the part of the MPs;
(6) Knowledge within the Labour Party as to whether
works for the Party were also doing work for MPs is not in any
sense capable of being regarded as guilty knowledge on the part
of the Labour Party;
(7) The question is meaningless.
90. As to the answer, the Commissioner concentrates
on the Scottish Labour Party`s budgetary arrangements, but:
(1) She disregards the best evidence as to
interpretation, from the Director of Finance of the House of Commons;
(2) She disregards the best evidence as to fact,
from Upton and Whyte;
(3) She relies solely on Rowley, but he himself
(4) She manipulates the figures;
(5) Her conclusion is essentially that the circumstances
are suspicious and innocence has not been proved.
91. The second question to which the Commissioner
gives attention is the level of commitment to the Labour Party
by the three researchers during the relevant period. Again:
(1) It is the wrong question;
(2) It is answered by manipulation of the figures;
(3) The burden of proof is reversed on the one
point that matters, namely, given that it is accepted that both
Kevin and Suzanne did do work for Dr Reid, how much work was done.
92. The case in support of the complaint as summarised
by the Commissioner consists essentially of the following:
(1) Evidence provided by Rowley that an arrangement
had been entered into to cross-subsidise the Scottish Labour Party`s
campaign expenditure from the OCA: this is uncorroborated, and
has not been put to Whyte and Upton, who are alleged to have been
parties to the arrangement;
(2) Evidence to the effect that the work done
by the 3 researchers for the Scottish Labour Party was at least
partly supported by OCA payments: there is none;
(3) The Scottish Labour Party budget documents:
the Fees Office advises, correctly, that they do not give
rise to any sinister inference;
(4) The long hours worked by the 3 researchers
for the Scottish Labour Party: these do not preclude the
discharge of their duties to the MPs, and the Commissioner can
suggest otherwise only be extreme manipulation of the figures;
(5) Insufficiency of affirmative proof of innocence:
this reverses the burden of proof.
93. There is, however, no burden of proof upon
Dr Reid. Moreover, in assessing the balance of probabilities:
(1) Regard must be had (but was not) to all
the evidence, including all that provided not only by Dr Reid
himself but also by other witnesses who support him;
(2) There must be an assessment (but there was
not) of the witnesses for and against him; and
(3) The distinction must be maintained (but it
was not) between evidence (eg McKinney) and non-evidence (eg Nelson).
94. The position ultimately in barest summary
is as follows:
(1) The balance of probabilities is not the
(2) In any event, and more importantly, not even
that test has been applied at any stage;
(3) Had it been applied, it would have come nowhere
near to being satisfied.
95. The Report is for all the reasons given above
the more than shoddy outcome of an investigation that was mishandled
throughout. The Report does not on any examination and analysis
provide a case remotely fit for consideration.
13 October 2000 James