Select Committee on Standards and Privileges Second Report


APPENDIX 2

Memorandum submitted by Dr John Reid MP

SECTION TWO:
A
DVICE: JAMES GOUDIE QC

INTRODUCTION

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 Report.)

4.    As will appear, in summary my conclusions are that: —

    (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 justice;

    (5)  It has been fundamentally and fatally flawed;

    (6)  No reliance can be placed upon it.

CONTEXT

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 observed."

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).

ECHR

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.

THE COMPLAINT

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 unidentified sources;

    (2)  Nelson`s "notes" of his alleged "conversations" with "unspecified" individuals (he had, importantly, no direct knowledge of his own); and

    (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 herself;

    (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 occupation.

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.

STANDARD OF PROOF

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 developed below.)

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 ..."

THE WITNESSES

26.  Not only the MPs, but also their researchers (and others), were in the firing line. It is disingenuous to suppose otherwise.

27.  The researchers were fully entitled to obtain legal assistance. That assistance was, elementarily, privileged from disclosure.

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 was disgraceful.

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 of clarification.

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 carpet.

THE INVESTIGATION: THE FIRST STAGE

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 85;

    (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: Annex 108;

    (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 pressed.

THE INVESTIGATION: THE SECOND STAGE

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 research funds.

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 about 11.30/12.00;

    (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.

THE INVESTIGATION: THE THIRD STAGE

61.  On 18 April 2000 the Commissioner: —

    (1)  Interviewed Rafferty yet again (Annex 154A); and

    (2)  Wrote again to McKinney (Annex 166).

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) (Annex 168): —

    "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"), stated that: —

    (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 salaries;

    (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 May ...

    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 suspicious elements.

    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 complaint;

    (2)  His refutation was supported by a number of witnesses;

    (3)  The only possible inference against him was rejected by (amongst others) the Director of Finance of the House of Commons;

    (4)  McKinney and Sullivan continued not to support the complaint;

    (5)  Only Rowley (and possibly the untrustworthy Rafferty, but only after great misleading and pressure) supported Nelson`s complaint;

    (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).

METHODOLOGY OF THE REPORT

SECTION 1

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.

SECTION 2

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 the evenings;

    (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.

SECTION 3

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 MPs.

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.)

SECTION 4

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.

SECTION 5-8

86.  No further questions are posed. In other words, no appropriate question is ever framed.

SECTION 9

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 basic points: —

    (1)  It is an undisputed fact that they were;

    (2)  This disposes of the complaint.

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 counsels caution;

    (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.

EVIDENCE

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).

CONCLUSION

94.  The position ultimately in barest summary is as follows: —

    (1)  The balance of probabilities is not the appropriate test;

    (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 Goudie QC


 
previous page contents next page

House of Commons home page Parliament home page House of Lords home page search page enquiries index

© Parliamentary copyright 2000
Prepared 22 December 2000