Select Committee on Standards and Privileges Second Report



1.    This advice is further to my written Advice dated 13 October 2000. My Advice addressed the Draft Report by the Parliamentary Commissioner for Standards ("the Commissioner") sent to Dr Reid on 6 September 2000.

2.    Since then the Report has been finalised by the Commissioner. This includes a new Section X, "Conclusions".

3.    It is in relation to these Conclusions that I am now asked to advise. Essentially, they increase my concerns about the Commissioner`s investigative process and strengthen my criticisms of her Report.

4.    The crucial points that the Commissioner fails to absorb are that:—

    (1)  There is nothing in the least wrong with using Westminster allowances to pay a researcher who is expected to and duly does for an MP what the researcher has contracted to do for the MP: this is elementary, but of central importance in this case;

    (2)  It makes no difference that the MP`s researcher (especially if, as here, part-time) is in addition engaged in some other occupation, or indeed occupations;

    (3)  It makes no difference that the MP knows of or even positively approves or initiates that other engagement;

    (4)  It makes no difference whatsoever whether or not that other engagement is paid;

    (5)  Importantly, it makes no difference whatsoever whether that other engagement is party political.

5.    In other words the twin tracks, of (i) working as a researcher for an MP representing a Scottish constituency at Westminster, paid as such by the Office Costs Allowance, and (ii) working for the Scottish Labour Party in the Scottish Election Campaign, paid by the Labour Party or unpaid, are a perfectly permissible combination.

6.    Nor was any investigation required in order to establish that this was the factual position. The MPs and the researchers have throughout openly acknowledged that this was the case.

7.    In the Conclusions of her Report the Commissioner at any rate recognises that:—

    (1)  There is no basis for concluding that Kevin Reid`s level of commitment to his Parliamentary duties fell significantly (if at all) short of what was required: paragraphs 267 and 285 (a);

    (2)  There is evidence that Suzanne Hilliard assisted Dr Reid with his constituency case-load while his constituency secretary was working only part-time as a result of illness and, more particularly, while his constituency secretary was continuously absent from early December 1998: paragraph 268 (which grossly understates the amount of work being done by Suzanne Hilliard for Dr Reid as established by the evidence, not least because Dr Reid`s constituency secretary was off work continuously, except for a few hours per week in February, from 7th December 1998 until 17th May 1999);

    (3)  Mr Rafferty was aware that Chris Winslow was doing some Parliamentary work during the period of which Mr Rafferty has knowledge: paragraph 273.

8.    In other words, even on a minimalist view, each of the researchers was undoubtedly actually performing Parliamentary work as well as working in the Scottish Labour Election Campaign. It would to say the least be bizarre if in all three cases this was pursuant to an arrangement, or arrangements, that none of them would actually perform any Parliamentary work.

9.    Any sinister arrangement would therefore have to be that they should do less Parliamentary work than they were contracted to do. There is, however, no evidence of any arrangement of this kind.

10.  In the cases of Suzanne Hilliard and Chris Winslow the Commissioner seems to be of the view that there was a period when they were in fact doing somewhat less Parliamentary work than they were contracted to do. This, however, is wholly unsubstantiated.

11.  As regards Suzanne Hilliard (Chris Winslow is not relevant to the case against Dr Reid), the Commissioner appears to base herself on two matters:—

(1)  Suzanne Hilliard`s "primary commitment" was, the Commissioner asserts, to the Party;

(2)  Suzanne Hilliard allegedly "lied" to the Commissioner about a "bonus payment" from the Labour Party.

12.  It cannot matter whether Suzanne Hilliard`s "primary commitment" was to the Party. Her commitment to Dr Reid was for only 20 hours per week. Moreover, they were variable hours. That manifestly does not exclude well over 20 hours per week for the Party (especially given that when she started work for Dr Reid she gave up a University course).

13.  What about the very serious allegation against Suzanne Hilliard that she has "lied" to the Commissioner? This allegation cannot be justified. This is for at least two reasons.

14.  First, the Commissioner did not straightforwardly ask Suzanne Hilliard (who at that time was in the midst of her Finals) whether she got any "payment" from the Labour Party, in addition to the expenses which Suzanne Hilliard herself disclosed (Annex 108). Rather, the Commissioner chose to ask Suzanne Hilliard whether she got any "bonus payment" from the Labour Party. That was the question which the witness answered in the negative.

15.  Her response cannot fairly be stigmatized as a "lie". There is no reason why Suzanne Hilliard should have regarded the ex gratia payment she did receive as a volunteer as "bonus". On the contrary, "bonus" suggests payment over and above salary. It is common ground that there was no Labour Party salary in her case.

16.  Secondly, if Suzanne Hilliard`s response (and/or proof reading omission) was to be regarded as a "lie", basic fairness to her (and indeed to Dr Reid, if her "lie" is to be somehow used against him) required that this should be squarely put to her, so that she had an opportunity to explain (especially if there is any question of the Commissioner`s Report being published). Even if her answer were at first blush suspicious, it may have been innocently and convincingly explained.

17.  Once it is recognised as it now inevitably is in respect of Kevin Reid and fairly should be in respect of Suzanne Hilliard as well, that no improper arrangement was put into effect, it is apparent that it is not credible that there was any improper arrangement.

18.  Not only, however, is any arrangement devoid of any improper content. There is no evidence that there was an "arrangement" at all.

19.  Indeed it remains wholly unclear whether the Commissioner is alleging a single arrangement, into which Dr Reid and Mr Maxton entered jointly, and which, in the case of Dr Reid, covered both his son and Suzanne Hilliard at successive periods of time, or whether she is alleging a series of arrangements. The Commissioner keeps jumping from the singular to the plural and back again.

20.  It has throughout the investigation been a moveable feast as to what is the alleged improper arrangement, or what are the alleged improper arrangements, into which it is said that Dr Reid and Mr Maxton, jointly or severally, entered, and when, where, how and between whom it is alleged that the arrangements were made.

21.  Where we are at now—paragraph 255 (i) of the Report—is that the arrangement was, or the arrangements were:—

(1)  "agreed by Labour Party officials"; and

(2)  "incorporated within" Scottish Labour Party "budget assumptions".

22.  This is nothing short of amazing. The "Labour Party officials" are not even at this point identified. Who were they, if not Mr Rowley and Annmarie Whyte (in Glasgow) and John Upton (in London)? To neither of Whyte or Upton has it, however, been directly put by the Commissioner that they are guilty. Nor are there any grounds for saying that they are.

23.  Moreover, the Scottish Labour Party budget documents do not support any adverse inference. (Nor—paragraph 255 of the Report—is "the balance of probabilities" the correct test.) I refer to my earlier Advice, and all the accountancy advice.

24.  Section X of the Report starts with the question whether Dr Reid and Mr Maxton were involved to any extent in an arrangement to "cross-subsidize" the Labour Party`s Scottish Parliament election campaign from the Office Costs Allowance. Section X concludes by answering that question in the affirmative.

25.  In view of the fact that the question concerns "cross-subsidy", it is remarkable, to put it mildly, that nowhere in her Conclusions does the Commissioner see fit to draw the attention of the Committee to the view both of Andrew Walker, the Director of Finance and Administration, and of Archie Cameron, Head of the Fees Office, that there is no evidence of cross-subsidy.

26.  In truth, if the budget documents do not support the Commissioner`s case, and they do not, she has no case.

27.  She does nevertheless seek to draw support (paragraph 255) from two further matters:—

    (1)  "the evidence of credible witnesses such as Mr Rowley and Mr Rafferty, senior Labour Party officials with responsibility for the deployment of campaign staff"; and

    (2)  "the evidence of others involved in the campaign such as Mr McKinney and Mr Sullivan which corroborates key aspects of the information provided by Mr Rowley and Mr Rafferty."

28.  This formulation by the Commissioner rolls up a number of propositions:—

    (1)  Mr Rowley had relevant responsibility at the relevant time, whenever that may have been;

    (2)  Mr Rafferty had relevant responsibility at the relevant time, whenever that may have been;

    (3)  Mr Rowley gives the Commissioner evidence which supports Mr Nelson`s complaint;

    (4)  Any such evidence is credible;

    (5)  Mr Rafferty gives the Commissioner evidence which supports Mr Nelson`s complaint;

    (6)  Any such evidence is credible;

    (7)  Mr McKinney gives evidence to the Commissioner which corroborates key aspects of the information provided by Mr Rowley and Mr Rafferty; and

    (8)  Mr Sullivan gives evidence to the Commissioner which corroborates key aspects of the information provided by Mr Rowley and Mr Rafferty.

29.  As to (1), Mr Rowley had responsibility in relation to the Scottish Labour Party Election Campaign, albeit only from May 1998. He did not, however, at any time, have any responsibility in relation to the MPs.

30.  This is important: for the obvious reason that what matters is not what the researchers were doing in the Campaign, about which Mr Rowley would have some knowledge, but what they were doing for the MPs, which was of course outwith his remit.

31.  As to (2), Mr Rafferty also had no responsibility or knowledge in relation to the vital matter, what the researchers were doing for the MPs. In relation to the Labour Party, his involvement was only from a late stage (mid January 1999) and in a role which, in his own words (Annex 150) "specifically excluded responsibility for the employment or management of Labour Party staff".

32.  Presumably any unlawful arrangement is alleged to have been made at a time which would have been before Mr Rafferty came on the scene.

33.  As to (3), the very fact that Mr Rowley had the responsibility that he did have within the Scottish Labour Party makes it implausible that there could have been a conspiracy without him being a prime mover in it, and fully aware of its details. It is necessary to examine his "evidence" with care.

34.  In particular, it is necessary to consider whether Mr Rowley`s "beliefs" may have been influenced by his obvious ignorance of many of the facts concerning Dr Reid`s employment of his staff. For example, even by March 2000 (Annex 129, page 4), Mr Rowley was unaware about any arrangement in relation to Suzanne Hilliard; and see paragraph 13 of Dr Reid`s Statement to the Committee.

35.  As to (4), the question of credibility must be considered in relation to the relevant evidence. Paragraphs 19 and 20 of Dr Reid`s Statement to the Committee and his Annex A are especially pertinent in this connection.

36.  As to (5), Mr Rafferty does not, even after pressure, give evidence which materially supports Mr Nelson`s complaint against Dr Reid. Kevin Reid was no longer contracted to do work for his father by the time Mr Rafferty became involved. Mr Rafferty did not know what work Suzanne Hilliard did outside the Labour Party.

37.  As to (6), if Mr Rafferty is to be regarded as relevant, it is highly pertinent, though, significantly, not so regarded by the Commissioner, both that Mr Rafferty was dismissed by the late First Minister for lying, and that even Mr Rowley regarded Mr Rafferty as untrustworthy. (Moreover, Mr Nelson`s article, in The Observer, in January 2000, which forms the basis of the complaint, appeared shortly after Mr Rafferty`s dismissal, in December 1999.)

38.  As to (7), Mr McKinney does not corroborate any key or other aspect. As he himself says (Annexes 162, 164 and 165) he was employed by the Labour Party for only 2 months, during that period he had no responsibility for personnel matters and no knowledge of specific contractual arrangements or hours worked, did not even know Suzanne Hilliard, and was not aware of any concerns about employment matters. Far from being corroborative, Mr McKinney`s evidence contradicts allegations which are not more than a blend of hearsay and speculation.

39.  As to (8), Mr Sullivan does not corroborate any key or other aspect. He was indeed not in a position to know, as he himself made clear.

40.  In summary, Mr Rowley is not corroborated by any of Messrs Rafferty, McKinney and Sullivan or anyone else. He is, on the other hand, contradicted by other, unimpeachable, witnesses.

41.  One comes back to the point that the Commissioner`s high water mark is a highly strained interpretation by her of the budget documents. But even Mr Rowley counsels caution in relation to these.

42.  The conclusions in the Report in relation to the complaint are unsustainable. They could not have been arrived at if there had been a proper and fair investigative process by the Commissioner.

43.  The Commissioner, however, accuses the MPs of misconduct during her investigation, and introduces these accusations into the conclusions of her Report; (paragraphs 274-284 and 286). In the case of Dr Reid, this appears to boil down (paragraph 286) to an allegation that he did not positively seek to encourage "witnesses" to give a full and accurate account to the Commissioner. On examination, moreover, this allegation seems to concern a single witness, Mr Rowley.

44.  The allegation, that Dr Reid did not seek to encourage Mr Rowley to give a full and accurate account to the Commissioner, is baseless. It is also probative of nothing, and prejudicial.

45.  Mr Rowley set up and surreptitiously taped the telephone conversation he had with Dr Reid on 20 March 2000 on which the Commissioner seeks to rely. What that reveals, however, (transcript at Annex 145) is that Dr Reid did encourage Mr Rowley to give a full and accurate account to the Commissioner.

46.  How then can the contrary be misrepresented? In four ways:—

    (1)  By selective and partisan quotation: for example, in paragraph 167 of her Report the Commissioner highlights Dr Reid saying "They cannot prove anything, Alex", which comes over very differently from what was actually said, namely "They cannot prove anything, Alex. Because what you`ve said they can prove is a lie. Kevin Reid worked for me. He worked for me.";

    (2)  By loaded comment: for example, in paragraph 277 of her Report, the Commissioner says that the transcript does not contain any "overt threats", whereas the fact is that it does not contain any threats at all, and, indeed, on the contrary, contains positive reassurances;

    (3)  By placing special emphasis ("of particular concern") on Dr Reid not having encouraged Mr Rowley to provide all his evidence on oath: yet in paragraph 22 of her Appendix to the Committee`s Ninth Report (4 April 2000) the Commissioner herself stated, "I have never taped a conversation with a Member of Parliament though I would do so if requested. Nor have I taken evidence on oath though I would do so if requested. Witnesses have asked me if they could give evidence on oath and I have said yes. To date none has done so.";

    (4)  By outrageous and defamatory speculation: for example, in paragraph 274, in relation to witnesses, "a more disturbing possibility is that pressure of various kinds had been brought to bear on them by Dr Reid, by Mr Maxton, or both."

47.  There are numerous detailed further criticisms that can legitimately be made on behalf of Dr Reid. In the end one has to stand back and look at the overall picture. What one is left with is a series of attempts by the Commissioner to smear Dr Reid, but no solid content which should be allowed to sully his reputation.

3 November 2000

James Goudie QC

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