MP FURTHER ADVICE
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
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
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
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
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
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
21. Where we are at nowparagraph 255 (i)
of the Reportis that the arrangement was, or the arrangements
(1) "agreed by Labour Party officials";
(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. (Norparagraph
255 of the Reportis "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
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";
(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
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
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,
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
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
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,
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
(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
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
3 November 2000
James Goudie QC