Background to the Bill
In recent years, the Parliament has undertaken a significant amount of work to address sexual harassment. The work was initiated in late 2017 as a response to media reports of alleged sexual harassment and misconduct at the Scottish Parliament as well as elsewhere, including at the UK Parliament.
The Scottish Parliamentary Standards (Sexual Harassment and Complaints Process) Bill is a Committee Bill. The Bill’s introduction follows the Standards, Procedures and Public Appointment (SPPA) Committee’s inquiry on the subject (December 2017-June 2018), the results of the Parliament’s survey on sexual harassment and the report of the Parliament’s Joint Working Group on Sexual Harassment and Sexist Behaviour.
The Policy Memorandum to the Bill notes that the aim of the Committee in introducing the Bill is:
“to ensure that the highest standards of conduct among MSPs are upheld, particularly with respect to sexual harassment. The Committee believes that it is in the parliamentary and wider public interest to allow anyone who might have been sexually harassed by a serving or former member to complain about that, whenever the alleged harassment occurred, and for all such complaints to be investigated.”Policy Memorandum
Bill Kidd MSP, as Convener of the SPPA Committee, introduced the Scottish Parliamentary Standards (Sexual Harassment and Complaints Process) Bill on 13 November 2020.
Why is the Bill required?
The Code of Conduct for MSPs was introduced in February 2002. The Code has always contained provisions requiring MSPs to treat other MSPs, Parliamentary staff (including staff employed by contractors providing services to the Parliament, e.g. catering and postal services) and the staff of other MSPs, with courtesy and respect.
Conduct by MSPs towards their own staff was not, however, covered by the Code until earlier this year (final changes to the Code being approved by the Parliament on 10 December 2019 and coming into effect on 7 January 2020). Prior to these changes to the Code, issues between an MSP and a member of staff employed by them were regulated by employment law.
Whilst the changes to the Code provide that a complaint received by a member of staff about their employing MSP can be investigated by the Commissioner for Ethical Standards in Public Life in Scotland (“the Commissioner”), there is no mechanism by which a historic complaint by a member of MSP staff about their employing MSP can be investigated.
The SPPA Committee’s view was that staff employed by an MSP should be able to take complaints of historic behaviour, which included sexual harassment, to the Commissioner. In reaching this conclusion, the Committee acknowledged that often reports of inappropriate behaviour are not made at the time because of concerns around future career prospects and the imbalance of power which can exist between an MSP and member of their staff.
What does the Bill provide for?
The Bill provides for two key changes in relation to how complaints of historic sexual harassment are dealt with in regard to MSPs’ staff.
Firstly, the Bill extends the remit of the Commissioner so that the Commissioner can investigate reports of historic sexual harassment made by MSP staff where their complaint is against their employing MSP. In allowing for historic complaints, the Bill provides that a complaint can be made against a person who is no longer an MSP so long as the matter being alleged took place whilst the individual was a member of the Scottish Parliament.
Secondly, the Bill removes the one-year time limit on the investigation of historic complaints. Strictly speaking the Commissioner could seek direction from the Committee on a historic complaint if otherwise it was admissible. Nevertheless, the Committee felt that this could act as a deterrent to anyone wishing to raise a historic complaint. As such the Bill addresses this admissibility step.
The Bill gives effect to these provisions by amending the Scottish Parliamentary Standards Commissioner Act 2002.
The Bill places MSPs’ staff on the same footing as staff employed by the Scottish Parliamentary Corporate Body (and other staff working at the Parliament such as contractors) in terms of their ability to make a compliant about historic harassment by their employer.
The Bill also alters the admissibility criteria in relation to all complaints about historic misconduct and it removes the requirement for a signature on complaints and on complaint withdrawals. This is something which the Commissioner had raised with the SPPA Committee generally as being a barrier to an effective online complaints process.
Section 1 of the Bill amends section 3 of the Scottish Parliamentary Standards Commissioner Act 2002 so as to enable the Commissioner to investigate complaints alleging past sexual harassment by an MSP (that is, someone who was an MSP at the time of the conduct complained about) by a member of that MSP’s own staff.
Section 2 of the Bill amends section 6 of the Scottish Parliamentary Standards Commissioner Act 2002 so as to remove the one-year time limit. This means that the Commissioner is able to consider the complaint without seeking a direction from the Committee, even if it is made more than a year after the alleged incident.
Section 3 amends section 6 of the Scottish Parliamentary Standards Commissioner Act 2002 so as to remove the requirement for a complaint to be signed. This removal of the need for a signature means that a complaint can be made electronically. It will remain necessary for a complaint to be made by an individual person, stating their name and address amongst other things.
Stage 1 will take place on 16 December 2020.
Sarah Atherton, senior researcher SPICe