Adam Tomkins: An ethical standards commissioner in search of standards

Let us start the new year on a point of consensus. Achieving the highest ethical standards in public life is something we would surely all vote for. Having the fullest confidence in the supposedly independent institutions who are paid handsomely by the taxpayer to ensure standards in public life is a necessity.

Sadly in today’s Scotland, that confidence is missing. The auditor-general published an astonishing and damning report into the Ethical Standards Commissioner just before Christmas. In it, the auditor voiced what he called “significant concerns about the operation” of the Ethical Standards Commissioner’s office.

To compound problems of inadequate governance and scrutiny arrangements and failures to secure best value (i.e. the taxpayer is being ripped off), working relationships with other key actors have “deteriorated to a significant degree”, the auditor found, leading to a “breakdown” of those relationships and risking a loss of public trust.

Having had direct experience of the Ethical Standards Commissioner myself, I was dismayed but not surprised to read the auditor-general’s remarks. Most of the Commissioner’s work is confidential, but the case against me was finally dismissed in December and now I am free to talk about it. You need read only the critical verdict of the auditor-general to know that my sorry story is far from being a one-off.

I was placed under investigation for nine months for a tweet I sent in March 2020 when I was still an MSP. The tweet was about John Swinney who, at the time, was under intense parliamentary pressure to publish information which he had strenuously sought to withhold ¬- information pertaining to what were then the ongoing committee hearings in Holyrood into the Scottish Government’s mishandling of the complaints of sexual harassment made against former first minister Alex Salmond.

Parliament had formally resolved, not once but twice, that Mr Swinney should release the information. Yet still Mr Swinney resisted, ignoring the will of Parliament as he did so. His resistance was broken only when it became clear that a motion of no confidence in Mr Swinney was highly likely to be passed (had it been passed, Mr Swinney would have had no choice but to resign from the Government).

The stakes were high. Blood was up. I was an opposition MSP, furious with the games I thought ministers were playing to block Holyrood’s inquiry. On the night John Swinney finally relented I tweeted: “Swinney does the right thing not because it’s the right thing to do but only because it’ll save his neck. Devious unscrupulous manipulative little man.”

Ooft. Not exactly edifying, is it? On one view it’s a horrible tweet, which makes the cardinal error of playing the man and not the ball. On another view, Mr Swinney’s honour and character were precisely the issue of the moment, and what was an opposition MSP to do but to draw attention to that? Let’s put it this way: it’s not a tweet I’m proud of. Even amid the fury of that dark time, I should have expressed myself better than that.

It did not especially surprise me that someone made a formal complaint to the Ethical Standards Commissioner that the tweet breached the MSP code of conduct. But it did surprise me that the commissioner spent several months investigating the complaint, that he upheld it, and that it then took the Scottish Parliament’s cross-party Standards Committee several more months to overrule the commissioner and to clear me.

Why did this surprise me? Because it is the job of opposition MSPs to seek to hold ministers to account, both in the Parliament itself and in the media (including social media), and because opposition and government MSPs alike are supposed to be guaranteed strong free speech protections in doing so. Had I said in the chamber what I had written on twitter, the presiding officer would have allowed it (save only that I would have had to refer to the deputy first minister as Mr Swinney, and not only by his surname).

Why should an MSP be placed under investigation for nine long months – at lord only knows what taxpayer expense – for writing something on twitter that would not have been ruled out of order had it been uttered in the chamber? I asked the commissioner this question, but I never received a reply. Is it any wonder that relationships with key stakeholders have broken down?

My sorry story is a reminder of a theme I have had cause to write about more than once before in this column: the increasingly fragile status of freedom of speech in modern-day Scotland. Anybody who knows anything about free speech knows that not all speech is protected equally. Pornographic or other obscene speech attracts only minimal protection. Commercial speech, such as advertising, is protected to some degree but is also subject to regulation. Political speech is meant to be free. Democracy demands it.

Plainly, whatever your view of Mr Swinney’s actions ten months ago, and whatever your view of the angry and, no doubt, ill-considered way in which I expressed myself in that tweet, I was speaking politically as an opposition MSP about the actions (or inactions) of a leading member of the government. Such speech, whether one agrees with it or not, needs to be protected in a democracy, not subjected to months-long taxpayer-funded investigation by an over-zealous regulator whose governance arrangements are so poor that the commissioner’s office has lost sight of its mission and purpose.

Again, these points were all put to the Commissioner during the course of the investigation, but never fully answered.

Standards in public office could hardly be more important. Robust and independent means to ensure that those standards are achieved and maintained is a must. That these are lacking in today’s Scotland should concern us all. This isn’t about my tweet: it’s about the standards of the Ethical Standards Commissioner himself. His office needs to find some, and fast.

Our columns are a platform for writers to express their opinions. They do not necessarily represent the views of The Herald.

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