In the family ... again
Should AMs be allowed to employ their own spouses and children?
Let me recap.
The aspiration/recommendation - call it what you will - was that they should not. The Assembly team charged with implementing the recommendations was then given legal advice that if challenged in the courts, such a ban would be difficult to defend.
So where are we now? AMs will be able to have family members working for them, as long as they appointments process is rigorous.
Should MSPs be allowed to employ their own spouses and children?
Ah - guess what! A review of the Scottish Parliament allowances system has recommended that MSPs should be banned from employing family members at taxpayers' expense. Read the same sort of headlines that you read here in Wales some time ago here.
What did Sir Christopher Kelly conclude when he considered whether MPs should be allowed to employ family members? That they should not. Did he think that could be implemented? This from the Guardian live blog from the day the Kelly report was published:
"Asked about the legality of banning MPs from employing spouses, Kelly says he cannot be "100% sure" that this would survive a legal challenge. He has taken legal advice on this, but it was not absolutely clear, because legal advice never is. But he says that he thinks the ban could be justified in court as a "proportionate response" to the problem. He also says it is not clear whom a spouse would sue. Employees normally have to take action against the employer. In this case, that could lead to a wife taking action against her husband".
Looking wider afield, the Scottish Parliament review helpfully points out that the European Parliament no longer permits family members to be employed by MEPs
So ... for the final time, will elected politicians be allowed to employ family members in future?
IF the Kelly recommedation is implemented, MPs won't.
IF the McIntosh recommendation is implemented, MSPs won't.
MEPs already can't.
The Jones recommendation wasn't implemented, so AMs will.
The message from the Assembly in response? It's a history lesson Jim - but not as we know it.
An Assembly spokesman said, "The independent Panel intended its Recommendation 65 to be read in conjunction with recommendation 66 , which are both included in the section of the report about employment of family members . Recommendation 65 means that AMs should not in future recruit family members, unless they are recruited by the transparent process in accordance with Nolan principles referred to in 66. In order to avoid any misunderstanding Commission staff checked that this is what the Panel intended and this was confirmed. It was also confirmed that the Panel would have preferred to see the employment of family members by AMs prohibited altogether. However, in order to ensure that their recommendations were legally robust they obtained their own independent legal advice on the matter and it was on that basis that they accepted that they should limit their recommendation to requiring future recruitment of family members by AMs to those who could be demonstrated, by a fair and transparent process, to be the best candidate for the job.
"The position of the Assembly Commission has been consistent throughout. It has always been committed to implementation of the Panel's recommendations in their entirety. Any suggestion to the contrary seems to have been based on a misunderstanding of the effect of recommendation 65 (as linked with recommendation 66) as explained above.
"Changes to the current rules relating to the appointment of Assembly Members Support Staff(AMSS) are not scheduled to come into effect until 2011 and are likely to be made by the first formal Determination made by the NAW Remuneration Board which will be established if the Proposed NAW (Remuneration) Measure currently before the Assembly becomes law. The Board, when established, will be able to review the Panel's recommendations and, if there is a strong enough reason, to depart from them. Since the Panel's recommendations 65 and 66 are based on the current legal position the Board would be able to take account of any changes to the relevant legislation which take place in the meantime (for example any legal changes which might come in the wake of Sir Christopher Kelly's recommendation that the employment of family members by MPs should be banned altogether. "
Hang on. Let's examine on what basis any "misunderstanding" of the Jones report may have taken place.
First to the report itself - and paragraph 8.90.
"We...object in principle to the employment of family members and believe this should be avoided.
8.91: "The Panel acknowledges that the current arrangements may work well on occasion but, as a general principle, the Panel consider this practice should cease over time, in the interest of public confidence and best use of public funds.
Recommendation 65 - "We believe that members should not henceforward make any new appointment of family members".
Recommendation 66 - "Any new recruitment of support staff should be subject to transparent recruitment procedures in line with the new policy and with Nolan principles."
What is that "new policy" - well that's under Recommendation 64 - "A new Recruitment Policy should be produced for the selection of Assembly Members' support staff." Point (iv) it should cover, say the Panel is "rules restricting the employment of family members".
No reference to "independent legal advice" there.
Now let's examine the Assembly Commission's own response to the Jones report, dated July 7, which examined how achievable each of its recommendations were, and the timescale for implementation.
On recommendation 65, the legal advice is as follows, "Amendment to the Determination needed. A Determination made by the Commission must comply with the various levels of equality legislation. However, a rule whose effect would be to discourage the employment of family members would not contravene any of the equality strands (sex, ethnicity, age, sexual orientation, disability etc.) governed by equality legislation."
The Accounting Officer's view? "Achievable" That is "there are no financial, governance, legal or operational obstacles to implementation"
And the recommended action? "Post Election implementation. The 2009 Determination will require amendment to indicate that the salary costs of the employment of family members will not, in future, be met from public funds."
Now either the Commission itself misunderstood the recommendations on future employment of family members - or there's some rewriting of history going on here.