3.1: The statutory requirements
Section 12, declarable interests
(1) In this Act, a “declarable interest” means a declarable financial interest.
(2) A member has a declarable financial interest in any matter if that member has, or had, a registrable financial interest in that matter which is registered in the entry relating to that member.
(3) A member has a financial interest for the purposes of paragraph (b) of section 39(2) of the 1998 Act if that member has a declarable financial interest.
Section 13, declaration of interests
(1) Any member who has a declarable interest in any matter shall declare that interest before taking part in any proceedings of the Parliament relating to that matter.
(2) For the purposes of subsection (1), a member shall declare an interest by making, in such circumstances as the Parliament may determine, either an oral or, as the case may be, a written declaration of that interest.
3.1.1 Sections 12 and 13 of the Act set out the legal requirements in relation to declaration of interests.
3.1.2 An interest about which a declaration must be made is referred to as a ‘declarable interest’.
3.1.3 Under the statutory requirements, a member has a ‘declarable interest’ in relation to any matter if that member has a registrable financial interest relating to it. Registrable financial interests are those which must be registered under one of the categories set out in the schedule to the Act. These categories are explained in Section 2 of the Code.
3.1.4 A member who has a ‘declarable interest’ in a matter must make a declaration of that interest in any proceedings of the Parliament which relate to that matter, before otherwise taking part in those proceedings.
3.1.5 Declarations may be either oral or written. The Parliament has determined the circumstances in which declarations should be oral and in which they should be written (as required in the Act). The Interests of Members of the Scottish Parliament Act 2006 (Declaration of Interests) Determination 2007 sets out when oral and written declarations apply.
3.1.6 Where a member has a declarable interest in any matter, the member must make an oral declaration of that interest before speaking in any meeting of the Parliament relating to that matter. The requirement applies:
- during a meeting of the Parliament (includes initiating, contributing to or intervening in any debate) (an oral declaration is required); and
- during a meeting of a Parliamentary committee (or a joint committee meeting or sub-committee meeting) (includes initiating, contributing to or intervening in any debate) (an oral declaration is required).
3.1.7 Where a member has a declarable interest in any matter and takes part in a meeting of the Parliament relating to that matter only by attending and voting at that meeting, that member must have, prior to the meeting, made a written declaration of that interest. Where the interest is already registered, the declaration is made by virtue of that interest being registered in the entry relating to that member in the Register of Interests of Members of the Scottish Parliament and no additional written declaration is required (see paragraph 3.1.13).
3.1.8 Where a member has a declarable interest in any matter, and takes part in any proceedings of the Parliament relating to that matter otherwise than as provided in paragraphs 3.1.6 and 3.1.7, the member must make and lodge with the Clerk (usually understood to be the clerks in the Chamber Desk) a written declaration of that interest before taking part in any such proceedings relating to that matter.
3.1.9 For the purposes of paragraph 3.1.8, taking part in proceedings of the
Parliament includes any of the following—
(a) lodging questions for oral or written answer,
(b) lodging motions, amendments to motions,
(c) introducing a Bill, or lodging a proposal for a Member’s Bill,
(d) lodging amendments to Bills, or
(e) adding the member’s name in support of any of the proceedings referred to in (a) to (d) above.
3.1.10 Before taking part in any proceedings of the Parliament a member should consider whether they have a ‘declarable interest’ in relation to the particular matter being addressed in those proceedings. The onus is on individual members to decide.
3.1.11 A member must declare an interest when speaking or intervening in a debate where that interest relates to the subject being debated. The Act requires that only such interests as actually appear in the member’s entry in the Register must be declared (section 12(2)). Following the lodging of a written statement of an interest with the Standards clerks (in relation to initial registration, newly acquired interests, or late registrations), there could be a period of up to 30 days before the statement actually appears on the Register and so becomes publicly known. In this situation, members are encouraged to make a declaration of that interest (either orally or in writing as appropriate to the proceedings) in order to avoid the suggestion of undue influence which only they will be aware of prior to the registration being published.
3.1.12 The Act refers to a member’s participation in “any proceedings of the Parliament” relating to the ‘declarable interest’. In this context, “proceedings of the Parliament” means all the actions noted above. Oral declarations are required only at meetings of the Parliament, its committees, joint committees and sub-committees.
3.1.13 A member is not required to make an oral declaration where the member simply attends or votes at a meeting but does nothing else. The effect of the Parliament’s determination is that the member’s register entry is sufficient declaration of their interest. If the member wishes to take part in the meeting in any way, other than simply attending or voting, they must make an oral declaration. Where the proceedings occur after the member has lodged a written statement with the clerks but before it is published in the Register, members are encouraged to make an oral declaration of that interest.
3.1.14 Members should be aware that other requirements of the Act, for example, in relation to the paid advocacy provisions, do apply to voting and other proceedings. The paid advocacy provision is explained in Section 4 of the Code.
3.2: Failure to comply with or contravention of the rules on declaration of interests
3.2.1 Failure to comply with, or contravention of, the Rules on declaration of interests may by virtue of section 15, 16 and 17A of the Act result in the Parliament, by resolution, applying sanctions to a member. Sanctions include being prevented or restricted from participating in or excluded from Parliamentary proceedings. Under section 17A, the Parliament may exclude a member from the premises or part of the premises, withdraw the member’s right to use the facilities and services provided by the SPCB or debate and agree to a motion of censure. In terms of section 17 of the Act, as with the failure to register interests, a member who fails to make a relevant declaration commits a criminal offence and is liable on summary conviction to a fine not exceeding level 5 on the standard scale. Enforcement of the Rules in the Code is explained in Section 9.