4.1 Members may find the following guidance helpful in understanding how the paid advocacy provision is to be applied in practice.
Purpose of the paid advocacy provision
4.2 The purpose of the provision is to prevent a member advocating or initiating any cause or matter, or urging any other member to advocate or initiate any cause or matter on behalf of any person, in consideration of any payment or benefit in kind to the member, their spouse, civil partner or cohabitant. Other than as detailed in paragraphs 4.5 and 4.6 below, it includes all forms of payment or benefit, including hospitality. It is the member’s reason for undertaking any action in the capacity of a member following receipt, agreeing to receive or requesting of any payment or benefit in kind which is fundamental in applying this rule.
4.3 For a definition of what is covered by “Any payment or benefit in kind” members should refer to Volume 2, Section 4 of the Code. Paid advocacy includes a payment or benefit in kind (or agreement to receive or request for a payment or benefit in kind) not just to the member but also to the member’s spouse, civil partner or cohabitee. Receipt of payments or benefits from an individual or organisation which a member registers as registrable financial interests do not prevent a member from taking part in proceedings relating to the affairs or interests of that individual or organisation. Members must, however, make appropriate declarations of these interests in terms of Section 3 of the Code. However, the effect of the paid advocacy rule is that, in relation to any Parliamentary proceedings, a member must never advocate or initiate any cause or matter on behalf of any person or organisation where payments or benefits have been made (or where the member has agreed to receive or requested payments or benefits) specifically for that purpose or which would not have been provided had the member not undertaken that course of action.
4.4 In seeking to apply this rule to their Parliamentary activities, members should not only consider their own intentions but the linkage that might reasonably be made by others between receipt of a payment or a benefit in kind (or the payment or benefit in kind which the member has agreed to receive or requested) and subsequent advocacy. It is a question of circumstances in each case, but the larger the benefit (or agreed or requested benefit) and the more significant the advocacy, the easier it could be to draw the conclusion that the reason a member had undertaken particular action was because of the payment or benefit (or agreement to receive or request for payment or benefit).
4.5 The paid advocacy rule does not prevent a member from doing paid work or receiving other financial benefits which are registered as registrable financial interests. However, a member who engages in advocating any matter which confers benefit on an organisation for which the member is doing, or has done, paid work, even after making an appropriate declaration of interest, might well be thought to be doing so in consideration of that payment whether or not this is actually the case. It is less likely that this inference would be drawn if the member was participating in proceedings directly or indirectly related to the organisation but which has a neutral or negative effect on the organisation or the sector within which that organisation operates.
4.6 Similarly, the paid advocacy rule does not prevent a member receiving expenses in connection, say, with a conference or fact-finding visit and then raising in proceedings of the Parliament matters which the member may have learned as a result of that event. As long as the member registers the receipt of the expenses, makes an appropriate declaration to that effect and does not advocate a particular course of action at the behest of the organisation or individual providing the expenses, there would be no paid advocacy.
4.7 The paid advocacy rule as articulated in section 14 of the Act provides a list of exceptions for situations which could be interpreted as conferring benefit on a member for political purpose but which are not to be considered as paid advocacy. Members may seek and accept assistance in connection with any matter relating to a Bill (before it is submitted for Royal Assent), a debate on subordinate legislation or on a legislative consent motion. However, members should ensure that any assistance relates purely to those matters and there is no other ancillary benefit to the member. Members should be wary of entering any arrangement from which it could be construed that the reason they had taken forward a Bill was because they had received a payment or a benefit in kind, other than permitted assistance.4.8 A member may not act in consideration of a payment or benefit in kind received, or which the member agreed to receive or requested at any time from the date on which the member was returned. It is the link between the payment or benefit (or the agreement to receive or request for payment or benefit) and the action which is important and it does not matter if the length of time between the payment and the action is long or short, if the action was taken in consideration of a payment or benefit.
‘Advocate or initiate any cause or matter’
4.9 A member shall not by “any means”, in consideration of any payment or benefit in kind, advocate or initiate any cause or matter on behalf of any person. This extends to urging any other member to advocate or initiate any cause or matter on behalf of any person. The Act provides that “any means” is to be construed as “the doing of anything by a member in the capacity of a member, whether or not in any proceedings of the Parliament”.
4.10 A member does not “advocate or initiate any cause or matter” simply by sitting and listening to a debate. However, a member may contravene the paid advocacy rule in any of the following situations if the action described is done in return for a payment or benefit which the member has received, agreed to receive or requested and, in taking the action, the member advocates or initiates a cause or matter on behalf of another person:
initiating, contributing to or intervening in any debate;
lodging notice of a proposal for a Bill or introducing a Bill;
lodging or asking a parliamentary question;
lodging notice of or moving a motion;
lodging notice of or moving an amendment to a Bill;
proposing a draft report, or moving an amendment to a draft report in a committee;
supporting a motion or a Bill or proposal for a Bill or a motion;
lodging or supporting an amendment to a Bill or a motion.
4.11 This list cannot be comprehensive. Members are advised to seek advice from the Standards clerks before undertaking any activity in the capacity of a member if they have any concern that the rule may apply.
Urging another MSP to act
4.12 A member who receives, agrees to receive or requests a payment or benefit in kind is also prohibited from urging, in consideration of that payment or benefit, any other member to advocate or initiate any cause or matter on behalf of any person. For example, a member may not ask another member to lodge a motion or parliamentary question which advocates a cause etc. (or to do any of the other things listed above at paragraph 4.10 with that intention) in return for any payment or benefit in kind which the member has received, agreed to receive or requested from that person.
Responsibility of the member
4.13 Responsibility for complying with the provisions on paid advocacy lies with the individual member. Each member will need to apply the paid advocacy provisions to that member’s particular circumstances. If a member is uncertain about how the rules apply, the member may ask the Standards clerks for advice. Members may also choose to consult their own legal advisers and, on detailed financial and commercial matters, may wish to seek advice from other relevant professionals.
Failure to comply with or contravention of the Rule on paid advocacy
4.14 Failure to comply with or contravention of the provisions on paid advocacy is a criminal offence in terms of section 17 of the Act. The provisions are explained in Section 4 of the Code. A member found guilty of such an offence is liable on summary conviction to a fine not exceeding level 5 on the standard scale. A breach of the provisions may also lead to exclusion from proceedings of the Parliament for such period as Parliament considers appropriate (section 16 of the Act) or to the imposition of other sanctions under section 17A.