Standards Committee, 05 Dec 2001

Meeting date: Wednesday, December 5, 2001

Official Report 146KB pdf

---

Members' Interests Order

Agenda item 3 is our continuing work on the Scotland Act 1998 (Transitory and Transitional Provisions) (Members' Interests) Order 1999. This morning we are considering a paper that addresses the shortcoming of the paid advocacy provisions in the members' interests order. Unlike the Scotland Act 1998 and the code of conduct, the order fails to specify a link between the remuneration or other benefit that is received by the member and his or her action in Parliament. That omission in the members' interests order has given rise to concerns that an MSP with a registrable interest could be unable to participate in related parliamentary proceedings without risking being in breach of the paid advocacy provisions.

When drafting the paid advocacy section in the code of conduct, we relied on the provisions in the Scotland Act 1998 to ensure that a member must be shown to have advocated a cause in return for some form of payment—that is the important point. The replacement legislation affords an excellent opportunity for us to rectify the deficiency in the members' interests order.

Other issues that we might wish to consider in developing our policy include whether we should specify exactly what parliamentary activities are prohibited. Currently, the members' interests order states broadly what a member should not do in his or her capacity as an MSP. On the other hand, if we list prohibited activities we risk creating loopholes, so we might prefer to maintain the existing approach. I would like us to discuss those themes now.

The present wording of the members' interests order has caused concern and unforeseen difficulties in its operation. I agree with the first point in paragraph 9 of the paper. We must specify the link between paid advocacy and the action to be undertaken. It is difficult to make a judgment until we have seen the wording. It was hard to foresee the difficulties that arose with the order. We need to tighten up the order and establish the reason for having it, but I would not want us to make matters worse. We must take a decision on the wording. It will be difficult to take this much further without seeing the wording and making a judgment on it.

Unfortunately, I have to go to another committee in a moment.

There is a danger in being too prescriptive. Everybody knows that paid advocacy means speaking in Parliament or making representations in Parliament in return for payment or remuneration, which is not only improper but a crime. I am not sure that we need to spell it out, because everybody knows exactly what it means. It would be a crime, which would be reported to the fiscal and dealt with accordingly.

The paper explores some of the problems that we have experienced with the members' interests order. I can think of two occasions when we have had to interpret what the order means, one of which involved Mike Watson. I do not think that the committee considered the other situation, which involved Linda Fabiani. Linda went to East Timor with a relief organisation. When she returned, she could not speak in the Parliament about her experiences, because that would have suggested that she was a paid advocate. Such rules have caused many difficulties, which is why we are dealing with the subject today.

I agree with Lord James Douglas-Hamilton. If we are too prescriptive, we may cause difficulties. If our interpretation is too lax, we could leave ourselves open to accusations that people can pay cash for questions. We all agree about what we do not want to happen. Our difficulty is finding a form of words that allows MSPs to do their jobs and to bring credit to the Parliament without putting undue obstacles in their way. That is the trick that we must perform. It is difficult to suggest a form of words that might help, but the committee's views are clear. We all agree about what we need to do. The only difficulty is the form of words that will allow us to do that.

Tricia Marwick talked about the uncertainty that one member faced. Many folk who go on fact-finding tours could face that uncertainty. They could go to the Council of Europe or go to watch the European Parliament, then return and talk about the issues that were raised. The USA operates international visitor programmes. Can members not comment or make observations on issues that relate to such visits when they return?

We are trying to deal with that.

The situation would be absurd. What would be the point in such exchanges or networking—in the proper sense of the word—if they could not be used to inform debate?

A separate issue is whether members can take up paid employment, or employment with benefits in kind, that links with how they conduct themselves as MSPs, particularly in lodging questions. If we made that clearer, we would reassure the public that we will not replicate some of the weaknesses that the Westminster system exhibited until 1997, and perhaps beyond then. We should separate those matters. That is the important message.

Frank McAveety identified two issues. If members are content, I will ask the clerks to produce a form of words for our next meeting that clarifies the link, because the current members' interests order lacks clarity.

The other issue is whether the rules should specify the parliamentary activities to which the prohibition applies. I understand that committee members want to keep the provisions as they are and not make them more specific. Does Frank McAveety disagree?

No. That is fine. A specific definition would allow folk to find ways of getting away with what they are doing or to contest the provisions. At least the present system has clarity. The principle is that members make judgments. That is right and proper, because how MSPs conduct themselves is an individual choice. If an MSP errs, the Standards Committee might examine the matter.

Paragraph 4 of our paper on paid advocacy says that MSPs can undertake activities provided that they do not expect remuneration for them. That is the formula that we will develop, which involves a nexus or link. MSPs should not lodge questions or hold debates in the expectation of remuneration.

However, what happens if, six months later, a member is given a gift, other remuneration or some form of sponsorship? No one could say that they had undertaken the activity in the expectation of receiving something, but in some cases, they might receive something. How do we deal with that? The wording must deal with an MSP who says, "I didn't expect to get that. That was not a consideration and was not why I raised the issue." How do we deal with the back-end of that, in which despite a member saying that he did not expect reward—members will notice that I said "he"—he might get it further down the line, unexpectedly?

That is a very good question.

I do not know the answer.

Are there any other comments or views on that question?

That is a foreseeable scenario. I can imagine, for example, a member developing an interest in a subject, becoming passionate about it and raising it on a number of occasions. It could be an issue relating to the voluntary sector, for example. An organisation could then employ the member as a spokesperson, or adviser, or appoint them to the board. I do not know whether we can do that, but it happens at Westminster. The member might accept that appointment for no reason other than their interest in the subject, but it might follow that they would be breaking the rules. As Tricia Marwick said, it is all about expectation. If there was no expectation, but there was reward, some people might put two and two together and get five.

The matter seems to come down to judgment. Perhaps the clerks could come back to the committee with a phrase such as, "in likely expectation of" to include in the rule. A judgment could then be made as to whether a member could reasonably have expected reward.

I agree, but the issue is not about whether MSPs take up issues; it is about whether they are transparent in doing so. It is about judgment and the extent of the MSP's participation. That is our dilemma. The problems that have arisen in other places have come about when people did not declare their interests and there was no record of a connection. We want to guard against that.

Given that we are in a world in which there will be mixed-market provision for a long time, an organisation that started off in the voluntary sector could find itself becoming more commercially orientated in terms of the generation of income. Would I be less ethical if I worked for a not-for-profit organisation that then became a hybrid organisation? We may need to take a philosophy class.

I am conscious that I am newer to the discussion than others round the table. The convener used the word "judgment"; that is the key issue. I know that the committee has grappled with the members' interests order for some time. I feel that, in this terrain, we have to be realistic about the limitations of what can be prescribed. We can set a framework within which members can operate, but judgments will always have to be made by the members and the various bodies of the Parliament.

Frank McAveety raised an important point about transparency. Sometimes we consider these issues through the Westminster prism, because that is what we have known and there has been a great deal of debate there. Although our system is far from perfect, the degree of transparency and scrutiny in this Parliament is considerably greater than that in Westminster. There is far more scope not just for members, but for the public to make judgments about what is proper.

The combination of a sensible, pragmatic and non-prescriptive framework and continued efforts to maintain transparency through the various declaration processes is a reasonable balance. I hope that we do not spend an inordinate amount of time searching for the holy grail of the perfect solution, which is not there.

I acknowledge that other members have grappled with the issue for longer than I have. I hope that they will forgive me for adding my comments at this stage.

Your comments are very welcome and they summarise the matter quite neatly.

I ask the committee to consider a couple of the other bullet points in the summary, which I am sure the clerks would like to hear our views on. The second last issue in paragraph 9 is whether the paid advocacy provision should be

"extended to apply where remuneration has been received by a Member's spouse/cohabitee or close family member".

What do members feel about that?

We came up with a form of words before, did we not? The provision on paid advocacy should be extended to partners only if the remuneration is the result of an MSP's activity. Our partners are not standing for Parliament and should not be subject to the same scrutiny. The test should be whether they receive some remuneration as a result of our activity as MSPs.

Kenneth Macintosh rightly refers to the list of decisions that we have reached on the members' interests order, which was suggested originally by Tricia Marwick; I hope that everybody has a copy. The third point on the second page of that list is that the interests of spouses, cohabitees and close family members should

"not be registrable except in relation to gifts received in connection with a Member's Parliamentary role."

That was specifically about gifts. I think that we should be consistent. How do other members feel?

From memory, I recall that one of the issues that arose during the 1980s in Westminster was that a number of partners of Cabinet ministers took up directorships of companies. Subsequently, when those ministers were no longer involved directly in Government business—in other words, in Cabinet business—they took on the directorships that their partners had held, perhaps cynically, until that was possible. Again we are dealing with judgment—people should at least provide broad information. If they withhold that information and it transpires that there has been an unusual set of arrangements, they could be examined on that. Somebody who wishes to register should be able to do so, but registration should be voluntary rather than prescriptive.

Frank McAveety has raised a difficult issue. How prescriptive can we be? Spouses are entitled to their rights—they have done training and have backgrounds and abilities that enable them to get positions on boards, for example. It would be almost impossible to be prescriptive about that. I agree with the point about the interests of spouses and cohabitees not being registrable

"except in relation to gifts received in connection with a Member's Parliamentary role."

However, I do not know how we can address what Mr McAveety has just raised.

I agree with Frank McAveety's point. We cannot cover every eventuality. We recognise that anybody who wanted to do something really bad could find a loophole in any code of conduct or rules. I do not believe that members of the Scottish Parliament are crooks or charlatans and are looking to get something out of their position. We must be careful that we do not go too far in trying to cover every eventuality. I do not think that we can do that. I agree with Kay Ullrich—these days, people usually get jobs because of their ability, not because of their spouse.

Kenneth Macintosh's point was well made. In our discussions about spouses and close family members, we have clearly said all along that their interests should be registered only if they gain something because of their relationship with an MSP. That is a good rule, because—as we have said repeatedly—we are the ones who seek election, not our families. Although we need balance and transparency, we recognise that family members are entitled to some privacy. Unless it can be shown that there is a link between their gaining remuneration, jobs or anything else and their relationship with an MSP, we should leave well alone.

I echo strongly what Tricia Marwick said. I reinforce the proposal in the list that the key issue should be whether any gift, for example, is received in connection with a member's parliamentary role. I agree that that is the right way forward. However, it is important that such a connection is explicit and demonstrable, not just inferred or implied. If I might be so bold, I think that there is often a tendency, particularly in relation to women, to suggest that they have got somewhere or done something because of the position of their partner or husband. We are still a long way from living in a society in which both parties in a couple are viewed in their own right and according to their own capabilities.

We must also recognise that being the spouse or partner of an MSP can stop someone getting a job or promotion. I am not being facetious when I say that; I could name occasions on which that has happened.

I think that we have got the gist. The committee seems to be in broad agreement and we will proceed on that basis.