Members have received briefing notes that make clear that the proposed text for the two sections that we are considering this afternoon is largely an explanation of the legal requirements on members. That is a very important point, because our scope to amend the substance of what is proposed may be limited.
The final paragraph says that
There is no legal requirement to register pensions. However, I have done so—under the category of miscellaneous—because I think that it is important to do so.
It is.
I agree with you.
I wonder whether, on this occasion, the lawyers know what they are talking about—well, I wonder that on many occasions.
The issue has been looked at extremely carefully and the legal advice is that it is not applicable. I gave my own example because I agree, John, that it is important.
This is a hypothetical case, but what if Allied Domecq—as it now calls itself—wanted something pushed through the Scottish Parliament. I could support its proposal and vote for it, despite receiving money from it monthly. I think that that is totally wrong.
When we produce a new act, we will have the opportunity to reconsider the issue. At the moment, we are working under the law that has been laid down. The law is about employment, and pensions are regarded as payments to individuals who have been employed.
That is an important point—we are dealing with the current act and the current requirements. The committee should take the advice that it has received from the lawyers, who have said that there is no need to register pensions. However, if people wish to do so voluntarily, they may do so. The draft code of conduct that we have in front of us reflects that. People must judge whether they would be influenced—or be seen to be influenced—by a pension or whatever. They also have a responsibility, outwith the legal terms, to register what might influence them in the carrying out of their duties. However, there is no legal requirement and that should be reflected in the code of conduct.
I do not want to labour the point, convener, but it seems ridiculous. As I understand it, if I was on the Local Government Committee and was invited to visit a local authority, I would have to declare a sandwich if I received one, but I would not have to declare a pension. That is nonsense. I do not know whether we have a voluntary code on sandwiches.
Well, John, I am fairly sure that you would not have to declare a sandwich. There is a £20 minimum for gifts from local government.
Ask Trish Godman, MSP.
I would like to move on from that point. The rules are fairly straightforward. We have taken on board the point that, if the code needs to be changed in the future, we will have the opportunity to change it. However, we must act within the law and with the act that is laid down.
I think that the lawyers are wrong on the pensions issue. I still say that.
Thank you for your contribution, John.
It is worth pointing out that, in the second paragraph, the rules are more exacting for the Scottish Parliament than for Westminster members—for example, in the possible use of the law and criminal action against people. We have made a significant advance on the Westminster model; that should be widely recognised in Scotland.
It is true that the code of conduct that we are drafting is very strict. By strict, I mean that it is quite clear to members.
Is there some sort of mechanism for when an interest ceases—a process by which that interest need no longer be specified in the register? Might we consider a lapse period, after which an interest would no longer have to be declared?
I thought that that was a legal requirement, but it is not. I am advised that it is difficult to make that judgment. Although the interest technically ends—and members might feel that it should therefore be removed from the register—there may be a difficulty in deciding whether a member has nevertheless been influenced by it.
The register could be published annually.
The point of the register is that it is live. It is not extant for 365 days, after which we move on to another one.
You have jumped in ahead of me, convener.
I am sorry, Des.
You are right: there should be an on-going register. However, did not we also agree that we would publish it annually? We set a date for its publication.
A date was set for its publication, but it is on-going. Although we wanted to do that, the Scottish Parliamentary Corporate Body decided that it would not proceed with that.
The danger is that we might end up with a register that—although the intention is for it to be live—contains a series of interests that have ceased. I wonder whether the way in which to deal with that would be to have an annual date at which the register is published or formalised. It would then become on-going, but what was in the register before 30 March, or whenever, would be recorded as a member's interest of the previous year. People would be able to see, over a two, three or four-year period, how a member's interests had altered, without our retaining all those interests in the live register.
That is something that we might look at after a year or two. I do not know how frequently members will change, or cease to have, interests—I suspect not a lot. After four years the slate will be wiped clean anyway—when, I hope, we all come back into the Parliament. Well, I will not say that I hope that it will be us all—
Why is he looking at me?
After that, we would have to go through the whole process again. I think that that is what we want; we can revisit it if there are problems.
There is a simple way of doing this. If something changes on a member's declaration of interests, the member should go to those who administer the register and say that he or she is no longer with that company so that a notation can be made to that effect.
That is the system, John.
That is the system now?
Yes. The document is live. As there have been relatively few amendments after several months, we might be wise to see how it goes and to review the matter next year. Are you happy with that?
I would be happy to see how it goes, but we should consider an annual cut-off point for the register. I will take Vanessa Glynn's advice on whether that will make it easier to administer. I am concerned about whether it might become unwieldy to operate.
We will look into that. Are there any other points on page 2 or page 3?
In other places, there have been debates on the registration of interests of family members. Although we may not wish to stipulate that, perhaps we should give members a clear steer on it. I know that there is a problem with the wider family, but there should be guidance to members on the interests of a spouse or cohabitee and of children.
That is a wide issue.
As I understand it, at the end of the financial year—at the end of March—the names of members' staff will be published. Who we are all employing will be clear to everybody. I might be wrong—perhaps we could check that.
It is my understanding that the names of MSPs' employees will be published.
Exactly. So if someone is employing their son, daughter, wife or whoever, it will be in the public domain anyway.
Adam Ingram is suggesting something wider than that.
If members are discussing a matter in which a close relative, such as their wife or husband, is heavily involved, they should register that interest.
I am sorry, but I am not getting that. Heavily involved? Where?
The rules for members mean that we have to register particular interests. This is perhaps not the best example, but my wife is a teacher. If one's wife is involved in something relevant, that ought to be registered. The member could be arguing on behalf of their spouse's interests because they are close to that person.
We have to achieve a balance between the need for public disclosure and the need for privacy. We cannot legislate on that in all circumstances—
Let us say, for example, that a member's spouse has a significant position on a public body to which the Parliament is disbursing funds. If we are having a debate on that public body in the chamber, should not the member—if they wish to make a contribution—declare their interest?
There are real difficulties with that. The rules were initially envisaged at a time when only one person in the family was economically active. We are now in a changed society, in which different people have careers. If members are constantly having to declare their spouse's interests and say where they work, that places an undue burden on them. The only interests of real importance are financial ones.
Adam Ingram has raised an interesting and legitimate point. There are arguments on both sides. At the beginning of the meeting, I said that it was important that we worked through the material in front of us, rather than produce any new material. This is a live document—once we have published it and reported on it, we can come back and address those issues.
We are dealing with a member's declaration of interest. What the member's spouse or children do is an entirely different matter. We might as well legislate for them—how far does this go? The onus is with the member. If the members have doubts, they can, as has been said, bring the matter forward. We should not deal with it here.
That is the position that we are in at the moment. If Adam Ingram wishes to raise it in future, that would be perfectly legitimate.
Stop! [Laughter.] On page 6, the issue is raised of when members register interests. Because the draft code is a live document, we will be registering things as they come up, but I am not sure that we have given enough significance in the code to timing. Perhaps we could highlight it a wee bit more. A declaration is not a one-off action. It is not only about lodging an initial statement; it is on-going. We need a separate paragraph to highlight that to members. It is not true that they do not have to register anything else for the four years of a session because they have registered their interests in the first instance. We need to stretch that point out a wee bit more.
That is a good point, Tricia. We will get the clerks to draft something to that effect to be included in the document.
One paragraph begins:
My information from the "Register of Members' Interests" is that there are none that we know of.
I do not understand what kind of services we could give
I do not think that it is right. We should excise that part.
I think that we are all agreed on that.
Is it a question of when a member of the Parliament is employed as an adviser on what impact the Parliament will have on such-and-such a business?
Yes, essentially, that is what it is. To be perfectly honest, that part of the text reflects the system in Westminster. I agree with those members who have said that we should remove it. I am not terribly happy with it myself.
I do not think that we should remove it. It requires the member to publish the names of their clients.
We should say that no member should be providing services, as a member of the Parliament, to anybody.
I do not think that we should delete it.
My point is that we have no licence for that kind of thing. We try to make it clear in what we do that members should not be seen to be making money, as it were, by selling services as a member of the Parliament.
We could take that out and make a statement to that effect at tomorrow morning's meeting. That is agreed.
There is a reference at the bottom of page 12 to contributions to election expenses from a person. It says that
I think that we are stuck with that wording because it is from the order. The text is the explanation, but that wording is part of the order. At this stage, we are looking at the text.
Paragraph 2 on page 14 says:
We certainly could. Contributions that do not continue over time would not constitute sponsorship.
They would come under the category of gifts, and gifts are limited to £250.
If that is the case, we need to tighten up that wording to refer back to the paragraph on gifts.
Thank you for that point.
How would one know if the gift exceeded £250? The document mentions
This code of conduct is guidance to members. Members must use their own judgment.
It is an awfully long code of conduct. I have seen a number in the past, but none was as long as this.
The important thing about this code of conduct is that we have a statutory system. As you can see, the statutory information is shown in the boxes on the document; we have added explanations so that members can be absolutely clear about what they can and cannot do.
If a member received a car, they would know that it was worth more than £250. However, if they were to receive a watch, they might not be sure of its value. That is a hypothetical example, but it is worth considering.
Throughout the code of conduct we suggest that members should err on the side of caution and approach the whole subject carefully. For example, we talked about what constituted a registrable interest. If in doubt, I would suggest that an interest should be registered voluntarily; the same applies to a gift. If an MSP accepts a gift that may be worth anywhere near £250, it is up to them to use their judgment. The whole point is to have transparency and openness. These are clear guidelines for MSPs, so the onus is on MSPs.
An MSP should not accept a gift. We are talking about a member or his spouse or cohabitee or a company in which the member has a controlling interest.
They are prohibited from receiving gifts worth more than £250.
That is what I would have thought.
I beg your pardon. The legal requirement is for members to register such gifts.
So can one only register a gift if it is more than £250.
No, members can register anything they want to. They are not required to register a gift if it is worth less than £250. That is the statutory order.
I am only talking about the value.
I am glad that you are here, John, because this is a test case. All MSPs must use their judgment.
I have received no gifts.
Can I be clear about this? Let us suppose that my parents give me a gift of £500. Am I obliged to declare that?
Yes, indeed you are.
If my wife's parents give her £500, am I obliged to declare that?
Yes. When we are in a position to write legislation, I am sure that we will revisit this.
So when I celebrate my silver wedding anniversary next year and receive lots of gifts worth more than £250, I will have to declare them all?
Members should be careful after Christmas.
It is ridiculous that, if my three-and-a-half-year old granddaughter gives me a Donald Duck that I think is worth more than £250, I will have to declare it.
That is the law.
As has been said more than once, the law is an ass.
The Scotland Act 1998 (Transitory and Transitional Provisions) (Members' Interests) Order 1999 has been given to us by Westminster and we must act within it. Today we are explaining the rules. If we feel that there are anomalies, we can revisit this matter when we produce legislation.
My husband intends to give me a ring for my Christmas. I am anticipating that it will be worth more than £250. Does it therefore have to be registered?
What a good excuse for your husband.
Ask him for a receipt. This will cause domestic problems in some places.
Joking apart, Karen, that is a very good point. We will check the legal situation for gifts between spouses.
I do not want you to know if he is miserable and I do not get anything worth more than £250. If I have nothing to declare after Christmas, I will be a sad person.
It would be worse if he told you that it cost more than £250, and when you got it valued, it turned out to be worth only £100.
Exactly.
I call the committee to order. We have discussed pages 15 and 16, which are about gifts.
I think that we should say on page 16 that the legal requirement is as it is because we cannot do anything else. It should say that members should make particular efforts to register anything that could be seen to influence their activities. That is the direction in which we should be going, as what we have is inappropriate. We should consider the wording and highlight what the intent is. To be blunt, we should alter the legal text so that it is more up to date.
Yes, we will do that, Des. It will be in the final draft.
I apologise for being late, convener.
That is a valid point. Adam Ingram raised a similar issue about spouses, cohabitees and children—let us call them immediate family.
My employer did not register my interests. I had to complete a separate register of interests as an employee of an MP. We need to consider that.
Karen Gillon and Adam Ingram raise important issues that we need to consider. Perhaps there are loopholes or, rather, other areas that have an important impact upon us. We should revisit those issues next year, once we have completed our work on the code of conduct.
Going through this document is an extremely useful exercise as there are a number of points that have arisen, including the £250 limit on gifts, the point about gifts that are exchanged between member and spouse and the issue about staff that Karen raised. A lot of areas are coming to light now that perhaps were not appreciated by those who drew up the legislation and the order. It is easy to do things in a vacuum, but we are a working Parliament and we must ensure that we have guidance and codes in place that allow us to carry out our work. That is important.
Will the clerks get the details of the staff register of interests at Westminster? It is quite a simple process and we do not need to reinvent the wheel. We should tackle this issue quite quickly, as we already employ staff.
That issue has been taken on board and the clerks will progress it.
We were talking about registration of share capital and so on, under category 8 on page 21, where a percentage is mentioned. Would it not be wiser and safer for a member who holds shares to register those shares, no matter the quantity or value? That might save a lot of difficulties for members. While most members probably do not hold shares of the volume referred to in the document, a member who holds only 10 shares should be able to register them.
That is what we recommend in the code.
That covers it. Thank you.
Do members want to make any other points on shares?
At the bottom of page 18 there is a definition of heritable property. We should keep referring to heritable property as defined there, or we may trip up ourselves and other people.
We now move to section 4, which is the declaration of interests. I will go through that page by page, as I did with the section on registration. Members may intervene if they have any comments.
I have a question about page 2.
I am always going too fast.
Yes, I think that you need to go a little more slowly. On page 2 the code states
That is right.
It might be that someone wanted to intervene in the debate before they were called to speak.
They must make their declaration at that point.
I could imagine circumstances in which it might be worth getting members to make a written declaration to the Presiding Officer before the start of a meeting if they anticipate a problem, so that the Presiding Officer is aware which members will want to make an oral declaration if they are called. That would serve both to alert the Presiding Officer that the debate may raise particular issues for a member and to ensure that, if that member is called, they make their declaration.
This is a difficult issue, because things can happen very quickly in debates and a member who had no intention of speaking may want to make a quick point. Before doing so, they will have to make a five-minute declaration.
It is not a five-minute declaration.
I, for example, have registered my membership of Unison, as that affects anything to do with public services. In the register, mine is quite a long declaration. Are you saying that in the situation that we are describing, all that I would have to do is say that I have a registered interest in the matter?
All that you will have to do is say that you have a registered interest. The form of words is left to you. The intention is to alert other MSPs and the wider public who are watching and listening that you have some interest in this issue. They can then take that into account when weighing up what you say.
It may mean that you have some specialised knowledge that you can contribute to the debate.
That is absolutely right. It could reinforce the argument that you are making. Members should not assume that the oral declaration is meant to be a regurgitation of what they have written down in their registration of interests.
I do not think that that is clear to people.
We should make it clear. That is a good point.
I do not think that it is clear in the section that we are discussing. We need to tighten that up.
We will make it clear.
We will make ourselves look stupid if we do not.
Brief declarations are all that is required. We will emphasise that in the text.
We should also emphasise that, if members indicate that they want to speak in a debate, they should declare their interest to the Presiding Officer.
We are putting another onus on members, are we not?
It could be made advisory. Patricia Ferguson is shaking her head. Perhaps that is not appropriate.
Patricia, you are a Deputy Presiding Officer.
Perhaps I should declare an interest. I do not think that such a step would be necessary. Members declare interests fairly often in the chamber, at the beginning of their speech. However, I was not sure whether they were required to do that if they made an intervention in a debate. That might be worth highlighting to Presiding Officers and members.
We take that on board, and will bring that point about interventions and declarations to the attention of the Presiding Officer.
The new text—the darker text at the top of the page—lacks clarity. The test is this:
We will revisit the structure of that sentence.
May we proceed to the bottom of page 3 and the top of page 4? I find the statement strange that, if a member has been employed previously by someone and still has
I shall give an example. If a member is in a position of responsibility, who has worked in an organisation before from which they have resigned, there is a possibility that, in the future, they might return to that company. There is a need to ensure, in the interests of transparency and openness, that that interest is registered.
That is not clear in the document. I previously worked for Shelter, the housing charity. I have a strong commitment—as all members know—to housing and homelessness issues. Do you seriously expect me to preface every speech with the statement that I previously worked for Shelter, that I am now an MSP and that, in the future, I might or might not work with Shelter or some other organisation that is concerned with housing or homelessness? That is how it reads.
Article 5(1) of the order, in the boxed text, refers to
It is a chicken-and-egg situation. I remember watching "Cathy Come Home" when I was a young child. I have been interested in homelessness since then. I was interested in Shelter as a charity, and then I went to work for it. I am still interested in homelessness and housing issues. However, my interest in those issues did not stem from my previous employment.
I return to the point that you must use your judgment in that case.
I think that in the paragraph to which Tricia Marwick refers, and in the previous one, we are trying to anticipate cases. It might be preferable to make the general point that is in the middle paragraph on page 3, to include the first sentence of the fourth paragraph and to avoid using the examples. Each person's case will be different. We should say that if members are in doubt, they should seek advice from the clerk to the Standards Committee. That is the way to handle it.
That is what worries me. The Gettysburg address had only two pages. This draft code has about 10 or 12 times that. Most members know what they should be declaring. There might be isolated difficulties, but to have all those pages is beyond belief.
Without being impertinent, I believe that the experience of this committee is that most members did not know what should be registered. That is why we had to use the whips and party meetings to tell members what should be registered.
Nevertheless, it could be done with a degree of brevity.
Some good points have been made. It is important that the code of conduct is not just a regurgitation of what the statutory instrument says. We must give clear and unambiguous guidance to members. That is what the code does.
I will move on to pages 4 and 5.
We should highlight—put in bold text—paragraph 4.5 on page 9 about the responsibility of individual members, particularly the part that states:
That section is the key part of the document.
When we set out on this process, we wanted to ensure that once the code was with members and was in the public domain, ignorance would no longer be an excuse. That is why we have gone into as much detail as we have. We do not want to get into a situation, as happened at Westminster, where members can say that they did not know about the rules. No one should be in any doubt about what is expected of them. If members fail to live up to expectations, this committee will determine the action that will be taken against them.
That leads on from John Young's point about brevity. Karen has hit the nail on the head—this is the guide for MSPs, and there are no excuses. That must be quite clear and unambiguous. If any doubt remains in the minds of members, they should consult the clerk to the Standards Committee in the first instance.
Even at Westminster—and without naming members—the MPs who asked for money for asking questions knew that what they were doing was totally wrong and improper. There is no question about that. I am not suggesting that the same will happen here, but members would know that that was wrong. We could illustrate all the points in five pages. Nevertheless, I agree with Des that if members are in doubt, they should ask the clerk.
Members should look at who they will have to face on the Standards Committee if they ever come before us.
I will ask the clerks to take on board all the issues that we have highlighted and to incorporate the changes. Karen Gillon and Adam Ingram made at least a couple of important points about additions that could be made to the code in future, once we come to produce our own legislation. We will consider them at the time. Members should remember that the legislation was passed down to us from Westminster and that what we are producing is an explanation of those rules.
Meeting closed at 15:32.