Members' Interests Order
At our previous meeting, we agreed to consider a paper summarising the evidence that the committee has received in response to our interim proposals for replacing the Scotland Act 1998 (Transitory and Transitional Provisions) (Members' Interests) Order 1999. In the paper that has been given to members, the clerks have highlighted in bold the areas that we may wish to consider before finalising our policy on the order. I suggest that the best way to deal with this is to go through those areas now.
The first issue concerns the registration of non-pecuniary interests. In paragraph 13, which is the paragraph in bold at the end of the section that deals with non-pecuniary interests, we are asked to consider whether the registration and declaration of such interests should be mandatory and, if so, how we should approach defining what those interests should be.
The floor is open to members. I ask them to concentrate on the four bullet points in bold in paragraph 13.
There is no difficulty with having a recommended procedure, but if registration is mandatory, it is a rule. Anyone who breaks that rule can be reported to the committee and could face a sanction. Unless close rules are drawn up on what are and what are not non-pecuniary interests, there is a danger that MSPs could be subject to a sanction without knowing which rule they have broken.
At present, registration of such interests is not mandatory but voluntary. I would have no objection to registration being the recommended procedure, but if it is made mandatory for members, there will need to be a clear set of rules. For example, would someone who is a member of the Church of Scotland or another church have to disclose their church membership, because that could influence greatly their attitude on certain issues? Unless it were made quite clear what members did and did not have to disclose, a policy of mandatory disclosure would be difficult to enforce and would bewilder MSPs, as it would be difficult for them to know what they could and could not do. It would be much better to have a recommended procedure of good practice than to go down the route of making registration of non-pecuniary interests mandatory.
Paragraph 5 of the paper states:
"Witnesses were of the view that the replacement legislation should require the registration of non-pecuniary interests on a mandatory basis."
I agree with Lord James that, if we require non-pecuniary interests to be registered, there must be clear rules.
Like the witnesses, I think that there should be mandatory registration and declaration of non-pecuniary interests. At issue is how such a policy should be framed.
I refer members back to the Ethical Standards in Public Life etc (Scotland) Act 2000. The code of conduct for councillors requires them to register non-pecuniary interests,
"where non-pecuniary interests are defined as those which the public might reasonably think could influence a councillor's actions."
The word "reasonably" is difficult to define in law, as the lawyers among us, such as Lord James Douglas-Hamilton, will know. We need to provide guidance. I think that we should list examples of non-pecuniary interests, such as membership of trade associations, professional bodies, interest groups and trade unions, and require the registration of any other interests that might reasonably be thought by the public to influence an MSP's actions. We should not go too far and attempt to list all the interests that need to be registered, as we will be unable to include every organisation in the definition.
Registration of non-pecuniary interests should be mandatory and we should issue guidance on the type of interests that we think should be registered. We also need a catch-all provision, requiring the registration of interests that might reasonably be thought by the public to influence an MSP's actions.
I find myself in agreement with both Lord James Douglas-Hamilton and Tricia Marwick.
Are you a Liberal Democrat?
Yes—I am sitting on the fence.
Excuse me!
The evidence suggests that there is a call for registration of non-pecuniary interests to be made mandatory, but if we provide a list of examples, where should we stop? Lord James gave the example of membership of the Church of Scotland. Would church membership have to be registered? Members will still be concerned about what they need and do not need to register.
There should be mandatory registration of non-pecuniary interests—there is no reason for lower standards to be expected of us than of people such as councillors. However, we will still be left with the problem of deciding what should and should not be registered.
I was struck by a number of the points that witnesses made on this issue. Ironically, I am not sure that I would reach the same conclusion as they reached.
Several witnesses emphasised the need for us to adopt a principles-based approach, rather than a rules-based approach. It is a classic case in point. We need to guard against the notion that we can build everything into rules, but we should establish some general principles that people can understand.
The second point that attracted me was the quote from Canon Kenyon Wright:
"The purpose is not to restrict but to understand better the nature of the member's character and interests".—[Official Report, Standards Committee, 24 April 2002; c 1004.]
It is worth bearing in mind the spirit of that comment. Some of us—even those who have been on the receiving end—feel a bit odd about non-pecuniary interests. We understand that to give the electorate a flavour of who we are, what we are and what we believe in, we must put in something that covers non-pecuniary interests, which might define a person more than their pecuniary interests do. I am keen that we should seek to do that and give the public that flavour.
I agree with the comments that the approach cannot be overly prescriptive. I do not think that we could seek to make the definition exhaustive. We should establish a framework—people have used the word "guidelines"—and give examples of the kinds of things that should be declared. Trade union membership strikes me as an obvious one.
We should not seek to "Adopt a closed definition"—to use the wording in the paper. I do not see what a closed definition would be. We need to establish some general principles and standards and then, in the first instance, leave members to judge. At a later date, the public would be able to judge whether something that someone had not declared would have been germane to their activities. We are in a grey area of judgment rather than prescription.
I think that my stream of consciousness is broadly in keeping with what colleagues have said.
I think that this is the trickiest of all the options that we must consider this morning. I have strong reservations about mandatory registration of non-pecuniary interests, although I suspect that that is what we should do.
There are two strong arguments for mandatory declaration. First, it is probably more in keeping with the ethos of transparency that the Parliament has upheld. That was certainly the argument put by the witnesses at the committee meeting two weeks ago. However, they failed to impress me on how that would be translated into detail. Much as I agreed with them in spirit, they came up against the same problem that we have about how to translate the approach into action. Nevertheless, the Parliament has adhered to the principle of transparency throughout and I suspect that, despite the brickbats that might be thrown, we should maintain our adherence to that principle.
The second point is that the definition has already been put into practice through the Ethical Standards in Public Life etc (Scotland) Act 2000. Whether that was the right thing to do for local government councillors is a different matter. If we suggested that local government councillors should have a mandatory declaration of interests, I suspect that we should also have one, because otherwise we might be accused of hypocrisy.
I do not believe that our role and the role of councillors are the same. Councillors take an active role in decisions such as planning matters; we do not do that, so we are not the same. However, I suspect that we would be perceived as setting one rule for them and one rule for ourselves.
I find those two arguments to be quite strong. Perhaps we all need to adjust to moving to a transparent system anyway. There could be some inertia in my mind, which I need to overcome. I can see there would be a difficulty with the range of organisations and members' interests. They are certainly beyond a closed definition. It is a question of what is reasonable and what is not.
At one extreme, there is the genuine public interest, for example in relation to the freemasons, which has been well publicised in the committee and elsewhere. I am not sure whether we would describe that interest as justified, but a strong interest exists in whether MSPs are members of that organisation. At the other extreme, should someone have to declare that they are the honorary president of the Boys' Brigade? I would find it difficult to justify that sort of entry in any system.
Having said that, I suspect that we have to go down the mandatory line, which should be buttressed by guidelines that give members a strong indication of how to interpret the members' interests order. The guidelines should give several examples of organisations of which membership should be declared and several examples of organisations of which membership does not need to be declared unless the member so chooses.
With that caveat, I support the idea of a mandatory declaration supported by the definition in paragraph 13 of non-pecuniary interests as
"those which the public might reasonably think could influence an MSP's actions."
I would like to make my views clear. The key words "transparency" and "openness" keep coming up. We have to cement those and the order is one way of doing that. Susan Deacon quoted Canon Kenyon Wright and that resonated with me. He said:
"The purpose is not to restrict but to understand better the nature of the member's character and interests".—[Official Report, Standards Committee, 24 April 2002; c 1004.]
I was impressed by that approach and I think that we should focus on it.
At our most recent meeting, I commented to the witnesses that that approach is great, but the committee will have to wrestle with the practicalities of how to manage the order, which is what I am hearing from members now.
It is perfectly true that the witnesses argued for a principles-based approach, but we are the committee that will have to enforce mandatory registration. If we are to enforce it, we must have rules.
I would prefer a voluntary system, because it is much simpler and more straightforward, but if I am in a minority on that and the committee wants to go down the path of mandatory registration, I would argue for the more open approach, which defines non-pecuniary interests as
"those which the public might reasonably think could influence an MSP's actions."
For example, I suspect that the committee might take the view that membership of the freemasons should be declared but that it would not be necessary to declare membership of the Women's Guild. A test of reasonableness would have to be applied. Unless we have guidance, it will be difficult for MSPs to know what they should declare and what they should not declare.
I noted that the witnesses were not in favour of hawkish sanctions for non-observance. I think that they talked about having no criminal sanctions. It is very difficult to know what sanctions should be applied if a rule has not been breached. If the committee were to go down the mandatory course, a more open approach with clear guidance would be necessary.
The vast majority of problems will arise as a result of people not thinking that they should have registered a particular interest or not being aware that they had to do so. We are not talking about hanging or flogging them for that sort of thing.
I want to clarify something that I said earlier. I certainly do not think that we should be prescriptive about which groups should be registered. Any reference to specific groups should be illustrative and for guidance. I agree broadly with what Lord James said about the definition or threshold for declaration.
The wording refers to interests
"which the public might reasonably think could influence an MSP's actions."
Yes. I want it to be clear that although a number of us have talked about different groups and so on, I do not want my comments to be taken to imply that I think that we should be prescriptive about which groups should and should not be included. That would be very dangerous.
Before I summarise, I want clarification on an issue that a couple of members have mentioned. I think that we will be adopting the more open approach, by defining a non-pecuniary interest as
"those which the public might reasonably think could influence an MSP's actions."
We will give examples of groups that members might want to register. A couple of committee members have suggested that the guidance should state that there is no need to register certain groups. I question whether we should go down that route, because I think that the approach should be positive. Are members happy with that?
Members indicated agreement.
I will summarise. We have decided to go down the route of mandatory registration and declaration of non-pecuniary interests, but not to adopt a closed definition. We have decided to adopt a more open approach, by defining non-pecuniary interests as
"those which the public might reasonably think could influence an MSP's actions."
We will produce guidance for MSPs and give examples of organisations. We will leave that to the clerks. Are all members agreed on that?
Could my reservation that the requirement will be extremely difficult to enforce be noted?
That comment will be in the Official Report.
It will be difficult to enforce the requirement 100 per cent because, as Kay Ullrich said, there may be difficulties with it at the margins. However, I think that it is the best approach.
Paragraph 18 is about our interim proposals on shareholdings and specifically a proposal to use market value, rather than nominal value, for the threshold. That proposal appeared to receive support at our previous evidence-taking session. Are there any views?
Is the figure £25,000?
That is correct.
Are members content with what we decided earlier?
Members indicated agreement.
Paragraph 24 asks us to note the written and oral submissions received in response to our proposals on the interests of spouses, partners and close family members. The proposal is that, other than gifts received in connection with the member's parliamentary role, those interests should not be registrable. The evidence that we have received supports our position in paragraph 24. Are members content with paragraph 24?
Members indicated agreement.
Paragraph 34 asks two questions about the rules on declaration of interests. In our interim proposals, we agreed that the rules did not need to be extended, for example to require members to declare relevant interests when communicating with ministers or civil servants outwith the proceedings of Parliament. We agreed that the register provided sufficient disclosure. Are we content that that remains our position?
Members indicated agreement.
Finally, there is the issue of whether members should be permitted to have paid employment outside Parliament. We made no recommendations on that in our interim proposals, but the matter was discussed during the oral evidence session at our previous meeting. Paragraph 42 invites us to consider our policy on the matter. Witnesses at our previous meeting seemed to argue against an outright ban but suggested that there should be some way of taking action if a member's paid outside interests impact on his or her parliamentary work. In particular, Canon Kenyon Wright was exercised by that. Are there any comments?
My view is that MSPs should consider their job as a full-time one. I seem to remember that that was the view of the consultative steering group. However, to say to all MSPs that they will not have an outside paid job seems to be very proscriptive. It is not the Standards Committee that will judge whether an MSP is doing their job. If an MSP has five other jobs, the people who elect us will judge whether that MSP is being effective.
It would be wholly wrong for the Standards Committee to make a judgment about whether an MSP's outside jobs impact on their ability to be an MSP. We should not lay down a rule that says that no member can ever have other paid employment. However, there should be an understanding of the public's expectation that being an MSP is a full-time job.
I do not think that there should be a rule against MSPs being engaged in outside employment. Let me give the example of a member of the House of Commons who was a dentist. To maintain his skills, a dentist must keep practising. If he does not and if he were to lose his seat, he could lose his job altogether. A dentist must do a certain amount of work to keep up his skills.
I am a non-practising advocate, but practising advocates have been known, both in the House of Commons and in the Scottish Parliament. The first duty of an advocate is to their client. If we were to lay down a proscriptive rule that says that members should not have outside jobs, we would limit the quality of people who enter the Parliament.
We must remind ourselves—as Tricia Marwick did—that, at the inception of the Parliament, strongly held views were expressed in the CSG and wider public forums that MSPs were expected to act exclusively as MSPs. That said, I share the pragmatism and realism that others have expressed, as it is probably neither desirable nor possible to be so absolutist. However, we must remind ourselves of the default position that existed at the beginning. I detect that there has been quite a bit of slippage from that position and that our attitudes towards members who have outside employment are becoming much more akin to those of that other place.
We must distinguish different factors. The first is money; are members earning money over and above their parliamentary salary and, if so, from what source? The second is time; is outside employment detracting from the time that is required in order to be an effective MSP? The third is conflict of interests. Those factors are not the same—some types of employment might involve one but not the others.
I am concerned that we are on a slippery slope and that we have become more accepting of members taking up external activities. We should not prevent members from doing so, but we should pause to consider the level of information that members should be required to declare about such activities. A member may declare the name of a firm of lawyers and a figure, but what does that information tell us? It tells me how much money the member gets from doing that work, but it does not tell me how much time they spend doing it or the type of clients for whom they work, nor does it answer questions about interests and so on.
In the same way, there are questions about members who write for newspapers. We can see that Joe Bloggs gets X thousand pounds, but should that information be clarified to show whether he is paid for writing a weekly column that is published and that everyone can read in the newspaper, or whether he is involved in other activities for that paper? My conclusion is that I accept the view that we should not be proscriptive to the extent of saying that members should not take up outside employment, but I think that we should consider setting a requirement for a more detailed declaration than exists at present.
I do not accept the point about a lot of professionals having to keep up professional practice. It is true that, increasingly, there is a requirement for continuous professional development in a range of professions. However, that does not require people to stay in paid employment, as there are other ways of keeping up professional practice. Let us recognise that need, but let us also recognise the valid concerns that existed at the inception of the Parliament and require members to present details of their employment to give the full picture to their colleagues, to Parliament and to the public. I am not sure that we are there yet.
I have the same concerns as Susan Deacon. I retired as a social worker in 1997 and know that I could not return to work as a social worker immediately because I have not been keeping up with the profession. As Susan says, that principle can be extended to all kinds of professions.
There is a difference between being employed as a lawyer, for example, and being employed because one is an MSP. For instance, some members would not be writing newspaper columns if they were not MSPs. We must examine the issue of members gaining employment through being MSPs. It is valid to consider the time that those members spend in their other employment. Let us not forget—and I ask colleagues not to laugh—that we are supposed to be a family-friendly Parliament, working normal daytime hours. Unless members have a job in which they are permanently on night shift or back shift, it would be hard for them to say that they are not taking time away from the time they should be spending on their duties as MSPs.
Let me make a personal contribution. I was a fellow of the Chartered Institute of Personnel and Development. The demands of continuous professional development in that role were considerable. I am no longer a fellow of the institute because I decided that this is my full-time post. That was a personal decision.
As we heard from the witnesses a fortnight ago, the role of an MSP should be full time. I do not think that a member is doing their job properly unless they devote all their resources to it. Nonetheless, as Tricia Marwick pointed out, it is not for the committee to take a view on whether other MSPs are doing their jobs properly. That is a matter for the electorate, which will make its decision in 11 months' time. It is better to leave the matter to the decision of the electorate.
The point that Susan Deacon made was valid, nonetheless. To allow the electorate to make up its mind, we must consider the level of detail that is required about members' external employment. For example, if a member spends X hours in external employment between 9 and 5 from Tuesday to Friday, that should be registered. Susan is right to say that the appropriate level of detail is not available to allow people to judge.
I think that we will need to take legal advice if committee members want to pursue the issue. Does the committee feel that time commitments should be declared, as well as pecuniary interests?
I do not. That may seem strange, as we have taken a severe line and pushed the boundaries back on proportionality regarding non-pecuniary interests. However, I can live with myself facing in two directions. Although none of us might approve of someone holding down two jobs, as we regard being an MSP as a full-time occupation, it is a question of individual judgment. I do not think that there should be any restraint on members earning money elsewhere. It is for the electorate to decide.
Do we need any more detail? The issue is to do with how many rules we impose on MSPs. We are setting high standards for MSPs already. The more definitions we have, the more the burden on MSPs will become too restrictive, if not unbearable. In this case, it is quite clear: either members have an extra job or they do not. I do not think that we need to know much more than that and I suggest that that is as far as we take it.
Are members content with that position?
I agree that constituents' interests must never be neglected. If those interests are neglected, the electorate must sort that out at the next election. There should not be a mandatory bar.
I want to make a distinction. None of us has argued for debarring MSPs from having other paid employment. I was making the point—with support from Tricia Marwick and elsewhere—that we ought to think about the level of information that is provided about that paid employment. Kenny Macintosh is right, and refreshingly candid as ever, to point out the inconsistency of asking for a high level of declaration of non-pecuniary interests but being happy to accept a member working for Bloggs and Bloggs solicitors for £100,000, although no one knows what they are doing for that money or when they are doing it. I would press the point that we should consider the detail that is required in that declaration. I stress that I do not think that any of us is saying that members should be debarred from taking on other paid employment.
There seems to be a contradiction, but the two cases do not sit side by side. The public should know whether a member has other interests or another job. I do not believe that the public has a right to know much more than that.
At our previous meeting, we had an interesting discussion with Professor Alan Miller about whether MSPs have a right to privacy. We obviously have less right to privacy than others do. However, the electorate needs to know whether a member has another occupation or means of generating an income. There are all sorts of obligations for us to declare any interest that might clash with our parliamentary duties. Those obligations are clear.
If we were doing anything for remuneration or otherwise, that would have to be declared under the rules as they stand. Beyond that, to talk about how many hours people are doing their jobs is to go down a different route altogether—we could be highlighting to an undesirable extent those who choose to have other employment. If members have other employment, we can assume that they devote time to it and the public will be aware of that. Providing any detail beyond that would be onerous.
I am clear about the positions of Kenny Macintosh and Lord James Douglas-Hamilton and I am clear that Susan Deacon is taking the opposite side, but I am not clear about the views of Tricia Marwick and Kay Ullrich.
I am essentially with Susan Deacon. My standpoint is the same as the CSG's in that this should be a full-time job. I do not seek to debar anyone from having other employment if that is what they choose to do. However, the detail required by the register of interests does not make the distinction between those who are given money by Bloggs and Bloggs for services that we do not know about and those who are given money by Bloggs and Bloggs for spending X hours a week doing whatever it is that they are doing.
Where the register of interests shows a company's name and a sum of money, there should be more detail about why that money is being received. If that money is received for particular work, the nature of that employment should be registered.
Okay. We have a two-two split so far. What do you think, Kay?
As I appear to have the casting vote, I am afraid to say that I agree with Susan Deacon and Tricia Marwick. Even if a member registers the fact that they receive X grand a year for producing a weekly column for such and such a newspaper, more detail should still be provided.
Did we not recently come to an agreement about the declaration of newspaper columns?
Yes. We agreed that there was no need to declare such things separately, as they counted as earned income. However, the argument is now a little more in-depth and centres on the wider issue of MSPs' commitments in receiving remuneration.
It also centres on the interests that should be declared when such remuneration is received.
Indeed.
Under the current rules, any clash of interests has to be declared. In other words, if an MSP takes on any job that impinges on his or her parliamentary duties, he or she would have to declare it.
An interesting point has been brought to my attention. Paragraph 4.3.8 of the current code of conduct says:
"Where a member undertakes a trade, profession or vocation or any other work, the detail that should be given is the nature of the work and its regularity as well as the level of remuneration."
So we were right all along.
The point is already covered in the code of conduct. I think that we need to remind members of that.
I suggest that the clerk writes to members who are declaring remuneration from newspaper columns and says, "Hey, where's the detail?"
I am happy to support the existing rule.
As Kay Ullrich said, we must have got it right in the first place.
Unless members are working at night as bouncers, they have got problems.
Although that stipulation is in the code of conduct, I do not think that it is reflected in the members' interests order. I have to say that we do not generally receive such detail from members when they register their remuneration. If the committee is content for me to do so, we can draw paragraph 4.3.8 to members' attention when we write to them all later this month to ask them to review their interests annually.
What a discovery.
We could have saved ourselves the past 30 minutes.
The point is that members are not aware of that rule. Perhaps a reminder would be opportune.
If even committee members are not aware of the rule, I very much doubt that other members are. A reminder would be a good idea.
Are members now content to consider a draft report from the clerks that sets out a proposal for a committee bill?
Members indicated agreement.
We have just reinvented the wheel.