Standards Committee, 14 Dec 2004

Meeting date: Tuesday, December 14, 2004

Official Report 199KB pdf

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Members' Interests

Agenda item 6 is on replacing the Scotland Act 1998 (Transitory and Transitional Provisions) (Members' Interests) Order 1999. In the last session, the former Standards Committee reviewed the members' interests order and its operation and practice. The committee developed draft legislation to replace the members' interest order and, on 3 October 2002, the committee had a proposal to introduce a committee bill. That was debated and approved by the Parliament. However, due to pressure on the parliamentary timetable in the final months of the first session, it was not possible to introduce the bill, although the committee published a draft bill in March 2003.

When the second parliamentary session commenced in 2003, we agreed to review the provisions of the draft bill. The purpose of the attached report that you all have before you is to make a proposal to the Parliament for a committee bill.

The report to the Parliament needs to be sufficiently detailed to enable the subsequent drafting of a bill that reflects the policy issues that the committee has agreed. The committee has already agreed to delegate authority to me to deal with minor changes, in consultation with the non-Executive bills unit. Once the bill has been drafted, it will be presented to the committee with the accompanying explanatory notes for approval before the formal process of introduction to the Parliament.

I am quite happy to go through the report in detail now, but I remind members that today is not our last chance to influence what will be in the bill. We should try to get the detail right, however, and to that end we have given it a fair amount of thought.

I have no particular concerns about the report but I am quite happy to go through it page by page and give people the opportunity to say whether there are any areas that they think have been omitted. The deputy convener has indicated the existence of one such area to me.

Shall we go through the document page by page?

Members indicated agreement.

Are there any questions on page 1? Page 2? Page 3?

The middle sentence of paragraph 15 on page 3 says:

"It will be for each Member to ask themselves, not whether they would or might be influenced by the interest but, whether a fair minded and informed observer would conclude that their impartiality would be or appear to be prejudiced by the interest."

However, the people who get excited on this subject are usually neither fair minded nor informed, but cause a great stushie. I think that some of the elements in the report are totally over the top and have something of the hair shirt about them. Nevertheless, I recognise that, while we all think that we are honourable people, people outwith Parliament might not think that we are and might draw the wrong inference from what we do. I do not know whether the sentence that I read out could be worded in a better way. I have no better wording in mind.

Where do you believe that it is weak? I agree that it still relies on the member to make the judgment, but the attempt is to ensure that, in doing so, they make an objective rather than a subjective judgment. We want the member to place themselves in the shoes of someone other than themselves. That might be difficult, but I am not sure what alternative form of words might achieve the same objective.

I do not have a positive suggestion. We could say that we do not need to pander to the prejudices of people who have strong prejudices. However, it might not be possible to say that in a parliamentary document.

Perhaps a sentence that recognises that we will never be able to satisfy everybody about our objectivity might prove helpful. However, I suspect that that would not satisfy those about whom we are talking in any case.

The issue is difficult and it has been debated several times. Burns wrote:

"O wad some Pow'r the giftie gie us
To see oursels as others see us!"

If the giftie cannot do it, I am not sure that we can either.

To reassure Donald Gorrie, I inform him that I received correspondence from the equivalent of the standards commissioner in British Columbia in Canada, which introduced exactly the same test as we intend to introduce, although it is worded completely differently. She sent me information on a lot of cases that were deliberated on. The issue is the difference between a member having an interest and people's perception that a member might have an interest. The interpretation of that test has created difficulties in British Columbia.

It is reassuring that other countries are going down the same path, but the main point to draw from the experience in British Columbia is that it is the application of the members' interests bill that will give members and the public the confidence that we are looking for. The issue is difficult because we are calling the test objective when it is clearly not very objective at all, but personalised. However, it is a test and its worth will be proved only in its application. We must be consistent with the Ethical Standards in Public Life etc (Scotland) Act 2000, with what happens in other legislatures and with what the Parliament has done in its first years. I share Donald Gorrie's reservations, but we are close to agreement on the issue.

As I say, I have no constructive improvements, so I will not push the point. Ken Macintosh's comments are helpful.

We have attempted to make the onus that will be put on members a little clearer. The test is meant to be as much about the external perception of his or her action as it is about how he or she feels about it. The wording "fair minded and informed" is deliberately chosen and it highlights the differences between people who are fair minded and informed and those who are pursuing grievances, whether or not they are well founded. I suspect that, in some circumstances, people who have grievances will never be persuaded that anybody has been objective. The committee has some experience of that.

Do members have comments on the rest of page 3 or pages 4 or 5?

I suffer from having missed the two previous meetings because of other committee business. What is meant by

"Declaration of interests outwith Parliamentary proceedings"?

Does that mean that, if I go to a conference, I have to say that I have interests in X, Y and Z that are relevant to the conference? I do not understand the background to paragraphs 26 to 28.

By and large, the point is that parliamentarians who are speaking at an event as parliamentarians ought to declare any interests. We did not feel that that should be subject to criminal procedures under the proposed bill, but we felt that the matter should be covered in the code of conduct. To take a topical example, if Donald Gorrie was a major shareholder in a tobacco company and went to speak at a conference on smoking, a well-informed and fair-minded observer might perceive it to be appropriate for him to declare that as an interest. We wanted to make it clear that there is a duty on members to be open and honest about their interests and that we were not saying that members can deceive people by omission or commission outwith Parliament. However, we felt that in those circumstances it was appropriate to deal with such conduct through the code of conduct rather than through criminal procedures. Is that helpful?

Yes, that is helpful, thank you.

Like Donald Gorrie, I apologise for missing the previous meeting, which was because of paternity in my case. I will ask a question for my information because I do not understand the current practice. I am intrigued by the

"deletion of interests from the register."

If a member receives a gift of any kind or if they do something, do they have to inform the Standards Committee clerks that the gift is no longer live? Is that entirely at our discretion or is there an automatic cut-off point? I would have assumed that after two, three or four years, it would automatically fall from the live register.

Currently, there is no automatic cut-off point, nor indeed will any of the proposals permanently delete anything that has been declared as an interest. We are talking about what will appear on the website immediately; we are not suggesting in any way that the public will not be able to access information about any interest that has been declared in the past and has ceased to be live. However, we have suggested that where, in the member's view, the interest has ceased, it will be removed from the live register, but we will also impose a time limit of 12 months. The current situation is that if one declares anything, it is on the register for ever.

Until the election.

The most common example is when a member has shares, which might then cease as an interest because the member has sold the shares and feels that they are no longer a relevant interest. The member might then say, "I sold those shares two years ago so the interest is no longer relevant." Currently, we would then enter that interest as a ceased entry and it would be removed from the register after 12 months. We clear the register in May and leave a note to say that the interest has ceased as at the particular date. People are then able to look at the register, see that a member has had an interest and follow it back.

We are now proposing that the record of all interests should cease after 12 months. As it is, if a member registered an interest just before May, it would come out of the register in May, so it might show as having ceased only for a month or so, but if a member were to register it just after May, it would be on the register for a year. We are making the process fairer by extending the period to 12 months.

The current position is that anyone who wants to follow up on ceased interests can do so because the entries are never expunged, as such; they just do not appear on the live register.

There is an historical record.

Yes, an historical record is kept. This is a tidying-up exercise.

I would like clarification on Linda Fabiani's point. After an election, do we start with a blank sheet? Is there not an automatic cut-off point at Westminster? I ask for information only. The proposed new system seems overly complicated. If there is an effective cut-off point every four years, that is fine as far as I am concerned. However, I thought that at Westminster a member registered an interest and then it was deleted—

We all have to fill in new forms following an election anyway.

Will that procedure change under the members' interests bill? At the moment, if one is asked to go to Europe and speak at a conference, for example, one has to declare it and say that the trip cost £300 or whatever and that it was paid for by the British Council. That then goes on to the register of interests. It does not come off after a year, does it? It stays on the register for the parliamentary session.

If the member wished the interest to be removed after a year, they could ask for that. However, that would not prevent any diligent member of the public or indeed the press from getting the information because it is still recorded. The judgment of whether it is still a live interest is left up to the member.

We are talking about how long the description that an interest had ceased would remain in the register. At the moment, it could be there for as little as a few days, but the committee's suggestion is that once the member has decided that the interest has ceased, it should be there for a year. The onus will be on the member to use the objective test that we have already discussed to make an objective judgment on whether the interest has ceased or could be seen by members of the public to have ceased. Is that clear to members?

Like Ken Macintosh, I have not been involved in any of the discussions. I wonder whether that suggestion is too complicated. What is wrong with the description that an interest has ceased remaining in the register until the end of the four years of the parliamentary session?

That is not what happens at the moment. Such descriptions disappear at the end of each May. The proposal would mean that more information would be provided on the live register for a longer period of time, but it would not change the fact that individual members are responsible for deciding when an interest has ceased. If a member goes to a conference and that is paid for by whomever, it will still be up to that member—not the clerks or anyone else—to decide when that interest has ceased. All that our change will mean is that once a member has used the objective test and decided that the interest has ceased, it will remain on the live register as a ceased interest for 12 months rather than for a variable period of time, as happens at the moment. Our proposal will result in more rather than less openness. Are members content with that explanation?

It was crystal clear, convener.

I hope so.

Well done, chaps, for working all that out.

We have dealt with page 5. Are there comments on page 6?

I have a fairly trivial point about page 6, which relates to paragraphs 37 and 38. Paragraph 37 states:

"To provide greater transparency the exact figure should be published at the beginning of the year".

In brackets, it says that

"at current rates this would be £251".

I am concerned that we get into the realms of the exact figure being £253.27. Perhaps we should just put in "to the nearest £10" or words to that effect.

I am more than happy to be guided by the committee on that, but I would also like to be guided by the people who would have to spell that out in the legislation. Your point is well made, but I have no idea what the implications might be for the drafters. Can we have some technical advice on that, please?

If we have the committee's policy, we will be able to fit the legislation to it.

Perhaps the sum could be worked out to the nearest pound, as that would take away the pence; it is silly to specify the number of pence.

The figure should be rounded up to the nearest pound.

Yes.

Mr Fergusson makes a perfectly valid point.

It is diabolical that a gift of £251 might not be—

The figure could be rounded up to the nearest £10, if you wish.

That was my suggestion, although I think that the figure ought to be rounded down rather than up. In other words, if the sum is £257, it ought to be rounded down to £250.

If the figure is rounded down, that will provide greater transparency. I was wrong; I intended that the figure should be rounded down.

Whether the figure is rounded up or rounded down depends on which way one looks at it.

Is it agreed that the figure should be rounded down to the nearest £10?

Members indicated agreement.

Provided that the legislation can be drafted in such a way as to accommodate that.

Our advice is that the drafters are quite happy to deal with that. We should add in that the figure should be rounded down to the nearest £10.

That should be reflected in paragraph 38 as well.

Yes. Are there any comments on page 7?

I have a point on paragraph 38, which says:

"Members are required to register the location of any registrable heritable property and to provide an estimate of its market value, which should be updated annually on 5 April."

I vaguely remember that we discussed the issue previously, but it seems quite onerous to require that the property's estimated market value be updated annually. I do not want to reopen the whole discussion.

People just would not remember to do that.

Exactly. Also, it would be quite expensive if a full market evaluation was required.

What is the alternative to an annual uprating? As I recall, we aim to put the onus on individual members to give details of such financial interests across the board as may be relevant to the circumstances at the time. Given the fairly volatile nature of the property market in parts of Scotland, a piece of property that is worth £100,000 this year could well be worth £130,000 next year. In the event of a crash, the value might fall to £70,000 the year after that. If such an interest were not to be uprated but registered simply as £100,000, that might give a misleading view.

I accept that such a requirement might be burdensome on the individual member. If the test were to be objective, we might need to insist that the member obtained a market valuation that could be formally submitted. However, that was never the committee's intention. Our suggestion was that members should make a judgment and that we should rely on their honesty.

If members are to be required to provide an annual estimate of their property's value, should the declaration on the property's presumed rental income—the paper states that the threshold is currently £4,000 per annum—be required to be updated every year as well? If a house is used more or less as a business income, the rental income could be more important than its market value. I say that as someone who was in that position for a couple of years during the first parliamentary session.

Our draft report implies—if it does not state so explicitly, we can make it do so today—that members should not be required to give historical information on rental income even if we require that other financial aspects be reviewed annually. We had originally intended that such a requirement would also apply to rental income, but there were concerns that individuals who are not MSPs and who may have no relation to the Parliament other than that they happen to be a tenant of an MSP would have their private financial arrangements disclosed. However, I think that Linda Fabiani's suggestion would not be detrimental.

I want to pursue that point. Given that paragraph 41 suggests that the income levels could be banded, could the capital values be banded as well, so that members would not need to uprate the details annually? No one would argue that members are more likely to be bribed in some way because their property is worth £135,000 instead of £120,000. The important thing is that the existence of the property be registered. Whether the property is a wee tenement flat somewhere or a house that is part of a massive estate, the value of the rental income could be covered by banding.

Perhaps the rental income could be covered on the same basis as additional income—such as income from journalistic activities—that is earned outwith the Parliament. Such income is currently banded rather than declared specifically.

Banding could work for any income stream. However, if there were to be no annual updating or uprating requirement, would the default position be that members would need to provide the correct figures when they register at the beginning of each parliamentary session?

But there could be a substantial change in a four-year period—that is the point.

There could be a substantial change. However, Donald Gorrie's point is that the interest is not the specific value of a property but the general interest in the property. It would only be prurient to want to know that somebody had a property—if only it was me—that was worth £130,000 one year, £150,000 the next year and £170,000 the following year. The interest would be the fact that the member had a property, ownership of which might have implications for some of the issues that we discuss in Parliament. What the property was worth would be updated every four years, as happens now. That is what we are getting at, is it not? It is not that we need to nosey into people's affairs to find out exactly what their property is worth every year.

I do not know, but I assume that such a rule could trip people up inadvertently and that is not what we are in the business of doing. We are trying to create transparency. Sometimes we look at these issues as though people are trying to hide interests, but it is exactly the opposite. We are trying to encourage transparency and openness.

It may be helpful if I relate my own experience from the first four years of the Parliament, when I owned a flat. I made an arbitrary estimate of what it was worth, as I had absolutely no idea. It never entered my head to change the entry in the register until I no longer owned the property and asked for it to be removed from the register. It was not my intention not to be transparent; it just did not enter my head to change the entry, as I did not think of the flat as a money-making venture.

Are members agreed that we need to change paragraph 38 to remove the requirement for an annual updating? I do not think that we have that, currently. Are we agreed to remove the bit about the annual updating of a property's value on 5 April? The property and its estimated value would be declared at the beginning of the session and anyone who had an interest in the matter could make their own estimate of how that value might have changed in the intervening period, if they were aware of the market conditions where the property was. The nature of the interest would not be influenced by changes in the market conditions, which would be unknown to the fair-minded, objective external assessment that was being made. We would not see a need to have an annual uprating of the rental income, but we would go along with the idea of the rental income as it appears in paragraph 41.

Banded.

Banded, yes. Members will recall that the detail of that will appear in the regulations. We do not need to specify that in the bill. Is that agreed?

Members indicated agreement.

The committee is making a minor change to paragraph 38, removing the annual updating, but is content with the rest of that paragraph. Is that clear to those who have to make a record of this and to those who have to produce the draft bill?

That is fine.

Are there any other matters on page 7 or page 8?

This might have occurred in my case, but it will not, as I will not be a member in the next session. Some partners might have serious objections to their financial position being scattered all over the public prints. There is a theoretical possibility that if a person wants to bribe a member, they can bribe the member's partner, but it is unduly onerous on partners to be involved. That is my view, although I would not push it to the wall.

Which paragraph are you referring to?

I am sorry. I refer to paragraphs 42 and 43. Paragraph 42 states:

"The MIO requires Members to register their own and their partner's shareholdings".

I do not want to trespass on current events, but somebody who is not a partner may sometimes cause more problems for a member than his or her partner.

Are you suggesting that there should be a different form of words?

I simply think that involving the partner is unduly invasive. However, we have probably discussed the matter previously and I have probably lost the argument.

We took involving a partner into account when we discussed gifts and took precisely the view that you have just expressed. Do other members think that we should take out interest in shares in its broadest sense and the need to declare a partner's shareholdings?

What paragraph 42 says should remain. Gifts are another matter.

The requirement is invasive, but there is no alternative. Not having the requirement would be more likely to create trouble.

I am worried that I did not question things when we originally discussed the matter and am therefore not sure whether I should do so now. If we do not require a partner to register a heritable property, which we do not—

We do.

Do we? I am sorry. In that case, I have got things wrong.

There is a distinction with gifts. We were particularly concerned about how mean-spirited members were with their spouses.

My apologies.

Gifts with a value of more than £250 should be declared. We require a declaration for heritable property, shares and financial interests in their broadest sense.

I am sorry. I have reread what is said and you are right. Therefore, the requirement should stay in.

I sympathise with the position that Donald Gorrie has outlined. The requirement is rather invasive. A person might stand for election to the Parliament, but their partner might have no interest—although I hope that they would be supportive—and the requirement will be rather a burden. Things will become complicated if we go down the American line of pre-nuptial agreements and so on. Obviously, a person enjoys an interest in their partner's property and wealth. Previously, we have said that a partner exerts influence over somebody—and so they should—but transparency is the issue rather than anything else. Therefore, much as I sympathise with what Donald Gorrie says, there is no way round the matter at the moment.

Do we wish to press the matter?

No.

Are there any other issues on pages 8, 9 or 10?

One of the hardest issues is non-pecuniary interests. It excites people who are not entirely reasonably minded on the issue. As I think that I have said before, some people's support for, say, a football team is a bigger part of their life than membership of an organisation. Will they be required to say that they support Partick Thistle or whatever? If a member is president of a local youth club, are they supposed to register that, given that we might vote in support of more money for youth clubs? We should perhaps provide slightly more guidance on what we mean.

It is quite possible for us to provide guidance. It is not necessarily appropriate to put that in the report, but it could appear in the explanatory notes. I am looking for guidance from our technical adviser on whether I am right about that.

Yes, that is correct.

We are looking for members to make an objective judgment about whether someone might reasonably think that the member could be influenced by a non-pecuniary interest, for example their membership of an outside body. The committee agreed that MSPs should not be exempt from the provisions of the legislation that we imposed—if that is the right word—on those who are elected to represent us in local government. We decided that we would try to take a consistent approach, but I agree that the assessment might not be easy for individuals to make.

The treasurer of the local cricket club will not excite a great deal of interest unless he is trying to exert influence on a local authority to make a substantial grant to the club. I would have thought that someone who was being objective would not expect an interest to be declared in circumstances in which there are no significant financial or planning implications.

As members of the Scottish Parliament, we have not just the right but the duty to exercise judgment, and we are held to account for the judgments that we make. We are spelling out the parameters against which we will make judgments and we agreed earlier that we will try to do that as objectively as we can against the measure of whether others could perceive that we have failed to declare an interest and might be influenced by factors that are external to just the value or otherwise of the proposal.

Donald Gorrie is right in that the matter has excited, and will perhaps continue to excite, more interest than others. However, given that only 30 people took the trouble to contact us, compared with the 54,000 people who participated in the consultation on smoking, it seems that, although it might be of interest to some people, it is not stirring up the general public. That is not to say that we do not value the views of those who took part, but so far the matter has not generated a great deal of interest in spite of our best efforts to encourage people to participate.

You highlight a general point that I wanted to make. When we read the phrase "the majority of respondents" in the report, it suggests that "the majority" could be 53,280. In this instance, I wonder whether we should say, "the majority of the 30 respondents", which would put the matter in context. Some of the divisive issues in the report were actually raised by remarkably few people.

Few respondents replied to all our questions. The questions on this subject attracted more interest than others. Of the 30 respondents, two responded by doing us the courtesy of saying that they did not wish to participate so, in reality, we had 28 respondents, but to no question did we have 28 replies. The suggestion that the report should say how many out of the total number of respondents replied to a question is positive and would be a useful addition to the report to the Parliament. I take it that members agree.

Absolutely.

Paragraph 34 starts by referring to respondents. It would help to say whether that means all respondents.

It means all those who responded to the question, but the number was not 30 or 28. I do not recall the exact number, but I think that it was more than 10. The typical number of respondents to each question was between 10 and 12, although some questions attracted more responses than others.

I am making comments, but I did not write the report. To be fair, it might be useful to have advice from the clerks or our technical advisers about the number of respondents and whether the suggestion causes any difficulty.

The clerks tell me that they are happy with the suggestion.

That is fine.

Mark Richards is also happy with the suggestion. Is everybody otherwise content with pages 9 and 10?

Members indicated agreement.

On omissions, Mr Macintosh wants to have a defence considered.

We discussed the matter at an earlier meeting. There is no defence to a criminal prosecution for breaking the members' interests order. David Cullum from the non-Executive bills unit made a constructive suggestion about that, which he invited me to explore with him, but through my own fault I have been unable to do so. He was not in the Parliament last week when I went to speak to him. The matter is a relatively important point to include in our report.

Several situations are possible. Someone who breaches the members' interests order could acquire a criminal record, which is a serious matter. There is no defence. Should we have a defence? David Cullum has produced a suggestion. As members know, ignorance is no defence, but the rules are quite complicated and we could easily break them inadvertently.

Ignorance is no defence.

I just said that.

Administrative failure might occur. All of us are guilty of that on occasions.

That is right. Another consideration is not meeting deadlines. The order contains many dates that people could miss. David Cullum has worked on the issue and we should reflect that in the report.

My only concern is that the report is to be signed off today to allow progress to be made. Members are aware of the proposed timetable. I accept Mr Macintosh's point and I will seek guidance from our advisers about how to deal with defences.

I have had the benefit of seeing the note that David Cullum sent Ken Macintosh. The points that are made in the note are reflected in the report. The key issues arise when members might not be aware that they have an interest or that an interest should be registered. That would apply where there is a gift to a spouse or where shares are held by a spouse. We can address such situations—as we state in the report—by putting in a provision dealing with the member's knowledge of the interests held by the spouse or partner.

Would there be a problem in adding that advice to the report, so that all members of the Parliament have the benefit of it when it comes to the parliamentary debate? I take the point that the individual items have been addressed as we have gone through the report in general, but I have some sympathy with Mr Macintosh's view that we ought to spell it out clearly for all members.

I think that it is already reflected in paragraph 18 of the report.

That relates to gifts and shares. It does not apply to heritable property, because it does not say so, neither does it apply to any of the other matters. The general principle is there, but paragraph 18 relates to the specific. Does it also apply to all the other specific issues?

Does it apply to heritable property?

I did not think that heritable property was to be registered where it was owned by the spouse and not the member. If the member had an interest in it, clearly it would need to be registered, but it would not if it was just owned by the spouse.

That refers to the point that I tried to make earlier, when we were talking about partners' shareholdings. Ever since then, I have been reading paragraphs 38 to 41 and I can see no requirement to register a partner's heritable property. If we do not have to register a partner's heritable property, I do not see why we should have to declare their shareholdings either. I seek clarification, convener.

Thanks for putting me on the spot. We should attempt to achieve a uniform approach. I favour spelling out the defence position somewhere in the report. I accept that it is spelled out in relation to gifts and shares in paragraph 18. The committee so far has not agreed whether we should have to declare the interests of spouses or cohabitees in heritable property.

Will the clerks clarify the current position? I was labouring under the misapprehension that partners' shareholding and property interests had to be declared, but clearly that is not the case. We should be consistent.

Paragraph 4.3.41 of the code of conduct states:

"A member has a registrable interest … Where a member owns or has any other right or interest in heritable property".

If a spouse, cohabitee or partner—whatever the appropriate word is—owns another property, the member might well have rights or an interest in it and, therefore, ought to declare it. However, since that is not clear, we need to spell it out. We need to take a view on whether we want it in the bill for consistency's sake, or whether we want it out on the basis that it is an intrusion in the privacy of someone other than the member. I take the view that it ought to be included. If capital assets such as shares and other financial interests are included, so should property. If it is not, there will be name changes to avoid registration.

If we said that property should not be registered, people would think that we were doing something dodgy. Both types of interest should be declared clearly.

I echo the opinion of Linda Fabiani and the convener that both heritable property and shares should be declared. If property is not included, the perception of even a fair-minded observer might be poisoned.

I agree that interests in both heritable property and shares must be included in the register of interests. If they are not, the exercise is pointless.

I have considerable doubts about this proposal, as it is invasive in respect of people who are not members. I have never had any difficulty with what members are asked to do, but I have considerable difficulty with what I suspect the committee will ask members' partners to do. I would not go to the wall on the matter at this stage, but I have reservations about it.

Do you accept that the current position is that partners' property should be registered?

Clearly, the passage that you read out is open to interpretation. I am thinking out loud, but what would happen if my partner was left some heritable property by a relative who had died and she refused to let me register it, because she did not want the world to know that it had been left to her? Where would that leave me?

It would leave you in a difficult position. If the Parliament agrees to legislation that requires the heritable property of a member's partner to be declared, it must be declared unless the member does not have knowledge of it. In the circumstances that Alex Fergusson describes, the member would have knowledge of it and would be in breach if it were not declared.

Surely the test is whether the member has an interest in the property, rather than whether they have knowledge of it. I have considerable sympathy with what Mr Fergusson says. Our partners are not elected to Parliament and do not choose to put themselves forward for public office, so they are definitely due more privacy than members are. We all accept that we give up many of our rights to privacy when we stand for public office. We might be supported in that decision by our partners, but they do not make the same choice.

Linda Fabiani said that if we decided that property should not be registered, that provision could be used as a device to hide something. That is not the point.

It could be perceived as such.

Yes, and that is important. However, the most important change affects staff as well as members. Staff are covered by the code of conduct, rather than the members' interests order, but I know that staff have concerns about what they must declare. The key issue in this case is how heritable property or shareholding affects members. We are replacing the members' interests order, so we should be concerned with the interests that members have in their partners' wealth or shareholdings. If a member's partner inherits a property, does the member automatically have an interest in it that should be declared? That is a fairly grey area. It is not obvious to me that the property should automatically be declared.

What about the scenario in which an MSP owns three or four properties that he lets out, which he decides to transfer to his wife, so that he does not have to declare them? We will never get a perfect system.

My worry is that the member might fail to declare such interests before seeking to change the legislation on houses in multiple occupation.

I would be concerned if we decided not to have the heritable property of members' spouses or partners registered. We have had many of the arguments before and I thought that we had reached a conclusion. I accept that members' spouses and partners do not seek elected office, but when someone decides to stand for elected office, their partner or spouse knows about it, so if they have reservations, they should express them at that stage. Responsibilities as well as benefits come with being an MSP. If the MSP's spouse inherited property, they would have an interest, particularly if it were subject to a compulsory purchase order because a railway line was being built and the member sat on the committee that was considering the railway line. There are all sorts of scenarios. Perhaps most of them would never arise, but we have to ensure that nobody can perceive MSPs to be shirking their responsibilities.

We need to make a decision on this. This is not the end of the matter. The draft bill will appear before the committee and Parliament will have the final say, although we will be influential. The fact that we have had this debate, again, will show that we have considered the matter and that it is not simplistic or black and white. I seek a proposal on which we can vote.

I propose that heritable property be treated in the same way as are share declarations.

I second that.

Would that entail amending the report?

It will entail amending the report, because as it is written there would be no need to declare heritable property that is owned by a spouse, partner or cohabitee. That is a dilution of the existing situation.

Remind me of the existing wording. As far as I can tell, it has been satisfactory for the past four years and has covered every eventuality.

Yes, but it is not as precise as we would wish. If the committee accepts Linda Fabiani's proposal, which I seconded, the position would become clearer.

What does it say currently?

The current order states that

"Where a member owns or has any other right or interest in heritable property … the market value of which … is greater than £25,000",

that needs to be registered. The suggestion is that we clarify the position only in relation to property that is owned by a spouse, partner or cohabitee.

Usually, I try not to divide the committee, but we are going round the houses on this. We will not have the final say on the matter. Nevertheless, I do not think that it reflects badly on us that we are having a debate. Members who hold different views about it should not be reluctant to express them.

I take it that the intention would be to rewrite paragraph 38. How and when would we sign that off? I presume that the committee would have to sign it off, unless we are going to change it now.

I am quite happy to allow the clerks to find the appropriate form of words. On what Bill Butler and Linda Fabiani are suggesting, we should also include in any such change the defence that appears in paragraph 18. If members want to express an alternative view about either the wording of the report or the members' interests order, I am happy to hear it.

I would prefer the wording that is in the members' interests order, which refers to a member having

"a right or interest in heritable property",

which could be a partner's shareholding or heritable property. We should be consistent with regard to shareholding and heritable property. I think that the wording to which I referred is sufficiently transparent. In the scenario that Karen Whitefield described, we would have a clear interest and should declare it. We are trying to establish a boundary between a transparent system that lets people know where we are all coming from and which makes clear who we are as individuals and our circumstances, and a system that would, in effect, invade the privacy of somebody who has not stood for Parliament.

This is a difficult issue to discuss without having hard-and-fast examples to refer to. However, I do not think that we should work on the basis that members will use the members' interests order to get round their duties. I do not think that that is what is being suggested, nor has that been the practice.

Are you making a specific suggestion?

My suggestion is that we use the wording in the members' interests order.

Okay, that is an alternative view. I think that we will get a little guidance from our legal adviser about what the current situation is and how we might resolve our problem.

It would be helpful for the committee to know how the provision in the current MIO has been interpreted. The interpretation has been that any other right or interest in heritable property is a legal right—for example, having a lease on property or holding a standard security over property, or perhaps having a legal right under the Matrimonial Homes (Family Protection) (Scotland) Act 1981 to a property, which does not come simply through a spouse's ownership of the property.

What about having an interest?

The same interpretation would apply because the meaning of "interest" duplicates that of "right".

That interpretation is different from the one that I gave. So the current situation is that, unless there are existing legal rights according to the definition that you gave us, there would be no requirement to register a property that is owned by a partner.

That is correct.

Will you clarify that you are suggesting that, for example, if there were an area of land on which my partner had a property, I would not have to declare that?

That is correct. The heritable property provision refers to a member's rights or interests in a property, which is different from the provisions in the gifts category or in the interest-in-shares category, which give the alternates of those things being owned by or given to a spouse or partner, or a member.

Is it agreed that, if we decide to include a spouse's heritable property in the duty, we will apply to it the defence provision in paragraph 18 of the draft report?

Members indicated agreement.

All we have to decide now is whether to include a duty to declare the interest of a spouse or partner in heritable property. The current situation is that, unless the member has specific legal rights in such a property, there is no requirement to declare it. We would be suggesting that we change and tighten the existing legislation if we decide that a member must declare a heritable property in which a spouse or partner has an interest. Am I right in thinking that Linda Fabiani and Bill Butler want to continue with their proposal?

Yes.

Yes.

Is there a different view?

No.

I probably have a different view, but I am content that Parliament will debate and decide on the matter. That is the proper forum for continued discussion of the matter. On that basis, and having put my reservations on the record, I will not stand in the way of that proposal going through.

Is that clear enough for those who must deal with it? We have agreed that a partner's interest in heritable property should be declared, but that the defence position that appears in paragraph 18 will apply to it. That will provide consistency. However, the issue is a matter for debate and we have spent a long time on it. Is Mr Macintosh content that the defence issue has been fully addressed?

Eh, yes.

That is very clear.

In that case, we will conclude the discussion.

I am sorry, but I missed out a pedantic point, which is that the wording in paragraph 17 should be "intra-family gifts", rather than "inter-family gifts". I point that out in case some legal chap gets hold of it. The reference is to gifts within a family. Inter-family means between two different families; intra-family is the correct term.

That is the benefit of a Latin education.

That is correct; it was not entirely wasted.

We have had rather more of a debate on the subject than I had expected. To ensure that we get this just so but do not delay the process any further, is the committee content to delegate the consequent detail of our decision to the clerks, our advisers and me?

Members indicated agreement.

Do you require us to circulate a description of the proposed changes to you?

No.

In that case, I am delighted to conclude this particular item of business. We can look forward to its parliamentary progress.

We decided earlier that items 7 and 8 would be taken in private, so I invite members of the public and the media to leave. I thank you for your attendance.

Meeting continued in private until 12:29.