Interests of Members of the Scottish Parliament Bill
We move to item 3. I am delighted to welcome to the meeting Dr Jim Dyer, from whom we will hear on the Interests of Members of the Scottish Parliament Bill. Later in the meeting, the committee will deliberate on the points that he raises.
Dr Dyer, the floor is yours.
Dr Jim Dyer (Scottish Parliamentary Standards Commissioner):
I thank the committee for the invitation to come along and offer some observations on the bill. I will do so very much from the point of view of someone who has to interpret its provisions.
When a complaint is made, I will have to make the first decision, based on the current Scotland Act 1998 (Transitory and Transitional Provisions) (Members' Interests) Order 1999 or, in future, the provisions of the bill. The committee will then make the second decision. Obviously, there is scope for guidance on interpretation to be issued, but it struck me that it would be in my interests—and, indeed, in the interests of the committee and other members—for the intention to be expressed as clearly as possible in the bill to avoid, as far as possible, arguments about the interpretation of the relevant provisions.
In that spirit, I have offered observations on three topics, mainly on the basis of my experience to date. That said, my observations on the first issue that I have focused on—paid advocacy—are not based on direct experience of any cases, although I have dealt with cases relating to paid advocacy. I have simply imagined myself in the position of having to interpret the bill's provisions on the matter, which, with the addition of payments or benefits in kind to spouses, are different from the provisions in the members' interests order.
I do not know whether members have a copy of the bill, but I am referring specifically to section 14(2)(b), which deals with what is to be regarded as a
"payment or benefit in kind".
I have noticed that the phrase is defined differently for members and for their spouses or co-habitees. In order to qualify, any such payments or benefits in kind to spouses or co-habitees must
"be provided in connection with the Parliamentary duties of the member".
There is no such requirement with regard to payments or benefits to members, and I could not immediately see why that should be the case.
The problem is that it might be difficult to establish whether a payment or benefit in kind to a spouse was or was not given
"in connection with the Parliamentary duties of the member",
because such an investigation would require me to speculate on the motives of the giver of the payment or benefit in kind. Surely, the essence of the matter is the member's motivation in undertaking the parliamentary action in question and whether it has been undertaken in consideration of any payment or benefit in kind either to the member or to his or her spouse.
If an action is taken in consideration of a benefit to the member or his or her spouse, surely that is enough to qualify under the provisions without having to prove that the benefit was provided
"in connection with … Parliamentary duties".
I am worried that, although paid advocacy might be taking place, it might be difficult in a case involving a spouse to prove that the payment was made by the giver in relation to
"the Parliamentary duties of the member".
I suggest that such a requirement is not really necessary.
When I re-examined the matter in preparation for today's meeting I noted that section 14(2)(b)(ii) contains the requirement for any "payment or benefit" to the member's spouse or co-habitee that might qualify as paid advocacy
"to result in some benefit to the member".
Having to prove that will cause problems. After all, a payment or benefit to a spouse or co-habitee might please or influence a member without actually conferring any benefit on them. The question is whether the member's parliamentary actions are influenced by a payment or benefit either to him or her or to their spouse, and it seems excessive to have to prove that a payment or benefit in kind to the spouse brings "some benefit" that might influence the member without directly conferring some benefit on them. It is enough that the spouse receives the benefit.
Do you want me to pause before I move on to the other two issues that I have highlighted or do you want me to carry on?
The committee—and indeed the previous committee in the previous parliamentary session—has already discussed the matter at length and we have now had the stage 1 parliamentary debate. It is now open to committee members to consider potential amendments to areas of the bill in which we might not have got things quite right. Dr Dyer, we were pleased to hear from you and will seriously consider what you have to say. In fact, we will do so in private later in the meeting and will consult our legal advisers on how such provisions might be drafted.
I am quite happy for members to comment on Dr Dyer's observations or to ask him questions. Given that he wrote to me on the matter, it might be helpful if we had his permission to publish his written material.
I have no difficulty with that.
I did not think that you would have, but it is useful to put that on the record.
Do members have any questions?
My question might appear slightly frivolous, but I point out that I am not a lawyer.
Dr Dyer, do you think that if giving gifts and all that stuff made the member's spouse or co-habitee happier it would confer benefit on the member?
I am arguing not that that would confer benefit on the member but that it might influence them. For example, if one's spouse had been given a gift, they might bring some influence to bear on the member's actions with regard to the giver of the gift. We should have to guard against such an occurrence rather than have to prove that there is
"some benefit to the member".
I am sympathetic to the main thrust of your argument, which is that the rules should be as simple as possible. I think that you have a point about the fact that the issue of benefit to members and the spouses of members could be dealt with in one avenue rather than two separate avenues.
Perhaps I should point out that simplicity in these matters is not always possible. Sometimes, it is not even at our hand. Section 39 of the Scotland Act 1998 has constrained our attempts to make changes to a number of the articles of the members' interests order that we have sought to make changes to. One can read the bill as it stands but one cannot do so successfully without reading it in conjunction with section 39 of the Scotland Act 1998. That has not made the task of the committee easy. However, I understand Dr Dyer's point.
I understand what you are saying, but it would seem to be desirable to make the bill as clear as possible.
I understand the constraints that the situation places on you, in particular, because you have to interpret the legislation. We can offer guidance, of course.
A number of the issues might become clearer once the bill has been dealt with and we come to codify the legislation in the code of conduct, in which we can spell out the details of what we are going to do.
If there are no further questions on paid advocacy, I will say a word or two about gifts and overseas visits, issues relating to which arose in cases that I have dealt with in the past year. There is scope for improving clarity with regard to these areas.
Like the MIO, the bill provides for the registration of gifts to a member or to a spouse if they are in excess of a threshold, which is to be, in future, 0.5 per cent of a member's salary—which would come to roughly £250, at the moment.
No provision is made for situations in which a member and their spouse receive a gift jointly. For example, if someone gave a member and a member's spouse a weekend stay in a hotel that cost £400, would that count as one gift of £400, which would be above the threshold, or two separate gifts of £200, which would be below the threshold and would not have to be declared?
I think that that is clear. What counts is the aggregate value of the gift. Therefore, the example that you gave should be registered.
In my letter, I have suggested a way in which that could be clarified if the committee feels that it is the aggregate value of the gift that is important in relation to laying bare any potential influence.
The issue of overseas visits is quite complex. There seems to be uncertainty in the minds of some members about the scope of the article in the MIO. It has been put to me that the article refers only to visits of a parliamentary nature, notwithstanding the fact that the code seems to make it clear that what is important are visits of any nature, regardless of their purpose. On that front, I have suggested that paragraph 7 of schedule 1 to the bill could include the words, "whatever its purpose or nature" after "visit" in line 30. I note in my letter that, in Westminster, the intention is more restrictive. The guidance on the code of conduct there refers to
"overseas visits relating to or in any way arising out of membership of the House".
If the intention is that any visit, whatever its purpose or nature, should be covered, it is arguable that it would be possible to say so in the bill and remove any argument on that point.
My letter goes on to argue that there is some overlap in the MIO and the bill in relation to gifts and overseas visits, because an overseas visit that was paid for by someone else would also constitute a benefit in kind or a gift that would have to be declared if it were over the threshold and, in future, if it passed the prejudice test. I have suggested that overseas visits should be treated more like gifts as there is an argument for having a threshold and a prejudice test.
On the threshold, a member pointed out to me that, if someone bought the member lunch while the member was on a trip abroad that was otherwise paid for by the member, the trip would not have been wholly paid for by the member, which means that, strictly speaking, it should be registered. One can also construct anomalies. For example, if someone had a trip to Dublin that was paid for by someone else, that would have to be registered as an overseas trip, regardless of what it cost, whereas a trip to Belfast that was paid for by someone else would have to be registered only if the value were over the threshold and, in future, if it passed the prejudice test. I have suggested that it might be helpful if there were a threshold for minor expenses contributed by others in relation to overseas trips. Perhaps the threshold could be the same as for gifts.
Trips that are paid for by a member's mother, father, son or daughter are exempt, but trips paid for by other relatives are not. Therefore, if a member went to see a brother in New Zealand and the brother met some of the cost, that would have to be registered but not if their father, mother, son or daughter did so. One does not immediately see why that is relevant to the register of interests. Having a prejudice test similar to that for gifts would deal with the problem of innocent visits to relatives that are not otherwise mentioned in the exemptions in the bill.
I end my letter by asking:
"Is there a reason for treating overseas visits differently from gifts?"
I am suggesting that there is not.
I put my suggestions before the committee for its consideration.
I am grateful to you for doing so. Now that your suggestions are on the public record, any member of the Parliament can act on them by lodging appropriate amendments prior to stage 2. The members of the committee will give the matter due consideration.
Do members have any questions?
I would like to clarify something. I am not sure what the rules are about visits within the United Kingdom. I have never quite understood why overseas visits are considered wicked. I think that it is a throwback to our Calvinist past.
When researching a place to have a family gathering on the new year weekend, one of my sons found a posh hotel in England that charged £3,000 a head. I hasten to add that we did not take up the proposition. However, why should a trip there not be counted, while a bog-standard, cheap holiday to Spain that someone gives you is counted? If someone went to an expensive hotel in England at someone else's expense, would that be counted as a gift?
If it cost in excess of £250, it would be. However, the point that is being made is that all overseas visits, irrespective of such considerations, ought to be registered.
There is a point to be made about the distinction between overseas visits and gifts. It might well relate to our Calvinist past, but it might also relate to the fact that we inherited the existing MIO and neither we nor our predecessors thought about whether we should just regard overseas visits as gifts and not treat them any differently. If we are to revisit the issue with an amendment, we must do so quickly. We can discuss that afterwards in private session. Again, it is always open to any member to lodge an amendment at stage 2 or, indeed, stage 3—it would be much better to do so at stage 2—if they feel that we should go in that direction.
I have a further point. I was interested in a sentence in the clerk's paper, ST/S2/06/1/3, on the issue, which said that
"there is no restriction on the overall value of gifts received in any year or in any parliamentary Session from a single source".
Is that not a defect? Somebody could give an MSP something in a drip-drip way. For example, if somebody set up a standing order to give an MSP, say, £150 a month or whatever sum would keep them under the threshold, that might be a considerable inducement over the year.
Indeed. The committee can consider that point when we discuss the bill. I am not aware that we have considered the point in detail before. We will get advice on it when we move into private session shortly. Do members wish to engage Dr Dyer on any other points?
I have nothing specific to add, but I voice my personal thanks to Dr Dyer for his work because it is useful for us to see how he regards what we are putting into practice. How much his comments will affect our deliberations is obviously for the committee to decide. However, it is useful that he brought to our attention what are possible anomalies.
Obviously, the committee and our commissioner have two separate roles. The commissioner is here to interpret the rules as we produce them and our role is to be policy makers. However, it would be foolish indeed of us not to listen at least to his views on how the bill will impact in practice. His engagement with us in writing and over the table today has been valuable. I thank you on behalf of the committee, Dr Dyer.
Thank you.
We will move into private session to consider agenda items 4 and 5.
Meeting continued in private until 12:07.