Agenda item 6 is consideration of a draft report and issues paper on replacing the Scotland Act 1998 (Transitory and Transitional Provisions) (Members' Interests) Order 1999. I suggest that we consider the issues paper first, as it deals with some minor outstanding policy issues.
I did not realise that the Presiding Officer drew up the initial registration form. Why was that?
The current members' interests order provides that the format should be determined by the Presiding Officer. The replacement legislation could specify either that the Presiding Officer should prescribe the format or—as perhaps the committee will think more appropriate—that the format should be prescribed in the code of conduct.
My view is that it should be prescribed in the code of conduct.
Is there any advantage in the flexibility that is given by having the Presiding Officer specify the format? It strikes me that the code of conduct says what we want to achieve. We are effectively talking about a piece of administrative stationery. For a code of conduct to stipulate how it should be drawn up is perhaps too formal. I am not sure. Have there been any advantages in having the Presiding Officer specify the format? Has the format been amended several times over the past couple of years?
To my knowledge it has not been amended since it was first introduced in May 1999. It might be more appropriate for the level of detail that is to be included in entries to be set down in the code rather than in the form. We have a copy of the form, if members want to look at it, but they will probably remember it from May 1999.
Yes. From when we filled it in.
The only question that I would ask follows on from Ken Macintosh's point. It might be easier to update the form if that task is left with the Presiding Officer. If we had to change the code of conduct on numerous occasions, that would be harder. The nature of the form seems to be an administrative detail. Ken Macintosh may have a point.
My concern about the Presiding Officer's agreeing the form for making the initial statements is that we are saying that X, Y and Z must be enshrined in the replacement legislation for the members' interests order, but that the form will be prescribed by the Presiding Officer. I am not sure whether there is a conflict there. Would it not be better to prescribe the form through the code of conduct?
I have to say that that is my view, although I understand Ken Macintosh's point about flexibility. We should remember that the members' interests order was written when we did not have a code of conduct. Someone had to decide how the initial statement should be made and that is why, in the members' interests order, the House of Commons gave the responsibility to the Presiding Officer. We have now produced a code of conduct; we have laid down what needs to be declared and it seems common sense to include the specification of the form in that code.
If the form is prescribed in the code of conduct, can discretion be given to the clerk to the Standards Committee to update the form in the light of new circumstances?
Can we do that?
I will seek advice on that from the legal office.
If the form is linked to the code of conduct, the Standards Committee would have a role anyway, in that it would be proposing changes to be made by the Parliament. That would be sufficient.
I therefore presume that there could be an enabling provision to enable the clerk to do that.
This is a first. Legal advice in public—my goodness.
It would not be necessary to make any change to allow the Standards Committee to propose that the code of conduct should set out a form. That can currently be done. The question that is being asked is whether the legislation should set out that the code of conduct should prescribe the form or whether that should be left to the Presiding Officer. The Standards Committee has a role in relation to the code of conduct anyway.
Is there a potential conflict of interest if the Presiding Officer is involved in specifying the form of the initial statement of interests? Does the fact that he is presiding over the business of the Parliament mean that there is a potential conflict of interest, not personally but in respect of the Presiding Officer's position?
I do not think that there are difficulties with the Presiding Officer or the Standards Committee setting out the form through the code of conduct.
Am I correct in thinking that the legal advice is that, if the code of conduct says so, in practice, the clerk can make updates either through the Standards Committee or directly under authorisation from the Standards Committee?
No. Any change to the code of conduct would require the Parliament's approval.
I am talking about updating the form. Dealing with new circumstances would be a minor administrative detail if the code of conduct specified that the form should be in current terms.
The code of conduct could specify that the form should be in such form as the clerks determined.
That is my point. An enabling provision would allow such a practice. I think that that answers the question.
When we talk about a form, we are not talking about a bit of paper. We are talking about the fact that a statement must be in a form that the Presiding Officer prescribes. The Presiding Officer will determine the form in which the information should be given, as opposed to a physical form. Have I confused everybody?
The term "form" covers both those examples. A standardised form is used for initial registration, but not, at present, for updating members' entries in the register. The members' interests order allows the Presiding Officer to prescribe other issues of form—I am becoming confused, too—such as other information that the Presiding Officer considers necessary. If members want to include additional information, the Presiding Officer can prescribe the additional information that can be included.
Sam Jones is right. The term "form" covers how the information is set out and how it is given. The fact that something was in writing could be said to be a form, as well as the way in which that writing was laid out.
I will focus members on the main point. When the legislation was passed at Westminster, we did not have a code of conduct. Someone had to set everything moving. We are now up and running and we have our own code of conduct. The committee has responsibility for MSP standards. I question whether we need to involve the Presiding Officer at all. Such involvement would be legitimate, but my view is that, since we have the set-up, we should use it. Are members content with that?
As Lord James said, the code of conduct stipulates the information that is needed from the form, so we do not need to involve the Presiding Officer. The new members' interests order can contain the necessary wording to give us flexibility in the paper format that is used.
We will move on to the next question. Paragraphs 4 and 5 of the issues paper concern how subsequent statements are made. Should we continue the current practice, as outlined in paragraph 5—MSPs write to, e-mail, telephone or visit the clerks' office—or should we require members to submit changes on a standardised form? It has been suggested that the latter might be preferable, although I do not suggest that.
All that we need to say is that the clerks should be advised of updates to entries in the register. We should leave it at that and not specify how they should be advised—
As long as they are advised.
That is the essential point, not how it is done.
Are members content?
Paragraph 6 notes that the members' interests order requires members' statements to contain such other information as the Presiding Officer considers necessary. To provide greater clarity for members, our paper suggests that the new legislation could provide that the code should set out the further information that should be provided by members. That is exactly the same situation as the one that we have just discussed. Are members content with that?
Paragraphs 7 and 8 consider additional information that members can include in their register entries. The members' interests order states that that can be determined by the Presiding Officer. In May 1999, the Presiding Officer determined that MSPs' entries could contain additional information that adds to the reader's understanding of the interest. We are asked to confirm, first, whether we should continue to allow members to provide additional information and, secondly, whether that should be set out in the code. We have already decided that we want it to be set out in the code, but the question is whether we want to continue the practice in order to encourage more openness among members. Do we want to do that?
Paragraphs 9 and 10 relate to nil returns by members. Are we content to enshrine the current practice as outlined in the paper in the replacement legislation?
If a member has no registrable interests, there should be a statement to that effect.
That is the current situation.
The final section deals with time limits on registration. Members are currently required to register interests within 30 days of acquiring them. We are asked to consider whether there should be any scope for members to seek an extension to that time limit—for example, if they need to get additional information, such as a valuation. If so, in what circumstances should such extensions be granted, who should authorise them and for how long? Should a holding entry be recorded in the register?
That strikes me as unnecessarily complex. How often have such circumstances arisen in practice?
There have been several instances where members have had to come back with further information.
The use of a limit specified in days—30, then 10—seems very inflexible. That could be unreasonable in some situations. Could we say a "reasonable" time?
I do not see any reason why the term "reasonable" could not be used. Would that be instead of both time limits?
Thirty days is fine, if that is normal practice. We would use "reasonable" to apply to the extension.
Perhaps we could have a simple statement saying that an interim statement of interests should be registered within 30 days. We could leave it at that. Extensions would make the issue complicated. I am sure that no one will be unreasonable. If we do not specify 30 days, folk might not make a statement within that time. We should include the 30-day limit; if there are problems beyond that, I am sure that the clerks can sort them out.
Would there be any legal problems with not allowing for extensions?
Failing to register interests is a criminal offence and therefore investigations other than those of the Standards Committee would be carried out.
Six weeks might be a better limit than 30 days. That would give a little more leeway.
I think that we should stick with 30 days but consider the issue of reasonableness. The clerks could deal with that. I do not see that such a case would be referred to the Standards Committee. The order should include something to the effect that an interest must be declared within 30 days, but that in exceptional circumstances, in consultation with the clerks, the period can be extended to six weeks, for example.
There could be delays. For example, I have been invited to a dinner. That is worth less than £250 but I have registered it, although I do not have to—I know that several members follow that practice. Sometimes when a member asks an organisation to confirm the exact cost of something, the organisation can take some time to respond.
May I clarify your suggestion, Paul? Are you saying that, whatever happens at 30 days, there must be an interim entry in the register?
Yes. I do not see why there should be a difficulty with an interim entry that says, "I am seeking further information from an organisation and"—
The interim entry would state that such information needed to be confirmed.
Yes.
There are two similar but different sets of interests. The first set is made up of those interests that must be registered within 30 days after an election. Quite simply, that initial registration must be made, because it will include a declaration of the support that a member received for the election, such as from whom they got money. Paul Martin is talking about what happens when a member acquires an interest during the four years after the election. For example, sometimes it is difficult for a member who attended a dinner to get information about the event from the relevant organisation. The two sets of interests are separate. The initial registration must be made within 30 days of taking the oath—there should be no leeway on that—but the second set of interests is different.
I am not sure that I agree with Tricia Marwick, purely because, for me, the 30 days after the election were full of things happening, not to mention the fact that I had just had a baby. The procedure might be okay for members who have been elected before, but I ask the committee to imagine what it would be like for a brand-new member who has been elected to Parliament for the first time and is not familiar with the rules. They might find out on the 29th day that they had to register their interests within 30 days. I can envisage such situations arising in practice.
For members' information, Sam Jones has confirmed that the clerks are preparing an induction pack for new members in order to draw their attention to the register of interests.
That will be helpful, but I remember that the induction pack that I received was very long and I did not have the audacity to read it before the election—I do not know whether anyone else did.
Ken Macintosh makes a fair point. New members are inundated with bits of paper. I remember that I received a pin number for my pass on the first day. For the life of me, I cannot remember what happened to that pin number and, in any event, it never became important. There is an issue about the weight of information that is given to new members—we simply cannot take it all in.
The same applies to local government. When I entered local government some years ago, I was required to fill out a register-of-interests form immediately.
Are we saying that the deadline should be 30 days?
There should be a test of reasonableness. The register of interests is not like the oath. If someone does not take the oath, they cannot participate in parliamentary proceedings. However, there is no condition in the code of conduct that says that someone cannot participate until they have filled in their register of interests.
I can think of several hypothetical examples in which someone would not have the information. I am not trying to downplay the importance of the matter. I am just saying that we are elected and we have to declare our interests. Perhaps the way around the issue is to require an interim declaration to be followed by full information as soon as possible, which might not be within 30 days if a member has shareholdings, for example. I cannot think of a hard example at the moment, but I can think of difficulties that members might have in pinning down certain information, such as lapsed interests and future interests. We are now taking into account the possibility that someone might require to undertake further investigation before declaring the full value of their interests.
Perhaps we should not be using the word "interim". Perhaps we should clearly say that the member's interests should be declared and registered within 30 days, to the best of that individual's capacity. Any confirmatory statement should be made as soon as possible thereafter.
That would meet the point.
If I were to play devil's advocate, I would say that that might be open to question. If a member must declare their interests to the best of their ability only, the implication might be that there could be something that is not declared. An interim declaration would make it clear that a member is awaiting further information.
We are therefore going with 30 days.
If we stand for election, we have to file our election expenses with the returning officer within 30 days. If a person does not follow that rule, the returning officer will not be well chuffed. It seems reasonable that a member should declare their interests within 30 days of being elected to the Parliament.
Okay. I get the message. Thirty days it is.
I am unsure whether we are stating that blindly; we could be creating problems that we are not aware of. That is only a note of caution. I am pretty sure that almost everyone will have no difficulty.
The current order says 30 days, so we will not be changing it.
Has anyone been found out previously?
They have not been caught.
As has been said, we are talking about a criminal offence, so it is a serious matter.
I want to raise an obvious point. Donald Dewar had shares in privatised companies. Should such shares have been declared? The issue could be the subject of a future debate for the committee. If the point had been put to Donald Dewar, I suspect that he would have registered that interest late, but he might have been in breach of the rules. It is an interesting point. He was 100 per cent honourable, but there should be some provision in the rules to make allowance for people who are acting honourably but are not aware that they need to do something. All Tory ministers were under strict orders that under no circumstances should they buy privatised shares. It is an interesting point.
The committee is divided on the matter of the time limit, which I do not believe is a life-and-death issue. As convener, I err on the side of the status quo, which is to continue with the 30-day limit. We will leave it at that if members are content.
We will take a brief look at the draft report. We are all familiar with the material, which we have covered in its entirety several times. Members now have the opportunity to say whether the report contains anything that they feel has not been written or drafted properly. If members want to take the report away and read it through, I am content to receive e-mails with any minor points.
I would appreciate the opportunity of having a good look at the draft report. Could we put a time limit on getting responses to Sam Jones, perhaps by Monday? We are talking about minor points, not about points of debate or anything that we need to come back to.
Do members want me to chase them up or shall I assume that they will get back to me?
If you do not hear from us, we have nothing to say.
In that case, we will publish the report as soon as possible, with the intention of having a debate in the Parliament. Thank you.
Meeting closed.
Previous
Annual Report