Interests of Members of the Scottish Parliament Bill: Stage 1
The next item of business is a debate on motion S2M-3633, in the name of Brian Adam, on the general principles of the Interests of Members of the Scottish Parliament Bill.
In February, the Parliament debated the Standards Committee's first report of 2005, entitled "Replacing the Members' Interests Order". The report set out the proposal that the committee should introduce a committee bill to replace the subordinate legislation that currently governs the registration and declaration of members' interests—that is, the Scotland Act 1998 (Transitory and Transitional Provisions) (Members' Interests) Order. During the debate and in the report, the committee set out the policy provisions that were to be contained in the bill.
The Interests of Members of the Scottish Parliament Bill was introduced on 12 September. Members have had three months to study the detailed provisions that give effect to the policy proposals. The bill is entirely consistent with the proposal that was agreed by Parliament in February. It contains no provisions that were not set out in the committee's report. Members will be delighted to hear that I do not intend to take them through all the sections of the bill. Instead, I will touch on certain points, leaving members to comment on the provisions that have engaged them.
Before I get ahead of myself, it may be worth restating briefly why we are debating the general principles of a bill when we already have a piece of legislation that governs registration and declaration. The Scotland Act 1998 states:
"Provision shall be made for a register of interests of members of the Parliament".
"Provision" is defined as
"provision made by or under an Act of the Scottish Parliament".
We are currently working under the members' interests order that was made at Westminster in 1999. Its full title tells us that it is a "Transitory and Transitional" piece of legislation. The final article of the order states that the order
"shall cease to have effect on the day appointed by or under an Act of the Scottish Parliament."
Clearly, we have an obligation to introduce legislation in Scotland to govern the interests of members of the Scottish Parliament.
However, the Scotland Act 1998 places some constraints on what we can include in our legislation, some of which did not apply to the existing members' interests order. The committee has had to work within the parameters that are set out in the 1998 act in order to produce the bill.
The 1998 act requires that we make provision for the registration of financial interests. During sessions 1 and 2, members have been required to register those interests and to make appropriate declarations. The act also requires us to make provision for preventing or restricting a member from participating in proceedings of the Parliament when he or she has an interest that relates to a matter under consideration. That does not mean that we would or should prevent a member from raising an issue in which they have a registrable interest or participating in any proceedings of the Parliament. It means that if a member fails to make a registration, the Parliament may prevent or restrict them from taking part in certain proceedings.
The 1998 act also states that we must make provision for excluding members from the Parliament for breaches of the rules on registration and declaration of interests. That is the way in which the Parliament can apply a sanction against a member who has broken the rules. All those points are provided for in the bill that we are debating today.
Section 39(4) of the Scotland Act 1998 also forbids
"advocating or initiating any cause or matter on behalf of any person, by any means specified in the provision, in consideration of any payment or benefit in kind of a description so specified".
The bill sets out clearly what is included in "by any means" and
"payment or benefit in kind"
The members' interests order referred to the broader term "remuneration", which could be construed as capturing more than the Scotland Act 1998 intended.
The paid advocacy provisions in the bill now make things clearer. They spell out the connection between the receipt of a payment or benefit by a member and the undertaking of action in proceedings of the Parliament. Some forms of benefit are excluded deliberately from the provisions, such as assistance in the preparation of a member's bill, and we think that that is correct.
Section 39(6) of the 1998 act states that any member who
"takes part in any proceedings of the Parliament without having complied with"
the rules on registration is guilty of a criminal offence and it sets out the legal sanction for the offence. That is required by the 1998 act. The committee considered whether it could revise the requirement in any way, but it is not within our gift so to do because we cannot amend the Scotland Act 1998 and must live under its provisions.
It is not the intention of the Parliament or the committee to make criminals out of members for something relatively minor such as missing a registration deadline by a day. However, the Parliament cannot introduce a defence to such offences. The bill attempts to get round the problem to some extent and to minimise, if not remove, the chances of a member breaching the provisions unknowingly and committing a criminal offence by use of the prejudice test—I will talk more about that in a moment. However, to recap, the Scotland Act 1998 is the starting point and the requirements of section 39 must be reflected in the provisions of any bill on members' interests that the Parliament produces.
A general point about the members' interests regime is that if a member has an interest in a particular field, the legislation is not designed to prevent the member from talking about that area or raising issues about it in Parliament. The purpose of the legislation is to ensure that observers are informed that a member has an interest or knowledge that might influence his or her thoughts or actions. It does not prevent the member from taking part, but it allows observers to make up their own minds about the content of the member's speech or the action taken by the member. It is for observers to decide for themselves, with the knowledge of the member's background, whether the words or action have merit.
I turn to new provisions in the bill and, as I said I would, I come back to the prejudice test. It is perhaps disingenuous to describe the test as new; it might be more correct to say that to include it in the legislation is new. I refer members to article 5(1) of the members' interests order. The prejudice test is the same test that members use currently to decide whether an interest is declarable and whether they should make an oral declaration before participating in proceedings of the Parliament.
The committee believes that the prejudice test is extremely useful. I know that one of the biggest criticisms of the members' interests order is that its wording requires members to register Christmas and birthday gifts from their partners or spouses if the gift happens to be generous and therefore over the threshold for registration. The committee could have instructed that the new bill contain a list of exempt family relationships and any interests pertaining to those persons would have been excluded from registration. However, we believe that it would be difficult to set out an exhaustive list to reflect modern family relationships and anomalies would inevitably result from such a process. The committee believes that the prejudice test gets round that and is fairer to everyone.
Although we have retained a registration threshold for gifts of £250, I would ask myself whether a gift that is valued at, say, £300—or of any value—from my wife at Christmas is likely to influence my actions when I am taking part in the proceedings of the Parliament or whether her gift might prejudice my ability to participate in a disinterested manner. Given that the answer to the former question is obviously no, intra-family gifts will be excluded from registration.
If the prejudice test is not exactly a new addition to the members' interests regime, the bill's requirement for the registration of non-financial interests, as specified in schedule 2, is new. Members might recall from previous debates the reasons for the inclusion of that requirement, but it might be useful to restate them for the record.
There are three main reasons. The first is that the committee felt that non-financial interests potentially wield as much influence as financial interests do. Secondly, the registration of non-financial interests can provide information about a member's expertise or experience. Thirdly, the committee was mindful of the requirement that was imposed on councillors and others by the Ethical Standards in Public Life etc (Scotland) Act 2000 with regard to non-financial interests and felt, quite rightly, that there should be parity between the two pieces of legislation. Non-financial interests include unremunerated directorships and membership of voluntary and charitable organisations or sporting organisations and so on. Again, members will need to apply the prejudice test to determine whether an interest is registrable.
I should point out that an established failure to register a non-financial interest will not be a criminal matter. Instead, the Standards and Public Appointments Committee—and, perhaps, the Parliament—will take a view on it. The committee also felt that having a prescriptive list in the bill would make it unwieldy and would lead to the perennial problem of having to introduce further legislation to revise the list if an item had been inadvertently left off it. The intention is that, when the bill has been passed at stage 3, the committee will work on an indicative list that will be incorporated into the code of conduct. We hope to engage with all members and the Scottish standards commissioner in drawing up any such guidance.
Many, if not most, members already register non-financial interests in the miscellaneous category. The committee does not intend to start witch-hunts against members, which is why it agreed that non-financial interests should not be treated in the same way as financial interests in that any breach of the act in that regard would not be a criminal matter but would be a matter for the Parliament.
The bill also gives members some flexibility by not specifying the full details of registration. Indeed, after it has been passed, it will allow for Parliament to make certain determinations on, for example, administrative arrangements for the form of the register and the written statements that are to be submitted to it. The advantage of such an approach is that the arrangements can be redetermined to suit changing circumstances. Any change can be made not by amending primary legislation but by a motion agreed by Parliament.
Under that provision, Parliament, if it wished, could determine how the value of an interest was to be expressed. For example, it could choose to determine that all gross income from heritable property of more than £1 should trigger registration; it could set the registration threshold at income of more than £5,000; or it could choose not to require specific sums to be mentioned but to specify bands of income instead.
The committee welcomes this afternoon's debate and looks for comments from members on the bill's contents. The bill is not set in stone. If the Parliament agrees to its general principles, we will have to work through a further two amending stages. Indeed, as a result of members' comments, the committee might well reconsider certain aspects of the bill and lodge its own amendments. For instance, we are aware of a few technical and tidying-up amendments that have to be lodged; in particular, the text might have to be revised because of the recent development of civil partnerships.
Members' interests legislation should be about openness and transparency. However, we must take a measured approach to ensure that we do not tip unduly into invading the privacy of a member or of his or her family. In that way, the legislation will safeguard the electorate's interests from corruption and abuse.
Overall, the committee has tried to hold to the original consultative steering group principles of openness and accountability, and we hope that the bill reflects them.
I move,
That the Parliament agrees to the general principles of the Interests of Members of the Scottish Parliament Bill.
I am very pleased by Bill Butler's comments and, indeed, take his refusal to refer to my amendment as tacit consent to it. I hope that, given the amendment's reference to the Standards Committee's 2002 report "Replacing the Members' Interests Order: Interim Proposals for Consultation", the Parliament will accept it.
I thank Mr Sheridan for his kind words, but he should not regard my not commenting on his amendment as tacit acceptance of it. It is up to members to decide, after hearing Mr Sheridan's words in support of his amendment, whether they agree to it or not. If Parliament does not agree to his amendment today, I am sure that the committee will reflect on Mr Sheridan's views afterwards.
We have a standard of debating procedure whereby those who are moving motions usually comment on the amendments to their motions. Mr Butler never commented on my amendment, so I can only take it that he accepts the sensible amendment that I have lodged, which is 100 per cent in line with the general principle established in Standards Committee's 2002 report: that we must recognise the need for an
"appropriate balance between respect for individual privacy and the need to ensure transparency and high standards of probity in the Parliament."
I would argue that it is essential for high standards of probity in the Parliament that an interest be declared by members who live some 90 minutes away but who use an allowance available to them as MSPs to purchase a property in Edinburgh at public expense from which they are then able to profit privately. That should have to be publicly declared. Most people in Scotland—
Will Tommy Sheridan give way?
I will give way in a moment.
Most people in Scotland will be unaware that, since 1999, 48 MSPs have claimed an Edinburgh accommodation allowance to purchase a private property. They will be unaware—
Will Mr Sheridan give way?
Will Mr Sheridan give way?
I will give way in a moment.
People will be unaware that that accommodation allowance, according to the Presiding Officer, is designed to ensure that members, in discharging the important elected office that they hold, are not left out of pocket for providing an effective service to their constituents and to the Parliament. I could not agree more. However, what people will not accept is that those individual members should be able to pocket tens of thousands of pounds by selling on a property that the public have bought for them via the Edinburgh accommodation allowance. That is unacceptable.
I thank Tommy Sheridan for accepting an intervention. It would be useful at this stage if he were to make clear that the issue at the core of his argument is that we should be accountable for how public money is spent on each and every occasion when it is provided.
We should be absolutely accountable at every moment for how public money is spent. My point is that most of the public do not even know that MSPs are able to purchase private properties—48 have done so—from which they can then personally profit. I do not think that anyone in the chamber—
Will Mr Sheridan give way?
If Mike Rumbles will wait until I have finished my sentence, I will let him intervene.
I do not think that anyone in the chamber would disagree with a member choosing to purchase a property, rather than to rent or to pay hotel bills, if any personal profit was then paid back to the Parliament—in other words, if the public benefited from that process. However, what is happening is that overpaid MSPs are personally benefiting from the scheme.
I thank Tommy Sheridan for eventually giving way. Does he not agree that he is misleading people and misrepresenting the facts? Does he not recognise that no money—none whatsoever—is provided by Parliament for the purchase of any property in Edinburgh? MSPs have to find that money themselves. Does he also acknowledge that, on 8 June 1999, by not opposing the motion that was carried that day that allowed that allowance to be made available, he accepted it? He has suddenly changed his tune, and I think that it is for political purposes.
I will allow you some extra time, Mr Sheridan.
Thank you, Presiding Officer. There are a number of questions to answer. First, I do not think that I am alone among MSPs in admitting that I was unaware of the contents of an allowance scheme that would enable well-paid politicians to purchase a property at public expense and then privately pocket the profit. I was unaware of that, but as soon as I became aware of it, at the end of 2001, I complained to the Presiding Officer, Mr Steel, and I have been pursuing the matter ever since over the past four years.
Mr Rumbles made the point—it is marvellous that he did so as it enables us to get to the smoke and mirrors—that the public do not provide the money for the purchase of a house. I do not know how Mr Rumbles knows that. I asked the Parliament to tell me for how many of the 48 mortgages the Parliament paid for 100 per cent of the mortgage and for how many the Parliament paid only the interest, with a capital repayment sum paid by the member, but the Parliament told me that it will not give me that information. If Mr Rumbles is telling me that, of the 48 mortgages that the public have paid so that members can have private homes, some have been only for the interest only and some have been for 100 per cent of the cost, I wish that he would provide me with the details. The truth—
Sit down, sir.
The truth is that it is uncomfortable for Mr Rumbles and for many other members to accept that this is an inappropriate use of public funds. It is inappropriate for public funds to be used to enable MSPs to buy a second hoose in Edinburgh, sell it on and pocket the difference. The practice is wrong.
The member is in his last minute.
This is not a question of left or right; this is a question of right and wrong. It is wrong for public money to be poured into the pockets of MSPs who are already well paid. We must change that situation. One of the ways of changing it is to force at least the declaration of the payments. We should get the matter out into the open. In the Interests of Members of the Scottish Parliament Bill, we should force the declaration that each individual member who has managed to benefit personally via the Edinburgh accommodation allowance has to register that benefit. That would enable the public to see how the Edinburgh accommodation allowance is being inappropriately used. I move the amendment in the interests of transparency and probity. I hope that members will support it.
I move amendment S2M-3633.1, to insert at end:
"but, in so doing, considers that it should cover homes which have been purchased under the Parliament's accommodation allowance and that amendments should be brought forward at Stage 2 to achieve this purpose."
Welcome to the voice of reason. All I will say in response to Mr Sheridan and his amendment is that if he wants to ask me about my Edinburgh flat, I will tell him about it. It is that easy—he does not need to rant about it. I am sure that that goes for most of my colleagues.
We are here to debate the Interests of Members of the Scottish Parliament Bill. Progress on the bill was well under way before I became a member of the committee. I am impressed by the work that has been done over nearly five years to try to get the bill right. We must get it right. As Bill Butler said, we are obliged to bring forward a bill to replace the members' interests order.
The bill relates to the principles on which the Parliament was founded; they are basic principles on which we can all agree. We might disagree about who has the most wisdom—personally, I think that it is Scottish National Party members. There is, in general, willingness in the Parliament to examine the issues properly and proceed on the basis of evidence that is presented to us.
We seek justice in many forms—we may not agree on the best path to deliver it, but at least we already have a firm parliamentary tradition that insists that injustices cannot be swept under the carpet. There is a common desire for the delivery of justice.
As far as compassion is concerned, each member can look to themselves on that one.
The principle of integrity is the one that links into what we are doing today at stage 1 of the bill. We must ensure that we are personally and collectively as a Parliament accountable to the electorate and the population. However, the process must be proportionate and workable. That is why I give credit to those who have worked hard on the bill and to those who have responded to requests by committee members to put forward their points of view.
The issues can be difficult, although some of them are obvious. Bill Butler mentioned paid advocacy. It is obvious that members should not take payment for putting forward points of view in the Parliament. The point about overseas travel is also fairly obvious. Other things are not so obvious, however. When I joined the committee, the prejudice test was being discussed. The issue at the time was one of members having to consider their interests objectively in the light of a perception of gain. Although such perceptions can be actual or guided by others, all of us recognise their importance.
Nowadays, perceptions are quite often seen as fact. An awful lot of members feel that that is the case and recognise the difficulties in having to deal with them. We have to try very hard to do everything that we can to ensure that perception is not seen as all and that the facts are made available.
Responsibility for the issue does not lie only with the members of the Standards and Public Appointments Committee; it is one for all MSPs. It is a good thing that an ad hoc committee is being established for stage 2. It means that members other than those on the Standards and Public Appointments Committee will look at the matter. It is also good that the ad hoc committee will take forward the views that are expressed in today's debate, look at the issues in a brand new light and, following its stage 2 deliberations, bring the matter back to the chamber.
Members of the ad hoc committee should be given a certain leeway; they should be allowed to be imaginative and not feel that they have to say, "Oh, we have already agreed the principles—some of them are set in stone." As Bill Butler said, some principles are set in stone under the Scotland Act 1998—to do with criminal offences, for example—but we can look again at other things. The committee will bring the bill back to the chamber for all of us to consider again.
Too often in the Parliament, we just let others get on with things—I am as guilty of that as the next person—and then, when something is put down in black and white, we all go, "Oh, gosh! I didn't realise that that was going to happen," and panic ensues. I urge all members to speak to the members of the ad hoc committee about any of their concerns. In that way, the ad hoc committee will get a broad picture of the views of MSPs on the matter.
In the debate in February, to which other members have referred, I said:
"Frankly, I believe that anyone who sees fit to vote against the motion should not come under the auspices of the order because they should not be a member of the Parliament."—[Official Report, 24 February 2005; c 14799.]
I stick to what I said then. As other members have pointed out, the Standards Committee was given its remit on the matter under the Scotland Act 1998 and has had no choice but to continue to take it forward.
This morning, I reread the Official Report of the February debate. I was struck by many of the wise words that were said, not least these—which I would think are wise, because they are my own. I said:
"I believe that a requirement to declare every single tiny facet of our existence would constitute a gross intrusion of members' privacy, to the extent that it could even put people off any ambition to be a member of the Parliament. That would be a retrograde step. There is a limit to the amount of intrusion that any register should involve and we must be careful that we do not step over that limit."—[Official Report, 24 February 2005; c 14800.]
With the benefit of hindsight, which we now have, I say without hesitation that we have stepped over that limit. I say that because I have met somebody who has drawn back from his original intention to become a member of the Scottish Parliament. That is deeply regrettable, not because of the individual involved, who may or may not have been a terrific member, but because we want everyone to aspire to becoming a member of the Parliament. If people are put off that prospect by what we have effectively imposed on them, we as an institution will be considerably the poorer.
We are not an exclusive institution but, if we are not careful, we may find that we have helped to build one. It is important to remember that, until now, input to the bill has been made only by committee members. As Linda Fabiani said, it is healthy that the matter is now to be handed on to a wider selection of members.
The committee has done a pretty good job of getting the bill to this stage, given the remit that the Scotland Act 1998 imposed on us. We have all laid down little markers for the changes that we would like to see and I believe that we have done the job that we should have done in coming to a consensual agreement on what to lay before the Parliament.
We have been driven by circumstances that are rapidly changing. It is right that we should reflect on one or two of the proposals of most concern as we hand the bill over. I am particularly concerned about the onus on members to register interests—be they shares or heritable property—that are owned by spouses or cohabitees, because that raises serious problems. Donald Gorrie said in the debate in February:
"It is quite wrong to ask a partner or spouse to declare such a shareholding. Progress in recent years in the system of taxation has seen husbands and wives taxed separately—after all, they are separate people."—[Official Report, 24 February 2005; c 14803.]
Indeed they are. In this day and age, increasingly they will not be too keen to hand over information to their partner or spouse.
Will the member give way?
I notice that Stewart Stevenson intervened on Donald Gorrie at exactly this stage in the debate in February.
Does Alex Fergusson think that the financial services legislation that precisely provides for the interlocking interests of people who are employed in the financial services industry and who are husband and wife—the legislation has applied for 20 years—is equally invalid?
I refer Stewart Stevenson to the Official Report, column 14803, and the answer that Donald Gorrie gave to him when he made that point in February. It is a perfectly valid point, but Donald Gorrie answered it much better than I could.
This business of the heritable property of a spouse is a potential minefield. Let me give a brief example. If my wife was to inherit a piece of heritable property and I said, "Well, that's very nice, dear, but I'm just off to work this morning and I'm going to register it in the register of members' interests," she might reasonably say to me, "Over my dead body. I am not having every Tom, Dick and Harry and member of the press knowing what I have inherited." Why should they, frankly, and why should I be put in the position of having to register that interest when my wife has asked me not to? I would stand accused of being extremely disloyal either to my wife or to the Parliament. I do not want to have to make that choice, because it is unfair. [Interruption.] Sorry, I missed that. If somebody said that the decision would be difficult, they could well be right, but I do not want to go down that line.
The decision is very easy.
Yes, one would go to the Parliament.
I am also concerned about the use of the set figure of 50 per cent of MSPs' salaries as a measure to register various items. Surely it should not be the value as a percentage of our salary that is registrable, but the degree of influence that the interest has on us. If I had £30,000-worth of shares in ScottishPower—which I do not—I would be totally unable to influence anything that the company did. However, if I had a £30,000 shareholding in a small company, of which I might or might not be a director—if I was, I would have to register that fact—I might be able to have a lot more influence on the company, certainly more than I would have with the same amount of money invested in ScottishPower.
I am struck by how things have moved on. I am concerned that every time we in this Parliament try to make ourselves more accountable and open—which is absolutely laudable and as it should be—we succeed in making it easier for those who seek to do us down to do exactly that and we end up being held in even less esteem. The loser in that equation is this institution and I do not want that to happen.
The changes have largely been fuelled by the Freedom of Information (Scotland) Act 2002. I challenge those who will consider the bill not to shirk from radical change, if they deem that necessary, and to "think the unthinkable". I believe that those words were said by the Prime Minister to Frank Field. I hope that the ad hoc committee lasts longer in its role than he did in his.
The bill is welcome. I congratulate the convener and members of the Standards and Public Appointments Committee on bringing it forward.
First, I will deal with the amendment in Tommy Sheridan's name. I declare an interest as one of the members who receives the living in Edinburgh allowance, which, I take the opportunity to mention, is less than half what is available to our MP colleagues when they have to live away from home to represent their constituents. I resent the attempt to hijack this important debate about the registration of members' interests with such an unworthy and inappropriate amendment. It is clear that, under the bill, any accommodation that is used for residential purposes will simply not be registrable. Tommy Sheridan knows full well that allowances are an issue for the Scottish Parliamentary Corporate Body, not for the register of members' interests or the Standards and Public Appointments Committee. His comments are a bit rich, as he agreed to the allowances system when it was set up on 8 June 1999. He well knows that the interest on the money that an MSP has to raise is the only part that is paid and that, in many cases, it is cheaper for the public purse to pay the allowance than it is to pay MSPs to stay in hotels, but that is by the by.
I ask Mike Rumbles to take the opportunity to answer the same question that I will pose later to Linda Fabiani. As the accommodation allowance is meant only to cover expenses, will he give a commitment to pay back to the Parliament any personal profit?
I make it absolutely clear to the Parliament that not one penny piece of public money has been used to purchase any flat that I have stayed in. That is the fact and Mr Sheridan should stop misrepresenting it.
I would like to focus on the issue that we are supposed to be debating. There is no doubt that the main focus of change in the bill is the proposed extension of registrable interests to include non-financial interests as well as purely financial ones. That welcome step accepts that many people view non-financial interests as having as much influence over MSPs as purely financial interests have; indeed, in many cases, they are seen as having much more influence. However, I have serious reservations about the committee's solution to the registration of non-financial interests. Under the proposed system, all 129 MSPs will be able to decide for themselves whether an interest can reasonably be considered to prejudice their participation in the Parliament's proceedings.
At first glance, it is surely a reasonable presumption that we are all able and sound enough to do that but, unfortunately, the outcome will be 129 different ways of judging whether an interest should be registered. There will then be a flood of complaints to the Scottish parliamentary standards commissioner, which will result in the commissioner judging whether interests should have been registered. The judgment on what should or should not be registered ought not to be left to the standards commissioner to make on the basis of what I call case law. I am sure that neither the standards commissioner nor MSPs want that to happen, but it will happen unless we alter the proposal.
We have only one reasonable solution, to which Bill Butler alluded. We must ensure that MSPs have clear and unambiguous guidance on what should and should not be registered. We need to amend the bill to give authority to a list of non-financial interests in the guidance notes. Such a procedure would allow additions and deletions to be made, perhaps by the Standards and Public Appointments Committee, without the need to amend the primary legislation.
Some of the objections to such a way of proceeding focus on the problem of having too unwieldy a list, but I envisage a relatively simple and straightforward list. For example, I suggest that we include interests such as being a director, trustee or patron of an organisation or company, being a member of a community or other type of trust and being a member of an organisation that has, perhaps, a membership fee of more than a specific sum. Those practical suggestions could be used in drawing up a definitive list that is designed to ensure that major non-financial interests are declared, while protecting MSPs from unwittingly falling foul of the legislation and all the unwelcome and undeserved negative publicity that that would attract.
Bill Butler said that the committee will work on guidance for members on what should or should not be declared, but at present there is no guidance. We cannot leave the matter so open. A short but definitive list would meet the public's expectations on members' openness and transparency about our non-financial interests and would avoid the obvious pitfalls that will emerge for MSPs if the bill proceeds without amendment.
The bill is good, although it needs to be amended in part at stage 2. I recommend that members support the motion on the bill's general principles, but I ask them to have nothing to do with Tommy Sheridan's rather disreputable amendment.
I have just finished reading a book about corruption in Silvio Berlusconi's Italy, which is a pretty scary illustration of what can happen when there are no checks and balances and absolutely no transparency to protect against the abuse of power and trust by elected politicians. With that in mind, I whole-heartedly support the principles of the bill. Standards of probity in public life in Britain are high and we want to keep them that way. Donald Dewar was right to insist on even higher standards in the new Parliament in Scotland.
Having said that, I have a couple of questions about aspects of the bill that may need further thought. I wish to flag up a more fundamental point within the privacy of these four walls, in the vain hope that somebody in the media might hear about it somewhere down the line. Some colleagues may recall a statement that I made on 1 November 2000, after Henry McLeish had dispensed with my services as Deputy Minister for Rural Affairs. My problem was that I had fallen foul of a change to the ministerial code that referred to any "apparent" conflict of interests. As Linda Fabiani said, we are getting into the same territory with the bill.
Despite the fact that I could demonstrate that I had not had any remuneration from my dormant partnership in a family farming business, I was barred from taking any responsibility for agriculture policy, on the ground that somebody might suggest that there was a perceived conflict of interests. There is the same catch in section 3(2) of the bill, which says:
"An interest meets the prejudice test if … that interest is … considered to … give the appearance of prejudicing … the ability of the member to participate in a disinterested manner in any proceedings of the Parliament."
The application of that perception test prevented me from bringing the benefits of some understanding of practical agriculture to the Rural Affairs Department. I fear that such a rule could prevent anybody with any experience in any industry or profession from bringing that experience to our deliberations in the Parliament. The logical outcome of such a rule—
Mr Butler pointed out that, if a member has declared such an interest, it does not prevent them from taking part in any proceedings of the Parliament. There is a big distinction between holding ministerial office, which is not covered by the bill, and taking part in parliamentary proceedings. I hope that that reassures Mr Home Robertson on that point.
I hope so, too. I want to test that, though, because it raises the question of what the rule is for. If it does not prevent a member from taking part in proceedings, what is the point in having it? The logical outcome of such a rule is that people who have knowledge about specialist subjects based on direct experience might not be allowed to speak about it in the Parliament. I can see the attraction of that principle to those civil servants who rely on the ignorance of elected members, but is it really in the best interests of effective democracy? I do not think so.
Informed debate is good for the Parliament and good for democracy. I hope that we can attract more people with experience in the professions and in business to stand for election to the Parliament. My concern, which was expressed by Alex Fergusson, is that the rule could deter good potential candidates. The words
"to … give the appearance of prejudicing"
in the bill would give the force of law to innuendo about conflicting interests. It is one thing to have innuendo in gossip columns; it is another thing altogether to cite the risk of such innuendo as a ground to prevent an elected member from taking part in a debate. I suggest that a solution would be to give the standards commissioner and, ultimately, the Standards and Public Appointments Committee responsibility to adjudicate on real conflicts of interest and to take perceived or imaginary conflicts of interest out of the frame.
My second point, which Alex Fergusson also touched on, may seem a minor one, although, like him, I think that it needs to be addressed. The bill contains a series of references to the interests of members' spouses. I cannot believe that I am the only member who has never seen their spouse's bank statement. I have absolutely no idea whether my wife has any investments or shares—it is none of my damned business, frankly. With the greatest respect, I do not think that the Parliament has the right to try to compel me to ask her to disclose such information. Let us be careful about that aspect of the bill.
Finally, like yesterday's disclosure of the details of expense claims, the bill is a genuine demonstration of the determination of the Parliament to be honest and open with our citizens. Is it too much to ask the Scottish print and broadcast media to acknowledge that honesty and openness and perhaps even to give Scotland's new democracy some credit for what it is doing? Or will the media just carry on looking for the next political scalp? It is statistically inevitable that any sample of 129 Scots will include some who will make mistakes, but let the journalist who is without blame cast the first stone in such cases.
Let us reflect on the record of scalp taking in the short history of the Parliament. I will not suggest that Henry McLeish's premiership was characterised by great genius or even great eloquence, but did he deserve to have his reputation destroyed by innuendo about his expense claims? The answer is no. He ran a constituency office, as most MPs do, and there were technical errors in his claims for it. That was enough to put his head in the pillory. This year, we have had a similar hue and cry over David McLetchie. I can think of many good political reasons for sacking Tory MSPs, but how can it make sense to lose a competent party leader on account of taxi fares? There is nothing luxurious about trips to Queen Street in black taxis.
I am just suggesting that it is easy to destroy the reputation of people in public life on the basis of flimsy evidence. Many Scots fought long and hard to achieve our new democracy and we are rightly setting high standards of honesty, openness and probity in our new Parliament. We cannot afford to go on losing good public servants every time there is a feeding frenzy in the media lobby. That is an important point. I support the bill, but I hope that people outside the Parliament will consider my last point, too.
I should point out to members that the debate is oversubscribed and that notes are being sent out. I would appreciate it if members would stick to the advertised time.
I speak in this debate in a personal rather than a party capacity. There are a few points in particular that I welcome. I welcome the introduction of the prejudice test, including the appearance of prejudice, which, ultimately, is as important as the fact of prejudice.
It is worth reminding ourselves that the bill, if passed, will apply after the next election. Therefore, new members will come to the Parliament with an understanding of the rules that cover their being here. I am slightly surprised by the faint suggestion that spouses do not make a joint choice when one of them decides to stand for the Parliament. In the interests of marital, cohabitive and civil partnership harmony, I encourage spouses to make joint decisions on that matter. That will help.
I worked for 30 years in the financial services industry and my wife worked as a stockbroker for another company in the industry. My brother, who, like me, is a computery person, worked for a third financial services company. For 20 years, we were required under legislation to declare to each other our shareholdings and when we bought and sold them. Thousands of people across the country—I mean Scotland when I say that—have to operate under those rules. It is not draconian for MSPs to have to consider something similar for ourselves.
Surely those declarations are for one specific purpose—to prevent insider trading. Can that possibly apply to us?
The issue is about the ability to use information in a way that advantages one party without that information being available to others for scrutiny. That, in a sense, is at the core of what we are talking about today. I recognise that I am probably in a minority on that provision in the bill and I suspect that we will not proceed with it, but I merely make the point.
There is a strange discrepancy in the bill in relation to declarable interests. We have to declare registrable interests, but we do not have to declare interests that we have registered voluntarily. We should look at that. Tommy Sheridan, who has participated in the debate, declares in the register of interests that he writes for the Scottish Daily Mirror and that he receives no funds for that—it has done the Scottish Daily Mirror a lot of good, I notice. That is a voluntary registration. Quite properly, therefore, in his motion referring to the closure of the Scottish Daily Mirror, Tommy Sheridan has not had to indicate that as a registered interest. I think that he should have done so and that the rules should require him to do so. However, he has not had to do so at this stage. That is an example of where there is a slightly unfortunate crossover.
On the market value of shares, I have registered my shareholdings for some time—
Will Stewart Stevenson take an intervention on that point?
I have run out of time.
It will just be a short one.
Well, quickly.
I ask Stewart Stevenson, who mentioned the Scottish Daily Mirror, to join me in condemning Trinity Mirror's decision to close down that newspaper. As a Scottish nationalist, I am sure that he will join me in that.
Tommy Sheridan will see that I have signed one of the motions on the subject.
The market value of shares is the important thing, rather than their nominal value. I welcome the fact that the rule on that has changed. I have registered the market value of the significant shareholdings that I have—it was about 40 per cent of what I needed to declare in terms of nominal value. It is not clear, however, whether the bill relates to members' total shareholdings—I have shareholdings in probably more than a dozen companies—or to each individual shareholding. We need further clarity on that point, but I am sure that we will hear about it when Brian Adam sums up. The bill refers to outside activity. I welcome the recognition that, when we MSPs are speaking or writing outside the Parliament, we should, properly, make reference to our interests.
Given our roles as politicians, I wonder whether the bill should require us to say whether we are in default of the Political Parties, Elections and Referendums Act 2000. I mention that in relation to the fact that Tommy Sheridan resigned as the leader of the Scottish Socialist Party on 11 November last year. If he had left it three hours later, it would have been the 11th hour of the 11th day of the 11th month, but that would have meant peace breaking out—which it obviously has not. The socialists are now five and a half months in default of section 42 of the 2000 act and they will surely be subjected to fines under section 147, as they have yet to submit their accounts for two years ago. The SSP gets Short money—in the party's 2003 accounts, its Short money came to around £25,500. Where is the accounting, the transparency and the declaration of what the socialists have spent that on? I say to Tommy Sheridan that it is rich of him to come here and accuse us of hypocrisy and a lack of transparency when he and his party are incapable of obeying the legislation and rules of this country.
A register of interests is clearly a good thing. Having said that, I find it difficult to know what else to say, particularly in a debate such as this, in which members have said almost all that there is to say. Obviously, there should be openness and transparency, which must apply to the sort of things that we should be registering.
Any reservation that one might feel about the subject can be linked to the comments that John Home Robertson made about the nature of scrutiny and reporting in this country. It would be nice to think that openness and transparency on the part of the Parliament would be met by fairness and balance from the press gallery. However, as the man says, that would be like a third marriage—the triumph of hope over experience.
As far as the detail of the bill is concerned, only a few things strike me as giving rise to even a little difficulty. First, the declaration of a spouse's or cohabitee's interest might not always be entirely straightforward. John Home Robertson touched on that subject and Alex Fergusson spoke about it very helpfully. The days when a spouse—in the past, a husband in particular—knew every detail of his partner's affairs, at least their financial affairs, are past. A partner who is not in public life might not wish all his or her interests to be disclosed. That can give rise to a number of problems.
Stewart Stevenson was obviously trying to provide a little guidance on relationships. The provision to declare a partner's interests might cause an MSP's partner not to tell them things that would otherwise be shared in their marriage. The partner will say, "I'm not telling my partner these things any more, because they will end up in the public domain." That is not exactly ideal. The non-MSP partner might allow the interests to be declared but resent it. Alex Fergusson might have a discussion with his wife in which she says, "Okay, if you have to do it, do it." However, the resentment would be there, which, again, is not ideal.
There will be situations in which the member does not register an interest because he or she does not know that it exists. They might discover it later on and then register it. They would have done nothing wrong, because they did not know about it and therefore could not be blamed. Nevertheless, when such a situation arises, my friends in the press gallery will, no doubt, cast doubt on the openness and good faith of the member. The member would be able to say as often as they liked that they did not know about the interest, but the press will not play it that way. There has to be some provision about spouses and partners, but I am uneasy about how it would work in practice.
Heritable property has to be declared, quite rightly, and its value included. It is to be declared without any reference to the debt that might burden it. It might appear from the register that people own certain assets of a certain value, but the actual value of what they own might be very different from what appears on the register. There is no provision for that, so the register could, at the very least, be misleading.
Oddly enough, there is one provision on which I go the other way. I notice that any donation to election expenses has to be declared if it is 25 per cent or more of the total expenses. I tend to think that, if anything, 25 per cent is too high. Bearing in mind the amount of election expenses, I tend to the view that any substantial donation to such expenses should be declared, even if it is below the 25 per cent threshold. We could consider lowering that threshold, as we would have to get quite a lot of money from one person before we reached it.
I find the prejudice test difficult. I understand the thinking behind it and the so-called objective test, but I am struggling with how it would work in practice. Today, I read again the words
"reasonably considered to prejudice, or to give the appearance of prejudicing".
Reasonably considered by whom? I presume that the member himself or herself has to make that judgment. Is such a judgment to be second-guessed by those looking on? If those looking on are going to second-guess those judgments, will they do so fairly?
I use the example that a member genuinely believes that a gift given to a spouse does not meet the prejudice test as he would view it as a fair-minded person. If that member is a high-profile politician—something that most of us do not need to worry about—those outside are, to put it mildly, not guaranteed to approach the matter fair-mindedly. The burden on the member then becomes not what he or she considers appropriate, but a fear of what others might unfairly pretend to consider inappropriate.
Someone might give a rich member or his partner £1,000. That sum would be pennies to that person and not in any way likely ever to influence them. They would say that there was no possibility of their being influenced by that sum of money and everyone would know that to be true. However, the same gift might be entirely different for another member, because of their personal circumstances. How is the reasonable prejudice test to be worked and by whom? Would it apply to different people in different ways?
The bill is to be welcomed. Perhaps it is as good as it can be and we cannot improve it. Perhaps the difficulties that I am coming up with to pass the time are inherent.
You should pass the time a bit more quickly. You should be finishing now.
Indeed. Further discussion and thought might be useful.
I refer first to Tommy Sheridan's amendment. I am entitled to obtain premises in Edinburgh under the existing rules of the Parliament, but I choose not to for personal reasons. However, I think that having that element built into the regulations for the members of the Parliament is important for people who might consider being a candidate for election to the Parliament or who might be fortunate enough to win an election. They would do themselves and their families no good whatsoever if they did not first check out the Parliament's rules, the salary that they would be given, the conditions on employing people and the ways in which they could afford to stay in Edinburgh and still serve their constituents many miles away.
With the greatest respect, therefore, I say to Tommy Sheridan that his amendment is unfair and attempts to stir up a pot that does not deserve to be stirred. As far as I am concerned, if, at the end of their time in Parliament, a member makes some financial gain from property that they have bought, so be it. Members who left Westminster in 1992—the year when I was elected to Parliament—made financial losses on the properties that they had obtained in their time there. Westminster did not make up those losses; that was just the members' hard luck. There are swings and roundabouts.
In the first session of the Scottish Parliament, there was some talk about the possibility of having to register membership of the freemasons. I became involved in the debate when I said—perhaps slightly controversially—that never at any time will I register freemasonry involvement. I commit myself to exactly the same position today. I am a freemason and I am not ashamed to admit it. I joined the freemasons in 1958 or 1959, at my father's behest, and became a life member. I think that the last time that I was involved in the freemasons was in 1961 or 1962. Since 1992, I have been an elected member more or less continuously—first at Westminster and then here—and, in that time, no one has ever challenged me by saying that I was biased towards freemasons or against people of a different religion or whatever. Whether I am a freemason is totally irrelevant to how I perform my duties. That will be my argument when I am asked why I have not recorded the fact that I am a freemason, even though I am quite willing to admit that I am one. Committing my membership of the freemasons to paper in that way would suggest that I am implying that it is something that might influence the way in which I do my business. It is not and I will not commit it to paper.
I find other issues somewhat disturbing. As Alex Fergusson suggested, there is a question mark over how the value of shares can be determined. Shares can fluctuate. In this modern day and age, I would like to think that people across the land participate in share ownership—perhaps that dates back to my heroine's cause, although if I mention Mrs Thatcher's objective of creating a share-owning community, I will lose the sympathy of the entire chamber. It is important to recognise that the influence that goes along with shares—even if they are at the level of half our salaries—can be fairly minimal, whether in parliamentary debate or elsewhere.
What is important is not the influence that we have on the firm whose shares we hold but the influence that we might have on Government policies that might affect the price of those shares. Clearly, we in the chamber do not have much influence in that regard, but we might do at some stage.
The member makes an important point when he says that this Parliament has little effect on businesses that issue shares. Indeed, a few weeks ago, I spoke in an energy debate and declared that I had shares in ScottishPower. I will continue to do that; perhaps I should have declared such an interest at the beginning of the debate. However, when we speak of these issues, it is reasonable that members acknowledge any previous involvement in shareholding. With respect to ScottishPower, there was no chance that my shares, or the thousands of shares of others, could be used to influence that company through activity in this Parliament.
Finally, I would like to speak about my support for Alex Fergusson's comment on spouses' inheritance, but I am out of time.
I have spoken in a few Standards Committee debates, most of them as the deputy convener. In all of them, I whole-heartedly supported the findings and deliberations of the committee. I want to speak in support of the bill, but in doing so I also want to strike a note of caution. I want to speak from my experience not just as a former deputy convener of the Standards Committee but as someone who has appeared before that committee as the subject of complaint.
It is interesting to note that the first three deputy conveners of the committee, myself included, have appeared before the committee—we have all been hoisted on the standards petard. I hope that my colleague Bill Butler, who is the current deputy convener, was warned to beware the ides of March when he was offered the post.
On a more serious note, my experience as a member of the committee and as the subject of a complaint has led me to question whether the bill will achieve everything that we expect it to achieve. We want to see the highest standards in public life, and we particularly expect those standards in this Parliament. However, many have used the standards system to do down individuals and the Parliament, and many more would do so again. This is not about individual MSPs—we all value our reputations, but, in the memorable words of Robin Day, we recognise that we are "here today, gone tomorrow" politicians. The reputation of the Parliament is more important. I do not recognise our work in the cynical and prejudiced coverage of our affairs. I am not interested in protecting the reputations of individual MSPs; I am interested in defending the reputation of the Parliament, which with every attack on standards is damaged in a corrosive and cumulative manner.
Although the standards system should punish those who abuse their office, it should primarily be part of a robust framework that prevents any such abuse in the first instance. The public is not protected by a system that exaggerates the trivial or translates slip-ups into misdeeds. The end result is lower public confidence and increased disengagement with the political process.
A number of points in the bill concern me. The principle of transparency rightly underpins many of the bill's proposals. However, some of the proposals are based not so much on transparency as on the suspicion that there is potential political corruption that must be penalised and eradicated. For example, MSPs' wives, husbands or cohabitees are required to declare any property or shares. As much as we all wish to have a wealthy partner at home, I cannot imagine that that will affect many of us. However, I object to the principle. Our wives or husbands did not stand for election, so why should they be subject to that requirement when they did not put themselves forward for public office? Do people think that members would transfer property into their partners' names to avoid declaring it? Will we have a bill that is based on and feeds suspicion? Will it be designed to catch people out? I believe that we will have a bill that guides and protects us in what we do, that is underpinned by rigorous systems and that everyone can have confidence in and understand. The line between our public and private lives is always shifting, but it is going too far for the bill to include those who have not been elected.
I am also concerned about the application of the prejudice test. As several members have commented, that applies not to interests that prejudice our behaviour but to interests that appear to do so. It is often described as the so-called objective test, but it is highly subjective. It varies hugely, according to our own values. For example, before an MSP is elected, they may have worked for a noble organisation such as Christian Aid. If they failed to declare that later, would that be interpreted in the same way as someone who failed to declare that they used to work for a cigarette manufacturer or a drug company? I am sure that fair-minded people will apply that test in a fair-minded manner, but let us not pretend that there are not many people, in the media and elsewhere, who have lost all sense of perspective about the Parliament.
As Bill Butler outlined, the bill could result in members being the subject of criminal sanctions against which there is no defence. If a member or their partner was to break the code of conduct, however unwittingly, they would be liable to criminal prosecution and would have no defence. Although those sanctions are written into the Scotland Act 1998 and are not to be decided on solely by the Parliament, I still believe that a provision could be added to the bill that said that a member's motives should be taken into account when determining whether the code had been broken. To my mind, there is a huge difference between deliberately disregarding, or acting in defiance of, the code and unwittingly misinterpreting it.
There are many examples of cases in which our willingness to be transparent and open in our affairs has been used against the Parliament. We need only look at today's ridiculous coverage, which again describes MSP staff salaries and allowances as MSP expenses. However, despite the hostility of some people, we should stick to our principles. We should maintain our openness in the hope that we will encourage a new way of doing business and a new way of governing. I believe that we can rebuild trust in the political process and in the institution of Parliament, but that we will not do so if we support a system that elevates mistakes into misdemeanours and interprets errors as evidence of wrongdoing, or if we criminalise the inoffensive.
The purpose of the register and the code of conduct should not be to trip members up, but to protect the public, to maintain the highest standards and to guide us in our conduct in public life.
Although many Liberal Democrat members have significant concerns about aspects of the bill, there are parts of it with which I agree. I agree with the points that Linda Fabiani and others made about overseas travel and paid advocacy. I agree, too, with John Home Robertson that we should ensure that the system that we establish is driven by the needs of our constituents and our needs as members, rather than by the needs of the media or, indeed, of parliamentary officials.
We must proceed with the bill because we have a statutory obligation to enact primary legislation to replace the members' interests order. It is clear that we must have a system for registering interests and that the system that we put in place must be transparent, reasonable and workable. What has come out of the debate so far is that many MSPs question whether the proposed scheme is workable or reasonable. I add my concerns to those that have already been expressed by Alex Fergusson, John Home Robertson, Phil Gallie—for once, I agree with him—and Ken Macintosh.
As Gordon Jackson pointed out, the bill contains a number of loopholes. For example, on heritable property, it is misleading that liabilities will not be shown. People will see a figure that suggests that a member owns a property when it is clear that they do not. Only a partial picture will be painted. As we have seen from the stories about the allowances system that appeared yesterday and today, people—whether they are members of the public or the media—only ever get a partial picture, which is open to them to misrepresent as they see fit.
In his inimitable way, Gordon Jackson shot several holes in the prejudice test, which creates the perception that we cannot do our jobs in a disinterested manner. That impression could be used mischievously by some, because we are not dealing with fair media. Time and again, the public say that they want to be represented by people who have a range of life experiences, but the bill will establish the need to register non-pecuniary interests and will create the impression that only lily-white 20-year-olds need apply to be MSPs. Looking around the Parliament, I do not see many lily-white 20-year-olds.
I agree that a prejudice test would probably be preferable to an indicative test, but I think that the Standards and Public Appointments Committee must take on board the comments that colleagues have made today. I welcome Bill Butler's assurance that the bill is not about a witch hunt, but perhaps he can explain that to the tabloid press, which has already made use of information about non-pecuniary interests that members have supplied voluntarily for the register of interests.
What about our spouses, our cohabitees and—in time to come—our civil partners? They have never stood for election. Those of them who met, married or got involved with members after we had stood for election the first time were not involved in the process of our deciding to enter public life and most of them do a fantastic job, not only for us, but for the general public, in supporting us in the job that we do.
Many of our partners already feel that they live in a goldfish bowl, but their private assets are now to be opened up to public scrutiny. For what reason? What right do we have to force our partners to declare financial holdings and interests that we may not even know about? Indeed, as many members have pointed out, would it be even possible to do that? I thought that we were trying to find ways in which to attract good-quality people into politics and public life. In many ways, the bill would undermine that aspiration.
Crucially, the bill as it stands is also unworkable, as it would require MSPs to declare any interest prior to taking part in parliamentary proceedings. Most of us understand that to mean that, when we speak in a debate, we should say whether we have an interest, such as a shareholding. Most of us try to declare any interest in that way. However, the bill would require us to declare any interest before every vote, so we would need to find a mechanism whereby members could do that. For every amendment at stage 2, every last-minute technical amendment at stage 3 and every manuscript amendment, we would need to know about the amendment, understand it and declare our interest accordingly if we were not to leave ourselves open to sanction.
Will the member give way?
I am running out of time. Presiding Officer, do I have time to take an intervention?
Mr Adam will need to be very quick.
The member is absolutely right in what she said about voting, but that is a consequence not of the bill but of the Scotland Act 1998. There is nothing that we can do about that. How that declaration should be made will be determined by the Parliament, which will decide whether to endorse any process that is proposed by the Standards and Public Appointments Committee.
I believe that we are getting ourselves into a situation that is unworkable.
In my final minute, I will deal with Mr Sheridan's point about the inappropriate use of public money. I sometimes think that that term could be applied to my having to sit here to listen to the stuff that Mr Sheridan comes out with, as he continually misrepresents the accommodation allowance—an allowance for which, as a local member, I am not eligible. However, he continually misrepresents how colleagues go about their business of representing their constituents. In many cases, members do that far away from their homes and families. For some time now, I have consistently called for a full review of the allowances scheme, so I do not say that the scheme should not be re-examined. However, I will not support Mr Sheridan while he continues to misrepresent the scheme by grandstanding on the issue.
Finally, I agree totally with Ken Macintosh that honest mistakes that members make should be treated in a different way, not as acts that have been undertaken by crooks. Frankly, in so many ways, that is exactly how MSPs are dealt with under the allowances scheme and how they would be dealt with under the register of interests that is proposed in the bill. Indeed, that is also how they are dealt with by the media each week.
We must be clear that any proposals must be not only reasonable but workable. As the bill stands, it contains some serious flaws.
Mr Sheridan, you have six minutes.
It was wonderful to hear Margaret Smith claim that I misrepresented the Edinburgh accommodation allowance, but she did not tell me how I had misrepresented it. When she said that we should have a review of the scheme, I could not have agreed more. She and I agree that, in representing their constituents, MSPs—who, by the way, are treated much better than other public servants in the recompense that they receive for travel and accommodation—should not be out of pocket. However, what I and the rest of the people of Scotland are opposed to—which the Parliament would have opposed as well, if members had been aware of it at the time—is MSPs privately profiting from the use of an allowance scheme from public funds. That is the issue.
Mike Rumbles said that not a penny of public money was used to purchase his property. I will need to take his word for that because when I asked whether we provide 100 per cent mortgages to MSPs, I was told that I was not entitled to that information. However, I know that Mike Rumbles has received £49,000-worth of mortgage interest payments since the erection of the Parliament. The point is that, when he comes to sell on his property—
On a point of order, Presiding Officer. Is it appropriate that the member should denigrate a fellow member of the Parliament and suggest that they are responsible for a misuse of funds, as he seems to be indicating?
The matter is in the public domain. However, I ask Mr Sheridan to be very careful about how he presents what he is saying. We will see how we go from there. He should be very careful about how he puts forward his argument.
Absolutely, Presiding Officer. I will be very careful, because I do not want to denigrate Mike Rumbles. The point is that he has not done anything that is illegal. The accommodation allowance was designed to recompense MSPs for out-of-pocket expenses.
Mr Sheridan, I will give you a wee bit of advice. You have stated clearly what you feel about the accommodation allowance. I ask you to move on and to provide us with other examples of what you think about the bill.
With the greatest of respect, Presiding Officer, Mr Rumbles used a great deal of his speech to denigrate my arguments. I am only replying to the debate—that is what summing up is supposed to be about. I am making the point that it is in the public interest—and certainly the Parliament's interest, if we want to win back the public's confidence—that how our allowance schemes are used should be completely transparent. It is quite simply wrong—
On a point of order, Presiding Officer.
I hope that time will be added on, Presiding Officer.
Mr Sheridan, sit down.
I believe that it is in contravention of standing orders for one member to impugn the integrity of another in the chamber.
That is the case, but my judgment is that at the moment Mr Sheridan is not doing that. I am listening very carefully to what he is saying, which is in the public domain. Mr Sheridan, be careful about what you are saying.
As I said, I will be careful. I think that the member doth protest too much. He is not the only member who doth protest too much.
Mr Sheridan, I am ruling you out of order. Please move on. That comment was not acceptable.
Oh! I must say, Presiding Officer—
I am in charge of the debate. You will now move on.
Is it not acceptable language to say that a member doth protest too much?
I am not accepting it on this occasion. Move on or sit down.
Okay, I will move on. It seems that my comments have touched a raw nerve.
In his speech, Mr Stevenson used the time-honoured tactic of attacking the messenger because he did not like their message. It is a pity that Stewart Stevenson is not here and that he could not wait to hear my speech. [Interruption.] I see that he is on the other side of the chamber, and I say to him that he must grapple with the point that his constituents deserve to be made aware that there is an allowances scheme that not only allows members to have the interest on a mortgage paid but allows them to sell on their property for personal profit. However, I thank him for the fact that he has given me a good idea for my stage 2 amendment.
On a point of order, Presiding Officer. Can you confirm that members' allowances and their entitlements to them are published on the Scottish Parliament's website and that it is therefore open to every constituent to understand and scrutinise them?
That was not a point of order, but what Mr Gallie said was true.
It was not a point of order, but it reminded me of Phil Gallie's comment that I am stirring pots that do not deserve to be stirred. Let me beg to differ. I am stirring a pot that should have been stirred a long time ago.
I was saying that Stewart Stevenson's comments have given me an idea for my stage 2 amendment. It should not be the nominal value of the second homes purchased using the Edinburgh accommodation allowance that is declared in the members' interests declaration, but the market value. The truth is that far too many MSPs are quite legally but, in my opinion, inappropriately profiting from an allowance scheme that was not meant to pour thousands of pounds into members' pockets. That is what my amendment will be about. I hope that the Parliament, if it wants to be transparent and above any idea of corruption, will support it. No one has argued against it on the basis of principle.
Mr Sheridan, you must finish now.
Despite the fact that I have had to deal with four points of order and the Presiding Officer breathing down my neck, I will finish now.
This has been a good debate—or it was for a while—on an important subject. At a time when it feels as though the public's confidence in politicians is low, it is critical that we make the right decisions about how we conduct ourselves as representatives of the public in this Parliament.
Surely we do not need too detailed a description of members' interests and lives. After all, the purpose of the register, according to paragraph 4.1.1 of the "Code of Conduct for Members of the Scottish Parliament", is
"to provide information about certain financial interests of members which might reasonably be thought by others to influence members' actions, speeches or votes in the Parliament, or other actions taken in their capacity as members."
It is important that the right balance is struck between the need for transparency and the need to protect the privacy of members and their families.
It is unfortunate that a number of aspects of the bill fail to strike that balance correctly. We risk creating an awful environment with a demand for every aspect of an MSP's life to be declared and where everything, no matter how trivial or irrelevant, should be in the public domain. That would be a gross intrusion on members' privacy and, at a time when the Parliament needs to increase its credibility by encouraging new faces, it would risk discouraging potential MSPs from putting themselves forward for public service. Although we must maintain adequate standards, we should not poke our noses unnecessarily into other people's business, nor should others poke their noses into ours.
This is a free country. This is Scotland. This is a country where people have always respected dignity and privacy. It is the country that ushered in the age of enlightenment. Surely this country is not moving towards George Orwell's "Nineteen Eighty-Four" and the age of Big Brother, although sometimes I fear that it is.
I have two key concerns, which were highlighted by my colleague Alex Fergusson. The first is the proposal that MSPs should be required to register non-pecuniary interests, such as membership of the freemasons. The second is the proposal that the requirement to register heritable property should be extended to spouses and partners.
On the first point, the committee aimed to ensure that the register of members' interests would contain all the relevant interests, while stopping short of requiring that grossly intrusive information be included—such as close personal friendships—as some have sought. My close personal friendship with Mike Rumbles, for example, does not mean that I will always vote Liberal.
The bill rightly aims to ensure that members register matters of genuine interest that might prejudice their actions or the work that they do as MSPs. However, it has been argued by my Conservative colleague Phil Gallie that it should be up to an individual MSP's judgment whether a non-pecuniary interest is relevant to their parliamentary duties, and I agree. I declare an interest, such as my involvement with the Disabled Ramblers when I talk about disability, or with the National Farmers Union Scotland when I talk about farming. I do that when it is relevant to a debate, but not as the norm. That is more than sufficient to ensure transparency of my position and interests.
The key test is for MSPs to consider not whether they would, or even might, be influenced by membership of the freemasons, for example, but whether a fair-minded and informed person would conclude that the MSP's impartiality would or would appear to be prejudiced by such membership. I think that the committee has shown sound judgment in adopting that objective test and believe that it will work well in practice.
In relation to the second concern, the current situation is that unless a member has specific legal rights in relation to the spouse's property, there is no requirement to declare it. The bill's proposals would change and tighten the existing legislation so that a member would have to declare a heritable property in which a spouse or partner has an interest.
Those proposals invade the privacy of people who are not even members of the Scottish Parliament. It is one thing to require that my interests as an MSP be disclosed where relevant, but it is quite another to ask that of my wife, who has not chosen a career under the full glare of public scrutiny, thank goodness. That is an unacceptable proposal.
Although the Conservatives will support the bill in principle, because of the legislative requirement for it under the Scotland Act 1998, my party will seek to clarify and amend it as it progresses. As a prospective member of the ad hoc committee that will be established to scrutinise the bill at stage 2, I will do my best to ensure that those concerns are expressed. A reasonable balance must be struck between the transparency that is needed and the privacy that should be respected.
The devil of bills such as this lies not so much in the detail, but in some of the unforeseen consequences of measures that we easily pass and then regret at leisure. It is easy to expand on a principle that is generally agreed—I think that all members agree with the principle of the bill—but it is much less easy to draft legislation that will not bite unintended victims while letting other people scoot right past.
On balance, I feel that it is right to have a prejudice test—if we can agree a mechanism that works. The alternative of trying to list all the categories, gifts and inducements that could be or should not be registered is doomed to failure. Indeed, anyone who listened to Mike Rumbles's illustration of what such a list might contain will appreciate the difficulties that will arise if we take that particular approach.
That said, the prejudice test is not the perfect answer. First, the member will be expected to interpret whether he is prejudiced; however, someone else, perhaps in a court of law, might simply reinterpret that interpretation. Gordon Jackson made a thoughtful speech on that point.
Another problem is that people are informed by their previous experience of where prejudice stops and informed interest in a subject begins. In that respect, I do not agree with John Home Robertson. Declaring an interest does not stop us participating in debates and decisions; it means simply that when we participate in debates, our interest is on the record. At least it makes it illegal for anyone to participate if they have a substantial hidden financial interest in the outcome of the decisions that we make.
I used the word "substantial". The proposal that MSPs should register gifts with a value of 0.5 per cent of their salary sets the bar too high. One need look only at the first couple of entries in the current register of members' interests to find that gifts valued at between £250 and £500—in other words, those that fall between 0.5 per cent and 1 per cent of a member's salary and that therefore have to be registered—include a bus pass for Lothian Buses and a visit with a colleague to a football match. The match happened to be at Ibrox, so it was expensive—although one might argue that it was not money well spent.
Other gifts in that category included a flight on a sea plane and return flights to and accommodation in London in order to attend and speak at a Burns supper. In fact, various members have registered flights to and accommodation in London. It strikes me as bizarre that we should have a limit that requires anyone to register return trips to London and a night in a hotel to participate at a conference at the instigation of the conference organisers, for example.
Some members feel that it is right to declare every gilt quaich that they get—and God knows we get enough of those—but listing such trivia creates bureaucracy and might even begin to obscure really important entries in the register. I also think that section 39 of the Scotland Act 1998, particularly subsection (6), is draconian, and, along with John Home Robertson, I plead guilty to having helped to enact it. Of course, the 1998 act itself is another example of legislation that is good in its totality but bad in some of the unintended consequences of its detail.
The issue of spouses is very difficult. I have listened to and very much sympathise with the arguments that have been made. However, there is always the possibility that someone who is determined to hide a financial interest will get a compliant spouse or partner to hold the asset for them. The question is whether the need to cater for that unlikely event means that we should impose an undue restriction on members' spouses. Any decision on that matter will be a difficult balancing act for us.
Is the member not going against the usual principle, to which we all hold, that one is innocent until proven guilty?
The whole matter is a case of being innocent until proven guilty. We must declare the interest up front, even though it may not influence us. We are talking about potential interests, and it is a matter of how we are perceived by the electors who sent us here. Would a reasonable elector think that we might perhaps be biased in a particular debate? They could not even begin to make that assumption if some asset in which we have a pecuniary interest is hidden from them.
I would like to say a word about the bizarre amendment. There is clearly a legitimate debate to be had about allowances for Edinburgh accommodation—or for anything else—but that is not what today's debate is, or should have been, about. Today's debate is about how monetary or other interests influence members' conduct in debates or in their parliamentary activities. I did not hear even Mr Sheridan argue that the use of that allowance would, or could, influence our participation in debates. It is not as if we are getting a large bung of cash from some company that might expect us to buy a boat from it. If we get that cash, we are getting it from the Parliament, so unless we were debating a motion to abolish the Parliament it would hardly be a relevant inducement. The truth is that the amendment was just an excuse for a rant on a totally different issue. The Scottish Socialist Party has a debate next Thursday and could have raised the issue then.
It is clearly necessary that we are seen to be above improper influences on our deliberations. In general, the bill goes in that direction, but I have no great hope that the fourth estate will treat us any better after it is passed than it treats us now.
I am pleased to have this opportunity to contribute to the debate on behalf of the Executive. Although all the issues that have been discussed are clearly matters for the Parliament, the Executive has a shared interest in good governance arrangements and in ensuring that any legislation that the Parliament passes is robust and effective. It is in that spirit that I make my contribution, although the issue is primarily a matter for the Parliament.
This afternoon's debate has been interesting. Tommy Sheridan has many achievements under his belt, but making me feel sympathetic to Mike Rumbles is not one that I was expecting. At centre stage is the balance between probity and a workable system, which I think everyone accepts. Bill Butler's introduction was extremely interesting and thorough. He talked about the need for a proportionate system that is comparable to other systems for those involved in governance arrangements, but he also mentioned the critical common sense that must be injected as we make our decisions.
We will obviously see things from our own perspective, because we have direct experience of the issues and will frame legislation around that, but it is critical that we try from time to time to step beyond that perspective and to appreciate how others see us, so that we are not seen purely as defending our vested interests. That degree of common sense, and the processes that we go through, will be vital.
The debate has highlighted some of the challenges that we will face along the way. We must pass the legislation—in the final analysis, we must have a system—but there is a great deal of detail to be addressed and, as Alasdair Morgan said, the devil is in the detail and in how that detail is managed. I have a sense that our colleagues who are about to sit on the ad hoc standards committee will have quite a task on their hands as they try to grapple with some of the issues, as many of the contributions have demonstrated. I hope that we can develop a scheme that is workable—it is certainly within the abilities of the prospective members of that committee—but that does not diminish our work or us in the process.
I absolutely concur with how that sense has been articulated in the past few years. It is as if there is an assumption that we are always out to make a fast buck, rather than to do the job that we were elected to do. Ken Macintosh spoke for many members when he said that we should not treat errors as criminal acts and we should be clear about the difference. I hope that, when the ad hoc standards committee is grappling with those issues, it will be able to make proposals that achieve that balance. I think that I speak on behalf of the Parliamentary Bureau when I say that we would be sympathetic to ensuring that the committee gets the time that it needs to carry out that work and to go through the necessary detail to address the significant points that have been raised today.
A more general point emerged from Linda Fabiani's contribution. As she said, we are all busy people and, with the best will in the world, we sometimes do not focus on the issues that we are required to focus on until they are under our noses. We have perhaps all been a bit guilty of that this afternoon.
I want to put on record my thanks and our thanks for the work of the committee; Brian Adam, Bill Butler and others have done sterling work. It is incumbent on us not to abandon them to that work and only complain, nor should we do that to the members of the ad hoc committee. The Parliament must consider processes to introduce early warning systems to make us focus, give us time to do the work and support members who carry out difficult tasks on our behalf.
It is vital that we adhere to and are seen to adhere to the highest possible standards in our conduct and in how we manage our interests. It is a privilege to serve in the Parliament. We make decisions of enormous importance to the ordinary citizens of Scotland. It is important that they see that our full and primary focus is on addressing those concerns and that we will not entertain any undue influence when we make those decisions. It is also important that we get an effective and efficient scheme and that we consider the process carefully because its unintended consequences could create difficulties for us. It is vital that we have the confidence of ordinary Scots as we do our business in this Parliament, but it is also vital that the scheme has the confidence of members and that they feel that it works effectively for them and allows them to conduct their business of representing their constituents effectively.
We are not quite there yet on some of the detail. We have a challenge on our hands and we must support the members who have agreed—willingly or, I suspect, not—to serve on the committee. That is a challenge for the whole Parliament. I will say to my colleagues on the Parliamentary Bureau that we should give some attention to how we support such processes in the Parliament.
I thank all the members who have taken the trouble to attend the debate. I suspect that many members of the Standards and Public Appointments Committee thought that the debate might be rather dull. If we are to thank Mr Sheridan for anything, it should be for ensuring that the debate was not dull. From discussions with the deputy convener, Mr Butler, I know that we were concerned that we might have difficulty in filling the time, but it has not been difficult. There have been some interesting and, rightly, challenging speeches.
I will rehearse the history of the legislation. The bill reflects a duty that was placed on us by the Scotland Act 1998. Many of the concerns that Margaret Smith expressed, on behalf of quite a few members, relate to the fact that we cannot make changes to some of the elements that are stipulated in section 39 of the Scotland Act 1998. We must accept that that is the starting point, unless Mrs Curran—wearing her Minister for Parliamentary Business hat—can persuade her colleagues in Westminster to reopen the 1998 act. Much though many of us might welcome that, I suspect that it is not realistic in relation to the bill.
It is good that concerns have been raised and that we will have the opportunity—at stage 2 and stage 3 consideration of the bill—to get it right.
In the first session of Parliament, the Standards Committee arrived at a draft bill that was almost identical to this one. Just as the current committee has done, it conducted a consultation exercise. It managed to get eight people to participate—we were rather more successful, in that 23 people responded and made 32 contributions. However, the great majority of those contributions were on one subject rather than the general issues that we are debating today; their aim was to ensure that anyone who was a freemason would be forced into declaring that in advance.
If the bill is passed in the form that is before us today, it is true to say that whether Phil Gallie declares his membership of that organisation will come down to his judgment. However, we now know that he is a member, because that is on the record. In fact, I think that that was true the last time that he made his declaration. The matter is now in the public domain. [Interruption.] I hope that that is not the bell for the end of round 3.
This is our second attempt to pass such a bill and I hope that the matter does not have to be revisited yet again in the next session of Parliament.
The debate has engendered some interesting contributions, but unfortunately the bill is of interest primarily to us as members. However hard we might try to engage with the public, the issue is not of great interest outwith the Parliament. Members will be pleased to hear that there will be a part 2 to the debate. One of the consequences of the bill is that the Standards and Public Appointments Committee will have to revisit the code of conduct—indeed, we are already in the throes of doing that. Any member whose experience of the code of conduct has given them cause for concern should be aware that this is a good time to be thinking about it. As I said, members are about to be given the opportunity to take part in a debate on the subject.
Mike Rumbles mentioned the guidance that needs to be issued, particularly in relation to the non-financial interests that the bill suggests should be registered. Although I cannot give him an absolute commitment on the timescale, our intention is to produce such guidance by the end of next year or before the 2007 election at the latest. Our intention is that members should know where they stand. Mike Rumbles's suggestion, which is worthy of consideration, is in line with the committee's thinking as laid out by the deputy convener in his opening speech. I hope that members will follow through on the remarks that they have made today by lodging the appropriate amendments at stage 2.
Some of the detailed points that were raised in the debate showed that the member in question had not quite got the gist of the bill's intention. Alex Fergusson raised the issue of shares that are owned by spouses. Under the law, such interests have to be declared at the moment. All that the bill will do is to extend the provision to heritable property. I understand members' concerns on the issue, but Alasdair Morgan put it rather well when he talked about partners moving assets between them. If someone does that, it could quite reasonably be suggested that the asset—or apparent asset—could influence the decisions that their partner takes as an MSP.
If members wish to delete the provision from the bill—on heritable property or on heritable property and shares—I will be happy to engage in discussion on the matter at stage 2. Indeed, I look forward to the appropriate amendments being lodged.
One of the issues that exercised members of the committee in both this session and the previous session was whether any defence would be made available to us. We heard about that again today from Kenneth Macintosh, who has taken a keen interest in the subject. The intention behind the prejudice test is not to offer a defence, but to ensure that no member will unwittingly be found guilty of a breach of the law. If someone does not know something, how can the circumstance arise in which something that they do not know influences their decision? Again, any member who has concerns on the detail of the prejudice test—we heard some eloquent contributions on the subject—should suggest some alternatives. We must find a way of dealing with the issue.
I look forward to Mr Jackson making an equally erudite contribution at stage 2. I say to him that, at the moment, the courts use such a prejudice test. We as individuals make the judgment to start with but, as the explanatory notes state at paragraph 23, it is measured against what
"a fair minded and impartial observer"
might think. Those are not our words; they are the words that are used by the courts in interpreting the test in other areas.
Undoubtedly, the debate is coloured by what has appeared in the media in the past year or so. I sympathise with the views that have been expressed by a number of members: we are not necessarily going to get fair-minded media, and fair-minded representation of what members do seems to be beyond the capabilities of at least some in the media in Scotland. I cannot make them change; the bill will not make them change; and members will not make them change. However, we should do what is right. We need to pass the bill. It needs to be proportionate and in line with the principles on which the Parliament was established.
John Home Robertson, too, misunderstood the objective test. If a member's wife does not tell him what she owns and he does not ask, since he does not know, her holdings cannot influence his decisions. Therefore if the prejudice test is applied, he is not in breach.
I am just coming to the point that Gordon Jackson is likely to raise. If I do not cover it, I will let him in.
Mr Jackson suggested that the situation is likely to lead to stresses and strains within relationships, which might well be the case. Perhaps we need to revisit the measure. However, if we do not have the prejudice test—which has not been dreamed up by the committee; it exists and is respected elsewhere, including by the courts—we will have to find something else. If Mr Jackson wishes to add to that, I would be delighted to hear from him.
I was thinking of the situation in which a member finds out about something later and then puts it on the register. When it comes out, the gentlemen of the press will take the cynical view, "Och, he knew all along." It worries me that people's good faith will be scrutinised unfairly.
I agree that innuendo is common currency in the press's dealings with the Parliament. I do not have a solution to that, although I would be happy to hear suggestions.
I want to ensure that I will not overrun.
You have a minute and a half.
I want members to be certain that the bill is primarily about providing a register of members' interests for the Scottish Parliament that is transparent and proportionate. It is about what we have, what we do, and what in our background might influence us, so that it is in the public domain. Nothing will prevent us from contributing to a debate once we have declared an interest.
The prejudice test requires members to consider objectively the interests that they hold while providing some protection by minimising the chances of their unwittingly falling foul of the registration requirements. The Parliament is determined to be at the forefront of developing best practice on standards. We should try to do that even in the kind of atmosphere that we have had to endure over the past year. I hope that as the Parliament grows up, our press corps will grow up, but I say that more in hope than in expectation.
In delivering what is right for the Parliament and sustaining its underlying principles, we should not be driven by the occasional winds that will blow against us either as individuals or as an institution. I am confident that the bill will enable the Parliament to build on its already high standards.
Mr Sheridan rightly pointed out that we have not given guidance on his amendment. Personally, I shall not support it, because I heard nothing in his argument to suggest that owning a property in Edinburgh, which may have been contributed towards through the existing allowances scheme, would influence how a member might vote. I cannot understand why the amendment was regarded as appropriate.
Will you begin to close, please?
I am doing that—I am offering guidance to members on how to vote on the amendment.
The bill strikes the right balance between privacy and openness. I look forward to engaging with the ad hoc committee at stage 2 and with the rest of the Parliament at stage 3.