Code of Conduct for MSPs
The Code of Conduct provides a set of principles and standards for Members of the Scottish Parliament.
Section 1: Registration of interests
1. The Code of Conduct (the Code) provides details of the requirements for the registration of members’ interests. Further information can be found in the associated guidance.
Interests of Members of the Scottish Parliament Act 2006
2. The Interests of Members of the Scottish Parliament Act 2006 (“the Act”) sets out the statutory requirements that apply to the registration and declaration of members’ interests.
3. The types of financial interest which must be registered are those which might be thought to influence a member’s actions, speeches or votes in the Parliament (and in some circumstances, interests which are in connection with political activities).
4. The Interests of Members of the Scottish Parliament (Amendment) Act 2016 amended the Act to incorporate the registration requirements of the Political Parties, Elections and Referendums Act 2000 (PPERA). These changes ended the dual reporting of certain financial interests, to both the Electoral Commission and the Scottish Parliament.
5. The PPERA requirements about permissible donations and regulation of loans and related transactions still apply. Written guidance on these requirements is available and advice can also be obtained from the Electoral Commission.
6. The 2006 Act sets out the circumstances in which financial interests must be registered. These are commonly referred to as ‘registrable interests’.
7. It is the responsibility of each member to ensure that they comply with the Act. Penalties and criminal sanctions may apply in the event of non-compliance with the requirements for registration.
8. If a member is uncertain about any aspect of the operation of the Act or the Code, the Standards Clerks may be asked for advice. Members may additionally wish to seek independent legal and other professional advice prior to registration.
Access to the Register
9. The Register only applies to the current session of the Parliament. At the beginning of each new session a new Register is set up for both new and returning members.
10. The Register is available online. Each member’s current register entry is published as part of their Parliament web pages.
11. Snapshots of the full register are published annually on the Parliament’s website.
12. Old register entries are kept for a ten year period (after amendment or deletion).
13. Under PPERA, the Electoral Commission is required to maintain its own register. The Electoral Commission obtains the information it requires from entries in the Parliament’s register and any supplementary information from the Standards Clerks (i.e. information which is not published, such as individuals’ addresses).
Initial registration of interests
14. After an election, members must register interests by lodging written statements with the Standards Clerks.
15. Members must register all registrable financial interests held by them on the date they were returned or which they have acquired on that date or since that date.
16. Controlled transactions (loans, credit facilities, etc.) do not require to be registered if entered into by the member before the date on which they were returned.
17. Additionally, any interest held before the date on which the member was returned but which is no longer held must also be registered if it meets the prejudice test (set out in section 3(2) of the Act and restated below). A member must decide whether any interest meets that test.
The prejudice test
18. An interest meets the prejudice test if, after taking into account all the circumstances, that interest is reasonably considered to prejudice, or to give the appearance of prejudicing, the ability of the member to participate in a disinterested manner in any proceedings of the Parliament
19. In making a decision as to whether an interest meets the prejudice test, a member must consider not just whether the member feels influenced by the existence of the interest but whether a fair minded and impartial observer would consider that it could influence a person acting as an MSP or give the appearance of prejudicing that person’s ability to act impartially.
Completion of written statements
20. The written statement contains guidance to assist completion. Copies are available from the Standards Clerks. Following return, the statement must be lodged with the Standards Clerks no later than the date which is 30 days after the date on which a member takes the oath of allegiance or makes a solemn affirmation in accordance with section 84(1) of the Scotland Act 1998 (“the Scotland Act”).
21. Interests acquired on the date of return must be registered within 30 days of that date. Any member who acquires an interest on the date of return should consult the Standards Clerks as soon as possible after that date.
22. Section 18 of the 2006 Act sets out special arrangements applying to the Lord Advocate and Solicitor General for Scotland who, under section 39(8)(b) of the Scotland Act, are included as members for the purposes of the Register and also required to submit written statements of their registrable interests.
23. If the member has no registrable interests, the Act provides that a written declaration must be lodged with the Standards Clerks to that effect. There is no specific form for a written declaration specified in the Act. Members who wish to make such a declaration may, however, make a written declaration by ticking “no” in the relevant boxes in the written statement. Alternatively, Members can email the Standards Clerks from their own Parliamentary email account to indicate that they have nothing to register.
Registration of interests acquired after date that the member is returned
24. Where an interest is acquired after the initial registration, the procedure is largely the same as for initial registration. A member must register an acquired interest by lodging a further written statement within 30 days beginning with the date of acquisition.
25. The form of written statement is again the same as that provided for initial registration but in this case the member fills in only the information relating to the acquired interest. Alternatively, Members can email the Standards Clerks from their own Parliamentary email account with the details of the interest they wish to register.
26. Members should note that it is possible that an interest which a member already has may change in nature to become a registrable interest. That would occur where, for example, the value of heritable property or shares increases to exceed the specified financial limit. Such interests should be treated as new interests that have been acquired on the “relevant date”. Where the interest did not exceed the threshold on return or on any later date on which the interest was acquired, the “relevant date” is 5 April each year thereafter. Members therefore need to ensure that such interests are revalued as at each 5 April.
Reporting and registration of changes to controlled transactions
27. Members must register any change to a registered controlled transaction (loan, credit facility, etc.) within 30 days beginning with the date on which the change takes effect. This includes the ending of a controlled transaction.
28. Where a member has omitted to register an interest due, for example, to an oversight or misunderstanding, the member must register that interest within seven days of becoming aware that registration was required. It should be noted that the obligation to register such an interest persists even where the member has subsequently disposed of the interest.
29. Members should rectify omissions as quickly as possible and should contact the Standards Clerks as soon as they become aware that something has been overlooked. Failure to register an interest is a criminal offence and opens a member up to the possibility of prosecution as well as sanctions imposed by the Parliament.
30. A member may register on a voluntary basis an interest which does not require to be registered by lodging a written statement or emailing the Standards Clerks at any time.
31. Members are not obliged to register these entries within 30 days under the Act. Once Standards Clerks are informed of such an entry, they are obliged to publish it within 30 days.
Changes to the register
32. Following initial registration, members may notify the Standards Clerks of additions and amendments to, or deletions from their register in signed hard copy or by email from their personal Scottish Parliament account. Deletions and amendments can be provided in the form of a written notice, either in signed hard copy or by email.
Deletion of interests from the Register
33. A member may instruct deletion of a registered interest from the Register if it is a ceased interest. A ceased interest is an interest which is registered but which no longer requires to be registered and voluntary registrations which the member no longer wishes to be registered
34. A member is not required to delete ceased interests but members are encouraged to do so as it is helpful in terms of accountability and openness to the public if the Register is up to date at all times.
35. The only entries which may not be deleted under the terms of the Act are those which constitute remuneration under the remuneration and related undertaking category (because the member has received the remuneration and that cannot be reversed), although the terms of an entry relating to remuneration may be amended to reflect that remuneration is no longer received from that source.
36. Where a member wishes to have a ceased interest removed from the Register, the member should lodge with the Standards Clerks a written notice, in signed hard copy or by email from their personal Scottish Parliament account, identifying the ceased interest and giving the date that it became a ceased interest.
37. Within 30 days after the written notice is lodged, the Standards Clerks will amend the member’s entry to record that the relevant interest is a ceased interest.
38. Not less than 12 months after the notice was lodged, the clerks will further amend the entry in the Register by deleting the interest and information relating to it and send a copy of the amended entry to the member.
39. Certain information will remain on the Electoral Commission’s register even if it has been deleted from the Scottish Parliament register.
Deletion of controlled transaction entries from the Register
40. Members must notify the Standards Clerks of the ending of a controlled transaction within 30 days.
Amending an interest
41. A member should also monitor any changes in the status of their registered interests and seek to amend an entry where necessary. With the exception of controlled transactions, a member is not required by the 2006 Act to amend interests but members are encouraged to do so as it is helpful to the public if the Register is up to date at all times.
42. The member should consult the Standards Clerks on whether a proposed amendment is possible and what the notice of the amendment should contain. Within 30 days of the written notice being lodged the Standards Clerks will amend the entry and send a copy to the member.
Sanctions and offences for non-registration
43. Where a member fails to register an interest by failure to lodge a written statement in respect of a registrable interest within the relevant time limit, or fails to notify a change to a controlled transaction within 30 days of that change, the Parliament may apply sanctions to that member. It may also apply sanctions where a member has lodged a written notice to the effect that an interest has ceased when it has not in fact ceased.
44. The Parliament may, as it considers appropriate in a particular case, prevent or restrict such a member from participating in any proceedings of the Parliament relating to the matter in which there is an interest. Section 17A means that the Parliament may exclude a member from the premises or part of the premises, withdraw the member’s right to use the facilities and services or salary and allowances provided by the SPCB or debate and agree to a motion of censure.
45. In addition, when a member fails to comply with or contravenes any registration requirement or fails to adhere to any sanction imposed as a result of non-registration, the Parliament may exclude that member from proceedings in the Parliament for such period as it considers appropriate (section 16). This could occur, for example, where a member refuses to provide all the required information about a particular registrable interest.
46. Finally, in terms of section 17 of the 2006 Act failure to register a registrable interest, or to notify a change to a controlled transaction and failure to comply with any sanctions imposed by the Parliament as a result of that failure are criminal offences. It is for the Commissioner for Ethical Standards in Public Life in Scotland to refer breaches of the Act to the Procurator Fiscal if they come to light in the course of an investigation of a complaint. A member found guilty of such an offence is liable on summary conviction to a fine not exceeding level 5 on the standard scale.