Schedule — Registrable Financial Interests

Interests of Members of the Scottish Parliament Bill: Stage 3 – in the Scottish Parliament at 3:22 pm on 26th April 2006.

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Photo of Murray Tosh Murray Tosh Conservative 3:22 pm, 26th April 2006

Group 2 is on related undertakings. Amendment 11, in the name of Margaret Jamieson, is the only amendment in the group.

Photo of Margaret Jamieson Margaret Jamieson Labour

Amendment 11 seeks to provide greater clarity for MSPs on related undertakings. It is only right and proper to inform members that I attempted to incorporate such clarity in the bill at stage 2, but during consideration of amendment 22 in my name, it became clear that the amendment was too wide in that it would apply to members' electricity and gas bills, their mortgages and everything else, which was obviously not my intention. My intention was to provide clarity for members who have an interest in a private business and receive no financial remuneration or tangible benefit in kind. However, that interest could be a large and significant asset, lying dormant and accumulating in value over a number of years. At some point in future, an estate or trust could be sold or wound up. It was therefore believed that such related undertakings should be covered by the bill, to allow members to sign up and be as clear as possible.

Some people believe that the bill should not include such related undertakings. At stage 2, colleagues in the bill committee believed that the principle and the intention were correct. The convener of the Standards and Public Appointments Committee, who is the member in charge of the bill, supported the inclusion of such undertakings. I am grateful to colleagues for allowing some discussion to take place between stage 2 and stage 3 and to the clerks for their assistance in ensuring that the amendment before us provides that clarity.

I move amendment 11.

Photo of Alex Fergusson Alex Fergusson Conservative 3:30 pm, 26th April 2006

I cannot support amendment 11. It is not that I do not understand where Margaret Jamieson is coming from or that I misconstrue her intentions, which I think are to try to provide more clarity in what is a slightly cloudy area. It is just that the bill should be as minimalist as possible in its approach. On that score, the amendment is not entirely necessary, for the simple reason that, as the Scottish Parliament information centre briefing explains so well, the amendment seeks

"to widen the registration requirement to cover activities in which a Member has a financial interest (which may result in remuneration should that interest be wound up)".

When that financial interest is realised, it will be registrable. The amendment is unnecessary and I shall not support it.

Photo of Brian Adam Brian Adam Scottish National Party

Alex Fergusson raises an interesting point, but the situation he describes could well happen when someone is no longer an MSP. In effect, the situation that Margaret Jamieson describes is to do with deferred income. I was pleased that she asked for my support for amendment 11—I do not know whether that is the kiss of death, given my track record this afternoon. A similar amendment was debated at stage 2 but was withdrawn on the technical grounds to which Margaret Jamieson referred. The proposed new paragraph replaces the existing paragraph 3 of schedule 1 and in so doing widens its scope beyond being a director in a related undertaking to include being a partner in a firm.

In producing the bill, the Standards and Public Appointments Committee—here's hoping that we do not have a lot more recanting like we had earlier—considered the matter of related undertakings and recommended the extension of the provision to allow for the prejudice test to be applied in cases in which a member held a directorship but disposed of it prior to election. However, other unremunerated directorships that, under the current arrangements, do not require to be registered, may be registered voluntarily under section 7 of the bill. It is easy to envisage situations in which the additional provision applies. I repeat the example that I gave at stage 2 of a member with an unremunerated financial interest in a family business—possibly a large asset—which may result in a payment to the member should the business be wound up.

Basically, we are talking about unrealised income, which could be regarded as an influence. If a member is receiving no remuneration from their interest, there is no current requirement to register. We believe that there should be such a requirement. At stage 2, the committee supported the aim of an amendment that we felt was consistent with the overall aims of the bill. I beg members to support amendment 11.

Photo of Margaret Jamieson Margaret Jamieson Labour

I do not fully accept the comments that Alex Fergusson made because I believe that an influence could emanate from an interest that does not currently provide remuneration for a member. A member of the public might be able to say that an MSP voted a certain way because, 10 years down the line, they will get a payment from a certain interest that they have not declared. It is right and proper that we should have clarity in the bill and I urge members to support amendment 11.

Photo of Murray Tosh Murray Tosh Conservative

The question is, that amendment 11 be agreed to. Are we agreed?

Members:

No.

Photo of Murray Tosh Murray Tosh Conservative

The result of the division is: For 65, Against 10, Abstentions 2.

Amendment 11 agreed to.

Photo of Murray Tosh Murray Tosh Conservative

Group 3 concerns thresholds for the registration of sponsorship and gifts. Amendment 2, in the name of Alasdair Morgan, is grouped with amendment 3.

Photo of Alasdair Morgan Alasdair Morgan Scottish National Party

The purpose of amendments 2 and 3 is to raise the limits above which certain financial declarations have to be made. Amendment 2 changes the monetary limit above which sponsorship—that is, financial or material support—in a single session must be declared from 0.5 per cent of salary to 1 per cent of salary. Amendment 3 changes the monetary value above which it is necessary to declare a gift of heritable or moveable property or a gift of a benefit in kind to a member or a member's spouse, civil partner or cohabitant, to a company in which the member has a controlling interest, or to a partnership of which the member is a partner, from 0.5 per cent of salary to 1 per cent of salary—that is, from £258 to £516.

The Standards and Public Appointments Committee and the bill committee have accepted that there should be such a lower limit, which is why it is in the bill. I think that they have done that because of several factors that count against the listing of every interest no matter how small, which would be the alternative to not having a lower limit. Those factors are the need for members to be open without being unnecessarily intruded on; the need to create a system that is not unduly bureaucratic; and the need to set limits that do not cause members to break the rules inadvertently because they did not realise that a gift or sponsorship was over the limit. Basically, the lower that we set the limit, the more bureaucracy we need to run the system, the more intrusion we must unnecessarily suffer in our private lives and—depending on other decisions that we will make later this afternoon—the lives of our spouses or partners, and the greater chance of inadvertently breaching the rules over an essentially trivial matter.

The committees have accepted that. What remains to be done is to make a judgment about what limit best achieves the correct balance between satisfying public accountability and having a sensible system. That is simply a judgment that members have to make for themselves and I accept that, to some extent, it is arbitrary. However, I note that the House of Commons has set the figure above which its members must register gifts at 1 per cent of their significantly higher salary, rather than the 0.5 per cent that we have set the limit at.

The entries of gifts in our current register of interests that fall between the limit that is proposed by the committee and the limit that is proposed in my amendment 2 include, for example, a bus pass and hospitality at Ibrox stadium—which I think was overvalued by the member in their declaration. There was also a trip in a seaplane and attendance at a technology awards final in London, comprising the cost of flights and accommodation.

I mention that last example because the bill specifically excludes from gifts

"attendance at a conference or meeting".

Is attending an awards final the same as attendance at a meeting? I somehow doubt it. However, I would contend that it would equally merit exclusion from having to be registered in the register of interests of members.

My contention is that the declaration of the types of so-called gifts that I have mentioned does not enhance our public accountability one iota; it does not give the public any more confidence in our probity; it creates work for bureaucrats; it creates a frisson of interest among those who are insatiably curious; and it puts honest members in danger of inadvertently transgressing the rules. The balance has to be struck. My opinion is that it is better struck at 1 per cent of a member's salary than at 0.5 per cent.

I move amendment 2

Photo of Alex Fergusson Alex Fergusson Conservative

I entirely agree with what Alasdair Morgan has said. We have sometimes fallen into the trap of believing that, because we are different from Westminster—and rightly so—we should always be seen to be more rigorous, open and accessible than our Westminster colleagues, and that we should always give more attention to detail than they do. As Alasdair Morgan says, the figure is bound to be arbitrary. Under amendment 2, I think that it would come to £510, rounded down to the nearest £10. Nonetheless, I think that a figure of 1 per cent is not unreasonable. It allows us to be perfectly open about these things, while hiding—or rather, not having to register—a lot of the minute details to which Alasdair has referred.

I seek your guidance, Presiding Officer. In speaking to the previous group of amendments, I think that I should have referred members to my entry in the register of interests of members, as I am a sleeping partner in a farming partnership.

Photo of Murray Tosh Murray Tosh Conservative

You have done that now, and I am sure that that is sufficient.

Photo of Brian Adam Brian Adam Scottish National Party

I welcome this debate on amendments that were also considered at stage 2, on which the bill committee was divided. As I said then, it is important that members have the opportunity to explore the trigger levels that are set for the registration of gifts and sponsorship. The amendments in the name of Alasdair Morgan seek to raise the level from 0.5 per cent to 1 per cent of a member's salary. The bill makes provision for sponsorship to be a registrable interest.

The bill's definition of sponsorship is new. It has been drafted on the basis of the requirements of the members' interests order in the light of experience to date. The definition applies when a member is receiving, or has received, any financial or material support as a member

"from the same person on more than one occasion which, over a parliamentary session, amounts, in aggregate, to more than the specified limit", being 0.5 per cent of the member's salary.

The principal effect of the change to the definition is to remove the need to register volunteer assistance. Gifts that exceed 0.5 per cent of the member's salary on the date when they were received require to be registered if the prejudice test is to be met. The inclusion of the prejudice test is also new. It is designed to restrict the registration requirements to gifts that prejudice, or could give the appearance of prejudicing, the ability of the member to participate in a disinterested manner in any proceedings of the Parliament. Not all gifts will therefore require to be registered.

The committee considered whether and on what basis the current threshold of £258 for the registration of gifts should be reviewed. If Alasdair Morgan's amendments are accepted, the trigger level for registration of gifts or sponsorship would double to £516. In our consultation paper, we included a question on whether the thresholds should be set at 0.5 per cent or 1 per cent of an MSP's salary. Many respondents thought that all gifts should be registered, regardless of value, as they could have a prejudicial effect on members. However, we received only 23 responses.

The committee also noted that the House of Commons code of conduct sets a 1 per cent threshold, as Alasdair Morgan pointed out. On the other hand, the consultative steering group working party recommended the lower threshold of

0.5 per cent. In preparing the bill, we had to strike the right balance between placing an unreasonable administrative burden on members, to which Alasdair Morgan has referred, and transparency.

The Standards and Public Appointments Committee and I welcome the fact that the levels that trigger registration will be set following this debate. We are pleased that the Parliament is scrutinising these matters closely. When considering the proposed amendment, the majority of my committee supported leaving the threshold at 0.5 per cent of a member's salary—it will be interesting to see how many recant on that this afternoon. Having deliberated on the matter for a period of time, I would like it to be noted that at the most recent committee meeting, I declared that I intended to support Alasdair Morgan's amendment. I will do so as an individual this afternoon.

Photo of Christine May Christine May Labour 3:45 pm, 26th April 2006

My head tells me that Alasdair Morgan is quite correct, but my heart tells me that the lower limit still represents a significant amount of money in the eyes of the general public and the many out there who, quite rightly, take an interest in what we do on their behalf. For that reason, Mr Adam will be pleased to know that I intend to support the committee position, even though our convener is deserting us.

Photo of Alasdair Morgan Alasdair Morgan Scottish National Party

I have one point to make in response to Christine May. The specific reason why I raised the issue of a trip to London was that, because it is still the home of the imperial Parliament—we are working to change that—it is fairly reasonable for a member to have to go there to attend some kind of function and stay overnight, which would incur what is, under the bill, a gift in kind in excess of the 0.5 per cent limit that is being proposed. It is ridiculous, tedious, bureaucratic and unbelievable that every time we come back from one such trip, we have dutifully to tell the clerk to the Standards and Public Appointments Committee about it. Some months later, the clerk would tell us that the entry would have to come off the register again, because its time had expired. That is a nonsense. We have to cut down the entries in the register to the things that count and in which the public should be interested. We stand a much better chance of doing that if we have a 1 per cent threshold rather than a 0.5 per cent threshold.

Photo of Murray Tosh Murray Tosh Conservative

The question is, that amendment 2 be agreed to. Are we agreed?

Members:

No.

Photo of Murray Tosh Murray Tosh Conservative

The result of the division is: For 53, Against 22, Abstentions 2.

Amendment 2 agreed to.

Photo of Murray Tosh Murray Tosh Conservative

We come to group 4, on spouses, civil partners and cohabitants of MSPs. Amendment 12, in the name of Susan Deacon, is grouped with amendments 14 to 31.

Photo of Susan Deacon Susan Deacon Labour

I begin by finding common ground with Brian Adam and reiterating a theme that has run through much of the discussion on the bill in both the Standards and Public Appointments Committee and the Interests of Members of the Scottish Parliament Bill Committee. There are certain issues on which many of us have always thought that it was right that every member should reach a view and on which the Parliament should decide explicitly. The amendments in my name in this group address one such issue.

When I drafted the amendments, I did so to reflect concerns that were raised eloquently by a number of members in the stage 1 debate in December. I wanted to facilitate a debate on the issue in the bill committee. However, the more I have explored the issues, the more convinced I have become that it would be right for us to agree to the amendments today.

The number of amendments in this group is not proportionate to the complexity of the issues, which are relatively straightforward and relate to whether and to what extent we should enshrine in statute, backed by criminal sanctions, the need for a member to declare the financial interests of their spouse, civil partner or cohabitant—I hope that members will forgive me if I simply use the word "partner" during the rest of my contribution.

There are a number of reasons why we should consider agreeing to these amendments. First, as was said during the stage 1 debate, there is an issue about whether we can or should know the detail of our partners' financial interests. Secondly, there is an issue about why the bill singles out our partners. If the bill were passed unamended, the provisions that we are discussing would apply to gifts, heritable property and shares. If someone were to give a substantial gift to one of our children, that might influence us—or not, as the case may be—as much as if they had given it to our partner. A similar argument applies to property that our parents own or shares that our siblings have in a particular area. Indeed, if a member were determined to conceal some financial interest—although I hope that they would not—they could use many other relationships to do so.

There are more fundamental issues. As many colleagues said during the stage 1 debate, it is we who stand for elected office, not our partners. There is a question about whether their interests and financial affairs should have to be placed in the public domain. Alex Fergusson told us about a real case involving someone who thought twice about seeking election to the Scottish Parliament because their partner had said, "I am not prepared to go through that." My final point is one of principle. The approach that we have taken in this bill is the product of a bygone era when parliaments were predominantly made up of people of one gender, not another. The rules of our modern Parliament should reflect a world in which men and women are increasingly active in their own right—politically, financially, professionally and in many other ways.

If the amendments are agreed to, I am sure that many of us will continue to do what we already do and declare various interests relating to our partners and other significant people in our lives, either in the register of members' interests or during proceedings, if we judge that it is appropriate to put that information into the public domain. As I have said before, if we remove the provisions from the bill by supporting the amendments in the group, it would be appropriate to use the code of conduct to continue to encourage high standards of openness and transparency in this area. If we support the bill as it currently stands, our approach will be disproportionate, impractical and wrong in principle.

I move amendment 12.

Photo of Alex Fergusson Alex Fergusson Conservative

I congratulate Susan Deacon on lodging the amendments in the group and on the eloquence with which she presented them to the chamber.

Experience and hindsight are great things. As I think Tricia Marwick said in her contribution to the debate on an earlier grouping, most members arrived at the Parliament in 1999 with the intention of creating a Parliament that had the highest possible standards. We want to be seen as being open and accountable, above question and of high integrity.

As I said, experience is a great thing. It gives me no pleasure to say that, in this case, it tells me that each time that we have attempted to make ourselves more open, accessible and honest, we have simply handed more ammunition to those who seek to do us down. Those people will seek to do that whatever the shape of the bill that emerges this afternoon.

I am fascinated at how the debate has moved on since the stage 1 debate, during which two or three members suggested rather tentatively that the time might be right to reconsider the issue. Susan Deacon is to be hugely commended for what she has done. Donald Gorrie made a very good point in the debate, which was that his wife does not apprise him of her financial circumstances. Being the very sensible partner—or spouse or whatever else we want to call it—that he is, he does not press the issue. Why should he? However, if the amendments in the group are not agreed to today, Donald Gorrie might be put in a very difficult position.

On a previous occasion, I drew attention to the fact that, if my wife was to inherit some property, her response to my saying, "That is very nice, my dear. I am now off to see the Standards and Public Appointments Committee to register that," would be to say, "Over my dead body." On a bad day, that might be quite tempting, but I am delighted to say that we have more good days than bad days. I would be put in a very difficult position if I had to register that. As elected members, we have to take the heat. Who are we to say to our spouses or partners, "You must divulge information to us because we have to register it." It is time that we took the brave step—one that no member nor the Parliament would be any the worse for taking—of agreeing to the amendments in Susan Deacon's name.

Photo of Murray Tosh Murray Tosh Conservative

I must impose a three-minute limit on speeches. More members have now indicated that they want to speak on the group than was first expected.

Photo of Donald Gorrie Donald Gorrie Liberal Democrat

The last speaker stole most of my speech.

The argument that Susan Deacon advanced is a strong one. Why are partners and not parents, children, brothers, sisters or whoever being picked on? Many of us could be more influenced if someone were to provide a house for our elderly parents or something of that sort than we would by anything that our partners might do. It is ridiculous to pick on partners and ignore everyone else.

If our partner refuses to divulge their shareholding or whatever, are we supposed to compel them by putting them in an arm lock or threatening to send them to jail? If they say, "I am not telling you that," they are quite within their rights. For quite a number of years, husbands and wives have been taxed separately; previously, they were taxed together. Everyone has the right to privacy in their financial and tax arrangements. I seek clarification from those who oppose Susan Deacon's amendments of how they will compel recalcitrant spouses to divulge their affairs. Will it be a case of, "Ve have vays of making you tell us about your money"?

The whole provision is misconceived. We should not impose such duties on people merely because their partner happens to be foolish enough to stand for public office.

It was suggested to me that somebody could give a sports car to a member's partner, which might influence the member. I am sure that the press are competent enough to get hold of such an issue, which they could pursue if they wished.

It is much better not to make hundreds of rules and to make the system as simple as possible. We should have equality between the sexes and between partners and should not impose the downside of public life on our partners. Therefore, we should support Susan Deacon's amendments.

Photo of Murray Tosh Murray Tosh Conservative

Does anyone else think that they have pressed their request-to-speak button?

Photo of Murray Tosh Murray Tosh Conservative

She will need to come through here. I call John Home Robertson.

Photo of John Home Robertson John Home Robertson Labour

I thank Susan Deacon for lodging the amendments, which follow points that I and other members made in the stage 1 debate. There may have been a time in history—perhaps not long ago—when husbands had complete control of their spouse's finances; indeed, they had legal responsibility. However, those days are well and truly gone—thank goodness. As I said in the stage 1 debate, I have never seen my wife's bank statement. I do not see why we should pass legislation to give Jim Dyer or any journalist access to such information. To pass such legislation would be improper and I strongly support the amendments in Susan Deacon's name.

Photo of Brian Adam Brian Adam Scottish National Party

The amendments in Susan Deacon's name are similar to stage 2 amendments that she withdrew so that we could all accept the responsibility for making a key decision about members' interests.

It is important that we have the debate, but it is also important that the public have confidence in what we do. With great trepidation, I refer again to the debate that took place six years ago when the Parliament passed what became the Ethical Standards in Public Life etc (Scotland) Act 2000 to ensure that the highest standards are maintained in public life. The amendments are at odds with that and would leave the Parliament open to substantial criticism.

I will deal with the detail of the amendments in turn. Members do not have to vote for all the amendments. Current arrangements in the members' interests order include some relevant provisions. In its wisdom, the Standards and Public Appointments Committee decided to level them up to cover shares, heritable property and gifts rather than to level them down, as these amendments would do.

Amendment 12 would remove the requirement under paragraph 6 of the schedule for a member to register a gift received by their spouse, partner or cohabitant. Currently, any gift worth more than £250 that a member's spouse or cohabitant receives is to be registered. The bill will remove the ridiculous situation in which intra-family gifts needed to be registered; the prejudice test takes care of that, so nobody need be concerned about that.

We could do as Susan Deacon says, but that would leave members open to criticism. The Standards and Public Appointments Committee has found a legislative solution that should take account of the many and varied circumstances in which gifts are received, which the prejudice test will address. Under our proposals, only gifts that exceed the financial limit and meet the prejudice test will require registration.

Amendments 14 to 22 would remove the requirement for a member to register heritable property that is owned or held solely by their spouse or cohabitant. Some members had concerns about that. The financial test is that such property must be worth more than 50 per cent of a member's salary and the prejudice test must be met before the property is required to be registered. In other words, the holding must be over the limit and the member must believe that, after taking into account all the circumstances, the interest could reasonably be considered to prejudice, or to give the appearance of prejudicing, their ability to participate in proceedings disinterestedly.

The committee considered the detail of the provisions and decided to bring registration of heritable property into line with provisions on shareholdings and gifts. We are trying to maintain high standards of probity while trying to minimise the administrative burdens on members.

Amendments 23 to 31 would remove the requirement for a member to register an interest in shares that are held solely by their spouse, partner or cohabitant. Currently, under the members' interests order, members must register shareholdings that are held by their spouse or cohabitant where those holdings meet the financial threshold. I do not think that we can avoid the situation south of the border—I need only mention Tessa Jowell in that respect. If we go down the route that Susan Deacon wants us to go down, we will expose ourselves to similar accusations. As it stands, the bill is proportionate and will protect members' interests. I understand the concerns that members have expressed, especially in respect of the changing nature of family relationships, but I do not think that we have reached the point at which what our partners have and what they do have no influence over us, and I do not think that the public have reached that point either.

Photo of Trish Godman Trish Godman Labour

Mr Macintosh has one minute.

Photo of Alasdair Morgan Alasdair Morgan Scottish National Party

On a point of order, Presiding Officer. The amendments rather than the final debate on passing the motion form the meat of the debate. Therefore, would it be appropriate to extend the session on the amendments at the expense of the debate on the motion?

Photo of Trish Godman Trish Godman Labour

A motion to extend the debate must be moved. There is only half an hour for the debate on the motion to pass the bill, so we are pushing things anyway.

Photo of Margaret Curran Margaret Curran Labour

May I make a judgment and move a motion, Presiding Officer? I think that some members would be willing to shorten the final debate.

Photo of Trish Godman Trish Godman Labour

Okay.

Motion moved,

That, under Rule 9.8.5A, the time-limit for groups 4 to 6 be extended by 20 minutes.—[Ms Margaret Curran.]

Motion agreed to.

Photo of Trish Godman Trish Godman Labour

Mr Macintosh still has one minute. [ Laughter. ]

Photo of Kenneth Macintosh Kenneth Macintosh Labour

I will use up 10 seconds by stating for the Official Report that my button was pressed throughout the debate. I suspect that my machine told you that Marlyn Glen rather than I had pressed the request-to-speak button, Presiding Officer.

In the stage 1 debate, I said that I thought that a duty for our spouses to declare their gifts and properties was wrong in principle, and I have not changed my mind about that. We all know that we give up some of our right to privacy when we stand for public office and that we become public property. The public expect many things of us, including knowing a little bit about us, where we come from and our interests, and we put huge expectations and burdens on our partners and family members who support us in standing for public office. However, they do not make the same decision as we make. It is unfair for members to ask their partners to give up their right to privacy in addition to supporting their decision to stand for public office.

I whole-heartedly support amendment 12. Several members have said that the part of the bill in question is redolent of a bygone age of patrician and sexist attitudes in which a wife's property was regarded as part of a husband's property. Such attitudes are very old-fashioned. The part of the bill that we are discussing is not transparent. Having information about members' partners in the public domain does not aid the Parliament's transparency. Members rather than their partners need to be open to public scrutiny.

I support the amendments in the name of Susan Deacon.

Photo of Susan Deacon Susan Deacon Labour

I sincerely thank Brian Adam for his clarification on technical issues relating to the group of amendments. For the avoidance of colleagues' doubt, I will return to that. I also welcome the steps that the Standards and Public Appointments Committee took in drafting the bill to address the issue of intra-family gifts, to which Brian Adam referred. Over the years, many of us have joked that we would love our nearest and dearest to give us presents that are worth more than £250. On the odd occasion on which they might do so, it would be nonsense to have to register such presents. I commend the Standards and Public Appointments Committee for dealing with that matter.

I will briefly address a couple of the points that have been made. Brian Adam referred to one well-publicised case. There have been other such cases south of the border and, no doubt, elsewhere. Let us not confuse the role of and rules governing members, as distinct from ministers, and let us remember that there always will and should be ministerial codes, too. We should remember that we cannot legislate for or produce a set of rules to deal with everything, as was said earlier. Ultimately, the court of public opinion will reach judgments. We must live with that, and we have learned to do so.

I conclude by picking up on Brian Adam's point about public confidence and repeating some of the points that I and other members made earlier. By now, we ought really to have learned that we will not win the confidence or trust of the public by putting more and more detail into our rules and regulations or by creating more and more detailed administrative systems, however well intentioned those might be. We will do so by how we conduct ourselves individually, by what we do in the Parliament, by the difference that we make to people's lives and by being seen to respond effectively to their needs.

I have no idea how much the press or others externally are paying attention to this afternoon's debate, but if we are criticised either for our earlier decision on non-financial interests or for agreeing to the amendments in my name, I suggest that that will be a short-term presentational problem compared with the number of disputes that there will be further down the track if we attempt to overlegislate and to be overly prescriptive in this area or, as others have said, if we create situations in which members inadvertently forget or fail to register something that subsequently becomes a massive issue. Let us get the matter in perspective.

I have already moved amendment 12. In light of the comments that colleagues have made—I am grateful to them for their support—it is my intention to move all the remaining amendments in my name. Amendment 12 deals specifically with gifts. Amendments 14 to 22 deal with heritable property, and amendments 23 to 31 deal with shares. As Brian Adam indicated, it is open to members to choose to vote differently on each of the three elements. I hope that that clarification is helpful.

Photo of Trish Godman Trish Godman Labour

The question is, that amendment 12 be agreed to. Are we agreed?

Members:

No.

Photo of Trish Godman Trish Godman Labour

The result of the division is: For 61, Against 3, Abstentions 16.

Amendment 12 agreed to.

Photo of Trish Godman Trish Godman Labour

Margaret Curran's motion was to extend consideration of amendments by 20 minutes, so consideration of amendments must conclude by 16:45, leaving at least 15 minutes for debate on the motion to pass the bill. I have discretion to extend that period by postponing decision time until after 5 o'clock, but I will not do so unless that is the mood of the Parliament.

Amendment 3 moved—[Alasdair Morgan].

Photo of Trish Godman Trish Godman Labour 4:15 pm, 26th April 2006

The question is, that amendment 3 be agreed to. Are we agreed?

Members:

No.

Photo of Trish Godman Trish Godman Labour

The result of the division is: For 58, Against 17, Abstentions 2.

Amendment 3 agreed to.

Photo of Trish Godman Trish Godman Labour

Group 5 is on overseas visits. Amendment 13, in the name of Brian Adam, is the only amendment in the group.

Photo of Brian Adam Brian Adam Scottish National Party

Amendment 13 is reasonably self-explanatory and we do not need to have a great debate on it. We debated the matter at stage 2 when the relevant amendments were withdrawn. Although I am certain that amendment 13 will not satisfy everyone today, it is designed to relieve some of the burden on members by introducing the prejudice test to other matters.

In order to be clear about one of the practical effects for members that was discussed at some length at stage 2, I point out that under the present bill, hospitality is registrable if it involves provision of an overseas visit or falls under the provision concerning gifts. However, where a member pays for travel but no accommodation cost is incurred, because the member stays as a guest in a friend's or someone else's home outwith the UK, nothing is registrable.

I move amendment 13.

Photo of Bill Aitken Bill Aitken Conservative

The matter is straightforward. We agreed to amendment 2 from Alasdair Morgan in which he proposed to raise the pecuniary sum to £516, as I remember it, but we are now talking about amounts that could be considerable in certain circumstances. A weekend in Spain might not cost all that much, but a fortnight in Ocho Rios in the West Indies could be a considerable financial benefit to the individual concerned. It is probably appropriate that amendment 13 be agreed to.

Photo of Brian Adam Brian Adam Scottish National Party

I am delighted to have Mr Aitken's support—I think that I got it there—and I hope that I will have the support of the rest of the membership, which will be a record for this afternoon.

Photo of Trish Godman Trish Godman Labour

Can I assume that you intend to press amendment 13?

Photo of Trish Godman Trish Godman Labour

The question is, that amendment 14 be agreed to. Are we agreed?

Members:

No.

Photo of Trish Godman Trish Godman Labour

The result of the division is: For 64, Against 8, Abstentions 8.

Amendment 14 agreed to.

Photo of Susan Deacon Susan Deacon Labour

Before I move amendment 15, I clarify that amendments 15 to 22 are essentially consequential to amendment 14.

I move amendment 15.

Photo of Trish Godman Trish Godman Labour

The question is, that amendment 15 be agreed to. Are we agreed?

Members:

No.

Photo of Trish Godman Trish Godman Labour

The result of the division is: For 65, Against 6, Abstentions 7.

Amendment 15 agreed to.

Amendment 16 moved—[Susan Deacon].

Photo of Trish Godman Trish Godman Labour

The question is, that amendment 16 be agreed to. Are we agreed?

Members:

No.

Photo of Trish Godman Trish Godman Labour

The result of the division is: For 66, Against 6, Abstentions 7.

Amendment 16 agreed to.

Amendment 17 moved—[Susan Deacon].

Photo of Trish Godman Trish Godman Labour

The question is, that amendment 17 be agreed to. Are we agreed?

Members:

No.

Photo of Trish Godman Trish Godman Labour

The result of the division is: For 65, Against 5, Abstentions 7.

Amendment 17 agreed to.

Amendment 18 moved—[Susan Deacon].

Photo of Trish Godman Trish Godman Labour

The question is, that amendment 18 be agreed to. Are we agreed?

Members:

No.

Photo of Trish Godman Trish Godman Labour

The result of the division is: For 66, Against 6, Abstentions 7.

Amendment 18 agreed to.

Amendment 19 moved—[Susan Deacon].

Photo of Trish Godman Trish Godman Labour

The question is, that amendment 19 be agreed to. Are we agreed?

Members:

No.

Photo of Trish Godman Trish Godman Labour

The result of the division is: For 66, Against 6, Abstentions 7.

Amendment 19 agreed to.

Photo of Trish Godman Trish Godman Labour

Do members object to amendments 20 to 22 being moved en bloc and to a single question being put?

Members:

No.

Amendments 20 to 22 moved—[Susan Deacon].

Photo of Trish Godman Trish Godman Labour

The question is, that amendments 20 to 22 be agreed to. Are we agreed?

Members:

No.

Photo of Trish Godman Trish Godman Labour

The result of the division is: For 66, Against 6, Abstentions 7.

Amendments 20 to 22 agreed to.

Photo of Trish Godman Trish Godman Labour

Do members object to amendments 23 to 31 being moved en bloc and to a single question being put?

Members:

No.

Amendments 23 to 31 moved—[Susan Deacon].

Photo of Trish Godman Trish Godman Labour

The question is, that amendments 23 to 31 be agreed to. Are we agreed?

Members:

No.

Photo of Trish Godman Trish Godman Labour

The result of the division is: For 63, Against 9, Abstentions 5.

Amendments 23 to 31 agreed to.

Photo of Trish Godman Trish Godman Labour

We turn now to registrable financial interests and the power to modify the schedule. Amendment 32, in the name of Brian Adam, is in a group on its own.

Photo of Brian Adam Brian Adam Scottish National Party 4:30 pm, 26th April 2006

I wish to inform members of what a determination is, because I suspect that many members will not know. A determination is an affirmative statutory instrument that means that if we were to choose to change any of the items in the schedule, we could do so without going back to primary legislation. It is another form of subordinate legislation. The schedule to the bill defines the various financial interests that require to be registered.

Photo of Alasdair Morgan Alasdair Morgan Scottish National Party

I was interested to hear about the new procedure, because it opens up some interesting possibilities. Could Mr Adam expand on how one would introduce such a determination? What parliamentary procedures cover it?

Photo of Brian Adam Brian Adam Scottish National Party

It is wonderful to be working with Mr Morgan, who gives us challenging jobs. My resignation will be in tomorrow. No, not quite.

If members were concerned, they could approach the appropriate committee—almost certainly the Standards and Public Appointments Committee—to ask it to consider the matter and to decide whether a review would be appropriate. The mechanism would allow Parliament—it could be done by the Parliamentary Bureau through a motion before Parliament—to ask the appropriate committee—

Photo of Margaret Curran Margaret Curran Labour

This is a new procedure for Parliament and it seems that we have not been appropriately briefed on it. Given that we have a responsibility to ensure that our procedures are straightforward, I ask Brian Adam to present us with a briefing.

In principle, I do not want to stand in the way of what the bill is trying to achieve. It is a committee bill, so it would not be appropriate for the Executive to stand in its way. However, speaking as an MSP, I say that it is important that our procedures are consistent, work properly and are fully explained, although that is not always the case. I point out for the record that Executive bills would follow a different procedure. That is well established.

Photo of Brian Adam Brian Adam Scottish National Party

I thank the minister for that clarification. If it would be helpful, I will be happy to ask the clerks to the Standards and Public Appointments Committee to send to all MSPs the briefing that each member of the committee was given on the use of determinations.

Photo of Margaret Jamieson Margaret Jamieson Labour

I seek further clarification. My concern is that we are faced with making the choice this afternoon. The matter was not debated at stage 1, nor was it introduced at stage 2. What happened between stage 1 and today?

Photo of Brian Adam Brian Adam Scottish National Party

What happened between stage 1 and stage 2 and between stage 2 and today is that, as members engaged with the process, a number of issues were raised that highlighted the fact that it is very difficult for us to make changes to legislation. The determination is an appropriate vehicle that will allow Parliament to make changes without introducing primary legislation. An appropriate committee of Parliament would still have to consider the matter, through the usual processes, and every member would be entitled to attend. The committee would make a recommendation to the whole Parliament for it to debate, but primary legislation would not be required. The mechanism is another form of secondary legislation.

Photo of John Home Robertson John Home Robertson Labour

It sounds like an interesting device, reminiscent of a Sewel motion. Will it be called an Adam motion?

Photo of Brian Adam Brian Adam Scottish National Party

I did not catch the last question. Perhaps that is just as well.

If Parliament will allow me to proceed to outline the detail of the process, members might become more enlightened. The mechanism is not meant to undermine the role of Parliament but is, rather, intended to protect Parliament's time. So far, two standards committees have considered the issue. We were given responsibility to produce the bill and it has taken us seven years to get to this point. We should not leave as an inheritance to the next Parliament and the next standards committee a problem in that if we wish to revisit the matter we will have to do it through primary legislation. That might mean that it would hit the buffers, as in the first session of Parliament, because of the Executive's legislative programme. The determination mechanism allows proper parliamentary scrutiny through secondary legislation.

Photo of Jim Wallace Jim Wallace Liberal Democrat

I am grateful to Brian Adam for giving way. I hear what he says about the need not to use up Parliament's time. However, amendment 32 states:

"The Parliament may, by a determination, make any modifications of this schedule which the Parliament considers necessary or expedient."

I am sure that the Executive would just love to have such a provision in an Executive bill. Would Mr Adam support it if there were?

Photo of Brian Adam Brian Adam Scottish National Party

There is a major distinction between an Executive bill that gives powers to ministers to make decisions and a bill such as the one that is before us. Most bills grant powers to ministers to make decisions, which are usually reviewed through the subordinate legislation process. What amendment 32 proposes is the equivalent of that, but it would be a matter for all members of the Parliament. No one would be denied an opportunity to participate in such a debate. I certainly believe that the debate would be non-partisan, as this one has been, and that it would be an appropriate vehicle to protect Parliament's time and to allow an appropriate determination to be made.

Photo of Margaret Curran Margaret Curran Labour

On a point of order, Presiding Officer. I think that I might need a ruling from you. Margaret Jamieson said that what amendment 32 proposes was not raised during stage 2. I was not fully aware that that was the case and I think that it raises a serious constitutional issue, so I ask for your advice. The mood of Parliament seems to be that it does not wish to decide on what amendment 32 proposes at this time because it has not had proper information on it. Is it possible for us to postpone the decision on amendment 32, but to vote on other amendments?

Photo of Kenneth Macintosh Kenneth Macintosh Labour

On a point of order, Presiding Officer. I do not know whether my comments will be of benefit, but the matter was brought to the attention of, and was discussed by, the Subordinate Legislation Committee yesterday. The advice that we were given was that subordinate legislation cannot be laid by parliamentary committees. Jim Wallace referred to the legislative device that is open to the Executive of making subordinate legislation, but Parliament cannot follow that course. Such a legislative device is not available to a parliamentary committee or to an individual member of Parliament. It is available only to the Executive.

The choice that faces anybody who wishes to make any changes to the eventual act would be whether to lodge another bill. The Subordinate Legislation Committee was told that the only way to get round that—I hope that Brian Adam will correct me if I am wrong—is to make a determination. My understanding is that a determination is effectively an opportunity for Parliament to vote on and decide a matter by majority. Therefore, a determination would work like an affirmative instrument. It would be moved by a parliamentary committee and Parliament would have to approve it by a vote.

My understanding is that the determination device was created because it is not open to Parliament to use the device that is open to the Executive. I hope that that is helpful.

Photo of Trish Godman Trish Godman Labour

My advice is that amendment 32 is an admissible amendment, so Parliament can vote for or against it. That is up to Parliament, and it is up to Mr Adam, if he wishes, not to move amendment 32.

Photo of Dennis Canavan Dennis Canavan Independent

On a point of order, Presiding Officer. Can you tell us whether there is an acceptable definition of a "determination"?

Photo of Trish Godman Trish Godman Labour

That is a matter of legal interpretation. Parliament will be asked whether it supports amendment 32. It is also up to Brian Adam to decide whether to move the amendment, so it is a matter for Parliament.

Photo of Brian Adam Brian Adam Scottish National Party

Thank you, Presiding Officer. I do not believe that I can offer any further elucidation of the matter. I am grateful to my colleagues for wishing to pursue the matter, but if I am given the opportunity to present my case, perhaps we can make a little progress.

The schedule to the bill lists all the things that are required to be registered. If we wish to vary that list, the current option—as Ken Macintosh rightly pointed out—is to go back to primary legislation, unless we were to use the route that amendment 32 proposes, which is another form of subordinate legislation and is the only non-Executive route to deliver subordinate legislation. Amendment 32's proposal that there could be a determination made is meant to be helpful. It was not specifically mentioned during stage 2, but the amendment was lodged to address deficiencies in how we would be able deal with a change of mind in the light of experience. Amendment 32 proposes an appropriate legislative route.

I move amendment 32.

Photo of Alex Fergusson Alex Fergusson Conservative

I think I am about to become one of a growing list of members—I am not so much changing my mind, but I am guilty of not picking up the consequences of the proposal when it went through the Standards and Public Appointments Committee. I have to say that I have grave reservations about the opening sentence on this subject in the Scottish Parliament information centre's briefing on the bill as amended at stage 2, which states:

"A determination is a legally binding form of subordinate legislation that is not subject to the usual types of Parliamentary procedure".

Parliament's time has been extraordinarily well used in this afternoon's debate on standards. It has been a mature and grown-up debate, from which the bill is emerging much stronger. If we go down the route of bringing in a determination—thereby bringing in change if not by the back door then by a short cut—we will do away with the opportunity for mature and extended debate on matters that have proved to be of great importance to all members. I have grave reservations about the determination procedure.

Photo of Trish Godman Trish Godman Labour

A considerable number of back benchers wish to speak on the matter. I can extend the debate by 10 minutes if any member is minded to move such a motion.

Motion moved,

That, under Rule 9.8.5A, the time-limit for groups 4 to 6 be extended by a further 10 minutes.—[Ms Margaret Curran.]

Motion agreed to.

Photo of Iain Smith Iain Smith Liberal Democrat

I will be extremely brief, Presiding Officer. I simply want to know whether the determination system is covered in the Scotland Act 1998 or the Parliament's standing orders. I am not aware of the procedure or how it would operate.

Photo of Brian Adam Brian Adam Scottish National Party

May I help the member? It is not a new procedure. In fact, Parliament agreed to the use of similar powers in the Scottish Parliamentary Standards Commissioner Act 2002, which contains a number of powers to amend by determination.

Photo of Iain Smith Iain Smith Liberal Democrat

I am not sure that that answered my question, which was whether there is anything in standing orders or the Scotland Act 1998 that states how the procedure would operate. I am not aware that there is, and I am reluctant to agree to give powers without knowing how they would be operated.

Photo of Alasdair Morgan Alasdair Morgan Scottish National Party

The power that Brian Adam proposes is something that we should have in the bill. As with any other bill, where there is detail, there is often a desire to go back and amend that detail without having to use primary legislation.

The question is whether we should agree to include the power in the bill, given that it seems to have come as a surprise to most members, despite such powers being in the other bill that Brian Adam mentioned. I was about to ask the same questions as the member for North East Fife. The word "determination" does not appear in the Scotland Act 1998 and, as far as I know, it does not appear in standing orders. I presume that, because we have never used a determination before, the Procedures Committee has not come up with any procedures on how to use it. It is a bit strange to create the rule first and to consider later how to deal with it.

The Interests of Members of the Scottish Parliament Bill is a committee bill, but when it is passed and becomes an act, it will simply be an act. The memory of how the bill came about—whether it came from the Executive, a member or a committee—will be lost. It will simply be an act of Parliament. I therefore wonder why it is so different.

Photo of Mike Rumbles Mike Rumbles Liberal Democrat

Earlier, I tried to intervene on Brian Adam to ask him about determinations. I am concerned about what will happen as a result of this afternoon's debate and the amendments that we have not passed which were lodged by the Standards and Public Appointments Committee. They were rejected by the bill committee, which did not consider the matter, and they were rejected by members this afternoon—[ Interruption. ] I apologise for my phone ringing. If it is left to the committee to produce a determination at a future date, what will be the system? Will the committee decide on the determination, with Parliament just saying yes or no? That is the problem.

Photo of Pauline McNeill Pauline McNeill Labour

The procedure may or may not be a useful one—we are not sure. I am not clear whether the Executive has an equivalent power to amend legislation that began as a committee bill. That is my worry. Perhaps the Procedures Committee needs to consider the matter, because I would like us to be clear about it. Does the member agree?

Photo of Mike Rumbles Mike Rumbles Liberal Democrat

I do.

To avoid another division, I wonder whether Brian Adam would consider seeking to withdraw amendment 32.

Photo of Linda Fabiani Linda Fabiani Scottish National Party

It will be up to Brian Adam to decide whether to withdraw amendment 32 when he winds up. He is the convener of the Standards and Public Appointments Committee and he has already told Parliament that such a procedure exists in the Scottish Parliamentary Standards Commissioner Act 2002. It is important to accept that the proposed procedure is not brand new and is not being sprung on Parliament for the first time.

Some members have used phrases such as "in the light of experience" and "with hindsight" when arguing that certain procedures have not worked properly. If we accept that that position is valid, we must accept that it is valid to argue that there may be a time when Parliament feels that provisions in the schedule need to be revisited.

Amendment 32 refers only to modifications of the schedule. It says:

"The Parliament may, by a determination, make any modifications".

It does not say that one or two individuals, or only a committee, may do so, but that Parliament may do so. That suggests to me that the procedure would be similar to the one that has been used today. A committee may well make recommendations, but Parliament would have to decide whether to agree to a determination.

Photo of Alex Fergusson Alex Fergusson Conservative

Does the member accept that that process would not allow for the level of consultation and debate that we have been able to have during today's proceedings?

Photo of Linda Fabiani Linda Fabiani Scottish National Party

I will be very honest and admit that I do not know whether that would be the case. It would be up to Parliament to decide how to proceed—members would tell the parliamentary committee concerned how they wanted things to be done. That would be part of the debate.

Photo of Murray Tosh Murray Tosh Conservative

On a point of order, Presiding Officer. In the light of what the Minister for Parliamentary Business said, it would be helpful if you could spell out for Parliament the options that exist under rule 9.8.5C and 9.8.6 for the issue to be reconsidered, given that there is such uncertainty about the precise nature of what is proposed in amendment 32.

Photo of Murray Tosh Murray Tosh Conservative

The member is correct to clarify that the member in charge of the bill has those options, if he wishes to use them.

Photo of Alex Fergusson Alex Fergusson Conservative

On a point of order, Presiding Officer. Are you able to read out to us what those options are?

Photo of Murray Tosh Murray Tosh Conservative

I am about to do that, but I will suspend the meeting for two minutes, so that I can get them absolutely correct. They are slightly confusing.

Meeting suspended.

On resuming—

Photo of Murray Tosh Murray Tosh Conservative 4:59 pm, 26th April 2006

I intend to answer Mr Tosh's point of order, then I will continue the debate on amendment 32 with Mr Wallace, Mr Macintosh and Mr Adam's closing speech.

When the last amendment has been disposed of and before we begin the debate on the motion to pass the bill, the member in charge may propose to defer the remaining stage 3 procedures to a later date. If we agree that—or if the member in charge agrees that—the member in charge may, at those later proceedings, move amendments to clarify uncertainties and to give effect to commitments that were given at stage 3. In other words, we can stop, clarification can be given and amendments can be dealt with at later proceedings. That means that we would not have the debate on all the amendments; we would come back to that at a later date.

To finish this group, I call Jim Wallace, to be followed by Ken Macintosh. If necessary, I will use my discretion to move decision time.

Photo of Jim Wallace Jim Wallace Liberal Democrat 5:00 pm, 26th April 2006

Like Alex Fergusson, I was alarmed to read the SPICe briefing that said:

"A determination is a legally binding form of subordinate legislation that is not subject to the usual types of Parliamentary procedure for subordinate instruments."

Ken Macintosh helpfully pointed out that neither the Parliament nor its committees can make Scottish statutory instruments in the same way as the Executive.

Determinations are provided for under the bill. Section 1(3) has a determination, which refers to

"any other matter which the Parliament may determine should be included".

Section 4(1) says:

"A written statement shall be in such form as the Parliament may determine."

Section 4(2) says:

"A written statement shall contain such information about the interest or relating to it as the Parliament may determine."

Section 11(1) says:

"The Clerk shall publish the register at such intervals and in such manner as the Parliament may determine."

The whole of subsection (3) of the "Short title and commencement" section, section 21, is about the fact that the bill, if passed, will

"come into force on the day after Royal Assent ... for the purpose of enabling the Parliament to make determinations".

Determinations are very much a feature of the bill. A lot of us are uncomfortable about that, as we are not quite sure what the parliamentary process is for making such determinations, and about there not being the same safeguards in place as would be there for subordinate legislation in the ordinary course of events.

It would therefore be helpful if Mr Adam were to take advantage of the standing orders that have been referred to, so that we could get a better understanding of what would be involved. I take the point that, if we do not agree to amendment 32, primary legislation would be required to change the schedule. Members will want to be comfortable and reassured that, in making any such determination, the procedures are robust. In the intervening time, perhaps the Procedures Committee could indicate to the Parliament whether it will examine, as a matter of priority, the procedures that will be used for the Parliament to make determinations under the bill.

Photo of Murray Tosh Murray Tosh Conservative

We must finish the amendments by 17:07.

Photo of Kenneth Macintosh Kenneth Macintosh Labour

I echo Jim Wallace's points. Clearly, members are faced with a degree of uncertainty, but I do not think that there is anything whatever to be alarmed about. In fact, it would be very unusual to pass a bill, including the elements that are contained in its schedule, without giving the Parliament a subordinate legislative procedure to amend those elements of the schedule. There is a schedule to the bill in order that the things that are in it will not necessarily be subject to primary legislation, but may still be subject to change. We do not want to pursue a primary legislative vehicle every time we wish to change one small item in the schedule. For that reason, we should not be at all scared. However, there is still a degree of alarm, concern or anxiety about the matter. I am sure that Mr Adam will take those points on board.

Photo of Brian Adam Brian Adam Scottish National Party

I am grateful for your guidance today, Presiding Officer. I am also grateful that members have engaged with the process so vigorously. It is clear that some questions in members' minds are as yet unresolved. I echo the sentiments that were expressed by Mr Wallace that, throughout the bill, which has already been agreed to, there are a series of determinations. We have agreed them; they have been dealt with.

As far as the Scottish Parliamentary Standards Commissioner Act 2002 is concerned, determinations are in place. The difference is that, unlike in the Interests of Members of the Scottish Parliament Bill, the determinations in the 2002 act are to be made by the Presiding Officer. In the case of the Interests of Members of the Scottish Parliament Bill, that would be done by the Parliament. I accept that, in some members' minds, the question of how the Parliament would make such a determination is not yet clear. For that reason, I do not wish to press the amendment.

Photo of Margaret Jamieson Margaret Jamieson Labour

On a point of order, Presiding Officer. I apologise. Given that the member is not pressing amendment 32 and is taking the guidance, will you guide members on the process that will follow? There has been discussion about what will happen with the Procedures Committee. Will the bill committee be reconvened to discuss the amendment? We have to get this sorted out.

Photo of Murray Tosh Murray Tosh Conservative

In a sense, I have already answered that. It is up to the member in charge of the bill how he progresses. Once we have dealt with amendment 33, I will ask the member to move a motion without notice. When I do so, you will understand the clarification.

Because amendment 32 is the property of the Parliament, I have to ask whether members are content for it to be withdrawn.

Amendment 32, by agreement, withdrawn.