The next item of business is consideration of motion S4M-07629, in the name of Linda Fabiani, on an amendment to the Scottish Parliament salaries scheme. I call Linda Fabiani to speak to and move the motion on behalf of the Scottish Parliamentary Corporate Body. Ms Fabiani, you have about seven minutes.

I rise to speak to the motion, which sets out an amendment to the Scottish Parliament salaries scheme.

Recent events have highlighted concerns about how, in circumstances in which an MSP has been convicted of an offence, he or she is treated both by the Scotland Act 1998 and under the rules governing this Parliament. Questions have been asked as to whether a member who is serving a prison sentence should receive their full salary.

Recommendations on what provision the Parliament should make for the payment of salaries to members of the Parliament and members of the Scottish Government is a matter for the SPCB and I move this motion on behalf of all my colleagues on the corporate body. Having considered this matter carefully, we are in unanimous agreement that the salaries scheme should properly reflect the reciprocal relationship between salary and the performance of functions.

We recognise that a number of factors could prevent a member from being in a position to perform their parliamentary functions. After looking at the range of circumstances in which that might occur, we consider that the Parliament should be invited to agree a mechanism whereby any member who is sent to prison by the courts should have his or her salary reduced to reflect the fact that any member in such a position would not be able to fulfil the full range of their parliamentary duties. I will explain the reasoning for this position in more detail shortly.

First, though, I stress that this is not a punitive measure. Questions of punishment are strictly for due legal process and the courts to decide and are not a matter for us. However, all of us on the corporate body believe that once the courts have exercised their role the salaries scheme should reflect the impact of any sentence on the performance of a member’s parliamentary functions. In considering this motion, the Parliament will be given the opportunity to arrive at its own view on the matter.

Last week, members received a letter from the Presiding Officer, explaining the corporate body’s decision on a salary reduction. It might be helpful to add that our initial consideration of advice from officials looked at the Parliament’s powers in respect of the disqualification of a member and of recall. I therefore assure members that we have considered those issues. There are complexities with regard to legislative competence and policy that will require careful consideration and the Parliament might wish to look again at such issues in the future. We also looked in detail at the “Code of Conduct for Members of the Scottish Parliament” and it is clear that, as the code presently stands, it covers only members’ parliamentary duties and specifically does not extend to a member’s private and family life.

In the light of that analysis, the Presiding Officer instructed officials to examine the issue of payment of salary to a member who is serving a prison sentence and to bring forward advice to the corporate body. We met as a corporate body last Thursday morning to consider that advice and, having looked carefully at the matter, we reached a unanimous conclusion that any serving member who is unable to carry out the full range of an elected representative’s functions as a result of serving a prison sentence should not receive a full salary provision. We were also advised that modifications could be made by resolution of the Parliament under section 81(1), as read with section 83(5), of the Scotland Act 1998 to give effect to that policy. It is under those provisions that we have lodged the motion to which I am speaking today.

I again stress that the modifications set out in the motion do not seek to encroach upon the role of the courts. Our approach should in no way be interpreted as a punishment—that is for the courts. We have been mindful of the legal advice that we have received, namely that our decision should be underpinned by the following principles: first, that the provision made should respect the principle that salary is payable in return for the performance of parliamentary and other public functions; secondly, that the provision must not be motivated by punishment, retribution or censure; and thirdly, that the provision should be proportionate, of general application and consistent across the scheme in its treatment of members, office-holders and members of the Scottish Government who receive a salary supplement.

In agreeing with those principles, we then had to consider the scope of the modification and the amount of any reduction proposed, taking account of the availability of a member to perform his or her parliamentary duties while in prison.

I turn first to scope. We agreed that any action we were proposing should not reduce the salary of any member who could not fulfil their parliamentary role for reasons outside their control. I stress, therefore, that when members are unwell or require compassionate leave of absence, or when something such as adverse weather conditions impacts on their role, they will not be affected by this proposal. In our view, that would be a proportionate approach and it is important that we place that on the record.

We have taken the view that the proposed reduction should cover any member of the Parliament who has been sent to prison by the courts. That would include anyone who has been imprisoned for a criminal offence, who has been committed to civil imprisonment or who has been imprisoned for contempt of court. It also includes a member who is on remand, as they would similarly be unavailable to undertake the full range of duties.

It is also important to make it clear that the modification will not affect members’ staff, who should be entitled to be paid, as we would expect that a member’s office would remain open for the duration that a member is in prison. This provision concerns solely the Parliament salaries scheme, which does not cover staff.

I turn to the proposed reduction in salary. In looking at the range of duties to be undertaken, we have based our decision on the definition of “parliamentary duties” that was previously agreed by the Parliament and that forms part of the reimbursement of members’ expenses scheme. The definition has the support of the Parliament and has stood the test of time. It is, therefore, a definition that we consider can be relied upon to determine broadly the range of key duties of members.

It was evident that a considerable amount of a member’s duties relate to attending meetings of the Parliament and its committees. There is also a key representative function requiring the ability personally to be present and to pursue matters on behalf of constituents.

Prisoners’ ability to communicate with the outside world is severely restricted. We therefore consider that that has to impact considerably on any role for an imprisoned member.

Will the member take an intervention?

No, I am sorry but I do not have time. I must get on.

We also recognise that there is limited confidentiality available for any prisoner dealing with the range of parliamentary and representative issues.

We have, however, recognised that there is a possibility that, despite the restrictions that would apply, a member, through limited personal contact with his or her office, could direct motions or parliamentary questions to be lodged. Some limited constituency correspondence might also be undertaken, but all of that would be subject to the regulations of the prison and, of course, subject to data protection requirements.

Therefore, based on our assessment, we propose that a member’s salary be reduced by 90 per cent for the duration of the term of imprisonment. To be clear, this restriction would apply to any person entitled to a salary under the scheme—members, office-holders and members of the Scottish Government. Again, we consider the reduction to be proportionate to the availability of a member to carry out his or her parliamentary role in the circumstances.

In moving the motion, the SPCB recognises that there may be some consequential impact on pensions. As I am sure all members appreciate, pensions are a highly complex area. Our intention is that any change to the salary provision should have a similarly balanced and proportionate impact on pensions. We have, therefore, asked officials, should the motion be passed by the Parliament, to consider this further, involving the pension trustees, and to bring proposals to us in due course. If such a change is required to the pension rules, we will, of course, as we are required to do, consult with all members of the scheme affected by the proposal.

We also believe that, in considering the issue, we have acted with due regard to the principles of fairness and proportionality. I emphasise to members once more that the motion before the Parliament is founded on our view that the salaries scheme should reflect the fact that any member in prison would not be able to fulfil the full range of their parliamentary duties.

I invite members to support the motion, and I move,

That the Parliament, in exercise of the powers conferred by sections 81(1), 81(5)(b) and 83(5) of the Scotland Act 1998, determines that with effect from the day after the date of this resolution the Scottish Parliament Salaries Scheme approved by resolution of the Parliament on 21 March 2002 is amended as follows:

(a) after paragraph 7 insert-

8. (1) For any period during which a member of the Parliament is imprisoned, the salary payable to that member by virtue of paragraph 2(1) shall be reduced by 90%.

(2) For any period during which a member of the Parliament holding the office of Presiding Officer or Deputy Presiding Officer is imprisoned, the salary payable by virtue of paragraph 3(1) shall be reduced by 90%.

(3) For any period during which the holder of an office to whom a salary is payable by virtue of paragraph 4(1) is imprisoned, that salary shall be reduced by 90%.”;

(b) in paragraph 2(1), after “sub-paragraph (2)” insert “and paragraph 8”; and

(c) at the beginning of paragraphs 3(1) and 4(1) insert “Subject to paragraph 8,”.

The Presiding Officer:

Two members have asked to speak—Patrick Harvie and Christine Grahame. I can give you two minutes each.

When the other approaches that Linda Fabiani mentioned—namely, disqualification and recall—were considered, it was clear that there were technical barriers to achieving them, either in relation to devolved competence or retrospection, so when the alternative that we are considering was first suggested, I welcomed it, in the light of the urgency that was then thought to exist. That urgency no longer exists. In addition, I have very little doubt that if those technical barriers had not existed, the Parliament would have chosen to pursue disqualification or recall as a far preferable way of dealing with the situation.

As well as a lack of urgency, we now have a letter from the Secretary of State for Scotland in which he says that he has commissioned advice that will

“look at potential options for dealing with the situation where serving MSPs are convicted of serious offences, but do not meet the tests already set out”.

I am in no doubt that every member of this Parliament would agree that when serious offences are committed there should be a serious consequence. My concern is that if we agree to what is proposed without proper thought, without proper scrutiny and without looking at the alternatives that now exist, we will open up the possibility that, in future, a member who commits serious offences will be given a trivial response that is not adequate—

Will Patrick Harvie give way?

I am afraid that, as I have only two minutes, I do not have time.

I am concerned that a member might be given a response that would not give effect to the general will that they should not be able to continue in their job after committing serious offences.

I ask the Parliament to slow down and to ensure that we can have the approach that we would have chosen in the first place, had that been possible, rather than a second-best solution.

Given the amount of time that is available to me, I will truncate my remarks.

This is not the way to do it. I fully appreciate why the corporate body felt it necessary to bring forward its proposal. However, we should all be allergic to on-the-hoof legislation, as it tends to assist not justice, but the law of unintended consequences. On very rare occasions, when there is urgency, it may be unavoidable, but such urgency has now gone—I concur with Patrick on that.

Let us look at the motion that is before us. It says that for

“any period during which a member of the Parliament is imprisoned” the deduction of 90 per cent of their salary is mandatory. No discretion is provided as to the nature of the conviction or the length of the conviction—it might be one month or one week. In addition, I heard the word “remand” used. Being on remand can involve innocence—many people on remand are innocent. What happened to innocent until proven guilty?

No discretion is provided in relation to whether a 90 per cent deduction is suitable in all circumstances. Does that mean that MSPs can do 10 per cent of their work behind bars? Is availability for work the test? The corporate body kept talking about “performance of functions”. Someone who is seriously ill cannot perform their functions. I would not want that test to apply in those circumstances. If that is the test, it should not be applied only in the circumstances that we are discussing.

What principles are being applied? Should it be possible to exercise discretion in relation to the penalties that are imposed? Even sheriffs exercise discretion. My contention is that the Parliament should not agree to the proposal without considered examination, let alone proper debate—Patrick Harvie and I have had four minutes to respond—but should remit it to the Standards, Procedures and Public Appointments Committee or an ad hoc committee to consider principles and process. We might arrive at the same amendment to the scheme—so be it—but it will have been properly considered.

Let us not agree to the motion simply to be seen to do something or to appease certain segments of the media. I know that members across the chamber are being whipped. What is proposed is just wrong. I am breaking the whip, and I am asking members who share my unease to break the whip. If they cannot vote against the motion, I ask them to abstain. Let us do this properly—we have time to do it properly.

The Presiding Officer:

I call Mary Scanlon to wind up the debate.

As my SPCB colleague Linda Fabiani has said, the motion that is being considered represents the unanimous view of all of us on the corporate body.

There is a reputational issue for the Parliament, and we consider that in acting in the way that we have, by inviting the Parliament to consider a reduction in a member’s salary for the reasons that my colleague Linda Fabiani outlined, we have acted in what we consider to be the best interests of the Parliament.

I fully understand that some people may think that we have acted hastily on the matter, but I assure members that we have considered all the relevant issues and taken all the appropriate legal advice, and that we have not decided lightly to bring the motion before the Parliament.

I know from the media coverage over the weekend that there are moves, as Christine Grahame mentioned, towards discussions with the United Kingdom Government around issues to do with disqualification. That is an area where further dialogue might well be very useful, but it is a longer-term issue. The central principle of the motion is that if a member is imprisoned, they should not be entitled to a substantial part of their salary. That does not pre-empt or compromise any future consideration of measures that could disqualify members. I thank members for raising issues on that.

I stress that what we propose is not a punitive measure on members. That aspect is solely a matter for the courts. This amendment operates only during the period that a member is detained in prison for whatever reason and is not available to perform his or her parliamentary role. We are not looking at anyone who cannot attend proceedings because of illness or some other reason over which they have no control, such as long-term travel disruption.

Both Linda Fabiani and Mary Scanlon have said that a member would not be deducted 90 per cent of their salary for not performing their role if it was through no fault of their own. If a member was on remand and subsequently found not guilty, it would be through no fault of their own that they were in prison. Why should they lose 90 per cent of their salary?

That is a very good point. I appreciate that it probably requires further explanation, and I am about to cover it.

I understand, as Christine Grahame suggested, that not everyone who is in prison will have committed a serious criminal offence and, indeed, that it might be considered that some people were in prison because of a matter of conscience. It is for the courts to distinguish whether imprisonment is merited in an individual case, based on the criteria that they apply. It is not for the Parliament to distinguish the treatment of individual cases on the basis of the conduct giving rise to the sentence imposed or the motivation for that conduct. The principle would remain that persons who have been imprisoned by the courts would be unavailable to undertake the full range of parliamentary duties, and therefore it is our view that their salary should be reduced accordingly.

I also understand the point that Stewart Maxwell rightly raised that there may be unease about the position of anyone in custody on remand, given the presumption of innocence. Whether an individual should be detained on remand is again a matter for the courts. What is a matter for this Parliament is how the salaries scheme should treat the resulting impact on the ability of any member held on remand to perform his or her parliamentary functions. That gives rise to exactly the same issue that applies to persons in prison following conviction. Having considered this carefully, our inescapable conclusion is that the same principle that is core to the issue applies; accordingly, in our view, the salaries scheme should treat those circumstances in the same manner.

I sincerely hope that members consider our proposal to be appropriate and proportionate and that they support the motion.

The Presiding Officer:

Thank you, Mrs Scanlon.