Code of Conduct for MSPs - Volume 2, Section 1: Registration of Interests

1.1: Introduction

1.1.1 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 with effect from 4 April 2007. Section 1 of the Act provides for a Register of Interests of Members of the Scottish Parliament (“the Register”) in which information about certain financial interests of members must be registered. 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. The Act, its schedule, together with its explanatory notes and determinations made under it, are attached in Volume 4 to this Code. Where appropriate, this Section of the Code will direct the reader to the relevant determination or provision of the Act.

1.1.2 The schedule to the Act sets out the circumstances in which financial interests must be registered. In the Code and in the Act these interests are referred to as ‘registrable interests’ and there are five categories of interests. These registrable interests are described in detail in Section 2 of the Code. Penalties and criminal sanctions apply in the event of non-compliance with the requirements for registration. 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. However, it is the responsibility of each member to ensure that the provisions of the Act are complied with and members may additionally wish to seek independent legal and other professional advice prior to registration.

1.1.3 Some of the detail required for registration and declaration is contained in determinations made by the Parliament. Determinations are a type of subordinate legislation (the power to make the determination is contained in primary legislation) and are legally binding. The Parliament may modify the schedule to the Act by resolution and the rule governing the making of a resolution is set out in the Standing Orders of the Parliament.

1.1.4 The schedule to the Act and the determination on form and content of written statements were amended, by resolution of Parliament, at the end of session 3 (20 January 2011), including reducing the number of categories of registrable interest from eight to five.

1.2: Registration of interests

Access to the Register

1.2.1 Section 11 of the Act makes provision for publication and access to the Register. The Register, along with old entries, is kept for public inspection in the office of the Standards clerks with a further copy at the main visitor information desk in the Parliament. The Register and the copy register are available at such times as the office and information desk are open and copies of individual entries may be provided on request.

1.2.2 The Register must contain an entry for each member (as provided for in section 1 of the Act) and may be kept in any form. Currently, it is printed and kept in the form of a loose-leaf folder with an up to date entry for each member. Where any entry has been changed in the preceding five year period, the original entry and any intervening amended entry (the old entries) are also kept for public inspection purposes along with the current Register.

1.2.3 The Interests of Members of the Scottish Parliament Act 2006 (Publication of Register of Interests) Determination 2007 provides for the Register to be published on the Internet by displaying an electronic version of the information in respect of each member’s entry on that member’s page on the Parliament’s website. The information is regularly updated to correspond with the hard copy of the Register itself.

1.2.4 The time limits for all types of registration are set out in the following paragraphs. It should be noted that these are the maximum time limits that apply. For example, a member has up to 30 days to submit a statement of interests for initial registration and the Standards clerks have a further 30 days to register these interests. However, members should take steps to register their interests as quickly as possible to ensure that all relevant interests which should be in the public domain appear in the Register timeously. The web pages are also regularly updated and will be changed as soon as practically possible after any change to an entry in the Register.

1.2.5 It should also be noted that the Register only applies to the current session of the Parliament. On dissolution all entries are deleted (as provided for in section 9(5) of the Act) and at the beginning of each new session a new Register is set up for both new and returning members. Entries are also deleted where a member ceases to be a member by virtue of death or resignation. Nevertheless, there is an obligation to keep all old entries for a period of five years after amendment or deletion (section 10). These are kept and made available for public inspection with the current Register as indicated above.

Initial registration of interests

1.2.6 Members must register interests by lodging written statements with the Standards clerks. The Interests of Members of the Scottish Parliament Act 2006 (Form and Content of Written Statement) Determination 2010 sets out the form of the statement that must be used. Members must register all registrable financial interests held by them on the date they were returned or which they have acquired since that date by completing such a statement (section 3 of the Act). 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. A member must decide whether any interest meets that test. An interest meets the test if, taking into account all the circumstances, the interest would reasonably be considered to prejudice, or reasonably be considered to appear to prejudice, the ability of the member to participate in a disinterested manner in any Parliamentary proceedings.

1.2.7 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

1.2.8 The written statement contains guidance to assist completion and copies are available from the Standards clerks. 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”). Section 18 of the Act sets out special arrangements applying to the Lord Advocate and Solicitor General for Scotland who, in terms of section 39(8)(b) of the Scotland Act, are included as members for the purposes of the Register and who are also required to submit written statements of their registrable interests.

1.2.9 The written statement sets out the information that must be provided in relation to each type of interest. It is also designed to allow a member to include additional information (where that person wishes to do so) in relation to any interest. Members may wish to consult the Standards clerks in relation to the additional information that they wish to add. If the member has no registrable interests, the Act provides that a written declaration must be lodged with the Standards clerks to that effect (section 3(1) and (3) of the Act).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. Members should sign and date the statement and submit the completed form to the Standards clerks who will accept it as a written declaration. The Standards clerks can provide further assistance and guidance on this matter if required.

1.2.10 Within 30 days of a written statement being lodged with the Standards clerks, the information in the statement and the date it was lodged are entered in the member’s entry in the Register and a copy of the entry is sent to the member. Where a member has made a declaration that no interest is held, the entry in the Register relating to the relevant member will record that fact along with the lodging date of the declaration.

Registration of interests acquired after date that the member is returned

1.2.11 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 after the date of acquisition (section 5 of the Act). 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.

1.2.12 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 thresholds. Such interests should be treated as new interests that have been acquired.

Late Registration

1.2.13 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 the member becoming aware that registration was required. Once again, the member does this by filling in the required information relating to the overlooked interest in a written statement in the same form as provided for initial registration and lodging that form with the Standards clerks. It should be noted that the obligation to register such an interest persists even where the member has subsequently disposed of the interest.

1.2.14 Members should be aware of the need to rectify omissions as quickly as possible and should contact the Standards clerks immediately 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. Members must at all times be conscious of the need to register any new interest and those that did not initially require registration but which may have changed in character, in terms of the prejudice test or because of an increase in value. While any oversight could possibly result in a prosecution, members are encouraged to act rapidly to rectify matters that have been overlooked.

Voluntary registration

1.2.15 A member may register on a voluntary basis an interest which does not require to be registered by lodging a written statement at any time (section 7 of the Act). Once again this information can be included in the written statement provided for initial registration which has a section for this purpose. Members may, for example, provide such details to give the public fuller understanding of the nature of some particular interest. This could, for example, be information about a non-financial interest which the member is not required to disclose.

1.2.16 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

1.2.17 Following initial registration, which must be completed using written statements submitted in hard copy, 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.

1.2.18 Written statement templates and associated guidance for registration of new interests are provided in hard copy in Volume 4.

Deletion of interests from the Register

1.2.19 A member may instruct deletion of a registered interest from the Register if it is a ceased interest (section 8 of the Act). 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. 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.

1.2.20 Entries in the gifts and overseas visits categories can be ceased where a member considers that an entry no longer meets the terms of the prejudice test. Heritable property and interest in shares entries can be ceased when a member disposes of the property or shares that generated the need for registration. A member may cease to be an unremunerated director in a related undertaking or partner in a firm and so such an interest could be ceased. The only form of entry 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 these entries may be amended to reflect that remuneration is no longer received from that source.

1.2.21 Where a member wishes to have a ceased interest removed from the Register, the member lodges a written notice identifying the ceased interest and giving the date that it became a ceased interest. The Act does not specify that the notice must be in any particular form but members may wish to contact the Standards clerks for advice on what the written notice is to contain.

1.2.22 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, the date it became a ceased interest and the date on which the amendment was made in the Register. The clerks will also send a copy of the amended entry to the member.

1.2.23 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.

1.2.24 In some cases it will be clear that an interest has ceased, for example, where a member has sold their heritable property. Other cases - such as gifts which the member no longer considers meets the prejudice test perhaps because of the passage of time - may not be so easy to determine. Such matters are for a member’s own judgement but the Standards clerks may be able to offer advice. Once again a member may wish to consider obtaining legal or other independent advice. Members should note that once an entry is deleted, the old entry showing the ceased interest will still be available for public inspection for a further period of five years even where that person is no longer a member.

Amending an interest

1.2.25 A member should also monitor any changes in the status of their registered interests and seek to amend an entry where necessary. A member is not required by the 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.

1.2.26 An amendment is made by lodging a written notice of the proposed amendment (section 9 of the Act) rather than a written statement. 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. An entry may not be amended so as to delete, without replacing, any of the information that Parliament has determined must be included about an interest. This means that in making any amendment a member should have regard to the information about the interest that had to be included for the purposes of the original written statement.

1.2.27 The Standards clerks may also at any time amend the Register to correct any clerical or typographical error in any entry. Where they do this they will send a copy of the amended entry to the member. The clerks will also delete the entry relating to a member when that person ceases to be a member for any reason. However, the entry will still be available for public inspection as an old entry for a further five years.

Sanctions and offences for non-registration

1.2.28 Where a member fails to register an interest by failure to lodge a written statement in respect of an initial, acquired or omitted registrable interest, the Parliament may apply sanctions to that member (section 15 of the Act). 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. 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.

1.2.29 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.

1.2.30 Finally, in terms of section 17 of the Act (which implements requirements under section 39 of the Scotland Act) failure to register a registrable interest 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. A member found guilty of such an offence is liable on summary conviction to a fine not exceeding level 5 on the standard scale.