Code of Conduct for MSPs - Volume 2, Section 2: Categories of Registrable Interests

2.1: Introduction

2.1.1 The Schedule to the Act sets out the categories of registrable financial interests which a member must register. These are set out below with reference to the relevant provision in the Act and with explanatory notes designed to help members when registering their interests under any particular category. Members should refer to Section 1 (Volume 2) of this Code for the general requirements in relation to registration. The form of written statement which members must complete when registering an interest (see Volume 4) contains key definitions and terms in relation to each category of interest.

2.2: Remuneration and related undertaking – Schedule, paragraph 2

 

A member has, or had, a registrable financial interest:

(1) Where a member receives, or has received, remuneration by virtue of—

(a) being employed;

(b) being self-employed;

(c) being the holder of an office;

(d) being a director of an undertaking;

(e) being a partner in a firm; or

(f) undertaking a trade, profession or vocation.

(1A) Where a member is, or was—

(a) a director in a related undertaking; or

(b) a partner in a firm,

but does, or did, not receive remuneration by virtue of being such a director or partner.

(2) A member does not fall within sub-paragraph (1) solely by virtue of being, or of having been, a member, a member of the Scottish Executive or a junior Scottish Minister or holding or having held the office of Presiding Officer, deputy Presiding Officer or member of the Parliamentary corporation or of Convener, deputy Convener or member of a Committee of the Parliament.

(3) Sub-paragraph (1) does not apply where the remuneration received from a person on a single, or on more than one, occasion during the current parliamentary session consists solely of expenses unless those expenses amount, or amount in aggregate, to more than the specified limit.

(4) The exception in sub-paragraph (3) applies even although the remuneration received from that person on another occasion, or on other occasions, during that session does not consist solely of expenses.

Key definitions:

“Remuneration” includes any salary, wage, share of profits, fee, expenses and other monetary benefit or benefit in kind (the Act, section 19(1)). This would include, for example, reimbursement of costs incurred and the provision by an employer of a company car or travelling expenses.

“a related undertaking” is a parent or subsidiary undertaking of an undertaking of which the member is a director and receives remuneration as a director as mentioned in sub-paragraph (1)(d);

“Undertaking” has the same meaning as in the Companies Act (see section 1161(1) of the Companies Act 2006) and means, in broad terms, (a) a body corporate or partnership; or (b) an unincorporated association carrying on a trade or business, with or without a view to a profit;

“Parent” and “subsidiary” undertakings have the same meaning as in section 1162 of the Companies Act 2006;

“specified limit” means 1% of a member’s salary (rounded down to the nearest £10) at the beginning of the current parliamentary session;

“current parliamentary session” means the parliamentary session which begins immediately after, or in which, the member is returned;

“prejudice test” an interest meets the prejudice test if, after taking into account all of the circumstances, that interest is reasonably considered to prejudice, or give the appearance of prejudicing the ability of the member to participate in a disinterested manner in any proceedings of the Parliament.

Guidance on remuneration and related undertaking

Remuneration

2.2.1 All remuneration received from the date of return as an MSP which falls into the categories (1) (a)-(f) and related undertakings which fall into categories (1A) (a) and (b) must be registered. Remuneration received solely as an MSP (i.e. MSPs’ salary and allowances) or solely as a result of holding the various offices set out in paragraph (2) of this provision is expressly excluded.

2.2.2 Expenses fall within the definition of remuneration including expenses that represent reimbursement of costs incurred. Where a member receives expenses at the same time as receiving other remuneration (for example, a fee) from the same source these expenses are registrable.

2.2.3 Remuneration consisting solely of expenses below the specified limit (1% of a member’s salary at the beginning of the current parliamentary session, rounded down to the nearest £10) is not registrable. Expenses received from a single source on a single occasion that exceed the specified limit are registrable. In addition, expenses received from a single source, which in aggregate during a parliamentary session exceed the specified limit, are registrable. Members should therefore keep a record of all expenses received from the date of the member’s return, whether or not these are registrable at the time, so that they are aware if the aggregate expenses, from a single source, exceed the threshold for registration.

2.2.4 Remuneration received prior to the date of return as an MSP must also be registered if it meets the prejudice test. In terms of section 3(2) of the Act, an interest meets the prejudice test if, after taking into account all the circumstances, that interest is reasonably considered to prejudice, or to give the appearance of prejudicing, the ability of the member to participate in a disinterested manner in any proceedings of the Parliament.

2.2.5 Remuneration (including expenses exceeding the specified limit) received as an MP at Westminster or as an MEP should be registered where there is an overlap in the holding of both offices; as should any allowances paid in relation to membership of the House of Lords or any other institution except the Scottish Parliament: for example, the Committee of the Regions.

2.2.6 When registering remuneration from employment, members must include the name of the employer, the employer’s principal business address (if not a private individual), the nature of its business and the position that they hold.

2.2.7 When registering remuneration from self-employment or a partnership members must include the name and nature of the business or partnership. The principal business address of the partnership must also be given. If a member is self-employed and carries on the business from the member’s private address, that address need not be included.

2.2.8 When registering remuneration from being the holder of an office, members must provide the name of the organisation in which an office is held, its principal business address, the nature of its business and the position held. Such positions can be in private businesses or public sector organisations. Examples include being a director of a consultancy firm or being a member of an advisory board or committee.

2.2.9 When registering remuneration from a directorship, members must provide the name of the undertaking in which the directorship is held, its principal business address and the nature of its business.

2.2.10 Where registering remuneration from a trade, profession or vocation, members must provide any name under which the trade etc. is carried out and the regularity and nature of the activity. Where work is provided under contract to one particular person or body, it is suggested that the names of that person or body should be given (under the requirement for any relevant additional information). For example, a member who is contracted to write a series of newspaper articles should consider giving the name of the publication and the frequency of articles for which the member is paid as well as the remuneration itself.

2.2.11 One-off activities which members might undertake, such as speaking at a conference or writing a single newspaper article, do not constitute remuneration from a trade, profession or vocation even if the member receives a fee or expenses for doing so (although this could be registered under the voluntary category). However, if a member undertakes such an activity on a regular, remunerated basis, this may be considered remuneration from a trade, profession or vocation.

2.2.12 For the purposes of initial registration, remuneration under each category ((1)( a)-(f)) must be registered with reference to the gross amount per annum (or nearest estimate) that a member expects to receive from the date of return. That remuneration will then be expressed in that member’s entry in the Register as being remuneration falling within the following bands—

up to £500

between £501 - £1,000

between £1,001 - £2,000

between £2,001 - £3,000

between £3,001 - £5,000

and thereafter in intervals of £5,000.

(Members may specify an exact figure, instead of indicating a bandwidth, if they wish.)

2.2.13 In the case of remuneration received prior to the date of return and to which the prejudice test applies, the remuneration received must be registered within the relevant band for each year in which it was received.

2.2.14 Where a member knows that remuneration will be received but does not know the exact amount, the member must register remuneration on the basis of what the member expects to receive. Where this later proves to be inaccurate, the member is encouraged to amend the entry by lodging an appropriate amendment so that the remuneration is shown within the appropriate band. Members are referred to Section 1.2.21 (Volume 2) of this Code for further details on making amendments.

2.2.15 Members must also register any new remuneration for work undertaken after the date of return as a newly acquired interest. Members should refer to Section 1.2.11 (Volume 2) of this Code for guidance on the registration of new interests. They must also take steps to register any remuneration that they have accidentally overlooked, or had not realised required to be registered, as soon as possible and in all cases, within seven days of becoming aware of it. Members should refer to Section 1.2.13 (Volume 2) of this Code for further guidance on late registration.

2.2.16 It is not necessary to register remuneration received prior to the date of return if this represents remuneration for activity undertaken solely before the member was returned, unless it meets the prejudice test. However, should a member receive remuneration on or after the date of their return, this is registrable, even if the activity was undertaken in advance of them becoming a member. Under the terms of the Act the relevant date that the interest is acquired is the date of receipt of payment.

2.2.17 Under the terms of the Act a member may not cease an interest that consists of remuneration (see Section 1.2.20 of Volume 2). Such interests will therefore remain on the register for the duration of the session.

2.2.18 As remuneration relates to active employment of some kind, members are not required to register pensions. However, if a member wishes to, a pension may be registered voluntarily. There is a separate part of the written statement for registering voluntary interests. Members are referred to Section 1.2.15 of Volume 2 of the Code for guidance on voluntary registrations.

Related undertaking

2.2.19 See the opening paragraphs in Section 2.2 above for all relevant definitions for the provisions on related undertakings.

2.2.20 Members are required to register any directorships which they hold, which are not remunerated, where the undertaking in which they hold a directorship is a parent or a subsidiary of an undertaking in which the member holds a remunerated directorship. Members are also required to register being a partner in a firm where the member does not, or did not, receive remuneration by virtue of being such a partner. This could be where a member is a sleeping partner in a business or a business whose operating profits are wholly reinvested in the business.

2.2.21 Members should be aware of the need to register any previous directorship or partnership which is no longer held by them if the holding of that position meets the prejudice test set out in section 3(2) of the Act.

2.2.22 The provisions of the Companies Act 2006 referred to above set out the circumstances where an undertaking is treated as a parent or subsidiary of another undertaking. Generally, this relates to voting rights, the right to remove a board of directors and dominant influence and control. Members who hold the position of a director in any such body are expected to be aware of what constitutes a related undertaking in terms of the Act and what constitutes a parent and subsidiary undertaking in terms of the Companies Act 2006. Judgement about what constitutes a related undertaking in company law is complicated. Where any member has a doubt about whether or not a particular directorship should be registered, they are strongly recommended to take independent professional advice.

2.2.23 Members are required to register the name of the related subsidiary or parent undertaking, the nature of its business, its principal business address and its relationship to the other undertaking in which the member is a director and from which the member receives remuneration. Members who are unremunerated partners in firms are required to register the name of the firm, its principal business address and the nature of its business. Any other unremunerated directorships which are not related in any way to a remunerated directorship do not require to be registered but they may be registered on a voluntary basis.

2.3: Gifts – Schedule, paragraph 6

 

A member has a registrable interest:

(1) Where a member or a company in which the member has a controlling interest or a partnership of which the member is a partner, receives, or has received, a gift of heritable or moveable property or a gift of a benefit in kind and—

(a) in the case where the gift was received from a person on a single occasion, the value of that gift, at the date on which it was received, exceeds the specified limit; or

(b) in the case where gifts were received from that person on more than one occasion during the current parliamentary session, the aggregate value of those gifts, at the dates on which they were received, exceeds the specified limit and, in either case,

(c) that gift or those gifts meet the prejudice test.

(2) Sub-paragraph (1) does not apply to

(a) the costs of travel and subsistence in connection with the member's attendance at a conference or meeting where those costs are borne in whole or in part by—

(i) the organiser of that conference; or

(ii) one of the other parties attending that meeting,

as the case may be;

(b) any support (of any kind) provided by the services of a volunteer which are provided in that volunteer’s own time and free of charge; or

(c) a donation (of any kind) which is intended by the donor to be used for the purpose of meeting—

(i) any campaign expenditure incurred in connection with the member’s campaign for election to a party office;

(ii) the election expenses of the member in relation to the election at which that member was returned as a member of the Scottish Parliament; or

(iii) the election expenses of the member in relation to any UK parliamentary election at which that member stands as a candidate,

but this exemption ceases to apply if the donation is not used for its intended purpose by the expiry of the 35th day after the election result is declared.

Key definitions:

“company” means a company as defined in section 1(1) of the Companies Act 2006;

“controlling interest” means, in relation to a company, shares carrying in the aggregate more than half of the voting rights exercisable at general meetings of the company;

“heritable property” includes any right or interest in heritable property in Scotland or elsewhere. It includes residential or other similar property, land etc;

“moveable property” means any property which is not heritable property and includes anything from money to jewellery to the copyright in a book for example;

“specified limit” means 1% of a member’s salary (rounded down to the nearest £10) at the beginning of the current parliamentary session;

“prejudice test” – an interest meets the prejudice test if, after taking into account all of the circumstances, that interest is reasonably considered to prejudice, or give the appearance of prejudicing the ability of the member to participate in a disinterested manner in any proceedings of the Parliament;

“candidate” has the same meaning as in section 118A, as read with section 90ZA(5) of the Representation of the People Act 1983;

“campaign expenditure” includes expenditure incurred, whether before or after the member’s candidacy for election to the party office is announced or after the date on which the result of that election is declared, which can reasonably be described as being for the purposes of that campaign;

“current parliamentary session” means the parliamentary session which begins immediately after, or in which, the member is returned;

“election expenses”, in relation to a member, has the same meaning for the purposes of

(i) sub-paragraph (2)(c) (ii) as “election expenses” has in relation to a candidate in the order under section 12 of the 1998 Act which is in force for the purposes of the election at which the member was returned; and

(ii) sub-paragraph (2)(c)(iii) as “election expenses” has in section 90ZA of the Representation of the People Act 1983;

“party office” means an office in a registered political party with which that member is connected; and

“registered political party” means a political party registered under Part II of the Political Parties, Elections and Referendums Act 2000 and a member is “connected with” a registered political party if the member was returned at the election after contesting it as a candidate (whether for return as a constituency member or as a regional member) of that party.

Guidance on gifts

2.3.1 Members should have regard to paragraph 7.2.6 of Volume 2 of this Code for guidance on the acceptance of gifts generally. Any gift, the value of which on the date the gift is made, exceeds 1% of a member’s salary at the beginning of the current parliamentary session (rounded down to the nearest £10 – currently £570), must be registered where the gift also meets the prejudice test in section 3(2) of the Act. Gifts which exceed the threshold but do not meet the prejudice test do not need to be registered.

2.3.2 This category applies to a gift of any tangible item such as glassware or jewellery, to gifts of money or residential property and to other benefits such as hospitality, or tickets to sporting and cultural events. The category also covers benefits such as relief from indebtedness, loan concessions, or provision of services at a cost below that generally charged to members of the public.

2.3.3 The category covers gifts received directly by a member and gifts received by any company in which a member has a controlling interest, or by a partnership of which the member is a partner. It covers both gifts received in a member’s capacity as an MSP and gifts received in a private capacity. However, it does not cover gifts to spouses and cohabitees. It is also expected that most gifts from friends and family will not meet the prejudice test and will therefore not require to be registered.

Financial support

2.3.4 A member who receives any financial support as a member, the value of which exceeds the specified limit, must register this as a gift where the prejudice test is met. Donations received by a member from a constituency party may fall within the gifts category but only if the member considers the prejudice test is met.

Material support

2.3.5 Subject to paragraph 2.3.9, a member who receives any material support as a member, the value of which exceeds the specified limit, must register this as a gift where the prejudice test is met. Examples of material support include the provision of services of a research assistant, secretary or other member of staff whose salary, in whole or in part, is met by another person other than the member.

2.3.6 Members must register the monetary value of the support which is the gross cost to the person providing the material support. In the case of payment of salary cost this should be calculated on the basis of pre-tax income including the cost of providing national insurance and other benefits.

2.3.7 When registering material support a member should provide the name of the provider, their principal business address (if not an individual) and the nature of its business (if not an individual). Members may also wish to detail any conditions attached to the support, such as the duration of it and how it is paid for (whether or not it is or was provided directly to the member, or is paid directly to another person providing the service to the member).

Travel and subsistence

2.3.8 Members are not required to register the costs of travel and subsistence in connection with attendance at a conference or meeting if those costs are borne in whole or in part by the organiser of the conference or by one of the other parties attending the meeting. However, attendance at an overseas conference or meeting may require to be registered as an overseas visit. It is also possible that expenses for attendance at a meeting or conference could fall into the remuneration category.

Volunteer services

2.3.9 Support from a volunteer who provides a service in their own time free of charge is exempt from the requirement to register in the gifts category.

Election expenses

2.3.10 At the end of session 3, the “election expenses” category was removed from the Act. This was on the basis that there is an entirely separate regime for registering election expenses with the relevant Returning Officer and the Electoral Commission as part of an electoral return. At the same time, the gifts category was amended to exclude from registration in that category donations towards the member’s:

campaign expenses for election to a party office;

  • election expenses in relation to their election to the Scottish Parliament; or
  • election expenses in relation to standing at a UK Parliamentary election.

2.3.11 Such expenses are not registrable, even if they exceed the gifts threshold, as long as:

(a) the donor intended them to be used for one of the three purposes outlined above; and

(b) they have been spent on the intended purpose by the end of the 35th day after the result of the election was declared.

2.3.12 However, any donations which are unspent on the election in question by the expiry of the 35th day after the election result is declared (the same timeframe that is allowed for lodging election returns) must be registered if they exceed the gifts threshold and meet the prejudice test. Members acquire a registrable interest on the expiry of the 35th day after the election result is declared and have 30 days from then to register the interest as set out in sections 3(4) and 4(5) of the Act.

2.3.13 In recording election expenses and considering whether the exemption from registration applies, therefore, members need to be clear:

(a) whether a particular donation was intended by the donor to be used towards those election expenses (rather than for example being a general donation to the local party); and

(b) whether the donation was spent on costs associated with that election before the expiry of the 35th day after the election.

Should there be any complaint about a member’s failure to register election expenses, the member would need to be able to demonstrate that the donation had been spent on its intended purpose within the deadline specified.

2.3.14 Certain elections may take place close to the end of the parliamentary session. The period of 35 days after the election result is declared, during which the donation is potentially exempt, could then run into the dissolution period and so the donation would not require to be registered during that session even if it was not used for its intended purpose by the expiry of the 35th day. However, returning members may consider that such donations meet the prejudice test and so should be registered in the following parliamentary session, regardless of whether the member still has the donation by that time.

Registering a gift

2.3.15 In lodging a written statement in relation to a gift, the member must provide details of the nature of and estimated monetary value of the gift and the date it was received. A member must also indicate whether the gift was received directly or was given to a company or partnership in which the member has a controlling interest. Members must additionally provide the donor’s name, principal business address (if not a private individual) and the nature of the donor’s business (if not a private individual).

2.3.16 A member is not required to register a gift whose value does not exceed the registration threshold. However, if over the course of a session a member receives a number of gifts from a single source, each of which is below the threshold but which cumulatively exceed it, the member is required to register such an interest in the gifts category. Members should therefore keep track of gifts received and register gifts from the same source if, cumulatively, they exceed the specified limit.

2.3.17 In addition, members may register in the voluntary category any gift which does not exceed the gifts threshold and/or does not meet the prejudice test, if they believe that disclosure would be in the public interest. Members should be aware of the need for caution in accepting gifts and other benefits.

2.3.18 Where a member registers a gift received before the date that the member was returned, which the member considers meets the prejudice test, the threshold for registration is based on a member’s salary at the start of the parliamentary session in which the gift would be registered (not the session in which the gift was received). In other words, a single threshold applies to all gifts included in the register in a particular session.

2.3.19 Members must also take steps to register any gifts that they have accidentally overlooked, or had not realised required to be registered, as soon as possible and in all cases, within seven days of becoming aware of the requirement to register. Members should refer to Section 1.2.13 of Volume 2 of this Code for further guidance on late registration.

2.3.20 Members may wish to seek advice from the Standards clerks about the need to register in specific circumstances.

2.4: Overseas Visits – Schedule, paragraph 7

A member has a registrable interest:

(1) Where a member makes, or has made, a visit outside the United Kingdom and that visit

meets the prejudice test.

 (2) Sub paragraph (1) does not apply to a visit, the travel and other costs of which—

(a) are wholly met—

(i) by the member;

(ii) by the member’s spouse, civil partner or cohabitant;

(iii) by the member’s mother, father, son or daughter;

(iv) by the Parliamentary corporation; or

(v) out of the Scottish Consolidated Fund; or

(b) were approved prior to the visit by the Parliamentary corporation.

Key definitions:

“Spouse” does not include a former spouse or a spouse who is living separately and apart from the member where the separation is likely to be permanent.

“Civil partner” does not include a former civil partner or a civil partner who is living separately and apart from the member where the separation is likely to be permanent.

“Cohabitant” means either member of a couple consisting of a man and a woman who are living together as if they were husband and wife or two persons of the same sex who are living together as if they were civil partners.

“Prejudice test” an interest meets the prejudice test if, after taking into account all of the circumstances, that interest is reasonably considered to prejudice, or give the appearance of prejudicing, the ability of the member to participate in a disinterested manner in any proceedings of the Parliament.

Guidance on overseas visits

2.4.1 A member is required to register and provide details of a visit outside the United Kingdom where the visit meets the prejudice test. For the purposes of registration, the date upon which a visit becomes registrable is the final day of any such visit. Under the terms of the Act, members then have 30 days to lodge a written statement with the clerks reflecting this interest.

2.4.2 Certain overseas visits are excluded from the requirement to register. These are visits, the travel and other costs of which are wholly met—

by the member;

by the member’s spouse, civil partner or cohabitant;

by the member’s mother, father, son or daughter;

by the Scottish Parliamentary Corporate Body (SPCB); or

out of the Scottish Consolidated Fund (for example, Ministerial visits).

2.4.3 There is also no need to register visits the costs of which were approved in advance by the SPCB.

2.4.4 There may be occasions when fees or expenses for work undertaken overseas fall into the remuneration rather than overseas visits category. Equally, certain overseas visits and related costs may fall within the gifts category. Members are advised to seek advice from the Standards clerks if they are uncertain about which category an interest should be registered in.

2.4.5 Visits within the United Kingdom and the provision of hospitality in the United Kingdom are not covered by this provision although members may register these on a voluntary basis if they believe that disclosure would be in the public interest. Depending on the value, and subject to meeting the prejudice test these may also fall within the gifts category. Similarly hospitality provided abroad not directly linked to the cost of the visit itself does not need to be registered under the overseas visits category. Again, however, members need to take account of the value of that hospitality as it may require to be registered as a gift.

2.4.6 Members should note that committee travel outwith the UK may fall to be registered. Members are advised to seek advice from the relevant committee clerk regarding prior approval by the SPCB. Members may also consult the Standards clerks for further advice on seeking SPCB approval for certain visits overseas.

2.4.7 Where registration is required, members should provide details of the dates, destination and purpose of the visit along with the name of any individual, business or organisation which met any of the costs. Members must also provide the principal business address of the business or organisation (but not that of a private individual) which met the costs of the trip and the nature of the business (but not that of a private individual). Members must provide details of the cost of the visit, ideally split between travel and expenses. Costs can be provided in the currency in which they were incurred, however members may also wish to include the estimated value in sterling and the date of the currency conversion upon which this estimate is based.

2.4.8 Members must also take steps to register any overseas visits that they have accidentally overlooked, or had not realised required to be registered, as soon as possible and in all cases, within seven days of becoming aware of it. Members should refer to Section 1.2.13 of Volume 2 of this Code for further guidance on late registration.

2.5: Heritable property – Schedule, paragraph 8

A member has a registrable interest:

(1) Where a member owns or holds, or has owned or held, any heritable property and subparagraph (2) applies.

(2) This sub-paragraph applies where either—

(a) the market value of the heritable property, at the relevant date, exceeds the specified limit; or

(b) any income is received from the heritable property during the twelve months prior to the relevant date.

(3) Sub-paragraph (1) applies to heritable property which a member owns or holds, or has owned or held—

(a) solely in the member’s name;

(b) jointly with any other person or body; or

(c) as a trustee, whether or not jointly with other trustees, where the member has an interest as a beneficiary of the trust.

(4) Sub-paragraph (1) does not apply to heritable property—

(a) which is used as a residential home by the member or the member's spouse, civil partner or cohabitant;

(b) which was used as a residential home by the member or the member's spouse, civil partner or cohabitant but which, for a period of not more than 12 months, is or was unoccupied and for sale; or

(c) which forms part of the assets of a partnership and any income from that partnership is, or forms part of, the remuneration registered under paragraph 2 of this Schedule.

(5) Where a member has ceased to own or hold any heritable property before the date on which the member was returned as a member, the relevant date is the date when the heritable property ceased to be so owned or held.

(6) Where a member owned or held any heritable property at the date on which the member was returned as a member, the relevant date is—

(a) that date; and

(b) the 5th April immediately following that date and in each succeeding year, where the heritable property continues to be so owned or held on that 5th April.

(7) Where a member becomes the owner of or acquires any heritable property after the date on which that member was returned as a member, the relevant date is—

(a) the date on which the member became the owner of or acquired that heritable property; and

(b) the 5th April immediately following that date and in each succeeding year, where the heritable property continues to be so owned or held on that 5th April.

Key definitions:

“Heritable property” includes any right or interest in heritable property whether in Scotland or elsewhere. It includes residential or other similar property, land or any right or interest in or over land;

“Spouse” in relation to a member does not include a former spouse or a spouse who is living separately and apart from the member where the separation is likely to be permanent;

“Civil partner” in relation to a member does not include a former civil partner or a civil partner who is living separately and apart from the member where the separation is likely to be permanent;

“Cohabitant” means either member of a couple consisting of—

(a) a man and a woman who are living together as if they were husband and wife; or

(b) two persons of the same sex who are living together as if they were civil partners;

“current parliamentary session” means the parliamentary session which begins immediately after, or in which, the member is returned; and

“specified limit” means 50% of a member’s salary (rounded down to the nearest £10) at the beginning of the current parliamentary session.

Guidance on heritable property

2.5.1 A heritable property which exceeds either the market value or income threshold set out in paragraph 8 of the Schedule to the Act must be registered. Members are required to register any interest in heritable property where the property’s market value exceeds 50% of the member’s salary at the start of the current parliamentary session (rounded down to the nearest £10 – currently £28,760). Members must also register heritable property which yields any income, for example from rent, in the twelve months prior to the relevant date. Members do not require to register interests in heritable property which do not exceed either the market value or income threshold; however, members may choose to register these in the voluntary category if they wish.

2.5.2 Heritable property may be situated in any part of the world. The issue of the “relevant date” is particularly important in understanding when an interest in property requires to be registered. The relevant date is the date that the member is returned for property owned at that date; the date of acquisition for a newly acquired property; or the date of disposal when a property is sold before the member is returned.

2.5.3 In relation to income-based registration, registration is required where any income is received in the twelve months prior to the date that the member is returned (and each following 5th April) or the date of acquisition (and each following 5th April) or the date of disposal as the case may be. An acquired rental property must therefore be registered (within 30 days) on the basis of income received in the past twelve months even where the income prior to acquisition has not been paid to the member but to a previous owner

2.5.4 A member registering an existing property at the date that the member is returned must estimate its market value at that date and assess whether that figure exceeds 50% of a member’s salary (rounded down to the nearest £10) at the beginning of the current parliamentary session. If it does, the property must be registered. The member must then re-estimate the market value on each subsequent 5th April that the member continues to own or hold the property. If the value continues to exceed 50% of the member’s salary (as at the start of the parliamentary session) then the property should continue to be registered. If it does not, then the member may identify the interest as a ceased interest by following the procedures for deletion of interests set out in Section 1.2.19 of Volume 2 of this Code.

2.5.5 Where a member disposes of a registrable property (prior to the date of return as a member), the relevant amounts for the purposes of calculation are: market value at the date of sale measured against the amount of a member’s salary at the start of the current parliamentary session; and/or any income from the property in the twelve months prior to sale. Similarly for registrable property acquired after the date of return as a member, the requirement for registration should be considered on the basis of market value at acquisition and on each subsequent 5th April that the member owns or holds the property against salary at the start of the parliamentary session.

2.5.6 The requirement to register does not apply to heritable property used as a residence by the member’s spouse, civil partner or cohabitant or to heritable property which was such a residential home, but (for not more than twelve months) is or was unoccupied and for sale. A member also does not have to register property which forms part of the assets of a partnership where any income received by the member from that partnership is already registered as remuneration under paragraph 2 of the Schedule to the Act.

2.5.7 There may also be circumstances where income received from a rental property could fall within the remuneration category if it is received by a member who lets property in connection with self-employment or a trade, profession or vocation. Equally, there may be circumstances in which heritable property could fall within the gifts category. Members are advised to seek advice from the Standards clerks if they are uncertain in which category an interest should be registered.

2.5.8 The requirement to register heritable property applies not just to property that a member owns in their own name but to property in joint names (such as with a spouse or business partner) and to property held as a trustee but only where the member has a beneficial interest in the income or assets of the relevant trust.

2.5.9 For all properties that require to be registered, members are required to indicate the location of each property (for example, by local authority area if in Scotland) and the type of property (for example, flat, house, commercial property, industrial or agricultural). Members do not have to provide the date they acquired the property if this was prior to the date the member was returned but must provide relevant dates where a property is disposed of or acquired during the session.

2.5.10 For properties registrable on the basis of market value, members must provide an estimate of market value for each property (within the bandwidths determined by the Parliament) at whichever relevant date applies. For properties registrable on the basis of income, members must provide an estimate of gross income (within the bandwidths determined by the Parliament) in the twelve months prior to whichever relevant date applies. Where a property meets both tests then both the market value and income details should be provided.

2.5.11 Registration is based on the full market value or income irrespective of whether the member owns the property independently or with another person or irrespective of the member’s equity share in the property once a mortgage is taken into account or the costs of disposal. Members may provide additional details in connection with the entry in relation to these matters if they wish to do so.

2.5.12 Where a member registers an interest in heritable property which the member no longer had on the date that the member was returned but which meets the prejudice test, the relevant date is the date that the interest ceased to be held. The member may not have been in receipt of a salary at the time the interest was disposed of. In these circumstances the threshold for registration should relate to the salary of a member at the start of the parliamentary session in which the member is considering registration.

2.5.13 Members must also take steps to register any heritable property that they have accidentally overlooked, or had not realised required to be registered, as soon as possible and in all cases, within seven days of becoming aware of it. Members should refer to Section 1.2.13 of Volume 2 of this Code for further guidance on late registration.

2.6: Interest in shares – Schedule, paragraph 9

A member has a registrable interest:

(1) Where a member has, or had, an interest in shares, whether that interest is, or was, held by the member or by a relevant person, and sub-paragraph (2) applies.

(2) This sub-paragraph applies where either—

(a) the nominal value of the shares at the relevant date is, or was, greater than 1% of the total nominal value of the issued share capital of the company or other body; or

(b) the market value of the shares at the relevant date exceeds, or exceeded, the specified limit.

(3) Sub-paragraph (1) applies to an interest in shares, whether that interest is, or was, held by a member (or a relevant person)—

(a) solely in the name of the member (or relevant person);

(b) jointly with any other person or body; or

(c) as a trustee, whether or not jointly with other trustees where the member has an interest as a beneficiary of the trust.

(4) Sub-paragraph (1) does not apply to an interest in shares which forms part of the assets of a partnership and any income from that partnership is, or forms part of, remuneration registered under paragraph 2 of this Schedule.

(5) Where a member has ceased to have an interest in shares before the date on which the member was returned as a member, the relevant date is the date when the interest in such shares ceased to be so held.

(6) Where a member had an interest in shares at the date on which the member was returned as a member, the relevant date is—

(a) that date; and

(b) the 5th April immediately following that date and in each succeeding year, where the interest is retained on that 5th April.

 (7) Where a member acquires an interest in shares after the date on which the member was returned as a member, the relevant date is—

(a) the date on which the interest in shares was acquired; and

(b) the 5th April immediately following that date and in each succeeding year, where the interest is retained on that 5th April.

Key definitions:

“current parliamentary session” means the parliamentary session which begins immediately after, or in which, the member is returned;

an “interest in shares” means an interest in shares comprised in the share capital of a company or other body;

“relevant person” is a person who is subject to the control or direction of a member in respect of an interest in shares;

“specified limit” means 50% of a member’s salary (rounded down to the nearest £10) at the beginning of the current parliamentary session.

Guidance on interest in shares

2.6.1 A member is required to register an interest in shares which the member or a “relevant person” (as defined in sub-paragraph (3) above) has or had. A relevant person can be a relative (such as a spouse or civil partner) or some other individual or body. Such a person may nominally own or hold the shares but can be said to be controlled or directed where, for example, only the member may authorise disposal of the shares or where the member ultimately benefits from any income or gain on disposal.

2.6.2 Registration is required where the nominal value of the shares at the relevant date is or was greater than 1% of the total nominal value of the issued share capital of the company or other body; or where the market value of the shares exceeds 50% of a member’s salary at the start of the current parliamentary session (rounded down to the nearest £10 – currently £28,760). Members are not required to register interests in shares which do not exceed either of the value thresholds; however, members may register these in the voluntary category if they wish.

2.6.3 Once again, the “relevant date” is important in understanding when an interest in shares falls to be registered. Calculation of the relevant date for shares works in the same way as for heritable property (above).

2.6.4 A member considering whether registration of an existing shareholding at the date of return is required on the basis of market value must ascertain its value at that date. If it exceeds 50% of a member’s salary at the start of the current parliamentary session the shareholding must be registered. Likewise, a member considering whether registration of an existing shareholding at the date of return is required on the basis of the nominal value of the shares must ascertain whether this value is greater than 1% of the total nominal value of the issued share capital of the company or other body at that date. In either case the member must then obtain a new valuation on each subsequent 5th April that the member continues to have the interest in shares. If the value continues to exceed the relevant threshold, then the shares should continue to be registered. If they fall under that threshold then the member may have the interest removed from the Register as a ceased interest (see Section 1.2.19 of Volume 2 of this Code). Members who have a portfolio of shares must continue to track the value of shares to ensure that all holdings continue to fall under the threshold for registration. Where a share holding later exceeds that threshold, the share-holding must be registered as if it was an interest acquired after the date of the member’s return.

2.6.5 Where a member disposes of shares, the market or nominal value for the purpose of registration is the market or nominal value at the date of sale. Similarly, for shares newly acquired after the date of return, registration depends either on the nominal value on acquisition or the market value at acquisition against member’s salary at the start of the current parliamentary session and the nominal or market value against this salary on each subsequent 5th April that the member continues to have the interest in shares.

2.6.6 Where a member disposes of a registrable shareholding (prior to the date of return as a member), the relevant amounts for the purposes of calculation are: the total nominal value of the issued share capital at the date of disposal; or the market value of the shareholding at that date measured against a member’s salary at the start of the current parliamentary session.

2.6.7 Where a member registers an interest in shares which the member no longer has but which meets the prejudice test, the relevant date is the date that the interest ceased to be held. As with the Gifts and Heritable Property categories, a member may be required to register interests in shares disposed of before being returned as an MSP, if the member considers that the prejudice test is met. The member may therefore not be in receipt of a salary at the time the interest is acquired or disposed of. In these circumstances the threshold for registration relates to the salary of a member at the start of the parliamentary session in which the member is considering registration.

2.6.8 A member does not have to register shares which form part of the assets of a partnership where any income received by the member from that partnership is already registered as remuneration under paragraph 2 of the Schedule to the Act.

2.6.9 There may also be circumstances in which interests in shares could fall within the gifts category. Members are advised to seek advice from the Standards clerks if they are uncertain in which category an interest should be registered.

2.6.10 The requirement to register shares applies not just to shares that a member owns in their own name but to shareholdings in joint names (such as with a spouse or business partner) and to shareholdings held as a trustee but only where the member has a beneficial interest in the income or assets of the relevant trust.

2.6.11 When registering shares, members are required to provide details of the type of shares, the name of the company in which the shares are held, the company’s business address and the nature of its business. Members do not have to provide the date of acquisition of shares held at the date of return but must provide dates where the shares have been disposed of or acquired as the case may be during the parliamentary session.

2.6.12 For shares registered on the basis of market value, members must provide a valuation on the relevant date. For shares registered on the basis of a proportion of nominal value, members must provide the percentage of the issued share capital of the company that the member holds. Where shares could be registered on the basis of both market value and nominal value the market value should also be provided as well as the percentage of overall share capital.

2.6.13 Investment ISAs or unit trusts constituting shares are registrable if they independently, or in combination with other investments, meet the conditions outlined above. Members are not required to register investments that would not be considered to be part of a share portfolio, such as cash savings, cash ISAs, government bonds (gilts) and corporate bonds. If a member wishes to, these holdings may be registered in the voluntary category. Members are referred to Section 1.2.15 of Volume 2 of the Code for guidance on voluntary registrations.

2.6.14 Members must also take steps to register any interest in shares that they have accidentally overlooked, or had not realised required to be registered, as soon as possible and in all cases, within seven days of becoming aware of it. Members should refer to Section 1.2.13 of Volume 2 of this Code for further guidance on late registration.

2.7: Responsibility of the Member

2.7.1 Responsibility for ensuring compliance with the requirements of the Act for registration of interests lies with the individual member. If a member is uncertain about how the rules apply, the Standards clerks may be asked for advice. A member may also choose to consult a personal legal adviser and, on detailed financial and commercial matters, a member may wish to seek advice from other relevant professionals. As explained in Section 1.2.28-30 of Volume 2, failure to comply with the requirements of registration will constitute a breach of the requirements of the Act and may be a criminal offence. It could also lead to sanctions being imposed on a member by the Parliament. Enforcement of the Rules in the Code is explained in Volume 2, Section 9 and in Volume 3, Section 9 of the Code.