The statutory requirements
1. Sections 12 and 13 of the 2006 Act set out the legal requirements in relation to declaration of interests.
Section 12, Declarable interests
(1) In this Act, a “declarable interest” means a declarable financial interest.
(2) A member has a declarable financial interest in any matter if that member has, or had, a registrable financial interest in that matter which is registered in the entry relating to that member.
(3) A member has a financial interest for the purposes of paragraph (b) of section 39(2) of the 1998 Act [the Scotland Act] if that member has a declarable financial interest.
Section 13, Declaration of interests
(1) Any member who has a declarable interest in any matter shall declare that interest before taking part in any proceedings of the Parliament relating to that matter.
(2) For the purposes of subsection (1), a member shall declare an interest by making, in such circumstances as the Parliament may determine, either an oral or, as the case may be, a written declaration of that interest.
2. An interest about which a declaration must be made is referred to as a ‘declarable interest’.
3. Under the statutory requirements, a member has a ‘declarable interest’ in relation to any matter if that member has a registrable financial interest relating to it. Registrable financial interests are those which must be registered under one of the categories set out in the schedule to the Act. These categories are explained in Section 2 of the Code.
4. Before taking part in any proceedings of the Parliament a member should consider whether they have a ‘declarable interest’ in relation to the particular matter being addressed in those proceedings. The onus is on individual members to decide.
5. Declarations may be either oral or written. The Interests of Members of the Scottish Parliament Act 2006 (Declaration of Interests) Determination 2007 sets out when oral and written declarations apply.
6. Where a member has a declarable interest in any matter, the member must make an oral declaration of that interest before speaking in any meeting of the Parliament relating to that matter. This includes initiating, contributing to or intervening in any debate whether—
- during a meeting of the Parliament; or
- during a meeting of a Parliamentary committee (or a joint committee meeting or sub-committee meeting).
7. A member is not required to make an oral declaration where the member simply attends or votes at a meeting but does nothing else. The effect of the determination mentioned in paragraph 5 is that the member’s register entry is sufficient declaration of their interest. If the member wishes to take part in the meeting in any way, other than simply attending or voting, they must make an oral declaration. Where the proceedings occur after the member has lodged a written statement with the clerks but before it is published in the Register, members are encouraged to make an oral declaration of that interest.
8. A member must declare an interest when speaking or intervening in a debate where that interest relates to the subject being debated. The Act requires that only such interests as actually appear in the member’s entry in the Register must be declared (section 12(2)). Following the lodging of a written statement of an interest with the Standards Clerks (in relation to initial registration, newly acquired interests, or late registrations), there could be a period of up to 30 days before the statement actually appears on the Register and so becomes publicly known. In this situation, members are encouraged to make a declaration of that interest (either orally or in writing as appropriate to the proceedings) in order to avoid the suggestion of undue influence of which only they will be aware prior to the registration being published.
9. Where a member has a declarable interest in any matter, and takes part in any proceedings of the Parliament relating to that matter otherwise than as described above, the member must make and lodge with the Clerk (usually understood to be the clerks in the Chamber Desk) a written declaration of that interest before taking part in any such proceedings relating to that matter. The Guidance on the Code of Conduct includes instructions on how this is done.
10. Taking part in proceedings of the Parliament includes any of the following—
(a) lodging questions for oral or written answer,
(b) lodging motions, amendments to motions,
(c) introducing a Bill, or lodging a proposal for a Member’s Bill,
(d) lodging amendments to Bills, or
(e) adding the member’s name in support of any of the proceedings referred to in (a) to (d) above.
11. Members should be aware that other requirements of the Act, for example, in relation to paid advocacy, also apply to voting and other proceedings.
Failure to comply with or contravention of the rules on declaration of interests
12. Failure to comply with, or contravention of, the Rules on declaration of interests may by virtue of section 15, 16 and 17A of the Act result in the Parliament, by resolution, applying sanctions to a member. In terms of section 17 of the Act, as with the failure to register interests, a member who fails to make a relevant declaration commits a criminal offence and is liable on summary conviction to a fine not exceeding level 5 on the standard scale. Enforcement of the Rules in the Code is explained in Section 9.