Responsibility of the member
1. Responsibility for complying with the provisions on paid advocacy lies with the individual member. Each member will need to apply the paid advocacy provisions to that member’s particular circumstances. If a member is uncertain about how the rules apply, the member may ask the Standards clerks for advice.
Purpose of the paid advocacy provision
2. The purpose of the provision is to prevent a member advocating or initiating any cause or matter for payment or benefit in kind. Other than as detailed below, it includes all forms of payment or benefit, including hospitality.
3. Paid advocacy includes a payment or benefit in kind (or agreement to receive or request for a payment or benefit in kind) not just to the member but also to the member’s spouse, civil partner or cohabitant.
4. The effect of the paid advocacy rule is that, in relation to any Parliamentary proceedings, a member must never advocate or initiate any cause or matter on behalf of any person or organisation where payments or benefits have been made (or where the member has agreed to receive or requested payments or benefits) specifically for that purpose or which would not have been provided had the member not undertaken that course of action.
5. Receipt of payments or benefits from an individual or organisation which a member registers as registrable financial interests do not prevent a member from taking part in proceedings relating to the affairs or interests of that individual or organisation. Members must, however, make appropriate declarations of these interests in terms of Section 3 of the Code.
6. In seeking to apply this rule to their Parliamentary activities, members should not only consider their own intentions but the linkage that might reasonably be made by others between receipt of a payment or a benefit in kind and subsequent advocacy. It is a question of circumstances in each case, but the larger the benefit and the more significant the advocacy, the easier it could be to draw the conclusion that the reason a member had undertaken particular action was because of the payment or benefit.
7. The paid advocacy rule does not prevent a member from doing paid work or receiving other financial benefits which are registered as registrable financial interests. However, a member who engages in advocating any matter which confers benefit on an organisation for which the member is doing, or has done, paid work, even after making an appropriate declaration of interest, might well be thought to be doing so in consideration of that payment whether or not this is actually the case. It is less likely that this inference would be drawn if the member was participating in proceedings directly or indirectly related to the organisation but which has a neutral or negative effect on the organisation or the sector within which that organisation operates.
8. Similarly, the paid advocacy rule does not prevent a member receiving expenses in connection, say, with a conference or fact-finding visit and then raising in proceedings of the Parliament matters which the member may have learned about as a result of that event. As long as the member registers the receipt of the expenses, makes an appropriate declaration to that effect and does not advocate a particular course of action at the behest of the organisation or individual providing the expenses, there would be no paid advocacy.
9. The paid advocacy rule as set out in section 14 of the Act provides a list of exceptions for situations which could be interpreted as conferring benefit on a member for political purpose but which are not to be considered as paid advocacy. Members may seek and accept assistance in connection with any matter relating to a Bill (before it is submitted for Royal Assent), a debate on subordinate legislation or on a legislative consent motion. However, members should ensure that any assistance relates purely to those matters and there is no other ancillary benefit to the member. Members should be wary of entering any arrangement from which it could be construed that the reason they had taken forward a Bill was because they had received a payment or a benefit in kind, other than permitted assistance.
10. The rules on paid advocacy apply from the date on which the member was returned. It does not matter if the length of time between the payment and the action is long or short, if the action was taken in consideration of a payment or benefit.
'Advocate or initiate any cause or matter’
11. A member shall not by “any means”, in consideration of any payment or benefit in kind, advocate or initiate any cause or matter on behalf of any person. This extends to urging any other member to advocate or initiate any cause or matter on behalf of any person. The Act provides that “any means” is to be construed as “the doing of anything by a member in the capacity of a member, whether or not in any proceedings of the Parliament”.
12. A member does not “advocate or initiate any cause or matter” simply by sitting and listening to a debate. However, a member may contravene the paid advocacy rule in any of the following situations—
- initiating, contributing to or intervening in any debate;
- lodging notice of a proposal for a Bill or introducing a Bill;
- lodging or asking a parliamentary question;
- lodging notice of or moving a motion;
- lodging notice of or moving an amendment to a Bill;
- proposing a draft report, or moving an amendment to a draft report in a committee;
- supporting a motion or a Bill or proposal for a Bill or a motion;
- lodging or supporting an amendment to a Bill or a motion.
13. This list cannot be comprehensive. Members are advised to seek advice from the Standards clerks before undertaking any activity in the capacity of a member if they have any concern that the rule may apply.
Urging another MSP to act
14. A member is also prohibited from urging another member to lodge a motion or parliamentary question which advocates a cause, etc. (or to do any of the other things listed above at paragraph 12 with that intention) in return for any payment or benefit in kind which the member has received, agreed to receive or requested from another person.