 dzwydd Currently, I welcome members to the 19th meeting in 2015 of the standas procedure public appointments committee and Simon Cack was usually reminded everyone to switch off mobile phones as they may affect the broadcasting system. We received apologies from Mary Fee and her substitute Mark Griffin and congratulate on his fatherhood, which is why he is not here as substitute. Rwy'n rhoi angen i dweud ymgolwg i'n pwyllfa Fewnham y Chlawd gyda Colón Creyr ac yn astu'r achogolwg o'r chael ar gyflawn. Eryd Cymru yn i ffrindwyr i gyd yn ei iddo i ddod i eich ei gallu'r ymgyrch delwol i arun am y prify Glofyniad. Felly, rydw i'n imbryd i eich eitem ffrindwyr i'r ymgyrchやってil? Rydw i'n i'r eitem bryd i eitem bryd i eitem bryd i'r ymgyrch. The second item for the committee today is to take evidence at stage 1 on the Lobbying in Scotland Bill. Our first witness today is Bill Thompson, the commissioner for ethical standards in public life in Scotland. Welcome to Bill, a familiar face, of course, for all sorts of reasons. Let me just kick off our questions. Perhaps if you want to make an initial statement but my question will kind of lead to one anyway, just if you have general views on the bill that's been labelled and the implications for yourself in particular. I'm not going to express any views on the policy behind the bill. I have looked at it from the point of view of someone who may be asked to investigate complaints. I remain convinced of the importance of ensuring so far as possible that the requirements are clear because where there is vagueness, that may give rise to complaints, may make it very difficult to investigate complaints satisfactorily and may lead me to reporting to you that something may not be a complaint. I would prefer to avoid that position. I'm aware that the drafters of the bill have so far as possible in terms of the investigation and reporting procedure followed those which are set out in the 2002 act which established the post that I'm in. I think that in the application of that process to the regime under the bill, there is quite a risk of it becoming quite bureaucratic, which is time-consuming and, from my point of view, expensive. I don't think that that's what the Government is setting out to do in the bill. I'm aware also that it could be ameliorated or moderated by the Parliament issuing to me directions under the powers that are in the bill under specific areas where I think that that might be helpful. If the committee are interested in the detail, I could run through a nightmare scenario that would involve four or five reports to the Parliament dealing with a single complaint. That would be extremely helpful because it helps us get our mind round things if you can give us a however unlikely scenario that might play out in a way that is unhelpful to everybody. I will do that. The other thing that troubles me slightly—I have raised that before—is that at the moment three of the types of complaints that I have to investigate may also be criminal offences. Under my existing powers, if I come across something that may be a criminal offence, I report immediately to the Procurator Fiscal, since that is the system by which potential criminal offences are investigated. I can't see anything in the bill that would change that. In other words, quite a lot of the complaints that might come to me could be criminal offences. I would have to report them to the Fiscal. I am not clear what the Procurator Fiscal's or the Crown Office's attitude would be to dealing with those. At the very least, it would involve a bit of delay in me being able to conclude an investigation. As you will be aware from the bill, if I am unable to conclude the investigation within six months of the complaint being deemed admissible, I then have to report to you again. That is just another risk. I am not saying that it will arise, but it could be quite clumsy. Therefore, it does not seem to me that the bill necessarily achieves the sort of light-touch approach that I understand was the objective. There is one point of self-interest. Paragraph 49 of the financial memorandum says that I am satisfied that any costs can be absorbed within my existing budget. That is not what I said. I don't know how it has ended up in that format in the financial memorandum. It just is not the position. To address the issue, the Finance and Committee has written to us to make precisely that point that there is a difference between what we have had from different parts of the system. We will seek to address that. It is the member's interest bill that we are trying to get from the Lord Advocate. We are seeking, in a different area, to get something from the Lord Advocate that might help us in minimising the occasions when things automatically have to go to the Lord Advocate. It would certainly seem on the face of it that this would be another case for ensuring that you are not placed in the position of having to refer everything, although it will be relatively evident that it will not lead to prosecution. I suspect that that might be the answer. It would be useful if you suggested that there would be an example where there might be five reports. Your initial remarks have given us one example of where a report would be derived that clearly is only prescribed administratively but has no useful purpose. Perhaps the other one that you have in your mind would be useful to hear. With apologies, I am inevitably going to have to go into an element of detail here. If a complaint is received and it does not meet the conditions for admissibility set out in subsection 3 of section 23, and if it is of a sort identified in a direction from the Parliament, I have to report to you, for example, if the complaint is not signed. In other words, those are formalities that may not be complied with. I am supposed to do that in terms of the bill before I consider whether or not the complaint warrants investigation is a second stage. Assuming that I am directed by this committee of the Parliament to proceed with the complaint, I then have to look at whether it is worth investigating if it merits investigation I report again. That is the second report within a fairly quick succession on a single complaint. As I have just mentioned, if, because of, for example, overlap with the criminal system, there is a delay, there may not be a delay, but if there were to be a delay in those circumstances and it ran beyond six months, I would have to report again. Other possibilities are that the complaint is withdrawn. Then, again, I would have to report to the committee. Whilst I appreciate the need for parliamentary oversight of the process, it strikes me that, in that sort of situation, it is verging on overkill, and it is certainly bureaucratic. It takes up quite a lot of everybody's time. Yes. I think that that is quite helpful to spell that out, because it is sometimes on these bureaucratic issues that the integrity of the process can get compromised or appear to be compromised. Can I just add? If the direction making powers that are given to the Parliament, I think that it is under section 31, are used in a particular way, it would be possible to avoid the need for repeated reports in those sorts of circumstances. I am hoping that that is the position in which we will reach. I think that, without necessarily taking the sense of my colleagues on the committee, we have listened to that point very carefully. To be absolutely clear, it will not be the committee that determines the guidance that is given to us. We will recommend to Parliament. Just to be absolutely clear that we carry the responsibility for asking Parliament, but we do not decide to make clear that we have got that. Just one or two specific things. There are offences at section 21 about information notices and at section 42 with registration. I suppose that the question is just how well does that part of the bill work with your general power to investigate? I am not sure if I fully understand your question. I do not think that there is any restriction on my power and my duty to investigate, other than, as I have already said, the possibility that something that is reported to me as a complaint could be criminal and, therefore, I would have to be considered under the criminal prosecution system before I was able to do very much with it. There might be slight awkwardness in terms of how much of the preliminary work that I conduct under section 23 before deciding that something has to go to the Lord Advocate or the Procurator Fiscal, but I am sure that detail can be worked out. Similarly, we are talking about perhaps the relatively minor mechanical things that may happen. I take it if the directions that you were to receive from Parliament ensured that you were able to return minor complaints to the clerks rather than dealing with them in the first instance. That would not be a matter that would be likely subject to the content of the direction to cause you any concern. It would not. Although I admit that I had not, until recently, given that sufficient thought, I think that there is scope under section 2B of section 31 to set out circumstances in which certain types of relatively minor failures, which could be dealt with by an information notice, could be specified. It would put me in the position where, if that was the reason for the complaint, I would be able to refer it to the clerks to be dealt with under that procedure. I think that that would be really helpful. Certainly, at the core of our consideration, this whole issue has been all along that we do not want to create a punitive regime for small organisations in particular, who lobby Parliament and quite properly do so, who perhaps have not got the same professional advice and people to know at the outset the rules and the opportunity for the clerks to interact with those organisations in the first instance and help and guide and advise before seeing if they fail to respond to that when, in which case, it would then land in your entry. I suggest, under here I am in danger of straying into policy, which I am very wary of doing, but given my experience over more than 18 months now of investigating complaints of various sorts, one of the things that might be helpful would be some way of dealing with fairly minor issues without going through the full panoply. I do not think that that necessarily needs to be restricted to the smaller organisations that you are describing. Even a large organisation, if they have just missed out a detail, it seems unfortunate then to have to go through the whole potentially complex complaint procedure if there is a better way of dealing with it. Right. That is helpful. What I am taking from that is that, if the directions from Parliament touched on that issue, that would not be a red line for you. You would look at the detail of the directions and therefore it ought to be possible for us to come up with directions with which you would be comfortable in that regard. That opens up the wider question of whether you think the powers at section 31 are sufficiently flexible for us to work out a proportionate regime that operates at a light touch where the issues are not huge and can be sorted out quite quickly and still leaving you with the appropriate powers to deal with the more serious and recalcitrant people who might be part of the regime. I think that, convener, there should be. I am, by nature, an optimist and I have seen a reason why, given the right approach, that should not be achieved. I have not, David? Yes, convener. Morning, commissioner. I just have a general question that I would like to put to you that your office has been altered and changed in recent years and you have been in the post now for 18 months. Are you confident that any additional workload that would come from an act following from this bill is capable of being absorbed into your current workload? Do you have sufficient resources? That is really the question. I am confident that we will deal with it, but not without additional expenditure. My confidence is based on an assumption that the number of complaints will be relatively low. I am aware that the Government's estimate of the potential number of registrants varies significantly from 255 to 10 times that number. I have assumed, for the purposes of estimation, that the number of complaints will not exceed a handful—the number of complaints that are required to be investigated fully. Even if they do not, there will be extra costs. If they do not exceed that small number, I think that it will be manageable in terms of the resources that are available to me. Of course, we are speculating about what else happens in the future. If we were approaching Nirvana, the number of other complaints that I deal with would be reducing. I am not certain that that will happen. I think, overall, that the idea of the bill is meant to be what is described as educative and light touch. From what you have been saying, you think that it still has a way to go to just ensure that that is absolutely the case. That is correct. My experience of investigations is that they tend to lead to people, not surprisingly, becoming reasonably entrenched in their position and arguing their corner because somebody is investigating and therefore questioning what they have done and the propriety of it. Therefore, I am keen, as I detect, that certain members of the committee are to avoid having to go down a fairly formal investigative process if there are ways appropriately of dealing with issues that could be picked up by other means. You mentioned in your introduction that you were concerned that some cases might have to, as things stand, be referred directly to the procurator fiscal. I understand the kind of scenario that you are thinking of, but I wondered if, for the record, you might just like to tease that out a little bit. At the risk of being unduly simplistic, three of the criminal offences under section 42 are also matters on which complaints can be referred to me under section 8, section 1, section 9 and section 11 of the bill. On the face of it, any of those sorts of complaints would bring the risk that they could also be criminal. I do not know if I can go into any more detail. No, no, that is helpful. Gil, on that point, I was catching your eye. When it comes to MSPs, when there is a breach in registration, it is an automatic referral to the fiscal. I know that, in some instances, after matters have been investigated by your own office, and what comes back says that it is such a minor thing. I know that it does not actually say that, but it is reading between the lines. In that regard, I wondered if you were talking earlier on what we were calling raised with referrals to the procurator fiscal's office. Do you think that, or would it cause you any embarrassment or problems if you had some discretion? After all, you would be looking at that in detail and then finding out that it could be referred to, but because you have already investigated it, do you think that you should have discretion in minor, minor breaches that should not be automatic that you should maybe make a referral back to hear and say that this is such a minor thing? We might be effectively wasting the fiscal's time and resources. I am afraid that I am a bit uncomfortable about that on grounds of principle, which is that I have no role at all, as you well know, in the system of criminal prosecution. I fear that, if I or any successor of mine were to have that sort of discretion, it could be seen as effectively usurping the role of the Crown Office, the procurator fiscal, in deciding whether or not a potential offence should be prosecuted. I think that that is actually quite a big, it may seem a trivial thing and it may be that the particular issues that we are talking about are very minor, but I think that the principle is quite important and, at the very least, I would want to know what the attitude of the Crown Office was to that suggestion. It makes me a bit uncomfortable perhaps because I have a legal background and I am just growing up with a particular approach to criminal law, but certainly, as of now, I would not be comfortable with that suggestion. It is a thought that I always had that trivial matters should be left with you, but the reason that I then thought about it more might make me very uncomfortable for the very reasons. It is good to get it on the record as far as I am concerned and it puts my mind at ease. I came to that conclusion much later on, so thanks for that. Convenor, it is not strictly part of this evidence session, therefore I do not wish to waste time on it, but there may be other circumstances in which, when you are looking at investigation and enforcement regimes generally, you do take account of the fact that others, for example, in relation to members' interests for political donations, which go to the Electoral Commission, have a range of approaches. I am not arguing for those, but certainly on the point that has been raised that there are different approaches. I think that concludes the areas that we wanted to cover with you, Bill. Is there anything further that you wish to say to us that we have covered? If I could just elaborate slightly on a point that I made at the beginning about certainty, and I am looking at schedule 1 of the bill that identifies the types of communication that are not lobbying, the one that seemed to me a little bit problematic was set out in paragraph 5 and paragraph 6, and those are communications that are made in the course of a meeting or event arranged by or on behalf of a member of the Parliament or a minister. I am conscious that there are frequent events arranged, usually in the evening, in the building that is sponsored by members of the Parliament. I accept that some are done at the request of another individual, and therefore I would be covered by paragraph 6, but I wonder whether it is right that any communication that takes place in the course of one of those events should be exempt from being lobbying, because it strikes me that, if I were a lobbyist, I would regard those sorts of events as quite a good opportunity. I think that it would be fair to say that that is one of the issues that the committee will certainly be pursuing with the minister and considering in our discussions, because without having taken a formal position, so I do not speak directly on behalf of the committee in saying this, it did seem to us that it was what actually happened that mattered rather than at whose initiative it was happening. This is one of the areas that we will definitely be pursuing, so it is interesting that you have highlighted that to us, as indeed others have. The other one, which strikes me as slightly giving some potential for vagueness, is the exemption for journalism, which is not very well defined. Obviously, there are all sorts of forms of journalism, the types of publication, and certainly there are some that do, at times, adopt a line that could be thought of as lobbying some trade journals, for example, or professional journals. I am slightly concerned at the prospect of having to determine whether a communication that led to one of those publications was to be treated as journalism without any further explanation for what journalism actually means. I think that it is fair to say that one of my regular purchases is rail, which is a regular publication. I think that it would be fair to say that the editor of that certainly uses his column to lobby government. I think that the point that you make is a good one. I have nothing to add. That is very helpful. There is nothing else that my colleagues wish to ask. Thank you very much indeed for attending and for being so helpful in your comments. My pleasure. Thank you. I simply suspend for a change of witnesses. Right, our next witness is Joe Fitzpatrick, the Minister for Parliamentary Business. Joe is joined today by Al Gibson, who is the bill team leader of the Parliament in legislation unit, and Neil McLeod, the principal legal officer of the Scottish Government legal department. Let me welcome you all to the meeting. We have got a number of areas that we are going to ask questions on, and I am going to kick off by throwing the baton to Cameron. Cameron, if we just wait a second, it gives you time. Minister, do you want to say some opening remarks to us? Very briefly, first of all, thank you very much, convener, and good morning, members. First of all, the bill is parliamentary in nature, and for that reason, in bringing it forward, we have been very keen from the outset to work closely with the committee in order to ensure that its views are reflected in the legislation that we are proposing. The committee's report in February was pivotal in helping to shape the bill that is now in front of you. Of the 17 recommendations in that report, 12 fell within the scope of the bill, and all of those have been reflected in whole or in part in our bill. Of course, we have consulted more widely in the spirit of seeking to achieve a broad consensus, and the bill attempts to pull in and reflect some of those views from stakeholders as well. Throughout the development of the bill, we have been guided by three underpinning principles. First, that there cannot be any erosion of the Parliament's principles of openness, ease of access and accountability. Secondly, that the register of lobbyists must complement, not duplicate existing transparency measures. Thirdly, that the new arrangements need to be proportionate, simple in their operation and command broad support within and out with Parliament. Those principles, I think, have been broadly welcomed by all stakeholders and are at the heart of the bill that I have presented to Parliament. They continue to guide my thinking as the bill proceeds through its parliamentary stages. The bill in introduction seeks a balance between the interests of a wide range of stakeholders. Similarly, it seeks not to create unwelcome imbalances that could work against the Parliament's interests. The Government will continue to listen to views on how to improve the bill, but it is important that any changes must still ensure that the register is proportionate, simple and does not place an unnecessary burden on those seeking to engage with elected representatives. The same is true in respect of meeting the committee's own firmly expressed views that the upkeep and oversight of the register should have very limited impact on the public purse. That said, I am very pleased to take questions from committee members. I am concerned that lobbyists wishing to conceal their identity will surely shift to other forms of communication if they want to conceal it, although they might not reveal it. If an NGO has paid employees and unpaid employees, would they not be able to switch those people around so that the unpaid employees are not registered and the paid employees are? Obviously, I watched the session last weekend and there was a fair bit of discussion on that issue. Our approach has been to develop a framework that is proportionate and commands broad support, as I said. We have had to form a view about what should be the trigger for registration. Like the committee, we wanted a proportionate system that increased transparency, but also one that does not discourage participative engagement. Our starting point was the same as the committee stated in paragraph 91 of your report that lobbying activity still places great value or face-to-face communications over emails, phone calls or telecommunications of any kind. That was a conclusion that you came to after your evidence. We thought that it was an important starting point. That strikes the right balance, improving transparency without placing so great a burden on those seeking to engage with MSPs or ministers as to become a barrier. In that position, we have also tried to reflect further on the committee's report, where in paragraph 103 you recognise the ease of registering details of face-to-face meetings or events when compared to the prospect of registering details of all communications. You then follow that up in your report in paragraph 107 and 109, leading to the conclusion in paragraph 111 of the committee's report, which lays out the committee's vision of a register that specifically refers to meetings that have been pre-arranged by the organisation and events, including meals that are arranged by the organisation. On where to draw the line, we were very mindful of the committee's extensive engagement in coming to your conclusions in your report. We are aware that there is a spectrum of views ranging from those who concur with the committee's previous report in the early years of the Parliament, which concluded that there was no need for any legislation in this area to those who are lobbying quite effectively just now for a much more heavy-handed regime. We think that the committee's proposals struck an appropriate balance, and that has largely been the basis of the bill that we have brought before you. To the specific point of shifting activity, whether it is from types of person or from types of communication from face-to-face to email, I guess, is what you are implying. I think that we need to remember the context for which the bill is coming forward. It is one in which I think that we are all agreed that lobbying is deemed to be a positive contribution to our democratic process. Rather than being about probity, it is about transparency. Those lobbying, I would hope, will embrace that increased transparency as a good thing that values their contribution towards our democratic processes, rather than something that they would try to avoid. We should also remember that the bill is part of a larger transparency framework that would almost certainly flag up if there was a shift of behaviour, as the question suggests, implies might happen. In those circumstances, the Parliament, I would have thought, would be wanting to look at the framework and look at whether changes needed to be made to strengthen the regime as appropriate. Right now, there is no indication that those involved in lobbying in the Scottish Parliament are seen in anything other than a positive light as contributing to the knowledge that we have, contributing to our work as MSPs, as ministers, and I see no reason why they would try to hide that activity in any way. I wonder if I might just come in on the matter of our report. In particular, Minister, you referred to the first paragraph, which is paragraph 91. We, as a committee, are seeking to make a distinction between what activities might be used to constitute a trigger for registration and what might, thereafter, appear in the register, which might encompass other activities beyond that activity used for registration. I think that you will probably get a certain amount of questioning about the two appear to me. I just want to, specifically, since you referred to paragraphs, at 1 1 1. We have very carefully used the word including, so I do not think that, in giving a list of what might appear in the register, we were seeking to exclude things that we did not happen to have listed. You are actually right that there is a difference between what might be a trigger and what might be recorded. I will return the baton to Cameron. I was wondering if people who actually wanted to conceal things, if they really wanted to conceal their activity, and it is by emails, as you said. There is definitely an email rather than writing. How would we handle it? Have we put enough restraints on that, on people who actually really do want to hide what they are doing? I change and bring different people to the table or under different organisations, because certain organisations are quite similar on these so things. I just do not think that there is the framework in which we are in, that is not the atmosphere in which we are with lobbying just now. The only danger of that becoming a problem would be if we were to bring in a framework that was onerous, then there would be a danger of people trying to avoid it. If we can agree on it and we are going through a process here, I am still listening to the views that the committee will bring forward, but if we manage to maintain a proportionate, like-touch, educative framework and regime, then I do not see the reason for anyone to try to avoid that, because lobbying is a positive thing. We are proud of the engagement that we have with stakeholders of all sorts, and it is something that we value. You do not think that that will put people off with our like-touch. As long as we maintain whatever changes happen to the bill going through, as long as we maintain a like-touch regime, I would certainly hope that that would not be the case. I say no reason for that. If the regime remains like-touch, the stakeholders, even those stakeholders who feel quite strongly that there is no need for a regime because they have voluntary codes or they do not see a problem, feel that the regime that has been proposed by government and the proposal that came forward from the committee are both like-touch enough that the cases that have been made by others are prepared to accept and work with it. I think that the danger would be if we bring in something that was onerous. Maybe just before we move off that subject, minister, if we were to extend the range of information that was required to be recorded in the register to include numbers of emails, letters and publications, and that is not intended to be a complete list, do you think that that would constitute a problem? I say that in the context of not seeking for us to change the qualifying requirement, both for the registrant and perhaps, to some extent, you might be able to say in relation to the register itself. There are two significant changes that could be made to include other communications. I noted last week when you were in discussion that you implied that it might be possible to include more communications without increasing the number of registrations. I think that it would depend where a change was made. If a change was made to a trigger to include emails so that an email was a trigger, I think that that would significantly increase the number of people who would have to register. As an MSP, if you just look at your inbox either by post or by email, the number of organisations that contact you on various issues that would then be caught as a trigger, most of whom you will not have any further engagement with, sometimes perhaps responding by email if that is deemed necessary. The other point, of course, would be to include written communication which is related to an already registrable event. We already have a trigger in terms of face-to-face meetings and there may be communications around that. Clearly, that would not increase the number of registrations as you have implied but would potentially increase the amount of information that such a registrant would need to provide. There are two different things. What we would need to be careful of is how onerous that would be on the lobbyists to provide that level of information and how onerous that would be on the clerks of the Parliament in order to administer such a scheme. If we were to go down that route, we would need to tread carefully to make sure that we were not putting in a barrier that then said to people that we are not going to engage any more because it is just not worth it. What we have done within the bill is to provide a power in section 15 of the bill that would allow a future date to do an inquiry into that to specifically look at whether that is an extension that you would want to make to the regime and make such a change. That power is already within the bill, as it stands. David Whittle has indicated that Patricia Whittle wants to ask about the broadening of communications. We appropriately go to Patricia Whittle first, David. Just as a general point, convener, it is quite important that we are very careful about language here because engagement and lobbying are very different things. It is lobbying that we want to catch in the register not engagement. That is something that we all need to be very, very careful about. However, I wonder how it will be possible to capture or to demonstrate who initiated the contact. Is that something that has been thought about? Again, we had to make a decision about how we could get to a point where we were not making it difficult for MSPs and ministers to seek information from external sources that they deemed to be important. The aim here is not to hide anything, but to preserve the ability for MSPs and ministers to get external third party policy information without the person that you have asked to come in being required to register. I suppose that there is a degree of self-regulation in that the MSP or the minister would know if they initiated the meeting. One of the things to be clear is that if somebody were to casually ask me for a meeting, that is still caught by the bill because the third party has requested a request for a meeting, so it is still caught. We have tried to draft this in a way to exclude any underhand ways of having a meeting requested to make sure that we have maximum transparency of those meetings. Obviously, those sorts of meetings, if initiated by an MSP, would be covered by the ministerial proactive releases of such meetings. It is about trying to find a balance to make sure that we are not debarring and we are not making it more difficult for people to engage with MSPs and ministers and to block that access to factual information. Just before I return the baton to Patricia, one of the things that has come up with me in the last 24 hours is that where someone is required to be in the register, there is a prescription as to what they register. In the case, as it is presently drafted, where the minister or MSP initiates the conversation for their benefit, it could well be that the lobbyist who is engaging in that wants to register the fact of that meeting, but it does appear, as the bill was drafted, that that is not permitted. Only a voluntary registrant would appear to be able to register that. I am getting a sense that that is not the reading that the officials have of that, and if that is the case, it would be helpful to get an indication that it would be perfectly possible for a registrant to be able to register additional information beyond that, which is required, of which there would be only one example. Indeed, as you have noted, convener, there is a provision for voluntary registration in section 14 of the bill, but that is not what we are talking about here. In section 7 of the bill, there is provision about additional information, and the general scheme here is where somebody is required to register the register, and there is certain information that they must provide, but there is also the facility for them to provide additional information, which the clerk can include in the register as they see fit. That is exactly the words that we are causing some slight concern. In other words, you have to persuade the clerk is the way it seems to read, as the clerk may seem fit. I know that it is probably just a legal construct, but it would be very helpful just to have on the record that, basically, subject to it being legal and not libelous, and all those tests that you would routinely apply, you see it as entirely proper that a registrant would be able to submit additional information. Indeed, the intention behind that provision is to allow the submission of additional information. It is necessary for the clerk to have some discretion, but that is certainly the intention. There is also, of course, the ability for the Parliament to issue guidance about the operation of the regime, and that is, for example, a matter for the Parliament, but the sort of thing that that guidance might properly… Right, that is helpful. Patricia. I do wonder whether it matters who initiates the conversation. I am aware from the evidence that we have had previously that in Canada they had a provision like that, and they changed it after a few years, because it was becoming seen as a loophole that allowed lobbyists to act without having to be recorded. We did look at the international situation in terms of such provision, and there are 10 models that we are aware of, and there are only three of those that do not have that provision. That provision is overwhelmingly considered to be appropriate. I think that the only three that do not have, and I will be corrected by all of them, is United States of America, Canada and Slovenia, which are the only ones that do not have that provision. I think that the reason that provision is there is in order to make sure that we are not making it more difficult for MSPs to go and say to an organisation, I need to pick your brains to get information about this question. I am going to ask for opposition MSPs to challenge the Government on an issue for ministers to help to develop policy. If we do not have some way of accepting those types of contacts, you could go and contact an organisation and say, could you please come and help me with this piece of work? I am at this policy direction, I am trying to develop, and they will be, yes, that is great. Oh, and by the way, you are going to have to register for that, and then there is a danger that we have lost, and it is about trying to find that balance. I do not think that there is an atmosphere of suggesting that people are going to try and avoid this register. I thought that the comments from Professor Charry last week about the Canadian Cancer Charity, which tries and gets as much information on the register as possible, because they see it as a positive way of seeing the impact of their organisation, which was interesting. If that is the way that the register is seen as a positive tool, I hope that that is the way that it would be seen. I accept that there seems to be something slightly contradictory about the bill in Sifara's section 44.3. In this section, lobbying means making a communication of any kind to a member of the Parliament in relation to the member's functions. That seems to me to be considerably broader. That is in terms of the code of conduct. That is intentional in that the bill is dealing with registered lobbying, and the code is able to deal with all lobbying. It is appropriate that the code can go wider if the Parliament seeks to, so in terms of providing guidance. There is an intentional difference between those two things. They have a different purpose. Just to be clear, minister, the code of conduct would cover those people who would be eligible for voluntary registration, but may or may not have chosen to voluntary register. The intention is that the code covers that category of people. The code would cover all lobbying activities, so it would be appropriate for it to go much broader. The three categories of lobbyists—in other words, those who are required to register, those who voluntarily choose to register and those who do not register at all. The code could cover—the powers there are pretty wide in terms of how the Parliament determines to take that forward in order to make sure that we are covering and getting the maximum amount of transparency. That is in line with the principle of complementing existing frameworks, so we have regulated lobbying, which the bill deals with, and unregulated lobbying, much of which is dealt with by other frameworks. I understand what the bill is trying to do, but, in effect, that 0.344 is almost defining lobbying. It would worry me that that would be different from something that was elsewhere in the bill, and I just wonder whether something might be looked at. We are obviously happy to continue looking, but the purpose here is to say which lobbying is regulated by what is a statutory regime and which lobbying there is guidance that the Parliament makes provisions for. The point is that the bill can tie in with the MSPs, the MSP Code of Conduct, and other frameworks and ministerial codes can all be tied in with that. The bill has been written with that section in a way that it is flexible enough for the Parliament to use those powers in a way that it sees fit. That clause just needs to be looked at again. David, do you want to come in now? Thank you very much, convener. It is just a small point, minister, that I would ask you to consider and comment on, if you wish. One of the exemptions is communications in, et cetera, cross-party groups, but quite often with cross-party groups, after a discussion, the group will actually communicate right to a minister or cabinet secretary or indeed a health board or councils and so on. It is not just communications within cross-party groups that we need to consider, it is the impact of that cross-party group then writing to ministers and so on. I wonder whether that needs to be broadened a wee bit to cover that point. I guess that our initial point is that the committee has, I think, recently strengthened the framework around how cross-party groups operate. It is about balance and not duplicating other matters, but if a minister was supposed to come to a cross-party group, that is obviously on the record that is already in the public domain. I am not even sure who would then be registering that on the lobbyist that they have a meeting with the minister, that if the cross-party group has a meeting with the minister, who would then register that? I am not sure that it is adding any transparency. I think that this committee has made some inroads into improving the transparency that surrounds the framework for cross-party groups in the Parliament. I think that, if we remember back to our three principles, one of them is to make sure that we are not duplicating other frameworks that are already in place and other procedures that are not crossing over. It is not so much what takes part at a cross-party group meeting, it is what might take part after that meeting where the cross-party group picks up on an issue about the number of physiotherapists that are available in the country and then decides to write to the minister asking that maybe the convener, secretary, treasurer or whoever, a wee delegation, could meet with the minister to consider those matters. It is that next stage. Okay, so let me just try and understand who is meeting I think before we can, I will maybe ask Al to come in in a second, but let us understand who is meeting. So if it is the convener of the group that is meeting with the minister then clearly that meeting is not covered because it is an MSP that is meeting. If it is the secretary who might be, of course, a lobbyist working for a big pharma company, let us just go to the extreme. I was going to say that the exception as currently drafted is looking to capture the engagements within a meeting of a cross-party group recognising, as the minister says, that there are separate rules in place governing the probity or activity of CPGs. The situation that you appear to be envisaging is, one, if there was a written communication on the back of a CPG as currently drafted, the bill would not capture that, that would just be as currently just the face-to-face meeting. If there were a face-to-face meeting, then Neil will maybe correct me if I am wrong, but I would assume that that meeting would be separately registrable because it was no longer made in the course of the CPG forum. That is correct. If it is with a lobbyist of some sort. So the intention is that if a CPG requests a face-to-face meeting and folk who are non-MSPs meet a minister, the CPG would need to register as lobbyists. No, no, not the CPG. Well, who would register with the people meeting, the minister, or how would that work? I think that the exception at the moment is designed to carve out communications that take place at a meeting of the cross-party group. If it is a communication in the course of any meeting of the cross-party group, then the intention is that that is not a trigger. If there are then meetings between members of that cross-party group and ministers or MSPs, then you can go back to the starting point that that is registrable unless any of the other exceptions. Can I just confirm that it would be registrable by the organisation that that person represents? Minister, whoever was delegated to meet the minister to take forward the point would be representing the cross-party group. If a cross-party group decides that there is an issue they want to pursue, then how does that... It might just be something for further consideration. I think that they are covered in terms of by the organisation, but we will take it away and just confirm your point on that. It may be just useful at this point to express a view from the chair that some cross-party groups schedule a meeting, have a meeting, but it turns out not to be quarret. Although it has all the appearance and operation, as if it was a cross-party group it would not meet the definition of being a meeting of a cross-party group. I put it on the record so that cross-party groups might care to note that the introduction of the bill may widen some of the implications for their meeting when they are not quarret. I just made that point. I think that there is further examination on another occasion, but I think that there is an important point for cross-party groups to note. There is always going to be an importance in part of taking this forward, so that is what will be helpful. Minister, did the Government consider whether other individuals such as civil servants, parliamentary officials and senior agency staff be included in the definition in addition to MSPs and ministers? Yes, we did consider whether there were other appropriate bodies that we would want to include, but it came down to coming to a right balance. We have gone for us to reflect on the conclusions that were reached by the committee, which was then backed up by the SPCB, who made clear to the Government the need to consider the impacts of any register model that might create a resource burden greater than that envisaged in the report from February, so we had to look at that very carefully. In considering whether ministerial special advisers or MSP senior advisers, I would draw the distinction that advisers, whether they are advising MSPs or ministers, advise, whereas the decisions are ultimately made by the MSPs or the ministers. That is why we think that we have got the correct balance here. Any move to widen that definition of a law by E in the bill would clearly result in a greater number of registrants and returns that might particularly be the case if the range of communication that the trigger of the bill required to register and report lobbying was expanded. It is about trying to get a balance in a proportionate registration, but ultimately the reason for the decision was that MSPs and ministers make decisions special advisers and MSPs senior advisers advise. I want to get a technical point out of the way. Given that the civil service is UK civil service, is it correct that this Parliament would not have the power to legislate directly in relation to civil servants, albeit that we could legislate in respect of lobbyists who are engaging with civil servants? Is that a correct and fair distinction that you would want to make clear to us? Clearly, the civil service is reserved in terms of schedule 5 to the Scotland Act. As with many things, it will come down to an application of the purpose. It would have to consider the purpose. There is a virus issue that we will not attempt to resolve here if we were to get ourselves in position of legislating about the civil service. Is the civil service reserved in terms of schedule 5? That is all right. I just wanted to get that technical point out of the way. I understand that point, although I was not quite aware of it until the convener raised it. However, it is fairly certain that lobbyists make inroads to or discuss matters with civil servants on behalf of the Government. Would, in effect, if a lobbyist did make contact and discussion with a civil servant, the minister would be required to register that, because it would be a decision that a Government might make based on that information. In a way, inadvertently or even in a way, they are lobbying the minister? Obviously, what we had to do and the conclusion of the committee was to look at where a line would be drawn. The committee's report stated and we concurred that face-to-face direct lobbying was of a different scale than any other types of lobbying. We are not saying that there are other types of lobbying, which is why the code looks at unregulated lobbying. In terms of regulated lobbying, face-to-face, where you can see the whites of somebody's eyes, is on a different scale. In a similar vein, in other jurisdictions, we have a cooling-off period for people who were MSPs or maybe they were working in some capacity for the Government. There is a cooling-off period before they can effectively engage with the Parliament and the Government in relation to lobbying. Had the Government given any consideration to that kind of degree of people? Yes. Again, from the evidence last week, it sounded like Ireland had included something like this in their legislation. That may be because Ireland does not have another framework in place to deal with those situations. Obviously, we do. Civil servants who leave the service are covered by the business appointment rules. Again, it is a UK-reserved matter, but unless they are covered, which provides for the scrutiny of appointments that form our current servants proposed to take up in the first two years. There is a two-year period for civil servants. Special advisers are also covered by the business appointment rules for civil servants. Senior special advisers are the same two years, and other special advisers are a one-year period. Effectively, those are cooling-off periods. The ministerial code also has provision for a minister leaving office being prohibited from lobbying Government for two years, and they are also covered by the independent advisory committee on business appointments about any appointments or employment that they wish to take for up to two years. While it is not in this bill, it is in the overall framework that we have. We are not. The bill has no intention of being the one piece of legislation that provides transparency and property in Scotland. That is not as intention. Its intention is to complement the frameworks that we have in place. I can well understand the answer that comes from a Government perspective and a civil service perspective. I wonder if you could make any comment with regards to the concept of MSPs and folk who perhaps were never involved in Government, but were certainly senior advisers in a political capacity and paid for by the Parliament through the allowance system. Should they be included or should there be a cooling-off period for them? Speaking absolutely personally, I do not think so. We are on a different scale there, and I think that that would be disproportionate in terms of if somebody has stood for election and we are not in control of our fate in these matters, has done a fantastic job as an MSP for whatever party to find themselves out of work. I think that that would be disproportionate. Sorry, I have a question, but I am reflecting on what the minister said laterally. I have a funny feeling that the Public Appointments legislation restricts former MSPs in the positions that we can consider to public roles. It might just be worth a bit of a look at that to make sure that there is synchronicity at least there. I am not personally aware of that. I think that Patricia Ferguson is absolutely correct. There are certain public roles that there is a cooling-off period for appointment to the members' experience in particular. Going back to Collie Gil-Paterson's earlier question about the category of people to be caught by the legislation, if that is the right word, I wondered about people who, for example, are chairs of agencies, such as NDPBs, whether there was any consideration given to them being subject to the legislation. There is also another category of parliamentarian, which is the parliamentary liaison officers, who have quite a lot of access to ministers, presumably, but who might also be the conduit for lobbying. It might be quite important to ensure that there is transparency there. The parliamentary liaison officers will obviously be caught as MSPs. I think that the one big difference between the legislation and the legislation elsewhere in the islands is that it does, again, on recommendation of your report, include MSPs as well. Parliamentary liaison officers are caught by this, so people cannot use that as a backdoor to get into ministers. That is not possible, because meetings with all MSPs are caught by the legislation. Chairs of NGOs will be caught if they are paid for in that role, and there might be a small number who are not paid for that role. Generally, they would be of belonging to organisations that are of such a size that the organisation will already be registered, so that, voluntarily adding the information for a senior unpaid person would not be onerous. I am not convinced about the PLO issue, because I think that they have a very specific role over and above their role as an MSP. In a sense, it is the same argument that we make for including ministers rather than MSPs only, because we recognise that there is a specific role there. I would be very anxious that, if they were not covered by the legislation, lobbyists might see them as almost fair game as a conduit to ministers. That would certainly not be the intention, but what we will do is go away and just check to make sure that we have inadvertently created a backdoor to lobbying that is not the intention. I do not think that it is, because the intention is that all MSPs are covered, so that would include parliamentary liaison officers. Sorry, minister. I am not suggesting that it does not include PLOs as MSPs, but I am saying that in their capacity as a PLO they understand your question. Let us just take that away and make sure that we have not missed something. I move on to the thresholds and triggers. Essentially, to be a regulated lobbying requires there to be payment to the person who is undertaking the lobbying or, more broadly, reward to the person who is undertaking the lobbying. What consideration did you give to other definitions and why did you end up with that particular definition? First of all, we wanted a level playing field so that everyone was treated equally, so it was about finding that mechanism. Therefore, there were two serious possibilities in terms of taking that one forward. One was the committee's preference in terms of a threshold and the other was the idea that paid lobbying provided a threshold. We considered both very seriously. We were concerned that having a threshold in terms of a number of meetings over a year would provide a significant potential loophole where an organisation could manage the number of meetings in order to not trigger that threshold. Even if there was no intent to not trigger the threshold, or to avoid it, it could fail to register significant acts of lobbying. You could potentially have one meeting, which is of great significance and would not require to be registered. That was our concern. We did, of course, because we consulted on both proposals in terms of taking it forward. I think that both proposals were trying to achieve the same thing in terms of finding a proportionate way forward where we were not catching minor acts of lobbying and also not missing significant lobbying. The consultation was overwhelming in support of the paid lobbying being the test. When we look at big NGOs in particular, who will employ people who are part of their duties to lobby, those individuals are paid and caught by the definition. Equally, there will be large numbers. I do not choose them for any particular reason, but the RSPB has six figures of numbers, if I recall correctly, and maybe even over a million. Of course, the individual members who are not paid to lobby can nonetheless be a significant part of lobbying activity, but would appear not to their activity, even though acting on behalf of that organisation would appear not to be caught. That is a correct understanding. Do you think that that is the right way of dealing with it? I think that it is the right thing. I do not think that it matters what somebody's job description is, so let us be clear that the RSPB employs somebody with a different—it does not have the title of lobbying in and yet they are lobbying, then they are caught and so they should be. However, I do not think that it is correct that a member of the public who happens to be a member of the RSPB who wants to engage with their MSP on an issue that the RSPB is lobbying so that they should be caught. Whether it is members of the RSPB, members of the Boysbury Gade wanting to lobby half their organisations, I think that it is correct that the bill does not catch those individuals. I was seeking minister perhaps to take it to a slightly different domain, not specifically constituent on behalf of the RSPB engaging with our own MSP, but perhaps coming to Parliament engaging with a range of MSPs, many of whom do not represent them. For those individuals, I do not think that they should see any hurdle in terms of engaging with the Parliament, with the Government. That is exactly the sort of people that we want to make sure that we are not putting any barriers in place of. Last week, Neil Finlay raised a useful example of organisations being involved in the eco-marriage debates, so there were two organisations. As Neil pointed out, both of those organisations had strongly held views. They both would have been caught in terms of their organised lobbying. They both had people who were paid to be lobbying and those people would correctly have been caught. I think that it would be wrong if we were to have a bill that would then make it difficult for the folk who were supporters of those campaigns to engage with MSPs and ministers to engage in the debate that we had and to any barrier of those individuals. That is exactly the sort of people that we want to make sure that we are not catching. Nonetheless, minister, it is the organisation that is the registrant, not the individuals. The case is being made to us that all activity that is on behalf of that organisation, which requires because it undertakes regulated lobbying activity, all activity that falls under that should be caught by the register, notwithstanding the fact that some of that will be undertaken by people who do not receive any reward for doing it. I think that it would be interesting to hear what you are reasoning for. I feel quite strongly that those people should not be caught. I think that there are a number of reasons. In sticking with Neil's topic, during that campaign, I had a particular position, but I engaged with a large number of constituents. I would not think that the two organisations will have known who engaged with me. Putting in place a complexity that I think would be very difficult for us to manage, I think that we would have a strong potential for the organisation to say, you cannot do that unless you let us know first world. I do not think that anyone should have to get permission to engage either with the democratic process. I think that there will be that lobbying. That is the lobbying we want to encourage. I do not think that we should shy away from the fact of using the word lobbying for that type of activity, because I think that it is what it is and it is appropriate and it should be welcomed. That is helpful to get that on the record, minister. The other thing that I think is a bit of a head of steam among some people out there, and which probably the majority of the public might feel would be an appropriate trigger, is the actual level of expenditure that is undertaken. What consideration did you give to whether that could be used as a trigger and why you ended up dismissing it? I think that using the level of expenditure as a trigger would have been pretty easy for third party lobbyists, for consultant lobbyists. They will have a line and they will know exactly how much they spent on a particular campaign, so it would be dead easy for them. It would be probably slightly more difficult for in-house lobbying of big organisations and it would potentially be quite onerous on some smaller organisations. I am not actually sure that it would be terribly, terribly helpful. Your focus, minister, is on the activity of lobbying and whether there is a word associated with undertaking that activity. You are seeking to argue to us that that is a more clear, cut and unambiguous definition than simply financial. In order to find a regime that is simple to understand, either the two methods, the one in terms of the number of meetings that was suggested by the committee or paid, would work in terms of that test. You are also suggesting that the financial test might bear disproportionately on those middle-ranking organisations, the small ones that are not paying at all. I think that potentially it would impact on smaller. It would bizarrely be easiest for the consultant organisations because they won't have to do any work to do that. They will know exactly how much money they have spent on a campaign. Nonetheless, do you recognise that the public might have a perfectly reasonable interest in, just for the sake of argument, how much the drinks industry is spending to resist the agreed policy that we have in this Parliament of minimum pricing, just to choose one example? Obviously, if we are sticking with the trigger as is, the bill allows for Parliament, after consideration, I would have thought, to extend the details that are on the register. The bill would provide a framework whereby a future committee could say that they felt that that is information that the clerks were in a position to register and to maintain the system, which had that information to make sure that we have a system that works and that it is proportionate and useful to the public. All those considerations would need to be taken into account, but we have within the framework of the bill provided the power for the scope to be extended in that way in terms of information that is registered. Now, just finally, perhaps, there are quite a lot of lobbying organisations that are in themselves charities and, therefore, are already regulated by Oscar. Is this creating, in a sense, a dual registration for such bodies, the approach for taking and creating difficulties for them? No, it does not. Oscar's role is very different to what this bill is. It would be important for us to make sure that there is no duplication in terms of Oscar's role and what the bill is trying to achieve. Thank you. I wanted to go on Minister to talk about the content of the register in a wee bit more detail, particularly in reflecting on the discussions that we had in the round table last week. There were some suggestions about other things that should be included. For example, expenditure again was seen as being quite an important thing to reflect the level of concern that an organisation might have in an issue. There were suggestions that banding might be quite helpful so that you would have a band that you could indicate to help to protect commercial confidentiality. However, another suggestion was also about the employment history of lobbyists, because sometimes it is not the seniority or the position of the person in the organisation that matters, it is the contacts that they have as a result of previous activity. I wondered about those and any other issues that you had thought of. Section 15 powers are designed to offer the Parliament full flexibility over the operational aspects of the register, so it would be within the Parliament's powers to stress the Parliament, not the Government, to change what is required to be there. I would have thought that Parliament would want to do that carefully, making sure that we were not putting an overly onerous burden on it, which would then provide a block to engagement with the democratic process. That would want to be done carefully, but we have provided the power to allow that to be added. The bill is designed to provide a framework that is flexible and can evolve as the Parliament sees fit. One of the other issues that we discussed last week was the idea of a six-monthly return. There were a variety of views expressed about that. I think that most of those who were what we would understand normally by the term lobbyists already have systems in place that allow them to record contacts, because that is what they are about, and that is very important to them. There were suggestions that we should have, maybe once a year, registration rather than every six months. There were others who thought that it should almost be like a rolling register. I just wondered why six months was the figure that was arrived at. We had to find a figure that was balanced, but the reason for a rolling six months rather than a six-month cut-off on a set date—a census day almost—was a census day, that would put an unnecessary burden on the Parliament in terms of all that information coming in at one time, whereas if people do it at their own time, it will spread out over the year and, hopefully, that will be managed more easily by the Parliament. That was the main reason for that. I listened last week, but I can see how that might be helpful to the organisations, but it might put a burden on the Parliament that does not help too much. Can I just be clear? It is not the intention that the bill prevents where the registrant thinks that it is appropriate to do so an early update. We also discussed the information about the lobbying activity itself. As I understand it, at the moment, we talk about the purpose of the lobbying. There was a suggestion made that perhaps that needs to be a little bit more specific and perhaps talk about the outcome that the lobbyist hopes to achieve, which is perhaps a subtle difference, but perhaps an important subtle difference. Again, I think that the bill is written in a way that that could be added, but Neil, do you want to? You are absolutely right. The way the bill is framed at the moment, one of the bits of information that has to be provided is information about the purpose of the lobbying. There are different formulations in other legislation that refer to purpose and outcome. Again, purpose can be construed fairly broadly. There is again the ability for Parliament to issue guidance about the operation of the regime and which can add colour, if I put it that way, to the provisions of the bill. Certainly at the moment, it is the purpose of the lobbying, is the way that the legislation is framed. To be clear, section 15 would allow us to prescribe not simply in guidance. The section 15 power allows, it gives Parliament the power by resolution to change bits of the framework, including the bit of the framework that prescribes what information has to be provided. Yes, and that goes beyond mere guidance. I think that we are back to Cameron now. Flexibility? Yes, I have it here. I was concerned about the flexibility of the lobbying bill, because there are no powers to alter provisions of it in the flexibility. Was this coming back to it in relation to the exclusions of the lobbying bill? I wondered how you would think of that, because I was concerned about the flexibility of it. I think that there are provisions to alter things on it, but not enough. What we have tried to do is to give maximum powers in terms of the operation of the bill, but the core principles—our view is perhaps—should be decided as the bill goes through. If there was a major change to the core principles, that would require to come back appropriately to primary legislation. Do you mean that that is what we used to call a sunset clause? No, it is simply saying that here are things that are appropriate in terms of the operation of the framework that the bill is bringing forward and that the Parliament will want to consider more regularly. I think that a committee similar to that committee would probably want to look at how the bill is working and how the registration scheme is working to see whether we have got it right. If we are changing the basis of who has to register, that is more significant and that would more rightly be something that the Parliament would want to look at in terms of future bill. Who would have the responsibility for lodging that? In terms of a bill, a bill would be whoever sought to bring forward a bill, so that it could be a committee bill. In terms of the changes to the operational powers, that will be one of the things that the Parliament needs to set out in standing orders. It may very well be that the likely committee would expect standing orders to give that provision to in a similar way that the committee looks at the other standing orders, such as members' interests statute. Obviously, it is for the Parliament to decide how to take that forward, but I would have thought that it would be a standing order change that would give that role to the committee. It would be helpful to say that some early consideration has been given by the clerks to what standing orders changes might be and code of conduct and a range of things that are provided under the bill. I think that the expectation at the moment at least is that it would be for this committee or its successors to bring forward those matters in new course, but for Parliament to approve or reject, of course. Do you think that the Parliament could be lobbied to get this changed by lobbyists to get this thing changed? It could be recorded. One of the great things about this committee—I imagine that it has been the same format for its predecessors—and the committees that follow that, I think that you would be quite resistant to such actions, and you will base your decisions on the evidence that you see. Patricia. No, I am thinking of what would be an enforcement if we—or if we, basically, I think— Yes, David. Sorry, a big one. Right. Is it Gil? No, no, it's David. David, come on then. I've passed you on out. Sorry. Thanks, convener. Yeah, I just want to pick up on the oversight and enforcement issues. We heard from the commissioner that he had some concerns about that and he outlined a sort of nightmare scenario where he would have to be reporting back on numerous occasions. And it's all to do as well with the duty that he has to report any criminal matter to the Procurator Fiscal. The policy memorandum is saying that this is a light-touch approach, educative, etc. But if someone reports to the commissioner before the clerks, for instance, have had a chance to deal with something, then we're automatically into this situation where he has to put it to the PF and so on. I just wonder if you can comment on those concerns. First of all, I think it is very important that we have that legal basis to the bill. Without that, it would be, I think, difficult for clerks to do their job in terms of education and getting people to register properly. The purpose here is absolutely for an educative and light-touch regime. There's no requirement in the law for the commissioner to report to the Procurator Fiscal that that is not the intention. Do you want to give a little bit more of a background to it? Again, under the member's interests, or more correctly, the old Scottish parliamentary standards commission legislation, the directions could be brought forward. I understand that there was one brought forward in that context with regard to how the commissioner should handle certain matters, and if it came to his attention that in his eyes there was reason to do so, then he could refer matters to the Procurator Fiscal and await a decision as to whether a prosecution was required. Reflecting on the fact that this is meant to be a light-touch regime, we purposely did not include on the face of the bill any such requirement. However, under section 31, as drafted, there is the potential for a mirroring provision to what other statutes have, so we could have a direction making power parliament could choose to direct the commissioner to act in a similar way. However, again, we thought in this particular statutory framework that that was not appropriate. Again, I do take the point about members of the public. As with any offences, it would be open to members of the public to approach the police or whoever and seek to take forward prosecutions or, indeed, for a point 1 to put complaints to the commissioner. Again, on that same basis, a direction, we have had the discussions over the issue about whether the commissioner would be unduly caught up with matters of lesser significance that did not warrant investigation but were still issues as regards the integrity of the registrable information. Again, we would suggest that the power under section 31 could be used for the Parliament to direct the commissioner on how to act in cases such as that, so that potentially such issues could be referred back for consideration by the clerk. The intention would be that pretty clear guidance and direction will be given to the commissioner to ensure that trivial matters do not end up before the fiscal, with all the delays, etc. The commissioner will very clearly know and understand what he is able to do in putting those sorts of things back to the clerk. Is that what you are telling me? There is no requirement for him to report to the fiscal. Equally, minister, it will be a matter for perhaps putting on some slightly formal basis the relationship between the commissioner and the Lord Advocate as the head of the prosecution service, because, of course, it will depend on the Lord Advocate's view of what is appropriate in some instances as well. We are creating a criminal offence here, so there does have to be clarity there, but Neil, do you want to add a little bit more? Clearly, there will be a need to manage the relationship between the procuratorial fiscal service and the role of the commissioner, but I agree with what the minister and I have said. The bill confers functions and gives the commissioner a particular role, and that is his role. There is no requirement for things to be escalated by him. Equally, there is the facility for Parliament to issue directions to the commissioner in whatever terms Parliament sees fit, but one particular type of direction that could be issued would be to allow the commissioner to refer matters back to the clerk to be looked at in the first instance. However, there is no question about directing the Lord Advocate as to what his attitude might be—the paradigm. It is self-evident. Sorry, I thought that Gil was still to come in. Sorry for the confusion. Minister, we took evidence earlier this morning from the commissioner, which was very interesting. One of the points that he made was that one of the communications that are excluded in schedule 1 is journalism. I think that his feeling was that that was a very broad definition. He made quite a valid point in that there are different forms of journalism. For example, there are house magazines or trade magazines that use their publications as lobbying. He was questioning us as to whether that was really as helpful a definition as it might be. Obviously, one of the points to note is that the product of journalists tends to be very much in the public domain, but in terms of the definition, Neil, again, do you want to... Indeed, the exception is communications. I am just going to highlight the communications for the purposes of journalism. We have thought about that. The explanatory notes for that particular exception in paragraph 18 of the explanatory notes refer to particular case law where the legal concept of journalism is discussed. A case called Commissioner of Metropolis against Times Newspapers is limited. There is a discussion of the concept of journalism in the law, and it is that that we are trying to get at in framing that definition. We will probably help for at some stage as the bill goes through to make sure that we have appropriate comments on the record that could be referred to by courts at a later date to help to understand our intention. Or would you consider whether the definition, which is just quite straightforward in the schedule at the moment, might you look at that again? I think that Patricia Ferguson has a reasonable point. What will you certainly look at to make sure that in legal terms the definition we have is doing exactly what we expect it to do and doing something else? I have received a bit of correspondence from the finance committee. There appears to be a bit of discrepancy between what the financial memorandum says, the SPCB and the commissioner. I wonder if the minister might care to comment on that. Is that in the estimates for cost? He is not challenging the cost, though, is he? Well, let me just quote from Mr Gibson, Kenny Gibson, the community of the finance committee's letter. The financial memorandum says that the financial memorandum accurately affects indicative costs and assumptions provided by Parliament, which the Scottish Parliament corporate body believes to be reasonable. However, submission draws the committee's attention to the bill's potential cost application for the commissioner. On the basis of figures provided by the commissioner, the financial memorandum estimates would incur additional costs between zero, in the case of no investigation, and 70,000, in the case of 10. The financial memorandum goes on to say that the commissioner does not, however, believe any additional investigations arising and the result of the bill can be absorbed within his existing resource. However, the corporate body says, otherwise, that, essentially, there will be extra costs for the commissioner. The memorandum, of course, states what the extra costs would be, zero upwards, depending on the number of cases. However, it is probably worth it that there was a misunderstanding on our part of what the commissioner had meant in terms of a job on that, and I think that we accept what the commissioner is saying, that those costs that the finance committee is saying are accurate are additional costs not. Do I take that? We will see a restrepent of the financial memorandum at some point, preferably before Parliament. The figures in the memorandum are correct, but the country needs to adjust. Is that what we are hearing? We can investigate what—we are happy to put on record, as the minister has said—that there has been a misunderstanding. I am so happy that what arose in the financial memorandum was a confusion around the commissioner's explanation to myself and colleagues as to whether lobbying complaints in themselves were capable of absorption, or was it the fact that those additional functions on top of what we understood to be other enhancements to the commissioner's remit would at some point in the future require could no longer be absorbed. As the minister says, we are very happy to accept that that was a misrepresentation in the memorandum, and we will look to see what we can do. Can I seek a commitment from the minister that by the time Parliament gets to considering any financial resolution on this matter? I am not sure that there will be one, but I am presuming that there might be. We perhaps have a version of the financial memorandum before Parliament, which no member on this basis will wish to challenge. I think that we are today accepting the commissioner's position and putting that on the record. I am really just maybe taking a notch for the minister, and perhaps asking you to consider reissuing the financial memorandum. I hear that you have put it on the record now, but I suspect that it will be helpful. Let's just take it what the process is for life. That's fine. I think that we have covered the ground that we wanted to cover. Has anyone got any other film out of it? Are there any concluding remarks, minister? Any issues that we haven't covered that you wish to draw to our attention? No, thank you very much. Obviously, we appreciate the way that we have taken us forward. We are moving forward in the most appropriate way on a bill, which is, as I said at the start, largely parliamentary in its nature, so it is appropriate that we continue to listen to this committee as the bill moves to the Parliament. Thank you, minister, Mr Gibson and Mr McLeod, for attending and being helpful in your answers. We now move into private session.