 I welcome members to the 19th meeting in 2017 of the Standards, Procedures and Public Appointments Committee. Agenda item 1 today is a decision on whether to take item 6, which is a discussion on commission on parliamentary form, notes from the clerks, if we can agree to take that and further papers on the commission on parliamentary reform in private future meetings. Thank you for your agreement. Agenda item 2 is for the committee to agree that its consideration of its approach to inquiry into sexual harassment and inappropriate conduct at the Scottish Parliament should be taken in private at a future meeting. Do members agree to take this item in private? And our third item today is for consideration on a proposed cross-party group on consumer protection for home energy efficiency and renewable energy. I welcome Claire Hockey MSP to the meeting. Ms Hockey is the proposed convener of the group and I invite Ms Hockey to make an opening statement about the purpose of the group. Thank you convener and thank you to the committee for meeting with me this morning. Over the past year MSPs have become aware of historic and on-going issues relating to the UK Government's 2012-2015 Green Deal initiative, which has affected hundreds of consumers throughout Scotland. Consumers have been experiencing severe financial issues arising out of the alleged missailing of energy efficiency products. Many of these consumers have been left without redress, either due to their suppliers going into administration or difficulties in obtaining resolution through the various ombudsman and agencies that are meant to address malpractice. In my constituency of Rutherglen, solar panels were widely sold to householders in Blantyre by an approved Green Deal operator, which has since gone into administration. People were told that they would not pay any more for their electricity, that they could save money and that they were helping the environment. So far, 60 individuals have attended a series of public meetings that I have organised in conjunction with the local citizens advice bureau in Blantyre. Attendance at those meetings quickly expanded to include disillusioned solar panel customers from Hamilton and from other areas. Feed-in tariffs, the money that householders were owed for generating surplus electricity, were signed over to a third party, with little, if any, explanation to the purchasers. Householders will have to repay the cost of the panels for up to 25 years through their electricity bills. I have seen one contract that specifically states that the feed-in tariffs pay for the panels. Many people, not only signed over their feed-in tariff but are paying for their panels again through a finance deal. Green Deal finance debt rests with the property, not the individual householder, and that has led to householders experiencing serious conveyancing and legal issues when they are trying to sell the properties. Multiple issues have emerged, including customers' bills tripling in many instances, poor workmanship, problem with building warrants that were not applied for by the installing provider, and lack of maintenance, particularly since the main provider went into administration. Simultaneously, in Glasgow North constituencies, MSP colleagues were experiencing similar issues, again affecting dozens of customers, although the main issue there was mainly related to external wall insulation or cladding products. We have also been contacted by customers from many other areas of Scotland and other parts of the UK who are experiencing similar issues. Citizens Advice Scotland has recognised that there are considerable consumer issues relating to energy efficiency products and schemes that are required to be addressed. The CPG will seek to look at the issues of redress for customers who are affected by the historic Green Deal-related issues, but it is also important to ensure that lessons are learned so that similar issues are not replicated with the introduction of new schemes, particularly since the UK Government is poised to relaunch the Green Deal through the now privatised Green Deal finance company. With the UK and Scottish Governments encouraging consumers to improve the energy efficiency of their homes through grant schemes or finance deals, it is important that customers have confidence in those initiatives. Thank you very much. Do you see this as a CPG that might have a limited lifespan, given the nature of the problems that you are trying to address? I would certainly hope so, convener. I would certainly hope that this will be a limited amount of time, and that we will be able to get some redress, but we will also instill some confidence in the Green Deal initiatives that are going forward. Thank you. Any further questions? The first question is about why a CPG in particular is the best way to take those issues forward. Although myself and Ivan McKee MSP have held public meetings in our constituencies relating to those issues, we have both been approached by constituents from right throughout Scotland. That is an issue that we are only seeing the very tip of the iceberg. We would hope that, through the CPG, we would be raising awareness amongst MSP colleagues, but it is also giving us an opportunity to, with the other members of the CPG, to let us resist it on a national level. I thank you very much for your attendance at the committee this morning. The committee will consider whether to approve the application at agenda item 5, and you will be informed of our decision as quickly as possible. I will just suspend briefly while the witnesses change over. Thank you. We now move to agenda item 4, which is to take evidence from Dugi Wans, the acting lobbying registrar on a draft parliamentary guidance and code of conduct for lobbyists. I welcome Mr Wans to the committee. He is no stranger to our committee, but it is different to be on that side of the table today. We would be delighted if he gave me an opening statement. Thank you very much, convener, and good morning. I hope that it will be helpful if I say a few words by way of introduction to this item of business. As you know, I have recently taken over from my colleague Billy McLaren as acting lobbying registrar. You may also remember, or some members of the committee will remember, that Billy appeared before the committee in September to discuss preparations for implementation of the Lobbying Scotland Act. At that time, there was a need to make a lobbying resolution and to issue directions to the commissioner for ethical standards as part of those preparations. I am pleased to say that those elements are now confirmed. Since then, we have announced the intention to bring the act into force on 12 March 2018. From 23 October this year, a couple of weeks ago, we have made the new lobbying register website available for a four-month familiarisation period to allow potential registrants to prepare for the act coming into force. The purpose of my appearance before you today is to ask you to consider the draft parliamentary guidance that the act requires the Parliament to produce in order to support organisations that will need to use the lobbying register. The act requires the Parliament to consult the Scottish ministers on the guidance before it can be finalised. You have also been provided with a copy of a draft code of conduct for persons lobbying members of the Parliament. Again, this is a requirement of the act, although in this case Scottish ministers do not need to be consulted on the terms of that code. The code is intended to be a set of high-level principles for anyone who lobbies MSPs and mirrors in many respects the rules contained in section 5 of the code of conduct for MSPs on lobbying and access. Both documents have been produced in collaboration with a lobbying register working group, which the lobbying registrar formed earlier this year. The group includes representatives from a wide range of stakeholder organisations, including public affairs professionals, third sector representatives and pro-transparency organisations. The lobbying register team has valued greatly the input and support that we have received from all members of the group during the development of the two documents that you have before you today. They have provided constructive suggestions and feedback from the sectors that each represents. As part of your consideration of the draft parliamentary guidance, I need to draw to your attention one minor change that the working group has identified needs to be made. That is on page 16 of the guidance document that you have in your papers. In the section relating to events, in the fourth paragraph, the reference to staff should be to employees or other office holders. That is in order to ensure that it reflects accurately the terms of the act. It is really just to draw to your attention. On that specific point, convener, I will conclude my opening remarks and I will happily take questions from the committee. In terms of a brief summary on what you think are the most important aspects for MSPs to be aware of how they act and what they say, what would be the top issues that you would identify from an MSP or an MSP's office's perspective? The first thing to be clear about is that the act places the onus on organisations that are lobbying MSPs to take action. That is to register communications that comply with the definition in the act of regulated lobbying. They will need to register those communications on the lobbying register from 12 March. That does not mean that MSPs, ministers and others—special advisers and the permanent secretary—do not have a role in ensuring that the act is implemented properly, because clearly when you are having those conversations with those lobbying you, you want to be aware that that is the nature of the conversation that is taking place. If it is helpful, the definition of regulated lobbying is communication made orally, must be spoken word or using signs, British Sign Language or other signs, in person, so face-to-face meetings with MSPs, Scottish Government ministers or law officers, special advisers in the Scottish Government and the Scottish Government's permanent secretary. They need to be communicating about either Scottish Government or parliamentary functions. The act becomes a little bit more complex because there are a number of exemptions to that definition, so some communications will be exempt. We are hoping that MSPs will help to promote the act to those that they engage with, at least to ensure that they are aware that they may have an obligation to register meetings. You will be interested in the register entries that relate to meetings that you have registered. We are ensuring that the system will allow us to alert you when a meeting is registered that you have participated in. You mentioned that it needs to be oral communications, so therefore it is not written. Is there any scope on which written communications could prove at all to fall within that? Consider that a lot of information comes via email, etc. Secondly, it is also on content in terms of it being specifically related to an MSP's function. There are a lot of great areas in terms of whether things relate specifically to an MSP's function or there are sometimes social comments and social conversations. Did you have any guidance on, first of all, the written communications and secondly, if you were at something and having a conversation over a quick cup of coffee? I think that I can clear up the first point very quickly. Written communications are not captured under the act. They are excluded from the definition. It is purely oral face-to-face engagement, so no written communication, whether it be email, letters or tweets. None of that is covered by the Lobbying Scotland Act. In terms of when regulated lobbying could take place, it could happen in more social settings. It would need not be informal meetings, but it would still need to comply with the definition in the act. How are you getting on in your role, etc. That would not constitute regulated lobbying, because it would not be someone seeking to inform or influence you in respect of either your parliamentary role or if you were a minister in a ministerial capacity. It is not to say that, on social occasions, regulated lobbying could not take place, but someone would be having to take the opportunity to talk to you about your working role as an MSP and seeking to inform or influence you in that respect. Is that supplementary on that issue, Mr Arthur? Just specifically on the distinction between oral and written communications, if I put forward the following scenario, an MSP is having a conversation socially with a trade member of trade union or a member of a policy officer of third sector body, and they are having a conversation about what does not constitute lobbying. Then the person from the trade union of third sector pulls out a bit of paper, writes something down, folds it and hands it over to the MSP. That is a written communication, it is not oral. Does that count as lobbying? The passing to you of a written note in those circumstances, I am clear, would not be caught by the definition of regulated lobbying, and the information that you were passing on that note would not need to be registered. If the person said something orally, that would constitute a piece of lobbying. If he wrote it down in a bit of paper and handed it to me, it would not count as lobbying. I think that technically you are correct, yes. Can I ask, since you mentioned the face-to-face part of it, obviously a telephone call in this situation would not count as lobbying, but if someone did a Skype video message conversation, would that be included? Yes, I should have been clear about that. The act includes the use of video conference facilities, and that would include Skype or another form of video conference on it, yes. Is this a supplementary on this issue? I think that having the guidelines is very useful, because our roles and our responsibilities mean that we are required to discuss and exchange views and opinions. That is very much part of the role that we have. Can I ask for some clarity when it comes to specific speeches that may well be performed and how that may constitute regulated lobbying? There will be occasions when that may fall into that category. Yes, absolutely. The guidance includes a section that explains how speeches might be caught under the definition of regulated lobbying. At an event where an organisation is speaking and MSPs, ministers or special advisers are present, the person giving the speech is seeking to inform or influence the people present in the audience through the means of that speech, then they would probably need to register that under the terms of the act as an instance of regulated lobbying. They would do so on the register by identifying those persons who were present and those who were directing their remarks towards. In that respect, it would be one information return under the act that would spell out what the purpose of the lobbying was through giving the speech and who had received that information. Good morning. Thanks for the work that has been done on this. There are obviously some complexities and grey areas to all of this, so having a clear document that helps people navigate that is obviously hugely important. I liked the provision of a flowchart that allows people to go through some nice simple questions that help them to decide for themselves whether the activity that they are doing would be counted as regulated lobbying. I am wondering, though, why slightly different forms of words have been used in between the flowchart and some of the other sections. For example, step 4 in the flowchart, I am paid by the organisation that I lobbied for or represent. Two pages earlier—this would be page 11—it said, step 4, you are a paid individual representing the views of your organisation. For somebody who works for a supermarket, and the regulations surrounding plastic bags, for example, were being debated, they might have a view that they want to express that they feel is as an individual. However, as far as I understand, if they are communicating about a policy issue to which the organisation that pays them, even if they are not paid to lobby, if they are paid by that organisation and it also has a view and they are communicating that view, even as an individual, it would still count as regulated lobbying. I wonder whether the slight difference in wording there might give some confusion. I note the difference in wording. I cannot immediately explain why we have a difference there. It may simply be to accommodate a shorter phrase in the flowchart, but I will go back and examine that. However, to answer your substantive question, I think that the example that you give would not oblige the individual concerned to at all engage on the lobbying register or have to register anything if they were not communicating on behalf of their employer, but rather simply offering a personal view. It is clear that the onus is on the organisation to register an account on the lobbying register and to take responsibility for communications made by staff or other office holders. There is an exemption in the act for people engaging with those that are covered by the act, MSPs, obviously being a critical constituency there when they are essentially communicating on their own behalf and purely on their own behalf. The fact that someone was a paid employee of a supermarket and happened to have views about something, a matter of public interest, obviously had a bearing on the work that their organisation or the business that their organisation was in. If they are not communicating on behalf of that organisation in that conversation, they probably are not engaged in regulated lobbying. I will happily look at the slight change in the difference in wording between flowchart and the other parts of the guidance there. We might make a minor adjustment, Mr Harvie, but I am pretty confident that in the circumstances that you describe, the individual concerned would not need to register. It also comes up in page 19, where it says, if you do so, in return for payment of any kind, you are required to register. That is the position, regardless of whether the payment itself relates to making lobbying communications. Again, it just gives rise to that slight ambiguity. The first part of that paragraph suggests that if the lobbying communication is paid for, then you are required to register. The second sentence says, that is the position, regardless of whether the payment relates to making the lobbying communication. Again, somebody who is paid by an organisation for other purposes, such as stacking shells, administering the payroll or whatever in that example, might find it difficult to interpret that. Again, I am happy to look at that specific example there. What I think is intended to try to capture is that some individuals will need to register on the lobbying register, because they might, in effect, be sole traders who are engaged in consultant lobbying. Essentially, they are operating on behalf of others. What the guidance is trying to interpret here and try to explain is the fact that there is an exemption in the act for anyone who engages in lobbying, but it is an unpaid capacity. That was particularly meant to ensure that people who perhaps are unpaid board members of small charities, etc., would not be caught by the definition of regulated lobbying. However, I see the point that you make in terms of that particular passage in the draft guidance. We can look to make sure that that is made a little bit more clear. I want to ask about the journalism exemption. Most of us would be fairly clear about the everyday use of the word journalism, but would that cover a trade magazine for an organisation that itself was lobbying? MSPs would often be approached for perhaps a bit of blurb for a conference that they are speaking at, where a trade magazine is promoting it. Would that be seen as communication on behalf of the organisation, or would it be seen as journalism? I think that that would very much depend on the facts and circumstances, and we will, obviously, as the lobbying register teams stand ready to offer advice on specific examples. However, I think that the exemption was clearly intended to exclude from registration the regular communication between politicians and others covered in the act from journalists acting very much in their professional capacity as a journalist. We understand that there are some organisations out there who have perhaps somewhat blurred the lines between journalism and other activities. I think that they will need to be very clear that, when they are communicating, whether they are doing so for the purposes of journalism—i.e. something that they are going to write a news story about, in which case the exemption will apply—or whether they are actually engaging with that politician or other person for another purpose. If it is not clear that it is for the purpose of journalism, they may well need to register that communication. So the general advice would be to err on the site of caution and to register if you are uncertain? Certainly, and we will be happy to explore with individuals or organisations any questions that they have about the distinction. Thank you very much. I should also declare an interest in that I am still director of a lobbying company that is in advance but has not been struck or formally yet, but it is about taking longer than we thought. Dougie, it is probably a very simple one, but if an MSP is in an event and an individual from either a lobbying organisation or on behalf of a lobbying organisation says, I wanted to catch you briefly, can we set up a meeting on behalf of my organisation or organisation A with a view to discussing this issue? They have very briefly, but there is obviously an oral communication, but it is to organise a formal sit-down meeting, which will be registered. Would that initial discussion have to be registered, too? As you have described it, that very brief request to meet at a later date would not, I think, meet the test that we have set out in the flowchart that you have seen, the five key steps that we have described them to try to help people to determine what is and is not regulated lobbying, on the basis that it is simply a communication that will lead to some further engagement and communication. In that instance, at that stage, they have not sought to inform or influence you in any way, but, as you say, there may be an expectation that when a more formal meeting takes place, that conversation might need to be registered. Might that change, depending on how much information they gave you to the case, so, if they said just to give you a brief back-up, it is regards to if they are having a problem with this organisation? Possibly. I think that you are right. There is some sort of spectrum of how much information is relayed in that initial communication, if they are asking you to do something, take some action in the interim or consider something as a result of that conversation, that might be regulated lobbying. If it is purely, while I have got you for a couple of seconds, can we get a date in the diary, that certainly would not constitute regulated lobbying. Can I possibly ask about the constituency exemption? That was stage 3 amendment to the bill at the time. Do you think that that will possibly lead to a situation where companies that are working across all constituencies in Scotland end up being exempt from having to register any of their communication with MSPs? Convener, it is one of the parts of the act that is certainly proving most challenging to produce guidance on or to provide advice to people about. You are absolutely right. It was a stage 3 Government amendment that introduced this particular exemption and to explain it would exempt from registration communications that are made to MSPs for constituency or region in which a person's business is ordinarily carried on, a person's activity is ordinarily carried on or the individual's residence. That could lead to businesses or other organisations that have a nationwide presence, potentially being exempt from registering communications to MSPs who represent those constituencies or regions, regardless of the topic. I should be clear that it does not need to be focused on a constituency-related business. It could be on any matter. There is an important exception to that and that is any such communication to a constituency or regional MSP who also happens to be a Scottish Government minister. Those communications do need to be registered. The exemption does not apply in that case. The other important part of that exemption is that if the person communicating is making the communication on behalf of a third party, so they are representing someone else, then that exemption does not apply. It is quite complicated, not entirely straightforward to explain, but we will have to wait and see. Experience will tell us what the consequences of the introduction of the amendment later in the day are likely to be. I know that Mr Harvey had an amendment to the amendment that was debated at that time. We are obviously standing ready to provide advice on it, and you will know that, in two years' time, there must be a statutory requirement to review the act. That will be one of the areas that need to be looked at carefully. My final question is about some of the press that was in the media a couple of weeks ago about the make-up of the working group. I wondered if you wanted to make any comment about how you feel the working group is progressing. It was a deliberate decision by my predecessor to form the working group in order to gather the views of a wide range of stakeholders, those who will have to engage with the act. It felt appropriate that we should look to have representatives from key sectors that would be able to offer a view on behalf of different organisations that will have to essentially work with us to register the details on their register. We have business organisations, third sector organisations that are represented, obviously PRPA consultancies there, because they have a strong interest, but also a pro-transparency campaigner. We have tried to strike a balance there to get the views from all those who have a clear interest in making the act work in practice. They have been very helpful in assisting us in preparing the documents that you have before you today. My question follows on from Patrick Harvie's line of questioning. I hear what you are saying in terms of the distinction between an employee having a conversation with an MSP by chance as compared to somebody who may be senior in an organisation. I think that I have two comments here. First of all, I think that the wording on page 19 and paragraph 5 of the communication is not made in return for payment. I think that I am not sure that the wording actually brings that out. If I refer to paragraph 5 in particular, it might lead someone to believe that any employee receiving remuneration from a company and having conversation is subject to that. I would suggest on that technical point that that could do with clarifying. The more general point that I would make is that there is an assumption in this section that it is very clear that you are either an employee or a director, that you are either a junior person or a senior person. I would argue that in a number of organisations, both big and small, that that is not always clear. We have talked about people working on the shop counters compared with the managing directors of supermarket pubs. Where does a store manager lie in that? A store manager has responsibility for making communications. That, for some organisations, could be very complicated. Even for smaller organisations, again, that middle tier of responsibility is a big grey area. What are your thoughts on that? I will take on board the concerns that you raised. We are trying to make it clear for all those organisations that need to be aware of the requirements of the act, just who might be caught by the definition and who will be exempt. We are following in large part the definition contained in the act, which references communications made in a role either as an employee. That would capture everyone from, as you have described, shop floor to senior management, but if you are an employee of an organisation. It mentions specifically director or shadow director in terms of companies or other office holder, partner or member. That is to try to capture the various roles that could be played by a person who might be engaged in regulated lobbying if they perhaps are operating not on behalf of a company but on behalf of a partnership or perhaps another association or charitable organisation. In many respects, we have to always refer back to the act itself. The guidance is an attempt to put that in easier to understand language. I think that this point on page 19 that you have identified could be clearer, but what is very clear is that individuals who are communicating on their own behalf, and that would include coming to your MSP surgeries, coming to see you in Parliament, they are exempt under the very first exemption in the Schedule to the Act, and then thereafter it becomes a little bit more complicated when you have got to consider some of the other exemptions that apply. However, on that particular point, a communication made by an individual on the individual's own behalf would be exempt and would not need to be registered. I understand that. I recognise that this is work in progress, but, similarly, following on to the next section on communications by small organisations, again, I worry that there is an assumption that it is clear when an organisation is small as compared to when it is large. For example, many partnerships are comprised of different legal entities with the partners of one entity and the employees being employed by a separate entity. I was just wondering what consideration had been given to that. I slightly worry—indeed, I think—that there is probably a note of worry in this section about whether or not there is a little bit of a loophole for the small organisations if they are funded by other organisations and not necessarily explicitly for lobbying purposes. Nonetheless, it could be used as a vehicle to do so. On the first point, is that something that you considered and how would that get caught? On the second point, is that a point that is going to be actively under review looking at what entities and structures those organisations might end up using? We are very much engaging in this familiarisation period with a lot of organisations who are coming to us to, for the first time, engage directly with the lobbying register and what they are going to have to submit when it goes live in March next year. We are finding that, as you would expect, there are some organisations that are more established in a more complex manner than others and we are sometimes having to think carefully about what advice to give us to who is obliged to register or who is obliged to register what. On the small organisations exemption, that was an attempt by the Government to exclude from the requirement to register organisations that have fewer than 10 full-time equivalent employees, but at the same time making sure that that did not exempt those small organisations in terms of employees and staff who are representing a wider membership. I think that it was specifically quoted by some of the business organisations, etc., who may have a few core staff but have a wider membership. That can cause complexity. We have tried to be as clear as possible in terms of what is meant by representative, but it is also clear that, if they are lobbying on behalf of a third party, they cannot rely on that particular exemption. We will have to keep it under review. I think that it is another one of the parts of the act that will be examined carefully again in two years' time, based on experience. That is, hopefully, what we are going to gather in this familiarisation period. In addition to the parliamentary guidance that you have before you today, we will produce frequently asked questions and common scenarios as they emerge. We will keep those updated, hopefully, to build on the body of knowledge and experience that we have so that people will be able to interpret the act more easily. My final question comes back to remuneration. The Federation of Small Business should declare an interest that I am a member of that organisation. I think that it has a particular worry because it has regional office holders who receive small payment for carrying out their roles. It is not necessarily directly related to expenses, although, historically, that has been what it is for. The nature of their roles is certainly not explicitly about lobbying, but that will form part of their activities, albeit in a low informal level. Is there a general point there on what conversations and thinking have been going into that point? Yes. The exemption that relates to communications not being made in return for payment is, again, when you start to explore in detail some of those potential difficult situations arise. I am aware of the one that you mentioned there. The act defines in that exemption what payment means. It means payment of any kind, whether made directly or indirectly, for making the communication. In that sense, someone who may have faced value, appear to be an unpaid board member, trustee, for example, might appear that a communication that they make would not need to be registered, and may, in fact, have to register a communication because they have, for example, received some on-arrarium payment, may have received some other fee at some point. We have asked and will continue to ask organisations to look closely at the payments that they make to office holders within the organisation to check that. I should say that it would not include reimbursement for travel subsistence or other expenses incurred, but anything beyond that, any payment might then require them to register communication that they made. Any further questions? Thank you very much. Obviously, there were a couple of issues there that may result in a tweak of the guidance. Can you give us a timescale when you expect to be able to make a decision on that? Convener, with your agreement, I would be happy to write to you within the week to give you details of what adjustment we might make there. Thereafter, I think that we are hoping that you would then be the person who would write to offer, if you like, this draft to the Scottish ministers for their consultation. When we have their response, we will obviously reflect on any comments that they have, and that will then lead us towards a final version of the guidance. Thank you very much for your attendance in today's meeting. I invite the committee to agree that process. When we hear back from them, we will follow through and agree to issue parliamentary guidance to the Scottish ministers for formal consultation. Thank you for your attendance. I will suspend. We now move to agenda item 5. It is for the committee to consider whether to accord recognition to the proposed CPG on consumer protection from home energy efficiency and renewable energy. I will take any comments from the committee before. I would be content to support that CPG. Just before we move into the private session, I would like to thank Daniel Johnson for his contribution to the committee. Daniel has very diligently raised the issue of gender equality on the committee as we move forward and has submitted his resignation this week's last meeting. Thank you very much for your contribution and best wishes in your future committee responsibilities. We now move into private session.