Chamber and committees

This is the largest group that we will discuss today, and it is an important one. We will be discussing disqualification from elected office. Forgive me, convener, as I will take some time to discuss the amendments in this group.

I will start with the amendments in my name that seek to bar persons subject to sex offender notification requirements, a sexual risk order, or a sexual harm prevention order from holding office or standing for election to be councillors or members of the Scottish Parliament. As the committee is aware, persons serving a sentence of more than 12 months are already barred from being an MSP for the duration of their time in custody, and persons sentenced to three months or more are prohibited from being councillors for five years.

I hope that the committee will agree that we have had a good deal of constructive debate on the issue. My predecessor wrote to the committee on 2 February to highlight last year’s Scottish Government consultation on barring sex offenders from being councillors. He explained that it seemed logical to apply any prohibition to members of the Scottish Parliament but that, before bringing forward provisions, the Government wished to

“take the views of the committee”

and others.

We have since discussed several important aspects, including comparisons within the United Kingdom and comparisons to elsewhere. I thank you, convener, for highlighting the work of the Council of Europe’s Venice commission on the exclusion of offenders from Parliament. We have discussed the rationale for a change in the law. There are two aspects here: the first is the protection of the public in face-to-face encounters with an elected representative; the second is an overall case that allowing an acknowledged sex offender to serve in office risks undermining public confidence in our democracy.

Those factors and the matters that the Venice commission considered have informed the approach that we have taken in these amendments. We have looked at a range of notification requirements and orders related to sexual offending, and we seek to apply disqualification when there would be concern about a person subject to such measures holding office, including in cases where a requirement is imposed in the context of conviction and in cases where an order is imposed by a court on a civil basis.

The amendments will ensure that the package of reforms is both robust and fair. No serving representative who is subject to a relevant restriction when the requirement takes effect will be removed from office at the time that the provision takes effect, although they will be barred from standing for election again for as long as the restriction applies. This “future cases only” provision is the normal safeguard adopted in making changes of this nature. I know that, in a few moments, we will turn to Annie Wells’s amendments, which touch on that area.

We have also made provision to ensure that people with pending appeals get the opportunity for their cases to be heard. They will be suspended prior to the determination of an appeal, and there will be a maximum period of three months after which, if the appeal remains pending, disqualification will apply. I think that that is a sensible and proportionate approach.

The other amendments in my name seek to amend the bill’s provisions on disqualification orders and in relation to intimidation. While those provisions in the existing bill take appeals into account in the same way as is planned for sex offenders, the bill suspends only MSPs—not councillors—during the appeal period. The last time I came to the committee, on 5 September, I said that an important part of our approach should be broad equivalence, where we can achieve it, between the approaches that we take for MSPs and councillors. That is what I seek here. Amendment 17 rectifies the bill so that councillors with pending appeals will be suspended in the same manner as those appealing against other convictions that would cause disqualification.

I now turn to amendments 8A and 9A, in the name of Annie Wells, which seek to disqualify all people who have ever been subject to a relevant restriction or order. I am grateful to her for taking the time to discuss the amendments with me, but I believe that the amendments would raise significant concerns around compliance with the European convention on human rights. I also consider that it would be extremely difficult to enforce them and that obtaining information on historical restrictions and orders, particularly those from outwith Scotland, would be extremely challenging.

I also highlight that her consequential amendments 20A and 20B would be unnecessary unless amendments 9A and 9B were agreed to. If there is support for amendments 9A and 9B, we might want to consider carefully what references to historical restrictions are needed in any transitional provisions.

Given those serious concerns, I urge the committee not to support Annie Wells’s amendments.

I now turn to the other non-Government amendments in the group. There is merit in addressing the issue of dual mandates in relation to the Scottish Parliament. However, much as I said about the amendments in the previous group, dual mandates should be addressed with discussion and consultation, not through this bill at stage 2 without a detailed process of consultation having taken place. I have already written to the committee to make that point.

There are policy issues with Graham Simpson’s amendments, which I have discussed with him. I am grateful to him for taking the time to do that, particularly in relation to individuals who are elected when they have only around a year left in their councillor roles before the next local government elections are held. It would have implications for the public purse if a significant number of local by-elections were to occur after each Scottish Parliament election.

Given that the ordinary local elections would take place the following year, those elected at the local by-elections would have the roles only for a few months. There would also be a period of up to three months in which a councillor’s seat would be vacant before a by-election could be held.

In Wales, because of the experience there, a period has been built in accommodating any imminent council election. There is a timeframe within which a councillor who is elected as a member of the Senedd must make a decision about which office to retain. There would be benefit in further consultation on that type of issue. Therefore, I urge Mr Simpson not to move his amendments. However, if he does, I ask committee members to vote against them.

I am grateful for the opportunity to discuss with Mr Greer his amendment 58. The amendment goes further than Mr Simpson has done in relation to peers, in that it would not allow them to take a leave of absence as an alternative but would require them to resign from the Lords once and for all in order to take their place as an MSP.

That is another issue that has not been subject to any debate or consultation before today. My personal perspective is that the easiest way to achieve that would be to abolish the House of Lords. However, that is outwith our ability. To be consistent, I should say that my point in relation to my concerns about the need for consultation lands with regard to this amendment, too. Therefore, I urge Mr Greer not to move his amendment. If he does, I ask committee members to vote against it.

All of that suggests to me that a proper consultation process is required to allow a full range of policy options to be considered before we legislate to prohibit dual mandates, as members will see from my recent letter to the committee.

Again, I will not irk you, convener.

Amendment 22 agreed to.

Section 20, as amended, agreed to.

Sections 21 and 22 agreed to.

Section 23—Choice of new First Minister after changed election date

I think that I have said my piece.

Amendment 23 agreed to.

Section 23, as amended, agreed to.

Section 24—Rescheduling of by-elections

Amendment 24 moved—[Jamie Hepburn]—and agreed to.

Section 24, as amended, agreed to.

Section 25—Power of convener of Electoral Management Board to postpone ordinary local election

Amendments 25 to 28 moved—[Jamie Hepburn]—and agreed to.

Section 25, as amended, agreed to.

Section 26—Power of returning officers to postpone election for their area

Amendments 29 to 31 moved—[Jamie Hepburn]—and agreed to.

Section 26, as amended, agreed to.

Section 27—Power of returning officer to postpone or cancel by-election

Amendments 32 to 34 moved—[Jamie Hepburn]—and agreed to.

Section 27, as amended, agreed to.

After section 27

Mr Greer rightly says that there has been a long-standing debate on these issues. I can well imagine that Mr Greer would take far more interest in watching a draw of the order of names on a ballot paper than he would in watching the Scottish cup draw, but I will leave that to one side.

It is clear that there are strong views among many members and councillors that the alphabetical ordering of names on ballot papers has disadvantages. As other members have touched on, the consideration of the issue has a complex past. For a number of reasons, we could not suddenly move to randomising the order of names on ballot papers, particularly without prior consultation and engagement, not least with councils and councillors.

First and foremost, as Annie Wells mentioned, we must consider the concerns that have been raised about the potential negative effects that that would have on some voters with accessibility needs, particularly those with sight loss. The electoral reform consultation that the Government ran in 2017 looked at the possibility of randomisation and other options. Equality groups responded to both that consultation and a study that was undertaken by the Electoral Commission in 2019 to set out their concerns that the randomisation of names would disadvantage people with disabilities, and the Electoral Commission wrote to the committee to make that point.

In responding to the 2017 consultation, the Scottish Council on Visual Impairment said:

“SCOVI’s very strong preference is to retain alphabetic listing of candidates and would urge against moving away from this method. SCOVI acknowledges the concerns about ‘list ordering’ but considers the ability of people with vision impairments to undertake their democratic right to vote independently and in secret to be a principle that must not be jeopardised.”

In its response, Inclusion Scotland stated:

“While we would not disagree that counteracting the list-order effect is a worthwhile goal, we would urge that any system used for doing so be balanced with the potential complication it adds for the electorate.”

I recently wrote to the committee to update it on work to improve the ability of voters with sight loss to complete their ballot independently and in secret. The on-going development of a tactile ballot, paper overlays and the accompanying audio support could potentially be undermined by the randomisation of names on ballot papers. That might be a step backwards for voters with sight loss. It is clear from what we have been told that many voters rely on memorising the order of names on the ballot paper in advance of voting or on using the large posters of the ballot paper in polling stations as an aid. I think that we would all concede that randomisation would complicate that. Although there might be work that could be done to ensure that we would not disadvantage anyone in society, the issue needs to be considered before any changes are made.

I heard what Mr Greer said about consultation and the experience of other places—he mentioned Denmark specifically. I have already mentioned the study that the Electoral Commission undertook in 2019. With regard to the order of names on the ballot paper, it said that it could find “no impact” on the ability of voters to cast their vote.

I note that the amendments also apply to parliamentary elections. The list order affecting local government elections has been debated often and is, I think, understood to a degree by us all. However, I am not aware of any issues that are caused by the order of names on ballot papers in Scottish Parliament elections. I should say that I have no skin in the game in that regard—my surname begins with an H and Mr Greer’s begins with a G, so I am not saying all this out of self-interest. The list order effect is generally considered to be a feature in STV elections, in which one party has multiple candidates standing in the same ward.

The Government last set out its position on the matter in a letter to the committee in October 2022, in which we concluded that we had no plans to undertake further research unless and until there was a specific proposition that was practical and accessible and which had attracted cross-party support. No such proposal has been brought to our attention since then, otherwise we might have been able to test it out.

I am keen to engage with Mr Greer between now and stage 3 on whether we can determine some way of creating, perhaps, an enabling mechanism in the bill that will provide us with the time and space to consult on how we might best address concerns about the order of names on council ballot papers while accommodating the concerns that some organisations have flagged up. As a result, I ask Mr Greer not to press his amendment. Should he choose to do so, I urge committee members not to support the amendments in this group.

I make that mistake frequently. I apologise. There have been so many important commissions and conventions in Vienna throughout history.

I am conscious that this is a debate.

I suspect that this will be a shorter debate, convener, but I might be tempting fate.

The Government’s amendment 21 reflects the committee’s recommendation in its stage 1 report on the bill. The bill, as introduced, allows ministers to amend the categories of persons eligible to register with the Electoral Commission as third-party campaigners. The removal or varying of a category will require consultation with the commission, whereas the addition of a category will not.

Under amendment 21, which, as I have said, follows the committee’s stage 1 recommendation, ministers will be able to add a category of third-party campaigner only after a recommendation by the Electoral Commission. That reflects broad agreement that the Electoral Commission should be a key part of the decision-making process in this type of change to campaigning rules.

I agree that it is important to maintain confidence in the system and that it remains free of any perception of possible political influence. Requiring a recommendation from the Electoral Commission for any changes to be made to categories of third-party campaigners is a helpful safeguard in that respect, and provides for consistency of approach to all amendments to the categories of persons eligible to register as third-party campaigners. I therefore invite the committee to support the amendment in my name.

I move amendment 21.

Actually, that was not the point that I was going to come to, but I take the member’s point. However, I come back to the issue that I was trying to touch on, which is that such a move starts to open up the notion that there is a requirement on returning officers and those involved in the process of accepting and processing nominations to take a step beyond the checks that they would otherwise carry out. I think that I am right in recalling that the evidence provided to the committee thus far suggests that the system that we have by and large operates effectively and that there has not been any substantial concern in that respect.

The point that I was going to make is that, strictly speaking, Mr Greer’s amendment does not, in and of itself, set out to create a full screening process, including in the limited circumstances that he has outlined, but I fear that it starts to move us in that direction. It is also not clear why we would pick out just this one aspect of eligibility for the Electoral Management Board to collate data on, and I am concerned that amendment 61 would send a signal that we were moving towards, if not a full vetting system of nominations, then a wider one, which would have huge logistical consequences. I note that the convener of the Electoral Management Board wrote to the committee yesterday to say that the amendment represented

“significant changes in both policy and practice”,

and that his estimation was that it should be “subject to further consultation”.

On that basis, I urge the committee not to support amendment 61, but I look forward to the debate that we will have on this group of amendments.

I move amendment 8.

I will give the age-old answer that the consultation would be launched as soon as possible. The point is that the commitment would be to hold and conclude the consultation in this parliamentary session. Given that the issues have been raised earnestly, it is important that I make that commitment, and we would honour that. I am genuinely committed to consulting so that we can gather views. As I said, we will ensure that the consultation takes place during this parliamentary session.

Therefore, I urge the committee to vote against the various amendments that I have spoken to—other than my own—and to allow full and proper consultation to take place before Parliament as a whole can take a position on dual mandates.

I am grateful to Ben Macpherson for taking the time to speak to me about his amendment 59. Although there might be a case for an MSP to be required to be ordinarily resident in Scotland, that is another amendment that has not been subject to any prior debate or discussion—it was not raised at stage 1. It might be another area that is worthy of future consultation, but there are important issues to consider, not least whether there would or should be transitional provision to prevent potentially disqualifying currently serving MSPs if, for example, someone happened to reside just over the border. In the first instance, I urge Mr Macpherson not to move amendment 59. However, if he does so, I urge committee members not to support it.

Ross Greer’s remaining amendments in the group cover disqualification orders under the bill and the Elections Act 2022. These are the orders that we are looking to put in place to debar people from office when they are convicted of a crime that involves hostility towards elected representatives, campaigners and electoral workers. Mr Greer’s suggestion that any offence that involves abuse in an electoral context should be subject to a sentencing aggravating factor is interesting. We already provide additional protection for certain groups, such as emergency workers, by setting out sentencing aggravating factors.

It is true that concerns about abuse towards elected representatives and election workers have increased in recent years, and that is the reason for the disqualification orders in the bill. However, I am concerned about adding a sentencing aggravating factor at this stage, as that has not been fully considered. There has not been any consultation on such a step, which could, for example, consider how a new aggravating factor would sit with other statutory aggravating factors.

On amendment 61, Mr Greer has touched on a question that we have discussed before with the committee—that is, the checking of candidate eligibility. That is not a feature of our system; returning officers, in particular, do not check whether candidates are disqualified, and the committee heard evidence at stage 1 about the resource implications if such a system were to be introduced. I would just point out that 2,548 candidates were nominated in the most recent local government elections, while in 2017, 2,572 candidates were nominated. Moreover, in the 2021 Scottish Parliament election, 357 candidates were nominated for constituencies, while in 2016 the equivalent number was 313. I would be very reluctant to set up a screening process without evidence that there was a problem of disqualified people standing for office.

None, other than to once again urge Mr Greer to consider withdrawing his amendment.