Seòmar agus comataidhean

I am just being reminded that I may not have been clear enough. I was referring to those who are already subject to a notification requirement. If, after commencement of the provisions, someone is found to have acted in such a way that they are then covered by an order, they will be disqualified. The provision applies only to those who are subject to such an order just now. I suggest that, if there are any such people, the number will be pretty small. I have no evidence to suggest that there are any.

I refer back to the point that I made about proportionality. I am trying to make sure that we are compliant with our wider obligations. Once we have commenced the provisions, anyone who commits an offence or becomes subject to an order—even if they are elected now—would be caught by such a disqualification. I hope that that provides the reassurance that Sue Webber was looking for. However, if she wants to discuss the matter further, I am happy to do so.

I turn to some—I will not cover all—comments that colleagues have made. On Annie Wells’s points, I go back to the point that I made in speaking to the amendments. I completely understand her concerns. It is just a matter of trying to get the balance right. I observe that, before her colleague Sue Webber joined the committee, Oliver Mundell expressed almost the opposite point of view, asking whether we were satisfied that what we seek to do is compliant with the ECHR and almost suggesting that we have to be cautious. I said yes at the time, and I say it now—I am confident—but I take that step further because we are at risk of not being compliant. Of course, I am happy to discuss those matters with her.

Graham Simpson talked about the value of stage 2. Ross Greer and Ben Macpherson have also spoken about that. I completely accept that point. Mr Simpson was right to say that the issue of dual mandates was raised at committee. He raised it in debate. All I will say, convener, is that, although paragraph 358 of the committee’s report reflects some comments by witnesses on dual mandates, there was no recommendation for me to act on. That is the point that I was making.

Incidentally, I was happy to hear Graham Simpson’s list of all those who had been elected with a dual mandate. It was a reminder of many colleagues from the past. I was happy to be reminded of most of them, and happy not to have been one of them.

I appreciate that Mr Simpson does not plan to move his amendments. Clearly, he has given the matter some consideration. He said that he was of the clear view that what he sought to bring forward deals with the policy matter in the right way; however, he seems to have accepted the need for consultation. I make it clear to him that consultation is not an attempt to kick matters into the long grass. I observe that the bill that we are debating was subject to a thorough and rigorous consultation. The matter of sex offenders was subject to a consultation last year, which shows that we can move quickly on such matters. Consultation is a genuine attempt to give proper consideration to them.

That relates to the points that Ross Greer made. He said that a move to consultation suggests that the bill has been a missed opportunity. Rather, it reflects the fact that the bill was never going to be the last word or the last time that we would seek to legislate on disqualification from the eligibility to be a candidate or remain as a parliamentarian or councillor. Indeed, I observe that this will not be the only such bill of the session; Graham Simpson seeks to introduce a bill that touches on some of those issues.

I understand Ross Greer’s point about aggravators, and I think that we all share significant concerns about what are, as he rightly describes, attacks or assaults on an individual but could be felt collectively to be an attack on our democratic process. I am sympathetic to what Mr Greer is trying to achieve, but we need to think through what the wider ramifications might be, for example, on sentencing policy. I understand his point that it is only a factor that the courts may take into account, but that would still have a consequential impact, and we need to understand better what that might be.

On his point about the list that he suggested that the Electoral Management Board should have to maintain, I recognise and concede that the amendment and proposition are simple and straightforward. As Annie Wells said, maintenance of the list would come with a cost, but I do not know how considerable that would be. We would need to consider how to resource it. If the Parliament is minded to support the provision, we would need to do that.

Although I accept that it is not necessarily what Mr Greer is seeking to do, my wider point is that the proposition takes us in a direction of travel towards a more substantial process by which those who accept and receive nominations would have to start almost vetting them. That would be quite a big change to our system and I am not convinced that it is required. Again, I go back to the letter that the convener of the Electoral Management Board sent to the committee, in which he set out some concerns, saying that that would be a fairly substantial change to the process.

With regard to Mr Macpherson’s points, particularly in reference to his amendment 59, I recognise that he has given thought to the issue. He has given a considered position, as all members have in relation to the amendments that they have lodged. I have some sympathy with the points that he made, but the proposal needs wider consideration. If we legislate in haste on such a requirement, what things will we not have thought through?

I appreciate that what I am asking the committee to agree to would mean that, realistically, any changes that we make in those areas would not take effect until the scheduled election in 2031. That is just a reality, and I am not going to shy away from that. Indeed, I was pretty clear about that in my letter, because I wanted to be up front about it.

In relation to Mr Macpherson’s suggestion that we delay the period between stage 2 and stage 3, I am not minded to do that, for a multitude of reasons. With my Minister for Parliamentary Business hat on—well, that is also my hat in this case. However, outwith the confines of this particular bill, we have a wider programme of legislation to get through in this parliamentary session and I need to bear that in mind.

More fundamentally, with regard to the legislation, I also have to be mindful of the Nolan principles around ensuring that those who are involved in—I mean the Gould principles; I am getting a lot of things mixed up today, but I am sure that you would have pointed that out, convener. The Gould principles are that those who are involved in the administration of elections, such as returning officers and the Electoral Commission, must have the appropriate lead-in time of at least six months, and any delay to the process of our legislating and then going through commencement puts that in jeopardy. I understand the request, but I have to balance it with that consideration.

Lastly—as you will be glad to hear, convener—I agree with Mr Macpherson’s point about pronouns. He raised it with me directly, so I have already asked officials to look at that area. What seems like a simple and straightforward process is not necessarily so, but we will look at it and see what can be done.

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.

I will start with Mr Greer’s amendment 69, which, as he has laid out, ensures that any electoral innovation pilot that would change the methods used to cast votes must be approved by affirmative resolution of the Parliament.

From the discussion that I had with Mr Greer before today—and which, again, I was grateful for—and from what he has set out today, it is clear that his concerns relate specifically to electronic voting. I am concerned that his proposed wording might have an impact on some possible pilots in which changes to the method of voting might not reach his own threshold of concern with regard to this specific area.

Some pilots might, for example, be focused on accessibility improvements. I know that those who are not on the committee did not receive them, but I sent the committee samples of the new tactile voting devices that are being piloted. I could be wrong—the committee might take an alternative view—but I do not think that that example crosses the threshold to require an affirmative vote of Parliament.

I suggest that I discuss the matter further with him. I should say that, in doing so, I am not necessarily going to agree with him at stage 3. If his concern is as narrowly focused as it is, it might be better if he did not press amendment 69 today and instead brought back at stage 3 a more specific amendment on a specific area of concern relating to electronic voting. Indeed, I urge him to consider doing that today.

Amendments 35 to 43, which respond to the committee’s recommendation that the Electoral Commission should be added to the list of bodies that must be consulted on proposed election pilots, will mean that persons who propose an electoral pilot must consult the Electoral Commission before making such a proposal. They will also mean that the Scottish ministers will be obliged to consult the Electoral Commission as well as the Electoral Management Board before making any modifications to a pilot scheme that has been proposed by a local authority or a registration officer under section 5 of Scottish Local Government (Elections) Act 2002.

Mr Doris’s amendments 4 to 7, which will allow the Government to make regulations on pilots for the registration of electors, set out how such pilots may be proposed and evaluated, and made permanent if desirable. They relate to a recommendation that was made by the committee at stage 1. I am grateful to Mr Doris for lodging them, and I was pleased to work with him in advance of stage 2 to help to develop them.

Amendments 4 and 5 will allow the Scottish ministers to make regulations for temporary pilots on voter registration. Any pilots that are proposed to ministers must be the subject of consultation with the Electoral Management Board and the Electoral Commission before they can be approved, to ensure that the expertise of the electoral community, for want of a better term, has been taken into account. Those bodies will be involved in implementing the roll-out of any successful pilots.

Amendments 6 and 7 will ensure that the pilots will be fully evaluated by the Electoral Commission. Ministers will be able to seek to make a change permanent through an affirmative instrument, but only if the Electoral Commission has independently made such a recommendation in its evaluation report.

Information sharing is likely to be a key aspect of any pilot on voter registration, such as a pilot on automatic voter registration, and Mr Doris’s amendments include provisions to facilitate that. Specifically, amendment 4 includes provision about the processing of information in relation to registration.

The Government supports amendments 6 and 7. We are committed to ensuring that everyone who is eligible to vote is able to register. Complete and accurate electoral registers are an important part of that. We know that certain groups, such as young people, people in private rented accommodation and foreign nationals, are far less likely to be registered. Piloting innovative forms of voter registration, such as those that make better use of public data, is one way in which we can seek to improve the electoral registers.

Mr Doris’s amendments set out a robust procedure to ensure that such innovations will be proposed in consultation with those who have responsibility for administering elections, piloted on a temporary basis and fully evaluated before being put to Parliament for a decision on whether to make the reforms apply generally and on a permanent basis.

I urge members to support all the amendments in the group, save for amendment 69, which I ask Mr Greer not to press.

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 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.

I refer to the answer that I have just given about the general process. That some errors have been identified speaks to the fact that we will not always get it right. Where errors are identified, we seek to try to put in place any remedial action that is necessary to deal with specific instruments. The convener can correct me if I am wrong, but I think that the two instruments that you are referring to are the International Organisations (Immunities and Privileges) (Scotland) Amendment Order 2024 and the Valuation (Proposals Procedure) (Scotland) Amendment Regulations 2024. I will speak to them specifically.

In relation to the former instrument, we plan to rectify the defective drafting by including an amendment provision in the next Scottish immunities and privileges order. Of course, the timing of that depends on the progress of two United Kingdom orders, which is not entirely in our hands. It would also require equivalent Scottish orders, which are in our hands, but are still reliant on the UK process. We will keep the committee updated on that.

On the latter instrument, although the issues that have been identified have no bearing on the validity of the instrument that we intend to bring forward, we would seek to amend regulations at the next suitable opportunity, taking into consideration any other amendments that might be required. We would seek to do that in advance of the intended cut-off date for making a proposal in reliance on the relevant section of the Local Government (Scotland) Act 1975. In effect, that date is at the end of the parliamentary year—I beg your pardon, it would be at the end of the parliamentary session, which will be the end of March 2026.

I hope that that is an indication that we are aware of the concerns about the respective orders that you have identified and that we are cognisant of the need to rectify them. In relation to the general process, I go back to my initial answer. Of course, we are always open to hearing about other things that we could do. If the committee’s experience is such that you feel that there are additional steps or measures that we could take to quality assure our process, we would be more than happy to hear your suggestions on that.

I recognise that there has been a very public debate around the National Care Service (Scotland) Bill in particular. Substantial parts of it have to be determined by secondary legislation. Whether I would consider it to be a framework bill without any standardised, recognised and agreed definition of a framework bill is another thing.

I am sure that I must have answered with more panache and élan than the previous incumbent of my office.

I certainly hope it will be complete by then.