This blog post provides an update on what happened at Stages 1 and 2 of the Scottish Elections (Representation and Reform) Bill (“the Bill”). This is in advance of Stage 3 consideration of the Bill on 17 December 2024.
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Stage 1 proceedings
The Bill was introduced to Parliament on 23 January 2024. The Bill’s introduction followed a Scottish Government consultation on electoral reform, the publication of electoral reform commitments in the Scottish Government and Scottish Green Party Shared Policy Programme, and the enactment of the Elections Act 2022.
The Bill aims to improve laws governing Scottish Parliament and local government elections. SPICe published a Bill briefing on the Scottish Parliament Digital Hub and an overview of the Bill’s contents on SPICe Spotlight.
The lead committee for the Bill was the Standards, Procedures and Public Appointments (SPPA) Committee. It published its Stage 1 report on 18 June 2024 and the Parliament agreed to the general principles of the Bill on 27 June 2024.
The Scottish Government’s response to the Committee’s report, dated 20 June 2024, accepted some of the Committee’s key recommendations and indicated it was considering Stage 2 amendments in these areas.
The main amendments at Stage 2
Stage 2 consideration took place on 7 and 14 November 2024. This section of the blog focuses on the main policy issues, rather than an exhaustive coverage of Stage 2 proceedings.
Disqualification of MSPs and councillors who appear on the sex offenders register
Currently, individuals subject to sex offender notification requirements (SONR) are not automatically disqualified from holding elected office in Scotland, as they may not receive a custodial sentence that would disqualify them. Therefore, if they meet other eligibility criteria, they can stand as candidates in Scottish elections and hold office if elected.
The disqualification of MSPs and local councillors who appear on the sex offender register was not provided for in the Bill as introduced. However, the Scottish Government indicated in the policy memorandum to the Bill that it was an area it was “actively considering ahead of Stage 2 of the Bill”. The amendments lodged by the Minister for Parliamentary Business Jamie Hepburn MSP would disqualify individuals subject to SONR, or a sexual harm or risk order, from standing for election or holding office as councillors or MSPs. The SPPA Committee agreed to the amendments at Stage 2.
Postponement of elections
The Bill makes provision for changes to the current arrangements for postponing Scottish elections. SPICe in its briefing on the Bill set out the current arrangements and the proposals for rescheduling elections in the Bill (as introduced).
The SPPA Committee in its Stage 1 report commented on the views of electoral administrators that the two-week postponement to local elections provided for in the Bill may be insufficient. The Committee stated:
The Committee welcomes the consideration that has been given to providing greater flexibility in relation to the rescheduling of Scottish elections.
The Committee notes the concerns that have been raised by electoral administrators in relation to the minimum period of postponement for Scotland wide local authority elections should be increased from two weeks, as set out in the Bill at present, to four weeks.
The government amendments, lodged by the Minister for Parliamentary Business Jamie Hepburn MSP, aimed to modify the Bill’s provisions in line with the SPPA Committee recommendations. The amendments proposed extending the maximum postponement period by the Convener of the Electoral Management Board from two weeks to four weeks. Similarly, the amendments proposed extending the maximum postponement period by a Returning Officer in their council area from two weeks to four weeks. These changes mean that, following a nationwide postponement by the EMB Convener, a Returning Officer could further postpone the election in their specific council area. Consequently, a local election could be postponed for up to eight weeks in total (four weeks for the nationwide postponement and an additional four weeks for the specific council area).
The constitution of the Electoral Management Board for Scotland
The Bill, as introduced, proposed the establishment of the Electoral Management Board for Scotland as a body corporate and the creation of a deputy convener post. The government amendments lodged and agreed to at Stage 2 update the constitution of the Electoral Management Board for Scotland. The overall effect is that the EMB will report to and be funded by the Scottish Parliamentary Corporate Body.
The SPPA Committee recommended in its Stage 1 report that the Bill make provision for two deputy conveners. This was also provided for by the amendments. However, the second deputy convener will not be able to exercise the Convener’s functions (e.g., issue directions to Returning Officers and Electoral Registration Officers under the Local Electoral Administration (Scotland) Act 2011) or postpone elections. The amendments also made provision for the EMB to be subject to the Freedom of Information (Scotland) Act, the Public Services Reform (Scotland) Act, and the Gender Representation on Public Boards (Scotland) Act.
Election pilots
Part 5 of the Bill as introduced included amendments to sections 5 and 6 of the Scottish Local Government (Elections) Act 2002 allowing for the piloting of electoral processes at a poll. There was uncertainty during Stage 1 scrutiny over whether the provisions of the Bill would allow for pilots on voter registration to be held. Amendments lodged in the name of Bob Doris MSP, and agreed to at Stage 2, enable Scottish Ministers to make temporary regulations for pilot projects on the registration of electors in Scottish local elections.
Democratic engagement assistance
The Access to Elected Office Fund was launched in 2016 as a pilot project by the Scottish Government to support disabled people standing for selection and candidacy in the 2017 Scottish local elections. It was then extended to support disabled candidates standing in the 2021 Scottish Parliament elections and 2022 Scottish local elections.
Jeremy Balfour MSP lodged amendments that would provide the Access to Elected Office Fund with a statutory basis. The amendments agreed to at Stage 2 would require that the Scottish Government maintain the Access to Elected Office Fund to provide financial support to disabled individuals who want to run as candidates in Scottish Parliamentary general elections, elections to fill constituency vacancies, and local government elections.
Looking ahead to Stage 3
Dual mandate is up for debate again
At the Scottish Parliament, dual mandate holders are MSPs who, in addition to their seat in the Scottish Parliament, also hold a seat in the House of Commons (as an MP), House of Lords (as a Peer), or represent a ward in a local authority area (as a councillor).
Graham Simpson MSP proposed amendments at Stage 2 to prevent dual mandates in the Scottish Parliament. Ross Greer MSP lodged similar amendments aimed at disqualifying members of the House of Lords from holding a seat in the Scottish Parliament. Minister for Parliamentary Business Jamie Hepburn MSP was supportive of the consideration of prohibiting dual mandate at the Scottish Parliament but suggested that the matter required fuller consideration. The Minister also proposed a consultation on the matter in correspondence to the SPPA Committee dated 31 October 2024. The amendments (in the name of Graham Simpson MSP and Ross Greer MSP) were not moved to allow for a Scottish Government consultation on dual mandate prohibitions.
Graham Simpson MSP has since lodged amendments at Stage 3 that would prevent individuals from holding a dual mandate at the Scottish Parliament. The lodging of amendments at Stage 3 followed the announcement of Stephen Flynn MP’s (now previous) intention to seek nomination for a Scottish Parliament constituency seat and hold a dual mandate if successful in contesting the seat at election.
Graham Simpson MSP’s amendments propose that Scottish Ministers lay regulations that would give effect to the disqualification of MPs, peers, and councillors from membership of the Scottish Parliament. The amendments proposing the prohibition of MPs and peers from holding a dual mandate are supported by Ross Greer MSP. The Minister for Parliamentary Business Jamie Hepburn MSP has been quoted in media reports as suggesting a consultation on dual mandate could be published in January 2025 with regulations laid in October 2025, if the amendments are agreed to.
Disqualification
Following debate at Stage 2 on whether individuals who have previously been subject to SONR should be disqualified from elected office in Scotland, Annie Wells MSP has lodged amendments proposing that candidates in Scottish elections are required to declare whether they would previously have been disqualified due to prior sexual offences.
Ross Greer MSP has lodged amendments proposing that when a court in Scotland considers whether an offence is aggravated by hostility towards campaigners or electoral workers, it must explicitly take this aggravation into account when determining the sentence and provide reasons for any difference in the sentence due to the aggravation.
Electronic voting pilots and the list order effect
There will be further debate on election pilots with amendments lodged by Ross Greer MSP proposing that pilots on electronic or internet voting be permitted.
The Member has also lodged amendments proposing that Scottish Ministers be required to review and report on the method of ordering candidates on ballot papers for local government and Scottish Parliament elections. This amendment is aimed at evaluating the impact of the “list order effect” in the Single Transferable Vote (STV) system used for Scottish local elections (i.e., where candidates listed higher on the alphabetically ordered ballot paper receive more votes than those listed lower). This was an issue which Mr Greer raised at Stage 2. The amendments lodged at Stage 3 are supported by Kenneth Gibson MSP.
Electoral governance
Government amendments in the name of Jamie Hepburn MSP have been lodged to clarify and modify the Bill’s provisions on the terms and conditions for the Electoral Management Board for Scotland, including its strategic plan, resources, and remuneration of Board officers.
Ross Greer MSP lodged amendments at Stage 2 that would require any local government boundaries and councillor numbers review to be completed 18 months prior to the next relevant elections. The Minister for Parliamentary Business indicated that the Scottish Government would support the member to bring the amendments back for Stage 3, with suggestion that such arrangements could be in place for the local government elections due to take place in 2032. Ross Greer MSP has since lodged the amendment at Stage 3 along with a similar amendment that applies to reports on parliamentary boundaries ahead of ordinary general elections for the Scottish Parliament.
Joint party candidates
Daniel Johnson MSP has lodged technical amendments that aim to provide clarity and flexibility in how candidates are described and recognised when standing in the joint name of more than one registered party. The amendments do not appear to be issues that were raised at Stage 2.
Courtney Aitken
SPICe Research