Seòmar agus comataidhean

I will not seek to extend your patience, convener.

I urge the committee to support my amendments in this group, which relates to the postponement of elections.

The bill’s provisions on the emergency rescheduling of elections are deliberately designed to restrict the postponement of an election by an office-holder, such as the convener of the Electoral Management Board. I think that such decisions should be made by Parliament, if that is at all possible.

The principal purpose of the nationwide postponement provision was to provide time to allow Parliament to pass a bill to set a new date for a local election. I am clear that it was never the intention to suggest that a nationwide local government election could be straightforwardly rearranged within two, or even four, weeks. Local government elections are complex and challenging to deliver, because of the e-counting system that is required to calculate results under the STV system. Rather than give the convener of the Electoral Management Board for Scotland the power to postpone an election by, say, six months, the bill provides for a limited postponement, during which Parliament can decide whether it wishes to pass emergency legislation.

Having heard the evidence at stage 1, I accept that the maximum period could be helpfully increased to four weeks—an aim that is achieved with amendments 25 and 29. I think that the approach is most likely to be of assistance at a local level, where an individual returning officer can decide to postpone the election in an authority area based on local circumstances. In individual areas, that could mean a postponement of up to eight weeks, as the EMB convener’s power to postpone could be followed by a local postponement by a returning officer.

The other amendments reflect the committee’s recommendation in its stage 1 report on ensuring a wider understanding of and confidence in decisions that are taken to reschedule or cancel an election.

The bill as introduced contains provisions to make arrangements to postpone elections and, in the case of certain by-elections, to cancel them. These amendments change part 4 of the bill to require that, when in relation to the Scottish Parliament, the Presiding Officer, and, when in relation to local government, the convener of the Electoral Management Board or relevant returning officer, exercise their power to postpone or cancel an election, they must also publish a statement setting out the reasons for doing so.

As I said in my letter of 16 May to the committee, the bill’s provisions on emergency rescheduling seek to cover situations where postponement is considered essential, but they are deliberately not prescriptive. It is right that those who are entrusted with making those important decisions are not unduly constrained in doing so and are able to draw on their experience and judgment to take account of as wide a range of emergency situations as possible, both local and national.

That said, I also agree with the committee’s assessment that such decisions that impact on the democratic functioning of our country be easily understood and command as much confidence as possible among the public. Requiring the person who makes the decision to postpone or cancel an election to publish a statement setting out the reasons for the decision will help in both regards, and will add an important extra layer of transparency and accountability to the process.

I invite the committee to support the amendments in this group.

I move amendment 22.

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

I am grateful to Ross Greer for having taken the time to discuss the amendments with me in advance of today's proceedings. I very much appreciate the points that he has made, which include that requiring candidate deposits could be viewed as a barrier to engagement in the democratic process; that there is a reasonable case to be made for requiring candidates to have demonstrated some support in the process of being nominated in the local area that they are seeking to be a candidate; and that by-elections can impact the proportionality of council representation. I understand the points that Mr Greer has made, and there is some merit in the case for his suggested changes.

However, in my estimation, removing deposits and doing away with local government by-elections represent fairly significant changes. I should say that I know Councillor Ken Andrew very well, and I will certainly be pressing him to not stand down in the Hillhead ward.

I am also taken with the point that Graham Simpson has made. There is a balance to be struck here, but, equally, although we ordinarily vote along party lines in a council election, we are also electing an individual.

Although there is merit in the suggestions, they require some further thought. They involve pretty big changes and they have not been subject to consultation during the bill process. I take the point that Mr Greer has made, that relevant work was done by the Electoral Commission, but that was some time ago. As far as I am aware, the issues were not raised at stage 1, and I note that the Electoral Management Board’s convener has raised some concerns about the changes in his letter to the committee.

I recognise that there is a case to be made for changing the arrangements and that the proposals ape elements of some systems in other jurisdictions, but I think that the difference in threshold for those parties that have had electoral success and those that have not, in terms of requiring them to collect signatures, would require some consideration.

I also note that there are some drafting issues that might require attention if the amendments were to be successful today, although, of course, we could deal with them at stage 3.

I think that the issues that have been aired are worthy of future consideration. They could and probably should be debated and discussed by the Parliament at some point in the future. However, incorporating them into the bill at stage 2 is probably not the best way to make such major changes to how we carry out our elections. On that basis, I urge the committee not to support the amendments.

I refer members to the letter that I have sent regarding the consultation that the Scottish Government has committed to on other areas, which we will turn to in the debates on other groups of amendments. If the issues that have been raised are of interest to the committee, I am more than willing to consider how we might be able to undertake a similar exercise in the area of election law.

I thank Mr Greer for lodging the amendments. It is worth airing the issues, but I ask him to consider not pressing them today. Should he choose to do so, I ask members to vote against them.

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 the 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.

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.

The point that I was trying to make is that it is a strength of our process of deliberation that there is a stage 1 process in which the issues are considered in detail by the committee. It is clearly for the committee to consider what it wants to determine at that stage, but if the issue had been aired at that stage and if recommendations on it had been made, as I have demonstrated across the range of amendments that I am moving today, we would have listened to what the committee said and weighed the balance of the evidence that it had gathered, and we would have responded with appropriate amendments.

I will take Mr Greer’s intervention, but I think that I am about to go on to address his point.

Yes, I suspect that that was a slip of the tongue.

We would all recognise and appreciate that point, as it would be an understandable human instinct. However, I wonder whether Ms Wells has reflected on the fact that we have had to very carefully consider the balance between the concerns that people reasonably have—indeed, they are why we have brought forward the provisions—and ensuring that we are on the right side of the requirements that have been laid out by the Vienna commission. I am genuinely concerned about that.

To put it in context, we had to give very close and careful consideration to the provisions, as we would with anything that we propose in law. At one stage, we considered whether we could even go as far with regard to parliamentarians, because of the requirements of the Vienna commission. I think that we have landed with the appropriate balance. Of course, the Government would have to robustly defend any bill, subsequent to it being passed and becoming an act of Parliament, so I want to ensure that we have legislation that is as robust as it can be.

Although I take Ms Wells’s concerns on board, which is the reason that those provisions have been lodged, I wonder whether she has reflected on whether the position that she has asked the committee to take strikes the right balance, and whether it might be a step too far.