Scotland Act 1998

Scotland Act 1998

1998 Chapter 46 - continued

INTRODUCTION

These explanatory notes relate to the Scotland Act 1998. They have been prepared by the Scotland Office in order to assist the reader of the Act. They do not form part of the Act and have not been endorsed by Parliament. They also include references to secondary legislation made under the Act and to other relevant delegated legislation made before September 2001. It does not include changes to the Act made since it came into force.

These notes need to be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So, where a section or part of a section does not seem to require any explanation or comment, none is given.

The Act refers to matters within the responsibilities of the Scottish ministers and the Secretary of State for Scotland. References to the Secretary of State in the Act mean any Secretary of State. In practice, some of the functions conferred upon the Secretary of State will be exercised by the Secretary of State for Scotland.

SUMMARY

The Act gives effect to the Government's proposals for devolution to Scotland as set out in the white paper, Scotland's Parliament (Cm 3658, July 1997). It is divided into six parts:

Part I The Scottish Parliament;

Part II The Scottish Administration;

Part III Financial Provisions;

Part IV The Tax Varying Power;

Part V Miscellaneous and General;

Part VI Supplementary.

The Act also contains nine schedules. Of these, Schedule 4 lists enactments protected from modification by the Scottish Parliament. Schedule 5 lists matters reserved to the UK Parliament.

COMMENTARY

Derivations

The table below shows the legislative history of each of the provisions in the Act, providing the clause, Schedule or paragraph number in each print of the Bill. For example in the "Lords R" print (which is the Bill as amended in Lords Committee, as used at Report stage), what was clause 40 eventually became section 4 of the Scotland Act.

Act	Lords 3R HL Bill 155	Lords R HL Bill 155	Lords C HL Bill 119	Comm R Bill 166	Comm C Bill 104
1	1	1	1	1	1
2	2	2	2	2	2
3	3	3	3	3	3
4	4	40	40	40	40
5	5	4	4	4	4
6	6	5	5	5	5
7	7	6	6	6	6
8	8	7	7	7	7
9	9	8	8	8	8
10	10	9	9	9	9
11	11	10	10	10	10
12	12	11	11	11	11
13	13	12	12	12	12
14	14	13	13	13	13
15	15	14	14	14	14
16	16	15	15	15	15
17	17	16	16	16	16
18	18	17	17	17	17
19	19	18	18	18	18
20	20	19	19	19	19
21	21	20	20	20	20
22	22	21	21	21	21
23	23	23	23	23	23
24	24	23	23	23	23
25	25	24	24	24	24
26	26	25	25	25	25
27	27	26	26	26	26
28	28	27	27	27	27
29	29	28	28	28	28
30	30	29	29	29	29
31	31	30	30	30	30
32	32	31	31	31	31
33	33	32	32	32	32
34	---	---	---	---	---
35	35	33	33	33	33
36	34	34	34	34	34
37	37	35	35	35	35
38	38	36	36	36	36
39	39	22	22	22	22
40	40	---	---	---	---
41	41	37	37	37	37
42	42	38	38	38	38
43	43	39	39	39	39
44	44	41	41	41	41
45	45	42	42	42	42
46	46	43	43	43	43
47	47	44	44	44	44
48	48	45	45	45	45
49	49	46	46	46	46
50	50	---	---	---	---
51	51	47	47	47	47
52	52	48	48	48	48
53	53	49	49	49	49
54	54	50	50	50	50
55	55	51	51	51	51
56	56	52	52	52	52
57	57	53	53	53	53
58	58	54	54	54	54
59	59	55	55	55	55
60	60	56	56	56	56
61	61	57	57	57	57
62	62	58	58	58	58
63	63	59	59	59	59
---	---	---	60	60	60
64	64	60	61	61	61
65	65	61	62	62	62
66	66	62	63	63	63
67	67	63	64	64	64
68	68	64	65	65	65
69	69	65	----	----	----
70	70	66	66	66	66
71	71	67	67	67	67
72	72	68	68	68	68
73	73	69	69	69	69
74	74	70	70	70	70
75	75	71	71	71	71
76	76	72	72	72	72
77	77	73	73	73	73
78	78	74	74	74	74
79	79	75	75	75	75
80	80	76	---	---	---
81	81	77	76	76	76
82	82	78	77	77	77
83	83	79	78	78	78
84	84	80	79	79	79
85	85	81	80	80	80
86	86	82	81	81	81
87	87	83	82	82	82
88	84	84	83	83	83
89	89	85	84	84	84
90	90	86	85	85	85
91	91	87	86	86	86
92	92	---	----	---	---
93	93	88	87	87	87
94	94	89	88	88	88
95	95	90	89	89	89
96	96	91	90	90	90
97	97	---	---	---	---
98	98	92	91	91	91
99	99	---	---	---	---
100	100	93	---	---	---
101	101	---	---	---	---
102	102	95	93	93	93
103	103	96	94	94	94
104	104	97	95	95	95
105	105	98	96	96	96
106	106	99	97	97	97
107	107	94	92	92	92
108	108	100	98	---	---
109	109	101	---	---	---
110	110	102	99	98	98
111	111	103	100	99	99
112	112	104	101-103	100-102	100-102
113	113	105	101-103	100-102	100-102
114	114	106	101-103	100-102	100-102
115	115	107	101-103	100-102	100-102
116	116	108	104	103	103
117	117	109	105	104	104
118	118	110	106	105	105
119	119	111	107	106	106
120	120	112	107	106	106
121	121	113	108	107	107
122	122	114	109	108	108
123	123	115	110	109	109
124	124	116	---	---	---
125	125	117	111	110	110
126	126	118	112	111	111
127	127	119	113	112	112
128	128	120	114	113	113
129	129	121	115	114	114
130	130	122	115	114	114
131	131	123	116	115	115
132	132	124	117	116	116
S. 1	S. 1	S. 1	S. 1	S. 1	S. 1
S. 2	S. 2	S. 2	S. 2	S. 2	S. 2
S. 3	S. 3	S. 3	S. 3	S. 3	S. 3
S. 4	S. 4	S. 4	S. 4	S. 4	S. 4
S. 5	S. 5	S. 5	S. 5	S. 5	S. 5
S. 6	S. 6	S. 6	S. 6	S. 6	S. 6
S. 7	S. 7	S. 7	---	---	---
S. 8 § 1	S. 8 § 1	S. 8 § 1	S. 7 § 1	---	---
S. 8 § 2	S. 8 § 2	S. 8 § 2	S. 7 § 2	S. 7 § 1	S. 7 § 1
S. 8 § 3	S. 8 § 3	S. 8 § 3	S. 7 § 3	---	---
S. 8 § 4	S. 8 § 4	S. 8 § 4	S. 7 § 4	---	---
S. 8 § 5	S. 8 § 5	S. 8 § 5	S. 7 § 5	S. 7 § 2	S. 7 § 2
S. 8 § 6	S. 8 § 6	---	---	---	---
S. 8 § 7	S. 8 § 7	S. 8 § 6	S. 7 § 6	S. 7 § 3	S. 7 § 3
S. 8 § 8	S. 8 § 8	S. 8 § 7	S. 7 § 7		---
S. 8 § 9	S. 8 § 9	S. 8 § 8	S. 7 § 8	S. 7 § 4	S. 7 § 4
S. 8 § 10	S. 8 § 10	S. 8 § 9	S. 7 § 9	S. 7 § 5	S. 7 § 5
S. 8 § 11	S. 8 § 11	S. 8 § 10	S. 7 § 10	S. 7 § 6	S. 7 § 6
S. 8 § 12	S. 8 § 12	S. 8 § 11	S. 7 § 11	---	---
S. 8 § 13	S. 8 § 13	S. 8 § 12	S. 7 § 12	---	---
S. 8 § 14	S. 8 § 14	---	---	---	---
S. 8 § 15	S. 8 § 15	S. 8 § 13	S. 7 § 13	S. 7 § 7	S. 7 § 7
S. 8 § 16	S. 8 § 16	S. 8 § 14	S. 7 § 14	S. 7 § 8	S. 7 § 8
S. 8 § 17	S. 8 § 17	S. 8 § 15	S. 7 § 15	---	---
S. 8 § 18	S. 8 § 18	S. 8 § 16	---	---	---
S. 8 § 19	S. 8 § 19	S. 8 § 17	S. 7 § 16	S. 7 § 9	S. 7 § 9
S. 8 § 20	S. 8 § 20	S. 8 § 18	S. 7 § 17	S. 7 § 10	S. 7 § 10
S. 8 § 21	S. 8 § 21	S. 8 § 19	---	---	---
S. 8 § 22	S. 8 § 22	S. 8 § 20	S. 7 § 18	---	---
S. 8 § 23	S. 8 § 23	S. 8 § 21	S. 7 § 19	S. 7 § 11	S. 7 § 11
S. 8 § 24	S. 8 § 24	S. 8 § 22	S. 7 § 20	S. 7 § 12	S. 7 § 12
S. 8 § 25	S. 8 § 25	S. 8 § 23	S. 7 § 21	S. 7 § 13	S. 7 § 13
S. 8 § 26	S. 8 § 26	S. 8 § 24	---	---	---
S. 8 § 27	S. 8 § 27	S. 8 § 25	S. 7 § 22	---	---
S. 8 § 28	S. 8 § 28	S. 8 § 26	S. 7 § 23	S. 7 § 14	S. 7 § 14
S. 8 § 29	S. 8 § 29	S. 8 § 27	S. 7 § 24	---	---
S. 8 § 30	S. 8 § 30	S. 8 § 28	S. 7 § 25	S. 7 § 15	S. 7 § 15
S. 8 § 31	S. 8 § 31	S. 8 § 29	S. 7 § 26	S. 7 § 16	S. 7 § 16
S. 8 § 32	S. 8 § 32	S. 8 § 30	S. 7 § 27	S. 7 § 17	S. 7 § 17
S. 8 § 33	S. 8 § 33	S. 8 § 31	S. 7 § 28	S. 7 § 18	S. 7 § 18
S. 8 § 34	S. 8 § 34	S. 8 § 32	---	---	---
S. 9	S. 9	S. 9	S. 8	S. 8	S. 8

SECTION 1: The Scottish Parliament

Purpose and Effect

This section establishes the Scottish Parliament. It provides for the election of constituency members of the Parliament under the simple majority system and regional members by proportional representation. The section also ensures that the validity of Parliamentary proceedings is unaffected if any seats are vacant. The section introduces Schedule 1, which provides for the constituencies, electoral regions and number of members to be returned per region and provides for the Boundary Commission for Scotland to recommend any necessary changes to the regions and the number of regional members.

General

This section has links with sections 2 and 3 dealing with the election of members to the Parliament.

This section also has links with section 5 relating to candidates standing for election as constituency members or Regional members; sections 6, 7 and 8 on the return of regional members; sections 9 and 10 on vacancies and Schedule 1 which is concerned with constituencies of the Parliament, regions and regional members.

Parliamentary Consideration

Stage	Date	Column
CC	28-Jan-98	357
CC	28-Jan-98	412
LC	8-Jul-98	1234
LC	8-Jul-98	1277
LC	8-Jul-98	1295
LR	22-Oct-98	1567

Details of Provisions

Subsection (1) provides for the establishment of a Scottish Parliament.

Subsection (2) provides for one member of the Parliament to be returned for each constituency by means of the simple majority system or "first past the post" system (73 members are currently returned on this basis - see Schedule 1). These members are returned either at a general election (see sections 2, 3 and 5) or at a by-election to fill vacancies in constituency seats (section 9).

Subsection (3) deals with the return of regional members from each of the eight regions by means of the additional member system of proportional representation, as provided for in sections 6, 7 and 8 (56 members are currently returned on this basis - see Schedule 1). They are returned either at general elections (see sections 2, 3 and 5) or under section 10 in the case of a vacancy in regional seats.

Subsection (4) provides that the validity of any proceedings of the Parliament is unaffected by any vacancy in its membership.

Subsection (5) introduces Schedule 1, which provides for the constituencies and regions, the number of members to be returned per region and for alteration of the regions and of those numbers.

SECTION 2: Ordinary general elections

Purpose and Effect

This section provides for the holding of ordinary general elections of members of the Scottish Parliament. In particular, it provides for elections on the first Thursday in May every 4 years; variation of the date of the election within prescribed limits; dissolution of the Parliament prior to an election; and the meeting of the Parliament following an election.

Provision is also made for appointing the day on which the poll at the first ordinary general election should be held, and the day, time and place for the meeting of the Parliament following that poll.

General

This section forms part of the set dealing with the election of members of the Scottish Parliament. Section 1 requires members to be elected for each constituency and region, with Schedule 1 defining the constituencies and regions and setting the number of members to be elected for each region.

Sections 2 and 3 deal with the holding of general elections of members. Section 2 covers ordinary general elections, which are to be held every 4 years, whilst section 3 covers extraordinary general elections, which are held if the Parliament resolves that it should be dissolved or fails to nominate a First Minister within a set period.

Vacancies in individual constituency or regional seats are dealt with by sections 9 and 10.

Parliamentary Consideration

Stage	Date	Column
CC	28-Jan-98	460
LC	8-Jul-98	1342
LC	8-Jul-98	1349
LR	22-Oct-98	1618

Details of Provisions

Subsection (1) provides for the poll at the first ordinary general election to be held on a day to be appointed by the Secretary of State. The subsection also makes provision for the Secretary of State to fix the date, time and place for the meeting of the Parliament following the first election. Accordingly, the Scottish Parliament (First Ordinary General Election and First Meeting) Order 1999 (S.I. 1999/788) was made fixing the date of the first ordinary general election as 6 May 1999 and of the first meeting of the Parliament as 12 May 1999.

Subsection (2) provides that subsequent ordinary general elections are to be held on the first Thursday in May four calendar years after the previous such election, unless an alternative date is set under subsection (5).

Subsections (3) and (4) ensure that the Parliament will be dissolved automatically on a date before the election timetable begins running. They provide that if the poll is to be held on the first Thursday in May, the Parliament is dissolved at the beginning of the "minimum period" which ends with that day. The minimum period means the period determined in accordance with an order made by the Secretary of State under section 12(1) (which enables provision to be made in particular as to the conduct of the election). The "minimum period" is defined by article 89 of the Scottish Parliament (Elections etc.) Order 1999 (S.I. 1999/787) as being 25 days (excluding Saturday, Sunday, bank holidays etc. as set out in rule 2 of Schedule 2 to that Order).

Subsection (3) also requires the Parliament to meet within 7 days following the poll - see section 4 for the calculation of the 7 day period. The intention is to avoid any significant hiatus between the election and the first meeting. Section 46 requires that, within 28 days of the poll, the Parliament must nominate one of its members for appointment as First Minister.

Subsection (5) provides for an alternative date to be set for an ordinary general election. In some circumstances the first Thursday in May may be inappropriate for the holding of a poll. This provision provides some limited flexibility to vary the date. The Presiding Officer may propose an alternative day for the election to Her Majesty. This date may not be more than one month earlier or one month later than the first Thursday in May. Her Majesty may then, by proclamation under the Scottish Seal, dissolve the Parliament, require the poll to be held on the proposed day, and require the Parliament to meet within seven days. Section 4 provides for the calculation of the seven day period. The Standing Orders of the Parliament provide that the date and time of the first meeting of Parliament after all general elections, subsequent to the first, is to be determined by the Presiding Officer and notified to members. Provisions about the form, recording and publication of royal proclamations under this subsection are contained in section 38 and the Scottish Parliament (Letters Patent and Proclamations) Order 1999 (S.I. 1999/737).

Subsection (6) makes provision about the use of the term "the Scottish Seal" in the Act. It provides that that expression means Her Majesty's Seal appointed by the Treaty of Union to be kept and used in Scotland in place of the Great Seal of Scotland. See also section 38 (letters patent and proclamations) and section 45(7), which provides for the First Minister to be the Keeper of the Scottish Seal.

SECTION 3: Extraordinary general elections

Purpose and Effect

This section provides for the holding of extraordinary general elections of members of the Scottish Parliament.

General

This section forms part of the set dealing with the election of members of the Scottish Parliament.

Section 1 requires members to be elected for each constituency and region. Sections 2 and 3 deal with the holding of general elections of members. Section 2 covers ordinary general elections, which are to be held every 4 years, whilst section 3 covers extraordinary general elections, which are held if the Parliament resolves that it should be dissolved or fails to nominate a First Minister within a set period.

Vacancies in individual constituency or regional seats are dealt with by sections 9 and 10.

Parliamentary Consideration

Stage	Date	Column
CC	28-Jan-98	460
LC	8-Jul-98	1342
LC	8-Jul-98	1351
LC	8-Jul-98	1354
LR	22-Oct-98	1640
L3	9-Nov-98	509

Details of Provisions

Subsection (1) provides for an extraordinary general election to be held in two sets of circumstances:

where the Parliament resolves that it should be dissolved. If the resolution is passed on a division, it requires two-thirds of the total membership of the Parliament to vote in favour (i.e. 2/3 of 129 = 86); or

where the Parliament fails to nominate one of its members for appointment as First Minister within the time allowed under section 46.

In such circumstances, the Presiding Officer is required to propose a day for the holding of the poll.

Subsection (2) provides that, on such a proposal, Her Majesty may by proclamation dissolve the Parliament, require an extraordinary general election to be held on the day proposed, and require the Parliament to meet within seven days (see section 4 for calculation of the 7-day period). It will be for the Parliament itself to decide on the precise date, within that 7-day period, on which that meeting should be held. The Standing Orders of the Parliament provide for this to be determined by the Presiding Officer and notified to members.

Provisions about the form, recording and publication of royal proclamations under this subsection are contained in section 38 and the Scottish Parliament (Letters Patent and Proclamations) Order 1999 (S.I. 1999/737).

Subsection (3) provides that, if the date of a poll under this section is within 6 months of the normal date for the next ordinary general election, that ordinary general election will not be held. However, by virtue of subsection (4), that will not affect the year in which the subsequent ordinary general election is to be held.

For example, an ordinary general election is held in May 2003. The next ordinary election would normally be in May 2007. But an extraordinary general election is held in December 2006. The next ordinary election will nevertheless take place in May 2011, 4 years from the due date of May 2007.

SECTION 4: Calculating time for meeting of the Parliament

Purpose and Effect

This section specifies the days which are to be disregarded when calculating the time between the date of a general election and the date on which the Parliament must meet.

General

This section is related to sections 2 and 3, which are concerned with the timing of general elections and extraordinary general elections and the timing of the first meeting of the Parliament to be held after such elections.

Parliamentary Consideration

Stage	Date	Column
LR	28-Oct-98	2022

Details of Provisions

This section applies for the purposes of subsections (3)(b) and (5)(c) of section 2 and subsection (2)(c) of section 3, which provide that after a general election the Parliament must meet within a period of seven days beginning on the day immediately following the poll at that election. In calculating the seven day period certain days must be disregarded. These are Saturdays, Sundays, Christmas Eve, Christmas Day, Good Friday, bank holidays in Scotland and days appointed for public thanksgiving or mourning.

SECTION 5: Candidates

Purpose and Effect

This section indicates how persons may stand for election as members of the Scottish Parliament for constituencies or regions. It prohibits a person from being a candidate to be a constituency member in more than one constituency and provides that a person may only stand for election both as a constituency member and as a regional member when that constituency is in that region. This section allows registered political parties to submit lists of candidates to contest regional seats. It also allows individuals to stand for election as regional members.

General

The section forms part of a set covering the election of members to the Parliament. It is closely connected to section 6 which deals with votes for registered political parties and individual candidates standing for regional seats; sections 7 and 8 which deal with the allocation of regional seats; and sections 9 and 10 which are concerned with filling vacancies. Section 15 provides for the disqualification of persons from membership of the Parliament.

Parliamentary Consideration

Stage	Date	Column
CC	28-Jan-98	412
CC	28-Jan-98	413
CR	12-May-98	225
LC	14-Jul-98	151
LC	14-Jul-98	153
LC	14-Jul-98	165
LC	14-Jul-98	188
LC	14-Jul-98	197
LR	22-Oct-98	1643
LR	22-Oct-98	1650
LR	22-Oct-98	1653
L3	9-Nov-98	509
L3	9-Nov-98	510
L3	9-Nov-98	513

Details of Provisions

Subsection (1) provides for candidates to stand for election as constituency members or as regional members. It does not prevent a person from standing for both a constituency and a regional seat, subject to the provisions of subsections (7) and (8), but any person so standing could only be returned for one of those seats.

Subsection (2) provides that a person may not be a candidate to be a constituency member for more than one constituency. This is different to the rules which apply as respects the UK Parliament where a person may stand in more than one constituency.

Subsection (3) provides that candidates for regional seats must either be included in a list submitted by a registered political party or be individual candidates.

Subsection (4) enables any registered political party to submit a list of candidates to the regional returning officer. (For mechanisms, see paragraph 6 of Schedule 2 to the Scottish Parliament (Elections etc.) Order 1999 (S.I. 1999/787) ("the Elections Order")). Subsection (9) defines what is meant by a registered political party.

In view of the provisions of sections 8(4) (the allocation of seats to regional members) and 10 (regional vacancies), the names on the list will require to be ranked in order and this ranking is done by the registered political party. This is called a "closed list" system.

Subsection (5) provides for a party's list to have effect for the general election and for any vacancy occurring among the regional members after that election and before the next general election. Vacancies for regional members which arise during the life of the Parliament will be filled from that list. Section 10 makes provision in this regard.

Subsection (6) provides for a maximum of twelve names on a party's list of candidates. A list may include a single name. Although a party cannot win more than 7 seats in a region, some candidates on the list may be returned as constituency members and thus left out of account in applying the rules for returning the regional members. Regional vacancies will be filled from the lists used at the previous general election. So it is helpful for a party to be able to have more persons on the list than can in fact be returned as regional members at the election.

Subsection (7) provides that a person cannot be nominated in a party's list if he or she is standing for another party or as an individual, or in another region. This restriction applies regardless of whether the candidate is standing as a constituency candidate or a regional candidate.

Subsection (8) provides that a person may not be an individual candidate to be a regional member for a region if he is standing for a party or in another region (whether as a constituency candidate or as a list candidate).

The net effect of subsections (2), (7) and (8) is that the only circumstances in which a person can be a candidate in more than one capacity at an election are:

A candidate representing a party who stands for a constituency seat may also be included in that party's regional list for the region in which the constituency lies.

A candidate who does not represent a political party who stands for a constituency seat may also be an individual candidate for the region in which the constituency lies.

Subsection (9), as originally enacted, provided that "registered political party" meant a party registered under the Registration of Political Parties Act 1998. It has since been amended, to provide that it means a party registered under Part II of the Political Parties, Elections and Referendums Act 2000 (c.41) - see section 158 and paragraph 13(2) of Schedule 21, and S.I. 2001/222, Article 2, Schedule 1, Part 1.

SECTION 6: Poll for regional members

Purpose and Effect

This section is concerned with the election of regional members. It allows electors to cast a vote, in a poll for regional members, either in favour of a registered political party that has submitted a regional list or an individual candidate.

General

This section is linked to sections 7 and 8 on the return of regional members.

Parliamentary Consideration

Stage	Date	Column
CC	28-Jan-98	413
CR	12-May-98	225
LR	22-Oct-98	1654

Details of Provisions

Subsection (1) states that this section and sections 7 and 8 are about the return of regional members at a general election.

Subsection (2) provides for the holding of polls in each constituency, at which an elector may cast a vote (a "regional vote") for either a registered political party which has put forward a regional list or for an individual candidate for return as a regional member for that region.

The voting system allows the electors to vote for a party that has submitted a regional list but not a particular individual named in it. The Scottish Parliament (Elections etc.) Order 1999 (S.I. 1999/787) for the rules relating to the publication of the names of those standing in the regional polls.

Subsection (3) provides that the right to vote for a registered political party list or individual in a region is in addition to the right to vote for a constituency candidate. Electors are, therefore, entitled to cast 2 votes but there is no obligation on them to do so.

SECTION 7: Calculation of regional figures

Purpose and Effect

This section provides that constituency seats must be determined before the allocation of

regional members seats can take place. It also provides for the calculation of the relevant figures (referred to in the Act as "regional figures") which will determine how regional member seats are to be allocated to parties and to individuals.

General

This section is part of the set of three sections concerned with the return of regional members at a general election. The method of calculating the regional figures uses what is referred to as the D' Hondt formula in section 7(2) where a regional figure is calculated by dividing the total regional votes by 1+ the number of seats already held. This seeks to ensure that the average number of votes required to win one regional seat shall be, so far as possible, the same for each party.

Parliamentary Consideration

Stage	Date	Column
CR	12-May-98	225
LC	14-Jul-98	204
LR	22-Oct-98	1658
LR	22-Oct-98	1661

Details of Provisions

Subsection (1) provides that all candidates to be returned as constituency members within an electoral region must be determined before the return of the regional members for that region. This is because the regional member seats are allocated on a corrective basis, taking account of the number of constituency seats a party has gained.

This was modified by Rule 70 in Schedule 2 of the Scottish Parliament (Elections etc.) Order 1999 (S.I. 1999/787) to deal with the situation where a candidate dies before a result is returned. "Constituencies included in the region" is to be construed as reference to all of the constituencies included in the region except those in relation to which rule 70(1) applies.

Subsection (2) provides that, for each registered political party which has submitted a list of candidates, the number of regional votes recorded in each constituency throughout the region are added together and divided by the number of constituency seats gained plus one. Parties who do not gain any constituency seats can be involved in the calculations. The resultant figure is called the "regional figure". Taking constituency seats into the calculations means that additional seats are allocated correctively as opposed to on a simple proportional basis. In other words, a party, which has won disproportionately few constituency seats having regard to their regional vote, may be compensated by being allocated additional seats from the party's regional list. However, only the regional vote is used in the calculation; votes cast in the ballot for constituency members are disregarded for this purpose.

Subsection (3) provides that each time a party gains a regional member seat the "regional figure" for that party is recalculated taking into account the seat thus gained by adding it to the divisor i.e. the previous aggregate number of constituency seats gained by the party plus one.

Subsection (4) provides that the "regional figure" for individual candidates is simply the total number of regional votes cast for the individual in each constituency in the region. By virtue of section 8(3), any individual candidate who has been returned as a constituency member is disregarded when allocating regional seats.

SECTION 8: Allocation of seats to regional members

Purpose and Effect

This section sets out the process for determining the allocation of seats to regional members for each region following calculation of the "regional figure" in section 7 for registered political parties and individual candidates. It provides that candidates on party lists shall be returned in the order they appear on the list but that where any such candidates have already been returned as constituency or regional members they shall be disregarded. Provision is also made for individual candidates to be disregarded if and when they are returned and for parties to be similarly disregarded when their list is exhausted.

General

This section is one of three dealing with the return of regional members. It is closely linked to section 6, which deals with polls for regional members, and section 7, which deals with calculation of regional figures.

Parliamentary Consideration

Stage	Date	Column
CC	28-Jan-98	413
CR	12-May-98	225
CR	12-May-98	229

Details of Provisions

Subsection (1) provides that the first regional member seat within a region is allocated to the registered political party or individual with the highest regional figure, as determined by section 7. This will not necessarily be the party with the highest total of regional votes since account must be taken of the number of seats already won in the constituency ballots. A worked example is given below.

Subsection (2) provides that the second and subsequent seats for the region are allocated to the party or individual candidate with the highest regional figure calculated in accordance with section 7(3). When a party gains a seat, its regional figure is recalculated to ensure that the corrective aspect of the system continues to apply.

Subsection (3) provides that an individual candidate who has been returned as a constituency member or as a regional member should be disregarded from further calculations.

Subsection (4) provides for regional member seats allocated to parties to be filled by candidates in the order in which they appear in the party list.

Subsection (5) provides that, for the purposes of this section and section 10 (regional vacancies) any person in a party's list who is returned as a member of Parliament shall be treated as ceasing to be in the list, even if the return is void.

Subsection (6) provides that, if a party's regional list has been used up because of the allocation of regional seats and election of constituency members included on the list, the party will be excluded from further calculations.

Subsection (7) deals with a situation where two or more parties or individual candidates have the same regional figure and effectively provides that in that event a seat shall be allocated to each party or, as the case may be, individual. Section 12(2)(f) enables an order under section 12 to modify section 8(7) "to ensure the allocation of the correct number of seats for the region". Rule 63 in Schedule 2 of the Scottish Parliament (Elections etc.) Order 1999 (S.I. 1999/787) ("the Elections Order") amends subsection (7) to deal with the situation where the application of section 8 (7) would require the return of too many candidates. As modified, subsection (7) provides that where the application of subsection (7) would result in the return of too many candidates for the region, subsection (8) will apply.

Subsection (8), inserted by Rule 63 in Schedule 2 of the Elections Order, provides that in the situation where subsection (7)(b) applies, then 1 vote will be added to the regional votes given for the relevant party or candidate and the regional figure recalculated.

Subsection (9), also inserted by the Elections Order, provides that where the operation of section (8) would still result in too many seats being allocated, the regional returning officer shall decide between the parties or candidates concerned by lot.

Allocation of Seats in the North East of Scotland Region

An example based on votes cast in the North-East Scotland Region on 6 May 1999 is shown in the table below.

North-East Scotland Region	Labour	Lib Dem	SNP	Con	Green	Result
Party Vote	72666	49843	92329	52149	8067
Constituency MSPs	4	3	2	0	0
1st Additional Member	÷5=14533	÷4=12461	÷3=30776	÷1=52149	÷1=8067	Con win
2nd Additional Member	÷5=14533	÷4=12461	÷3=30776	÷2=26075	÷1=8067	SNP win
3rd Additional Member	÷5=14533	÷4=12461	÷4=23082	÷2=26075	÷1=8067	Con win
4th Additional Member	÷5=14533	÷4=12461	÷4=23082	÷3=17383	÷1=8067	SNP win
5th Additional Member	÷5=14533	÷4=12461	÷5=18466	÷3=17383	÷1=8067	SNP win
6th Additional Member	÷5=14533	÷4=12461	÷6=15388	÷3=17383	÷1=8067	Con win
7th Additional Member	÷5=14533	÷4=12461	÷6=15388	÷4=13037	÷1=8067	SNP win
No of Additional Members	0	0	4	3	0
Total No of MSPs	4	3	6	3	0

The table does not include smaller parties or an individual candidate (who received 2303 votes).

The number of votes cast for each party list is divided by the number of constituency MSPs gained plus one. For example, the Labour party gained 4 constituency MSPs so the party list vote is divided by 5.

After that calculation is done, the party with the highest regional figure gains the first regional seat. In this case that is quite clearly the Conservative Party who had a high vote but no constituency MSPs.

For the second to seventh regional seats the same calculations are carried out but seats gained are included, e.g. when competing for the second regional seat the Conservative Party vote is divided by 2.

The final regional seat was secured by 15,388 "votes" or 5.4 per cent of the total vote. An independent candidate would have had to secure a similar level of support in order to gain a seat.

SECTION 9: Constituency vacancies

Purpose and Effect

This section provides for a by-election to be held within three months of a constituency seat becoming vacant. It also provides however that the by-election should not be held if the last day on which it could be held is within 3 months of the due date of the poll in the next ordinary general election. Existing members and candidates for any other vacancy may not stand.

General

The section is related to the group of sections dealing with elections and within the set dealing with vacancies which also includes section 10 covering regional vacancies. The other main related sections are section 1(2) which provides for constituency elections to be contested under the first-past-the-post system; section 2(5) in relation to varying the date for holding general elections; and section 5 which deals with candidates.

Parliamentary Consideration

Stage	Date	Column
CR	12-May-98	226
LC	14-Jul-98	209

Details of Provisions

Subsection (1) provides for a by-election to be held when the seat of a constituency member becomes vacant (subject to subsection (4)).

Subsection (2) states that the date of the poll in that by-election shall be fixed by the Presiding Officer.

Subsection (3) provides that the date of the poll in the by-election should be no later than three months after the vacancy arises unless notification of the vacancy is not made to the Presiding Officer within one month of the vacancy arising. In such circumstances the date of the election is to be fixed within three months of it being brought to the Presiding Officer's attention.

Subsection (4) provides that a by-election shall not be held if the latest date for holding the poll in that by-election would fall within the period of three months ending with the due day of the poll in the next ordinary general election. This avoids the cost and work of the election process for the sake of filling a seat for a short period of months.

Subsection (5) provides for the Standing Orders of the Parliament to determine the date on which a vacancy is deemed to have occurred.

Subsection (6) provides that a person who is already a member of the Parliament or a candidate to fill another vacancy is not eligible to stand for election at a by-election.

SECTION 10: Regional vacancies

Purpose and Effect

This section makes provision for filling regional member vacancies. If a seat is vacated by a member allocated from a registered political party list the vacancy will be filled by the next person on the list willing to serve. This will be notified to the Presiding Officer by the Regional Returning Officer. If the vacancy cannot be filled in that way (because, for example, the list is exhausted) or if the seat was previously filled by an independent individual member, the seat will remain vacant until the next general election.

General

This section follows on from those dealing with general elections and the return of regional members. The section forms a set with section 9 which deals with constituency vacancies.

Parliamentary Consideration

Stage	Date	Column
CC	28-Jan-98	413
CR	12-May-98	229
LC	14-Jul-98	212
LR	22-Oct-98	1661
L3	9-Nov-98	514
L3	9-Nov-98	516

Details of Provisions

Subsection (1) states that the section applies where a regional member seat is vacant.

Subsection (2) provides that if the vacancy arises where the former member concerned was returned at the general election as an individual, or the seat cannot be filled in accordance with the following provisions, for instance because the registered political party's list is exhausted or there is no-one left on the list willing to serve as a regional member or acceptable to the party, then the seat will remain vacant until the next general election.

Subsection (3) provides that, if the vacancy arises where the former member was returned from a registered political party's list, the regional returning officer shall notify the Presiding Officer of the name of the person who is to fill the vacancy.

Subsections (4) and (5) can be modified by an order under section 12 by virtue of section 12(3). They were modified by Article 88 of the Scottish Parliament (Elections etc.) Order 1999 (S.I. 1999/787) ("the Elections Order") with effect from 11 March 1999.

Subsection (4), as modified by the Elections Order, provides that the Regional Returning Officer shall ascertain the person who is highest on the party's list and take such steps as he considers reasonable to contact that person and obtain a written statement that he is willing to serve and a certificate signed by or on behalf of the party's nominating officer, stating that he may be returned as a regional member from that list.

Subsection (4A), inserted by the Elections Order, provides that if the Regional Returning Officer, after a period that he considers reasonable, considers his attempts to contact that person to be unsuccessful or he has not received the statement and certificate, he may proceed to contact the next person on the list and so on. This subsection also allows the regional returning officer to approach subsequent persons on the list where the first choice is unwilling to serve or the party does not provide the certificate. The procedure is repeated until the vacancy is filled or the list is exhausted.

Subsection (5), as modified by the Elections Order, provides that where the statement and certificate required are provided by a person, the Regional Returning Officer will notify that person's name to the Presiding Officer.

Subsection (5A), inserted by the Elections Order, deals with the case where a person previously contacted provides the required statement and certificate only after the Regional Returning Officer has contacted the next or a subsequent person on the list. It provides that such a statement and certificate is to have no effect unless and until the next person who has been contacted has not provided the required statement or certificate or indicates that he is not willing to serve.

Subsection (6) provides that, where the Regional Returning Officer has, under section (3), notified the Presiding Officer of the name of the person from a party list to fill the vacancy, that person shall be regarded as having been returned as a regional member on the day on which the notification was received by the Presiding Officer.

Subsection (7) provides for standing orders to determine the date on which a vacancy is to be treated as occurring. The Standing Orders of the Parliament provide that this date is to be determined by the Presiding Officer and notified to the Parliament.

However, unlike the three month limitation imposed on the filling of constituency vacancies in section 9(3), regional vacancies may be filled at any time (as long as the vacancy is created by a person who was returned from a party list).



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