SECTION 11: Electors

Purpose and Effect

This section provides for who is able to vote in elections to the Parliament. It provides that the persons entitled so to vote will, essentially, be those entitled to vote in Scottish local government elections. The section prevents electors from casting more than one constituency vote or more than one regional vote. It also prevents electors from voting in more than one constituency.

General

This section also relates to elections and is linked to section 12.

Parliamentary Consideration

Details of Provisions

Subsection (1) provides that the persons entitled to vote in a general election or by-election for membership of the Parliament are those who, on the day of the poll:

would be entitled to vote at a local government election in an electoral area all of which or part of which falls within the constituency; and

are registered in the register of local government electors at an address within the constituency.

Subsection (2) provides that those eligible to vote may, in any constituency, cast only one vote in the poll for constituency members and only one vote in the regional member poll. It also provides that electors will be able to vote in only one constituency.

These provisions mean that members of the House of Lords and EC nationals resident in Scotland will be able to vote if their names appear on the register of local government electors. Commonwealth citizens and citizens of the Republic of Ireland resident in Scotland are also eligible to vote. However, Scots resident abroad will not be eligible to vote in the Parliamentary elections.

SECTION 12: Power to make provision about elections

Purpose and Effect

This section enables the Secretary of State by order to make provisions for the holding of elections. That includes provisions about the general conduct of elections, return of members, registration of electors, levels of election expenses and combination of Scottish Parliament elections with other elections.

General

This election related section is related to section 11.

Parliamentary Consideration

Details of Provisions

Subsection (1) provides for the Secretary of State by order to make provision:

for the conduct of elections to the Parliament;

for questioning such an election and the consequences of election irregularities; and

for the return of members otherwise than at an election i.e. regional members.

The Scottish Parliament (Elections etc.) Order 1999 (S.I. 1999/787), made in exercise of this power, covers the detailed arrangements for the conduct of elections and the process for dealing with election irregularities.

Further provision about the making of this order is to be found in sections 112 to 115 and Schedule 7. Paragraph 1 of Schedule 7 provides that the order is subject to Type C procedure which means that the Secretary of State cannot make the order unless a draft of it has been laid before, and approved by a resolution of, each House of Parliament. Elections to the Scottish Parliament are a reserved matter. Section B3 of Schedule 5 makes further provision in this regard.

Subsection (2) expands further upon the scope of the order-making power provided by subsection (1). It makes it clear that it enables provision to be made:

for the registration of electors;

for disregarding alterations to the register of electors;

about limits on the election expenses of individual candidates. As originally enacted, this also referred to the expenses of registered political parties, but these words were repealed, as from 16 February 2001, by section 158 and paragraph 13(3) of Schedule 21 of the Political Parties, Elections and Referendums Act 2000 (c.41). See also Article 1 of The Political Parties, Elections and Referendums Act 2000 (Commencement No. 1 and Transitional Provisions) Order 2001 (S.I. 2000/222);

for elections to the Parliament to be held on the same day as other elections (e.g. for local government and the European Parliament);

to modify the operation of section 7(1), which provides for the return of constituency members to be determined before the process of allocating regional members can proceed, where a poll at a constituency election is abandoned (or notice of it is countermanded) so that special provision can be made enabling the regional members to be returned even though not all of the constituency members have been returned; and

to modify the effect of section 8(7) to ensure that the correct number of seats are allocated. The note on section 8 gives details of the order made.

Subsection (3) makes it clear that subsection (1)(c) will enable section 10(4) and (5), which deal with the filling of regional vacancies from a party's list, to be modified. The note on section 10 gives details of the exercise of this power).

Subsection (4) supplements and elaborates on the scope of subsections (1) and (2).

Paragraph (a) enables the established statutory procedures for elections to be applied, subject to any necessary alterations.

Paragraph (b) provides that an order may amend forms contained in, or in regulations or rules made under, the Representation of the People Acts to enable such forms to be used for elections to the Parliament as well as for their original purpose.

Paragraph (c) enables consequential modification of any legislative provision relating to the registration of Parliamentary or local government electors (e.g. the Town & Country Planning (Control of Advertisements) Regulations 1992).

Subsection (5) provides that the return of a member at an election to the Parliament may be questioned only under Part III (legal proceedings) of the Representation of the People Act 1983, as applied and modified by an order under subsection (1). However, section 18 permits an action to be raised in the Court of Session seeking a declarator that the person who was returned as a member of the Parliament is disqualified.

Subsection (6) defines, for the purposes of the Act (e.g. section 10), the "regional returning officer" as the person designated as such in an order made by the Secretary of State. This order is not subject to any Parliamentary procedure.

The Regional Returning Officer is, the person who, under section 41 of the Representation of the People Act 1983, is the returning officer at elections of councillors for the local authority for the local government area corresponding to that particular region (see The Scottish Parliament (Regional Returning Officers)(Scotland)(No.2) Order 1999 (S.I. 1999/829), revoking (S.I. 1999/270)).

SECTION 13: Term of office of members

Purpose and Effect

This section sets out the term of office of a member of the Scottish Parliament, which will begin on the day the member is declared to be returned and ends when the Parliament is dissolved.

Details of Provisions

The term of office of a member will begin on the day on which the member is declared to be returned, namely:

(a)     in the case of a constituency member, the day when, after the election (whether a general or a by-election) the constituency returning officer declares the candidate to be elected and returns the candidate's name to the Clerk of the Parliament in accordance with Rule 60 of the Scottish Parliamentary Election Rules set out in Schedule 2 to the Scottish Parliament (Elections etc.) Order 1999 (S.I. 1999/787);

(b)     in the case of a regional member who was returned following a general election, this is the day when the regional returning officer has announced the individual candidates or the candidates on a party list to whom the regional member seats have been allocated, declared those candidates to have been elected and returned their names to the Clerk of the Parliament in accordance with Rule 64 in Schedule 2 of the Scottish Parliamentary Election Rules (S.I. 1999/787); and

(c)     in the case of a regional member who was returned to fill a vacancy by virtue of section 10(6), the day on which notification of the name of that member was received by the Presiding Officer.

The term of office of a member ends when the Parliament is dissolved. The Parliament is dissolved, in the case of an ordinary general election, in accordance with sections 2(3)(a) or (5) and, in the case of an extraordinary general election, in accordance with section 3(2). The term of office may, however, be shortened by the effect of other provisions of the Act: for example section 14 (resignation of a member), death, disqualification (section 17) or failure to take the required oath of allegiance.

SECTION 14: Resignation of members

Purpose and Effect

This section provides for a member to resign his membership of the Parliament. A vacancy caused by the resignation may be filled under the provisions of sections 9 or 10.

Details of Provisions

This section provides a means for members of the Scottish Parliament to resign their seats by giving notice in writing to the Presiding Officer. The situation in the House of Commons is different as there is no provision for Members to resign their seats and it is necessary for them to be appointed to certain offices which thereby disqualify them from membership of the House.

SECTION 15: Disqualification from membership of the Parliament

Purpose and Effect

This section sets out the grounds on which a person is disqualified from becoming a member or continuing to be a member of the Scottish Parliament. The general approach is that, subject to three exceptions described in section 16, the grounds for disqualification are broadly the same as those governing membership of the House of Commons.

General

This section forms part of the set on disqualification.

The section is related to section 16 on exceptions and relief from disqualification; section 17 which details the effect of disqualification; and section 18 which covers legal proceedings as to disqualification. The disqualification provisions do not prohibit "dual mandates" so it is possible for a person to be a member of both the House of Commons and the Scottish Parliament.

This section specifies the persons who are disqualified from membership of the Scottish Parliament. There are other provisions which prevent certain persons from standing as a candidate or prospective candidate for election to the Scottish Parliament:

(a)     the Local Government Officers (Political Restrictions) Amendment Regulations 1998 (S.I. 1998/3116) extends the restrictions on holders of politically restricted posts under a local authority in Scotland to include a restriction on standing as a candidate for election to the Scottish Parliament. See also S.I. 1999/715, which makes similar provision in relation to holders of politically restricted posts under a local authority in England; and

(b)     the Servants of the Crown (Parliamentary, European Parliamentary, National Assembly for Wales, New Northern Ireland Assembly and Scottish Parliament Candidature) Order 1999 made by Her Majesty in Council on 10 March 1999 under the prerogative. This Order restricts the rights of Crown servants to become candidates or prospective candidates for election to, among others, the Scottish Parliament, whether as a constituency or as a regional member.

Parliamentary Consideration

Details of Provisions

Subsection (1) sets out the main grounds of disqualification from membership of the Scottish Parliament but it is subject to the exceptions provided for in section 16.

Subsection (1)(a) provides that a person who is disqualified from membership of the House of Commons under section 1(1)(a) to (e) of the House of Commons Disqualification Act 1975 is also disqualified from membership of the Scottish Parliament. Section 1(1)(a) to (e) disqualifies judges, civil servants (which would include staff of the Scottish Administration), members of the armed forces, members of police forces and members of foreign legislatures. Section 1(1)(e) of the 1975 Act was amended by the Disqualifications Act 2000 c.42 to remove the exclusion of the members of the legislature of Ireland.

Subsection (1)(b) provides that a person, who is disqualified from membership of the House of Commons, otherwise than under the House of Commons Disqualification Act 1975, is also disqualified from membership of the Scottish Parliament. This covers common law and other statutory disqualifications and has the effect of excluding from membership:

persons under the age of 21 who are disqualified by the Parliamentary Elections Act 1695, section 7;

aliens who are disqualified at common law and by virtue of the Act of Settlement 1700, section 3, as amended by the British Nationality Act 1981 (c.61), Schedule 7. Irish or Commonwealth citizens are not regarded as aliens for this purpose. Section 16(2) also excepts EU citizens who are resident in the UK;

persons who are mentally ill and who are disqualified at common law. The procedure for the vacation of their seats is specified in section 141 of the Mental Health Act 1983 (c.20), as amended by paragraph 19 of Schedule 8 of this Act;

undischarged bankrupts who are disqualified by section 427 of the Insolvency Act 1986 (c.45), as amended by paragraph 23(6) of Schedule 8 of this Act;

persons guilty of corrupt or illegal practices are disqualified under the Representation of the People Act 1983;

convicted prisoners serving a sentence of more than one year's detention ( or an indefinite sentence) in the UK or Ireland are disqualified by the Representation of the People Act 1981 (c.34);

peers are disqualified because, as members of the House of Lords, they are already members of the UK Parliament but not Irish peers by virtue of the Peerage Act 1963. Section 16(1)(a) lifts this disqualification; and

Section 16 makes provision in relation to members of the Clergy.

Subsection (1)(c) specifically disqualifies Lords of Appeal in Ordinary, thus placing them in the same position as other judges. Lords of Appeal in Ordinary are not specifically disqualified under the House of Commons Disqualification Act 1975 because being members of the House of Lords they are automatically disqualified from the House of Commons. However, section 16(1) enables members of the House of Lords to be eligible for membership of the Scottish Parliament and therefore this provision is required to ensure that Lords of Appeal in Ordinary are not also exempted.

Subsection (1)(d) provides for Her Majesty, by Order in Council to specify office-holders who will be disqualified from membership of the Parliament. Further provision about the making of this Order in Council is to be found in sections 112 to 115 and Schedule 7.

Part 1 of the Schedule to the Scottish Parliament (Disqualification) Order 1999 (S.I. 1999/680) specifies the office holders who are disqualified from membership of the Parliament. The list is based upon the list contained in Schedule 1 to the House of Commons Disqualification Act 1975 and includes, for example, the chairmen and members of bodies such as the Crofters Commission, Scottish Enterprise and Highlands and Islands Enterprise. However, the power is not restricted to specifying office-holders who are listed in Schedule 1 to the 1975 Act and would enable office holders to be specified where it is thought that it would be inappropriate for them to be members of the Scottish Parliament even although they may still be able to be members of the UK Parliament.

Subsection (2) provides for Her Majesty by Order in Council to specify office-holders from membership for particular constituencies or electoral regions in the Scottish Parliament. Part II of the Schedule to the Scottish Parliament (Disqualification) Order 1999 (S.I. 1999/680) is made under this power. It provides that Lords Lieutenant or Lieutenants, who hold office or discharge their functions in relation to a specified area or one of the cities of Aberdeen, Dundee, Edinburgh or Glasgow, are disqualified from membership for any constituency or electoral region which wholly or partly comprises that area or city. However, they could still stand for membership of the Parliament for a constituency or region elsewhere in Scotland.

Subsection (3) provides that "office-holder" includes employee or other post-holder.

SECTION 16: Exceptions and relief from disqualification

Purpose and Effect

This section provides for certain persons to be exempt from certain of the disqualification provisions for the membership of the Parliament provided for in section 15. It also provides, in certain circumstances, for the Parliament to disregard a disqualification in relation to a particular person.

General

This section is one of four dealing with disqualification.

Details of Provisions

Subsection (1), as now amended, provides that a person is not disqualified from being a member of the Scottish Parliament merely because he is a peer or he is a Lord Spiritual. These persons would be disqualified by virtue of section 15(1)(b).

Section 16(1)(b), as enacted, provided that a person was not disqualified merely because he has been ordained or he is a minister of any religious denomination. However the House of Commons (Removal of Clergy Disqualification) Act 2001 (c.13) removed the disqualification of the clergy (except for Lords Spiritual) from the House of Commons. It ceased therefore to be necessary to refer in section 16(1)(b) to a person who was ordained or was a minister. Section 16(1)(b) was amended by paragraph 4 of Schedule 1 to the 2001 Act to refer simply to refer to a person who is a Lord Spiritual.

This provision would not have the effect of exempting from disqualification a Lord of Appeal in Ordinary because it is not simply by virtue of being a peer that he is disqualified - see section 15(1)(c).

Subsection (2) provides that a citizen of the European Union resident in the UK is not disqualified from membership because of section 3 of the Act of Settlement 1700 - see section 15(1)(b) above. This is based upon paragraph 5(3)(e) of Schedule 1 to the European Parliamentary Elections Act 1978 (c.10), as inserted by S.I. 1994/342, which excepts citizens of the EU resident in the UK from disqualification for election as a UK representative to the European Parliament.

Subsections (3) and (4) provide that the Parliament may resolve to disregard any disqualification incurred by a person on any ground other than one falling within section 15(1)(b) (see above). To do so it must consider that the grounds for disqualification have been removed and that it is proper to disregard the disqualification. This makes similar provision to the House of Commons Disqualification Act 1975 (c.24), section 6(2).

Subsection (5) provides that any resolution of the Parliament to disregard a disqualification does not affect proceedings under Part III of the Representation of the People Act 1983, as applied by an Order under section 12 (the power to make provisions about elections). These provisions were applied by article 85 and Schedule 6 to the Scottish Parliament (Elections etc.) Order 1999 (S.I. 1999/787).

Any such resolution will also not enable the Parliament to disregard a disqualification established by the Court of Session in proceedings under section 18 (judicial proceedings as to disqualification).

SECTION 17: Effect of disqualification

Purpose and Effect

This section sets out the consequences of disqualification in relation to persons returned as members of the Parliament and members who become disqualified during their term of office.

General

This section is the third to provide for disqualification. It follows on from the sections dealing with disqualification and exemptions from disqualification.

Parliamentary Consideration

Details of Provisions

Subsection (1) provides that if a person is elected when disqualified, either from membership of the Parliament as a whole or from membership for a particular constituency or region, the election is void and the seat becomes vacant. Reference to disqualification from membership for a particular constituency or region is intended to cover the holders of offices which may be specified in an order under section 15(2), for example, Lords-Lieutenant.

Subsection (2) provides that if any member of the Parliament becomes disqualified during his/her term of office he will cease to be a member and his seat will become vacant.

Subsection (3) provides for subsections (1) and (2) to have effect subject to any resolution of the Parliament under section 16(4) disregarding a disqualification.

Subsection (4) provides that subsection (2) also has effect subject to section 141 of the Mental Health Act 1983 and section 427 of the Insolvency Act 1986. These make special provision as to the vacation of seats of members of the UK Parliament who are detained in mental institutions or are declared bankrupt, and amendments are made to them in Schedule 8 to apply them to the members of the Scottish Parliament.

Where these provisions apply, the disqualified members seat will not be vacated immediately and therefore, he does not cease to be a member of the Parliament until the seat is vacant. However, in the meantime, he may not participate in any proceedings of the Parliament and other rights and privileges may be withdrawn on a resolution of the Parliament.

Subsection (5) provides that the validity of any proceedings of the Parliament will not be affected by the fact that any member is disqualified or becomes disqualified, either for the Parliament as a whole or for a particular constituency or region. "Proceedings" includes proceedings in committees and sub-committees under section 126(1).

SECTION 18: Judicial proceedings as to disqualification

Purpose and Effect

This section provides for a procedure before the Court of Session for establishing whether a member of the Parliament is disqualified or has been disqualified from membership. It is similar to the procedure before the Judicial Committee of the Privy Council provided in relation to disqualification from membership of the House of Commons by section 7 of the House of Commons Disqualification Act 1975. It provides a simpler and less restrictive alternative procedure to the procedure by way of election petition under Part III of the Representation of the People Act 1983 (c.2) as applied to the Scottish Parliament by virtue of Schedule 6 to the Scottish Parliament (Elections etc.) Order 1999 (S.I. 1999/787).

General

This section is the fourth dealing with disqualification.

Details of Provisions

Subsection (1) provides for a person, who claims that a member of the Parliament is or has, since his election, been disqualified, to be able to apply to the Court of Session for a declarator to that effect (i.e. a court order which establishes and declares that to be the case).

Subsection (2) provides for an application under subsection (1) to be made whether the grounds of disqualification on which it is based are alleged to have existed at the time of the election or to have arisen sometime after the election.

Subsection (3) provides that the Court may not make a declarator on grounds which existed at the time of the election if an election petition is pending or has been tried in which the disqualification on these grounds is or was an issue. This is necessary in order to avoid a conflict between an application under this section and an election petition. It also provides that the Court shall not make a declarator if a resolution has already been passed by the Parliament under section 16 to the effect that a disqualification shall be disregarded. This is necessary in order to avoid a conflict with a resolution of the Parliament.

Subsection (4) provides for the person in respect of whom the application is made, i.e. the member of the Scottish Parliament, to defend the application rather than some other person e.g. a returning officer.

Subsection (5) empowers the Court of Session to require any person who applies to the court for such a declarator to give caution (security) of up to £5000 for the expenses of the application. Provision is also made for the Scottish Ministers to vary the maximum amount by order, which, by virtue of Schedule 7, is subject to negative resolution procedure in the Scottish Parliament. This is intended to deter frivolous or vexatious applications, and is the same maximum sum which an election court may order in relation to an election petition.

Subsection (6) provides that the Court of Session's decision on an application is final.

Subsection (7) defines "disqualification" for the purpose of this section as meaning disqualification from membership of the Parliament as a whole or disqualification from membership for the particular constituency or region for which the member purports to sit.

SECTION 19: Presiding Officer

Purpose and Effect

This section provides for the election of a Presiding Officer and two deputies by the Parliament. It also provides for the term of office of the Presiding Officer and deputies; the exercise of Presiding Officer functions by a deputy if the Presiding Officer is unable to act or his office is vacant, delegation of the Presiding Officer's functions to a deputy and participation of the Presiding Officer and deputies in proceedings of the Parliament.