The Act: an Overview
3.The Act covers a wide range of issues associated with reform of Scottish Parliament and local government elections in Scotland. This follows the Scottish Government’s consultation(1) published in 2022.
4.The Act contains 74 sections under 12 Parts, and a schedule. Commentary on the effect of individual sections, and the schedule, follows below. In summary, the Act—
extends candidacy rights at Scottish Parliament and local government elections to foreign nationals with limited leave to remain (Candidacy rights etc. of foreign nationals (Part 1));
adjusts and extends the disqualification criteria for MSPs and councillors so that (i) regulations can be made to disqualify MPs, members of the House of Lords and councillors from being MSPs, (ii) a person is disqualified from being an MSP and a councillor if they are subject to any relevant sex offender notification requirements or a relevant sexual harm or risk order; and (iii) a person subject to a disqualification order under the Elections Act 2022 or a Scottish disqualification order under the Act (each of which are to be imposed by a court where it is satisfied that the offence is aggravated by hostility toward certain persons including, for example, politicians or election staff) is disqualified from being an MSP or a councillor; and (iv) severs the link which provides that disqualification from membership of the House of Commons automatically means that the person is disqualified from being an MSP (Disqualification (Part 2));
holds candidates and agents accountable for notional expenditure only where they direct it and provides a new power for the Scottish Ministers to make regulations to amend the list of persons or bodies which can be recognised as a third party campaigner and restricts those who can operate as a third-party campaigner in elections to the Scottish Parliament. To support these campaign finance changes, the Act also enables the Electoral Commission to prepare a code of practice in relation to the operation of the provisions as they concern devolved Scottish elections (Campaign Finance (Part 3));
revises the existing power of the Presiding Officer of the Scottish Parliament (PO) to postpone an ordinary election so that it is possible to postpone it by a further 8 weeks and makes provision for the first meeting of the new Parliament to occur as soon as reasonably practicable thereafter; removes the requirement for the PO to set a date for an extraordinary general election where an ordinary general election is due to take place within 8 weeks; makes provision about the election of a new PO and the appointment of a new First Minister in such exceptional circumstances; gives a power to the convener of the Electoral Management Board for Scotland (EMB) to postpone an ordinary local election by 4 weeks; gives a power to returning officers to postpone the poll for an ordinary election for their area; and gives powers to returning officers to postpone or cancel by-elections (Rescheduling of Elections etc. (Part 4));
requires the Scottish Ministers to review the ordering of candidates on ballot papers for local government and Parliamentary elections and to report on the review and any changes proposed as a result (Form of Ballot Papers (Part 5));
amends the Scottish Local Government Elections Order 2011 (S.S.I. 2011/399) to allow candidates in council elections to specify their ward of residence in nominations and on ballot papers; amends the Scottish Parliament (Elections etc.) Order 2015 (S.S.I. 2015/425) to allow election agents to provide a correspondence address as the public notice of address, instead of a personal address for correspondence, in Scottish Parliament elections; and amends the Representation of the People Act 1983 to allow election agents to provide a correspondence address as the public notice of address, instead of a personal address for correspondence, in local government elections (Home Addresses of Candidates and Agents (Part 6));
adjusts existing powers to pilot electoral processes by adding the Scottish Ministers, the EMB and electoral registration officers (EROs) as persons who may propose pilots (in addition to the existing power for local authorities) and making other procedural changes; provides a new power for the Scottish Ministers to make regulations to make temporary provision about the registration of electors which may be made permanent by further regulations following a positive evaluation and a recommendation by the Electoral Commission; and provides the Scottish Ministers with financial assistance powers for the purpose of increasing democratic engagement (Election Pilots and Democratic Engagement (Part 7));
requires certain unpaid-for digital campaigning material for Scottish elections published by relevant third-party campaigners to display a digital imprint with the name and address of that third party promoter (and any other publisher) where the electronic material meets the conditions set out in the provisions (Information to be Included with Certain Electronic Material at Scottish Elections (Part 8));
revises the deadline for Boundaries Scotland to submit its first report on the electoral arrangements for a local government area to October 2030 and provides for other reports on reviews of local government and Parliamentary boundaries to be submitted at least 18 months before an election (Boundaries (Part 9));
requires the Electoral Commission to undertake education and report on spoilt ballot papers and to prepare a separate 5-year plan, to be scrutinised by the Scottish Parliament Corporate Body, in respect of its Scottish devolved functions (Electoral Commission (Part 10));
adjusts the constitution of the EMB, most significantly giving it a separate legal personality as a body corporate, adding provisions for it to report to the Scottish Parliamentary Corporate Body, adjusting those eligible to be members and providing for 2 depute convener posts (Electoral Management Board for Scotland (Part 11));
Part 12 contains general provision.
