Disqualification orders under Elections Act 2022
54.Part 5 of the Elections Act 2022 made provision for a disqualification order, similar to the Scottish disqualification order provided under section 8 of this Act, but in relation to offences aggravated by hostility related to candidates (as defined in section 32 of that Act), holders of relevant elective offices (as defined in section 33 of that Act) or campaigners (as defined in section 34 of that Act). A person subject to an order is disqualified from being nominated for election to, being elected to or holding certain elective offices. Section 37 of the Elections Act 2022 lists the relevant elective offices to which the disqualification applies.
55.Part 5 of the Elections Act 2022 is part of the law of Scotland. Therefore, a court in Scotland must make an order if an offender is convicted of an offence listed in schedule 9 of that Act aggravated by hostility in relation to MSPs, Scottish councillors etc. However, the Scottish Parliament and local authorities in Scotland are not included in the list of “relevant elective offices” from which a person subject to a disqualification order is disqualified.
Section 15– Disqualification from membership
56.Section 15 of the 1998 Act provides the grounds by which a person is disqualified from being a member of the Parliament. Section 15 of the Act therefore provides that a person who is subject to a disqualification order under section 30 of the Elections Act 2022 is disqualified from membership of the Parliament (but see commentary on effect of section 18). Section 17 of the 1998 Act provides that if a disqualified person is returned as a member of the Parliament “his return shall be void and his seat vacant”. So while there is no specific rule that an ineligible person may not be a candidate in a Scottish Parliament election, there is a de facto prohibition as they would be unable to take their seat if successful.
Section 16 – Local authorities: disqualifications for nomination, election and holding office
57.Section 31 of the 1973 Act provides the grounds by which a person is disqualified for nomination, election and holding office as a member of a local authority. Section 16 therefore provides that a person who is subject to a Scottish disqualification order is also disqualified from being a member of a local authority (but see commentary on effect of section 18).
Section 17– Disqualification orders: aggravation
58.Section 17 further amends section 30 of the Elections Act 2022 so that (similar to the requirement under section 8(9) of the Act) where a person is convicted of an offence which would result in a disqualification order under the Elections Act 2022, the court must also take the aggravation into account when determining the sentence and state the difference (if any) the aggravation has made to the court’s decision on sentence.
