Section 20– Ending Ambulatory effect of section 15 of the Scotland Act 1998
65.Section 15 of the 1998 Act provides the grounds by which a person is disqualified from being a member of the Scottish Parliament. The general approach is that, subject to any exceptions described in section 16 of that Act, the grounds for disqualification governing membership of the House of Commons are imported in relation to membership of the Scottish Parliament.
66.Subsection (1) of section 15 of the 1998 Act 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.
67.Section 15(1)(a) of the 1998 Act 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.
68.Section 15(1)(b) of the 1998 Act 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, at the time of the passing of the 1998 Act, was said to have the effect of excluding from membership:
persons under the age of 21 who are disqualified by section 7 of the Parliamentary Elections Act 1695;(11)
aliens who are disqualified at common law and by virtue section 3 of the Act of Settlement 1700, as amended by the British Nationality Act 1981 (c.61),(12) 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),(13) as amended by paragraph 19 of Schedule 8 of the Scotland Act 1998;
undischarged bankrupts who are disqualified by section 427 of the Insolvency Act 1986 (c.45),(14) as amended by paragraph 23(6) of Schedule 8 of the Scotland Act 1998;
persons guilty of corrupt or illegal practices are disqualified under the Representation of the People Act 1983;(15)
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);(16)
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.
69.Sections 15(1)(a) and (b), prior to the Act, had “ambulatory” effect, which means that they were to be interpreted as modified from time to time. This means that any new rules which would have prevented a person being a member of the House of Commons (i.e. following an Act of Parliament passed by the UK Parliament) would automatically have the effect of being imported by section 15 of the 1998 Act, and so disqualify the person from membership of the Scottish Parliament.
70.Section 20 of the Act changes that by providing that whether or not a person is disqualified depends on how the law, which includes statutory rules and common law, would be interpreted at a point in time, namely 27 April 2022, which is the day before the Elections Act 2022 received Royal Assent. This means that if a person would be disqualified under the grounds for disqualification governing membership of the House of Commons (whether under the House of Commons Disqualification Act 1975 or otherwise) as the as law applied on 27 April 2022, or by any additional grounds specified in section 15(1) of the 1998 Act (which will now include, for example, a person subject to a Scottish Disqualification Order under section 8 or a disqualification order under section 30 of the Elections Act 2022) the person is disqualified from membership. The main purpose of this provision is to sever the link with House of Commons rules and so prevent any new rules which are made in respect of membership of the House of Commons automatically applying in relation to membership of the Scottish Parliament.
71.The changes made by this section do not affect the power of the Parliament of the United Kingdom to make laws for Scotland. In other words, the UK Parliament could still make provision disqualifying persons from being members of the Scottish Parliament if it consciously decided to do so.
