29th January 2025
23.This Part contains provisions both making changes and conferring powers to make changes to the disqualification criteria for membership of the Scottish Parliament and local authorities. Sections 3 to 5 contain new powers for Ministers to make regulations disqualifying MPs, members of the House of Lords and councillors from being MSPs. Sections 6 and 7 set out new grounds for disqualification, based on sexual offences notification requirements and sexual harm or risk orders. Sections 8 to 17 partly mirror the changes made by Part 5 of the Elections Act 2022 in respect of elective offices across the rest of the United Kingdom in disqualifying persons who have committed certain offences relating to elections, as well as providing for a sentencing aggravator for such offences. Sections 18 and 19 deal with temporary relief and transitional provision in relation to the new disqualifications. Finally, section 20 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.
24.This section gives the Scottish Ministers the power to make provision by affirmative regulations to disqualify a person from being an MSP if the person is a member of the House of Commons. The regulations may also include appropriate consequential, transitional, saving etc. provision resulting from the prohibition. Under the section, Ministers are required to lay draft regulations. After a first set of draft regulations have been laid, Ministers may bring forward further regulations.
25.Section 3(2) sets out more detail on some of the matters which may be included in the regulations. As well as a prohibition provided for by the regulations amending section 15 of the Scotland Act 1998, it makes clear that the regulations may also modify sections 16, 17 and 82 of that Act to provide for grace periods (for recently returned MSPs and for currently serving MSPs) and any restrictions during such grace periods, including limits on salaries.
Section 4 – Scottish Parliament: disqualification of members of the House of Lords.
26.This section gives the Scottish Ministers the power to make provision by affirmative regulations to disqualify a person from being an MSP if the person is a member of the House of Lords. The regulations may also include appropriate consequential, transitional, saving etc. provision resulting from the prohibition. Under the section, Ministers are required to lay draft regulations. After a first set of draft regulations have been laid, Ministers may bring forward further regulations.
27.Section 4(2) sets out more detail on some of the matters which may be included in the regulations. As well as a prohibition provided for by the regulations amending section 15 of the Scotland Act 1998, it makes clear that the regulations may also modify sections 16, 17 and 82 of that Act to provide for grace periods (for recently returned MSPs, for members of the House of Lords holding or applying for a leave of absence and for currently serving MSPs) and any restrictions during such grace periods, including limits on salaries.
28.This section gives the Scottish Ministers a discretionary power to make provision by affirmative regulations to disqualify a person from being an MSP if the person is a councillor. The regulations may also include appropriate consequential, transitional, saving etc. provision resulting from the prohibition.
29.Section 5(2) sets out more detail on some of the matters which may be included in the regulations. As well as a prohibition provided for by the regulations amending section 15 of the Scotland Act 1998, it makes clear that the regulations may also modify sections 16 and 17 of that Act to provide for grace periods (for recently returned MSP and or for currently serving MSPs) and any restrictions during such grace periods.
30.This section amends section 15 of the Scotland Act 1998, which sets out the grounds on which a person is disqualified from becoming a member or continuing to be a member of the Scottish Parliament. Section 15 is amended so that a person who is subject to “any relevant notification requirements” or “a relevant sexual harm or risk order” is disqualified from membership of the Scottish Parliament. The definition of “relevant notification requirements” and “relevant sexual harm or risk order” is by reference to sections 31(4) and (5) of the Local Government (Scotland) Act 1973 (“
31.Section 7 amends section 31 of the Local Government (Scotland) Act 1973 which outlines the circumstances in which individuals are automatically disqualified for nomination, election and holding office as member of local authority. Section 31 of the 1973 Act is amended so that a person who is subject to “relevant notification requirements” or “a relevant sexual harm or risk order” is disqualified from nomination, election and holding office as member of a local authority. The definitions of “relevant notification requirements” and “relevant sexual harm or risk order” are added as new section 31(4) and (5) of the 1973 Act.
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33.Also added as section 31(5) of the 1973 Act, is a definition of “relevant sexual harm or risk order”. The orders listed in this provision are imposed following a conviction or equivalent of a sexual offence or a relevant offence with a sexual element, or in other circumstances where the court has found that there is a risk of sexual offending.
34.Also added as section 31(6) of the 1973 Act is a regulation making power, enabling Scottish Ministers to update references to the Channel Islands and Isle of Man legislation listed in the definitions in section 31(4) and (5). Regulations made under this power would be subject to the affirmative procedure. This is necessary because the references to UK legislation could be updated as a consequential when the UK primary legislation is changed but that would not be possible if the Channel Islands and Isle of Man legislation was changed.
35.This section applies where an offender is convicted by a criminal court in Scotland of an offence listed in the schedule of the Act which was committed when the offender was aged 18 or over; and the court is satisfied beyond reasonable doubt that the offence is aggravated by hostility related to a returning officer or their staff (as defined in section 9), a registration officer or their staff (as defined in section 10) or a counting officer or their staff (as defined in section 11) (described here collectively as “election workers”).
36.In those circumstances the court must, when dealing with the offender for the offence, also make a Scottish disqualification order. The disqualification order is to have effect for 5 years and, by virtue of the changes made by sections 12 and 13 to the Scotland Act 1998 and the Local Government (Scotland) Act 1973, respectively, means that the offender is disqualified from being a member of the Scottish Parliament or local authority.
37.However, the court does have some discretion as it does not have to make the disqualification order if they consider it would be unjust due to particular circumstances about the offence or the offender. Where the court determines not to make the order, the court must give its reasons for not doing so in open court.
38.An offence is aggravated by hostility if the offender demonstrated hostility towards the victim of the offence because the victim is, or the offender presumes the victim to be, an election worker. The hostility must be demonstrated by the offender at the time of committing the offence, or immediately before or after the commission of the offence.
39.In terms of section 8(4), the ‘victim’ of the offence doesn’t necessarily need to be an election worker in order for the offence to be aggravated by the necessary hostility. This means that an offence could be aggravated by hostility where (for example) an offender commits a relevant offence against person A (e.g., an election worker’s parent) and that offence is motivated by the offender’s hostility towards person B because B is an election worker.
40.It is immaterial whether or not an offender’s hostility is also based (to any extent) on any other factor not listed in that subsection, i.e., a factor other than the victim being or being presumed by the offender to be an election worker, or a factor other than hostility towards persons in their capacity as an election worker.
41.In terms of section 8(6) and (7), the court may consider evidence presented by the prosecution or defence in deciding whether or not to make a disqualification order under this section, even if that evidence would not have been admissible in the proceedings in which the offender was convicted.
42.For the purposes of determining whether an offender was aged 18 or over when the offence was committed, where an offender is found to be committed over more than a single day it is taken to have been committed on the last of those days.
43.Section 8(9) provides that where a person is convicted of an offence which would result in a disqualification order, 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.
44.The schedule lists the offences of an intimidatory nature in respect of which a Scottish disqualification order can be made by a court under section 8. It includes—
45.any offence which is tried under indictment (solemn procedure), which may for example include offences such as murder and rape,
46.certain common law and statutory offences tried on petition (summary procedure), which are listed in Chapter 1 (common law) and Chapter 2 (statutory offences) of the schedule.
47.Part 3 of the schedule also makes provision to include inchoate (that is, incomplete) versions of the offences listed, as well as superseded versions of those offences.
48.This section defines the first category of persons referred to in section 8.
49.This section defines the second category of persons referred to in section 8.
50.This section defines the third category of persons referred to in section 8.
51.Section 15 of the 1998 Act provides the grounds by which a person is disqualified from being a member of the Parliament. This section amends section 15 of the 1998 Act to provide that a person who is subject to a Scottish disqualification order 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.
52.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. This section amends section 31 of the 1973 Act to provide that a person who is subject to a Scottish disqualification order is disqualified from being a member of a local authority (but see commentary on effect of section 18).
53.This section allows the Scottish Ministers by subsequent regulations to add or omit offences from the list of criminal offences in the schedule in respect of which a disqualification order can be made in accordance with section 8. Such regulations are subject to the affirmative procedure.
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.
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.
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).
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.
59.This section sets out the process by which a member of the Scottish Parliament, or member of a local authority, who is disqualified from holding that office as a result of (i) being subject to any relevant sex offender notification requirements or a relevant sexual harm or risk order; or (ii) a Scottish Disqualification Order under section 3; or (iii) a disqualification order under section 30 of the Elections Act 2022 should lose their seat or vacate their office. It mirrors section 31 of the Elections Act 2022 and has the effect of providing temporary relief to an office-holder who becomes subject to an order to allow them, for a limited period only, to appeal the conviction or order.
60.Section 16 of the 1998 Act provides exceptions to the grounds by which a person is disqualified from being a member of the Parliament. Section 12 of the Act therefore amends section 16 of the 1998 Act to provide that any relevant notification requirements, a relevant sexual harm or risk order or a disqualification order do not disqualify a member until the appropriate time. The appropriate time being the end of the 3-month period after the court imposed the requirements or made the order or, if earlier, the end of the period during which an appeal or application against the conviction, finding, order or certification is allowed. When the member makes such an appeal or application the office is vacated at the end of the 3-month period unless the appeal or application is dismissed or abandoned before the 3-month period expires, in which case the person is disqualified at that earlier time; or the appeal or application is upheld before the 3-month period expires, in which case the member is not disqualified.
61.Section 17 of the 1998 Act deals with the effect of disqualification and subsection (2) of that section provides that if a member of the Scottish Parliament becomes disqualified from being a member of the Parliament or from being a member for the particular constituency or region for which he is sitting, the person shall cease to be a member of the Parliament (so that their seat is vacant). Subsection (3) of this section amends section 17(4) to make it clear that section 17(2) is subject to new provision inserted into section 16 of the 1998 Act (as made by this section of the Act) providing the (up to 3 month) temporary relief for the person subject to the notification requirements or order(s). This section also provides that where such relief applies, although the disqualified member’s seat will not be vacated immediately (and therefore, the person does not cease to be a member of the Parliament until the seat is vacant) in the meantime, the member may not participate in any proceedings of the Parliament and other rights and privileges may be withdrawn on a resolution of the Parliament.
62.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. Therefore, for local government, section 12(5) of the Act amends section 31 of the 1973 Act to create an exception, so that any relevant notification requirements, a relevant sexual harm or risk order or a disqualification order does not disqualify a member until the appropriate time. Again, the appropriate time is the end of the 3-month period after the court imposed the requirements or made the order or, if earlier, the end of the period during which an appeal or application against the criminal conviction, finding, order or certification is allowed. When the member makes such an appeal or application, the office is vacated at the end of the 3-month period unless the appeal or application is dismissed or abandoned before the 3-month period expires, in which case the person is disqualified at that earlier time; or the appeal is upheld before the 3-month period expires, in which case the member is not disqualified. The amendments to section 31 of the 1973 Act also provide that a councillor who is subject to a relevant notification requirement, relevant sexual harm or risk order or relevant disqualification order is suspended from performing any of the functions of a councillor during the 3 month (or shorter) period in which any appeal or application is available or made and not determined.
63.Section 19 contains transitional arrangements for currently serving MSPs and councillors in relation to current disqualifications for sexual offences notification requirements and orders. The provision is relevant to persons holding office as an MSP on the day in which section 6 or as a or a councillor on the day on which section 7 comes into force. An MSP or councillor who is subject to any relevant notification requirements or a relevant sexual harm or risk order on the day of coming into force will not be disqualified for that person’s remaining term of office. However, the disqualification provisions will have effect, in respect of such requirements or of an existing order, from the earlier of the next general election or ordinary local election or any by-election involving the particular MSP or councillor.
64.Section 19 makes no exception for any new requirements or orders imposed on a person after commencement. Therefore a sitting representative would be disqualified immediately should they become subject to any new requirements or order after the commencement date. Similarly, the transitional arrangements in this section do not apply to make any special provision for a person who is not currently elected. Such a person would be disqualified for any existing or new requirements or orders from the relevant commencement date.
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.