Official Report 820KB pdf
Under agenda item 2, the committee will continue its stage 1 consideration of the Scottish Parliament (Recall and Removal of Members) Bill. I welcome the Minister for Parliamentary Business, Jamie Hepburn, and his supporting officials, Leila Brosnan, shadow bill team leader; Ailsa Kemp, Parliament and legislation unit team leader; and Jordan McGrory, a solicitor from the legal directorate. I also welcome Graham Simpson, the member in charge of the bill. Minister, I invite you to make some opening comments.
Thank you for inviting me to give evidence. I also thank Graham Simpson, who is with us today—very eager and keen—for the open and constructive discussions that we have had about the bill as he developed his proposals and since the bill’s introduction. The Scottish Government supports the broad intention behind the bill to uphold standards and improve the democratic accountability of members of this Parliament.
The people of Scotland need to have confidence that their elected representatives are held to the highest standards of behaviour and that there are robust systems in place to deal with any MSP who does not uphold those standards. I recognise that it is for the Parliament, not the Government, to determine the standards regime for its members. Similarly, it is not for the Government but the Parliament to decide whether to sanction its members using recall and removal procedures.
We are all aware, and I am very pleased, that the Scottish Parliamentary Corporate Body is initiating an independent review of the complaints process, which might bring about changes to the consideration and delivery of sanctions to deal with any concerns, or perceived concerns, about the independence and impartiality of the process in the future.
Although these matters are, ultimately, for the Parliament, there are a number of principles upon which we can all agree. I believe that we are all committed to ensuring that any procedures that are introduced are fair, transparent, efficient and effective for MSPs, those operating the system, and, above all and most important, for the public—those who we are elected to represent and to serve.
If the bill becomes an act, I hope that the procedures that it sets out will stand as an additional incentive to current and future MSPs to maintain the highest standards. It should go without saying—I will say it anyway—that we all hope that these procedures would be used rarely, if ever. However, we need to ensure that the processes work smoothly and are sufficiently clear to command public confidence, should they need to be used.
The electoral system for the Parliament is different from any other United Kingdom legislature, which means that we must have a recall system that works for Scotland and its Parliament. We are not the Westminster Parliament or the Welsh Senedd, although we can learn from both of those institutions, one of which already has a recall system, and one of which is—as we are—considering its own recall legislation. If we are going to take forward these proposals, we should take this opportunity to develop a system that works for Scotland, for this Parliament and for the people who elect our MSPs.
I am happy to hear from the committee, and, along with Leila Brosnan, Ailsa Kemp and Jordan McGrory, I am happy to answer your questions.
I am grateful for those remarks, minister, and I sincerely hope that all elected individuals will echo a great deal of what you said about the importance of transparency and being held properly to account. Therefore, we will hold you to account—I hand over to Emma Roddick, who has the first set of questions.
Minister, you said that the Scottish Government supports the principle of a recall mechanism. Can you expand on exactly why that is?
First, that support is for the principle, and for the reasons that I have laid out, which is to enhance confidence in the process to ensure that members are held to the highest standards of behaviour and where that is felt not to be the case, the ultimate arbiter is the public. That principle is worth while, and you will recall that, on 29 May 2024, the Parliament had a vote, in which ministers voted in favour of the principle of a recall system. Of course, the devil is in the detail, so we are now moving from the principle to the practical considerations with regard to what that system would look like. We support the principle, and along with the Parliament, we now have to consider the specific details.
Therefore, would you say that the primary aims are about improving the accountability of elected representatives to the people whom we serve and the ability to hold individuals to account for their conduct?
Yes, that is right. The arbiter in the current system is the Parliament. By and large, that process has served us for a long time and, more often than not, it has served us well. Given that we are accountable to the public, in the sense of being elected here in the first place, if we are going to introduce a system of further deliberation on the standards of members of the Parliament, the same principle should apply that, ultimately, that should be in the hands of the public.
Yes, absolutely—I agree. There are other principles at play that might conflict with what we are trying to do in relation to a recall mechanism, one example being proportionality in the system that we have set up for electing the Scottish Parliament. The committee has heard from witnesses that, in addition to the accountability aspect, some wish for other aims to be pursued through the legislation. Is it worth exploring those other issues, such as rerunning the election in a particular seat or region to reflect the voters’ feelings at that time, not just towards the individual with the conduct issues but the parties as a whole, or should we protect those principles and focus mainly on conduct and accountability?
Ultimately, the whole process is triggered by issues around conduct, so that must be the starting premise. As an aside, on proportionality, there are two issues. The first is whether a system of recall is proportionate to the trigger mechanism. Mr Simpson has set out what that might be and it is for the Parliament to consider whether that is proportionate. However, if I have picked you up correctly, that is not the issue of proportionality that you are referring to. Secondly, there is the question of whether the process could have the effect of altering proportionality, as determined at a general election. The answer is yes, it could. To an extent, our system already has that built in through the by-election process. We have just been through a by-election. I will not linger too long on the outcome of that, but it changed the nature of the numbers, by comparison with the general election that happened in 2021. Therefore, that is already part of our system. I accept that the bill would add—“complication” came to mind, but it is not the right word—another layer to the issues that might affect proportionality. However, as I said, that is already a facet of our electoral system.
I will pursue that point a little further. The recent by-election, which had to take place for a sad reason, happened on the basis of the first-past-the-post system that we have in Scotland. Although the effect of proportionality on the regional list would be the same percentage wise—we are talking about one member being replaced—what is the Scottish Government’s view about the inherent risk of instability because of that?
Some witnesses have given evidence that suggests that the process of replacing the member might become more of a comment on the Government, parties and other events, rather than on what the Scottish Government says, which is that it should be focused on the conduct occasioned by the individual member. Does the Scottish Government have any concerns about the question shifting from an individual MSP? It depends on how the public votes, which is relatively straightforward in a constituency because it is the individual who is elected, but in the regional list, where it is a party vote, is the Government concerned about that affecting proportionality?
We would be naive to suggest that politics will not come into the process; that is the nature of the process in which we participate. It could ultimately only be put to the test if we institute such a system.
Otherwise, unfortunately, we would have to go through the process of a recall, which we all would hope not to happen. However, if we consider those recalls that have taken place—we have only one experience of that in respect of the Westminster system in Scotland, and my experience of that recall was that people were focused on the conduct of the individual member. I am struggling to think why that would be any different if the process related to a regional member rather than to a constituency representative. Ultimately, we would only know that if we had to go through the experience.
Good morning. The Scottish Government’s policy memorandum mentions that the legislation might need to be “future proofed”. Could you say a little bit more about your thought process as to what that might mean?
We said that with particular reference to one area, and it is largely predicated on the experience that we are going through right now, in which the Parliament has instructed the Scottish Parliamentary Corporate Body to go away and consider the process that we have for sanctioning an individual MSP. It alludes to the fact that we need to be careful that we do not prescribe a specific process in the bill.
Through that memorandum, we were offering prompts for the committee to consider. The committee and the Parliament have to consider whether the bill should be overly prescriptive about that process, or whether we should recognise that, right now, for instance, the corporate body is considering a potential change to the process and might make recommendations on that, so we might want to have the ability to reflect those in any process of recall that is instituted.
I only proffered the example of the corporate body process because we are going through that right now, but, inevitably, standing orders and processes change, develop and adapt all the time. That is the only thing that the memorandum was referencing.
That is fair, because the pace of change in the world is galloping ahead in so many different ways, so we need to be able to shift the dial.
You have already mentioned that politics will come into the process. We have heard that the parliamentary sanctions and the grounds for recall have the potential to be politicised. Will you speak a little bit more about that?
We have heard that it might come down to the fact that a political party might take the view that if a candidate is not—I will use this phrase—towing the line or the party line, it would be beneficial for the party to try to encourage something to happen to that particular MSP. I am being a bit cynical, but I am sure that you understand where I am going with this line of questioning. How can we protect from that but at the same time make sure that the process allows the recall to commence in a stable, sensible manner, rather than in a knee-jerk political way?
09:15
I am an optimist rather than a cynic—as I am sure that everyone would agree from their experience of interacting with me. I genuinely struggle to see how those circumstances would happen. However, you are right, Ms Webber, to caution and suggest that there is potential for a political party to encourage the disbarment and removal of one of its members for wider reasons of perception. You never know—I suppose that it is a possibility.
The wider point is how we can ensure that there is minimal politicisation at the appropriate part of the process. That speaks to the mechanism that would trigger the recall mechanism.
How do you minimise that politicisation?
I go back to the point that I just made. The Parliament has asked the SPCB to undertake a piece of work to make recommendations. I think that that was largely what the question was predicated on. We await to see what it recommends. There is that element of it, but when it gets to the process of a recall petition, it becomes much harder to do that, and we should be realistic enough to recognise that.
Organisations that we have spoken to feel that having lay members involved in the consideration of complaints against MSPs could be beneficial. Do you think that there is a place for lay members in considering complaints against MSPs and possible sanctions?
The Government does not have a specific perspective on that, but I certainly think that it is an intriguing proposition. If the committee is inclined—it is not for me to tell the committee what to do—to explore it further, I certainly think that it would be interesting to have a wider discussion on that issue. The Government does not have a perspective on it beyond my observation that it is certainly worthy of consideration.
On the point about who deals with complaints and how wide a group that is, given that we may be considering some very personal issues, does the Government have concerns about the protection of personal information, including, potentially, politically sensitive information about individuals? What comparison do you see with complaints that the Presiding Officer deals with?
We have been talking about the recall mechanism, but that might come into play more in relation to the other part of the bill and the attendance requirement. That is probably where the issue will need to considered further.
Ultimately, the way that I read Mr Simpson’s bill—no doubt he will explain his rationale when he comes to give evidence to you—is that an MSP would be able to give reasons why they were unable to attend. They may be legitimate reasons, but questions could arise about them. The person might feel that they were private matters—despite being elected and in the public eye, we are still entitled to a level of privacy in our personal lives—but people would inevitably speculate about what the reasons might be.
On the recall process, it is an interesting question, but I struggle to see circumstances in which the personal matters would outweigh the reason for the recall process being triggered in the first place. It might be possible to build that into the system, but the committee would have to consider that.
If we consider situations that have occurred in the Parliament in relation to which a recall could be triggered under the proposals in the bill, there have been some particularly sensitive issues. I guess that, as soon as something gets out there into a wider debate, it becomes very difficult to be reasonable.
I appreciate that. I will avoid commenting on specific cases because of the territory that that would take us into. That point will inform our considerations—we should not be naive and pretend that it will not—but we must consider the proposition without reference to specific cases. I suppose that it is possible. I struggle to see how the process could take account of that, but there might be a means. We will see whether one can be devised.
I want to look into what should and should not be in the legislation and the suggestion that it should be iterative. The Government is content for the process to sit in primary legislation. The suggestion in the Government’s memorandum is that there should be provision to extend the occasions when it may be triggered and that we should leave an opportunity open for that to appear, presumably through secondary legislation. Is that correct?
If I picked up the question correctly, the point about whether it should be done by secondary legislation or whether there should be a reference to standing orders, the development of which is an iterative process, takes us back to the point about future proofing. We should not second guess what the corporate body will recommend. Its process is under way, which is welcome. I suppose that it is theoretically possible that a recommendation will come forth that there is no need for change. However, the process that we have means that we would need to consider a change to our standing orders.
I say again that the Government does not have a specific perspective on the issue, so I am only proffering these ideas as suggestions to be explored. I think that the committee needs to grapple with whether the bill should include a reference to our standing orders or whether these things could be done through secondary legislation. Both approaches are possible.
Absolutely. The Scottish Government is suggesting things rather than saying, “This is our view,” but are you content for a bill to, in essence, try to hypothesise on unknown unknowns in the future?
That is an unknown unknown. [Laughter.]
I move on to a challenge that we have heard a lot about, which concerns the parity between the routes of being elected regionally and being elected as a constituency MSP. Graham Simpson has said from the outset that, under his bill, there should be parity between all MSPs, because there is parity when we come into this place and take our seats in the chamber, irrespective of how we arrived there. What is the Scottish Government’s view on that? MSPs are all the same when we are sitting in the chamber, but does parity also relate to the journey that we took to get here, via the regional list or the constituency list? Can we say that there absolutely is parity in the chamber but that there is no parity for the purposes of how we travel here—which there is not?
That is a good question, and it might be the most difficult one that we have to grapple with as we consider the bill. It reflects the point that I made at the outset. The electoral system for this place is unique in these islands, as no one else uses the additional member system or the d’Hondt formula for the allocation of regional members.
Our starting premise must be the principle that we have parity once people have been elected. How they were elected should not make any difference to the rights and privileges that they have or the esteem in which they are held. However, it is possible that the process could recognise that members are elected through different processes. That is a matter of fact, as you set out. It is about getting the right balance. For the system to be viewed as being as fair as we can make it, there should be parity. However, that is balanced against the reality that we are elected in different ways.
It would go further than that, in the sense that there would be parity up to the trigger of the event that would lead to a recall petition. Parity commences when a member takes the oath. There would be parity up to the point at which a member is shown—if proved through the process and after appeals—to be unfit to hold the office. Is the Scottish Government comfortable with that being the edge of parity and that the recall process could reflect the different ways that people come here before taking the oath?
We have not taken a specific view on that. The fundamental issue that we are grappling with is that, if a person who was elected to represent a constituency was recalled, I do not think that we could do anything other than enable them to stand in any subsequent by-election, but there is no by-election process in place for regions. Mr Simpson has proffered a solution earnestly and in good faith, I believe, and the question is whether that should be reflected in the system. That is something for the Parliament to grapple with; the Government does not have a view on it.
Does the Scottish Government not having a view also extend—we are getting to the unknown unknowns—to views or opinions in our stage 1 report if we suggest changes? Is the Government in any way concerned that there might be different journeys for different MSPs after a recall has been triggered?
At this stage, no, but we will reflect on your report.
And the unknown unknowns.
I am sure that it will be informed by the evidence that you gather, convener.
Absolutely.
Minister, you said that a constituency member who was recalled would have to be allowed to stand in the subsequent by-election. Why is that? If they were not allowed to do that, it would create parity with regional members.
I am not a legal expert, but European convention on human rights issues would probably come into play. The question might be whether that would also have to be a factor in determining the element that relates to the regions. What I am doing today is offering areas that I think the committee might have to consider, and that would be one. Even if I am incorrect and a member who was recalled would not have to be given that opportunity, the bill would provide them with it, if I have read it correctly.
Another issue that witnesses have raised is that the current set-up for the lists allows parties to skip names. In a situation where a conduct issue has resulted in a recall, the party might be quite tempted to skip the name, but the bill might not allow that if the regional member won the ballot to return. Does the Government have any views on that?
No.
What is the Government’s view on the fact that, if someone walks through the door to sign the petition, everyone will know what their position is? Does the Government have any concern that there would be no anonymity in that decision, whereas there is anonymity when someone steps into a polling booth?
09:30
That is a good question. Secrecy is generally something that we tend to try to avoid, but the principle of the secret ballot—a person’s right to go and cast their vote without anyone else knowing how they have voted—is an important part of our electoral system. Clearly, secrecy is not enabled by the recall process at Westminster and it would not be enabled under the bill either, if I have read it correctly, given that people would go to sign the petition. The committee has to consider that.
I have seen some evidence proffered on that point. For example, the Electoral Commission has made recommendations in the context of the Westminster system on whether people should be able to go and sign a petition to say that they do not believe that the member should be recalled. That would raise other questions about how we would factor that in. Would it mean that there would have to be a balance between those who said that the member should be recalled and those who said that they should not? The approach would at least have the virtue of allowing people to go and take part without others knowing how they have responded. However, I caveat that answer by saying that the Government has not taken a specific view on the matter.
Does the Scottish Government have a view on the percentages that would occasion a recall? For a constituency MSP, the proposed threshold is 10 per cent. For a regional MSP, it is 10 per cent overall and 10 per cent in three constituencies in the region.
We do not have an opinion on that per se, but we flag up in our memorandum that it would be useful to explore and understand why those thresholds are proposed in the bill. We understand that they could be justified on the basis of the manner in which regional MSPs are elected, which is calculated and predicated on the number of constituency seats that their party has—if they are standing as a party candidate. We have had independent members elected through the regional system, but I put that to one side for a moment. Most of us are elected to this place on a party ticket, and in that situation the constituencies come into play.
We have observed that there are also subdivisions of constituencies. I am a representative of a constituency that has multiple polling districts. I guess that the question is why a threshold should not have to be reached in a certain number of polling districts as well as the overall threshold being reached. However, we do not have a view on that. We only suggest it as a question that the committee might like to explore.
Although the Scottish Government does not have a view on that, it has raised questions about polling districts within constituencies. There is clearly concern that, under the bill, there would be a disparity between the levels that would need to be achieved in relation to recalling MSPs. Is that a fair representation of the Government’s position?
We only posit the question as something that you might like to explore. I have gone into the specifics of it, but that is the fundamental question. We have talked about parity. Why would there be a subdivision requirement in relation to regional MSPs but no such requirement in relation to constituency MSPs?
However, the Government does not have any overt concerns, other than the unknown unknowns. Perhaps it will depend on where the committee lands in its stage 1 report or what happens further down the line.
We will need to reflect on what is recommended. It is merely an observation. On the fundamental question, as I set out, parity of esteem for those who are elected here is an important principle, but parity of process—as much as we can achieve it—is important as well.
To clarify, am I right that there is no concern that there would be different journeys for the two groups of MSPs, depending on how they came here, in relation to how they would leave? The Government has no concern that there would be that difference.
We have no opinion on that at this stage.
Touché.
My next question is on the petition process. In essence, the individual’s name would appear on the petition, which would then be agreed to or not depending on who signs it. In reality, the individual would be hoping that support for the petition among their electorate would not reach the 10 per cent threshold, and they may well campaign in relation to that. No party political campaign could take place, but the flipside is that there could be campaigning by a group of invisible, unknown people on social media, with letters being sent to constituents anonymously. The Government will have to take a decision on the financial instruments and so on. Does it have any concerns about unknown campaigns spending millions of pounds to oust an MSP?
That would be an area of concern. I go back to the fundamental point that there should be transparency in campaign finances. The Scottish Elections (Representations and Reform) Act 2025, some of which we will discuss under the next agenda item, touches on areas of campaign finance. At the time when the bill that became that act was being considered, I was clear that transparency is the fundamental issue in that regard, but there are also issues about limits on expenditure. It becomes a question of fairness. Although we do not have a view on the specifics, I can safely say that the matter is an area of general concern.
In a petition situation, what do we do about unidentified groups that do not register and may potentially be subject to legislation if they can be identified and they fall foul of something? There are legitimate examples—I am thinking back to Jersey, where there is a “none of the above” option when there is only one candidate. In the last election there, there was an orchestrated, anonymous campaign to ensure that “none of the above” won. You could not identify who was funding it or where the correspondence and the social media posts were coming from, but, clearly, the campaign was successful in the first round—then there were changes because there was a re-election at that point. Are there concerns about that, and has work been done and thought been given to how we would deal with that matter here?
We would need to look at it in relation to the bill as it advances, and consider how we might deal with it. I can safely say that the Government would be concerned about those areas. We should have a line of transparency about how much is being spent, who is spending it and where that money and expenditure is being derived from. These are important parts of our democratic system and we recognise that it is important when people are elected to the Parliament or in other parts of our democratic system. We should also recognise that it is important in relation to any recall process too.
Do you see the bill as the vehicle to do that?
It might be. It is one of the challenges that we face; it is probably less of an issue here, although we would need to explore it further. A recall mechanism is a fairly clear and distinct process, but it is something that we would need to consider. If there were an election here and a general election for the United Kingdom Parliament in the same regulated period, expenditure in both those elections would start to interact, so the question is what would happen if there was a recall petition in that period.
Absolutely—what if there is one sitting on top of that? That is why I ask the question of the Government.
Those are things that we would need to consider.
I will leave it at this: will that consideration, even if it is just at the top level, be relatively soon—simply because of the six-month limit? There are questions about the various recommendations if we have an election next year. I am glad that the Government agrees that such a consideration rests with it. Although the petition might be an electoral event, it is not an election, and there are particular questions about how that is dealt with.
It does not entirely rest with us, of course, because we do not control the law around the regulatory period for UK elections. That is where it becomes difficult. The expenditure on elections here then interacts with that part, which we do not control; throwing petitions into the mix would mean that we would have to consider things further.
The expenditure on a petition might or might not be an election expense, irrespective of when it happens. If it falls within certain periods and it is such an expense, it will cause problems. I am inviting the Scottish Government to consider the issue in a bit more detail, because it potentially ties into whether a petition—if it becomes an uncontrollable event—is the right vehicle to do that first part.
We will of course have to consider that. However, the point that I really make to the committee is that, in considering the issue, there will still be limits to what we might be able to do at the other end.
I appreciate that you are not the only body with which that issue sits.
My final question is about voter education. As we have already heard, our election process for the Scottish Parliament is different from that anywhere else in the UK and separate from any other electoral event that happens in Scotland. We are talking about adding another event to that, so the electorate will need to understand what they are being asked and how they are being asked it. Does the Scottish Government accept that, and how far is it responsible? I recognise that the Electoral Commission and others will have a teaching role in the process, but there will be a cost to that. What is the Scottish Government’s view on the matter?
There will be a cost to all that. The Presiding Officer has already indicated that a financial memorandum would be required if this were to proceed into law so, yes, there will be costs throughout. If there is to be an education campaign—for want of a better term—that is a cost, and we will have to consider it.
You made the point that the additional member system is a facet of our electoral system here. In 1999, that was new, but people are largely used to it now and understand that they have two ballots to cast at the Scottish Parliament election. In 2007, we introduced the single transferable vote for elections to local authorities; I think that people are becoming used to that and understand the process of ranking candidates. What I am speaking to is that people are well used to becoming acquainted with developments in our electoral system.
I absolutely concede that, when this is introduced and if and when a specific petition comes in—although we all hope that it will not be required—part of the process must be about ensuring that people understand how it works precisely. By and large—and rightly—that work must be done through an external agency in the guise of the Electoral Commission rather than put in the hands of Government or Parliament, which might be perceived as being less independent.
I hope that such an event will never happen, but if it does, rather than its sitting in a cycle that people have got used to—which has happened because we have seen some challenges with all the voting systems in Scotland at some stage—does the Government recognise that there would need to be an education element to the process for the voters to understand what they were doing?
Yes.
That is fine.
Good morning. I want to ask you some questions on something that we touched on briefly with a previous question from Emma Roddick. What is the Government’s view on the physical attendance requirement in the bill and what would be a valid reason for a member to be absent for 180 days or more? Should there be a definitive list of criteria for that? Some witnesses have suggested that the provision could have a negative impact on diversity for people who are not able to attend the Parliament in person. What your views are on that?
09:45
There are a few issues at play. The first thing that I would set out, as a general perspective, is that, where it is possible, people should be in the Parliament. Whether there is a need to be prescriptive and to make it a matter that might lead to someone’s disbarment is a wider question. However, as a general principle, I think that we all recognise and understand that, if people do not have a good reason not to be here, they should be here on a fairly regular basis, accepting that Mr Simpson’s proposition is that, if people have a good reason, they will not fall foul of the requirement. That is a general observation, rather than a comment on whether that requirement should become part of the process by which someone could be disbarred.
It might be helpful to have a list of acceptable reasons for a person being allowed not to be here. The challenge, which could be accounted for by saying that it is a non-exhaustive list, is that things could arise that we consider to be legitimate reasons but which we had not foreseen and prescribed as legitimate reasons. We could deal with that by different means: the list could be updated or, as I said, we could say that the list was non-exhaustive.
I concede that it is inevitable that the requirement could have an impact on specific cohorts. It is not for me to speak to Mr Simpson’s bill, but, to be fair to him, that is why he has suggested that, if someone has a good reason not to be here, they would not be disbarred.
However, there are some fundamental questions, because the requirement is predicated specifically on physical attendance. Putting aside my personal perspective, which is that people should be here when they can be, we have embedded in our system the ability to participate remotely by digital means—I think that that has been a good thing—and we do not draw a distinction in that regard in relation to a person’s ability to participate in proceedings. If we do not draw a distinction in that regard, a reasonable question might be why we are now saying that, in any six-month period, a member must have been here in person. That question needs to be considered. Again, the Government does not have a perspective on that, so I am merely suggesting that these are questions that need to be considered.
The other fundamental thing that needs to be considered is who the gatekeeper is who will determine whether a reason is legitimate. In effect, for proxy votes, that is the Presiding Officer, but who it should be in this instance is another question.
The fundamental question is what a good reason would be. The other thing is that local authorities impose restrictions or a penalty in relation to the number of times that a member does not attend. I am not sure whether that includes remote attendance. [Interruption.] You are telling me that it does, so local authorities are taking that into account.
My understanding is that that does include remote attendance, although I think that it can differ from one local authority to the next, because it is not prescribed in law. Therefore, a lot of these things come down to each authority’s standing orders, but that is a whole other debate.
It comes down to the question of what you deem to be a good reason. My personal thought is that there should be a non-exhaustive list in the bill that would identify things such as physical or mental illness. Anything outwith that could be dealt with separately.
That brings me to the privacy of MSPs’ information at that point. Is there enough in the bill to protect a member’s privacy and confidentiality in relation to the information that is made publicly available, given that that could be very personal information about somebody who is in public life?
I will answer that question, but, first, I will pick up on your perspective that the bill should contain a non-exhaustive list of legitimate reasons for not physically attending the Parliament. That is a legitimate suggestion. I suppose that my slight caution in relation to that is that any legislation must be interpreted by the courts, and you start to get into the area of why some things were prescribed and other things were not. Again, that is just a question that needs to be considered.
Privacy is an area of concern, and I am not sure that there is any way around that. If a person is not here and it becomes recognised that they are not here and that they have permission to not be here—because they will not then fall foul of the requirement—people will inevitably speculate or ask questions about why that might be. If we are going to embed this requirement as part of the process, I do not know whether there is any way around that.
The bill could stipulate that there would be no comment to the media about why a member is not attending the Parliament. It could stipulate that that information is not for public consumption.
I am sorry, yes—let me be clearer: I suppose that it is perfectly possible to do that within the law, but practical experience tells us that it is inevitable that people will speculate.
There should be an element of sensitivity in the bill, if you like, to stipulate confidentiality. I imagine that the bill could include that.
That is a question for the Parliament. That goes back to my perspective, which I think most of us would agree with, that members are still entitled to a degree of privacy in their personal lives, provided that the matter concerned does not relate to their public conduct and their work in the Parliament. The fact that we are publicly elected representatives does not completely do away with that right.
In your policy memorandum, which you sent to the committee, you raised a concern about the timing aspect of the appeals process, which should be completed before making an MSP subject to recall on the criminal offence ground, which is different from instances in which an MSP would be removed because of a custodial sentence of six months or more but less than a year. Can you expand on your thoughts on that?
I draw members’ attention to paragraphs 26 to 28 of the memorandum that we sent to the committee. The process in this regard becomes a little complicated. There might be a way to deal with that. However, in effect, as drafted, the criminal offence ground for a recall petition, which is set out in section 3, is triggered when an MSP receives any sentence of imprisonment or detention for not less than six months, including suspended sentences where the MSP is not imprisoned immediately, which, of course, might mean that they are not imprisoned at all. By contrast, if someone is sentenced for a shorter period than six months, they are then open to the process of recall, so there seems to be inconsistency.
Would that include remand? That is another matter.
I think that we would need to come back to you on that.
I do not think that it is referred to, but someone could be on remand for a good number of months.
My only observation is that, if you are on remand, you have not yet been convicted.
Okay.
Again, it is a question that the committee needs to consider. It is for the committee to determine what it wants to consider, but there is inconsistency on that matter. Whether that is an inconsistency that we say that we will live with or one that has to be thought through and dealt with is for the Parliament to consider.
I guess that it is also a matter for the member in charge of the bill and the committee.
I would like to jump back to the issue of not physically attending the Parliament for 180 days. That is quite a long time, and I am struggling to imagine why an able-bodied mentally well person without caring needs or responsibilities would struggle to do that as a gesture—to just come along one day and swipe their pass at the door. Is there not concern that the requirement is likely to catch only those who have a genuine reason not to be here and perhaps puts an unnecessary light on that?
That is a perfectly legitimate question. I am not convinced that it is one for me to answer. Again, it would be for the bill’s proponent—Mr Simpson—to articulate his rationale. However, I would just observe that that is the provision for councillors. I presume that that is the rationale for the threshold in the bill, but I do not want to second-guess Mr Simpson, and I am sure that he will soon give the committee evidence to explain why he has determined that to be the threshold. My only other observation is that we are aware that, although it does not happen often, some councillors have fallen foul of that requirement, so it seems possible, although unlikely, and your question is fair. That takes us into the realm of casting light on the situation of the only people who are likely not to be here for that length of time—those who have a good reason not to be. I offer no perspective or Government position on that, but the Parliament needs to consider these questions.
I suppose that, in your role as the Minister for Parliamentary Business, you will have some involvement in managing difficult situations and absences among colleagues. Do you have any suggestions for how other measures could be considered that might catch those who genuinely are not showing up but not those who have a genuine need not to attend physically?
You might see a wry smile on my face. Our chief whip happens to sit on this committee—
I know.
—and I would offer the observation, which she might or might not agree with, that I tend to let her get on with that type of issue, although that is a supercilious answer. We need to consider these issues, and, yes, that experience would certainly inform our thinking on these matters, which must be handled sensitively.
Thankfully, it is not the committee members who are giving evidence today.
Yes, indeed, although that is an interesting concept.
Has the Scottish Government thought about whether, were Scottish Government responsibilities to occasion it—although that seems unlikely—an absence of that length should be noted as reasonable? As ministers and cabinet secretaries, you are, first and foremost, MSPs.
I struggle to see the circumstances in which any Government responsibility would require a 180-day absence from the Parliament. It is a good question—
Let me say “situation” rather than “responsibility”.
It is a good question, but it is not one that I have given any thought to.
I will leave that there.
I turn to the Scottish Government’s point of view on another piece of evidence. The situation for councillors relates to the failure to attend a specific event that tends to be held monthly, but the bill talks about a period of time. Is the Scottish Government concerned that there is a fundamental difference between the requirement of a councillor to attend full council meetings and the requirement in the bill, which is just to attend physically?
You have expressed a view about physical attendance, and we have heard views in the committee and in evidence that it is actually really easy just to come and swipe in. However, we do not have a registration rule in the Parliament. People who have voted can be identified, and I understand that there are often freedom of information requests about who was in the chamber—we can always look at the television. However, is the Government concerned that identifying attendance in the Parliament is very different to identifying whether councillors have attended a specific meeting that falls at various times, with times in between?
I like the idea that we would rely on people watching the television and us putting out our beach towels to ensure that we were in the optimal line of sight of the camera.
Your question again takes us into area of parity of esteem and, again, it is for Mr Simpson, rather than me, to answer on what the rationale is. At the time, when we talked about the Scottish Elections (Representation and Reform) Bill, I observed that, by and large, there should be parity of esteem for all the different layers of government, so that could be a motivating factor. You steer us in the direction of the practical challenges, convener, and those would have to be considered if the requirement was to become a prescribed part of our processes.
10:00I will go back to a point that I made earlier about the fact that requirements for councillors’ attendance might differ from one local authority area to the next. I have never been a councillor, but my understanding is that, in my local authority area, the requirement is not to attend the full council meeting; if councillors attend a committee meeting within a six-month period, that fulfils the criteria. Those meetings come round with greater regularity than the monthly full council meetings. Again, those are all issues that the committee might want to consider.
We have a lot to consider, as you keep saying. The committee also needs to consider some of the costs that might be involved, so I will move to questions on the financial memorandum. The Scottish Government has said that some of the costs are underestimated, so can you expand on that?
Yes, certainly. It comes down to a different assessment of the costs to those that Mr Simpson has suggested in his financial memorandum.
Where is your thinking going on that?
For example, we are considering whether increased costs in the future have been factored in. There is a process of casting forward to consider what the costs might be in a specific period. You will need to forgive me, because I do not have that information in front of me, but we know that costs will increase in the future, and we are not sure that that has been adequately reflected in the financial memorandum—
That is the same with every piece legislation—if you are talking about costs.
That is right, and I am pretty sure that questions about whether we have thought about increased costs in the future are put to the Government on a regular basis. Primarily, it is issues around future costs that drive our perspective on the financial memorandum.
In one of your responses earlier, you mentioned parity of process, “as much as we can achieve it”. There have been a lot of questions and concerns about the costs, specifically for the regional recall and poll, and the fact that those could be in excess of £2.5 million. Given the concerns about costs that you just outlined, would that be good value for the public purse, and what might the perception be of that cost?
That is a good question. By and large, the public expect public resource to be spent primarily on public services. Equally, however, if there is a public perception that recall should become part of our process, the fact that it comes with costs needs to be recognised. It is a case of getting the balance right.
Questions of parity of process drive certain costs, particularly in the instance of a mechanism that is—how can I best put it?—a two-stage mechanism for regions. That drives increased costs. Whether that should become a factor in determining the process is, ultimately, for the Parliament to consider. The only observation that I can offer right now is that a two-stage process will, of course, cost more than a one-stage process.
In previous evidence sessions, we have discussed the matter of it falling to a local authority to fund a by-election. Is your view that it should be the same for this process? Arguably, funding for a constituency by-election could fall to a local authority, but a regional one is a much bigger problem. Has the Government thought about who would take on financial responsibility for any additional costs that may occur?
I do not want to fall foul of misleading the committee—the committee would not like me to do that—but I think that the Government bears the cost of by-elections, even for constituencies. I am looking to my officials and Ailsa Kemp is nodding, so I have remembered that correctly.
So, effectively, no additional costs would fall on local authorities in respect of either a regional by-election or a constituency one.
It would not fall on the local authority, but it would still fall on the public purse. It would mean that resource would have to be diverted from elsewhere.
Absolutely.
The strong advice is that we should have an agreed battlefield at least six months before an election. That takes us back to delegated legislation. We have talked about the financial issues that need to be considered. One issue that has been picked up is the potential necessity for criminal consequences if things are mishandled in respect of petitions or subsequent events. At the minute, because the bill has not been passed, the legislation is silent on that.
Your memorandum suggests that that situation can be dealt with as these things normally are, in secondary legislation or other ways. Is the Government confident that you can cross those thresholds in time for May next year? I am talking about identifying criminal responsibility. We have heard about the finance, so I am happy to put that to one side, but is the Government confident that it can address the other, more practical—should criminal things ever be practical?—aspects that need to be covered in secondary legislation?
That takes us into a wider question around the timescale, because the bill prescribes that everything should be in place within six months of royal assent.
Candidly, no, I am not confident. If the bill had become legislation two years ago, I would probably have said that we could implement it within six months. I should caveat that with the reassurance that I see nothing in the parliamentary timetable that means we cannot pass the bill before the end of the session, but if we are required to implement all the provisions within six months, that will be pretty challenging.
We go into dissolution in March, and it can take about a month after the election before committees are up and running. I would be surprised if the relevant committee of the Parliament—most likely, the successor to this committee—did not want to take evidence from the Government on what it is planning to do, just as we are about to do in relation to another act of the Parliament.
There is a wider question about the timescale for implementation. Right now, it would be very difficult to do it, and to do it justice, in the timescale prescribed.
The minister has raised the question of the commencement date. What is the Scottish Government’s proposal with regard to that? We are now looking at not having legislation in place by the Holyrood election next May, which means that we will have an unknown unknown field, albeit—let us be honest—in relation to a very small element of the electoral system that, I hope, will not be tested for a long time. What is the Government’s view on the time that it would need to facilitate secondary legislation?
I cannot give a specific answer to that. There is often cynicism about this approach, but the preference is not to have a prescribed period after royal assent for a bill to be implemented, to take account of eventualities. Once the Parliament has legislated for something, the expectation is we get on with it and implement it as soon as possible, so that would be Government’s commitment to the Parliament.
I am loth to push you further than that.
Graham Simpson, our time is ever so slightly tight, but it is there anything that you would like to pick up with the minister before I conclude this part of the evidence session?
I thank the committee, as I always have done, for the breadth and detail of members’ questions. It has been an excellent session. I thank the minister for the way that he has worked with me so far, and I think that that will continue.
I press the minister on the recall question, because questions have been raised with the committee about the two-stage process that I am suggesting. Some people have suggested that there should be a one-stage process. Does the minister have a view on that?
First, I reassure Mr Simpson that we will absolutely continue to engage with him on the bill. He knows that we had very good engagement on the Scottish Elections (Representation and Reform) Act 2025 and I assure him that I am committed to continuing that.
We do not have a view on the recall question. I have the memorandum in front of me, and I am not going to make the committee wait while I read it in detail, but my recollection is that I do not think that we posed a question beyond the cost implication. It is an open question for the committee and the Parliament to grapple with. We do not have a specific view on the merits, or otherwise, of whether there it should be a one-stage process or a two-stage process.
Generally, are there any red flags in the bill?
I am loth to describe it as a red flag, but I go back to the point that I have just made about a realistic timescale for implementation.
I put on record that we have discussed that, and I agree with the point that you have made. Let me pose it as a question, so that I am not making a point: do you agree that the issue could be explored at stage 2, should the bill reach that point?
Yes, we would have to do that. As much as I am saying that it is an issue for the Parliament, if no one else lodged an amendment on the issue, I would probably seek to do so at stage 2. Obviously, I would work with Mr Simpson on that.
Finally—and I am not getting ahead of myself—I put it on record that I have been in constant discussion with the Electoral Commission, which has already suggested a number of amendments. I will pose it as a question again: if the bill progresses, do you see it as an opportunity to have the best system of recall in the UK, and for us to improve on what exists elsewhere?
I think that that is what we should aim for. We should not seek, by necessity, to replicate what is in place at Westminster. We should create a system that we think is proportionate and that works for us as an institution and, fundamentally, for the public in Scotland.
On that positive comment, I thank the witnesses, and particularly the minister, for their evidence. I understand that the minister is staying with us for another exciting session. I suspend the meeting to allow a change in officials.
10:13 Meeting suspended.Next
Dual Mandates