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Welcome back. Agenda item 3 is to take evidence from the Minister for Parliamentary Business and officials on dual mandates, although the session may turn out to be more of a discussion than one that follows a traditional evidence-taking format—we will see.
Members have been provided with information about the consultation that the Scottish Government undertook, for which I thank the minister. I note the expectation that subordinate legislation on dual mandates will be referred to the committee in the future. Today’s discussions will not pre-empt our scrutiny—formal and otherwise—of future regulations.
I welcome again the minister and his supporting Scottish Government officials: Iain Hockenhull, elections bill team leader; Ailsa Kemp, Parliament and legislation unit team leader; and Jordan McGrory, solicitor. Minister, would you like to make opening remarks and take us through your consultation?
Certainly, convener. I feel very welcome, so that is nice.
I will not say too much by way of opening remarks, and I hope that the session will be more of a discussion. Of course, I will answer any questions that are posed, but I am interested in hearing what the committee thinks about what the regulations might look like.
I remind members that the Scottish Elections (Representation and Reform) Act 2025 requires the Government to make regulations to prohibit dual mandates for MPs and peers. It did not prescribe a timescale, but I made a commitment to introduce the regulations in time for the Parliament to consider them before the 2026 election. I restate that commitment, and we will be able to meet that requirement.
The act enables us to make regulations in relation to dual mandates for councillors, but it does not require us to do so, so we are considering that. Not only am I committed to bringing forward regulations in time for Parliament to consider them, but I am committed to doing that in line with the Gould principle. On that basis, I envisage laying regulations in September to ensure that Parliament has the opportunity to approve them by November, but that is in Parliament’s hands and is for Parliament to consider.
To give some background, I expressed my broad concerns about provisions on dual mandates being part of the then Scottish Elections (Representation and Reform) Bill, because I was concerned that we had not had an opportunity to consult properly on those matters. I was grateful to have worked with Mr Simpson, who I see has remained with us, to come up with the solution that we would do things by regulation, which enabled us to consult. We have had a nine-week public consultation, which started on 20 January and got 77 responses.
Subsequent to that consultation, I have held two round-table meetings. The first was with representatives of four of the six parties that are represented in Parliament—all six were invited and four accepted the invitation—and the second was with a range of other stakeholders with an interest. Those meetings were useful and instructive in informing my thinking thus far. That thinking is not completely finalised, but it would be disingenuous to say that it has not advanced beyond where it was at the outset of the process. I will be happy to explore that further with the committee and I am keen to hear what committee members think.
I again welcome Graham Simpson, given his interest in the matter, and I will be more than happy to bring him in at the appropriate time, if he has questions.
I will kick off. Minister, you said that you had 77 responses. I will not go into the split between individual and group responses, because I do not think that the responses have been published yet, so we have only headline figures. Were you satisfied with the level of response?
It would always be nice to have more.
Let me put my question differently. Are you satisfied with the range of responses? Will they allow you to take your thinking forward with confidence about the view that is out there?
I think so. My first observation is that we are required to make regulations in relation to MPs and peers, but the responses have been useful. The discussion that I had with the political parties was helpful, and the second round-table discussion was especially useful—it included a clerk from the House of Lords, along with the Electoral Management Board for Scotland, the UK Electoral Commission and a representative from the Independent Parliamentary Standards Authority, which manages the allowances system for the House of Commons. That meeting was very useful in informing my thinking about practicalities. The process has been helpful.
On the top-level question about whether it should be possible to hold a dual mandate, a substantial number of respondents said no to MPs and councillors holding such a mandate. The top-level responses about members of the House of Lords were interesting. The suggestion was that, instead of having a grace period, there could be the opportunity to take a leave of absence. What is your view on the fact that 21 respondents said that a dual mandate could be held with a leave of absence, while 48 said that it could not?
I can only conclude that those who have an opinion largely took the position that a leave of absence does not fulfil the requirement of ending a dual mandate. We have drafted the regulations to enable provisions on such a threshold, but they do not require that to be the threshold. I am grappling with that now and would be more than happy to hear the committee’s perspective.
As you grapple with the issue, do you want to tell us what you are inclining towards? Are you following the view from the consultation responses?
I was just about to talk about that. It is no secret that my party and I have a particular perspective on the House of Lords, but I am conscious that there is a range of views in this Parliament. I am also conscious that we have had the experience of MSPs who have served in the House of Lords. We have one such member now, who operated a self-denying ordinance and took a leave of absence. That demonstrates that that is possible, but I do not know whether that meets the requirement from public expectation.
I completely concede that the 77 responses were helpful in informing our perspective, but there was not a huge upsurge of people responding to the consultation. The responses that were received suggest that respondents did not think that a leave of absence fulfils the requirement.
I am still considering the matter, and I would be happy to hear about it from the committee. Notwithstanding the point that you will scrutinise the regulations—I understand why you gave that qualification—the committee’s perspective would be helpful.
I am content, because I know that the specifics have not yet been published. Once we see responses that extend beyond the commentary, will the committee get more insight that might help us to understand why the responses have come out in the way they have?
I think so, but that could be in the eye of the beholder.
Absolutely. I invite you to speak about one of the most challenging elements, which is grace periods, as you have mentioned. People come with different views that depend on their experience, oversight and knowledge of the subject. Is the Scottish Government developing a view on what the appropriate grace period should be? Maybe the periods would differ, depending on who had the dual mandate.
I am happy to speak to where my thinking on that broadly is. This is not necessarily finalised, and I am happy to hear what people think. There absolutely does not have to be a grace period. I am also happy to speak to where we might end up on regulations for councillors.
I do not think that the grace period should be the same for each cohort. When he made the proposals, Mr Simpson proffered a period of eight days for MPs and peers. Having spoken with IPSA, I think that we could work with such a system, but I am beginning to think that it would be preferable to have a slightly longer period for MPs, which might be tied to the period between the election and the summer recess, largely for the practical matter of an MP winding up their office in an orderly fashion, although IPSA informed me that that is built into the system already.
We have absolutely no ability to legislate for what IPSA might put in place or what the rules might be for the House of Commons, so the system could change. To go back to a point that I made earlier about future proofing systems, it would be sensible for us to have a short grace period that is probably a little longer than eight days.
Is the Scottish Government’s settled view that a grace period would be after, rather than before, the Scottish election? In that case, an MP would not be required to step down prior to the election; they would do so as a consequence of being elected as an MSP.
Even if we had that perspective, our regulations are devised in a way that does not compel anyone to stand down, so we can only deal with—
You can prevent people from being returned.
We can deal with the situation only after a person is elected, so that is where our regulations—
I am sorry—I did not mean to talk across you.
10:30
Not at all. That is where our thinking is for MPs.
For peers, I do not think that the period is required to be that long. That could lead us to a much quicker process, which might be more in line with the eight-day period that I mentioned, because peers do not have publicly funded offices in the same fashion as MPs do.
That is balanced against the question whether it would be more straightforward for the public to understand that there is equivalence for peers and MPs. We do not have an absolutely fixed view on that. However, I do not think that the period for peers would need to be long, so I certainly would not suggest anything longer than we had for MPs. If anything, we could do something shorter, but we might conclude that the most straightforward thing to do is to have the same period for a person to consider their position as an MP or a peer.
For councillors, I am increasingly drawn to the idea that, although we are not required to, we will lay regulations, because Parliament should have the ability to consider the issue. I was struck by a comment that one participant in the second round-table discussion made; it speaks to wider issues of parity of esteem, which we have touched on today and which we discussed in relation to the bill. If we are suggesting that an MP or a peer should not have a dual mandate, the same should be true of councillors under parity of esteem. That is a fairly persuasive argument—at least, it is enough for me to bring forward regulations for Parliament to consider.
That said, there are practical issues. In our experience, the most significant cohort of people who have been elected with a dual mandate have been not MPs or peers of the realm but councillors. A practical issue is whether we want to force a raft of by-elections in a fairly short period between one fixed election and another.
Similar legislation that was enacted in Wales prescribed a period of 372 days—if I remember correctly—to account for the fact that local authority elections were scheduled not long after a Senedd election. Although Wales has now moved away from that approach—I am not quite sure of its rationale for doing so—I am probably drawn towards that being sensible, with the exception that we should have the ability to vary the period, contingent on when a person is elected. If someone was elected at a by-election, it would not be sensible to say that the period should be a year, so maybe we could tie it to the period that there is for an MP or—potentially, depending on where we land—that for a peer.
Is your thinking about grace periods for all those situations predominantly around the Holyrood election and council elections? Are you confident that the timings that you arrive at will also work in a by-election situation? Someone could end up with a dual mandate because of a parliamentary by-election.
Yes—I suppose that that was the point that I was making. If we were to bring forward regulations for councillors—as I am giving a fair indication to the committee that we are likely to—we would have different trigger points.
If someone was elected at the general election and we knew that council elections were coming up within a year, we would not require them to stand down until the next series of ordinary council elections. However, if someone was elected outwith that period, I do not think that we would have a year’s grace period; we would have something shorter. For consistency’s sake, that would probably be akin to the period for MPs.
That is helpful.
Sue, do you want to come in?
I am not sure whether I do. I am struggling. When I say that I am struggling—
Explore it. This is a different sort of evidence session—
All the evidence that the committee has taken has stated that there would be a grace period when a councillor is elected as an MSP, to allow them to carry on in the former role for a period of a year, give or take. I would support that, and I want to clarify that that is where your head is going, too.
Oh, I do not know whether I would like to tell you where my head is going on a regular basis, but, in this instance, I am happy to say that that is where my head is going, except for the point that I would make—
That is what I am trying to explore—where is your exception?
My exception would relate to the situation where, for example someone is elected as a councillor—
And then becomes an MP—
—and becomes an MSP. Subsequent to the next round of ordinary council elections, I do not think that it would be sensible to say that they would have to wait a year—
So you are talking about circumstances in which there is a by-election or there is some other reason why a councillor becomes an MSP.
Yes, that is correct.
I understand, now, where you are going, and I accept that. I was confused.
That is no problem.
There is nothing wrong with seeking clarification. I bring in Rona Mackay.
Salary limitations are a key element, certainly in the minds of the public—it is their money that we are spending. Most respondents to the committee have stated that, in the case of MSP-MP dual mandates, the elected representative should be allowed to receive only a single salary. Some have suggested the retention of the higher of the two salaries and some have suggested that the original salary should be ceased upon election to the Scottish Parliament. Is the Government forming an opinion on that? Should we keep it simple so that, as soon as you are elected to a different institution, the previous salary stops?
We cannot do that, because we cannot prescribe the rules for MP’s salaries. I understand why the public response has been that someone should be entitled to draw only the MSP salary in that instance, but we cannot do that. What we could do, and what we are exploring, is whether, for that period—let us remind ourselves that that would be very short—until you have given an indication that you are standing down as an MP, you are not entitled to draw down your MSP salary. We could do that.
We could also do that in the instance of councillors. Right now, an MP is entitled to only a proportion of their MSP salary. If someone was a councillor, we could, for example, prescribe that they are entitled to only a proportion of their MSP salary, taking account of their councillor salary. We are grappling with these matters, but we need to be clear—it is important that we are clear with the public—that the only things that we can legislate for are the issues around pay and salary entitlement, privileges and rights in this place. We cannot determine them for other places.
I will give another example. Again, I understand why people made the point that there should be a limitation on the rights of peers and MPs in relation to their participation in the Lords or the Commons, but we cannot prescribe that—it is not within our gift—and we need to ensure that everyone understands that.
That is a really useful explanation. I did not realise that that was the case.
The next natural question relates to a person’s rights and privileges during the grace period. You are unable to affect what happens in institutions outside Scotland, but what is the Scottish Government’s thinking on the rights and privileges of an MSP? Should we curtail those?
By and large, I think that the answer is no, for practical reasons. There might be exceptions in relation to certain allowances, such as for setting up an office. I have not drawn a specific conclusion on that; it could be more hassle than it is worth, although that must be balanced against the question of why, if a person decides not to quit as an MP, we would let them set up an office for a few weeks. That is something that we need to grapple with.
The more fundamental questions are around a person’s ability to participate in parliamentary proceedings. I do not think that we should limit that for the very practical reason that that would impact the selection of the Parliament’s nominee for First Minister and parliamentarians’ ability to determine who the Presiding Officer and the Deputy Presiding Officers were and who should hold ministerial office. That takes us into real questions around the public having elected the Parliament on a specific, proportionate basis, which should be reflected. It would add a level of complication that would not be helpful.
Is it also the case that the salary is, in essence, the reward for being an MSP, whereas the rights and privileges allow MSPs to represent the constituents who have chosen to send them here? That level of versatility allows the Parliament to develop, while urging an individual to do the right thing.
Precisely. That is an erudite explanation of what I was trying of say. I will remember what you said and use it next time.
I am kind of sidestepping along here, but what about the holding of ministerial positions? Is there a view that an MP should not be able to hold a ministerial office until the issue is settled?
We have not considered that. Again, that would add another layer of complication. Those are issues on which we would be guided by practical considerations. Realistically, although we would have a prescribed period in which a person must state their intentions, I would be surprised if a person was appointed to ministerial office if they did not give an early indication that they intended to leave the institution.
But the intention to leave is enough—they do not already need to have left.
I think so. Requiring them to have left would add another layer of complexity. Ultimately, they would be required to exercise that duty. If they did not, they would cease to be an MSP and could no longer be a minister. To be a minister in the Scottish Government, you have to be an MSP.
With the exception of a law official.
Let us not overly complicate this.
There is an interesting dual mandate that we could go into.
Graham Simpson, is there anything that—as an MSP—you would like to contribute or ask the minister?
Given that it is a discussion, I am reflecting on what has been said. One of the key issues is the grace period for somebody if they are elected here while being an MP. I proposed eight days because that is the limit in Wales. I thought that we should have some consistency.
The minister says that he is minded to go with not eight days but for the grace period to end after the summer recess.
May I?
Yes, of course. It is a discussion.
Just to clarify, it would not be after the summer recess. It would be up to the point of the summer recess, so we are really talking about a six-week period.
That is useful. I wonder whether it is worth saying six weeks, because there will be by-elections where the summer recess does not come into it. Is it better to just prescribe six weeks rather than eight days?
Forgive me if I was not clear. We would prescribe the time period. I was merely making the point that the time period would probably reflect our usual period running up to the summer recess. We would not prescribe it up until the summer recess; it would be however many weeks.
That is really useful.
The other situation that could arise—and has arisen—is when somebody is an MSP and becomes an MP, and therefore has a dual mandate. Have you considered what happens in that situation?
Precisely the same thing would happen.
They have to make a choice.
They would have to make a choice within the prescribed period.
Your regulations will set that out. If you are an MSP and become an MP, you have to choose. It is one or the other.
To put it in really simple terms, the regulations will prescribe a time period. It will not matter which came first.
It is a dual mandate. We have to think about the time period rather than how it came about.
Correct.
The issue of the House of Lords is not an easy one. It is an easy one if you are against the House of Lords, but if you are not—if you think that the House of Lords should exist—the question is whether you should allow a leave of absence, which, as you rightly say, one current member of the Scottish Parliament enjoys at the moment. Where are you on that? Should the leave of absence exist?
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I will be perfectly candid. I am grappling with my personal perspective and what I think the Parliament might expect. That is where I am now.
There is a complicating factor. It is not for me to say who the committee should take evidence from, but I found it useful to take evidence from the people who I have mentioned, and I am sure that the committee would, too. The clerk from the House of Lords said that their processes have changed. A leave of absence used to be from parliamentary session to parliamentary session; the process now has to do be done each and every year. That would be another complicating factor for us. Who is checking that here? That is something else that we need to consider.
As I grapple with my perspective, the other factor is that far more people who responded to the consultation said that the person should resign from the Lords than said that they should take a leave of absence.
Which in itself can be a difficult task.
I thank the Government for sharing information and for the evidence that we have heard today. What has come through, not only in the evidence to the Government but subjectively—a lot of people think this—is that these are full-time roles and should be fulfilled as such. It is pertinent to address the dual mandate issue. Although the minutiae are not available to some people, it is useful to keep in mind the principle that an elected role is a full-time job and needs to be treated that way.
Minister, thank you for both your evidence sessions, and thank you to those who support you. We move into private and will reconvene in public, not before 1 pm.
10:47 Meeting continued in private.