Draft Scottish Parliament (Disqualification) Order 2003
Good morning. The first item of business is a debate on motion S1M-3744, in the name of Euan Robson, on the draft Scottish Parliament (Disqualification) Order 2003.
I wish to highlight the unusual nature of this item of business, which relates to a wholly reserved matter that, under the Scotland Act 1998, must be considered and approved by the Scottish Parliament. Members might have noted that the draft Scottish Parliament (Disqualification) Order 2003 is a statutory instrument, which means that a minister of the Crown will advise Her Majesty the Queen on the making of the order. However, by virtue of schedule 7 to the Scotland Act 1998, it falls to me, as a Scottish minister, to invite the Scottish Parliament to approve the draft order before it is made by Her Majesty in Council.
The order seeks to update, in advance of the elections that will be held later this year, the list of office holders who are to be disqualified from membership of the Scottish Parliament. Members might be aware that section 15 of the Scotland Act 1998 sets out the circumstances in which a person is disqualified from becoming a member of the Scottish Parliament. Certain categories of people are disqualified automatically, including judges, civil servants, members of the armed forces and members of foreign legislatures.
In addition, section 15 provides an order-making power to disqualify specific office holders from membership of the Parliament. Only one such order has been made under that power, in March 1999. That order needs updating to take account of developments since then, particularly the creation of new bodies and the abolition of existing ones. The draft order for approval is designed to ensure that proper account is taken of such developments. Without the new order, there would continue to be reference to bodies that no longer exist and members of new bodies, who should be disqualified from membership under existing criteria, would be eligible for membership of the Parliament.
The Minister for Parliamentary Business wrote to the Presiding Officer, the chairman of the Electoral Commission and the leaders of the main political parties on 3 December 2002 to draw their attention to the Executive's laying of the draft order and, in particular, to its effect and scope. Patricia Ferguson made it clear in those letters that the promotion of the draft order did not represent a wish to change the criteria against which an office holder is assessed for disqualification from membership of the Scottish Parliament.
As before, the same criteria will apply as apply to membership of the House of Commons. Those criteria are: offices of profit in the gift of the Crown or ministers; positions of control in companies in receipt of Government grants and funds; offices imposing duties that would prevent their holders from fulfilling parliamentary duties satisfactorily; and offices whose holders are required to be seen to be, and to be, politically impartial. Those criteria are set out in the Executive note that accompanied the draft order on laying and remain unchanged from those that were used in 1999.
The purpose of the order is to update the 1999 order by applying the same disqualification criteria to new offices that have been vested since 1999 and by removing offices that have been abolished. We have also taken the opportunity of updating the Scottish order to include corresponding office holders in England, Wales and Northern Ireland.
The draft Scottish Parliament (Disqualification) Order 2003 is essentially in the nature of good housekeeping. I hope that the Parliament will join me in approving the order with a view to having it in force in time for the Scottish parliamentary elections on 1 May this year.
I move,
That the Parliament agrees that the draft Scottish Parliament (Disqualification) Order 2003 be approved.
I do not think that anyone in the chamber will be surprised to learn that the Scottish National Party considers that questions relating to who is entitled to stand for election and to be elected to the Scottish Parliament should be decided here rather than in London. Scotland's Parliament is the most appropriate place to decide on the issues that matter to Scotland, which include who is entitled to be a member of the Scottish Parliament.
It is interesting and welcome that only the Scottish Parliament can consider and approve the statutory instrument, although it is clear that the issue is one that will be considered in the Scottish Parliament alone when we take control. We should take control of housekeeping measures at least. No doubt other members will come to agree with me on that in time. We want the Parliament to take control of a range of issues, such as the economy, the number of MSPs, who we welcome as refugees, how we tackle poverty and how our nation is represented abroad. Even if members do not agree with me on those matters, it would be helpful if our Parliament could make its own decisions on certain housekeeping matters.
We should consider how the Scottish Parliament is being asked to deal with the statutory instrument and the tortuous route by which the instrument came to us. The subject matter of the instrument is reserved, as the minister said. Despite the fact that the instrument is about who is entitled to sit as a member of the Scottish Parliament, the order was written by Helen Liddell, the Secretary of State for Scotland.
The order is subject to type D procedure under schedule 7 to the Scotland Act 1998 and can be considered only by members of the Scottish Parliament. That means that the minister who is responsible for the secondary legislation is not answerable to the Scottish Parliament and cannot be called to account for the content of the instrument. In addition, those to whom Helen Liddell is answerable—elected members in London—cannot call her to account for the instrument because it can be considered only by MSPs. I am sure, as I look at the faces of some members, that they acknowledge that the scenario is rather bizarre.
It is interesting that some lone voices in the Scottish Parliament want us to consider the unicameral nature of this legislature. However, what we have before us amounts to a bicameral, if not tricameral, approach to legislation and I am not sure that that represents proper scrutiny of the instrument. We cannot amend this piece of legislation; we can only accept or reject it. It was written by a minister who is answerable to another Parliament, which will not be scrutinising the order. Where else in the world would there be such a ludicrous arrangement? What other country would allow legislation about its Parliament and who may be represented in it to be made in such a manner?
Instead of being able to scrutinise the legislation about who can take a seat in the Scottish Parliament, we have only a nuclear option. The order defines specific offices that are compatible or incompatible with membership of Parliament and we can either accept it as a whole or reject it. What we cannot do, as the minister said, is amend it. That is no way in which to legislate to protect the democratic process in Scotland and we should consider that in the future.
I will now consider the subject matter of the instrument. The claim of right in 1689 sought to separate the legislature from the Crown and disbarred from the legislature those holding an office of profit that was in the gift of the Crown. In that vein, most of the quangos that we—certainly the public, anyway—pay for day and daily will have their members disqualified from becoming members of the Scottish Parliament. However, there are several discrepancies and there seems to be a tendency to have over-zealous restrictions at a time when everyone is calling for a wider pool of people from which we can select prospective MSPs. For example, would our world collapse if the chairman of the Women's Royal Voluntary Service were to stand as an MSP? Under the order, that individual would be restricted.
If one is a member of the Advisory Committee on Dangerous Pathogens, one must wonder why one can stand as an MSP whereas a member of the Advisory Committee on Dangerous Substances cannot. What can Helen Liddell have meant by omitting the Advisory Committee on Historic Wreck Sites? I am not sure whether there is any connection between the post of Secretary of State for Scotland and historic wrecks, but is there anything that we should know about?
More important are the discrepancies in relation to public services. It is interesting that a member of the Scottish Prison Service board, with responsibilities for the running of Saughton prison, among others, will be disqualified from standing as an MSP whereas the director of the company that runs the private finance initiative jail in Kilmarnock can become an MSP. Public sector workers and civil servants are excluded from the Scottish Parliament, but fat-cat privateers who have their rates paid for them while they strip money from our public services are being allowed to stand as MSPs. On the railways, members of the Strategic Rail Authority and members of the rail passengers committee are disqualified from being MSPs, but the directors of franchises can stand as MSPs. I am not saying that any of those people should be able to stand, given their state involvement, but the discrepancies in relation to the validity of the underlying principles make it quite clear that the process is starting to unravel.
Today, the Scottish Parliament has little choice but to approve the statutory instrument. However, in future, all such issues should come back to Scotland, where sensible decisions can be made in the interests of Scottish democracy. I suggest that we examine the criteria by which decisions are made about who can and cannot stand for the Scottish Parliament. The criteria must be sound and consistent and should be based on inclusiveness and common sense rather than on exclusion and historic anomalies.
We are prepared to support the order on the basis that we must do so. We need the order to be passed so that we can progress to the elections on 1 May. However, I hope that the minister agrees that we should examine the process by which people are included on the list and the principles on which our democracy rests.
I thought that we were discussing a non-controversial matter this morning so I was amazed to find myself on the point of intervening on Fiona Hyslop.
I welcome the opportunity to speak on behalf of the Labour party in this debate on the draft Scottish Parliament (Disqualification) Order 2003. I note that the SNP is so enthused about constitutional issues that Fiona Hyslop has been left to be enthusiastic almost on her own. Her attempt to make a connection between a technical order and the broader arguments around independence was, perhaps, a jump too far for most of us.
Members will appreciate that I have had to fight hard to secure the privilege of speaking on this issue on behalf of the Labour party and I am honoured that I have been allowed to do so. [Laughter.] We all realise that, even though not all debates in the chamber are glamorous and attract attention, they are all important and have to be taken seriously. There are some things that just simply have to be done.
At the heart of the order is an important issue that relates to our wish to strive for the highest possible standards in public life and to ensure that MSPs do not have any conflicts of interest. I accept that technicalities relating to that issue must be worked through and I believe that any contradictions that arise can be worked out in this Parliament or Westminster. It is important that MSPs can focus on the various elements of their responsibilities. It is particularly important that they have the time to work on behalf of their constituents, who need a voice in the systems, institutions and organisations that are often insufficiently responsive to people's concerns. The Labour party is fully committed to achieving those standards and is happy to support the order, which updates and clarifies the situation.
The order deals with technical issues but, obviously, the principles of democratic accountability, probity and commitment to providing the best possible service to our constituents go far beyond anything that an order can deliver and we need constantly to reflect on how we operate. The Labour party is committed to being part of that important process, as are all members of the Parliament. I do not believe that there is dispute in the chamber about those principles. Occasionally, during policy debates, it is tempting to impugn the motives of those against whom we are arguing even though they simply disagree with us. We have to be cautious about the language that we use when we debate with one another. If we imply that members of the Parliament are operating deceitfully, the Parliament will be damaged.
The Labour party supports the order and I hope that the rest of the Parliament will do so as well.
I commend the order to the Parliament. The order is more than a good housekeeping measure; it represents good administration. Will the minister tell us how many years will elapse before the next such order is likely to be introduced?
We are all aware that, in the old days, the three groups of people who were automatically disqualified from participating in the democratic process were criminals, lunatics and peers. However, with the exception of the first two categories, even that has been amended in the light of changing circumstances by the Scotland Act 1998.
The Conservatives welcome the order.
Perhaps Lord James should have declared an interest.
Fiona Hyslop made an important point when she said that we do not want to discourage well-informed people from entering public life. Issues of political neutrality and the need to involve people in the Parliament should be considered in a more leisurely fashion in due course, but can the minister assure us that the people listed in the order will still be allowed to stand for the Parliament and will have to give up their posts only when they are elected? We should not discourage someone who knows about pensions or the Child Support Agency from standing for the Scottish Parliament, as it would be useful to have them here.
I welcome this piece of housekeeping and the technical aspects of the statutory instrument. Housekeeping is important to the Parliament, although, having said that, I must say that I am not an expert in other forms of housekeeping.
The principle that is raised by the debate is that clarity on such issues is important. We are setting an example, especially to quangos, which should consider the clarity that the statutory instrument provides.
It is important to reiterate the fact that the order seeks only to update the list of office holders who should be disqualified from becoming members of the Scottish Parliament. I take Lord James Douglas-Hamilton's point that the order is about slightly more than good housekeeping and I welcome the fact that peers can stand for the Scottish Parliament. Indeed, I think that the contribution that is made by the three or four peers in the Scottish Parliament is valuable.
I cannot possibly comment on Fiona Hyslop's remark about historic wrecks, although the observation was interesting. I also cannot comment in detail on the issue that she raised in relation to the chair of the WRVS, but I will examine the matter and write to her in due course.
Fiona Hyslop also made substantive points about the criteria by which people are included on the list. However, we are not in a position to change those within the context of today's debate. One might or might not agree with what she said on the matter, but today's debate relates only to the updating of the order.
Lord James Douglas-Hamilton asked when there would be a further update. This is the second time that such an order has been made and I imagine that a similar revision will have to be made during the next parliamentary session.
The order includes not only people who hold offices in Scotland, but those who hold equivalent offices in England, Wales and Northern Ireland. That is a substantial difference from the 1999 order.
In response to Donald Gorrie's question, I can answer from my own experience. In order to stand for the Scottish Parliament, I resigned my public office before the close of nominations. I was not discouraged from standing for the Scottish Parliament, but I was not able to be employed by the organisation for which I worked, which was covered by the disqualification rules, when I submitted my nomination papers. I imagine that that is still the position in relation to office holders. The situation might need to be reviewed but, again, as this debate is merely about updating the order, I do not think that we can make any changes today that would answer Donald Gorrie's interesting point, which was that the office holder should remain in post until the day of election. I will follow the matter up and write to Donald Gorrie in due course.
I do not wish to go on for long. Scottish Executive officials had considerable involvement in looking through the list of people, department by department, whom the order might cover. It is not fair to say that the order came solely out of the Scotland Office. There was considerable Scottish Executive involvement in preparing the list.
I need add nothing further, other than that I welcome the support from all parties. I thank members for their interest in the order.