Standards, Procedures and Public Appointments Committee

Meeting date: Thursday, March 3, 2022

Official Report 630KB pdf

---

Scottish Local Government Elections (Candidacy Rights of Foreign Nationals) Bill: Stage 1

Item 2 is evidence on the Scottish Local Government Elections (Candidacy Rights of Foreign Nationals) Bill. We are joined by George Adam, the Minister for Parliamentary Business; Iain Hockenhull, the elections bill team leader; and David Maclennan, who is a solicitor for the Government. I welcome you all and invite the minister to make a short opening statement.

Thank you, and good morning. I am grateful for the opportunity to discuss the bill. It seeks to ensure compliance with treaties that the United Kingdom Government has agreed to in relation to voting and candidacy rights in local government elections. Treaties have been agreed with Portugal, Luxembourg, Spain and Poland.

At present, all foreign nationals with any form of leave to remain in the United Kingdom can vote in Scottish local government elections, but candidacy rights are limited to people with indefinite leave to remain or pre-settled status. We anticipate that most European Union nationals who are currently resident in Scotland already have candidacy rights.

The bill is tightly focused on the treaties that I mentioned. Although our law on voting rights already complies with the treaties, the bill is needed to ensure compliance in relation to candidacy rights. It will do that by extending candidacy rights to any nationals of Portugal, Luxembourg, Spain and Poland who have a limited form of leave to remain in the United Kingdom.

Last autumn, the Government’s shared policy programme undertook to develop legislation on electoral reform to enable more people to stand as candidates in Scottish Parliament and local government elections. I have previously outlined to the committee my intention to consult later this year on a number of electoral reform proposals. I expect that consultation to consider issues surrounding a wider expansion of candidacy rights—for example, to all foreign nationals with limited leave to remain or to 16 and 17-year-olds.

I look forward to discussing the bill with the committee, and I am completely happy to answer any questions that members may have.

Thank you, minister. That is a very brave offer.

I will kick off with a couple of general questions. The reference is, in essence, made to treaties that exist between the UK Government and other countries around Europe. Some of those treaties are not yet in force. Are you concerned that there may be a situation in which the bill comes into force but the treaty is not in force to trigger the rights, or are you confident that that will not happen? I am given to understand that the UK Government is waiting for alignment across our four nations before finalising the treaties.

As I will probably say in many of my answers, that would be a problem and situation for the UK Government to deal with. There are always concerns that there might be a situation in which someone does not have the right to put themselves forward as a candidate, but the important thing to remember is that, if the UK Government changes the treaty, the bill will give us the ability to use a statutory instrument to ensure that we can follow suit. There might be a chance of some people having difficulty in being a candidate in the future, but it will be only a small percentage. If we look at the number of people who put their names forward for elected office as a percentage of the general population and then at the number of people whom the bill will affect, we see that it is a small minority. I am not saying that it would not happen, but it is unlikely. It would be an extreme case.

Therefore, you are still confident that using the bill as the vehicle for delivery is the right way to go.

Yes.

That is very helpful.

In looking at the bill, a question has been raised about who is responsible for ensuring that the candidate can lawfully stand. At the moment, my understanding is that, in the election process, when an individual comes forward, the only authority that a returning officer for an area requires is the declaration that the candidate signs to say that they can stand as a candidate. Are you happy with that process going forward? To extend that question slightly, might you be looking at that with regard to the elections bill that is anticipated towards the end of this parliamentary session?

I will take the second question first. My officials will love me, because, every time that I appear before a committee, I add to the elections bill. I think that Iain Hockenhull has already said that the bill is getting a lot larger than it was. However, it is important that we look at all the options with regard to the consultation that we are putting forward. We need to make sure that, when we introduce our elections bill, in a number of years’ time, we have something robust to use in the future.

What was your first question again?

At the moment, the responsibility for whether a candidate can stand rests with the candidate, who signs the declaration, and the returning officer relies on that declaration to say that the candidate can go forward. I am wondering whether you have confidence in that system.

Currently, that is how we all put our names forward, and I am comfortable with the process. With all the checks and balances that local authorities do when people put their names forward for election, we should be in a safe place with that. However, as I said when I answered your second question, if people have issues with it, that might be something that we can look at. We would need to investigate that to see whether it is a problem.

One of the challenges, which I raise in relation to this bill, is that it is obviously more likely that that position would become apparent post an election result. Although we are talking about a very small number of individuals, the bill gives them the right to stand under certain circumstances, so it is about whether that process should be looked at beforehand or whether you are reassured and confident that that review can wait until further down the line.

I agree with your second option.

Thank you. My final question on the subject is whether you have concerns that nationals from the same country who are resident in Scotland will have different candidacy rights entirely on the basis of their immigration status.

It is concerning but, again, that is down to the UK Government and what an individual’s rights are and their place in the country at that stage. It is outwith my scope and is more to do with colleagues in the UK Government.

Thank you for that.

In relation to data for local authorities, do you think that some areas are more likely to be affected because they have a greater number of foreign nationals?

Again, it is a small number of people. Looking at it logically, we would probably say that most people, when they come into the country, would go into the main urban settlements in Scotland, and those authorities could probably cope with the demand. It is difficult for us to get that data because, when someone comes into the country, they can move as they like. They might arrive in Glasgow but end up living and working in Birmingham or London, and we do not tend to keep data on that. However, in order to give you total clarity, I will bring in Iain Hockenhull, who might be able to give you some detail on the data that we hold.

Good morning. In the bill’s policy memorandum, we identify two sources of data, one of which is a snapshot of the nationality of those who are resident in Scotland while the other is the applications for settled status. The first table is based purely on Scotland. You will see that, rather frustratingly, the data for England and Wales is broken down by local authority, whereas there is only one entry for Scotland—the 5 million figure. However, the settled status information for Scotland is broken down by local authority. We could email the committee a link to that, if that would be useful.

In summary, we might in the future have a better indication of where foreign nationals reside and whether there are issues for local authorities in that respect, but that is not the case yet.

Again, it is a question of balance. As we should remember with everything related to the bill, a limited number of people are involved. Iain Hockenhull can answer your question on the data.

The data that we have is a snapshot frozen in time. It tells us where people were a year and a half ago, but they might all have moved since then. It is purely indicative.

For example, someone might come into the country via Glasgow and then get a job in Aberdeen, say, or go to university elsewhere. Getting the data is kind of difficult, because we are talking about what happens in normal life.

Good morning, minister. I have just a couple of brief questions.

My understanding is that, as a result of this bill, nationals of Luxembourg, Poland, Portugal and Spain will qualify for candidacy rights under the proposed new schedule 6A to be inserted into the Local Government (Scotland) Act 1973. However, those components of the bill are based on a UK treaty having been signed or its likelihood of being signed imminently. The question, therefore, is: has the UK Government indicated that treaties conferring reciprocal candidacy rights are likely to be signed with any other EU country or, indeed, any other countries at all? Would the bill still be able to cope with our obligations under any new treaties that might be signed?

I hope that I have picked up Bob Doris’s question correctly. If the UK Government extended the list of countries, we would, as I have mentioned, have the opportunity through a statutory instrument to change the list and include any new treaties that had been signed.

That is fine. As things stand, the bill is fit for purpose to cope with that.

Yes.

Treaties get signed, but they also fall into abeyance and countries withdraw from them. It is therefore reasonable to ask whether it would be open to Scottish Government ministers to continue to extend candidacy rights to schedule 6A nationals even when a treaty came to an end by not exercising the powers in paragraph 3 of the proposed new schedule 6A of the 1973 act. “Renege” is perhaps the wrong word, but, if the UK Government were to withdraw from a treaty, would the Scottish Government be keen to ensure that those candidacy rights were not lost? Does the bill contain provisions to ensure that that can happen?

No matter how keen I or other ministers might be for that to remain the case, it would be difficult for us to do that in the bill. After all, it is up to the UK Government to sign the treaties. It would be impossible for us to extend those rights to a country that the UK Government had decided not to have a treaty with any more.

I am looking for clarity. A small number of, say, Portuguese nationals in Scotland—and, of course, across the UK—will have additional rights to stand as a candidate in UK elections. The bill will enable that to happen. If the treaty with Portugal were to be reneged on by the UK Government or if the UK Government were to withdraw from it, would there be nothing in the bill to allow you to continue to extend those candidacy rights to Portuguese nationals in Scotland? Would we have to withdraw those rights, or could they be sustained?

I feel that I have already answered that question. To make you totally happy with the answer, Bob, I ask Iain Hockenhull to confirm what I said a minute ago.

09:45  

The bill very much focuses on the treaties. In drafting it, we have taken the view that it should be a reflection of the treaty arrangements. The expectation is that, if a treaty is cancelled, there will be an obligation to withdraw the rights, regardless of policy preference.

There is a slight difference of terminology in the wording of the bill. When it talks about adding countries, the bill says “must”; when it talks about removing countries, it says “may”. That is not intended to show discretion. It is merely a transitional measure to ensure that, if a treaty is cancelled during an election campaign, we can manage the situation in such a way as not to disrupt people who have already nominated themselves. It is not intended to give discretion to allow the rights to continue despite the treaty having been cancelled.

That is very helpful and gives the clarity that I was looking for. If a treaty is signed, rights are extended; if a treaty is withdrawn, rights are withdrawn.

I have a final question. The Scottish Government will be consulting on an ever-increasing elections bill. I hope that that will extend candidacy rights to all EU nationals in similar situations, irrespective of the four treaties. Can you give us an idea of the timing of the elections bill? I suppose that it gets further delayed every time we ask for something to be added, but there you are.

We are currently working on the consultation. As I said, I am making my officials work hard because I keep adding to it. We are looking towards the end of this year.

Or possibly earlier, depending on how we go.

Depending on my not adding anything further to it. It all comes down to the minister’s discipline. Towards the end of the year, or maybe sooner, we should have the consultation. Then we can move on. As with everything else, the year in which we manage to introduce the bill depends on our getting time for it in the programme for government, but it will definitely be part of this session’s programme.

That is helpful. I have no further questions, but I note that the discipline of this committee is also important, given that additional asks from us may add to the consultation, which you keep having to redraft before you can publish it.

I am not sure that we are asking. We have merely pointed out areas of consultation or data that might be useful.

I seek clarity on one point. Am I right in saying that the bill relates purely to Scottish local government elections and in no way affects national elections?

Yes.

I am grateful for that answer.

Treaties are always between multiple parties. The deputy convener may have been in error in saying that the UK Government might renege—it might be the other side that decides to pull out of the treaty, not the UK Government.

Minister, the Delegated Powers and Law Reform Committee wrote to you on 1 March regarding the powers and duties that we are discussing. Will you respond to that letter soon, and will this committee see that response? We were copied in to the original letter from the DPLR Committee.

My answers will be brief. Yes, and yes.

That is perfect. When you respond to that letter, will you say that it is a “duty” to remove a country and not just a policy decision whether to keep people on the list? If a country pulls out and the treaty is stopped, does that not end the agreement?

I might have misunderstood your question. I was saying that I will send you a copy of the letter, and I will do that timeously. Are you asking me about the issue that the deputy convener brought up?

I am. That is the whole point of the letter, which you have, no doubt, read and understood.

No problem. That would be a case of what I said to the deputy convener. Regardless of who the individual is or which nation pulls out, this Parliament will follow suit.

Thank you minister. You will be pleased to know that that is my only question.

The letter from Stuart McMillan was dated 1 March. I will put your civil servants on the spot. They have requested an answer by 8 March—will that be achievable?

I will just double check with my officials. [Interruption.] Yes, it will be.

Thank you for that confirmation.

I want to touch on the financial implications. The financial memorandum notes that the bill could have a cost implication for local authorities. Are you open to continued dialogue with local authorities on funding for elections, particularly if there is a greater need for by-elections because some individuals have limited leave to remain? By-elections can cost in the region of £50,000.

I am sorry if I sound as though I am repeating myself, but it comes down to the limited number of individuals involved. Consider the general population and how many people put their names forward to local authorities, and then apply that to a part of the community where a limited number of people would proceed. An even tinier number of people would be affected should there be any discrepancies and there is a by-election because someone has put their name forward when they should not have.

I am not saying that that is impossible but, if I were a betting man, I would not be betting on the chances of that happening. I am not saying that it could not happen; it could in extreme cases, but the numbers are such that there would be very few people to whom that would apply. On the whole, compared to by-elections that currently take place in local authorities, I do not think that the number will change to a great degree.

To give you more detail and make you feel even better, I will bring in Iain Hockenhull.

One reason why the franchise legislation in 2020 did not extend candidacy rights further was the concern that, if someone were elected with limited leave to remain—say two and a half years—which expired during their term of office, they would be obliged to resign and there would be a by-election.

It is a theoretical possibility that the bill will allow people with limited leave to remain to become councillors if they want to. As the minister said, the number of people would be very small: someone would have to want to stand for election, win the election, meet the normal tests for standing for local government election of having a connection of some sort, whether that is employment or residence in that community, and be in the group of people who do not have settled or pre-settled status but who are qualified regardless and have long-lasting leave. A person would have to have limited leave to remain and be from one of the four countries involved.

The population figures for people from those four countries are not high in Scotland—they are in the thousands. That means that the chances of that situation arising must be quite low, but it cannot be ruled out, which is why we put the information in the financial memorandum.

The implication is that a vacancy could arise of more than six months. As a local councillor in South Lanarkshire, I have to attend meetings, whether of the full council or other meetings, within six months. Is there scope in the bill to amend that?

Do you mean scope to modify the existing law on that?

Yes.

I apologise—I jumped in there.

I was going to say that that is what it is, and it would stay the same, because that is the role of a local councillor. I have been a councillor, and half of me thinks, “Why would somebody actually want to be a councillor?” I am sure that you will agree with me on that, Collette. It is a hard job for anyone, and you are literally on the front line of politics.

The important part of the bill is the enabling part for people who want to represent their community. In some cases, the communities involved are small hubs throughout the country. The bill will give people that opportunity. That does not take away from the fact that, as you and I and others here know, it is a difficult job. You are on the front line of politics. You are literally just down the street from many of the individuals you represent.

Absolutely—it is definitely a vocation. That is what I keep telling myself, anyway. Thank you. I have no further questions.

I used to have a colleague called Jim Mitchell, who was a Scottish National Party councillor in Renfrewshire for 35 years, and he used to say that something like 3 per cent of the population actually become involved in politics and then we spend the rest of the time falling out and shouting at each other. He used to ask, “Why?”

To follow on, we are talking about tiny potential numbers, but the costs that fall on a local authority for a by-election are quite high. Would it not be possible—not necessarily through the bill, but as a piece of open evidence—for the Government to undertake to consider giving financial support to local authorities in that very particular circumstance, which, as you say, is unlikely to occur? Because it is so unlikely to occur, it could cause financial challenges for a local authority if it comes about.

I would be very surprised if, over the piece, we ended up with a record number of by-elections in local authorities and that that was causing financial problems for an authority. Should that ever happen, would we have a watching brief on that and possibly have a look at it? Yes, that would be the case. However, I find it difficult to think that we would end up with such a mass of by-elections.

It would be interesting to check how many by-elections there are, on average, over a given period. I will endeavour to look at that and get back to the committee with the detail. On the whole, I would be very surprised if that happened, but, if it did, I would keep an eye on it.

So, if it occurs, a reasonable request would not be unreasonably refused. Could we phrase it like that?

Indeed—if we ended up in a place where I do not think that we are going to end up.

Absolutely, but that is why it might be helpful to examine the matter. It is a very unlikely event but, if it occurs, the reason why someone was a candidate at one stage but subsequently could not be one might rest completely outwith the local authority. I am grateful for your answer.

I have one last question, which comes out of the evidence that we have heard and relates to the policy memorandum for the bill. Towards the end of the various certifications that are made in the memorandum, there is one that relates to island communities, which states that

“no disproportionate effect on island communities”

is envisaged.

My question relates to what we have heard in respect of the data. Are you confident with that reassurance, given the different level of confidence that exists about how far the measure extends and whom it captures? Some island communities have been incredibly open to people moving to them from not just across the United Kingdom but across the European Union. Are you confident that that statement is still correct?

I am confident that it is still correct.

I do not want to labour this point, and I agree with you that many island communities have embraced people from other parts of the world but, again, we should look at the numbers. I have a colleague who says, “Always look at the numbers, George.” If we do that, we see that most people who come to start a new life in Scotland will be in our urban population, and probably in our main cities. I take your point on board, but I am still okay with everything as it is.

That is excellent. There being no further questions, I thank you, minister, and those who have attended with you for your evidence. The committee will consider the matter later.

09:59 Meeting suspended.  

10:02 On resuming—