Legislation (Honours) 2024 — class drafting assessment
I have in recent years shared the drafting assessments set in the Legislation (honours) class at Edinburgh University — where students are asked to prepare a bill based on instructions which are drawn from a real consultation paper making a proposal for a members bill in the scottish parliament. The consultation paper gives an indication of the policy, the background law, and draws on some comparative material, which can be useful for students in preparing the bill. And the students prepare a piece of legislation (having had five seminars on drafting and five seminars on legislative interpretation). Students have five weeks to prepare the draft bill and accompanying minute.
The exercise set for this year was as follows:
Drafting exercise
From: Scottish Parliament Non-Government Bills Unit
To: Parliamentary Counsel
Proposed Removal from Office and Recall (Members of the Scottish Parliament) Bill
29th March 2024
BACKGROUND
1. Graham Simpson MSP has put a forward a proposal to introduce a new bill to provide for the recall and removal of Members of the Scottish Parliament. The page for his proposal is available online at https://www.parliament.scot/bills-and-laws/proposals-for-bills/proposed-removal-from-office-and-recall-scottish-parliament-bill . This page contains links to a consultation paper produced by Mr Simpson https://www.parliament.scot/-/media/files/legislation/proposed-members-bills/final-consultation-document-signed-off-by-gs.pdf , and a summary of consultation responses received by Mr Simpson with a response by Mr Simpson to the consultation responses is available at https://www.parliament.scot/-/media/files/legislation/proposed-members-bills/summary-of-consultation-responsesremoval-and-recall-of-members.pdf .
2. The Scottish Parliament Information Centre has carried out research on international models for recall of elected politicians. This is available at https://www.grahamsimpson.org.uk/sites/www.grahamsimpson.org.uk/files/2021-12/SPICE%20-%20Recall%20of%20elected%20representatives%20September%202021.pdf and summarises the position across jurisdictions.
3. Since the proposal was put forward the Secretary of State for Scotland, Alister Jack, has indicated that the UK government will be willing to facilitate legislation on this topic and ensure it is within the powers of the Scottish parliament. https://www.heraldscotland.com/news/24202291.jack-offers-help-yousaf-come-recall-mechanism-msps/ This indicates that in preparation of the legislation in implement of the instructions issues of legislative competence for the Scottish Parliament do not need to be considered as this will be resolved separately by the Government legal service in negotiation with the Scotland office. The letter from the Secretary of State confirming there will be no legislative competence issues is attached.
4. The consultation paper from Mr Simpson https://www.parliament.scot/-/media/files/legislation/proposed-members-bills/final-consultation-document-signed-off-by-gs.pdf sets out the legislative background to the reform at pages 10 to 16 and sets out the objectives of the proposed bill at pages 1 to 6 and pages 16ff.
5. There is no indication of legislation coming forward from the Scottish government on this topic in the short term and so any bill produced should not be superseded by government work.
6. Other legal systems The Scottish Parliament Information Centre paper referred to in paragraph 2 summarises legislative responses in other systems. At page 47 of the summary of consultation responses (referred to in paragraph 1 above) refers to two examples of legislation in Colorado and California. The Colorado legislation is here https://leg.colorado.gov/sites/default/files/2023a_1185_signed.pdf and the California legislation is in Article II of the California Constitution https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=CONS&division=&title=&part=&chapter=&article=II although there may be further legislation for the detailed rules. In California it is possible to have a recall and election for the role take place in the same procedure. A recent example of this arising was in 2021 when there was a recall election against Governor Newsom.
7. United Kingdom legislation At United Kingdom parliamentary level legislation was enacted in 2015 to allow for Members of Parliament to be recalled. The Recall of MPs Act 2015 has been used a number of times, and has applied once in relation to a Scottish member of parliament. This legislation makes provision for the conditions when a Member of the Scottish Parliament may be recalled. https://www.legislation.gov.uk/ukpga/2015/25/contents/enacted
8. Background law — Mr Simpson’s paper Mr Simpson’s consultation paper sets out the background law in relation to the topic. This is contained in pages 10 to 16 of his paper. Rather than repeat this in detail counsel is referred to that outline of the background law. We draw particular attention to the following.
9. At local government level the Local Government (Scotland) Act 1973, section 35 provides that a councillor can be removed from office if they fail to attend the council for a six month period. There are provisions protecting those on maternity leave or absent through ill health. The terms of the provision are quoted in Mr Simpson’s consultation paper.
10. Sections 15 to 18 of the Scotland Act 1998 provide the rules for disqualification from the Scottish Parliament. Counsel is referred to these. They refer to the terms of the House of Commons Disqualification Act 1975 section 1 (1) which exclude various office holders, and generally make reference to other exclusions or disqualifications from Parliament. This includes the Representation of the People Act 1981, section 1 which provides that where a person has been convicted and sentenced to imprisonment for a period of more than one year they will be disqualified from membership of the House of Commons. This is applied to the Scottish Parliamentary membership by section 15 (1)(b).
11. Section 16 of the Scotland Act 1998 provides that some people who would be excluded from being a member of the House of Commons are not prohibited from being members of the Scottish Parliament. It is important to ensure that when the bill is being prepared there is no impact on these exceptions, although clearly if someone is to be disqualified from membership of the Scottish Parliament under the proposed bill then simply falling within one of the categories in section 16 of the Scotland Act should not be enough to save the person’s membership.
12. The Interests of Members of the Scottish Parliament Act 2006 sections 15 to 17A provide sanctions where a Member of the Scottish Parliament has failed to register financial interests, or has been involved in paid advocacy, or has failed to comply with the other terms of the 2006 Act, the Member of the Scottish Parliament may be guilty of a criminal offence, and barred from participating in parliamentary proceedings in relation to specific matters or generally excluded from participation in the Parliament. This does not amount to disqualification from membership of the Scottish Parliament though. Counsel is referred to the 2006 Act and specifically the sanctions provisions.
13. The background law in relation to membership of the Scottish Parliament is pieced together from various pieces of legislation interacting with the Scotland Act 1998. This background law also needs to be considered within the structures of the Scottish Parliament. Counsel may find it helpful to review the discussion in Himsworth and O’Neill, Scotland’s Constitution: law and practice (4th edn, 2021) paras 5.3 (on the structure of the Scottish parliament and elections), 5.5 to 5.6 (on elections and who can vote), 5.7 (on entitlement to be a candidate or member of parliament), 5.10 to 5.11 (on the tenure of Members of Parliament), 5.18 (on Holyrood committees), and 5.19 to 5.21 (on MPs and MSPs including standards and privileges). This background material will be useful to clarify the context in which this bill is to be made.
Overall objective and structure of the legislation
14. Mr Simpson’s proposal is to introduce three principal elements to allow Members of the Scottish Parliament to be removed from office. These are detailed below. But before considering the detail it is not clear to us whether this is best achieved by amendment of existing legislation — including the Scotland Act — making targeted provision within specific areas, or whether there should be freestanding legislation. We can see merits in either approach but counsel is best placed to determine which would work most effectively and the approach to be taken is left to counsel.
15. The three objectives identified by Mr Simpson are as follows.
16. First, where the Member of the Scottish Parliament does not actively participate in membership to an appropriate standard they should be removed.
17. Second, where a Member of the Scottish Parliament is convicted and sentenced to imprisonment that Member should be disqualified from being a Member.
18. Third, to introduce a system to allow for the recall of Members of the Scottish Parliament.
Provisions that are required
Sentence of imprisonment
19. In accordance with the position taken by Mr Simpson in his summary of consultation responses at page 46 the bill should provide that instead of the one year period triggering disqualification at the moment this should be replaced with a provision relating to custodial sentences of six months or more.
20. In his consultation paper at pages 23 to 24 Mr Simpson suggested that he would wait for consultation responses on when the provision was triggered and was not certain that it should await final disposal of an appeal. It is possible to have appeals against conviction and against sentence. He has not reached a final view on this.
21. Given that no decision has been reached at the moment we would not want to interfere with the current law here other than to change the relevant length of the sentence but counsel may want to consider the interaction with the recall provisions and ensure there is some consistency with them.
Removal for lack of participation
22. The policy objective here is discussed by Mr Simpson at pages 16 to 23 of his consultation paper. Generally where a member of the Scottish Parliament does not participate in parliamentary proceedings for a period of six months they should be removed as a member. In the Scottish Parliament it is possible to participate in proceedings remotely through remote voting or involvement to ask questions or participate in committees. It is argued by Mr Simpson in his summary of consultation responses that those options for remote participation indicate approaches here should strict.
23. To determine whether there is a lack of participation for a six month period it will be necessary to show the MSP has failed to attend or participate in parliamentary meetings in the chamber or committees for six months. While it is noted that parliamentary business can include doing constituency work outside the parliament building failure to engage with the formal parliamentary business appears an appropriate test. Such participation can be in person or remotely. Maybe it would be worth making this clear.
24. The Scottish Parliament Corporate body should confirm participation and if a member fails to participate for six months should report this to the Scottish Parliament Standards, Procedures and Public Appointments Committee (hereafter the “standards committee”). That committee should initiate an inquiry as soon as possible to determine whether the member should be excluded from the Parliament.
25. The inquiry should be carried out by a separate committee with five non political lay members and five members of the committee with a chair who is not a member of parliament. The lay members should be highly regarded individuals who have experience in public affairs matters. They should be appointed by the presiding officer.
26. The inquiry committee should only be allowed to find that a member should not be excluded if it is satisfied that there are exceptional circumstances that justify the lack of participation. These could include circumstances like illness of the member or a member of the family or serious life events such a matrimonial breakdown. We should probably make sure that there is a bit of flexibility given to the inquiry committee but it might be useful to set out the sorts of things we have in mind.
27. When the inquiry committee reaches a decision it should report to the standards committee which should then report the matter to the parliament. The presiding officer should report the decision to the parliament and at that point the member should be excluded.
28. it is important in establishing this legislative regime that members who are not participating for legitimate reasons are not affected. Where someone is on maternity leave or will be on sick leave for a lengthy period of time (for mental or physical conditions) the standards committee should be able to confirm in advance that a period of absence is acceptable and the participation rule should not apply for as long as the standards committee agrees.
29. If the member was aware in advance of likely absence and did not seek approval exclusion for non-participation should still be possible unless there were good grounds for not letting the standards committee know in advance. The inquiry committee can make a decision on that when they hear a non-participation case.
30. Rights of the member We want to make sure that this process gives the member a chance to be heard before the inquiry committee and to have the possibility of review of the decision of the inquiry committee. There should be no attempt to exclude judicial review of the final decision of the inquiry committee but any action should be taken within two weeks of the decision. And if there is judicial review the presiding officer should not be able to make a statement of the standards and inquiry committee decisions until the judicial review process is complete.
Implications of the first two grounds of removal
31. If the member who is removed or excluded is a constituency MSP there should be a by election in the constituency in accordance with the normal rules for by elections. We do not think any special legislation is required for this. However, it should be made clear that the member who has been removed should not be able to stand in the by election.
32. If the member who is removed or excluded is a regional list MSP the vacancy arising should be filled in the normal way with the next person on the list being elected.
33. Whether the person removed is a list or constituency MSP the person who is removed as a member of the Scottish parliament on either ground should not be eligible to be a candidate or an elected member. Provision to this effect is required.
Recall of members
34. As matters stand it is not possible to prepare fully worked up legislation in relation to the third element of Mr Simpson’s proposal. There is a particular complexity on the mechanics and procedural issues around recall when there are list MSPs in comparison with constituency MSPs. At the moment therefore we would simply ask for some provisions to identify some issues before the detailed rules for some aspects of this are instructed.
35. Mr Simpson’s consultation paper considers the recall of members at pages 25 to 29 and are further considered at pages 47 to 48 of the summary of consultation responses.
36. We would like provisions identifying the grounds that can trigger a recall procedure. The grounds would be either: (a) being excluded from proceedings of the Scottish parliament for a period of ten days or more; or (b) being subject to a fine of at least level 5 on the standard scale (or a period of imprisonment of less than the six month period required for the removal of MSPs for custodial sentences on conviction).
37. For the former requirement the exclusion can be under the 2006 Act on members interests or on any other determination made by the Scottish Parliament following a decision by the standards committee.
38. For the second requirement it is important to ensure that this ties in with the custodial sentences removal requirement previously instructed. The recall procedure should not be capable of being initiated until the appeal process for criminal sentencing has been concluded. This is the approach in the UK legislation.
39. If one of the trigger events arises the presiding officer should inform the returning officer in the relevant area (either the region for a list MSP or the constituency for a constituency MSP) and the returning officer should be able to initiate a recall procedure notifying all electors in the constituency or region that a trigger event has arisen and that the member may be recalled.
40. A petition would then be made available for signature by electors in the constituency or region. The petition would remain open for signature for a period to be determined by regulations. The time periods could differ for constituency and regional recall petitions.
41. If ten per cent of the eligible electors in a constituency sign the recall petition the member would be removed and a by election called. The member removed by the recall petition would be entitled to stand in the by election. The normal rules of by elections to the Scottish Parliament would apply.
42. The detailed rules for regional recall petitions have not yet been worked up. Any observations counsel had that could be taken into account in instructing the legislation would be appreciated.
General points
43. We leave it to counsel to decide whether to draft this wholly as freestanding legislation, or to amend existing legislation.
44. We leave the choice of the Bill’s long title and short title to counsel.
45. As is customary, the provisions dealing with short title and commencement should come into force on the day after Royal Assent. Everything else is to be commenced by regulations made by the Scottish Ministers.
46. We are conscious that in the review of the background legislation we have not necessarily been exhaustive in out researches and power to amend or repeal legislation may be required.
47. We are aware that counsel may identify some matters on which further instructions are required and it would be helpful if these instructions raise any questions.
EXERCISE
The student is to produce a draft bill in response to these instructions.
The draft bill is to be accompanied with a minute from the parliamentary counsel to the Scottish Parliament Non-Government Bills Unit explaining drafting decisions made in the draft and asking for clarification or further information on issues that are not clear in the instructions or which arise in implementing the instructions.
There is no set word limit for minimum words as there will be differences of approach that you can take in drafting (see para 43 of the instructions). The decisions you take will have an impact on your approach and as a result on the length of the draft you produce (and some of these decisions should be explained in your minute). Please note though that your draft bill and the minute attached should in no circumstances be longer than 4000 words in length (although please do not view this as a target word count — very good answers can be done in fewer words than that).
