SPPA/S5/21/6/A

STANDARDS, PROCEDURES AND PUBLIC APPOINTMENTS COMMITTEE

AGENDA

6th Meeting, 2021 (Session 5)

Thursday 4 March 2021

The Committee will meet at 9.00 am in a virtual meeting.

1. Decision on taking business in private: The Committee will decide whether to take item 6 in private.

2. Subordinate legislation: The Committee will take evidence on the (Elections etc.) Amendment (Coronavirus) Order 2021 [draft] and the Scottish Parliament General Election from—

Graeme Dey, Minister for Parliamentary Business and Veterans;

Iain Hockenhull, Elections Policy Adviser, Roddy Angus, Elections Policy Advisor, and Colin Brown, Senior Principal Legal Officer, .

3. Subordinate legislation: Graeme Dey (Minister for Parliamentary Business and Veterans) to move—S5M-24190—That the Standards, Procedures and Public Appointments Committee recommends that the Scottish Parliament (Elections etc.) Amendment (Coronavirus) Order 2021 [draft] be approved.

4. Scottish Parliament practices and procedures: The Committee will take evidence on the Scottish Parliament practices and procedures in relation to its business in session 5 from—

Graeme Dey, Minister for Parliamentary Business and Veterans;

Steven Macgregor, Head of Parliament and Legislation Unit, and Al Gibson, Policy Adviser, Scottish Government.

5. Annual report: The Committee will consider a draft annual report for the parliamentary year from 12 May 2020 to 24 March 2021

6. Scottish Parliament practices and procedures: The Committee will consider the evidence heard earlier in the meeting. SPPA/S5/21/6/A

7. Standing Order Rule Changes (in private): The Committee will consider a draft report and draft Standing Order Rule Changes to Private and Hybrid Bill procedures.

8. Standing Order Rule Changes (in private): The Committee will consider a draft report and draft Standing Order Rule Changes in relation to the Public Petitions system.

9. Standing Order Rule Changes (in private): The Committee will consider a draft report and a draft Standing Order Rule Change in relation to SPCB urgent questions.

10. Code of Conduct Rule changes (in private): The Committee will consider a draft report and draft Code of Conduct Rule changes in relation to the Register of Interests.

Katy Orr Clerk to the Standards, Procedures and Public Appointments Committee Room Tower T3.40 The Scottish Parliament Tel: 0131 348 5239 Email: [email protected]

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The papers for this meeting are as follows—

Agenda item 2

PRIVATE PAPER SPPA/S5/21/6/1 (P)

SSI cover note SPPA/S5/21/6/2

Agenda item 4

PRIVATE PAPER SPPA/S5/21/6/3 (P)

Agenda item 5

Annual Report SPPA/S5/21/6/4

Agenda item 7

PRIVATE PAPER SPPA/S5/21/6/5 (P)

SPPA/S5/21/6/A

Agenda item 8

PRIVATE PAPER SPPA/S5/21/6/6 (P)

Agenda item 9

PRIVATE PAPER SPPA/S5/21/6/7 (P)

Agenda item 10

PRIVATE PAPER SPPA/S5/21/6/8 (P)

SSPA/S5/21/6/2

Standards, Procedures and Public Appointments Committee

6th Meeting 2021 (Session 5), Thursday 4 March 2021

SSI 2021/draft The Scottish Parliament (Elections etc.) Amendment (Coronavirus) Order 2021

Type of Instrument: Draft Affirmative Laid Date: 17 February 2021 Meeting Date: 4 March 2021 Minister to attend meeting: Yes Motion for annulment lodged: No Drawn to the Parliament’s attention by the Delegated Powers and Law Reform Committee?: No Reporting deadline: 28 March 2021

Committee consideration 1. The Committee will take evidence from Graeme Dey MSP, Minister for Parliamentary Business and Veterans, and then formally consider this instrument today.

Purpose

2. This Order amends the Scottish Parliament (Elections etc.) Order 2015 (“the 2015 Order”) to provide for an elector, who has already appointed a proxy to vote for them, to change their proxy if the original proxy would not now be able to vote in person because they are following Scottish Government or medical advice by shielding or self-isolating due to coronavirus.

3. The Order widens the interpretation of “disability” in relation to emergency proxies.

4. The Order also corrects a minor cross-referencing error in the 2015 Order.

5. A copy of the Scottish Government’s Policy Note is included in Annexe A.

Delegated Powers and Law Reform Committee (DPLRC)

6. The DPLRC considered this instrument at its meeting on 23 February 2021 and reported that it had no comments to make.

Procedure for Affirmative Instruments

7. The draft Order was laid on 17 February 2021 and referred to the Standards, Procedures and Public Appointments Committee. The instrument is subject to affirmative procedure (Rule 10.6). It is for the Standards, Procedures and Public Appointments Committee to recommend to the Parliament whether the Order should be approved. The Minister has, by motion S5M-24190 (set out in the agenda), proposed that the Committee recommends the approval of the Order.

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Decision

8. The Committee must decide whether or not to agree to the motion, and then report to Parliament accordingly, by 28 March 2021.

9. Should the Committee agree to the motion, it is invited to delegate the final approval of a short, factual report on the instrument to the Convener.

Joanna Hardy Senior Assistant Clerk Standards Procedures and Public Appointments Committee March 2021

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Annexe A

POLICY NOTE

The Scottish Parliament (Elections etc.) Amendment (Coronavirus) Order 2021

SSI 2021/XXX

1. The above instrument was made in exercise of the powers conferred by sections 12(1) and 113(2), (4) and (5) of the Act 1998 (“the 1998 Act”) and all other powers enabling the Scottish Ministers to do so. The instrument is subject to affirmative procedure.

SUMMARY BOX

This Order provides for an elector, who has already appointed a proxy to vote for them, to change their proxy if the original proxy would not now be able to vote in person because they are following Scottish Government or medical advice by shielding or self-isolating due to coronavirus.

In addition this opportunity is also being taken to correct a minor error which was identified during the drafting of this Order and to widen the interpretation of “disability” in relation to emergency proxies.

POLICY OBJECTIVES

2. The purpose of this instrument is to amend the Scottish Parliament (Elections etc.) Order 2015 (“the 2015 Order”, SSI 2015/425), which was recently amended by the Scottish Parliament (Elections etc.) (Miscellaneous Amendments) Order 2020 (“the 2020 Order”, SSI 2020/426). The 2015 Order provides the rules governing the conduct of elections of members of the Scottish Parliament.

3. In terms of section 2(2) of the 1998 Act (as amended by the Scottish Elections (Reform) Act 2020), the next ordinary general election to the Scottish Parliament is scheduled to take place on 6 May 2021.

4. If approved, this Order will apply to any election for which the date of the poll is on or after 5 April 2021, the same coming into force date as for the 2020 Order. The same date has been chosen as this Order amends some of the provisions contained in the 2020 Order and it is therefore sensible to have both orders coming into force at the same time.

5. The changes set out in these regulations are as follows:

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CORRECTION OF CROSS REFERENCE (ARTICLE 2(2))

6. During the drafting process for this Order, an error in a cross-reference was picked up. Article 2(2) corrects this error. The reference to paragraph 7 of schedule 3 should refer to paragraph 8, the general proxy requirements.

EMERGENCY APPOINTMENT OF PROXY – DISABILITY (ARTICLE 2(3))

7. The 2020 Order included a new provision which allows for an “emergency” proxy appointment to be made in a situation where even though an elector’s disability happened before the deadline for a “normal” proxy appointment the elector was unable to apply before that deadline. If such a situation were now to arise, the individual can apply but they must provide an explanation of why they were unable to apply before the normal deadline.

8. Subsequent to the making of the 2020 Order, the Electoral Commission alerted the Scottish Government to the risk that the definition of “disability” contained in the amending provision in the 2020 Order may limit the effect of the new provision in a way which was not intended. This opportunity is therefore being taken to delete that definition. The effect of deleting this definition is that the general definition of “disability” in article 2 of the 2015 Order will apply, as it does to other uses of “disability” in schedule 3. This will allow “disability” to take its “natural” meaning, and pick up short-term incapacitating events that otherwise may inadvertently have been excluded.

EMERGENCY CHANGE OF PROXY: CORONAVIRUS (ARTICLE 2(4) AND 2(5))

9. The Electoral Commission has expressed concerns that an elector who has already appointed a proxy to vote on their behalf may be denied their vote if their proxy has to subsequently shield or self-isolate due to coronavirus restrictions and therefore cannot attend the polling place. The 2020 Order allowed for an elector who has to shield or self isolate to appoint a proxy, but it did not cover the situation of the appointed proxy having to self-isolate.

10. Therefore provision is being made for an elector to appoint a replacement person as their proxy, should their original proxy be unable to vote due to the need to follow either Scottish Government or medical advice in relation to coronavirus. An elector will be able to appoint a new proxy up until 5pm on the day of the poll, in line with the existing deadline for the appointment of emergency proxies. The new proxy must meet the usual requirements for appointment as a proxy.

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11. The same sunsetting provisions as set out for the coronavirus proxy provisions in the 2020 Order have been applied, but with the specific date (10 December 2022) inserted instead of references to the date of the 2020 Order coming into force, since that date is now known.

CONSULTATION

12. To ensure that this Order was in force in time for the May 2021 Scottish Parliament election, a brief consultation on the provisions was undertaken.

13. In addition to the statutory requirement to consult with the Electoral Commission, the following bodies and stakeholders were consulted on the draft Order:

• Electoral Management Board for Scotland • Association of Electoral Administrators • Electoral Registration Committee of the Scottish Assessors Association • Society of Local Authority Lawyers & Administrators in Scotland • Society of Local Authority Chief Executives and Senior Managers • COSLA • Political Parties represented in the Scottish Parliament

Responses were received from:

• Electoral Commission; and • Electoral Registration Committee of the Scottish Assessors Association

As a result of concerns expressed by Electoral Registration Officers over potential needs for change to electoral management systems, we revised our approach to the emergency change of proxy provisions in order to better fit with existing practices around proxy appointments.

IMPACT ASSESSMENTS

14. The Scottish Government view is that this Order has no significant impact on child rights and wellbeing, equality, data protection, the environment, fairness or island communities and therefore no impact assessments are required for those areas.

BUSINESS AND REGULATORY IMPACT ASSESSMENT (BRIA)

15. The Scottish Government does not consider that a BRIA is necessary as the policy changes will not lead to any new costs or savings for business, third or public

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sector organisations, regulators or consumers. There is no new additional cost on the public sector as the Scottish Government will meet any costs of associated activity and there is no transfer of costs or benefits from one group to another.

FINANCIAL IMPLICATIONS

16. It is estimated that the cost of running the Scottish Parliament general election in May 2021 will be £25.6 million. However, this is subject to change depending on if the response to the pandemic changes over the coming months. This Order is not expected to result in any significant increased costs.

Scottish Government Directorate for Constitution and Cabinet

February 2021

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Standards, Procedures and Public Appointments Committee

6th Meeting 2021 (Session 5), Thursday 4 March 2021

Annual Report

Introduction

This report covers the work of the Standards, Procedures and Public Appointments Committee during the Parliamentary year between 12 May 2020 and 24 March 2021.

Clerks Standards, Procedures and Public Appointments Committee March 2021

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Membership Changes

1. Previous Members of the Committee during the reporting year • Mark Ruskell MSP (4 September 2018 - 16 September 2020) • Alexander Stewart MSP (25 February 2020- 20 August 2020)

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Inquiries and Reports

Resilience of the Scottish Parliament's practices and procedures

2. Following the introduction of “lockdown” provisions in late March 2020 in response to the COVID-19 pandemic, the Scottish Parliament adapted its practices and procedures through the variation and suspension of some of the Rules in the Parliament's Standing Orders. Since April 2020, the Chamber and Committees of the Parliament met in a mix of virtual, hybrid and socially- distanced formats to ensure that parliamentary business continued. 3. The Committee sought to evaluate those changes with a view to recommending permanent changes to Standing Orders to ensure that the Scottish Parliament can continue to function as effectively as possible in the context of the ongoing public health situation. The inquiry also considered

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wider changes to the Parliament's practices and procedures to promote the resilience of parliamentary business in the future. 4. At its meeting on 18 February 2021 the Committee approved the Standing Order rule changes. The Committee published its report on 23 February 2021. 5. The Standing Order rule changes were approved by Parliament on 3 March and the majority of the changes will come into force at the beginning of the next parliamentary session. A rule change providing for the temporary amendment of Standing Orders came into effect on 8 March 2021. Commissioner complaints

6. The Committee has considered one report from the Commissioner for Ethical Standards in Public Life in Scotland (the Commissioner) in this parliamentary year, which was a complaint against Sarah Boyack MSP. 7. There were two parts to the complaint. • First, that Sarah Boyack did not include remuneration from her previous employment as the Head of Public Affairs at Scottish Federation of Housing Associations (SFHA) in her Register of Interests. • Second, that she did not declare this remuneration as an interest at a meeting of the Local Government and Communities Committee on 11 September 2019. 8. The Committee was unanimous in the decisions reached on the complaint. The Committee agreed with the Commissioner's findings in fact. The Committee also agreed with the Commissioner's conclusions— • That the conduct set out in the first part of the complaint was a breach of the Code of Conduct and the Members Interest Act 2006; and • That the conduct set out in the second part of the complaint was not a breach of the Code or the Act. Standing Order rule changes

9. In this parliamentary year the Committee identified changes which are required to Standing Orders in order to implement recommendations on the following- • SPCB Urgent Questions • Private and Hybrid Bill Procedures • Public Petitions System • Financial scrutiny of Bills • Equalities and Human Rights' Committee remit • Legislation

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Legislation

Bills

Scottish General Election (Coronavirus) Bill

10. The Scottish Government introduced the Scottish General Election (Coronavirus) Bill to make provision for arrangements for the Scottish general election in response to Covid-19. The election is planned for 6 May 2021. The legislation: • changes the deadline for postal vote applications to give more time to process an expected high level of requests to vote by post • makes “dissolution” (the time before the election when MSPs no longer hold office) last 1 day, allowing the Parliament to make decisions if the election needs to be postponed

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• gives the Scottish Ministers power to hold an all-postal election and to hold polling over multiple days, if appropriate • allows flexible timing for the first meeting of the new Parliament and the election of a new Presiding Officer • gives a reserve power to the current Presiding Officer to postpone the 2021 election by up to 6 months in certain circumstances 11. Following the introduction of the Bill the Committee issued a call for evidence and received 36 submissions. 12. The Committee took evidence at Stage 1 on the Bill at its meeting on 19 November 2020, and published its Stage 1 Report on 26 November 2020. 13. At its meeting on 17 December 2020 the Committee considered the Bill at Stage 2. 14. The Stage 3 debate was held on 23 December 2020 and the Bill received Royal Assent on 31 January 2021. Committee Bills

Scottish Parliament (Assistance for Political Parties) Bill

15. The Committee's Bill on assistance for political parties completed its passage through the Parliament. The Stage 1 debate took place on 10 September 2020, Stage 2 was held on 3 December and the Bill passed Stage 3 on 2 February 2021. The aim of the Bill was to enable the Parliament to make provision by resolution for payments to registered political parties for the purpose of assisting members of the Parliament who are connected with the parties to perform their Parliamentary duties. Proposal for a Committee Bill - Complaints against MSPs - Amendment of the Scottish Parliamentary Standards Commissioner Act 2002

16. The Committee agreed to instruct a Committee Bill to which would amend theScottish Parliamentary Standards Commissioner Act 2002 to address historical misconduct. The Bill seeks to: • remove an admissibility requirement that a complaint be made within one year; and • to allow the Commissioner to investigate complaints in relation to sexual harassment to be made by Members’ own staff who were employed by an MSP directly or as part of a pooled arrangement. 17. The Committee published its report on a proposal for a Committee Bill on 28 June 2020. 18. The Parliament debated the Committee's proposal report on 29 September 2020 and agreed to the Committee's proposal to introduce a Bill to giving effect to the policy set out in its report. 19. The Parliament debated and agreed the Bill at Stage 3 on 4 March 2021.

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SSIs

20. During the Parliamentary year, the Committee considered eight Scottish Statutory Instruments (SSIs), four under the affirmative procedure and four under the negative procedure.

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Equalities

21. In previous years the Committee has been updating the Code in relation to sexual harassment and sexist behaviour. During the course of this work the Committee noted that the Code of Conduct did not cover MSPs' conduct towards the treatment of individuals who do not fall in to certain categories – constituents and people visiting the Parliament for example. 22. The Committee agreed to update the rules in the Code of Conduct to ensure that MSPs must not behave in a manner towards any individuals they are in contact with in their capacity as MSPs that involves bullying, harassment (including sexual harassment), or any other inappropriate behaviour.

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Cross-Party Groups

23. A total of 104 Cross-Party Groups (CPGs) are now active. 24. CPGs normally cease to exist at dissolution. The Scottish General Election (Coronavirus) Act means that dissolution will not be until 5 May 2021. The Committee therefore agreed that all CPGs will cease to exist from midnight on 24 March 2021. 25. In February 2020 the Committee considered an annual monitoring report on Groups' compliance with the Code of Conduct. The Committee agreed to take no action against any Groups who had breached the Code of Conduct due to the restrictions caused by the Coronavirus.

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Meetings

26. The Committee met 23 times during the parliamentary year. 13 meetings were held entirely in private, no meetings were held entirely in public and 10 meetings included items in private. 27. The items considered in private included the Committee's work programme, consideration of complaints, draft Committee reports and draft Standing Order rule changes. 28. This year, of the 30 witness appearances, 73% of our witnesses were male and 27% were female. This overall figure includes seven appearances by the Minister for Parliamentary Business and Veterans who was male.

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