Background Paper

Standards, Procedures and Public Appointments Committee Presiding Officer Elections – background paper 1. The Scotland Act 2012 makes some changes to the provisions for PO/DPO elections which need to be reflected in Standing Orders. 2. The SPPA Committee agreed that it would be appropriate at the same time to review all the relevant Standing Orders as this has not been done since the Parliament was established. Background to Scotland Act 3. The relevant extracts from the Calman Commission report, the Scotland Act 1998 and the Scotland Act 2012 are attached at Annexe A. 4. The Scotland Act 1998 provides for the PO and two deputies to be elected at the first meeting of the Parliament after a general election and to hold office until the next general election unless they resign, cease to be MSPs or are voted out of office by the Parliament. The PO and deputies must not all represent the same political party. 5. A DPO can exercise the PO’s functions if the PO delegates functions, if the PO is unable to act or if the office of PO is vacant. 6. The Scotland Act 2012 has amended the 1998 Act to provide that: - the Parliament must elect the presiding officers within 14 days of the election (rather than at the first meeting) and may not conduct any business other than the oath taking until it has done so. This allows the Parliament, if necessary, to hold the oath taking and the PO elections on different days. 7. The 2012 Act also provides for the election of additional deputies at any time, and for these to be appointed for a specified time limit (ie not necessarily the rest of the session). The Act does not specify the circumstances in which an additional deputy may be appointed. The Schedule is amended to ensure that the officers among the PO and deputies who are able to act at any given time are not all from the same political party. Presiding Officer Elections – experience since 1999 8. The relevant Standing Orders are set out at Annexe B. As well as implementing the Scotland Act 1998 requirements, the Standing Orders include the following provisions for elections: - nominations for PO, which must be seconded, can be made no earlier than 2 hours before the election time and no later than 15 minutes before; 1 - nominations for DPO, which must be seconded, can be made no earlier than 30 minutes before and no later than 15 minutes before the election time; - election is to be by secret ballot; - a vote is only valid if the number of members voting (including abstentions) is more than one quarter of the total number of seats (ie 33 members or more); - a single candidate, or one of two candidates, is elected if they secure a simple majority of votes cast; - where there are more than two candidates, a candidate is elected if they get more votes than the total number of votes cast for all the other candidates; if no candidate achieves this, the candidate with the fewest votes is eliminated before the next round of voting. 9. The Parliament has held five elections for POs/DPOs since 1999 – four at the start of sessions and one DPO election mid-session. A summary of what happened on each occasion is at Annexe C. 10. Following the most recent PO election, Christine Grahame wrote to the Committee in summer 2011,saying: “This was the first session when we had a substantive election process with three candidates. I think the process had deficiencies which were plain to see this time. I am aware this might not be read as disinterested but it is not a comment on the current incumbent I can assure you. There were a substantial number of MSPs as new intake who would have little knowledge of the duties and role of P.O. and therefore of the skills and qualities required of candidates for the position yet within days of being elected voting had to take place. There was not even an opportunity for candidates to make a pitch for votes to the Chamber. This was most unsatisfactory and a look at the final vote demonstrates it split virtually on party lines. I don’t think this is a good start for a new session.” Arrangements in Other Parliaments 11. The House of Commons changed the arrangements for the election of the Speaker relatively recently. Annexe D sets out their new arrangements which include: - Candidates are each allowed to make a speech before voting begins (in an order determined by drawing lots); - To win the election, a candidate must get more than half of the votes cast; and - after each round, the candidate with the fewest votes is eliminated, as is any other candidate who got less than 5% of the votes cast. 2 When the House of Commons Procedures Committee recommended these changes, it also included comparative information about speaker elections elsewhere which can be read at http://www.publications.parliament.uk/pa/cm200001/cmselect/cmproced/40/4008.htm Although this report is from 2001, it is unlikely in most cases that the procedures have changed much. Notable variations of approach in different places include - a quorum of more than half of members eligible to vote; - freedom to name on the ballot paper any member who is not a Minister or party leader and has not said that they refuse to stand; - a tradition that the role goes to a nominee of the largest party, with each political grouping nominating a deputy; - roll call voting rather than a secret ballot; - no elimination of the lowest polling candidates until after the second or third round of voting and - the option of nominating new candidates between rounds of voting. - nominator and a seconder from different parties (for example, in the House of Commons a candidate for Speaker requires 15 proposers, at least three of them not from their own party) Standards, Procedures and Public Appointments Committee November 2012 3 ANNEXE A: CALMAN REPORT & SCOTLAND ACTS Extract from Calman Commission final report Presiding Officers 6.105 The point about which we have received perhaps the clearest evidence has been the requirement in section 19(1) for there to be exactly two Deputy Presiding Officers (DPOs). Former Presiding Officer, Sir David Steel, referred to the practical difficulties this caused during Session 1 when he was temporarily ill, and suggested that the Parliament should have the ability to appoint an additional DPO as required. The current incumbent, Alex Fergusson MSP, backed this idea, suggesting that circumstances in which one or more of the three current office-holders were ill or otherwise unavailable at the same time could have a detrimental impact on parliamentary business.6.34 6.106 We can see no good reason for having such a rigid limit on numbers imposed at the level of the Scotland Act. We therefore recommend introducing additional flexibility into the Act by allowing for the appointment of temporary additional DPOs when required. 6.107 We are also aware that another aspect of section 19(1) – namely the requirement to elect a Presiding Officer and deputies at the Parliament’s first meeting following a general election – presented practical difficulties at the beginning of the present session, when the close electoral result initially made the main parties reluctant to relinquish one of their members for the non-voting role of Presiding Officer. The statutory obstacle was, in the event, circumvented by deeming the first meeting to be adjourned and then continued on a later day – but this can hardly be regarded as a satisfactory long-term solution. We therefore recommend a further amendment to this section of the Act to introduce an appropriate degree of flexibility. It could, for example, require that the first substantive item of business for the newly- elected MSPs (once they have taken the oath) is to elect a Presiding Officer, and that this must be completed within (say) 14 days of the election. RECOMMENDATION 6.7: Section 19(1) of the Scotland Act should be amended so as to loosen the requirement on the Parliament to appoint a Presiding Officer and deputies at the first meeting of a new session, and to enable additional deputies to be appointed if and when that becomes appropriate. 4 Scotland Act 1998 Section 19: Presiding Officer (1) The Parliament shall, at its first meeting following a general election, elect from among its members a Presiding Officer and two deputies. (2) A person elected Presiding Officer or deputy shall hold office until the conclusion of the next election for Presiding Officer under subsection (1) unless he previously resigns, ceases to be a member of the Parliament otherwise than by virtue of a dissolution or is removed from office by resolution of the Parliament. (3) If the Presiding Officer or a deputy ceases to hold office before the Parliament is dissolved, the Parliament shall elect another from among its members to fill his place. (4) The Presiding Officer’s functions may be exercised by a deputy if the office of Presiding Officer is vacant or the Presiding Officer is for any reason unable to act. (5) The Presiding Officer may (subject to standing orders) authorise any deputy to exercise functions on his behalf. (6) Standing orders may include provision as to the participation (including voting) of the Presiding Officer and deputies in the proceedings of the Parliament. (7) The validity of any act of the Presiding Officer or a deputy is not affected by any defect in his election. Schedule 3: Standing Orders 5 The standing orders shall include provision for ensuring that the Presiding Officer and deputies do not all represent the same political party.

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