Elections Bill

FURTHER WRITTEN EVIDENCE SUBMITTED BY THE LAW SOCIETY OF SCOTLAND (EB08)

ELECTIONS BILL

AMENDMENTS TO BE MOVED IN COMMITTEE

Clause 3, Page 2, Line 19 after "partner" insert "cohabitant"

Clause 3, page 2, Line 24 leave out "dishonestly"

Clause 3, Page 3, Line 12 at end insert "cohabitant" means either member of a couple consisting of-

(a) a man and a woman who are (or were) living together as if they were husband and wife; or

(b) two persons of the same or opposite sex who are (or were) living together as if they were civil partners.

Clause 12, Page 20, Line 30 Leave out "and"

Clause 12, Page 20, Line 32 at end insert "and

(f) such other persons as the S ecretary of State considers appropriate."

Clause 32, Page 44, Line 12 delete "may by" and insert "must consult with such persons as the Minster considers appropriate before making"

Clause 57, page 60, line 8 add at end ‘(2) Before making regulations under subsection (1) the Secretary of State must consult the Scottish Ministers, The Welsh Ministers and the Department for the Economy in Northern Ireland.’

Clause 3, Page 2, line 19 after "partner" insert "cohabitant"

Effect

This amendment ensures that the cohabitees of those who receive a postal voting document do not commit an offence by handling such a document.

Reason

Clause 3(2) introduces a new section 112A into the Representation of the People Act 1983 (RPA). New section 112A deals with the handling of postal voting documents by political campaigners. It creates an offence for a political campaigner to handle a postal voting document that has been issued to another person.

New section 112A (3) provides a statutory defence that a person does not commit the offence if the person is the other person's spouse, civil partner, parent, grandparent, brother, sister, child or grandchild. This list of exempt persons excludes those who cohabit with the person to whom the postal voting document has been issued. Under the Family Law (Scotland) Act 2006 section 25, a cohabitant" is defined in section 25 as meaning either member of a couple consisting of-

(a) a man and a woman who are (or were) living together as if they were husband and wife;

or

(b) two persons of the same sex who are (or were) living together as if they were civil partners.

We suggest that subsection (3) of new section 112A should be amended to produce a similar definition of "cohabitant", whilst also ensuring that, in the case of persons of the same sex, the definition includes not only those who are, or were, living together as if they were civil partners, but also those who are, or were, living together as if they were spouses.

ELECTIONS BILL

AMENDMENTS TO BE MOVED IN COMMITTEE

Clause 3, Page 3, line 12 at end insert "cohabitant" means either member of a couple consisting of-

(a) a man and a woman who are (or were) living together as if they were husband and wife; or

(b) two persons of the same or opposite sex who are (or were) living together as if they were civil partners.

Effect

This amendment is consequential on the previous amendment and provides a definition of the word "cohabitant".

ELECTIONS BILL

AMENDMENTS TO BE MOVED IN COMMITTEE

Clause 3, page 2, Line 24 leave out "dishonestly"

Effect

This amendment deletes the word "dishonestly" from clause 3.

Reason

112A (4) provides for a further defence that the person charged did not "dishonestly" handle the postal voting document for the purpose of promoting a particular outcome at the election. We question why there is a need to include a "dishonesty" element in the defence. Surely it is enough that the handling was not for the purpose of promoting a particular election outcome? This amendment probes the necessity of adding a further test of dishonesty to the defence in clause 3(4).

ELECTIONS BILL

AMENDMENTS TO BE MOVED IN COMMITTEE

Clause 12, Page 20, Line 30 Leave out "and"

Effect

This amendment deletes the word "and" from clause 12 (P olitical P arties, E lections, and R eferendums A ct 2000 New Section 4C. This is a paving amendment for the next amendment .

ELECTIOINS BILL

AMENDMENTS TO BE MOVED IN COMMITTEE

Clause 12, Page 20, Line 32 at end insert "and

(f) such other persons as the S ecretary of State considers appropriate."

Effect

This amendment adds to the list of consultees which the Secretary of State should consult on the Electoral Commission’s Strategy and Policy Statement from clause 3.

Reason

When revising the statement of strategy and policy priorities the Secretary of State should consult widely and not simply contain consultation to the: (a) the Commission, (b) the Speaker’s Committee, (c) the Public Administration and Constitutional Affairs Committee, (d) 30 the Scottish Ministers, so far as the draft relates to the Commission’s devolved Scottish functions, and (e) the Welsh Ministers, so far as the draft relates to the Commission’s devolved Welsh functions as detailed in new section 4C(2). External stakeholders may well have useful observations to make on the Secretary of State’s proposals. Accordingly the Secretary of State should have the power to consult more broadly that with the list of bodies currently referred to in clause 12.

ELECTIONS BILL

AMENDMENTS TO BE MOVED IN COMMITTEE

Clause 32, Page 44, Line 12 delete insert "after consulting with such persons as the Minster considers appropriate"

Effect

This amendment empowers the Secretary of State to consult broadly before making regulations under the bill.

Reason

The Secretary of State should be under an obligation to consult broadly with relevant interests before amending Schedule 8.

ELECTIONS BILL

AMENDMENTS TO BE MOVED IN COMMITTEE

Clause 57, page 60, line 8 add at end ‘(2) Before making regulations under subsection (1) the Secretary of State must consult the Scottish Ministers, The Welsh Ministers and the Department for the Economy in Northern Ireland.’

Effect

This amendment ensures that the Secretary of State must consult with the Devolved Administrations before making regulations under clause 57.

Reason

Clause 57 (1) empowers the Secretary of State to amend (a) any provision of the Act, or (b) any provision inserted by this Act into another Act, in consequence of the amendment or revocation of any subordinate legislation which is for the time being referred to in the provision. This is a very wide power and regulations are subject to affirmative resolution procedure. The Secretary of State is under no obligation to consult the Devolved Administrations before making such regulations, yet those regulations may relate to an instrument made under- (i) an Act of the Scottish Parliament, (ii) a Measure or Act of Senedd Cymru, or (iii) Northern Ireland legislation. It is accordingly appropriate that the Secretary of State should carry out such a consultation exercise.

October 2021

 

Prepared 19th October 2021