Electoral reform consultation

Chapter 1 – Candidates

Expansion of candidacy rights

Policy background

The Scottish Government is keen to encourage active participation in Scotland's democracy. Since 3 August 2020 virtually all persons aged 16 or over living in Scotland who either have leave to remain in the UK or who do not require such leave have the right to register to vote in Scottish Local Government and Scottish Parliament elections (referred to as "devolved Scottish elections" in this Chapter). Voting rights have been extended to 16 and 17-year olds and to all foreign nationals with any form of leave to remain. 'Leave to remain' means permission granted to non-UK nationals to stay in the UK for a limited or unlimited period of time, but does not include those seeking asylum. Excluding short term visitors such as tourists, asylum seekers are now the main group of foreign nationals aged 16 or over living in Scotland without voting rights.

In relation to candidacy, foreign nationals with indefinite leave to remain in the UK were given the right to stand in Scottish Parliament and Scottish Local Government elections. The changes in 2020 also made clear that those with settled status or pre-settled status under the EU settlement scheme could stand for election and serve as MSPs and councillors despite Brexit.

Currently you must be 18 or over to stand for election to the Scottish Parliament, UK Parliament and local councils.

A further, limited, extension of the law in relation to candidacy rights in Local Government elections is set out in the Scottish Local Government Elections (Candidacy Rights of Foreign Nationals) Act 2022. That Act allows nationals from countries where a relevant treaty at UK level has been agreed, to become councillors. The UK currently has such treaties with Luxembourg, Poland, Portugal and Spain. As a result, all resident nationals from these countries will be able to stand for election as a councillor in Scotland, even if they only have limited leave to remain and even if that leave is set to expire during their term of office. The UK Elections Act 2022 has given similar effect to the treaties in relation to local elections in England and Northern Ireland.

As a result, there are two main groups of people who can vote but who are not able to stand as candidates in devolved Scottish elections. These are people aged under 18 and foreign nationals with limited leave to remain. There are also certain people disqualified from standing for elections (discussed below).

Categories of people excluded from voting or candidacy rights for devolved Scottish elections

Excluded from both voting and candidacy/holding office rights:

• people aged under 16;
• asylum seekers;
• people in prison serving sentences of more than 12 months;
• persons detained under certain mental health restrictions;
• people not legally resident in Scotland (aside from members of the armed forces serving overseas).

Excluded from all devolved candidacy/holding office rights (but likely to be able to vote):

• people aged 16 and 17;
• foreign nationals with limited leave to remain (e.g. those who only have the right to remain in the UK for a 30-month period) apart from those from Luxembourg, Poland, Portugal and Spain, who can stand in local council elections;
• those subject to certain disqualifications (e.g. tied to electoral fraud or bankruptcy).

Excluded from Local Government candidacy rights and holding office:

• those who lack a work or residence connection to the local authority area;
• persons who have been sentenced to a prison term of at least 3 months within the last 5 years.

Excluded from Scottish Parliament candidacy rights and holding office:

• persons who are serving a prison sentence of more than 12 months;
• certain specified groups (e.g. judges, civil servants, members of the armed forces, members of police forces and members of foreign legislatures).

International comparisons

As a result of these past changes, Scotland has one of the world's most generous and inclusive arrangements for voting and candidacy rights. Many democracies extend voting and candidacy rights on an equivalent basis, set out in an international treaty with two or more countries agreeing to grant voting and candidacy rights to each other's nationals. The Scottish Parliament has instead chosen to extend voting and candidacy rights in devolved elections on a unilateral basis. This is intended to allow anyone who has chosen to make their life in Scotland the right to participate in our democracy. It means that the provision of voting and candidacy rights to those living in Scotland is not dependent upon their place of birth. A person need not be the citizen of a democracy that has agreed an electoral rights treaty with the United Kingdom to participate in devolved Scottish elections. Voting rights are extended to all those with any form of leave to remain in the UK who live in Scotland for long enough to be able to register to vote. This supports the Scottish Government's view that anyone who is living in Scotland should have a say on how Scotland is run.

Minimum candidacy age varies greatly from country to country, for example, the minimum age threshold for standing for election to the European Parliament ranges from 18 to 25 across the Member States of the European Union.

Government commitments

The Scottish Government has already made clear it would like to extend candidacy rights. The Programme for Government 2021-22 – which detailed actions the Scottish Government would take in the coming year and beyond - contains the following commitment "We will bring forward legislation on electoral reform, to be in force before the next Scottish Parliament elections, that will enable more people to stand as candidates at Scottish Parliament and Local Government elections…We will also work to increase voter registration and active participation in elections by under-represented groups, including non‑UK citizens and young people."

Similarly, the Scottish Government and Scottish Green Party - Shared Policy Programme (2021) includes an undertaking to extend candidacy rights in devolved elections, and a commitment to the fullest possible democratic participation in Scotland.

Potential issues in relation to expanding candidacy rights

Enabling 16- and 17-year-olds to stand for election could be argued to raise potential wellbeing concerns, such as the potential exposure of young people to intimidation (e.g. in the form of hate speech or on the campaign trail). Working hours at the Scottish Parliament and in local councils could also be a potential concern for 16 and 17-year-old representatives. The Scottish Parliament's normal Parliamentary week is between the hours of 14:30 and 17:30 on Monday, 09:15 and 17:30 on Tuesday, Wednesday and Thursday and 09:30 and 12:30 on Friday a meeting of the Parliament may continue to 19:00 on Wednesday if the Parliament so decides. An MSP may also have to live in Edinburgh during the week, if their home is too far away to travel to the Parliament each day, which could be an additional concern for 16 and 17 year olds. It could also be argued that holding office at the age of 16 or 17 could impact on a young person's education (e.g. in the taking of exams) and there are also data protection issues that arise in relation to the handling of personal data of persons aged under 18.

Enabling a person with limited leave to remain in the UK to hold elected office raises a number of issues if their leave comes to an end during the person's term of office. If leave to remain were to expire during an MSP or councillor's term of office, and they were unable to extend their leave or switch to a different form of leave, the person would have no choice but to resign as an MSP or councillor. A by-election might then be required to fill the vacancy. The cost in holding a Local Government by-election has been estimated to be in the region of £50,000.

Failure to meet the conditions of leave to remain could result in it being removed and that individual losing their right to stay in the UK. However, in October 2022, the Home Office amended immigration legislation to ensure that being an elected representative will not be considered as incompatible with any immigration/leave conditions restricting employment. As a result, "Standing for or filling an elected post in local or devolved government is not considered to be employment for the purposes of the immigration rules, and conditions restricting employment do not affect the ability to undertake such activities." See Statement of changes to the immigration rules). The accompanying Explanatory Memorandum provides further guidance:

"7.46. Individuals in various routes under these Rules have conditions attached to their permission which restrict their ability to work. A change is being made so such conditions will not prevent migrants standing for or filling an elected post in local or devolved government. Many of those subject to immigration control would not meet the eligibility criteria to stand for election, regardless of these Rules, but this change ensures the UK meets its commitments to countries with which we do have reciprocal agreements around candidacy. Before this change, any such cases would have to be handled on a discretionary basis.

7.47. The change allows those with existing leave to remain who are eligible to stand for and fill elected posts (including any associated work around running for election) where they are eligible to do so. It does not, however, alter the candidacy rules, which are subject to separate regulation. It also does not create any provision for someone to remain in the UK on the basis they are standing for or filling an elected post. Candidates who are subject to immigration control must have a separate basis for stay. For example, a Skilled Worker or Student would need to continue doing the job or course they had been sponsored to do, to maintain their existing status, or they would have to switch to any other immigration route for which they are eligible."

Any successful candidate would still have to meet any other conditions of their leave to remain, such as participation in a job or course tied to their leave to remain. For example, a student with leave to remain linked to a particular course would still have to follow that study programme, even if they became a councillor or MSP.

Service as a councillor or MSP is a significant undertaking and there are concerns that a person obliged to also meet the requirements of a work permit or study visa would struggle to balance those obligations with those arising from being an elected representative.

Question 1: Do you think that 16- and 17-year-olds should be able to stand for election in:

• Both Scottish Parliament and Local Government elections
• Scottish Parliament elections only
• Local Government elections only
• Neither Scottish Parliament nor Local Government elections

Question 2: Do you think that foreign nationals resident in Scotland with limited rights to remain in the UK should be able to stand for election in:

• Both Scottish Parliament and Local Government elections
• Scottish Parliament elections only
• Local Government elections only
• Neither Scottish Parliament nor Local Government elections

Question 3: Do you have any additional comments on candidacy rights for 16- and 17-year-olds, or foreign nationals with limited rights to remain in the UK?

Disqualification for intimidatory or abusive behaviour

Why is a change being proposed?

Following concerns being expressed about an increase in intimidatory behaviour by some individuals during election and referendum campaigns, the independent Committee on Standards in Public Life undertook a review of electoral events. On 13 December 2017, the Committee published its 17^th report: Intimidation in public life: A Review by the Committee on Standards in Public Life. The review highlighted that candidates and campaigners throughout the UK faced increased intimidation and suggested that "specific electoral sanctions would reflect the seriousness of this threat."

The Committee made a number of recommendations to government, social media companies, political parties, the police, broadcast and print media, and representatives and candidates. One of the recommendations was that the UK Government should consult on a new crime in electoral law of intimidating candidates during an election period. However, the UK Government ultimately decided to adopt a new sanction that would prohibit offenders from standing for elective office for five years rather than a separate offence.

Part 5 of the Elections Act 2022, which was enacted on 28 April 2022, legislated for a disqualification order from standing for, being elected to or holding all elective offices in the UK, apart from Scottish Parliament and Scottish Local Government elections. A disqualification order must be applied where a person is convicted of specified existing criminal offences aggravated by hostility related to candidates, holders of relevant elective offices or campaigners, unless it would be unjust to make the order. A disqualification order disqualifies the offender from being nominated for election to, being elected to or holding certain elective offices for a period of 5 years.

For Scottish Parliament and Local Government elections, the current position is that there is no specific offence of intimidation of elected representatives, candidates and campaigners. Whilst anyone who harasses or intimidates another person can be prosecuted under various legislative provisions, there is no additional sanction for harassing or intimidating someone who is involved in the electoral process.

The Electoral Commission, in its Report on the 2022 Scottish Local Government elections noted:

"While over half (56%) of candidates who responded to the survey said that they did not have a problem with threats, abuse or intimidation, over two in five (44%) experienced some kind of problem (that is, on a scale of '1 to 5', rated their problem with threats, abuse or intimidation as a '2' or above). One in 10 (11%) said that they had a serious problem (rated '4' or '5' out of '5')."

The Scottish Government is of the view that those harassing or intimidating elected representatives, candidates or campaigners should be subject to additional sanctions which reflect the impact of an offence on the democratic process. Removing the right of someone, who has been convicted of harassing or intimidating those involved in the electoral process, to stand or hold an elective office for a period is, in the view of the Scottish Government, a reasonable response to their actions and links the punishment directly to the offence.

What is being proposed?

The proposal is that if an individual is convicted of certain offences, and the court is satisfied, beyond reasonable doubt, that the offence was aggravated by hostility towards:

• a candidate at an election;
• a holder of an elective office, such as an MSP or a local councillor; or
• certain individuals who are campaigning on behalf of a candidate or political party at an election,

then the court can make a disqualification order which would disqualify the offender from being nominated for or holding an elected office in relation to the Scottish Parliament or a Scottish local authority for a period of 5 years. The court will also have the power to consider whether there are particular circumstances relating to the offence or to the offender which would make it unjust to make a disqualification order. If the court chose not to make an order, it would be required to give reasons for its decision.

Adoption of this proposal on disqualification orders would bring the position in Scotland into line with other UK elections. It is intended to provide additional protection to those who participate in elections and contribute to the political debate and deter individuals from carrying out acts of intimidation.

In addition, the proposal to introduce such orders to prevent persons standing in Scottish Parliament and Local Government elections, or holding a relevant elective office, would not only bring in sanctions to cover those elections, it would capture those who under the current legislation could be disqualified from standing at a UK Parliament election as a result of a conviction, but could remain eligible to stand at a Scottish Parliament or Scottish local election.

Question 4: Do you think that anyone found guilty of an offence involving the harassment or intimidation of politicians, candidates or campaigners should be subject to an additional sanction of losing the right to stand for election for 5 years?

Question 5: If not, would you suggest another electoral sanction or approach?

Sending of free letters or leaflets by candidates and political parties at elections

Why is a change being proposed?

It has been a feature of UK Parliament elections for many years that every candidate standing in an election is entitled to send one letter or leaflet via Royal Mail, with no charge to them for postage, to every person on the electoral register or to every home within the relevant constituency. This can be in the form of an addressed letter or unaddressed leaflet to each household. The cost of postage is met from public funds on the basis of an agreement between the UK Government and the Royal Mail, but candidates have to pay for the printing and design of the letters and leaflets themselves.

Allowing a free letter or leaflet mailing recognises that it would be difficult for candidates to personally meet with all their constituents due to the number of people in a constituency and the physical distances involved. The average size of a UK Parliamentary constituency in Scotland is about 69,000 electors. Providing a free letter or leaflet was viewed as levelling the playing field by allowing every candidate to contact every potential voter in their constituency to inform them of their views on election issues. The practice of providing a free letter or leaflet has continued despite the emergence of the internet and social media as a significant campaigning tool.

When the legislation setting out the rules for Scottish Parliament elections was passed by the UK Parliament in 1999, the right to send a free letter or leaflet to every elector was extended to every candidate in a constituency, every individual candidate standing in a region and every political party at a Scottish Parliament election. At the time, it was felt that those standing as members of the Scottish Parliament should be given the same opportunities to campaign as those standing as members of the UK Parliament. The average number of electors in a Scottish Parliament constituency is about 55,000 and for a Scottish Parliament region, 531,000. Candidates and political parties at Scottish Parliament elections continue to have access to a free mailing.

Candidates at Scottish Local Government elections have never been entitled to a free letter or leaflet, as is the case at Local Government elections in other parts of the UK. The reason behind this is unclear but may reflect that wards at Local Government elections are a lot smaller than constituencies at other elections. The average number of electors in a Local Government ward in Scotland is about 15,500.

The Scottish Government has received representations from the Convention of Scottish Local Authorities (COSLA) requesting that the right to send a free letter or leaflet be extended to candidates at Scottish local elections. COSLA is of the view that allowing for a free letter or leaflet would encourage participation and engagement with Local Government elections. It would also recognise that there has been a substantial increase in the size of Local Government wards since the introduction of the Single Transferable Voting system (STV) in 2007. Prior to 2007, Local Government wards were about a third of their current size, for example, wards in Edinburgh had about 6,000 electors prior to 2007 compared to about 21,000 electors today.

The Electoral Commission, in its Report on the 2022 Scottish Local Government elections noted:

"Just over half (52%) of all voters said they had enough information on candidates to be able to make an informed decision on who to vote for. However, more than a quarter (26%) disagreed. Voters aged 25-34 were most likely to disagree (40%)."

Free mailings in Local Government elections

The consultation seeks views on extending the right to send a freepost letter or leaflet to candidates at Scottish Local Government elections.

The Scottish Government's view is that the entitlement of candidates at Scottish Parliament elections to a free posting is an important function and assists in getting candidates' messages across to the electorate. However, the Government has concerns about how much the introduction of free letters or leaflets for Local Government candidates would cost. At the 2022 Local Government elections, there were 2,548 candidates standing for 1,205 seats across 355 electoral wards. Whilst it is difficult to estimate exact costs, due to uncertainty around postage costs and how many candidates would make use of the free letter or leaflet option, we would expect the cost of free mailings to be higher than the £11 million spent on free mailings at the Scottish Parliament elections in May 2021. If it were decided to permit free letters or leaflets, it would be for Local Government to meet the cost of the free mailings.

One possible option in this area is a change in the law to permit individual councils to authorise and cover the costs of a free mailing for each candidate to send to each voter or to each household (discussed further below). While this would place the decision on whether or not to fund free mailings on each local authority, it would give councils greater discretion in this area. It could however lead to different practice across the country and an assessment would be needed as to whether it would be consistent with the Code of Conduct for councillors to make a decision on these mailings and in particular whether a conflict of interest could arise.

The Scottish Government is therefore seeking views on whether or not the availability of free letters or leaflets should be extended to candidates at Scottish Local Government elections.

Free mailings – cost

At Scottish Parliament elections, every candidate and every political party is entitled to send one free letter or leaflet via Royal Mail, with no charge to them for the cost of postage. They can choose to send a personally addressed letter to every individual voter within the relevant constituency or region. Alternatively, they can choose to send an 'unaddressed leaflet', which is a leaflet delivered to every home within the relevant constituency or region, rather than to a named person at an address.

The cost of postage is paid from public funds, based on an agreement between the Scottish Government and the Royal Mail, but candidates have to pay for the printing of the letters or leaflets themselves.

At the last Scottish Parliament elections in May 2021, 17,994,217 unaddressed leaflets and 21,909,503 individually addressed letters were sent under the free mailings scheme, at a total cost of £10,568,955. This was an 88% increase over the cost of free letters and leaflets at the previous Scottish Parliament elections in May 2016, which was about £5.6 million. This increase was driven by an increase in postal costs and in the number of candidates.

The Scottish Government acknowledges that the provision of a free letter or leaflet helps with voter engagement, particularly with sections of the community which may not make use of social media. However, there are concerns about the rising cost to the public purse of providing these free mailings.

Under the current free mailing provisions, candidates and political parties can choose to send one addressed letter to every registered elector or alternatively one unaddressed leaflet to every home in their constituency or region. Each individual candidate in the vote for a Scottish Parliament constituency seat has the right to send a free mailing. For regional list seats, each independent candidate and each political party (not each candidate standing for a political party) has the right to send a free mailing to every voter in that region. In practice, about 55% of free mailings are individually addressed letters, with the rest being unaddressed leaflets. Not every candidate takes advantage of the opportunity to send a free mailing.

The cost of delivering individually addressed letters and unaddressed leaflets is different with addressed letters costing nearly twice as much as an unaddressed leaflet to deliver. In addition, only one unaddressed leaflet needs to be delivered to each dwelling – but with addressed letters, a copy of the same communication will be sent to every voter living at the same household. This has an environmental as well as financial cost.

The proposal is that the current right to send a letter or leaflet free of postage costs should be restricted to the sending of unaddressed leaflets.

National Records of Scotland in their Estimates of Households and Dwellings in Scotland, 2020, which was published on 25 June 2021, estimated that the average size of household is 2.14 persons. We estimate that if only unaddressed leaflets had been allowed at the May 2021 Scottish Parliament elections, the 21,909,503 individually addressed letters could have been replaced by approximately 11 million unaddressed leaflets, based on an average of 2 electors in each household. Because the cost of sending an unaddressed leaflet is lower, this could have reduced the overall cost of freepost mailings from £10.6 million to around £5 million, a saving of slightly more than 50% in the cost of free mailings.

Whilst changing the free mailing to only unaddressed leaflets may have significant cost and environmental savings, there is a risk that this may reduce the impact of free mailings. It could be argued that an individually addressed letter is more likely to be received and read by the intended recipient, whilst an unaddressed leaflet may be discarded by the first person in a household to see it. Leaflets may also be caught up with "junk" mail and disposed of without being read by anyone.

Therefore, whilst unaddressed leaflets would lead to cost savings, leaflets may not be read by any or all members of a household, thereby reducing the efficiency of free mailings as a method of making voters aware of candidates' views. After the Local Government elections in May 2022, the Electoral Commission reported that –

"the most popular campaigning method used by respondents was leaflets/newsletters/flyers. Overall, 90% of respondents put leafletting in their top-three campaigning methods, with just under two-thirds (63%) of respondents citing this as their most used." And

"When asked where they had seen information about candidates and parties, the most cited sources were leaflets or flyers from the candidate or party (61%) or from another source (27%)."

This demonstrates the importance of letters and leaflets as a campaigning tool.

On the other hand, there may be an argument that restricting free mailings to a mailing to each household could be fairer to independent candidates, who may be less likely to be able to afford the extra printing costs involved in sending a mailing to every individual voter.

The Scottish Government would like to know your views on whether we should restrict the form of free mailings to unaddressed leaflets only or if the risk that some electors may not see the leaflets is too great and therefore that the option of individually addressed letters should be retained.

Question 6: Do you think that the option of sending a freepost letter or leaflet should be extended to candidates at Scottish Local Government elections?

Question 7: Do you think that the right for candidates to send a free mailing should be limited to one free mailing to each household, rather than to each voter?

Question 8: Do you have any other comments on the issue of candidate mailings to voters?

Publication of home addresses

Why is a change being proposed?

In the past, candidates in Local Government elections were required to provide their home address on their nomination paper. Those addresses were then published in the statement of persons who have been nominated to stand for election and were printed on the ballot paper. The home addresses of candidates standing for the Scottish Parliament have not been made publicly available since the 2007 election.

In response to concerns about the personal safety of Local Government candidates, within the context or rising levels of abuse and physical threats to those standing for elected office, we brought forward legislation in 2020 to address this issue. This meant that while the Returning Officer still held the details of a candidate's home address, this address was not made publicly available. Candidates' home addresses no longer had to be printed on the ballot paper, although candidates could still request that it appeared on the ballot paper, if they wished it to.

This change was warmly welcomed but since then a similar problem around agents' addresses has been highlighted by local councillors and COSLA. As part of the election process, each candidate must appoint an election agent to act on their behalf. Alternatively, they can choose act as their own agent. As part of the appointment process for an agent, an address must be provided as a contact point for the agent.

The names and addresses of all election agents which are supplied to the Returning Officer are made publicly available. This is so any communications including invoices, legal notices etc. can be sent to the candidate via their agent. Concerns have been expressed that the requirement to publish agents' home addresses represents a security risk to a candidate when they are acting as their own agent.

An agent does not have to use their home address; they could use an office address, if they have one. For example, many agents for political party candidates will use a local office provided by the relevant party. However, some smaller parties or independent candidates may not have access to separate office premises.

The Scottish Government has considered various options about how it might be possible for candidates, who are acting as their own agent and who do not have a separate office address, to keep their home address private. This has included the idea that Returning Officers using the council offices, could receive mail for candidates who act as their own agents who would then pick up their mail.

Apart from being inconvenient for candidates, Returning Officers were not comfortable with taking on this additional responsibility. It does not solve the problem of creditors etc being able to be sure that correspondence would be delivered to the agent. We also considered the use of PO Boxes, but they would involve a cost and would not allow court papers to be physically served on an individual, should that be necessary.

The proposal

The Scottish Government is therefore proposing that a new option for correspondence should be introduced which will only be available to candidates who are acting as their own agent. In such a case, if the candidate does not want their home address to be made public, the candidate, in addition to declaring their home address, must provide the Returning Officer with another address to be used for correspondence. This correspondence address will then be made public in the published notice of election agents' names and addresses. It will not need to be an office address, it could be a workplace address or the address of a friend or relative.

The Welsh Government has already made a similar change for Local Government elections in Wales.

Question 9: Should candidates who are acting as their own agents be able to use a correspondence address for communications?

How a candidate's location is shown on the ballot paper

Why is a change being proposed?

At the May 2022 Local Government elections, candidates were given the choice of whether or not to have their home address printed on the ballot paper. If a candidate chose not to have their home address on the ballot paper, then the name of the council area in which they lived was shown instead.

Following the May 2022 elections, the Scottish Government has been approached with the suggestion that if a candidate is resident in the ward where the election is being held then that should appear on the ballot paper. This suggestion was made because it was felt that people would find it helpful to know which candidates live in their local area.

The proposal

Currently, a candidate at a Local Government election can choose to either have their home address or the Local Government area where they live printed on the ballot paper. A candidate may not want their home address to be published due to security concerns.

The Scottish Government is considering amending the rules for Scottish Local Government elections to allow an additional option. This would be that a candidate can ask for both the name of the ward and the council area in which they live to be printed on the ballot paper. Candidates would continue to have the option of their home address or only the council area being printed on the ballot paper. This would mean that a candidate would have a choice of the ballot paper showing:

• their home address: or
• the council area in which they live; or
• the ward and council area in which they live.

The Scottish Government is seeking views on whether we should allow for this third option, that the ballot paper can show the name of ward in which the candidate lives as well as the council area. Candidates will still have the option of having their home address or only their council area showing on the ballot paper.

Question 10: Currently ballot papers show either the candidate's home address or council area. Do you think that the ballot paper should also show the ward in which the candidate lives, if they request it?

Question 11: Do you have any further comments on the topic of candidate addresses?