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The Earl of Mar and Kellie: I thank the noble and learned Lord for his explanation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 76 to 84 not moved.]

Clause 11 agreed to.

Clauses 12 and 13 agreed to.

Clause 14 [Disqualification from membership of the Parliament]:

The Chairman of Committees: In calling Amendment No. 85, I must point out to the Committee that, if it is agreed to, I cannot call Amendments Nos. 85A to 88 inclusive.

Lord Mackay of Ardbrecknish moved Amendment No. 85:


Page 7, leave out lines 11 to 25.

The noble Lord said: In moving this amendment, I wish to speak also to Amendments Nos. 86, 87, 88, 89 and 90. Amendments Nos. 85A to 85D stand in the name of the noble Earl, Lord Mar and Kellie.

We turn to disqualification from this new parliament. My amendments are something of a pick and mix. The first amendment, which might be described as the bolder amendment, seeks to leave out lines 11 to 25. The clause would then read:


That seems straightforward and simple. We think there is merit in aligning the disqualification from the Scottish parliament with disqualification from the other place. That is clearly contained in legislation for the other place and does not need any more lines in a Bill. If the noble and learned Lord, Lord Simon of Glaisdale, were here at this time of night, he would no doubt say that superfluous words ought to be removed from legislation.

In this case, I think that some superfluous words could be removed from legislation. That is my bold suggestion--that we should simply align the disqualification with the disqualification for the other place. The Government should consider that. It would save them a lot of words and it would be simpler. If the other place decided to change the disqualification, that would carry over to the Scottish parliament. The Parliament of the United Kingdom is senior and the other is the devolved parliament. I do not believe that anyone is saying for a moment that someone could be disqualified for one and not the other. That is an illogical position.

Amendments Nos. 86 and 88 deal with Clause 14(1)(d) and subsection (2) where an Order in Council

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could be made in order to increase the disqualification in the Scottish parliament. Reference is made to,


    "an office-holder of a description specified in an Order in Council".

We believe that disqualification should be decided either in the other place for both parliaments or it should be decided by primary legislation, but not by Order in Council. I do not believe that this is a matter for secondary legislation, but for primary legislation or, as I say, for the other place to deal with on behalf of both parliaments. Very simply, that explains Amendments Nos. 86 and 88.

Amendment Nos. 87 and 89 are linked with which electoral register is used, not so much for voting but for standing. Amendment No. 87 states,


    "A citizen of the European Union who is not also a British citizen, a citizen of the Republic of Ireland or a Commonwealth citizen is disqualified from being a member of the Parliament".

That would put the Scottish parliament on all fours with the House of Commons. For myself I believe that to be right and proper. Amendment No. 89 is consequential on Amendment No. 87.

Amendment No. 90 leaves out of Clause 15 subsections (3) to (5). We have an interesting position in subsection (3) in that the parliament can decide in individual cases and waive the disqualification, if I read it right. It may be that I am wrong about that and I am misreading it. I do not believe that that is right. I am not sure that the parliament should have powers of that kind. Either a person is disqualified or not. There cannot be "disqualified but" because a person is disqualified or they are not. Essentially, it is a matter for the courts if the matter is disputed.

All these matters deal with disqualification. In the first instance they are an attempt to simplify. In the other amendments they are to lay out some sensible alterations to disqualification, one concerning citizens who are not British or of the Republic of Ireland with which we have had a long and special relationship--after all, that is in our current electoral arrangement for the other place--or for Commonwealth citizens who are not disqualified from being members of the other place. These provisions will bring the Scottish parliament into line with the Westminster Parliament. That is sensible. The last amendment means that Parliament is unable to say, "Yes, you are disqualified, but", which is how I read the last three subsections of Clause l5. I beg to move.

The Earl of Mar and Kellie: Amendments Nos. 85A to 85D in my name were suggested to me by the Law Society and continue the theme of looking at the disqualifications. Amendments Nos. 85A and 85B extend those to persons who are disqualified from membership of the Scottish parliament. The following issues of principle arise from this provision. The disqualifications in Clause 14 do not include the office holders described in Parts II or III of Schedule 1 to the House of Commons Disqualification Act. These disqualifications include members of various public bodies ranging from the Advisory Board for the Research Councils to the White Fish Authority and include the Accountant of Court and various other Crown appointees. They include standing counsel to any

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department of the UK Government. There appears to be no rationale for excluding these office-holders from disqualification.

I turn to Amendment No. 85C. This amendment amplifies the disqualification from membership of the parliament of Lords of Appeal in Ordinary to bring the clause into line with other provisions of the Bill. The disqualification of Lords of Appeal in Ordinary takes account of the fact that Part I of Schedule 1 to the 1975 Act includes various judges but does not refer to Lords of Appeal in Ordinary. Due to the role which Lords of Appeal in Ordinary perform in the judicial scrutiny of devolution issues under Clauses 91 to 96 and Schedule 6 to the Bill their exclusion is appropriate.

However, Clause 94(2) provides that the Judicial Committee shall comprise those who hold or who have held the office of Lord of Appeal in Ordinary or high judicial office as defined in Section 25 of the Appellate Jurisdiction Act 1876. Accordingly, retired Lords of Appeal in Ordinary or judges can sit on the Judicial Committee. Those retired judges on the face of it will not be subject to the disqualification, unless it is the Government's intention to include such office holders under the terms of Clause 14(1)(d) by making reference to them in an Order in Council.

Finally, Amendment No. 85D is extremely brief and is consequential to the previous amendment. Its effect is to amplify the disqualification from membership of the Scottish parliament of Lords of Appeal in Ordinary.

Lord Sewel: This group of amendments is intended largely to restrict further the categories of people who are eligible to become members of the Scottish parliament. The starting point is the Government's commitment to ensure that membership of the Scottish parliament is as open to as wide a range of people as possible while making provision for appropriate disqualifications. But it is quite right that those disqualifications must be individually justified. We do not accept that we should adopt en bloc disqualifications that apply to other parliaments.

I deal with Amendments Nos. 85, 86, 88 and 85A and 85B. These amendments attempt to prescribe that those people who are disqualified from being members of the other House by all of the provisions of the House of Commons Disqualification Act 1975 are also disqualified from standing for the Scottish parliament. Amendment No. 85 appears to go further and seeks to link the grounds of disqualification entirely to those applying to membership of the other place. The grounds of disqualification provided in the Bill already substantially match those applying to membership of the other House, subject only to a few exceptions which the Government believe are justified in the context of the Scottish parliament.

Section 1(1)(f) and Parts II and III of Schedule 1 to the 1975 Act are one of the exceptions. At present those provisions list a wide range of offices, the holding of which is considered to be incompatible with membership of the other place. In some cases those offices are in bodies whose remit does not extend to

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Scotland and so it should be considered whether there is really any reason to disqualify such office-holders from the Scottish parliament. In some cases it might be, and in others it might not. Conversely, there will be particular offices in Scottish bodies which might be set up in the future by the Scottish parliament which should disqualify the holder from being a member of the parliament although not of the other place.

Clause 14 confers powers enabling particular office holders to be disqualified from membership of the Scottish parliament. Amendments Nos. 86 and 88 remove this provision. I think it is right that there needs to be provision for specific office holders to be disqualified and for the list of such offices to be relevant to membership of the Scottish parliament and to be updated from time to time. I would have hoped that all noble Lords would agree that this degree of flexibility is appropriate.

On Amendments Nos. 85C and 85D, the Government cannot support the noble Earl. It was necessary in Clause 14 to make special provision disqualifying serving Lords of Appeal in Ordinary from becoming MSPs. This is because of the exception in Clause 15 for Peers. Without this express disqualification there would be nothing else disqualifying Lords of Appeal in Ordinary as they are not covered by the disqualification of judges under the 1975 Act.

I suspect that the noble Earl's amendments were prompted by concerns that past Lords of Appeal and retired judges may become MSPs and may also be eligible to sit on the Judicial Committee of the Privy Council to consider devolution vires issues. I think that the noble Earl worries without cause. There is, quite rightly, nothing to stop such well qualified people from becoming MSPs. However, the composition of the Judicial Committee to hear devolution cases will be decided by the senior Lord of Appeal in Ordinary. Clearly, the noble and learned Lord would want to consider whether it would be appropriate for an eligible member who was also an MSP to consider a devolution case. I would expect that he would consider that it was inappropriate. So I think the matter is dealt with best like that.

Amendments Nos. 87 and 89 seek to limit the EU citizens who can stand. The Government believe that it should be open for EU citizens resident in the United Kingdom to become members of the Scottish parliament. This was made very clear in the White Paper which said that those eligible to stand will be UK citizens, including Peers, Peeresses, priests, ministers of religion, Commonwealth citizens and Republic of Ireland citizens, as well as EU citizens resident in the United Kingdom. I have no difficulty with the concept that someone who was born in another country in the European Union but who is now resident in the UK should be able to stand for election. It is for the parties to select such people if they wish, and ultimately for voters to decide whether they wish to be represented by such a person, but I see nothing wrong or unacceptable in the idea that a citizen of a country in the European Union who is resident in this country should be able to stand for election. It is up to the voters ultimately to decide whether he or she would be suited to represent

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them. There is a strong argument that the parliament would benefit from the cross-fertilisation of ideas that people with such diverse backgrounds would bring.

In Amendment No. 90, noble Lords seek to discover why we think it appropriate that the parliament should be able to resolve to disregard a disqualification if it considers that the ground has been removed and that it is proper to do so. This reflects a provision in the House of Commons Disqualification Act 1975 on which the Opposition placed such store with their earlier amendments. Given that we have applied much of the 1975 Act, it is entirely appropriate that the Parliament should have the same powers as the other place to disregard qualifications under it in appropriate circumstances. For example, there may be circumstances where a member was unaware that he was disqualified, but, once he realised that he was, acted to remove the grounds for the disqualification. Alternatively, the member might have sought deliberately to hide the fact that he was disqualified and acted to remove the ground only when discovered. Surely, the parliament should be able to take different types of behaviour into account.

In the light of those explanations, I invite the noble Lord to withdraw the amendment.


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