Commentary on Provisions Temporary relief from disqualification Section 18 – Persons holding office: temporary relief from effect of disqualification
59.This section sets out the process by which a member of the Scottish Parliament, or member of a local authority, who is disqualified from holding that office as a result of (i) being subject to any relevant sex offender notification requirements or a relevant sexual harm or risk order; or (ii) a Scottish Disqualification Order under section 3; or (iii) a disqualification order under section 30 of the Elections Act 2022 should lose their seat or vacate their office. It mirrors section 31 of the Elections Act 2022 and has the effect of providing temporary relief to an office-holder who becomes subject to an order to allow them, for a limited period only, to appeal the conviction or order.
60.Section 16 of the 1998 Act provides exceptions to the grounds by which a person is disqualified from being a member of the Parliament. Section 12 of the Act therefore amends section 16 of the 1998 Act to provide that any relevant notification requirements, a relevant sexual harm or risk order or a disqualification order do not disqualify a member until the appropriate time. The appropriate time being the end of the 3-month period after the court imposed the requirements or made the order or, if earlier, the end of the period during which an appeal or application against the conviction, finding, order or certification is allowed. When the member makes such an appeal or application the office is vacated at the end of the 3-month period unless the appeal or application is dismissed or abandoned before the 3-month period expires, in which case the person is disqualified at that earlier time; or the appeal or application is upheld before the 3-month period expires, in which case the member is not disqualified.
61.Section 17 of the 1998 Act deals with the effect of disqualification and subsection (2) of that section provides that if a member of the Scottish Parliament becomes disqualified from being a member of the Parliament or from being a member for the particular constituency or region for which he is sitting, the person shall cease to be a member of the Parliament (so that their seat is vacant). Subsection (3) of this section amends section 17(4) to make it clear that section 17(2) is subject to new provision inserted into section 16 of the 1998 Act (as made by this section of the Act) providing the (up to 3 month) temporary relief for the person subject to the notification requirements or order(s). This section also provides that where such relief applies, although the disqualified member’s seat will not be vacated immediately (and therefore, the person does not cease to be a member of the Parliament until the seat is vacant) in the meantime, the member may not participate in any proceedings of the Parliament and other rights and privileges may be withdrawn on a resolution of the Parliament.
62.Section 31 of the 1973 Act provides the grounds by which a person is disqualified for nomination, election and holding office as a member of a local authority. Therefore, for local government, section 12(5) of the Act amends section 31 of the 1973 Act to create an exception, so that any relevant notification requirements, a relevant sexual harm or risk order or a disqualification order does not disqualify a member until the appropriate time. Again, the appropriate time is the end of the 3-month period after the court imposed the requirements or made the order or, if earlier, the end of the period during which an appeal or application against the criminal conviction, finding, order or certification is allowed. When the member makes such an appeal or application, the office is vacated at the end of the 3-month period unless the appeal or application is dismissed or abandoned before the 3-month period expires, in which case the person is disqualified at that earlier time; or the appeal is upheld before the 3-month period expires, in which case the member is not disqualified. The amendments to section 31 of the 1973 Act also provide that a councillor who is subject to a relevant notification requirement, relevant sexual harm or risk order or relevant disqualification order is suspended from performing any of the functions of a councillor during the 3 month (or shorter) period in which any appeal or application is available or made and not determined.