Commentary on Provisions Part 7: Election pilots and democratic engagement Section 45 – Scottish Ministers’ power to make provision about elections under the Local Governance (Scotland) Act 2004
138.This section changes the Scottish Ministers’ powers to make legislation for the administration of local government elections to allow that legislation to refer to documents (such as guidance or forms) prepared by other organisations and provide that those documents form part of the rules in relation to local elections.
139.It modifies the general power in section 3 of the Local Governance (Scotland) Act 2004 for Ministers to make provision in secondary legislation in relation to the conduct of local government elections. This power is typically used ahead of every local government election to update the rules for the forthcoming election.
140.Unlike the equivalent power in relation to Scottish Parliament elections (section 12 of the Scotland Act 1998) the local government power for secondary legislation does not allow Ministers to sub-delegate tasks to other bodies. Sub-delegation is when a piece of secondary (or delegated) legislation contains a further delegation of authority to another public body. The modifications made by this section will permit sub-delegation, and that will allow bodies such as the EMB or Electoral Commission to be asked to provide guidance on elections, for example on asking the Electoral Commission to provide guidance on accessibility measures in polling places, as they already do for UK Parliamentary elections in Scotland.
141.Paragraph (a) of inserted subsection (3A) provides that references are ambulatory. This means that the most recently published version of a document referred to will automatically become the authoritative one. For example, Ministers will not need to make a new Order every time that the Electoral Commission updates its accessibility guidance. However, paragraph (b) of this subsection helps Ministers retain control by giving them the power to specify other requirements in an Order which a document must meet before a document is considered authoritative.