Open Letter to Scottish Ministers: Are Kezia’s votes in parliament legal?

Most of you will remember my post about Labour having no leader due to their own party rules and constitution when it comes to the advocacy of opposition parties and candidates. This post was specifically about the Labour Party rules and not particularly about the constitutional and electoral system in Scotland. Kezia is still sitting in parliament and as a consequence of not being in the Labour Party she is by definition an independent.

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Thanks to a comment by one reader called “Dervheid” on that post, he has spurred the conversation in a new direction from simple Labour Party rules to a very serious question with regards to the electoral system in Scotland. He simply asked: “How so? Surely if their appointment is based on the D’Hondt calculation allocating that list place to Labour, then Labour should retain the allocated seat?”

This, of course, is one of those comments that I put in the “Things that make you go hmmm” section of my brain. Because he is absolutely right on the first part that she is indeed a list (regional candidate) and not a constituency candidate. The second part of his comment  actually makes things extremely complicated and opens up a whole new set of questions that actually need to be answered.

So let me make this as simple as I can for people who are unaware of how the system at Holyrood Works. For the Scottish Parliament elections, we use a system which was specifically set up at Westminster to stop an overall majority. This is called the additional member system.

The Parliament comprises of 129 members known as Members of the Scottish Parliament (MSPs), elected for four-year terms under the additional member system: 73 MSPs represent individual geographical constituencies elected using “first past the post”. So in other words, you vote for the person and not for the party. The person with most votes wins.

A further 56 are returned from eight additional member regions which are basically clumps of the constituencies bunched together into 8 regions

Each region elects seven MSPs in the regional ballot and this is done using a proportional method of voting. Parties put forward a list of candidates listed from 1 to 7 in each region to the electoral commission. However! Unlike the constituency ballot, you do not vote for the person, you vote for the party. Each time that party gets a seat, the people in the order they are selected by their party get a seat. So in Lothian, Kezia Dugdale was first on the labour list for the regional ballot so when Labour got a seat, she one the first one to get it.

So why is this important? Well, in a nutshell, Kezia Dugdale was not elected personally. The people in her constituency did not actually vote for her directly, they voted for the Labour Party. My previous post on why she is technically now an independent show the Labour party rules and why she was automatically been ineligible to be a member under the rules as a consequence of advocating people vote Tory.

Dervheid’s comment on that post opens up a very serious constitutional question. Is she even an independent and does she have the right to sit in the Scottish Parliament? If it was the Labour party people voted for and not her personally, is she allowed to sit in the Scottish Parliament if she is no longer a party member?

This of course then puts out some other questions:

  1. If she is allowed to sit as an independent member of the parliament?, is that constitutionally right because the electorate selected a labour candidate which they expected to follow the rules of the Labour Party and what they would be getting is an independent who was never elected personally and of course is inhabiting a seat for a Labour Party Member.
  2. In such a set of circumstances, if it is deemed that she can sit as an independent, how is that constitutional right?
  3. If she isn’t allowed to sit as an independent, will the Labour Party simply be allowed to select another candidate to replace her, baring in mind that although she wasn’t selected personally the list of Labour Candidates was posted publicly?
  4. If the Labour party are not allowed to select someone else, does that mean that a by-election must ensue for that region?
  5. If she is sitting in a seat unlawfully then do any of her submissions and/or votes in Parliament even count? Are they legally sound as a consequence?

On the basis of the above. I have written to the Scottish Ministers seeking clarification on these points on the basis that while it may be up in the air with regards to the current circumstances surrounding Ms Dugdale, it most certainly is quite a substantive situation and constitutional question which should be clarified and indeed, if there is no particular guidance and/or legislation to plan for such a contingency, then it could possibly be an issue in the future.


My letter to the Scottish Government

Dear Ministers,

I am writing with regards to an electoral/constitutional question pertaining to regional list members who either leave their party and/or are expelled from said party.

This is in regards to an article I wrote on how those who are in Labour are automatically ineligible to hold membership of the party if they advocate for an opposition candidate or party ( Although this dealt primarily with the Scottish Labour leader and Labour party rules, the consequential debate on the comments thread ultimately raised the question of the particular member being a list member.

As a consequence, I am seeking clarification on the following points.

If a regional list member is no longer a member of the party which they were elected under (being that the regional ballot is voting for parties and not people) is:

  1. That member allowed to sit as an independent; or
  2. Are the no longer eligible to be an MSP?If they are no longer allowed to be an MSP:
  3. Can the party simply select another candidate or would a by-election be required?In any case:
  4. Is it legally viable for a person who is selected on the regional ballot, which is based on party and not person, to legally vote in parliament as an independent or is it the case that by being selected under a regional ballot (party not person) are they indeed legally allowed to vote as an independent or is any of their votes in Parliament technically void as a consequence?

This being down to very in-depth electoral and parliamentary rules, I thought it best to seek clarification from the Scottish Government on what would happen in such circumstances. Either way, it is a very important constitutional question.



Martin Keatings

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