Scottish Parliament (Elections etc.) Order 2010

Thursday 9th December 2010 Lords Chamber

Motion to Approve

16:26

Moved By

[Lord Wallace of Tankerness]

That the draft order laid before the House on 25 October be approved. 6th Report from the Joint Committee on Statutory Instruments

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

My Lords, the draft order consolidates the rules for the conduct of the Scottish Parliament elections and ensures that the accepted recommendations from the Gould report will apply for the May 2011 election. The draft order has been available to electoral administrators and political parties since it was laid in Parliament on 25 October, more than six months ahead of the 2011 election. Indeed, an earlier version of the draft order was circulated to electoral administrators in April and to political parties in June. Most of us in this House who are still here will recall that more than 180,000 votes were lost due to rejected ballot papers in the 2007 Scottish parliamentary and local government elections. It was agreed across the parties that that is totally unacceptable in a modern democracy and, understandably, there was widespread public outrage at the time.

Mr Ron Gould, who was commissioned by the Electoral Commission to review the 2007 Scottish elections, concluded that six main factors contributed to confusion and to the level of rejected papers. First, he identified many problems on the design of ballot papers. Secondly, a new proportional voting system for local government elections had been introduced and voters were confused by combined elections that used two different electoral systems. Thirdly, there was poor co-ordination of the publicity campaigns of the Electoral Commission, the Scottish Government and others. Fourthly, Mr Gould identified problems caused by electronic counting. Fifthly, he found that there was fragmented and late legislation and a lack of involvement from electoral administrators in the legislative process. Sixthly, he said that there was a lack of co-ordination within the electoral community and a fragmented approach to planning.

There is no doubt that public confidence needed to be repaired after the problems experienced in 2007, but I believe that a successfully administered UK general election in Scotland earlier this year will have gone some way towards doing that. I am pleased to say that the Scotland Office has continued the work started by the previous Administration on implementing those Gould recommendations that were accepted by the Government at the time.

In relation to Gould’s recommendation that there should be a six-month cut-off period for changes in the law governing the conduct of elections, we have made sure that electoral administrators and political parties are well versed in the changes to legislation well in advance of May 2011. The target date of 5 November for making the order was always going to be challenging for whichever party won the recent general election. However, the projected date for making the order is still considerably earlier than at the previous Scottish Parliament election, for which the relevant order was made less than two months before the poll.

The draft order applies to next year’s election the Gould and Scottish Affairs Committee recommendations that were accepted by the previous Government. I accept that the draft order is large, so I will focus on the main changes since 2007. However, before doing so, I want to refer to a correction slip that Members may have seen associated with the order. The correction slip makes a number of typographical corrections to the instrument that will become part of the final order for printing if it is approved by Parliament.

It is also appropriate to comment on the four points on the order raised by the Joint Committee on Statutory Instruments. Article 2 defines “European Parliamentary Election”, although that term is not used in the text of the order. Rule 20(3)(a) in Schedule 2 includes within the minor errors in nomination papers that returning officers can correct,

“errors as to a person’s electoral number”.

However, unlike the nomination papers for election to the other place, the nomination papers for Scottish parliamentary elections do not contain proposers’ electoral numbers, which renders the reference unnecessary. Both those errors, while regrettable, have no effect on the operation of the order. The Scotland Office will ensure that returning officers are aware that the reference to electoral numbers can safely be ignored and the unnecessary provisions will be removed at the first suitable opportunity to amend the order.

The committee also highlighted Article 3(1), which deals with disregarding late alterations to the register of electors, and Article 4(5), which deals with the effect of alterations to the register where there has been an appeal against a registration officer’s decision. Those provisions have been in substantially similar form in previous versions of the order since 2002 and, so far as I am aware, have not prejudiced voters or the effective administration of previous elections. On reviewing the articles in light of the committee’s comments, we are of the view that there is an overlap with the provisions of the Representation of the People Act 1983 that renders them largely unnecessary. Unfortunately, those points were not raised until after the draft order had been considered by the Electoral Commission and had been laid.

We propose proceeding with the order in its current form and will revisit the provisions once we have had the benefit of consultation with the Electoral Commission and other interested parties. Since the equivalent provisions in previous orders have apparently not caused difficulty for voters or electoral administrators at the elections in 2003 or 2007, we do not anticipate there being any difficulty with the provisions being made as drafted.

[Lord Browne of Ladyton]

I thank the noble Lord for giving way. Before he moves too far away from the issue of defective drafting, perhaps I may raise a point with him. As he knows, I lived through part of this process in government because I became Secretary of State after the 2007 election and received the Gould recommendations and the Electoral Commission report. I accept entirely what the Minister says about the errors having little, if any, effect. My concern is that, to others, such errors may appear to show a consistent inaccuracy in the machinery for dealing with these issues. The Minister will not be able to check this now, but I refer him to the observations of his right honourable friend Mr Alistair Carmichael, who was the shadow Secretary of State for Scotland when I reported to Parliament on the report. Mr Carmichael suggested that history revealed that the electoral machinery that was servicing elections in Scotland was not fit for purpose. I am concerned that dismissing these errors in this way does not draw Ministers' attention to what may be a fundamental systemic problem in the machinery that is in danger of repeating the previous problem.

[Lord Wallace of Tankerness]

I hear what the noble Lord says. I could not quite remember where he was in the chronology of the Gould report, but he has now confirmed that he was the Secretary of State who received the report. The point that he makes is perfectly fair. However, the errors were spotted only very late in the day and have been drawn to the attention of the Joint Committee on Statutory Instruments. They were not spotted by the Electoral Commission when it looked at the draft order, nor by the electoral officers to whom the drafts were sent out, either on this occasion or on two previous occasions. That does not excuse the fact that the errors are regrettable and must be looked at. The point is fairly made that perhaps such errors flag up the need to have a thorough-going review of the orders. That said, as the noble Lord acknowledged in his intervention, there is nothing in the draft order that should impair in any way the operation of the elections in May next year. As I have indicated, we will draw the matter to the attention of the Electoral Commission for further consideration. Indeed, I think it has been suggested that the orders could possibly have been withdrawn and relaid. However, given the statutory obligation to consult the Electoral Commission, timing was one of the key issues that Mr Gould’s report flagged up. Therefore, it is important that we proceed with the draft order, while acknowledging, with regret, the errors that exist.

I turn to the substance of the draft order. The draft order consolidates legislation on the conduct of Scottish Parliament elections, so that the majority of rules governing those elections are now in one document, which we hope will make it easier for electoral administrators and political parties to use. The draft order sets out for the 2011 elections that we will return to a manual count of ballot papers for both the Scottish Parliament constituency and regional elections. There will be separate ballot papers for the constituency and regional votes, unlike in 2007, when both the constituency and regional votes were on a single ballot paper. Registered party names must be used on ballot papers and the design of the ballot paper follows the principles set out in the Electoral Commission’s publication Making your mark—Good practice for designing voter materials: guidance for government policy-makers.

There will be a longer timetable for running the election—increased from 21 days to 28 days—and, to accommodate administrative demands of increased postal voting, there will be a longer period between the close of nominations and the date of election, with an increase from 16 days before the poll to 23 days. The deadline for registering to vote by post and the earliest time that postal votes can be issued is still 11 days before the poll. The longer period between close of nominations and the date of election will help to accommodate the increased demand to vote by post. Once all the names of all the candidates are known, ballot papers can be printed without any further delays and sent out immediately after the deadline for registering for a postal vote has passed. For consistency, we have brought the control of donations to candidates and limits on candidates’ expenditure into line with the principles set out in the Westminster rules.

Apart from the consolidation of the 2008 and 2009 amendments to the 2007 order, the main new changes that have been made are: new requirements for the review of polling districts and places; the application to candidates at Scottish parliamentary elections, other than party list candidates, of the regime for control of donations to candidates that applies to UK parliamentary elections; limits to the expenses that may be incurred by or on behalf of candidates, other than party list candidates, in the pre-candidacy or so-called long campaign period before a Scottish parliamentary general election; revised requirements for candidates’ returns as to election expenses; revised requirements for the information that has to appear on election publications; an increase in the minimum period between the dissolution of the Scottish Parliament and the day of poll from 21 days to 28 days, which reflects the increase in the overall timetable for Scottish Parliament elections recommended in the Gould report; and provision for electoral registration officers to supply returning officers and other persons or organisations with a consolidated version of the register that takes account of any alterations, as opposed to having to provide a copy of the original register and individual copies of the notices of alteration. There is no longer to be a separate timetable for by-elections.

In addition, the draft order provides for: minor errors on nomination forms to be corrected by either the constituency or regional returning officer; grandparents or grandchildren to assist a person with disabilities to vote at a polling station; a requirement on the voter to sign the tendered votes list; the responsibility for the storage of election documents to be transferred from sheriff clerks to constituency returning officers. The provisions on the death of a candidate during the election period have also been revised. Changes have been made to what information on Members should be entered in the Scottish Parliament’s returns book and to restrict the availability of the returns book for public inspection to the life of the Parliament or to such later date as the Presiding Officer of the Scottish Parliament may direct. The electoral registration officer is now required to inform people that they have been appointed as a proxy and of the length of their appointment.

The draft order provides for limited access to, and for the supply of copies of, absent voting records, such as the postal voters list, for candidates, political parties and elected representatives as well as for public inspection of those records under supervision. The draft order allows the returning officer to determine which of a candidate’s proposed agents are to be appointed for the purpose of attending the postal voting proceedings if the list submitted by the candidate contains more names than authorised by the returning officer.

As Members of your Lordships’ House know, the Government wish to proceed with the referendum on the UK general election voting system on 5 May next year. The Bill dealing with that is currently under consideration in your Lordships’ House—indeed a number of noble Lords have participated in those debates. On Monday, your Lordships’ House rejected an amendment that would have prevented the referendum poll from taking place on 5 May 2011, when the elections are scheduled.

In closing my introductory remarks, I wish to make reference to the Scotland Bill, which signals the Government’s commitment to implement the proposals contained in the Calman Commission on Scottish Devolution, including the recommendation to devolve responsibility for the administration of elections. Indeed, no doubt the comments made by the noble Lord, Lord Browne, will be taken into account by those who administer elections in the future. The Scotland Bill was introduced in the House of Commons on 30 November, but it is clear that the Bill will not receive Royal Assent ahead of the May 2011 elections.

Of course, not all of Ron Gould’s recommendations were for the United Kingdom Government to act on; some of them were for the Scottish Government, the Electoral Commission or, indeed, for electoral administrators to implement. I hope that this House is reassured that the draft order will ensure that we take the necessary steps recommended by Ron Gould—accepted and adopted by the previous Administration and incorporated into the draft order—and ensure a successful election in May 2011. I commend the order to the House.

[Lord Browne of Ladyton]

My Lords, I support and welcome this order, despite the defects. I am grateful to the Joint Committee on Statutory Instruments for its sixth report and the work it has done in identifying these defects. Together with other Members of your Lordships’ House, I received a letter from a man who has been described in the other place as an SNP lawyer. It contains a briefing that sets out a number of points relating to drafting in areas where this order could be improved. I do not support the general thrust of the argument that we should have taken this opportunity to go beyond consolidation of the legislation and gone into substantial revision in interpreting Mr Gould’s thinking and changing parts of the existing legislation. That would have involved the whole scope of consultation which was not possible in the time that was available. I am pleased that the coalition Government have continued the work that was started under the previous Government—and indeed that I started as Secretary of State. I welcomed Ron Gould’s recommendations in the main, although I did not welcome or accept all of them. I am pleased the coalition Government are setting about the painstaking and difficult work of implementing those recommendations.

I cannot avoid making one or two points because I think they have to be on the record. As I have said, I was the Secretary of State who received Mr Gould’s report via the Electoral Commission. I have to say that the environment in which that report was received was unedifying in many ways. Many people in Scottish politics were trying to avoid responsibility for what had happened in May 2007, and there was one particular pretty appalling attempt to load all the blame onto one individual. I will come back to that in a moment.

The Gould report, read properly, did not reflect well on Scottish political parties, or on the machinery that existed for conducting elections. It clearly was not able to accommodate the level of complexity that it had imposed upon itself by decisions and was not able to conduct the elections on the day—the joint elections with complicated ballot papers—in a way that ensured that everybody who turned up and properly presented themselves could vote. That was a collective failure, but there were many people who were scattering to the winds and re-writing history to avoid their responsibility for that time. However, problems in the machinery were identified, and I think that those problems were shared by all. I do not exclude the Electoral Commission or any of the other organisations, individual returning officers or some local authorities; everybody bore a share of that responsibility.

16:45

First, I am concerned at the level and scale of errors in the draft. That is not because of their effect—because, as the noble and learned Lord said, they have no effect and will not in any sense impede a proper or fair election in the next Scottish parliamentary elections. They may be a symptom of an underlying problem and that should be examined. It is now the responsibility of the coalition Government—indeed, of those people who were very quick to try to blame political figureheads but are now the political figureheads of that system—to present again from that process and infrastructure, which is not of the standard that we would expect. Some significant and difficult questions need to be asked of that infrastructure.

On my second point, this man who has been referred to as an SNP lawyer has a decent point. There appears to have been a lack of consultation on the draft of the order, although there may have been a consultation on a draft. I have not been able exhaustively to investigate who was consulted about what approximated to the draft that has been presented to Parliament, but coincidentally today, as I was making my way from this House to my office, I bumped into a man who I know very well and who I would call a friend of mine who has for years for the Law Society of Scotland kept an eye on legislation with a Scottish interest as it is presented to this House. We all know Michael Clancy, and we all regard him very highly. He said to me, “We were not consulted”. I see other noble Lords nodding to indicate that they were told the same thing by him; indeed, he told me that he had been contacted by other noble Lords. If the Law Society of Scotland, which is diligent in these matters, and which could have identified some of the problems, was not consulted, who was consulted on the draft that is now presented to us?

The Minister knows that I have the highest regard for him. He has been candid in his admission of those problems, and I am sure that he will respond positively. However, that suggests to me that something is fundamentally wrong here. That may be nearer to what caused the problem in May 2007 than all the stuff that grabbed all the headlines. There should be some calm reflection. We will see this order through, we will see these parliamentary elections conducted as well, I hope, as were the UK elections in Scotland—probably by the same people—but there should be some calm reflection and a period of review before we hand this over through the Scotland Act to the Scottish Parliament, or it will just inherit the same machinery. We should look at the machinery to see if it is performing properly. I suspect that we will find things that could be improved, and I think that, as parties which were in government during the relevant period, we should share responsibility for its existence. I am not seeking to apportion blame to any individual party, but it is the responsibility of the parties now in government, and they have the chance to deal with it.

I am slightly at odds with the noble and learned Lord, Lord Wallace, because I am not so sanguine in dismissing the failure to meet the six-month window. Not conducting elections with legislation that is less than six months old was Ron Gould’s fourth recommendation. The recommendation was not that it should be put out in draft form for consultation or discussion; it was that we do not ask the machinery of elections to operate legalisation that it is less than six months old. That was clearly his recommendation. That window has been missed. It may have been missed for very good reason, and I have no doubt that if we tracked it back to my acceptance of Ron Gould’s recommendations, we would discover that some of that delay has its roots in things that happened when I was the Secretary of State for Scotland or when one of my predecessors from my party was Secretary of State. I accept that.

However, it is not good enough that a fundamental recommendation that was accepted by government and is now a responsibility borne by this Government has been missed by us collectively. The noble Lord was adept at saying, “We have kind of met this time limit by doing these things”, although I did not think his heart was entirely in it. However, if it turns out that the draft that was circulated some time ago is significantly different from the draft that became the order, that, although not misleading, does not really help to explain whether we are getting this right, and it feeds back to the first point I made. I shall move on as I do not want to detain your Lordships' House too long in relation to this, but some of my DNA is on this legislation, and I want to make sure that if it is found at the scene of a crime in future, there is evidence to explain my views.

In preparation for this short debate, I refreshed my memory about what I said in the other place as Secretary of State in response to Ron Gould’s recommendations and which of them I accepted and which I rejected. I came across this little vignette, which I think I should share with the House because I want to put it on record. In response to my Statement, David Mundell, who is now the Parliamentary Under-Secretary in the Scotland Office and the Minister who dealt with this order in the House of Commons in what I thought then and still think was a comparatively disgraceful way, went hunting the head of my right honourable friend Douglas Alexander, who had been Secretary of State for Scotland in May 2007, and made some unworthy political points. He said:

“The Secretary of State knows that when candidates and agents break the rules for their advantage they go to prison. What sanction does he propose for Ministers who seek to make rules for their partisan advantage?”.—[Official Report, Commons, 23/10/07; col. 168.]

He was wrong to try to heap all the blame on to one man, and he is now living proof of the fact that the assertion that he made was wrong, too. It is not the case, and he knows it, that when candidates break the rules for their advantage, they go to prison. This is a lesson to all of us. What we say in this House and in many other places is now recorded for posterity, and there is a significant degree of irony in this for Mr Mundell which, from reading in Hansard what he said when he introduced the order, was perhaps lost on him, but it should not be. On some occasions, we should exercise a degree of reflection before we let our political heads rule our political mouths.

Finally, I regret that, despite the overwhelming advice of Ron Gould, at the Scottish parliamentary elections we are again going to be faced by a complicated and unnecessary double event—if the coalition Government get their way, we are going to have a referendum at the same time. People are very good at cherry-picking Mr Gould’s words. They did this in the other place, and I hope that the Minister will resist the temptation to do this in response to me. It is the case that Ron Gould sent a memorandum to the Scottish Affairs Select Committee in which he said, among other things, that he thought that a contemporaneous referendum and Scottish Parliament election could happen. But if one reads the whole of the memorandum, he is still, in analytical terms and in his advice, in exactly the same position as he was when he reported to the Electoral Commission and, through it, to the Scotland Office and Parliament in 2007. From all his years of experience, he recommends that we do not do this.

It is doing a significant disservice to him to have him prayed in aid in support of the quite disgraceful decision by the coalition to breach a principle, which has been a principle of the way in which we have conducted our electoral affairs for a long period of time; namely, that we do not use one set of elections to generate support for, or to uplift the interest in, another electoral decision.

I will not crow over this and I will not seek people’s heads if it comes about, but I say to the coalition that if it gets its way and does to Scotland the disservice to their electoral processes that dominating them by a referendum will do, the people of Scotland will take a long time to forgive the parties which make up that coalition. The Conservative Party already knows what it means for the people of Scotland to take a long time to forgive them, but the Liberal Democrats will learn this very quickly. It is still not too late to think again about combining these two events on the one day.

[Lord Maclennan of Rogart]

My Lords, I again thank my noble friend for his exposition of not only the order, but also the Government’s reaction to the report of the Joint Committee on Statutory Instruments on the defective drafting of the order. It has to be said that this is a long, complex and not consumer-friendly order. It would be my recommendation that a proper guide to practice set out by this consolidating order should be made available to help the many people involved in elections in Scotland to find their way around the rules. Much of the order is drafted by reference to other Acts and other rules, sometimes with cross-references within the order. It cannot be an easy matter for those who have responsibility at a local level—not perhaps legal responsibility, but the responsibility of organising a campaign appropriately—to master the complexities of such things as who may obtain information about the forthcoming election, what are the limitations on the information that is required to be revealed and to whom. I think that a handbook, which needs not have the force of law but which is consistent with the order, would be a practical and helpful step to take.

Within this order, there are a number of useful changes. It is not purely a consolidating order. Although it is helpful to have the rules all contained in one order, it is also sensible to have made some of these changes. In particular, I believe that the extension of the timetables for holding elections and the different elements of the election make sense because it means that there will be less pressure of time on those who have responsibility for orderly conduct of the election. In the light of the experience in 2007, it makes sense to revert to the manual count. We cannot regard what happened then with anything other than dismay.

The order is also helpful in setting out the new limitations on pre-campaign expenditure. I assume it is the Government’s intention that any changes which may be required will take account of the current legislation, which is considering the possibility of a referendum being conducted on the same day, and will be included in the Act. But as the Government have indicated that there will need to be a new draft of this order to reflect their acceptance of the defective drafting, I hope that there will be an opportunity to consider the matter briefly in both Houses and consolidate the change at an appropriate time.

17:00

I do not find the drafting of the order entirely clear, but I have no intention of going through in detail its 200 pages since this is not a Committee stage and we have a limited time for debate. Let me take one or two examples at random. I do not expect the Minister necessarily to respond to them, but they touch on an important point made by the noble Lord, Lord Browne of Ladyton, about the system that has produced this order and the need to consider the adequacy of the arrangements for drafting. Article 5(3) states that:

“An election shall not be questioned by reason of—

(a) any non-compliance with the provisions of this article; or

(b) any informality relating to polling districts or polling places”.

These provisions are remarkably opaque. They are not made clear by any definition of the article, nor is it even made clear who would determine whether there has been non-compliance with the provisions of the particular article, or what is meant by “informality” relating to polling districts or polling places. Both those provisions seem confused and confusing.

There are other provisions which again I find far from clear or instructive to those who will have to administer the rules effectively. Article 15 is headed:

“Officers of councils to be placed at disposal of returning officers”.

Paragraph (1) states:

“Every local authority in Scotland shall place at the disposal of the CRO”—

the constituency returning officer—

“for a constituency wholly or partly situated in their area … the services of officers employed by the authority”.

It does not make it clear what criteria will be used to judge the number of people to be made available to returning officers. If in a time of financial stringency efforts are made by local authorities to reduce the cost of conducting elections by limiting the number of officers made available, that could lead to further confusion, which would be highly undesirable and bring the conduct of our democratic elections further into disrepute. There ought to be an adjudicating procedure to determine the requirement—or, if not, at least advice with some degree of moral compulsion behind it. I could go through this order almost article by article and take exception to the manner with which it has been produced. The intention, when producing a consolidating instrument, is to simplify the process for those who have to administer it, and I do not find that this objective has been achieved.

I hope there can be some additional reflection on the inadequacy of the Explanatory Memorandum, which is presented to Parliament to assist us in working through the document. It is likewise filled with errors of a typographical nature which reflect the lack of seriousness in its construction. Perhaps because it is a précis, reducing to a mere six pages a 200-page document, it is guilty of constantly making cross-references to other statutes. It is impossible to understand the meaning of the Explanatory Memorandum without actually having the statutes present on the desk as you go through it. I think it is losing sight of the purpose of Explanatory Memoranda if they are drafted in this incomprehensible manner and are not sufficient in themselves to guide the readers who are seeking to spot what is right, what is valued and what might need some alteration.

It is bizarre that there should be typographical errors in the preparation of the order itself, which have so confused the reading of Schedule 2 by mixing up all the parts. Of course I do not hold any Minister responsible but I think the question that was asked about systemic coherence by the noble Lord, Lord Browne of Ladyton, could be extended to the preparation of this order by lawyers and the lack of consultation which he has referred to. I believe that some people were consulted, but not consulting the Law Society seems an omission which could in future be rectified to advantage—in my experience the Law Society has been extremely careful in giving its advice. I recognise that the Government have had to proceed against quite a tight timetable to produce this order in time to enable it to be the ruling guide to the elections to be held in May, but it is certainly not an exemplification of how to proceed by way of statutory instruments.

In conclusion, I welcome the decision to transfer the conduct of Scottish parliamentary elections, which my noble friend referred to, in the Scotland Bill in conjunction and in accordance with the recommendations of the Calman commission on further devolution. It seems to me that, in these limited debates on statutory instruments, we can give only inadequate scrutiny of something so profoundly important as the conduct of parliamentary or local elections in Scotland. It is a deficiency of our scrutiny which I think will be rectified by what is proposed.

[Lord Davidson of Glen Clova]

My Lords, despite the blistering attack by the noble Lord, Lord Maclennan of Rogart, on the order and on the Explanatory Memorandum, we welcome the fact that the Government have continued the work of the previous Government in implementing the recommendations of the Gould report and the inquiry by the Scottish Affairs Committee. This is particularly so after the unfortunate experience in the 2007 Scottish elections to which the Minister has alluded.

There are, however, two aspects on which I wish to hear the Minister’s answers: first, the decision to combine the referendum with the Scottish parliamentary elections on the same day; and, secondly, the delay in bringing forward this electoral legislation. As he is aware, both these aspects do not gain the support of the recommendations of the Gould report.

The combination of the referendum and the Scottish parliamentary elections at least runs the risk of creating voter confusion similar to that identified by Gould in the 2007 election arising out of the combination of local government and Scottish parliamentary elections. Gould reports such a combination as a disservice to the electorate. I shall be interested to hear the Minister’s answer as to why the UK referendum on alternative voting on the same day does not detract, to some degree, from the Scottish parliamentary issues and candidates, and, indeed, vice versa.

The other area of dissonance with the Gould report on which I also wish to hear the Minister’s answer is in respect of the delay in bringing the order forward. I share the concern of my noble friend Lord Browne of Ladyton on this point. I, of course, understand the crowding-in effect that can afflict government business; however, as the Government have made much of the aspiration to move to more efficient governance, I would observe that they have not met the Gould recommendation that electoral legislation should not be,

“applied to any election held within six months of the new provision coming into force”.

Given the unfortunate aspects of the 2007 Scottish parliamentary elections, it might have been hoped that the Government would have adhered to what Gould identified as,

“a practice found in the electoral laws in other countries”.

Is there a reason for this approach? As there was an opportunity to take a major initiative to rationalise Scottish parliamentary election legislation, I would be interested to hear why this recommendation has not been followed.

On the drafting infelicities to which my noble friend Lord Browne of Ladyton has already alluded, I took the Minister’s answer to be an acceptance that there is a systemic problem in the drafting. As my noble friend put it, this seems to be a symptom of a real problem in the process. Again I will be interested to hear the Minister’s answer to this analysis. I can well understand my noble friend’s disappointment in discovering so many infelicities as it was he who approved the task of consolidation of electoral legislation, the whole point of which is to bring everything together in a more understandable formation of legislation.

I also share my noble friend’s astonishment at the failure to consult the Law Society of Scotland. I also draw the Minister’s attention—he may be aware of this—to the fact that the Faculty of Advocates in Scotland can also provide useful views in relation to constitutional matters. I, like he, am a member of that body.

17:15

Perhaps I may mention one further matter. I share the view of my noble friend Lord Browne about the unworthiness of the attack in another place that was made on the right honourable gentleman Douglas Alexander. I think most people would agree that he was one of the most able Secretaries of State for Scotland to serve Scotland.

In relation to the observation of the noble Lord, Lord Maclennan of Rogart, that a guide might be provided in relation to this legislation, I respectfully wonder what it might look like. I share his concerns about the Explanatory Memorandum as possibly providing light. I wonder whether a guide would, in the same way, run the risk of not really providing much more in the way of light. The hope that this is never prayed in aid in construing legislation is a hope that is not always fulfilled.

[Lord Maclennan of Rogart]

I wonder if the noble and learned Lord would accept that a short guide could, in its appendix, refer to the relevant provisions of law, but that the guide itself need not be an expression of the law; it is simply a guide. A lot of lay people who are not lawyers have to understand the basic rules. These are obscure and cannot be easily abstracted from this document.

[Lord Davidson of Glen Clova]

That is certainly an ambition that I would applaud. It is the execution with which I perhaps have a degree of concern. When one has seen what has been done with the Explanatory Memorandum, even a short guide for the increase of understanding by ordinary lay people would help. It is a matter on which we will never know the answer, I suspect.

In conclusion, despite the points that I have made in relation to the matter so far, I welcome the useful changes that have been produced by the order, which should enable a more rational, modernised election process in Scotland.

[Lord Wallace of Tankerness]

My Lords, I thank all noble Lords who have participated in this debate, notwithstanding some of their criticisms about the technical details and some of the content of the order. Nevertheless, they have welcomed the generality of the order and indicated their support for it. I shall try to deal with a number of the important, serious and constructive points that have been made, which merit a response. First, I will deal with perhaps the politically more controversial part—the elections being held on the same day as the proposed date of the referendum on the voting system to be used for the other place. The noble Lord, Lord Browne of Ladyton, indicated that Mr Ron Gould, in his submission to a Select Committee in the other place, had made comments on this; and I accept that he expressed a preference for separate dates. However, it is important to put on the record that he said:

“The marking of yes or no on a referendum ballot is much easier to understand and carry out than the requirements of marking an STV ballot”,

which, of course, was the other ballot paper that voters had to fill in for the election in 2007. He went on to say that there were benefits to combination with reduced and higher turnout. He specifically said,

“I do not believe that the same factors which led to voter confusion and the large number of rejected ballots at the last Scottish Parliamentary and Municipal elections would arise if both the Parliamentary Election and the Referendum were held on the same date”.

[Lord Browne of Ladyton]

My Lords, I am significantly disappointed in the Minister, because I set exactly for him where the trap was and he walked right into it. In my view, it is entirely inappropriate to edit this man’s words. They have to be read in their entirety. The debate about his recommendations was bedevilled by the editing of his words, sometimes down to parts of paragraphs in order to make points. This man is an expert. He reported in full. He wrote a memorandum, every word of which I am sure he pored over, to the Scottish Affairs Select Committee. In the sentence immediately before the one that the noble and learned Lord chose to read, he clearly made the point that if a referendum was conducted at the same time as an election, it would overshadow the election, and that would not be an appropriate thing to do.

That is the argument that I make. Of course it is possible to conduct these two mechanisms at the same time. Of course it is possible for Scots to get their brains around putting Xs on different bits of paper in the right order. The point that he makes, which is consistently ignored, is one that has been made repeatedly to this coalition Government: they are doing a disservice to the Scottish Parliament, to the Scottish people and to their election by creating an environment in which another issue will overshadow that election. That is the point that he makes and the one that needs to be addressed.

[Lord Wallace of Tankerness]

I do not think that I walked into any trap; I acknowledged that Mr Gould had said that he would prefer a separate date.

I ask the noble Lord to reflect that the first election to the Scottish Parliament in 1999 was held just a matter of weeks after the NATO engagement in Kosovo. That issue dominated much of the election period. Indeed, he will no doubt recall the leader of the Scottish National Party starting the election campaign by saying that it was error of some proportion—I think he said that it was an unpardonable folly. That was a huge issue that dominated the news, but no one suggested at the time that it detracted from the proper discussion and debate about the issues that the new Scottish Parliament was going to debate.

The noble Lord will also recall that in 2003, some six weeks before the election, under the leadership of his right honourable friend Mr Tony Blair, this country invaded Iraq. The noble Lord supported it; I did not. Nevertheless, it was an issue of considerable importance—neither of us would disagree with that. The whole invasion campaign dominated the period of the Scottish election campaign. I do not think that anyone suggested that debates on the issues that the Scottish Parliament was responsible for, be that health, education, transport or local government, were in any way impeded and that politicians did not engage in those debates as they went to the hustings in the May 2003 election.

I suspect that, by comparison, however important we may think a referendum on the alternative vote system for the House of Commons is, in my view that does not compare in gravity with the invasion of Iraq. I have no doubt that when it comes to the lead-up to the election, the people of Scotland will be able to distinguish clearly between the issues involved in the election of Members to the Scottish Parliament and the issue that they will be asked to address of how the other place should be elected in future.

The noble Lord seemed to suggest in his remarks that it was a constitutional outrage to link two polling opportunities together. He will no doubt recall, or maybe he does not, that in May 1998 the Government, of which I suspect he was not a member then but was subsequently a member, actually combined the referendum on the London mayor with the London local elections. I look back and consider that the general election of 2001 was linked to the local elections; indeed, they were both moved—at least, the local elections were moved and the general election piggybacked them—to June 2001 because of foot and mouth disease.

I think that I am right in saying that in 2009 the Government of which the noble Lord had recently ceased to be a member moved the local elections to coincide with the European election, and that the right honourable gentleman Gordon Brown was quite happy this year to combine the general election with the English elections that were already taking place. The combination of elections is not exactly unprecedented; there has been quite a lot of it in recent times.

[Lord Davidson of Glen Clova]

While it is always fascinating to have a lengthy analysis of many things that have nothing whatever to do with the Scottish parliamentary elections, I remind the Minister, if he is going to continue with this theme for many more minutes, that the Gould report dealt with the point that if one has two particular votes being made at the same time, the concern is that there would be a dominance of one campaign by the other. He considered that it was wholly inappropriate to have the Scottish parliamentary contest potentially dominated by another election or vice versa, as I indicated earlier. If the Minister might answer that particular point as opposed to proceeding with his historical analysis, we might gain some light on the matter.

[Lord Wallace of Tankerness]

The only reason I proceeded with an historical analysis was that the noble and learned Lord’s noble friend said that it was “almost unprecedented”. I was identifying a number of occasions on which it had happened, under the auspices of the Government of which both noble Lords were, at some time, members.

[Lord Browne of Ladyton]

The coincidence of elections with foot and mouth, or with events such as conflicts, may be things we have to live through. I understand all that. I will not rehearse a speech I made at a Committee stage; the Minister was in the House when I made it. My point then was that I concede that there are, in some circumstances, arguments for what I call analogous elections, where the same parties are competing broadly over the same body of policies, either at local, regional, mayoral or national elections. There is some argument for combining them. My point, which I thought he understood, was that there is a strong body of academic, analytic and political opinion that says, “To conduct a referendum, which because of the nature of a referendum involves cross-party working and confusion, potentially against a background of party-political politics, with a party-political contest, is designed to confuse”. My point in the other debate, which I will allude to briefly, was that, particularly in Scotland, where our media is and will be dominated by arguments from London, this will do an extraordinary disservice to the Scottish people and the Scottish Parliament. Of all Members of this House, the Minister, having been a Member of that Parliament, and knowing how much it is valued by the people of Scotland, should recognise that. He should have listened to that Parliament’s view.

[Lord Wallace of Tankerness]

I am not sure about the confluence of interests between a European election and local elections; they are somewhat far apart. However, I take the noble Lord’s views that referendums are somewhat different. Of course, he will no doubt give us an explanation of why the Government in which he served brought together a referendum with local elections in 1998.

On what the noble and learned Lord, Lord Davidson, said, I indicated in my earlier remarks to the noble Lord, Lord Browne, that I have fought two elections to the Scottish Parliament in 1999 and 2003, both against the backdrop of war. It did not impede the people of Scotland from being able to address and identify what the issues were in the election. The fact that there is a concurrent referendum campaign in May next year will in no way impede them from evaluating from what the parties are putting before them—nor, indeed, from making up their own minds as to whether they wish the alternative vote system to be used for future elections to the other place or not.

I fully understand the absence of the noble Lord, Lord Foulkes of Cumnock, as I am sure that he wishes to be in the Scottish Parliament today to express his support for the Scotland Bill. He has amendments tabled for later stages in Committee on the Parliamentary Voting System and Constituencies Bill, and I rather suspect that this argument has got some way to go yet.

On the timing, the order will not be made until within six months. Nevertheless, the order was also laid within the six months. Subject to the typographical errors in the draft, it will be the same order that had been laid and circulated to political parties, returning officers and electoral administration officers. Therefore, while the form did not meet the six months, the substance certainly did. I hope that noble Lords will accept that. The timetable was set in motion by the previous Administration. I have no criticism of that, but it was always going to be very tight.

17:30

That links into consultation. I am able to inform the House that the Law Society of Scotland was not consulted. As far as we are aware, it has not been normal practice to specifically consult the Law Society for Scotland on electoral matters. None the less, I hear what has been said on that point. I can give some further detail as to the consultation that took place. Much of it focused on the consultation—possibly instigated by the noble Lord, Lord Browne—following the receipt of the report from Ron Gould. Focus groups were held with members of the public in late May and early June 2008, including those with special needs such as the visually impaired and those with learning difficulties, to find out the view of the members of the public on election issues that directly impacted on voters. Representatives from the Society of Local Authority Lawyers and Administrators in Scotland, the Society of Local Authority Chief Executives and Senior Managers, the Association of Elected Administrators, the Scottish Assessors Association and the Electoral Commission were fully involved in the consideration of the amendments to the 2007 order. The Presiding Officer of the Scottish Parliament was consulted on the changes to the returns book and the increase in the minimum period for the dissolution.

In accordance with Section 7(1) and 2(g) of the Political Parties, Elections and Referendums Act 2000 the draft order was sent to the Electoral Commission this year on 6 April for statutory consultation. The commission made a number of observations that were considered when finalising the order. The draft order was sent to the electoral administrators on 14 April and to members of the Electoral Commission’s political parties panel on 11 June 2010. The reason why it was not sent to political parties before then was because of the election and the purdah period. Copies of the draft order, as I have already indicated, were sent to returning officers, main political parties and the Electoral Commission on 25 October.

It is always possible to improve. I accept and acknowledge the considerable forensic skill that someone like Mr Michael Clancy brings to dealing with these matters. I take on board the point that was made by the noble Lord, Lord Browne, and reflected in the comments from my noble friend Lord Maclennan of Rogart. In terms of the errors that have been identified, I suspect that it is always a possibility when you are consolidating that those parts of the order that have never given rise to any difficulty in the past simply get rolled forward and more attention is paid to the bits that are new and are being incorporated. I rather suspect that that is what happened. It does not excuse it. Given that the Scotland Office sets out as one of its key objectives the efficient running of Scottish elections, I will draw my noble friend’s remarks and those of the noble and learned Lord, Lord Davidson, and the noble Lord, Lord Browne, to the attention of my right honourable friend the Secretary State for Scotland and ask what can be done to have a thoroughgoing review before this responsibility is handed over to the Scottish Parliament, assuming the provision is enacted in the Scotland Bill. I do so without commitment, though I commit to ensuring that these remarks are brought to the attention of my right honourable friend.

My noble friend Lord Maclennan of Rogart also mentioned the possibility of a handbook. I suspect that will not be possible as such between now and then. However, I am advised that the Electoral Commission will bring forward a guide that will be based on the detailed statutory provisions that are here. Some of the complexity that he referred to is due to the fact that much of this reflects what is in the Representation of the People Act 1983, as amended and, no doubt, as amended as amended. With regard to the possibility of the referendum being held on the same day, anyone who is familiar with the provisions of the Bill—I am sure that the noble Lord, Lord Browne, is—will know that the rules for normal parliamentary elections are set out in primary rather than secondary legislation. There will be ample opportunity to discuss these in detail at a later stage.

Finally, to clarify a point made by my noble friend Lord Maclennan, the amending order will come at a later stage. Assuming the House approves this draft order, the order which will be made will be the draft order, as amended, with the typographical error sheet attached. Any future order will obviously have to go through a proper consultation process comprising statutory and other consultees. We take on board the point made by the Law Society of Scotland and the Faculty of Advocates that it cannot happen before the election. Whatever comments have been made, I think we all wish these elections in 2011 to be successful in their operation and administration. We have different views on what success means in terms of political outcome—that will be a matter for the electorate to determine—but we have a responsibility to ensure that we try to get the administration right. Adopting the recommendations that have been made, which were set in train by the previous Administration and brought to fruition with the order before the House today, will pave the way for successful and efficient elections. I commend the order to the House.

Motion agreed.

House adjourned at 5.35 pm.