Scottish Parliament (Elections etc.) Order 2010

Lord Davidson of Glen Clova Excerpts

Thursday 9th December 2010 Lords Chamber

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.

--- Later in debate ---

[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”.

--- Later in debate ---

[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.