Scottish Parliament (Elections etc.) Order 2010

Lord Wallace of Tankerness Excerpts

Thursday 9th December 2010 Lords Chamber

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.

--- Later in debate ---

[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.