Constitutional Law

Thomas Docherty Excerpts

Wednesday 24th November 2010 Commons Chamber

[The Parliamentary Under-Secretary of State for Scotland (David Mundell)]

I beg to move,

That the draft Scottish Parliament (Elections etc.) Order 2010, which was laid before this House on 25 October, be approved.

The order consolidates the rules for the conduct of the Scottish Parliament elections and ensures that the accepted recommendations from the Gould report, and a subsequent inquiry by the Scottish Affairs Committee, 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.

Many Members will remember that more than 180,000 votes were lost due to rejected ballot papers in the 2007 Scottish Parliament and local government elections. That is totally unacceptable in a modern democracy, and there was widespread public outrage at the time. Indeed, I instigated a debate on the subject in the House in May 2007.

Ron Gould was commissioned by the Electoral Commission to review the 2007 Scottish elections, and concluded that six main factors had contributed to confusion, and so to the level of rejected papers. First, there were many problems with the design of the ballot papers. Secondly, a new proportional voting system for local government elections was introduced, and voters were confused by using two electoral systems on the same day. Thirdly, there had been poor co-ordination of the publicity campaigns of the Electoral Commission, the Scottish Government and others. Fourthly, there were problems caused by electronic counting. Fifthly, there had been fragmented and late legislation on the matter and a lack of involvement in the legislative process by electoral administrators. Sixthly, 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 in 2007, and I believe that a successfully administered UK general election in Scotland earlier this year will have gone some way to doing that. However, I am pleased to say that the Scotland Office has continued the work started by the previous Administration of implementing the Gould recommendations, and the subsequent recommendations of the Select Committee on Scottish Affairs, that the Government accepted at the time.

[Thomas Docherty (Dunfermline and West Fife) (Lab)]

The Minister mentioned that he raised the matter some time ago, after the last Scottish Parliament election. He might also recall that in 2004, a Member of the Scottish Parliament for the South of Scotland region argued very coherently that we should decouple elections. Does he agree with himself that that is the best way forward?

[David Mundell]

I regret that, at that time, the Labour party did not accept the coherence of my argument. It was, of course, the Labour-led Scottish Executive who insisted that the Scottish local government elections and the Scottish Parliament election went ahead together.

--- Later in debate ---

[David Mundell]

The people of Scotland prefer being part of the UK to Scottish independence, but we are not debating that this evening; we are debating the Scottish Parliament (Elections etc.) Order 2010.

[Thomas Docherty (Dunfermline and West Fife) (Lab)]

There is only a handful of Lib Dems in the Chamber tonight, but where is the Secretary of State for Scotland? What important, pressing issue means that he did not want to come here to take part in this vital debate?

[David Mundell]

The Secretary of State had confidence that I would be in a position to make the case for the order. The hon. Gentleman had the opportunity last week to ask where the Secretary of State for Northern Ireland was when the equivalent Northern Ireland order was debated, and he will likewise have a similar opportunity to ask where the Secretary of State for Wales is when the equivalent Wales order is debated next week.

On the Gould recommendation for a six-month cut-off for changes in the law that governs the conduct of elections, we have ensured that the electoral administrators and political parties are well versed in the changes to the legislation well in advance of May 2011. Indeed, I discussed the order this week with Mary Pitcaithly, the new chair of the Electoral Management Board for Scotland, and I have arranged a further meeting with her and representatives of the board on 21 December.

The targeted 5 November working date for making the order would be challenging for whichever party won the recent general election. However, the projected date for making the order is considerably earlier than the equivalent order before the last Scottish Parliament election, which was made less than two months before the date of the poll.

--- Later in debate ---

[David Mundell]

I will take your advice and stick to the discussion of the order, Madam Deputy Speaker. I would like to refer hon. Members—I am sure that they will be interested in this—to a correction slip that was associated with the draft order. It makes a number of typographical corrections to the draft instrument, which will become part of the final order for printing if the draft is approved by Parliament.

[Thomas Docherty]

Will the Minister give way?

--- Later in debate ---

[Tom Greatrex]

I am grateful to the hon. Gentleman for his excitable intervention. I am sure that he, in common with many other Liberal Democrat Members, was at the last election and previously a great fan of pre-legislative scrutiny and consultation, although I note that he now seems to be less enamoured.

Although we are considering this statutory instrument for the first time this evening, it is referred to, and already amended by, the Parliamentary Voting System and Constituencies Bill, which has completed its Commons stages and is now being scrutinised in another place. The Bill—which, as I have said, refers to this statutory instrument—will permit the Scottish Parliament elections to coincide with the date of a referendum on AV, something which just about everybody other than members of the Government think is a bad idea. As the Minister noted in the latter part of his remarks, even the esteemed Ron Gould expressed his doubts on that matter. So the Commons has considered the Parliamentary Voting System and Constituencies Bill prior to the statutory instrument to which it refers having been approved by the House of Commons. That is not only completely illogical, but it is contrary to standard parliamentary practice and represents a worrying precedent. The Minister was careful not to seek to explain it, perhaps because he is embarrassed at such a blatant political fix. Perhaps he will explain it in more detail in his later remarks. I am not an experienced Member or an expert on parliamentary process by any manner of means, but if this is a measure of the tactics used, it leads me to wonder how we are expected to undertake our role in scrutinising the Executive properly.

The Executive have made much of their “respect agenda” towards the devolved Administrations and Assemblies, so why have the Minister and his Secretary of State, who is absent tonight, singularly failed to consult the Scottish Executive on the clash of dates? The Scottish Parliament’s view was clearly expressed last week when, by 89 votes to 30, it said that the elections to which this statutory instrument relates and the referendum should not be combined. It seems that the “respect agenda” has been superseded by the old and regressive new progressivism.

I ask the Minister to address a number of questions about the content of this measure. The Gould report recommended the appointment of a chief returning officer. Why is that recommendation not being followed through? Surely one of the main problems identified by Gould was the inconsistency in interpreting the guidelines. I am sure the Minister will recall that as a result of the number of list candidates who applied to stand in the 2007 elections, the returning officers in both Glasgow and Edinburgh removed a line of instruction to the voter at the top of the ballot paper but failed to consult others prior to making that decision.

Why are the UK government not considering, as the current proposal from the Scottish Government does, putting the Interim Electoral Management Board on a statutory footing, despite the fact that it is now the main source of professional advice and co-ordination for all elections held in Scotland? Do the UK Government believe that there should be two separate electoral management boards in Scotland or that it makes sense for such a board to be formed but not deal with either UK or EU elections? What arrangements will the UK Government establish to co-ordinate returning officers and chief returning officers for the 2011 elections, and for subsequent UK and EU elections?

If the Scottish Government proceed to make the IEMB a statutory body for local and Scottish Parliament elections, what do the UK Government envisage will be the relationship with it if other elections are held on same date and if the Minister’s much-vaunted consultation on what happens in 2015 does not end up in any result? Who will be responsible for what? How are we going to achieve consistency in rulings and implementation of arrangements?

Why is this statutory instrument following the Parliamentary Voting System and Constituencies Bill, rather than preceding it? Surely this statutory instrument should have been presented to Parliament before the Bill was introduced—there has been sufficient time for that following the general election. Will the Minister tell us on how many occasions a Bill that includes reference to a particular statutory instrument has completed its stages in the Commons prior to that statutory instrument being approved by this House? Does he not agree that this sets a dangerous precedent and attacks the ability of this House to scrutinise legislation properly?

Why is this statutory instrument coming to the House less than six months prior to the Scottish Parliament elections, despite the Minister’s acknowledged acceptance of the Gould recommendation that the rules should now be not merely published, but in place? Why are the coalition Government continuing with a joint ballot on 5 May 2011 when evidence and expert feedback suggests that the amount of spoiled papers will be higher? Surely that mirrors the problem identified in 2007 that multiple ballot forms can confuse, particularly those who are frail, those who have learning difficulties or those for whom English is not their first language. What testing has occurred and what methodology did it use? If the joint ballot is to be held on 5 May 2011, can the Minister clarify how the ballot papers will be set out? Will they be on separate ballots? If so, will they be on separate coloured ballots that have been tested and are acceptable for people with eye conditions? What testing will take place? Have all the proposed ballot papers been tested by the Electoral Commission? Have any discussions taken place with the Interim Electoral Management Board in Scotland about the dual poll? What concerns did it raise?

This statutory instrument rectifies the inadvertent problems in the previous election rules that prevented a candidate from being able to run as a candidate with a descriptor for two registered parties and use a registered symbol of one of those parties. I declare an interest as a Labour and Co-operative Member of Parliament. Perhaps in future elections those on the Government Benches may stand as combined party candidates. I therefore ask the Minister when that situation will be rectified for future UK elections as it has been for the Scottish Parliament elections.

On prisoner voting rights, will the Minister clarify when the Government intend to amend the franchise and whether that will occur before the 2011 Scottish Parliament elections? In their explanatory notes, the Government contend that they do not need to qualify their statement on the Human Rights Act 1998 because they do not consider the Scottish Parliament to be a legislature for the purposes of article 3 of the first protocol. Specifically, they mention the Toner case in regard to the Northern Ireland Assembly, in which a ruling has been made. Does the Minister not accept that the legislative competence and power of the Scottish Parliament is considerably greater than those of the Northern Ireland Assembly, and accordingly will he clarify further why the Government have now determined that the ruling will apply in Scotland? Why have the Government not adopted a precautionary approach and what estimate have they made that their interpretation will be subject to legal challenge?

[Thomas Docherty]

Given that the Scottish National party failed to consult this place or the other parties when it took away the tax varying powers, does my hon. Friend share my concern that Scotland perhaps does not have a proper Parliament any more thanks to the SNP?

[Tom Greatrex]

I am grateful as ever for the erudite intervention of my hon. Friend. Given that other matters are being discussed today in Edinburgh, perhaps we will all be able to reflect on those discussions in the fullness of time.

If reforms in prisoner voting rights are not implemented before May 2011, does the Minister consider that there will be further legal challenges on the alternative vote referendum and, if so, are the Government qualifying their Human Rights Act statement as regards that poll?

There are errors in schedule 2 of the printed draft order. Parts 2 to 7 are, from page 64 onwards, erroneously referred to as parts 6, 7, 8, 9, 10 and 11. As the Minister has mentioned, five additional drafting errors were noted by the Joint Committee on Statutory Instruments. He has clarified those errors. Will he tell us what steps will be taken to provide corrected information and the final order to those who will have to implement it?

On schedule 5, in what circumstances does he envisage a combination of Scottish Parliament and local government polls? Will he consider, given the Gould recommendation, that that is likely to occur only when there is a local government by-election? What provisions will he put in place should a council by-election take place on the same day as a Scottish Parliament election and an AV referendum? I would be grateful if the Minister could respond to those specific questions.

--- Later in debate ---

[Thomas Docherty (Dunfermline and West Fife) (Lab)]

I have taken part in all our constitutional debates on the Floor of the House, and I yet again welcome to his place the Parliamentary Secretary, Cabinet Office, the hon. Member for Forest of Dean (Mr Harper), who has taken a very keen interest in these matters. I am glad that he takes an interest in what, in theory, should be a Scottish-only affair, but it is disappointing that, yet again, the Deputy Prime Minister has not deigned to grace us with his presence. Nor, indeed, has the Secretary of State for Scotland, so I can only wish him a speedy recovery, because I cannot think of any other reason why he would not want to take part in this debate.

When the Under-Secretary of State for Scotland responds, I trust he will confirm that, unlike the Deputy Prime Minister, he has actually read the Gould report. Hon. Members will recall that, when the Deputy Prime Minister did on one occasion deign to turn up, he was forced to admit—[Interruption.] The Minister might have read the report of the report, as the Deputy Prime Minister admitted to doing. The Gould report raises some serious concerns, but I do not wish to labour the points that my hon. Friend the Member for Rutherglen and Hamilton West (Tom Greatrex) made so eloquently.

[Mr MacNeil]

My memory could be defective, but I somehow feel that in a previous life, in another role in this House, the Minister used to emphasise and put great weight on parts, if not all, of the Gould report. Perhaps he will clarify that later on.

--- Later in debate ---

[Thomas Docherty]

I am grateful to the hon. Gentleman for raising that issue and, like him, look forward to the Minister emphasising which parts of the report he agreed with then and still agrees with today. I am sure that, unlike certain Liberal Democrats, he is sticking to his guns.

There are some genuine and serious concerns about the logistics of combining the polls, and having had a chance to work through the rather weighty 260 pages of the order, I fear that some of those concerns have not been resolved adequately. In the brief time that I have, I shall try to touch on a couple of them. I should add that my local Liberal Democrat MSP—or rather my current one until May, when he loses—does not even agree with what the Minister is doing.

The first of the three issues that I should like to cover is postal votes. If you have had a chance to look at the report, Madam Deputy Speaker, you will recall the problems that we had in 2007 with local authorities issuing postal votes on time. Of course, the point of a postal vote is that it is for somebody who cannot make it along on the day. Some people did not get their postal votes landing on their doormats until the Monday or Tuesday of the week of the election. I am sure that the House will agree that that is most unsatisfactory. I would be grateful if the Minister would further outline exactly what he proposes to do to ensure that that situation does not happen again given that, on this occasion, effectively double the number of forms will be sent out.

The second issue relates to polling stations and counting stations. The returning officers have made clear in their submissions to the Scottish Affairs Committee, and elsewhere, their concerns that counting stations will not be big enough to take all the ballot boxes that are required and to do all the sorting and sifting that will be necessary. Indeed, additional recompense will be required because they will need to keep the counting stations open not only through the Thursday night but throughout Friday and perhaps into Saturday. In one or two locations, owing to well-observed religious views, the count for the referendum might take place the following week. There is also the serious issue of how Royal Mail will be able to cope, because not only the constituency lists but the material for the yes and no campaigns in the referendums will be going out.

Finally, despite the warm words from the Parliamentary Secretary, Cabinet Office, the hon. Member for Forest of Dean (Mr Harper), we still have not received absolute clarification of how much money Scottish local authorities will receive to help to pay for all the issues that I have outlined. Perhaps he could lean over and explain to the Under-Secretary what those figures are. It is disappointing that having eventually dragged this report out of the Government, they did not follow normal practice and let us scrutinise it before we debated the final stages of the Parliamentary Voting System and Constituencies Bill on the Floor of the House. I hope that the Under-Secretary can outline exactly how much compensation will be given to Scottish local authorities to run this ill-conceived referendum on the same day as the Scottish elections.