Official Report 507KB pdf
09:02
Agenda item 3 is an evidence session on the Scottish Government’s legislative consent memorandums on the United Kingdom Representation of the People Bill. We will hear from two panels of witnesses.
I welcome our first panel, which comprises Professor Alan Renwick, professor of democratic politics at University College London, who joins us remotely; and, from the Electoral Commission Scotland, Alison Williams, director of devolution and law, and Jackie Killeen, director of electoral administration and regulation, who join us in the room. I thank all the witnesses for joining us, and I thank the commission for its helpful written submission.
Before inviting questions from the committee, I invite Professor Renwick to make an opening contribution.
I thank the committee for inviting me to join you.
I will offer some quick reflections. It is useful for me to say, by way of context, that my work generally considers what a healthy democracy looks like and how we can best achieve a healthy democracy. That includes, among a range of things, work on electoral systems and the conduct of elections and referendums. In that context, over the past couple of years, I have been engaged quite a lot on the development of various aspects of the Representation of the People Bill.
To build on what I have said, I will quickly make three points. First, I have views on many, but not all, aspects of the bill. In so far as I have views, all parts of the bill are welcome and are moves in the right direction. As you know, the key parts of the bill relate to votes at 16, with the UK Parliament following in the footsteps of the Scottish Parliament; moves in the direction of automated voter registration; new rules, which are still evolving, on political donations; and provisions to strengthen the powers of the Electoral Commission and other aspects of enforcement. We should welcome the bill’s provisions.
Secondly, it is generally desirable for the rules of elections to be the same across different levels of government, in so far as is possible, to avoid voter confusion. Clearly, there could be confusion if there were different rules on registration or on how to cast an absent ballot. We want to avoid administrative complexity, and that could be caused by having different rules on automated voter registration in different parts of the system. We also want to avoid the danger of creating loopholes, particularly in the political finance regime. Most aspects of political finance are reserved precisely for that reason—we do not want to have different rules for donations to political parties at different levels.
None of that is controversial, and it is repeatedly recognised by the Scottish Government in the legislative consent memoranda that it has produced. Combined with my previous point, that means that it would be desirable in general for the rules at UK and Scottish levels to match, so it would be desirable for legislative consent to be given, unless there was a clear and specific reason for not giving it. That is reflected in the fact that the legislative consent memoranda recommend that consent be given on a range of points.
Thirdly, specific areas require careful attention. For example, the Scottish Government has already consciously chosen to diverge from practice at UK level in some areas, and the bill touches on those differences. That is not my area of expertise, so I might have less to say on that point.
That is my starting point in this discussion.
Thank you very much. In your introductory remarks, you have covered, in some respects, the importance of the bill and of providing clarity in legislation on elections, which will, we hope, result in a healthier democracy. There have been various iterations of the bill. Have the changes that have been made during the bill’s progress through the UK Parliament strengthened it? Are there any areas that still need to be covered?
The main changes that have occurred have been in response to the Rycroft review of political finance, which was a serious and sensible review that came up with a set of well-grounded recommendations. The UK Government has said that it accepts all the recommendations, and most of them have, indeed, been reflected through amendments at report stage. All of those changes strengthen the bill.
It is clear that there is still a debate on whether there should be a general cap on donations. The UK Government has introduced a cap on donations from overseas electors. I am one of the many people who have long argued that there should be a general cap on donations. To me, it seems indefensible that, in a democracy, we do not have a cap and that individuals can donate any amount. That is a clear violation of the core democratic principle of equality between people. I know that the Government is thinking further about what it might do in that area. A general cap on donations would be highly desirable. Colleagues from the Electoral Commission will be able to say more about that, because it has been asked to review spending limits.
The spending limits that were introduced in the Political Parties, Elections and Referendums Act 2000 were seen at the time as high spending limits that would be eroded by inflation. That erosion did take place until the Conservative Government suddenly increased those spending caps. I do not see that there was any justification for those increases, therefore the work that is now being done to think about reducing those spending caps is desirable.
On whether the bill has changed during its passage, I want to say something that is similar to what Alison Williams might want to say. We broadly welcome the measures that have been introduced as a result of the Rycroft review. I will let Alison talk about those, and I will perhaps pick up a couple of the other matters that have evolved over the course of the bill’s passage.
Like Professor Renwick, we welcome the strengthening of the bill in response to Philip Rycroft’s recommendations. The Government has amended the bill’s provisions, particularly on company donations, and has strengthened other areas. It is still working on know-your-donor provisions and unincorporated associations. The principles were clear at the outset of the bill, but the Government has taken on board recommendations about precisely how those matters will be implemented during the passage of the bill.
The Government has also strengthened aspects of the Electoral Commission’s powers—for example, in relation to information gathering, which we consider crucial to the expansion of our enforcement remit. In other words, we need to have the tools to be able to carry out the functions that the Government is entrusting us with under the bill and a strengthened political finance system.
It is right to say that we expect further amendments in the House of Lords, and maybe we should still look out for amendments in relation to company donations. To be fair to the Government, those are difficult provisions to get right. The Government has been honing those provisions against time, so there may be amendments there. We also still urge amendments in relation to information-gathering powers.
Professor Renwick referred to the spending limits review, which the Government has asked us to carry out, and to a wider domestic donation cap. Those are both matters of high policy for Parliament, but we think that it is right that consideration of those matters is proceeding outside the bill, because, if those matters are to proceed, they need to do so with a clear evidence base and with sufficient consultation on the impact with all those affected. So, although a spending limits review is now kicking off, and although there is certainly a debate about donation caps, those matters are proceeding alongside the bill rather than being rushed.
Jackie Baillie has questions in that area.
I would like to cover sections 4 and 5 of the bill, convener.
My question is about specific measures in the bill relating to the types of donations, such as those from overseas electors, from unincorporated associations and in the form of crypto assets. Does the bill deliver a proportionate approach to the concerns about, in particular, foreign interference in UK elections?
In principle, yes. There is a package of measures that should be seen overall. There are measures on crypto assets and the overseas electors cap, but there are also measures in relation to company donations, know your donor and unincorporated associations that we have been urging the Government to introduce for a considerable amount of time. They are a package and should be seen in that light, and we have broadly welcomed them.
Of course, there are principle and policy issues, which are matters that are less for us. However, in relation to workability and the operational perspective, we flagged to Philip Rycroft, and he reflected in his report, that it is more difficult to trace the sources of the assets when they come from overseas. We do not have extraterritorial jurisdiction, although we work closely with law enforcement agencies that do. We look at it from an operational perspective, and we certainly made that point to Philip Rycroft.
09:15
In her previous answer, Alison Williams referred to the importance of our powers being extended alongside the extension of the remit. In particular, powers to obtain and share information from entities that are outside an investigation, not limited to their income and expenditure, will be important if the measures in the bill come into effect and are to be effective, so that we can regulate and enforce them effectively.
There has been some interest in whether those powers should be applied retrospectively and there has been some public debate as recent donations have come into the spotlight. Do you think that measures in the bill should be applied retrospectively?
Ultimately, it is a policy call. Parliaments will, rightly, carefully scrutinise any retrospective or partially retrospective measures. I draw attention to the European Convention of Human Rights memorandum in the House of Lords, in which the Government set out why it considers the measures necessary and proportionate in the ECHR framework. From an operational perspective, we note that it will result in complex transitional provisions with multiple tests based on registration status, residence, and the date of donation. At the moment, there are three sets of transitional provisions in the bill in respect of new measures. Our role will be to support the regulated community to navigate that and apply the rules as they will be rather than as we think that they might be. We have already produced an advice note, but not formal guidance as yet, because it is not the law as it is. The note provides advice about how regulated entities might take preparatory steps in the light of the Government’s announcement.
Professor Renwick, do you think that the bill’s measures are proportionate to deal with foreign interference in UK elections, and should they be applied retrospectively?
I think that the specific targeted measures in the bill for dealing with foreign interference are appropriate. The wider difficulty is that, if big money plays a big part in our politics, people will try to get it from some kind of source and will try to find ways to get around the rules. We also need to work on the overall amount of money in politics and try to reduce the prevalence of big money in order to be able to deal with concerns about foreign interference.
In your response to the convener, you mentioned that you would be in favour of a cap on donations from UK electors. Would you want anything else to be added to the bill to deal with that?
I would also want measures on spending. The spending caps were increased in 2023, if I remember correctly, but I do not think that the increases were justified. I think that spending limits should apply throughout the electoral cycle rather than just in the period before elections. Those are the two key additional changes that I would urge the Government to consider.
In general, it is undesirable to legislate retrospectively, but it is sometimes justified if the announcement of the intention to legislate would cause behaviour to change in ways that would undermine the intent of the change. In this case, there is a good case for saying that measures should apply retrospectively, but you could go back only to the point that there was a clear announcement in the House of Commons about what the Government was going to do. There have been announcements about the limits on overseas electors and about the buffer period after someone returns to the UK.
There has been some discussion of whether there should be a clarification of what counts as being “in the United Kingdom” for those purposes. The legislation is not very clear on that. However, that cannot be applied back to the point at which the announcements were made, because there was no announcement of that clarification of the definition at that time. Care has to be taken not to go too far in retrospectivity.
Thank you for that. I will stick with you for my next question. What role should the Scottish Government or the Scottish Parliament have in the implementation of the know-your-donor checks for parties, candidates and campaigners?
Clearly, in most respects, law-making power in that area is reserved, but it affects what happens in devolved elections. It is therefore important that, at the very least, the Governments should co-operate with each other on those matters. From what I have seen so far, that is the case. I hope that that will continue.
What is the Electoral Commission’s view on that question?
I am not sure that I can do better on that than the professor of constitutional law at UCL. However, from the perspective of our accountability to all three parliaments and the need to make the law work in each part of the UK, we will engage with the Parliament and the Scottish Government closely. As Professor Renwick has indicated, there has been, from our perspective, very good co-operation over the bill and conversations with both Governments.
If you do not mind, convener, I will add a general point. Overall, the political finance landscape in the UK is now quite complex. It can be difficult for parties, candidates, campaigners and third-party campaigners to make sure that they fully understand it and are able to comply if they also have to be mindful of different provisions for different elections in different parts of the UK. If, for example, there were to be any combined polls across those, the risk of inadvertent non-compliance would be quite high. In the interests of promoting as much compliance and voter confidence as possible, therefore, we are keen that, where possible, there should be an aligned approach.
I will move on to part 5 of the bill, unless somebody wants to come in on part 4.
Before we move on to part 5, Patricia Gibson would like to come in.
I have a question on the retrospective aspect of donations. As the professor said, it is never ideal to legislate retrospectively. I am concerned about the practicality—the reality—of doing that, because it will take us back to a situation in which there are lots of disputes and arguments and counter-arguments from people who might be impacted by attempts to claw back or have moneys returned. I wonder whether it will add to the complexity of whatever genuine and well-meaning reforms are being made, and whether it might end up in court actions and disputes. Is there any precedent in any other field of endeavour of retrospective legislation leading to such a rabbit hole?
I am not aware of similar measures being applied retrospectively, but I do not go back to the beginning of the Political Parties, Elections and Referendums Act 2000, so it is possible that something has been applied retrospectively. However, my colleague, our general counsel, might have more to say on that.
You are right about the potential for risks and confusion, which is why we seek and urge clarity, both at UK Government level and in UK Government discussions with the Scottish Government, to make sure that, when the measures come into effect and are commenced, we are able to give clear guidance and are clear about the parameters in which we will be expected to regulate and enforce those measures. In the remaining period before the bill comes into effect, we are looking for that clarity to be achieved.
Alison Williams might want to add something on retrospectivity more broadly.
I echo what Jackie Killeen has said. At this stage in the bill’s progress, the provisions should be locked down as quickly as possible so that people can operate with certainty on that basis. Particularly when different provisions had different announcement dates, it becomes extremely important for everybody to be clear about the basis of operation as quickly as possible. From a legislative consent perspective, you can see that the Scottish Government, through its legislative consent memorandums, is tracking and echoing the changes and is still in discussion on those provisions and on the political finance provisions overall.
From our perspective, what is important at this point is having certainty and clarity particularly on those transitional provisions, locking them down and then enabling the Scottish Government to lock down its recommendations.
Professor Renwick, do you wish to come in?
I do not have anything to add to what our Electoral Commission colleagues have said.
I have a question about the cap on donations. For very good reasons, we want to ensure that the money that is collected by or donated to political parties is from the UK and that there is no undue external influence. I am wondering about the cap on donations from organisations. We tend to focus on businesses, but what impact will the cap on donations have on other organisations that donate to political parties, such as trade unions? Does anybody have any thoughts on that?
The focus on company donations in the bill is primarily intended to prevent foreign money from coming in through UK entities. It proposes to strengthen the controls so that, for example, a company that does not have a meaningful footprint or activity in the UK could not be used to funnel money into the UK when the money has not originated from it or is not strongly connected to it. That is what those measures are primarily intended to do.
So, there is no thinking about capping domestic donations.
That is not a provision in the bill as it stands.
Why might that be?
I think that it is about the way that the bill has evolved. The terms of reference for Philip Rycroft’s review were focused on countering foreign influence and interference, and the provisions have then found their way into the bill through his recommendations. Those were his terms of reference, that is what his recommendations were about, and that is what the Government has developed in the bill.
That is the primary risk that the measures are designed to defend against.
So, to be clear, no consideration is being given to the potential risks that are posed by any one organisation or individual in the UK making enormous donations to a particular party.
There are no measures in the bill as it stands to focus on that. As I said, the genesis of the measures was the concern about foreign interference and foreign money coming into UK elections. As Alison Williams said, the Philip Rycroft review focused primarily on foreign risks and interference. I know that there is a never-ending cornucopia of things in electoral law that could be changed in due course, but, in relation to political finance, the bill as it stands is focused primarily on managing those kinds of loopholes.
Professor Renwick wishes to come in.
I want to add to what Jackie Killeen has said, which was entirely correct. The bill as it stands does not deal with that issue. There was an amendment tabled by a Labour back bencher, Stella Creasy, to have a general cap of £100,000 on individual donations , but it was not accepted by the Government. Trade union donations would not have been subject to, and therefore would have been excluded from, the cap, and the Government responded by saying that, although it would not accept the amendment, it would establish what it called a task and finish team to look at the question further. My understanding is that it is still in the process of establishing that team, but it is a piece of work that it intends to do.
09:30
My view is that if the Government did introduce a general cap on donations, which, as I have said, I think it should, it would not be tenable to exclude just trade union donations from it. It would look highly partisan for a Labour Government to introduce such a measure. In a context of low trust in politics and in Governments acting in the public interest, such a move would seem to me to be highly undesirable.
Fifteen or 20 years ago, all of the main political parties in the UK agreed with the principle that there should be a cap on donations. The only reason that it did not happen was disagreement over how it should happen, because the different parties have different interests with regard to different kinds of donation.
I just think that the politicians at Westminster need to sort this one out. We cannot credibly go on claiming that we have a well-functioning democracy if it is possible for individuals, corporate entities or, potentially, trade unions to have a vast influence on the electoral process far beyond what the rest of us could imagine.
Thank you for that very insightful and direct comment. Do any members have any questions about finances?
This is probably quite a well-timed question from me. The donation provisions have been described as a blatant attempt to kneecap Reform UK. Does the panel accept that a combination of a retrospective overseas cap, the crypto ban and the timing of the measures while leaving trade union funding untouched creates a legitimate perception that one political party is being targeted?
No.
I should remind you, Mr Simpson, that we are specifically looking for evidence on the LCM.
I think that, in relation to workability and transitional provision, the Electoral Commission has already addressed, to the extent that it can, the purpose of the measures and the effects of retrospection. As you will appreciate, we cannot comment further on political matters.
Professor Renwick?
I guess that I can comment on political matters. The fact that this has been done in the way that Mr Simpson has described creates the danger of an understandable perception that this has been done in a highly partisan way, which I think is highly regrettable. Many people were urging the Labour Government from 2024 onwards—and, indeed, had been urging its predecessor Conservative Governments—to move on this issue, but sadly, it failed to do so in due time, which has created this very awkward situation that we now find ourselves in.
The fundamental point is that we need to protect our democracy, and equality of participation in it, so we need to introduce the kinds of rules that are being introduced here. As I have said, I think that the balance of considerations justifies a small element of retrospectivity in the application of the rules.
I ask Jackie Baillie to move on to part 5 of the bill, which relates to the Electoral Commission.
It is very tempting to answer Mark Simpson’s question myself, convener, but I will move on to part 5.
My first two questions are for the Electoral Commission. What will be the most significant changes to your powers and responsibilities in Scotland as a result of the bill? Are you adequately resourced to deal with them?
For the electoral community as a whole and for all participants in our electoral processes, we see some benefits from the proposed measures, provided that they are implemented well and that we have clarity in good time in order to prepare things.
Earlier, I mentioned the importance of having sufficient powers in place in time to deliver those measures and enforce them effectively. We think that, if candidates and local third-party campaigners across all parts of the UK were required to submit their spending returns to the Electoral Commission, and if we had a complete view of all the money flowing into politics, we could take a more streamlined, proportionate and consistent approach and ensure that there was no perception of an enforcement gap, because some potential offences are currently subject to police enforcement and there is concern that they might not always be a high policing priority.
It would be very welcome if such measures came under our remit. We would be concerned to ensure that they did not place an undue burden on parties or candidates. We would seek to implement them in as streamlined a way as possible and would work with returning officers to ensure that independent and individual candidates, for example, were well apprised of the changes before they came into effect.
In terms of Scottish elections and those participating in them, a unified and aligned approach would avoid the risk of the same issue being treated differently across elections, with an administrative error such as a late submission being treated as a civil offence in one election but potentially as a criminal offence in another. That is one change that we strongly welcome.
You have previously spoken about the alignment of powers and the need to ensure that there is consistency across Scotland and the UK. Does the bill deliver on that principle?
We understand that the Scottish Government is, rightly, still in discussion with the UK Government about some of the measures, and it undoubtedly wants to ensure that no inadvertent complexities are created as a result of consent being given, consent not being given or parallel legislation being required. We understand and appreciate the reasons for those discussions continuing.
Overall, we think that the benefits of alignment are very strong and in the interests of voters, administrators and, in particular, parties, candidates and campaigners in Scotland. We encourage early resolution of those outstanding questions, particularly to ensure that we can prepare the regulated community for implementation. I have said that before, so I apologise if I sound a bit repetitive, but it is a key message for us.
Do you know which issues are still in dispute?
I am not sure whether these issues are in dispute, but clarification will be needed on which measures apply to which elections. We also understand that there is a question around our information-sharing powers. Those powers would be new and, as Alison Williams mentioned, they are very important in enabling us to regulate and enforce many of the bill’s proposed measures.
For example, we would have a statutory gateway to share information with a list of prescribed organisations, from a law enforcement perspective or a wider regulatory perspective, and obtain information from them. Some of those organisations might be based in Scotland, so there is a discussion to be had between the Scottish Government and the UK Government about how such organisations would be added to or removed from that list.
Am I correct in saying that you currently have responsibility for and oversight of party finances more generally, and not only at election time?
We have an end-to-end responsibility. We are responsible for registering all political parties in any part of the UK. There are now more than 400 political parties on the register, which people find surprising.
There are more than 400?
Yes.
Wow.
We register parties and we inform them all of their ongoing obligations in relation to reporting. They make their annual statement of accounts returns to us, and they report to us their quarterly donations throughout the year. That also applies to some other regulated entities.
We have year-round engagement with and responsibility for parties around their compliance, and enhanced engagement and responsibility in election periods. In election periods, there is more frequent reporting and there are also election spending returns, which are made to us. We report those, consider them for compliance and, if necessary, take any enforcement action.
I wanted to confirm that you have that wider role because my next question relates to your enforcement powers. Would it be fair to say that you are more carrot than stick in approach? Will you indicate how many times you have used your enforcement powers in, say, the past four to five years?
We very much attempt to prevent non-compliance. Our whole approach is to equip, motivate and encourage parties and other regulated entities to comply. We do all that we can to prevent non-compliance, including producing guidance and doing surgeries and webinars. We also recognise that different parties are structured in different ways and so we offer tailored support. For example, some parties have accounting units and some do not. We try to work around the different structures that parties have and tailor our support and advice to them.
We are continually focused on identifying the areas where parties might slip up and considering what we can do to prevent that from happening. However, it is also very important for public confidence that, if there are offences or breaches, there is a vigilant regulator that is willing and able to take action—whether that is in relation to a breach around digital imprints, a more significant breach in relation to the completeness of spending returns or a more serious breach around evasion of controls, in which case we would work with the police, although we would take action there, too.
We try to be proportionate in our use of our powers and sanctions, which is one area that the bill has the potential to change. I should probably have mentioned earlier that our maximum fine limit is currently set at £20,000, apart from fines for breaches in relation to Scottish referendums, where the maximum is set at £500,000. The bill proposes to raise our maximum fining power so that we will have the potential to issue fines that are more proportionate to the scale of UK political finance now, which can also act as a more effective deterrent.
We take enforcement action regularly. We publish frequently on our website in relation to that—for example, when investigations are concluded and a sanction has been issued. I think that we have issued a handful of sanctions this year so far. We are keen for the bill to change the fining powers, because we think that that would improve public confidence in political finance, which is quite low relative to high public confidence in elections as a whole.
I think that my perception that your approach is carrot rather than stick is agreed with in what you have just said to us.
We do everything that we can to encourage parties. However, it is really important that the public know that we will take enforcement action in a proportionate way when that is necessary.
It is important for all political parties, but also for the credibility of the Electoral Commission, that you do that.
Let me turn to Professor Renwick. Does your view differ from the responses that I received from the Electoral Commission? In particular, is the expansion of the range of electoral offences sensible, and is allowing UK ministers to change the sanctions for devolved elections in Scotland equally appropriate?
09:45
I do not have views on all the detail in that area, but the general principle is that we need, clearly, to have mechanisms to uphold the rules. It is a very complex and sensitive area, and we therefore need a specialist body to do the work. That body is the Electoral Commission, and it needs to have the powers to do that work. The increase in the fining power that Jackie Killeen just outlined, the information-sharing powers and the other measures in the bill are all important in enabling the Electoral Commission to do its work.
You asked a more specific question at the end, which I am now blanking on—I am so sorry.
That is okay. The question was about whether you think that the extension to cover the wider range of electoral offences is appropriate, and whether it is appropriate for UK ministers to retain the right to change those sanctions for devolved elections in Scotland.
The general extension of offences is appropriate. I would listen to the expertise of our colleagues from the Electoral Commission on the degree to which having divergence between UK and devolved elections on that particular matter would be problematic. I would have thought that a degree of divergence would be less problematic in that area than in many others, but I am not particularly an expert on that. I would follow what the Electoral Commission experts say on that point.
I will turn to voter registration and to young voters. We have younger voters: 16-year-olds are able to vote in Scottish elections. How can learning from that be improved? In addition, what practical steps can the Scottish Government and the UK Government take to work together to ensure a co-ordinated introduction of automated voter registration at a UK level?
I will address the issue of younger voters first and will then go on to automatic voter registration more broadly, convener, if that is okay.
Part 1 of the bill extends the right to vote to 16 and 17-year-olds for elections to the UK Parliament as well as the Northern Ireland Assembly and for local elections in England and Northern Ireland. In many ways, that brings those elections into line with those in Scotland and Wales. Sixteen and 17-year-olds have had the right to vote in Scotland since the 2014 referendum and in all devolved elections since 2015. Although the franchise is a matter for each Parliament, we think that there is benefit in having a consistent voting age across the UK. As with many of the other matters that we have discussed this morning, it is easier to explain to voters and it will enable an easier voting registration process.
If and when it comes into effect, our priorities will be very much about ensuring that all newly enfranchised voters know how to register and how to exercise their right to vote. Again, very much drawing on the learning from the experience over the past few years in Scotland and across the UK, we are preparing to ramp up our investment and our focus on access to educational material through schools, colleges and communities, as well as our support to the wider electoral community to deliver those franchise changes effectively.
There are good examples of work with colleges and schools to make sure that people understand the very basic issue that having the right to vote does not mean that you can just turn up and vote—you have to be registered first. That is sometimes a complex message to get across, particularly to young voters who are getting that right for the first time. Therefore, we provide democratic education resources and training to support educators to deliver that message in an engaging but, crucially, impartial and credible manner, because it is important that educators have confidence that there is a robust and impartial set of materials that they can use.
There are benefits in forming good habits. Research suggests that, if someone votes at a young age, they are likely to continue to participate in elections throughout their life. Such education also provides an opportunity to address the wider challenges related to the increase in fractious or hostile campaigning in recent years. There is an opportunity to help people to understand the legitimate roles of legitimate political debate and campaigning.
Therefore, there are a lot of opportunities. We want to ensure that there are no barriers to registration. If the measure in the bill comes into effect as anticipated, the same process will apply for getting on the register, being registered and participating in elections. Elections drive registration, because there is a registration timetable as part of every election timetable, so elections provide an impetus to increase registration. However, overall, registration remains a complex and challenging issue, which is why the measures in the bill on automatic voter registration are very important.
I can pause there or go on to speak about automatic voter registration.
Patricia Gibson would like to come in.
The committee heard evidence from Professor Toby James, who has called for the abolition of the open register. Do you have any thoughts on that?
Professor Renwick’s knowledge might be more up to date than mine, but I believe that the Welsh Government has made the decision to abolish the open register, and we are getting ready to support administrators on that. Such moves are policy decisions for the relevant Parliament. There will be a switch from opting out to opting in, which will address some of the concerns that many voters have, and the change will reduce the number of proactive steps that people will have to take to ensure that they are registered in the way that they want to be registered.
We are talking about trying to reinvigorate political engagement, but would the change create barriers for political parties and candidates if the register became incomplete for their information purposes in using it as a campaigning tool?
At every election, parties and candidates are entitled to receive a copy of the register from their local returning officer, and I am not aware of any provision to change that. That is slightly separate from the access that is given to commercial entities, which can purchase the register for commercial purposes. I do not think that there is an intention to reduce political parties’ access to the register. The measures in the bill are about improving the completeness and accuracy of the overall register, which should be in the interests of everybody, including political parties that use it for campaigning purposes.
As I understand it, a voter can opt to have their name removed from the register for privacy reasons or other reasons. If the number of people who do that increased, that would create incomplete registers for campaigning purposes, would it not, or have I misunderstood?
I am getting into slightly tricky territory here, and I will probably have to come back to you on this, but there are some differences between being registered anonymously and being on the open register. The open register is accessible to, let us say, commercial entities, while the full register is accessible to parties and campaigners. Anonymous registration is about, for example, protecting people who have a reason to keep their personal details private.
Does that mean that there are two types of open register: a commercial one and a political one?
Yes.
Thank you for clarifying that.
Given the time constraints that we face, it would be really helpful to hear your thoughts on automatic voter registration.
Overall, automatic, automated or more direct registration could significantly increase the number of people who are correctly registered and therefore able to participate in future elections. The bill will introduce a power to allow the piloting of different forms of automated registration. We would be keen for such pilots to take place across all four countries of the UK.
We are on the cusp of legislation that the Scottish Parliament passed last year coming into effect to allow online absent voting, so we are already seeing convergence in a number of areas around registration and how people vote. We would like Scottish electoral registration officers to participate in the automatic registration pilots, because we want to ensure that any issues and particular considerations arising from the Scottish context are fully taken account of when automatic registration ultimately comes into effect. The bill will give the power to run pilots and evaluate them, and will then allow automatic registration to take effect without recourse to further primary legislation.
Overall, it would be very helpful if there were a consistent approach to registration across the UK and if as many people as possible could be registered automatically. That would remove one barrier for voters. Also, it would potentially reduce the risk of voter confusion about what they need to do to get on the register, and it would streamline the process, which would significantly reduce the complexity that electoral registration officers currently manage very ably.
In addition, it has the potential to make the register more accurate and complete. The Welsh Government has run four automatic registration pilots over the past couple of years, and we have been evaluating them. In all instances, they have been successful in adding previously unregistered voters to the registers. The pilots had more limited access to data, so they did not have access to Department for Work and Pensions data or wider data that would potentially be accessible through the bill.
Professor Renwick would like to come in. Please be brief.
I will come in quickly on the three points that have been discussed. First, on votes at 16, I agree entirely with Jackie Killeen that the big issue is education. We know from the Scottish experience and elsewhere that votes at 16 can increase turnout in elections, but that happens only if the opportunity is taken in schools, and through engagement with parents, to boost young people’s understanding of the political process.
The Electoral Commission is doing fantastic work in that area, which is great, but we need more than that. Governments in all parts of the UK must ensure that there is wider education about the political system as a whole, the nature of democracy, the rule of law and so on, so that people can understand the context in which elections are taking place. Survey evidence indicates that, in all parts of the UK, young people feel that they do not currently have the information that they need in order to participate fully. Addressing that should be a high priority for all Governments.
Secondly, on the open register, I again agree entirely with what Jackie Killeen said. The issue does not affect parties’ and candidates’ access to the register, but we currently have a situation in which, when people register to vote, unless they tick a box to say that they do not want to be on the open register, they provide data that are then sold to commercial companies. In principle, that seems to be a very bad thing to do nowadays, so it is right that it should be changed.
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Thirdly, on automated voter registration, I also agree with everything that Jackie Killeen said. There is a big question about timing that ought to concern us. The Electoral Commission has said for quite a long time that it would be possible to pilot automated voter registration for UK parliamentary elections in time for the next UK general election, assuming that the session runs its full term. Alas, the Ministry of Housing, Communities and Local Government has taken a different view and has been very slow to act in this area, creating a danger that pilots will not be completed before the election. We will end up in a very undesirable situation if there have been pilots in some constituencies before the election but not in others, because that will skew the electoral register by boosting it in some constituencies but not in others. That is particularly problematic because a boundary review is about to take place and the relative size of constituencies is really important in determining its outcome. That issue really needs attention.
Great. Thank you very much, Professor Renwick. I think that all my MSP colleagues would absolutely agree with the points that have been made about the importance of educating young people. From my perspective, my educational visits are probably the most positive activities that I undertake in my constituency. I am an advocate for modern studies being taught to everyone, because I think that that subject is very important.
No other members have indicated that they wish to ask a question. If we have anything further to ask, we will write to you. Thank you very much for your time and for your helpful evidence.
I will now suspend the meeting briefly to allow a changeover of witnesses.
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Meeting suspended.
10:06
On resuming—
Welcome back. We will conclude our scrutiny of the LCM by taking evidence from the Scottish Government. I welcome to the meeting Jamie Hepburn, the Minister for Parliamentary Business and Veterans. He is joined by Scottish Government officials Iain Hockenhull, head of elections, and Jordan McGrory and Lorraine Walkinshaw from the Scottish Government legal directorate. I believe that you would like to make a short opening statement, minister.
Thank you very much, convener, and good morning. Thank you for inviting me to give evidence on the UK Government’s Representation of the People Bill, which is nearing its House of Lords committee stage. I expect further amendments to be tabled that will require the legislative consent of the Scottish Parliament. I understand that those amendments will focus on the two parts of the bill on which the Scottish ministers have not yet indicated a position on consent: part 4, on campaign finance, and part 5, on the Electoral Commission. I do not anticipate any UK Government amendments involving consent in relation to part 2, on registration, or part 3 as it concerns absent voting. There is therefore no expectation that the recommendation by the Scottish Government to consent on those issues will change, although we always reserve our position.
For amendments on campaigning, we will have to respond swiftly to changes involving consent, and I anticipate lodging another LCM—the fifth so far—later this month. I recognise that that number of LCMs is considerable, but that reflects the breadth and scale of the bill, which has required a lot of attention. It is fair to say that the work associated with the bill has had an impact on our ability to progress our own plans on elections, not least the planned consultation on electoral reform. Work remains in hand for the latter to launch soon, but I had hoped to be able to launch it by now.
However, I am happy to acknowledge that much in the bill is to be welcomed. In relation to registration of voters, I consider the changes to be helpful and note that administrators have welcomed them. In relation to the open register, I highlight my view that it could well be worth removing the open register in its entirety, but maybe a step in the right direction has been taken—opt-in instead of opt-out is probably more consistent with people’s practices in other areas of life. Whether to remove it entirely is perhaps a question for the future.
On absent voting, I consider that there is very little option but to consent to the changes in the bill if we wish voters in our elections to be able to use the UK portal to apply online for a postal or proxy vote. Access to that portal will go live on 3 November and should make it much easier for voters to obtain an absent vote. That highlights both a benefit and a risk of converging with the rules for UK Parliament elections. On the positive side, we gain access to a common platform and set of rules, but, on the other side, we are vulnerable to changes of policy by the UK Government.
On absent voting, we had only recently legislated to move to a three-year reapplication cycle for postal votes. That was not so much a policy decision of our own as a precondition of joining the UK online system. However, the UK Government has now amended the bill to move the period back to five years. I do not have a specific concern about that decision—the five-year period should mean less administration for voters and it was our preferred position when we decided to participate in the online absent voting application platform—but it is not encouraging that the UK Government should, in effect, require us to adopt one standard and then, unilaterally and with minimal consultation, move to another. That causes me some concern with regard to its ability to act in a similar way on other, more pressing concerns.
Indeed, I understand that another instance of that is expected, with the UK Government being due to announce changes to the law on accessibility support for voters. That is despite the committee agreeing earlier this month to adopt the Elections Act 2022 accessibility changes for council elections. I have received no detail of those plans, but I anticipate that, as soon as any change is made, it will be suggested that the new UK Parliament rules, whatever they may be, should also be adopted for our elections.
I am keen to ensure that the bill’s changes on campaign finance and oversight by the Electoral Commission do not see this Parliament sacrificing its control over its own laws. There is, of course, much to be said for clarity and consistency in electoral law—I concede that and I recognise it—but I do not accept that that means that we must unquestioningly adopt whatever position the UK Government of the day prefers. Indeed, the bill shows that, where we innovate, Westminster sometimes follows. It contains an acknowledgement by the UK Government of the merits of differences that this Parliament has already pursued in that it adopts votes at 16, changes on agent addresses, measures on digital imprints and provisions on intimidation, all of which are already part of the law for our elections.
The provisions on campaign finance are highly complex and they have been substantially changed during the bill’s passage, partly in response to the Rycroft review on overseas interference. I am sympathetic to most of those measures. The new know-your-donor regime should be an improvement, and I am supportive of attempts to regulate donations. My main concern has been to ensure that the Scottish Parliament and the Scottish ministers will have a say where the controls impact on devolved elections. I have also argued that there is scope for greater devolution in the area of party finance.
In my engagement with UK ministers, I will continue to press for this Parliament to be provided with the maximum opportunity to consider changes, especially when the proposal is for UK ministers to make a change via secondary legislation. For that reason, and because we still do not know the full set of proposals on campaigning, I cannot yet give a definitive view on consent to parts 4 and 5. I will, of course, welcome the committee’s views on the appropriate balance on those matters.
I am very happy to discuss those issues further, and Iain Hockenhull, Lorraine Walkinshaw, Jordan McGrory and I are very happy to do our best to answer your questions.
Thank you, minister.
We wrote to you and you responded to us on 21 September. What progress have you been making with the UK Government in discussions about LCMs and changes, and when will we see a clear indication?
It is an ongoing process. As soon as we feel that we are in a better position, we will communicate it to the committee. There is good dialogue between Scottish Government officials and UK Government officials. We also have the interministerial group for elections and registration. Unfortunately, that has not been able to meet yet. We hoped to have a meeting during the recess, but that was not possible, given others’ availability. However, we hope to meet soon, and at that meeting the UK Government, the Welsh Government and I will be able to consider these matters together.
Thank you.
Jackie Baillie has some questions about sections 4 and 5.
I will start with section 4. Can I get your view on the bill introducing new restrictions on donations for parties, candidates and campaigners at both devolved elections and referendums?
In general, the greater the transparency and openness we have on donations, the better. An issue that we considered in relation to the bill at a previous meeting of the committee—I think that it was here, albeit in a different context—was the potential for foreign interference in our elections. There are provisions in the bill relating to restrictions on foreign donations and crypto currency and crypto asset donations. These are areas on which concerns have been expressed and, broadly speaking, I welcome the direction of travel in that respect. I have already indicated in correspondence, certainly with the Delegated Powers and Law Reform Committee, which wrote to me on these issues, that the provisions could go further. For example, there was an amendment tabled by Stella Creasy that would have further restricted the volume of donations; I thought that there was merit in that, but, unfortunately, the amendment was not called. Broadly speaking, though, I think that the direction of travel is good.
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However, the question that kicks in is what impact these proposals will have on devolved elections, particularly local government elections, and whether there will still be a role for the Scottish ministers and the Scottish Parliament. Discussions are needed, and are ongoing, as to whether we are in the right place in that respect in all these areas. With donations that might impact local government elections, for example, there is a requirement that the consent of ministers be sought, but the bill does not specify the involvement of the Scottish Parliament. Of course, we have our own processes and protocols to try to ensure that, at our end, the Scottish Parliament is properly consulted. We would certainly adhere to those things, and we would certainly do everything that we could to ensure that we were engaging this Parliament in the process, as this Parliament would properly expect.
I thank the minister for that response, although I should say that the UK Government is, I think, taking forward Stella Creasy’s amendment and is looking at how it could be productively done.
Notwithstanding that, I think that I heard you say that you are broadly supportive of the arrangements with regard to crypto assets. However, the Scottish Government has not yet given its consent. Is there any other reason for that, given your support for the measures?
It goes back to my point about trying to ensure that we are satisfied that, where this touches on devolved areas of responsibility, the Scottish Government and the Scottish Parliament are being involved appropriately. The Scottish Parliament would expect us to do that.
So, it is a procedural issue rather than an issue of principle.
Precisely. I think that the direction of travel is the appropriate one. There is a question whether the bill could go further, but I think that it is moving in the right direction, if I can put it that way.
One area where you could go further is crypto asset donations to individual independent candidates or, indeed, non-party campaigns in devolved elections. Is that something that you are likely to consider?
We are certainly open to it, and if that is an area where the committee thinks that we should be either engaging in dialogue with the UK Government through this bill or using our own legislation-making powers, I am more than up for having that conversation.
That is helpful.
Can you update the committee on what I think was your proposal to the UK Government for the Scottish ministers and the Scottish Parliament to have a say in the donor risk assessment regime?
Are you talking about the know-your-donor thing?
Yes.
Again, this probably falls into the same territory—that is, we are still trying to engage on it to ensure that we are satisfied. We are trying to press with the UK Government the point that, where this touches on devolved aspects of the guidance as prepared by the Electoral Commission, this Parliament should be involved. I do not think that we are quite at that stage, though.
It really falls into the territory that I have already discussed with the committee. It is an ongoing discussion, and if we are satisfied at the end of it, we will probably recommend consent.
Do you have a timetable for that? I accept that you have had to deal with a lot of variations to the LCM, but do you have a timetable in your head for when the process will conclude? Obviously, we have to report on this.
I totally appreciate that. It is the eternal challenge of trying to give legislative consent to a bill that is not entirely in your hands. The most recent information that we have is that the report stage for the bill is likely to be in January 2027. However, I think that we had an indication today that there might be further amendments, so that could change. Obviously, we will keep the committee up to speed.
My next question is in the same territory. Have you reached a shared position yet on the questions of unincorporated associations and digital imprints? You have put it to UK ministers that the Scottish Parliament might continue to have a role in overseeing digital imprints at devolved elections. How are those discussions progressing?
There is a difference of opinion on digital imprints. The UK Government contends that it does not require the Scottish Parliament’s consent, and I offer the counterpoint that we have legislated in that area, so it falls into devolved competence. That remains a matter of ongoing dialogue.
The situation on unincorporated associations is similar. The UK Government contends that that does not require legislative consent, because regulation of unincorporated associations is a reserved matter. However, our view is that the bill is legislating for a purpose that relates to our responsibilities for legislating for elections. There remains a difference of opinion on that, and we will continue to pursue those matters.
Excellent. I look forward to their coming to a conclusion.
Will I move on to part 5, convener?
Patricia Gibson wants to come in on that point first.
The minister has said that talks between the Scottish Government and the UK Government on those matters are ongoing. As he pointed out, and as the evidence tells us, there are disputed areas where you do not agree on whether legislative consent is required.
Can the minister update us on how positively that engagement is progressing? Is the Scottish Parliament’s voice, through him, being respected and listened to? Does he have concerns that, if the disputes cannot be settled amicably—we all hope that they will be—we might end up in a situation where powers over aspects of elections for the Scottish Parliament are impinged on in ways that we do not agree with?
It is fair to say that the dialogue is fairly positive. Those are areas that we still need to iron out and refine. What might happen if we do not agree that provisions require legislative consent? Ultimately, that will depend on whether the UK Government then decides to legislate. What might happen if we cannot agree on an area that we think requires consent and the UK Government thinks does not require consent? I am afraid that the precedent is that the UK Government will press ahead and legislate. There is little that we can do about that beyond making sure that we have raised our voice and made it clear that we consider the area to be one that requires consent.
That will be taken forward through our usual process here. It will be for the Presiding Officer to make a determination on whether he considers that our view is correct, and then we will put that to the Parliament to determine.
I know that the minister will do everything that he can to reach agreement, but I just wondered about that eventuality, should it arise.
If that arises, the situation will probably be as I have set out, but I hope that we can avoid that eventuality arising. As I say, we have the interministerial group on elections coming up, although it is not scheduled yet, and I will be able to raise those issues at that group. Representatives of the Welsh Government will be there and will give their perspective. Clearly, many of the provisions of the bill trigger the Welsh legislative consent process, too, so they will have a perspective as well.
I will move on to part 5. The bill makes provision for information sharing between the Electoral Commission and devolved public authorities. Can you report on the latest state of discussions between the Governments on those provisions?
I am afraid to say that that falls into the same territory: it is ongoing. When there is progress, we will inform Parliament as soon as possible. At this stage, we are not necessarily able to recommend consent, but I hope that there will be productive discussions and that we will reach a shared outcome.
I suspect that your answer to my next question will be identical but, for the sake of form, I will ask it anyway. Under the bill’s provisions, UK ministers can apply changes to the Electoral Commission’s sanctions regime.
Yes.
They can do so without reference to the devolved Administrations. I understand that you have suggested to them that there should be a stage at which we are consulted. How is that discussion going?
You are asking about civil sanctions.
Yes.
We are a bit further forward on that.
Good.
Such changes will require ministerial consent now. It will probably go back to what I was talking about before: there might not be a specific provision in the UK legislation on the Scottish Parliament; it is then incumbent on us to consider that. Those provisions relate only to local government elections, not Scottish Parliament elections, which are not impacted by the bill in this area.
I think I am correct in saying that the taking of a power in this area does not cut across our ability to legislate, so we could also make a determination if we wanted to legislate in this area. My officials are not coming in to say that I have got that wrong, so I have got that correct, I hope.
That is positive—it is a good thing.
I have a question about part 2.
By all means.
Part 2 relates to automatic voter registration. We heard in our previous evidence session that some successful pilots have been carried out in Wales. What is the Scottish Government’s plan for similar initiatives in Scotland?
We legislated for that power to be provided under the Scottish Elections (Representation and Reform) Act 2025 although, speaking candidly, we are not as far advanced as I would like to be—not least because the same people who would be trying to conduct that sort of pilot are caught up dealing with the UK Government’s Representation of the People Bill, which is fairly substantive and has taken up a lot of time.
We have that power and I am open to utilising it. I am aware that the UK Government is itself considering pilots, and I need to consider the merit of working together in that area. We may conclude that we do not wish to do so—that we want to undertake our own pilot—albeit that that takes us into the territory of having automatic registration for two sets of elections, in our case, and one set of elections on the UK Government side. I recognise that there are issues there.
I have referred to the further consultation that I want to pursue, open and have published soon. We are likely to consider this area again. People might feel that we should be going further and moving towards a form of automatic voter registration. That consultation will be opened up so that the public can respond. That is not finalised yet, but we will communicate with the committee once it is.
I think that I am right in saying that Wales has been doing a pilot.
Yes.
At your intergovernmental meeting, that could be—
When I held this office previously, we had the opportunity to discuss that opportunity, and there has been ongoing interaction with the Welsh Government about it. I am given to understand that it worked quite successfully, from its perspective. That is good, and it is useful to learn from that, but we operate on our own basis with our own data sources, which we would be drawing on for automatic registration. We cannot just say, “Well, it worked in Wales, so we will just crack on with it here.” We need to consider how it would work here.
We had a discussion with the previous panel about giving voting rights to 16-year-olds. Given that we already allow 16-year-olds to vote in Scottish elections, what work will the Scottish Government be doing to ensure that there is a broad understanding and knowledge across Scotland that 16-year-olds can also vote in UK elections?
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I welcome the fact that the UK Government is following us in that area. I voted in favour of enfranchising 16 and 17-year-olds for Scottish Parliament and local government elections, and it is sensible to also enfranchise them for UK elections. That is obviously a decision for the UK Parliament to make, but it is heading in that direction.
We have been keen to offer the UK Government the benefit of our experience of having implemented the policy, and the Welsh Government has also done so. Slightly different approaches have been taken in different jurisdictions. For example, we adopted the approach of enabling 14 and 15-year-olds to register in preparation for being able to vote, whereas I think that I am right in saying that the Welsh legislation enables folk to register when they turn 16. The UK Government is able to learn from those different experiences, and we have been happy to work with it.
I have engaged with Samantha Dixon, who was previously my counterpart on elections policy in the UK Government. She was pleased that we were able to share our experience, and we facilitated an interaction with the University of Edinburgh, which undertook a study about the benefits of enfranchising 16 and 17-year-olds. It is an example of an area of legislation in which we have led and the UK Parliament is now following, which I welcome, and we have been happy to offer assistance.
On your point about messaging, we will be ahead of the game in that regard because we already have infrastructure in place. The Electoral Commission has the relevant experience and the electoral registration officers and the people who are involved in administering elections have experience of promoting to 16 and 17-year-olds the fact that they are able to vote. I do not see there being a great challenge with messaging.
I am also interested in hearing whether the Scottish Government has a view on the potential introduction of bank cards as voter identification for UK parliamentary elections.
Our perspective is that voter ID should not be required to vote in elections. I have made that clear to the UK Government, and I made it clear when we introduced our own elections bill; I did not intend to make voter ID a facet of devolved elections. There is no reason why voter ID should be introduced, and there is plenty of evidence to suggest that it disenfranchises people. That is my top-line response. Anything that can be done to widen the range of eligible ID in order to minimise the risk of disenfranchisement is welcome, but I urge the UK Government to consider the whole area again.
Thank you. As there are no more questions from any of my fellow committee members, I will finish with a final question. I feel that we have moved into a positive area, but I am wondering where you have got to with consent for part 7 and the assurances that you seek in relation to the power for UK ministers to make consequential provision, in the light of the Delegated Powers and Law Reform Committee’s conclusion that the power is “standard” and “appropriate”.
I am afraid that that goes back to the answer that I have already given to Ms Baillie, which is that those discussions are ongoing. We are having positive dialogue and I will update the Parliament as soon as there is an outcome one way or the other. Ultimately, those issues will determine our recommendation on whether to give consent.
Thank you very much for your time, minister, and I thank your team as well. We will drop you a note if we have any further questions.
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Meeting continued in private until 11:51.