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Under agenda item 2, the committee will take oral evidence on the Local Electoral Administration (Scotland) Bill. I welcome to the committee our three witnesses: Bruce Crawford is the Minister for Parliamentary Business; Stephen Sadler is head of the Scottish Government’s elections team; and Fiona Campbell is policy executive in the Scottish Government’s elections team. I thank all of you for coming along, and invite the minister to make an opening statement.
Thank you, convener. I am pleased to be here to give evidence on the Local Electoral Administration (Scotland) Bill on behalf of the Scottish Government. To maximise the time for members to ask questions about the content of the bill, I will take only a few moments to make some opening remarks.
Thank you very much, minister. We will move to questions.
One of the arguments that the Electoral Commission put forward in giving evidence to us in the session that we had with it was that the electoral management board should not comprise any depute returning officers on the basis that they have no final legal responsibility for elections. I do not think that the argument was the strongest that I have ever heard, but will the minister give his reaction to it?
I am aware of the Electoral Commission’s concerns and have obviously thought carefully about them, but I do not think that they are valid. We believe that, within the body of DROs in Scotland, there is a considerable level of expertise and knowledge of practical information that could be shared and taken into account when planning elections. When DROs do their work, they are doing it on behalf of returning officers who are, ultimately, accountable to the courts. However, we do not see that as a barrier to their having full membership.
As I am sure you are well aware, two options have been suggested for the financing of the electoral management board. The first involves a dedicated secretariat and policy function and the second involves a portfolio model. Will you give us your views on which of those options is more suited to the bill and why? What discussions have you had with the Scotland Office on the matter? What is the expected division of funding for the electoral management board between the Scotland Office and the Scottish Government?
The preference is for the secretariat model. I think that that is the correct choice, as it allows a much more dedicated resource to be applied to what the board needs to do, especially in the periods around elections when there will be much more activity. Building up experience in the secretariat and whoever supports it is the right way to proceed, especially as the bill includes provisions for the board to regulate its own procedures. The Government is happy to work with the electoral management board to develop that proposal.
I am glad to hear that, for a change, the Government is engaged in amicable discussions with the Scotland Office. That is heart warming, especially on a cold day such as this.
I do not think that the portfolio model had any particular disadvantage. What decided the issue was the strength of the secretariat model, because the nature of support will be much closer to the electoral management board than a portfolio-holding model might have been.
Part 2 of the bill provides for an extension of the role of the Electoral Commission. However, in written evidence to the committee, the Electoral Commission has suggested that it does not fully provide for its role, as it sees it. Could you comment on that?
I was a bit mystified when I read that comment because we were quite clear that the Electoral Commission’s concern related to candidates. We were quite clear about our direction in that regard—it is okay guys; I have the note that will allow me to explain some of the technicalities of why that is important.
That is a helpful explanation of how the issue will be dealt with. The minister does not seem to be saying that he would have a problem should there be a need for clarification, at some stage in the future, to remove any doubts that the Electoral Commission might have.
I will certainly ask officials to have a longer discussion with the commission to expand on the point that I have just made. If necessary, we will have another look at the issue.
That is helpful—thank you.
I think that we have come to a pretty reasonable position with the Electoral Commission in that regard. If I remember correctly, the financial memorandum lays out a range of costs from about £1.62 million to around £2.89 million. What is the reason for that variation? The cost that is incurred will depend on the Government of the day and, in particular, on whatever public awareness programme it might want to involve itself in. We estimate that the cost of that could be anything up to £2.4 million. That explains the potential variation in cost, which is being discussed with the commission.
Again, that is helpful, given that the committee had discussions with the Electoral Commission about some of the problems that were experienced in the 2007 elections, during which there was recognition of the resources that were needed, from the early stages of registration to election day itself.
I want to ask about accountability within the system and how the bill deals with that. The convener of the electoral management board will have the power to direct returning officers. In its submission, the Electoral Commission pointed out that only the returning officer is petitionable in court, should the result or process of an election be disputed. The commission suggests that the Representation of the People Act 1983 should be amended to allow the convener of the EMB to be a co-respondent to a petition if the action that is complained of is consequential to a direction that they have issued. What is your view on that?
First, let us remember that the role of convener of the electoral management board, which we are laying out in the bill, is very similar to the role that is laid out for regional returning officers for the European elections. We have modelled the role in relation to the power of direction and what the convener can and cannot do on something that is proven to work. That background is useful.
Okay. Thanks for that.
The minister talked about what would happen if the returning officer did not follow a direction—clearly, he would be petitionable, as he is at the moment. What would happen if the grievance in the petition—what the petitioner was complaining about—arose as a result of a direction that the returning officer had followed? In that case, the convener of the board would not be petitionable, although the European regional returning officer is deemed to be petitionable in such cases. Is there not perhaps a chink here, or a gap that we should fill?
It is worth following that up. We will have a look at that, unless Stephen Sadler is going to tell me that the convener is covered in some way that I have not recognised.
I agree that it is something that we could look at. The effect of most directions is likely to be to achieve consistency throughout Scotland, where the convener and the board consider that to be appropriate. It is unlikely that the convener would be directing one returning officer to do something that his or her colleagues were not doing too.
We will look at the point that Mr Morgan raises, but there is a distinction between the regional returning officer, who is a returning officer, and the convener of the board, who will ensure that the administrative processes are co-ordinated and that good practice is followed and will be able to issue directions about that. There is a difference between the convener’s role and the returning officer’s role at local authority level. We need to look at that balance. We will take the issue away and consider it.
Yes. Obviously, the cases that the minister and his officials have raised are reasonable ones. It is perhaps difficult to think of a case in which the convener of the electoral management board would direct a returning officer to do something that they did not want to do—otherwise, the direction would not be necessary—and then someone complains about the returning officer having followed the direction. However, I assume that the purpose of electoral law is to ensure that nothing unexpected—nothing that we have not thought about in advance—happens, which is why we do not try to reform it very often. Therefore, I cannot see any potential disadvantage in making the convener of the board a co-respondent to any petition.
We will look at that.
Thank you for that, minister.
Good morning, minister. I have a couple of questions on the role of the electoral management board in future Scottish Parliament elections. We are advised that the Scotland Bill, which has now been introduced at Westminster, will transfer responsibility to Scottish ministers for the management and administration of Scottish Parliament elections. Is the Government satisfied that that transfer of executive responsibility will enable Scottish ministers to assign that role to the electoral management board? If so, and once all the pieces are in place, will we have a board in Scotland with responsibility for both local and Scottish Parliament elections?
We still need some clarity on the specifics of what the Scotland Bill will provide by way of powers to the Scottish Government and Scottish Parliament. There is a reasonable degree of satisfaction that what is already in the bill will give us the power in future, if we so desire—I think we should—to put the electoral management board in Scotland on the same footing for Scottish Parliament elections. I understand why the Cabinet Office does not want to do that at this stage, so close to the Scottish Parliament elections next year. Doing so would break the Gould convention of not doing these things in the six months beforehand, so I understand that bit. The bit that will still not exist—and which is worth having on-going discussions with the UK Government about—is the position in relation to the UK Parliament elections. The electoral management board will still not have statutory responsibility in Scotland for that purpose.
That is a helpful answer.
Correct.
At the moment, the costs of the Scottish Parliament elections are paid for by the Scotland Office.
That is correct.
If responsibility for the conduct and administration of Scottish Parliament elections is transferred to the Scottish ministers, does that mean that the costs of running those elections will come out of the Scottish Government budget, or will they still be borne by the UK Scotland Office budget?
Given how the bill as introduced is constructed, I understand that discussions are on-going about what the arrangements might look like for a transfer of adequate resources from the Scotland Office, through the normal processes, to the Scottish Government, to deal with elections in future—which we would have executive responsibility for. The conversation about how much the amount should be could be an interesting one. We would expect any Scottish Government to ensure that, whatever resource transfer takes place, it is adequate to cover the costs of Scottish Parliament elections in the future.
That is interesting, and it leads me on neatly to a letter that we got from Mr Tom Aitchison about the underrecovery by councils of the costs of fulfilling their role in running Scottish Parliament, UK and European elections. Mr Aitchison’s comments relate to the City of Edinburgh, and I suppose that the experience will be the same in other councils. He says that underrecovery has been substantial: councils pick up a substantial tab for running elections but are unable to recover those costs from central Government—which in this context is the UK Government—because of the limitations that are placed on charging and cost recovery orders. Are you aware of that situation?
I am aware of the argument that has been put forward by Mr Aitchison. I have not seen the actual letter, but I am aware of the on-going issue. I share a lot of the concerns that have been raised—as I said, there could be an interesting discussion about the transfer of funds from the UK Government to the Scottish Government, if we are to ensure that there is not a shortfall. If there were a shortfall, inevitably it would need to be met from funding for other services. We are in a difficult financial place, so that is not a situation that we want to be in. Some hard bargaining might have to take place.
We hear this morning that the electoral management board is gearing up to take on more responsibility, potentially, in particular for the Scottish Parliament elections. Going back to accountability, the more responsibility the board takes on, the more we will be keen to explore how it is accountable to Parliament. As things currently stand, the board will have to prepare an annual report and place it before Parliament. How do you envisage scrutiny of the electoral management board in future?
If there is one thing that we must ensure, it is the independence of the electoral management board for Scotland—that is important for the process. We certainly do not wish the electoral management board to come under undue political pressure—pressure to do what politicians want it to do.
I am delighted that you mentioned this committee, because that leads on to my next question. Gould spoke about the fragmentation of powers, responsibilities and planning. I want to ensure that there would be no fragmentation of scrutiny and accountability. Obviously, this committee currently scrutinises local government elections, but should Scottish parliamentary elections become part of the electoral management board’s responsibility, I take it that you would see this committee or a successor committee being responsible for that scrutiny as well—it would be responsible for not only local government elections but Scottish Parliament elections.
Returning officers are primarily employees of Scottish local government and that will continue to be the case. The only thing that would change would be who would administer the executive functions in relation to the elections, and those would transfer from the UK Parliament to the Scottish Parliament, and so ministers would be held accountable to this committee for Scottish Parliament elections. On reporting mechanisms, if any Government proposed to employ the same process as is in the current bill, and it mirrored what is laid out in the bill, it would still be the convener of the electoral management board who was accountable to the committee. However, that is something for a future Government to decide on.
Thank you, minister—that is helpful.
I have a very short supplementary, minister, to follow up on David McLetchie’s question. I understand that the transfer of functions would need to be fully funded and that you would not want to be short changed and have to find moneys from elsewhere. However, I am not quite sure whether you accepted the point that Tom Aitchison and his colleagues were making about there already being a gap between the available funding and what it costs local authorities to service elections. Will you clarify that?
I would need to leave that to them. They are the bodies who are responsible for making a judgment on that. They are professional people and have made a judgment. From my examination of the situation at the moment, I cannot say whether I am in a position to agree 100 per cent with everything that they have said, although I respect entirely where they are coming from. We will need to bear in mind their evidence when we are discussing the transfer of functions and resource with the Scotland Office. We will obviously need to bore into that evidence to ensure that we understand it fully and can use it as part of our prosecution of the case to get adequate resources. However, nothing would suggest to me that what the returning officers concerned have said in that regard would be anything but accurate.
That is helpful. I am sure that we will come back to it.
There are no further questions from members, so we will end this evidence session. I thank the minister and his colleagues for taking the time to come along—it is appreciated. As previously agreed, we will take agenda item 3 in private.