Official Report 372KB pdf
Scottish Parliament (Elections etc) Order 2015 [Draft]
Our second item of business is to take evidence on the draft Scottish Parliament (Elections etc) Order 2015. A panel of witnesses will provide evidence on the draft order. All the panel members have huge titles after their names, so I will just read out each individual’s name to save time. Gordon Blair is from West Lothian Council; Ian Milton is the Grampian assessor and electoral registration officer; Andy O’Neill is from the Electoral Commission; and Mary Pitcaithly is from the Electoral Management Board for Scotland.
I do not intend to take any opening statements, folks, and I would like to try to finish the item in around 40 minutes, if we can achieve that, as we have a lot on our agenda to get through. I thank you for coming along.
I will open with a general question. What changes have been made in the Scottish Parliament (Elections etc) Order 2015 compared with the Scottish Parliament (Elections etc) Order 2010, which governed the administration of elections in 2011? It would be best to talk in general terms, as the order is hefty. Who would like to take on that question? Mary Pitcaithly looks as though she is full of anticipation.
I can deal with that question, convener.
I think that members of the committee have the Electoral Management Board for Scotland’s submission, in which we highlighted the changes that have been made since we engaged with civil servants on the drafting of the order. We were very grateful for the opportunity to be involved at that early stage, and we very much welcome the fact that our discussions led to some of the changes.
I will highlight the main changes that relate to our agreement that we should put the interests of the voter first.
There is the ability to issue postal votes earlier than was previously allowed for the last time we had the polls, and the ability to replace lost postal vote packs earlier than was previously the case. We will be given the power to give postal voters who have not properly completed a postal voting statement notice of that so that they can avoid making the same mistakes in future and losing their vote at any other election.
There is the specific requirement in relation to voters being able to join a queue, if there is such a thing, in a polling station at 10 pm, and another change relates to commonly used names. That issue caused some of us quite a lot of concern in the previous general election, but it has been resolved in the order.
A specific issue that has engaged me in the past is the employment of staff who may have been associated with a particular candidate or campaign. The other change, which relates to the electronic submission of notices, is relatively minor. Again, we welcome that.
We are comfortable with all those changes and, indeed, welcome their having been taken on board.
Thank you. I particularly welcome the change of name provision.
Yes.
I particularly welcome it, given that my first name is Robert, but I am known as Bruce. That provision will make things much clearer for people in future. I am delighted by that particular move—not that Bruce is necessarily an uncommon name in Scotland. I am sorry; I have probably given away far too much information.
Can you give us a feel for the consultation process between the various electoral administrators and the Scottish Government so that we can see how deep and meaningful it was?
I can do that from the perspective of the Electoral Commission, convener.
Obviously, we have had lots of discussions with the Scottish Government, and we welcome the revision of the order. We think that the order builds on a lot of the recommendations that we have made since 2011, which we have included in various reports on various elections.
We are particularly interested in form V, which is the absent voting statement, and I can tell the committee that many colleagues in the Electoral Commission are happy that that has been revised. I will not go into detail about that, but it allows us to collect lots of data post the event.
I particularly welcome the Scottish Government’s involvement with us. Although the provisions in the Scotland Act 2012 were not commenced until 1 July, it was speaking to us well before then; in fact, it consulted us informally on the draft at that stage and subsequently consulted us formally once it had the power. Our lawyers and the Scottish Government’s lawyers have spent considerable hours working together to try to make particularly the exemptions for candidates with disabilities work, and from the commission’s perspective its involvement with this order has been lengthy and has added value to it.
Does anyone else want to reflect on that?
On the general point about consultation, the Society of Local Authority Lawyers and Administrators in Scotland has an elections working group that includes representatives of the Scottish Government, the Scotland Office and the Electoral Commission. Because Chatham house rules apply, the exchanges of views are free and frank, and everyone gets informed. We are delighted that the outcome of that approach has been reflected to a very great extent in the resulting order and, from our perspective the consultation was excellent.
Did you have a supplementary, Stuart?
It is not on this particular point, convener.
I will come back to you later, then.
The written evidence broadly commends the consultation, but I note that in its submission the Electoral Commission says:
“We continue to recommend that all legislation should be clear (whether by Royal Assent to a Bill or the introduction of secondary legislation to Parliament ... )”.
Call me an old cynic, but I have to wonder why we have had our attention drawn to that. Is it a wee hint that certain matters have not been resolved?
On the issue of having clear legislation well in advance, the submission also says:
“There will, however, be less time to ensure that guidance for campaigners is available in good time before the start of the regulated period for the May 2016 elections.”
As we have recently seen, the whole area of guidance for campaigners and people having a clear understanding of how they should conduct themselves has become highly political and publicised, particularly when campaigners get things wrong. Has that issue not been resolved to your satisfaction? Is there still work to be done on it?
What we want is clear legislation. We are happy with the order as it stands, although we would obviously want it now rather than later.
To us, the definition of clear legislation is knowing what it will be six months before the electoral event. Given that the order was laid on 4 November, it hits that six-month definition. Obviously, if the Parliament did not pass this order—and if another order was not laid—we would have the legislation as it currently stands. In that sense, it is clear.
Our difficulties in telling people what the legislation is lie in the fact that, as you know, we have a duty to provide guidance to parties, candidates and agents. We would normally provide that three months before the beginning of the regulated period—5 January—which means that we are a little bit late. However, as many of you will have seen, we have been doing briefings at party conferences and such like.
We will ensure that the guidance makes candidates and agents aware in particular of the changes to the regulatory frameworks that govern them, especially the changes to the disability aspects. I hope that we will have produced the guidance by the end of the year, but we will have to wait until we have got the revisions before we can change the guidance. We have produced some electoral administration guidance, and we will have produced the rest of it either by the end of this year or the beginning of next year.
So the situation is not ideal, but you are managing the process.
That is right.
I would like to ask Andy O’Neill about the regulated period. The commission previously recommended that we should move to having only one regulated period, which makes considerable sense from the point of view of the people who are involved in the process. Why do you think that that recommendation has not been accepted yet?
That is a question for the Scottish Government, rather than us, to answer. We recommended moving to a single regulated period back in 2011, but the Government has chosen not to do that. The impact of that is that donations to candidates in what is known as the long period will not be recorded. There was some confusion when we analysed the situation back in 2011 in the sense that we had candidates recording donations in the short period and there was a lack of transparency because they could not record donations in the long period—some people chose to do so, whereas some people chose not to. We suggested that there should be one regulated period, but the Government has not gone for that. I suspect that the reason has to do with the time that would be required to make the changes, but it is for the Scottish Government to comment on that.
It was four years ago that you recommended that, and other things have moved a lot more quickly than that.
Indeed.
You say that you have had lots of jolly good discussions with the civil service, with frank and full exchanges, but there was obviously no such discussion on that issue.
I do not think that the Government is opposed to the principle; I think that there is a time factor involved. As we all know, there has been lots of electoral and referendum legislation post 2011 through to here. I suspect that it is an issue of time. We report on the administration of the election, and we will look at the matter and analyse the returns that we get from candidates to see whether that situation continues.
Okay. Thank you.
On the long period, are we absolutely clear that there are no legal impediments and no issues about reserved and devolved powers at play as far as the Scottish Government’s view is concerned?
Our view—we can confirm this in writing to the committee—is that the ability to legislate to require candidates to record donations in the long period is devolved. One of the reasons why it has not been possible for other things to be done is that we have spent a lot of time talking with Scottish Government lawyers about the definition of personal expenses in order to exclude those for people with disabilities, and that has proved complicated. Candidates on party lists are a reserved matter because they come under the Political Parties, Elections and Referendums Act 2000, whereas personal expenses for constituency candidates and individual candidates on the list are devolved. It has proved difficult to legislate for that, which has led to there being not enough time to do other things.
Does that not mean that it is the same for donations?
My understanding is that it is not the same for donations, but we can confirm that.
What discussions has the Electoral Commission had with the political parties on the issue? When the minister comes before us, I will ask him what discussions the Government has had with them.
On donations in the long period? We published our report way back in 2011 and we talk to the parties about that all the time via the political parties panel. I am aware that the Scottish Government consulted the parties on changes to the recording of donations in the long period.
There is a question of being fair and open. Going back to our duty to provide guidance, if you change the law and do not give people an adequate period in which to understand those changes, it may prove difficult for candidates and parties. Changing the recording of donations in the long period could mean that candidates who may have collected donations do not check their permissibility—if the amount is over £500—and use them in the long period, which they should not do because they may be impermissible. The number of occasions on which a candidate will get more than £500 and ask to check permissibility may be small, but there is a question whether you should legislate if you do not have the ability to tell the candidates what the law is before the law comes in. I know that one party has pointed that out to the Scottish Government.
I could prolong that line of questioning, but I will not.
09:45
I have only one question. Following the change in the law with regard to the ability of 16 and 17-year-olds to vote, what progress has been made on the registration of people in that age group for the Scottish Parliament elections?
Before I answer that, I want to respond to the question about the Scottish Government’s consultation with stakeholders. As far as electoral registration officers are concerned, that went extremely well at an informal level and at a formal level.
Work is on-going with regard to the registration of 16 and 17-year-olds. The canvass concludes on 1 December, but the actual registration activity will continue right through until 18 April, which is the deadline for registration for participants in the Scottish Parliament election.
The work is going well. A lot remains to be done. There is a complex point in terms of messaging in that, until 1 December has passed, the message has to be put out that people who are 15 by 30 November this year can register to vote and, after 1 December, it will be those who are 14 and upwards who can register to vote. However, that complexity will not cause us too much difficulty.
We are working well with the education authorities, so we are getting the lists of young people that will enable us to verify the applications. The process is working well.
Are you referring to 14 and 15-year-old attainers? What about people who will come on stream a bit later?
At present, anyone who is 15 by 30 November and meets the other criteria can apply to register to vote and have their name included as a registered elector on the registers that are revised on 1 December. After 1 December, electoral registration officers can accept applications from 14-year-olds and upwards.
You mentioned that the consultation with the Scottish Government went well. In your written submission, under the heading “Electoral registration officer expenses”, you draw our attention to the estimated costs of the Scottish Parliament election in May 2016. However, you note that the policy note that accompanies the order remains silent on registration costs. Is that something that you raised with the Scottish Government in your consultation?
We did not raise it in the stakeholder consultation response—it was not really part of that. The issue that I raised just now concerns the fact that, in response to—I think—a question from Mark McDonald in September, John Swinney reported that the total cost of the process for electoral registration officers, over and above their normal budgetary arrangements for providing registration services throughout the year, was £1.042 million.
You felt that it was a significant issue that was important enough to draw to the committee’s attention.
The note on the financial implications is silent on that particular point.
You point to the additional cost that there will be if registration is as busy as it was around the referendum. What is the estimated cost? I would like to get an idea of the scale of this. What costs are we talking about?
The answer that John Swinney gave was that the additional cost for registration officers in providing services for the independence referendum was around £1.04 million, over and above the normal business-as-usual budgets that they get from local authorities.
If we have the same level of engagement, we could anticipate a similar additional cost of around £1 million. If we do not have the same level of engagement—
I take it from that that there is a concern. If there is the same turnout, there will be a shortfall of £1.4 million that has not been addressed.
The potential figure is £1.04 million. At the end of the day, the order makes provision for local authorities to fund electoral registration officers. They are required to do that under article 24. The financial implications of the Scottish Parliament election potentially include that sort of sum, which will have to be sourced through local authorities. It is important that everybody is aware of that potential.
Is dialogue continuing with regard to that?
There is no active dialogue on that at present. We are waiting to see how the budget setting round goes this winter.
Does anyone else want to respond on that? It seems not. That is okay. I thought that Mary Pitcaithly was going to say something.
I have a general question. I would like an update on progress with individual electoral registration.
The canvass is progressing in that regard. It commenced in Scotland on 1 August and it will conclude on 1 December. It is now, in essence, a two-stage process. We need to raise awareness of that, and we have been doing a lot of work with the Electoral Commission and the Electoral Management Board for Scotland to ensure that the message is understood.
The canvass is progressing well in terms of getting the household inquiry forms back. In the old days of the traditional canvass, that was where the job finished. Electoral registration officers would lift the information from the canvass forms and update their registers by adding names that were added to the forms and deleting names that were removed from them. Now, there is a second stage to the process whereby, when a name is removed, we have to find another piece of evidence to support the removal of the name from the register. We can find that through co-operation with local authorities, which provide us with data, or by conducting a review. To add a name to the register, we need an application from the individual.
That second stage will not be complete in time for the 1 December registers, because electors will not necessarily respond to the invitation to register. Apart from that, however, the canvass is working well.
My concern is about those who do not follow it up and just ignore the things that come through the door. What happens to those people?
With both the household inquiry form and any subsequent invitation to register that an electoral registration officer issues, there is a follow-up procedure that involves two reminders and a visit to the address by electoral registration officer canvass staff, so there is plenty of follow-up. We are working on that just now.
Thank you.
I wonder how that works in the county constituencies. It might be possible for visits to be easily arranged in the towns, but is the process that you describe universal in Scotland?
Yes. The law applies to every electoral registration officer across Scotland—and, indeed, in England and Wales. We all work to the same framework to provide a consistent registration service across all areas. In my area, there is both an urban element and a rural element. We receive funding from the Westminster Government to employ additional canvass staff, and that is what we have done.
Can you give us an estimate of how many people are still to be carried over on to the new register and to be signed up where there has been a failure to follow up the first invitation and the second one?
I cannot give an estimate today. We are working on the issue day by day, and we will not conclude the canvass until 1 December.
I will give an example. Let us say that we get a canvass form back next week or the following week with a name added to it, maybe in response to a second reminder for the canvass form, and there is a new name to be added to the register. If the person did not apply within 28 days, we would have to issue an invitation to register, although we would not normally wait 28 days. The response to the invitation to register might not be completed and returned prior to 1 December, however, so the person would not be added until the January update to the register.
The process is dynamic and on-going, and it is almost impossible to take a snapshot at any one time and come up with a meaningful assessment. I look at the management statistics daily in my own office, but it would be very difficult—quite a leap—to use that information to make an estimate.
Is there any point at which it would be possible to estimate the number of people by which the register has increased or decreased since the last electoral event?
That would be possible on 1 December, although some electoral management software will not provide details of the final electorate until the electoral registration officer asks for the registers to be run. That will vary, depending on the software. The canvass involves a two-stage process, so it is possible—as in the scenario that I have just given you—that some additions will not be made until after 1 December. We must bear that in mind.
As I see it, electoral registration is moving from an annual canvass and a refresh with a revised register to a year-round, constant, real-time updating of the register.
I am pleased to hear everything that you have said. For how long do you intend the system of visits to houses that have not submitted returns to be in place?
Given that we now issue invitations to register all year round, canvassing will continue all year round, and that will include our following up invitations to register. In my local authority area, I have employed canvassers on full 12-month contracts. I now see the process as a year-round process.
So, somebody may get a visit in February next year that would enable them to be registered for the election.
Yes, absolutely. If somebody moves house and advises the local authority that they have done so, and if their council tax record is updated, I will get notice of that and keep an eye on the register for that address. If the person does not make an online application to register, I will issue an invitation to register. Once I have issued the invitation, if I do not get a response, I am obliged to send two reminders and make a house call. The process will continue all year round.
Thank you.
Mr Milton, in response to Malcolm Chisholm’s question about 16-year-olds, you said that good work has been done with the education authorities. During the referendum, I raised the issue of working with the likes of Skills Development Scotland and colleges for registration purposes. Is that happening in this instance?
I cannot comment on Skills Development Scotland, but we are working with tertiary education providers and receiving data from them.
As part of the registration campaign for 16 and 17-year-olds that we ran and will continue to run until 18 April next year, we have worked in partnership with Skills Development Scotland. SDS tweeted three times to all its clients—around 38,000 people—with messages about registration for 16 and 17-year-olds. We are also working with the National Union of Students Scotland and Universities Scotland to ensure that they, too, are putting out messages about registration.
The Electoral Commission agrees with what Ian Milton just said—that 1 December is not the end of the story for electoral registration and that the work simply continues. We have public awareness plans leading up to the registration deadline of 18 April, which we will pursue, and we are working with many partners including Ian Milton’s electoral registration colleagues to ensure that as many people as possible who wish to be registered are registered.
The work that education authorities have been doing with the Electoral Commission and with the electoral registration officers across the country has been a very good start to the process. We had a registration week in September when the schools came back after the summer break, and we have been actively trying to encourage people who are at school and who could register to vote to do so.
In my local authority, hundreds of young people work with our employment and training unit, which gets them into apprenticeships and so on. The unit will speak specifically to those 16 and 17-year-olds who have left school. We are also working with our community learning and development teams to ensure that they talk to young people who might not get the message at school. There are school leavers out there who would be entitled to vote. We are trying to ensure that they understand how they can register and we are encouraging them to do so.
10:00
I have a couple of questions arising from some of the points that were made in the EMB’s evidence. The first relates to notifications to postal voters who have submitted incorrect or incomplete postal voting statements. Can you give us a rough idea of how much of an issue that is in elections? How many ballots are rejected as a result of incorrect or incomplete statements?
I am not able to give you a figure for the whole of Scotland, but we could look for that information and provide it to the committee if you would find that useful.
I would say that it is less of a problem than it has been. We are now able, after particular elections, to tell people that they have not filled in their date of birth, for example, or that they have instead put down the date on which they signed the form. That is a very common mistake. They may not have signed the statement in the same way as they signed their application or, if they have got married, they may have used a new name that was not the name on their application. There are all sorts of reasons for the form not being properly completed.
The fact that we—at least, the electoral registration officers—can now approach people afterwards and tell them of their mistake is helpful and it is helping to prevent that from happening. Mr O’Neill has just told me that the rate of postal vote rejection has been declining; I am glad, because that is what I understood to be the situation.
In the Scottish parliamentary election of 2011, the rejection rate was 5.9 per cent. Earlier this year, in the general election, the rate was 2.9 per cent, and in the Scottish independence referendum it was only 2.7 per cent. You can see that there is a decline, although we would obviously like to get everyone to fill the form in properly so that their vote could be included in the count.
Indeed. Those are welcome statistics, especially as—I suspect—the number of people who are registered for postal votes will have gone up during that time.
Yes.
I am aware that there have been drives to encourage individuals to move to a postal vote because they are then more likely to turn out.
On the issue of signatures not matching, what allowance can be afforded to individuals with disabilities? It can be difficult for them to replicate signatures on more than one occasion.
The applications for absent voting come in to the electoral registration officer. If there is a problem with the provision of a signature or if a signature is inconsistent, we can offer a signature waiver, which means that a signature does not have to be provided in certain circumstances as long as the electoral registration officer is satisfied that there is good reason. Such a declaration must be made at the application stage. It will not work if somebody decides, when they cast their postal vote, that they cannot give a consistent signature. It is too late then: the arrangements must be made in advance. The signature waiver is a perfect arrangement for people who have suffered a stroke or who have a disability.
Let us say that an individual registers but does not say at the time of registration that, as a result of their disability, they may have difficulty in replicating their signature and their postal ballot is rejected as a consequence. When you follow up, is such information included in the information that you keep? For example, do you say, “If this is the result of a disability, here is a step that you can take”?
Yes, and the feedback is good. In fact, the number of waiver applications has increased, although I do not have the statistics in front of me.
Yes—a growing number of people have a waiver, although the number is still relatively small. I stress that the returning officers and their staff who open the postal votes have all had training from the forensic science people, who tell them what to look out for to identify forged signatures. We take the process very seriously, so there would be no way in which a capricious decision would be made that a signature did not look the same. We would look at it very carefully, following advice on pen path and all sorts of other advice that we have had. It is a serious matter for us to decide that somebody’s signature just does not match the one that they gave previously.
I would expect nothing less.
My next question is on the issue of voters who are still in a queue at close of poll. One of the defining images of a recent general election was that of voters at a certain polling station being turned away when the poll closed. However, I note that the Electoral Management Board for Scotland’s submission refers to planning “for sufficient polling facilities” in that respect. What guidance has been offered on the size requirements of facilities based on the number of individuals who will be voting at polling stations?
One exercise for the board is to work out the expected turnout, taking into account all sorts of things including the comments that people might be making in the media about what they expect the turnout to be. On the basis of that assessment, we issue advice to returning officers on the maximum number of voters who can vote at each polling station. For example, because we were expecting a very high turnout for the Scottish independence referendum, we recommended that the norm should be no more than 800 voters per station. That guidance was followed by every returning officer and, although the turnout was very high indeed, we had no complaints about queuing and there were no queues at the end of the day. For the general election, we thought that the turnout might be a bit less and we recommended that no more than 1,000 electors per station be provided or planned for. That recommendation was followed and, on the day, we had good throughput and the stations operated efficiently.
I am aware that that is not always the case in other parts of the United Kingdom, where larger numbers of electors might be scheduled to each polling station. The risk is that that might lead to queues either at busy times of the day or towards the end of the day, if people decide to wait until the last minute. We are anxious for that not to become a feature of Scottish elections.
My final question is on the venues that are used. Some local authorities have tried, where possible, to move away from using schools, because that means that schools do not have to be closed for the whole day. Is there any general guidance on venues that should be used, or is that issue very much at the local authorities’ discretion?
It is for the local authority to determine the polling places, and it is then for the returning officer to determine the number of polling stations within a polling place. I am not aware of any guidance on determining polling places other than the Electoral Commission’s guidance that they should be accessible to both those who are able, which is a geographic consideration, and those who have a disability, which is all about the ability to get in and out of the premises.
With regard to the suitability of polling places, you are right that there has, for obvious reasons, been a move away from schools, but my experience is that schools themselves are not closed. Community wings are used and special arrangements are made to segregate the playgrounds to ensure that there are no risks to the children. We minimise the number of schools that we have to use, but the bottom line is that a locality sometimes has no physical building other than the local primary school in which to run the poll on the day. If any suitable alternative could be used, clear recommendations are made to the council. My experience suggests that a council will decide to use a school because there is no suitable alternative for polling purposes, the primary concern being access for able and disabled voters.
I leave the final questions to Alex Johnstone.
One of the issues that is often raised with candidates knocking on doors during an election campaign is the issue of late or last-minute registration for absent voting. Are the processes that will be adopted through this order likely to change the date on which last-minute votes can be cast? Are there going to be any changes in that respect?
Under the order, we will have a standard framework of deadlines for elections in Scotland, which will be very useful indeed. During the stakeholder consultation, there was a suggestion that the deadlines might be different for proxies, applications and such things, but I am really pleased that the representations that we made have been reflected in the order that has been laid before Parliament and that standard deadlines will apply to all elections.
The difference is that this is the first Scottish Parliament election featuring online registration, which will be available up to midnight on 18 April. Previously, the process was paper based.
You are suggesting that the deadlines are as late as they can practicably be.
They are in line with all elections that are in operation at present in Scotland, which is very good as far as voter messaging and understanding are concerned. There is always pressure to move things back almost to the point of having polling day registration, but that would create all sorts of issues, which is why we do not have it at present.
I will be unsurprised when, on 19 or 20 April, I meet people who say, “I didn’t know there was an election coming up.”
We will also run a public awareness campaign to ensure that people understand that the deadline for registration is 18 April. That campaign will be run on television, on radio and online, and we will send a leaflet to all households in Scotland with those messages in it.
I think that we have taken enough evidence on the order. I wanted to get through the item in 40 minutes, because I know how much other business we have to get through today, and we are now over that time.
I am grateful to the witnesses for coming along this morning. We will take evidence on the order from the Minister for Parliamentary Business on 26 November before deciding at the same meeting whether to recommend that the order be approved.
10:11 Meeting continued in private until 11:13.