Local Government and Regeneration Committee

Meeting date: Wednesday, October 26, 2011

Official Report 528KB pdf

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Subordinate Legislation

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Scottish Local Government Elections Order 2011 [Draft]

Under agenda item 1, we will take evidence from the Minister for Local Government and Planning and from Government officials on the draft Scottish Local Government Elections Order 2011. Members have before them, as well as a copy of the instrument, a cover note setting out the purpose of the instrument and a relevant extract from the Subordinate Legislation Committee’s seventh report. We have also received a letter from the Cabinet Secretary for Parliament and Government Strategy that responds to the comments that the Subordinate Legislation Committee made.

I welcome Aileen Campbell, who is the Minister for Local Government and Planning; Stephen Sadler, who is the head of the elections team; Jaime Neal, who is the policy assistant to the election team; and Deborah Blair, who is a solicitor in the local government division of the Scottish Government. I invite the minister to make brief opening remarks about the instrument.

I am grateful to the committee for inviting me here today to discuss the draft order.

As committee members know, responsibility for the administration of local government elections in Scotland falls within my ministerial portfolio. The local government elections that will take place in 2012 will be the next set of elections in the cycle. They are the only major elections in relation to which the Scottish Parliament has legislative power, so it is important that we get them right. A number of key activities have been undertaken in preparation for 2012. During the process, we have kept at the front of our minds the issues that we encountered in 2007 and the recommendations that were made by Ron Gould, which were widely welcomed in the previous session of Parliament.

On 3 September 2010, we published “The Administration of Future Elections in Scotland: A consultation exercise to examine the recommendations of the Gould Report to improve administration of future elections in Scotland”. The consultation covered a range of issues, including the election timetable and the design of the ballot paper, and longer-term considerations including voting age. We were encouraged by the responses that we received, which have helped to shape the draft order and have, importantly, helped to shape the proposed ballot paper.

As recommended by Gould, the Scottish Government has tested the ballot paper design. The research tested a draft ballot paper that was designed using the principles from the Electoral Commission’s guidance document, “Making Your Mark”—[Interruption.] Mark Griffin has just made his mark with his phone.

Members are allowed to forget once.

The draft paper was also included in “The Administration of Future Elections in Scotland”.

The aim of the testing was to assess the clarity and usability of the draft ballot paper design, to identify possible improvements and to make recommendations for the final ballot paper. The three rounds of testing were undertaken with a total of 178 respondents—118 in round 1 and 30 in rounds 2 and 3. The research identified that participants liked the overall design; they described it as being “clean”, “simple” and “straightforward”. However, the research highlighted that the main cause of errors on the ballot paper was that participants did not have sufficient knowledge of the single transferable vote. The report therefore recommended that there be an information campaign on the STV in the run-up to the 2012 elections. The Scottish Government has accepted that recommendation and will work closely with the Electoral Commission and the electoral management board for Scotland to take it forward.

The revised ballot paper has also been used in successful bulk testing of the e-counting system that took place over the summer. We have also considered the Scottish Parliament (Elections etc) Order 2010, which is the responsibility of the Scotland Office, to identify changes that it made and, where appropriate, to reflect those changes in the Scottish Local Government Elections Order. That process has helped us to provide consistency across elections in Scotland.

We provided the electoral management board for Scotland and the Electoral Commission with a copy of the draft order so that they could offer detailed comments on it. The vast majority of the comments that have been received have been incorporated into the draft order that has been laid before Parliament. I put on record how grateful I am for the support that was received from both the board and the commission during that process; it has been an excellent example of how the Government can work with external bodies to achieve its goals.

The committee will be aware of the new provision to allow a person who is held in a queue and is waiting to cast their vote at a polling station at the close of the poll to vote even if they have not physically put the ballot paper in the box by 10 pm. That provision seeks to address the confusion that resulted when queues of voters at a small number of polling stations in England were unable to cast their votes in the 2010 Westminster elections, and the criticism that followed that. The Scottish Government is the first administration in the United Kingdom to include such a provision in election rules. Although queues at the end of polling have not previously been an issue in Scotland, and although we do not expect them to be common, we have amended the rules in order to allow as many people as possible to vote. That will be particularly important at next year’s election, given the concerns that many people have expressed about the possibility of a low turnout for the stand-alone elections.

We have received several informal representations about the change of policy from electoral administrations that feel that the change may be difficult to manage. However, the Electoral Commission has welcomed the change, which it has described as being a positive step that will ensure that every vote counts in the local government elections. The Scottish Government and the Electoral Commission believe that returning officers in Scotland are increasingly sophisticated in planning different elections, so we expect that it will be rare for the provision to be invoked. The Electoral Commission is committed to working with the electoral management board to produce effective guidance on how to manage the provision, which is intended simply to be a safeguard for voters in a situation that should be rare.

The committee will agree that election administration is above politics, so I hope that we can work together to improve the electoral structures in Scotland for next year and beyond.

Thank you very much, minister. Committee members will be aware that the Subordinate Legislation Committee raised a number of technical issues on the order, to which we have received a response from the cabinet secretary. Are members satisfied with the response from the cabinet secretary, or are there any further questions in connection with the issues that the Subordinate Legislation Committee raised?

I sit on the Subordinate Legislation Committee and I am supposed to know the detail of the order. It is my understanding that, when that committee considered the order, there were three potential problems with it. One of them has been accepted and addressed by the Government, but two remain around poor drafting practice, one of which is specifically about whether the order is intra vires. Will the minister comment on that, so that the committee can get a better understanding of why the Subordinate Legislation Committee was so concerned about the way in which the order was drafted?

Perhaps Deborah Blair will explain further once I have made some remarks. The drafting of the order is consistent with the way in which the matter had been approached in 2007. The Subordinate Legislation Committee did not raise the issues at that time. The order will be applicable to the local government election in May 2012 and to elections beyond that. One drafting issue has been taken on board, and the other issue was about the offence provision. The reason for that provision is consistency of approach with other elections. Because the Scotland Act 1998, which deals with the Scottish Parliament elections, contains a three-month maximum prison term for an offence, we saw it as being consistent to apply that three-month term in respect of local government elections. It would be a bit strange to have a six-month term for local government elections and a three-month term for Scottish Parliament elections. It was about consistency, and spelling out those things in more detail in the order gave a bit more clarity.

Thank you. That is really helpful. When you talked about consistency, the Subordinate Legislation Committee heard, “It’s aye been.” The fact that it was not an issue in 2007 does not mean that it is not an issue now. Perhaps the order was poorly drafted in 2007. The Subordinate Legislation Committee was given serious advice from its legal advisors that this was an opportunity to correct how we draft orders and to recognise that there is a problem to address for the future.

We believe that article 1, when taken with article 6, gives the order clarity and we do not foresee any issues arising.

I, too, attended the bulk-testing demonstration that the minister mentioned and found it to be a success. Everything went extremely well. However, demonstrations are one thing; real elections are another. With regard to the Highland Perthshire ward by-election—at this point I will abuse my position as convener to congratulate Mike Williamson, the Scottish National Party candidate, on winning it with more than 50 per cent of the vote—how did that e-counting pilot work in real life?

You attended the bulk test in Perth, convener, so you will know that it was a success. Many local authorities took up the invitation to attend; returning officers were present to ensure that they are up to speed with how the approach will work in practice. Of course, the real-life test was the Highland Perthshire by-election. The circumstances were not entirely the same and it had never been designed as part of the testing process; nevertheless, it was successful and things have progressed as hoped and expected.

One of the implications of the order is that it will move forward the closing date for nominations, which will in effect increase the length of the election by a week. Having been involved in local government elections, I am well aware of the tightness of election expenses. Have you considered increasing expenses to take account of the longer election period?

That issue has been raised fairly recently and discussed with the Electoral Commission’s political parties panel. It has been suggested that the commission be written to, and we await and will consider its advice. Problems will be created not only by the extended election period but by the fact that it will be a stand-alone election. We hope to resolve some of the issues in the not-too-distant future.

I have two questions, the first of which is a technical one to which I should probably know the answer. Is there any scope for randomising the order in which names appear on the ballot paper? I see from your nod that I already know the answer to that.

My second and more general question is whether we are any closer to eliminating the scope for fraud through proxy and postal votes. After all, we have all heard the stories of very naughty—indeed, illegal—things happening at election time, such as votes being bundled. Can you give us any comfort with regard to the steps that are being taken to prevent what might be called improper mass voting at elections?

On your first question, the lists on ballot papers are in alphabetical order. The order itself contains a kind of draft mini ballot paper to show how it will look. The randomising issue had been considered, but it was felt that alphabetical order is the simplest and fairest way of listing the candidates on the ballot paper.

With regard to fraud, such issues always arise; we simply have to be aware of them. The matter has been examined. I ask Stephen Sadler or Jaime Neal to comment further.

With regard to voter security and fraud prevention, we have introduced absent-voting identifier measures. People who want a postal or proxy vote have to submit in advance a signature and date of birth, both of which will be checked against the votes that appear on polling day. Those steps are in line with those that are being taken in the rest of the UK, although I point out that voter fraud has not been an issue in Scottish elections.

I have a supplementary question. I mentioned fraud because of the huge increase in postal voting, which is now way over 10 per cent. I did not think that it would ever get to that level, but people can now freely apply for postal votes and there is more scope for it, so the percentage is going up and up. For politicians, it takes away from the excitement of the build-up to election day if votes have already been cast. I am not sure whether this is a valid question, but do you think that the trend will continue and we will have more and more postal votes? I guess that we will have to be geared up for that.

10:15

The order will extend the period in which postal ballots can go out, so there might be an upturn in postal voting as a result. That is about logistics and giving more time to get the postal ballots out and giving the people who receive the postal ballots a bit more of a chance to assess their approach. Whether or not that results in an upturn in the use of postal ballots, it will be for those who are campaigning to use their own strategies and to see that through as they wish.

As my surname is Davidson, you will not be surprised to hear that I disagree with my colleague Mr Walker about alphabetising on ballot papers.

The same applies to Campbell.

You understand what I mean.

I return to the convener’s point about the extension of time for the local government elections. Will there be a decision on the corresponding increase in the amount of money that is allowed to be spent in local government elections? When do we expect a reply from the Electoral Commission’s political parties panel on that, given that May is not a long time away?

We will have to be fairly quick, because the election is imminent. However, the timescale will not differ too much from that for previous elections. The issue was raised only fairly recently and there must be a process of engagement. We will work with the Electoral Commission and the electoral management board for Scotland to ensure a timely and appropriate resolution for the forthcoming elections. We have no set timescale, but we will of course keep you in the loop on progress.

Fantastic—thank you.

I want to follow on from Mr Walker’s and Ms Davidson’s questions about the ballot paper. The alphabetical approach might be the simplest way, but it is not necessarily the fairest, as studies that have been done since the 2007 election clearly show. To be a little flippant, if I were standing in the local government elections in May, I might consider changing my name to Aaron Aardvark, because that would give me a severe advantage. Many organisations now use randomised ballot papers. It happens in internal elections in some political parties and has been used for a long time in places such as New Zealand. We should consider the issue again.

My main point is about the count. The experiment in Perth worked fairly well, but I wonder how many papers went through each machine at that count. My experience of elections in Aberdeen was that the machines were unable to cope with the bulk of papers. I will not be overly technical but, in my opinion, they probably overheated. Are you convinced that there will be enough machines for the number of ballot papers in every part of the country?

I take your point about the ballot paper on board, but the alphabetised ballot paper was part of the consultation and no responses were received on it. There was an opportunity to engage on the issue, and the alphabetised system is not the only one that was considered—the randomised system and others, such as grouping political parties, were also considered. Consideration was given to many options, but the alphabetised one was chosen for several reasons.

The Gould report suggested that the Government and others should look at different ways of ordering candidates, and we have done that since the election. As the minister said, the consultation document that was issued in the autumn of 2010 put that out for consultation and very few responses came back, other than people seeing difficulties with particular types of ordering. There was no consensus for one type over another, which is why we have stuck with this approach. Again, it relates to consistency. Voters are used to the system. There may well be an argument that, if things are to be changed in future, they should be changed across all elections.

On the bulk tests—

Sorry, did you want to say something in response to that?

I would like to interject on that point, convener. Voters might be used to a number of different systems, but that does not mean that we should not change the system. If we had not changed the system, we would still have first past the post for elections to the Scottish Parliament and to local government. I am glad that there have been changes.

I am sorry that I missed the consultation, because the evidence that has been gathered since 2007 clearly shows that there were advantages to candidates who were further up the alphabet, particularly when more than one candidate was standing for a party. We have to take cognisance of those studies and look at how that has been sorted elsewhere. The fact that voters are used to something does not mean that we should stick to it.

There was an opportunity to comment in the consultation. We take your views on board and, if there is an opportunity for further consultation, I hope that you will feed those views in.

I will.

On the bulk testing, more than 160,000 ballot papers were tested in Perth, which allowed people to familiarise themselves with the technology and the systems and to get used to how things may look next May. That quantity of papers is less than there will be at the elections in May, but it was a sizeable test. It was probably one of the first times that a test of that size has been done for an election.

There are also contingency plans in place for things such as power surges and the need for replacement equipment in case systems break down. A lot of thought has been put into how the elections will operate. Work has been done in partnership with the returning officers, the Electoral Commission and others to try to ensure that plans are in place to mitigate any problems that arise. Every conceivable thing that could happen has been thought of and a contingency put in place to ensure that it does not hamper the election count on the night.

There were many complaints about the electronic counting system in 2007, but one of the biggest benefits was that the Scottish Parliament election results were published down to a ballot box level, although the local government election results were not. Will the return of electronic counting to the local government elections allow those results to be published after the elections?

Information at polling station level will be published after the elections.

Is there a reason why information will not be published at ballot box level? Polling station areas can be huge—up to several thousand voters in some cases—whereas a ballot box is a specific and much smaller unit. Given that we managed to do it in 2007, the data must be there.

The data will be there and there will be discussions after the elections. If people feel that they would like more information afterwards, there is an opportunity to get that information back. There are reasons for the approach being put in place. I think that it was theoretically possible for the ballot paper to be traced back to the person, so it was about voter security as well. However, provisions are in place and, if people feel that they would like to have more information, there is an opportunity to look at that again, because returning officers will possess the information for a year after the election.

The order includes a limit of 200 votes. The information is not broken down into preferences in groups of fewer than 200 votes because of that fear and the legitimate concerns about voter security. We have tried to strike the right balance between parties and other organisations wanting to have the information and some people’s legitimate fears about the security of the ballot.

On that point, some polling stations have one ballot box and some have five, and some polling places have a huge number of ballot boxes. Can I be assured that, with regard to the gathering of that information, we are definitely talking about polling stations and not polling places?

It is polling stations.

There are no further questions, so we will move on to item 2, which is the debate on the motion to approve. Do any members wish to speak in the debate?

Members: No.

I ask Aileen Campbell to move motion S4M-01098.

Motion moved,

That the Local Government and Regeneration Committee recommends that the Scottish Local Government Elections Order 2011 [draft] be approved.—[Aileen Campbell.]

Motion agreed to.

Thank you very much, minister.

Thank you.

10:25 Meeting suspended.

10:27 On resuming—

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Planning etc (Scotland) Act 2006 (Development Planning) (Saving, Transitional and Consequential Provisions) Amendment Order 2011 (SSI 2011/336)

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West Lothian (Electoral Arrangements) Councillor Numbers Order 2011 (SSI 2011/332)

Item 3 is consideration of two negative Scottish statutory instruments. Members have a note from the clerks setting out the purposes of the instruments and drawing members’ attention to the Subordinate Legislation Committee’s report on them.

Convener, just to be cautious, I declare an interest in that I am a member of Aberdeen City Council.

I am a member of Fife Council.

I am a member of North Lanarkshire Council.

I thank members for that.

As members have no comments and no motions to annul have been lodged, do members agree that the committee has no recommendations to make on the orders?

Members indicated agreement.

I thank members for that.

10:29 Meeting suspended.

10:30 On resuming—