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Welcome to the 13th meeting in 2015 of the Devolution (Further Powers) Committee. We have received apologies from Duncan McNeil.
We go straight to agenda item 2, which is an evidence-taking session at stage 1 of the Scottish Elections (Reduction of Voting Age) Bill. I welcome our final panel of witnesses in the evidence-taking process: John Swinney, the Deputy First Minister and Cabinet Secretary for Finance, Constitution and Economy; Helen Clifford, team leader of the franchise team; Gillian Cross, policy adviser in the franchise team; Stuart Foubister, divisional solicitor in the legal directorate; and Willie Ferrie, parliamentary counsel.
We have about an hour in which to take evidence, so I would appreciate it if members and witnesses would make their questions and answers as succinct as possible.
The Deputy First Minister would like to make an opening statement.
I welcome the opportunity to give evidence to the committee on the Scottish Elections (Reduction of Voting Age) Bill. I extend my thanks to all those who have given their time and expertise during what has been a compressed timetable for the development of the bill. The committee heard evidence last week from many of those involved and I was pleased to note that they welcomed what we have made of their advice.
The Scottish Parliament decision to extend the vote to 16 and 17-year-olds for the referendum—and the subsequent participation of that age group—has been widely seen as a major step forward in democratic participation and the democratic process.
Your report into the operation of the referendum concluded that the decision to lower the voting age had been a success. That assessment has been repeated on a number of occasions in Parliament since last September, not least during consideration of the order made under sections 30 and 63 of the Scotland Act 1998 that transferred the necessary powers to allow us to lower the voting age to 16 in time for the 2016 Scottish Parliament elections. The order was approved unanimously by the Parliament and came into force on 20 March. Less than two weeks later, I introduced the bill.
The powers that were transferred to the Scottish Parliament by the section 30 order are tightly drawn and will be followed in due course by full powers over Scottish Parliament and local government elections, as recommended by the Smith commission. In the meantime, the powers that we have allow the reduction in the minimum voting age to 16 for Scottish Parliament and local government elections, and allow the Scottish Parliament to make adjustments to registration arrangements to give effect to the reduction in voting age.
Through the bill and the associated practical arrangements, we are seeking to balance transparency of the electoral process with the need to treat young people’s data with sensitivity and to ensure that the youngest voters can participate fully in the democratic process. The arrangements are intended to put young voters on an equal footing with all other voters, not least because this is now intended to be a permanent reduction in the voting age for Scottish Parliament and local government elections, while ensuring that their data is treated sensitively and responsibly.
The bill’s general approach is therefore to replicate current registration practice for the youngest voters as far as possible. It does that by applying existing electoral legislation, amending that where necessary to take account of the reduction in the voting age to 16. The proposed arrangements also reflect the introduction of individual electoral registration and draw on the success and the experience of the referendum.
The bill provides for restrictions on access to, and disclosure of, information on 14 and 15-year-olds, and provides for enhanced arrangements for particular groups of vulnerable young people, such as those who need to register anonymously and those who need to register by way of a declaration of local connection rather than by using their current address.
The arrangements that we put in place for the referendum were well received and supported by MSPs, child protection groups and electoral administrators before and after the referendum. As the committee would expect, the provisions in the bill are designed to create broadly the same effect as the arrangements that proved such a success last September. We propose to do some things differently in this bill where that makes sense for the voter and provides for a more effective and efficient process for electoral administrators.
I look forward to discussing the bill’s proposals with the committee.
Thank you. How has your consultation with organisations that represent young people influenced the outcome of the bill? It would be interesting to hear the Government’s perspective on that. Obviously, we have taken a fair bit of evidence from individuals on the issue. What were the consultation processes, and how did they influence and shape the bill?
In essence, we undertook consultation in two spheres. One was the electoral professionals who run the electoral registration process and the stakeholder community associated with that—the Electoral Commission, the Information Commissioner’s Office, and the software providers to make sure that the practical contents of the bill could be delivered if enacted. Secondly, we undertook discussions with a variety of other stakeholder interests around youth involvement and participation and child protection and some of the wider organisations looking at the welfare of children in particular circumstances, such as organisations that are involved in supporting looked-after children, where there are particular and sensitive issues that have to be addressed.
The outcome of that work has been absorbed into the formulation of the bill as far as possible. The discussions that I have seen the committee undertake with a variety of those interests gives me the impression that, broadly speaking, the approach that the Government has taken in taking forward the bill, understanding and listening to the issues raised by those organisations, has been well received.
You mentioned issues around looked-after children. I know that Lewis Macdonald and a couple of other members have a particular interest in that.
The fact that the bill makes particular provision for looked-after children through the encouragement of or the requirement for local authorities to support looked-after children in registering and so on is welcome. Will the Deputy First Minister expand on how that will work in practice and how local authorities will be assisted to deliver on their obligations in that regard?
A number of approaches will be taken. The first general remark that I would make is that the approach that has been taken is broadly consistent with what was undertaken in the run-up to the referendum last September. In relation to anonymous registration, which was particularly relevant in this area, existing electoral law requires proof in the form of a listed court order, interdict or attestation by the chief social worker or police officer of superintendent rank or above that the safety of an individual or someone living with them would be at risk if the register disclosed their name and address. That is fully reflected in the proposals that we have brought forward. There is also provision for the declaration of local connection, where there can be a necessity to ensure that there is awareness among local authorities of the necessity to consider that factor in undertaking any registration.
On the encouragement to local authorities to extend awareness of the provisions that can be taken forward to enable the registration of looked-after children in particular, we will work with local government to support it in ensuring that there is the widest possible awareness that those provisions exist and can be deployed so that the option is available to individuals. The bill requires each local authority to promote awareness of the registration arrangements among looked-after children, and local authorities will have to determine what action is necessary to do that. We will work with relevant organisations to provide the necessary guidance and support to local authorities; that fits into the wider corporate parenting responsibilities, for which local authorities carry that obligation.
That is a welcome approach—I think that it is the right approach. As well as the disadvantage that looked-after children have in many respects, there is a particular challenge for young people who are moving out of a looked-after environment into the wider community. Some of the evidence that we heard last week suggested that more could or should be done to ensure that those young people are aware of their rights and responsibilities, including in relation to voting if they are leaving care at 16 or 17.
That is a significant and fair point. Mr Macdonald’s question covers not just the general difficulty of young people moving out of a looked-after environment but the multiplicity of issues that they face, and the situation is no different in relation to electoral registration. It is important that we have a tailored approach to meeting the needs of that relatively small but important cohort in our society, who need support. Just as the state should support young people who are undertaking that journey in relation to housing, employment, healthcare or wellbeing services, it is important that support is provided specifically in relation to electoral registration.
We will reflect on that suggestion and ensure that specific provision is put in place to reflect the concerns that have been raised. Nothing in the bill prevents our doing that, and everything in the bill provides the opportunity for it. Mr Macdonald makes a fair and substantial point, which we will take forward.
Thank you very much.
Stuart McMillan wants to ask a question.
Thank you, convener, but it has been dealt with in the Deputy First Minister’s answers. However, I have a quick supplementary question. Has the Scottish Government had any discussions with local government regarding the issues that the Deputy First Minister has just addressed?
That discussion has not started, although we have talked to the electoral registration officers, who will be at the heart of the registration process. The discussion will proceed predominantly through the ERO channel, but we will ensure that there are appropriate connections to social work and social welfare services so that they can provide the necessary input to ensure that the young people to whom Mr Macdonald referred can be contacted and supported to fulfil their democratic rights if they wish to exercise them.
A couple of members have supplementary questions.
At the previous evidence session, I pointed out that, although there is a lot of evidence relating to 16 and 17-year-olds in schools and colleges, a small number of young people—I hope that it is a small number—will fall into the category of not in education, employment or training. Has the Scottish Government considered how it might promote registration among that cohort, or do you expect that to be captured within a wider information programme?
That will be part of the challenge of electoral registration. There will be the normal canvassing activity to identify which eligible individuals should be added to the register. By its nature, that is a comprehensive process involving the canvassing activity that is undertaken to ensure that we get as complete a register as we possibly can.
That work will be complemented by messages about the importance of registration that will be communicated more widely and publicly. In the run-up to the current general election and in the run-up to the referendum, we have seen sustained public messaging campaigns being undertaken to ensure that people take up the opportunity to register.
A comprehensive effort will be made and, on the basis of our recent experience, I am confident that we can maximise registration as a consequence of that awareness raising.
Deputy First Minister, you will be aware of the areas of the Children and Young People (Scotland) Act 2014 that deal with aftercare and the extension of continuing care to an older age group. In particular, those who are no longer looked after but were looked after in the past are now in receipt of new and additional services that they were not entitled to before the 2014 act came into effect.
The provisions regarding those services are currently going through the Parliament’s Education and Culture Committee in the form of subordinate legislation. The centre for excellence for looked-after children in Scotland suggested to us that the bill could be amended to ensure that local authorities promote awareness, registration and support for that group. Do you have any thoughts about how the work of local authorities and the bill will match up with the expanded support that is provided by the 2014 act?
09:15
The terms of the bill are cast in such a fashion as to give us the opportunity to take forward and fulfil the obligations of the 2014 act, given the powers that the bill takes forward and the obligations that it takes on in relation to registration. Having said that, I am open to considering the issue that Mr Maxwell has raised.
I want to signal to the committee this morning my desire to ensure that we fulfil the capability as much as we possibly can. If there is another level of legislative provision that we need to consider, we will certainly consider that. I do not see anything in the bill that impedes us from fulfilling the obligation, but I will consider the issues that have been raised, and if I feel that there is a need for further provision, the Government will engage constructively on that point.
Thank you.
Alison, your question on disabilities falls neatly into this area of questioning.
Yes. Following on from the questions about looked-after children, who are often overlooked, I have a question about young people with disabilities.
Last week, we heard from organisations that represent those young people, and there is a feeling that, certainly in the past, people with physical disabilities and learning disabilities have often been persuaded that voting is not something that they should take part in. Does the bill give us an opportunity to address that issue and ensure that it is as easy as possible for those people to get to a polling station and that, where that is not possible, postal votes are discussed with young people?
I am also thinking about the materials that come through the post from political parties. Are they really appropriate for all age groups and for those with learning or other disabilities?
On the bill’s general provisions, I am satisfied that it is cast in a fashion that creates the opportunity for all 16 and 17-year-olds to be able to vote in Scottish Parliament and local authority elections. In terms of legislative provision, I am absolutely confident that it is defined in a way that makes it possible for everybody in that age category to be eligible to vote.
Beyond that, we go on to questions on the messaging and the motivation to enable young people to participate in the electoral process. In that respect, it comes down to how we design the campaigns that encourage voter registration and participation. Some of that needs to reflect the particular circumstances and needs of individuals in terms of physical access to vote. All polling places are obliged under existing legislation to be physically accessible for all individuals.
There are also postal vote opportunities. If I think back to when I started out in this activity more than 30 years ago, people then had to have a really good reason to have postal votes. They were not available as openly as they are now. People really had to prove that they had an absolutely definitive reason why they could not get to the polling station. Postal votes are now much more readily available, with the right scrutiny being in place. However, those opportunities need to be made available to people, who need to understand that they are available so that they can exercise their participation.
As for the leaflets of political parties, I take no responsibility for them—that is something for the parties to get on with. It is hard enough to get agreement on the content of political party leaflets within the parties without getting agreement around the committee room tables about what should be in them. However, Alison Johnstone makes a fair point about the need for materials and messages to be available in a format that is accessible to all. For our part, in registration and participation campaigns, we ensure that all our approaches are structured in such a way as to make that possible and practical.
When the committee was scrutinising the referendum process, we heard evidence from young people that there was a discontent about how local authorities—that is, schools—participated so that 16 and 17-year-olds could have full discussion on what was going on. We raised the issue in the committee last week, and I was surprised at the strength of feeling among those who represent young people. The chair of the Scottish Youth Parliament articulated the point very well, which is that they felt that what happened over the referendum was entirely inadequate.
There was a strong view—stronger than I expected—that, despite it being the responsibility of local authorities, there should be national guidelines. It was suggested that education authorities could tap into those guidelines, to determine the level of openness in schools—I hesitate to say education, because it is not education that many of the young folk need, but discussion and the ability to talk openly, like everyone else—and to gauge how authorities should deal with elections when their pupils are able to vote. What is the Deputy First Minister’s initial view on how the Government sees that, and is it something that other colleagues could discuss?
My general view is that there should be absolutely nothing within the education system that prevents young people from reaching a fair and dispassionate understanding of the political process and choices. It is absurd that there should be any practical impediment to that.
During the referendum, I picked up anecdotal experience that there was a sensitivity about the referendum debate coming into schools and the feeling that somehow that was not desirable. In my experience of interacting with young people, particularly the 16 and 17-year-olds who were eligible to vote, and the very frustrated 15-year-olds who were not able to vote, I found that there was a real appetite and zeal to be involved in the discussion.
If there is unease about that within the education community, it is unfounded, because that debate is part of the education process. If we look at the foundations of curriculum for excellence, we can see that citizenship education is at the heart of it, enabling our young people to fulfil their potential within our society. Part of that involves fulfilling their potential in the democratic process.
The absolute stipulation must be that it must all be fair and dispassionate; it must give young people the opportunity to participate equally and to understand all the choices fairly and squarely and without prejudice. That is the crucial characteristic of what should be being done, and there should be no impediment to that within the schools of Scotland.
Guidance and educational resources for teachers on political literacy are available on the Education Scotland website. That guidance emphasises the importance of young people receiving information on political events such as elections, in the balanced and impartial way that I have just talked about. The provision is all there, but we must ensure that it is delivered in that fair and balanced way.
Thank you.
I will follow Linda Fabiani’s line of questioning.
Deputy First Minister, I take it from your answer, which I thought was fair, that the Government has not received any overt representations on that point either from local government or from other sectors, including the Scottish Youth Parliament, and that there has not been a great outpouring of angst to the Government in respect of the bill or the need for the guidance that Linda Fabiani described.
Nothing has come to us on that.
Is it therefore your view that what is currently on the Education Scotland website, which is fairly available to all, is adequate in relation to local authorities’ proper role in that area?
At the heart of the guidance is the point that I mentioned about the importance of young people receiving information about political events such as elections in a balanced and impartial way. That is at the foundation of the guidance that is available.
When the guidance leaves the website and goes into the school, we may come across some of the issues that I referred to in my earlier answers to Linda Fabiani. There may be sensitivity about how intense the debate is getting and whether it should be held in school, but my experience is that that can all be handled in a perfectly rational, considered, dispassionate way. That is important because it gives young people access to the knowledge and information that they can mine at their own convenience and to the extent of their interest to find out more on those questions.
I am interested in that area myself. We took evidence from the Electoral Commission, and I felt that it had a pretty hands-off approach in that regard, although it has a duty to promote engagement. Could there be a stronger role for the Electoral Commission in helping Education Scotland and education authorities to fashion something that at least provides a minimum base requirement for what goes on?
We all know from our experience of the referendum that the period when things became most disjointed between local authorities was the very time at which young people wanted to be engaged, and that was during purdah. Local authorities across the country took different views about what they should do during that period, so there may be some real issues on which the Electoral Commission could help the various education authorities and Education Scotland by producing guidance on a minimum standard that needs to be set. How do you feel about that?
I would certainly be happy to explore those issues. The Electoral Commission has a statutory role to set out the manner, style and content of awareness raising on the electoral process. That is not particularly different for people over 18 and under 18; it is the same type of material. In that respect, the commission has to fulfil that statutory test and Parliament has to be satisfied and confident that that is being undertaken.
When it comes to how that information flows into schools, my view, as I said in answer to Mr Scott, is that the guidance that is available is perfectly adequate to enable the issue to be handled appropriately and dispassionately in our schools. Where we could perhaps get into trouble is when, as happens, the great word “purdah” sends people into an almost frozen state where nothing can happen. That is a nonsense: lots of things can happen. There is an election, for heaven’s sake, and young people have to participate.
I certainly would not dispute the claim that purdah gets used as an almighty excuse for nothing happening or for things being stopped. I may be displaying some irritation about that. I accept that there may be a problem in translating the guidance into what actually happens because people get frightened and think, “Oh, my goodness, I don’t want to do something that breaks purdah.” It can be hard, if there is an election on, for people who are trying to handle things fair and square and dispassionately in the classroom.
I can certainly foresee circumstances in which a classroom teacher could be put into a position in which they are dissuaded from taking forward some part of the electoral awareness process because a local authority official has warned them about the great P word. I certainly concede that point. Therefore, we must ensure that the guidance is properly understood, and not improperly understood, which I would accept is the case in certain circumstances in purdah.
09:30
Good morning, cabinet secretary. I will follow on from those questions, too.
We have a situation in which the problem of translating the guidance is down to the confidence in the organisations concerned. I was once a teacher, and I know that the problem of risk aversion—from teachers and headteachers to local authority managers—is a big one. The evidence that we took and received during the referendum campaign highlighted that.
The Electoral Commission, in further evidence to us following last week’s meeting, says:
“people should be confident that their voice counts.”
The word “confident” jumps out at me. That is not about the guidelines; rather, it is a matter of the ethos. We are encouraging people to be a part of the process and that must be conveyed by those in the classroom and the administrators. That issue is not captured in the bare question of the guidelines.
I agree. Mr Gibson sums up perfectly what I have been trying to say. The guidance seems to be absolutely comprehensible and crystal clear about what can be done. However, I concede that, on occasions, there will be nervousness among those in the school system that they may be somehow transgressing the guidelines. Clearly, members of the teaching profession want to operate in the correct statutory framework.
We will give further consideration to the issue, and the committee may want to deliberate on that point into the bargain. However, the issue is about the distinction that Mr Gibson makes between the guidance and the ethos. The resolution of the issue is all about the ethos, not the guidance.
Stewart Maxwell has some questions on data issues.
The policy memorandum says that the existing rules on protecting voting data will apply “as far as possible” and that the data on those under 16 will be “treated with greater sensitivity”. Will you expand on what is meant by “greater sensitivity” as well as the safeguards that are in the bill for those under 16?
The bill is designed to ensure that only electoral registration officers and those working for them have access to information on those under 16. In other words, information on those eligible to vote in the 14 to 15-year-old age group will be held by the electoral registration officers and available only to those who work for them. There are three limited circumstances in which that information can be made available to others. Given that a breach of that duty would constitute a criminal offence, the duty itself comes with the highest level of scrutiny.
Information on 14 and 15-year-olds will be suppressed in any version of the full local government register that is published, sold or otherwise made available, but returning officers, the Electoral Commission and candidates will be entitled to a copy of the register for electoral purposes shortly before an electoral event. There are similar statutory offences for unauthorised use of the information. As that version of the register will contain details of those entitled to vote who are already aged 16 or over and those who will turn 16 on or before the date of the electoral event, in practice only those aged 15 years and 46 weeks or over will be on the more publicly available register.
The only other exception to the principle that electoral registration officers and their staff cannot disclose information is when such disclosure is necessary for the purposes of a criminal investigation or criminal proceedings in relation to voter registration matters. The circumstances in which any of that information can be accessed by anyone other than electoral registration officers and their staff are very limited, and any unauthorised disclosure of that information carries with it the risk of criminal penalty.
Thank you very much for that.
Last week, there was some discussion about whether it would be possible for other groups or organisations to access some of that data. You seem to be making it clear that that would not be the case, but the examples that were given were credit agencies and other organisations that can legitimately access electoral data records.
I can expressly rule out the possibility of credit agencies having access to such information on under-16s.
That is good.
What about young people who, for very obvious reasons, might not wish their name to be published on an electoral register, because of their family circumstances or a variety of other reasons? I am, of course, talking about people who are fleeing difficult situations such as abuse. What is the Government’s view on protecting the interests of those young people who find themselves in such unfortunate circumstances while allowing them to participate fully in the electoral process?
I want to make two points in response to that question. First, there is provision for anonymous registration where it is judged that the safety of an individual or someone living with them would be at risk if the register disclosed their name and address. That would be the case if a court order or interdict said so, or if it was the view of the chief social worker or a police officer above the rank of superintendent. There is a specific mechanism that enables anonymous registration and participation to take place, and the circumstances that Mr Maxwell has highlighted are entirely covered by the bill.
My second point is that such an option is only as good as people’s awareness of its existence. If people are not aware of the option, there is a risk that these young individuals might not be able to do as Mr Maxwell suggests and participate fully in the democratic process. As a result, part of the awareness raising for the whole registration process must include giving people an understanding that it is possible to undertake anonymous registration in the circumstances that I have set out. It is important that that point is understood and reflected more widely in the process.
My final question is on exactly that point. What work do you envisage will be undertaken by local authorities, electoral registration officers or the Electoral Commission to ensure that the families and individuals in question, particularly the young people, will be provided with that information, to which you have correctly said they should be entitled?
The general canvass process is designed to identify all of those individuals who are eligible to be on the register as able to vote. In that process, the circumstances of individuals who might need to be registered anonymously would crystallise. I can assume only that individuals would present themselves and say that they were concerned about their name being on the register because of the implications that that might have.
The key test is that those who are handling such information must have at the front of their minds that there is another option for those individuals. Instead of saying, “Oh, well, if you don’t want to register, don’t register,” they can make it clear that there is the option of anonymous registration in certain circumstances or if there is an issue of safety. We need to ensure that people are aware that that is the case.
As corporate parents, local authorities also have the proactive responsibility of identifying individuals. As it is highly likely that local authorities are already going to be supporting those individuals, because of their circumstances, they can say to those individuals, “You should be registered to vote but because of your circumstances, your name and address should not be disclosed. We can put in place a mechanism to sort that out and make things easier.” Crucially, those involved in the electoral process must have that option at the front of their minds when they articulate the various options to young people.
Following on from that, I recall that last week we discussed the issue of attainers and donations. During that evidence session, Andy O’Neill said:
“Another issue that we need to think through relates to donations. Under the bill, a person who is 14 years and nine months is likely to be an attainer on the register. It may be improbable but, if the law on registers remains the same, we think that an attainer can be a donor or a lender to a political party, or a candidate. The issue for candidates and political parties on regulated donors is that the permissibility of donations of more than £500 must be checked. If they cannot access the donor’s details, that would create an issue.”—[Official Report, Devolution (Further Powers) Committee, 23 April 2015; c 10.]
Has that issue been flagged up to the Scottish Government? If so, have you considered how you might address it?
What Mr O’Neill said is absolutely the case. The bill proposals mean that 14 and 15-year-olds will be entitled to be registered as attainers on the local government register and will therefore be permissible donors.
Coming back to my answers to Mr Maxwell, I think that a practical issue arises here, in that the information would not be readily available to political parties to allow them to check whether an individual was on the register. The way around that would be to give young people the ability to obtain a letter from the electoral registration officer to confirm that they were on the register. The young person could then make that letter available to the political party to satisfy the political party’s obligations under the Political Parties, Elections and Referendums Act 2000, which specifies the basis of the obligation on political parties to ensure that donations are compliant.
So do you expect that to be spelled out and clarified in the guidance that accompanies the legislation?
We will certainly make the option clear, but I am not sure whether it will be in the guidance. I will consider the contents of that in due course.
The Law Society of Scotland and the Howard League Scotland have provided some views on prisoner voting and compliance issues under the European convention on human rights. What are the Government’s views on that?
The issue of prisoner voting is determined, defined and constrained by the contents of the Representation of the People Act 1983, section 3 of which contains a ban on prisoner voting across the United Kingdom. Because that is reserved legislation, we have no ability to vary it.
Deputy First Minister, I am grateful to you and your officials for your evidence, which will be very helpful. Thank you.
I suspend the meeting before we move to the next item of business.
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