Chamber and committees

Thank you very much, convener, and good morning. Thank you for inviting me to give evidence on the UK Government’s Representation of the People Bill, which is nearing its House of Lords committee stage. I expect further amendments to be tabled that will require the legislative consent of the Scottish Parliament. I understand that those amendments will focus on the two parts of the bill on which the Scottish ministers have not yet indicated a position on consent: part 4, on campaign finance, and part 5, on the Electoral Commission. I do not anticipate any UK Government amendments involving consent in relation to part 2, on registration, or part 3 as it concerns absent voting. There is therefore no expectation that the recommendation by the Scottish Government to consent on those issues will change, although we always reserve our position.

For amendments on campaigning, we will have to respond swiftly to changes involving consent, and I anticipate lodging another LCM—the fifth so far—later this month. I recognise that that number of LCMs is considerable, but that reflects the breadth and scale of the bill, which has required a lot of attention. It is fair to say that the work associated with the bill has had an impact on our ability to progress our own plans on elections, not least the planned consultation on electoral reform. Work remains in hand for the latter to launch soon, but I had hoped to be able to launch it by now.

However, I am happy to acknowledge that much in the bill is to be welcomed. In relation to registration of voters, I consider the changes to be helpful and note that administrators have welcomed them. In relation to the open register, I highlight my view that it could well be worth removing the open register in its entirety, but maybe a step in the right direction has been taken—opt-in instead of opt-out is probably more consistent with people’s practices in other areas of life. Whether to remove it entirely is perhaps a question for the future.

On absent voting, I consider that there is very little option but to consent to the changes in the bill if we wish voters in our elections to be able to use the UK portal to apply online for a postal or proxy vote. Access to that portal will go live on 3 November and should make it much easier for voters to obtain an absent vote. That highlights both a benefit and a risk of converging with the rules for UK Parliament elections. On the positive side, we gain access to a common platform and set of rules, but, on the other side, we are vulnerable to changes of policy by the UK Government.

On absent voting, we had only recently legislated to move to a three-year reapplication cycle for postal votes. That was not so much a policy decision of our own as a precondition of joining the UK online system. However, the UK Government has now amended the bill to move the period back to five years. I do not have a specific concern about that decision—the five-year period should mean less administration for voters and it was our preferred position when we decided to participate in the online absent voting application platform—but it is not encouraging that the UK Government should, in effect, require us to adopt one standard and then, unilaterally and with minimal consultation, move to another. That causes me some concern with regard to its ability to act in a similar way on other, more pressing concerns.

Indeed, I understand that another instance of that is expected, with the UK Government being due to announce changes to the law on accessibility support for voters. That is despite the committee agreeing earlier this month to adopt the Elections Act 2022 accessibility changes for council elections. I have received no detail of those plans, but I anticipate that, as soon as any change is made, it will be suggested that the new UK Parliament rules, whatever they may be, should also be adopted for our elections.

I am keen to ensure that the bill’s changes on campaign finance and oversight by the Electoral Commission do not see this Parliament sacrificing its control over its own laws. There is, of course, much to be said for clarity and consistency in electoral law—I concede that and I recognise it—but I do not accept that that means that we must unquestioningly adopt whatever position the UK Government of the day prefers. Indeed, the bill shows that, where we innovate, Westminster sometimes follows. It contains an acknowledgement by the UK Government of the merits of differences that this Parliament has already pursued in that it adopts votes at 16, changes on agent addresses, measures on digital imprints and provisions on intimidation, all of which are already part of the law for our elections.

The provisions on campaign finance are highly complex and they have been substantially changed during the bill’s passage, partly in response to the Rycroft review on overseas interference. I am sympathetic to most of those measures. The new know-your-donor regime should be an improvement, and I am supportive of attempts to regulate donations. My main concern has been to ensure that the Scottish Parliament and the Scottish ministers will have a say where the controls impact on devolved elections. I have also argued that there is scope for greater devolution in the area of party finance.

In my engagement with UK ministers, I will continue to press for this Parliament to be provided with the maximum opportunity to consider changes, especially when the proposal is for UK ministers to make a change via secondary legislation. For that reason, and because we still do not know the full set of proposals on campaigning, I cannot yet give a definitive view on consent to parts 4 and 5. I will, of course, welcome the committee’s views on the appropriate balance on those matters.

I am very happy to discuss those issues further, and Iain Hockenhull, Lorraine Walkinshaw, Jordan McGrory and I are very happy to do our best to answer your questions.

Such changes will require ministerial consent now. It will probably go back to what I was talking about before: there might not be a specific provision in the UK legislation on the Scottish Parliament; it is then incumbent on us to consider that. Those provisions relate only to local government elections, not Scottish Parliament elections, which are not impacted by the bill in this area.

I think I am correct in saying that the taking of a power in this area does not cut across our ability to legislate, so we could also make a determination if we wanted to legislate in this area. My officials are not coming in to say that I have got that wrong, so I have got that correct, I hope.

When I held this office previously, we had the opportunity to discuss that opportunity, and there has been ongoing interaction with the Welsh Government about it. I am given to understand that it worked quite successfully, from its perspective. That is good, and it is useful to learn from that, but we operate on our own basis with our own data sources, which we would be drawing on for automatic registration. We cannot just say, “Well, it worked in Wales, so we will just crack on with it here.” We need to consider how it would work here.

Are you talking about the know-your-donor thing?

Our perspective is that voter ID should not be required to vote in elections. I have made that clear to the UK Government, and I made it clear when we introduced our own elections bill; I did not intend to make voter ID a facet of devolved elections. There is no reason why voter ID should be introduced, and there is plenty of evidence to suggest that it disenfranchises people. That is my top-line response. Anything that can be done to widen the range of eligible ID in order to minimise the risk of disenfranchisement is welcome, but I urge the UK Government to consider the whole area again.

I am afraid that that goes back to the answer that I have already given to Ms Baillie, which is that those discussions are ongoing. We are having positive dialogue and I will update the Parliament as soon as there is an outcome one way or the other. Ultimately, those issues will determine our recommendation on whether to give consent.

In general, the greater the transparency and openness we have on donations, the better. An issue that we considered in relation to the bill at a previous meeting of the committee—I think that it was here, albeit in a different context—was the potential for foreign interference in our elections. There are provisions in the bill relating to restrictions on foreign donations and crypto currency and crypto asset donations. These are areas on which concerns have been expressed and, broadly speaking, I welcome the direction of travel in that respect. I have already indicated in correspondence, certainly with the Delegated Powers and Law Reform Committee, which wrote to me on these issues, that the provisions could go further. For example, there was an amendment tabled by Stella Creasy that would have further restricted the volume of donations; I thought that there was merit in that, but, unfortunately, the amendment was not called. Broadly speaking, though, I think that the direction of travel is good.

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However, the question that kicks in is what impact these proposals will have on devolved elections, particularly local government elections, and whether there will still be a role for the Scottish ministers and the Scottish Parliament. Discussions are needed, and are ongoing, as to whether we are in the right place in that respect in all these areas. With donations that might impact local government elections, for example, there is a requirement that the consent of ministers be sought, but the bill does not specify the involvement of the Scottish Parliament. Of course, we have our own processes and protocols to try to ensure that, at our end, the Scottish Parliament is properly consulted. We would certainly adhere to those things, and we would certainly do everything that we could to ensure that we were engaging this Parliament in the process, as this Parliament would properly expect.

It is fair to say that the dialogue is fairly positive. Those are areas that we still need to iron out and refine. What might happen if we do not agree that provisions require legislative consent? Ultimately, that will depend on whether the UK Government then decides to legislate. What might happen if we cannot agree on an area that we think requires consent and the UK Government thinks does not require consent? I am afraid that the precedent is that the UK Government will press ahead and legislate. There is little that we can do about that beyond making sure that we have raised our voice and made it clear that we consider the area to be one that requires consent.

That will be taken forward through our usual process here. It will be for the Presiding Officer to make a determination on whether he considers that our view is correct, and then we will put that to the Parliament to determine.

We legislated for that power to be provided under the Scottish Elections (Representation and Reform) Act 2025 although, speaking candidly, we are not as far advanced as I would like to be—not least because the same people who would be trying to conduct that sort of pilot are caught up dealing with the UK Government’s Representation of the People Bill, which is fairly substantive and has taken up a lot of time.

We have that power and I am open to utilising it. I am aware that the UK Government is itself considering pilots, and I need to consider the merit of working together in that area. We may conclude that we do not wish to do so—that we want to undertake our own pilot—albeit that that takes us into the territory of having automatic registration for two sets of elections, in our case, and one set of elections on the UK Government side. I recognise that there are issues there.

I have referred to the further consultation that I want to pursue, open and have published soon. We are likely to consider this area again. People might feel that we should be going further and moving towards a form of automatic voter registration. That consultation will be opened up so that the public can respond. That is not finalised yet, but we will communicate with the committee once it is.

Yes.