House of Commons
|Session 2006 - 07|
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Public Bill Committee Debates
Draft Scottish Parliament (Elections etc.) (Amendment) Order 2007
The Committee consisted of the following Members:
Hannah Weston, Committee Clerk
attended the Committee
Third Delegated Legislation Committee
[Mr. Eric Martlew in the Chair]
Draft Scottish Parliament (Elections etc.) (Amendment) Order 2007
That the Committee has considered the draft Scottish Parliament (Elections etc.) Order 2007.
I welcome you to the Chair, Mr. Martlew. The order provides a mechanism to enable the Electoral Commission to access the ballot papers and scanned ballot paper images from this years Scottish parliamentary election. Currently, papers are sealed up and held securely by sheriff clerks and access can be granted only in cases of alleged fraud or where an election petition is being prepared. The same applies to the electronic record, which is a new item in Scotland. The order is necessary because Mr. Ron Gould, who is leading the independent review of the May elections, has requested the facility to examine actual spoiled papers.
Before the commissions review team is given access, it is important that proper safeguards are in place. The orders primary security feature is that it does not give the commission access to the corresponding number list, which replaced the old counterfoil and links an individuals unique electoral roll number with the barcodes and numbers printed on the back of the ballot papers. Without that list, ballot papers cannot be linked back to individuals and so the secrecy of the ballot is maintained.
Mr. Alistair Carmichael (Orkney and Shetland) (LD): I want to ask the Minister this question early in his speech so that, if he does not know the answer, inspiration may come to him in the course of his remarks. It immensely help the Committee if he could explain why he has chosen to proceed by way of an order made under section 12(1)(a) of the Scotland Act 1998 and whether he is satisfied that the powers under that provision are sufficient for the purpose of making this order.
David Cairns: Yes, I am satisfied that that is the case. It is not just a question of me or our legal people being satisfied: this order has been presented to the Joint Committee on Statutory Instruments, as well as the Lords Select Committee on the Merits of Statutory Instruments, neither of which raised any questions about vires. I shall explain shortly why we chose this route as opposed to others but, on the broad issue of vires, I am entirely satisfied we have the vires for this order.
the conduct of elections for membership of the Parliament.
There is a power under 12(1)(b) for an order to make provision as to
the questioning of such an election and the consequences of irregularities.
That would seem the more appropriate power to use.
David Cairns: I thought that the hon. Gentleman was questioning the vires of doing this by secondary legislation in the first place. I apologise if I misunderstood his question. Let me seek inspiration as to why we went with section 12(1)(a) as opposed to (1)(b), but I had thought that I was addressing a separate point. I will come back to him.
The secrecy of the ballot is paramount and the order will not allow the Electoral Commission to be able to identify how a particular individual voted. The order also requires that, once the review team has completed its scrutiny, the papers and records must be sealed up again, returned to the relevant sheriff clerk and any copies destroyed. Because further scrutiny might be desirable after future Scottish Parliament elections or by-elections, the order is not expressly limited to the poll last May, but it does not simply provide uncontrolled access.
Control is achievedthis is the point I thought that the hon. Gentleman was going to makeby linking access to section 6(2) of the Political Parties, Elections and Referendums Act 2000, which allows the Secretary of State to request the commission to undertake reviews into electoral matters. Under the order, the commission may access ballot papers only when requested to do so by the Secretary of State. Since the Secretary of State is answerable to this House, the order therefore provides for parliamentary accountability for any decision to provide ballot paper access.
Finally, as local elections in Scotland are a devolved matter, the order applies only to the Scottish Parliamentary elections.
Mr. Ben Wallace (Lancaster and Wyre) (Con): On 3 May 2007, the Scottish Parliament elections descended to something close to a farce with 146,000 spoiled ballot papers, which would be equivalent to nearly 1 million across the United Kingdom. The election was conducted in despite of a number of recommendations about how to hold it, including some from the Arbuthnott Commission, such as whether to hold the local government elections on a day separate from that for the election to the Scottish Parliament. Despite the warnings, we ended up with a rather unsatisfactorily conducted election. There were problems ranging from technical difficulties, such as delays with computer printouts, to mass confusion, at the ballot box. Some of those things were certainly avoidable. While we support the concept of the order allowing the Electoral Commission to assist in Ron Goulds inquiry, there is still the question of why its remit does not include examining why the Scotland Office took that decision in the first place.
David Cairns: I cannot allow that point to be left on the record unchallenged. Firstly, Mr. Gould will examine why the elections were held on the same day and, secondly, it was not the Scotland Office that took the decision to have the elections on the same day so, in both parts of his sentence, the hon. Gentleman is wrong.
Mr. Wallace: My understanding was that the matter was not part of the inquiry, but the Minister has corrected me.
To go on to the specifics, may I ask why the order is open-ended? I would prefer it to be specific to this inquiry. Being open-ended, it allows successive Secretaries of State to direct the Electoral Commission to examine ballot papers. There was a specific failure in this election and I would be much happier if the order was specific to investigating the issue of May 2007.
To follow up the point made by the hon. Member for Orkney and Shetland (Mr. Carmichael), the order seems somewhat to lose the element of independence that the Electoral Commission should have, in respect of being able to act under section 5 of the Political Parties and Referendums Act. In other words, its duty to examine ballot papers was a consequence of that Act, rather than of an order from the Secretary of State.
I remind the Minister that this inquiry was started in May, but we now have this order in July. In my view, the situation in respect of the Scottish Administration, the Scottish Parliament and the Scottish Executive is hardly clear-cut. The sooner that the inquiry is concluded, the better. We will not divided the Committee.
Mr. Alistair Carmichael (Orkney and Shetland) (LD): Like other hon. Members present, I want the most comprehensive and expeditious examination of what went wrong on 3 May. It is vital that Mr. Gould be given every possible assistance in the conduct of his inquiry, which is very important. I wish to expand on the concern that I expressed to the Minister in my intervention. It may be that inspiration has struck him in the meantime. It might save us all time if he were to intervene.
David Cairns: In section 12(1)(b) of the Scotland Act, the word questioning is a technical term. Nobody is actually questioning the outcome of the election itself, so I think that the provision is there for when there is an actual questioning of the election as such, rather than the conduct of the election. The way in which ballot papers can tell us about the conduct of the election is the reason why we used section 12(1)(a) rather than (1)(b). I hope that that clarifies the position.
Mr. Carmichael: I am grateful to the Minister. It certainly clarifies why it would not be appropriate to use the power under section 12(1)(b). It is self-evident that the power under section 12(1)(c) for making orders with provision to the Members of the Parliament otherwise than at an election would also be inappropriate, but he has not does not explained why it is appropriate to use section 12(1)(a), which contains a very limited and express power for orders relating to the conduct of elections for membership of the Parliament. An illustrative list is given in section 12(2). Now, clearly, the illustrative list is said to include various provisions, so it is not exhaustive. I think that any further instances that might come under section 12(1)(a) would need to be of the sort listed in section 12(2). If it assists the Committee, I will read
(a) about the registration of electors,
(b) for disregarding alteration in the register of electors,
(c) about the limitation of the election expenses of candidates and registered political parties,
(d) for the combination of polls at elections for membership of the Parliament with polls at other elections,
(e) for modifying the application of section 7(1) where the poll at an election for the return of a constituency member is abandoned (or notice of it is countermanded), and
(f) for modifying section 8(7) to ensure the allocation of the correct number of seats for the region.
Those are all issues that pertain to the nuts and bolts of the conduct of an election and that is clearly what was envisaged in the order that we are seeking to amend today, namely the Scottish Parliament (Elections etc.) Order 2007. Indeed, if we have regard to rule 70 of that order, which todays order purports to amend, we see that in fact we have orders relating to the production of ballot papers in instances where there has been a specific challenge or where an election court or the like has been convened. That is a very different sort of production from that envisaged by the inquiry, which has been pre-conducted today, which is essentially a political rather than a legal inquiry. We are seeking to establish the reasons why things went as badly wrong as they did; it is not a question of a specific challenge to a specific result in a specific constituency, which would clearly, under section 12(1)(a), be an appropriate exercise for the power under rule 70. I apologise if I am being picky, because I want the inquiry to succeed, but I have to caution the Minister that if I can see this, doubtless others can too. It would cause exceptional damage to the election process and to the inquiry if there were to be a challenge to the order because the Government has chosen to go down the secondary legislation route. My view initially was, and the advice that I was given was, that it would have been appropriate to undertake primary legislationsomething for which we might have got agreement among all parts of the House and could perhaps have put through in the course of a day. The Government instead chose to employ secondary legislation. If choose that route, they have to have a clear power for it. My concern is that the power is not sufficiently clear and the order could be open to challenge. It is not my intention to divide the Committee or to oppose the order. I hope that the Minister will address those points today or, if not today, in some short order hereafter, because this is too important to leave any uncertainty hanging in the air.
Dr. Gavin Strang (Edinburgh, East) (Lab): I am grateful for the opportunity to say a few words on what is a very important issue in Scotland. The reality is that the conduct of the Scottish elections on 3 May was appalling and anyone who supports democracy in Scotland should be deeply concerned about that. That is why, as I think all the speakers so far have indicated, we should all strongly support the inquiry that is under way. Of course, we will need to see what comes out of that and whether that is the end of the process; by that, I mean whether it is satisfactory.
May I remind the Committee how huge the debacle was on 3 May? Across Scotland in the constituency vote, there were 85,643 spoiled ballots and, in the regional vote, 60,454. Compare that with the 2003 constituency vote, which there were 12,306 spoiled ballots. In 1999, there were 7,839. It is a colossal failure by any standard that there should be so many spoiled ballot papers in such an election. Indeed, the average number of spoiled ballot papers per constituency was 1,173. There were 16 constituenciesmore than one in fivewhere the number of spoiled constituency ballots exceeded the majority. Indeed, in seven of the constituencies, the number of spoiled constituency ballots was over 50 per cent. higher than the majority, so let us not be under any illusions as to what a black day it was for those of us who support the principle of proper elections in which we get a result that can be respected by the people and that is a genuine expression of the democratic will of the people of Scotland. My comments have nothing to do with the result, I hasten to add. This is simply about making sure that we have a proper election of which we can all be proud. If anyone has a vested interest in that, I respectfully suggest that it is Members of this Parliament and, of course, Members of the Scottish Parliament and elected councillors.
In the Edinburgh, East and Musselburgh constituency, which is the constituency for the Scottish Parliament that includes most electors from the Edinburgh, East Westminster constituency, which I have had the privilege to represent in the House of Commons for many years, the result of the handling of the election was disastrous. The constituency recorded the highest number of spoiled ballots in the constituency vote in Scotland2,521. I mention in passing that the majority was 1,382. If there ever was a debacle in running elections in the last century, if not longer and certainly in these islands, it was in Scotland on 3 May. One would have to travel far and wide in Europe to find anything like this, and whatever happens, we have to make sure that never again do we have a situation where we have so much confusion in the polling stations.
I am not going to go into details, because this is not the place for that, but we can understand why this all happened. Most people are not like us and do not handle such papers all the time. They are not familiar with them. They have a few minutes in a polling station to decide where to put their cross. We know how much complexity they were confronted on 3 May.
Mr. Carmichael: I agree with everything that the right hon. Gentleman is saying. Does he accept that, if we are to achieve this full understanding, we have to look at the totality of the things that happened on 3 May? Does he share my concern that, on the face of it, the order does not seem to allow the production of council ballot papers?
The Chairman: Order. It would be inappropriate to consider that matter in its entirety at this stage.
Dr. Strang: I have listened to the hon. Gentleman. We will see how the Electoral Commission investigation proceeds in the context of this narrow order. The one thing on which I think we are all agreed is that we have
Stewart Hosie (Dundee, East) (SNP): The hon. Member for Orkney and Shetland referred to the possible requirement for primary legislation rather than using this secondary route. I am sure that the Minister will come up with a satisfactory answer at some point soon.
This is a very narrow, technical order. We certainly welcome it, notwithstanding the result, which was obviously a good one for us. Although not a single outcome would have been changed, we were all disappointed with the conduct of the election in terms of the number of spoilt papers. As I understand it and as the Minister made clear, the order provides only for this investigation, which has been requested by Mr. Gould. It applies only in regard to that Electoral Commission review. As the Minister made clear earlier, no particular elector or votes will be identified by giving the Electoral Commission team access to this information. It is necessary to pick up on some of the points that the right hon. Member for Edinburgh, East made: when this investigation takes place, access to the raw data and the ballot paperselectronic or otherwisemay well lead to flaws with the design being identified and point to a way in which the problems may be resolved. It may point to a failure to provide proper printed instructions, not least in the Lothians and Glasgow, where that was a particular concern.
Stewart Hosie: The Minister says, from a sedentary position, Alex Salmond for First Minister. This investigation may well identify serious flaws with the ballot paper design. One of the flaws was not having a properly, legally registered party name. If the Labour party had wished to use Jack McConnell for First Minister, the result might have been even more overwhelmingly for the Scottish National party.
The investigation and providing access to the raw data, which is what the order is about, may also allow us to identify whether there was a failure to educate the electorate properly in advance or, indeed, whether there was a requirement to provide additional training for the information officers positioned at the polling stations. We very much welcome the provision of access to the data in this manner so that we see whether we can get to the bottom of some of the problems.
May I ask the Minister a serious question or two? There is no end date, as he said earlier. Will he assure us that this measure will not extend the regular remit of the Electoral Commission? Will he also give us an assurance that it will not, in any way, shape or form, extend the power or authority of the Scotland Office, other than in its normal investigation of the conduct or running of elections?
Mr. Bruce George (Walsall, South) (Lab): I am something of an interloper here. I am not sure why I was put on the Committee perhaps it was a punishment or in order to have one compulsory non-Scot, or maybe two. In the
What happened in Scotland was, to me, a humiliation, although I had nothing whatsoever to do with the process. I am always going around countries within the Organisation for Security and Cooperation in Europe, laying into them for failing to meet international standards. Every election we have ever observed, we have produced a pretty critical report and, in some cases, governments have changed; Georgia and Ukraine are two examples of where a crooked electionI do not think this was a crooked electionled to regime change. We do not go around promoting regime change, but if we say that elections failed to meet international standards and if the public then take exception to the way in which the elections were conducted, the consequences can be severe, indeed terminal, for the government who organised them.
We have incredible arrogance and think that our elections were better than anybody elses. They were, but anyone who took the time to look at the history of election fraud in the United Kingdom and in AmericaI have looked at the issue for years and am hardly scratching on the surfacewould know that most of the criticisms were about manipulation and about election fraud. Although election fraud took place, we did not accept itwe were in denial. The belief that all British voters are honest is patently untrue and we have had a number of scandals involving that. Looking at it from a distance, I think that this is an area not of fraud, but of bad administration. We are relatively good at dealing with fraud; we are supposed to be professional in dealing with election administration.
I feel that there has to be an inquiry. As an outsider, I am not convinced that going through the process of primary legislation would accelerate the processquite the reverse. The Electoral Commission is a very proficient organisation. It is undertaking an inquiry and it needs legislative authority, in whichever form, because opening ballot boxes is, to many people, a violation of ones electoral rights. When I tell foreigners that, every time a person fills in a ballot paper, their number is on it, they say, My God, any government, if they had the time, could check the way every person voted. That is a recipe for totalitarianism. I have tried to explain that, far from being a recipe for election abuse, it is meant to protect the rights of voters, because the state has the right, in exceptional circumstances, to look at ballot papers to see whether fraud has taken place. However, in this case, there are other reasons to do so.
I speak as someone who has spent a great deal of time looking at elections. We are now, for the first time under legislation, allowed to act as domestic and international observers at elections. This is all part of the process of guaranteeing that elections are fit for purpose. I am certainly glad that I have been able to listen to these proceedings. I hope that the Electoral Commission comes up with a serious study and makes serious recommendations. I assure the Committee that,
I just hope that we, on the other side of the border, are able to learn the lessons, too. If we are imposing more duties on voters in a more complicated political environment, there has to be a good educational programme to ensure that, when people vote in a more complicated way, they have all the tools necessary to make a choice on which governments depend.
David Cairns: I appreciate the broad welcome that has been given to the measure which allows the Electoral Commission to have access to the ballot papers and the scanned images of ballot papers. Several hon. Members raised more general issues about the events of 3 May and expressed their unhappiness with what happened. It is an unhappiness that I share and everyone shares, and no one has sought to downplay or minimise that.
On the very first possible parliamentary occasion after the elections, my right hon. Friend the then Secretary of State made a statement to Parliament. The issue has been raised at Scottish questions. We have had an Opposition half day on it. The issue has been thoroughly discussed in both Houses. No one is minimising the importance or significance of what happened. That is why we support Mr. Goulds independent inquiry and why we have, as we said we would, co-operated fully with him, as indeed have all the other people who were involved in organising this electionfrom the Scottish Executive to the local authority chief executives and the returning officers, to the Electoral Commission itself. Many organisations, including the Scotland Office, had a role in the organising and running of the elections. They, too, are all co-operating with Mr. Gould.
All of us, collectively, have the desire to find out the factors involved. We have heard some of them: the combination of the polls on the same day, the notion of a single ballot paper, the design of the single ballot paper, the instructions on the single ballot paper, the fact of having a single transferable vote election on the same day as an election with an additional member system. The hon. Member for Dundee, East in his wisdom, entirely discounted the possibility that the way in which certain parties were described on the ballot paper was a factor. He may be right, but I will wait to see what Mr. Gould has to say about that before I opine one way or the other. Clearly, a range of factors was involved in what went wrong on 3 May. Mr. Gould will examine them and make a reportone that, we hope, will indicate what he thinks were the more important and the more minor factors.
Jim Dowd (Lewisham, West) (Lab): I am even more of a token member of this Committee because I do not even have the qualification of having a particular interest in electoral systems.
On the range of issues that my hon. Friend outlined as being possible causes, may I say to him that the ballot paper for the Greater London Authority, Mayor, with a local constituency member plus a list member,
David Cairns: Mr. Martlew, I was not going to get drawn into this matter particularly, but I regret to tell my hon. Friend that the number of spoiled ballot papers in the last year GLA elections was higher than the number of spoiled ballot papers that we have heard about.[Interruption.] In the second vote for the mayor, the number of people who were disfranchised was higher than in this case, which I think is the point that my hon. Friend mentions.
As for the right of my hon. Friend and that of my right hon. Friend the Member for Walsall, South to be here, this measure applies only in Scotland. As this is a United Kingdom Parliament, every Member, whether from England or from Scotland, has a right to speak on and vote on the order. I accept the unity of the Parliament, and hon. Members are very welcome to be with us today.
The hon. Member for Lancaster and Wyre, who, of course, is also very welcome to speak on these issues, raised a point that was also picked up by the hon. Member for Dundee, East. He asked why we had chosen section 6 of the Political Parties, Elections and Referendums Act as opposed to section 5. Following the route of section 5 of giving the power to the Electoral Commission for a specified end period would have achieved exactly the same result: it would have allowed the Electoral Commission to carry out this investigation in exactly the same way as the route we have chosen.
Of course, the Electoral Commission, which, I believe, has advanced this as their preferred model, has only to consider the particular task that it has in hand, whereas the Government have to consider the totality of legislation. A legislative route that means that we could do this again in future, if necessary, without having to have fresh legislation, is one that commends itself to the Government. However, we have put in important safeguards, and I will come on to the point that the hon. Member for Dundee, East mentioned.
These ballot papers have to be destroyed within a finite period in any case, so there would not be access to them once they were destroyed. That is a pretty hard stop. The order itself talks about the papers and records being sealed up and returned to the sheriff clerk at the end of the scrutiny, so it allows for scrutiny and not a repeated going back after the report is commissioned just for another look. The order does not allow for open-ended, uncontrolled access for ever more; it is carefully defined so that the Secretary of State asks the Electoral Commission, as he is entitled to do, to examine certain aspects of the conduct of the election. We are now altering the elections order which allows for that to happen, should the Secretary of State specifically for ask it in connection with an investigation into specific elections. We are not widening the powers of the Scotland Office or the Secretary of State for Scotlandthese are powers that the Secretary of State already enjoys under the terms of the Scotland Act 1998.
Are we altering the powers of the Electoral Commission? To an extent, I think we are. Clearly, at the moment, the Electoral Commission cannot go and look at ballot papers; once the order has been passed, it will be able to do so. We are altering those powers, but we are doing so in the acknowledgement that this is a unique set of circumstances, that there is legitimate public interest, that it seems to everyone who has spokennobody has gainsaid this notionthat the Electoral Commission really does need to look at the ballot papers.
The hon. Member for Orkney and Shetland referred in an intervention to access to the local government ballot papers. In my view, I think the completeness of the report would be enhanced if the Electoral Commission could have access to local government ballot papers. Of course, that is entirely a matter for the Scottish Executive, and I am sure that it is considering how to respond. It is the Scottish Parliaments recess, so it is obviously more constrained than we are.
Mr. Carmichael: My recollection is, Mr. Martlew, that the Gould report was going to be produced by 28 September. The Scottish Parliament recess, I think, will not have even finished at that time. In any event, it seems unlikely that that time scale is going to be met. Is that the Ministers understanding?
David Cairns: I am not sure if the hon. Gentleman misspoke when he said 28 September. I think the Scottish Parliament will be back by 28 September. The indications we have from Mr. Gould are that he is hoping to finish his report by the end of August, by which time the Scottish Parliament will not be back in session. That is quite clearly a factor in having this inquiry in the aftermath of the elections in late spring, leading into a Scottish Parliament recess that is earlier than ours. As I said, that is a matter for the Scottish Parliament. I simply do not know whether there is a non-legislative route by which it can allow this, but it would be inappropriate for me to speculate further on the responsibilities of the Scottish Executive in relation to that issue.
The hon. Member for Orkney and Shetland asked about section 12(1)(a), (b) and (c). He seemed to question the vires of secondary legislation in this regard. Initially, he seemed to suggest that the particular subsection to which we have hooked this measure was questionable. I thought he went on to rule out all the other hooks that we could have used and preferred primary legislation.
I shall allow the hon. Gentleman to intervene for the last time, but my initial point still stands: the order has been to the Joint Committee on Statutory Instruments and to the House of Lords Merits Committee. They would raise questions on issues of vires if there were any doubt at all that the route we have chosen is inappropriate. They have not done so. We believe that this is in order.
Mr. Carmichael: It would have been open by means of an Order in Council for the Secretary of State to make an order by way of secondary legislation. My view, and the advice given to my hon. Friend the Member for East Dunbartonshire by the House of
David Cairns: Very simply, the rules regarding the conduct of an election cover the rules for what is done with ballot papers once they have been filled in. The order is not about allowing the Electoral Commission to examine the design of ballot papers; it is about allowing it access to ballot papers that are currently sealed up. The conduct of the elections and the rules and conduct orders that we put through provide for ballot papers to be sealed up and to be deposited with the sheriff clerk. That is part of the conduct of the running of an election. It does not just stop at 10 oclock or when the announcement is made. We are altering that part of the conduct which is about what you do with the packets of sealed ballot papers, to allow those sealed ballot papers to be opened for a specific purpose. That is why I believewe are quite clear that there is no legal dubiety about thisthat section 12(1)(a) is the correct provision; it deals deal with the conduct of an election and the storage of ballot papers as an integral part of the conduct of an election. It is that part of it that we are, by the order, amending.
My right hon. Friend the Member for Edinburgh, East outlined his concernsas I said, concerns that we have all shared. I was not going to get into this matter, but he did say we would have to go a long way to find an example. That is not actually the case; part of the GLA election had higher spoils. That is no comfort for us and we are not saying that we are not as bad, but I just say that as a matter of fact.
I think I have dealt with the point made by the hon. Member for Dundee, East about controls. There is an end date. The order is about scrutiny for the purposes of this review, which is to conclude, as has been said, in a matter of weeks, so I am confident that we are not leaving something around that will be exploited at a later date in any case.
My right hon. Friend the Member for Walsall, South spoke about his huge experience all around the world in these matters. He is quite right to sayI reiterate thisthat there is no suggestion that we are discussing electoral frauds here or that any one party gained or was disadvantaged disproportionately by the numbers of spoiled ballot papers. Indeed, it is not the Electoral Commissions intent, as I understand it, or the reviews intent to re-count the numbers. They are just interested in what people did with those ballot papers that made them register as spoiled.
All of us want to find that out so that lessons can be learned for the conduct of all the elections, perhaps even for elections in England and the next GLA elections, but also for elections to the Scottish Parliament in four years time, when it is absolutely important that we restore the confidence of the people of Scotland in the integrity of the electoral process. Mr. Goulds review will, I hope, be a big step towards doing that. The order is an integral part in helping him to carry out his review and I commend it to the Committee.
Question put and agreed to.
That the Committee has considered the draft Scottish Parliament (Elections etc.) Order 2007.
Committee rose at eight minutes past Eleven oclock.
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