Examination of Witnesses (Questions 60-79)
MR SAM
YOUNGER, MR
PETER WARDLE,
MR ANDREW
SCALLAN AND
MR ANDY
O'NEIL
13 NOVEMBER 2007
Q60 Mr Wallace: I understand that
the final say is the Scotland Office and Scottish Executive when
it comes to the drafting of legislation. I think what Ron Gould's
report clearly says is that the Scotland Office and Scottish Executive,
but predominantly the Scotland Office, ignored advice from the
practitioners of electoral process. That comes out in SOLAR, the
Scottish Local Authority evidence, your own evidence and the Scottish
Executive. What I am trying to find out is the one body it had
to find advice from, the Sub-Group on Legislation, was not listened
to, did not seem to be listened to and was not shown the final
draft. I am amazed the Scotland Office, not being an expert in
elections but the experts it set up to advise, no statutory role,
were effectively throughout the process were ignored on a number
of occasions. It will be interesting to see how many of the comments
that you gave on the 29 pages were actually listened to, because
you are the experts along with some of the other groups. That
is why I am trying to find out whether the sub-group saw the final
draft before the Scotland Office made a decision go ahead and
publish?
Mr O'Neil: There certainly was
not a meeting of the sub-group. My understanding is a lot of the
comments in our 29 pages were taken up by the Scotland Office.
The Scotland Office may have circulated a draft of the order subsequent
with changes in it to the membership of the group, but there was
not a meeting of that group.
Q61 David Mundell: In terms of your
role I want to ask two specific things where the impression I
am left with is that you stood by whilst things which were likely
predictably to cause difficulties went ahead. One is in relation
to the letter which you wrote in August 2006 saying that more
research was required into the completion of ballot papers by
members of the public. Let us be clear, that was only completion
of one of the ballot papers. Nobody was ever asked to complete
the two ballot papers and see what effect that would have. Is
it not the case, simply writing to the Minister and saying you
thought further research was required after only 100 people had
been tested was not enough? Should you not have been beating the
drum that there was an inadequate level of research: because for
us as parliamentarians, for the political parties who apparently
are all responsible for this, they were never aware of that situation.
Was it not incumbent on you, the Electoral Commission, to be taking
forward that issue and particularly, as we subsequently saw, in
relation to people who were perhaps in socially disadvantaged
areas who experience particular difficulties? Would you not have
been doing more to get that issue addressed?
Mr Younger: I think it is fair
to say that is the main criticism of the Commission that Mr Gould
makes, and it is a criticism that we accept. I think we should
have, with hindsight, made more of that both in terms of the extent
of the research, and in terms of signalling the potential difficulties
of the 4%. I think it is one of those occasions, when I look at
the extent of research we do with the public in terms of framing
our voter awareness campaigns, where the strong lesson for us
is we need to be focused in that way on this issue as well. The
only difference being of course that at the end of the day those
are not issues on which we have our own responsibility, if you
like. In the end we are providing some research, but I take the
point entirely.
Q62 David Mundell: You did not take
it during the election process, because a second event occurred
which was the changing of the Glasgow and Lothian ballot paper,
which to me is fundamentally unacceptable in the electoral process,
that some electors in Scotland received a different form of ballot
paper than others. That is such a fundamental change and yet,
again, you did not seem to take the level of action required to
deal with that. In fact many people involved in the political
process were not even aware that that had happened until after
the votes were cast. Was it not again your role to be highlighting
something so fundamentally at odds with the principles of elections
in this country which had taken place, and to have something done
about it?
Mr Wardle: I think the fact here
is that what Ron Gould is saying, and that is what is behind his
suggestion that one consideration should be a chief returning
officer for Scotland, is that there was no body, including the
Electoral Commission, with a clear and accepted role to oversee
what was going on. I think it is perfectly fair to say that with
hindsight, and if you read the Gould report, a lot of people did
not know that decision had been taken; it was a decision for the
local returning officer. I think it is fair to say the Electoral
Commission was not aware immediately that had changed, because
one of the things we could have done and found ourselves in some
difficulty was to see whether we could change some of our advertising
in those areas to explain now that the decision had been taken
by the returning officer to see if we could catch up with that.
In the end the only thing that it was possible to do was to change
the briefing for the people in the polling station on the day
to try to help voters. What Gould is saying is actually when you
have an election like in Scotland, a complex election involving
a lot of different aspects, he is questioning fundamentally the
way we run elections across the UK, in Scotland, which leaves
those sorts of decisions to local returning officers. The returning
officer in those areas was faced with a problem: a logistical
problem which was a mixture of how much space he had on the ballot
paper; the flexibility or otherwise of the e-counting process;
and the need to try to explain to voters. In the circumstances
he took a decision. Had the Electoral Commission intervened the
returning officer would have said, "Thank you very much,
I hear what you say", but he might have said, "I stick
with my decision", because that is the way election decisions
are taken.
Q63 David Mundell: At least there
would have been a wider awareness that this was about to happen?
Mr Wardle: I think that is a fair
point. I think one of the lessons we take from this whole experience
is that the Commission should perhaps redouble its efforts to
be carrying out a watching brief on what is going on in all these
various decision-taking processes and to be working harder to
find out when we think there is a problem. I think the bigger
issue moving forward to deal with that sort of problem is to have
a debate about how election decision-making is coordinated. Scotland
was a very good example of where you had some decisions taken
on a nationwide basis, and other decisions which were left to
local returning officers. The Commission—has a role a bit
like a constitutional monarch—advising and warning but actually
having no powers to change things. While I accept that we may
not have advised and warned to the extent we should have done,
and we would certainly want to redouble our efforts to do that
in future, there is another issue which is the basic structure
of decision-taking, accountability and coordination which really
needs to be addressed for the future.
Q64 Mr MacNeil: Regardless of the
differences in Glasgow and Lothian, there is a general problem
with two votes on the one ballot paper; and maybe even calling
one vote a first vote and a second vote was a problem; and certainly
the unfortunate accident of putting the longer list in the first
column made it look at times that the second column was a continuation
of the first column and added to the confusion. I would like to
point out that on 7 March 2007 the SNP warned that at first glance
the statement on the example ballot papers "You have two
votes" could be misleading. Further in a submission to the
Arbuthnott report about the two systems on the same day, the SNP
said having two different voting systems of elections on the same
day leaves the door open to confusion. Interestingly, despite
partisan warnings of STV, this was not actually as big a problem
for first time voters as having the list vote and the constituency
vote on the same paper. I hope that would not happen again. I
have heard mention of a lottery. I would just like to point out
I think the alphabet is in fact some form of lottery itself. Perhaps
better than having a lottery we should instead have a system where
the ballot papers were randomly ordered as opposed to having an
election set where you had the same order, whether it be in alphabetical
order or an order that was drawn by lottery (and as I say the
alphabet is like a sort of lottery). Secondly, you would also
have a problem with electronic counting, should it happen again.
Finally, the party descriptions, say the likes of "Jack McConnell
for First Minister" would have been welcomed by the SNP;
as would "Wendy Alexander for First Minister" in future
be very warmly welcomed by the SNP.
Mr Wardle: I note your last point.
On the second point about e-counting, the Commission I think will
make a clear statement when we respond. Gould has identified a
whole range of problems with e-counting and a number of things
which need to be put in place if e-counting can be conducted safely
in future. I think I can very safely say that the Commission,
picking up Mr Mundell's point earlier, will want to make very
clear the conditions that we regard as necessary for e-counting
to be deployed in Scotland in an election like this; and we will
be looking to see that those conditions are satisfied before any
decision to do that. Those conditions include a more strategic
approach; better coordination; better checking on suppliers; and
crucially looking at the legislation for e-counting. One of the
difficulties which Gould identifies is the fact that actually
the way that legislation works is that we take the old, in some
cases, Victorian legislation for counting pieces of paper and
try effectively to take out the person counting bits of paper
and insert a computer; and that just is not good enough. I think
it behoves all of us to do some really careful work on what the
right legislative framework should be to give the public confidence
and the candidates and parties confidence that the e-counting
process can sensibly and safely be deployed in future without
the sort of glitches and hiccoughs that we had this time round.
On the lottery again, as I think I said in response to the earlier
question, there were a range of solutions to the issue that Ron
Gould has identified; and I think the approach we will want to
take is to look at the range of options rather than getting too
fixated simply on the random lottery.
Q65 Mr Walker: In the immediate aftermath
of the problems, this train crash that happened, would you have
been surprised if the Secretary of State had resigned because
he felt his position had become untenable? If he had done, would
you have felt some sort of degree of responsibility for having
put him in that position?
Mr Younger: I do not think it
is for us to say what secretaries of state should or should not
do.
Q66 Mr Walker: I did not ask that.
I said would you have been surprised. I did not ask you whether
he should have resigned or not. I said would you have been surprised,
given the scale of this problem, if he had resigned?
Mr Younger: No, I do not think
it is appropriate for me to comment on that. From our point of
view, whatever happened we have some areas in which we take some
of the responsibility. That we take on board and we will take
it on board for the future.
Q67 Mr Walker: I just struggle at
the moment with the Electoral Commission because most of us grew
up at a time when we were pretty proud of our electoral system
in this country. It was the benchmark held up around the world
as to the way things should be done in a democracy. Before we
had this disaster—and it was a disaster in Scotland; it
was humiliating, to be perfectly honest, I do not think there
is any other way of putting it; it was totally humiliating—we
have had electoral disasters across the country, particularly
with postal votes, proxy ballots. Are you not just distraught
at what has happened over the past eight to ten years to our electoral
system? If you are not distraught, why not?
Mr Younger: There are a lot of
issues. If you take postal voting, which was brought in in 2000,
postal voting on demand just before the Commission was created,
it has been an area we have done an awful lot of work on; we have
made some very clear recommendations which we continue to press—not
all of which have been taken up by government; some of which have
in order to improve the system, and improve confidence; and some
of that has happened in 2006. We are an organisation that can
provide advice and guidance but we do not run elections. What
we are not prepared to do is, as it were, take the accountability
for elections in which we have not the responsibility; and that
is where I think this issue of what the future organisation of
elections comes in. That is the critical question I very much
take on board from what Ron Gould mentions in his report; and
it is something that has been in our minds—this need for
a greater clarity. This is an ambivalence and I think it is important
to clarify.
Chairman: Can I ask a non-political question
here. The Electoral Commission accept a degree of responsibility,
and the Government accepts some degree of responsibility that
mistakes were made; but with other political parties, even the
ones which were in the coalition government in the Scottish Executive,
and the Conservative Party who were widely consulted on this issue,
do you not think it is right that everyone learns lessons from
the mistakes and moves on, rather than in a blaming game?
Q68 Mr Davidson: Surely it is important
to place the blame firmly at the door of the junior coalition
partner as they are not here! Could I just seek clarification—nobody
in the Electoral Commission thought of resigning at any stage,
is that correct?
Mr Wardle: That is correct.
Q69 Mr Davidson: Comparing yourselves
to a constitutional monarch is an interesting one. Extravagance
and purely decorative would be the parallel I would draw there.
Do you not cost a great deal of money for very little result?
Mr Younger: I would not agree
with that at all. I think we cost a modest amount of money for
a significant result.
Q70 Mr Davidson: How much do you
cost altogether?
Mr Younger: £24 million a
year.
Mr Davidson: Goodness me!
Q71 Mr Wallace: Could I bring it
back to the report and the conduct of the elections etc. Under
the title "An air of uncertainty", which is in Ron Gould's
report, page 29, it refers to the fact that the Electoral Commission
started issuing guidance in March 2007; and that this late stage
of the guidance being issued, while some of the returning officers
had made an attempt to anticipate it, contributed to the failure
of a uniform, successful electoral operation. The reason given
in the report, and by similar evidence submitted to Ron Gould,
is that the lateness in the publication of the orders from the
Scotland Office was one of the main contributing factors to everybody
else being slower down the chain. Would you agree with that? If
you had had those orders much earlier that you could have avoided
some of the confusion that happened?
Mr Wardle: Yes.
Mr Younger: I agree with that.
Also I think it is something that is not unique to these elections
in Scotland—late legislation; it is something there has
always been concern about. Clearly some of these things would
be a good deal easier to resolve sensibly if you did have a longer
lead-time. I think Ron Gould's suggestion of trying to move to
a situation where you do not have implemented legislation that
is made less than six months before an election is a very sensible
one.
Mr Wardle: The point makes itself.
If you look back at the Scottish elections, in 1999 there were
real problems for very similar reasons to 2007. In response to
that in 2003 people got their act together; the legislation was
there in good time and the elections ran pretty smoothly; and
in 2007 we were back to late legislation and problems. I think
it is absolutely clear to almost anyone you speak to in the electoral
community that late legislation always brings major risks.
Q72 Mr Wallace: The difference between
2003 and 2007 was that in 2003 the Scotland Office and Scottish
Executive engaged with the sub-groups (sorry to bring you back
to the boredom of the advisers in the process) and sent lawyers
or solicitors to them to ensure that the advice in those sub-groups
was carried forward without delay and there was a proper airing
of those views. Do you therefore agree with the evidence of SOLAR
in its submission to Ron Gould in paragraph 1b that in common
with other practitioner representatives on the group SOLAR represents
the express concern about the lack of meetings and the lack of
legal representation from the Scotland Office and the Scottish
Executive at these meetings, which contrasts markedly to 2003?
They then go on to say that their greatest concern was all the
representation in relation to the sub-group, that its work was
undermined by late policy decisions taken by ministers on issues
such as ballot paper design, timing of count, number of ballot
boxes, signing or not by the voter, and issues. Do you agree with
that?
Mr Wardle: I think if you read
Ron Gould's report he clearly has identified exactly those issues
as being contributors to the problems that were experienced.
Q73 Mr Wallace: So delay and an undermining
of the work of that sub-group you would agree with?
Mr Wardle: I think that is right.
Ron Gould identifies a range of real problems to do with accountability;
to do with simpler earlier legislation; to do with genuine and
effective consultation; transparent decision-making; proper planning
and control; better research and contesting; and better coordination.
Those are all absolutely the issues that we need to address. Whichever
structure we adopt for the future those structures need to deliver
improvements in all of those areas.
Q74 Mr Wallace: As far as the delay
in the legislation and the orders, that responsibility is the
Scotland Office's.
Mr Wardle: I think if you read
the Ron Gould report—
Q75 Mr Wallace: What have you read
from the Ron Gould report?
Mr Wardle: The Scotland Office
was responsible for the legislation and the timing of the legislation.
Q76 Mr Hamilton: Would it not also
be the case that from 2003-07 there was one other major change
and that was we changed the local government election system to
STV and did that not contribute to major confusion?
Mr Wardle: It certainly did.
Q77 Mr Devine: Since Angus MacNeil
has asked the rest of the questions that we had all agreed beforehand
we would share out, I want to come back to the bit on the Electoral
Commission's view on e-counting. I get the feeling that you were
supportive of e-counting, is that the case?
Mr Wardle: I think of all the
e-innovations that could be introduced into elections, and the
other main one is e-voting which Ron Gould sets his face firmly
against for the time being, and we would agree with that, we think
e-voting is not a mature technology yet and does not command sufficient
confidence to be deployed. E-counting is a technology which has
clearly worked well around the world, it is not an immature technology.
It raises a range of very important challenges. The question is
whether in the UK the electoral administration system is set up
yet sufficiently maturely to be able to deliver successful e-counting.
If you read the Ron Gould report, he identifies a range of difficulties
which can be overcome. They are not impossible but they need a
good deal more application if we are going to carry on doing it
safely. As I say, what we should do is set out the list of criteria
which must be met before e-counting is used again in Scotland.
Q78 Mr Devine: Can I ask you, and
I do not mean this in a cheeky way, Ben Wallace has described
you as the experts, but is it the case that you have got to be
five years away from a political party or political activity before
you can be on the Electoral Commission? Can I ask, has anybody
who sits on the Electoral Commission dealt with the nitty-gritty
of an election campaign? Has anybody ever been a candidate? Has
anybody ever been an election agent, for example, who sits on
the Electoral Commission?
Mr Younger: I think it is not
five years, it is ten years. The legislation that set up the Commission—
Q79 Mr Devine: That is daft then,
is it not?
Mr Younger: Yes. The legislation
that set up the Commission required that neither Commission staff
nor Commissioners could be people who had had any specific connection
with a party—they could have been an ordinary member but
not an agent, an office holder, a candidate, a Member of Parliament—for
ten years. We think that has been excessive and I know there are
moves to make a change. In terms of people who have been involved
in election campaigns, of course we have people who have been
involved in other areas. Two of our six Commissioners over the
past five or six years have been experienced returning officers.
I take that point, but that is what the legislation requires.
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