Examination of Witnesses (Questions 140-159)
DAVID CAIRNS
MP, MR GERALD
MCHUGH
AND MS
SHEILA SCOBIE
13 NOVEMBER 2007
Q140 Mr Wallace: Oh, it is their
fault.
David Cairns: I am simply telling
you the sequence of events. Because the elections are combined
elections, in other words the Scottish Parliament election takes
place on the same day as Scottish local council elections, the
way in which that works is the order for the Scottish local government
elections has to be got through and be passed and receive assent
through the Scottish Parliament before we can make progress publicly
on our order. That is simply the way it has to work. There were
delays in producing the Scottish local government order because
there was a great deal of to-ing and fro-ing about the way in
which the local government ballot paper was going to be designed.
We were patiently waiting for all of that to be resolved before
we could begin our own processes. That is simply a fact. Is there
a way in which we can make all of that shorter? Yes, we should
make all of that shorter. I will point to one of the recommendations
I said at the beginning, that we will not introduce anything new
six months before an election and we will extend the length of
time between close of nominations to polling day. All of that
will mean that the circumstances that happened on 3 May will never
happen again. All of us took too long to produce the draft and
we have to look at ways of collapsing that. Secondly, the final
format of the ballot paper impacted on postal voting, that is
undoubtedly true, and that is addressed by the fact that when
you extend the length of time between polling day and close of
nominations that will give returning officers much more time to
prepare the ballot papers. If you do not have electronic counting
you can revert to manual counting which means you do not need
to have a centralised system for printing and distributing these,
that can be returned to returning officers doing it locally which
was the old tried and tested system. When you accept the decision
to decouple and go back to a manual account, those issues that
arose around postal voting which were as a result of having the
elections on the same day as a result of having electronic counting
disappear. The third thing on ignoring advice, I simply do not
accept that. I would point to one area, and one area alone, where
we did reject the advice, and it is the only example you can come
up with, which was on the issue of the overnight count. The issue
of the overnight count is very clear, there is just simply a difference
of opinion between the returning officers who do not want to do
an overnight count and myself and other politicians we consulted
with, and there was a criticism that we should not have consulted
just with politicians, but the general public as well that we
have a tradition in this county where we begin a count at ten
o'clock when the polls close and we count and make our announcements
in the early hours of the morning and everybody wakes up in the
morning and knows who the new government is going to be. That
is the tradition that we have in this country and it is one that
I approve of. What we have said looking to the future is that
we are open to other voices and other points of view. In none
of this has anybody been able to explain how having an overnight
count was in the partisan interests of the Labour Party or how
having an overnight count changed the ballot papers which were
already in the box. All the spoiled ballot papers had already
been spoiled and if you count them overnight or the next day they
are not going to become unspoiled. That is an example of where
the electoral officers and electoral administrators wanted us
to do one thing and we chose to do another thing, but I think
you would be really hard-pushed to say how that was in the partisan
interests of my party.
Q141 Mr Wallace: There were other
times when advice was put forward about whether you use one or
two ballot boxes in the polling station and advice where the Electoral
Commission said you should take further consultation on the design
of the ballot paper in August 2006 and that advice was not taken
up.
David Cairns: Can I just read
out what the advice was. Let me just read out the advice that
came back to me from Sir Neil McIntosh. Let me tell you what Sir
Neil McIntosh, the Scottish Commissioner, said to me. When he
sent back in August 2006 the Cragg Ross Dawson findings, which
was commissioned by the Electoral Commission to look at what voters
thought of these ballot papers, let me tell you what he said to
me. He is giving me the report, and he said: "The conclusions
point to the interests of the voter being best served by a design
of ballot paper that incorporates both the regional and constituency
ballot papers alongside each other on a single sheet of paper",
which we did, "the voting boxes for each contest being placed
immediately to the right of the parties, not down the middle",
which we did, "the use of two colours on the ballot paper",
which we did, and "alphabetical ordering of political parties
on the regional ballot paper". Here is an interesting point:
his recommendation is that we had what was called corresponding
order, in other words you put the party down one side and then
rather than put the candidates and the constituencies alphabetically
down the other side you align them in corresponding order. Not
here but on a television programme Mr Mundell said that this was
an example of us trying to put the Labour Party's interests first,
but actually it came from that Cragg Ross Dawson thing. I think
you will find that in this communication from the Electoral Commission
to myself we did not reject their advice, that on these great
big issues of having a single ballot paper, having the region
on one side and the constituency on the other side, having two
colours of paper, we took their advice, and we continued to take
their advice all the way through the process and at every stage
in the process. I would ask you to bring forward examples where
we did not take their advice and where this had a material effect
on the problems that were experienced on 3 May, unlike the example
of having an overnight count where I do not actually see how that
materially altered what happened on 3 May to any degree.
Q142 Mr Hamilton: It seems to me
that one of the main problems is that you have been taking advice
from everybody and you have consulted with everybody including
the next-door neighbour and his dog. Has part of the problem not
been that you have been consulting with too many people? The question
I have really got for you is: what do you think would have happened
if you had rejected the advice and the comments that were being
made by all other parties before you came to your conclusion?
David Cairns: If we had rejected
Arbuthnott's commendation to have a single ballot paper; if we
had rejected the findings of the focus group in terms of where
the positioning of the lists was; if we had rejected the recommendations
to have them on coloured ballot papers; if we had rejected the
soundings out that I did with the disability lobbies on what colours
and fonts would have worked; if we had rejected all of that, then
I think we would be bang to rights, but actually at every stage
of the process, beginning with Arbuthnott's commendation all the
way through at every stage, we consult, we go out to consultation,
we talk to people, we seek advice from the Electoral Commission,
from the returning officers, from the political parties and all
the rest of it. There is a valid criticism—and I think it
is a valid criticism—that at some point before we did we
should have pulled stumps and we should gave said "that's
it, this is what we are going to do" although I think we
probably would have been criticised if we had done that as well.
What we are saying is by not introducing any novelty into the
system six months before an election we can deal with some of
these things. For example, two ballot papers would obviously be
a novelty and we would have to make sure that we were getting
all of this detail done much, much earlier. The second point of
course is if you have not got combined papers you do not need
to have this really prolonged process of consultation where the
Scottish Parliament has to do all of its consultation on local
councils and we have to do all our consultation on the back of
that. There is a valid criticism that the process of consultation
took too long, dragged on, was too deliberative in a sense, and
that meant that the actual implementation stage got telescoped.
I think that is a valid criticism and I think we have set out
steps whereby we can ensure that does not happen again.
Mr Hamilton: If you were acting in a
partisan way, do you not think you should resign, after all, you
did not deliver the goods for Labour? That was a joke!
Mr MacNeil: See how badly you would have
done without it!
Q143 Chairman: Do you accept that
slogans on the ballot paper like "Alex Salmond for First
Minister" were misleading and confusing? Do you agree that
Ron Gould is right that it should be the registered party names
which appear on the ballot papers, not slogans like this?
David Cairns: I think Mr Gould
deals with this in some depth where he says that he believes that
the law should be changed to stop phrases like "Alex Salmond
for First Minister" being used. I think that has got to be
a sensible thing. We have put it in the category of things we
will discuss to make sure that we do not inadvertently stop people
who are independents accurately describing themselves. We do not
want to create unintended consequences, but I think it is incumbent
on those who say they accept the whole report—and all the
recommendations, which I understand Mr Salmond does, that means
he therefore accepts the criticism of "Alex Salmond for First
Minister", so it is up to them to reflect on that.
Q144 David Mundell: On that point
we have just heard you, Minister, set out that you do not accept
that you did virtually anything wrong at all, yet on previous
statements you have said you completely accept the report—
David Cairns: No, that is a complete
misrepresentation of what I said. I have said it repeatedly, I
said it a moment ago to Mr Hamilton, I have said it to the Chairman,
I said it to your own colleague Mr Wallace, that we should have
taken decisions more quickly. We allowed the consultation process
to go on too long which meant the implementation phase was very
narrow. I have not said we did nothing wrong; that is a complete
and absolute mischaracterisation of what I said.
Q145 David Mundell: But you accept
the report in full?
David Cairns: No, I do not accept
all the analysis in the report. I do not think some of the analysis
is robust enough to progress the recommendations based upon that
analysis of the report. I said right away at the start of my evidence
that the suggestion of moving from an alphabetical ballot paper
to a randomised one is one that I have not seen any evidence that
the voters would welcome. I am not saying I am agin it but what
I think we need to do with all of these recommendations is to
progress them, so we are progressing all of the recommendations
in the report—
Q146 Mr MacNeil: Given the problems
you have highlighted with the consultation link between the Scottish
Parliament and yourselves, will you therefore accept the sensible
suggestion by Gould that this be transferred to the Scottish Parliament?
You have made the argument for it; I am just wondering if you
would follow that through?
David Cairns: What I said was
when you accept the key recommendation to the Scottish Parliament
to decouple the elections, a lot of the reasoning for that case
simply falls away. The main allegation here—
Q147 Mr MacNeil: So you want to hold
on to the power?
David Cairns: The main allegation
here is that you have a very cluttered landscape, to use the current
buzz word.
Q148 Mr MacNeil: So declutter it
and leave it.
David Cairns: You declutter that
by decoupling the elections, so you do not need a steering group
which involves Scottish Executive officials, Scotland Office officials,
COSLA officials, all those people round the table. You do not
need that if the elections are on the same date. It declutters
it immediately by decluttering the elections. My view, as the
Secretary of State said during the response to his statement,
is that the analysis that Mr Gould puts forward does not support
that recommendation if you decouple the elections. However, what
Mr Gould's actual recommendation was was that exploratory discussions
take place on that, and the Secretary of State has said that he
is more than willing to initiate those discussions, and I have
repeated that today.
Q149 Mr MacNeil: Why do you not think
it should be moved into Scotland? Why should Westminster keep
its locus in this?
David Cairns: Because we have
responsibility for the constitution as set out in the Scotland
Act.
Q150 Mr MacNeil: Can we not move
that responsibility?
David Cairns: Mr MacNeil, you
are beginning from a place where you think that Westminster should
not have any responsibility for anything at all that happens in
Scotland.
Q151 Mr MacNeil: Correct, absolutely.
David Cairns: So let us be clear
where you are coming from. I am coming from the position of two-thirds
of the people of Scotland at the very least and I still believe
in the United Kingdom and I still believe that this Parliament
has significant legislative authority for things that happen in
Scotland. I believe that the constitution is part of that. I believe
that the current arrangements, which are cluttered when you have
joint elections, become decluttered and much clearer and much
simpler and much less prone to error when you have the elections
on separate days.
Q152 Mr MacNeil: But you yourself
have shown with the mish-mash of consultation that surely logically
the argument is made that it should be for Scotland?
David Cairns: I am not convinced
by the logic of your argument.
Q153 Mr Davidson: I think it is only
fair to say that a man who wants a new Scottish alphabet, as was
indicated in a previous hearing, is hardly in a position to argue
against clutter! I think this is very helpful because it confirms
my view that Scotland Office ministers have been listening to
the wrong people for quite some considerable time on these matters!
Is there not a danger if the entire Scottish political and bureaucratic
establishment is at fault then effectively nobody is at fault
and that many of us will find some difficulty, in a sense, with
that? I have some sympathy for the difficulties arising from mass
and involved consultation and I understand the problems from the
delay that was caused by trying to get everybody on board, but
at the end of the day that muddle resulted in a position where
nobody is accountable for anything and that that does actually
cause some difficulties in that we must overcome that for the
future by having a clear chain of responsibility, and if that
is a political chain then ministers at some level have got to
take political responsibility for these things, and if there are
accusations that they are doing it in a partisan fashion, we have
just got to take that on the chin rather than this constant search
for consensus which results in the enormous muddle that we have
seen happening.
David Cairns: I agree with all
of that. We have said where we have clearly got responsibility
we accept that and we have apologised for that. It was Mr Gould
who said "all other stakeholders put their interests ...
" it was not me, and again you will have to ask him what
was in his mind when he wrote that. It was he in his letter when
he said "all the other political parties". I have apologised
for our role in this. The Secretary of State for Scotland has
apologised for our role in this. The previous Secretary of State
for Scotland has apologised. I have not heard any apologies coming
from any other quarters from anybody on that. It is up to them
to decide how they wish to respond to Mr Gould but they quite
clearly have no intention of apologising for that. We have accepted
our responsibility and taken it on the chin. In terms of where
we go from here, there is another significant recommendation in
here which is certainly worthy of consideration and that is of
having a chief returning officer, which is a central recommendation
from Mr Gould, so within the administration you would have that
very clear line of command. At the moment you have returning officers
across Scotland who are in a slightly unusual position which is
that they are local council employees but they are operating legislation
that actually initiates in Westminster. They are unlike the rest
of local councils where the social work department has got the
Social Work Inspectorate, you have got HMI, you have got the Audit
Commission, and all the rest of it. There are no current performance
standards and there is no body which holds these to account for
their variation in performance. I think all of us would like to
see returning officers across Scotland supported in that way.
There is a document which has just gone out on developing performance
indicators for elections and referenda from the Electoral Commission.
I think you are right to say that we need clearer lines of accountability
in how these elections are administered. Politically speaking
of course those lines of accountability become much clearer when
you decouple the elections.
Q154 Mr Davidson: Could I ask a couple
of points following on from that. You mentioned the Electoral
Commission there. Is there not a difficulty about the fact that
the Electoral Commission has been established with no knowledge
of elections, on the basis that none of them has ever stood for
election, none of them has ever been a candidate, none of them
has been an agent, and indeed they pride themselves on that. It
is a classic position of armchair generals. It is a bit like being
lectured on sex by virgins. They have no experience of—
David Cairns: I do not know if
you have anybody particularly in mind!
Mr Davidson: I will leave you to try
and get that image out of your head and because they have no experience,
they come to innocent, naive and well-meaning conclusions which
are exceedingly impractical. Ought the Electoral Commission itself
to be reformed in some way to allow a degree of inside knowledge
from previous either election agents or candidates not to dominate
but to inform their discussions?
Q155 Mr Devine: Can I just add to
that. We have had the Chief Executive telling us half an hour
ago that we could challenge any papers on an e-count system and
we had to explain to him how could we challenge a paper that we
do not get a chance to see, and it was clearly news to him.
David Cairns: There was a dilemma
at the time that the Electoral Commission was set up. You are
trying to establish a body which is free from undue political
influence in the administering of elections, for the reasons which
I have set out earlier—politicians do not administer elections
in this country—and therefore hardwired into its DNA is
this distance from the nitty-gritty of the political process.
They have set up their own political panel with representatives
from the political parties, including I think in Scotland the
Chief Executive of the SNP, Labour Party officials and Conservative
Party officials, in order that they may take direct political
soundings. Whether that is an adequate way of informing them on
politics is something they will need to reflect upon as part of
their reflection on this process. There is this tension about
to what degree should politicians be involved in this. If you
read the Gould report, Mr Gould takes a very clear point of view
that he thinks that the role of politicians should diminish in
this process and that the role of politicians is essentially to
legislate recommendations from the chief returning officer, rather
like Law Society reports that we simply take and put through.
I think that is a discussion we would all have to have in the
context of the recommendation of a chief returning officer because
there is a debate about to what extent should politicians be running
these things and to what extent should politicians be distanced
from these things.
Q156 Mr Davidson: The same goes for
a debate about whether people who are accountable and elected
should be responsible for anything because the fact that Mr Gould
had to write a letter clarifying what he said in the first place
(because I think we were told earlier on that he had not expected
it to be interpreted it the way that it was) displays a touching
naivete which is perhaps not entirely appropriate in these circumstances
and perhaps there needs to be someone who is involved, or a number
of people who are involved, in the hurly-burly. Could I particularly
pick up the question that Jim alluded to about what is to be done
next because as part of the exchange with the Electoral Commission
we were explaining that many of the ballots which were ruled out
were then never examined by a human being and the electoral officers
refused to let candidates or their agents see them. This was news
to the Electoral Commission and, as far as I could clarify, they
have no plans to examine whether or not those ballots were correctly
ruled out. I am not seeking to re-open the election but I can
see that there would be a case for the Electoral Commission going
back either itself or commissioning research, or if not them then
somebody else, clarifying whether or not mistakes were made by
the machines in ruling out so many of the papers. I have been
in previous elections where people have done big crosses across
the whole paper and there is an argument about whether that is
saying no to you all or is it the centre point of the cross that
counts. It seems to me that these are not subjects that ought
to be determined by machine. Is that not something that ought
still to be pursued either by yourselves at the Scotland Office,
by the Scottish Executive or by the Electoral Commission to clarify
exactly whether the scale of papers being ruled out was genuinely
the fault of electors who made mistakes or whether it was the
fault of the machines who made mistakes?
David Cairns: Let me say two things
about that. Firstly, I am advised by Sheila that the Electoral
Commission were represented on the E-Counting User Group, who
were the people who drew the specifications which included DRS,
the company, so I am unclear as to why the Electoral Commission
believe that they did not know about what is called auto adjudication,
but, as I said, I did not hear the evidence so I will just have
to move on from that. Auto adjudication, which in the aftermath
of the election was the subject of intense speculation, was overwhelmingly—and
I think Mr Gould's analysis of the ballot papers he has looked
at would support this—where there was nothing to adjudicate;
it was where people left one half of the ballot paper completely
blank. The single most prevalent feature of the spoiled ballot
papers is where people left the constituency side completely blank.
In the instance that you are talking about where somebody put
a big x over it, that should have not been auto adjudicated; that
would have gone out to adjudication on the screen. It is my understanding
that these adjudications took place on the screen as they would
have taken place in the normal way. So it is not that every disputed
ballot paper was auto adjudicated; it was that it was simply a
blank piece of paper, or a blank half of a piece of paper, if
you get my drift, and that even a manual examination of all that
would not actually tell you anything because there was nothing
to adjudicate. That was where auto adjudication was overwhelmingly
used.
Q157 Mr Davidson: There might have
been something written on one side of the paper which made it
clear what the elector's intention was for both sides of the paper.
If they had said "all Labour" it would have been clear
what they wanted to vote on the other side or at least it would
have been the subject of debate.
David Cairns: That would not have
been auto adjudicated, that would have shown up on the screen.
Q158 Mr Davidson: In Glasgow there
was a whole chunk of papers ruled out, as we understand it, that
we were not allowed to see. Those ought at some stage to be examined
and it seems to me that the Scotland Office, the Scottish Executive
or the local authority has to examine it. We need to have satisfaction.
David Cairns: They have been examined.
They were examined by Mr Gould. He went round and looked at the
ballot papers, and we changed the law so that he could do it.
He has looked at the ballot papers and he has come to the conclusion
that the single most prevalent feature was where papers were being
left blank, and that was what was being auto adjudicated. Anything
that had writing or crosses that were a wee bit outside the box
and all the rest of it should have been thrown up for a visual
adjudication on a computer screen and that did happen in counts.
The reason why there were all these issues of auto adjudication
is because there were all these people who left the paper blank.
There is speculation as to why people left the constituency side
blank—did they make a mistake because they were confused
by having two votes or did they knowingly leave it blank because
the party that they would have voted for (the Scottish Socialist
Party or the Greens) were not standing in a constituency. It is
difficult to get inside the heads of voters to know why they left
that blank, but overwhelmingly that was the substance of the papers
that were auto adjudicated. Just to be absolutely clear, we did
not insist on auto adjudication. Auto adjudication came out of
this E-Counting User Group. The auto adjudication provision was
in the user agreement that every single returning officer signed,
so every single returning officer knew or should have known that
auto adjudication was going to be used in these circumstances
that I have outlined so it should not have come as a surprise
to the administrators at all.
Q159 Mr Devine: We lost the council
seat by one vote, the consequence of which was we lost the council.
We asked for a recount and we were told that we could not get
that.
David Cairns: I know that there
had been concerns and Ms Clark has expressed her own concerns
about the difference between the lack of a recount in Ayrshire
and the existence of a recount in Aberdeen. Some of the thinking
behind the idea of a chief returning officer might be that the
chief returning officer in a sense could make some of these calls.
Again, it comes back to the point I was making earlier, it is
an important and fundamental principle of our democracy that politicians
do not administer these elections, and we have all had that experience
of saying surely this is a vote or surely we should have a recount
and that it is the returning officers who make these calls, they
have to take these decisions.
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