House of Commons - Scottish Affairs

Select Committee on Scottish Affairs Fifth Report

3 Role of the Scotland Office

13. The Gould Report's main criticism of the Scotland Office relates to disruptive legislative delays and a failure to plan properly. In particular, the Scotland Office was responsible for drafting and laying before the UK Parliament the legislative instrument governing the arrangements for the elections and the format of the ballot paper. The draft Order was sent to a legislative sub-group for consultation in August 2006. Final comments were made by the Electoral Commission on 19 December 2006.[13] The Order was approved at Westminster in March 2007, less than two months before the elections took place. Final decisions regarding the organisational arrangements for the ballot could only be taken after this order had been approved.

14. The Gould report concludes that "At worst, the Ministers disregarded the highly negative and disruptive influence on the elections caused by their delays in arriving at key decisions. At best, they either overlooked or were poorly advised with regard to the serious operational consequences that could and did result".[14] In oral evidence, Mr Gould described an extensive consultation process that focused on the question of political advantage (i.e. whether any one party would be particularly advantaged or disadvantaged by the process), rather than the voter's experience of the ballot. Further delays were caused due to the combination of two elections on the same day. Final arrangements could not be made until decisions had been reached regarding both ballots, so the Scotland Office had to wait for the Scottish Executive to complete its consultation process on the arrangements for the local government elections, and for the Scottish Parliament's approval of those arrangements.

15. The lateness with which key decisions were made was identified by most of our witnesses as a key failing in the preparations for the 3 May elections. Peter Wardle, Chief Executive of the Electoral Commission said:

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.[15]

The time pressure that resulted from this delay meant that later decisions regarding the running of the elections were rushed. There was little time for proper scrutiny and contingency plans were weak.[16] It is to be noted that the date of the Scottish Parliament elections, unlike those to Westminster, can reliably be predicted in advance. In the light of this, the lengthy delays that preceded the election seem even less excusable.

16. In oral evidence, David Cairns MP, Minister of State at the Scotland Office, admitted that Ministers bore responsibility for the legislative delays leading up to 3 May,[17] but denied that decisions had been based on party political interests.[18] He described the consultation that had taken place with the Electoral Commission and others, saying:

If we had rejected Arbuthnott's recommendation 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 recommendation 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 have 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.[19]

17. It is clear to us that there were significant delays in Ministerial decision making in the run up to the 2007 Scottish Parliament elections. It may be that these delays were the result of a desire to allow the consultation process to run its full course. Nevertheless, Ministers in the Scotland Office must realise that excessive delays will have serious consequences for the smooth running of an election. It is highly likely that many of the problems of 3 May 2007 would not have arisen had the legislation been put in place sooner, allowing for proper testing and contingency planning of the practical aspects of election organisation.

The Elections Steering Group

18. Our evidence has traced the lack of co-ordination in the decision making process to the operation of the Elections Steering Group. This group, based on a model that had been successful for previous elections, was intended to assemble the different stakeholders in the elections process to carry out consultation. It brought together Scotland Office and Scottish Executive officials with representatives of the political parties and returning officers. For the previous elections in 2003, the Steering Group had been chaired and supported by the Scotland Office. We were told by the Scotland Office that in 2007 this responsibility moved to the Scottish Executive.[20] The change was made in response to the introduction of STV for the local government elections, which was considered the bigger challenge. The Scotland Office informed us that the first meeting of the main Steering Group was on 23 February 2005 and that it met regularly four to five times a year thereafter.[21]

19. The terms of reference of the Elections Steering Group, agreed at its first meeting, were:

To consider and examine the legislative and administrative aspects of the Scottish Parliament and Scottish Local Government Elections to be conducted in May 2007; To identify and agree, with regard to the respective statutory roles of the Scotland Office, Scottish Executive, the Electoral Commission, Returning Officers, Electoral Registration Officers and Local Authorities, the tasks required to be completed to enable these elections; To oversee the management and completion of these tasks by delegating the implementation of specific tasks to sub-groups and by providing technical advice and executive decisions as necessary.[22]

20. In addition to the main Steering Group, six sub-groups were established, on legislation, voter awareness, training, forms and electoral good practice (including e-counting) and election expenses.[23] The operation of the main Elections Steering Group and its interaction with the sub-groups is described by the Scotland Office as follows:

The Group received updates from each of the sub-groups, where appropriate, at every meeting. Actions flowing from the Steering Group discussions were allocated to specific organisations or the sub-groups to take forward and those decisions were recorded in the minutes of the meetings. Thereafter it was the responsibility of the individual organisations or sub-groups to take forward the necessary work and report back to the Steering Group on progress as appropriate. The minutes of the Steering Group were made available on the Scottish Executive website.[24]

21. Our evidence suggests that this structure was too fragmented and did not provide a clear decision-making framework. We have heard that the sub-groups did not meet often[25] and that the main Elections Steering Group was not empowered to take formal decisions. Michael Boda found this to be a significant cause of delay:

…what we had found in the context of the steering group is, going back to the institutional arrangement there, that there was no arrangement to make decisions in that context, it was very consultative and so it was very difficult for us to understand how decisions were being made in the context of that steering group […] the fundamental issue that we have talked about in the report […] is that it is not clear as to how the steering group exactly should work, and that we are calling for greater clarification in that regard.[26]

22. The Electoral Commission agreed that there was no clear route from recommendations of the group to the relevant Minister. In oral evidence, Peter Wardle, Chief Executive of the Commission, told us about the work of the legislation sub-group, which included representatives of the Electoral Commission. The group was chaired alternately by the Scottish Executive and the Scotland Office and was tasked with reviewing the draft Scottish Parliament (Elections etc) Order 2007.[27] The group commented on successive drafts of the Order, however, it was not shown the final drafts of the Order before it was introduced into Parliament.[28] Mr Wardle said "The Elections Steering Group had no formal role; it was a co-ordinating group set up to try to make co-ordination better at elections where you had the Scotland Office and the then Scottish Executive both involved, you had lots of other players".[29] He added, "I think it is important to be clear the Legislation Sub-Group did not have a formal role in deciding what should or should not be in the legislation; that role was for the Scotland Office".[30]

23. The lack of a clear decision-making structure for the Elections Steering Group was a key failure of the preparations for the 2007 elections to the Scottish Parliament. The benefits of consultation had been demonstrated by the experience of previous elections. Nevertheless, the desire to take account of as many views as possible should not prevent structures being established to draw the consultation process to a timely conclusion.

Future responsibility for elections to the Scottish Parliament

24. In order to reduce some of the complexity of the consultation process, the Gould Report recommended transferring responsibility for Scottish Parliament elections to the Scottish Executive, so that the organisation of both Scottish Parliament and local government elections rests with a single body. In oral evidence, however, Mr Gould said that this was not an absolute requirement, but was contingent on any other changes that might be implemented (chiefly, the establishment of a Chief Returning Officer which might also provide a single point of accountability). Mr Gould said "the management of the election most effectively can be done by an individual or a small office that has the managerial responsibility related to the returning officers in Scotland".[31] The Minister also suggested that the implementation of other changes might affect the recommendation to transfer responsibility to the Scottish Executive: "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".[32]

25. Another option would be to transfer responsibility for running the elections to the Scottish Executive whilst retaining legislative powers at Westminster. Mr Gould agreed that the two aspects of electoral procedure did not need to be vested in the same body:

…you cannot really effectively manage the Scottish elections from Wales or from London or from wherever, it has to be managed from Scotland, so it is a management process here. Where you are looking at the legislative process the legislative process is a matter of jurisdictional negotiation and if the legislation remains in Westminster for the parliamentary elections that is fine.[33]

26. We do not consider that overall responsibility for elections to the Scottish Parliament should be transferred to the Scottish Executive. This is not necessary in order for elections to proceed smoothly in future. However, there may be a case for organisational changes 'on the ground' in Scotland, including reformed structures of accountability. In this context, the proposal to establish a Chief Returning Officer for Scotland as a single point of accountability deserves further consideration.

13 Ev 44 Back

14 Independent review of the Scottish Parliamentary and local government elections 3 May 2007, 23 October 2007, p.30. Back

15 Q 71 Back

16 Q 202 Back

17 Q 139 Back

18 Q 121 Back

19 Q 142 Back

20 Ev 86 Back

21 Ev 86 Back

22 Ev 86 Back

23 Ev 86 Back

24 Ev 86-87 Back