4 Role of the Electoral Commission
27. The Scotland Office is under a statutory obligation
to consult the Electoral Commission on arrangements for the Scottish
Parliament elections. The Gould Report criticised the Commission
for its failure to warn Ministers of some of the potential problems
relating to the 3 May elections at an earlier stage. For example,
the Scotland Office asked the Commission to conduct research on
the design of the combined ballot paper and voter preferences.
In response, it commissioned a study from Cragg Ross Dawson, a
public opinion research firm. The company conducted interviews
with a sample group of just 100 participants, which showed a rejection
rate of 4%: close to the actual rejection rate in the 3 May election.[34]
The Electoral Commission did not appear to recognise this as a
potential problem. Mr Gould viewed this as a significant failure
on the part of the Commission, saying "I believe that the
Electoral Commission had been given warning signals from the Cragg
Ross Dawson study which they did not pursue, which they should
have pursued and which might have resolved the problem".[35]
28. The Electoral Commission has been criticised
elsewhere (for example, by the Committee on Standards in Public
Life)[36] for an insufficiently
proactive attitude and a lack of political awareness. We asked
the Minister whether he thought the Electoral Commission had failed
in its duty to advise the Scotland Office on matters such as the
design of the ballot paper, and whether he had received 'bad advice'.
He said:
I do not accept it was bad advice. I think people
who said that a single ballot paper was a good idea were not acting
maliciously […] It was a mistake to have a single ballot
paper, yes, I have said so over and over again. It was a mistake
that most people actually supported and endorsed, but it was a
mistake and nobody is denying at this stage that that was a mistake.[37]
29. We put it to Mr Sam Younger, Chairman of the
Electoral Commission, that there was little point in having an
Electoral Commission if it could not act robustly to warn Government
of potential problems with the electoral system. Mr Younger acknowledged
there had been failures in this case, saying:
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 four per cent.
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.[38]
Peter Wardle, Chief Executive added, "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".[39]
30. Despite admitting to some failings, Mr Younger
insisted that the Electoral Commission should not be held fully
to blame, because overall responsibility for the running the election
rested with the Scotland Office rather than the Commission:
…the Electoral Commission does not run elections;
it does not have the responsibility to run elections. The responsibility
for running elections is with the returning officers. The responsibility
for legislation in relation to elections is with various arms
of government and with parliaments and not with the Commission.
The Commission has two or three very clear areas—one of
which is to provide advice and guidance, which is what we did.
In one instance I think in terms of that advice we would accept,
as indeed Mr Gould says, that we did not sufficiently put the
voters at the heart of what we were doing in relation to the ballot
paper design; that I accept as a criticism.[40]
Mr Younger also defended the Commission's record
in the longer term, saying "I do think that the Electoral
Commission has made a significant contribution over the years
in which it has been there".[41]
31. Although the Electoral Commission was not in
overall control of the organisational aspects of the election,
it did have practical involvement in its responsibility for the
2007 'VoteScotland' voter information campaign. Mr Gould found
that this campaign seemed relatively successful, but that its
effects were not properly evaluated.[42]
His colleague, Michael Boda went on to suggest that this responsibility
should be removed, allowing the Commission to focus solely on
its operation as a monitoring and advisory body. He argued that
the value of the Electoral Commission as an institution lay more
in its auditing role than in 'hands-on' provision of information:
…it is important to distinguish between three
areas which we have focused on in the report as it relates to
Scotland. One is the administration of the elections, the other
is establishing standards for an electoral process and then there
is the other watchdog or the auditing function. We are not arguing
in any way that there would not be room for the Electoral Commission
and that they would be falling over another institution; they
are extremely important institutions and, frankly, are quite unique
in the context of other electoral commissions around the world
in the fact that they have a particular watchdog function and
auditing function that is extremely important.[43]
32. We
were not satisfied with the quality of the VoteScotland information
campaign. In future, better information campaigns need to be run,
particularly when there are changes to electoral procedures.
33. The Gould Report recommends that a Chief Returning
Officer for Scotland should be established, taking over some of
the current functions of the Electoral Commission, for example,
in regard to voter information. Mr Gould envisages that the Commission
would retain its nationwide role in setting standards and auditing
the conduct of elections, arguing that this would strengthen the
role of the Commission in its auditing and advisory function,
whilst clarifying who was ultimately responsible for organisational
aspects.[44] The Electoral
Commission agreed that more clarity in its remit was desirable.
Mr Younger said:
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.[45]
34. The creation of a Chief Returning Officer post
would doubtless have a serious impact on the role of the Electoral
Commission and we return to consider it in more detail below.
It is significant that, in the case of the 3 May elections, the
Commission was forced to appoint an independent review team, because
its own role in the organisation of the ballot was under scrutiny.
If the operational and auditing parts of the electoral process
were separated in future, this conflict of interests would no
longer arise.
35. We conclude
that the communication process between the Scotland Office and
the Electoral Commission was not effective. Failures on the part
of the Electoral Commission meant that warning signs were not
acted on. We are particularly disappointed that the Electoral
Commission did not raise concerns about the level of spoiled ballots
in the pilot study. There is little value in establishing an independent
Electoral Commission if it fails to act robustly to warn Government
of potential problems with the electoral system. It is difficult
to see the Electoral Commission as having added any value to this
entire process.
36. The status
of the Electoral Commission, combining an external auditing role
with active participation in organisational aspects of electoral
procedure is in need of review. In particular, the Committee would
see advantage to some participation, albeit as a minority, of
nominees from political parties. This has now been recognised
by a number of observers, including the Committee on Standards
in Public Life. As part of this review, the Government should
give consideration to the proposal to appoint a Chief Returning
Officer for Scotland and the allocation of responsibility for:
- the provision
of legal advice;
- the development of electoral
policy;
- commissioning research;
- the provision of guidance to
returning officers;
- compliance and the regulation
of political parties;
- monitoring and auditing functions;
and
- operational roles (including
voter information and awareness programmes).
37. The Electoral Commission has published a formal
response to the Gould Report, in which it states that it is currently
undertaking a review of UK electoral administration in the light
of the 3 May experiences. The review is due to report in mid-2008.
Its conclusions will go beyond the remit of this Committee and
are for other bodies to scrutinise, but we urge our colleagues
in Parliament to give it their full consideration. It
is unlikely that all of the factors leading up to the 3 May problems
are unique to Scotland.
34 Independent review of the Scottish Parliamentary
and local government elections 3 May 2007, 23 October 2007,
p.39. Back
35
Q 217 Back
36
Eleventh Report, Review of the Electoral Commission, Cm
7006, January 2007 Back
37
Qq 163-64 Back
38
Q 61 Back
39
Q 63 Back
40
Q 23 Back
41
Q 23 Back
42
Independent review of the Scottish Parliamentary and local
government elections 3 May 2007, 23 October 2007, pp.79-80. Back
43
Q 265 Back
44
Independent review of the Scottish Parliamentary and local
government elections 3 May 2007, 23 October 2007, p.85. Back
45
Q 67 Back
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