House of Commons - Scottish Affairs

Select Committee on Scottish Affairs Fifth Report

5 Proposals for Change

38. The Gould Report put forward a number of proposals for change, some of which have already been accepted by the Secretary of State. These proposals range from those that are relatively uncontroversial and straightforward and are capable of being implemented quickly (for example, the decision to issue separate ballot papers for constituency and list members of the Scottish Parliament) to those that require more thought and might have long-lasting effects, not only for elections in Scotland but for the rest of the UK (for example, the creation of a Chief Returning Officer for Scotland).

39. Whilst we welcome the early commitment by the Secretary of State to take action on some of these matters, we would caution that the problems experienced on 3 May cannot be resolved by means of a 'quick fix'. The Electoral Commission have said that "the current arrangements for electoral administration across the UK are no longer capable of delivering elections in a consistent and equitable fashion."[46] In order to ensure that the problems of 3 May do not recur, an in-depth analysis of procedures needs to take place. Any changes proposed to the electoral process must be carefully tested and evaluated. As Mr Gould told us, "if you are going to change anything in the electoral system, in the electoral process, you need to conduct a good deal of research in order to determine what effect it will have in the longer term".[47] Indeed, it was the lack of a rigorous testing procedure that led to many of the problems in 2007. In the remainder of this report we address in turn the main proposals for change suggested by the Gould Report.

The Ballot Paper

40. The decision to commission an independent report on the 3 May elections was initiated by the high proportion of spoilt ballots recorded on the night. Ron Gould's investigation therefore focused on the design of the ballot paper and the decision to use a single sheet for both constituency and regional MSPs. Mr Gould also found that a number of other factors had caused problems on the night, including the lack of robust contingency arrangements for unexpected eventualities, such as a large number of candidates in some constituencies, and the way in which candidates' names and party descriptions were presented on the ballot.

THE COMBINED BALLOT PAPER

41. Ron Gould found that the main cause of confusion was the design of the Scottish Parliament ballot paper. For the first time, Constituency and Regional lists of candidates appeared side by side on one sheet of paper. 75% of spoilt ballots were due to the voter only voting on one side of the paper and not the other.[48] Although some of these papers may reflect a deliberate intention to vote only for either a Constituency or a Regional candidate, Mr Gould found it likely that the majority were the result of confusion about how many crosses should be marked or the mistaken perception that there was only one list of candidates that continued across the two columns. He therefore recommended that separate sheets of paper should be used in future. The Single Transferable Vote (STV) ballot for local government elections did not appear to cause as many problems.

42. The recommendation for a combined 'ballot sheet' emerged originally from the Arbuthnott Commission on Boundary Differences and Voting Systems. This Commission was set up in July 2004 by the then Secretary of State for Scotland, Rt Hon Alistair Darling MP, to examine "the consequences of having four different voting systems in Scotland, and different boundaries between Westminster and Holyrood", with the objective "to ensure that constituents and organisations receive the best possible service".[49] The combined ballot was based on a model used successfully in New Zealand and was intended to help voters appreciate the importance of the regional vote (this was further enhanced by the suggestion of placing it on the left hand side of the ballot).

43. Mr Gould told us that the combined ballot was "the number one problem" in the 3 May elections.[50] It is clear that the final format of the ballot was not tested sufficiently. As noted above, the Electoral Commission failed to pick up on warning signs emerging from the Cragg Ross Dawson research, which was, in any case, a small scale study. The Secretary of State for Scotland has accepted Mr Gould's recommendation to provide separate ballot papers in future. This decision was supported by Mr Peter Wardle, Chief Executive of the Electoral Commission, who said that "It seems quite clear to everybody, and I think we would agree with this, that for the time being there is no alternative to going ahead with separate ballot papers in future".[51]

44. We agree that, on the next occasion, separate ballot papers must be provided for the election of constituency and regional MSPs. However, we note that the suggestion to combine the ballot papers stemmed from a desire to highlight the importance of the regional vote, which is sometimes perceived as having secondary status. The return to separate ballot papers leaves this issue unaddressed. It may be that there are better ways to highlight the significance of the regional vote, for example, through central voter information campaigns as well as the campaigns run by the political parties themselves.

CONTINGENCY PLANNING

45. The Gould Report found that, within the electoral process, contingency planning was weak, particularly in regard to the arrangements for printing and counting ballot papers. The lateness of many decisions, for example in relation to ballot paper design and arrangements for e-counting (considered separately below) meant that there was not enough time to establish secure alternatives should things go wrong.

46. The most striking example of the lack of robust contingency options is provided by the ballots in the Glasgow and Lothians regions. The format of these ballot papers was changed the last minute due to an unexpectedly high number of candidates, which had to be fitted onto one sheet of paper. In particular, the voting instructions at the head of the sheet were altered to provide more space, notably by removing the arrows pointing to each column of the sheet which would normally have appeared under the general heading "you have two votes" and next to the words "Regional/Constituency Member vote once only" which appeared above each column. This meant that the ballot sheet used in these regions differed from that used by voters elsewhere in Scotland. The abbreviated instructions may have caused confusion; Glasgow and Lothians had higher levels of spoilt ballots than any other regions.[52]

47. Mr Gould told us that there was no clear accountability for the decision to alter the ballot paper in the Glasgow and Lothians regions, which was taken at a very late stage when it was realised that a larger size of paper would be incompatible with e-counting machines. He said that the review team had gone to great lengths to investigate who was responsible for the decision:

I do not know how many hours we spent on it […] We understand that the returning officer did not have a role in this, that it was DRS [the e-counting contractor] in consultation with either the Scotland Office or the Scottish Executive—we are not sure which, even though the Scottish Executive of course was dealing with the local ballots—but it was a last minute crisis.[53]

The return to separate ballot papers for the election of constituency and regional MSPs and to manual counting for the next election will mean that the exact circumstances that led to the redesign of the ballot sheet in the Glasgow and Lothians regions will not occur. However, this incident highlights the weakness of the contingency arrangements for the 2007 elections.

48. There was a shocking lack of accountability for the decision to alter the ballot papers in the Glasgow and Lothians regions to accommodate a larger than expected number of candidates. We are concerned that we have never received a satisfactory explanation for this decision. The lack of robust contingency plans for eventualities such as this was in part due to the successive delays in ministerial decision-making. Delays of this nature (even if they are well-intentioned, for example, to allow for consultation) should not be allowed to jeopardise the integrity of the electoral process.

PARTY DESCRIPTIONS

49. Mr Gould also commented on the use of 'slogans' or party descriptions on the ballot paper instead of registered names of parties. Under the Electoral Administration Act 2006, parties can choose to be listed by a registered party name or registered description.[54] All descriptions must be registered with the Electoral Commission. Mr Gould found that these descriptions could be tailored to allow the candidate to appear at the top of the ballot paper in alphabetical order and additionally may have confused voters about whether they were voting for a single candidate or a party list. He singles out the slogan 'Alex Salmond for First Minister', used by the SNP, for particular attention, as well as, to a lesser extent, the names of Tommy Sheridan and Margo MacDonald.[55]

50. To avoid confusion, Mr Gould recommends that parties should be required to use their registered names on the ballot paper. He also suggests that a lottery could be used to determine the order of candidates. This would avoid preferences being given to candidates higher up the alphabet.[56] We asked the Electoral Commission whether they supported a lottery for candidates' position on the ballot paper. Peter Wardle replied that:

…the question of a random draw, a lottery, is one we have certainly looked at quite hard in the past. […] There are arguments both ways and it may be that if we address the third point effectively—which is looking at the way in which parties are described—it may not be necessary to do both points. I think there needs to be a bit more debate about that. If we change the way in which the parties are described then some of the advantages of alphabetism may not be such advantages as they are at the moment.[57]

51. There are a number of ways in which the format of the ballot paper could be altered with the aim of providing a 'fairer' layout. In addition to a lottery, it might be possible to implement a form of 'blocking', whereby candidates from the same party are grouped together. Indeed, as Mr Gould reminded us, these issues were debated in the run up to the 3 May elections: "one of the problems that seriously delayed the whole ballot issue was the proposal that the parties be listed with their candidates directly across, and there was a technical problem why that could not be done".[58] Mr Gould told us that a range of different formats were used in other countries and that any proposals for change could usefully examine international comparators.[59]

52. We support further research into a new format for ballot papers, particularly the questions of candidate order and the use of party descriptions in addition to registered party names. Any change would need to be subject to extensive testing. It may be that moving away from alphabetical order in favour of a lottery system would increase the potential for confusion.

SECRECY OF THE BALLOT

53. Due to the requirements of e-counting machines, voters were asked not to fold their papers before placing them in the ballot boxes on 3 May. In his report, Gould criticised this strongly, saying that it jeopardised the secrecy of the ballot.[60] It might be possible for unfolded ballot papers to be viewed whilst they are carried from the polling booths to the ballot boxes. Mr Gould suggests that, if ballot papers cannot be folded, voters should be provided with a folder in which to place the ballot paper before it is deposited in the box.

54. The secrecy of the ballot is of prime importance in a democratic society. To jeopardise it simply because of the demands of an electronic counting system is perverse. We strongly support the measures to ensure the secrecy of the ballot outlined in the Gould Report.

The Count

E-COUNTING

55. Electronic counting (e-counting) was used by all 32 returning officers in Scotland to produce the results of the elections, under a contract with DRS. The Gould Report was not opposed to the use of e-counting in principle, but criticised the poor arrangements for its use on 3 May. The most visible failure of the e-counting system occurred when some machines broke down on the night, causing the count to be suspended. However, the poor integration of e-counting facilities into the preparations for the elections was responsible for many other problems that emerged on the night. The Secretary of State for Scotland has given an undertaking that e-counting will not be used in the next Scottish Parliament elections,[61] but it has been used successfully elsewhere, particularly for STV counts such as the London mayoral elections, which would be cumbersome to count manually.

56. A timeline provided to us by the Scotland Office shows that, instead of responding to the needs of the voter, the requirements of e-counting machines came to dictate the format of what was provided on 3 May.[62] For example, the idea of aligning parties and candidates across the two ballot papers on the single page (known as 'corresponding order') was rejected because it did not fit the requirements of e-counting machines. It was only discovered at a late stage that A3 ballot papers (identified as the main contingency in the case of a large number of candidates) were incompatible with e-counting machines: a realisation that led to the use of a different paper with abbreviated instructions in the Glasgow and Lothians regions.

57. The failure to integrate e-counting properly into the preparations for the elections was summed up by the Chief Executive of the Electoral Commission, Peter Wardle, who said:

…e-counting in Scotland this year suffered from a number of problems: to do with coordination; to do with management of the suppliers; to do with late legislation; to do with insufficient project planning; and to do with insufficient research and thinking from the voter's point of view about what the actual experience of going into a polling station and casting your vote would be [...] If you get to the point where the people who are casting their votes have to fit themselves around the system then there is something wrong with the electronic system.[63]

In its formal response to the Gould Report, the Electoral Commission recommends against the further use of e-counting until further testing and a cost-benefit analysis has taken place.[64] Mr Wardle also called for e-counting to be specifically incorporated into legislative framework governing elections, saying "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".[65]

58. In addition to the practical difficulties experienced on 3 May, e-counting currently suffers from a lack of transparency. There were particular problems with the 'auto-adjudication' of blank ballot papers. Although all papers with indeterminate marks were referred to the returning officers for adjudication, e-counting machines were enabled to automatically determine if a paper bore no mark at all and to reject it accordingly. These papers were not available for manual inspection. Many candidates complained that this affected their ability to challenge decisions or, ultimately, ask for a recount. In the event, only one full recount of a Scottish Parliamentary constituency election took place. There was one additional partial recount and two requests for recounts were refused. Decisions on recounts are made by the Returning Officer, who also has discretion to determine how a count or recount is to be conducted, including the decision on whether to use a manual or an electronic process.[66]

59. Mr Gould agreed that there was a lack of transparency in the process:

…we feel the confidence in the e-count is very low because of what happened at the Scottish elections. Our recommendation is that first of all there be a review of the whole process, the second thing is that auto-rejection of blank ballots should not happen, that all should go to adjudication. The adjudication should be much more structured and there should be much more input by the parties so that they can see exactly why a ballot is rejected and what the situation is, so that there is much more visibility and much more credibility to the e-count.[67]

60. There has been a severe loss of confidence in e-counting. The experience of its use in the Scottish Parliament and local government elections revealed a fundamental lack of transparency. The checks and balances of a manual system must be retained. Candidates and observers must have access to ballot papers in order to ensure that procedures are followed correctly and that recounts can be asked for. Until these problems are resolved, we do not support the use of e-counting for future elections.

OVERNIGHT COUNTING

61. One of the more controversial recommendations of the Gould Report is the proposal that votes should be counted on the day after polling, rather than overnight. Mr Gould argues that this would allow staff to be more alert and to exercise better judgement.[68] Overnight counting has strong support in many quarters. As the Secretary of State for Scotland has recognised, "to abandon completely overnight counting for parliamentary elections would represent a major departure from well-established precedent".[69] In evidence, Mr Gould acknowledged that more debate would be needed on this issue: "Obviously, this is an argument that cannot be won either way, it is one that needs to be examined in terms of the interests of the candidates, the parties, the voters and those who have to administer the elections, and there is lots of time to do this".[70]

62. The Electoral Commission has long been calling for an end to overnight counting. However, in his evidence, the Chairman of the Commission, Mr Sam Younger, suggested that this requirement could be assessed on a case-by-case basis: "in the case of this particular combination of elections we did take the view that it would have been better to have counting the next day, but that is not something that is a blanket for every single one necessarily".[71] If, as expected, the next elections are decoupled, a manual count of Scottish Parliament ballots could be completed fairly speedily, in contrast to the complex requirements of the STV system used for Scottish local government elections.

63. We are confident that the next Scottish Parliamentary elections, decoupled from the local government ballot, can be counted manually on the night without risk to the system. Future arrangements for counting should be considered as part of the research into counting systems that we have recommended earlier in this Report.

Postal voting

64. A number of voters reported problems with postal votes in connection with the 3 May elections. Production and printing problems caused delays and the instructions did not always match the final printed version of the forms. In many cases, this was because forms had to be re-designed at a late stage to fit the requirements of e-counting machines. Across Scotland, 5,413 parliamentary postal ballot papers (1.24% of those issued) were too late to be included in the count, but in three areas, the number of late ballot papers rose to over 5% of those issued. In his report, Mr Gould concluded that the demands of e-counting systems were sometimes given higher priority than clear format or design of postal voting papers. He recommended that the timetable for issuing postal votes should be moved forward to allow more time for papers to be received and returned.[72]

65. The Minister of State at the Scotland Office admitted to us that problems with postal votes had been caused by the design of the combined ballot paper. He argued that the decision to extend the period between the close of nominations and the election date would address this issue: "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."[73]

66. In his report, Mr Gould also recommends that advanced voting in person could be used as an alternative to postal votes. We asked Mr Gould whether he was opposed to the recent growth of postal voting in Scotland, which has sometimes been promoted as a means of increasing turnout. He replied:

I would like to clarify; in no way do we suggest that postal voting be eliminated, postal voting would remain, but if advance voting either in the office of the returning officer or in shopping centres and so on was carried out, first of all I think you would find that the tendency internationally would be followed here, and you can see the tendency in the postal vote. If you look at the fact that the voting turnout is dropping on the one hand, but on the other hand the advance voting is going up, it means that fewer and fewer people want to go to the polls or are going to the polls, they are going for the advance vote, so all we are saying is that this would supplement the postal vote. My guess is that if that opportunity was available you would find the postal vote would be less because people would take advantage of the advance poll which would reduce the cost, because postal voting costs are huge, and it would speed up the count because you would have less manipulation of all these ballots coming in which have to be checked with the signatures and everything else.[74]

67. No voter should receive their postal vote so late that there is no realistic possibility of returning it in time to be counted. In 2007, understandable confusion was caused by the fact that the instructions did not match the ballot paper. These problems must not be repeated. We support further research into the use of advanced voting in person which may have advantages in terms of increasing turnout as well as reducing costs and bureaucracy. In addition, there should be a restriction on eligibility for postal votes.

'Decoupling' the elections

68. The Gould Report recommends decoupling the Scottish Parliament and local government elections by holding them on different dates in future. This recommendation has already been accepted by both the Scotland Office and the Scottish Executive and will be implemented by moving the date for the local government elections.

69. Decoupling the elections will reduce some of the complexity involved in holding two ballots simultaneously. Indeed, the Minister of State at the Scotland Office, claimed that he had never supported holding the two elections on the same date:

What I am saying is the decision to have them on the same day was a decision taken by the Scottish Parliament. The recommendation of the Arbuthnott Commission to decouple the elections was a recommendation to the Scottish Executive. Valiant attempts were made to effect that in the Scottish Parliament and it was the Scottish Parliament that voted to keep the elections on the same day. Mr Gould is saying, for a variety of reasons, he thinks the elections should be held on different days, and I agree with that.[75]

Mr Cairns went on to suggest that decoupling the elections would obviate the need for some other changes suggested by Mr Gould, including e-counting and postal voting arrangements;[76] changes to lines of accountability;[77] and the transfer of responsibility for the Scottish Parliament elections to the Scottish Executive: "You do not need that if the elections are on the same date. It declutters it immediately by decluttering the elections".[78]

70. However, in oral evidence, Mr Gould clarified that the main reason for his proposal to decouple the elections was not a matter of administrative convenience, but was instead the objective of restoring prominence to local council elections:

…we did not recommend decoupling the elections because of the problems because those elections do not have to be decoupled, they can be managed without all of these problems. The reason that I suggested the elections be decoupled was to give recognition to local candidates and local issues because they just get buried on a parliamentary election, they just disappear as far as the elector is concerned, from my experience.[79]

71. Although local government issues might receive more attention if an election were held separately from elections to the Scottish Parliament, Mr Gould admitted that this could have an adverse effect on turnout.[80] Both Mr Gould and Mr Boda thought it likely that turnout for local government elections alone might be lower than it is when combined with Scottish Parliament elections. The Minister agreed:

If you look at the turnout figures for the elections that were held just for local council elections throughout the 1980s and 1990s, the last time turnout in a local council election got to 50 per cent in Scotland was 1974. It has been over 50 per cent in the three elections that were combined.[81]

72. The Electoral Commission expressed support for decoupling the Scottish Parliament and local government elections,[82] but cautioned that the combination of elections on the same day was a complex issue and that there was no one right decision to cover all circumstances:

There are arguments for and against holding elections on the same day, and Gould goes into those, and it is quite clear from his analysis that they are finely balanced. In the Scottish context it is relatively easy to change the cycles so there is clear water between the local government elections and Scottish Parliament elections, and that seems to be what he is saying. That context does not exist in other parts of the UK and it may not exist in Scotland in certain years because there are Westminster and European elections to take into account.[83]

As Mr Wardle notes, given the variety of different elections now held across the UK (some with fixed dates and others more difficult to predict) as well as the different voting systems in operation, this is not just an issue for Scotland. Indeed, the Commission's formal response to the Gould Report states:

We therefore propose that a comprehensive research study should be undertaken into these matters, research that includes consideration of the different types of combination that can occur anywhere in the UK—we estimate that almost 100 different types of combination could occur. The Government should undertake this research as a matter of urgency.[84]

73. The decision to 'decouple' the dates of the Scottish Parliament and local government elections appears to offer a simple way to eliminate the complexity of holding a combined election. In principle, we believe that two or more votes in different elections or referenda should not be held on the same day.

A Chief Returning Officer for Scotland

74. One of Mr Gould's main proposals, not yet accepted by the Government, is the creation of a Chief Returning Officer (CRO) for Scotland. In evidence, Mr Gould explained that a CRO could act as a single point of accountability (reporting to both the Scotland Office and the Scottish Executive), even if responsibility for running elections in Scotland remains divided between the two. He thought that a CRO could also act as a leader for constituency returning officers, helping to raise professional standards,[85] as well as undertaking some of the consultation previously carried out by the Scotland Office, including "through a consultative committee with the political parties involved".[86]

75. We also have concerns about voter registration. In many cases, electoral registers are outdated. This needs to be a priority for returning officers. If a Chief Returning Officer were to be appointed, he or she might be well placed to intervene to improve this situation.

76. The Electoral Commission agreed that a CRO would provide accountability for decisions such as the use of a contingency ballot paper in the Glasgow and Lothians regions. The Chief Executive of the Commission, Peter Wardle, said that the post might fill a gap where "there was nobody, including the Electoral Commission, with a clear and accepted role to oversee what was going on."[87] However, as noted above, it is likely that any new CRO might take over some of the functions of the Electoral Commission, for example, in regard to voter information. The exact distribution of responsibilities between the Electoral Commission and any new CRO would need careful consideration. Mr Wardle warned against removing aspects of the Commission's remit at which it had been successful, including public education. He also highlighted the need for the relationship between the Commission and a CRO to be formalised in terms of powers and responsibilities.[88]

77. Mr Gould outlined what he saw as the future relationship between the Electoral Commission and the CRO as follows:

We see the role of the Electoral Commission to be somewhat different than it is now. We see them first of all as a watchdog for local elections and for Scottish Parliamentary elections in terms of ensuring that the fundamental standards are carried out and to look at the weaknesses and the problems that might arise during the election and do an audit after each of the elections to guide the returning officer, the chief returning officer and the returning officers for the future. The Electoral Commission also, because of the fact that they would be in the role of establishing standards which they then would measure, would provide guidance and assistance but not operational roles. For example, as we see it they would not carry out the voter information process; they may provide some guidance, they may provide samples of posters, they may provide samples of the booklet on what constitutes a valid and invalid ballot, but the chief returning officer would then carry that out through the process and, depending on which jurisdiction he or she was working for, that jurisdiction would fund any costs involved in carrying out the voter registration or what have you.[89]

Mr Gould went on to note that the Electoral Commission had a UK-wide function, whereas the CRO would be limited to Scotland: "This is where we see that their [the Electoral Commission's] role would complement the management role and support it and give it more strength and more specialist advice and guidance, otherwise you would have to build an empire in Scotland to do the same thing that is being done in Wales."[90]

78. It is likely that the creation of a CRO for Scotland might result in calls for a similar position to be established in Wales or England. This raises issues of co-ordination, particularly in relation to UK-wide elections such as those for Westminster and the European Parliament. Peter Wardle stressed the need to consider these issues carefully before changing the current system:

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 […] What I would like to see is a wider debate on how that sort of solution for Scotland would work in the wider UK context and, indeed, whether there are lessons from what Ron Gould suggested for Scotland that ought to be picked up elsewhere in the UK.[91]

In its formal response to the Gould Report, the Electoral Commission went on to question "the cost effectiveness of a Chief Returning Officer conducting public information for some but not all elections in Scotland while the Commission continues its role in relation to UK and European Parliamentary elections and with respect to electoral registration".[92]

79. A number of other issues arise when considering the establishment of a CRO. For example, what powers would the CRO have to enforce core standards, whilst maintaining some element of discretion for constituency returning officers? Would the post be cost effective if it was relevant only to some elections? What would be the CRO's formal relationship with the Scotland Office, the Scottish Executive and the Electoral Commission? Which body would be responsible for the appointment process and running costs, or how would the responsibility be apportioned between two or more bodies? How would the post be affected by any future changes to the devolution settlement? An alternative approach, suggested by the Scotland Office in their consultation paper Sorting the Ballot, might be a strengthened Elections Steering Group, with formal powers to take decisions, "centralised planning of future elections to the Scottish Parliament being led by the Scotland Office with the participation of Returning Officers, Registration Officers and the Electoral Commission".[93]

80. The proposal to establish a Chief Returning Officer for Scotland deserves further consideration, both in terms of its potential benefits for Scotland and in its implications for the way in which elections are run across the UK. What is important is that there should be a clear line of accountability for each aspect of election planning and organisation. It may be possible to achieve this by strengthening and realigning one of the existing bodies, rather than creating a new post.

Returning Officers

81. The Gould Report finds that returning officers did not have enough control over the preparations for the elections. It recommends "professionalising" Returning Officer positions in each constituency, by establishing them as dedicated roles with year-round responsibility and accountability for electoral matters, including registration, rather than being part of the relevant local authority chief executive's duties.[94] A systematic programme of training and development is also recommended. In oral evidence, Mr Gould said:

…the chief executive of the council is very often the returning officer when an election comes round. The chief executive has a job to do and sometimes they take over and do it, sometimes they delegate it, but their focus is as chief executive officer, not as returning officer, other than as a part-time thing. So our feeling is that in terms of providing the kinds of service and the kinds of response to parties, to participants in the election, it would be much better to have a professionalised returning officer and to apply the same criteria because the reality is that the quality of returning officers across Scotland varies from superb to perhaps adequate.[95]

82. David Cairns MP, Minister of State at the Scotland Office, welcomed this proposal:

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 […] In fact, the job of the returning officer could—and I am saying could because I do not want to pre-empt what we are going to look at—involve year-round things like getting people onto the register, […] because it is nobody's full-time job to do this.[96]

83. The proposal to formalise the role of a returning officer could form part of the duties of a new Chief Returning Officer for Scotland, but could equally well be implemented as a separate programme. Again, this raises questions that can only be answered at a UK-wide level. If returning officers in Scotland are to be held to a higher standard, there is a strong argument that this should be replicated across the UK, given that they are responsible for administering many of the same elections. We recommend that further consultation should take place with electoral officials in Scotland before implementing any proposals affecting the status of returning officers.

Electoral legislation

84. Delays in finalising the legislation governing the elections were a major factor in the problems of 3 May. These delays created uncertainty and prevented those involved in running the election from planning properly. The lateness in drafting the statutory instrument governing the combined elections was strongly criticised by the Electoral Commission:[97] a criticism accepted by the Minister,[98] who also gave an undertaking that in future, no new legislation affecting an election would be introduced in the six months before polling day.[99]

85. In addition to the legislative delay specific to this case, both Mr Gould and the Electoral Commission identify a wider issue concerning the state of electoral legislation in the UK, which they view as complex and fragmentary. In evidence, it was suggested that the present state of the legislation has begun to hamper rather than facilitate the efficient organisation of elections. Mr Gould said "look at the legislation, which was so fragmented that I do not know how any party or any administrator could even manage to make decisions".[100] Both Mr Gould and the Electoral Commission have called for a complete overhaul and consolidation of UK electoral legislation.

86. In response to the Gould Report, the Secretary of State for Scotland has promised to take action to consolidate the legislation affecting elections to the Scottish Parliament: "A single legislative instrument will provide, in one place, all the regulations and rules that govern the conduct of Scottish Parliament elections, alongside the guidance issued by the Electoral Commission."[101] Whilst this is a welcome step, it is not clear whether the Scotland Office's undertaking to present all relevant legislation in one statutory instrument would address the perceived need for a total overhaul and consolidation of electoral law UK-wide.

87. We welcome the undertaking from the Scotland Office that no new electoral legislation will be introduced in the six months prior to an election. This should go some way towards providing a more certain framework for election planning. We also welcome Ministers' acceptance of the need for consolidation of electoral law. However, we are not convinced that current plans go far enough. The Scotland Office needs to co-ordinate its activities with other government departments (in particular, the Ministry of Justice) as part of a wider project to overhaul UK electoral law.

46 The Electoral Commission, Taking forward the Electoral Commission's independent review of the 2007 Scottish Parliamentary and local government elections, pp.10-11. Back

47 Q 229 Back

48 Independent review of the Scottish Parliamentary and local government elections 3 May 2007, 23 October 2007, p.50. Back

49 HC Deb, (2003-04) 417 c1151. Back

50 Q 227 Back

51 Q 46 Back

52 Independent review of the Scottish Parliamentary and local government elections 3 May 2007, 23 October 2007, p.53. Back

53 Q 220-21 Back

54 Electoral Administration Act 2006, section 49(1) Back

55 Independent review of the Scottish Parliamentary and local government elections 3 May 2007, 23 October 2007, p.51. Back

56 Q 234 Back

57 Q 46 Back