Examination of Witnesses (Questions 220-239)
MR RON
GOULD, CM AND
MR MICHAEL
BODA
15 JANUARY 2008
Q220 David Mundell: One specific
thing that I wanted to ask you about was what, to me, was one
of the most disturbing aspects of the election in that the ballot
paper for the Glasgow and Lothian regions was changed. I think
even Mr Davidson would accept that that was not in consultation
with any other political party but your report I did not find
was absolutely clear on how that actually happened. That is a
fundamental breach of what we accept in this country, that you
would complete the same ballot paper in Shetland as you would
in Glasgow as you would in Dumfries.
Mr Gould: This was a real challenge
that we explored. I do not know how many hours we spent on it,
but Michael can explain what we finally found out about how this
process occurred.
Mr Boda: You need to read that
section of the report in order to get exactly what we were able
to include, and the answer is that we were not able to get to
the entire bottom of it.
Q221 David Mundell: That was the
point I was making.
Mr Boda: As far as we could go
we went in the report, and I will tell you that we spent a good
deal of time trying to figure out exactly how you ended up with
those ballot papers.
Mr Gould: We understand that the
returning officer did not have a role in this, that it was DRS
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 and they said the only way we can
solve this is to do this mechanically, and this is part of the
concern that the technological process took over the electoral
concerns.
Q222 David Mundell: Effectively a
contractor was able to determine the ballot paper.
Mr Boda: No, let me read the quote
from the report for you, that will help. "The final decision
to use this ballot paper design was made on 11 April 2007. The
Scotland Office has stated that the 24 candidate contingency ballot
was successfully tested on 11 April by members of the Scottish
Executive, Scotland Office and Edinburgh City Council which confirmed
that it was suitable for scanning purposes and met the statutory
requirements." That is as far as we were able to get.
Q223 Mr Devine: You say at the beginning
of your report that you did not want to produce a report which
meant that political parties would actually challenge the result.
Seeing what you have seen with the ballot paper—in Lothian
for example it was down one side and continued. We had a lot of
people who voted Scottish Labour on one side, there was none of
the guidance at all and who did not vote for the Scottish Labour
Party candidate because it looked a continuation. Are you comfortable
with what you have seen, recognising that some seats were lost
with 49 votes, that everybody who sits either in councils or serve
in the Scottish Parliament deserve to be there?
Mr Gould: Frankly, no, I am not
comfortable with that, but there is a challenge process available
to every candidate, every party, which could have been pursued
which was not pursued, and therefore the results were officially
accepted. Life goes on and, as I say, I saw my mandate as being
to ensure that every approach should be taken to try and avoid
this kind of thing happening in the future and to put forward
recommendations or options as we have, which we think will ensure
that this is not going to happen again if some of these are followed.
Q224 Mr MacNeil: Thank you, Chairman.
Essentially, Mr Gould, between 2003 and 2007 really all that changed
was the design of the ballot paper for Parliament—the two
votes were put on the one paper—and an STV election was
held for Council on the same day. Which do you think was the greater
problem, the two votes on the one sheet for Parliament or the
inclusion as well with STV and the crossover of misunderstanding
there?
Mr Gould: Are you asking about
the problem of the number of rejected ballots?
Q225 Mr MacNeil: Yes.
Mr Boda: I guess I want to question
the premise of what you have said, that there were essentially
only two changes, but it seems to me that there were significantly
more changes than that to be considered, and in many ways this
was a bit of a perfect storm in terms of it is hard for us to
say this was more of a problem than this because it was an aggregation
of all the issues that were involved in the major changes that
were put forward.
Q226 Mr MacNeil: But for the voter
they would only have come across two changes.
Mr Boda: You are asking whether
the ballot was more of an issue or the change in the voting systems.
Q227 Mr MacNeil: There having been
the two systems.
Mr Boda: Yes. From a statistical
standpoint—and I do not want to get into the details of
it—we did find that the combined ballot was much more of
a problem than the combination of the new electoral system with
the other, and that is laid out fairly clearly in the report.
Mr Gould: The combined ballot
contributed to a great extent to the large number of rejected
ballots, that was the number one problem.
Mr Boda: What happened in Lothian
and Glasgow was linked to also the combination of the two ballots,
it exacerbated the problem, some of the issues of the arrows and
the directions, but it was linked also to the combined ballot.
Q228 Chairman: You recognise that
the main reason for the large number of spoilt ballot papers for
the Scottish parliamentary elections was combining the ballot
paper for regional and constituency candidates. During your inquiry
did you find out whether any political party or any individual
at the Electoral Commission or anyone else opposed this mad idea
of combining the ballot papers, or was everybody happy with this?
Mr Gould: Off the top of my head
there was much discussion about the options but I do not recall
specifics as to those who favoured or those who opposed the combined
ballot; nothing rings a bell.
Chairman: It does not ring the bell that
the Conservatives came up with the idea that this was a foolish
mistake combining the ballot papers, or the Scottish Nationalists,
or anybody else?
Mr Wallace: My understanding was that
at the end the Scotland Office took the arbitrary decision.
Chairman: It was a proposal from the
Electoral Commission to combine the ballot papers, that was my
understanding.
Q229 Mr MacNeil: Do you think that
the combining of the two votes was maybe a hangover from the Arbuthnott
Report which had changed what was traditionally done in 1999 to
see if you can build a tradition in that time period of having
the talk of the vote being the second vote and wanting to change
the emphasis of that vote and making that the first vote and then
make the constituency vote the second. Do you think that the ballot
paper somehow stemmed from that and that people were maybe misled
inadvertently or got into a groove of thinking that led them to
do that and to somehow equalise the value of the votes in Arbuthnott?
Mr Gould: It would be difficult
for us to say exactly what it was, but the combination of the
ballot is linked very much to our assertion that 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, and that is where
we are more critical.
Q230 Mr MacNeil: Some MPs here at
Westminster saw this changed ballot but the change to the ballot
had been that the list was only about half the page and the constituencies
were half a page as well, so they saw two columns that stopped
very dramatically, but of course when it came to the actual election
Uncle Tom Cobbley, his cat and the kitchen sink were standing
for election and the list vote was a long list and it looked as
if it was continuing onto the second column, which seems to have
led many voters—certainly in Glasgow and Lothian where I
am told that the length of the list would have looked like a continuing
list—to possibly vote twice on one side or the other.
Mr Gould: The issue is not individual
opinions on what the ballots look like, it is on how will it impact
the voters in the longer term, and as a result you need to conduct
rigorous research on it in order to see what the impact will be.
Mr MacNeil: If you had researched the
papers that were presented to us, the half paper and the half
paper, I would think it would occur to people that you would have
Uncle Tom Cobbley and all standing for Parliament and the list
would not have been so long. You could have researched that change,
and I think it might have been fine, it was actually the length
of the lists that turned out on election day that was a big part
of the problem.
Q231 Mr Davidson: That is a classic
case of where partisan interest did affect the nature of the ballot
because we still have the two categories of MSP and it has always
been seen that those who were elected by first past the post were
real MSPs and there was the assisted places scheme who just got
the top-up. They were unhappy with that so they wanted to swap
round so that the assisted places ones came first to give the
impression that they were maybe better or at least equal, so I
am glad we have clarified that we are responsible for that. Can
I just move on to the point that you do stress on a number of
occasions a need for impartial professional running of elections;
how do you take into account or find space for political parties
to have an input into all of that, because they do have a genuine
interest and there is often a thrust amongst either academics
or officials that would actually depoliticise the whole electoral
process—it is a bit like wanting to be a teacher and finding
it is a great job without the children; the elections are great
without the political parties, but without whom they obviously
could not operate.
Mr Gould: What is critical when
you have electoral management in my view is that there has to
be political sensitivity and an understanding of political needs
and political realities on the part of election administrators
and election managers. In this context I would see it in two major
situations, or perhaps three, the first being an ongoing relationship
and consultation with the Electoral Commission which should be
establishing standards for elections, guidelines and so on—for
example, consultations where they produce a book, as you know
they did for the last election, showing which are the rejected
ballots, and that should be in concert with the parties so that
the parties agree and understand that marking a ballot this way
is a rejected ballot and it is used throughout the election in
terms of adjudication. The second is if the decision is made to
have a chief returning officer, someone who is responsible for
the overall management of the election in Scotland, that chief
returning officer should be in constant and regular communication
through a consultative committee with the political parties involved
so that the management of the operation is understood fully by
the political parties and the candidates and, on the other side,
the chief returning officer understands the concerns and the needs
of the parties, the overnight count being a good example. The
third one is where you have steering committees or other types
of committees or sub-committees there needs to be an input and
involvement of political parties. I would say that political parties
and candidates are partners in this process; they are not standing
outside, they are affected by the process and they should have
an input.
Q232 Mr Wallace: Just to follow up
on the point about the independent, when it came to the decision
on the design of the combined ballot paper on two occasions independent
bodies said think again. One was the Arbuthnott Commission in
January 2006 and then in August 2006 after the consultation the
Electoral Commission asked for further consideration. In the meantime
the secretary of state issued a press release in June saying I
prefer what we have got (the combination) and then just announced
on 22 November that is what we are going to have. Is that not
pretty unwise, in that the advice of what were independent bodies,
the Electoral Commission and the Arbuthnott Commission, was effectively
overlooked or they did not get to grips with that. In that sort
of environment would you not think that is an unwise decision?
Secondly to that, have you explored with the Electoral Commission
what they meant by "further consideration"?
Mr Gould: I have no idea what
the Commission meant by further consideration. On the one hand
we are mentioning further consideration and on the other hand
not further exploring the Cragg Ross Dawson results. Hindsight
is an easier factor after all is over to think about, but it strikes
me that with all this process going on there was so much fragmentation
and so many players in the game and no cohesion in the process
that it is not unusual that this kind of thing could have happened.
In the same way—and I come back to it—there were some
very strong arguments both by the Commission and by the returning
officers against the wisdom of an overnight count, but the overnight
count went on. As I say, this was a very difficult election because
of all the various pieces which just did not come together in
a logical fashion, such that you could sit down and follow how
it all happened and who did what to whom.
Q233 Chairman: You recommend in your
report "that a public lottery be held to determine ballot
paper positioning following the close of nominations". During
all the previous elections alphabetical order was used for the
political parties and for the candidates, and something we experienced
in the May 2007 elections was that people in Scotland were used
to voting by just putting a cross, and when it came in the order
of one, two, three it was confusing for them. Do you not think
it will be confusing for the electorate again because they are
used to having the political parties and the candidates on the
ballot paper in alphabetical order?
Mr Gould: Let me deal with the
Parliamentary ballot in terms of the choices made. The problem
is twofold here; one is that the listing on the regional side
is by party or party description, and there is the option here,
so that is an area where parties can play around with getting
higher up in the ballot using a party description to move up the
ballot, as was the case here.
Q234 Chairman: You mean the way "Alex
Salmond for First Minister" was used.
Mr Gould: Exactly. Is that fair
to the voter, does that confuse the voter, so this is the reason
we said first of all we recommend that the party name always leads
off and then whatever the description is goes underneath, but
once you have an official registered party name your position
on the ballot is determined in relation to the other parties and
every time you end up in the middle of the ballot and somebody
gets the advantage of the top of the ballot or the bottom of the
ballot, which are advantageous positions. What is done elsewhere
in some other countries? One of the options—and this is
very much an option that we recommended—was give every party
and every candidate a chance to have advantageous positions once
you have the nominations and you put seven numbers in the hat,
you pick your number and that is where you are in the ballot,
or you put the names in the hat—there are various permutations
for doing it. There are variations on the theme which we explain
in the report. If, for example, candidates are grouped by party
then you would do it by grouping, but I will not go into that
because it is all in the report in any case. The whole objective
of this was just to offer an option to the parties and the candidates
to think about whether we wanted to stay with the traditional
approach, which is used all over the place, or have a lottery
for a chance to be in advantageous position from one election
to the next.
Chairman: During this election, one thing
which we experienced was that even the candidates from the same
political parties whose names were at the top, they were elected,
and the ones who were more popular and strong candidates within
the community because they were number two or three at the bottom
they found it difficult to be elected, so if you can provide an
equal chance it would be better. Angus.
Q235 Mr MacNeil: Essentially, Mr
Gould, what you are saying is that if you are at the top of the
list you have a fair chance of getting the vote because the voter
comes along and sees the top of the list and bang; a percentage
of the voters do that and you are suggesting a lottery to equalise
any particular advantages that some people might have with the
alphabet. Do you not think that rather than have a lottery that
would determine the entire election, as to where somebody was
to stand, if say you had five candidates would it not be better
to print a fifth of the papers in a different order with somebody
else at the top, so that therefore you would not have an election
where, say, Mr Smith was advantaged at this election but Mr Walker
was advantaged at the next election, so within that election itself
there was a degree of equitability.
Mr Gould: The problem is a problem
for the party or for the candidate, because if they do not know
where they are in the ballot you may have difficulty in the campaigning
in saying vote for the top of the ballot, or vote for number five
on the ballot or what have you, but that is up to the parties
and the candidates to decide what is the most viable system which
is useful and acceptable.
Mr Boda: Around the world it is
done in a variety of ways. We have offered an option, but you
might look at the different approaches that are taken in California
where I understand that it is done by lottery and it is done by
individual constituencies so you might end up on the top of the
ballot in one place but not in another.
Mr Gould: I just came from elections
in Georgia with Bruce George and there every candidate numbered
1, 2, 3, 4, 5 and so the election campaign was based on "Vote
No. 5" or "Vote No. 3".
Q236 Ms Clark: We understand the
system that has just been suggested where you have, if you like,
an equal proportion of each of the candidates towards the top,
and that is the ballot paper as used in Tasmania. As you say,
there is whole range of ways of doing things that are used in
different parts of the world, but I think one of the things that
particularly was surprising for council candidates in the Scottish
elections is that they were not alerted to the difficulties that
seemed to arise where you have a number of candidates standing
for the same political party on the same ballot paper, and that
perhaps the biggest instinct of the voter is to vote for a political
party and they do not necessarily have a very strong view about
which order to put the candidates in, and then they simply go
down the list 1, 2, 3, 4 and if the candidates are in alphabetical
order the way the system works seems to be that those at the beginning
of the alphabet will be elected and those further down the alphabet
will not. Do you believe that this should have been highlighted
before May, it should have been taken into account in the parties'
campaigns and the public should have been alerted to this fact,
that it was necessary to disproportionately vote for those at
the bottom of the alphabet?
Mr Gould: Depending on what the
system is it would be up to the parties to campaign in whatever
way they wished, but I know that 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. Certainly, there
are all these variations on the theme where, even though they
may not be side by side, your candidates can be grouped so these
are the party candidates here and then if you have the lottery
the groups would be together so that you know that your two party
candidates are together, wherever they may be on the ballot.
Q237 Mr Devine: You are very supportive
in your report of e-counting and you made reference a few times
to the validity of voters. Can I ask, first of all, have you ever
been to a British count?
Mr Gould: Yes.[1]
Q238 Mr Devine: You have. The concern
from my side is that with e-counting we had 1,700 spoilt ballot
papers; what we could not tell was whether there were other spoilt
ballot papers. What normally happens, as you know, the ballot
box comes in from, say, one village, all the parties have five
or six people around that table, they do a quick check to see
maybe 100 ballot papers, where the Labour vote is, where the SNP
vote is and suchlike, but they are also checking to make sure
the counting is accurate. When the Electoral Commission was here
they were absolutely disparaging about the Irish experience, which
I thought was totally unacceptable, because I have been to the
Irish counts and they are very open, the tallymen work them, they
know what is going on, they can tell you basically who got the
third vote and the fourth and so on, but it is very, very open,
you can see the ballot papers, you can see where things are going;
with e-counting you cannot do that. As I say, there were nearly
1,700 wasted papers that night; there could have been another
1,000 but we do not know.
Mr Gould: I am sure you will see
in the report that 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 that is sought, but keeping
in mind at the same time that if the elections are decoupled there
will not necessarily need to be e-counting which is very much
essential for the local election for STV, but it could go back
to a manual count for the parliamentary elections.
Q239 Mr Devine: Why is that essential?
If a counter could do ten candidates, why is it essential?
Mr Gould: If you were at the Northern
Ireland elections you know—
1 The witness later clarified that they had attended
two Northern Ireland election counts Back
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