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Scottish Parliament (Elections etc.) (Amendment) Order 2007

Volume 694: debated on Tuesday 17 July 2007

rose to move, That the Grand Committee do report to the House that it has considered the Scottish Parliament (Elections etc.) (Amendment) Order 2007.

The noble Lord said: It may be helpful to noble Lords if I start by going over the background to the order. On 8 May, the then Secretary of State for Scotland made a Statement in another place about the problems faced at this year’s Scottish parliamentary elections. I repeated his Statement in this House. It focused on the statutory review to be undertaken by the Electoral Commission under Section 5 of the Political Parties, Elections and Referendums Act 2000. That review will focus on the following issues: the high number of rejected ballots, the electronic counting process, the arrangements for postal voting, the decision to hold the parliamentary and local government polls on the same day, the decision to combine the two parliamentary votes on one ballot sheet, the process by which key decisions were made, and the role of the Electoral Commission in the preparations for the elections.

The Electoral Commission has, as we know, appointed Mr Ron Gould, an international expert in electoral administration, to lead its review. As requested by Scottish Executive Ministers prior to the elections, the review will also cover the Scottish local elections. Mr Gould has said that he aims to complete his work by the end of August. Last month, he met with the then Secretary of State for Scotland and the current Minister of State at the Scotland Office. At that meeting, Mr Gould asked about the possibility of gaining access to ballot papers to examine the nature and cause of the high level of spoilage. Ministers undertook to follow up this request and, following consideration of the legal framework and official-level discussions with the review team, this order was laid before the House.

That, briefly, is the history to date of the order. I will now say a little about its substance. It provides a mechanism to enable the Electoral Commission to access the ballot papers and electronic counting images from this year’s Scottish parliamentary election. Currently, papers are sealed up and held securely by sheriff clerks, and access can be granted only in cases of alleged fraud or where an election petition is being prepared. The same applies to the electronic record, which is a new item in Scotland but which can provide the review team with information about spoilt ballot papers and may reduce the need for the team to examine actual ballot papers.

Before the commission’s review team is given access, it is vital that safeguards are in place. The order’s primary security feature is that it denies the commission access to the corresponding number lists, which link elector numbers with the barcodes and numbers printed on the back of ballot papers. Without these lists, ballot papers cannot be linked back to individuals and so the secrecy of the ballot is maintained. Further, and to ensure proper controls over documents, the order requires that, once the review team has completed its work, the papers and records must be sealed up again, returned to the relevant sheriff clerk and any copies destroyed.

Since the time of this House should be used wisely, we do not yet know whether further scrutiny might be desirable after future Scottish Parliament elections or by-elections. The order is not expressly limited to the poll last May. However, it does not simply provide open-ended access.

Control is achieved by linking access to Section 6(2) of the Political Parties, Elections and Referendums Act 2000, which allows the Secretary of State to request the commission to undertake reviews into specific subjects. Under the order, the commission may access ballot papers only when requested to do so by the Secretary of State. Since the Secretary of State is answerable to Parliament, the order therefore provides for parliamentary accountability for any decision to provide ballot paper access.

As local elections in Scotland are a devolved matter, the order applies only to the Scottish parliamentary elections. If we are to learn the lessons of the 2007 elections, the Electoral Commission’s review team must, as has been requested, have access to ballot papers. The order provides that access, while maintaining the secrecy of the ballot and ensuring parliamentary accountability. I beg to move.

Moved, That the Grand Committee do report to the House that it has considered the Scottish Parliament (Elections etc.) (Amendment) Order 2007. 23rd report from the Statutory Instruments Committee.—(Lord Evans of Temple Guiting.)

The order deals with an aspect of our life which is vital when we pin our faith on democracy. As the Electoral Commission’s briefing states, democracy depends on public confidence in the electoral system. The Scottish elections came near to making a nonsense of that process. More than 140,000 votes were rejected, which is the proportional equivalent of 1 million in a UK general election. We are always interested in finding out what went wrong.

Some of the causes mentioned by the Minister are surely obvious: too many systems, too much novelty, and the bright idea of introducing everything on the same day. We would like to be sure that any inquiry gets to the bottom of things, but we must be doubly careful that nothing is done to set a precedent which could be unscrupulously used in the future. If any change in electoral legislation is contemplated, the proper safeguard is that it should be in place before, rather than after, the conduct of the poll. I hope that enough care is being taken in considering this legislation and expect the Minister to limit any change to as specific an area as possible.

A great many of us will have received a brief from the Electoral Commission, in which it clearly states two things: first, the major obstacle that it faced was its inability to access the rejected ballot papers; and, secondly, it considers that any measure that we pass should be restricted to the current circumstances.

Any powers that were required in this regard could have been achieved under Section 12(1)(b) of the Scotland Act, whereas we notice that the Minister is calling on the powers in Section 12(1)(a).

Access to rejected ballot papers is allowed under the Scottish Parliament (Elections etc.) Order 2007 but, as the Minister explained, only for the purpose of instituting a prosecution or taking up a case. I understand that that route is not being pursued. Very properly, these provisions are subject to the judgment of a Court of Session or a sheriff. Here we are being presented with a statutory instrument to give the Electoral Commission access to all ballot papers incorporated into an ongoing legal instrument which can be triggered by a politically-appointed body requesting permission from the Secretary of State. Can the Minister tell the Grand Committee why it was not considered sufficient to give powers limited as the Electoral Commission recommends? The need for ongoing powers would, very properly, then have been part of the Electoral Commission’s review, and that, I expect, is what it would have wished.

There is one point on which the Minister could offer clarification. The Explanatory Notes state that the provision is to do with the conduct of the elections for the Scottish Parliament, and that is perfectly clear; but the Explanatory Memorandum states at paragraph 5 that the instrument has UK extent. What is the meaning behind this provision? When these ballot papers are released, how many people will have access to them? They cannot be left lying around in some office. Will a person be identified and nominated as the person responsible? Will a requirement for how they should be sealed up again and returned be laid down?

A further consideration is that under rule 70 of the Scottish Parliament (Elections etc.) Order 2007, any production and scrutiny of sealed electoral papers is available only after obtaining authority through a legal, not a political, channel. Can the Minister explain why the element of legal scrutiny of the necessity for investigation of sealed electoral material has not been included as part of this instrument? The Government have made a great issue of how every possible element of the judicial process should be totally separated from the political process. The electorate has received a great deal of assurance that electoral material is in the custody of the legal process, and here we are saying that a Secretary of State and a Government-appointed body can get together and have a look at the ballot papers.

Surely this is not an issue that needs consideration for Scotland alone; it is something for our whole electoral process in the UK. Given the importance of this, I give notice to the Minister that we may consider moving a Motion when this returns to the Floor of the House.

Perhaps I may preface my remarks by expressing some sympathy for the Minister, the noble Lord, Lord Evans. It seems to me that he is constantly being dragged here to propose Scottish orders in which he has no genuine interest. I want to know what has happened to the Advocate-General who is now installed in the House. The noble Lord, Lord Selkirk of Douglas, will agree that he was a perfectly good Solicitor-General in the Scottish Parliament. His light was not hidden under a bushel there and I do not see why it is hidden here; we never hear from him. It would be very good to have a Scottish Minister presenting these orders. So I have every sympathy with the noble Lord, Lord Evans.

Turning to the issue, I endorse entirely what the noble Duke, the Duke of Montrose, has just said: this was an extremely grave matter. The scale of spoilt ballot papers ruined the reputation of the elections in Scotland. It is very serious when the number of spoilt ballot papers in many constituencies exceeded the majority of the elected member. That is a disgraceful situation. It is why many of us pressed for a wholly independent inquiry into the conduct of the elections.

None the less, the Electoral Commission has taken this on board. Mr Ron Gould is well known to me—he is a Canadian expert with whom I worked in the International Institute for Democracy and Electoral Assistance in Stockholm—and I look forward to having a one-to-one meeting with him later this week when I will no doubt repeat my speech to him personally.

It is sensible that, for the inquiry to be properly conducted, it must be able to look at the ballot papers and see what caused this extraordinarily large number of spoilt papers. I fully endorse the Government’s decision to bring forward this order to enable Mr Gould and his colleagues to do that.

In my view, some of the theories about why there was a large number of spoilt papers are misplaced. After the noble Lord repeated the Statement in your Lordships’ House, there was a lot of criticism about the fact that the elections for the Parliament and the local authorities were held on the same day. However, that had happened before and we did not have the problem then, so that cannot be a real grievance. My own experience of going into the ballot booth was that the instructions on the ballot paper were extremely inadequate. I think that that will probably be discovered as one of the main reasons why there were so many spoilt papers.

As to the conduct surrounding the postal votes, I hope that one question the Electoral Commission will consider is why on earth some local authorities took it into their heads to subcontract the handling of the postal votes to an organisation south of the border. I have no prejudice against organisations south of the border but clearly they could not have the knowledge of the local geography that a local authority has. In my view, they had no business exporting responsibility for seeing that the postal votes were delivered to the right people. As I think I have mentioned before, my noble friend Lord Kirkwood, who lives a couple of miles away from me in the Ettrick Valley, was sent the ballot papers for a completely different ward, so the organisation handling this clearly did not understand the nature of the geographical boundary, and I do not think that that should be allowed to happen again. I know that that is going a bit wide of the order but it should certainly fall within the remit of the inquiry.

I am also seeking an assurance from the Minister that, in presenting the order, the remit of the Electoral Commission’s inquiry will be extremely wide. It should not just look at the issue of spoilt ballot papers—and I know that that will not be the case—but I want to ensure that it will genuinely look at the whole administration of the election.

When I first came into politics, party names did not appear on the ballot papers, and that was for a very good reason. Every time the returning officer declared an election, he said that we were elected to serve the people in such and such a constituency, so the ballot papers did not contain the party names. That was changed later and I understand why. It was for the convenience of, and to provide clarity for, the electorate. But now things have gone too far and we have sloganising on the ballot paper. I think that that was a contributory factor in the shambles of the Scottish election. Why should we allow someone to declare on the ballot paper that they are standing for Free Lollipops for the Masses (Liberal Democrat)? It appears that there is nothing to stop that happening.

Campaign slogans were introduced by Tommy Sheridan. He was the first person to use them in the previous election, and that was followed up very strongly by Alex Salmond. Most of the candidates who stood for the Scottish National Party put on the ballot paper, “Alex Salmond for First Minister”, even when they were standing for local elections. That made a complete nonsense of the whole local authority election. They did it partly because having a name starting with the letter A meant that he was at the top of the list every time, but it also caused confusion when it came to choosing between individual members and the party list system.

Therefore, I hope very much that the Electoral Commission will look at that process; it will probably mean taking back responsibility for registering political party names. Of course, if a political party is allowed to register itself under a whole series of names and then select the one that it thinks it might be advantageous to have on the ballot paper, that will be an abuse of the system. These wider issues have to be examined, and I am sure that Mr Ron Gould will do so if he is allowed. I hope that the Minister will be able to give us an undertaking that the inquiry will be thorough and widespread, and that this order is simply one small part of it.

The noble Lord, Lord Steel, has raised a number of extremely important points. I am only sorry that this debate is taking place in the Moses Room, because that the public need to know that the House of Lords is discussing the issue. I hope that we shall be able to have a further discussion when the order goes before the Chamber.

The point about sloganising in the name of the party is extremely important. People really resented this. Members of the Committee who were here at the time may remember when the ballot papers for the Scots Parliament election went through the House of Lords and we discussed it here in the Moses Room. We looked at the ballot papers and raised these points. I asked whether it was necessary for a party to call itself the same thing in different parts of Scotland. I received a letter saying that it was not. A party could put itself at the top with the letter A in one part of the country and lower down with another letter in another part. That is quite extraordinary. People in Scotland were horrified by what they felt was a performance worthy of a banana republic; that was said in a number of newspapers, and people living around me agreed. They were very embarrassed on Scotland's behalf that we should have such an ineffective system.

The reasons have all been given, but one incident was reported in several papers, although I have not confirmed it. A ballot box arrived from some remote polling station and, when it was opened, the ballot papers were soaking wet for some reason that nobody understood. It was reported that there were 400 more ballot papers in the box than votes had been cast at that polling station. That is very shocking if it is true, and the Electoral Commission needs to go into it.

The commission is right to want to be able to look at the ballot papers and deduce from its examination what actually happened. Having asked for this, the commission is pleased to see the order but it feels that two things are wrong with it. First, the commission can do this only if instructed by the Secretary of State. The commission is independent and does not want to be mixed up with politics. It would prefer the order to have been worded in such a way that it could do this under its existing powers. Why is it being done in this way? That is a big question. My last question was very small and I was horrified to hear that I was going to get a letter about it because nobody knew the answer. But this is a big question and I am sure that the Minister will be advised why it is being done in this way.

The other point that the commission makes, which my noble friend the Duke of Montrose has already mentioned, is that the Secretary of State can do this again and again under the order. The act that he is performing can be repeated—and not only can it be repeated but it is likely to have a knock-on effect for elections for other bodies. We do not want our electoral systems to be totally different or for their rights and wrongs to be totally different in different types of elections and different parts of the United Kingdom. So there could be a knock-on effect. The commission suggests that this could be a one-off order just for the circumstances of this time, and it will be interesting to know why that is not the case. It seems a much more sensible idea. Why does the Secretary of State have to give the instruction if it could be done by an independent commission with a different order to enable it to do that? Could it not be a one-off affair in any case?

I have some probing questions. The noble Duke, the Duke of Montrose, has highlighted the issue of whether this provision should have been founded upon Section 12(1)(a) of the Scotland Act or Section 12(1)(b). My understanding is that (1)(a) refers to electoral processes, while (1)(b) refers to irregularities. The elected representatives in Scotland expect this matter to be resolved by the Electoral Commission getting to the bottom of what happened. If any obstacle is put in its way, there will be a lot of dissatisfaction.

I declare an interest. The noble Lord, Lord Steel of Aikwood, and I were among the last three to be elected to the Scottish Parliament. We had to wait another 24 hours for, if I may say so, another substantial mistake at the polls. In fact, 2,000 votes were not even counted. When I wrote to the Secretary of State, John Reid, about that, he replied that he had no powers to intervene; he could do so only if there were a court action. Will the order make it less likely that people will have to contemplate court actions? I do not think the noble Lord, Lord Steel, Robin Harper, the first Green MSP, or I had any desire whatever to be involved in an expensive court action. As we were all convincingly elected, the only thing such an action could have proved is that one of us might have been elected before one of the others. As we all got in, that did not seem to matter to any of us. If in practice the order means that court actions would be less desirable and less frequent, that would be a service.

As these powers have been given to the Electoral Commission in Scotland but not in England, is that not an inconsistency? Is it not undesirable to have a different form of election north and south of the Border?

I could perhaps be forgiven for feeling a little sorry for myself. I do an order on the Companies Act 2006 and the noble Lord, Lord De Mauley, regrets that it is not being answered by my noble friend Lord Jones of Birmingham. I am then told by the noble Lord, Lord Steel, that he would prefer the Advocate-General to be answering these Scottish questions, and accuses me of having no genuine interest in Scotland. I have been spokesman for Scotland in your Lordships’ House for four years, I gather, although I thought it was five. I have an interest in Scotland and it is perhaps rather parochial to suggest that you can speak on Scottish orders only if you are Scottish.

I shall deal first with why the order is in Grand Committee, because the noble Duke, the Duke of Montrose, said he was unhappy about that. Notice was given on Wednesday 4 July of our intention to take the order in Grand Committee. The House agreed on 5 July to refer the order. We require notice from any party that is unhappy with a referral to give us the opportunity to consider how that can be addressed. We received no such notice until this afternoon. The order requires approval before the Summer Recess, so, if it is to go through—as I am sure we all want it to—it will unfortunately not be possible to take another route on it.

I will answer the questions I have been asked as best as I can. The noble Duke, the Duke of Montrose, and the noble Baroness, Lady Carnegy, asked why the order is not limited to the current election. A form of drafting providing the commission with access to ballot papers as part of its statutory review under Section 5 of the PPERA, along with a sunset provision limiting the order to the 2007 elections, was an option that we considered. On balance, however, the Government felt that if the commission were given access to ballot papers, the more prudent use of parliamentary time would be not to introduce legislation that applied only to these elections but to provide a mechanism capable of being used in the future, should that be necessary. This was a fine judgment, but we believed it to be correct. Ultimately, given that the order is subject to affirmative resolution, it will be for Parliament to decide.

I thank the Minister for giving way. The idea in his earlier statement that if this were done in two parts it would take up parliamentary time unnecessarily is a bit unfair. Surely the most important thing we do here is govern the democratic process, and that takes however much time it needs.

The point I was making was that there was ample time for any noble Lord or political party to object to the order being heard in Grand Committee in the Moses Room, but we received no such communication. I notice the noble Baroness is shaking her head.

I was in fact referring to the Minister’s comment in his earlier speech, when he said that it was to save time in Parliament that he was combining this with an ongoing piece of legislation rather than simply legislating on the one issue.

That is the point I made. Our view is that this is the appropriate way to proceed with the order. Clearly there is a disagreement here.

The noble Duke and the noble Lord, Lord Selkirk of Douglas, asked why the order is made under Section 12(1)(a) of the Scotland Act and not Section 12(1)(b). The provision is about how the election is conducted, but Section 12(1)(b) deals with the questioning of an election and consequences of irregularities. We are clearly not dealing with irregularities. Although at first sight the draft order might appear to be concerned with questioning an election, that phrase has a technical meaning in electoral legislation.

The 2007 order, which the draft we are debating will amend, adopts at Schedule 6 a provision contained at Section 120 of the Representation of the Peoples Act 1983. That provision relates to the method of questioning an election. It states that:

“No parliamentary election … shall be questioned except by way of”—

an election—


The Electoral Commission and Mr Gould’s review are not questioning the election, in that sense, but examining how the election was conducted. So we are satisfied that it is correct to find vires for the order in Section 12(1)(a) and not Section 12 (1)(b).

The noble Duke also asked: why UK extent? It is the same as the order it amends; the 2007 order has UK extent. He asked how access to the papers will be restricted. The order requires that copies of papers must be destroyed after scrutiny. Detailed arrangements will be for the commission and the sheriff clerks to decide. The noble Duke asked why this is not linked to a court order. It is true to say that the mechanism does not require a court order, but the instrument is subject to affirmative resolution that provides for the appropriate level of scrutiny.

The noble Lord, Lord Steel, wonders whether the commission’s review remit is wide enough. We believe it is. It is not limited to spoilt ballots; it will consider e-counting, postal votes, spoilt ballots and so on. The intention is that we fully review what happened and come up with the proper answers. There will then be an opportunity for discussion.

I beg your Lordships’ pardon, but I ask the Minister again: could he please write to us? I am slightly worried because he keeps saying that papers might be burned. Presumably the issue is that the papers should be returned to the sheriff’s officer, although some other papers may need to be burned.

They will be returned and it will be up to the sheriff’s office to decide what should happen to them. If there is more to say on this, we will write.

The noble Lord, Lord Steel, and the noble Baroness, Lady Carnegy, asked about party descriptions. Section 49 of the Electoral Administration Act 2006 provided for a registered political party to register up to 12 descriptions of six words or more to be used on nomination papers and/or ballot papers. Responsibility for registering party descriptions lies with the Electoral Commission. The criteria the commission has to follow in registering party descriptions is set out in the Electoral Administration Act.

The noble Baroness, Lady Carnegy, asked whether this order will set a precedent. The administrative problems faced in the 2007 Scottish elections dented public confidence—there is no doubt about that—and, in order to rebuild that confidence, we need to ensure that the commission’s review is detailed, thorough and has access to the information it needs, including ballot papers. Only in this way can we be sure to learn the lessons of the elections and be seen to be learning from them, which is very important. The order is limited to Scottish Parliament elections. Following the review, it is possible that the Electoral Commission may request that a similar power be written into electoral law relating to all elections. Such a request would, of course, be for Parliament to decide upon.

The noble Lord, Lord Selkirk of Douglas, asked whether this order will make it less likely that people will need to go to court to question a result. The order does not affect the general provisions relating to election petitions; instead, it is a response to particular circumstances.

If I have failed to answer any questions, noble Lords will receive letters, and copies of correspondence will go to everyone who has taken part in what has been an interesting debate.

On Question, Motion agreed to.