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Scottish Parliament (Elections etc.) (Amendment) Order 2009

Volume 712: debated on Wednesday 8 July 2009

Considered in Grand Committee

Moved by

That the Grand Committee do report to the House that it has considered the Scottish Parliament (Elections etc.) (Amendment) Order 2009.

Relevant Document: 17th Report from the Joint Committee on Statutory Instruments.

It may be helpful if I briefly set out the background to the order under consideration, which is made under Sections 12 and 113 of the Scotland Act 1998.

Last year, the then Secretary of State for Scotland announced his response to the Gould report on the 2007 Scottish elections. Following those elections, Ron Gould was invited to review what had caused the problems that occurred and make recommendations for improvements. This order, I am pleased to say, takes forward many of those improvements, including reverting to separate ballot papers for constituency and regional votes. The unacceptable number of rejected ballots in 2007 was caused in no small part by the fact that the two papers had been combined. The Government accept the rationale to revert to two papers, and this order effects that change.

Equally contentious was the use of what Gould called “naming strategies” on the regional side of the ballot paper. He recommended that, while parties should still be allowed to use registered descriptions on the regional ballot paper, this should be in a place secondary to the registered party name. We are making this change in the order, along with a change to the constituency ballot paper, where only the registered party name will appear—again, in line with the Gould recommendations.

As a consequence of this change, we have accepted the case for allowing for the prefix “Scottish” to appear in front of the registered party name. We envisage this being used when the registered party is a UK-wide party. It is our view—and, I understand, the view of all the other major parties—that this is less confusing to voters.

The order also removes the option of conducting an electronic count of ballot papers. The disruption and confusion caused by e-counting machines performing poorly in 2007 was well publicised. Ron Gould quite rightly recommended that they not be used again for Scottish Parliament elections until systems had proven themselves more reliable.

We are also extending the timetable for elections so that there is more time between close of nominations and polling day to allow for the efficient issue and receipt of postal votes. With more than 10 per cent of votes now being cast in this way, it has become more important than ever that those votes count. There were some delays with postal votes in 2007, which meant that some voters were not able to cast their vote, never mind being certain that their vote counted. We have accepted the Gould recommendation that more time is needed to ensure better administration of postal votes. There will now be 23 days between close of nominations and the poll, an increase of one week, which will bring these elections into line with European elections.

These changes, along with a small number of minor amendments, have been subject to wide consultation with electoral administrators, political parties and others. In accordance with the Political Parties, Elections and Referendums Act 2000, we have fully consulted the Electoral Commission. Voters have also been asked for their views on matters relating to the ballot paper.

I am happy to report that the changes we are making are broadly welcomed, and I commend the order to the Committee. I beg to move.

I thank the Minister for explaining the order in his very adept way. I can only say that it is July and we are back to considering Scottish elections once again. In July 2005, we had a lunch to discuss the Arbuthnott commission. In March 2007, the order was introduced which caused so much criticism as it came too late to be fully considered and implemented before the election that took place so that in July 2007, we had the Scottish Parliament (Elections, etc) (Amendment) Order, followed by the Gould report in October 2007. Now it is July 2009, and we are considering the Scottish Parliament (Elections, etc) (Amendment) Order 2009. With all the wonders of electoral innovation that we seem to be set upon in Scotland, it is proving to be rather a rocky road.

The measure before us seems to be a bit of a pick and mix from the Gould report. I am very glad to see the measures that have been adopted, such as the amendment allowing more time after the closure of nominations, the amendment for separate ballot papers and even the amendment laying down rather more exactly the names of the parties which will appear on the ballot paper and perhaps limiting the more creative efforts which emanated at one point. I think that one of the nomination papers had a candidate called “Alex Salmond for First Minister”.

Perhaps I have missed some of the procedures that have gone on in the mean time, but will the Minister tell the Committee the Government’s view about some of the early conclusions in the Gould report, one of which was the need to rationalise and consolidate existing legislation? There was also the recommendation that there should be a requirement that any change in the legislation should be in place at least six months before the elections in which they are to be implemented. Does the measure do anything, as requested by Gould, to clarify and define responsibilities that the principal players have in arranging elections; that is, Ministers and civil servants, returning officers and the Electoral Commission? It seems to me that the Gould committee was looking for a chief returning officer to be appointed with properly trained returning officers in each constituency. Have the Government considered this and what is their view? We must all applaud any measures that can be seen to tidy up the unholy mess that ensued from the May 2007 elections. To that extent, we welcome these measures.

I, too, give a general welcome to this order. I regularly used to tease the Minister’s predecessors whenever there was a Scottish order before us, and say, “Well, where is the Advocate-General?” We have a Scottish Minister of the House but some unfortunate Minister is always left to introduce Scottish orders. I repeat my query as to why the Advocate-General does not present these orders himself. However, relief is at hand because the Calman commission has recommended that administration of Scottish elections should be transferred to the Scottish Parliament, which is a long overdue reform. Therefore, I hope that this might be one of the last of these orders that we see in this House.

I entirely go along with three of the four purposes of this order; that is, increasing the time between the close of nominations and the date of poll from 16 days to 23 days, removing the option of having one ballot paper for both the constituency and regional polls, and removing the option of electronic counting. These all came out of the Gould report. I agree with the noble Duke that that is right and I look forward to hearing the answer to his queries about other aspects of the Gould report that do not yet appear in this order.

The one part of the order about which I am still slightly unhappy is the use of the registered party name on nominating papers. I do not think that the order goes far enough. It makes a modest improvement to remove what I thought was an abuse at the last Scottish elections. We had a discussion on this on an amendment that my noble friend Lord Tyler and I tabled to the Political Parties and Elections Bill on the Floor of the House on 17 June. What was interesting about that debate was that there was total unanimity on the Labour Benches, the Conservative Benches and the Lib Dem Benches that something more had to be done to stop what I call sloganising on the ballot paper.

The word used in the order is the same as that used in that Bill. It talks about a party description, but I do not believe that the Electoral Commission has properly interpreted what is a description as distinct from a slogan. The noble Duke gave us the example of “Alex Salmond for First Minister”. Unless we tidy this up, there is nothing to stop the Conservative Party, for example, at the next election running on the description “David Cameron for Prime Minister”. I find that objectionable on constitutional grounds. We do not have a presidential election system and I do not think that slogans of that kind should appear on the ballot paper. We have just had a European election where the BNP campaigned on the description “protect British jobs”, a slogan which has nothing to do with the real purposes of the British National Party. The Government and the Electoral Commission should look again at whether these slogans should be allowed on the ballot paper. It ought to be stopped.

The Minister who was on duty that day did not reply to the debate at all—he just read out his totally inadequate brief. At the end of it, though, was a crumb of comfort. He said:

“These matters are of course kept under review, and since this issue concerns the way in which those standing for election communicate with the electorate, it must be right that any change should be made in discussion with all those who have a stake in the electoral process”.—[Official Report, 17/6/09; col. 1121.]

I do not expect the Minister to be able to deal with this issue now, but we have the Third Reading of the Political Parties and Elections Bill tomorrow on the Floor of the House. I would be grateful if the Minister would take back to his colleagues the fact that there was no satisfactory response to the debate in Committee and that I intend to raise the matter again tomorrow on the Floor of the House. However, with that one caveat, I accept that we should agree to the consideration of the order.

Surely the order is to be welcomed. How are the Scottish ballot papers devised? How are they made up? How are they formulated? Can my noble friend offer any details of the process, because it is clear that that process was greatly deficient ahead of one particular national ballot? I do not think that such a ballot paper would have got by in Wales, but that is neither here nor there in this debate.

The helpful Explanatory Memorandum refers to erroneous references and superfluous references. In his capacity of representing the Scottish Office, can the Minister say whether the officials who devised the most bewildering of ballot papers have in any way been called to account? In the history of elections, constituency and regional, those who devised such ballot papers were surely the subject of some censure. How did chaotic papers such as these get past scrutiny? Were the returning officers involved? Did the Minister of the day see the ballot papers in their draft? I hope that these questions may lead to further information.

I should first declare an interest as a Member of the Scottish Parliament. Currently, I am the only Member of the Scottish Parliament in the House of Lords, although we have some distinguished former MSPs, including the former Presiding Officer of the Scottish Parliament, the noble Lord, Lord Steel, who carried out that job with great distinction. I shall pursue the line of argument that he pursued earlier, so we have today not only our service in the Scottish Parliament in common but our arguments.

The Scottish Parliament, conveniently for me if not for our Whip and our Minister, is currently in recess, so I am able to be here on a Wednesday afternoon, when the Scottish Parliament normally meets. I am afraid that during the time that it does meet, I go up to Edinburgh for the plenary sessions and the committee on which I serve. I am therefore pleased to be able to participate in this debate.

I agree with the noble Lord, Lord Steel, on two points. The separate ballot paper created tremendous problems. I know from participating and from the count the problems that it created. There was huge confusion when people got the two papers mixed up and it was not immediately clear even to seasoned campaigners and politicians what to do. I also agree about the timetable for postal votes. Again I declare an interest, having registered for a postal vote which I hope I will receive for the next election. The tight timetable created problems for returning officers, so that will be an improvement as well.

My only point of disagreement with the noble Lord, Lord Steel, is that I still have some doubts about transferring to the Scottish Parliament all responsibilities for elections to the Scottish Parliament.

The Calman commission does not in fact recommend that. It leaves the election process itself in the hands of Westminster, as provided for in the Scotland Act 1998. It talks about administration, and this is a purely administrative measure.

I accept that and we are in agreement. I am grateful for the correction. The one thing I am deeply disturbed about, and on which I am going to seek in even stronger terms than the noble Lord, Lord Steel, an assurance from the Minister relates to the terms of this order. What happened was a despicable and deliberate piece of deception by the SNP. It was disgraceful and I have not seen the like of it from any political party. The Liberal Democrats get up to one or two little tricks from time to time, the Tories have been known to do it and even the Labour Party has tried it in certain parts of the country, but I have never seen the like of this before.

I shall slightly correct the noble Duke by saying that it was not the one candidate, but all the candidates for the regional list in every region of Scotland who had as their party description, “Alex Salmond for First Minister”. Not only is that a manifest nonsense as a description of a party and not only was it sloganising and propagandising, but it was chosen so that the SNP would be the first party in the list because the name “Alex Salmond” begins with an “A”. Alex Salmond said that the SNP could not be doing it for that purpose, “because my mother would not have realised that we were going to be standing in these elections when I was born 58 years ago”. But that was not the point. The fact is that Alex Salmond saw the opportunity to use his name as a description and took it, and the SNP would do it again if it had the chance. That is why I have reservations about any suggestion that total responsibility should be passed to a Parliament where he is still the First Minister.

I seek a clear assurance from my noble friend, and if he cannot give one to me today, I concur with the noble Lord, Lord Steel, that we should get it tomorrow or some time soon from the Advocate-General. Indeed, I would like to see the Advocate-General here, since he is paid quite a lot, as I keep reminding him. However, that is in no way to say that my noble friend Lord Brett is not an entirely adequate person to deal with this. However, it would be useful if the Advocate-General or indeed the Secretary of State himself in another place could give a clear, written guarantee that the provisions of this order will stop the abuse that the SNP carried out last time. I am not absolutely sure that it will because I think that ways around it can be found and that the noble Lord, Lord Steel, is correct in his suspicions.

I am sure that the Minister understands our concerns. If he is not able to give us an absolute assurance today that this practice will be eliminated, I hope that he will find an opportunity to do so through one of the other Ministers on another occasion.

I thank all noble Lords who have contributed to what has been a fascinating debate. We all start from the premise that everyone sees the Scottish elections in 2007 as being less than perfect in a number of ways. That is what the Gould report was commissioned to look into and what the government recommendation, through this order, seeks to put right.

I shall deal first, because it is a procedural matter, with the question of the Advocate-General. I am sure that he would have shown even more enthusiasm than I have, had he been able to, but he is representing Her Majesty’s Government at an important court case in the High Court of Justiciary in Edinburgh, which is why your Lordships have a poor substitute in myself.

The noble Duke, the Duke of Montrose, made a good point when he asked when we are going to have some rationalisation and consolidation of this. A full consolidated version of the elections order is being put together and is in an advanced form. We hope to put it in place six months before the 2011 elections. I hope that that will meet some of those concerns.

A number of questions were asked about the Gould report and the aspects that were not accepted, including the question of adopting a returning officer. We can go through them as they are quite easy to deal with. Gould recommended moving to a daytime count. We have heard many complaints about the 2007 elections, but I do not think anyone has made the argument that the overnight counting was responsible for any of the confusion.

We believe that a randomised order on the ballot paper would be confusing to voters. We consulted widely—we even used the dreaded focus groups to find out what people thought about it—and there was a confirmed preference for keeping the alphabetical list and trusting politicians’ mothers when it comes to giving their children names that begin with an early letter in the alphabet. No, that last part is not a serious point. The main recommendations have been confirmed in this order and, I hope, subject to the questions that I am now seeking to answer, command your Lordships’ support.

A number of questions were asked by my noble friends and the noble Lord, Lord Steel, about devolving powers for Administrations. The Government have established a steering group that will look at the recommendations made by the Calman report, and we will consider this recommendation as part of that process.

One learns very quickly, in what in my case will probably be a short political career, that giving assurances is easy to do but difficult to recant. I will therefore resist the temptation to give any assurances, other than that I will ensure that this debate will be made known to my colleagues so that, in any discussions that take place tomorrow on another Bill, they will be well aware of the points that are being made.

My noble friend Lord Jones asked whether Ministers saw the ballot paper in draft. They saw early samples but not the final versions, which were prepared under the auspices of the Electoral Act 2007 steering group and the e-counting project board.

One always wants to be able to say, “It wasn’t my fault”, but I have a horrible feeling that the first drafts were presented to a Committee such as this. One had so little knowledge about how to organise a ballot paper that one was not able to exercise any judgment on them. As has been said, one would like to know the people who designed these ballot papers.

The Minister talked about a consolidated order being brought forward before the next election. It would be interesting to know, in answer to another of my questions, whether there would be more definition of who has responsibility in drawing up these ballot papers and orders.

That is a question to take on board, and we must ensure that when we produce those orders they seek to answer it. No doubt that question will be posed again if the upcoming proposals do not clarify that to a greater degree.

On the question that my noble friend Lord Foulkes asked about deception on ballot papers, I make the point that in responding to the consultation on this order, all the political parties have essentially put their name to it—I say that; actually, I do not think that the Liberal Democrats have responded, but all other parties did—so they are signing up, as I see it, to what we are seeking to do. One can but trust in the veracity and honesty of political parties. I have noticed, both in the noble Duke’s contribution and in the earlier contribution from my noble friend, that sometimes confession is good for the soul. After confessing that we did not get it right in 2007, we hope to be in a position to get it much closer to being right—or 100 per cent right if we can—in 2011.

Sloganising was also mentioned. In fact, under the Political Parties, Elections and Referendums Act 2000, which sets out how the Electoral Commission should determine what descriptions can be registered, the commission will receive ballot papers and designs before any future election. We hope that those proposals will be provided in the near future.

If there are any further questions or if I have missed any points, I will happily respond to noble Lords in writing.

I thank the Minister for his responses. I have been in touch with the Electoral Commission about the descriptions on the ballot paper. The commission answered that it could not do anything about that because it is in statute, but the Minister has just quoted the statute. The Government, on the other hand, say that trying to tighten the role would create difficulties for the Electoral Commission. All I repeat to the Minister is that I was pleasantly surprised in our debate last month on the Floor of the House to find that there was universal concern about this matter. The Electoral Commission and the Government have not yet got it right, and I hope that they will have the chance to get it right in future.

Shall we assume that in the counties of Scotland, local government officials were engaged in drawing up the ballot papers and that they were content before the ballot papers were finalised?

I understand that to be the case. The only other recommendation made by the Gould review that is not being adopted is having a chief returning officer. We want to strengthen the board approach rather than the individual approach.

I assure noble Lords that the points that have been made will be taken back to my department, and I will seek further information on the noble Lord’s question about the circularity between the statute and the Electoral Commission.

Motion agreed.