Evidence to the Scottish Parliament’s Standards, Procedures and Public Appointments Committee on the Scottish Elections (Representation and Reform) Bill
Response overview
The Electoral Commission is the independent body which oversees elections and regulates political finance in the UK. We work to promote public confidence in the democratic process and ensure its integrity. The Commission was set up in 2000 and reports to the Scottish, UK and Welsh parliaments.
This response sets out our views on the Scottish Elections (Representation and Reform) Bill. We have responded to the provisions that are directly relevant to our work. We have also considered some measures which were highlighted in the Scottish Government’s consultation on electoral reform, but which do not form part of this Bill. The Policy Memorandum to the Bill indicates that some of these measures will be introduced via secondary legislation.
If the Bill is passed into law, we will work with the Scottish Government, electoral administrators, campaigners and voters to ensure that everyone who participates in elections understands and is prepared for the changes being introduced. We will provide guidance for electoral administrators and campaigners to ensure they are able to comply with the law.
Implementation of reforms
The Scottish Government will need to ensure electoral administrators have sufficient capacity and resource to deliver these reforms. Concerns about resilience in the electoral administration community have been clearly set out by the Commission in our reports on recent elections in Scotland, and the wider UK, and continue to be raised by Returning Officers (ROs), Electoral Registration Officers (EROs) and the Electoral Management Board for Scotland (EMB). Implementation of the Scottish Government reforms will overlap with ongoing work to deliver reforms arising from the UK Government’s Elections Act 2022.
Implementation of the changes will need to be carefully planned and managed so that they can be delivered as intended. Ineffective delivery of such major change – for example, if there is not sufficient time to plan or the required resources are not available – could lead to errors or an inadequate experience for voters or campaigners. This could in turn damage confidence in the integrity of future elections.
Any legislation, whether primary or secondary, should be clear at least six months before it is required to be implemented or complied with by campaigners, ROs or EROs. This will be essential to support effective planning for and delivery of the changes, including preparing any amended guidance for electoral administrators and campaigners. For the 2026 Scottish Parliament election this would be at least six months before the regulated period for campaigners which commences in January 2026.
Consolidation of electoral law
This Bill, alongside any secondary legislation, will increase the body of already complex devolved electoral law in Scotland. We continue to recommend that the Scottish Government set out a plan to consolidate, simplify and modernise the many existing sources of electoral law as recommended by the law commissions of Scotland, England and Wales to minimise the impact of further reform on the resilience of the electoral community. We note that the Welsh Government has already committed to consolidating electoral law and the Commission stands ready to support the Scottish Government to take forward this vitally needed programme of work.
Candidacy rights
Clauses 1 and 2 of the Bill extend candidacy rights at Scottish Parliament and council elections to those with limited leave to remain in the UK. It is not for the Commission to take a position on changes to eligibility for candidates at elections as this is a significant policy matter for Parliament to decide. Where changes are made, we will work with the electoral community, including campaigners, to ensure they are implemented effectively.
It is important that potential candidates and ROs understand the different legal requirements which must be met to stand as a candidate at different elections in Scotland. The Scottish Government will need to ensure that any changes are introduced in sufficient time for parties and independent candidates to familiarise themselves with the rules ahead of the next relevant election so the Commission can update our guidance to support them.
Scottish disqualification orders
We support the change set out in this Bill to disqualify those who have been found guilty of harassing those involved in the electoral process – whether as candidates, campaigners or elections staff – from standing for electoral office. This provision would strengthen the deterrent against such behaviour and also align with the sanctions available for UK Parliament elections.
Following the 2022 Scottish council elections we carried out research with candidates and agents. A notable minority (44%) of those who responded to our survey told us that they had experienced some kind of problem with threats, abuse and intimidation at those elections. Our research with candidates in other parts of the UK in 2022 found similar levels of concern.
Our research in Scotland found that:
- Of those that said they experienced some kind of abuse, the most common sources were verbal (55%) and online (53%).
- Over four in five of those reporting abuse (84%) said that it came from members of the public. Three in 10 (31%) said it was from an anonymous/unknown source, while one in 10 (11%) received threats or abuse from other candidates.
- One in 10 (10%) who experienced threats or abuse said that their experience(s) would discourage them from standing as a candidate in the future.
This change is an important first step towards safeguarding the safety of candidates, campaigners and election workers at elections. However, given the majority of abuse and intimidation reported in our survey came from members of the public who may have no intention of standing as a candidate, wider action will be required. Tackling this issue will require coordinated action from a range of partners across the electoral community, including political parties and campaigners themselves as well as police forces and prosecuting authorities.
Campaigners should recognise the impact their choices have on how the public views our democratic system. They should actively discourage the use of inflammatory language and emphasise the importance of respect and constructive engagement with opposing viewpoints. Political parties should consider reviewing their membership criteria to include a clause explicitly emphasising respect for other campaigners and fostering a healthy political debate. The police and prosecutors must continue to treat allegations and cases of election-related intimidation seriously and demonstrate that those committing offences against candidates and campaigners will face significant sanctions.
We will continue to work with parties, campaigners, the police and prosecutors, and the wider electoral community to understand what is driving this intimidatory behaviour and collectively develop effective responses to ensure that campaigners can get their messages across to voters openly and directly without fear of intimidation.
Campaign finance
These provisions will bring several campaign finance laws for Scottish devolved elections in line with the equivalent changes for reserved elections which were introduced by the UK Elections Act 2022. Maintaining consistency across different types of elections in Scotland should make it easier for campaigners to comply with the law. We will continue to provide guidance and advice to help the regulated community understand and comply with the law. We will also continue to monitor the impact and implications of these changes in order to inform any further updates to our guidance or recommendations for changes in legislation.
Notional expenditure
The laws on notional spending ensure that campaigners properly account for and report all goods, services and materials that are donated to them, and which are used to help with their campaign activities.
There is a considerable level of notional spending reported by candidates at elections. Notional spending reported by constituency and independent regional candidates at the 2021 Scottish Parliament election was £1,587,497.82, amounting to over half (52.28%) of all reported spending by constituency and independent regional candidates.
Candidates, agents and party or campaigner staff must understand what should be reported as “notional spending” or “election expenses” as it counts towards their total campaign spend, which must not exceed the specified spending limit. If this provision is enacted, we will monitor the practical impact of the changes in the Bill (and those arising from the UK Elections Act 2022) and share any findings with the Scottish Government.
We will continue to provide guidance to support the regulated community to understand and comply with the law. If the law is amended for notional expenditure at Scottish devolved elections, the Commission would also consider whether it could develop a statutory Code of Practice on candidate expenses under our existing powers to provide further clarity about notional spending and spending under local non-party campaigner laws. The Commission would need sufficient time to prepare and consult on any Code, ahead of the laws coming into force.
Overseas campaigners
Our recent public attitudes research highlighted concerns about the risks of foreign interference. When we asked people to prioritise their concerns from a list of issues, two fifths (40%) said “foreign interference on UK elections results” was a problem.
During the regulated period before an election, only specific categories of individuals and organisations would be allowed to spend more than £700 on activities that are intended to influence the election outcome. This would be a significant reduction from the current limits for unregistered campaigning, and would introduce a new principle that campaigners are subject to eligibility criteria even when they are not required to be registered.
The Government should set out how it intends the restrictions on overseas spending to be enforced. We are not able to take any enforcement action against organisations or individuals outside the UK that don’t follow the law. Criminal law enforcement bodies are also limited in the action they can take against people or organisations based overseas.
Order making power for Ministers
We note that Scottish Ministers will have an order making power to add, change or remove permitted categories of non-party campaigners for devolved Scottish elections. This would enable future flexibility to respond to the emergence of new categories of campaigners to ensure that legitimate campaigners are not prevented from engaging in democratic debate. However, it will be important to consider the potential for confusion about campaigner rules in the event that any changes only apply for Scottish devolved elections and not at reserved elections.
Ministers may only remove or vary a description of a third party if this on the recommendation of the Commission, which would build in some safeguards to prevent the politicisation of the process. However, we note that Ministers can make regulations to add to the list without any Commission recommendation.
Code of Practice on third party expenditure
We agree that the Commission should be able to provide a Code of Practice for non-party campaigner expenditure at Scottish devolved elections. This Code would support campaigners by providing a clearer statutory basis for non-party campaigners to understand the law and offer assurances that if they have followed our Code, they will have complied with the law. The proposed consultation process differs to that set out in the UK Elections Act 2022 and the Elections and Elected Bodies (Wales) Bill currently before the Senedd, in that the Commission would be required to consult the Scottish Parliament as a whole, rather than an independent committee of Parliament (the Speaker’s Committee in the UK Parliament and the Llywydd’s Committee in the Senedd). This in itself is not a concern to the Commission but, as noted above, it is vital that any legislation is in place in sufficient time for us to consult Parliament and consider any views before laying our Code.
Rescheduling of elections
We recognise the importance of having a backstop provision for responding to any unanticipated events – such as a public health emergency – particularly in light of the impact of the Covid pandemic. However, certainty around elections is of critical importance to the confidence of voters, campaigners and electoral administrators. Scheduled polls should only be postponed in very exceptional circumstances when no alternative options are available, and the process of decision making should be fully transparent and command the confidence of all those involved in delivering and participating in electoral events, particularly voters.
We agree that the requirement for the decision taker (whether Presiding Officer, Convener of the EMB or local RO) to consult with the Convener of the EMB and the Electoral Commission in advance of any decision should provide useful reassurance to the public, campaigners and administrators on the decision-making process. For transparency purposes, we recommend that where a decision has been made to postpone the poll, or equally not to do so, the responsible person should be required to publish the advice they have received and a statement on the factors they considered when reaching their decision.
Consideration should be given to any impact from postponement of the poll on both the elections timetable and the regulated spending periods before any poll. The Commission will work with the Scottish Government and the EMB to consider these matters in more detail.
Postponement of local government elections
Paragraph 118 of the Policy Memorandum to the Bill envisages that a delay to local elections may take place with “two scenarios in mind” – these include the “demise of the Crown or a terrorist attack”.
We would welcome confirmation from the Scottish Government that this power is not restricted to the two scenarios listed in the Policy Memorandum and could be used to respond to other major disruptive events such as a cyber-attack or extreme adverse weather conditions. An example to support this measure is the 2018 Clackmannanshire local government by-election in 2018 where the RO was required by law to run the poll on a day in which the government was advising residents not to leave their homes due to the severe snowstorm.
Election pilots and democratic engagement
We support any efforts to increase opportunities to engage more people in Scottish democracy, including those set out in the Bill.
Pilot schemes
We welcome the extension of the ability to propose electoral pilots to Scottish Ministers, the EMB and EROs, alongside ROs, as set out in the Scottish Local Government (Elections) Act 2002. We recommend amending the 2002 Act to make explicit that electoral registration pilots fall under the scope of the legislation.
The Commission has made a number of recommendations about the urgent need to reform electoral registration in the UK in our recent report on the completeness and accuracy of the 2022 electoral registers. Our research shows that the quality of the registers could be improved, and the process streamlined, if the UK’s governments provided administrators with greater access to public data.
An improved, joined-up electoral register would:
- Use trusted public data to keep itself accurate and complete throughout the year without relying solely on action by individuals; and
- Make it as easy as possible for people to ensure their own registration record is accurate and complete, particularly ahead of elections and referendums.
More digital methods of using existing public data could also help address some of the specific challenges. For example:
- Regular access to reliable data about recent address changes from other public services would allow EROs to make contact directly with people who have recently changed address (including those who move frequently).
- Integrating electoral registration applications into other public service transactions could make it easier for individuals to keep their registration details up to date and accurate. This could be particularly effective for people who are already updating their details with other organisations.
We note that the Elections and Elected Bodies (Wales) Bill currently before the Senedd includes proposals for more automated and automatic forms of electoral registration and we would welcome a similar commitment from the Scottish Government.
We also note that the proposals in the Scottish Government’s Bill require that Scottish Ministers, the EMB and any relevant RO or ERO be consulted when a pilot scheme is proposed. We strongly recommend that the list of statutory consultees be expanded to include the Electoral Commission to ensure that we can advise on whether the proposed pilots deliver potential advantages for voters, campaigners and electoral administrators and whether the design of the pilots is likely to provide robust evaluation findings.
Funding to increase democratic engagement
The Bill creates a power for the Scottish Government to provide grants and financial assistance to organisations which are working to increase democratic engagement. This would build the capacity of civil society to increase registration amongst under-registered groups and those who experience barriers to participating.
The ability of the Commission and others in the electoral community to reach under-registered communities is highly dependent on working through partner organisations which provide face-to-face support for these communities. Some civil society organisations, including those representing refugees and other migrant groups, have raised concerns with the Commission about the capacity of their organisations to support this area of work without additional resourcing.
Any grant scheme the Scottish Government establishes for democratic engagement projects should be informed by the Commission’s electoral registration research, to ensure it is basing its allocation of funding on evidence about under-registration. We also recommend that an independent panel is involved in the selection of recipients for any grant funding.
The Welsh Government launched its Democratic Engagement Grant in 2023, which makes available £300,000 for Welsh charities, not-for-profit organisations and local authorities to apply for each year. The Commission works closely with recipients of the grant funding in Wales to support and inform their democratic engagement projects and would engage with recipients of any equivalent Scottish Government funding in the same way.
We would welcome a discussion with the Scottish Government on how democratic engagement funding could be delivered, including how the Commission’s research could be used to ensure any funding provided is as impactful as possible, and to ensure duplication with the Commission’s work in this area is avoided.
Digital imprints
The Proposals in this Bill would revoke the existing Scottish devolved legislation in digital imprints but apply an additional ‘bolt on’ provision on top of the UK Elections Act to capture more campaigners publishing unpaid or ‘organic’ digital election material relating to Scottish devolved elections.
Digital campaigning accounts for an increasingly large proportion of spending reported by campaigners after elections. Requiring campaigners to include imprints on digital campaign material delivers greater transparency for voters, and helps improve public confidence in digital campaigning at elections and referendums.
As the Committee is aware, the Scottish Government introduced new digital imprint requirements ahead of the 2021 Scottish Parliament election which apply to all devolved Scottish elections. The UK Government’s Elections Act introduced digital imprints requirements for all UK elections and campaign activity which came into force in November 2023.
The UK Government regime is broader than the existing Scottish law in two ways:
- The UK Government’s digital imprints regime applies throughout the year, whereas the Scottish rules apply to the period before Scottish Parliament elections and council elections.
- The UK Government’s regime has a wider definition of material requiring an imprint because they require campaigners to include imprints on digital ‘political’ campaign material that promotes a party or candidate. The existing Scottish law covers only ‘election material’ that promotes success at Scottish Parliament or Scottish council elections.
In these two ways, the UK Elections Act provisions to extend imprint rules could offer more transparency than the current Scottish approach. However, the existing Scottish law is wider and provides greater transparency in one specific aspect, in that a digital imprint is required on all kinds of election material, including both paid and unpaid material from registered and unregistered campaigners, with some limited exceptions for personal opinion. Under the UK Elections Act, only paid-for political material by unregistered campaigners requires an imprint.
We are in support of the proposals in the Bill. These would ensure that the year-round regime of the UK Elections Act measures continues to apply, avoiding the risk of separate legislative regimes applying to the same offence, which risks confusion for campaigners, regulators, and prosecutors. It would also provide additional transparency in advance of Scottish devolved elections to require the need for digital imprints on unpaid material published or promoted by campaigners who are not registered as non-party campaigners. This will have implications for our guidance and outreach work with campaigners and Police Scotland and it is important that the changes are in place in sufficient time for us to address this.
The UK Elections Act provisions include a ‘take down’ provision where an offence has been found and there is no equivalent provision for the additional Scottish controls. We would support the same enforcement tools for Scotland, as available across the UK.
Electoral Commission guidance
Clause 41 of the Bill requires the Electoral Commission to prepare guidance on the application of the measures in the Bill which must be submitted to Scottish Ministers for approval. Both the Electoral Commission and any constable must have regard to this guidance once approved. This guidance will give an important protection to campaigners who have followed the guidance.
While we have some reservations about whether it is appropriate for the Commission to give guidance to police forces about how they should discharge their enforcement responsibilities, we have already consulted on and issued statutory guidance under the equivalent duty in the UK Elections Act 2022. It is unclear how guidance issued under this Bill will interrelate with the statutory guidance already approved by the UK Parliament, and we will work with Scottish Government officials to further explore the implications of this requirement.
Boundaries Scotland
This relates to the timing of Boundaries Scotland’s reviews of local government boundaries and is a matter for Boundaries Scotland to comment on. However, the timetable for consideration of any boundary recommendations will need to ensure that boundaries are settled in sufficient time for administrators, candidates and parties to plan and campaign for any scheduled Scottish Parliament or council election, including any resulting reviews of polling places or polling districts.
The Electoral Commission
We support the proposals in this Bill which would make the Electoral Commission fully accountable to the Parliament which has legislative responsibility for the work set out in the five-year plan.
We note that the arrangements in the Bill differ to those in place for the Speaker’s Committee in the UK Parliament and the Llywydd's Committee in the Senedd. The Bill states that the Scottish Parliament Corporate Body (SPCB) may propose changes to the plan; however, it is for the Electoral Commission to consider whether to incorporate these recommendations and to lay the final plan in Parliament (including outlining the reasons for any deviations from the SPCB’s recommendations). In both the UK and Welsh parliaments, the respective committees to which the Commission accounts are responsible for making any modifications to the five-year plan before laying it themselves.
We are content with the arrangements proposed in the Bill, however, we would welcome the Committee’s views on them.
Electoral Management Board for Scotland
This Part of the Bill provides for a change of status for the Electoral Management Board for Scotland (EMB) from a statutory committee to a body corporate. We support these measures.
The EMB was first established in 2009 and its role has been set in statute for Scottish council elections since 2011 and for Scottish Parliament elections since 2020. Over that period, the EMB has continued to make a positive contribution to the effective delivery of elections and referendums in Scotland through the provision of advice, support and challenge to Returning Officers (ROs) and Electoral Registration Officers (EROs).
At devolved Scottish elections the Convener of the EMB has used their power to direct ROs and EROs in the discharge of their responsibilities to ensure a consistent standard of service for voters. This has been undertaken in the interests of the voter and helps maintain the high levels of satisfaction amongst voters we consistently find in our post-poll surveys.
Given the concerns about the resilience of electoral services highlighted earlier in this response, we continue to support further steps to ensure that the legal status and funding of the EMB are developed in such a way that it could undertake the management roles it was initially envisaged it would undertake, such as providing oversight of the procurement and delivery of any e-counting solution for council elections. This could also include exploring the scope for the EMB to provide further consistency in electoral administration and improved service to voters by considering any efficiencies and cost savings in procuring services and goods on behalf of ROs, such as through the centralisation of print contracts for ballot papers and other election stationery.
The EMB is currently reliant on the goodwill of councils to support many of its activities. Developing its legal status would enable it to employ staff and contract services directly, enabling it to respond quickly to any unscheduled polls.
Irrespective of legislative change, the EMB should develop its role in providing mentoring and support to ROs and EROs across Scotland to ensure that knowledge and confidence in delivering electoral processes is not affected by the turnover of senior council officers.
Any expanded role for the EMB would require additional support for the Convener. We therefore support the proposal to appoint a Deputy Convener.
While the clauses in the BilI, if passed, will enable the EMB to be set up as a body corporate, further consideration will need to be given to the financing and oversight of the EMB to ensure that it is not only operationally independent of government but also perceived to be to ensure confidence in Scottish elections. This will include consideration of how the EMB is financed.
The Electoral Commission has been working closely with the EMB and government officials to consider the implications of the changes proposed in the Bill and will continue to support these discussions through any transition into a body corporate.
Further measures
There are some further areas which are not included in the Bill. Some were raised in the Scottish Government consultation on electoral reform, and some are highlighted in the Policy Memorandum to the Bill as being earmarked for introduction through secondary legislation. We raise these here as they may be of interest to the Committee in its consideration of this Bill.
The Scottish Government consultation on electoral reform discussed a proposal for free campaign mailings for candidates at council elections. The Policy Memorandum to this Bill suggests that these measures may be brought forward in secondary legislation.
In our response to the consultation we highlighted both the potential advantages for voters in accessing information about candidates along with the potential impact on councils if they were tasked with delivering these proposals. Any proposals for councils to manage the delivery of candidate information to voters would have a significant impact on their resources and we believe that any proposals should be debated by Parliament and set out in primary rather than secondary legislation.
The consultation document suggested that one potential way would be for councils to opt in to authorising and funding a free mailing from candidates to each voter or household. This could lead to an inconsistency of experience for both voters and campaigners participating in council elections across Scotland. Consideration would also need to be given to the transparency of the decision-making process at council level to ensure that it could not provide advantages, perceived or otherwise, to one set of candidates over another.
In addition to the consideration of printed freepost mailings, the Scottish Government should also explore the use of digital routes to provide voters with information on candidates. This could help to futureproof the process and help alleviate any environmental impacts.
Whether limited to councils who opted-in or in place for all councils, if free candidate mailings were to proceed through secondary legislation then wider consideration would need to be given to the considerable logistical, environmental and financial implications of managing the review, printing and distribution of election addresses. This work would need to commence immediately in order for councils to deliver this policy at the 2027 Scottish council elections.
The Scottish Government consultation on electoral reform also considered the changes made in the UK Elections Act 2022 to improve the accessibility of elections. The Scottish Government consultation set out a proposal to amend the rule requiring only a specific form of Tactile Voting Device to be provided in polling stations, to allow more flexibility and ensure the accessibility support offered can be adapted to take account of future innovations. It also intended to place a duty on the Electoral Commission to provide guidance that includes minimum standards.
The Electoral Commission supported this proposal as we believe it would improve the range and quality of support available to voters. Introducing similar rules for devolved and reserved elections would also make it easier for people to understand the support they can expect when voting, and less complex for electoral administrators to deliver.
We believe that any duty for the Commission to provide guidance will need to be set out in primary legislation and we are in discussions with the Scottish Government to enable this. This would also ensure that the Commission’s role could not be amended or removed via secondary legislation without full parliamentary scrutiny.
The Scottish Government consultation asked for views on clarifying the offence of undue influence at elections. We supported this proposal, having consistently called for the offence of undue influence to be clarified, as it is a complex offence that is not easily understood by voters, and we welcomed the provisions within the UK Elections Act 2022 to deliver this change. Clarification would provide voters with more meaningful protection against exploitation and make clear what is and is not acceptable behaviour. It would also make it simpler for the police to act when allegations of undue influence are made.
We would welcome confirmation from the Scottish Government about its intentions on the undue influence offence.
As the Committee will be aware, the UK Elections Act 2022 introduced an online absent vote application (OAVA) system. Currently the system can only enable online applications for postal votes at reserved elections; applications for postal votes at Scottish devolved elections continue to be made on paper postal vote application forms.
An online absent voting application system should improve accessibility by making it easier for people to apply to vote by post. It should also result in improvements in efficiency for administrators – for example, by reducing the time taken to process applications.
We have recommended that the Scottish Government work with the UK Government to ensure that the online system is also available for those applying for a postal vote for devolved Scottish elections. At the latest, this should be in place for the commencement of the 2025 annual canvass in order that voters can easily obtain a postal vote for the 2026 Scottish Parliament election.
We understand that the Scottish Government is in discussion with the UK Government about enabling this change and clearly defined plans should be brought forward immediately in order that administrators are able to deliver the changes in good time for the next Scotland wide election.
The Commission has consistently recommended that the qualifying circumstances for appointing an emergency proxy should be extended, so that those who have unforeseen caring responsibilities or who have experienced the death of a close relative would also be eligible for an emergency proxy. Under current law, where a voter is incapacitated by ill health or an accident after the deadline to apply for a normal proxy vote, the individual would qualify for an emergency proxy on medical grounds but anyone caring for them, or accompanying them for medical treatment, would not. This is of particular concern in island and rural communities where a person may have to travel a considerable distance for medical treatment elsewhere in Scotland.
This issue was consulted on by the Scottish Government but does not form part of this Bill. We would be keen to have a commitment from the Scottish Government to take this proposal forward whether by primary or secondary legislation.