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.

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.

Page history

Cyhoeddwyd gyntaf: 11 Mawrth 2024

Diweddarwyd ddiwethaf: 25 Mawrth 2024