Scottish Elections (Representation and Reform) Bill Stage 1 debate: Briefing for MSPs

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.  
  • We welcome the Stage 1 report on the Bill from the Standards, Procedures and Public Appointments Committee which endorses a number of recommendations which we made to them in our evidence on the Bill.
  • 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.
  • This briefing sets out some recommendations for the Scottish Government as well as some of our views on specific provisions within the Bill. 

Our general recommendations

  • The Scottish Government will need to ensure that electoral administrators are properly supported and resourced 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). 
  • All legislation, whether primary or secondary, should be in place as early as possible – at least six months before it is required to be implemented or complied with by campaigners or electoral administrators. This is a well-established principle of effective electoral administration that is widely supported by the electoral community. For example, any legislation relating to third party campaigners will need to be clear by January 2025 to enable us to develop a Code of Practice; consult Parliament and campaigners on the Code; and lay it in Parliament by the end of June 2025 – six months before the regulated campaign period for the Scottish Parliament elections commences.  

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 made clear by June 2025 for parties and independent candidates to familiarise themselves with the rules ahead of the next relevant election and for the Commission to update our guidance to support them.  

Scottish disqualification orders

  • The provisions in the Bill would disqualify from standing for electoral office anyone found guilty of harassing those involved in the electoral process – whether as candidates, campaigners or election staff. This would strengthen the deterrent against such behaviour.  
  • 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.  
  • The proposed change will provide some safeguards for 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. 

Campaign finance

  • These provisions will bring 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.  
  • 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 arising from the Bill (and those from the UK Elections Act 2022) and share any findings with the Scottish Government.
  • Under the proposals in the Bill, 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.
  • We will continue to provide guidance and advice to help the regulated community understand and comply with any changes in 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. 

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 integrity and impartiality of 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. 

Election pilots and democratic engagement

  • The proposals in the Bill should support efforts to engage more people in Scottish democracy.
  • 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. The provisions in the Bill could provide a useful opportunity to test out new approaches.  
  • 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.
  • 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 on 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.
  • The proposals in the Bill would ensure that the year-round regime of the UK Elections Act measures continue 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. 

The Electoral Commission five-year corporate plan

  • The proposals in the Bill would provide more clarity to Parliament on the Electoral Commission’s planned activities in relation to our devolved functions and enable more effective scrutiny of our performance in the five-year period following each Scottish Parliament election.  

Electoral Management Board for Scotland

  • This part of the Bill provides for a change of status for the EMB from a statutory committee to a body corporate. We support these measures.
  • 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.