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

• 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). 

Early legislation implementation

• 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. This will enable us to develop a Code of Practice, consult Parliament and campaigners, and lay it in Parliament by the end of June 2025 – six months before the regulated campaign period for the Scottish Parliament elections commences.  

• 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.

Clarity on eligibility and guidance timeline

• Potential candidates and ROs must understand the different legal requirements for candidacy at different elections. 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.  

Harassment disqualification provision

• 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.  

Need for broader action

• 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 across the electoral community. This includes political parties, campaigners, police forces, and prosecuting authorities.

Alignment with UK Elections Act

• 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.  

Reporting campaign spending

• 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.  

Enforcement

• 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.

Monitoring and guidance

• 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. 

Emergency powers and public confidence

• 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 election dates is vital for the confidence of voters, campaigners, and administrators. Scheduled polls should only be postponed in very exceptional circumstances when no alternative options are available. 
• 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.  

Decision-making transparency

• 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.

Impact on timetables and spend limits

• 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. 

Extending pilot powers

• 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. 

Improving registration

• 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 register quality could be improved. The process could also be streamlined if administrators had greater access to public data. The provisions in the Bill could provide a useful opportunity to test out new approaches.  

Democratic engagement funding

• 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.

• The Bill would revoke current Scottish legislation on digital imprints. It would also apply a ‘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. This will avoid 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 Bill would provide Parliament with greater clarity on the Commission’s planned activities. This would enable more effective scrutiny of our performance in the five-year period following each Scottish Parliament election.  

Change to body corporate

• This part of the Bill provides for a change of status for the EMB (Electoral Management Board) 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.  

Financing and independence

• If passed, the Bill will enable the EMB to become a body corporate. However, further consideration is needed regarding its financing and oversight 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. We will continue to support these discussions through any transition into a body corporate.