CHAPTER 2 RESPONSIBILITY FOR SCOTTISH PARLIAMENTARY ELECTIONS
- We would recommend that exploratory discussions take place with a view toward assigning responsibility for both elections to one jurisdictional entity. In our view, the Scottish Government would be the logical institution.4
2.1 Chapters 2 and 3 of the Gould Report narrate the complex institutional, legislative and organisational landscape that lay behind the Scottish elections of May 2007. The report details the numerous public bodies involved and some dozen pieces of primary and secondary legislation going back over thirty years. 5
Some of the stakeholders involved in one way or another included both the UK and Scottish parliaments; their respective governments; ministers and advisors; 32 Constituency Returning Officers; eight Regional Returning Officers; 15 Electoral Registration Officers; and the Electoral Commission, all of whom had various responsibilities under the existing legislation for key decisions and actions which often impacted on each other and had an influence on the 3 May elections. 6
2.2 The report explains the structure of Steering Groups and numerous sub-groups required to make this "antiquated" legislation 7 and "fragmented approach" work together, and how this structure obstructed decision making and obscured responsibility.
The 2007 Elections Steering Group and its various sub-groups consisted of representatives from the stakeholders described above, including individuals from the Scottish Executive (acting as Chair), the Scotland Office, the Electoral Commission, SOLACE, SOLAR, AEA, COSLA, Scottish Assessors Association and the Scottish Parliament. The Steering Group's sub-groups comprised: Legislation; Training and Guidance; Forms; Public Awareness; Fees and Charges; and E-counting. Representation was supplemented, where appropriate, by external organisations such as the Disability Rights Commission; the Royal National Institute for the Blind; the Equal Opportunities Commission; Commission for Racial Equality; Capability Scotland; and E-gender.8
2.3 The report finds for legislation and decision-making:
The fragmented approach can obviously lead to confusion among those working with the legislation, and also leaves more opportunity for drafting or compatibility errors. In the Scottish context, the potential for this is even greater, with two parliaments and two administrations being involved.9
Given this fragmented approach, it was virtually impossible to determine a person or group that had overall responsibility or could be held accountable with regard to the problems which arose in the Scottish parliamentary and local elections, where legislative delays, late political decisions, communication failures and operational errors were found.10
2.4 The report therefore concludes:
Our discussion on electoral legislation; roles and relationships; planning and timing; the combination of these elections; the design of ballot papers; the electronic count and other issues related to the implementation of these elections has often led to questions related to jurisdictional responsibility. As long as the responsibilities for the decisions which have an impact on the Scottish parliamentary and local government elections are divided between the Scotland Office and the Scottish Government, it cannot be guaranteed that these electoral processes will be conducted effectively, due to the fragmentation of the legislation and decision-making in this context. As a result, we would recommend that exploratory discussions take place with a view toward assigning responsibility for both elections to one jurisdictional entity. In our view, the Scottish Government would be the logical institution.11
2.5 The Scottish Government believes that this recommendation is fundamental to the overall conclusion of the Gould Report. The report describes fragmented legislative and executive responsibility, complex decision-making machinery and a lack of clear managerial and democratic accountability. The Gould Report describes a system that represents many years of accumulated practice, and piecemeal extension of that practice and out-of-date legislation to accommodate major reforms, such a STV, e-counting, and the devolved Parliament itself. Radical reform of this system is required to reduce the risk of similar operational difficulties arising in the future.
2.6 The Scottish Government therefore believes that the system for legislating for and administering elections in Scotland should be examined in that context, rather than by first considering minor changes to the current position, or by reference to the allocation of legislative and executive responsibility made ten years ago in the Scotland Act.
2.7 The main conclusion of Gould's analysis is that the legislation for and delivery of Scotland's elections, local and Parliamentary, should be integrated into a streamlined system, based in Scotland. This would entail creation of a professionalised Returning Officer function, reporting to a Chief Returning Officer who would be accountable to Scottish Ministers, who would in turn be accountable to the Scottish Parliament and the Scottish people for the successful delivery of elections. The Scottish Parliament would be responsible for the necessary legislative framework and funding of elections. This approach would ensure that reform or consolidation of Scottish electoral law could be given the necessary priority in a timely way by the legislature directly affected itself and directly accountable to the people represented in the Parliament, in line with the principles of devolution.
2.8 The Scottish Government believes that this integrated approach to management, accountability and legislation would provide the Scottish people with the best reassurance that the problems identified by Gould would not recur, and also provide the most practical and responsive managerial and organisational approach to running future Parliamentary and local elections.
2.9 The Scottish Government is firmly of the view that preserving the current divide in legislative and executive responsibility between Westminster and Holyrood would preserve the fragmentation that Gould describes, and would not allow the CRO to provide the potential benefits identified. In particular the CRO's accountability would switch between the UK and Scottish Parliaments for different elections, raising issues about the CRO's appointment, funding and management.
2.10 As far as legislation is concerned, Gould identifies a number of areas where implementing UK legislation to a UK timescale interfered with Scottish elections, in particular The Electoral Administration Act 2006.
Because of its application across the UK, and because of the wide ranging nature of the changes it introduced, it was the Electoral Administration Act that drove the timetable for legislative change. Although the Act was announced in May 2005 and tabled in the UK Parliament in October 2005, Royal Assent was not granted until July 2006. That delay impacted on the timing and preparation of further legislation for the May 2007 Scottish elections.12
2.11 Gould also implies that continuing the division of legislative competence will prevent proper consolidation of electoral legislation.
The 2007 Scottish elections, with the combination of different instruments requiring amendment, provide a good illustration of why consolidation has already been too long in coming. Even though the present devolution settlement will see challenges to true consolidation of the legislation, this should not discourage the search for innovative solutions to the new electoral environment.13
The Scottish Government believes that a failure to unify legislative responsibiltiy for elections in Scotland in the Scottish Parliament would prevent these issues being properly addressed.
2.12 The Scotland Office's consultation document Sorting the Ballot does not discuss Gould's analysis or conclusion on legislative and managerial coherence in any detail. The paper has a single paragraph referring only to "exploratory discussions". It also notes that it would be possible to continue with split legislative responsibility if administration is integrated.
2.13 The Scottish Government does not believe the major structural issues identified by Gould, and the damage caused to the credibility of Scotland's electoral system, can be properly addressed by making minimal changes directed at the specific problems with the 2007 election. Sorting the Ballot takes this approach and does not engage significantly with the analysis of systemic weaknesses provided by Chapters 2 and 3 or the report, nor with the proposed solutions to these problems. The Scottish Government believes that Sorting the Ballot should have provided a more substantive response to the main criticism of the Scottish electoral system in the Gould report.
2.14 The Scottish Government is reinforced in that view by the response of the Electoral Commission to the report. The Commission has recognised the wide ranging implications of the findings of Ron Gould for the fitness of the UK electoral system for its purpose. The Scottish Government agrees with the Electoral Commission that Gould's findings are highly significant in considering the overall structure of electoral law in Scotland, and that their seriousness requires an appropriate response.
2.15 The Scottish Government has therefore concluded that the Gould Report provides an opportunity to address the fundamental managerial and legislative problems that Gould identifies, and that these must be addressed by creating a coherent and unified organisation based in Scotland, clearly accountable to Scottish Ministers, Parliament and people, working under a legal framework set in Scotland, in line with the principles of devolution.