Standards, Procedures and Public Appointments Committee [Draft]

Meeting date: Thursday, May 2, 2024

Official Report 720KB pdf

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Scottish Elections (Representation and Reform) Bill: Stage 1

That brings us to item 3, in which the Minister for Parliamentary Business will provide the committee with additional evidence on the Scottish Elections (Representation and Reform) Bill, following our own investigations. The minister is joined by Iain Hockenhull, bill team leader, and Angus Reid, elections policy officer, Scottish Government; and by Lorraine Walkinshaw and David Maclennan, who are lawyers from the Scottish Government legal directorate. I welcome you all to the meeting.

We are also joined by Bob Doris, and I expect Graham Simpson MSP to join the meeting later. I intend to allow both of them to put questions on the bill to the minister. Graham is unable to join us at the start of this meeting, because of other parliamentary commitments.

Minister, I am more than happy for your officials to be here during the questioning and for them to respond, as you see best, to the committee’s queries. However, for the purposes of preparing the report on the bill, we will consider all the responses that we receive today to be the views of the Government, unless you indicate to the contrary. I hope that that is acceptable.

Another matter that I want to raise relates to correspondence dated 30 April that we have received from you on electoral reform secondary legislation. It runs to a considerable number of pages, and the committee has not had an opportunity to look at it, so I am hopeful that you will indicate that, should we need to take further evidence from you at a later date, you will be content to give it.

Convener, it is always bad to start with an apology, but I must apologise for trying to be helpful. That secondary legislation will probably come through later in the year and, because of the on-going process, I thought that it would be helpful to put it in front of you at this stage. In retrospect, I realise that it might be seen as my giving it to you just before this meeting. That was not my intention, and I am happy to come back at a later date to discuss it.

That is helpful, because we do have a commitment to the Parliament to maintain our work to a certain timetable, and that might need to be looked at.

Another point—which you have, I think, answered in part—is that this is stage 1 of the bill. This is the stage at which we take evidence on and scrutinise the bill, but there is an indication in the letter that you are seeking the committee’s views and opinions on certain assertions and ideas that are being put forward. That is probably not appropriate for stage 1.

Okay—I will take that on board. Again, I am trying to work with my colleagues on this.

Absolutely, and that has been my understanding of the Scottish Government’s commitment to the Parliament on the bill, from day 1. We have seen much work at that level, and my expectation is that that will continue.

My final concern relates to correspondence of 15 March that you sent on behalf of the Deputy First Minister to the convener of the Local Government, Housing and Planning Committee, following its own letter to the DFM, seeking answers to various points. I became aware of that only by accident, and I am slightly disappointed that we were not copied into it, given that we were copied into the original correspondence by our colleague committee. We thought that an answer was still pending.

That is noted, and it will not happen again, convener.

I am grateful.

So, apart from that, things are going really well. [Laughter.]

Would you like to make an opening statement?

Yes, I would. Thank you for allowing me to talk about the Scottish Elections (Representation and Reform) Bill.

One of the main points that I want to make at the start is that, as I mentioned earlier, I see this as the Parliament’s bill. It is about our elections, which form one of the most important aspects of this place. We do not believe that the Government has all the best and original ideas, and we can work with others on dealing with issues as we move forward to stages 2 and 3. My door is always open to members of the committee and other members of the Parliament—I am happy to discuss anything that they want.

The bill takes forward many of the proposals that the Government consulted on last year. The consultation looked at candidacy and voting rights and at issues arising from the United Kingdom Elections Act 2022 and from the experience of planning elections during the pandemic. It also considered reforms in relation to electoral organisations.

As for the detail of the bill, it extends candidacy rights in Scottish Parliament and local government elections to foreign nationals with limited leave to remain; it extends the 2022 act disqualification order to bar those found guilty of offences involving intimidation of campaigners, candidates and elected representatives from being MSPs and councillors; and it also creates a Scottish disqualification order, which will apply to people found guilty of offences involving intimidation of electoral workers.

The bill also makes changes in relation to spending in election campaigns, including the definitions of notional expenditure, overseas spending and third-party campaigning. Those changes broadly match those made by the 2022 act for Westminster elections. Moreover, the bill proposes measures based on the experience of Covid-19 to allow elections to be rescheduled in emergencies.

To support innovation in elections, the bill allows pilot schemes to be brought forward by the Electoral Management Board for Scotland, electoral registration officers and Scottish ministers, and it creates a power enabling Scottish ministers to fund efforts to increase democratic engagement across Scotland.

The bill also revokes the existing Scottish regulations on digital imprints but reworks one aspect that will apply in addition to the new rules under the 2022 act. It changes the deadline by which Boundaries Scotland is required to review local government electoral wards from 2028 to 2031 in order to match the five-year election cycle.

The bill facilitates improved scrutiny by the Scottish Parliament of the Electoral Commission’s activities in relation to Scottish Parliament and local government elections. Furthermore, in relation to the Electoral Management Board for Scotland, it ensures that the body will have its own legal personality and creates a deputy convener post.

Several consultation topics are not featured in the bill. In particular, the bill does not extend candidacy rights to 16 and 17-year-olds. Seventy-seven per cent of consultees were opposed to that, with concerns about the safety and welfare of young people standing for election and holding office. Also, the bill does not take forward the possible expansion of voting rights to asylum seekers and people detained on mental health grounds in relation to criminal justice.

The consultation also discussed the work of Boundaries Scotland, particularly the process by which changes to boundaries are scrutinised and approved. The committee is aware of the Government’s view that, ultimately, automaticity is the right way to make changes to electoral boundaries; it underlines the independence of Boundaries Scotland and is informed by experiences elsewhere in the UK and internationally.

Automaticity would, of course, be a significant change to how boundary changes are implemented, and it could take a variety of forms. As a result, such a change needs to be looked at in the round, so I intend to write to the committee as soon as possible to set out my plans for future work on the process by which changes to electoral boundaries for Scottish Parliament and local government elections are implemented. I believe that that ought to be done separately from this bill.

Finally, several other consultation proposals can be progressed through secondary legislation or in many other ways. I have, as we discussed earlier, written separately to the committee about that.

Thank you for your time. I look forward to the committee’s questions and discussions.

I hand you over to the gentle hands of Oliver Mundell to open the questioning.

Thank you, convener, and good morning, minister. The committee has heard from a range of stakeholders on the extension of candidacy rights to individuals with limited leave to remain. Although there is support in large part for the principle, there are concerns about the practical implications, and it has been suggested to the committee that individuals could qualify for candidacy only when their limited leave to remain would allow them to serve a full term. Would you consider that suggestion?

09:15  

First, I welcome Mr Mundell to the committee. He seems to be following me around all the committees that I attend.

We are talking about a very small number of individuals here, given that most limited leave to remain is for five years or less. The likely suggestion is that it would be practical for a person who has limited leave to remain to stand only for a by-election. The UK Parliament already legislates for that, so we are just doing something similar.

On the whole, it would, as I have said, affect a small number of individuals, so I do not think that it will create the difficulty that some people believe that it will. We are in a pretty safe place in that regard, but I will bring in Iain Hockenhull to give you some more detail on the situation.

Quite a few people will have leave to remain of, say, two and a half years, but they will renew that regularly. Such a person who has made their life in the community might expect to be here for longer than the term of their leave, and, if we were to rule that a person would have to declare that their leave would expire during their term of office or that they had been barred, that person might feel disadvantaged by that prohibition.

In theory, it is true that that gives rise to the prospect of someone losing their leave to remain and not having a new one granted during their term of office, which will trigger a by-election. However, as the minister has said, we do not anticipate that many people who do not expect their leave to be renewed will stand for election.

As you and I know, Mr Mundell, we are among a minority of the public who stand for election. For the community that we are talking about, the number of people will be even smaller.

I understand that, but, if you dig into it, you see that such a situation could be controversial. If someone elected by the public had to leave the country part of the way through their term, that would lead to difficulties. Do you accept that the potential for such awkwardness exists, however unlikely it is to happen in practice?

I think that what we are trying to achieve—which is to give those individuals the opportunity to be part of the process—is the more important issue. We are not doing anything that the UK Government is not already doing; we are just trying to find a balance between giving people the opportunity for representation and addressing a challenge. I am not saying that there will not be a tiny percentage of people for whom this creates a difficulty and challenge, but, on the whole, I think that we should be okay.

So, you are asking us to accept that risk. You are saying that the risk is minimal and that we should be comfortable with that.

I do not want to be pedantic, but the word “risk” suggests that this could be a major issue, and I do not see it as being a major problem for us down the line. I am willing to go with what we have in front of us, given that it is similar to what our colleagues in Westminster are doing. When we look into this, we will see that a situation of this kind does not seem to have arisen. Granted, it could arise—and, knowing my luck, we might well end up with an issue on the back of this. My father used to say, “It is not that we don’t have any luck, son. It is just that it’s all bad.”

In reality, though, we are dealing with such small numbers of people. You and I both know that to get people involved in the political process is the difficult thing. As the Minister for Parliamentary Business, I have elections are part of my remit, and I know that it is difficult to get specific groups of people motivated enough to get involved in the process. Indeed, I have told numerous people and organisations that we need to get people to vote. A couple of weeks ago, I was talking to Enable Scotland about a group of people that it is working with. I said that, although it is important to vote, they should also take it to the next wee part of the process, which is representation on the local council, and I asked them not to think that there were barriers for them in that respect. That is the whole idea—to ensure that we can include as many diverse parts of modern Scotland as possible in the process.

I will resist the temptation to ask about the desire to replicate systems south of the border, as that is probably not very helpful to the evidence.

We have received some written evidence on the requirements for those who are elected as MSPs to swear an oath of allegiance having a potential impact on citizens of countries that do not accept dual citizenship, and we have also heard about the potential for candidacy to open up devolved elections to foreign players who might wish to undermine Scotland’s electoral system. Do you have any concerns on those issues?

On foreign nationals being willing to take an oath, as we know, when we come to the Parliament, we take an oath before we get paid. There is always debate about that, and everyone has their own opinion on it, but it is up to each individual to consider how they deal with that when they put themselves forward as an elected member.

I am interested in hearing the committee’s thoughts on the issue. My team and I might not have any views on it, so we are interested in being directed by the committee on it, as the bill progresses. It goes back to what I said at the start, Mr Mundell—I believe that a bit of joint working between us will make the bill the best that it can possibly be.

I hear what you say about not having a view on this, but it comes down to striking a balance. People are getting an opportunity to stand for election, but we need to balance that with the obligations that come along with it. If they want to represent people at large but they are not willing to take the same oath as everyone else, we could get into quite a tricky space.

As, I think, you will be aware, I am quite a practical individual, Mr Mundell. In the years that I have been here, I cannot think of anyone who did not take the oath in Parliament—it is just what we have to do. I have heard debate about it every time that it comes up, and people have their own opinions, but, on the whole, most people accept it. I think that the first term was the only time when there were some issues with the oath taking, and I take it that that was to do with the exuberance felt in 1999 about the Parliament’s coming into being—which, indeed, happened 25 years ago this week.

I do not think that it is an issue. When people get to the stage of having to take an oath, they will probably not have an issue with it. There will be debate, as there always is and as there always should be. However, I am a great believer that rules are rules, and if this is part of the process, we should just get on with it.

That is good. I am not going to hold up my hand with something written on it.

The second bit of my question, which you did not respond to, was on the potential for candidacy to be opened up to foreign players who might wish to undermine Scotland’s electoral system. Do you think that that is a legitimate concern? Is it a risk that we should consider?

We always need to be aware of that. Ironically, I always say that the world that we are living in now is not the same as that of 2011, when I walked into the Parliament. We now face a lot of challenges and difficulties.

I will bring in Iain Hockenhull to add some more detail.

It is a difficult question and a challenging one to answer. There are lots of risks to the electoral process, and more are coming out of the woodwork in the elections that are being held now. We can consider that issue, but I struggle to think of a solution other than just to look out for it.

That is a fair point. It is all about how we police such matters, where we draw the line between people’s beliefs and the reasons why they are standing, and how we identify where those things come from and what is motivating them. Your response was helpful and meaningful.

I have a couple of follow-up questions. One relates to guidance, but it very much reflects on the bill. We have received evidence that there needs to be clear information and guidance on the proposal and the interaction with immigration law. Who will give that guidance authoritatively?

Anything to do with immigration comes directly from the UK Government, so that would be the starting point. I ask Iain Hockenhull to confirm that.

The Home Office has already addressed that in relation to local government candidacy, which the minister alluded to earlier. The UK has signed treaties with five countries—the committee is considering the fifth one later today. Those are five countries where candidacy rights for people with limited leave to remain will exist for council elections across the UK. As a result, the Home Office adjusted its guidance last year, and it made the circumstances relatively clear. We quoted that guidance in the policy memorandum for the bill. The Electoral Commission will consider that in its guidance; it has probably already done so. We thought that what it had set out there was fairly clear.

The expectation is therefore that the Home Office will provide the guidance that the electoral regions can effectively rely on.

It is clarifying the impact on leave to remain. Before the Home Office did that, there was a suggestion that, because being a councillor is work, someone who is here on a student visa that says they cannot work, for example, cannot be a councillor. The Home Office has clarified that it does not count as work for immigration purposes.

Good. My follow-up question is much more directed to the bill. On whom will the responsibility rest? The Electoral Commission has said that it is not the role of electoral administrators to advise candidates whether they qualify to stand. Who will take responsibility?

With regard to?

Whether someone can stand. Will the candidates themselves have to read the law and make the assertion that they qualify?

That is normally the case. The candidate takes on the responsibility when they make the application to be a candidate and the declaration. They take it upon themselves that they are in that position.

So, as happens at the moment, the electoral administrators will just accept what is written on the paper as an assertion of what is correct.

Yes.

They will not have the responsibility, and there will not be an expectation on them to look into it beyond that.

Not as far as I am concerned, no.

Do you see there being unforeseen consequences that could come from that, with people screaming and shouting about the validity of a candidate three weeks into the election campaign, for example?

Iain Hockenhull and I discuss that quite a lot. Election law is based on statute that has been effectively unchanged for hundreds of years. During that whole period, there has always been the potential for something like that to happen. I go back to the point that, on the whole, when people make their application, most of them do so in an honest and forthright manner. We can go back to Mr Mundell’s idea of someone going out of their way to put a spanner in the spokes of democracy, but that will always be the case, and we just need to be vigilant for that. On the whole, most people go through the form properly.

That has been considered and is not anticipated to be a problem.

Yes, it has been considered.

Good morning, minister and officials. I wish to ask you about disqualification orders and the proposals that appear in the bill as drafted. For MSPs, the bill only prevents membership of the Parliament and is silent on nomination and candidacy, whereas the situation is different for local authorities. I would like to understand the reasons for the different approaches. Is consideration being given to the possibility that that might potentially give rise to vexatious candidacy in Scottish Parliament elections?

As with much of this, the difference seems to be the result of the difference in legislation over the years for councillors, MSPs and parliamentarians in general. That is on-going. Part of the Scottish Parliament Conduct Order states that a person making a false statement on their qualification for membership of the Parliament is guilty of corrupt practice. We consider that offence to be strong enough to put someone off doing that.

That is fine.

I also want to ask about another issue to do with disqualification. At present, someone who is disqualified from membership of the House of Commons is disqualified from membership of the Scottish Parliament. The bill appears to break that automatic link, and I want to understand the logic behind that thinking.

Before 2016, the law for MSPs was reserved. At this stage, we are bringing it to the Scottish Parliament so that it can set its own rules. The Welsh Senedd has already legislated to set its own rules, and its list of disqualifications is much shorter than the list in the House of Commons legislation. We are using that as the basis to move forward and bring the powers to ourselves.

09:30  

Okay—that is fine.

Good morning to the minister and officials. I want to dig a bit deeper into disqualification. We have been taking evidence on folks’ thoughts on folk who are on the sex offenders register. Should they be allowed to stand or to continue in their position? We received evidence to suggest that it would be worth looking at international best practice on the matter. What work has the Scottish Government undertaken to establish what that practice is?

As you will be aware, this is not an easy subject to deal with; it is difficult and not straightforward. Comparisons have been made, depending on what sexual offences are being considered. Different countries have different rules on banning someone from office because of criminal convictions.

I have a bit of information here. People who are subject to sexual offences notification are banned from membership of the Welsh Senedd. That change came about in 2020. A similar prohibition applies in relation to councils in England and Wales, but not to MPs. We might need to look at that. It would be good for councillors. You and I are former councillors and we know what it is like to serve on a local council. The committee might want to look at that with regard to MSPs. I am not trying to force my opinion on anyone else, but I think that it is important for us to look at that and take it forward. Perhaps we should look at it when we get to stages 2 and 3 of the bill.

You have answered my second question, minister, which was about whether you are planning to lodge amendments at stage 2, especially for local councils. My former local council was in a situation whereby someone was put on the sex offenders register after becoming a councillor and we had no way of removing that person from office. We have a duty of care to constituents across the board.

I am happy to work with anyone who is looking to lodge an amendment at 2. I know that the Convention of Scottish Local Authorities has talked about the issue in the past, and I am quite happy to work with anyone who is looking to do that. In addition, if we are going to do that for elected officials on councils, we should also look at parity with ourselves.

Does Oliver Mundell have a question?

It is a brief supplementary, convener.

Minister, you say that you are willing to work with people on the issue. I will gently push you on that. On some of these issues, it is for the Government to show leadership and not to leave the matter to committees or to individuals to push it forward.

I did not mean it in that way, Mr Mundell. As I have said from the start, I want to work with the committee, and I want ownership of the bill to lie with us all. COSLA brought up the issue, and, when I looked at it, I decided that we should maybe look at it, too, but I did not want to pre-empt the committee’s evidence in that regard. I am quite happy to work with Jackie Dunbar, for example, if she wants to lodge an amendment on the issue, and with Government officials, to ensure that it fits into the bill perfectly.

I understand that point. I am simply saying that when you get the likes of that evidence from COSLA, there are some issues on which the Government should take the lead. On any bill, you would expect to be proactive—

Mr Mundell, I cannot win with you. Either you accuse me of being a control freak or, when I try to be reasonable—when I say that we will work together—

There is a distinction. On some issues, you would expect to take soundings but, on others, the public would expect the Government to take a lead.

I am happy to do things in whatever way colleagues want to go forward, but the issue must be dealt with.

Given where the discussion has just gone, I invite Jackie Dunbar to come back in for a moment.

Thank you, convener. I should have drawn members’ attention to my entry in the register of members’ interests, which states that I was a local councillor during my first year as an MSP.

On that issue—just to put Mr Mundell’s mind at rest—Iain Hockenhull has just said that he can give some examples.

As always when I sit in this chair, I am conscious of the time. Is the Scottish Government in a position to furnish the committee with examples from overseas? You made reference to that. Is that evidence in a form that could be provided to assist the committee in understanding best practice at an international level, such as in the role of the Venice commission? I am conscious of the 2015 report, which would make us an outlier across the European Union, certainly. Would that be feasible?

We could certainly look at that. As the minister mentioned and as far as I know, each country will have its own separate and different registration scheme for sex offenders. It is important to bear in mind the fact that we are talking about cases that do not involve a conviction of three months, for councils, or a year, for MSPs.

As the consultation that the Government ran last year in relation to local government candidacy said, it is looking at cases in which someone goes on the register but is not convicted to hit that threshold. Drawing a comparison with other countries would be challenging, but we can certainly look at it.

My understanding is that the constitutions of the majority of Council of Europe member states explicitly and deliberately provide no bar to running as a candidate Irrespective of the reasons for disqualification that we are looking to, and the substantial evidence that the proposals would be welcomed by a significant group, there is a fundamental question about the point at which you bar someone from being a potential candidate in the same way as you might bar people from voting. That fundamental question needs to be looked at, so any additional evidence would be incredibly helpful.

I will try to get what we can to you, convener.

I am grateful.

On the inclusion of others in advice from outside the knowledge of the Scottish Government—and, indeed, of this committee—I invite Bob Doris to pose his short questions.

That is kind of you, convener. You can tell that I was previously a member of the committee, as you have asked me to be short.

Minister, as you know, I have raised in Parliament—and I have met you to talk about—concerns over voter education and the parts of the country in which there is a prevalence of spoiled papers. I mention specifically the Canal ward in my constituency. I have been working with councillors Allan Gow and Jacqueline McLaren because, at the most recent council elections, that ward had the highest number of spoiled papers in Scotland, at three times the national average. The votes were accidentally spoiled by multiple voting for two or three candidates from the same party.

I am keen for the Electoral Commission to step forward not just when there is an election but all year round. I put it to you that the bill could be a vehicle for putting some form of statutory duty on the Electoral Commission to do some of that voter education, targeted locally. Might the bill remain a vehicle for achieving some of those ambitions?

Thank you for the question, Mr Doris. I almost feel as though the wards that you talked about are in my constituency, because you have brought up the topic to me so often. I now feel some kind of personal attachment to the story that you mentioned.

Come and visit, minister.

If we could see their faces when the Minister for Parliamentary Business turns up—they will go, “Who?”

I am happy to look at that idea and work with you on it, because I have been struck by how, over the months, you have articulated how we can deal with the issue. I would be interested in working with you, perhaps using the bill as a vehicle for you to see what you can do about your aims, and I look towards stage 2 for that. I am also happy for my officials to work with you on that.

That is encouraging, minister.

Convener, I would like to clarify something. In the bill, I noticed part 5 on increased democratic engagement and part 8 on the Electoral Commission. At this stage, has the Government thought about where an amendment might best sit? Clearly, away from this committee, we will work diligently to agree a suitable amendment, but do you have any initial thoughts?

I will bring in Iain Hockenhull.

Our parliamentary draftspeople colleagues get a bit twitchy if we start predicting where they will put things, but I hope that it could be accommodated quite straightforwardly.

I have one more question if there is time, convener. I am not sighted on the questions that committee members are going to ask, so if another member is asking this question, I will just leave it. It is in relation to randomised ballot papers at elections.

That is fine.

You do surprise me, Mr Doris.

I am consistent if nothing else, minister. When I was on the committee previously, I was keen to see randomised ballot papers at council elections because of the clear alphabet bias, from A to Z, in voting and preferential voting.

Previously, the minister’s view was that it was too complex, that the risks outweighed the benefits and that it was not that clear. I understand that the committee has started to hear evidence that some of those barriers might be less of an issue now, and that the concerns of some groups are being assuaged somewhat. What is the minister’s current thinking on that?

The minister’s view has not changed much since our previous discussion.

I declare an interest, because my surname is Adam and my sister is a Councillor Adam in Renfrewshire Council.

The point that I made was that there tend to be a lot more candidates in a council election than there are in any other election. For example, in Renfrewshire the last time, one ward in particular had a large number of candidates and the software had difficulty with that. That was the slowest count and it was the last result called because of the complexity of the software having to take in the large number of candidates.

There is also another practical issue. We are working with the Royal National Institute of Blind People Scotland to ensure that voting is more accessible to people with a visual impairment or who are blind, so that they can vote more easily. One of the things that we are looking at is a card that goes over the voting sheet. That idea came from the members of one of the RNIB’s working groups and we have worked with the RNIB and developed it further. That would be a simple solution to an issue for those people, but a randomised ballot would again make it inaccessible to them and we would have to look at another way of making it work.

Those are just some of the examples that I have. At this stage, I am not convinced of the idea of a randomised ballot.

Would it require primary legislation to run a pilot? There is a section in the bill on electoral pilots, so would the bill give the Government the power to carry out a pilot on randomised ballots at a later date?

My reading is that the whole point of the pilot part of the bill is so that the Government could do that, just to see how it goes, but I will get Iain Hockenhull to confirm, in case I am shooting from the hip here.

Yes.

It is always good when your officials say yes.

I am getting very conscious of the time, so I will move on to digital imprints, which has come up in substantial amounts of evidence that the committee has received.

The digital imprints will be required only when it is reasonably practicable. Does that loophole not defeat the purpose of the requirement? In whose view does the Government think that the test of reasonably practicable should sit?

I recognise the challenge that there is a perceived loophole in the fact that the material requires a digital imprint only when it is reasonably practicable, but we come back to the point that that is an issue only for someone who goes out of their way not to work within the process and system. Every one of the rest of us is involved in the process and we know the rules and regulations, so we sit down and make sure that our people are trained and that our election agents know what the situation is, and we do it properly.

09:45  

In addition, I am working within the constraints of the UK elections regime and I am trying to get to the same requirements. I am not saying that that is the right way round; I am just trying to make it the same. As you will be aware, the whole point of the election process is to ensure that people engage with and are part of it, and that becomes difficult if we start making things completely different.

Iain, do you want to add anything?

The law on this is, largely, the Elections Act 2022, and we have no control over that. The regime is structured in that way and people have identified a loophole in that aspect. Although the bill has quite a few sections on that, they just add a bolt-on for that one circumstance and then replicate the 2022 act for that bolt-on circumstance. For us to diverge would, potentially, cause some confusion.

It adopts the same test—“reasonably practicable”.

Yes.

I am asking who will make that call in Scotland for councils and the Scottish Parliament.

It would be for the people who create the material to make the assessment, but they would be informed by Electoral Commission guidance and, if they strayed from the path, the commission would police that.

So, the initial test is an internal one for those who produce the document to decide whether to put the digital imprint on it. They would then defend the decision that it was not “reasonably practicable” in that case.

Yes.

The follow-on from that relates to the monitoring and enforcement of what you have rightly described as a bolt-on. Minister, what discussions have you had with the Electoral Commission about the challenge that that will bring?

We talk to the Electoral Commission all the time and our discussions have noted the fact that we see this as the way forward and that it gives us the opportunity to make sure that no difficulty comes from different regimes doing different things.

I take on board the fact that the “reasonably practicable” idea is challenging for us all, but my belief is that, on the whole, the vast majority of us who are involved in the electoral process do things by the book. There might be some slips along the way. For example, people might not put an imprint on something, and some individuals might go out of their way not to do it—that will always be the case in our democracy. However, by working on the idea with the key partners, we have ensured that it is the best way forward for us.

Is it right to say that, in those discussions, although there are clearly not no concerns, there have been only tiny concerns about monitoring and enforcement?

As with most things that we have discussed today, there is a small concern, but it is tiny.

Okay, I will take that. Thank you.

Let us move on to the vexatious issue of free mail-outs—in particular, for candidates who are standing in local government elections. Obviously, the matter is not included in the bill, although it is right that it was discussed at the consultation and in the results of that consultation. Are there still plans to introduce amendments on that at stage 2, and has any assessment been made of whether such a measure would increase diversity among candidates in that, for those who feel unable to financially support such an opportunity to speak to voters, a free mail-out is incredibly beneficial?

I have discussed that issue with colleagues in COSLA since the day I came into post; it is an on-going issue that they always hit us with. As I have said before at committee, council elections are different from Scottish Parliament elections. In parliamentary elections, there might be a maximum of six candidates in a constituency—for talking’s sake, we will just use that number. In council elections, there could be that number, and more, per ward. In our 2021 Parliament election, the measure cost £11 million, so doing it for council elections would cost in excess of that. These days, that is challenging. That is not to say that we do not believe that the measure could be a way forward that could give people an opportunity; I am just not sure about the extent of the difference that it would make.

Also, at the local level it would cause a bit of complication. Some of this is quite funny. We, around the table, have all been candidates, so we know the process and can remember getting our mail-outs ready to go. Can you imagine the complication of getting things to that stage council ward by council ward and street by street for a whole council area? That would be challenging for the people involved.

Is the Scottish Government’s cost benefit analysis that the measure would be too expensive but you are still open to considering it?

I am still open to discussing it.

You are open to discussing it.

There are quite a few challenges along the way, one of which is—

One of which is cost. Another is complexity, because of the numbers.

Yes—one challenge is cost and another is complexity. Also, only a third of people who responded to our consultation were in favour of the measure. That shows you that the public were not shouting for it.

My next question relates to campaign finance. You have talked about the need to simplify that environment. In reserved elections, parties make weekly reports, but in devolved elections, parties make three-monthly reports. Why do we not just move to the same weekly reporting during that short campaign?

I was going to say that I have no skin in the game, but I do—I have a bill in front of you. However, on that issue, I would be happy to see how the debate among committee members goes. Having different regimes and ideas adds complexity. Arguments have been made that such frequency could make it more difficult for a campaign and would increase the onus on a campaign, but it would give people more transparency. I am open to persuasion on that issue.

My final question in this section is on the maximum fine for a breach of electoral law, which should be increased. The bill is silent on that. Where are we on increasing fines to make them more appropriate for dealing with a concerted effort to breach electoral law?

Iain Hockenhull will explain that.

We have discussed that with the Electoral Commission quite a bit. The Government has made it clear that it is sympathetic to increasing the maximum fine and that it thinks that the current level is too low. There are quite a number of challenges in doing anything in that respect because of how electoral law operates. If there was a Scottish Parliament election in one year and a UK Parliament election were to happen within the next 12 months, we would have to retrospectively apply the rules for the UK Parliament election, so we would suddenly be moving from what we think is an appropriate fine to what the UK Government currently thinks is an appropriate fine. We think that that would risk making the situation very confusing and that there should be a change at the UK level.

The fine is for an electoral breach that relates to a specific election rather than just any old election.

Yes. Let us say a breach occurred and the Electoral Commission was looking at a fine in relation to a Scottish Parliament election on, say, 1 May 2026. At that point, it might be that the Electoral Commission’s new fine—let us say that we set a new limit of £500,000—would be on the table. If a UK election was called in the following 12 months, however, we would apply UK rules on the Electoral Commission’s maximum fine, which is currently £10,000, I think.

The fine would be for an electoral offence in relation to the UK election, would it not?

No, it would be the same offence.

But the offence would have been completed.

For reasons that I do not understand, the reserved law applies, so that the campaign period for the UK general election covers activity in the preceding 12 months, which would, in that example, include a Scottish Parliament campaign.

So, the offence would not be an offence, because the limit changed, which is because the campaign periods overlap.

It would be an offence; it is just that the level of fine that would be available to the Electoral Commission would depend on whether UK election rules were applying—even though the offence would be a Scottish Parliament election matter.

Would you like to take the opportunity to write to us on that?

Yes. This is partly why we did not think that we could do much on the matter. The picture is so messily complicated.

It would be helpful for the committee to understand what the conflict is, because this question goes to the heart of whether something needs to appear in the bill, rather than in secondary legislation.

We are happy to write to you, convener.

Thank you.

We will go to Annie Wells for a set of easy questions now.

Of course. I have just a couple. Good morning, minister and officials.

I will follow on from Bob Doris’s line of questioning, on electoral pilots and democratic engagement. Minister, do you believe that the provisions in the Scottish Local Government (Elections) Act 2002 on electoral pilots are sufficient to allow for pilots on electoral registration? Bob spoke about randomised ballot papers. Do you support automatic voter registration?

This is an interesting subject. Some recent reports have said that a lot of voters in Scotland have fallen off the electoral roll. That could be because we, as politicians, inspired them at one point but are not doing so at the moment.

Automatic registration of voters is one of the things that I have been getting quite interested in. If we need an amendment at stage 2 to make the intention clear in the pilot section of the bill, I would consider lodging one. I am getting to the stage at which I think that that might be something that we should consider. On the recent reports regarding registration, I think that we cannot all be so bad that the public have given up on politics, so we should perhaps consider automatic registration. We might make that one of the pilots, so making that clear in the pilot provisions in the bill could be a way forward.

Thank you for that. We have heard about 20 per cent of people not being registered to vote. That is, indeed, something that we can look into. We have also heard that people’s Young Scot card or national insurance number, for instance, could be used for registration. Are any electoral pilots actively under consideration by the Scottish Government at the moment?

Yes. As I mentioned earlier, we have been working on an issue with the Royal National Institute of Blind People. This is quite a good story. I visited the Forth Valley Sensory Centre near Falkirk and spoke to a lot of its members and activists. The big issue for them is how to make it easier for visually impaired or blind people to vote. They told us some stories, and one particular individual was very forthright about what he sees as a solution. He came up with the idea of reprinting the ballot paper such that it would be accessible for us all, including people with visual impairments. Working with that individual and others at the centre, we came to a conclusion.

That was a classic example of people in the room being angry when I walked in, but we said, “Okay—you’ve got what looks like a solution. Let’s find a way to make it work for you.” I went to another meeting with people from the centre recently and they had no further questions, because they appreciated the engagement and the work that was being done. We are thinking about proceeding with a pilot of that idea to see how it works out in the wild—in the real world.

I am sorry to cut across you, but is the Scottish Government actively thinking of piloting that solution?

Yes.

It is doing that rather than having groups potentially bringing forward pilots. That is helpful.

I am conscious of the time.

Sorry—and that is all I have to say about that, Ms Wells. [Laughter.]

I will be as quick as I can be with my next question.

The bill gives ministers the power to spend on democratic engagement, but no funding has been identified for that. Can you explain that approach and give any further information on when, and at what level, funding is likely to be available?

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At this stage I cannot, because, like every other minister—my colleagues—I will make a bid to the Deputy First Minister at budget time. Obviously, I will explain how beneficial engagement is to our processes and will use all my sales skills from my previous life to get said budget. As I said, we have an idea of how much that would cost, and I am trying to remember that off the top of my head.

Iain, could you help me out?

The scheme in Wales has £300,000 set aside for it.

We would be looking for a similar amount or probably a wee bit more. We would need to work that out. I think that engagement can only be a good thing. My pitch to the Deputy First Minister will say that it will not break the bank.

I have a final question. The Scottish Government’s consultation on electoral reform included a proposal to amend the rule that requires a specific form of tactile voting device to be provided at polling stations. Such an amendment could allow for flexibility in the future, but no proposal is included in the bill. Is work continuing on that?

The UK Government has moved to that position—although I am not saying that we did it because of the UK Government. It was about making voting more accessible. It is not just about tactile voting devices; there are other issues, as I was saying earlier. We are giving ourselves more flexibility to be able to amend the rule through secondary legislation. We expect a minimum standard of support at all polling stations for people who need such help.

When I first saw the proposal, I questioned my officials because I thought, “Whoa! I’m saying I’m opening it up to people, so what’s happening here?” However, having looked at it, we saw that the idea was to give us more flexibility to be able to do different things. We still expect people who work at polling stations to be trained on the tactile voting device. There will be tactile voting devices at stations, but there might be other ways of doing it. We have various ideas, including for pilots.

The financial memorandum says that the bill will have no direct financial implications, but it specifically raises a number of areas that will have financial consequences, one of which is pilots. Do you have any thoughts about the amount of money that will be needed to fund that change of position?

That goes back to what we said previously—we are working on that just now. The costs will be on-going—

Well, yes.

I mean that, when the pilots happen, there will be years when there will be more pilots and years when there will be fewer pilots. It will be done in a budget-by-budget process.

Will we have an indication of the thinking on that?

I can give you more detail on the thinking on that, as we go further down the line.

That would be helpful.

Part 4 of the bill includes measures on how to improve scheduling of elections. The EMB has told us that a minimum of four weeks should be provided for any electoral delay, especially at local elections, where e-counting is used. Is that something that you are planning to review?

I have heard the debate that you have had at committee and I am open to making those changes. I would probably consider making them with secondary legislation, as needed.

One of the great parts of the process is that we put a bill out there—we print it and publish it—then we give it to the committee. The committee does all the work and gets in behind the actual detail and gives us back something else. From what the EMB has said, it looks as if that provision would be one of the things on which a further look would be positive.

The bill also makes provision for postponement of elections. We have heard from other witnesses that full transparency is needed when those decisions are taken—someone mentioned publishing a statement of reasons, for example. Is there merit in including such provision in the bill?

Obviously, during the last election, in 2021, we experienced things being quite difficult as we were actually in the middle of Covid. The provisions were created with that experience in mind. As we move forward, there will probably be other ideas and options, but what we have in the bill covers what we need in order to get things done—for the Parliament, anyway.

Do you think that a list of reasons should be published? I am sorry—I did not get the answer.

I will bring Iain Hockenhull in to make you happy, since you are having difficulty understanding me, Ms Dunbar. [Laughter.]

We considered the idea when we were preparing the bill, but were slightly concerned that it might create grounds for challenging a decision. However, we can consider it further.

You will be pleased to hear that this is my final question. It was suggested that a cross-party advisory group should be formed to make decisions on electoral postponements. What are your views on the establishment of such a group?

I am open to listening to what other people have to say, but I do not want to overcomplicate things. Sometimes a decision needs to be made and things need to move forward; however, I am willing to listen to what others have to say, although I do not want to paint myself into a corner for stage 2.

Should the legal test for a postponement be in the bill, as Professor Alistair Clark suggested in his written submission?

That runs into the concern that we cannot foresee all possible scenarios. It has been quite telling that a number of things that we thought would not have come up during the past few years did come up; we have actively considered them.

The test would be the test to postpone the election, not the cause of the question being asked, so should we set the legal test as to the level of assessment in the bill, so that those who are making the decision have protection, as the previous question hinted?

Do you mean that perhaps there could be a test of necessity, or something like that?

I will not suggest any wording.

We considered that when we were preparing the bill and we could reflect on it further.

Will you write to the committee on that?

Yes.

I will move on to the EMB—in particular, the evidence that we have that significant work is continuing on how it should be constituted and what the legal entity should be. There is a suggestion that the schedule for that will come at stage 2. Can you give us an update on where you are on that, and on what the legal entity will look like?

We continue to discuss that issue with the convener. One suggestion that we are considering is that we move to a structure in which the Parliament would have a bigger role in oversight of the EMB, similar to its role in relation to the Electoral Commission. The constitution for the EMB is already on the statute books in the Local Electoral Administration (Scotland) Act 2011, but we are looking at expanding those rules and setting out more requirements.

I do not like the way that you looked interested in that, convener; I feel that we have got you thinking about something.

No. I have asked who should take responsibility for elections a number of times. It seems that we are still quite a long way even from an internally agreed position, and yet that is one of the fundamental changes—albeit that it is probably of little interest to most people, as long as it works right. It would be helpful to know whether you have a time in mind at which those discussions will to come to a fruitful—

To put your mind at rest, that is another example on which we know where we want to go and the route that we want to take, but we are open to other ideas. That includes working with stakeholders and partner organisations in the process to ensure that they are happy, as well.

We have various ideas about how to go forward, and we will give you more detail on it as we know it. If we have timescales, we will give you those, too.

That would be helpful, because it is a fundamental element. Everyone seems to be in agreement on the necessity to create the legal entity. The consequences of doing that—what it looks like and how it answers—becomes a much bigger and more complex question.

I do not want you to feel as though we are being pretty woolly about this.

No—it is about the detail.

We are trying to create a body that everybody agrees is the way forward.

I agree. We all have a similar vision of where we want to end up, but how we get there is apparently still more of a challenge than was perhaps anticipated.

It will all work out in the end.

I will ask the next question in a slightly different way, which I hope will be of more assistance. There is a proposal that there should be two deputy convener posts within the EMB—in essence, to cover the two distinct elements of its work. Is the Scottish Government in agreement with that proposal?

Currently, only one deputy convener is specified. Whether to appoint another deputy convener will be up to the board when it is up and running. There is nothing to prevent it from doing that; it will have the power to do it. That would be a purely practical way for it to get on with business.

It is probably an example of what we discussed previously, convener, about how we get there. The idea is that the board will have an opportunity to have another deputy convener; it will be entirely up to the board how it goes about things.

That is helpful. To refer back to the pilots, that is the one element in the financial memorandum that has an indication of potential additional costs; however, that seems to be phrased purely with regard to salaries. Does the Scottish Government not envisage any additional costs in the setting up and running of the legal entity—in particular, if the Scottish Parliament becomes involved at some level?

The entity is already working out there, in the electoral landscape, as we speak. We are just making it a legal entity. Obviously, someone will be in charge of it—you have already taken evidence on that—and there will be a salary for that. That is the simple part. The costs that are involved are already on-going; they happen with regard to elections. I will bring in Iain Hockenhull to confirm that.

Yes. It is envisaged that the change will take a number of years and will be dependent on funding being available. There is already funding, to an extent, but we anticipate that more will be needed for salaries and, no doubt, other costs. The roll-out of the change—which seems to have been fairly universally welcomed—is dependent on that funding becoming available. That is not guaranteed at the moment.

I will refrain from exploring the fact that, if the funding is not guaranteed, we could have problems if we set out that provision in the bill.

I will put it another way. Will the Scottish Government be in a position to give a better view of the financial implications once it has identified and chosen the best vehicle by which to make the board a legal entity?

I think so. For example, direct oversight by Parliament is likely to be a more expensive possibility than the current arrangement of oversight by the Scottish Government. That would be one of the considerations in that debate.

That is helpful. Thank you.

We have heard from Boundaries Scotland about the process for changing boundaries. I want to explore the Government’s perspective on the concept of automaticity.

As I said in my opening remarks, automaticity is the way forward. I had difficulty in saying that word when I first came into post, but I seem to be getting my tongue around it now. Basically, it is the way forward—it is the international standard. As I mentioned, it is important for us to set out how we go about that and how we deal with it. I will write to the committee with my plans on how we take that forward. On the whole, I do not believe that automaticity should be part of the bill at this stage—we need to look at further data and further detail—but it is our chosen direction and, inevitably, it is where we will end up.

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The committee has heard from witnesses and experts on the systemic issues around electoral integrity, disinformation, cybersecurity and so on. What work is the Scottish Government doing to assess the impact of those issues on the integrity of devolved elections?

As always, we work closely with the UK Government on those issues. The UK Government has powers on the security side, and we work with it regularly to ensure that there is strength in the system.

I am trying to think of examples off the top of my head. We had engagement with officials when there was a leak in relation to electoral voter registration. We were involved with the UK Government on that, and we finally got to speak to the individuals about that data leak. We always have to be engaged with such issues, and we are always aware that we have to continue that work.

Finally, there are issues that were consulted on but that the bill makes no comment on, including the publication of home addresses and the emergency proxy vote for carers. Does the Government plan to take forward those issues?

I hate to mention the letter that I sent to you, but it explains some of that. It would probably be a good idea for me to discuss the wee letter that I sent you when I return to the committee. [Laughter.]

Yes—we have not got all the way through that letter.

The word “wee” is doing a lot of lifting there.

I welcome Graham Simpson to the meeting. We have been taking evidence from the minister. I understand that you have some short questions on issues that you would like to explore, so I give you the floor.

Thank you for inviting me.

You will be aware that I have a member’s bill proposal going on. There are three elements to it, one of which is recall. We will not talk about that today, because it is quite complex. There are two other elements, one of which is around what we do with MSPs who fail to turn up for work for a certain period of time. At the moment, how we deal with MSPs is different to how we deal with councillors, so I am trying to make it the same.

In relation to the bill that we are discussing, the Government’s policy memorandum deals with what happens when councillors are jailed for a certain period, as opposed to what happens when MSPs are jailed for a certain period. Currently, the law is that if an MSP is jailed for more than 12 months, they will lose their job. That very useful policy memorandum raises the issue that there is a difference between that situation and the situation with councillors; it appears that the time period for councillors is more than three months, rather than more than 12 months. The memorandum asks whether that should be dealt with, possibly at stage 2.

The proposal that I make in my bill, which you will not have seen yet—the bill is being drafted at the moment and I expect that it will be ready before the summer recess—is to reduce the period for MSPs to six months. That would still leave a disparity, so should we deal with that issue in the bill that we are looking at today as opposed to dealing with it in my bill?

In relation to recall, Mr Simpson, I put on the record that I think it is for the Parliament to make that decision, probably using your bill as a vehicle. It is important that we have that discussion and, in my view, it is probably better coming from a member as opposed to the Government.

On criminal convictions, I have asked officials about people not being able to do their work and why there are those different time periods of three months and 12 months. I have learned that it all developed in a pretty arbitrary way over the years. The 12-month period came in after the IRA hunger strikes of the 1980s. The UK Government decided to bring that in because of that specific issue. With that in mind, the whole process has been pretty arbitrary as to months, times and dates. I would be quite happy to work with you, Mr Simpson, to find some kind of accommodation and balance to make it more uniform.

Might this bill be the place to do that?

We could look at that opportunity with you, to see whether we could do something.

I would be very happy to work with you on that basis.

I am happy to do so. You were not here earlier, when I said that I see the bill as the Parliament’s bill. The Scottish Government is sponsoring it, but I see it as the Parliament’s bill. If anyone has any ideas to make things simpler, or any practical ideas, I am happy to work with them.

Okay. I do not really have anything else to ask, convener.

That is fine.

What the minister said was very useful, so you will probably be seeing me at stage 2.

You are always welcome to come to our committee, even if it is just to observe it.

It is interesting that members who have taken the time to attend this morning seem to have had very profitable answers. That may be a good advert for early involvement in a bill.

I like to think that they came because the minister is so easy to get on with.

Of course.

Let me push you on one point that flows slightly from the question that you have just been asked. What is the Scottish Government’s view on dual mandates?

I am unaware of the Scottish Government having a view on dual mandates, but my own personal view, if you wish to hear it, is that I am uncomfortable—

On behalf of the Government?

I, personally—George Adam, MSP for Paisley—am uncomfortable with the idea of a dual mandate for two Parliaments. That is purely my personal view on the issue. I have held it since 1999, ironically enough, because I remember making the same noise as a young man in the Scottish National Party at the time. You will remember the transition. The Parliament had a number of such MSPs and, at the time, we were told that that process was for that parliamentary session only.

Thank you for that.

I have a couple of further points. One goes back to your letter of 15 March to the convener of the Local Government, Housing and Planning Committee, in which you made reference to the policy memorandum with regard to automaticity. I presume that, following what has gone on the record today, you are in a better position now to write back to both that convener and this committee on automaticity—in essence, capturing the evidence that we have heard today.

My final point—genuinely—is the question of post-legislative scrutiny. In the evidence that we have heard, including the evidence today, we have had discussions on the on-going role of pilots. What should the bill contain to ensure that there is proper and adequate post-legislative scrutiny on that? Next—I ask the question very specifically, and you will know why—on whom should the responsibility rest: the Scottish Government or the Scottish Parliament? Is this the bill in which we can define that responsibility?

I do not believe that it should be part of the bill, and—you will probably not like my answer—I believe that the Parliament should do the post-legislative scrutiny. Part of me will always be the back bencher who has probably been on every committee in this Parliament apart from those covering rural issues. As a back bencher, I used to get quite upset at not being able to do some post-legislative scrutiny—I know that we have done a lot more of it lately, during this session in particular. I think that it is for the Parliament to do that scrutiny. That is the right place for it.

Potentially—subject to approval—it is right that the bill should indicate that post-legislative scrutiny is important. Will the Government therefore give consideration to the inclusion in the financial memorandum of the on-going and subsequent costs of that? That is something for you to think about; I will not hold you to giving a “yes” answer straight away.

I am happy to think about it and to look at any potential wording and ways of putting that forward.

That is very helpful.

Minister and those who serve you, I thank you very much for your evidence today. As you hinted, we have another matter to do with elections to deal with, but I thank you for your attendance today and I look forward to receiving the information that you have offered us.

I will do you another nice big letter.

Another nice big letter—thank you. [Laughter.]