Draft referendum bill: consultation analysis

4. Management and mechanics of the referendum

Introduction

4.1 The previous chapter provided a summary of the main points in the responses of key stakeholder organisations. This chapter and Chapter 5 discuss the views of all other respondents in relation to the five consultation questions.

4.2 This chapter focuses on views about the proposals for the management and mechanics of holding a referendum - that is, respondents' views in relation to the first two consultation questions. This chapter also includes comments made by respondents in relation to issues discussed in the first chapter of the consultation paper.

4.3 Chapter 1 of the consultation paper set out the context for a possible second independence referendum and discussed the expectation that a section 30 order would be sought from the UK Parliament. ^[5] It also stated an intention to use the same question used in the 2014 referendum, and for the outcome of the referendum to be decided on the basis of a simple majority. None of the consultation questions specifically asked for views on these topics.

4.4 Chapter 2 of the consultation paper set out the Scottish Government's proposals for managing and regulating the referendum. These covered:

• The proposed role of the Electoral Commission in regulating and overseeing the referendum.
• Arrangements for conducting the poll including the role of the Chief Counting Officer and local counting officers; issue of polling cards for absent and proxy voting; designation and management of polling stations; publishing notice of the referendum; ballot security; counting the votes; and declaring the result.

• The eligibility to vote: The franchise for the referendum would be the same as for Scottish local government and Scottish Parliament elections.
• Absent voting (postal and proxy voting): Proposed changes would require proxy voters to be registered voters themselves; would restrict access to emergency proxy votes; and would require that personal identifiers are checked on 100% of postal voting statements.
• Polling and count staff: There would be a duty on counting officers to not knowingly appoint or employ polling or count staff who have been involved in campaigning during the referendum.
• Verification statements: Counting officers would be required to supply a copy of the verification statement (which confirms the number of ballots counted equals the number recorded) to any counting agent upon request.

4.6 Questions 1 and 2 were as follows.

Question 1: What are your views on the proposed arrangements for managing the referendum?

Question 2: What are your views on the proposed technical changes to polling and count arrangements?

4.7 In responding to these questions, however, respondents offered comments about the full range of issues raised across both Chapters 1 and 2 of the consultation paper. The predominant themes in the comments related to: the franchise for the referendum, concerns about the security of voting, and the prevention of voter fraud (as part of a wider discussion about arrangements for conducting the poll and the count). These and other themes will be discussed further below, under the general headings of: (i) arrangements for managing the referendum; (ii) proposed technical changes to polling and count arrangements, and (iii) comments on other aspects of the referendum arrangements. (This third section covers respondents' views about the issues discussed in Chapter 1 of the consultation paper.)

4.8 Respondents to the consultation expressed a range of views on the Scottish Government's proposals for managing a future referendum. On the one hand, some endorsed the proposals. On the other, there were concerns expressed (particularly in relation to security issues), as well as disagreement with certain proposals (particularly in relation to the franchise).

Arrangements for managing the referendum

4.9 In setting out their views on the management of the referendum, respondents often commented on the significance of a referendum on Scottish independence, which was seen to be entirely different from an ordinary election where elected politicians could be voted out after five years. Thus, they repeatedly called for additional, more stringent measures to be put in place to ensure confidence in the outcome of the vote.

Role of the Electoral Commission

4.11 On the one hand, there was support for the Electoral Commission and its role in providing an important, useful and independent role in overseeing and regulating the referendum. In particular, respondents thought the Electoral Commission had a valuable role to play in setting the referendum question, in overseeing any campaign activity, and in regulating the registration of permitted participants and recording expenses. There were also positive comments about the Electoral Commission's work in reviewing the conduct of the previous referendum, and endorsement of their recommendations. Some also wished to see the Electoral Commission have a greater role in overseeing electoral procedures, or thought that the powers of the Electoral Commission might be extended and strengthened, for example, with regard to ensuring the security of the ballot, following up apparent breaches of rules, or providing or scrutinising campaign information.

4.12 On the other hand, some respondents expressed dissatisfaction with the role played by the Electoral Commission in the 2014 referendum. This group was particularly critical of what they considered to be the lack of action taken by the Commission in the face of perceived breaches of electoral rules. At a general level, these respondents said they did not 'trust' the Electoral Commission, did not see it as impartial, or did not think it was sufficiently independent of the UK Government. Some also suggested that the Electoral Commission could not be truly impartial, given its existing links and contacts with different individuals and organisations in Scotland ( i.e. local authority staff and government officials).

4.14 On the specific issue of reporting and accountability, there were differing views on who the Electoral Commission should report to with regard to a Scottish independence referendum. Although some agreed that the Commission should report to the Scottish Parliament, there were two other less common views: that the Commission should report to the Scottish and UK Governments; and that the Commission should report to the UK Government and not to the Scottish Government. A few respondents queried the principle of the Electoral Commission reporting to Parliament at all, and suggested that this compromised its independence. This group wanted to see an entirely independent body established.

4.15 There was also a small number of comments about the relationship between the Electoral Management Board for Scotland and the Electoral Commission. Some argued that the Electoral Management Board could fulfil the functions of the Electoral Commission, while others argued, conversely, that the Electoral Management Board was not needed and that the Electoral Commission could carry out any relevant duties. There was also a view that there should be a separate Scottish Electoral Commission.

Concerns about security in relation to the conduct of the poll and the count

4.16 In relation to the conduct of the poll and the count, as mentioned above, one of the most prevalent themes in respondents' comments was a concern about security and the possibility of electoral fraud. These concerns were reportedly based on respondents' own experiences from the 2014 referendum, or on media reports or videos which respondents said were circulated on social media after the referendum. Among those who raised such concerns, there was a widespread view that a range of actions should be taken to tighten up security arrangements for any future referendum.

4.17 In relation to any future referendum, the main concerns raised by this group of respondents related to the:

• Potential for fraudulent use of postal and proxy voting
• Receipt, handling, counting, and 'sampling' of postal votes
• Handling and transportation of ballot boxes
• Neutrality of the polling and count staff
• Printing of ballot papers
• Scrutiny of voter registration
• Confirmation of identification at polling stations.

4.18 Each of these concerns - some of which are linked - is discussed in greater detail below, together with suggestions offered by respondents for how they could be addressed. However, the main suggestion respondents made to address all the concerns about security and the potential for fraud, was the introduction of independent oversight of the poll and the count. This perceived need for independent oversight has already been mentioned above (at paragraph 4.13), and is covered in more detail below in paragraphs 4.38 to 4.41.

Postal and proxy voting

4.20 Some respondents also suggested that the opening and counting of postal votes had not been done correctly. There were frequent allegations that, in 2014, postal votes had been 'sampled', and 'opened early' and that politicians had got early sight of the results of the postal ballot. Respondents repeatedly emphasised that postal votes should not be opened in any circumstances before the main poll closed. They also wanted assurance that postal votes would not be taken outside Scotland to be counted.

4.21 In general, and irrespective of whether they expressed concerns about postal voting, respondents supported the proposal set out in the consultation paper to require 100% checking of personal identifiers on all postal voting statements. However, some of those who had concerns wanted to see postal voting restricted to those who were clearly unable to attend the polling station in person ( e.g. those who were disabled, unwell, serving overseas in armed forces, etc.) and some respondents went further and called for postal voting to be disallowed altogether.

4.22 Proxy voting was also mentioned by respondents concerned with fraud, but to a much lesser degree than postal voting. Some respondents wished proxy voting - and especially emergency proxy voting - to be more carefully scrutinised. This group believed there was scope to reduce proxy voting. The large increase in the numbers of emergency proxy votes recorded in the 2014 referendum was highlighted and these respondents thought the reasons for this increase should be examined.

Handling and transportation of ballot boxes

4.23 Some respondents expressed concerns about the handling and transportation of ballot boxes. Among this group, it was generally thought that security of these operations needed to be tightened up. Respondents described scenarios from the 2014 referendum which they thought indicated that ballot boxes had been interfered or tampered with.

4.24 Suggestions made by respondents to improve security included: (i) opening and counting boxes at the polling station rather than transporting boxes to counting stations; (ii) ensuring that boxes are sealed securely, numbered, and the details recorded and signed off before boxes are moved; (iii) providing for representatives from both sides of the campaign to travel with ballot boxes when they were moved to counting stations; (iv) providing for ballot boxes to be escorted by security staff / police when being transported; (v) ensuring that no ballot boxes are opened before the official count; and (vi) not allowing any boxes to be transported outwith Scotland.

4.25 More generally, respondents with concerns about security highlighted the importance of having a comprehensive audit trail for the sealing, handling, transporting and opening of ballot boxes.

Polling and count staff

4.26 Among those who made comments about security issues, there was widespread agreement with the proposal in the consultation paper that the counting officer must not knowingly appoint or employ anyone who has been involved in campaigning during the referendum. However, there was also a view that this change did not go far enough in ensuring the neutrality of polling and count staff.

4.27 Some respondents argued that anyone who was to be involved in these roles should be subject to full background checks before they could be appointed, and that it was not just the counting officer, but also local returning officers and election administrators more generally who had a responsibility in this regard. Moreover, given that the use of social media to express views is widespread, some respondents also questioned how 'involvement in campaigning' was to be defined. They also asked for further detail about: (i) how 'knowingly' would be assessed and (ii) how this would be enforced in practice.

4.28 An alternative view, expressed less often, was that there should be no restriction on appointing campaigners as polling and count staff, as security would improve if individuals from both sides of the campaign were knowingly appointed in these roles.

Printing of ballot papers

4.29 Another specific issue which was raised by some respondents concerned the printing of ballot papers. These individuals claimed that in 2014, some ballot papers had been printed without a barcode. This, it was suggested, was an example of potentially fraudulent practice as ballot papers could then not be uniquely linked to an entry on the electoral register.

Scrutiny of voter registration

4.30 Respondents who expressed concerns about security issues also often raised queries about whether the voter registration system was sufficiently robust. Some expressed the view that individual entries on the electoral register were not always fully verified. This point was raised particularly in the context of the 2014 referendum, with some respondents believing that inadequate scrutiny had resulted in individuals whose main domicile was outside Scotland being allowed a vote (usually by post). This is discussed further in relation to the eligibility to vote ( paragraph 4.45 below). More generally, some respondents were concerned that requests for a postal vote were not adequately scrutinised.

Voter identification

4.31 Among those who voiced security concerns, there were repeated requests for voters to produce identification at polling stations. Most commonly, these respondents thought that anyone voting at a polling station should not only be required to present their polling card, but also to present some form of photo identification ( e.g. driving licence, passport). Others argued that voters at polling stations should, in addition, be expected to provide proof of residency (in the form of a National Insurance number, utility bill, or bank statement).

Other suggestions for improving security

4.32 Five further suggestions for improving security and guaranteeing the integrity of the exercise were made on a relatively frequent basis. These were: (i) making more - and better - use of new technologies; (ii) retaining ballot papers for a period following the declaration of the result; (iii) introducing a verification process so that individual respondents could 'check' that their vote had been registered and counted correctly; (iv) introducing exit polls; and (v) using pens rather than pencils to mark ballot papers. These are discussed in turn below.

4.33 Some respondents thought that there was scope to use new technologies to improve the security arrangements for any future referendum. In particular, they suggested that (i) video cameras and CCTV should be introduced on a wide basis and (ii) the introduction of online voting would allow more robust scrutiny and verification procedures to be put in place. Note however, that other respondents also questioned whether online voting would allow voter anonymity to be preserved.

4.34 As far as the retention of ballot papers was concerned, some respondents were in favour of keeping these for a period following the declaration of the result. According to those who suggested this, it would then be possible to conduct a full audit at a later stage if questions were raised about the integrity of the conduct of the poll and the count. ^[6]

4.35 Occasionally, respondents requested that a verification process be introduced to enable individuals to check how their own vote had been recorded. This was mentioned in the context of introducing new technology which would allow voters to log on to a secure site where they could 'track' and audit their own details and vote.

4.36 There was also some support for the introduction of exit polls. It was thought that this would enable a check to be made of whether the result from a particular polling station was in line with that predicted by the exit poll.

4.37 There were also some concerns that the use of pencils to mark ballot papers introduced the possibility of tampering and fraud. Respondents who raised these concerns preferred a system which required ballot papers to be marked in pen.

Need for independent oversight

4.39 Those who called for this argued that some form of independent oversight was necessary to build confidence in all aspects of the conduct of the poll and the count (and indeed the campaign more widely). Various respondents discussed the need for independent oversight in relation to: the formulation of rules and procedures for the poll and count; all activities at polling stations; the transportation of ballot boxes; and the conduct of the count, including the count of the postal votes and adjudication of spoilt ballot papers.

4.40 Most commonly, there was a desire for this oversight to be provided by an organisation from outside the UK. Respondents emphasised the importance of impartiality and neutrality, and so believed that this meant using an international body. The organisations mentioned most frequently were the EU and the United Nations. Other organisations, mentioned less often, included the European Council, the Organisation for Security and Co-operation in Europe ( OSCE), and the Office for Democratic Institutions and Human Rights ( ODIHR).

Proposed technical changes from the 2014 referendum procedures

4.42 As discussed in paragraph 4.5 above, the proposed technical changes concerned: (i) eligibility to vote; (ii) absent voting; (iii) polling and count staff; and (iv) verification statements.

4.43 Respondents' comments about absent voting and polling and count staff were generally made in the context of a wider discussion of security issues which have been covered above. This section therefore focuses on comments made in relation to the proposed technical changes regarding verification statements and the eligibility to vote.

Verification statements

4.44 A small minority of respondents offered comments on the proposal for 'the counting officer [to] supply a copy of the verification statement (which confirms that the number of ballots counted equals the number recorded) to any counting agent on request'. The proposal was welcomed, with these respondents agreeing that this would improve the transparency, security and fairness of the referendum arrangements. Occasionally respondents commented that the proposal did not go far enough; they wished verification statements to be supplied in all cases, not just on request by the counting agent.

Eligibility to vote

Views in relation to the principle of a franchise based on residence

4.46 There were conflicting views about having a franchise based primarily on residence. Some agreed with the consultation paper that a franchise based on residence was appropriate since only people living in Scotland would be affected by the outcome of the vote. This group agreed that voter eligibility for any future referendum should be the same as Scottish local government and Scottish Parliament elections, and they also believed it should be the same as it was for the 2014 referendum. Some also commented that it was appropriate that EU citizens resident in Scotland should be able to vote in a Scottish independence referendum; these respondents believed it was not right that EU citizens resident in the UK had not been permitted to vote in the UK referendum on EU membership.

4.47 Among those who were generally supportive of a franchise based on residence, however, the main concern was about the possibility of individuals claiming residence who were not truly resident, or who were only resident for a temporary or short period of time. This would include, for example, people who own holiday homes in Scotland, but who do not live there; students from England or other countries who would return to their own countries when they finished their course; members of the armed services based in Scotland on a temporary basis; and recently arrived migrant workers. In general, respondents who commented on this issue wanted the franchise to be given only to permanent residents of Scotland, and they usually defined permanent status in terms of length of residence, or proven economic or social contribution to Scotland.

4.48 Specifically, some argued that residence should be based on a minimum period of time, and that only those who met this threshold should be eligible to vote. Suggestions ranged from 3 months to 15 years, with the most common suggestion being a period of 5 years. Others argued that 'proof' of residence should be required to be able to vote in the referendum. Such proofs could include, for example, evidence of employment, payment of council tax, having a Scottish tax code, or being in receipt of child allowance or welfare benefits in Scotland.

4.49 Given these types of arguments, some respondents suggested that if the eligibility to vote is to be based on residence, then that should include all residents of Scotland. This group thought that the definition of residency should be expanded to include everyone living permanently (for a specified number of years) in Scotland. This would include, for example, citizens of non- EU non-Commonwealth countries ( e.g. the United States, Norway, Iceland, Japan, etc.) who had indefinite leave to remain. They also made the point that the eligibility to vote as described in the consultation paper was, in fact, not based on residence at all, but rather on citizenship - i.e. citizens of some countries would be eligible to vote, while citizens of other countries would not. These respondents thought that the franchise for the referendum should include all permanent residents of Scotland, regardless of their citizenship.

Voting by Scottish expatriates

4.50 However, the issue raised most often by respondents in relation to eligibility to vote was about whether people who had been born and raised in Scotland, but who were now living outside of Scotland ( i.e. elsewhere in the UK or abroad) should have the right to vote. ^[7] Among those who raised this issue, the more common view was that Scottish expatriates should be able to vote in the referendum. This group questioned the fairness of EU citizens living in Scotland being able to vote, while Scottish people living in Europe could not. Those who put forward these arguments often commented that they themselves were currently living outside of Scotland (usually 'temporarily'), but that they still considered themselves to be Scottish and wanted to vote in the referendum.

4.51 The alternative, less common view was that Scottish people living outside of Scotland should not be permitted to vote in the referendum. Some highlighted the practical and administrative difficulties of allowing Scottish people living outside of Scotland to register to vote in the referendum, while others suggested that expatriates should only be able to vote if they could prove a long-standing connection to Scotland. Respondents were not always specific about how this long-standing connection should be proved, with some simply suggesting that eligible voters living temporarily outside of Scotland must 'pass a test of permanent residency in Scotland'. However, some of the more specific criteria mentioned were:

• Having a Scottish-registered birth certificate
• Continuing to own property in Scotland
• Having a valid UK passport and evidence of permanent residence in Scotland within the past 10 (or 15) years.

4.52 Regarding the latter point, some respondents noted that current election rules allowed British citizens living abroad to vote in UK parliamentary elections for up to 15 years after moving to another country. This group argued that, given the possible implications of the Scottish independence referendum for the UK constitution, this same rule should apply to UK citizens born and raised in Scotland who were currently living overseas.

Views about the eligibility to vote by specific groups

4.53 Respondents who expressed views in relation to the franchise sometimes commented on the proposed eligibility of certain groups mentioned in the consultation paper. Within these comments, the main focus was on the eligibility of EU and Commonwealth citizens and of 16- and 17-year olds:

• EU citizens and Commonwealth citizens living in Scotland: There were conflicting views about whether EU and Commonwealth citizens living in Scotland should be able to vote. Some respondents agreed that if the franchise is to be based on residence, then these groups should have a vote. However, others thought that it was unacceptable that any non- UK citizen should participate in a vote which could result in the break-up of the United Kingdom. Others were ambivalent, believing that EU citizens should only be able to vote if they had passed the 'permanent residence' threshold.
• 16- and 17-year olds: There were also conflicting views about whether 16- and 17-year olds should be able to vote in the referendum. Those in favour emphasised that people aged 16 and above were the future of Scotland and more affected by the outcome of the referendum than any other age group. These respondents also pointed out that the 2014 referendum had demonstrated the value of including this age group in the franchise. By contrast, those who were opposed, perceived under-18s as not having the knowledge, experience or maturity to participate 'in a decision of such gravity'.

4.54 Some respondents also referred to other groups mentioned in the consultation paper, including members of the House of Lords and Armed Forces personnel. Regarding members of the House of Lords, the predominant view was that this group should only be able to vote in the referendum if they met the criteria of permanent residence - as any other voter. Regarding Armed Forces personnel, there were conflicting views: on the one hand, there was agreement that any individual serving in the Armed Forces and registered to vote in Scotland should have a vote in the referendum; on the other, there was a view that eligibility to vote by members of the Armed Forces should depend on certain conditions - for example, whether they were born in Scotland, whether they were permanently or temporarily based in Scotland, whether their family was based in Scotland.

4.55 One group which was not specifically discussed in the consultation paper, but which respondents frequently discussed in their comments about voter eligibility were 'holiday home owners'. Respondents were particularly concerned about non-resident property owners registering to vote in the referendum using their holiday home as their address. As discussed above in relation to concerns about postal voting ( paragraph 4.19), some respondents claimed they personally knew of cases where this had happened in the 2014 referendum and they alleged that the large number of postal votes cast in the 2014 referendum were at least partly due to non-resident property owners registering to vote in this way. The general view among those who raised this issue was that holiday home owners, who were not otherwise resident in Scotland, should not be eligible to vote in the referendum.

Views on prisoner eligibility to vote

4.56 Finally, a small number of respondents raised the issue of voting by prisoners. Among this group, which includes the Howard League, there was support for prisoners in general, or certain classes of prisoners, to be able to vote in the referendum. There was also a slightly different view that, while the time may not be right to allow convicted prisoners to vote, persons held on remand, who are already eligible to vote, should be given every assistance and support to register to vote.

Other views about the franchise

4.57 Very occasionally, respondents suggested other groups who should not be permitted to vote in the referendum. These included, for example, certain groups of older people (those over 80 were mentioned) or people who 'lack capacity'.

Comments on other aspects of the referendum arrangements

4.58 The introduction to the consultation paper ('Section 1 Introduction and Context') covered three issues relevant to holding a referendum: the use of a section 30 order to allow the Scottish Parliament to legislate for a referendum; the question to be used on the ballot paper; and turnout and threshold requirements for the referendum. Although the consultation paper did not include questions on these issues, some respondents nevertheless offered comments on them, as discussed below.

Use of a section 30 order

4.59 The consultation paper stated that it would be expected that a section 30 order would be sought and agreed, as in 2014. This proposition and the relative powers and roles of the UK and Scottish parliaments in authorising and running a referendum attracted limited comment and some conflicting views.

4.60 On the one hand, some respondents were positive about there being a role for the UK Parliament. However, some within this group felt that a section 30 order should not - or would not - be granted in the current circumstances ( e.g. so soon after the 2014 referendum, without evidence of clear demand from people in Scotland). These respondents also sometimes argued for the UK Government to have a greater role in organising and overseeing any referendum which went ahead ( e.g. in setting the question to be used, in setting the campaign rules etc.).

4.61 In contrast, other respondents argued that a section 30 order should not be required in order for the Scottish Parliament to proceed with legislation. Some within this group expressed concern about perceived UK government / UK establishment 'interference' in the referendum, saying that they did not trust the UK Government.

The referendum question

4.62 Comments regarding a possible future referendum question touched on several issues. Although some agreed that the same question should be used, others argued for a redesigned question.

4.63 Those who favoured retaining the same question as used in the 2014 referendum did not always offer reasons for their views. However, those that did argued that the question was simple and easily understood; they also noted that people were familiar with the question, and that retaining it offered an important degree of consistency in the process.

4.64 Those favouring a revised question did so for two main reasons: (i) they thought the question used in the 2014 referendum was 'biased'; or (ii) they thought the previous question was no longer appropriate due to the significantly changed circumstances.

Turnout and approval threshold

4.65 A significant minority of respondents offered comments on the proposal to use a simple majority in a future referendum. Those who raised this issue referred to two sub-issues: an approval threshold and a minimum turnout.

4.66 Some endorsed the government's proposal to use a system based on a 'simple majority' (50%+1 of the votes cast), noting that the use of a simple majority was 'standard practice', and highlighting that this approach had also been used in other recent UK referenda. They also thought that a minimum turnout / approval threshold would disadvantage those campaigning for change ( i.e. independence).

4.67 However, if respondents raised this issue, it was more common for them to argue against using a simple majority. Within this group, the main argument put forward was that major constitutional change should not be taken forward on the basis of a simple majority, particularly when this might be combined with low voter turnout.

4.68 Those arguing for turnout and / or threshold requirements put forward a range of specific suggestions which included the following:

• A winning threshold of between 55% and 70%
• A winning 'differential' of between 10% and 20%
• A minimum turnout of between 66% and 85%.

4.69 Moreover, it was common for respondents to seek a combination of turnout and threshold requirements.

4.70 Other respondents emphasised the importance of the outcome of any vote attracting strong support and thought that consideration should be given to steps which might maximise turnout ( e.g. introducing compulsory voting, holding the poll at the weekend, or introducing online voting, etc.).

4.71 Respondents also made a number of suggestions regarding other 'conditions' which they thought should be attached to any referendum (all put forward by a small number of respondents only). These included restrictions on holding further future referenda; the need for a majority vote for independence across all geographic or council areas in Scotland for the result to be acted upon; and the use of a two stage process with a first referendum establishing support / opposition 'in principle' with respect to independence, and a second referendum (if appropriate) on the terms of any agreed settlement.