Proposals on secondary legislation the Land Reform (Scotland) Act 2003 part three: crofting community right to buy as amended by the Community Empowerment (Scotland) Act 2015: consultation

5. Right to Buy Ballot

Conduct of ballot

Background

As part of a crofting community right to buy application, a CCB is required to demonstrate to Ministers that is has the approval of its "crofting community" to its proposal to exercise its right to buy the eligible croft land etc.

The way in which the ballot is to be conducted is set out in section 75 of the 2003 Act and in secondary legislation which specifies how the ballot is to be conducted and how the results are to be published.

The Scottish Government has proposed the way in which the ballot should be conducted. Their proposals include: holding it as a secret postal ballot; the CCB ascertaining the persons eligible to vote as according to the appropriate sections of the 2003 Act; the date and place of the ballot being notified in writing to all eligible voters not less than 10 days prior to the ballot; and each eligible person being provided by the CCB with a stamped addressed envelope for returning the completed ballot paper.

Question 4: Do you agree with the proposals that set out how the ballot should be conducted, as outlined above?

Eight respondents provided a response with six agreeing with the proposals set out.

Highlands and Islands Enterprise suggested that, in addition, the provision for voting in person at a polling station should be considered. Argyll and Bute proposed that an independent observer could usefully be appointed to oversee the counting of votes and certify that the total votes counted and allocated were accurate.

Scottish Land and Estates requested clarity on the criteria for validating the ballot result in terms of the threshold for accepting a majority vote and the minimum turnout percentage acceptable.

Shetland Islands Council and Shetland Partnership both indicated that they disagreed with the proposals, arguing that these ignored those with other interests in the land such as fishing or mineral lets. They also expressed concern that there appears to be no requirement for public consultation other than with the CCB.

Proxy votes

Background

The Scottish Government proposes that a person eligible to vote may make a request in writing to the CCB to be permitted a proxy vote. It is proposed that this request must comply with certain conditions such as stating the name and address of the person eligible to vote and the name and address of the person they wish to appoint as a proxy; and contain a statement to confirm that the eligible voter has consulted the proxy who has agreed to act as proxy and is capable of doing so.

Question 5: Do you agree with the process to make a request for a proxy vote, as outlined above?

Seven respondents agreed with the proposals. Two respondents provided further sugestions.

Argyll and Bute Council proposed that the deadline for lodging a proxy vote nomination be extended from 1700 hours on the day before the date on which the ballot paper must be returned to 48 hours before the ballot, to allow sufficient time for the CCB to update its ballot records.

Scottish Land and Estates suggested that, to be consistent with standard electoral procedure, a limit should be placed on anyone acting as proxy to do so for a maximum of two electors, other than close relatives.

Notification of ballot results

Background

A CCB is required to return its ballot results to Scottish Ministers within 21 days from the date of the ballot, or if the application to exercise the right to buy is made sooner, the date of the application.

The way in which the ballot results are notified or returned to Ministers is set out in section 75(4) of the 2003 Act.

The Scottish Government proposes a form of the return that the CCB must use to notify the result of the ballot, and set out the format of the form in the consultation paper.

Question 6: Are you content with the format of the form for the ballot return, as outlined above?

Seven respondents were content with the format of the proposed ballot return form. Two respondents made further suggestions.

Highlands and Islands Enterprise made two suggestions for rationalising the return. Firstly, they proposed that Questions 1 and 11 be combined as both referred to contact details for the CCB. Secondly, they considered that question 3 was longwinded and lacked clarity on what information was requested. They recommended re-wording to make this clearer.

Argyll and Bute Council proposed that the form should have a section to be certified by the independent person who oversaw the count process along with the person's contact details.

Public notification of CCB's ballot return

Background

The 2003 Act sets out that Ministers can determine provisions for ascertaining and publishing the number of persons eligible to vote in the ballot, the number who did vote and the numbers of valid votes respectively cast for and against the proposition in the ballot.

The Scottish Government proposes that the CCB should make known to the crofting community and the wider community the ballot results not later than 14 days from the day specified for the return of the ballot papers. This should be made in a newspaper circulating in the vicinity of the community.

Question 7: Are you content with the process that should be used to make public the results of the ballot, as outlined above?

Seven respondents indicated that they were content with the process as outlined. In addition, Argyll and Bute Council and Scottish Land and Estates both proposed notification of the ballot return online, perhaps on the Scottish Government website.

Retention of the ballot papers

Background

The Scottish Government considers that it is good practice to retain ballot papers after a ballot or election has taken place and that the CCB should follow this procedure and retain paperwork associated with the conduct of the ballot for a period of two years after the date by which the ballot papers must be received. The Scottish Government identified five categories of information which the proposed that the CCB must retain.

Question 8: Are you content with the categories of information that the crofting community body must retain in connection with its ballot to ascertain community support to exercise its crofting community right to buy, and the timescale in which that information is to be retained?

All eight respondents who provided a view were generally supportive of the proposals relating to retention of the ballot papers. Argyll and Bute Council, however, proposed that retention should be for only 12 months, in keeping with other election protocol. This council also recommended that all ballot materials be sealed up after the count and only be opened if there is a formal request made in accordance with the regulations.

Access to the ballot papers

Background

Members of the crofting community, the landowner, or a party with an interest in the land to be purchased under the crofting community right to buy, may wish to gain access to the ballot papers after the ballot has been conducted, for example, as part of an appeal under the 2003 Act.

The Scottish Government proposes that there is a process set up to deal with requests to access any documentation relating to the ballot. It also proposes that within 28 days of a request being made to the CCB, it must make available any information, ballot papers, evidence, requests of records, for inspection by Ministers, or any person with a right of appeal under section 91(2) of the Act.

Question 9: Do you agree that there should be a process to deal with requests for any documentation relating to the ballot?

Question 10: Do you agree with the process that has been set out above?

The responses to these two questions overlapped, with respondents tending to address them together.

All respondents were of general agreement that there should be a process to deal with requests for documentation relating to the ballot. This was seen as providing clarity and being seen to be fair.

The process set out was perceived to be straightforward, with 28 days permitted for provision of information by the CCB being viewed as reasonable by all except for Scottish Land and Estates who argued that 14 days should be sufficient, given that the information should be readily available.