Electoral Reform Consultation Analysis

6. Administration and Governance

This chapter presents the analysis of questions about the roles and oversight of Boundaries Scotland, the Electoral Commission and the Electoral Management Board.

Boundaries Scotland

Boundaries Scotland is an independent Commission which reviews and makes recommendations on the boundaries of constituencies and regions for the Scottish Parliament, and Local Government wards.

Legislation passed in 2020 removed the ability for Scottish Ministers to change or reject Boundaries Scotland proposals and gave these powers to the Scottish Parliament. Currently, proposals from Boundaries Scotland are considered by a Parliamentary Committee. The Committee can either recommend that Parliament approve the proposals, or it can ask Boundaries Scotland to conduct a further review of their proposals.

The Scottish Government is considering additional ways of preventing political influence on the boundary-setting process. Several options are proposed, with full details available in the consultation paper:

Option 1 – Remove the requirement for Boundaries Scotland to review proposals if they are rejected by the Scottish Parliament. This would remove the potential for a back-and-forth between Boundaries Scotland and the Parliament if they could not agree, but risks boundaries becoming increasingly out of date if the Parliament rejects proposals.

Option 2 – Change how Parliament scrutinises Boundaries Scotland proposals, so they could only reject or change the proposals if there were concerns that Boundaries Scotland had not followed their duties as set out in law. This limits the ways that Parliament can scrutinise the proposals but would help to ensure objections were linked directly to Boundaries Scotland's methodology, limiting opportunities for political interference.

Option 3 – Move to a process called 'automaticity', where legislation implementing the proposals made by Boundaries Scotland comes into effect automatically; without Parliament or Ministers having the final say over being able to reject or modify the reports. Versions of automaticity are used in the boundaries-setting process for the UK Parliament and in countries including Australia, Canada, and New Zealand. This approach would give Boundaries Scotland more independence from political issues, and there are options available to allow Parliament to retain some elements of scrutiny over the process.

Question 41: Do you think the process for approving boundary changes should be changed, and which of the options set out above would you prefer?

Two fifths (39%) of those who answered Q41 felt there should be no change to the process for approving boundary changes. The third option was the most popular of the three options presented in the paper, backed by 34% overall and three quarters (75%) of organisations, including Boundaries Scotland. Of those who supported one of the three options presented in the paper, 58% supported Option 3 overall, as did 86% of organisations.

No alternative boundary-setting processes were suggested by those individuals who selected 'other option' in response to Q41. Instead, open comments reflected more general views about the boundary setting (which are considered under Q42), four said they were unsure, and one said they were unhappy with any of the options.

Question 42: Do you have any further comments on this topic?

Question 42 received 70 open-text responses. Few respondents provided additional commentary on each of the options, instead sharing more general views on boundary-setting. Several expressed concern that the process of changing constituency boundaries is open to political interference and can be used for political gain or gerrymandering. The importance of impartiality was emphasised by many, with a few suggesting that boundary-setting powers should be outwith the control of political bodies entirely.

"Changes should not be made by anyone that stands to benefit from the changes. That should automatically exclude everyone involved in government or in the election itself. A third party should make the decisions based without bias or political advantage." - Individual

A few respondents described boundary changes as confusing and unnecessary in most cases and argued they should only be implemented under limited circumstances, such as substantial changes in the population of an area.

Two felt there are currently too many constituency areas in Scotland and suggested some small constituencies should be merged. One described the requirement for population equivalence of wards as unfair to areas of lower population.

Some called for more consultation and engagement with local communities and representative groups regarding potential boundary changes. One disagreed with Scotland having its own devolved Boundary Commission and suggested that constituency boundaries should be managed by a UK-wide Boundary Commission.

A few expressed support for Option 3 - the move to 'automaticity' - under the condition that the process is open to scrutiny and measures are in place to ensure all legal obligations are met. Others shared more general comments about the importance of having sufficient oversight, regulation and risk assessments in place whichever option is pursued.

Electoral Commission

The Scottish Elections (Reform) Act 2020 made the Electoral Commission more accountable to the Scottish Parliament for its work on devolved elections but retained the overall supervisory role of the UK Parliament Speaker's Committee. The consultation sought views on whether any change needs to be made to the Scottish Parliament's oversight role.

Question 43: Should the Scottish Parliament take a greater role in oversight of the Electoral Commission's devolved activities? For example, the Electoral Commission's devolved activities, including their spending plans, being scrutinised by a Scottish Parliamentary Committee.

Respondents were broadly opposed to the proposal for the Scottish Parliament to have greater oversight of the Electoral Commission's devolved activities. Three fifths (60%) disagreed with the proposal, with four of the five organisations who answered the question disagreeing. The Electoral Commission did not express a view.

Question 44: Do you have any additional comments on the oversight of the Electoral Commission's activities in relation to Scottish Parliament and Local Government elections?

The majority of the 74 responses to Q43 focussed on the importance of the Electoral Commission's impartiality; many stressed the need for the Electoral Commission to remain free from political influence. As such, some expressed disapproval of the proposal to give the Scottish Parliament a greater role in the oversight of Electoral Commission activity.

"We are not comfortable with the changes outlined. It is essential the Electoral Commission is able to take a non-partisan approach to the democratic process, particularly in the guidance and support it provides to our members, electors, candidates and political parties. The Commission's independence is fundamental to maintaining confidence and legitimacy in our electoral system." - Association of Electoral Administrators

"Further oversight could be interpreted as further interference and reduced independence." – Individual

Some felt that oversight of the Electoral Commission should be entirely independent of both the Scottish Government and Scottish Parliament.

"I would like the Electoral Commission to be able to operate completely separated from politics/politicians. Any obvious or outrageous overreach in terms of spending could be dealt with by an independent committee." – Individual

One individual explained that while they generally disapproved of additional parliamentary oversight of the Electoral Commission, they supported the proposal as a counter to the UK Government extending its control over the Electoral Commission. Another agreed that Scottish Parliament should have an oversight role equivalent to that of Westminster.

A few respondents welcomed the Scottish Parliament having a greater role in oversight of the Electoral Commission, including COSLA, who recommended further engagement with relevant organisations and key stakeholders prior to changes being implemented. One individual suggested that further scrutiny should come from a UK-wide ombudsman rather than the Scottish Parliament.

Electoral Management Board for Scotland (EMB)

The EMB was set up on an interim basis in 2008 and became a statutory body with the Local Government Elections Act 2011. It promotes best practice in electoral administration and supports the electoral community in Scotland. The consultation sought views on how the role of the EMB might be developed and expanded.

Question 45: Do you have any views on the role and structure of the EMB?

Few respondents shared their views on the role and structure of the EMB; less than 50 comments were submitted under Q45. The most common theme was recognition of the importance of impartiality and transparency in the EMB's operations.

Some respondents recognised the role of the EMB in successfully upholding election standards and ensuring good practice and called for an increase in funding so that it can be adequately resourced in the future. A few suggested that the EMB should be granted new responsibilities, including enforcement powers and a duty to collate and publish reports setting out election results across Scotland.

"As part of its role the EMB should ensure that the results from all 32 local authority elections are collated in one place, ideally unaltered from the format produced by the computerised counting system and available in spreadsheet format too to assist those who wish access these files for research purposes." - Electoral Reform Society Scotland

However, some felt that the EMB is sufficient in its current capacity and argued against further expansion or development. Others were more critical, describing the EMB as 'unnecessary' or a 'superfluous expense' and calling for its disbandment; most of these comments were very brief and did not offer any reasoning for the criticism.

A few advised that a more detailed review of the EMB should be undertaken prior to any developments or expansions.

"Future decisions around the role and structure of the EMB, and its resourcing, must be informed by a wider review of its role to date and a more detailed appraisal of relevant options for its potential future development." – West Lothian Council

The EMB responded to this question, declaring their interest in the proposal and noting:

"…while what is expected of the EMB has developed, the legal structure, resourcing and formal remit remain as they were at its establishment a decade ago. These structures limit the ability of the EMB to fulfil the role increasingly expected of it and put at risk the Board's ability effectively to support elections in future.

That these questions are being considered is a signal of the success of the EMB, not its failure. It is due to the high esteem with which the EMB is viewed that its limits are becoming apparent. The electoral community expects much from the EMB.

The EMB has initiated work to consider what may be appropriate changes to its remit, resourcing and legal personality to allow it to respond to these expectations. These have been discussed with stakeholders including the Electoral Commission and with the Scottish Government and the Board would wish to continue these discussions as a result of this consultation."

Question 46: Should a Deputy Convener post be established, with power to exercise the functions of the Convener of the EMB if they are unable to act?

All organisations who answered Q46, including the EMB, agreed that a Deputy Convenor post should be established. Individuals were evenly split on the proposal with 51% in favour and 49% opposed.