Electoral reform: consultation analysis

4. Running elections (Q3 to Q7)

4.1 This chapter discusses respondents’ views in relation to who should run elections in Scotland.

4.2 The consultation paper set out current arrangements and described the roles and functions of the key organisations and individuals who contribute to the running of elections in Scotland. It also discussed (i) proposals to extend the role of the Electoral Management Board for Scotland to Scottish Parliament elections; and (ii) the role of returning officers at Scottish Parliament elections.

Role of the EMB in Scottish Parliament elections (Q3 and Q4)

4.3 Chapter 2 (Section 1) of the consultation paper set out the current electoral landscape in Scotland. It described the roles and responsibilities in relation to running elections of (i) the Scottish Parliament, (ii) the Scottish Government, (iii) the Electoral Commission (EC), (iv) the Electoral Management Board for Scotland (EMB), (v) returning officers (ROs), and (vi) electoral registration officers (EROs).

4.4 The consultation paper explained that since May 2012, the EMB and its Convener had had a statutory role in relation to local government elections in Scotland. This role includes (i) operational planning at national level, (ii) promoting best practice, and (iii) providing strategic consideration of legislation and policy.

4.5 The Scottish Government is now considering whether the EMB’s statutory role in relation to local government elections should be extended to cover Scottish Parliament elections as well. Respondents were invited to give their views on this proposal.

Question 3: Do you agree that the Electoral Management Board and the Board’s Convener should be given the same functions in relation to Scottish Parliament elections as they already have for local government elections? [Yes / No]

Question 4: Do you have any other views on the future role of the Electoral Management Board?

4.6 Table 4.1 below shows that a large majority (85%) of individual respondents and all organisational respondents (100%) who answered Question 3 agreed that the EMB should be given the same functions in relation to Scottish Parliament elections as it currently has for local government elections.

Table 4.1: Q3 – Do you agree that the Electoral Management Board and the Board’s Convener should be given the same functions in relation to Scottish Parliament elections as they already have for local government elections?

Respondent type	Yes		No		Total
	n	%	n	%	n	%
Organisations	29	100%	–	0%	29	100%
Individuals	568	85%	98	15%	666	100%
Total	597	86%	98	14%	695	100%

4.7 A total of 149 respondents – 27 organisations and 122 individuals – made comments on the role of the EMB at Question 3 and / or Question 4.

4.8 The main themes discussed covered (i) the positive contribution of the EMB (ii) the independence of individuals and organisations involved in running elections (iii) governance arrangements for the EMB and (iv) other duties and responsibilities of the EMB. Each of these is discussed below, followed by a final section covering ‘other comments’.

4.9 It should be noted that responses to this question revealed a degree of confusion about the current role of the EMB. This confusion was apparent especially, but not only, in relation to investigating electoral fraud and wrongdoing. This regulatory function is a role of the Electoral Commission not the EMB. However, responses indicated that respondents often thought the EMB was the body with responsibility for investigating electoral fraud. Related to this point, a small number of respondents (including both those who understood the current role of the EMB and those who did not) thought there was a need for increased public visibility / understanding of the role of the EMB.

Positive contribution of the Electoral Management Board

4.10 Respondents who answered ‘yes’ at Question 3, particularly those who were – or whose organisations were – directly involved in running elections, often set out the positive contribution made by the EMB to the running of (local) elections. These respondents thought:

• The EMB has shown strong leadership in relation to its remit. It commands the respect of EROs, ROs and other election officials. Its work is seen as important and effective.
• The EMB has increased the consistency of the approach taken across all 32 local authorities through the provision of guidance, training and advice in relation to the running of electoral events. This has led to greater efficiency and has improved the experience of voters.
• The way in which the EMB is constituted ensures the independence of ROs (who are appointed by local authorities). This is vital in maintaining the confidence and trust of voters (but see the comment at paragraph 4.19 below).

4.11 Given this positive assessment of the work of the EMB, respondents thought it made sense to extend its role to include Scottish Parliament elections, thereby ‘harmonising accountability and responsibility structures’. It was pointed out that both the EMB and the Electoral Commission have advocated this extension for several years. Indeed, it was argued that this change would simply reflect what is already current practice in many cases.

Independence of individuals and organisations involved in running elections

4.12 There was a strong focus in respondents’ comments on the importance of all individuals and organisations involved in running elections being (and being seen to be) independent. Both those who answered ‘no’ at Question 3 and those who answered ‘yes’ highlighted that any individual or organisation involved in running an election must be ‘non-partisan’, ‘impartial’, ‘independent of any political party’, ‘free from influence of donors’ and ‘not have any vested interests’.

4.13 However, there was not a uniform interpretation of what ‘independence’ meant in this context. Some respondents thought independence meant that the Scottish Government should have full control of any Scottish election. Others thought that any individual or organisation involved in running elections would have to be ‘completely independent of government’ whilst others thought they would have to be ‘totally separate from Westminster’.

4.14 Some individual respondents were opposed to extending the EMB’s responsibilities to Scottish Parliament elections because they perceived a lack of independence on the part of the organisations involved in running elections in Scotland (especially those organisations involved in running the 2014 Scottish independence referendum). These respondents said that on the basis of past experience they ‘did not trust’ the EMB to run fair elections.

4.15 A small number of respondents suggested that one way to ensure the independence of the EMB and the Convener (or indeed any organisation involved in running elections) was to improve the scrutiny and oversight arrangements. Suggestions included:

• Establishing an ‘independent commission’, ‘cross-party oversight’, ‘strong public oversight’ or ‘international oversight’ (e.g. by the UN)
• Arranging for the Electoral Commission to oversee the EMB (this is, in fact, the current arrangement)
• Ensuring a Scottish body has responsibility for overseeing Scottish elections.

Governance arrangements for the Electoral Management Board

4.16 Respondents raised a range of issues in relation to the governance arrangements for the EMB. These covered: (i) accountability arrangements (ii) role and remit (iii) appointment process for and role of the Convener (iv) the composition of the EMB and (v) the appointments process for the EMB. Each issue was raised by a relatively small number of respondents.

4.17 As far as accountability arrangements were concerned, respondents who mentioned this wished to be clear about where accountability for the EMB lay. Whilst some thought the organisation should be accountable to the Scottish Parliament, others suggested accountability should be with the Scottish public. One organisational respondent suggested the EMB should be an organisation ‘standing separate from Parliament and the minister but answerable to them’.

4.18 Regarding the role and remit of the EMB, the main issue raised was the importance of clarity (for the EMB, but also for other bodies in the electoral landscape). These respondents queried whether there was currently a duplication of duties between the EMB, the Electoral Commission, the Local Government Boundary Commission for Scotland and the Boundary Commission for Scotland. A clear definition of the organisation’s role and remit would need to set out, amongst other things, the legal responsibilities of the RO, and the distinctions between (i) general advice and guidance and (ii) legal direction and instruction. It was suggested that, if there was evidence of a duplication of duties, there may be a case for merging all these bodies into a single, overarching body.

4.19 Respondents who commented on the appointment process for, and the role of the Convener did this in the context of considering the ‘independence’ of the Convener (as discussed above in paragraphs 4.12–4.15). Specific comments were that: (i) the role of the Convener is a Ministerial appointment, and this fundamentally undermines the independence of ROs (since the RO cannot both be independent and also be accountable to a Ministerial appointee); (ii) the Convener should not have responsibility for appointing other members of the Board; and (iii) the Convener should be appointed by Parliament and not by Ministers if the role is to be independent.

4.20 Both general and specific suggestions were offered in relation to the composition of the EMB. The general point made by these respondents was that they wished to see a more diverse Board, drawn from a wide range of backgrounds and reflecting (protected) equalities characteristics. Specific suggestions were that:

• The Board should have at least two lay members
• The Board should have community representation
• The Board should have international representation
• The Electoral Reform Society should be on the Board
• The Board should not include local authority chief executives.

4.21 There was also a small number of comments on the appointments process for the EMB, including that (i) members should be appointed in a ‘clear and transparent manner’; (ii) there should be no ‘place members’ (i.e. membership should be on an individual basis and not related to membership of a specific group or organisation); and (iii) there should be a process for making nominations for election to the Board. In addition, a few respondents commented that they were unsure about how the appointments process was undertaken.

Other duties and responsibilities for the Electoral Management Board

4.22 Respondents suggested a wide range of other duties and responsibilities which they thought the EMB should take on, some of which would require additional legislation and / or a change to its legal status. Some of these suggestions were for new areas of work currently not being undertaken; others involved giving the EMB responsibility for work currently carried out by other organisations. Each of these suggestions was made by a small number of respondents.

4.23 Suggestions for new areas of work included:

• Implementation of new technology in elections including responsibility for support structures, technical infrastructure, processes and procedures, initial set up, testing, audit processes, supplier liaison, etc. It was noted that taking responsibility for this may need the EMB to have a ‘formal legal personality’ (to allow it to enter into contracts, etc.) which would be a significant change for EMB members.
• Developing a centrally maintained website which would act as a repository for all election data (full results, plus all related information including turnout and information about protected equalities characteristics) across all geographic areas. (These data are currently only available on a local basis – in a range of different formats – for each of the 32 local authorities.)
• Establishing a ‘citizens panel’ to independently audit all aspects of the voting process.
• Challenging or changing the recommendations from boundary reviews.

4.24 Suggestions for areas to be added to the EMB’s remit which are currently overseen by other organisations included:

• Responsibility for a wider range of elections including: the election of Scottish MPs and MEPs to the UK / European Parliaments, community council elections, and referenda
• Oversight of the electoral registration process
• Investigating alleged electoral fraud or wrongdoing and having the power to request the re-running of an election if necessary
• Production and issue of a wider range of guidance for ROs and EROs.

4.25 Respondents emphasised that any extension to the responsibilities of the EMB must be adequately resourced.

Returning officers – appointment, role and remuneration (Q5 to Q7)

4.26 Chapter 2 (Section 2) of the consultation paper set out the process for appointing ROs for Scottish Parliament elections, their role, and the arrangements for their remuneration.

4.27 It was explained that, under current legislation, ROs are appointed by local authorities. This arrangement means that the RO is free from any direct influence of Scottish Ministers or the Scottish Parliament. Moreover, since the RO appointment is on a personal basis, is additional to any council employment, and involves a degree of personal liability, the RO is paid a fee for these duties. The consultation paper explained that, currently, ROs appointed for local government elections also act as ROs for Scottish Parliament elections. It is notable that although a local authority is free to appoint any officer of the authority as its RO, in practice in most cases the position is held by the local authority chief executive.

4.28 The consultation paper went on to explain that a report published by the Scottish Parliament’s Local Government and Communities Committee in January 2017 had concluded that ‘the current system of payments to ROs should end’.^[6] Respondents were asked for their views on three issues:

Question 5: Should the Returning Officer appointment for Scottish Parliament elections continue to be on an appointment on a personal basis, independent from Scottish Government and local authority control? [Yes / No]

Question 6: Should the role of the Returning Officer become part of the job description of local authority Chief Executives? (This is not currently the case and would require renegotiation of terms and conditions.) [Yes / No]

Question 7: Do you have any other comments or suggestions about who should have the role of Returning Officer or how Returning Officers should be paid?

4.29 Table 4.2 below shows that, among those who answered Question 5, a large majority of both individual respondents (86%) and organisational respondents (87%) agreed that the RO appointment for Scottish Parliament elections should continue to be an appointment on a personal basis.

Table 4.2: Q5 – Should the Returning Officer appointment for Scottish Parliament elections continue to be an appointment on a personal basis, independent from Scottish Government and local authority control?

Respondent type	Yes		No		Total
	n	%	n	%	n	%
Organisations	20	87%	3	13%	23	100%
Individuals	593	86%	96	14%	689	100%
Total	613	86%	99	14%	712	100%

4.30 Table 4.3 below shows that, of those respondents who answered Question 6, nearly two-thirds of respondents (64%) disagreed that the role of the RO should become part of the job description of local authority chief executives; the remainder (36%) agreed.

Table 4.3: Q6 – Should the role of the Returning Officer become part of the job description of local authority Chief Executives?

Respondent type	Yes		No		Total
	n	%	n	%	n	%
Organisations	7	35%	13	65%	20	100%
Individuals	247	36%	434	64%	681	100%
Total	254	36%	447	64%	701	100%

4.31 A total of 230 respondents – 29 organisations and 201 individuals – made comments on the role of the RO at Question 5, Question 6 and / or Question 7.

4.32 As has been seen in paragraph 4.29 above, in relation to Question 5, respondents were largely in favour of the RO appointment being ‘an appointment on a personal basis, independent from Scottish Government and local authority control’. It was common for respondents to preface their comments with an endorsement of the position outlined in the question.

4.33 In expanding on their views, respondents emphasised and restated the importance of the RO role being independent, free from ‘political interference’ (either real or perceived) and accountable to the courts; this was thought to be vital if the public were to have confidence in the (integrity of the) elections process. ‘Political interference’ was broadly interpreted by respondents to include (i) Scottish Government and / or local government officials not ‘interfering’ in the role of the RO and (ii) ROs themselves being free from ‘political bias’. Specifically, respondents said that ROs should not be members of – or donors to – any political party and should have no ‘vested interests of any kind’.

4.34 In general, respondents thought that, given the current arrangements for ROs to be appointed on a personal basis and to be accountable to the courts, independence from ‘political interference’ was compatible with the RO holding a (salaried) post within a local authority. However, occasionally respondents expressed a view that employment by the local authority inevitably compromised the independence of the RO and this arrangement was therefore not viable. This is discussed further below.

4.35 After these introductory comments, respondents went on to discuss a range of themes covering: (i) the inclusion of the RO role within the local authority chief executive job description; (ii) who can fulfil the RO role (including the skills required for the role); and (iii) the remuneration arrangements for ROs. Comments on these issues are presented below. A final section discusses respondents’ other comments in relation to the role, remit, appointment and remuneration of ROs.

The inclusion of the RO role within the chief executive job description

4.36 As mentioned above (paragraph 4.30), respondents were divided in their views about whether the role of the RO should become part of the job description of local authority chief executives: around one-third of both individual and organisational respondents agreed with this proposition and two-thirds disagreed.

Views of those in favour of the RO role becoming part of the chief executive job description

4.37 There were three main reasons offered by respondents who thought the RO role should become part of the job description of local authority chief executives.

4.38 First, respondents thought that such an arrangement would represent good value for money for the taxpayer. Respondents thought that by including these duties within the job description, no additional remuneration for the RO role would be appropriate or required. It was common for respondents who made this point to refer to the (already) high salaries of chief executives and / or the (perceived) high additional costs of separate remuneration for the RO role. Combining the RO duties into the chief executive role was seen as a way of reducing the costs associated with running elections.

4.39 Second, respondents argued that this arrangement made sense since chief executives do not currently and would not in the future do the work themselves. Rather they would delegate the work involved to their staff – just as they do with their other duties. This was also part of the rationale for arguing that no additional remuneration should be associated with this responsibility.

4.40 Third, respondents argued that since, in most cases, the role is currently performed by chief executives, this would simply be ‘regularising current practice’. These respondents argued that the current arrangements were appropriate and provided a good solution to the RO’s requirement for easy access to expertise, resources and knowledge within the local authority, all of which were necessary for the smooth running of elections.

4.41 Occasionally respondents highlighted adjustments which could or should be made to this arrangement, or they included caveats in their response. In particular, there were suggestions that: (i) the personal liability element should be removed under this scenario; (ii) there needed to be assurances that introducing this new responsibility would not detract from the delivery of other chief executive responsibilities; and (iii) while this arrangement was acceptable, it should be for every local authority to make its own decision.

Views of those opposed to the RO role becoming part of the chief executive job description

4.42 There were three main reasons offered by respondents who were not in favour of the RO role becoming part of the job description of local authority chief executives.

4.43 First, respondents argued that making the RO role part of the job description of local authority chief executives would compromise the ‘independence’ or ‘political independence’ of the RO, and thereby undermine confidence in the electoral process. Respondents said that chief executives were accountable to their council and to the elected members, and that it was therefore not possible for them to be independent. (Note that these respondents did not view the fact that RO appointments were made on a personal basis as providing sufficient protection against ‘political interference’.)

4.44 Second, respondents thought that such an arrangement would cause problems regarding the employment of temporary election staff. Currently such staff are employed directly by the RO. However, if the RO was also the chief executive, such staff would be employed by the council, and would be covered by council policies and procedures (on employment, leave, working time directive, etc.). It was suggested that this would not be desirable.

4.45 Third, respondents did not believe it was a good idea to remove the flexibility of local authorities to appoint the most appropriate person for the role – which may not necessarily be the chief executive.

4.46 Occasionally these respondents argued that local authority chief executives should be disallowed from performing the role of RO. More often, respondents objected to the routine integration of this role into the job description but did not rule out that it might be appropriate on some occasions.

Who can fulfil the RO role?

4.47 Respondents put forward a wide range of options in relation to who might fulfil the RO role. Suggestions included:

• A senior local government employee
• Someone who is not a local government employee
• A senior executive within a public body (e.g. the police, civil service)
• Someone who was legally qualified
• The electoral registration officer
• A suitable ‘member of the public’, ‘local person’ or ‘responsible person’.

4.48 Respondents emphasised that this was a very demanding and complex role, requiring a wide range of skills (including quasi-judicial skills), and whoever was chosen would need to be ‘suitably qualified’ and / or appropriately trained. The importance of the ‘neutrality’ of ROs featured strongly, and it was suggested by some respondents that this might be achieved by employing a retired person or by appointing a ‘paid official employed by an independent organisation’; others thought that continuing to appoint ROs on a personal basis would ensure ‘neutrality’.

Remuneration arrangements for ROs

4.49 Some respondents, especially organisational respondents, were aware of (and indeed had contributed to) the recent Scottish Parliament’s Local Government and Communities Committee (LGCC) report on payments to ROs. They thought this report, which concluded that ‘the current system of payments to ROs should end’ formed an appropriate starting point for a re-consideration of the remuneration arrangements for ROs. They also thought the work which was underway in this committee should continue.

4.50 More generally, respondents discussed: (i) the need for greater transparency, consistency and fairness in remuneration arrangements; (ii) the importance of appropriate remuneration; and (iii) the need to bring down the fees / costs associated with the RO role. Each of these aspects is discussed in more detail below.

The need for greater transparency, consistency and fairness in remuneration arrangements

4.51 The recent LGCC report highlighted the need for greater transparency, consistency and fairness in RO remuneration arrangements, and this view was echoed widely among respondents. As regards the current situation, respondents said they were unclear about the RO workload. They thought that increased transparency relating to all relevant expenditure, including the payment of ROs and all other election staff, was necessary. The current situation whereby ROs have discretion in distributing (personal) payments to other staff, and are exempt from freedom of information requests, was not thought to be satisfactory.

4.52 There was also specific comment to the effect that the current system of linking payments to the number of voters within a given area was not appropriate or fair; respondents did not think that the workload in a rural, more geographically dispersed, but less populated area, was any less than that in an urban, more densely populated area with a larger number of voters.

The importance of appropriate remuneration

4.53 Some respondents focused on the importance of ‘appropriate’ remuneration for the RO. These respondents emphasised the (personal) responsibility of the RO in what was a complex, high profile role of vital importance. They thought it was unreasonable that such a major responsibility should go financially unrewarded, especially given the RO’s personal liability in the case of wrongdoing or poor performance. They also emphasised the importance of keeping this payment ‘separate’ to payment for (salaried) local authority employment in order to preserve the independence of the role.

4.54 It was common for these respondents to go on to say that RO remuneration should be based on a ‘job evaluation’ just like remuneration for any other role.

The need to bring down the fees / costs paid to ROs

4.55 Some respondents, particularly those who favoured adding the RO role into the job description of the local authority chief executive, focused on the (perceived) high payments to ROs and the need to bring these down, especially in a context of ever increasing numbers of elections. These respondents were concerned at the – as they saw it – large additional payments made to ROs for duties which (they thought) should simply be part of their regular duties. This group of respondents thought that getting expenses (only), a ‘small retainer’, ‘small standard fee’, ‘fixed fee’, ‘modest fee for election night only’, ‘additional hours at overtime rates’ or, perhaps, ‘time off in lieu’ might be appropriate.

Other comments regarding the role of the returning officer

4.56 Respondents made a range of suggestions on the process which should be used to appoint an RO and the arrangements under which the appointment should operate. Some endorsed the current approach whereby the appointment of the RO is made on a personal basis, as they believed this was crucial in ensuring the independence of the role. However, others suggested that the independence of the RO would be better ensured if the appointment was made by an independent body and the appointed individual was accountable to that body. The EMB was thought to be an appropriate body in this regard. More broadly, various respondents suggested that the RO role should be (i) ‘publicly advertised’ (ii) an ‘elected role’ (iii) ‘picked by the people of Scotland’ or (iv) picked at random (as with jurors).

4.57 Whilst there were divergent views expressed about the remuneration of ROs, any respondents who commented on payments made to more junior election officials emphasised the importance of these individuals being paid appropriately for their work.

4.58 There was some comment from respondents about the continuation – or not – of the personal liability of ROs for wrongdoing or poor performance. Views were divided on this. Some respondents argued that this arrangement should continue because it upheld the independence of the role. Others thought it had limited value and suggested one or more of the following possibilities instead: (i) the personal liability should be ‘capped’; (ii) it should be replaced / supplemented by an insurance scheme of some kind; and (iii) ROs should be ‘indemnified by the state’. In addition, some respondents thought that whilst this was the formal arrangement in law, in practice the risk could be transferred to the council itself if this provision was ever invoked.